PUBLIC PARTICIPATION IN LEGISLATION AT PORT DISTRICT LEVEL

I.    GRASS ROOTS AT THE PORT DISTRICTS.

Discouraged by the big money in Politics and the Initiative Process? There are still opportunities for local and grass roots efforts at citizen control.

Oregon has a number of Port Districts, each of which has broad ordinance posers and is subject to the initiative process. The citizens of Coos Bay, Oregon successfully passed this initiative in 1990:

CITIZENS INITIATIVE PETITION: Economic Development and Environmental Standards of the Oregon International Port of Coos Bay.

Section 1. The Oregon International Port of Coos Bay, (the "Port") is a municipal corporation of the State of Oregon with specific authority to promote commerce and economic development; and, is authorized to regulate by ordinance the management of property owned, operated, maintained or controlled by the Port; and, industrial development within the Port carries the potential for harm to the environment, human health and the economic well being of residents of the Port district as well as other lessees, tenants and purchasers of Port property, and further, such industrial development carries the potential for harm to the economic development of other Port property if such development is not planned, designed, constructed, maintained and operated according to he highest standards of environmental safety; therefore, the Port shall not sell, lease, or transfer real property owned, operated, or controlled by Port except under the conditions of sections 2 through 4 of this Act, which shall set the standards for orderly development with sound environmental planning for continuing economic growth and well being in the area served by the Port.

Section 2. The Port shall not lease, sell, transfer or assist in the lease, sale or transfer of real property owned or controlled by the Port unless the lease, sale or transfer contains a condition, and an express power of termination for breach, that the real property therein shall not be used for any industrial purpose which discharges waste water in excess of one million gallons per day to any sewage system or waters of the state or federal government, and that the lessee, purchaser or transferee shall not sell, lease, transfer, sublet or otherwise alienate the property or any portion without the same terms and conditions, unless the conditions of section 4 are met.

Section 3. The Port shall not lease, sell, transfer or assist in the lease, sale or transfer of real property owned or controlled by the Port unless the lease, sale or transfer contains a condition, and an express power of termination for breach, that the real property therein shall not be used for any industrial purpose which discharges or releases into the air a combined total of 1000 lbs of toxic chemicals per year, as those chemicals are defined by state and federal law, and that the subsequent lessee, purchaser or transferee shall not sell, lease, transfer, sublet or otherwise alienate the property or any portion without the same terms and conditions, unless the conditions of section 4 are met.

Section 4. Notwithstanding any prohibition in subsection 2 or 3, the Port may lease, sell or transfer real property upon making the findings and determining the amount of the bond required by subsections A and B.

II.    PORT DISTRICTS ARE SUBJECT TO THE INITIATIVE PROCESS.

A proposed petition should consist of a similar cover signature sheet and a second page setting forth your proposed language, and a signature sheet, complete with the certification of petition circulator. Your cover sheet must have the names of three "chief petitioners" and your proposed "ballot title" in the blank space. The district attorney may reword your ballot title (the question and brief explanation which goes on the printed ballot) subject to final court review, but cannot alter or change the language of your proposed legislation.

Generally, if a local government has the power to legislate under either "home rule" constitutional provisions (most counties and cities) or a statutory delegation of state responsibility (the port districts within the scope of their powers), the local electorate has a co-extensive power of initiative and referendum, "subject to the same standards, controls and limits as the governing body's." Allison v. Washington County, 24 Or App 571, 579 548 P2d 188 (1976).

If a special district (1) has an election procedure for the initiative and (2) functions in a legislative manner, the power of the citizens of the district to initiate legislation is coextensive with the district's ordinance powers. Allison v. Washington County, supra. Since port districts have both (1) a procedure and (2) function in a legislative manner. Consequently, the citizens of the district may initiate legislation as they have proposed to do.

