The appointment of a hand-picked commissioner to the Port of Coupeville last week raised questions about whether the public agency conducts business in an open and transparent manner.

Two members of the three-person board chose a commissioner without advertising the opening to the public. In addition, port officials may have been conducting business by “polling,” which is when a public official contacts individual members of a board in an improper attempt to make decisions outside of a public meeting.

John Carr, a retired real estate agent, was appointed to the board immediately after Commissioner Bill Larsen tendered his resignation. Carr will fill the position until it is up for re-election in November.

The manner in which the board came to this decision raises “legitimate” questions, said Nancy Krier, the state’s assistant attorney general for open government.

During the December port meeting, Larsen initially submitted his resignation effective Jan. 31, citing personal reasons. No discussion about how to fill the vacancy was conducted during that meeting.

However, Larsen tendered his resignation effective immediately at the following Jan. 14 meeting and Carr was promptly sworn in.

Carr said during the meeting he was excited about being approached and was ready to serve.

Commissioner Marshall Bronson said the board members chose someone they felt had qualities that were beneficial, specifically citing Carr’s real estate background as an advantage for ongoing negotiations with the Greenbank Farm Management Group contract.

While state law may not require the board to publicly advertise an open position, the port has done so in the past.

After the December meeting, Commissioner Mike Diamanti researched past protocol when Laura Blankenship resigned from her seat in April 2013. Diamanti advised new Executive Director David Day in an email obtained in a records request that past protocol entailed advertising a request for applications and suggested candidates would be interviewed during the February meeting.

Instead, the board chose not to advertise the opening or even open it to the public.

Bronson said he felt the board had a specific desire for certain expertise and also felt the position needed to be filled as soon as possible.

“The public doesn’t have to do it each time,” Bronson said.

Per state law, once a position is vacated, the board has 90 days to appoint a qualified person to fill the seat.

The way the port handled this appointment this time around raises two potential issues, Krier said. The first is whether the board engaged in a meeting by email.

The Whidbey Examiner’s public records request for all emails and documentation regarding the appointment revealed a series of emails between Day and individual commissioners informing them of the situation.

“For your information, Commissioner Bronson has had a conversation with John Carr regarding the possibility of his interest in filling the upcoming empty commissioner position in District 2,” Day wrote in two separate emails to commissioners Larsen and Mike Diamanti. Bronson was copied on both.

In subsequent emails, Day communicates with the board members separately that he’d been in communication with Carr and asked him to submit a letter of interest. The letter was then forwarded to each commissioner.

Krier said the second issue raised in this situation is the potential for polling, where one person, in this instance the executive director, goes to each individual commissioner to get their opinion on a situation.

“Votes and collective decisions cannot be made outside of a public meeting,” she said. “If they’re making a decision, who made the decision? Whether each board member knew the other’s opinion — those are all legitimate questions.”

In a follow-up interview with Diamanti, he said Day discussed with each commissioner the fact that Carr had expressed interest in filling the position.

He said he felt it wasn’t good to only have a two-person board and the position needed to be filled right away.

“I’ve known John in the past and over the years knew he had a good reputation,” Diamanti said. “I was very much in favor of him filling the position. If someone had expressed interest I would have considered them too.”

Diamanti said business is often conducted in scenarios like this where a situation comes up, the executive director contacts each commissioner individually and explains the situation and gets input.

“The executive director doesn’t say ‘Marshall thinks this or Mike thinks this,’ ” he said.

One example, he said, was where the port ran into a $400 cost overrun on its current fuel float replacement project.

Diamanti said the executive director called each commissioner individually to explain the situation.

“If we think it’s a good idea and there’s consensus, he makes the decision,” Diamanti said.

Krier said a lot of port districts delegate those kinds of decisions to a staff member, but if this port has reserved those decisions for themselves, they have to be done in a public meeting.

“If the executive director is basically gathering votes, it has to be done in a meeting,” she said. “They can’t cast votes through a poll.”

One of the issues considered when addressing polling is whether the board members are being informed of what other members think, Krier said.

In one email obtained in the records request from Day to Bronson, Day wrote, “Commissioner Diamanti dropped by the office today and mentioned that he held a very favorable opinion of John Carr.”

Day, who started in mid-December, said he doesn’t believe he’s engaged in polling. He said he believes the email correspondence obtained in the records request seems pretty clear.

“They (the commissioners) can’t talk to each other and they’re good about not talking to each other,” he said. “I don’t know if they talked to each other. I know they didn’t talk to each other within my purview.

“Basically we’re trying to get stuff done with very little money. These are non-partisan unpaid positions and I don’t think they’re wonton for power, they’re trying to do something good for the port.”

As the executive director, Day said he’s the one who puts together the agenda, which is approved by Bronson prior to publishing.

“There’s no intent to cover anything up or do the port harm,” he said. “There’s a lot on the port’s plate this year and we’re just trying to get business done.”

Both Day and Diamanti maintain they don’t believe the port handled the situation incorrectly but were willing to listen to concerns.

“My rule of thumb is everything is on a case-by-case basis,” Diamanti said. “I’ve been through the OPMA trainings.

“The port has been very conscientious. If there’s additional information to consider, we will certainly address that.”