Five best practices for managing port commissioners and staff relations

By Ruben Duran, Partner, Best Best & Krieger LLP

Most port authorities and harbor districts operate under a “Board-CEO form of government”, in which the elected or appointed harbor commissioners directly hire and oversee one top-level employee (the Port Director/CEO) to function as a CEO and administer the day-to-day activities of the port. Other local governments employ a similar system, whether it be city council hiring a city manager, a school board of trustees hiring a superintendent or a special district board of directors hiring a general manager.

These systems rely on the delicate balance between the elected (or appointed) body setting the policy priorities of the government and the staff employees implementing those policy priorities at the direction of a chief executive or administrative officer. This power dichotomy may be encapsulated in an ordinance or a board policy or resolution that sets up a system in which the elected officials are generally prohibited from approaching agency employees “except for the purposes of inquiry”.

But what exactly does that mean?

This article examines the legal framework and practical applications of the Board-CEO form of government (and its analog forms for entities other than ports) and offers suggested best practices for elected or appointed officials and staff to ensure the smooth and successful operation of your port.

Legal framework and practical applications of a Board-CEO form of government

Under this form of government, the port CEO holds office at the pleasure of the elected body. The CEO generally hires and fires all other employees, usually with the exception of legal counsel, which also reports directly to the elected body. This policy is based on the principle of separation of powers, which ensures that the elected officials and the CEO can perform their duties without unnecessary interference from one another. More importantly, this separation of powers makes clear to staff that they are accountable only to the CEO. This gives employees the certainty of having just one ultimate boss, the CEO, as opposed to the entire elected body, or any individual member of it.

The job of the elected or appointed body, then, is to legislate and to create the vision and set forth the policies that should guide the CEO’s work. That is not to say, however, that elected officials are without any rights under the system. For example, under the First Amendment, elected officials are protected when, in their capacity as board members, they intercede on behalf of their constituents. In 2000, a federal court held the elected officials were protected from any liability when they acted as “ombudsmen” for their constituency. The court noted that this type of advocacy was vital to representative government. Another case held that elected officials may respond to inquiries regarding agency projects under their First Amendment rights. This recognizes, of course, the crucial role that board members play in receiving and transmitting vital information to the staff and their colleagues.

Practically speaking then, what does this suggest for the manner in which elected or appointed officials manage their relationships with staff? Principally, all involved should have a thorough knowledge and clear understanding of the rules. Additionally, here are five best practices to use today in your work.

1. If there are concerns about an item on a board agenda, criticize the project or the process, NOT the people.

2. Do not publicly criticize staff.

3. Do not mistake partisanship for advocacy. There is a difference between making policy and the dayto-day business of your entity.

4. Remember that you are part of a team – do not ask a staff member to research an issue for you and then spring it on your fellow elected or appointed board members.

5. Protect staff from public attacks. Recognizing the tensions that can exist within a system meant to produce the most public good, and remembering the rules as they apply to the day-to-day work in our service to our constituencies, is likely the best way to ensure that the public good does indeed come to fruition.

For more information about managing relationships in a Board-CEO type structure, contact Ruben Duran at ruben.duran@bbklaw.com or (213) 787-2569.

Ruben Duran represents exclusively public agencies as a partner in the Municipal Law and Government Policy & Public Integrity practice groups of BBK. He provides both general counsel services and special counsel in the areas of New Markets Tax Credits, elections law, real estate, and complex conflicts of interest and open government issues. He serves as city attorney for the cities of Fontana and Ontario, general counsel to the Oxnard Harbor District, and the Crescent City Harbor District in Del Norte County. He is also board counsel to the Southern California Association of Governments and serves as Chair of the California State Bar Board of Trustees.