Attorney General Rules on Incompatible Offices Question

Dec 3rd, 2010 | Posted by

Our focus all week has been on the decision about where to start building HSR in the Central Valley – but there was another important piece of news this week. The Attorney General’s office issued an opinion on the charge that Curt Pringle and Richard Katz held “incompatible offices” by virtue of their position on local transportation agency boards and the California High Speed Rail Authority board. The AG’s office held that these were, in fact, incompatible offices under state law, that technically their first office (the local transportation board) was forefeited when they accepted the CHSRA board position, but that a member of the public would have to file a quo warranto complaint to remove either member from the incompatible office. Here’s the opinion:

AG Incompatible Offices Opinion

So what does this mean in practice? Richard Katz already resigned from the CHSRA board, effective this past Wednesday. Curt Pringle did not run for re-election as mayor of Anaheim, so he will end his term on the OCTA board at the end of this month. My reading of this opinion is that Pringle would be able to continue serving on the CHSRA board if he chose – he did not attend yesterday’s board meeting – because the AG said that the first office – in Pringle’s case, the OCTA board – was forefeited and not the CHSRA board. Additionally, this does not appear to invalidate any decisions the CHSRA board made with either Pringle or Katz as members.

Of course, Pringle could choose to follow Katz and step down voluntarily. He has an incentive to do so – if he resigns before the end of the month, Arnold Schwarzenegger would be able to appoint his replacement, as he already will for Katz.

Personally, I do not believe Schwarzenegger should fill Katz’ vacancy, or a Pringle vacancy were one to arise. Arnold will be governor for less than a month – Californians elected Jerry Brown to be their new governor, and it is only right and sensible that Brown be able to fill any vacancies on the CHSRA board.

In a related story, anti-HSR reporter Tracy Wood at the Voice of OC site uncovered emails Pringle sent that were highly critical of HSR engineers:

California High-Speed Rail Authority Chairman Curt Pringle had no faith in the engineers responsible for designing and implementing the Anaheim-to-Los Angeles segment of the $43 billion statewide bullet train project, according to emails sent by Pringle in January that have been obtained by Voice of OC.

“I do not think that the engineers working on the Anaheim to LA segment are capable of doing the work,” Pringle wrote in a January 18 email to Mehdi Morshed, who at the time was chief executive of the Rail Authority.

“They seem to be so dense … they are not able of understanding the impacts of their words and actions. I sincerely do not know how they can work on a project of this size!”

The occasion for these emails was that engineers were not telling him what he wanted to hear about the location of the ARTIC station. The original plan was that HSR tracks would go over the 57 freeway. However, Caltrans ruled that out. A proposal to move ARTIC to the Angel Stadium parking lot was nixed by Pringle who predicted the Angels would cause a “whirlwind of anger.” So he proposed spending $200 million to tunnel the tracks to ARTIC – which upset anti-HSR Senator Alan Lowenthal and set a lot of this into motion.

In response, Morshed hinted at the “incompatible offices” issue:

The emails also raised a conflict-of-interest issue that the California Attorney General’s Office is expected to address soon. In his response to Pringle, Morshed began his email by writing, “in reading your email I had difficulty separating the message from the Mayor with that of the Chairman of the Authority.”

Interestingly, the emails also show that Pringle has been frustrated with the CHSRA’s public outreach, an area of constant criticism leveled at the Authority:

“I am preparing for the FIRST community meeting in my city on Wednesday,” Pringle wrote on Jan. 18. “How a project of this size could ever move this far without EVER talking to the public is inconceivable!”

Lots of people up and down the route would agree with this statement. Pringle told the Voice of OC that he felt outreach had improved, and let’s hope that the new members of the CHSRA board and CEO Roelof van Ark will make outreach a top priority.

Overall I’m not sure what this “incompatible offices” issue has accomplished. Some kind of reform of the CHSRA is probably going to happen anyway, and depending on the reform, it might be just what the project needs. However, instead of reform, we got a scandal that in the end may force two members off the board, but does nothing to actually improve project outreach or help get the project closer to completion.

  1. rafael
    Dec 3rd, 2010 at 07:52
    #1

    Integrate the HSR timetable with Amtrak and Metrolink such that no additional tracks are needed between LAUS and Anaheim (or, for that matter, Irvine) in the first place. If a dual track passenger-only infrastructure were implemented and operated efficiently, there would be plenty of aggregate capacity for all three services. BNSF has already indicated it’s prepared to study selling part of its right of way between Redondo Junction and Fullerton to help make that possible.

