In late April the year-long power struggle between our region’s land use and transportation planning agencies, respectively the Association of Bay Area Governments and the Metropolitan Transportation Commission, boiled over into open confrontation, as city and county delegates to the ABAG General Assembly rebelled against the leaders of the two organizations, who are railroading ABAG’s hostile takeover by MTC via a rigged planning process.
In the process, the organizations moved to shift the power for regional planning away from the city councils and the boards of supervisors, setting the scene to make the Bay Area the only major metro region in the state that leaves critical land-use decisions in the hands of a state-chartered transportation agency and cuts the local government association largely out of the picture.
It’s more than a technical distinction: MTC, which would wind up with immensely expanded powers, has shown little or no interest in equity or the protection of economically vulnerable communities. It’s an unaccountable juggernaut that is poised to disrupt local planning policies with very little local input.
Here’s how this little-noticed but critical situation has come down:
- Monday, April 18, midday: The report from Management Partners, the consultants on merging the two organizations, comes out with a recommendation that guts ABAG: retain the ABAG Executive Board but fold all ABAG staff into MTC under MTC Executive Director Steve Heminger (Option 7 in the report)
Monday afternoon: ABAG President Julie Pierce emails an “Update on the ABAG/MTC Merger process” to “ABAG governing board and staff, local jurisdictions and stakeholders” stating that:
- At the ABAG Spring General Assembly on April 21, the merger consultants “will summarize their role…in the current merger discussions, take questions about the process, and make note of any comments from the audience”—a message that deviates from the meeting’s original posted agenda, which says that the consultants “will summarize the [merger] options”
- At its April 22 meeting, the MTC Planning/ABAG Administrative (Joint) Committee overseeing the merger planning process “will likely defer a final decision on the preferred option until MTC and ABAG’s respective governing boards can discuss this in May”
- On May 19 the ABAG Executive Board “will discuss and vote on option(s); after [4-6PM] Special GA to discuss options and inform ABAG Executive Board”
Thursday, April 21:
- Five members of the Assembly Select Committee on Regional Planning in the Bay Area (including Assemblymember Phil Ting) send the Joint Committee a letter recommending “a full consolidation of the two agencies with a new governance model” (Option 4)
- At ABAG’s Spring General Assembly:
- Pierce refuses to allow the merger consultants to present the merger options or their recommendations, sparking heated protest from General Assembly delegates.
- Novato Mayor Pat Eklund presents a petition signed by 19 city and three county delegates calling for a Special General Assembly on May 12 to discuss and vote on organizational options, including ones not offered by the consultants; and whether to repeal, ratify or modify the Administrative Committee’s October 28, 2015 approval of MTC Resolution 4210, which authorized the merger planning process
- Friday, April 22: Instead of deferring a decision on a merger plan, as per Pierce’s April 18 “Update,” the Joint Committee approves Option 7, with Eklund casting the sole No vote
Friday, April 29: ABAG Administrative Committee meeting:
- The committee schedules the Special General Assembly for Thursday, May 19, noon to 2:30 pm, MetroCenter, 101 Eighth Street, Oakland (across the street from the Lake Merritt BART station)
- ABAG Legal Counsel Kenneth Moy opines that as per ABAG’s bylaws, the General Assembly can only constrain future actions and thus lacks the authority to alter the Administrative Committee’s approval of Resolution 4210 and the merger planning process
- Speaking at public comment, former ABAG Executive Director Revan Tranter calls the committee’s approval of MTC Resolution 4210 “a disgrace” and presents a letter signed by himself and two other former ABAG executive directors, Henry Gardner and Eugene Leong, endorsing Option 4
The rebel cities and counties chose May 12 for a Special General Assembly, because they wanted action taken at that event to guide the ABAG Executive Board’s vote on a merger option at its next meeting on the evening of May 19. ABAG’s bylaws state that the “powers and functions of the General Assembly” include
Exercising as appropriate all of the powers of the Association as set forth in these Bylaws or the Agreement [that enabled ABAG’s creation]. 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 [Article VI.C.(1)];
Subject to any constraint or limitation imposed by the General Assembly, the Executive Board shall exercise all powers of the Association between meetings of the General Assembly [Article VII.A.(d)];
The Executive Board shall be responsible for carrying out policy decisions made by the General Assembly [Article VII.A.(e)].
MTC will vote on a merger option on May 25; the Joint Committee will do the same on May 27.
As stipulated by the resolution approved by MTC and the ABAG Administrative Committee (a subset of the agency’s Executive Board that is authorized to act when the larger body cannot) last fall, if the two agencies cannot agree on a merger option by June 1, MTC will seize ABAG’s land use planning staff and slash its customary $3.9 million annual grant to ABAG—leaving the land use planning agency financially and politically bankrupt.
What’s at stake: regional governance that’s democratic
ABAG is a Council of Governments, a voluntary association of cities and counties in the region. MTC is a state agency created by the California legislature. Neither organization is directly accountable to voters; each agency is governed by a board of appointees. But ABAG’s roots in local jurisdictions—the members of its Executive Board are appointed by each county’s mayors conference and board of supervisors; and its General Assembly includes a delegate from each Bay Area city and county—have no equivalent in MTC’s top-down administration.
There’s another big difference: money. MTC is rich, and ABAG is poor. MTC owes much of its wealth to its federal and state designation as the Bay Area’s Metropolitan Planning Organization. MPOs receive and allocate federal and state transportation funds. ABAG is supported by its members’ dues and grants, including the now-dubious MTC allocation.
MTC Executive Director Steve Heminger voiced his contempt for ABAG at the March 9 meeting of MTC’s Policy Advisory Council. MTC, he said, “is a regional agency. ABAG is an association of local governments. They are not a regional agency.” Heminger acknowledged that in the larger regions in the U.S., “very often the MPO is nested within the Council of Governments.” But “[t]he difficulty here,” he asserted, “is that the MPO is the larger thing, and the COG is the smaller thing; and it’s harder to nest a big thing in a small thing.”
This is nonsense. Heminger refers to these agencies as if they’re physical objects, when the proper referent is their status as public institutions. When it comes to public authority, size—in this case, the size of a budget and the number of staff—isn’t the top criterion. The prime consideration is democratic rule. By the democratic standard, MTC should be housed within ABAG, just as the MPO is housed within the COG in every other major metropolitan region in California.
