Federal Civil Rights Review Raises Governance Questions at MTC

The long-term impacts to transportation funding as a result of the Federal Transit Administration's (FTA) civil rights compliance probe
of the Metropolitan Transportation Commission (MTC) won't be clear for
some time, but the action by the federal administration has
transportation policy circles buzzing. Experts in civil rights and
regional planning policy couldn't point to
another instance of a metropolitan planning organization (MPO) like the
MTC being required to submit to similar scrutiny from the FTA, while
social justice
advocates felt vindicated for their longstanding contention of
discrimination in transportation funding.

Flickr photo: jovino

The FTA probe stemmed from a complaint by Public Advocates, a civil rights law
firm in San Francisco, over BART's failure to properly analyize
the equity impacts of its fare policy for the controversial
Oakland Airport Connector (OAC) as required under Title VI of the 1964 Civil Rights Act. As a result of the
complaint, the FTA denied BART $70 million in federal stimulus funds
for the project. Because the MTC channels significant federal funds to
BART and because it continually approved motions to send stimulus funds
to an agency that ultimately failed its responsibility to comply with
Title VI, the FTA turned its eye on MTC.

According to Thomas Sanchez, chair of the Urban Affairs and
Planning Department
at Virginia Tech and
a Brookings Institution fellow, the FTA's action against BART was
unprecedented and perked up the ears of transportation policymakers
around the country.

On the other hand, Sanchez said he wasn't necessarily surprised
with the action at the MTC because of a previous lawsuit by Public
Advocates, Darensburg v. Metropolitan Transportation Commission,
which provided significant evidence in his mind that the MPO wasn't
fulfilling its Title VI requirements. Sanchez said the commission had
been asked numerous times by advocates like Urban Habitat to conduct an equity analysis of its funding practices in general, and had grown quite vocal with OAC complaints.

"I personally think it's a positive from a standpoint of
accountability and transparency and holding these organizations
accountable for a fair amount of federal money they are getting," said
Sanchez.

While Sanchez said the BART OAC case was significant because the
FTA withheld money rather than merely exchanging pointed letters, the
MTC should have had better mechanisms in place to monitor BART and
should have acted on the advocates' complaints of improper equity
analysis.

"It's their responsibility, not only that the subcontractor follows through with the work, but the letter of the law," he said.

An FTA official in Washington confirmed to Streetsblog that no
other MPO was currently under similar scrutiny and that the complaint by
Public Advocates against BART had led to the request of documents from
the MTC. The official, who spoke on the condition of anonymity, said the
the first step is always to help the grantee come into voluntary
compliance, and that in this particular situation the agency was
obligated to follow up to see what the MPO was doing to monitor its
subrecipients.

The FTA official also noted that while it might have appeared that
withholding the money from BART for the OAC was a sanction, the issue
was more about the tight timeline for allocating stimulus funds. The FTA
did not believe BART would be compliant with Title VI by the time the
money had to be obligated, so it denied the funding request.

The MTC subsequently distributed the money to transit operators throughout the region in accordance with its Tier II spending contingency.

MTC spokesperson John Goodwin told Streetsblog last week the
organization would "work with the FTA to meet their deadlines." When
contacted for this story he said he had nothing new to add to his
comments from last week. Neither MTC Commission Chair Scott Haggerty nor
Vice-Chair Adrienne Tissier replied to Streetsblog's requests for
comment.

Wynn Hausser, a spokesperson for Public Advocates, said he doesn't
believe the MTC has the proper procedural requirements in place to
monitor Title VI compliance of subrecipients and the probe will
ultimately demonstrate the shortcoming. 

MTC Commissioners Question Governance and Projects

Perhaps surprisingly, several MTC commissioners interviewed by
Streetsblog agreed with the advocates and argued the FTA probe could
compel the Bay Area to reconsider how it spends billions in federal
funds, including past allocations for projects they contend never went
through proper equity analysis.

"I
think it would be fair to say that was a red flag, that it was
alarming," said Santa Clara County Supervisor Dave Cortese, an MTC
commissioner representing the Association of Bay Area Governments
(ABAG). Cortese listed numerous concerns with MTC procedure and
representation and called into question several funding decisions in the
region, which to his knowledge sailed through the commission without
equity analysis.

"I do think there is a lot the MTC should be concerned about," said
Cortese. "If the FTA knows the half of it, they should be concerned."

Cortese said he hoped the OAC wouldn't become the only poster child
for the region's failure to comply with Title VI and argued there were
programmatic issues throughout the region. Cortese listed several other
projects where the MTC had moved hundreds of millions of dollars without
conducting equity analysis. He said the Valley Transportation Authority
(VTA) had de-prioritized the Capitol Expressway
light rail project, which had undergone equity analysis and would have
served low income communities of color, in favor of BART to San Jose.

"[The VTA] defunded a project that their own equity criteria said
was needed. That's a $300 million example," said Cortese. "At what point
does MTC have an obligation to say
that's not right? To what extent does MTC have the tools to do something

about it?"

He also noted MTC had moved money from the Dunbarton Bridge rail
project to BART's Warm Springs extension without an equity analysis. "I
don't remember anyone ever doing that analysis," he said.

"Lots of money gets moved around politically without a lot of analysis on civil rights and equity," added Cortese.

