AN ACT Relating to a department of marine transportation; amending RCW 43.17.010, 43.17.020, 47.60.013, 47.60.130, 47.60.145, 47.60.250, 47.60.326, 47.60.330, 47.60.503, 47.60.504, 47.60.505, 47.60.544, 47.60.680, 47.60.690, 47.60.720, 47.60.760, 47.64.011, 47.64.090, 47.64.140, 47.64.170, 47.64.180, 47.64.190, 47.64.240, 47.64.250, 47.64.270, 47.64.280, and 47.72.050; adding a new chapter to Title 43 RCW; adding a new section to chapter 47.60 RCW; adding a new section to chapter 47.61 RCW; adding a new section to chapter 47.64 RCW; creating new sections; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. It is the purpose of this chapter to create a department of marine transportation.

NEW SECTION. Sec. 2. As used in this chapter, unless the context indicates otherwise:

(1) "Department" means the department of marine transportation; and

(2) "Director" means the director of marine transportation.

NEW SECTION. Sec. 3. There is hereby created a department of state government to be known as the department of marine transportation. The department shall be vested with all powers and duties transferred to it under this chapter and such other powers and duties as may be authorized by law.

NEW SECTION. Sec. 4. The executive head and appointing authority of the department shall be the director. The director shall be appointed by the governor, with the consent of the senate, and shall serve at the pleasure of the governor. The director shall be paid a salary to be fixed by the governor in accordance with RCW 43.03.040. If a vacancy occurs in the position while the senate is not in session, the governor shall make a temporary appointment until the next meeting of the senate.

NEW SECTION. Sec. 5. It is the intent of the legislature wherever possible to place the internal affairs of the department under the control of the director in order that the director may institute therein the flexible, alert, and intelligent management of its business that changing contemporary circumstances require. Therefore, whenever the director's authority is not specifically limited by law, the director shall have complete charge and supervisory powers over the department. The director may create such administrative structures as the director considers appropriate, except as otherwise specified by law. The director may employ such assistants and personnel as may be necessary for the general administration of the department. This employment shall be in accordance with the state civil service law, chapter 41.06 RCW, except as otherwise provided.

NEW SECTION. Sec. 6. The director shall appoint a deputy director and such assistant directors as may be needed to administer the department. The deputy director shall have charge and general supervision of the department in the absence or disability of the director and, in case of a vacancy in the office of director, shall continue in charge of the department until a successor is appointed and qualified, or until the governor appoints an acting director.

NEW SECTION. Sec. 7. Any power or duty vested in or transferred to the director by law, or executive order, may be delegated by the director to the deputy director or to any other assistant or subordinate; but the director shall be responsible for the official acts of the officers and employees of the department.

NEW SECTION. Sec. 8. The director may appoint such advisory committees or councils as may be required by any federal legislation as a condition to the receipt of federal funds by the department. The director may also appoint state-wide committees or councils on such subject matters as are or come within the department's responsibilities. The state-wide committees and councils shall have representation from both major political parties and shall have substantial consumer representation. The committees or councils shall be constituted as required by federal law or as the director may determine. The members of the committees or councils shall hold office as follows: One-third to serve one year; one-third to serve two years; and one-third to serve three years. Upon expiration of the original terms, subsequent appointments shall be for three years except in the case of a vacancy, in which event appointment shall be only for the remainder of the unexpired term for which the vacancy occurs. No member may serve more than two consecutive terms.

Members of such state advisory committees or councils may be paid their travel expenses in accordance with RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 9. In furtherance of the policy of the state to cooperate with the federal government in all of the programs under the jurisdiction of the department, such rules as may become necessary to entitle the state to participate in federal funds may be adopted, unless expressly prohibited by law. Any internal reorganization carried out under the terms of this chapter shall meet federal requirements which are a necessary condition to state receipt of federal funds. Any section or provision of law dealing with the department which may be susceptible to more than one construction shall be interpreted in favor of the construction most likely to comply with federal laws entitling this state to receive federal funds for the various programs of the department. If any law dealing with the department is ruled to be in conflict with federal requirements which are a prescribed condition of the allocation of federal funds to the state, or to any departments or agencies thereof, the conflicting part is declared to be inoperative solely to the extent of the conflict.

NEW SECTION. Sec. 10. All powers, duties, and functions of the department of transportation and the transportation commission pertaining to marine transportation are transferred to the department and director of marine transportation. All references to the secretary or department of transportation and the transportation commission in the Revised Code of Washington shall be construed to mean the director or department of marine transportation when referring to the functions transferred in this section.

NEW SECTION. Sec. 11. All reports, documents, surveys, books, records, files, papers, or written material in the possession of the department of transportation and the transportation commission pertaining to the powers, functions, and duties transferred by section 10 of this act shall be delivered to the custody of the department and director of marine transportation. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the department of transportation and the transportation commission in carrying out the powers, functions, and duties transferred by section 10 of this act shall be made available to the department and director of marine transportation. All funds, credits, or other assets held in connection with the powers, functions, and duties transferred by section 10 of this act shall be assigned to the department and director of marine transportation.

Any appropriations made to the department of transportation and the transportation commission for carrying out the powers, functions, and duties transferred by section 10 of this act shall, on the effective date of this act, be transferred and credited to the department and director of marine transportation.

Whenever any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.

NEW SECTION. Sec. 12. All classified employees of the department of transportation and the transportation commission engaged in performing the powers, functions, and duties transferred by section 10 of this act are transferred to the jurisdiction of the department and director of marine transportation. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the department and director of marine transportation to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.

NEW SECTION. Sec. 13. All rules and all pending business before the department of transportation and the transportation commission pertaining to the powers, functions, and duties transferred by section 10 of this act shall be continued and acted upon by the department and director of marine transportation. All existing contracts and obligations shall remain in full force and shall be performed by the department and director of marine transportation.