One of the flagrant ironies of the current power struggle (it’s not the first such battle) is that since last summer, Metropolitan Transportation Commissioners, along with MTC’s most outspoken supporters—SPUR, the Bay Area Council, Greenbelt Alliance—have repeatedly lamented the fact that the Bay Area is the only region in California where regional land use and transportation planning occur in separate agencies. Never do these critics add that everywhere else in the state, the MPO is subordinate to the COG, or that, accordingly, MTC should be subordinate to ABAG.
A similar disregard vitiates the work of the merger consultants.
Management Partners’ pro-MTC bias: Where have all the COGs gone?
The merger consultants’ contract with ABAG and MTC phased their work, calling for preliminary research to be followed by an analysis and recommendation of organizational options. At the Joint Committee’s February 26 meeting, Management Partners staffers Dan Marks and Lynn Dantzker presented a 36-page overview of six other regional transportation and land use planning organizations in the U.S.: the Southern California Association of Governments, the San Diego Association of Governments, the Sacramento Area Council of Governments, the Chicago Metropolitan Agency for Planning, the Metropolitan Washington Council of Governments, and the Puget Sound Regional Council.
The consultants’ bias toward MTC is evident in their report’s opening description of the six organizations as the “Three Largest MPOs in California” and “Other Large MPOs in the United States” (p. 1). As indicated by the full names of five of these entities, they are not only Metropolitan Planning Organizations but also Councils of Governments. That’s true of the Chicago Metropolitan Agency for Planning as well.
What’s also true is that in every case the COG is in charge, insofar as it hires the staff, including the MPO staff and the executive director, and controls the budget. Everywhere but Chicago and Washington, the COG also determines policy for the entire agency. In Chicago, the COG makes recommendations to the MPO; the latter has the final say on transportation matters and usually follows the COG’s lead. In Washington, the MPO can and does act independently; as in Chicago, it serves as a committee of the COG.
Veiling the COGs’ supremacy, the February report states that “[i]t is common for the MPO to also serve as a regional council of government or its equivalent” (p. 4). That formulation implies a parity between the two entities that is at odds with reality. Likewise, the discussion of “Governance Structure” (p.5) never marks the MPOs’ subordinate status to the COGs.
Neither does Management Partners’ April “Options Analysis and Recommendation Report.” In fact, the report barely mentions COGs at all and never acknowledges their clout vis-à-vis MPOs. From the first paragraph of the report’s Executive Summary:
Unlike other major metropolitan areas in the country, when the federal government required that metropolitan areas create regional transportation planning agencies to better plan for and coordinate the distribution of federal transportation funds, the state legislature created a separate agency—the Metropolitan Transportation Commission (MTC)—to be the Bay Area’s Metropolitan Planning Organization (MPO). Elsewhere in California, the local Council of Governments (similar to ABAG) was designated the MPO, creating a single, unified regional planning agency for those regions. (p.1)
This is the last reference in the 100-page document to a COG. After that, the language gets even more cagey. “We want to emphasize that in at least two regions,” the consultants write at the end of the Executive Summary, “the MPOs retained a different governance structure, but both were under the umbrella of a larger organization,” i.e., a COG (p. 14.)
Most strikingly, the COGs’ “umbrella” function is nowhere evident in the place where you’d most expect to find it: Option 4, Create a New Regional Agency and Governance Model. Initially reviewing that option, Management Partners writes:
Our survey of other regions…found many options for creating a single agency. In Chicago and in Washington DC, the MPO remains a separate entity with its own governing board, but with a single staff organization. The MPO Board acts with policy guidance from the larger umbrella organization; and in one organization, the MPO Board is considered a committee of the umbrella agency. (p. 9)
Again, the umbrella agency is the unmentioned COG.
At the Joint Committee’s April 22 meeting, the consultants acknowledged Option 4’s merit. “If you were starting with a clean sheet of paper,” said project director Andy Belknap, “one could make an argument this might be the best way to go.” Option 4 entails “a model more in keeping with what we observe in other major metropolitan areas in the state of California.” His colleague Dan Marks added that Option 4 “would address the problems we identified.” The “stumbling block,” said Marks, is “ease of implementation.” Option 4 “would require state legislation and most importantly, agreement on a new government structure.” In Belknap’s words: “We are not starting with a clean sheet of paper…We have to be practical.”
Regrettably, nobody asked Belknap to specify what’s on the “dirty” sheet of paper. I assume it says: No way is MTC going to approve Option 4.
The prevarication gets worse in the report’s discussion of Option 7, the course of action recommended as fallback by the consultants and endorsed on April 22 by the Joint Committee: “Enter into a Contract between ABAG and MTC to Consolidate Staff Functions under One Executive Director, and Enter into an MOU to Pursue New Governance Options (Full Functional Consolidation).” Tellingly, the consultants omitted the word MTC from the name of this scheme. Even the accompanying chart fails to indicate that the “One Executive Director” would be the executive director of MTC. Instead it graphically depicts the ABAG and MTC organizations as equal.
The first direct indication that MTC would be taking over appears on page 77: “MTC would become the legal counsel for the ABAG JPA [Joint Powers Authority] as well as [for] its enterprise functions and [four] other JPAs…”
The dodginess peaks on page 80, where we read:
As an employee of MTC, the executive director would technically [i.e., legally] only report to one oversight body (in this instance the [Metropolitan Transportation] Commission). Nonetheless, Management Partners has seen many agencies where executive directors (and other chief executive officers) are responsible to meet and balance the interests of many competing stakeholders.
The consultants go on to imply that examples of such agencies include the regional planning organizations they surveyed:
In the Washington, DC and Chicago MPOs, regional agency executive directors have essentially two different governing boards whose interests they must address, and they have not indicated any significant issues in doing so. In other California major regional agencies, the executive directors must balance the MPO and COG policies, roles and responsibilities.
This verges on outright deception. To repeat, in every one of the regional agencies cited, “balanc[ing] the MPO and COG policies, and roles and responsibilities” notwithstanding, the executive director is hired by the COG, not, as implied here and as is explicit in Option 7, the MPO.
Why the runaround? At the Policy Advisory’s March 9 meeting, MTC Executive Director Steve Heminger noted that a full merger of the two agencies’ boards would require “going to Sacramento.” By contrast, “our idea on the table does not require a change in state law.”
