Time now to make Sound Transit Board of Directors an elected body

October 26, 2012

In light of the recent performance audit on Sound Transit by the State Auditor's Office, its a good time to review WPC's recommendation of making Sound Transit board of directors an elected body.

Do you know who runs Sound Transit?

Sound Transit officials spend about $1 million per day in public money, yet their leadership is not accountable to the public because they are not directly elected to their positions. They are appointed.

Sound Transit is led by an 18-member board of directors. They include local and state officials and, with the exception of the Washington State Department of Transportation Secretary, they are all elected to offices from other local governments like cities and counties.

State law dictates how Sound Transit’s positions are filled. According to Sound Transit, “The Board includes three members from Snohomish County, 10 from King County, four from Pierce County and the State Transportation Department secretary.”

Just like any other legislative body, the Sound Transit board meets regularly, they are subject to transparency and open meeting laws, they have tax authority and they make policy and budget decisions for the agency.

While residents living in the Sound Transit district are taxed, as voters they cannot collectively choose who serves on the Sound Transit board, nor can the public hold anyone at Sound Transit accountable when bad decisions are made.

Washington Policy Center recently asked the State Auditor’s Office (SAO) to investigate Sound Transit officials because of Sound Transit’s failure to deliver on the promises made to voters in the last election. For example, two years ago, Sound Transit asked voters to expand its regional public transportation system (ST2). During the election, Sound Transit officials told voters the expanded rail portion (137 miles of light rail and commuter rail) would carry 310,000 passenger trips per day by 2030.

Voters agreed and raised sales taxes within the Sound Transit district.

Then the Puget Sound Regional Council (PSRC) estimated just two years later that passenger rail would only carry about 164,000 trips per day, half of what Sound Transit officials told voters.

Yet Sound Transit officials keep their higher tax authority and voters are effectively disenfranchised under the current system because they cannot hold anyone accountable by voting them out of office.

There is probably no better example of how Sound Transit’s governance deprives voters of representation than with what is happening in Federal Way.

Sound Transit officials promised voters in the 2008 ballot measure that light rail would expand from the airport to Federal Way. Earlier this year however, the Sound Transit board decided on its own to scrap the Federal Way extension. Sound Transit notified city officials that light rail would only reach Federal Way if voters approved a third phase and another tax increase. Federal Way Mayor Skip Priest estimates his citizens already pay about $13.5 million per year in Sound Transit taxes but they are not receiving what they were promised.

While the SAO audit can shine much-needed light on how officials at Sound Transit continue to overpromise the benefits of their system, there is nothing anyone can do about it.

Currently, no one from Federal Way serves on the Sound Transit board, and the only board members who presumably represent their interests are King County Executive Dow Constantine and Councilmember Pete von Reichbauer. While they face voters every four years in their respective King County races, their decisions on outside boards and commissions are generally insulated from scrutiny in isolated, local elections.

Sound Transit officials claim they are held accountable through an “independent” and “external” Citizen’s Oversight Panel, but with a process befitting Sound Transit’s long history of indifference toward true responsibility, panel members are selected by Sound Transit’s own board of directors.

The public essentially has no oversight and this insulation effectively shifts the power from voters to Sound Transit’s central administrative staff, who have an unequivocal incentive to grow the agency, brush off public criticisms and ignore outside, independent recommendations such as those made by the State Auditor.

Another problem with Sound Transit’s current governance is that it creates conflicts of interest among the agency’s board members.

The King County Executive oversees the largest transit agency in the state, King County Metro. But with a position on the Sound Transit board, the Executive also represents Sound Transit’s light rail agenda. This presents a conflict of interest because the current light rail alignment has taken over many of Metro’s most productive and efficient bus routes. In fact, officials estimate that two-thirds of the ridership on light rail is siphoned away from the existing bus system.

Integrating light rail among current transit systems is important but the idea that an agency has to give up its best performing routes to do it should be rejected.

Furthermore, the Executive is on both sides of the table when negotiating the contracts that govern how Metro operates Sound Transit’s light rail system. It is impossible for the Executive to objectively represent the interests of both agencies without compromising one over the other.

Sound Transit officials spend billions of dollars in public taxes, continuously overpromise benefits and underestimate costs, unilaterally change the scope of their promises without a public vote, produce conflicts of interest among their unelected board of directors, and operate with no true oversight or public accountability.

There is a solution however.

State lawmakers could change the governance of Sound Transit from an appointed board to one that is directly elected.

Direct elections create accountability for Sound Transit officials by shifting the power back to citizens and taxpayers. Residents within the Sound Transit district would gain much-needed oversight of an agency that has shown a pattern of disrespect toward voters.

Voters would finally be able to reward good decisions, or punish those who make bad ones, through regular elections.