NEW SECTION. Sec. 14. The transfer of the powers, duties, functions, and personnel of the department of transportation and the transportation commission shall not affect the validity of any act performed prior to the effective date of this act.

NEW SECTION. Sec. 15. If apportionments of budgeted funds are required because of the transfers directed by sections 11 through 14 of this act, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

NEW SECTION. Sec. 16. Nothing contained in sections 10 through 15 of this act may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the personnel board as provided by law.

Sec. 17. Section 1, chapter 10, Laws of 1979 as last amended by section 47, chapter 466, Laws of 1985 and RCW 43.17.010 are each amended to read as follows:

There shall be departments of the state government which shall be known as (1) the department of social and health services, (2) the department of ecology, (3) the department of labor and industries, (4) the department of agriculture, (5) the department of fisheries, (6) the department of game, (7) the department of transportation, (8) the department of licensing, (9) the department of general administration, (10) the department of trade and economic development, (11) the department of veterans affairs, (12) the department of revenue, (13) the department of retirement systems, (14) the department of corrections, ((~~and~~)) (15) the department of community development, and (16) the department of marine transportation, which shall be charged with the execution, enforcement, and administration of such laws, and invested with such powers and required to perform such duties, as the legislature may provide.

Sec. 18. Section 2, chapter 10, Laws of 1979 as last amended by section 48, chapter 466, Laws of 1985 and RCW 43.17.020 are each amended to read as follows:

There shall be a chief executive officer of each department to be known as: (1) The secretary of social and health services, (2) the director of ecology, (3) the director of labor and industries, (4) the director of agriculture, (5) the director of fisheries, (6) the director of game, (7) the secretary of transportation, (8) the director of licensing, (9) the director of general administration, (10) the director of trade and economic development, (11) the director of veterans affairs, (12) the director of revenue, (13) the director of retirement systems, (14) the secretary of corrections, ((~~and~~)) (15) the director of community development, and (16) the director of marine transportation.

Such officers, except the secretary of transportation and the director of game, shall be appointed by the governor, with the consent of the senate, and hold office at the pleasure of the governor. If a vacancy occurs while the senate is not in session, the governor shall make a temporary appointment until the next meeting of the senate. The secretary of transportation shall be appointed by the transportation commission as prescribed by RCW 47.01.041, and the director of game shall be appointed by the game commission.

NEW SECTION. Sec. 19. A new section is added to chapter 47.60 RCW to read as follows:

As used in this chapter, unless the context indicates otherwise:

(1) "Department" means the department of marine transportation; and

(2) "Director" means the director of marine transportation.

Sec. 20. Section 1, chapter 341, Laws of 1981 and RCW 47.60.013 are each amended to read as follows:

The governor is authorized to take such actions as may be necessary to insure the continued operation of the Puget Sound ferry and toll bridge system under any emergency circumstances which threaten the continued operation of the system. In the event of such an emergency, the governor may assume all the powers granted by law to the ((~~transportation commission and~~)) department ((~~of transportation~~)) with respect to the ferry system. In addition, notwithstanding the provisions of chapters 47.60 and 47.64 RCW, the governor may contract with any qualified persons for the operation of the Washington state ferry system, or any part thereof, or for ferry service to be provided by privately owned vessels. Administrative costs to the office of the governor incurred in the exercise of this authority shall be reimbursed by the department.

Sec. 21. Section 47.60.130, chapter 13, Laws of 1961 as last amended by section 6, chapter 189, Laws of 1979 ex. sess. and RCW 47.60.130 are each amended to read as follows:

Such ferry system, including any toll bridges, approaches, and roadways incidental thereto, may be financed and operated in combination or separately as one or more units as the department ((~~of transportation~~)) may determine, and such ferry system together with any toll bridge hereafter constructed by the department upon or across the waters of Puget Sound or Hood Canal, or any part of either, replacing one or more presently operated ferry routes, is declared to be a continuous project within the meaning of RCW 47.56.070. The department is empowered to rent, lease, or charter any property acquired under this chapter. If the department determines that any real property (including lands, improvements thereon, and any interests or estates) originally acquired for the ferry system is no longer required for the purposes of the ferry system, the department shall offer it for sale in the manner and with the authority authorized to the department by RCW 47.12.063 or 47.12.283. The ((~~secretary of transportation~~)) director may adopt rules further implementing this section. The proceeds of all such sales shall be paid into the separate trust fund of the state treasury established pursuant to RCW 47.60.150.

Sec. 22. Section 1, chapter 210, Laws of 1982 and RCW 47.60.145 are each amended to read as follows:

(1) An "historic ferry" is any vessel in the Washington state ferries fleet which has been listed in the Washington state register of historic places.

(2) When the department ((~~of transportation~~)) determines that an historic ferry is surplus to the needs of Washington state ferries, the department shall call for proposals from persons who wish to acquire the historic ferry. Proposals for the acquisition of an historic ferry shall be accepted only from persons or organizations that (a) are a governmental entity or a nonprofit corporation or association dedicated to the preservation of historic properties; (b) agree to a contract approved by the state historic preservation officer, which requires the preservation and maintenance of the historic ferry and provides that title to the ferry reverts to the state if the ((~~secretary of transportation~~)) director determines that the contract has been violated; and (c) demonstrate the administrative and financial ability successfully to comply with the contract.

(3) The department shall evaluate the qualifying proposals and shall select the proposal which is most advantageous to the state. Factors to be considered in making the selection shall include but not be limited to:

(a) Extent and quality of restoration;

(b) Retention of original design and use;

(d) Provisions for historical interpretation;

(e) Monetary return to the state.

(4) If there are no qualifying proposals, an historic ferry shall be disposed of in the manner provided by state law.