Presumably, MTC’s “idea on the table” was either the appropriation of ABAG’s land use planners, as per Resolution 4210; or the souped-up version of that appropriation called Option 7: MTC grabs all of ABAG staff, but the two boards remain. However the ABAG Executive Board, having lost its authority to hire staff and control its budget, has become a mere shell.
“Mere shell” is my phrase. The most disconcerting passage in the “Options Analysis and Recommendations Report” may be the one where the consultants aver that under Option 7,
ABAG would maintain its autonomy and policy role through an annual (or more) contract with MTC that sets forth expectations, responsibilities, a work program and annual budget for carrying it out. (p. 80)
Putting it politely, this is a peculiar notion of institutional autonomy. But it jibes with the MTC “idea” articulated by MTC Executive Director Steve Heminger: just keep the two boards, and we don’t have to go to Sacramento, where, as Heminger told a visiting Florida MPO board in April, “we’re liable to get the opposite of what we want.”
Presumably Heminger was thinking of this passage in the Metropolitan Transportation Commission Act, the state legislation that enables MTC:
The commission shall merge with or otherwise join any multifunctional government organization, if it has transportation planning responsibilities, within one year of the creation of such an organization. (California Government Code 66522, Added by Stats. 1970, C. 891.
Option 7’s direction to “Enter into an MOU to Pursue New Governance Options (Full Functional Consolidation)” might seem to entail a trip to the state legislature. The operative word however is “Pursue,” as indicated by the report’s “Description” of Option 7:
Within a timeframe agreed upon, evaluate the existing governance structure [i.e. ABAG Executive Board remains, but all ABAG staff now work for MTC] for efficiency, effectiveness and transparency and decide whether to create a new regional governance model.” [emphasis added] (p. 76)
Addressing the Joint Committee on April 22, consultant Belknap suggested that Option 7 “has the advantage of being more incremental” than Management Partners’ top recommendation, Option 6, Execute a Contract between MTC and ABAG to Consolidate Planning Functions within MTC and Enter into an MOU Create a New Regional Agency and Governance Model. “Sometimes,” Belknap said, you have to crawl before you can walk.”
The question is, will the agencies remain in the state of arrested development entailed by Option 6, wherein ABAG crawls, and MTC struts?
Elected officials’ top concerns—local control, governance, and accountability—are sidelined
The consultants’ report and their recommendation for Option 7 look even more suspect when set beside the results of their elected official survey. Along with brief live presentations to the mayors’ conference of each county, between February 23 and March 11 Management Partners electronically canvassed elected officials in 111 Bay Area jurisdictions (101 cities, nine counties, and two transit agencies). They got responses from 86 cities, eight counties, and three transit board members; or 180 (about 30%) of the 610 elected officials whose views they solicited.
The survey was perfunctory. One mayor told me that the limited number of “characters” permitted in the online comment box made it impossible to say anything in depth. This form of “outreach” brings to mind the infantilizing kind of civic participation to which the rest of us are routinely subjected by planners and consultants. It’s no surprise that the comment box yielded the laundry list of “other concerns”—in this case, 134 of them—typically produced by such techniques.
But the survey of elected officials also generated clear-cut responses to the question “What concerns would you have if a new governance model for land use and transportation planning, and transportation coordination and financing was created”?
Hands-down, local control, governance, and accountability were the respondents’ top concerns.
Strikingly, none of those matters figure in “the three problems” that, Management Partners writes, “we believe the merger study should address”:
- Preparation of the region’s sustainable community strategy [Plan Bay Area] to reduce greenhouse gases is statutorily split between the two regional agencies.
- Two agencies responsible for regional land use and transportation planning and associated services and program are not formally linked by an integrated management, leadership, or policy structure.
- ABAG’s ongoing ability to implement its mission is compromised by a continued reliance on discretionary revenue that will challenge its fiscal sustainability over the long term.
Because Numbers 1 and 2 are variations on a single theme—the bifurcation of land use and transportation authority—there are really only two items on this list. In any case, these are the major problems as seen by MTC, not the region’s elected officials. Granted, MTC would like to suppress a discussion and resolution of the statutory split of authority. Just so, despite having acknowledged that split, the report declines to close it. On that issue, even the discussion of Option 4, Create a New Regional Agency and Governance Model, punts, as noted above.
The efficiency argument: bogus—and skewed toward MTC
Dodging the statutory hornet’s nest, Management Partners frames the bifurcated authority problem in terms of efficiency, a subject that barely registered as a top concern in the elected officials survey. Efficiency is however the subject on which MTC’s elected and appointed leadership have harped since last summer. The consultants fell into line, not only by assigning efficiency an importance at odds with the results of their elected officials survey, but also by defining efficiency in a way that masks gross inefficiencies in MTC’s recent history: As laid out in the “Options Analysis and Recommendation Report,” efficiency is all about avoiding disagreement through “streamlined” decision-making.
The report approvingly cites Heminger’s account of the difficulties that the bifurcation of land use and transportation planning authority created during the preparation of the first Plan Bay Area:
As noted by the MTC executive director in his September 18, 2015 memo to the Commission regarding PBA 2013: “we simply spent too much time arguing over matters ranging from high-level policy to low-level minutia [sic] because there was no ability to break ties other than by one agency bowing to the other’s point of view.”
In the consultants’ view, such a situation puts elected officials “in the difficult role of “’breaking ties’ when disputes arise[,] and project management is made exponentially more difficult.”
But tie-breaking and dispute-brokering are in the job description of every elected official and project manager—a condition that you’d expect these consultants in particular to grasp, given that they advertise their staff’s “practical experience in all local government operations” (Management Partners website). As ABAG Chief Economist Cynthia Kroll observed during public comment at the Joint Committee’s April 22 meeting:
The assumptions that the study was based on really just take comments from interested parties on the ineffectiveness and inefficiencies of trying to work together without understanding why some inefficiencies and conflicts might occur as part of the natural planning process. Those may well occur again at a single agency.
Inefficiencies and conflicts will certainly occur at a single agency, simply because such “bumps,” to borrow a phrase from Management Partners, are inherent in collaborative work.
They are also inherent in democratic policymaking and politics. To put it more strongly: dissent and debate are essential to political democracy. Stifle them, and you invite arbitrary rule. That’s where Option 7, with its “streamlining” of authority is heading us.