    Sure, there would need to be an FRA waiver for mixed traffic but after the Caltrain precedent that may no longer be an insurmountable obstacle. And yes, all the legacy operators would need to install in-cab equipment compatible with whatever PTC implementation CHSRA ends up with. They would also need to tweak their timetables, with knock-on effects on UPRR and possibly, BNSF operations. None of this is trivial, but it’s a lot cheaper than trying to build new tracks dedicated to HSR only.

    Keep in mind that PBQD is a for-profit corporation in the infrastructure planning and construction industry. Its interest lies in maximizing value for its shareholders, not taxpayers.

    BruceMcF Reply:

    Of course, tightening the capacity of the corridor gives additional justification for building ARTIC as a Pan-Galactic, since it pushes out the layover time that prudent planning would allow for at ARTIC. So there might be cement producers with a stake on that side of things.

    thatbruce Reply:

    Layovers don’t have to be at the service terminus, especially not when there’s a bit more line south of the site to park trains on while they’re being cleaned etc. Of course, if you’re going to go that course, better to continue the shared track operation down to Irvine, and use the gobs of available space there.

    Alon Levy Reply:

    Or just lay over for 10 minutes at a time, Shinkansen-style.

    adirondacker12800 Reply:

    or 12 Amtrak style.

    Alon Levy Reply:

    Where does Amtrak turn around at a terminal in 12 minutes?

    Brandon from San Diego Reply:

    There are soooo sooo many people that have a cursory experience with trains… and think they have some valuable insight into how to operate a train. I call it the Sarah Palin effect.

    Spokker Reply:

    I’ve seen it done at Union Station. Once a Surfliner arrived 15 minutes late and departed 5 minutes later in the other direction. I was on it and was surprised how quickly it turned.

    The other time I noticed a quick turn we had to stop at the maintenance facility to get fuel, haha. A fun trip, that one. I don’t know if the one thing had to do with the other.

    Spokker Reply:

    Here’s the video of it: http://www.youtube.com/watch?v=qpQLZ7zpyuc

    Alon Levy Reply:

    To clarify, does Amtrak do it at a terminal, or only at stations where it has to do a reverse move?

    jimsf Reply:

    Amtrak turns many trains quickly. It all depends on the schedule. They will also turn a train at any place that is necessary based on service disruption.

    jimsf Reply:

    Its been a while since I worked on board, and since I worked at SAC, but the capitol corridor trains, some of them come in and go right back out. It all depends on the schedule. ( this also happens at Oakland and San Jose)

    Most the equip is on and alternating Shcedule. The next departing consist leaves after the next arriving consist, but in some cases, the arriving consist is the one that goes right back out. Its worked out to make maximum use of limited trainsets as it relates to frequency, while at the same time, as it relates to how many trains they can run past sac to say auburn, or past oakland to San Jose.

    Then they have to figure in demand, ( how soon do they actually need another departure) and costs.
    They have to balance, how many trains sets they have, when and where the demand is, how much crew they have, and what the budget allows. There’s no, “we don’t turn trains quickly cuz amtrak doesn’t do that” that has anything to do with it. Its a matter of making the most out what little they have to work with.

    Alon Levy Reply:

    Okay, I checked the Keystone schedules (chosen because many but not too many trains terminate at one place, and the frequency is high), and the minimum turnaround time at Harrisburg is 20 minutes. It’s not as horrible as CAHSR’s planned 30-40 minutes, but it’s still not 10 or 12.

    jimsf Reply:

    But what does turning trains really have to do with anything. Just because train 001 dwells for 30 minutes at LAX doesn’t mean its 30 minutes before the next train departs for SF. They generally alternate. First in First out.

    jimsf Reply:

    it would look like this

    001 arrives at la from sf. at 1100am and becomes 004
    002 departs la for sf at 1115am
    003 arrives at la at 1115a and becomes 006
    004 departs at 1130am
    005 arrives at la at 1115a and becomes 008
    006 departs at 1145a

    15 minutes headways, 30 minutes dwells.

    you get an arrival and departure every 15 mintues, but the consists dwell for 30.