Sec. 23. Section 47.60.250, chapter 13, Laws of 1961 as last amended by section 319, chapter 7, Laws of 1984 and RCW 47.60.250 are each amended to read as follows:

As a condition to a recovery thereon, a verified claim against the department growing out of such damages, loss, injuries, or death must first be presented to the department and filed with the ((~~secretary~~)) director within one hundred twenty days after the time when the claim accrued. If the claimant is incapacitated from verifying and filing a claim within the one hundred twenty days, or if the claimant is a minor, then the claim may be verified and presented on behalf of the claimant by his or her relative, attorney, or agent. Each claim must accurately locate and describe the event or defect that caused the damage, loss, injury, or death, reasonably describe the damage, loss, or injury, and state the time when the damage, loss, or injury occurred, give the claimant's residence for the last six months, and contain the items of damages claimed. No action may be maintained against the department upon the claim until the claim has been presented to, and filed with, the department and sixty days have elapsed after the presentation and filing, nor more than three years after the claim accrued.

With respect to the content of the claims, this section shall be liberally construed so that substantial compliance will be deemed satisfactory.

Sec. 24. Section 5, chapter 344, Laws of 1981 as amended by section 25, chapter 15, Laws of 1983 and RCW 47.60.326 are each amended to read as follows:

(1) In order to maintain an adequate, fair, and economically sound schedule of charges for the transportation of passengers, vehicles, and commodities on the Washington state ferries, including the Hood Canal bridge, the department ((~~of transportation~~)) each year shall conduct a full review of such charges.

(2) ((~~Prior to February 1st of each odd-numbered year~~)) The department ((~~shall transmit to the transportation commission a report of its review together with its recommendations for the revision of a schedule of charges for the ensuing biennium. The commission~~)) on or before July 1st of ((~~that~~)) each odd-numbered year shall adopt as a rule, in the manner provided by the Washington administrative procedure act, a schedule of charges for the Washington state ferries for the ensuing biennium commencing July 1st. The schedule may initially be adopted as an emergency rule if necessary to take effect on, or as near as possible to, July 1st.

(3) The department in ((~~making its review and formulating recommendations and the commission in~~)) adopting a schedule of charges may consider any of the following factors:

(a) The amount of subsidy available to the ferry system for maintenance and operation;

(b) The time and distance of ferry runs;

(c) The maintenance and operation costs for ferry runs with a proper adjustment for higher costs of operating outmoded or less efficient equipment;

(d) The efficient distribution of traffic between cross-sound routes;

(e) The desirability of reasonable commutation rates for persons using the ferry system to commute daily to work;

(f) The effect of proposed fares in increasing walk-on and vehicular passenger use;

(g) The effect of proposed fares in promoting all types of ferry use during nonpeak periods;

(h) Such other factors as prudent managers of a major ferry system would consider.

(4) If at any time during the biennium it appears that projected toll revenues from the ferry system, together with the appropriation from the Puget Sound ferry operations account and any other operating subsidy available to the Washington state ferries, will be less than the projected total cost of maintenance and operation of the Washington state ferries for the biennium, the department shall forthwith undertake a review of its schedule of charges to ascertain whether or not the schedule of charges should be revised. ((The department shall, upon completion of its review report, submit its recommendation to the transportation commission which may in its sound discretion revise the schedule of charges as required to meet necessary maintenance and operation expenditures of the ferry system for the biennium or may defer action until the regular annual review and revision of ferry charges as provided in subsection (2) of this section.))

(5) The provisions of RCW 47.60.330 relating to public participation shall apply to the process of revising ferry tolls under this section.

Sec. 25. Section 76, chapter 15, Laws of 1983 and RCW 47.60.330 are each amended to read as follows:

(1) Before a substantial expansion or curtailment in the level of service provided to ferry users, or a revision in the schedule of ferry tolls or charges, the department ((~~of transportation~~)) shall consult with affected ferry users. The consultation shall be: (a) By public hearing in affected local communities; (b) by review with the affected ferry advisory committees pursuant to RCW 47.60.310; (c) by conducting a survey of affected ferry users; or (d) by any combination of (a) through (c).

(2) There is created a ferry system productivity council consisting of a representative of each ferry advisory committee empanelled under RCW 47.60.310, elected by the members thereof, and two representatives of employees of the ferry system appointed by mutual agreement of all of the unions representing ferry employees, which shall meet from time to time with ferry system management to discuss means of improving ferry system productivity.

(3) Before increasing ferry tolls the department ((~~of transportation~~)) shall consider all possible cost reductions with full public participation as provided in subsection (1) of this section and, consistent with public policy, shall consider adapting service levels equitably on a route-by-route basis to reflect trends in and forecasts of traffic usage. Forecasts of traffic levels shall be developed by the bond covenant traffic engineering firm appointed under the provisions of RCW 47.60.450. Provisions of this section shall not alter obligations under RCW 47.60.450. Before including any toll increase in a budget proposal ((~~by the commission~~)), the department ((~~of transportation~~)) shall consult with affected ferry users in the manner prescribed in (1)(b) of this section plus the procedure of either (1) (a) or (c) of this section.

Sec. 26. Section 2, chapter 27, Laws of 1979 and RCW 47.60.503 are each amended to read as follows:

The department ((~~of transportation~~)) is authorized and directed to take all necessary steps to obtain federal emergency relief funds to assist the state of Washington in restoring transportation services across Hood Canal and Puget Sound and upon the Kitsap and Olympic peninsulas, including both interim measures and the ultimate reconstruction or replacement of the Hood Canal bridge.

