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Lawmaker pushes criminal penalties for obstructing BART oversight as top watchdog quits

BART arrives at Powell Station in San Francisco, Calif., on Thursday, June 23rd, 2022. Juliana Yamada/The Standard

Battered by major ridership declines and regional problems around homelessness and substance abuse, BART is looking for relief in the form of state funding to stave off years of nine-figure deficits that could start as soon as 2025

But the $2.4 billion agency’s hope for a bailout is reviving focus on oversight of those funds—and its yearslong struggle with the Office of the Inspector General (OIG), an independent office charged with investigating cases of waste, fraud and abuse at the agency.

SB 827, introduced last month, would strengthen the powers of the OIG and create criminal penalties for obstructing inspector general investigations. 

Specifically, it would give the office statutory access to records and says anyone interfering with the office’s activities or failing to produce records could be subject to up to 6 months in jail or a $1,000 fine. SB 827 would help align the powers of the BART OIG to that of the existing inspector general for Caltrans.

California state Sen. Steve Glazer | Paul Chinn/The San Francisco Chronicle via Getty Images

The bill was authored by East Bay lawmaker Steve Glazer, who has made fiscal oversight over BART a priority going back to his time as the mayor of Orinda. 

Last week, Glazer resigned from the select committee formed by state Sen. Scott Wiener to drum up support for funding Bay Area transit, and accused BART of “bad faith and broken promises” in its attempts to get its house in order. He suggested that recent findings by the inspector general, which include conflict-of-interest violations and a $350,000 homelessness contract that resulted in one person receiving services, could be just the tip of the iceberg.   

“You look at what the inspector general has done, even with a lean operation and you see examples of fraud, conflict of interest and waste,” Glazer said. “For the most part, BART acknowledges all those mistakes, yet they don't want anyone looking over their shoulder.”

The BART Board of Directors has not yet taken a position on SB 827 and is scheduled to have a presentation on the legislation Thursday. 

Funding Trouble 

Glazer successfully pushed to include formation of the Office of the Inspector General as part of a 2018 ballot measure that provided billions in financing for local transportation agencies. Harriet Richardson was then appointed by Gov. Gavin Newsom to serve as BART’s first inspector general.

“Two things have happened since then. One is that it’s been underfunded, and two, BART has moved to limit the office from doing its work in a variety of ways,” Glazer said. 

An Alameda County civil grand jury report published in September found the office was “significantly underfunded and unable to fulfill its mission of uncovering waste, fraud and abuse.” It also found that BART made efforts to interfere with the OIG, tried to limit its independence and hampered the implementation of a charter for the office.   

The OIG has a $1 million annual budget funded through the Bay Area Toll Authority. Although BART has supported the office’s unsuccessful requests for more toll authority funding, the agency itself has refused to allocate any direct funding from its budget. 

As a point of comparison, the civil grand jury report cited data that showed BART’s OIG budget’s as sharply behind that of the Washington Metropolitan Area Transit Authority and LA Metro, both in absolute numbers and as a percentage of the operating budget.  

BART’s office has three full-time employees compared with more than 20 for LA's office and more than 40 for Washington, D.C.'s office. 

In its official response, BART said it disagreed fully or partially with all six findings in the civil grand jury report. BART contended that LA Metro and D.C.'s commuter rail offered a wider breadth of programs and have been under oversight because of previous deficiencies.

The agency argued that showing inspector general staff as a percentage of overall headcount would demonstrate BART lags behind peer agencies to a lesser extent.

Richardson argued that stronger enforcement of violations found by the OIG’s probes could help support their activities. She pointed to a recent conflict-of-interest investigation into employees-turned-contractors that led to the voiding of two contracts. But the agency decided against clawing back the $1.25 million in payments that have already gone out to the companies. 

"We've identified multiple instances that would have more than paid for our office if BART would recoup that money,” Richardson said. 

Richardson previously served as an auditor for Palo Alto, San Francisco, Berkeley, Atlanta and Washington state. She joked she’s used to not being the most popular person in the building, but said the level of obstruction she’s seen at BART is on a different level. 

"I've never had the challenges that I've had with BART in getting acceptance for our function, understanding what independence means and understanding that we are required to follow professional standards,” Richardson said. 

Bart Board Member Debora Allen, a major booster of the OIG's efforts, said she's seen evidence of obstruction firsthand.

"On multiple occasions, Ms. Richardson was insulted and bullied by a sitting board member, while behind closed doors others worked to openly discredit her work and derail her efforts to establish her office," Allen said.

Labor Pushback

In order to address what he saw as deficiencies in the OIG’s independence and structure, Glazer introduced SB 1488, which would have provided unfettered access to records, subpoena power to question individuals and independent legal counsel. 

Glazer said his staff worked to incorporate requested amendments from BART leadership around access to confidential data and other issues, but it still wasn’t enough to win their support. 

At the recommendation of General Manager Robert Powers, BART’s Board of Directors voted 6-3 to oppose SB 1488, leading to Gov. Newsom vetoing the bill. BART spokesperson Alicia Trost said the board opposed the measure over an amendment request “to notify employees of their right to have representation at meetings with the OIG.”

BART General Manager Bob Powers is interviewed on Feb. 21, 2023, in Oakland. | Paul Kuroda for The Standard | Source: Paul Kuroda for The Standard

Glazer said his bill received pushback from BART’s labor unions, who were backed by BART’s board and management in in efforts “to limit the independence of the Office of Inspector General investigations,” according to the civil grand jury report.

BART disagreed with that finding and wrote “the Board and management are neutral to the conditions of engagement between the labor unions and the OIG.”

Richardson said that notifications of investigations were a major sticking point between her office and labor groups. Union lawyers previously drew up a version of the inspector general charter that required 48 hours of notice for any interview with a union employee, regardless of subject matter.

"Some union representatives have said not to meet with the IG without representation. They've said that we interrogate and intimidate. They've instilled a fear in employees,” Richardson said.

Federal Weingarten Rights allow any union employee to have a representative present on request during an interview that the employee reasonably believes could lead to discipline. But according to Richardson, the notifications requested by labor leaders goes beyond those standards and hampers the ability to conduct independent probes. 

"Our concern is the right of our members to be represented in an investigation that may result in disciplinary action, a right established in our memorandum of understanding and enshrined in law,” John Arantes, chapter president of Service Employees International Union 1021, said in a statement. 

Representatives at American Federation of State, County & Municipal Employees 3993 and Amalgamated Transit Union 1555, two of the other major BART unions, did not respond to a request for comment.

Glazer said his contentious history trying to work with BART has meant that he is continuing to keep an eagle eye on the agency as it looks to scare up new funding to meet the reality of a changed Bay Area. And he said he will “actively oppose” any transit funding in the senate.   

“I’m going to continue to call out BART’s problems and deficiencies in the coming weeks, I’m not going to be quiet about it,” Glazer said. “I’m just getting started.”

But one person who won’t see whatever comes next for the OIG is Richardson herself. She gave notice to BART leadership last week that she is retiring more than two months prior to her term’s end date. Her last day is on March 17. 

Kevin Truong can be reached at kevin@sfstandard.com