Penalty decision could come in November in lawsuit against Port of Kingston

One of two lawsuits on the court docket

KINGSTON — A Kitsap County Superior Court judge could determine in November the penalties the Port of Kingston will pay a Kingston resident for failing to fulfill her public records requests in 2014-15.

Attorneys for the port and the plaintiff, Tania Issa, said a hearing date of Nov. 7 is proposed, but that date depends on the court schedule. The port was ordered Feb. 10 to pay $75,000 to Beth Brewster and $89,000 in attorney’s fees in a similar lawsuit.

Records show the violations were rooted in a dispute then-port manager David Malone had with Brewster and Issa. Malone initiated the eviction of Brewster’s business, Kingston Adventures, from the port’s marina for not having a lease agreement. Brewster had operated at the marina for three years without a lease agreement but with the port’s consent, and had paid rent for use of the port’s small-boat facility. Brewster said Malone retaliated against her because she questioned in a public meeting how the port was being managed.

Issa believed the treatment of Brewster, as well as other unrelated instances, revealed gender discrimination and conflict of interest at the port, and they both filed requests for public records they believed would back up their suspicions.

The extent of Malone’s conflict with Brewster and Issa was revealed in several records. According to those documents, Malone allegedly used an offensive or pejorative term in referring to Brewster, used an obscene gesture when talking about her in front of port staff, and ordered delays in responding to Brewster and Issa’s records requests. Malone resigned on Oct. 25, 2015.

In an earlier interview, Malone denied the allegations.

“I have no recollection of that whatsoever,” he told the North Kitsap Herald on Dec. 13, 2016. He said he never used “a degrading term” in reference to Brewster.

Malone’s successor, Jim Pivarnik, previously deputy director of the Port of Port Townsend, hired two employees with experience in public records (one of them has a law degree and is an associate professor at the University of Washington) and the port commission adopted a new public records policy. The port updated its website to include recordings of Port Commission meetings, as well as links to various public records, including the port’s master plan, agreements, financial documents, requests for proposals, resolutions and information about port projects.

“We brought in a consultant to finish the open [public records] requests and redo all of the prior requests,” port attorney Kathleen Haggard said. “We completed that process in January.”

Haggard said the lawsuits had an influence on the port’s efforts to be more transparent.

“Obviously, litigation can bring about agency transformation,” she said. “[But] you’ve got to give credit to the new staff. The new director and the new records officers have devoted their efforts to change. This was a very complicated situation with a lot of factors.”

Issa and her attorney, Carl J. Marquardt, disagree with Haggard and the port’s contention that all of Issa’s public records requests have been satisfied.

“We recognize that the port has made greater efforts to respond to outstanding requests and improve transparency since the lawsuits were filed,” Issa and Marquardt emailed in a statement to Kitsap News Group. “But the port has yet to offer any explanation for why large numbers of public records from 2014 and 2015 appear to have been deleted, contrary to the sworn statements of officials. And they haven’t been willing to take any further steps to recover those records. Ms. Issa has tried to get the port’s cooperation to produce these records for more than three years, but we appear to be at an impasse that may need to be resolved in court.”

Wrongful termination lawsuit

Meanwhile, Christine Conners, the port’s former public records clerk, is suing the port for wrongful termination. Conners was fired by Malone on Sept. 8, 2015, for what Conners called “mistaken or falsified allegations” that she took money from the port. Conners alleges Malone retaliated against her for challenging his handling of Issa and Brewster’s public records requests.

In court documents filed June 26 this year, Malone denied Conners’ firing was retaliatory, and said he had previously given her an oral warning “for her tardiness and violation of the Port of Kingston’s dress code.”

A state audit later determined that between Aug. 11, 2014, and Sept. 5, 2015, at least $767 in revenue was not receipted or deposited. Additionally, at least 12 receipts had been deleted from the point-of-sale system, or cash register software, between Jan. 1, 2015, and Dec. 4, 2015.

There was no way to tell how much money the deletions might have amounted to, as the system software erased the transactions. All that was left were the dates the records were deleted, the state auditor reported. Nor was it possible to learn who deleted the record, as employees were not required to use personal IDs when they logged onto the system.

Megan McFarlane, assistant audit manager for the State Auditor’s Office, wrote in an email to Kitsap News Group on June 7, 2016, “We assigned responsibility of $44 loss to the Port Assistant on 8/31/14, and $35 loss on 4/6/15.” With regard to the 12 deleted receipts, McFarlane wrote, “We were unable to identify a loss amount or assign responsibility for the activity related to the deleted receipts.”

In an earlier interview, Conners’ attorney, Judith Lonnquist, said, “We believe the true story will come out at the trial. Ms. Conners categorically denies having taken any of the port funds.”