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Op-Ed: Deal for Freight Train Service Not Only Shady but Illegal

Bernard Meyers, former Novato councilman and current board member of the North Coast Rail Authority, says the freight contract was made in violation of public disclosure law.

Editor's note: The author is a board member of the North Coast Rail Authority and a Novato resident. The views expressed here represent are his views only and not of the North Coast Rail Authority. This op-ed is a follow-up to one he wrote for Novato Patch in March. To read the earlier piece, click here.

By Bernard Meyers

Where should hundreds of millions of your tax dollars go ... to pay for police, fire service and schools or to a private freight railroad operator that was able to get a lease with a public agency via back-room dealings and meetings that violated public disclosure law?

What if that lease was never examined to see if it was fiscally prudent?

That scenario may soon be coming down the track, unless that lease is amended to avoid the inevitable result. The public agency is the North Coast Rail Authority, and the operator is the Northwestern Pacific Co.

In January 2006, NCRA requested proposals from operators to haul freight on its right-of-way, which includes tracks that run through Novato. Five entities responded. NCRA’s activities — interviewing the bidders, choosing NWP’s bid, and the negotiations for the lease — were performed by NCRA’s operator committee, whose meetings were held without any public notice and without any public participation. The committee appears to have violated the state law governing the public’s right to observe public business, known as the Brown Act.

  • The operating committee did not report in any meaningful way to the public; when it reported to the NCRA board, it did so in secret in board closed sessions;
  • The selection criteria utilized by the operating committee and the board was never revealed to the public, and there is no way to determine how or why NWP was chosen;
  • In June 2005, the committee met at former Congressman Doug Bosco’s office; in December, the committee apparently interviewed an owner of the Island Mountain Quarry in rural northwest California; between the time the request for proposal was issued in January 2006, and the choice of NWP as the winner in May, NCRA utilized the quarry owner in a pitch to the state for funding, and NWP listed both that owner and Bosco as principals;
  • The May 2006 telephonic board meeting at which NWP was chosen violated the law; its notice failed to identify the locations from which members called in and failed to give the real intent of the meeting. No members of the public were present;
  • After NWP was chosen, lease negotiations started. While NCRA still had the ability to negotiate with another bidder, it did not - giving NWP every advantage, to the taxpayers’ detriment. Other bids were more favorable (two included a percentage of revenues going to NCRA), but NCRA stuck with NWP;
  • The notice for the September 2006 board meeting when the lease was supposedly approved does not adequately indicate that the lease was to come before the board for approval. The result is that the public did not see the lease in its final form before it was signed;
  • At no time, from the time the request for proposal was considered through the time the lease was signed, was any member of the public able to comment on the substance of the dealings.

Because a long-term lease can have severe financial repercussions, it is essential for the agency to make every effort to include the public in its decision-making and explain its reasoning. Unfortunately, this lease is the product of secret dealings, with old friends on either side, and without proper public notice or input.

Now that NWP is getting ready to roll, it wants to change some of the lease terms without giving NCRA and the public sufficient time to consider options. The NCRA needs skilled, unbiased counsel to guide it to a fiscally prudent agreement. Over $1 billion in taxpayer dollars could be riding on this. 

We need to have public overview and insist on fiscal prudence. Otherwise, vital public services will be shoved into the baggage car while the operator rides in first class.

B Meyers June 04, 2011 at 03:00 PM
Please see my reply, below. - Thank you - Bernie Meyers
B Meyers June 04, 2011 at 03:00 PM
Please see my reply, below. - Thank you - Bernie Meyers
B Meyers June 04, 2011 at 03:05 PM
The 12/14/10 BOS agenda link is a long one - I hope this is better, or that you can find it separately. - Bernie Meyers http://marinsearch1.co.marin.ca.us/smb/egovfiles.co.marin.ca.us/WebShare/Ego vShare/BS/AgMn/agdocs/101214/cybagnda.htm ‐ Item 9
Jason Bulliet June 04, 2011 at 04:40 PM
Keep on trucking NOvato! Bernie must work for a trucking company. It appears that there is no stopping the selfish center of the universe. No trains in my back yard. You are all a bunch of NIMBY's. Yes more cars and more trucks is the answer to our environmental problems. Put up more road blocks or should I say rail blocks Bernie. You are my hero!
Robert J. Cleek June 06, 2011 at 09:27 PM
Mr. Meyers, I did check your links, but I couldn't find anything there from you. One didn't open at all. I appreciate your efforts to protect the public purse, but it seems, if in fact there is any truth to the technical procedural shortcomings y0u cite, that you are here simply elevating form over substance. Like yourself, I wasn't there and I wasn't privy to the lease negotiations. However, I don't see anything unconscionable, nor even arguably poor business judgment, in the terms of the lease. How much should a private business make on investing millions and millions of dollars taking a chance on running a short line railroad that the one of the largest railroads in the US, flush with federal subsidies, abandoned as unprofitable in light of the greater profit to be made on long-haul freight? How, exactly, in terms of dollars and cents, are the taxpayers getting ripped off by the present lease. Seriously, I'd like to know. "Transparency" and "public comment" are good things, but with respect to this "done deal," how were we disadvantaged? Isn't it possible that your colleagues on the NCRA board, none of whom support your positi0n, might just actually have done their jobs as they were appointed to do and on balance picked the best candidate at the best price, notwithstanding your "20-20 hindsight" concerns about the way they conducted this business?

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