    Alon Levy Reply:

    The problem is that at some places (read: Transbay), track capacity is constrained, which means it’s best if trains dwell for as little as possible.

    jimsf Reply:

    Agreed. Personally I don’t ever see the need for more than one hsr and one caltrain departure every 15 minutes at the most. So with four hsr tracks there can be be one arriving, one departing and 2 sitting with no problem.

    The actual demand and actual skeds are impossible to predict. Itll be up to the operator, and the public demand. I know that ccjpa is responsive to demand. It was the constituents in placer county who made a fuss to sacramento about service, thats why trains go up to auburn. and more are on the way because the people who live up are ilobbying for it. SAme with more trains between okj and sjc. Its the public who is dictating what, where and when. I’d assume hsr will be the same.

    You never know what the public will want. We may be surprised by which cities lobby for more or less service.

    Amtrak also started running bus connections, and eventually will turn trains, midway at fresno due to central valley demand. So all we can do is wait and see.

    Any skeds that chsra posted in the past are just meaningless samples.

    adirondacker12800 Reply:

    Okay, I checked the Keystone schedules…

    Look in the middle. There’s a few trains that turn at 30th Street in ten minutes. 30th Street wasn’t designed as a terminal. Trains were expected to run through on the mainline of the NEC or to Suburban.

    I don’t ever see the need for more than one hsr and one caltrain departure every 15 minutes at the most.

    Caltrain already has 5 an hour at peak.

    jimsf Reply:

    “Caltrain already has 5 an hour at peak”

    yeh and thats enough. If they go at 500 515 530 545 600 615 630 645 700 and hsr goes at
    505 520 535 550 605
    and doubles in many cases as an express service taking the nonstop cal train pax. When in the next 100 years will we need more than that on the peninsula.. and area that… will not sustain much more in the way of population growth as too much of it is protected and anti development.

    I think that many trains would pretty much hold us over.

    adirondacker12800 Reply:

    I think that many trains would pretty much hold us over.

    What’s with this whole Interstate Highway system. Everyone gets where they need to go oin Federal and State highways. The buses going over the Bay Bridge get everybody to the Transbay Terminal. No need for BART. No need for more Caltrain or a few HSR trains an hour. And gas is always going to be a buck a gallon.

    Joey Reply:

    Jim:

    HSR, with a maximum of 2 stops between SF and SJ, is no replacement for a dedicated CalTrain express (which will probably make six stops between the two termini).

    And your argument about not needing any more in the future is flawed. Firstly, while the peninsula’s population growth will likely be smaller than other areas, it will not be zero. The pace of new development is relatively slow, but it will still happen to an extent. Secondly, and perhaps more importantly, you completely neglect the fact that CalTrain might, at some point in the future, divert some existing car trips (if all we cared about was existing riders, there would be no DTX, there would be no corridor improvement or longstanding electrification plan, etc).

    Now, that being said, CalTrain may never need to operate vastly more trains than it does today, assuming that it is operated efficiently (and that’s one hell of an assumption). 4TPH local + 2TPH express, with a midline cross platform transfer between the two (as Clem suggests), combined with platforms long enough to run longer trains at some point in the future (200m or 660′ would probably be sufficient and would allow for 8 cars), would probably be enough to meet any current or future demand.

    jimsf Reply:

    but what does any of that have to do with dwell and turn times. As long as there is enough equipment it doesn’t matter.

    Alon Levy Reply:

    Jim, the problem is that Caltrain and HSR both insist on dwells too long to accommodate all trains at Transbay; this would force most Caltrain trains to turn at 4th and King, far from the CBD.

    This also relates to the poorly designed Transbay throat, which forces Caltrain into a one-track bottleneck. If the throat were designed optimally, then a system like what you suggest would work even with relatively long dwells.

    AndyDuncan Reply:

    Freight traffic is high enough on that stretch that new tracks are already planned, even without HSR.

    rafael Reply:

    My understanding is that the most critical section is between the Hobart Yard (just south-east of Redondo Junction in LA) and Fullerton. BNSF owns the right of way there, apparently it’s mostly 100′ wide. For the most part, there are currently just two tracks supporting both freight and a limited number of Amtrak and Metrolink trains.

    The option CHSRA and BNSF are already studying would entail splitting this section of right of way such that there would room for three freight and two passenger tracks. The latter would be shared by HSR, Amtrak Pacific Surfliner and Metrolink’s Orange County line. Only Amtrak’s Southwest Chief and a small number of Metrolink 91 line trains would remain hosted on the freight tracks.

