Regional government sells out Bay Area cities

The latest ABAG-MTC merger deal pays little attention to the constituents of the two powerful agencies

 

I’ve been covering the current power struggle between the Association of Bay Area Governments, our region’s land use planning authority, and its transportation planning counterpart, the Metropolitan Transportation Agency, since the feud burst into public last July. This is no ordinary bureaucratic turf war. The scope of MTC’s largesse alone—to take one recent and controversial example, the recently announced $260 million dollar emergency bailout of the Transit Center includes a $100 million loan from MTC—means that the outcome of this fight will profoundly affect life in the Bay Area.

And now there’s a new chapter – a meeting next week that could leave many of the cities in the region completely disenfranchised as what is supposedly a representative body moves to railroad through a very questionable merger deal.

ABAG-MTC merger consultant Lynn Dantzker addressing the Contra Costa Mayors Conference in the Lafayette Public Library.
ABAG-MTC merger consultant Lynn Dantzker addressing the Contra Costa Mayors Conference in the Lafayette Public Library.

So far my stories have cast MTC as the villain of the piece—for good reason:

  • ABAG staff wanted to keep crucial anti-displacement language in the forthcoming update of Plan Bay Area, the state-mandated regional “blueprint” jointly produced by the two agencies; MTC staff wanted to remove it.
  • ABAG, a council of governments, was formed as a Joint Powers Authority by the Bay Area cities and is voluntarily supported by all of the region’s 101 cities; MTC, a Metropolitan Planning Organization, is a California state agency with an autocratic style.
  • ABAG, the poor relation of the duo, depends on an annual MTC grant of $3 million annual to fund its land-use planning staff; in July MTC abruptly voted to allocate only six months of that money and then to seize ABAG’s land use planners—a move that would effectively destroy ABAG.
  • In September MTC Chair and Santa Clara County Supervisor Dave Cortese engineered a legislative putsch, pressuring the ABAG Administrative Committee into approving sight unseen MTC Resolution 4210, which extends the $3 million grant until June 1, 2016, at which point, unless the two agencies have approved a merger plan, MTC’s hostile takeover of ABAG planning staff will go forward.
  • ABAG staff are unionized; MTC staff are not.

But I’ve also qualified my appreciation of ABAG in light of the agency’s own problems:

  • Like MTC, ABAG has no direct accountability to any Bay Area electorate. The 38 members of the ABAG Executive Board, the organization’s official governing body, are elected officials, but they’re not elected to their regional offices. They’re city councilmembers appointed by the mayors of members cities in each county or county supervisors chosen by their respective boards of supervisors.
  • ABAG’s power entity is its ten-member Administrative Committee, chosen by the Executive Board and authorized to act between Executive Board meetings. It includes four MTC members, including MTC Chair Cortese, who operate as a fifth column that advances MTC’s expansionist designs.
  • ABAG pushes smart growth, with its bias toward the real estate industry, hostility to local influence in land use planning and zoning, and evisceration of our state’s premier environmental law, the California Environmental Quality Act.
  • ABAG is closely associated with the chief lobby for the region’s big businesses, the Bay Area Council. The regional land-use agency appoints one-third of the Board of Trustees of BAC’s think tank, the Bay Area Economic Council Institute. One of those trustees is ABAG Executive Director Ezra Rapport. Last November Rapport told the Bay Area Planning Director’s Association that “in [his] opinion” the BACEI’s regional economic strategy, “Roadmap for Resilience,” was one of three documents that should be “foundational” in the forthcoming discussions about an ABAG-MTC merger. As I wrote in December, given the Roadmap’s attack on local prerogatives in land use, for the executive director of an organization avowedly dedicated to protecting municipal prerogatives to make such a statement is shocking.