A local government has the power to legislate under either "home rule" constitutional provisions (most counties and cities) or statutory delegation of state responsibility (the port districts within the scope of their powers). Therefore, the local electorate has a co-extensive power of initiative and referendum, "subject to the same standards, controls and limits as the governing body's." Allison v. Washington County, supra.

In Allison, the Oregon Court of Appeals engaged in an extensive analysis of the scope of the initiative and referendum powers in relation to land use planning and concluded that the "local voters have no more or less legislative authority than the local governing body." The court addressed the question of whether the local voters had initiative and referendum powers in areas of statewide concern, when the legislature had delegated responsibility for decision-making to local governing bodies. The court concluded that the local citizens' rights to initiate and refer matters attached to local delegated legislative powers so long as two conditions exist: (1) there is a statutorily prescribed method for exercising the powers; and, (2) the local government in question has the power to "legislate" on the subject at hand.

In addition to these two tests, the courts have crafted a third, further limitation upon the citizens' right to initiate or refer: that the particular matter of the initiative or referendum be "legislative," and not "administrative" in character.

Another related consideration to the authority of the local body is whether the state has so dominated the areas of economic, environmental or land use regulation that a local ordinance (regardless of whether passed by the Port or initiated) is in conflict with, and "preempted" by the state law. Generally speaking, local governments through the "police power" can always protect their citizens with more stringent standards and prohibit nuisances, even if activity is otherwise permitted by state and federal environmental regulation. To the extent that such a restriction might be a "land use" decision, the statewide land use goals are substantive social, economic and regulatory goals. Again, however, these are not in conflict with or "irreconcilable" with local protective measures which have a valid police power rationale. For these reasons, in the discussion and draft proposal, I have sought to emphasize the economic powers which are clearly delegated to the port, as well as the more general "police powers."

Applying the tests to this situation yields the following conclusions. In the Allison situation, the court found that the statutory procedure for initiative in ORS ch 250 (relating to counties) were ample to meet the first part of the test.

Under Oregon law it is within the proprietary, regulatory and police powers for a port district formed under ORS 777.010, et seq, to consider the environmental matters port district and municipal corporation, Such a district has plenary power to do all things "necessary or convenient" to carry out its objects and exercise its powers. ORS 777.050. The overall object of the Port is to be "directly and actively involved in creating and carrying out at the local level the economic development objectives and programs of the State of Oregon." ORS 777.003.

Consistent with this mandate, the Port has a number of specific charges, including the acquisition (and sale) of real property, control of water related activity, development of real estate, intergovernmental functions, and the proprietary management of port lands and services. Lastly, the Port has police powers on port property and it is expressly authorized to police and regulate port property through ordinance procedures for special districts. ORS 777.190.

Thus, the Port may act in several ways:

1.  It can be a contracting party, a purchaser, seller or landlord, and as such, set the terms of its own contracts.
2.  It may also act in a legislative way to regulate all contracting within its borders. In this capacity, the Port functions as "regulator."
3.  It may act in the exercise of police powers to regulate welfare generally.

The following discussion will set out the powers of the Port to "legislate" on the economic development concerns and maintain the general health, safety and welfare of the community. The powers of the electors to initiate are co-extensive with the legislative powers of the port itself. So long as the initiative language chosen is broad in purpose, is related to the exercise of a fundamental legislative power and has standards which can be applied to a number of situations, it should satisfy the second and third tests: it is within the legislative powers of the Port and is, in fact, legislative in its application, so it is a proper subject of an initiative. Keeping the language tied to some aspect of economic development regulation and health will assure being within the areas of local concern which are not superseded by state environmental or land use regulation.

A recent decision of the Oregon Supreme Court in Foster, et al. v. Clark, et al., SC S36962 (March 21, 1990) aids the understanding the statutory scheme. This case really does not add much to what is a muddled area of the law, but to the extent that it holds that whether a "comprehensive legal framework put into place" by the governing body is a guide to determining whether subsequent action is legislative or administrative, it is helpful. There is of course, no comprehensive framework for evaluating the environmental/economic validity of the sale, lease or transfer of Port lands and thus a general framework along these lines would be clearly legislative. On the other hand, the more specific the target towards the sale lease or transfer of Port land to one kind of industry, the more likely the court would be to conclude that targeting a single transaction was a "mere administrative" exercise of the general powers to contract or pursue economic development.