    StevieB Reply:

    This would require a waiver for shared use with HSR from the FRA which would not be applied for until after the option is selected. The alternative being studied is 5+2 HSR tracks for a total of 7 tracks with a right of way 160′ wide. There are enough difficulties in this section that it may be a leading contender for the last to complete environmental reports.

    rafael Reply:

    This is news to me, the whole point was to avoid having to widen the ROW. Indeed, PDF p3 of the executive summary of the supplemental AA for LA-Anaheim states:

    “[The Consolidated Shared-Track Alternative], which was developed after extensive coordination with corridor cities and agencies and the public, reduces the number of tracks required in the LOSSAN corridor to five in most sections by consolidating HST service with other passenger operators in the corridor. The proposed shared-track alternative envisions a dedicated passenger alignment composed of two mainline tracks largely within the existing BNSF right-of-way, along the San Bernardino Subdivision between Fullerton Junction and the Hobart Yard vicinity […]”

    There’s no mention here of a seven-track extravaganza. As for the FRA waiver, I expect CHSRA, Amtrak, Metrolink and BNSF will all expect the federal agency to provide a priori some guidance on the conditions subject to which a waiver would be considered. Chief among these would presumably be interoperable PTC implementation. Keep in mind that FRA is tasked not only with keeping rail traffic safe but also with promoting the growth of the industry, with HSR now an explicit objective.

    Risenmessiah Reply:

    There’s two separate issues here. One is the competition of HSR with Amtrak’s services, the other is the interplay of HSR with Metrolink. Simply put, costs notwithstaning all parties would love to have more capacity to the area between Hobart Yard and Fullerton. But who pays? If HSR pays, then Amtrak and the MTA get shafted….not to mention BNSF has to give its blessing. If BNSF pays, Amtrak and HSR would be fighting on deadly ground against the MTA. And if the MTA or CTC pays, Amtrak and HSR are waiting to get tossed a bone.

    Instead, what needs to happen is that MTA needs to figure out how to improve other rail options so that BNSF does not need to use the current ROW through Orange County to Colton. One solution would be to have the Feds seize the Alameda Corridor and the Highway 60 Line from Metrolink and create a separate freight only corridor to Colton. Then, continue Amtrak service on the line with Metrolink until a link with San Diego is complete. Then the only Amtrak train sharing the ROW would be the Southwest Chief. Metrolink could obviously fit a time in for them, and HSR could get a grade separated ROW.

    Elizabeth Reply:

    LA – Anaheim is basically dead. The costs of the rest of the system have escalated by as much as 80-100% from original estimates so add-ons like LA – Anaheim are really off the table. This is going to take some time to sink in, but the faster is does, the less money and time are wasted on things that are either not going to happen or are decades away.

    Alon Levy Reply:

    Actually 80-100%, or “as much as” 80-100% and as little as zero?

    Elizabeth Reply:

    Well, the 2008 biz plan had anaheim at $1.994 bn and the central valley at an average of $36 million/ mile, including stations, electrification, system elements and maintenance facilties. The segment they are doing is 54 miles @ $4.15 billion which is $77 million / mile before the cost of all those other things. Let’s just call it $90 million. Even option 2, which was the distance between Fresno and Bakersfield that specifically excluded all urbanized areas, was at $4.3 billion for 90 miles – was $48 million which we call $60 million after electrifcation and systems elements.

    Anaheim is now at $5 billion plus.

    These are the only two segments where costing has gone beyond the generic cost/ units method. From what I know of the SF – SJ region, there are similar increases in costs, even assuming aerials get shoved down everyone’s throats.

    The SJ to Wye segment had all-in costs/ mile of $43 million/ mile. This segment will have extensive tunneling and aerials. There is no way this comes in at half the cost of the Corcoran – Borden segment ($90 million).

    We will try and put this together in a report at some point, but these costs are why van Ark decided that the only way to deliver a $43 billion project is to have a project that drops Merced and gets as far as San Jose and San Fernando.

    Elizabeth Reply:

    Here is the link to the 2008 biz plan. Costs per mile on page 23 http://cahighspeedrail.ca.gov/WorkArea/DownloadAsset.aspx?id=6070

    morris brown Reply:

    Elizabeth do omit our home turf, the Peninsula, which is now in the 8 to 12 billion club using the Authority’s own numbers.

