On March 1, the terms of the MTA Board’s two longest-serving directors will end, and a convergence of factors could make their reappointment or replacement more closely scrutinized than any in the agency’s ten-year history. Adding to the uncertainty, one or both of the directors – Shirley Breyer Black and Rev. Dr. James McCray, Jr. – may actually be termed out of their seats, depending on how the City Attorney’s office interprets the City Charter.
With the MTA facing massive budget shortfalls in the coming years on top of a mid-year budget crisis, a progressive majority controlling the Board of Supervisors, and a Mayor in his final two years in office, transit advocates and many supervisors are looking for appointees who will be independent-minded and engaged members of the MTA Board.
"In general, I think that the MTA commission has not been examining all options available to the MTA in the context of our budget crisis," said Board of Supervisors President David Chiu. "I think it’s fair to say a majority of the Board of Supervisors believes we need commissioners who are independent enough to consider all options on the table."
For her part, Black is happy to continue serving, but hasn’t heard what the Mayor is planning. "No one has told me anything," she said last week.
That may in part be because the Mayor is waiting to hear from the City Attorney’s office on whether Black and McCray are eligible to serve additional terms. Proposition E, which created the MTA in 1999, set director term limits at three, but it’s not clear whether Black and McCray’s first terms counted, since both were shorter than the regular four years. Black was a member of the original MTA Board, which had staggered term lengths. Her first term, beginning in March 2000, was only two years long. McCray’s first term, which began in 2002, was barely a month long, since he filled in the end of another director’s term.
"Those are pending determinations made by the City Attorney’s office that will be part of the Mayor’s review of many upcoming Commission appointments," wrote mayoral spokesperson Tony Winnicker in an email.
"The Mayor is reviewing but has not yet made a decision on several dozen appointments to Boards and Commissions coming up soon, including these two important MTA appointments," said Winnicker.
The Mayor’s Transportation Agency
Though the MTA Board is ostensibly independent, in practice it answers first and foremost to the Mayor. Under the City Charter, the Mayor has authority over all MTA Board appointments, but supervisors can reject those picks by a majority vote – a lever of influence over the agency they’ve only exercised once.
This time around, the prospect of deep Muni service cuts and fare hikes has left the supervisors searching for options to wrangle more control over the MTA’s policies.
Supervisor David Campos has proposed a ballot measure that would give the supervisors power to nominate three of the MTA Board’s seven members. Campos has also requested an audit of the agency’s management, and Supervisor Ross Mirkarimi has vowed to use his new position as chair of the San Francisco County Transportation Authority to sway Muni by attaching more conditions to money it transfers to the MTA.
But the director appointment process could provide the supervisors with a more immediate opportunity to show constituents they’re not taking devastating Muni cuts sitting down.
"I’ll keep an open mind in terms of the reappointment of them," said Mirkarimi. "But I believe we need MTA commissioners that are not just parroting what Mayor Newsom wants, but what’s best for the MTA."
Grading the Directors
Transit advocates generally gave Black and McCray – who served as Board chairman from 2006 until last February – middling grades as directors. Black, a former SEIU president, "has been a solid pro-labor vote, but I don’t really feel like she’s engaged much on the budget or Transit First," said Tom Radulovich, Executive Director of Livable City and a BART director who is often the lone dissenting voice on that board.
Jason Henderson, a geography professor at San Francisco State University, had a similar take. "They don’t really seem to be pursuing the mandate to aggressively pursue creative and innovative ways to finance Muni."
Henderson, Radulovich and other transit advocates noted that criticism is applicable to most of the MTA Board and hardly limited to Black and McCray. "I always look at all of them and think, ‘You could be a bit more proactive,’" said Radulovich.
But could the upcoming appointment process be an opportunity to push for directors who are more independent and advocate aggressively for transit?
Dan Murphy, head of the MTA’s Citizens Advisory Council, declined to evaluate Black and McCray, but said the Board of Supervisors and advocates should closely scrutinize all MTA Board nominees.