Neither Heminger nor anybody else at MTC has ever specified the conflicts between ABAG and MTC staff—not even disagreements over “high level policy”—that, they allege, arose during the preparation of Plan Bay Area 2013. Their reticence is notable, given the importance attributed to those disputes by MTC partisans and Management Partners alike. Whatever the disagreements, the plan was finished on time.
But Plan Bay Area did spawn one big fight over high level policy that became quite public: the disagreement between MTC and ABAG staff over whether key anti-displacement language that appeared in the original blueprint should be retained in Plan Bay Area 2017 (state law requires the plan to be updated every four years):
House 100% of the region’s projected growth by income level (very-low, low moderate, above-moderate) without displacing current low-income residents.
MTC staff wanted to cut that language; ABAG staff wanted to keep it.
The disagreement was tied to the resolution of the lawsuit that the Building Industry Association of Northern California filed against both agencies in August 2013 for not having counted in-commuters—people who drive into the region to work—as part of the region’s population and thus as residents who need to be housed. MTC staff wanted to replace the anti-displacement provision with language that accorded with the BIA position:
House 100% of the region’s projected growth by income level with no increase in in-commuters over the Plan baseline year.
The MTC/BIA position was supported by the chief lobby for our region’s biggest businesses, the Bay Area Council. Thanks to a vigorous campaign waged by the Six Wins for Equity Network, the anti-displacement policy will appear in Plan Bay Area 2017.
Suppose the organizational structure mandated by Option 7 had been in place last year: the ABAG Executive Board would remain and putatively control land use policy, but ABAG staff would have all been working for MTC. Most likely the disagreement over keeping anti-displacement language in Plan Bay Area would have been suppressed within MTC and never have come to light. What make this prospect even more likely is the fact that, unlike ABAG staff, MTC employees have no union representation.
If Option 7 is approved by the ABAG Executive Board and the Metropolitan Planning Commission, similarly momentous policy disputes are likely to be covered up, assuming they emerge at all within MTC. That’s because, as the fight over Plan Bay Area policy indicated, ABAG and MTC not only have “different missions, staffs and governing boards,” as the consultants’ April report states (p. 6); they also have different, not to say, opposed ideologies. That forecast should trouble anyone committed to democratic governance and social justice in the Bay Area.
What about (MTC’s gross) fiscal inefficiency?
There’s one kind of efficiency that democrats can unconditionally embrace, the kind that facilitates the prudent and equitable expenditure of public funds. In another striking oversight, this kind is ignored by Management Partners.
That disregard is to MTC’s great advantage, for it obscures the Bay Area’s transportation planning agency’s profligate history. To cite a few recent, egregious examples:
- In 2010 MTC lost $120 million in credit swaps (think “The Big Short”); it still has hundreds of millions of dollars of public funds invested in variable rate bonds.
- MTC’s tony new headquarters in San Francisco is 50% over budget, with a cost overrun of at least $80 million
- MTC has played a major role in the financial and logistical debacle of the new eastern span of the Bay Bridge
It’s easy to think that these huge missteps—all billed to the public—could have been avoided by a less “streamlined” internal decision-making process, one that involved substantial vetting of proposed investments and allocations by informed, outspoken observers. If the October 22, 2014 exchange between MTC CFO Brian Mayhew and the Commission regarding MTC’s 2013-14 Financing Plan is typical, the agency’s governing board is unwilling and perhaps unable to conduct such an assessment.
The April “Options Analysis and Recommendation Report” doesn’t so much as hint at MTC’s history of dereliction. On the contrary, readers are given the impression that the agency, which “annually programs and allocates roughly $1.5 billion in transportation revenues and is responsible for an over $8 billion debt portfolio” (p. 16), is, fiscally speaking, unimpeachable. Management Partners writes that, based on the third-party, six-year financial forecast (FY 2014-15 through FY 2021-22) that it was required to perform as part of the merger study, “[t]he fiscal outlook for MTC under both forecast scenarios [with and without the implementation of MTC Resolution 421] is sound and stable.” (p. 20)
By contrast, “ABAG’s financial fragility” is one of the report’s leitmotifs. Citing no dollar amounts, the consultants write:
ABAG’s budget is built on limited discretionary income and a reliance on grants, as well as its contract with MTC. With low reserves, it faces financial challenges that will need to be addressed regardless of the outcome of the merger study. Implementation of Resolution 4210 will compound the problem. (p. 20)
ABAG staff shrug off aspersions on their agency’s finances, noting that ABAG has survived on grants and functioned with low reserves for 55 years. At the Administrative Committee’s retreat in March, ABAG Executive Director Ezra Rapport maintained that “[a] grant-funded organization doesn’t have reserves.” Over the years, the agency has tacked, financially speaking, expanding and contracting its staff in accordance with its varying revenues.
But Rapport also said, “We absolutely need the MTC planning grant; if we don’t have that planning grant, we cannot continue.” In a published discussion of the financial impacts of transferring ABAG’s land use planners to MTC, as per Resolution 4210, ABAG staff put the onus on the transportation planning agency:
The only threat to ABAG’s continued financial stability would come from MTC abruptly discontinuing the funding for which they are committed under the financing agreement adopted in 2013.
In their April 29 letter to the ABAG Administrative Committee, former ABAG Executive Directors Tranter, Leong and Gardner stated that MTC’s funding of ABAG’s land use planners
dates virtually from MTC’s creation in 1971; because of it MTC could depend on the land-use planning it needed to qualify for federal funding.
Certainly, what precipitated the current crisis was MTC’s sudden, unilateral, and gratuitous abandonment of the interagency agreement, secured by a Memorandum of Understanding, that underwrote an annual $3.9 million grant from MTC to ABAG.
That said, the ABAG staff assessment of their agency’s financials seems unduly sanguine. A disquieting revelation emerged at the March retreat: When ABAG and MTC were sued by the Building Association over the Plan Bay Area, ABAG turned over its legal defense to MTC to avoid losing $200,000 from MTC’s planning grant. ABAG Legal Counsel Moy explained that a condition in the interagency agreement says that
if MTC and ABAG are both sued on a product that is jointly produced by both agencies,….either ABAG agrees to be jointly defended by MTC or by MTC’s legal counsel, or they will dock us $200,000.
The two agencies apparently disagreed over the terms of that defense, a dispute that carried over into the fight over the anti-displacement language in the updated Plan Bay Area.