Powers of Contract Participant.

The Port, as a participant, may insert provisions protective of the local economy in its own contracts and agreements, and in those closely related to public purposes, regardless of whether the port is a contracting party.

Contracts Related to Publicly-Conferred Benefits.

In some instances construction is public in character because of it location on Port lands, impact on local economic development, use of tax credits, use of municipal bond caps with associated taxpayer subsidies and other incentives. In such cases, the Port can and should exercise regulatory control for the overall public good in the use of the public benefits which are conferred.

Contracts with the Port as a Party.

In many other cases, the Port acts in a proprietary or management role. As a proprietor it can set whatever terms are reasonable in its own agreements or public contracts. McQuillan, Municipal Corporations, § 29.45 (3rd ed., 1983). As a proprietor, the Port is a participant in the market place and can insert any reasonable term in its leases, contracts for sale of improvements, and contracts to provide administrative services on bond refinancing. The Port has the full range of proprietary, management and contracting powers to do what is reasonable and necessary to conduct its business on behalf of the public interest. See generally, White v. Massachusetts Council of Construction Employees, 460 US 204, 75 LEd2d 1, 103 SCt 1042 (1983) (upholding propriety of a local hire executive order), enclosed.

Powers as Regulator of Economic Development.

The Port as a regulator of economic development can assess the overall benefits to the economy and balance the negative impacts of waste disposal, air contamination, perceived health risks and other factors which might affect the economic development potential of Port-owned and managed parcels. It can also require standards and conditions which protect it and its taxpayers from loss of property value, potential liability for environmental clean-ups, or other economic harms. The Port can regulate matters by considering the actual and perceived economic development aspects of its decisions, such as community support, local employment opportunities, stresses on local services such as schools, hospitals, roads, etc.

The Port powers as an economic regulator are very broad, and can also be as specific as an ordinance assuring local, or "first source" hiring arrangements to avoid the loss of payroll within the community and ameliorate the negative economic impacts on housing and school capacity related to out of area hiring. These consideration are all elements of local economic stability and the Port has express duties related to local economic development.

Police Powers.

The police power is generally concerned with the "health, welfare, safety and morals" of the community. It is a fundamental attribute of government. It is up to the regulator to determine which matters pertaining to public welfare require attention and regulation. As but an example, in a string of cases after the turn of this century, the United States Supreme Court upheld various laws designed to assure public welfare through employment regulation of industry, thus approving the police power rational for economic regulation.

In dealing with the relation of employer to employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may by promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.

West Coast Hotel Co. v. Parrish, 300 US 379, 387 (1937), overruling prior inconsistent precedent.

The Port as a regulator may pass an ordinance assuring the highest environmental standards upon its own property and protecting other Port tenants from environmental harms or nuisances on property "owned, operated, maintained, or controlled by the port." The Port is granted full police powers over such property. ORS 777.190. An exercise of police power is a lawful constraint on unbridled freedom to contract. Thus the port may include particular environmental constraints in the sale, lease or transfer of any of its property by adopting general legislative standards which become part of any contract.
Such conditions can affect a variety of environmental and economic standards.

III.    IN ADDITION TO THE DIRECT INITIATIVE LEGISLATION FOR THE PORT, IN OREGON PORT DISTRICTS MUST CONSIDER CITIZEN-SPONSORED ORDINANCES.

Port districts must consider at regularly scheduled meetings, elector-sponsored suggested for ordinances. Prior to circulating an electors petition to place a matter on the ballot, you may which to bring it to the attention of the Port commissioners at a regular meeting and test public interest and objections to the proposed language. Here is an example of a petition, proposing public debate on wage and hour issues.

