Port of Kennewick bill for complaint tops $450,000

The Port of Kennewick has spent nearly $450,000 to address an “anonymous” complaint against two commissioners over a land sale dispute.

The costs include $400,000 to investigate and adjudicate the complaint that Commission Chairman Don Barnes and Commissioner Tom Moak violated port policies and $49,000 to reimburse Barnes’ related legal fees.

An investigator concluded both men violated port policies when a 2019 discussion about a possible port role in the sale of five acres near Vista Field took a heated turn.

Don Barnes

Barnes appealed and an independent judge concluded the complaint was unfounded.

Barnes and Moak voted April 13 to reimburse the legal Fees. Commissioner Skip Novakovich, who acknowledged he was the author of the complaint, abstained from voting. Novakovich earlier said he would support paying the bill but later changed his mind when no one could assure him the port wouldn’t be faulted by the state auditor’s office for the move.

Barnes submitted legal bills totaling $49,000. An attorney who reviewed the documents said $42,000 was reasonable. Barnes asked for and received the full $49,000.

“In some way or matter it was appropriate,” Moak said. “It’s about time we finish this. And I think it is justified. We need to move on.”

The cost is the latest in a series of conflicts between the port’s three commissioners.

If there is one thing they all agree on, it is this: The cost went too high.

Tom Moak

Moak called it terrible but said he does not think it will affect the port’s major undertakings, including turning the former Vista Field into a mixed-use development and creating visitor amenities along the downtown Kennewick waterfront.

Barnes called it an “appalling amount of money” and said the complaint and resulting investigation and hearings should never have happened.

Skip Novakovich

Novakovich said the outcome showed the process works. However, he said, efforts to reconcile soon after the heated arguments were rebuffed by his board mates.

The cost represents 16% of the port’s $2.6 million 2019 operating budget, according to a financial summary by its independent auditor submitted to the office of the state auditor in lieu of a state audit. That excludes capital and other expenditures.

The $400,000 to process the complaint and appeal were not covered by the port’s insurance policy.

Conflict begins in 2019

The conflict began in early 2019, when port staff asked the elected commissioners to release a buyback clause on land the port had sold more than a decade earlier to Jerry Ivy Jr.

At the time, Ivy had a deal to sell the five acres to the nonprofit Yakima Valley Farm Workers Clinic, which was preparing to build a $20 million medical and dental clinic for low-income patients there.

Barnes and Moak initially objected. Later, they said didn’t know a medical clinic was in the works and feared it would be an industrial laydown yard. That wasn’t the neighbor they envisioned for Vista Field, their prized redevelopment project.

The two say they signed off once they knew about the clinic’s plan. Novakovich disputes their version, saying all three commissioners were given the same information about Miramar at the same time.

Barnes continues to be rankled by the transaction. The port sold the land to Ivy more than a decade earlier, with a standard buyback clause allowing the port to repurchase it if it was not developed.

“The port doesn’t always extract the highest possible price in a land sale,” he said. “We’re trying to encourage economic development.”

Buyback clauses are supposed to discourage people from holding land and selling it at a higher price years later. Ivy sold the property for Miramar for $1.7 million, nearly $1.2 million more than he paid for it in 2004, according to Benton County property records.

Still, all three commissioners agree the Miramar Clinic project and its staff of medical professionals is exactly what they wanted for a neighbor in the heart of Kennewick.

While the land sale went through, the complaint roiled the port for more than a year.

An investigator concluded both Barnes and Moak violated port policies. Moak accepted the determination, but Barnes appealed.

In December, Paris Kallas, the independent judge who heard the appeal, overturned the investigator’s conclusion in explicit terms.

“(T)he complaint against Commissioner Barnes is unsubstantiated in its entirety and no sanctions hall be applied,” Kallas wrote in the December 2020 decision.

Barnes requested reimbursement in March, saying he would not have done so if the case had gone the other way.

Upcoming election

The $450,000-plus bill promises to be a hot topic in the 2021 campaign season. Barnes’ position is up for election this year.

While he has not decided if he will seek a new term as of mid-April, a prominent Kennewick resident is in the race: Ken Hohenberg, Kennewick’s retiring police chief and deputy city manager, announced his candidacy in March.

The complaint-related costs through March came to $399,280.61, excluding the legal fees Barnes paid from his own pocket, according to documents released under Washington’s Public Records Act.

That includes $60,000 to investigate the complaint, $180,000 to process Barnes’ appeal and $159,000 to comply with public records requests, many from Barnes’ attorney, Joel Comfort of the Kennewick law firm Miller Mertens & Comfort PLLC.

Seattle law firm Ogden Murphy Wallace billed $38,296 for the investigative services of Tara Parker through five separate invoices. Parker’s review concluded both Barnes and Moak violated port rules. Only Barnes appealed.

Judicial Dispute Resolution LLC, a Seattle arbitration firm, submitted three invoices totaling $14,000 for the services of Paris K. Kallas, the retired judge who concluded Barnes was not at fault.

Law firm Foster Garvey submitted 40 invoices totaling $141,000 for costs related to the complaint process.

Carney Bradley Spellman submitted 128 invoices totaling $187,000 related to processing the complaint.

Barnes is chiefly represented by Comfort. There were also invoices for services by Francois “Fran” Forgette of Rettig Forgette Iller and Bowers LLP, a Kennewick law firm.

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