The larger, crucial point is that, as Rapport put it, “we don’t have the reserves to withstand a shock” such as “major litigation.” For a good half-century, ABAG never faced such a shock. It’s the agency’s responsibility for the land use portion of Plan Bay Area, an obligation conferred by SB 375, the Sustainable Communities and Climate Protection Act of 2008, that rendered it vulnerable to such litigation. The law made the Metropolitan Planning Organization in each California region responsible for preparing a Sustainable Communities Strategy. In the Bay Area, where regional land use and transportation planning are uniquely split between two institutions, SB 375 explicitly assigned responsibility for land use planning in the Sustainable Communities Strategy, i.e., Plan Bay Area, to ABAG, and for transportation to MTC. But the state allocated no funds for any agency to carry out this new mission.
Having designated “ABAG’s financial fragility” as one of three problems that their study needed to address, why didn’t Management Partners lay out a course of action that would secure adequate funding for ABAG, apart from MTC, enabling ABAG to deal with MTC on an equal footing? Queried in January by Metropolitan Transportation Commissioner and Solano County Supervisor Jim Spering about just such a course of action, consultant Dantzker said that she and her colleagues were only preparing “a revenue and expenditures analysis.” As I wrote,
If the consultants aren’t going to chart realistic paths to financial independence for ABAG, why bother? Last fall, ABAG staff made it clear that if MTC withholds its $3.9 million, an allocation underwritten only by a Memorandum of Understanding between the two agencies, ABAG may well go bankrupt.
A merger implementation plan that doesn’t include provisions for ABAG’s financial security is unlikely to be approved by MTC, which means that “functional consolidation” would go forward in July. The absence of such provisions in the consultants’ work plan is notable, since MTC drafted the Request for Qualifications to which Management Partners responded. The RFQ says nothing about seeking ABAG’s financial independence.
Option 7 provides for ABAG’s financial security, but not its independence:
ABAG would maintain its autonomy and policy role through an annual (or more) contract with MTC that sets forth expectations, responsibilities, a work program and annual budget for carrying it out.
And given MTC’s history of bad faith, under Option 7 even the land use planning agency’s financial security seems dubious. Why would MTC be any more willing to honor a new contract than it was to honor the old MOU?
The Cooptation of ABAG President Julie Pierce
For all the attention they’re getting in real life and accordingly in this article, Management Partners and their recommendations are just accessories in this regional power struggle. The main actors are Bay Area officials, above all the members of the city councils and boards of supervisors, with leading roles played by MTC Chair, Santa Clara County Supervisor Dave Cortese; ABAG President, Clayton Councilmember Julie Pierce; and ABAG Administrative Committee member, Novato Mayor Pat Eklund.
Cortese has repeatedly stated that integrating the two agencies has been a longtime goal of his, one whose achievement he made a top priority when he became MTC chair in early 2015. His pursuit of that goal has been expedited by the presence of three or four MTC Commissioners on the ten-member ABAG Administrative Committee. When the Administrative Committee voted to approve MTC Resolution 4210 last October, its roster included four Commissioners: Solano County Supervisor Jim Spering, Alameda County Supervisor Scott Haggerty, Pierce, and Cortese. In other words, almost half the power committee of an organization threatened with a hostile takeover were members of the board of the agency threatening the takeover, including the head of the latter board.
The responsibility for this perturbing situation is mostly Pierce’s. She sits on the Metropolitan Transportation Commission courtesy of state law, which stipulates that the MTC board must include an ABAG representative. But the presence of the other Commissioners on the ABAG Administrative Committee is principally her doing. As per the ABAG bylaws, the president of the organization, subject to the advice and consent of the Executive Board, appoints committees. In January Pierce removed Spering from the ABAG Executive Board, from which the Administrative Committee membership is chosen, naming Palo Alto Vice Mayor Greg Scharff as his replacement. She left Cortese and Haggerty on.
As Cortese moved to bring ABAG under MTC’s sway, Pierce initially pushed back and then increasingly acted as his willing accomplice, often working with him covertly. Last July she revealed to the ABAG Executive Board that in what proved to be a futile effort to resolve differences between the two agencies, she had been meeting for three months with a secret ad hoc committee comprising Cortese, Haggerty, Spering, Napa County Supervisor Mark Luce (a member of the Administrative Committee) and herself.
At that point Pierce was publicly resistant to Cortese’s power play. She and Rapport issued a memo accusing MTC of effectively seeking to take over ABAG. But Pierce also rejected any broader involvement by her board or the General Assembly. “It’s not time to call out the troops yet,” she told ABAG’s Regional Policy Committee in August. “Let us,” i.e., the ad hoc committee and ABAG staff, “do the work and we’ll come back to you in September.”
In a memo dated August 13 Pierce critiqued Cortese’s proposal for MTC’s appropriation of ABAG’s land use planners, raising concerns that, if anything, are even more pertinent to Option 7, whereby MTC’s grabs all of ABAG’s staff. “It is unclear,” she wrote,
how staff appointed and paid by MTC, particularly the planning director, would continue to be responsive to ABAG—which would no longer have budget or line authority over them. This arrangement could create obstacles to ensuring the level of engagement and input required to produce a robust SCS or RHNA [Regional Housing Needs Allocation] that has the support of the ABAG Executive Board, which would ultimately remain responsible for adopting both but no longer have a direct relationship with staff.
Will ABAG’s reduced budget, authority, and staff be sufficient to sustain the current level of [city and county] membership, which provides $2 million in dues—and support ABAG’s remaining Council of Government activities?
Pierce also raised the unionization issue:
ABAG planners are part of SEIU and under a collective bargaining agreement, while MTC staff is not….How would the collective bargaining rights of ABAG planners be maintained by MTC under a consolidated department?
These are excellent questions. Unfortunately, after August Pierce stopped asking them.
Meanwhile, her insistence on going it alone in negotiations with Cortese has proved to be a fateful liability. When it comes to political maneuvering, the ABAG president is no match for the MTC chair. That became obvious in the early morning of October 28, when the Administrative Committee signed on to MTC Resolution 4210. As indicated by a transcript of key exchanges during that meeting, after briefly objecting to Cortese’s subterfuges, Pierce let him manipulate the group into unanimously endorsing the byzantine measure without providing a written copy of the text (he read it aloud).
By the time MTC convened at 10 am, Pierce was putting a happy face on the fiasco over which she had just presided, thanking Cortese for his
integrity and hard work during this past week for a resolution that puts us in a place where can walk together side by side and try to come up with a genuine plan for a merger that this time is going to work.
