Rail officials wrestle with 'conflict' finding

Legislative Counsel Bureau finds two board members violate state law on 'incompatibility of public offices'

Two members of the California High-Speed Rail Authority board of directors could be serving on the board in violation of a state law governing conflicts of interest, according to a letter from the state Legislative Counsel Bureau.

The letter, which the bureau issued in April and which was obtained this week by Palo Alto-based rail watchdog group Californians Advocating Responsible Rail Design (CARRD) argues that Anaheim Mayor Curt Pringle, who chairs the authority's board of directors, and Richard Katz, a board member who also sits on the Los Angeles County Metropolitan Transportation Authority, cannot serve on the statewide board while also holding their positions in Southern California.

The fact that both serve on the rail board creates a potential for conflict of interest, the bureau found. Legislative Counsel Diane F. Boyer-Vine, who wrote the letter, wrote that "there is a reasonable potential for a conflict between the local views of the City of Anaheim on the high-speed rail project and the views of a body such as HSRA in a statewide perspective."

The proposed system, for which state voters approved a $9.95 billion bond in 2008, would ultimately run to Anaheim under present plans.

"Unlike the mayor or a city council member of a city substantially removed from the route of the high-speed rail system as currently contemplated, we think the potential for conflict between the HSRA and the City Council of Anaheim is sufficient pursuant ... to create the possibility of a significant clash of duties or loyalties for the Mayor of the City of Anaheim simultaneously serving as a member of the HSRA," Boyer-Vine wrote, citing Section 1099 of the state code. "Therefore, we think a court could reasonably determine that the two officers are incompatible under that section and the common law doctrine of incompatibility of public offices, and that the same individual may not hold both offices simultaneously."

Section 1099 requires individuals who hold two incompatible offices to forfeit the first office as soon as they accept the second.

Katz's service on the Los Angeles board also could create a conflict, she found, particularly because the project is slated to go to Los Angeles County. The two agencies, for example, could have different opinions about right-of-way costs and about who should pay for certain features of the system.

"This creates the possibility of a significant clash of duties or loyalties for a board member of Metro simultaneously serving as a member of the HSRA," Boyer-Vine wrote.

The rail authority has so far been cautious about responding to the conflict-of-interest charges. Board member Quentin Kopp had tried on several occasions earlier this month to bring up the subject and try to integrate Section 1099 into the board's procedures. He was the only board member, however, who advocated changing the board's procedures to bring it into line with state law.

At the Sept. 1 meeting of the rail authority's Executive Committee, Kopp called for the committee to consider revising its policy on conflicts of interest, but his proposal quickly fizzled after neither Pringle nor authority Vice Chair Fran Florez wanted to consider it further.

"If we wished to put every single government code into our board policy and procedures, it would be never-ending," Pringle said in response to Kopp's proposal.

On Sept. 2, Kopp brought up the subject at the meeting of the full board, but his board colleagues did not support his proposed policy change, which Kopp said would require members to "simply not participate in discussion or vote on any item that is within the jurisdiction or affects the interest of the other public office."

Kopp mentioned the counsel's opinion that such a policy would affect two board members.

The board didn't adopt his proposed policy, but appointed a committee to consider possible revisions. Board Member David Crane said he was concerned about creating a new policy without fully knowing its implications and expressed concern about the prospect of any of the present board members being asked not to participate in meetings.

"I want to draw this narrowly so that it works but it's not a sledgehammer," Crane said. "We need good people on this board."

The state Attorney General's office, which is charged with enforcing Section 1099, has also taken interest in the potential conflict. So far, however, it has only gone so far as to ask the rail authority to review its own potential conflicts.

"We urge your potentially affected members to review the relevant law for themselves, in light of any public offices they may hold in addition to their HSRA membership, and to take appropriate steps to clear up any lingering issues," Supervisor Deputy Attorney General Susan Duncan Lee wrote in a July 29 letter to rail authority CEO Roelof van Ark.

CARRD, which has been closely following the rail project, has called for the Attorney General's office to take a firmer stance and restore the public's confidence in the rail project, which has an estimated cost of $42.6 billion.

"This situation is jeopardizing the public's confidence in the integrity of the process and must be resolved as soon as possible," CARRD co-founder Elizabeth Alexis wrote in a statement. "We urge the Attorney General to take immediate action to remedy this situation."

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