    Alon Levy Reply:

    With Anaheim it’s still up in the air whether there will be shared tracks or dedicated tracks. Under a dedicated track option, it’s completely unaffordable – they want to send the trains to the cathedral in a tunnel. But a shared-track option should be able to keep costs in check.

    Paulus Magnus Reply:

    I have to admit I don’t see any point to dedicated between LA and Anaheim/Irvine. It’s only going to be, what, 125 in that corridor, after all and not all that many trains per day. Could easily work out a deal where CAHSR takes the place of some of the current Metrolink trains to LA after all.

    Alon Levy Reply:

    Yep. That, or a deal where they institute a timed mid-line overtake. With both Metrolink and HSR on a 15- or 20-minute clockface schedule, and a top speed limited to about 100 mph, this could be achieved with less than perfect timetable adherence.

    adirondacker12800 Reply:

    What happens when 15 minute schedules aren’t enough?

    jimsf Reply:

    Deal with it the same way we do with freeways when they exceed capacity. We don’t build them for capacity 50 years out.

    Of course longer trains and bi level trains, increase capacity. I mean trains leaving every 15 minutes, 24 hours a day, with a thousand people on board each… when will that ever even happen?

    adirondacker12800 Reply:

    Deal with it the same way we do with freeways when they exceed capacity.

    Back in the 70s and 80s they’d build more freeway. They don’t do that much anymore.

    jimsf Reply:

    I was just in southern california last month, rest assured freeway construction continues. It actually never stops down there. They get everything. But thats in part because in most of norcal, and not just the bay, but the entire northern third of the state, there is a lot more opposition to it. You find some opposition in pockets down south, but overall, nothing like up here. Socal is in a perpetual state of freeway construction/widening/interchange upgrades/etc.

    Alon Levy Reply:

    HSR will need more than 4 tph between LA and Anaheim when the Automobile Ban Act passes. Metrolink could need more if LA expands its transit system, but even then it could be done on two tracks with four-track passing sidings at more stations. Based on Chuo Line schedules, I’d guess that it’s good at up to 16 tph for Metrolink.

    Risenmessiah Reply:

    This is a great apples to oranges comparison. I’m not sure where you are getting the $90 million per mile from since the 2008 business plan I believe separated the eletrification and some systemwide expenses from the captial costs broken down by segement.

    Even so, I estimated that Borden to Shafter combined is coming out at around $50 million a mile. That’s not so outragoeous given that they have to build an extra station, lay new track around Hanford, and develop connections to the BNSF per federal grant requirements.

    $90 million seems like an awful lot given these proposals that were voted on.

  2. YesonHSR
    Dec 3rd, 2010 at 08:57
    #2

    Well I dare say Gov Brown will be replacing him..

  3. Elizabeth
    Dec 3rd, 2010 at 09:15
    #3

    Point of clarification:

    Pringle was reappointed and re-sworn into OCTA after he was already on the board. He gave up his high speed rail post when he did that.

    I would say this whole issue has highlighted the importance of rethinking the governance structure. The conversation has changed from should we to when should we to how should we.

    Jack In Fresno Reply:

    So he held an incompatible office when he was originally appointed to the CHSRA board, which made his OCTA appoints invalid. Then he was reappointed to the OCTA which in-turn made his CHSRA appointment invalid??

    So he’s off both then?

    thatbruce Reply:

    He gave up his high speed rail post when he did that

    and I take the view that his reappointment to the OCTA board in January 2010 was a continuance of the incompatible first office, not the assumption of a second office.

    Elizabeth Reply:

    No. His term actually expired and he was appointed, complete with a new oath of office and everything.

    dfb Reply:

    I think this is a grey area.

    None of my research on the topic turned up a case similar to Pringle’s so a court would be looking at the issue for the first time. Or, at least none of the cases I read mentioned or discussed in any substantial detail whether a re-appointment altered the office the doctrine treated as resigned.

    That said, the cases all talk about offices rather than terms of those offices. For example, the lead case in California regarding incompatible offices is People ex rel. Chapman v. Rapsey, 16 Cal. 2d 636, 644 (California Supreme Court 1940). When discussing which office had been resigned as a result of holding incompatible offices, it said: “The rule is settled with unanimity that where an individual is an incumbent of a public office and, during such incumbency, is appointed or elected to another public office and enters upon the duties of the latter, the first office becomes at once vacant if the two are incompatible.” The person holding incompatible offices held those offices for more than ten years and I assume multiple terms in office, or re-appointments.

