Note: My cell phone number and the name of another individual who wrote to the AG's Ombudsman have been omitted for privacy reasons.August 12, 2008
Mr. Ford,
As the Open Government Ombudsman, I request your assistance in correcting the course of the Port of Bremerton in the legal performance of their duties and compliance with the Open Public Records and Meeting Acts.
The problem is that on December 12, 2005, an agreement between the Port of Bremerton and the Suquamish Tribe was illegally entered into and funds have been disbursed based on the illegal agreement. The agreement is illegal because a lawful process for authorization did not occur. Further, because a legal process of authorization was not followed, the public was not informed as to the nature of the agreement or it’s ramifications.
During the 18 months prior to December 12, 2005, members of the elected Port of Bremerton Board of Commissioners engaged in negotiations with the Suquamish Tribe regarding mitigation issues for the construction of a new marina in Bremerton . On December 12, 2005, without approval or action by the majority of the Port of Bremerton Board of Commissioners, Mr. Bill Mahan (an elected commissioner) entered into an agreement with the Tribe. A copy of this agreement is attached. The members of the Port of Bremerton Commissioners, at the time, were Mr. Bill Mahan, Ms. Cheryl Kincer, and Mrs. Maryann Huntington (replaced in 2008 by Mr. Larry Stokes).
This agreement came to public attention today because a citizen, affected by the Tribe's exercise of this agreement, asked for a copy of whatever gave the Tribe the authority to exclusive use of a portion of the Port Orchard Marina (owned by the Port of Bremerton).
I attended the Port of Bremerton 's public meeting this evening (August 12, 2008). During the public comment section of the meeting, I inquired as to when the Suquamish agreement was approved by the Board, since I was unable to find such approval in any Port meeting minutes or agendas (available online). Commissioner Cheryl Kincer asked Mr. Attebery (CEO of the Port of Bremerton ) to answer the question.
Mr. Attebery said that it was quite awhile ago and it was informally "understood" (no action taken by the commission) that Mr. Mahan would engage the negotiations and because Mr. Mahan was President of the Board at the time, he negotiated and eventually signed off on the agreement, even though there was no formal approval or vote “by motion or resolution” of the Board. Approval of the agreement was never on an agenda or in minutes. Since action to approve or disapprove of the agreement wasn’t on an agenda or in minutes, the public was kept in the dark as to the extent, nature, and scope of an agreement.
It is my opinion that is not how an elected commission or board legally functions. Members of the commission have no power to act individually. They can take official action only with the approval of the majority of the Board, which would be codified in a motion or resolution. Mr. Mahan, in and of himself, is not a majority of the Board. Entering into a binding agreement between the Port and another jurisdiction is the business of the Port and requires the approval of the majority of the Commission. That is why we elected a body of commissioners. They have no individual authority. There must be majority agreement and formal approval, codified in the minutes and agendas of the meetings. No such approval was given, at least not as recorded in the proceedings of the commission (i.e. minutes or agendas) as is required by law.
Specifically, the following law applies…
http://apps.leg.wa.gov/RCW/default.aspx?cite=53.12
RCW 53.12.245: Organization of commission -Powers and duties - Record of proceedings.
“The port commission shall organize by the election of its own members of a president and secretary, shall by resolution adopt rules governing the transaction of its business and shall adopt an official seal. All proceedings of the port commission shall be by motion or resolution recorded in a book or books kept for such purpose, which shall be public records.”
RCW 53.12.246 Quorum
“A majority of the persons holding the office of port commissioner at any time shall constitute a quorum of the port commission for the transaction of business, and the concurrence of a majority of the persons holding such office at the time shall be necessary and shall be sufficient for the passage of any resolution, but no business shall be transacted unless there are in office at least a majority of the full number of commissioners fixed by law.”
This action violated, at the very least, the spirit of the Open Public Meetings and Records Acts because the public was kept in the dark and no public vote of the commission occurred to approve or even discuss this “agreement”. It almost appears intentional to not have a public action on this item.
I respectfully ask for your assistance in helping the Port of Bremerton to understand that the authority of the Commission is vested in the elected body, not individually elected members. Further, I ask for your assistance in explaining the correct process to the Port of Bremerton and encouraging them to comply with the law. It is my understanding that an agreement entered into outside of lawful process is null and void. In order to secure the points of the potential agreement, the Port of Bremerton should be required to follow the law or abandon the agreement.
Your assistance would be greatly appreciated. The intent of Open Government is clearly stated in RCW 42.56.030:
“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.”
Please feel free to reach me at the phone number or email address below. I look forward to hearing from you.
Regards,
Kathryn Simpson-----------------------------------------------August 17, 2008
Mr. Ford,
I noticed on my home caller id that you called on Saturday. Please feel free to call me on my cell phone . As a parent of two teenagers, I often don't get my messages on the home phone.
Per our discussion last week, below is some additional information for your consideration. The first section reviews the public record. The second section details the extensive experience of the Board at the time. The third section speculates as to why the Port of Bremerton didn't take a vote. The fourth section addresses why it would be an extremely weak argument to assert that "final action" of the Port could be inferred by their individual participation in negotiations.
I spent quite a bit of time scouring the minutes and agendas of the Port of Bremerton and I have not been able to find any vote of the Port on the "agreement".
In terms of chronology, this is what I was able to find:
- -In the minutes of the July 27, 2004, Ken Attebery mentions that he, Commissioner Kincer, and Gordon Walgren (the Port's attorney) met with the Port's environmental consultant (the minutes don't identify the individual) and Suquamish Tribe to discuss the Bremerton Marina project. This appears to be the first mention of this effort.
