Port of Kingston will pay $164,000 for public records violations

KINGSTON — The Port of Kingston was ordered Feb. 10 to pay $75,000 to Beth Brewster and $89,000 in attorney’s fees for failing to respond in a timely manner to Brewster’s public records requests in 2014-15.

Port of Kingston executive director Jim Pivarnik said Kitsap County Superior Court Judge Jeffrey Bassett emphasized that the point of the Public Records Act was not to enrich the litigant, but to get the attention of public agencies that violate that act.

“He got our attention,” Pivarnik said,

More costs could be forthcoming. Tania Issa, a Kingston resident and business owner, has a similar lawsuit against the port. “Same judge, similar circumstances,” Pivarnik said.

The North Kitsap Herald reached out to Brewster’s lawyer, Carl Marquardt, for comment Feb. 10, but he had not yet responded.

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. In an earlier interview, he denied the allegations. “I have no recollection of that whatsoever,” he told the North Kitsap 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 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 at the time.

‘We screwed up’

On April 11, 2016, port attorney Kathleen J. Haggard of Porter Foster Rorick wrote to the court 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 the port and Brewster differed on what the port should pay as a penalty. According to court documents, Brewster had calculated the port’s liability to her, based on penalties set by state law, to be $494,700; the port claimed its penalty should be around $32,000.

Pivarnik, who became executive director in April 2016, said the port is not admitting anyone acted illegally, and 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 in an earlier interview.

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

Meanwhile, regarding Issa’s case, Pivarnik said the port “still holds out hope to do a settlement.”

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