Goodbye Yellow Brick Road!

by lewwaters

 

College 4Submitted by Professor Robert Dean

 

MoellerAGO 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

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!

8 Comments to “Goodbye Yellow Brick Road!”

  1. thank you, Robert

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  2. very appropriate, robert

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  3. now, let’s put a stop to this shit

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  4. In 2011 Tom Mielke and I attempted to stop the C-Tran board from forming a quasi-municipal corporation in an effort to make sure that these high end mass transit systems could not further impact tax payers with property taxes and auto licenses fees. The board barged forward doing it anyway. Now they are fully impacted by the RCW’s under 81.104 and stuck getting voter approval however they are further attempting an end run around the voter. When Jim Moeller asked the AG how to avoid a vote of the people I became even further disgusted with him than I already was. The moronic point being that if the voters do not count then how is it that through the process of voting and counting those votes Jim Moeller was elected? Time to send that p.o.s. home everybody.

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  5. Jack and Carolyn, David Madore is on it! Let’s repost his statement:

    RTC Board meeting – a repeat of the C-Tran sell-out

    With ballots being mailed in two weeks, RTC rushed to submit their funding request for Bus Rapid Transit ahead of the election today even though it is not due until the end of the year.

    Jack Burkman (up for re-election) voted to ignore the voters the same way that Tim Leavitt did at C-Tran on Thursday. The pattern has become too common in Clark County.

    The county commissioners had to leave the RTC Board meeting early for our Board of Commissioners meeting at 6 pm. Before we left, to ensure that each RTC Board member fully understands the law and the consequences for breaking the law, they were given the following resolution and a copy of the Attorney General’s clarification about that law. Each was asked to be ready to cast an informed vote on that resolution at the next Board meeting:
    ____________________________________________________

    RTC BOARD RESOLUTION – October 1, 2013

    A RESOLUTION to comply with RCW 81.104 requirements to seek voter approval of the CRC high capacity transit system plan and financing plan

    WHEREAS, on July 1, 2013, Washington State Attorney General Bob Ferguson, published an opinion on line at:

    http://www.atg.wa.gov/AGOOpinions/opinion.aspx?id=31304#.Uko_XUnD-t8

    That clearly states that RCW 81.104 requires voter approval of the CRC high capacity transit system plan and financing plan as written in exhibit A; and

    WHEREAS, the CRC High Capacity Transit financing plan was placed on the ballot as Proposition One and was rejected by the voters in the 2012 General Election; and

    WHEREAS, voter approval has not been sought for the CRC high capacity transit system plan; and

    WHEREAS, the Attorney General’s letter clearly clarifies the applicability of RCW 81.104 as it pertains to and governs the CRC Project, RTC and C-Tran; and

    WHEREAS, willful failure to follow State Law as clearly laid out in RCW 81.104 and further clarified by the Attorney General’s written opinion would amount to malfeasance by officials who proceed without fulfilling those requirements; and

    WHEREAS, the RTC and C-Tran Governing Boards serve as representatives of the people of Clark County as two signatory agencies of the CRC project, are charged with the responsibility of adhering to their own adopted policies; and

    WHEREAS, those adopted policies clearly state that as a condition of approval that any means of funding the operation and maintenance costs of the High Capacity component of the CRC, shall be first approved by a vote of the people; and

    WHEREAS, the C-Tran Governing Board and the RTC Board have the responsibility to pause and fulfill these requirements before proceeding further; and

    WHEREAS, these requirements have not yet been complied with,

    NOW, THEREFORE, BE IT RESOLVED, that it shall be the policy of the RTC Board to fulfill those requirements mandated by law before voting to move the CRC high capacity transit system plan and financing plan forward and before executing agreements to proceed with the project.
    ____________________________________________________

    What price are they willing to pay for light rail?

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  6. I can hear them now, picking up the banjo and keeping time with the jug.
    To the tune of Folsom Prison Blues, of course.

    Can you hear that Chicken cluckin,
    Cluckin down the track,
    And I ain’t seen such fur fly, since I don’t know when.
    But I’m stuck in this old rail car, and time keeps draggin on,
    that commuter train keeps rolling, it just don’t roll too far.
    When I was just a Baby my mama told me. Son
    Always be a good boy, don’t ever jump the gun,
    But I gaveled down the whole town, just to watch it die.
    When I hear that Chicken cluckin,, I hang my head and cry..

    I bet there’s rich folks eating in a fancy dining car
    They’re probably drinkin’ coffee and smoking big cigars.
    Well I know a vote was coming, I know I can be free
    But those Chickens keeps a cluckin’
    And that’s what tortures me…

    Well if they freed me from this light rail,
    If that railroad bridge was mine
    I bet I’d move it on a little farther down the line
    Far from Chicken cluckin, that’s where I want to stay
    And I’d let that Colonel Sanders, fry my blues away…..

    Of course I like more down homey style of blues too.
    Featuring the Ozark Mountain mouth bow,

    “Chicken scratch Train
    runnin all day
    Chicken scratch Train
    runnin all day
    Chicken scratch Train
    runnin all day
    Can’t scratch on
    Can’t scratch off
    Chicken scratch Train take the scratch away

    Light train screams
    in my dreams
    Light train screams
    in my dreams
    Light train screams
    in my dreams
    night mare’s on
    dream tuned off

    Light train screams like a sawed off dream”
    Hat tip to Ozark Mountain Daredevils – Chicken Train (Live 1976)

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  7. That is really good Dennis!

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  8. Thanks for linking to the source. I like going to the original source whenever possible. In this case I came away with a very different view of what the AG was saying.

    It seems pretty clearly the AG says they don’t require a vote on the system plan: “As described in the background section of this opinion, high capacity transportation planning within the more populous central Puget Sound region was intended to follow a different process than high capacity transportation planning in the rest of the state. Specifically, King, Pierce, and Snohomish counties were intended to follow a different process in the development of their regional high capacity transportation system. This distinction between central Puget Sound and the rest of the state persists today. As our plain language analysis demonstrates, transit agencies in counties authorized to form regional policy committees for high capacity transportation purposes are not required to obtain voter approval of their system plan and financing plan. This contrasts with transit agencies required to form joint regional policy committees, which must obtain voter approval of their plans.”

    The AG also indicates that a vote is only required on the financing plan if it imposes new taxes: “Although transit agencies participating in (non-joint) regional policy committees are not required to obtain voter approval for their system plan and financing plan, RCW 81.104 does require voter approval for certain financing options. Specifically, voter approval is required for imposition of specified taxes authorized to fund transportation services. RCW 81.104.140(4); see also RCW 81.104.150 (employer tax); .160 (sales and use tax on car rentals); .170 (general sales and use tax). Unlike RCW 81.104.030, these separate voter-approval provisions do not distinguish between transportation authorities participating in regional policy committees and those participating in joint regional policy committees. Thus, voter approval is required for imposition of any of the taxes authorized by these provisions regardless of which agency seeks to impose them.”

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