- -In the minutes of 08/24/04, 12/14/04, 7/12/05, 10/11/05, 10/25/05, 10/31/05, 11/08/05 there are mentions of the ongoing negotiations.
- -In the minutes of the Port meeting of December 13, 2005, Mr. Attebery told the Port that there is a joint agreement signed December 12, 2005.
- -In the minutes of the Port meeting of January 10, 2006, Commissioner Mahan tells a citizen, during a meeting, about some of the conditions in the “agreement”.
There are no minutes or agenda items that reflect that any vote was taken regarding this “agreement” between November 8, 2005, when Mr. Attebery says it is still being negotiated, and January 10, 2006, when Commissioner Mahan tells a citizen, during a Port Meeting, that an agreement is in place.
From what I can see, the Port did not take a vote or pass a resolution to authorize Commissioner Mahan to enter into the "agreement", either before or after he signed it on December 12, 2005 (according to the copy of the "agreement", provided by the Port to me last week).
On December 13, 2005, the minutes of the regular meeting of the Port state:
“Ken Attebery noted that the Suquamish Tribe sent a letter to the Corps of Engineers in support of the Bremerton Marina expansion project through a joint agreement signed December 12, 2005 between the Port and the Tribe.”
In the minutes of the January 10, 2006 meeting, we do learn a little about the “agreement”:
“Mr. Oliver asked if the Port, or any second party with the Port, had to pay compensation to any group in order to secure permits for the Bremerton Marina expansion project. Commissioner Mahan explained that, by treaty, Indian tribes have a play in how the waters are managed that affect their fishing grounds. The Port entered into 18 months of negotiation with the Suquamish Tribe in order to obtain their approval of the project. Negotiations were successful with the Port agreeing to provide moorage; make contributions to their salmon enhancement fund (approximately $7,000 a year in perpetuity); a one time contribution to their net repair fund ($10,000); and agreed to work with the Tribe in educating boaters about their fishing and net placement.”
As I stated earlier, I believe this "action" (non-action?) violates the law.
It would seem reasonable that, given the experience level of these elected officials, they had to have known the law. These were not newly elected board members. Commissioner Kincer was in her seventh year as a Port Commissioner by 2005. Commissioner Huntington was in her 12th year as a Port Commissioner in 2005. Commissioner Mahan was in his 5th year as a Port Commissioner in 2005 and he had previously served for 20 years as an elected Kitsap County Commissioner.
Obviously, the Port of Bremerton Commissioners were experienced enough to know and understand the requirements of the law. Commissioner Mahan, given his 25 years of experience as an elected official, would be hard pressed to say he didn't understand that he didn't have authority to act individually. With more than 44 years of collective elected board member experience, it would be extremely unlikely that none of the Port of Bremerton Commissioners understood their legal obligations relating to a required vote of the body of the Board to authorize the "agreement" and the legal requirement that the vote be recorded in the minutes of a public meeting. Any one of them could have insisted on a vote. They were all silent on the matter. That is deeply disturbing.
You may be wondering why the Port would have intentionally avoided a vote. Here is my speculation on that:
At the time, the Port of Bremerton didn't want increased public scrutiny because they were quietly passing an Industrial Development District (IDD) Levy (to build a new marina in Bremerton). They knew this increased taxation would not go over well with citizens. Further, had the citizens of South Kitsap known that the Port of Bremerton was entering into an "agreement" that effectively gave away 200 linear feet of the Port Orchard Marina in order to move the new Bremerton Marina project past the objections of the Tribe, I believe that public scrutiny of that plan would have been an understatement. This public scrutiny would have led citizens to the fact that they had legal recourse regarding both the agreement and the IDD Levy.
The Port needed the IDD levy to move quietly under the radar of public scrutiny because when a Port proposes a second IDD Levy, RCW 53.36.100 gives citizens 90 days to present a petition, of at least 8% of the registered voters within a Port District, which would force the IDD Levy to a vote of the citizens before it could be implemented. However, if a petition isn't presented within 90 days, the Port can move forward with imposing it without a vote. Had the Port been complying with the law, I have little doubt that citizens would have taken note of the "agreement" with the Suquamish Tribe and sought recourse. This would have led citizens, like myself, to a review of the law and the discovery of the petition process regarding the IDD Levy. Instead, most voters, like myself, heard about the imposition of the IDD Levy when they received their property tax statements in February of 2006.
The Port had every right to impose the IDD Levy and enter into an agreement with the Suquamish Tribe. However, the Port of Bremerton did not have the right to avoid public scrutiny by avoiding a vote on the Suquamish Tribe "agreement". This avoidance is expressly contrary to the Open Public Meetings and Records Acts and a violation of the law. Further, it is my understanding that because the "agreement" was not voted on or recorded in the minutes of a public meeting of the Port of Bremerton, it is an illegal agreement and should be considered null and void.
Finally, regarding Ms. 's contention that the Port Commissioners's involvement during negotiations infers their approval, I take great exception. To assert such to be an arguable "final action" of a governing body is to basically give governing bodies the right to a secret vote, since the public would have no record or indication of who agreed and who didn't. As you know, secret votes are expressly forbidden by RCW 42.30.060 (2).
Thank you, again, for any assistance or enlightenment that you can provide in this matter. I have received comments from many citizens expressing interest in this issue.
Regards,Kathryn Simpson
