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Kennewick port commissioners face sanctions, appeal following complaint

The Port of Kennewick’s three commissioners have been outspoken as costs pile up for an independent investigation involving two of them that was prompted by the third.

Commissioner Skip Novakovich filed an anonymous complaint as a citizen alleging unprofessional behavior during a testy closed-door meeting about the sale of land near Vista Field. It ultimately led to sanctions recommended for the commission’s president and vice president.

“It’s a pretty ugly situation,” Novakovich said.

The publicly elected commission represents citizens in Kennewick, West Richland and portions of Richland, Benton City and Benton County.

Commissioners Thomas Moak and Don Barnes maintain other channels could have been taken internally instead of the one that led to an investigation that’s cost the port at least $65,000 so far, not including staff time.

“I believe there would have been more effective ways to deal with this, less costly to the Port of Kennewick, but that’s not the decision that was made,” Barnes said.

Moak partly blamed the port’s lack of a human resources department to handle the issue in-house.

Legal costs keep climbing

The final costs could swell to more than double what has been spent when an appeal before a neutral third party is undertaken on the accusations against Barnes. The “rough” estimate is $75,000 in additional costs.

“It’s a very early estimate. We don’t have neutral selected so we do not know what that neutral’s hourly rate is going to be,” said Lucinda Luke, the port’s attorney. “A lot of things that neutral (party) will also be determining is the hearing process, and so that process may be more abbreviated or may include more steps. So that is truly a very rough estimate.”

Moak, the commission’s president, chose not to challenge the recommended sanctions, which include a public reprimand, retraining on professional conduct at his expense and publication about his sanction in the Tri-City Herald.

In his complaint, Novakovich pointed to the commissioners’ behavior while discussing the land sale.

The port owns property in central Kennewick where a working air strip was located until it closed at the end of 2013; it is being redeveloped for mixed use.

The port had interest in buying back five acres of private land under contract with the Yakima Valley Farm Workers Clinic.

According to those in the meeting, it appeared Moak and Barnes found port CEO Tim Arntzen at fault for the port losing its chance to buy back the land prior to the sale.

“I said I raised my voice, somebody else said I yelled. To me, I don’t know of a person who, in a tense situation, hasn’t raised their voice or yelled in frustration. I mean, I did it. I was frustrated. But I didn’t think it was a big thing, either,” Moak said.

He accepts the blame, but doesn’t accept fault for the situation escalating beyond the port’s walls to an independent investigation, prompted by Novakovich’s complaint.

“I believe that the appropriate way of dealing with it would have been to go to Tim Arntzen, if (Novakovich) was having an issue with commissioners, or to speak up in a meeting and do that rather than going through this anonymous citizen complaint that’s going to cost a lot of money,” Moak said. “To me, it was Tim’s role as CEO to figure out what needs to happen. It shouldn’t be an individual commissioner starting out with the first brush to file a complaint.”

Barnes also feels he did everything in his power to avoid the investigation and  growing legal bills.

“It’s a matter of public record. I tried to amend the agenda in April at our port commission meeting to add an executive session for the purpose of taking up the citizen complaint. But the commission was told by port counsel that that would have been premature, or some words to that effect, so I couldn’t get a vote from the commission to go along with that,” Barnes said.

“This initial complaint authored by Commissioner Novakovich went to our CEO Arntzen and to attorney Lucinda Luke, and they made the decision to go forward with an outside investigation,” he added. “Those three made the decision. And now I find it a little ironic that I’m being blamed for the cost of this.”

Novakovich disagreed.

He said the commissioners, and especially Moak, had the opportunity to deal with the concerns in house but avoided it.

“(Moak) was supposed to handle these things but he did not,” Novakovich said. “He ignored it and even sided with Commissioner Barnes whenever any issue came up that related to it. So, yes, I agree, it could have been handled locally. But he didn’t do it.”

Novakovich said using the outside attorney was the only available course of action: “By port policy, Tim needed to automatically recuse himself and send it on to the attorney, which he did. The attorney then got out of the way and said, ‘Look, I’m the port attorney. I need to find a neutral person to investigate this,’ so she got out of the way.”

The investigation also looked at whether Barnes created a hostile work environment for a salaried employee, Arntzen, and whether Moak shirked his duties as president by failing to enforce policies and procedures.

The investigator’s findings

The investigator’s August report resulted in six findings, half of which exonerated the commissioners, half of which found violations.

The report by Seattle attorney Tara Parker of Ogden Murphy Wallace found Barnes and Moak did not violate port rules regarding directives to staff or violate the state’s Open Meetings Act. Parker also determined Moak did not fail in his role as president.

But Parker did conclude Barnes violated port rules by calling a Vista Field consultant about the land sale, as well as the state auditor’s office.

Additionally, Parker said Barnes created a hostile work environment for a port employee and Moak violated port rules on civility when he raised his voice at the port employee.

“I accept that I could have done better. We all have standards that we need to live up to, and I didn’t live up to the standard I wanted to live up to,” Moak said.

The investigator said Barnes calling the consultant about the land sale could harm the port’s relationship with the consultant.

Barnes called the state auditor’s office in June 2019 to ask about the chance of buying back the land, a call that was placed while the investigation was underway.

Parker concluded this call could result in added scrutiny of the port by the state auditor’s office.

“There are a lot of allegations in this complaint and 90 percent were found to be without merit. There are only three things, and I respectfully disagree with the findings of the investigative report regarding the two things that I am alleged to have done,” Barnes said.

Since the port had an interest in obtaining the private land and failed to do so, the complaint indicated Barnes and Moak placed the blame squarely on the shoulders of the port’s CEO.

The investigator reported Barnes accused Arntzen of fraud and withholding information, and said multiple witnesses recounted a hostile demeanor toward the port’s CEO which “seriously negatively impacted” Arntzen.