She’s proceeded in cheerleader mode ever since. Clearly she savors her working relationship with Cortese. At the April 21 General Assembly Pierce introduced the MTC chair as “a true partner” with whom she’s had “many hourlong conversations on the phone” and “text[s] back and forth on a regular basis.”
But Pierce does far more for Cortese than advertise his collegial credentials. She also uses her authority as ABAG president to run interference for him and stifle objections to the planning process entailed by Resolution 4210. At the Administrative Committee’s March retreat, she repeatedly stated that delegates to the April 21 General Assembly would only be allowed to comment on the merger options and recommendations in Management Partners’ April report, “even though it’s out there in paper in the [Joint Committee’s April 15] packet.” “Dialogue” with the consultants would be prohibited. Her rationale: “I do not want to pre-empt the work of the Joint Committee on the 22nd.”
In keeping with Pierce’s declared intention, the original agenda for the General Assembly, as of May 16 still posted online, called for this fifty-minute session:
11:10-noon: The Future of Regional Planning: a Presentation and Discussion
The session will examine the value and structure of Councils of Governments, such as ABAG, in the context of the discussion of the ABAG – MTC merger. The merger consultants, Management Partners, will summarize the options being considered to further the integration of regional planning functions. [emphasis added]
Councilmember Julie Pierce, ABAG President, City of Clayton
Supervisor Dave Cortese, MTC Commission Chair, County of Santa Clara
Jan Perkins, Senior Partner, Management Partners, merger study consultant
But on April 18, Pierce sent the “ABAG governing board and staff, local jurisdictions and stakeholders” an “Update on the ABAG/MTC Merger process” that further narrowed the General Assembly’s agenda by removing all mention of the options under consideration. The revised agenda said that the merger consultants would only “summarize their role as consultants to ABAG and MTC in the current merger discussions, take questions about the process, and make note of any comments from the audience.”
When she introduced Perkins at the General Assembly on April 21, Pierce told the delegates that the options and the consultants’ recommendations would be presented to the Joint Committee the next day, “so it’s not really appropriate for us to get into the details of what’s in those options today.” Perkins proceeded to devote her fifteen-minute PowerPoint presentation to process: she provided the names of the Joint Committee members, a “high-level overview” of Management Partners’ workplan, the kinds of “engagement” and “outreach” she and her colleagues conducted, the three problems they’d identified, the principles that guided their analysis, and the agenda for the Joint Committee’s April 22 deliberations.
When Perkins had concluded, Pierce invited questions. What she got was protest, starting with East Palo Alto Councilmember and General Assembly delegate Carlos Romero, who asked, in tones of disbelief, “Are you circumscribing the entire day to just process…or are we actually going to have an opportunity to reply to the seven options?”
Pierce replied: “We will only answer questions about process; we will not answer questions about the options, because those have not been presented to the Joint Committee yet. You may opine, because you’ve probably read the report, on those options, and those comments will be given to the Joint Committee.”
Romero: “I would say that by all means, ABAG should have another General Assembly meeting once [the Joint Committee] meeting occurs.”
Pierce: “That is absolutely the intent, Carlos, and I said that in my email earlier this week. I know that Pat’s passing around a petition calling for it. Frankly, the Admin Committee can call that meeting. We have every intention of allowing the ABAG delegates and all our agencies to have a much more complete discussion, once the report has officially been given to the Joint Committee, and you hear the feedback from the Joint Committee.”
Pat Eklund leads a rebellion at the ABAG General Assembly
The “Pat” to whom Pierce referred is Novato Mayor Pat Eklund. Since the fight between MTC and ABAG went public last summer, Eklund’s been the only member of the ABAG Administrative Committee to question Pierce’s furtive and peremptory executive style, to criticize the stacked nature of the merger planning process, and to call for deliberation on the future of the two agencies that is substantial and democratic:
- When Pierce revealed her participation in the secret ad hoc committee to the last July, it was Eklund who asked for the names of the other committee members, proposed convening the General Assembly, and suggested that ABAG ask state legislators to create an independent funding source for the agency.
- After Pierce capitulated to Cortese on Resolution 4210 at the Administrative Committee meeting in October, Eklund repeatedly objected to the brevity and shallowness of the discussion, only to be repeatedly squelched by Pierce. Eklund reluctantly went along with the rest of the committee and voted to approve the MTC measure.
- At the Joint Committee’s first meeting in January, where the consultants made their maiden appearance, Eklund accurately observed that the problem that they had ostensibly been hired to solve [for $275,000, split between the two agencies] had never been identified.
- During the Administrative Committee’s March retreat, it was Eklund who argued against a merger of ABAG and MTC and for a new organization modeled along the same lines as the regional planning bodies in the rest of California, in which the COG is also the MPO. “[T]he big issue,” she averred, “is governance,” to which Pierce replied: “It is, but that’s not this phase of the study, Pat.” Indeed it’s not, and that’s a big problem.
At the General Assembly’s April 21 meeting, Eklund came out swinging. After Pierce had replied to Romero, and without waiting for the ABAG president to call on her, Eklund rose and introduced herself to the crowd as the current Novato mayor and a past president of the League of California Cities. “I share Carlos’s concern that we’re only getting a presentation on the process,” she said. “It’s imperative that Jan just go through the options and just explain them,” because most delegates hadn’t a chance to read the report. “I’ve read the report three times, and each time, I got a little bit angrier.”
Pierce interrupted to say that the General Assembly had been scheduled before Management Partners had been hired, that it was “very unfortunate that this meeting is before [the report] is presented to the Joint Committee,” and that an “extra meeting” had been scheduled so that everyone could have a chance to read the report and comment in the future.
Undaunted, Eklund announced that she did have a petition that she’d prepared in accordance with ABAG bylaws that allow for fifteen cities and three counties to call for a special session of the General Assembly that would involve
- a full discussion of the alternative options developed by Management Partners and any other alternatives presented by General Assembly delegates;
- a vote of the General Assembly on any alternatives “and subsequent course of action for the ABAG Executive Board and staff”
- a vote to repeal, ratify or modify ABAG Resolution 1215, the endorsement of MTC Resolution 4210 that was adopted by the Administrative Committee on October 28
She concluded by asking Pierce to explain why Perkins couldn’t run through the alternatives.
Pierce shot back: “We actually told the Joint Committee we’re not going to do that, so if we’re going to change that—um, Dave?”