BEFORE THE COMMISSIONERS OF THE PORT OF ____________ OF THE STATE OF OREGON
IN THE MATTER OF A PROPOSED ORDINANCE RE: PREVAILING WAGES AND BENEFITS				PETITION OF ________________, ORS ch 198 and ORS ch 777

Petitioner, _________________, an elector of the Port of ___________ who resides at ____________________, Oregon, proposes the following text for adoption as an ordinance by the Commissioners of the Port under the applicable provisions of ORS ch 198 and ORS ch 777:

PROPOSED ORDINANCE FOR PORT ______________

WHEREAS, the Port of __________ (the "Port") is a municipal corporation of the State of Oregon with specific authority to promote commerce; and,

WHEREAS, the Port is further authorized to engage in port management activities, water commerce activities, the economic development, use and improvement of its lands and to assist through revenue bonds such economic and beneficial development; and,

WHEREAS, the Port is authorized to regulate by ordinance the management of property owned, operated, maintained or controlled by the Port; and,

WHEREAS, the purpose of prevailing wage and benefit laws in the Sate of Oregon is to obtain well qualified, competent and efficient workers so that facilities will be built to highest standards of quality; and,

WHEREAS, industrial development within the Port carries the potential for harm to the environment, human health and the economic well being of residents of the Port district if not constructed, maintained and operated according to he highest standards of quality; and,

WHEREAS, the payment of prevailing wages and benefits can create a safer workplace by providing a highly trained and more experienced workforce; and,

WHEREAS, payment of prevailing wage and benefits constitutes a valuable benefit to the economic health of the community and the Port because of the value of the payroll and related benefits to the workforce, their families, business, merchants and commerce generally;

NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF THE PORT COMMISSIONERS OF THE PORT _____________, OREGON, AS FOLLOWS:

Section 1. Per diem wage and benefit rates not less than the general prevailing rate of per diem wages and benefits for work of a similar character in the locality, as determined by the Secretary of Labor pursuant of ORS ch 259, shall be paid to the workforce that is employed by any employer that constructs new construction or any improvements upon existing facilities upon lands operated, maintained or controlled by the Port.

Section 2. Per diem wage and benefit rates not less than the general prevailing rate of per diem wages and benefits for work of a similar character in the locality, as determined by the Secretary of Labor pursuant of ORS ch 259, shall be paid to the workforce that is employed by any employer that constructs new construction or any improvements upon existing construction which is in part financed or assisted by Port revenue bonds issued pursuant to ORS 777.565, et seq.

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing PETITION by mailing a true and correct copy thereof, placed in a sealed envelope and deposited in the U.S. Postal Service at Portland, Oregon, with first class postage prepaid, to:

________ Manager
Port of _________
__________________, OR____

____________________
Commissioner
Port of _________
__________________, OR____
(each commissioner)

IV. SAMPLE TIMELINE FOR PORT ELECTIONS.

Timeline for Special Election on Initiative Question to Appear on
the March 27, 1990 Ballot.

A Port District is governed by the initiative provision of ORS ch 255.

NOTE THAT IF ANY OF THESE DATES ARE MISSED, THE PETITION IS NOT INVALID, BUT THE ELECTION WILL FALL ON THE MAY 1990 PRIMARY INSTEAD OF THE EARLIER SPECIAL ELECTION DATE. THERE ARE 6 SPECIAL ELECTION DATES IN OREGON AS WELL AS THE REGULAR MAY PRIMARY AND NOVEMBER GENERAL ELECTIONS. YOU NEED TO DECIDE WHICH ELECTION BALLOT YOU ARE AIMING FOR. YOU HAVE SOME CONTROL, BUT NOT COMPLETE CONTROL, OVER WHICH ELECTION THE MATTER WILL BE PLACED ON THE BALLOT.



