Bay Area: Opposition alleges open meeting violation in vote on Marin-Sonoma passenger train

A group against a sales tax increase to fund the SMART passenger train has alleged that the SMART board violated an open meetings law by failing to make it clear in the agenda that they were voting on the first phase of the project. -db

Marin Independent Journal
December 6, 2010
By Mark Prado

A group seeking to repeal the sales tax measure that funded the SMART passenger train is questioning the validity of a board decision last month that established the first phase of the rail line.

The Novato-based group Repeal SMART has sent a letter to the Sonoma-Marin Area Rail Transit board president alleging an action it took at its Nov. 6 meeting violates the Ralph M. Brown Act open meetings law.

At the special meeting in Santa Rosa, labeled on the board agenda as a “workshop on project funding and phasing options,” the SMART board voted 10-1, with one abstention, to pursue a rail line between the Marin Civic Center in San Rafael and Railroad Square in Santa Rosa at a cost of $395 million.

The agenda did not specifically state a decision would be made at the meeting, but listed the last issue of the day as “board direction/next steps/schedule.”

Novato resident John Parnell, who started his grassroots group after that meeting, believes the board violated state law because government code requires an agenda not only list what will be discussed but also what may be decided.

“They didn’t say there was going to be a vote on the agenda and legally you have to do that,” Parnell said. “I think they messed up.”

SMART officials said the agenda was reviewed before it was released.

“There were questions about this before the meeting and we ran those past our legal counsel and the agenda was legal and the meeting was legal,”said Chris Coursey, a SMART spokesman.

But Peter Scheer, executive director of the First Amendment Coalition in San Rafael, said the board action appears to have violated the Brown Act based on the agenda wording. He cited government code section 54956 which states that the agenda of a special meeting must be followed without exception: “No other business shall be considered at these meetings by the legislative body,” the Brown Act states.

“To call it a workshop, most people would think it would be an educational meeting and not a proceeding in which a final decision of any consequence would be made,” Scheer said. “There is nothing on the agenda that tells the people a decision would be made. People should not have to read the tea leaves.”

Parnell is asking that the issue be clearly reagendized and that another hearing and vote be taken, and he said he could seek a “judicial determination” on the issue if SMART doesn’t respond.

Through his website, Parnell is asking people to sign up to collect signatures to repeal the quarter-cent sales tax increase Marin and Sonoma voters approved in November 2008 to fund the train project. He said about 100 people have contacted him.

The initial plan called for a 70-mile rail line and adjacent bike and pedestrian path to be built from Larkspur to Cloverdale.

But that plan has collapsed under the weight of a poor economy, which weakened the sales tax base the system is fueled on, as well as projected cost overruns. Now the plan has an approximate $350 million shortfall and will only cover about 35 miles of the original plan. SMART planers hope to find additional dollars to finish the work.

At its Dec. 15 meeting, the SMART board may consider approve buying 18 rail cars for $56.9 million for the project. But last week, Marin County supervisors urged rail officials to take another look at operational and fiscal issues before proceeding with any further financial commitment, with Supervisor Steve Kinsey saying the rail plan is causing a “crisis of confidence.”

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