Submitted by Professor Robert Dean
AGO 2013 No. 1 – July 01, 2013
The Honorable Jim Moeller
State Representative, District 49
PO Box 40600
Olympia, WA 98504-0600 Cite As:
AGO 2013 No. 1
Dear Representative Moeller:
By letter previously acknowledged, you have requested our opinion on a question I have paraphrased as follows:
Must a transit agency that elects to establish high capacity transportation service under RCW 81.104 obtain voter approval for its high capacity transportation system plan and financing plan even if the transit agency does not propose to use the dedicated funding sources provided for in RCW 81.104?
Brief Answer:
“A transit agency seeking to establish high capacity transportation service that does not intend to rely upon local option revenue sources authorized by RCW 81.104.150 through .170 is required to obtain voter approval of its system plan only if the transit agency participates in a JOINT regional policy committee. Voter approval of the system plan is not required if the transit agency participates in a regional policy committee.” Emphasis added, italics in the original.
http://www.atg.wa.gov/AGOOpinions/opinion.aspx?id=31304#.Uko_XUnD-t8
Brief answer: Yes for the System Plan; Yes for the Financing Plan.
Inexplicably, our main man, the proudly liberal District 49 Representative Jim Moeller, Democrat, was elated at hearing the AG opinion; or the prevailing spin that was put on it by the well-heeled CRC boosters. It was widely touted that C-Tran did not have to seek approval from voters if they could find another source of financing for operations and maintenance of light rail. Hence, the Oregon Only Plan and the recent concordat with TriMet signed in the dead of night before TriMet officials hastily left town and before troublesome C-Tran board members and the public could scrutinize its terms. It reminds me of a line from the lyrics of the Simon and Garfunkel song, The Boxer: “…still a man hears what he wants to hear and disregards the rest.”
Not so fast! Jim asked about two votes for two plans – the System Plan and the Financing Plan.
“In the book The Patchwork Girl of Oz, it is revealed that there are two yellow brick roads from Munchkin Country to the Emerald City: according to the Shaggy Man, Dorothy took the harder one…” http://en.wikipedia.org/wiki/Yellow_brick_road
The AG explained it all in his opinion addressed to Jim Moeller.
“Under the statutory language, the answer depends on whether the transit agency seeking to establish high capacity transportation service has formed a regional policy committee or instead participates in a joint regional policy committee. RCW 81.104.030 requires only transit agencies that participate in a joint regional policy committee to obtain voter approval of their system plan and financing plan for high capacity transportation service. The legislature directed more populous counties to form joint regional policy committees for the purpose of developing regional high capacity transportation service. Transit agencies that are not required to participate in joint regional policy committees are not required to obtain voter approval for their system plan and financing plan (but they must obtain voter approval if they seek to finance their plans through any of the dedicated funding sources identified in statute).”
In answer to the question about the financing plan the AG said that a vote on the financing plan is only required in a small county under two sets of circumstances:
1) If the agency choses any of the statutorily dedicated sources of funding such as sales tax then yes the financing plan needs to be approved by C-Tran voters, or
2) If the County is a small county, less than 1 million population, and it adjoins a large county, or it participates in a joint regional policy committee. This makes sense because you’re not supposed to be even considering HCT if densities and ridership preclude going it alone. No, if you’re a small isolated county, like Cowlitz County, then, if you’re stupid enough to try to build and operate a HCT system on your own that goes nowhere, go for it! You won’t need to seek approval from your voters – they’ll take care of you later. But, if you’re a small county, like Clark County, and you adjoin a large county, like Multnomah County or Portland’s Metro which serves a population of 1.5 million, or you adjoin another state or country, like Canada, and it makes economic sense to join with them to build and operate a HCT system, then you’ll form a joint regional policy committee, like RTC, and you’ll have to get voter approval on the System Plan and on the Financing Plan. Note: it is mandatory that large Washington counties and smaller adjoining counties form Joint Regional Policy; it is optional for smaller counties to form Joint Regional Policy Committees with other states or countries. Clark County opted to form such a Joint Regional Policy Committee – RTC – with Portland’s Metro.
Is RTC really a Joint Regional Policy Committee as defined in the statute? Well, yes and no. The statute does not define a Joint Regional Policy Committee – it merely provides for them and describes them.
“(1) The membership of the joint regional policy committee shall consist of locally elected officials who serve on the legislative authority of the existing transit systems and a representative from the department of transportation. . . .
(2) The joint regional policy committee shall be responsible for the preparation and adoption of a regional high capacity transportation implementation program, which shall include the system plan, project plans, and a financing plan. This program shall be in conformance with the regional transportation planning organization’s regional transportation plan and consistent with RCW 81.104.080.
(3) The joint regional policy committee shall present an adopted high capacity transportation system plan and financing plan to the boards of directors of the transit agencies within the service area or to the regional transit authority, if such authority has been formed. The authority shall proceed as prescribed in RCW 81.112.030.”
RTC seems to fit the bill. RTC was formed July 1, 1992 one month before the statutory deadline for forming a Joint Regional Policy Committee.
As the AG said:
“To our knowledge, Snohomish, King, and Pierce are the only counties that were required to form a joint regional policy committee under RCW 81.104.040. [6] However, the statute anticipates that transit agencies in other counties may also participate in joint regional policy committees including “transit agencies in counties adjoining state or international boundaries where the high capacity transportation system plan and financing plan propose a bistate or international high capacity transportation system[.]” RCW 81.104.030(1).”
So, you see, there are two sets of plans that need separate voter approval – the System Plan and the Financing Plan. And, there are two sets of circumstances under which an agency is required to get voter approval of their HCT plans.
Strangely, according to the Washington Attorney General, C-Tran in Clark County will indeed have to obtain voter approval of both the System Plan and the Financing Plan of the CRC light rail project – regardless of how it is financed – because C-Tran opted to participate in the Joint Regional Policy Committee, RTC.
Say! Thanks Jim!