V. PORT DISTRICTS UNDER WASHINGTON LAW.

Port districts organized under Washington law have a variety of powers relating to economic development, transportation facilities, and financing and operating transportation facilities and port lands. Ports have the express powers to issue bonds, to arrange financing and to lease, sell and purchase land. In order to carry out their duties and run their internal affairs ports are governed by (3 or 5 person) elected commissions who must "by resolution adopt rules governing the transaction of [Port] business." Revised Code Washington (RCW) 53.12.245. The resolutions and all proceedings of the commissions must be kept in a record book which is a public record.

There is no statutory requirement concerning the steps for adopting internal rules, so it will be necessary to review the record book of each port district to determine what rules (if any) it has established on meetings, notice requirements and citizen-proposed resolutions. Ports are not subject to the initiative process. Even in the absence of a specific provision for a citizen-proposed resolution about the transaction of port business, there should be rules for public comments and other opportunities to raise the issues with commissioners.

Ports are limited in the kinds of regulations they can adopt regarding general welfare and use of the property by the public. RCW 53.08.222 states:

A port district may formulate all needful regulations for the use by tenants, agents, servants, licensees, invitees, suppliers, passengers, customers, shippers, business visitors, and member of the general public of any property or facilities owned or operated by it, and request the adoption, amendment, or repeal os such regulations as part of the ordinances of the city or town in which such properties or facilities are situated, or as part of the resolutions of the county, if such properties of facilities are situated outside any city or town. The port commission shall make such request by resolution after holding public hearings * * *.

The effect of RCW 53.08.222 is to limit regulations of port property which affect the general public such as traffic regulations, limits on the use of firearms, sales of liquor, and misdemeanor conduct, by requiring that such regulations be enacted by and conform to the law of the jurisdiction (city or county) in which the property lies. While this is a serious limitation upon the legislative function of port commissions, it does not seem to have any practical effect upon terms and conditions the port might choose to apply to contract, bond underwriting, economic development decisions and other port transactions relating to "rules governing the transaction of [Port] business." RCW 53.12.245. It is thus important to craft a proposed resolution or rule regarding contracting policy in such a manner that it does not arguable come under the class of ordinances which must be enacted by the city or county government instead of merely proposed by the port.

By way of background, cities (but not county governments) are subject to direct legislation by the voters through the initiative process. In cities and towns which operate under the commission form of government an initiative petition must be signed by a number of voters equal to 25% of the total vote cast for mayor in the last mayoral election. RCW 35.15.250-.260. In cities and towns operating under the optional municipal code, an initiative petition must be signed by a number of voters equal to 15% of the total registered voters registered prior to the last general election (in all likelihood a much higher number than a percentage of the mayoral vote).

Based upon the foregoing, it is my conclusion that a Port District may pass by rule or resolution a policy announcing the terms and conditions it will impose on contractors, lessors and purchasers of port land and beneficiaries of financing and economic development activities. It is important to avoid a resolution seeking to affect the conduct of those not engaged in business transactions with the port, since that may require a resolution to the city or county for actual enactment.

Cities are subject to the initiative process which can be a useful tool for education the public and stimulating public debate on issues of concern. I suggest that the record books of each port district be checked for public participation procedures and that the charter of the cities involved be checked to see if the less restrictive initiative law applies.

Applying the Allison analysis to the initiative which is directed to the port's health, welfare, and property powers yields the following conclusions.

VI. Special District Initiative Election Procedures Specifically Apply to the International Port of Coos Bay.

In Allison, the court found that the statutory procedures for initiative in ORS ch 250 (relating to counties) were ample to meet the first part of the test. Here, there is equally ample provision for the exercise of the initiative powers. It is provided at ORS 255.010, et seq., and applies to the International Port of Coos Bay. This initiative procedure applies to all "special districts." The International Port of Coos Bay is specifically defined as a special district within the meaning of the "entire chapter" 255, entitled "Special District Elections."