Sec. 27. Section 1, chapter 184, Laws of 1981 and RCW 47.60.504 are each amended to read as follows:

(1) There is hereby created in the motor vehicle fund the Hood Canal bridge account to the credit of which shall be deposited all property damage insurance proceeds received by the state as a result of the partial destruction of the Hood Canal bridge in February, 1979, together with the income from the investment of the insurance proceeds. All moneys deposited in this account shall be used by the department ((~~of transportation~~)) for the reconstruction of the Hood Canal bridge on state route number 104 or to reimburse in part the United States for federal funds used for the reconstruction of the bridge.

(2) Any moneys in the Hood Canal bridge account available for investment may be loaned to treasury funds, including the motor vehicle fund((~~, in accordance with the provisions for interfund loans contained in RCW 43.84.100 and 43.84.110~~)).

(3) The state investment board may invest and reinvest in accordance with RCW 43.84.150 the surplus moneys in the Hood Canal bridge account as the ((~~secretary of transportation~~)) director deems appropriate. All income from said investments shall be deposited to the credit of the Hood Canal bridge account in the motor vehicle fund.

Sec. 28. Section 2, chapter 85, Laws of 1970 ex. sess. as last amended by section 3, chapter 27, Laws of 1979 and RCW 47.60.505 are each amended to read as follows:

There is hereby created in the motor vehicle fund the Puget Sound capital construction account. All moneys hereafter deposited in said account shall be used by the department ((~~of transportation~~)) for:

(1) Reimbursing the motor vehicle fund for all transfers therefrom made in accordance with RCW 47.60.620; and

(2) Improving the Washington state ferry system including, but not limited to, vessel acquisition, vessel construction, major and minor vessel improvements, terminal construction and improvements, and reconstruction or replacement of, and improvements to, the Hood Canal bridge, reimbursement of the motor vehicle fund for any state funds, other than insurance proceeds, expended therefrom for reconstruction or replacement of and improvements to the Hood Canal bridge, pursuant to proper appropriations: PROVIDED, That any funds accruing to the Puget Sound capital construction account after June 30, 1979, which are not required to reimburse the motor vehicle fund pursuant to RCW 47.60.620 as such obligations come due nor are required for capital improvements of the Washington state ferries pursuant to appropriations therefor shall from time to time as shall be determined by the department ((~~of transportation~~)) be transferred by the state treasurer to the Puget Sound ferry operations account in the motor vehicle fund.

Sec. 29. Section 8, chapter 27, Laws of 1979 and RCW 47.60.544 are each amended to read as follows:

The department ((~~of transportation~~)) shall each quarter report to and consult with the legislative transportation committee on the implementation of ((~~sections 1 through 7 of this 1979 act~~)) RCW 47.60.502 through 47.60.543.

Sec. 30. Section 1, chapter 133, Laws of 1983 and RCW 47.60.680 are each amended to read as follows:

No contract for the construction, improvement, or repair of a ferry, ferry terminal, or other facility operated by the Washington state ferries or for the repair, overhaul, or the dry-docking of any ferry operated by Washington state ferries may be awarded to any contractor who has not first been prequalified to perform the work by the department ((~~of transportation~~)). No bid or proposal for such a contract may be received from any contractor who has not first been prequalified to perform the work by the department ((~~of transportation~~)).

Sec. 31. Section 2, chapter 133, Laws of 1983 and RCW 47.60.690 are each amended to read as follows:

The ((~~secretary of transportation~~)) director shall adopt rules prescribing standards and criteria to assure that each ferry system construction and repair contract described in RCW 47.60.680 shall be awarded to a competent and responsible contractor who has all of the following qualifications:

(1) Adequate financial resources, which may take into account the ability of the contractor to secure such resources;

(2) The necessary organization, personnel, equipment, facilities, experience, and technical ((~~qualification[s]~~)) qualifications to perform ferry system construction and repair contracts generally and with respect to any specific contract such additional special qualifications as may be necessary to perform the contract;

(3) The ability to comply with the department's performance schedules taking into account the outstanding work on all of the contractor's construction and repair contracts;

(4) A satisfactory record of performing previous contracts;

(5) A satisfactory record of integrity, judgment, and skills; and

(6) Such other qualifications as the secretary may prescribe to assure that prequalified contractors are competent and responsible.

Sec. 32. Section 5, chapter 133, Laws of 1983 and RCW 47.60.720 are each amended to read as follows:

Upon receipt of an application by a contractor for prequalification to perform ferry system construction and repair contracts, the department shall conduct such additional investigation as it deems necessary. If it finds that the applicant is qualified in accordance with the rules as adopted by the ((~~secretary~~)) director, the department shall prequalify the contractor to perform the contracts for a period of one year. The prequalification shall fix the aggregate dollar amount of work, including any contract let by the department, that the contractor may have under contract and uncompleted at any one time and may limit the contractor to the submission of bids or proposals upon a certain class of work. Subject to any restrictions on the dollar amount or class of work specified thereunder, the prequalification shall authorize a contractor to bid or submit proposals on all ferry system construction and repair contracts mentioned in RCW 47.60.680 except contracts requiring special prequalification. If the department determines that an applicant is not entitled to prequalification, it shall give written notice of the determination to the applicant.

Sec. 33. Section 9, chapter 133, Laws of 1983 and RCW 47.60.760 are each amended to read as follows:

The department ((~~of transportation~~)) shall not be required to make available for public inspection and copying financial information supplied by any person, firm, or corporation for the purpose of qualifying to submit a bid or proposal for a ferry system construction or repair contract as required by RCW 47.60.680 through 47.60.750.

NEW SECTION. Sec. 34. A new section is added to chapter 47.61 RCW to read as follows:

As used in this chapter, unless the context indicates otherwise:

(1) "Department" means the department of marine transportation; and

(2) "Director" means the director of marine transportation.

Sec. 35. Section 2, chapter 15, Laws of 1983 and RCW 47.64.011 are each amended to read as follows:

As used in this chapter, unless the context otherwise requires, the definitions in this section shall apply.

