To call the tenure of Harriet Richardson, BART’s top watchdog, rocky is perhaps a bit of an understatement. State lawmakers, civil grand juries and local editorial boards have called out the way her efforts to investigate fraud, waste and abuse at the agency were repeatedly stymied by the agency.
By most measures, Richardson is a pro. Prior to being appointed by Gov. Gavin Newsom as BART's first inspector general, where she was tasked with leading independent audits and investigations at the transit agency, she served as an auditor and watchdog for Palo Alto, San Francisco, Atlanta and Washington state. In fact—as she showed me in a recent meeting at her office in Downtown Oakland—she’s listed as an adviser for the U.S. Government Accountability Officer’s Yellow Book, which lays out the professional standards used to perform government audit reports.
But citing obstruction by BART management, board members and unions, Richardson announced that she would be ending her four-year term as Inspector General early on March 17.
Richardson provided documents that she said substantiate her claims of obstruction, including a charter for her office that was marked up by union attorneys and a highlighted list of areas that BART management contended was outside the scope of her authority. Richardson said those examples were part of a pattern of obstruction by the agency.
In an exit interview prior to her departure from the office, Richardson laid out how she was blocked from her duty to audit and investigate the agency, examples of infringement of her independence and what advice she has for her successor.
This interview has been lightly edited for length and clarity.
First off, what was the feeling like of putting in your notice, and what has been the response since then?
Harriet Richardson: I do feel some relief. I feel like a burden has been lifted off my shoulders.
As for the response? I saw in an article that Board President [Janice] Li has thanked me, and she made a spiel at the last board meeting saying the same. But she has not spoken to me directly.
On the opposite side, you have Directors [Debora] Allen, [Liz] Ames and [John] McPartland, who have all told me, "I am so sorry to see you go and sorry for the circumstances." I also had a short meeting with Director [Rebecca] Saltzman where she said, "Thank you for your service." I haven’t heard from the other directors.
Let’s go back to when you were appointed in 2019. What was your understanding of the situation internally at BART at the time?
When I applied for this job, one of the things I was asked to do was respond to some written questions. One of those was: What professional standards will you use to conduct investigations? I cited professional standards from the federal government.
So based on that, I thought that they understood that we have to follow professional standards and what those professional standards actually meant. They didn’t. I don't know why they asked the question if they didn't expect me to follow the standards I laid out.
Why are these professional standards important?
One of the things I’ve cited repeatedly is the independence standard, which specifically talks about threats to independence like undue influence. That refers to outside influences or pressure that can affect our ability to make objective judgments. If you have other people involved in your work, you can't make an objective judgment because you don't know that you're getting credible information.
When did you realize there was a disconnect between your role and responsibilities and BART’s idea of your job?
One of our mandates is to do audits. So I was setting off to do a risk assessment ahead of a performance audit, and we gave them a list of the areas we were going to focus on for it. They came back with the list highlighted all different colors saying what we could and couldn’t do. That was my first clue: They were saying you don’t have the authority to look into certain things, like looking for ways to achieve cost savings or increase revenue. But that’s exactly what a performance audit is.
One of BART’s responses to your claims of obstruction is that they have accepted around 90% of the inspector general’s recommendations. Is that accurate?
I would say that is accurate as far as numbers go. But when you look at the nature of the different recommendations, some of the ones they haven’t accepted are the more significant ones. Like in the conflict-of-interest case we presented last April, they did not agree to void the contract or claw back the funding. They agreed that they would update the codes of conduct to make it clearer in the procurement documents, which need to happen. But really, where's the stick?
Can you provide some context about the Office of the Inspector General charter?
Because of the risk assessment issue, they asked me to develop a protocol document for how we would work better together with BART management. A common way of doing that is a charter that more clearly lays out how things will work.
So I drafted something, and they passed it all around BART management to edit it. We accepted quite a few of their changes. Then we went to the audit committee, which recommended the charter for the full board for approval.
Meanwhile, we had a meeting with the union presidents to try to explain what our role is and how the independence standard works. I gave them a copy of the charter that was going to the full board, and I said please let me know if you have any questions or comments. I didn’t hear anything, but when we went to the full board for approval, the unions said, "We haven’t had any chance for input."
So when we had our next meeting with the unions, they came with their attorneys and they gave me a marked-up document that would have completely undermined our authority as an IG. They marked up things that didn’t even apply to them. So it ended up being this back and forth, and it was clear we were not going to get to an agreement. It sounded that the board plans to pick that back up, potentially eliminating the need for additional legislation.
Outside the interference you mentioned, have you had obstruction of your actual investigations?
One example was an investigation based off an allegation that BART staff may not have been following appropriate federal regulations on how you deal with toxic chemicals when you're cleaning graffiti and things like that. Our investigator, Jeff, wanted to talk to some employees to understand their process and how it worked.
He reached out through email and phone, and they wouldn’t respond. So he finally went down to the shop where they work, and someone opened the door. When Jeff said who he was, the person stepped in to make a phone call and came back out a few minutes later saying, “You have to arrange any meeting through the union president.”
I did not want to set that precedent, so we ended up writing in our report that the union obstructed completion of the investigation. The union president came to the meeting where we presented that and said we were being disingenuous. He brought one of those people to say, "I just want representation."
Let’s go to the representation of union workers. It was the issue cited by Gov. Newsom in his veto letter [for SB 1488, which would have expanded the inspector general’s powers], as well as in the letter sent by the BART board requesting a veto. How do you respond to their argument?
There are multiple reasons why the unions’ request for representation or notification in all meetings is inappropriate: It undermines an employee’s right to confidentiality, prevents us from keeping our investigations confidential as required by the Public Utilities Code, prevents us from complying with the independence standard and undermines the credibility of an investigation.
If you compel someone to meet, there are different rules because you usually do it when there’s some criminal aspect to the behavior. Under the federal Weingarten rules, it’s the employee’s obligation to ask for representation.
If someone says something that’s incriminating, you stop the interview and notify them that they said something that makes them a potential subject. Then they have the right at that point to say, "I want representation." Although we’re not required to, we use standard language in our requests to interview witnesses to investigations that notifies them of their rights under the law.
What has your limited budget stopped you from doing that’s part of your responsibility?
Audits typically take a much longer period of time, and we just haven’t been able to do that. We're supposed to be able to do audits that help find opportunities for improvement in the efficiency and effectiveness of budgets, which is really critical right now when they're facing a fiscal cliff and they need to find efficiency in operations.
There’s been pushback on SB 827, which would expand your office’s powers and create criminal penalties for obstruction. There’s a lot of provisions, but is there one aspect you think is most important in your ability to do your work?
Unlimited access to people and records. If you can't get that access, you can't do your work. One of the ironic things is that the previous general manager put out a document before she left reminding everyone that BART’s internal audit division has unlimited access to records. They won't approve of the same type of language for me. I think it's because they know that we're going to find the skeletons.
Do you have any advice or message for your successor in this role?
I think they have to stand their ground. They have to abide by their standards, the professional standards. And if BART is going to put pressure on them, the same kind of pressure they've put on me to give the unions what they want: Don't do it, but always comply with the law.
Kevin Truong can be reached at [email protected]