    It also appears any case in quo warranto will soon be moot. According to the California Supreme Court, “[a] proceeding for the removal of an officer cannot be maintained after the accused has ceased to hold his office.” People Ex Rel. Bagshaw v. Thompson, 55 Cal. App. 2d 147 (Cal. Court of Appeals 1942) (citing Thurston v. Clark, 107 Cal. 285 (California Supreme Court 1895). For that reason, it is unlikely any case against Pringle for holding incompatible offices can continue once Pringle’s terms end as mayor of Anaheim and on the OCTA board.

    Even if the case were to survive once the incompatible offices end, the only question for a court would be whether Pringle resigned his seat on CHSRA when he took an oath for his second term on the OCTA board. Although it is technically a re-appointment, Pringle really did just retain control over the same office and its duties and obligations. As I understand it, there was no break in time between his first and second terms on OCTA’s board. For that reason, I can see a strong argument as to why the OCTA board seat preceeded Pringle’s CHSRA board seat.

    In the end, I think it would be a waste of money to find out the answer.

  4. TomW
    Dec 3rd, 2010 at 09:36
    #4

    “I do not believe Schwarzenegger should fill Katz’ vacancy, or a Pringle vacancy were one to arise. Arnold will be governor for less than a month – Californians elected Jerry Brown to be their new governor, and it is only right and sensible that Brown be able to fill any vacancies on the CHSRA board.”
    ?!?!?!?
    Californians also elected Schwarzenegger to be their governor, to hold that office until January 3 2011, and to discharge all that office’s duties during that time. That includes filling any vacancies that arise.
    The fact that the governor is due to replaced “soon” does not mean he shouldn’t carry out his duties. If you follow that logic, then a governor culd never make any descsion, because a new governor is coming in less than eight years (guarenteed!).

    In short, Schwarzenegger is governor and should continue to do all that the job requires until January 3rd.

    BruceMcF Reply:

    If you follow that logic, then a governor culd never make any descsion, because a new governor is coming in less than eight years (guarenteed!).

    The period between the election and the inauguration of the Govern-elect is clearly a distinctive period, of transition between two administrations, and its entirely reasonable to suggest that a decision which might in any event take a couple of weeks to a couple of months be left to the incoming administration.

  5. thatbruce
    Dec 3rd, 2010 at 09:39
    #5

    Pringle told the Voice of OC that he felt outreach had improved, and let’s hope that the new members of the CHSRA board and CEO Roelof van Ark will make outreach a top priority.

    The CAHSRA needs to have staffing sufficient to have a dedicated outreach team for each region. This comes back to funding for staffing.

    Elizabeth Reply:

    There is a dedicated outsourced outreach team in each region. The problem is not money, it is structure.

    MGimbel Reply:

    Perhaps the Authority should study how outreach is accomplished with other transportation projects around the state.

  6. Elizabeth
    Dec 3rd, 2010 at 09:41
    #6

    http://www.calhsr.com/wp-content/uploads/2010/09/pringle2.bmp

    No one has a problem with Pringle’s response which is to just not show up and wait for the problem to go away? Recusing oneself is specifically NOT a remedy.

    Peter Reply:

    Why not? It has the same net effect as resigning.

    thatbruce Reply:

    Elizabeth is correct on the recusing not being a remedy point; Even though recusing onself has put you into the position of being unable to discharge your obligations as an office holder (for the issues that you’ve recused yourself for), you are still the office holder and in this case, subject to 1099.

    If I’m correct, Pringle is partially doing the right thing by recusing himself from the CAHSRA board until his (incompatible) term as Mayor of Anaheim is up at the end of the year, as it avoids any suggestion that he is taking (continued) advantage of the overlap, although explicitly resigning from his position as Mayor would have been better.

    If Elizabeth is correct, Pringle is doing the wrong thing by recusing himself from his (incompatible) seat on the CAHSRA board, and he should have followed the lead of Katz and resigned from the CAHSRA board.

    Either way and with or without a quo warranto complaint to explicitly force the issue, his further actions on the CAHSRA board may be viewed as tainted by some, and he may have in effect shot himself in the foot by not explicitly resigning from one of the positions.