(1) "Arbitration" means the procedure whereby the parties involved in an impasse submit their differences to a third party for a final and binding decision or as provided in this chapter.

(2) "Arbitrator" means either a single arbitrator or a panel of three arbitrators as provided in RCW 47.64.240.

(3) "Collective bargaining representative" means the persons designated by the ((~~secretary of transportation~~)) director and employee organizations to be the exclusive representatives during collective bargaining negotiations.

(4) "Department ((~~of transportation~~))" means the department ((~~as defined in RCW 47.01.021~~)) of marine transportation.

(5) "Ferry employee" means any employee of the ((~~marine transportation division of the~~)) department ((~~of transportation~~)) who is a member of a collective bargaining unit represented by a ferry employee organization and does not include an exempt employee pursuant to RCW 41.06.079.

(6) "Ferry employee organization" means any labor organization recognized to represent a collective bargaining unit of ferry employees.

(7) "Ferry system management" means those management personnel of the ((~~marine transportation division of the~~)) department ((~~of transportation~~)) who have been vested with the day-to-day management responsibilities of the Washington state ferry system ((~~by the transportation commission~~)) and who are not members of a collective bargaining unit represented by a ferry employee organization.

(8) "Lockout" means the refusal of ferry system management to furnish work to ferry employees in an effort to get ferry employee organizations to make concessions during collective bargaining, grievance, or other labor relation negotiations. Curtailment of employment of ferry employees due to lack of work resulting from a strike or work stoppage, as defined in subsection (11) of this section, shall not be considered a lockout.

(9) "Marine employees' commission" means the commission created in RCW 47.64.280.

(10) "Office of financial management" means the office as created in RCW 43.41.050.

(11) "Strike or work stoppage" means a ferry employee's refusal, in concerted action with others, to report to duty, or his or her wilful absence from his or her position, or his or her stoppage or slowdown of work, or his or her abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment, for the purpose of inducing, influencing, or coercing a change in conditions, compensation, rights, privileges, or obligations of his, her, or any other ferry employee's employment. A refusal, in good faith, to work under conditions which pose an endangerment to the health and safety of ferry employees or the public, as determined by the master of the vessel, shall not be considered a strike for the purposes of this chapter.

((~~(12) "Transportation commission" means the commission as defined in RCW 47.01.021.~~))

Sec. 36. Section 47.64.090, chapter 13, Laws of 1961 as amended by section 27, chapter 15, Laws of 1983 and RCW 47.64.090 are each amended to read as follows:

If any party assumes the operation and maintenance of any ferry or ferry system by rent, lease, or charter from the department ((~~of transportation~~)), such party shall assume and be bound by all the provisions herein and any agreement or contract for such operation of any ferry or ferry system entered into by the department shall provide that the wages to be paid, hours of employment, working conditions and seniority rights of employees will be established by the marine employees' commission in accordance with the terms and provisions of this chapter and it shall further provide that all labor disputes shall be adjudicated in accordance with chapter 47.64 RCW.

Sec. 37. Section 5, chapter 15, Laws of 1983 and RCW 47.64.140 are each amended to read as follows:

(1) It is unlawful for any ferry system employee or any employee organization, directly or indirectly, to induce, instigate, encourage, authorize, ratify, or participate in a strike or work stoppage against the ferry system.

(2) It is unlawful for ferry system management to authorize, consent to, or condone a strike or work stoppage; or to conduct a lockout; or to pay or agree to pay any ferry system employee for any day in which the employee participates in a strike or work stoppage; or to pay or agree to pay any increase in compensation or benefits to any ferry system employee in response to or as a result of any strike or work stoppage or any act that violates subsection (1) of this section. It is unlawful for any official, director, or representative of the ferry system to authorize, ratify, or participate in any violation of this subsection. Nothing in this subsection prevents new or renewed bargaining and agreement within the scope of negotiations as defined by this chapter, at any time. No collective bargaining agreement provision regarding suspension or modification of any court-ordered penalty provided in this section is binding on the courts.

(3) In the event of any violation or imminently threatened violation of subsection (1) or (2) of this section, any citizen domiciled within the jurisdictional boundaries of the state may petition the superior court for Thurston county for an injunction restraining the violation or imminently threatened violation. Rules of civil procedure regarding injunctions apply to the action. However, the court shall grant a temporary injunction if it appears to the court that a violation has occurred or is imminently threatened; the plaintiff need not show that the violation or threatened violation would greatly or irreparably injure him or her; and no bond may be required of the plaintiff unless the court determines that a bond is necessary in the public interest. Failure to comply with any temporary or permanent injunction granted under this section constitutes a punishable contempt. The punishment shall not exceed ten thousand dollars for an employee organization or the ferry system, for each day during which the failure to comply continues, or imprisonment in a county jail for officials thereof not exceeding six months, or both such fine and imprisonment. The punishment for a ferry employee found to be in contempt shall be as provided in chapter 7.20 RCW. An individual or an employee organization which makes an active good faith effort to comply fully with the injunction shall not be deemed to be in contempt.

(4) The right of ferry system employees to engage in strike or work slowdown or stoppage is not granted and nothing in this chapter may be construed to grant such a right.

(5) Each of the remedies and penalties provided by this section is separate and several, and is in addition to any other legal or equitable remedy or penalty.

(6) In addition to the remedies and penalties provided by this section the successful litigant is entitled to recover reasonable attorney fees and costs incurred in the litigation.

(7) Notwithstanding the provisions of chapter 88.04 RCW and chapter 88.08 RCW, the department ((~~of transportation~~)) shall promulgate rules and regulations allowing vessels, as defined in RCW 88.04.300, as well as other watercraft, to engage in emergency passenger service on the waters of Puget Sound in the event ferry employees engage in a work slowdown or stoppage. Such emergency rules and regulations shall allow emergency passenger service on the waters of Puget Sound within seventy-two hours following a work slowdown or stoppage. Such rules and regulations that are promulgated shall give due consideration to the needs and the health, safety and welfare of the people of the state of Washington.