Cortese had come up onto the stage of the theater in the Oakland Museum where the General Assembly was meeting, and Pierce stepped aside to let him speak at the lectern.
Gesturing with his hand as if to ward off criticism, Cortese said, “I’m not running the General Assembly. My opportunity to do that was a few years ago” (when he was ABAG president). Noting that the Joint Committee’s meeting the next day was “a public, Brown Acted [sic]” event that everyone present was welcome to attend, he insisted that “[t]here’s no lack of public process or opportunity to be heard.” Then he echoed Pierce on the need to defer to the Joint Committee:
It would be pretty inappropriate to have Management Partners present to this body…after the agencies agreed that the Joint Committee is the place to properly notice that discussion and to properly notice that Management Partners would be walking through those options. They can be walked through as many times as anybody wants, starting tomorrow.
“And frankly,” Pierce interjected,
Management Partners is not prepared to make that presentation today, because the agreement with the Joint Committee was that it would be done at the Joint Committee,…and I’m not going to violate that trust of our colleagues on the MTC Planning Committee, because realistically, if the roles were reversed, how would you feel?
But the roles had already been reversed, albeit temporarily—by Pierce herself, who’d indicated on the original agenda for the General Assembly that the consultants would “summarize the options being considered.”
And properly so. After all, ABAG’s bylaws designate the General Assembly as the supreme authority in the Association of Bay Area Governments:
The Executive Board shall be responsible for carrying policy decisions made by the General Assembly.
There is of course nothing in those bylaws about the Joint Committee. What’s inappropriate is Cortese’s and Pierce’s deference to the Joint Committee—especially Pierce’s, given her office.
As Novato Councilmember Pam Drew, an ABAG delegate, speaking from the floor, told Pierce, “Your loyalty needs to be for ABAG.” If anyone had violated collegial trust, said Drew, it was MTC:
I would respectfully suggest that there’s been a breach of trust at the very beginning, when we had this time frame, where MTC has unilaterally reserved their funding of ABAG. Then we were given in October a six-month extension….This is bad faith…
Alameda Mayor Trish Spencer sounded the same theme. “I have serious concerns about the merger,” said Spencer. “This is our meeting. We should be talking about the most important issue that will be affecting our future, or we’re going to be losing it—it’s critical!”
Pierce and Cortese remained unmoved. Evoking a gauzy vision of “a united regional planning agency that works collaboratively on all of the issues that face our region,” the ABAG president conceded that ABAG was acting under duress—a condition, she asserted, that was salutary. “Yeah, we may have started this with a gun to our heads. But you know what? Sometimes it takes a poke with a stick to get people moving.”
The fix is in: Joint Committee approves Option 7
Pierce’s April 18 “Update on ABAG/MTC Merger process” stated that on April 22
Joint MTC Planning/ABAG Administrative Committee will discuss MP’s evaluation of options and recommendations, take public testimony and likely defer a final decision on the preferred option until MTC and ABAG’s respective governing boards can discuss this in May.
But the Joint Committee did not defer a final decision on the preferred option until after MTC’s and ABAG’ respective governing boards had weighed in. Instead, on April 22 it decided to recommend Option 7: Enter into a Contract between ABAG and MTC to Consolidate Staff Functions under One Executive Director[,] and Enter into an MOU to Pursue New Governance Options (full Functional Consolidation). The sole San Francisco official on the Joint Committee, Supervisor Eric Mar, who sits on the ABAG Administrative Committee, left before the vote.
Eklund cast the only No vote, after declaring her support for Option 4 and detailing her objections to Option 7:
- Transferring ABAG staff to MTC, it puts ABAG on a different, i.e., lower, level than MTC
- Doesn’t give ABAG an opportunity to vote on the executive director; “that’s not fair”
- Doesn’t guarantee that it’s ultimately going to result in a new regional agency
“My idea,” Eklund said, is that “no staff should be moved at all,” and that “we create a new organization: a COG that is also the MPO, just like every other region in the state.”
Her objections and proposal went unheeded, as did ABAG Chief Economist Cynthia Kroll’s recommendation for Option 4 and astute remarks about inefficiency and conflict being inherent in any planning process.
Though the meeting ran over three hours, Option 7 was the only alternative the committee delved into. Briefly reviewed in the consultants’ opening presentation, five of the other five options, ranging from No Structural Change to Create a Comprehensive Regional Agency [incorporating MTC, ABAG, the Bay Area Air Quality District, and the Bay Area Conservation and Development Agency] and Governance Model were thereafter simply ignored. Option 4 was briefly considered and then, after Belknap deemed it impractical, dismissed.
The committee members made sympathetic noises in response to the comments of ABAG union Vice-President James Muller. After thanking the consultants for having met “an impossible deadline,” Muller said he was “compelled to address the absence of critical components in this report”: ABAG employees’ “priorities and concerns.” He then laid out the union’s position:
- The union will not support any option that does not explicitly state that all ABAG employees will equitably transfer into a new, merged agency.
- The union will not support any option that puts our members’ programs, positions, or benefits at risk.
- Current ABAG statutory and non-statutory programs need to be assured of transfer, protection, and reasonable longevity under any merger scenario, with appropriate ABAG board oversight.
- The union must be included in future discussions and clearly identified as a primary stakeholder to be included in further development of any other options.
- Our representation is our voice. We demand that any further work address the union issue far more comprehensively.
None of these issues are addressed by Option 7. Nor were they directly addressed by the Joint Committee. There were only vague references to dealing with staff issues—in Cortese’s words, “position control”—before the June 1 deadline for resolving the merger crisis.
The April 22 meeting yielded a signal disclosure: Cortese revealed that it was he, not Management Partners, who was responsible for Option 7’s ambiguity about creating a new governance structure for regional planning in the Bay Area. “My input,” he said,
had been sought out [by the consultants] on how do you handle governance….The word “pursue” [Enter into an MOU to Pursue New Governance Options] is something I suggested….I don’t have any trepidation…or lack of resolve in looking at governance in going forward.
He then proceeded to voice a lack of resolve:
The first thing to look at under Option 7 is the road test: how well existing governments work under a unified management structure. We don’t know that….Option 7 leaves [the existing governments] in place temporarily, but I don’t necessarily see that as turfing the issue; I see that as an opportunity to work through that [governance] after we resolve the management structure.
