Been a busy day on the transportation beat. Normally, at Portland Transport we like to focus on issues as opposed to personalities and such, but occasionally exceptions must be made–and today we have not one but two rogues in the dock. TriMet, fresh from a black eye over its handling of pay raises, today was given a bit of a fat lip in federal court, as a US District Court judge sanctioned the agency for failing to properly comply with discovery requests in a lawsuit related to the April 2010 incident in which a bus ran over a group of pedestrians, killing two.
And in unrelated mischief, a noted public-transit critic commits a rhetorical low-blow against another local transit agency. We’ll deal with TriMet, as that’s the bigger deal, first.
Oh, you mean those e-mails
It was not unexpected that the families of the victims of the tragic accident three years ago, would sue TriMet–the agency was at fault (whether through the negligence of bus driver Sandi Day, who made an illegal maneuver; or through inappropriate training and/or unsafe equipment, as both plaintiffs and the transit union claim), and the pedestrians (who were crossing with a walk signal when struck) were not. What was a bit unexpected was that the family members sued in federal court, alleging a civil rights action (wrongful death is not generally something you can sue for in federal court), in an apparent attempt to evade Oregon’s liability cap, which does not apply to federal causes of action. TriMet has asked for dismissal–usually (but not always) civil rights claims are filed in response to intentional misconduct as opposed to accidents–but the judge has indicated that this will not happen until after a parallel state lawsuit is adjudicated.
Unfortunately, TriMet likely did itself no favors by playing dumb in discovery. In the “discovery” phase of a civil trial, plaintiff and defendant have to turn over relevant documents and information to the other side when asked–or assert privilege over material that might be protected. Parties in lawsuits are not permitted to knowingly fail to comply with discovery requests, such as withholding relevant documents. TriMet, however, took the position that unless electronic documents were specifically requested by the plaintiffs (whose initial request did not specify any particular media), it need only produce material that it had on paper. This did not amuse the judge, who fined the agency $5000 (to cover plaintiff’s costs) and required GM Neil McFarlane to provide an affidavit (meaning he’s under oath) that all relevant documents had been delivered.
TriMet was actually lucky. Discovery abuse can produce serious consequences in court–including penalties such as “adverse inference” (meaning the judge assumes you’re hiding something, and will tell the jury that if things get to that point), or even summary judgment of a case. While the suggestion from some quarters that TriMet managers ought to go to jail is unlikely to occur (though now that Neil’s under oath, any further obfuscation and he’ll have some serious explaining to do), this doesn’t bode well for TriMet’s claims to new-found transparency. Given that at least TriMet’s lawyers ought to know better, it would be interesting to hear what corrective actions have been taken at the agency. And since TriMet is (likely) represented by outside counsel in this matter (which is common practice when lawsuits get filed), it would be interesting to hear what counsel’s take on all of this is.
Meanwhile, across the river…
…our good friends at Cascade Policy Institute engaged in a rhetorical foul of its own today, when it essentially accused C-TRAN staffers of lying in a report to the C-TRAN board, concerning a proposal to withdraw from the CRC project which will be discussed at Tuesday’s board meeting. While the article body itself avoids the L-word, and it may be the case that the headline (“Why Do Transit Officials Lie About Light Rail?”) was written by somebody else, this sort of rhetoric seems excessive and out of line–especially when applied to C-TRAN, which (unlike other agencies I can think of) doesn’t have a track record of (ahem) obfuscation. Obviously, private lobbying firms like CPI engaging in scurrilous behavior is a far less serious matter than public servants doing it, and I suspect that I actually agree with John Charles as to the specific question of whether the CRC should be built in its current form, but a facemask on the defense on one play doesn’t justify holding by the offense on another.
And when you read what CPI is objecting to–ithe suggestion that C-TRAN employees are “lying” is baseless. (Unfortunately, no link to the specific claims that were allegedly erroneous was provided, so I’ll address CPI’s portrayal of the statements at issue). Specifically, CPI objections to the following statements that C-TRAN staffers have (allegedly) made in advice to the board:
- “Light rail offers faster service (17 MPH) than bus rapid transit (14.5 MPH)”. The 17MPH average speed is more-or-less correct for the Yellow Line, and I’m not sure where the 14.5MPH comes from (the speed of BRT lines can vary greatly)–but CPI’s explanation as to why this is “wrong” is laughable: it claims that express bus services can average up to 45MPH. While this is true in places where express busses seldom meet congestion, express bus (point-to-point peak-hour service) and BRT are two different things. John Charles, I’m sure, knows better. Touting express bus as a substitute for rapid transit is a common CPI tactic, even though the two types of service have entirely different purposes.
- “The extended Yellow MAX line will arrive in Vancouver every 7.5 minutes”. Charles claims this to be false because “TriMet is broke”. Incremental light rail service isn’t that expensive (much of the cost-per-hour is amortized system costs that don’t rise with additional trains in service), and standard TriMet practice is to run at shorter headways in the peaks, and reduce to longer headways outside the peaks. Of all the variables affecting TriMet’s budget, additional Yellow Line service to the ‘Couv is not one of the larger ones.
- “Light rail will carry 6,100 people over the Columbia River during the peak period”. Here, the big question is: in one direction, or in both? LRT lines can easily do 6k pphpd (passengers per hour per direction) with appropriate headways and consist size, but 2-car trains at 8 per hour can’t handle this load. But they can handle half this load pretty easily–if you assume the trains are full in both directions, then yes, 6100 passengers per hour is doable. Charles underestimates–by quite a bit–the capacity of a MAX train, citing (what I suspect is) the average design capacity of the fleet, or 274 passengers per train. In practice, 2-car MAX trains handle crush-loads of 400 passengers pretty frequently, and I’ve seen ’em packed even fuller than that (though operational performance degrades significantly once you fill up a train to that level). 274 passengers is nothing.
Given all of that, we would suggest that lobbyists in glass houses ought not throw stones. If you are going to suggest someone is “lying”, it is generally necessary to demonstrate both a) they’re incorrect, and b) they know it and are acting in bad faith. CPI failed on both counts in this piece, which manages to make Randall O’Toole look good in comparison.