Sec. 38. Section 8, chapter 15, Laws of 1983 and RCW 47.64.170 are each amended to read as follows:

(1) Any ferry employee organization certified as the bargaining representative shall be the exclusive representative of all ferry employees in the bargaining unit and shall represent all such employees fairly.

(2) A ferry employee organization or organizations and the ((~~secretary of transportation~~)) director may each designate any individual as its representative to engage in collective bargaining negotiations.

(3) Negotiating sessions, including strategy meetings of ferry system management or employee organizations, mediation, and the deliberative process of arbitrators are exempt from the provisions of chapter 42.30 RCW. Hearings conducted by arbitrators may be open to the public by mutual consent of the parties. Any meeting ((of)) held by the ((~~transportation commission~~)) department, during which a collective bargaining agreement is subject to ratification, shall be open to the public.

(4) Terms of any collective bargaining agreement may be enforced by civil action in Thurston county superior court upon the initiative of either party.

(5) ((Ferry system employees or any employee organization shall not negotiate or attempt to negotiate directly with a member of the transportation commission if the commission has appointed or authorized a bargaining representative for the purpose of bargaining with the ferry employees or their representative, unless the member of the commission is the designated bargaining representative of the ferry system.

~~(6)~~)) The negotiation of a proposed collective bargaining agreement by representatives of ferry system management and a ferry employee organization shall commence in each odd-numbered year immediately following adoption by the legislature and approval by the governor of the biennial budget.

((~~(7)~~)) (6) Until a new collective bargaining agreement is negotiated, or until an award is made by the arbitrator, the terms and conditions of the previous collective bargaining agreement shall remain in force. The wage and benefit provisions of any collective bargaining agreement, or arbitrator's award in lieu thereof, that is concluded after July 1st of an odd-numbered year shall be retroactive to July 1st. It is the intent of this section that the collective bargaining agreement or arbitrator's award shall commence on July 1st of each odd-numbered year and shall terminate on June 30th of the next odd-numbered year to coincide with the ensuing biennial budget year, as defined by RCW 43.88.020(7), to the extent practical.

((~~(8)~~)) (7) Any ferry union contract terminating before July 1, 1983, shall, with the agreement of the parties, remain in effect until a contract can be concluded under RCW 47.64.006, 47.64.011, and 47.64.120 through 47.64.280. The contract may be retroactive to the expiration date of the prior contract, and the cost to the department of three months retroactive compensation and benefits for this 1983 contract negotiation only shall not be included in calculating the limitation imposed by RCW 47.64.180. If the parties cannot agree to contract extension, any increase agreed to for the three-month period shall be included in calculating the limit imposed by RCW 47.64.180.

((~~(9)~~)) (8) Any ferry union contract which would terminate after July 1, 1983, may, by agreement of the parties, be terminated as of July 1, 1983, and a new contract concluded pursuant to RCW 47.64.006, 47.64.011, and 47.64.120 through 47.64.280. Any contract terminating after July 1, 1983, is subject to this chapter only upon its expiration and shall not be renewed for a period beyond July 1, 1985.

Sec. 39. Section 9, chapter 15, Laws of 1983 and RCW 47.64.180 are each amended to read as follows:

(1) No collective bargaining agreement or arbitrator's award is valid or enforceable if its implementation would be inconsistent with any statutory limitation on the ((~~department of transportation's~~)) department's funds, spending, or budget. The department ((~~of transportation~~)) shall, in good faith, exercise its administrative discretion with full public participation as required by RCW 47.60.330, subject only to legislative limitations and conditions, to implement the terms of any collective bargaining agreement or arbitrator's award.

(2) In no event may ((~~the transportation commission or~~)) the department ((~~of transportation~~)) authorize an increase in tolls after the enactment of the budget that is in excess of the Seattle consumer price index for the preceding twelve months for the purpose of providing revenue to fund a collective bargaining agreement or arbitrator's award. The ((~~commission or the~~)) department may increase tolls after the first fiscal year of the biennium by the amount that the Seattle consumer price index increased after the previous toll increase. This subsection shall not be construed to prevent increases due to items that are not labor-related and that are beyond the direct control of the department.

Sec. 40. Section 10, chapter 15, Laws of 1983 and RCW 47.64.190 are each amended to read as follows:

(1) No negotiated agreement or arbitration order may become effective and in force until five calendar days after an agreement has been negotiated or an arbitration order entered for each and every ferry employee bargaining unit.

(2) Upon the conclusion of negotiations or arbitration procedures with all ferry employee bargaining units, the ((~~secretary~~)) director shall ascertain whether the cumulative fiscal requirements of all such agreements and arbitration orders are within the limitations imposed by RCW 47.64.180.

(3) If the ((~~secretary~~)) director finds that budgetary or fare restrictions will be exceeded, he shall, within five calendar days of completion of negotiations or arbitration with the last bargaining unit to conclude an agreement, submit all agreements and arbitration awards to the marine employees' commission for a binding determination whether the limitations of RCW 47.64.180 have been exceeded.

(4) The marine employees' commission shall review all negotiated agreements and arbitration orders, and may take written or oral testimony from the parties, regarding compliance with RCW 47.64.180. Within fifteen calendar days of receiving the ((~~secretary's~~)) director's request for review, the commission shall determine by a majority vote of its members whether or not the cumulative effect of all such agreements and orders exceeds the limitations of RCW 47.64.180.

(5) If the marine employees' commission determines that the limitations of RCW 47.64.180 would be exceeded if all agreements and arbitration orders were given full force and effect, it shall order the minimum percentage reduction in straight time wage provisions applied equally across the board to all agreements or arbitration orders which will result in compliance with RCW 47.64.180.

