For years, Palo Alto's elected officials have complained about the lack of representation that they and their counterparts across the county's northern section have on the board of the Santa Clara Valley Transportation Authority, an agency whose buses serve Palo Alto but which has been long dominated by San Jose.
Now, with the city set to gain a seat on the VTA board of directors, City Council members find themselves at odds over a different matter: Whom to appoint?
The question appeared to have been answered on Oct. 26, when the council unanimously voted to nominate Alison Cormack to represent on the VTA board the group of north county cities that includes Palo Alto, Mountain View, Los Altos Hills and Los Altos. Known as Group 2, the loose coalition is one of six in the transit agency's governance structure. Under the VTA's bylaws, the northern group is entitled to one board member and one alternate. By contrast, Group 1, which includes San Jose, has five board members and one alternate.
Within Group 2, nominations have traditionally been low-key affairs. Cities have long operated on a rotational basis, with each city taking its turn in filling the positions of board member and alternate on the VTA board. Over the past year, the group was represented by Mountain View City Council member John McAlister, with then-City Council member Liz Kniss of Palo Alto serving as an alternate.
But while Palo Alto remains in the driver's seat when it comes to getting one of its council members elected to the VTA board, Cormack's candidacy is no longer as assured as it was in October. The two council members who championed her nomination, Kniss and Adrian Fine, concluded their respective council terms last week. Unlike in October, the council's residentialist faction now wields political control. And political veteran Pat Burt is now back on the council and is apparently poised to challenge Cormack for the nomination on the transportation board.
The political shift in Palo Alto has already complicated what is typically a predictable — if opaque — process for choosing a VTA representative from Group 2. Last week, then-Vice Mayor Tom DuBois surprised the elected officials in the northern group when he asked them to delay its appointment of Cormack to the VTA and to give Palo Alto more time to come up with an additional nominee.
At the same time, Los Altos Hills used the Dec. 29 meeting of Group 2 members to request some time to present its own nominee for the VTA board, McAlister told the Weekly after the meeting. However, Los Altos Hills has not formally participated in the VTA group for the past two years and does not appear to have any council members who could be qualified nominees, said McAlister, who chairs the cities group and who represents it on the VTA board.
A secretive process
The debate reopens an issue that the Palo Alto council had seemingly settled on Oct. 26.
"As the council well knows, VTA issues are very important to Palo Alto and require diligent engagement and coordination with our neighboring cities," Fine wrote in a memo. "We look forward to our colleagues' support and thank Council member Cormack for her willingness to shoulder this responsibility."
The council approved Cormack's nomination on its "consent calendar," with no discussion or objections, making her an apparent shoo-in for the VTA board until DuBois, who now serves as mayor, started to have second thoughts about the process. He briefly appeared at the beginning of the Dec. 29 meeting of elected officials from VTA Group 2 to request an opportunity to nominate a second candidate.
Because Fine, Kniss and Cormack were already present at the virtual meeting, DuBois was asked to leave to avoid violating the Brown Act, which prohibits more than three council members representing the same city from attending nonpublicized meetings at which policy is being considered. DuBois also submitted a letter to the group, arguing that it should postpone to January its decision on whom to select as a VTA nominee and give the Palo Alto council a chance to consider an additional candidate.
DuBois argued that the council was not aware in October that it had the prerogative to nominate newly elected council members or two candidates. DuBois also noted that with Kniss and Fine leaving the council on Dec. 31, "They are not representing the interests of the council in 2021 and 2022."
In his prepared comments for the Dec. 29 meeting, DuBois also questioned whether it's appropriate, or even legal, for the VTA group to pick the next board member in a private meeting. Even though the working group is comprised entirely of elected officials discussing public policy, it is not a standing committee but an ad hoc one; the distinction means that it is not bound by California Brown Act rules that require most meetings to be open to the public.
"So then I'd ask myself, what is good governance in this situation?" DuBois' asked in his prepared comments, which he provided to the Weekly.
Members of the cities group agreed that when it comes to nominating a VTA board member, good governance requires secrecy. Fine repeatedly reminded his colleagues that the working group meeting is not a public meeting and insisted that the Weekly reporter who was attending the meeting be disconnected from the meeting. When the reporter declined to leave and suggested that an appointment of a VTA board member is a matter of public interest, Fine falsely said that the member has "already been appointed."