San Francisco Supervisor Chris Daly, who sits on the commission and
has been an outspoken critic of the current OAC project, said fellow
commissioners didn't want to consider anything but the nearly $500
million tramway. He said the commission never seriously pushed BART to
study other options, such as the bus rapid transit proposal by the
transit non-profit TransForm.

"Although the Oakland political machine was able to turn out a large number of people saying build the project, it seemed
pretty clear the benefits were not there on the OAC," said Daly. "I
think TransForm has done a really good job of debunking that. If your
real concern was the economic vitality to the airport, you would run a BRT
or other transit option that serves the people of the area."

Daly also complained that MTC Executive Director Steve Heminger had recently supported a $20 million funding swap
at the California Transportation Commission (CTC) to make up for the
gap that resulted when the FTA didn't give BART the $70 million in
stimulus funds it expected. Daly said he wasn't supposed to catch the
funding swap issue and when he did, MTC staff was not pleased.

"Obviously
Heminger and MTC are moving ahead with trying to figure out how to fund
the OAC without all this and that's fine. But to do it under the
darkness of night, I thought that was pretty low," said Daly.

Urban Habitat's Bob Allen questioned the funding swap as well. "The
level of effort and coordination the CTC is doing with the MTC
because this is a pet project is embarrassing," he said. "Where was the
level of
effort when the operators were bleeding jobs?"

"When a
capital project goes over budget by $100 million, there's always an
explanation. When a transit operator like AC Transit encounters health
care cost increases, they say it's mismanagement. They don't go out of their way
to do crap for the operators," said Allen.

Supervisor Cortese also expressed concerns about the
representational structure of the commission itself. Despite having 25
percent of the population in the Bay Area, Santa Clara
County is not proportionately represented, and East San Jose, which has
a strong people of color and low income community population, doesn't
have a
significant voice on MTC, said Cortese.

Cortese's appointment by ABAG created temporary parity, but when
his
term ends, he said, Santa Clara County will only have two permanent
appointees and neither of them would represent the half million people
of East San Jose. "That's a permanent structural failure," he said. 

Impact of the Probe

Source: Tom Sanchez.

The potential problems at MTC are not necessarily novel among MPOs around the country, as Sanchez noted in a paper
on democratic governance and demographics in transportation planning.
In the paper, he wrote that 88 percent of MPOs are governed by whites,
while the regions represented by MPOs are only 61 percent white. He also
indicated MPO boards are over-represented by suburban interests because
of "one area, one vote" governance structures.

Without better representation by communities that are supposed to
be protected by Title VI, Sanchez argued MPOs would not really engage
the public and fulfill their responsibility to the law. MPOs should do
more than pay lip service to public involvement in decision making:

"That's really who they answer to, that's who pays the bills, the
public," Sanchez told Streetsblog. Sanchez said the MPOs are ultimately
public bodies and should be responsive to complaints raised by the
public, not just "blow them off," as he said MTC had done previously
with concerns raised by advocates like Urban Habitat.

"If the public isn't happy, then your customers aren't happy. What
do you do, tell them too bad?" he said. "From a public relations
standpoint and a good practices standpoint, that doesn't seem like a
good way to do business."

Urban Habitat's Allen hoped the FTA action would ultimately lead
the MTC to reconsider how it conducts business in the region, including
its adherence to the letter of civil rights law and a reconsideration of
its representational governance.

"Changing the structure of MTC would change the investment
outcomes," Allen said. He argued transit operators should be directly
represented on the commission and it should better reflect geographic
equity.

Allen said since the FTA investigation of BART, the staff there has
had an open line of communication with the advocates about their
overall equity analysis, though he said Urban Habitat disagreed with the
sufficiency of BART's OAC equity analysis (the FTA recently sent BART
notice that it had complied with the necessary requisites for its OAC
fare analysis).

Looking forward, Allen hoped the FTA's probe into the MTC would
compel commissioners to take civil rights seriously and not just lead
them to "check off the boxes" required by the law. "We want to make sure
they're going as far as we think they need to go to comply with federal
civil rights compliance."

Beyond the Bay Area

Advocates for transit and social justice are
taking cues from the MTC action to influence their regional MPOs beyond the Bay Area. The
Los Angeles Bus Riders Union (BRU), which made history in 1996 with a
successful Title VI challenge against the Los Angeles Metropolitan
Transportation Authority, has been closely watching the BART and MTC
cases.

"I
feel like this is a historic move for those of us who advocate on
behalf of the transit dependent, working class communities, and
communities of color," said Esperanza Martinez, lead organizer for the
BRU. Referring to President Obama and FTA Administrator Peter Rogoff,
she added, "It
speaks to the real possibilities and opportunities that have been
created through the new administration."

"It sets a precedent for
agencies like the MTC to tread more carefully in terms of how they make
choices on how they spend local, state and federal funding to build
projects that have discriminatory impacts," she added.

Esperanza pointed to the 30/10 transit plan promoted by LA Mayor
Antonio Villaraigosa as an example of a project that had been pushed
forward without equity analysis. She said it would decimate bus service
by shifting operating resources to light rail, very little of which will
serve transit-dependent communities.

According to Esperanza,
the work of reforming transportation inequity has to start with the
federal transportation act and work through the states to the local
municipalities. "The level
of discrimination is embedded in the fibers of the funding formulas and
in the agencies. We're trying to shift those priorities," she said.