Att. Gen. Ferguson: Legally Malfeasant?

(The Seattle Times Sept 7^th 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 27^th 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 27^th 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".