    ( And likewise, it would have been even better for the problem to be resolved in some fashion when the CAHSRA received the first legal opinion back before CARRD and the press got hold of it )

    Peter Reply:

    Recusing oneself is not a legal remedy, that is correct. It is a practical remedy. This way he doesn’t have to resign from any of his offices, and can simply allow the clock to run out. The AG is not going to take any action in this respect if the issue is going to be mooted within the next month anyway.

    BruceMcF Reply:

    If a complaint would have to be brought, then a critical question would be whether a complaint can be filed and upheld in time to have effect. If the effort is to force a CHSRA board resignation so that the current Governor can fill the vacancy, the current Governor can eliminate the motivation by announcing that he will not move to fill vacancies on the CHSRA board in the balance of his term.

  7. peninsula
    Dec 3rd, 2010 at 14:22
    #7

    “IS A GOVERNMENTAL DECISION VALID IF IT WAS MADE BY AN OFFICIAL WHO HAD A CONFLICT OF INTEREST?

    A governmental decision is not automatically invalidated by the participation of an official who had a conflict of interest. However, it may be set aside by a court if the court determines that an official who made the decision had a conflict of interest, that without that official’s actions the decision would not have been made…

    So we have grounds for lawsuits, to throw out all the decisions made by the board while in conflict of interest position.

    jim Reply:

    IANAL but it would seem to me that the only situation where a quo warranto challenge to participation on the CHSRA board would be possible would be Pringle from January 2010 to now (any quo warranto challenge to Katz would be to his participation in SCRRA and any challenge to Pringle prior to January 2010 would be to his participation in OCTA), and so the only decisions which might be tainted are those made this year where Pringle’s was the deciding vote. Were there any such?

    peninsula Reply:

    Jim, as I understand it – quo warranto is just the remedy for getting him out of the position. The question is, does the public have to be shackled to all the impacts of influence exercised by those board members, while they served under the influence of conflict.

    What if a school board under the influence of conflict of interest had decided to close half the schools in the district and sell the land to developers, without a proper consideration of the alternatives. A forever life altering change for the entire community. And the community found out that the board members (one or more) were in position of conflict of interest when they made that decision. They manage to get confirmation that indeed the members were under the influence of a conflict of interest situation at the time of that decision, and get the school board members off the board – then are they still bound by those monumental decisions that board made. The community SURELY has the right to have those decisions revoked and redecided by a properly acting board.

    Peter Reply:

    You’re drawing up an extreme analogy here. I’m not sure that you can compare the conflict of interest on the CHSRA Board to the blatant self-dealing your example describes.

    Nathanael Reply:

    Beyond being a hyperbolic example, stuff like that has happened in various places, and the rule for land transfers is pretty much “Once it’s registered at the county clerk’s office, it can’t be revoked”. So in other words, even in your scenario, you’re wrong, they WOULD be stuck, only damages would be payable.

    dfb Reply:

    The two types of conflict of interest are dealt with separately by the law. California law explicitly allows transactions like in your example to be voided. In contrast, California law explicitly only provides for resignation of the first office when incompatible offices are held. We need to lobby our state legislators if we want a different outcome, such as voiding action by that incompatible office holder.

    dfb Reply:

    Almost forgot, compare Govt Code 1092 with 1099(b) http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=01001-02000&file=1090-1099

    Peter Reply:

    Do you have a cite to legal authority for that? I’m not doubting that it’s true, just curious.

  8. D. P. Lubic
    Dec 3rd, 2010 at 16:47
    #8
  9. D. P. Lubic
    Dec 3rd, 2010 at 17:07
    #9

    I’ve recently been reviewing some e-mail exchanges, mostly to transfer them from one system to another. I thought this one might be of some interest here, even if somewhat off-topic; “Jack” is the friend I have mentioned with whom I have discussed coast-to-coast overnight service, and who has restored one railway station and is working on a second one now:

    “Jack, Yes, all you wrote is true, but “WE LIKE IT THIS WAY!”.

    We won’t run out of oil before the next general election, so, What, me worry?

    Alfred E. Newman.”

    “Bill:”

    This story is well known to transport historians like me, and various others. The 1935 act in question was the PUHCA, or Public Utilities Holding Company Act–a ploy cooked up by the conspiracy’s allies in Congress, without doubt–and it was brutally effective. PUHCA was actually repealed a few years ago in the Cheney (aka Bush) administration–it had served its purpose, and was no longer needed….