ABAG’s oligarchical tendencies have become even more pronounced during the first four months of the merger planning process stipulated by Resolution 4210. In December the two agencies hired a consultant team from Management Partners to devise a merger implementation plan by June 30 (by common assent, a preposterously short period in which to complete the assignment). The team’s work is being overseen by a Joint Committee comprising the MTC Planning Committee and the ABAG Administrative Committee. (The Planning Committee chair, Solano County Supervisor Jim Spering, is one of the four MTC Commissioners who sit on the ABAG Administrative Committee.) The consultants spent January and February interviewing key “stakeholders,” doing community “outreach,” researching the finances and human resources of MTC and ABAG, developing a financial forecast for both agencies, and studying regional governance and statutory mandates in California and elsewhere in the U.S.

As detailed in their March 18 letter to the Joint Committee, on April 22 the consultants will present the committee with “an analysis of [merger] options and recommendations for addressing the problems and issues that have emerged from the merger study process.” They will also ask the committee “for direction on the next steps so that we may prepare an implementation plan on [sic] the option(s) chosen [for] the [committee’s] May [27] meeting.” Since the deadline for approving a merger implementation plan is June 1, it would appear that on May 27 either the Joint Committee will approve an implementation plan or MTC will grab ABAG’s land use planning staffers, leaving the land use planning agency politically and financially bankrupt.

Here’s where things get really interesting. On April 21, the day before the Joint Committee is supposed to choose a merger option, ABAG is holding its annual Spring General Assembly, an all-day event at the Oakland Museum of California. ABAG supporters often cite the General Assembly as evidence of the organization’s representative character.

From the ABAG March 2016 Roster, posted on the ABAG website:

Each member city and county has one vote in the General Assembly; San Francisco is counted as both a city and a county for the purposes of membership.

Delegates from each member city and county and their alternates must be elected officials from the jurisdiction they represent—except for the City of San Francisco, where the mayor may appoint as his or her alternate any officer of that government; delegates serve at the pleasure of their appointing agencies.

(San Francisco County is represented by Supervisor Eric Mar; the alternate delegate is Supervisor Jane Kim. The City of San Francisco is represented by Nicole Wheaton, appointed by Mayor Ed Lee to be Director of Legislative and Government Affairs for San Francisco; her alternate is Andrew Dayton, deputy director of legislative and government affairs.)

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Under “Functions,” we read among other things that the General Assembly

  • Determines policy matters for the Association, including adoption of the annual general budget and summary work program
  • Reviews major policy actions and recommendations of the Executive Board

Article VI.C. of the ABAG’s bylaws states that “the powers and functions of the General Assembly shall include”:

  • Exercising as appropriate all of the powers of the Association as set forth in these Bylaws or the Agreement. The General Assembly shall have the power to limit the Executive Board’s exercise of any power or authority set forth in these Bylaws or the Agreement [with the Association of Bay Area Governments entered into under the Act by the Association Members].
  • Any delegate may at any meeting of the General Assembly propose a subject or subjects for study by the Association. The General Assembly may take action upon such proposals and, if requested by any delegate, determine whether a study will be made of the subject or subjects so proposed or may refer such subject or subjects to the Executive Board.
  • Any delegate may at any meeting of the General Assembly request review by the General Assembly of any action of the Executive Board which has been taken between meetings of the General Assembly.
  • The budgetary duties and responsibilities set forth in Article XI [Finances]

 

The theme of the General Assembly’s April 21 meeting is “The Future of Regional Planning.” The agenda includes a 50-minute session on that topic during which the merger consultants will “summarize the options being considered to further the integration of regional planning functions.” The panel will also include ABAG President, Clayton Councilmember Julie Pierce and, doubtfully, Cortese. The consultants’ recommendations for a merger options will have already been published on April 15 as part of the agenda for the Joint Committee’s April 22 meeting.

During the Administrative Committee’s all-day retreat on March 28, Pierce repeatedly stated that as a Council of Governments, ABAG represents all 101 cities in the region, even those that are not members. She also repeatedly stated that at the General Assembly’s April 21 meeting, delegates would only be allowed to comment on the various options; “interact[ion]” with the consultants about their recommendations would not be permitted. Her rationale:

I do not want to pre-empt the work of the Joint Committee on the 22nd…. I did not want [the consultants] to discuss the recommendations, even though it’s out there in paper in the [Joint Committee’s April 15] packet…. It’s not going to be a dialogue.