(6) Whenever the ((~~secretary~~)) director requests a determination by the marine employees' commission pursuant to this section, the effect of all agreements and arbitration orders shall be stayed, pending the commission's final determination.

Sec. 41. Section 15, chapter 15, Laws of 1983 and RCW 47.64.240 are each amended to read as follows:

(1) If impasse persists fourteen days after the mediator has been appointed, or beyond any other date mutually agreed to by the parties, all impasse items shall be submitted to arbitration pursuant to this section, and that arbitration shall be binding upon the parties.

(2) Each party shall submit to the other within four days of request, a final offer on the impasse items with proof of service of a copy upon the other party. Each party shall also submit a copy of a draft of the proposed collective bargaining agreement to the extent to which agreement has been reached and the name of its selected arbitrator. The parties may continue to negotiate all offers until an agreement is reached or a decision rendered by the panel of arbitrators.

As an alternative procedure, the two parties may agree to submit the dispute to a single arbitrator. If the parties cannot agree on the arbitrator within four days, the selection shall be made pursuant to subsection (5) of this section. The full costs of arbitration under this provision shall be shared equally by the parties to the dispute.

(3) The submission of the impasse items to the arbitrators shall be limited to those issues upon which the parties have not reached agreement. With respect to each such item, the arbitration panel award shall be restricted to the final offers on each impasse item submitted by the parties to the arbitration board on each impasse item.

(4) The panel of arbitrators shall consist of three members appointed in the following manner:

(a) One member shall be appointed by the ((~~secretary of transportation~~)) director;

(b) One member shall be appointed by the ferry employee organization;

(c) One member shall be appointed mutually by the members appointed by the ((~~secretary of transportation~~)) director and the employee organization. The last member appointed shall be the chairman of the panel of arbitrators. No member appointed may be an employee of the parties;

(d) Ferry system management and the employee organization shall each pay the fees and expenses incurred by the arbitrator each selected. The fee and expenses of the chairman of the panel shall be shared equally by each party.

(5) If the third member has not been selected within four days of notification as provided in subsection (2) of this section, a list of seven arbitrators shall be submitted to the parties by the marine employees' commission. The two arbitrators selected by ferry system management and the ferry employee organization shall determine by lot which arbitrator shall remove the first name from the list submitted by the marine employees' commission. The second arbitrator and the first arbitrator shall alternately remove one additional name until only one name remains. The person whose name remains shall become the chairman of the panel of arbitrators and shall call a meeting within thirty days, or at such time mutually agreed to by the parties, at a location designated by him or her. In lieu of a list of seven nominees for the third member being submitted by the marine employees' commission, the parties may mutually agree to have either the Federal Mediation and Conciliation Service or the American Arbitration Association submit a list of seven nominees.

(6) If a vacancy occurs on the panel of arbitrators, the selection for replacement of that member shall be in the same manner and within the same time limits as the original member was chosen. No final award under subsection (3) of this section may be made by the panel until three arbitrators have been chosen.

(7) The panel of arbitrators shall at no time engage in an effort to mediate or otherwise settle the dispute in any manner other than that prescribed in this section.

(8) From the time of appointment until such time as the panel of arbitrators makes its final determination, there shall be no discussion concerning recommendations for settlement of the dispute by the members of the panel of arbitrators with parties other than those who are direct parties to the dispute. The panel of arbitrators may conduct formal or informal hearings to discuss offers submitted by both parties.

(9) The panel of arbitrators shall consider, in addition to any other relevant factors, the following factors:

(a) Past collective bargaining contracts between the parties including the bargaining that led up to the contracts;

(b) Comparison of wages, hours, employee benefits, and conditions of employment of the involved ferry employees with those of private sector employees within the state and Washington state employees doing directly comparable work, giving consideration to factors peculiar to the area and the classifications involved;

(c) The interests and welfare of the public, the ability of the ferry system to finance economic adjustments, and the effect of the adjustments on the normal standard of services;

(d) The right of the legislature to appropriate and to limit funds for the conduct of the ferry system; and

(e) The limitations on ferry toll increases and operating subsidies as may be imposed by the legislature.

(10) The chairman of the panel of arbitrators may hold hearings and administer oaths, examine witnesses and documents, take testimony and receive evidence, issue subpoenas to compel the attendance of witnesses and the production of records, and delegate such powers to other members of the panel of arbitrators. The chairman of the panel of arbitrators may petition the superior court in Thurston county, or any county in which any hearing is held, to enforce the order of the chairman compelling the attendance of witnesses and the production of records.

(11) A majority of the panel of arbitrators shall within thirty days after its first meeting select the most reasonable offer, in its judgment, of the final offers on each impasse item submitted by the parties.

(12) The selections by the panel of arbitrators and items agreed upon by the ferry system management and the employee organization shall be deemed to be the collective bargaining agreement between the parties.

(13) The determination of the panel of arbitrators shall be by majority vote and shall be final and binding, subject to RCW 47.64.180 and 47.64.190. The panel of arbitrators shall give written explanation for its selection and inform the parties of its decision.

Sec. 42. Section 16, chapter 15, Laws of 1983 and RCW 47.64.250 are each amended to read as follows:

(1) Any ferry employee organization and the department ((~~of transportation~~)) may sue or be sued as an entity under this chapter. Service upon any party shall be in accordance with law or the rules of civil procedure. Nothing in this chapter may be construed to make any individual or his assets liable for any judgment against the department ((~~of transportation~~)) or a ferry employee organization if the individual was acting in his official capacity.

(2) Any legal action by any ferry employee organization or the department ((~~of transportation~~)) under this chapter shall be filed in Thurston county superior court within ten days of when the cause of action arose. The court shall consider those actions on a priority basis and determine the merits of the actions within thirty days of filing.