Several transit advocates said they see the nomination process as an opportunity, but one that may only have a positive outcome if the Mayor is willing to try something bold. "Does the Mayor really want engaged, independent minds on that board?" asked Radulovich. "The answer from the evidence is no."
Still, Radulovich and Henderson both hoped the current crisis would propel the Mayor to consider candidates who are on the ball and engaged. "The calculus is different," said Henderson. "I actually think Newsom is capable of appointing some more outside-of-the-box people as a gesture, knowing with a wink and a nod that they’re not going to get very far."
"To be bold like that would be great, especially as he’s exiting out of office," said Mirkarimi. "It would really be inspired if he showed he’s making those less partisan decisions and being more visionary and innovative, working with people he may not necessarily agree with and looking toward the future."
An ‘Independent’ Board
As the nominations from the Mayor loom, independence has been a key concern for advocates and the Board of Supervisors.
"Certainly, in recent months there have been many questions raised about the role of the MTA commission in independently reviewing the critical policy decisions," said Chiu.
"They have to reflect independence and critical thinking, and that might mean departing from those who you’ve benefited from," said Mirkarimi. Supervisor John Avalos called independence "a key litmus test."
By most measures, none of the current directors would pass that test. Over the past five years, 94 percent of the votes the MTA Board has taken have been unanimous. By a rough count, only 35 of those 582 votes had dissenting directors, and directors almost always approved MTA staff proposals – many of which are vetted by the Mayor before reaching the Board. That tally only counts procedural calendar items as one vote total per meeting, though, of course, many of the items the Board votes on are not controversial, even among transit advocates. The more telling fact may be that the Board virtually never votes against the privately expressed wishes of the Mayor.
McCray has actually shown more independence than many of the directors, finding himself in the minority on 3.6 percent of votes taken in the past five years. Black has been in the minority just nine times in that period, concurring with the majority on 98.5 percent of votes, with many of her dissents coming on labor issues.
By a great margin, all of the MTA directors vote according to the Mayor’s wishes, especially on the most important matters, calling into question the notion of the Board’s independence. The great exception to that rule was the Mayor’s appointment of SFBC Executive Director Leah Shahum in 2006. But when the Mayor was reelected in 2008 and asked all commissioners to hand in their resignations, Shahum’s was among the three on the MTA Board he accepted.
A Greater Say for the Supervisors and Voters?
While the CAC’s Murphy thinks the need for independence is all the more reason for the supervisors to look closely at nominees, he’s leery of proposals to give the supervisors control over three Board members – or to let voters elect some of the members.
"I am really skeptical of the idea, ‘if we just figure the process for selecting the Board in just the right way, somehow we’re going to end up with good policy,’" said Murphy, citing elected transit boards for BART, AC Transit, and the Denver Regional Transit District that he said are deeply dysfunctional. "The answer is to elect a Mayor who’s committed to transit and who will appoint transit advocates to the Board."
Murphy also thinks the MTA Board has shown more willingness to make tough decisions – for better and worse – than the supervisors would be. "I think it’s absolutely insane" to consider changing the nomination process, said Murphy. "What we have seen so far is elected officials have been much more reluctant to raise parking prices than the MTA Board has."
Even if the Mayor does nominate independent-minded transit advocates to the Board, he’ll still have a five-to-two majority, assuming his other appointees remain loyal. (There is some evidence Director Bruce Oka may be asserting his own independence in light of the current budget crisis.) With increasing pressure to show he’s working to save Muni, and just two years left in office, the Mayor may not have that much to lose by appointing a visionary director.
"My expectations are low," said Radulovich. "But sometimes, if your expectations are low, you’ll be pleasantly surprised."
While expectations may be low, the stakes are higher than ever.
"In many ways, who’s in charge is [MTA Executive Director Nat Ford, a mayoral appointee] and senior staff," said Mirkarimi. "But the MTA commissioners are in an important position, and not one to be squandered."