A dialogue, Pierce opined, would be “unfair to the Joint Committee.”

On April 5 I emailed Pierce. After citing her repeated statements about ABAG’s representation of the Bay Area’s cities and counties and her repeated refusal to allow General Assembly delegates to get into a discussion with the merger consultants about their recommendations, I asked:

How do you reconcile those two statements? Who, exactly, is representing whom? Does the Joint Committee have some interest that trumps the interests of the cities and counties? If so what would that interest be? Isn’t it the other way around, which is to say: doesn’t ABAG’s fundamental commitment to the municipal and county jurisdictions dictate that the delegates to the General Assembly be invited and indeed encouraged to have a dialogue with the consultants and with each other on the options and recommendations in the Joint Committee’s April 22 packet? Why not take a vote of the General Assembly on those options and recommendations? If not, why not?

As of April 14, Pierce hadn’t replied.

Also at the Administrative Committee’s March 28 retreat, Novato Mayor Pat Eklund, who sits on that committee, asked: “Have we looked at whether the members of the organization have to vote to accept one of the [merger] options?”

Pierce replied:

As long as our statutory authorities remain, probably not, ‘cause we’re still a Council of Governments. At such point as it might change into a truly merged board [enlaces her fingers], then, yeah, we would probably have to go back to the cities and counties and ask them, I would guess. As long as we’re still a Council of Governments, I would think that how we staff that Council of Governments is up to the Executive Board.

ABAG Legal Counsel Kenneth Moy added: “Except for dissolution of ABAG, you pretty much have power in the Executive Board to make these decisions.”

Eklund, the only member of the Administrative Committee who consistently stands up for accountable governance, was not persuaded. “We really report to the 101 cities and nine counties, the way I see it.”

On April 5 I emailed Moy, citing Pierce’s and his replies to Eklund and asking if there was anything in ABAG’s bylaws that precludes or prohibits the General Assembly from voting on a merger option. His response was to send me a copy of the bylaws.

In fact, the passage from the bylaws cited above stating that the General Assembly “[d]etermines policy matters for the Association” indicates that the General Assembly has not only a right but also a duty to vote not just on a merger option but also on the Administrative Committee’s approval of Resolution 4210. The only way the delegates are going to be able to carry out that duty on April 21 is if they demand that be allowed to do so. (Probably be a good idea to bring along copies of the ABAG bylaws.)

There is precedent for such a vote. As recounted in the May-June 2002 issue of the ABAG newsletter “Service Matters,” at ABAG’s 2002 Spring General Assembly the delegates

voted overwhelmingly to oppose State Senator Torlakson’s SB 1243, the latest (April 22, 2002) version of which proposed to rename MTC the Bay Area Land Use and Transportation Commission and transfer ABAG’s land use responsibilities. Under the new name, MTC would remain intact and ABAG’s General Assembly…would serve as an advisory body.

The newsletter added that “there was full support for merging the two agencies” and “the creation of a comprehensive integrated regional planning agency.” The issue was “how to do it.” The same holds true today.

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Discussion at the Administrative Committee March 28 retreat also cast light on an aspect of the merger planning process that has puzzled me: the consultants’ insistence that only management, not governance, is on the table. I asked ABAG Executive Director Ezra Rapport to explain the difference. Governance, he said, “involves the elected officials sitting in seats of authority for MTC and ABAG”; management has to do with “administrative functions under the agencies’ executive directors”—himself and MTC Executive Director Steve Heminger.

At the retreat, Pierce spoke approvingly of approving a merger model that “keeps MTC and ABAG as statutory bodies”—that is, that preserves the current governing boards, the Metropolitan Transportation Commission and the ABAG Executive Board—but consolidates both agencies’ “employees under one management structure…that serves both bodies.” Staff would answer to both boards.

Eklund asked: “Then do both boards hire the executive director?”

Pierce replied: “That has to be worked out as part of the going forward.”

