Documents shed some light on port controversy

There’s no need to devote much more copy to last week’s Port of Bremerton Commission controversy.

After talking to state officials this week it’s pretty clear there won’t be any formal inquiries into whether commissioners violated the Open Public Meetings  Act, outside of routine auditing.

Commission President Roger Zabinski has apologized for the way he brought his concerns to the table. The episode will probably blow over.

Before I leave this topic alone, however, I want to share a couple of documents and context I’ve collected over the last week, which shed some light on the issues Zabinski was initially trying to raise.

Zabinksi was concerned emails and phone calls made between Port CEO Jim Rothlin and commissioners outside of a public meeting constituted a “serial meeting,” which would violate the Open Public Meetings Act. It also appears the email from Rothlin and response from commissioners bordered on “polling,” which can violate the act.

First, here’s the Oct. 29 email sent by Rothlin to the commissioners asking whether they wanted to keep a tax levy increase in the 2015 budget.

Rothlin sent the email after a lengthy Oct. 28 preliminary budget workshop (see this story for more background).

Strakeljahn was the only commissioner who replied by email. Stokes had called Rothlin earlier in the day (prompting the email above). Zabinski called Rothlin after receiving the email. 

Next up is a Nov. 5 letter sent by Nancy Krier, Assistant Attorney General for Open Government, to the commissioners and others.

Krier was responding to a request for guidance from Zabinski. She didn’t see the emails Zabinksi was referencing, and didn’t give her opinion on the commission’s specific actions. Her letter outlines some basics of the Open Public Meetings Act, and describes the concept of a “serial meeting.”

According to Krier, “… a serial meeting can occur when the members have a series of communications that individually do not include a quorum but collectively do include a quorum.”

Based on that explanation, it’s possible to see why Zabinski construed the communication between Rothlin and the commissioners as a serial meeting, even if that wasn’t their intent. A quorum did weigh in on a piece of port business, though they only communicated with Rothlin and didn’t have direct contact with each other.

Another point of open meetings law wasn’t mentioned in Krier’s letter but was brought up in my followup conversation with her. It involves “polling,” which can also be a violation of the Act.

This occurs when members of a board are informally polled on a topic in advance of a formal decision, know that a majority of their body is being polled, and are aware of how others are voting. (There’s an explanation from MRSC of Washington here, under item 31).

In his email, Rothlin said it was the staff’s intent to get each commissioner’s opinion on the tax levy amount in advance of a formal decision at the Nov. 24 meeting. He also mentioned Stokes “has raised his concerns about tax levy revenue for 2015,” which effectively let the other commissioners know which way Stokes leaning.

Even if no formal action is taken, MRSC warns “the council or board can end up effectively deciding in advance of a meeting not to bring an issue up where it does not have the support of a council majority, or to bring it up at a meeting if it does have such support. As such, the council or board would be taking ‘action’ outside of an open meeting in violation of the OPMA.”

In the port’s case, the staff prepared budget alternatives for the Nov. 24 meeting after learning two of the commissioners wouldn’t support a levy increase. The commission formally removed the levy increase from the final budget through a series of resolutions during that public meeting.

In the end, the issue probably wouldn’t have made waves had it not been for the public blowup between commissioners.

Still, it can’t hurt for elected officials and staff to continually review how they communicate outside of public meetings, particularly in light of the Bainbridge City Council’s recent misadventure.

As Krier mentioned in her letter, a representative from the state Auditor’s Office plans to visit the port commission in January to answer questions about the Open Public Meetings Act.

Finally, here’s full audio from the heated Nov. 24 discussion. I recorded this audio while taking notes, so please excuse my keyboard tapping:

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