Sec. 43. Section 18, chapter 15, Laws of 1983 and RCW 47.64.270 are each amended to read as follows:

Absent a collective bargaining agreement to the contrary, the department ((~~of transportation~~)) shall provide contributions to insurance and health care plans for ferry system employees and dependents, as determined by the state employees' insurance board, under chapter 41.05 RCW. The ferry system management and employee organizations may collectively bargain for other insurance and health care plans, and employer contributions may exceed that of other state agencies as provided in RCW 41.05.050, subject to RCW 47.64.180. However, after July 1, 1984, any amount by which the employer contribution for ferry system employees' and dependents' insurance and health care plans exceeds that provided for other state agencies shall reduce the funds available for compensation purposes, pursuant to RCW 47.64.180.

Sec. 44. Section 19, chapter 15, Laws of 1983 as amended by section 95, chapter 287, Laws of 1984 and RCW 47.64.280 are each amended to read as follows:

(1) There is created the marine employees' commission. The governor shall appoint the commission with the consent of the senate. The commission shall consist of three members: One member to be appointed from labor, one member from industry, and one member from the public who has significant knowledge of maritime affairs. The public member shall be chairman of the commission. One of the original members shall be appointed for a term of three years, one for a term of four years, and one for a term of five years. Their successors shall be appointed for terms of five years each, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he succeeds. Commission members are eligible for reappointment. Any member of the commission may be removed by the governor, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause. Commission members are not eligible for state retirement under chapter 41.40 RCW by virtue of their service on the commission. Members of the commission shall be compensated in accordance with RCW 43.03.250 and shall receive reimbursement for official travel and other expenses at the same rate and on the same terms as provided for the transportation commission by RCW 47.01.061. The payments shall be made from the Puget Sound ferry operations account.

(2) The marine employees' commission shall: (a) Adjust all complaints, grievances, and disputes between labor and management arising out of the operation of the ferry system as provided in RCW 47.64.150; (b) provide for impasse mediation as required in RCW 47.64.210; (c) conduct fact-finding and provide salary surveys as required in RCW 47.64.220; and (d) provide for the selection of an impartial arbitrator as required in RCW 47.64.240(5).

(3) In adjudicating all complaints, grievances, and disputes, the party claiming labor disputes shall, in writing, notify the marine employees' commission, which shall make careful inquiry into the cause thereof and issue an order advising the ferry employee, or the ferry employee organization representing him or her, and the department ((~~of transportation~~)), as to the decision of the commission.

The parties are entitled to offer evidence relating to disputes at all hearings conducted by the commission. The orders and awards of the commission are final and binding upon any ferry employee or employees or their representative affected thereby and upon the department.

The commission shall adopt rules of procedure under chapter 34.04 RCW.

The commission has the authority to subpoena any ferry employee or employees, or their representatives, and any member or representative of the department, and any witnesses. The commission may require attendance of witnesses and the production of all pertinent records at any hearings held by the commission. The subpoenas of the commission are enforceable by order of any superior court in the state of Washington for the county within which the proceeding may be pending. The commission may hire staff as necessary, appoint consultants, enter into contracts, and conduct studies as reasonably necessary to carry out this chapter.

Sec. 45. Section 5, chapter 123, Laws of 1965 ex. sess. as amended by section 75, chapter 151, Laws of 1977 ex. sess. and RCW 47.72.050 are each amended to read as follows:

In its capacity as successor to the canal commission, the department of marine transportation may:

(1) Adopt rules and regulations necessary to carry out the purposes of this chapter.

(2) Make such investigations, surveys, and studies it deems necessary to determine the feasibility of the development of a navigation canal, or systems of navigation canals within the state of Washington.

(3) Construct, maintain, and/or operate any navigation canal, or navigation canal systems deemed feasible by the department of marine transportation.

(4) Acquire by gift, purchase, or condemnation from any person, municipal, public, or private corporation, or the state of Washington, or lease from the United States of America, any lands, rights of way, easements, or property rights in, over, or across lands or waters necessary for the construction, operation, or maintenance of any navigation canal, or navigation canal system. The acquisition of such rights is for a public use. The exercise of the right of eminent domain shall be in the manner provided by chapter 8.04 RCW, and all actions initiated thereunder shall be brought in the name of the department of marine transportation.

(5) Hold public hearings. Prior to a determination of feasibility for any proposed project, the department shall hold a public hearing so that members of the public may present their views thereon.

(6) Accept and expend moneys appropriated by the legislature or received from any public or private source, including the federal government, in carrying out the purposes of this chapter.

(7) Negotiate and cooperate with the United States of America for the purpose of inducing the United States to undertake the construction, operation, or maintenance of any navigation canal, or navigation canal system provided for in this chapter.

(8) As a local sponsor cooperate, contract, and otherwise fully participate on behalf of the state of Washington with the United States of America, in any study relating to a determination of feasibility of a navigation canal or navigation canal system, and in any project relating to the construction, operation, or maintenance of a navigation canal, or navigation canal system to be undertaken by the United States of America.

The authority granted herein includes, but is not limited to, contributing such moneys to the United States of America as may be required and appropriated for that purpose by the legislature and furnishing without cost to the United States of America all lands, easements, and rights of way, performing all necessary alterations to utilities arising from any project, and holding the United States of America free from any claims for damages arising out of the construction of any project.

NEW SECTION. Sec. 46. A new section is added to chapter 47.64 RCW to read as follows:

The marine employees' commission shall be reviewed jointly by the legislative transportation committee and the legislative budget committee according to criteria established jointly by these committees before December 1, 1987.

NEW SECTION. Sec. 47. Sections 1 through 10 of this act shall constitute a new chapter in Title 43 RCW.

NEW SECTION. Sec. 48. This act shall take effect July 1, 1987.