Nope. The idea of distinguishing governance from management is specious. Governance is all about who has authority, and structure dictates who has authority—and power. The executive director of any merged regional planning agency is going to have immense power; how that administrator is chosen is a matter of governance. It ought to be explicitly laid out in any merger option.

I asked Rapport who decided that governance and management should be separated. He said the decision had been made by Pierce, Cortese, and Spering. On April 5 I emailed those three—all members of  both MTC and the ABAG Administrative Committee—asking:

Who decided that the governance issue was off the table in Phase One of the merger study process? When was that decision taken, and why?

As of April 14, I’d received no reply.

 

But now I think I understand what Pierce, Cortese, and Spering—who, together with MTC Executive Director Heminger, are running the show—are up to. The reason to keep governance off the table is because if the selected merger model changes governance, the state Legislature will have to be involved. MTC, a state agency, was created by California statute. ABAG, a Joint Powers Authority, also depends on state authorization. As the 2007 “A Citizen’s Guide to Joint Powers Agreements,” published by the California State Legislature’s Senate Local Government Committee, explains:

If a joint powers agreement creates a new joint powers agency, the JPA must file a Notice of a Joint Powers Agreement with the Secretary of State….Until public officials file those documents, a JPA cannot incur any debts, liabilities, or obligations, or exercise any of its powers.

By choosing a merger model that retains both MTC and the ABAG Executive Board but merges the two agencies’ staffs, the Cortese-Pierce-Spering troika hopes to maintain the fiction that they’re not meddling with governance, and keep the state out of the picture.

At the MTC Planning Committee’s April 6 meeting with a delegation from the Miami-Dade Metropolitan Planning Organization that’s visiting MPOs around the country in search of exemplars of regional planning, Heminger said:

We’re…trying to figure out a way—whatever we do—that we don’t have to go to Sacramento. [Otherwise,] we’re liable to get the opposite of what we want.

Pierce chimed in: “Exactly, we want to control our own destiny in the Bay Area.” Her stated determination to deny the General Assembly a chance to weigh in on the merger plan suggests that what Pierce means by “we” is MTC, not her presumed constituents, ABAG’s members, the cities and counties of the region.

Rumor has it that MTC actually has been lobbying California legislators around the merger planning process.

But what nobody has ever implied, much less asserted, is that MTC has been lobbying Sacramento to give ABAG the secure revenue stream that would enable the land use planning agency to do the work that SB 375 requires it to do: to carry out the land use end of Plan Bay Area, while MTC handles the transportation end. That action would greatly help to put ABAG on a sound financial footing and enable it to deal with MTC as an equal partner.

On April 7 I sent Spering an email:

You have repeatedly expressed concern about ABAG’s precarious finances. Some people have suggested that MTC and ABAG should appeal jointly to Sacramento and ask the state legislature to give ABAG the secure revenue stream that would enable the agency to do the land use planning for which SB 375 made it responsible. What do you think of such a course of action?

As of April 14, no reply.

Disparate sources have told me that the California legislature is not interested in backing up SB 375’s statutory demands of ABAG with state funds. Assuming that’s true, the Cortese-Pierce-Spering strategy makes sense: Count on the ABAG Administrative Committee and Executive Board to be as pliant in the future as they’ve been in the past; squelch the General Assembly; and railroad a merger option through the Joint Committee that effectively subsumes land use regional planning under MTC’s authority.

Unless the region’s cities and counties—especially the smaller and medium-sized cities, since the mayors of the big three, Oakland, San Francisco and San Jose, have already thrown in with MTC—show some gumption, get together, and take a stand, come June 1, they’re going allow themselves to be severely disenfranchised. The April 21 General Assembly offers a prime opportunity to start to fight back.

Note: If not for indefatigable videographer Ken Bukowski, I couldn’t have written this story or any of my other pieces about the ABAG-MTC fight. Ken attended and filmed them all the meetings mentioned above. His films are posted on his website, Bay Area Regional Videos (http://regional-video.com/category/mtc-abag-videos/). Thank you, Ken for doing a great public service.