"Can somebody drop him off please?" Fine then asked, at which point McAlister disconnected the reporter from the meeting, which also included Mayor Kavita Tankha of Los Altos Hills; council members Lynette Lee Eng and Jonathan Weinberg of Los Altos; and Mayor Margaret Abe-Koga of Mountain View.
But even as the VTA group, at Fine's request, rejected DuBois' call for transparency and kept him from making his prepared remarks, it granted him the delay that he was seeking. McAlister told the Weekly that after a discussion of the group's bylaws, the members voted to delay its nomination of a new VTA board representative until later this month.
DuBois said that one reason he wanted to delay the nomination was the lack of clarity over the working group's bylaws, which it had approved in 2015 and then updated in 2018. The 2015 bylaws state that a nominee must meet at least one of three qualifications: at least one year of service on the VTA board, at least one year's service on one of the advisory committees that reports to the VTA board or "any other transportation policy credential deemed relevant by the majority of the Group 2 Cities as meeting the intent of the experience requirement."
The group's revised bylaws add a fourth qualification: demonstration of "working knowledge of VTA." The revised bylaws also require a nominee to meet at least two of the four qualifications.
Those newer bylaws, however, were not provided to the council on Oct. 26, when members quickly and unanimously nominated Cormack. Instead, the older 2015 bylaws were attached to the memo from Fine and Kniss.
DuBois noted in his letter to the VTA group that the staff report the council had received prior to making its decision also did not mention its nominee may not meet the qualifications or that the council could nominate two candidates.
McAlister told the Weekly that the Dec. 29 meeting to select a nominee was both "the most intriguing" and "the most political" that he had experienced during his time on the VTA. He also emphasized that Palo Alto had taken all the appropriate steps in nominating Cormack, who he said is a qualified candidate.
"They did everything they were supposed to do," McAlister said of Palo Alto.
He underscored, however, that it is important for the VTA to carefully evaluate its nominees and make sure that the person they choose is truly engaged in representing the north county cities on the board of directors.
"We shouldn't look at the VTA seat as a regular rotation," McAlister said. "We really need to get people in there that would stand up for north county and represent us and be engaged on the board."
The VTA's governance structure has been under increasing scrutiny in recent years, with a Santa Clara County grand jury releasing a scathing report in June 2019 that criticized the agency's board of being too political, inexperienced and dominated by San Jose. The report also cited "frequent tensions" between directors' duties to the VTA and the political demands of their local elected positions.
McAlister said that during his time on the VTA board, he has seen people win appointments as political payback or because they wanted to build a resume.
"I'd been an advocate for getting the best persons possible," McAlister said.
Getting a fair share
Representation on the VTA has long been a thorny issue for north county cities, which for decades have watched the agency use the lion's share of the revenues from its countywide tax measures to fund San Jose projects, most notably the expansion of BART. In 2016, as the VTA was moving ahead with Measure B, city and county leaders tried to ensure that they would get their fair share of the funding by requiring some of the proceeds to be used for other priorities, including road repairs, highway improvements and grade separation along the Caltrain corridor in north county. The measure specifically allocated $700 million for grade separations, which would be split between Palo Alto, Mountain View and Sunnyvale.
Late last year, however, the VTA presented a scenario in which nearly all the funding from Measure B over the next 10 years would be dedicated for the BART extension in San Jose. The scenario triggered an outpouring of anger from elected officials from throughout the county, many of whom characterized it as the VTA's betrayal of its promises to the taxpayers. Santa Clara County Supervisor Joe Simitian also spearheaded an official resolution last month opposing the VTA's new scenario. The county Board of Supervisors unanimously supported the resolution.
"VTA's approach is inconsistent with the promises made to voters in 2016; it effectively means no meaningful progress will be made for the next ten years in six program areas," Simitian said in a statement after the resolution passed. "The solution here is a 10-year outlook that actually serves the needs of the entire County, as the 2016 ballot measure promised."
Both Cormack and Burt declined to discuss what occurred at the Dec. 29 meeting and referred inquiries to the elected officials who had participated in that meeting. DuBois highlighted the ongoing debate over Measure B funding as a reason for the north county cities to seriously consider its nominee to the VTA board.
While DuBois said he has no intention of reconsidering Cormack's nomination, he wanted to present Burt as an additional nominee. He cited Burt's many years of experience as a city planning and transportation commissioner, as well as his leadership on the issues of grade separation and his past membership on Caltrain's Local Policy Maker Group.
"This is billions of dollars for BART and Caltrain," DuBois said. "We need people who will argue for us and defend that money."