    Americans don’t like hearing that they have been governed by crime, but it is undeniably true (Eisenhower sold himself to the oil companies–true beyind the shadow of a doubt). And the effects are still present in the fact that oil has never been properly regulated or taxed in the USA (unlike Europe–and the differences are obvious).

    What GM, Firestone, Std. Oil, Phillips Petroleum and Mack Truck did was form a ‘business alliance’–in Japan, this is called a Keiretsu….

    We now have to fix it, and tax oil correctly and control its uses by regulation. Perhaps nationalize the oil companies as a way to change things permanently?

    “Jack”

    Subject: Found: The Great Transportation Conspiracy
    Importance: High

    See link to article below….

    As we ponder the removal of urban rail transit systems that anchored walkable neighborhoods, the abandonment and destruction of many U.S. cities over the past 50 years, the isolation of the urban poor, the nation’s immobilized elderly population, the creation of sprawling car-dependent suburbia where transit cannot effectively serve or survive, our depletion of our once-world leading domestic oil reserves and thus ever-worsening dependence on imported oil, as well as dangerously high carbon emissions, consider these issues in the context of the eye-opening Harper’s article by Jonathan Kwitney from February, 1981, “The Great Transportation Conspiracy.”

    The article, scanned column by colum, was uploaded to a friend’s web site as a series of JPGs displayed by an html file. A text search won’t stumble across it; one has to know where to look. Well here it is:

    http://robertpence.com/streetcars/streetcars.html

    From time to time, interviews and articles surface where some current or retired transit official claims it never happened. That’s not too suprising, considering that when Kwitney researched his article he found “no more than three” such people who claiimed to have any knowledge of the events. Probably a lot of former execs and employees from that era had already died off, and I speculate that some who denied any knowledge were trying to conceal their own complicity.

    Kwitney presents such a thorougly-researched, detailed narrative that it’s pretty hard to believe the claims of those who deny it ever happened.

    KJP

    D. P. Lubic Reply:

    Oh, I should mention, this e-mail exchange is in what I call “archeological order,” the newest message is at the top, and the original in this thread is at the bottom. And the real thing to check is that link, with some details on the National City Lines case.

    My favorite line from that article is that the participants in National City Lines “did not trust the market.”

    thatbruce Reply:

    A: Top to bottom.
    Q: Which way is easiest to read a transcript of a conversation?

  10. D. P. Lubic
    Dec 3rd, 2010 at 18:34
    #10

    Was looking for something else, and stumbled onto this. Off-topic again, but perhaps of interest.

    http://www.foxnews.com/politics/2010/12/03/energy-analysts-oil-prices-rising-high-barrel-end/

  11. Peter
    Dec 3rd, 2010 at 19:36
    #11

    OT: I bet Spain is VERY happy right now that they invested in HSR – Spain military takes over air traffic control after controllers stage massive sick-out.

  12. D. P. Lubic
    Dec 3rd, 2010 at 19:45
    #12

    NARP weekly newsletter, a couple of California topics and the firearm issue are in it.

    http://www.narprail.org/cms/index.php/hotline/more/hotline_683/

  13. jimsf
    Dec 4th, 2010 at 09:15
    #13

    I just can’t excited about this topic. Who cares. This is just inside politics that has nothing to do with getting hsr built.

    Risenmessiah Reply:

    It’s that an oxymoron? Wouldn’t inside politics have everything to do with getting HSR built?

    jimsf Reply:

    Well its a necessary evil, but not the focus. Getting hsr built is about getting people to work and getting the damn thing built. These little media side should be handled behind closed doors without airing every little piece of dirty laundry in the public square. Whatever happened to the america that could get things done? It has been replaced by whiney sissies.

    Risenmessiah Reply:

    No, I agree…but the Board composition is going to matter going forward. Arnold provided that you can ensure stalemate by appointing people who don’t want to get anything done.

    jimsf Reply:

    well the board should consist of people who’s goal it is to get this done as quickly as possible. So if that’s not what they are doing. Fire them.

  14. dfb
    Dec 5th, 2010 at 03:53
    #14

    “I’m not sure what this “incompatible offices” issue has accomplished.”

    A win-win. It caused Richard Katz to pick the office he preferred to hold and resign the other incompatible office, thus eliminating his violations of Government Code 1099. CHSRA now has a cheerleader in Metro’s board that it can count on, while L.A. County has a director of Metro it knows will not have to choose between local or statewide interests that compete. It also avoided a showdown in court. :-)

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