Port of Kingston admits liability in public records lawsuit; penalty hearing Dec. 16

KINGSTON — The Port of Kingston admits it “failed to provide responsive public records in a timely manner” to Beth Brewster and Tania Issa, the port’s attorney wrote in a letter to Brewster and Issa’s lawyer.

The letter from Kathleen J. Haggard of Porter Foster Rorick, dated April 11, states that the port “does not wish to prolong this litigation or increase litigation expenses,” and seeks “not only to resolve the litigation but to bring the agency into compliance with state law.”

But both sides differ on what the port should pay as a penalty. According to court documents, Brewster has calculated the port’s liability to her, based on penalties set by state law, to be $494,700; the port claims its penalty should be around $32,000.

A penalty hearing is scheduled for 1:30 p.m. Dec. 16 before Kitsap County Superior Court Judge Jeffrey Bassett. A management conference for Issa’s lawsuit, in which a case schedule will be set, is scheduled the same day. Issa’s case appears to be “not subject to arbitration,” according to courtr documents, although Port Executive Director Jim Pivarnik said the port “still holds out hope to do a settlement.”

Pivarnik, who became executive director in April this year, said the port is not admitting anyone acted illegally. He said he doesn’t believe anyone at the port intentionally acted illegally, “it’s just that [public records requests] were not a priority,” he said.

He said that the port’s response to Brewster’s motion for penalties essentially states: “We screwed up. Here’s why and how we screwed up.”

Phone messages were left on Dec. 13 for Brewster, Issa, and their attorney, Carl J. Marquardt of Seattle.

Brewster and Issa say port staff didn’t respond as required to their requests for public records in 2014-15. In several cases, they say, the port withheld or destroyed records, failed to search for and produce records, did not produce port records transmitted using port and personal email and text messaging, and failed to preserve requested records, in this case video that was lost because it was overwritten.

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. Malone’s conflict with Brewster and Issa was revealed in several records. According to those documents, Malone allegedly referred to Brewster in an offensive or pejorative term, 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. He is now manager of The Point Hotel. He denies the allegations. “I have no recollection of that whatsoever,” he told the Herald on Dec. 13. He said he never used “a degrading term” in reference to Brewster.

In a declaration dated Nov. 28, Pivarnik wrote that since he joined the Port of Kingston — he was previously the deputy director of the Port of Port Townsend — he has worked to improve the port’s handling of public records and improve relations with the community. The port hired two employees with experience in public records — one of them has a law degree and is an associate professor at University of Washington — and in October the port commission adopted a new 19-page public records policy.

Noting that nine of 10 port employees had resigned between March 2015 and May 2016 “because they found the working conditions at the Port to be intolerable due to all the community turmoil that occurred,” Pivarnik said he is working to build a positive work culture at the port. He and Commissioner Mary McClure met with Issa and listened to her concerns about how the port handled her public records requests. “By the end of the meeting, Commissioner McClure and I felt we better understood Tania’s position,” he wrote.

Pivarnik stated that he also instructed port staff “to treat Ms. Brewster the same way they should treat any other Port user,” and added that Brewster “still uses the port’s public boat launch for her business.”

“In that new capacity, no new issues or controversies have arisen between her and the port,” Pivarnik stated.

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