By Tim Schermetzler of CSD Attorneys at Law P.S.
NEWLY ELECTED COMMISSIONERS
Earlier this month ports around the state elected new commissioners. Congratulations to all newly elected commissioners. The election results will be certified by each County on November 25, 2025. With the new flexibility afforded in HB 1573, newly elected commissioners can take their oath of office 1 any date from the date of certification up until one day prior to commencement of the term on January 1 st . 2
A great opportunity for new commissioners to learn more about the port industry and network with fellow port commissioners will be at the WPPA 2025 Annual Meeting, November 18 th through 21 st , at the Marriott Tacoma Downtown (the “Annual Meeting”). As part of the Annual Meeting, WPPA puts on a New Commissioners Seminar (the “Seminar”). This Seminar welcomes both new and existing commissioners to attend. The Seminar provides invaluable information about the Washington port industry as well as offering the open government trainings required for newly elected officials, including Open Public Meetings Act (“OPMA”) and Public Records Act (“PRA”) trainings. 3 These trainings must be done no later than 90 days after a commissioner takes their oath of office and at least once every four years as long as the individual remains a commissioner.
After the elections, WPPA received a question from some port members about the Annual Meeting and the New Commissioners Seminar. The question generally asked:
Can a port pay for a newly elected commissioner to attend the Annual
Meeting and New Commissioners Seminar if that person has not taken
office yet?
The answer is yes; a port can pay/reimburse for the new commissioner’s
attendance, including things such as mileage, hotel, and registration fees.
The concern from these ports comes from the state Constitution’s prohibition on gifting of public funds 4 if the port sends a person to a conference who has not yet officially begun their term of office. The key factors to consider for any gifting of public funds question, is whether there is a fundamental government purpose being advanced and whether there was donative intent on the part of the government entity. A port paying to send a new commissioner to the Annual Meeting is advancing a fundamental government purpose. One of many examples of the advancement of a fundamental government purpose at the Annual Meeting is the fact that those newly elected commissioners will satisfy their statutory training requirements for the OPMA and PRA. The other reason that it is not a gift of public funds for the port to pay for a new commissioner to attend the Annual Meeting is that there is no donative intent. “Donative intent” is simply an intention that the money is a gift for which the port expects nothing in return. In the law, the concept of getting something in return for payment of money is referred to as “consideration.” There cannot be a gift of public funds when there is adequate consideration to support a payment by a government. 5 When a port approves paying for a newly elected commissioner to attend the Annual Meeting, the port is clearly getting something in exchange—a more informed and prepared commissioner.
While there are no major concerns involving a gift of public funds, there are some procedural formalities the port may want to consider when sending a newly elected commissioner who has yet to take office to a conference. First, the port should check the delegation of authority and budget to ensure the port’s Executive Director/Manager has authority to approve this expenditure. If the expenditure is authorized within the Executive Director’s delegation of authority, it should be reported to the commission at its next meeting. If there is no clear authority or it is questionable whether such authority exists, the port commission could approve the expenditure at a meeting by resolution. This action would have the added benefit of the port
identifying the fundamental government purposes it achieves by sending these new commissioners to the Annual Meeting. Second, and it may go without saying, but a newly elected commissioner who has not yet assumed their office cannot receive the per diem compensation as provided in RCW 53.12.260 for their attendance at the Annual Meeting.
As always, if this issue is of particular concern at your port, work with your port’s legal counsel
to address your specific questions and, if appropriate, drafting a resolution for commission
approval of the expenditure.
If you have a question for Knowing the Waters, please e-mail me at tschermetzler@csdlaw.com.
1 RCW 29A.04.133(3).
2 RCW 29A.60.280.
3 RCW 42.30.205 and RCW 42.56.150.
4 Wash. Const. Art. VIII, Sec. 7.
5 Clean v. State, 130 Wn.2d 782 (1996) (Court held that there was adequate consideration (and,
therefore, no donative intent) involving the financing of a new major league baseball stadium).
