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.

Train_won_t_stop_small.jpgFlickr 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

Sanchez___urban_suburban.jpgSource: 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:

Community-based groups that assist transportation agencies should be encouraged to improve outreach processes and strategies to identify culturally diverse groups and facilitate their involvement. Such efforts are greatly needed to support information dissemination about transportation and related land-use impacts. Mechanisms are needed that allow formal recognition of coalitions of community representatives on MPO advisory committees and decision-making boards.

"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.