The Fight for Independent Oversight
In 2018, a regional ballot measure in nine counties in the San Francisco area dedicated $500 million of $4.5 billion in increased bridge toll revenue for Bay Area Rapid Transit (BART) to purchase new rail cars. Wisely, State Senator Steve Glazer said he wouldn’t support the expenditure if there wasn’t oversight over BART, so he put language in the bill that stated “this bill would create the Independent Office of the BART Inspector General . . .”
It seems pretty clear to us what the word “independent” means, and we’ve been writing about the importance of independence of oversight bodies for years. But the sad tale of BART’s IG’s office is yet another example of the fight that many oversight bodies have had to wage for insularity from outside interference in their work.
California has an unusual civil grand jury system which empowers citizens to investigate all manner of issues, and the Alameda (County) Grand Jury wrote a few months ago that, “From the beginning . . .BART’s board, management and unions demonstrated an unwillingness to support an independent OIG and erected roadblocks to its function.” A number of well-respected individuals agree with the Grand Jury finding, including Ann-Marie Hogan, senior advisor for the Association of Local Government Auditors and Elaine Howle the well-respected, recently retired, California State Auditor.
The gist of the problem that Inspector General Harriet Richardson currently faces is the insistence on the part of BART’s management and its board that she must notify the unions to which BART employees belong anytime she does an investigation and notify anyone to whom she wants to speak for any purpose at all that they are entitled to union representation when the conversation is held. This is true in all cases, most of which have nothing whatsoever to do with the possibility of punitive action against the employee being interviewed.
In an effort to clarify the situation, in February, Glazer put forth a second piece of legislation which set about clarifying the IG’s roles and responsibilities. It stated that the IG “shall have the independence necessary to conduct all of its audits . . . independence includes being free from impairments from the district that may restrict the office’s ability to conduct independent and objective audits or investigations and issue reports based on the results.”
But the senator still encountered resistance to unshackling the IG. He “was not able to overcome the opposition of the district's labor unions,” according to a letter to the governor written by Howle.
The president of the Bay Area Rapid Transit district sent a letter to California Governor Gavin Newsom requesting that he veto the bill. He did so on September 28.
Why all the pushback? We can’t put ourselves into the minds of the members of the board and the management of BART to say for certain, but Hogan points out that “BART’s board members are elected, and they get contributions from the unions, and the same is true of the Governor.”
Though Richardson has refused to comply with management’s insistence that the union be brought into all her investigations, this whole issue seriously impairs her ability to fulfill her responsibilities. For one thing, according to Hogan, “if every single meeting potentially required waiting for a union rep to schedule a meeting, that would completely slow down the work of the IG.”
Complains Richardson, “We can’t complete investigations when employees aren’t free to just come and talk to us. There’s a lot of fear from employees because there’s fear of retaliation from their co-workers or management. They fear for their jobs.”
What’s more, as Howle wrote “Requiring the BART IG to notify the union essentially
deprives the employee the opportunity to determine whether he or she seeks representation. Furthermore, this could call into question the BART IG's independence and threaten the BART IG's credibility.”
That’s how things stand now. As for the future, “we continue to hope that we can get some legislation through in the future,” said Richardson. “Meanwhile, we just try to educate people about the appropriate role of the IG.”
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