ORS 255.012 "District" Defined. As used in this chapter, "district" means:
* * * (25) A port organized under ORS 777.005 to 777.725 and 777.915 to 777.953.

The International Port of Coos Bay is a port district and municipal corporation, originally formed under ORS 777.010, et seq, and renamed with some changes in charter at ORS 777.915 to 777.953. It is the only port organized under these sections. ORS 255.012(25) applies to it and the initiative provisions of that chapter thus apply to it as well.

VII. The Port has the power to legislate for health, safety and protection of its citizens and property in the manner proposed by its citizens.

The new governing board structure enacted at ORS 777.920 replaces ORS 777.410 and 777.415 and ORS 777.135 to 777.165. ORS 777.917. Otherwise, the port is given the power and authority and the responsibility to carry out such powers "as is usual and customary with similar bodies." ORS 777.920. Among those powers not replaced by ORS 777.915 - .953, and specifically regranted by ORS 777.920 are the powers of:

1. Acquisition (and sale) of real property;

2. Control of water related activity;

3. Development of real estate;

4. Intergovernmental functions;

5. Proprietary management over port lands and services; and,

6. Police powers on port property.

Police powers and the powers to legislate and regulate port property must be exercised through ordinance procedures for special districts. ORS 777.190. While arguably such powers have always been incident and necessary powers of the ports, the 1955 Oregon legislature expressly granted the power to pass ordinances based upon police power to Oregon ports. Thus, the port has express plenary, full police powers over its property, now codifed at ORS 777.190.

In summary, the Port may act in a number of ways:

1. It can be a contracting party, a purchaser, seller or landlord, and as such, set the terms of its own contracts.

2. It may also act in a legislative way to regulate all contracting within its borders. In this capacity, the Port functions as "regulator."

3. It may legislate in the exercise of police powers to regulate welfare generally.

The powers of the port electors to initiate are co-extensive with the legislative powers of the port itself. The initiative addresses matters within the legislative powers of the port and is, in fact, legislative in its application, so it is a proper subject of an initiative. It addresses areas of local concern about the community's health, welfare, and environment in setting economic development standards for port property. The initiative satisfies the other prong of the Allison test since it is within the scope of legislative powers that the port could exercise, and should be accepted for signature verification by the county elections clerk.

Mr. Thomas's reference to Rose v. Port of Portland, 82 Or 541 (1917), is misplaced. There is no holding in that case that a port is not subject to the initiative process. The actual holding of the case has to do with whether the voters of the Port of Portland could amend their own Port charter, not initiate local legislation.

The Rose court does, however, give robust meaning to every word in the constitutional amendments regarding voters' rights through extensive statutory analysis. The Rose analysis completely supports the petitioners' position that this is an initiative measure addressed to their local law-making body.

[L]et us remind ourselves that it is fair to assume that Section 1a [now codified at Art IV, § 1(5), set forth in the footnote] was drawn with reference to the variant internal forms of municipalities and districts. A city or town has within itself its own representative body exercising law-making power; some other forms of local government, for example ports, possessed an analogous internal legislative body; * * *. Again quoting from Article IV, Section 1a, it will be observed that the initiative and referendum powers are further reserved to the legal voters of every municipality and district "as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts. * * * It was appropriate to use the word "in" in order to embrace legislation by internal law-making bodies.

86 Or at 571. The petitioners are exercising their reserved initiative powers to enact local legislation in their port district.

The other two cases Mr. Thomas cites, Hansell v. Douglas, 234 Or 315, 380 P2d 977 (1963) and DeBoard v. Owen, 62 Or App 673, 662 P2d 18 (1983), are irrelevant. They apply to school districts. Whatever relevance there may have once been to questioning whether a special district might be some sort of administrative creature cannot be relevant, and has not been since 1955, when the Oregon legislature expressly gave ports full police powers.

___________

1   When you circulate the petition, all the pages should be attached to each signature sheet, assuring that every person signing had the opportunity to read the entire document.

2  The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district.