(The Seattle Times Sept 7th
headline concerning the latest actions by Attorney General Ferguson prompted
the following post.)
Att. Gen. Ferguson: Legally
Malfeasant?
Webster’s New World Dictionary
defines malfeasance: ”wrongdoing or misconduct, especially in handling public
affairs”. Attorney General
Ferguson’s office response to concerns regarding Sound Transit, Washington
State Department of Transportation, and others regarding implementation of light
rail for public transit would seem to qualify as “legally malfeasant”.
The first example is the role
Ferguson’s office played in convincing a federal judge to reject the “Freeman”
litigation objecting to Sound Transit confiscation of the I-90 Bridge center
roadway for light rail. He made
the following comment regarding the decision allowing Sound Transit to proceed.
The Department of Transportation
and Sound Transit developed an effective and fair partnership to upgrade and
address traffic issues on the I-90 floating bridge. This agreement respects the law and the Constitution while
addressing a critical need.
As detailed in the 9/23/13 post
Ferguson either didn’t bother to read the document his lawyers cited to justify
their claim to the judge or ignored the fact it stipulated the center roadway
lanes were still needed for vehicles even with the added R-8A outer roadway
lanes.
The second example is his office ignored concerns
Sound Transit was making a mockery of federal environmental laws requiring
light rail have a de
minimis impact on Mercer Slough Park. The 2/21/15 post detailed efforts to inform Ferguson’s
office Sound Transit and
the WSDOT in connivance with the State Environmental Protection Agency (SEPA)
were telling both the FHWA and the FTA light
rail noise would have no impact on the park while agreeing to spend millions to
shield property hundreds of feet away and across a major roadway from light
rail noise. Ferguson’s lack of response will allow East Link operation to end the quiet solitude of the
park.
His office’s most blatant
example of apparent “legal malfeasance” is their failure to require Sound
Transit comply with the Revised Code of Washington. RCW 81.104.100(2)(b) requires the following regarding
high capacity transit:
High-capacity
transportation system planning shall include a study of options to ensure that
an appropriate range of technologies and services are evaluated. The law
requires the study of a do-nothing option and a low capital cost option, along
with higher capital options that consider use of different technologies.
The 1/12/17
post details problems with Sound Transit’s “Expert Review Panel" (ERP) attempts to
show compliance. Their Sept 26, 2016
final report included the following item in the “Summary of Findings”.
Sound
Transit identified high-capacity transportation system options and studied an
appropriate range of services and technologies.
Sound
Transit CEO Rogoff used the ERP report at an October 27th Sound
Transit Board meeting to claim the following:
Sound
Transit has met its requirements for the required elements of a high-capacity
transportation system plan.
The 1/12/17
post and the subsequent 1/15/17 posts both pointed out the Sound Transit 2008
East Link DEIS failed to consider two-way BRT on the I-90 Bridge as a
“do-nothing or low-capital cost option” for the I-90 corridor. There’s
also very little indication Sound Transit ever considered BRT along
limited-access lanes as an HCT option for the I-5 corridor.
Those
concerns prompted the 1/20/17 post “complaint” to Att. Gen. Ferguson’s office
about the “apparent” failure to comply.
Their response, in the 1/25/17 post, was to refer the “complaint” as to whether
Sound Transit complied with RCW to Sound Transit. (Needless to say I was less
than “optimistic”)
The Sound
Transit Senior Legal Counsel’s response to the “complaint’, included in the
2/16/17 post, reflected a “different” approach.
Your assertion that Sound Transit’s failure to consider bus rapid
transit (BRT) use of the center roadway failed to meet the statutory
requirement outlined in 81.104.100(2](b) is misplaced. As noted above, the
cited statute does not apply to project level reviews.
In essence, the Sound
Transit Legal Council was saying not only did they not comply with RCW, they
had no requirement to comply; refuting Sound Transit CEO Rogoff’s October 27th
report to the Sound Transit Board they had complied.
“Doubts” concerning Rogoff’s
choice to believe his “Expert Review Panel” rather than his own Senior Legal
Council prompted a 2/18/17 P.S. letter to the 2/16/17 post. It asked the Attorney General if his office concurred with
the Sound Transit Senior Legal Council claim that East Link planning does not
need to comply with RCW regarding high capacity transit planning.
Ferguson’s office response in 3/13/17 post included the following:
… regarding Sound Transit, our office
does not advise or represent regional transit authorities, nor does our office
have the role of supervising or correcting the activities of such
authorities. Furthermore, I previously pointed out that we are not in a
position to provide legal advice or representation to private citizens.
The authority of our office may be found in RCW 43.10.030 and RCW 43.10.040.
The response raises the question as to "Who is responsible?" Attorney General Ferguson, who feels he has an obligation to "protect the rights of those trying to enter this country and those who are illegally here," apparently has no obligation to require Sound Transit comply with the Revised Code of Washington"
I’ll leave it to others to decide
whether his office’s “lack of concern” about Sound Transit policies reflects a desire for future campaign support from construction
companies and their labor unions that benefit from light rail
construction. (I noticed he's already joining Elizabeth Warren in asking for people to "chip in" for his campaign. (for what?))
Whatever the reason, his
office’s actions regarding Sound Transit policies surely qualify (at least to a
retired Boeing engineer) as “legal malfeasant”. Future voters, who will undoubtedly face increasing congestion despite the thousands of dollars they will have paid for ST3, will do well to remember Sound Transit was "aided and abetted" by Attorney General Ferguson, whether or not he was "legally malfeasant".