Management Partners toed the MTC line and perpetuated the farcical claim that stripping ABAG of its budget and staff entails only a change in administration, not governance.
If MTC’s wholesale incorporation of ABAG’s staff and programs looks anything like the misbegotten scheme that Heminger proposed last fall for appropriating only ABAG’s land use planners, the forthcoming road trip is going to be a bumpy one indeed.
The fix is in, cont’d.: ABAG Administrative Committee closes ranks against the rebellion and usurps the General Assembly’s authority
On April 29, the Administrative Committee discussed its response to the petition that Eklund presented at the April 21 General Assembly.
The meeting was contentious. Near the start, ABAG Legal Counsel Kenneth Moy said that the petition did not meet the requirements of the bylaws to compel the Administrative Committee to call a special meeting at all. He cited Article VI.B.(3):
A special meeting [of the General Assembly] shall be called by the Executive Board upon written request of fifteen (15) Member cities and three (3) Member counties.
The signers of Eklund’s petitions were delegates to the General Assembly whose request for a special General Assembly had not been backed up by any city council or county board of supervisors. Nevertheless, Moy said, “As a matter of public policy, I would expect that the Executive Board or Administrative Committee should be responsive to whatever the petition calls for.”
His magnanimous spirit was short-lived. Moy went on to declare, “There is nothing [in the bylaws] to support the notion that the General Assembly has the ability to act in place of the Executive Board.”
Aiming to legitimate the petition’s call for a vote to repeal, ratify, or modify the Administrative Committee’s October 28 effective approval of MTC Resolution 4210, Eklund countered with Article VI.C.(3), which lists among the “powers and functions” of the General Assembly,
Any delegate may at any meeting of the General Assembly may request review by the General Assembly of any action of the Executive Board which has been taken between meetings of the General Assembly.
She also cited Article VII.A.(6)(d):
Subject to any constraint or limitation imposed by the General Assembly, the Executive Board shall exercise all powers of the Association between meetings of the General Assembly…”
Moy would have none of it. “The power of the General Assembly,” he opined, “is the power to constrain or limit the exercise of [the Executive Board’s] power. Once that power has been exercised, you can’t go back and unring the bell.
Unfortunately, Eklund did not cite either Article VI.C.(1), which states that the “power and functions” of the General Assembly include:
Exercising as appropriate all of the powers of the Association as set forth in these Bylaws or the Agreement [that enabled ABAG’s creation]. 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 [Article VI.C.(1)];
or Article VII.A.(6)(e), specifying the “Duties” of the Executive Board:
The Executive Board shall be responsible for carrying out policy decisions made by the General Assembly.
In my reading, these passages clearly give the General Assembly authority over the ABAG’s Executive Board.
At the Administrative Committee’s April 29 meeting, the reverse was held to be true.
Palo Vice-Mayor Greg Scharff articulated the majority view: “The exact wording [of the agenda] is really what we decide. That’s what I heard from Mr. Moy.”
Moy: “Yes, that’s correct.”
Pierce: “The way the staff originally worded the agenda gives us the freedom to do whatever we want at the General Assembly.”
Moy: “As long as it’s noticed properly under the Brown Act, that’s correct.”
Leaving aside the respective powers of the Executive Board and the General Assembly, Scharff urged removing any reference to Resolution 4210 from the Special General Assembly agenda, “so we don’t get expectations that can’t be met.”
Pierce concurred. “The thing we have to remember,” she said, “is that there’s a certain level of pragmatism that we have to bring to this meeting. The reality…is that MTC will not rescind 4210. They just won’t…They might suspend it, but they’re not going to rescind it. We have two choices: Option 7 and 4210. If ABAG acts on anything but Option 7, they will impose 4210.”
Cortese echoed Pierce: “The Commission is awaiting ABAG’s response to the Joint Committee’s recommendation on Option 7.”
Napa County Supervisor Mark Luce went further and advised limiting the discussion at the General Assembly to Option 7. So did Scharff, who held that “there are really no other options; the agenda should have one item on it: input on Option 7.”
Eklund pushed back, warning that “you’ll get a lot of cities upset with ABAG that they’re not going to get a full range of the options,” which “were not even presented at the last General Assembly.”
The committee never formally decided on an agenda for the Special General Assembly. Instead, Cortese moved “to delegate to the president authority to determine the final format of the agenda.” Scharff seconded the motion. It passed 7-1, with Eklund voting No. The group then voted to hold the meeting on May 19 from noon to 2:30 pm at a location to be decided.
The Brown Act requires only that a special meeting be noticed to each local newspaper of general circulation, radio, or television station that has in writing requested notice, and only 24 hours ahead of time. Given that since early January, only 48 hills has been covering the ABAG-MTC power struggle, it seems unlikely that any media have submitted such a request.
As the Administrative Committee prepared to adjourn, former ABAG Executive Director Revan Tranter submitted a letter signed by himself and two other former ABAG executive directors, Henry Gardner and Eugene Leong. Speaking for the letter’s signatories as well as a host of other former ABAG employees, the 82-year-old Tranter delivered a sharp reprimand to his listeners:
We are deeply distressed by the apparent callousness with which you will hand over a wonderful staff to another agency…, whether it be via 4210, which is a disgrace, or by another means, such as Option 7. The highest ranking was actually given to Option 4, quite deservedly. So whatever means it takes, whether it be the Executive Board or the General Assembly, we do not want to see the views clearly put forward in all the correspondence that was sent to ABAG…just tossed out the window because another agency wishes to make what has been called in the news media a hostile takeover.
The committee greeted his words with silence.
Tranter’s rebuke was spot-on. Whether sufficient means exist to prevent MTC’s hostile takeover of ABAG in the coming weeks depends on whether the cities and counties—but especially the cities, and above all the smaller and medium-sized municipalities—rally and demand accountability from their representatives to the Metropolitan Transportation Commission and to ABAG’s General Assembly and Executive Board.
MTC needs to put down the gun: suspend Resolution 4210 and endorse Option 4.
Failing these actions, at the end of May democratic governance in the Bay Area is going to take a big hit.
[Note: Most of the documents cited in this story are posted on the ABAG website under “ABAG-MTC Merger Reference Materials.” If you don’t see what you’re looking for right away, click under the subhead “Reference Materials” on “Archive.”
Thanks to videographer Ken Bukowski for filming for posting his videos of the meetings referenced above on his website, Bay Area Regional Videos.]