Public Advocates
131 Steuart Street Suite 300
San Francisco 94105

January 22, 2010


James Fang, President, and BART Board Members Bay Area Rapid Transit District 300 Lakeside Drive, P.O. Box 12688 Oakland, California 94604-2688

Re: Additional Violations of FTA Circular 4702.1A And Potential Violation California’s Brown Act

Dear Chair Fang and Board Members:

We have received a copy of Administrator Peter Rogoff’s letter of January 15, and of BART’s January 20 response.

From Administrator Rogoff’s letter, we learned that BART very recently provided to FTA for its review a purported analysis of the equity impacts of the Oakland Airport Connector project (referred to in your letter as “the January 14 submission”). The preparation of an equity analysis requires “early and continuous” public participation,1 yet we are unaware of any public process that preceded the creation of BART’s recent submission. In fact, we are unaware that BART has even made this submission public. As a result, BART has again denied low-income and minority participants the opportunity to identify adverse impacts and delayed and denied benefits associated with the project. These are very serious additional breaches of Title VI protocols, above and beyond the breach that led us to file our administrative complaint with FTA in the first place. {1  See, e.g., FTA Circular 4702.1A, ch. 4, sec. 9 (“An agency’s public participation strategy shall offer early and continuous opportunities for the public to be involved in the identification of social, economic, and environmental impacts of proposed transportation decisions.”)}

We are also concerned that BART’s letter to Administrator Rogoff, signed by eight of BART’s nine board members, indicates that the BART board, since receiving his letter, may have engaged in non- public deliberations resulting in a decision to pursue federal stimulus funds for the Oakland Airport Connector project. A new substantive decision by you, BART’s fiduciary trustees, is essential at this stage, where the risk of losing stimulus funds for OAC is very high, and the alternative use of those funds would enable the Board to preserve BART’s existing service from contemplated reductions.2    Under the contingency plan adopted in MTC Resolution No. 3885 (the resolution that governs the allocation of federal stimulus funds in the Bay Area), BART would receive some $17 million if these $70 million in FTA formula funds were reallocated among Bay Area transit systems for system preservation, i.e., preservation of existing service. While the Board has previously, in open session, approved the OAC project, it has not had the opportunity to address the trade-off that is only now apparent, namely, whether BART’s constituents, and in particular its riders and employees, would be better served by rolling the dice on FTA approval of stimulus funding for the OAC project or by preserving existing jobs and existing service with its $17 million share of stimulus funds under MTC’s contingency plan. {2 At its most recent meeting, on January 14 (one day before Administrator Rogoff sent his letter), the Board discussed BART’s $25.5 million FY 2010 operating deficit, and heard staff’s proposal to eliminate 74 BART jobs, with the potential to impact current riders by reducing service and amenities and/or increasing fares. We are not aware of a subsequently-noticed meeting of the Board between then and the date of the January 20 letter to FTA.}

In other words, the letter signed by a majority of the Board gives the impression that BART may have reached a new decision, behind closed doors, to pursue stimulus funding for the OAC project at the direct expense of its current riders and the jobs of its current employees.

As you know, the California open meetings statute, the Brown Act, not only prohibits closed-meeting decision-making, but also bars conversations “conducted serially” by an intermediary, as when a majority of board members are each approached individually to agree to a decision. Gov. Code § 54952.2;3 see Stockton Newspapers, Inc. v. Redevelopment Agency of the City of Stockton, 171 Cal. App. 3d 95, 101, 102 (1985); Wolfe v. Court of Appeal, 144 Cal. App. 4th 533, 543 (2006) (“a concerted plan to engage in a collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next would violate the opening meeting requirement”). {3  Section 54952.2 (b)(1) provides that: “A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”}

Even if this recent action by a majority of the Board was technically lawful under the Brown Act, such a weighty decision should – like the planning for and conduct of an equity analysis – be made only after full public notice and discussion in public with the opportunity for all affected parties to be made aware of the proposed decision and comment on it.

We request that all future discussions, decisions and actions relating to BART’s response to FTA with regard to its Title VI compliance review, including all BART planning for and execution of corrective action, be taken in full view of the public, and with full participation, in particular, of affected Environmental Justice communities.

Finally, please consider this a formal request under the California Public Records Act that BART provide us with copies of the “January 14 submission” referred to in your response to Administrator Rogoff’s letter, and all future correspondence and documents BART provides to MTC in connection with this Title VI compliance review, the OAC project, and the use of these stimulus funds.

Very truly yours,

Richard A. Marcantonio
Managing Attorney

Cc:    Matthew Burrows, General Counsel
Chair Haggerty and MTC Commissioners
Steve Heminger, MTC Executive Director
Peter Rogoff, FTA Administrator
Cheryl Hershey, FTA Director of Civil Rights
Amber Ontiveros, FTA Title VI Specialist
Dorval Carter, FTA Chief Counsel