The finding said Barnes repeated “significant hostility, in public and private” against the CEO.

“I disagree with the findings of this investigative report, and per our rules of policy and procedure, I have requested a hearing by a neutral (third party) to appeal,” Barnes said.

Parker concluded that Moak’s treatment of the CEO wasn’t much better, finding that he had yelled, “I blame you,” to Arntzen and had threatened to fire him in a joking matter during public meetings.

The investigator also said Moak “dressed down” a public works director from a port jurisdictional partner.

Novakovich said inappropriate comments made in public meetings were nothing new. “What’s been going on is just awful…You don’t bring that kind of stuff up in public; it’s just not the right thing to do,” he said.

The investigator said Moak and Barnes violated the rules on civility and respect and recommended sanctions against both.

Novakovich felt these findings only scratched the surface.

“I’m disappointed that the investigator didn’t investigate deeper. I’m happy that there’s something and something’s going to happen, but I think there could have been a lot more,” he said.

Sanctions and appeals

The sanctions include cooperative participation in team-building activities with the staff, including the CEO and Novakovich.

When asked how they expected to work together for the good of the port, Novakovich said he shared the same concerns.

“I asked that exact question, ‘How is this port supposed to function when you have two people who have created a hostile work environment, and yet they’re in a position to oversee?’ and Moak called me out of order and I couldn’t finish,” Novakovich said. “Port policy says there’s not to be any retaliatory action against anyone who files a complaint, and if you take a look at the videos of our meetings, Commissioner Moak would not even let me speak in commission meetings. As soon as I started speaking on something, he’d call me out of order and tell me to be quiet.”

For Barnes, formal public censure was also recommended. “I’m confident in my appeal before an independent neutral over these allegations,” Barnes said. His decision to request an appeal will come at the expense of the port.

The port’s chief financial officer said the port is checking to see if its insurance may cover the expense, otherwise it expects to use some of the $2.5 million set aside in a self-insurance fund to foot the bills.

Moak and Novakovich disagree about whether Barnes should pursue his appeal.

“I wouldn’t want that on my record. I believe people need to defend themselves,” Moak said. “It’s shocking the cost is what the cost is, but if you feel this is an overreach, I think he needs to stand up for himself. That’s what appeals are there for.”

Novakovich said, “I think it’s uncalled for because the independent investigator found him guilty on two or three things, and that’s the way it’s going to end up again no matter what he would do or say. It’s black and white, the facts are there, it’s all been proven. It’s just a complete waste of money.”

When asked whether a second independent investigation could find a different outcome, Barnes said, “I don’t have a comment about the independent investigation and whether it was independent or not.”

Upcoming election, current tensions

The future of the port commission is still up in the air. Moak is the commission’s newest representative and is running for re-election against challenger VJ Meadows in the November election.

The position represents a portion of Kennewick. Each commissioner is elected to a six-year term. The commissioners don’t currently earn the same salary due to rules preventing an elected official from voting for their own salary increase.

Barnes and Novakovich earn $28,505 a year, while Moak earns $15,708, plus a per diem compensation of $128 per meeting.

The port’s CFO said this all amounts to a similar salary between the three commissioners, and when the new term begins in January, the per diem will be eliminated and each commissioner will earn the same.

Novakovich said he’d prefer to see a new face on the commission after the election.

Barnes is in his second term representing a portion of Kennewick and has served the commission since 2012.

Moak believes the current commissioners can still be effective in their roles despite the past.

“Is it a little challenging? Yes. My feeling is, I have to deal with that, and I believe I have dealt with that professionally. I believe that the three commissioners are professionals and they should be able to work together for the greater good. I don’t see necessarily that just because there’s been a little bit of turmoil among us, as necessarily having to change the direction of the commission or that that becomes overwhelming to the product we try to put out,” Moak said.

Barnes said his record should stand for itself and believes he will be exonerated.

“I’ve had an excellent working relationship with the Port of Kennewick, until January of this year. Basically this issue came about over questions about one item that was on the Jan. 22, 2019, agenda. And I think it’s the responsibility of the commissioner to ask questions that are in the best interest of the Port of Kennewick. I’m asking questions on behalf of the taxpayers and the citizens.”

When Moak and Barnes were asked whether they have confidence in Arntzen’s role as CEO despite disagreeing on the decisions he made over the land sale, Barnes chose not to comment, saying it would be “inappropriate” to do so.

“I felt that he’s done a great job for the first five years,” Moak said. “I’m not prepared to throw out all the good things he’s done because I haven’t liked the way this particular series of events related to this complaint have played out. That doesn’t change my overall view that he’s done a very good job for the port and for the people of the port district at large with some of these big projects. I believe he’s the right person to continue to lead us in that direction.”

While Novakovich has served the district since 2009, representing residents in West Richland, and parts of Richland, Benton City and Benton County, he’s unsure of his own future on the commission.

“I don’t have a whole lot of interest in staying on and I’ve been there for 10 years, but I don’t have any interest in staying in that kind of environment. It’s not worth it. The reason I (wrote the complaint) is not me. It’s to protect the staff. They don’t need to work under that kind of circumstance.”

Novakovich added words of warning: “There could be some real lessons learned for elected officials about policies and procedures; these guys approved them. When you make rules, they’re for a reason, and when you’re elected to represent people, you need to follow the rules and follow the procedures.”

Though Barnes’ appeal looms, he said he’s committed to staying focused on port business. “I think the port has some tremendous projects on the books right now that will make a significant difference in our community and I’m very much wanting to work on these projects going forward,” he said. “I focused on Vista Field; I focused on Columbia Drive, and we need to try to put this behind us and move forward, and that’s what I’m trying to do.”

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