Public Advocates
131 Steuart Street Suite 300
San Francisco 94105
January 22, 2010
VIA ELECTRONIC MAIL
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