Direct elections also allow the public to serve on the Sound Transit board of directors. Under the current system, unless you are an elected official from one of a select list of preapproved local governments or the Secretary of the Washington State Department of Transportation, you cannot serve on the Sound Transit board.

Allowing citizens to run for positions on an open and directly elected Sound Transit board would ensure real oversight, provide accountability and create a more collaborative approach to future decisions.


Sound Transit's structure is unconstitutional

Our state legislature violated a limit on its powers the 14th Amendment to the US Constitution imposes when it created the Sound Transit enabling statutes.

Just two years after old-Metro was struck down because its structure violated our rights as American voters the lawmakers in Olympia were back at it. In 1992 they created Sound Transit’s unprecedented enabling legislation. Again they disregarded a clear legal limit established by the US Supreme Court in a 14th Amendment opinion. They seem compelled to disregard what the federal constitution demands in terms of voters’ rights.

Sound Transit is unique creature. Its main enabling legislation is Ch. 81.112 RCW. The reason that unit of government has an unlawful structure is because the state legislature failed to abide by a fundamental limit the US Constitution imposes on its powers: states are prohibited from creating municipalities with appointive boards that can set new local laws of general applicability.

There is a US Supreme Court opinion that addresses this issue: the 1967 _Sailors v. Kent Bd. of Education_ opinion. It is the controlling legal authority in this area, and our state legislature simply ignored it when adopting the regional transit authority enabling statutes.

_Sailors v. Kent Bd. of Education_ says Americans have a right to vote for and against the individuals who would serve on local units of government that can set policies of general applicability. That is because the 14th Amendment prohibits the creation and existence of local appointive boards with powers that are “legislative in the classical sense”. Sound Transit has such an unconstitutional structure, in spades.

Everybody understands the reasons why Washington’s regional transit authority statutes violate the federal constitution, right? The 1967 _Sailors v. Kent Bd. of Education_ opinion is the controlling law, and it provides the relevant legal standard. Unlike here, most state legislatures don’t violate this provision of the federal constitution.

There are not a lot of appellate court opinions addressing this limit on the power of states when it comes to establishing municipalities. In 1997 Vermont’s supreme court addressed one of these claims. It did a fine job of setting out the correct legal standard and analyzing the issue:


The regional planning unit of government at issue in that case had powers that were sufficiently narrow, so Vermont’s legislature did not violate the federal constitution by creating it.

The analytic approach that court used pertains here. For Sound Transit to conform to what the federal constitution demands the powers and functions delegated by our state legislature to it must “parallel those of the board of education considered in Sailors”. In contrast, the federal constitution is violated when a state legislature does what ours did when it delegated governmental powers and functions to a municipality that are greater than the “functions that could reasonably be considered governmental in nature [delegated to] the county board in Sailors”.

This analytic standard uses the specific powers delegated by Michigan’s state legislature to that state’s county boards of education as the benchmark. Those are set out by the US Supreme Court in that _Sailors_ opinion.

As fewer and less significant governmental powers were NOT delegated to regional transit authorities than to those county school boards in Michigan, the state legislature violated that federal constitutional limit.

The fact that voters approved Sound Transit’s two ballot propositions is completely irrelevant to the key legal issue (e.g., whether the state legislature violated the 14th Amendment by delegating excessive governmental powers to an appointive-board entity). Approval by a local taxing district’s voters of a plan for that entity to raise tax rates and undertake construction of a series of megaprojects could not possibly eliminate a federal constitutional limit on a state legislature. That's because of how the supremacy clause operates.

Also, there is absolutely nothing special about local units of government that provide transit services. The legal standard used by the Vermont supreme court in that opinion is EXACTLY the same as a court would apply in a lawsuit against Sound Transit. Even if an appointive-board public entity provides transit-related functions it still only can be delegated administrative powers by the state.

If there were ANY appellate court opinions sanctioning the structure of a municipality like Sound Transit on 14th Amendment grounds they would have been cited when this issue comes up. There are none.

Our state’s legislature acts differently than its peers. Other state legislatures did not establish unconstitutional transit governments like old-Metro, so that 14th Amendment case striking it down here was unprecedented litigation. Likewise, no other state has enacted enabling legislation like our legislature did when it created regional transit authorities. Don’t take my word for it – just try locating any set of enabling statutes like RCW 81.104 and RCW 81.112. Sound Transit has a unique structure because it flouts the federal constitutional limit on state legislatures the US Supreme Court addressed in the 1967 _Sailors v. Kent Bd. of Education_ opinion.

WPC has attorneys on staff, right? Let's get their take on this. What's their best argument to the effect that the state legislature was within its rights to delegate to a municipality such broad, discretionary governmental powers?