Audit says Kennewick port official broke law voting to pay his own $49,000 legal bill
Washington state auditors say a Tri-Cities elected official broke the law last year when he voted to reimburse himself for more than $49,000 in legal fees.
Don Barnes, a Port of Kennewick commissioner at the time, was fighting a reprimand and sanction following accusations of attempting to stop a clinic from being built, and then retaliating against port CEO Tim Arntzen for refusing to go along with the demand.
Last April, he voted for the port to reimburse his legal bills.
The Washington State Auditor’s Office sent the port a letter after an accountability audit indicating that reimbursing Barnes’ legal fees was not an allowable expense, and that it was against state law for Barnes to vote on a matter he personally benefited from.
The port wrote Friday in a news release that the letter was received on Jan. 19, following the audit to ensure compliance with state requirements and safeguards of public resources.
“State law does not allow an officer to benefit directly from a contract made through or under the supervision of the officer,” wrote Audit Manager Ginny Waltman in the letter obtained Friday by the Tri-City Herald.
“The Commissioner seeking reimbursement should not have voted on a matter that directly benefited him. Instead, the Commissioner should have recused himself from the vote,” said the letter.
According to a port news release, this is the first time in 27 years the port has received a “management letter” from the state.
A management letter contains the official findings of an audit, and recommendations for responding to those findings.
The auditor’s office says the letters are intended to “communicate control deficiencies, non-compliance or abuse with a less-than-material effect on the financial statements or other items significant to our audit objectives.”
The auditor’s office is recommending the port pursue additional legal review to determine if further action, such as repayment, is necessary or required by law.
“The Port of Kennewick strives for a high standard of accountability and transparency and will follow the (auditor’s office) recommendation for additional legal review,” the port wrote.
The audit stems from an April 2021 vote by the port commissioners to seek reimbursement for legal fees by Barnes. At the time Barnes was the board’s president, and voted in favor of his own reimbursement. Commissioner Thomas Moak, who was secretary at the time, made the motion and voted for repayment.
Moak was also under investigation for the handling of the same land sale, but chose not to fight the initial findings. Commissioner Skip Novakovich abstained from the vote due to concern the vote would not be legal and could result in an audit.
Novakovich had previously acknowledged that he filed the complaint which led to the lawsuit.
The port’s special counsel, Steve DiJulio of Foster Garvey, advised the port at the time, and prepared a resolution stating that responsibility for the reimbursement decision rested with commissioners.
According to the audit, state law and the port’s policies allow the port to provide legal representation to defend a claim or lawsuit filed against port officials unless they choose to provide their own representation.
“Because the commissioner obtained his own representation rather than using a port-appointed legal counsel, reimbursing the commissioner’s legal fees is not an allowable expense,” Whitman wrote.
Reimbursement
The reimbursement was related to a complaint that Barnes and Moak had violated port policy in an attempt to interfere with a land sale next to Vista Field in 2019, and later retaliated against the port’s CEO.
The land was being sold to the Yakima Valley Farmer Workers Clinic, but Barnes and Moak claimed they believed it was going to be for an industrial storage area, which they didn’t believe was a suitable neighbor for the Vista Field project.
Novakovich disputed their claims, saying they were all given the information about the clinic at the same time. The port spent nearly half a million dollars investigating the anonymous complaint, and eventually settling the matter.
Barnes and Moak were initially reprimanded and sanctioned for their actions, but the punishment was later overturned.
Moak accepted the initial punishment and publicly apologized for yelling at Arntzen in a closed door meeting, but Barnes vowed to fight it. After an independent judge overturned the sanctions, Barnes moved to seek reimbursement for $49,282 in legal fees, according to the audit.
The Tri-Cities Business Journal reported that Arntzen filed a tort claim earlier this month seeking compensation and for his reviews to be amended. Arntzen said his treatment was an attempt to force him to resign.
Newly elected port Commissioner Ken Hohenberg was not in office at the time. He ran unopposed and was elected to the District 1 seat after Barnes did not to seek reelection. Hohenberg, the retiring Kennewick police chief, began his term on Jan. 11.
The audit report and management letter will be brought to the commissioners for discussion at their next regular meeting, which is scheduled for Tuesday, Jan. 25, at 2 p.m.
