Barbara Comstock proposes a “reform board” for WMATA with more funding and limits on labor

Rep. Barbara Comstock (R-VA) introduced a bill in Congress today to abolish the WMATA board and create a “reform board,” limit worker powers and potential future raises, and provide some additional capital funding to Metro. Here are some of the key points of what it would do. What do you think?

Grows overall funding

The bill, which WAMU's Martin di Caro first tweeted details of and the Washington Post released the full text of, would reauthorize PRIIA funding — the payments the federal government has been giving Metro for repairs and maintenance — at the same rate of $150 million per year, matched with $50 million each from DC/MD/VA.

The bill also authorizes $75 million a year for capital programs until FY2029, which would likewise have to be matched by the jurisdictions.

However, this money would come with other requirements, including a “reform board.”

Creates a “reform board”

The bill would wipe out the current WMATA board and replace it with a temporary “reform board,” similar to the control board that supervised the DC budget from 1995 to 2001. This board would have the power to cancel existing contracts and liabilities to get the agency into financial sustainability.

This board would comprise five members. Virginia, Maryland, and DC would each appoint one. The federal US Department of Transportation would appoint one who would serve as chair, and also suggest a list of nominees for the fifth seat, which the other members would choose among. This gives more federal power than in some of the other “reform board” proposals out there, and if board members take partisan positions, the two USDOT-selected members and the one from the Hogan administration could form a majority.

Board members would have to have expertise in transit, management of large companies, or other relevant backgrounds and have a fiduciary responsibility to WMATA. Elected officials would not be allowed on the reform board.

Also, there would be no jurisdictional veto. The current compact lets any one jurisdiction (DC, Maryland, or Virginia) veto actions by the board. That wouldn't be the case any more.

Limits spending during the “reform board” period

WMATA would not be allowed to grow its operating budget at all, nor use any capital to cover operating expenses.

Worker power would be limited compared to today. Besides continuing a ban on strikes, WMATA would be forbidden from paying workers more than 120 percent of their regular salary for overtime, or offering more than time-and-a-half. The labor agreement would not be able to stop outsourcing and contracting or limit part-time employees, and management would have broad powers to fire, reassign, or demote people. This would all apply to the permanent board as well.

The current pension would stay in effect but would turn into a “defined contribution” plan (like a 401(k) instead of one guaranteeing a certain payment per month) for newer and future employees. Also, workers still eligible for the current pension would have it computed from their regular salary, rather than allowing people to work overtime in their final years to increase their level of pension, as is the case now.

Longer term board structure

One of the tasks of the “reform board” is to devise a permanent, new compact.

The USDOT would set some parameters for how WMATA can move from the “reform board” to a final board. In a paragraph that reads like it really cuts the jurisdictions out of the picture, it says the Secretary of Transportation would decide these parameters within 90 days and transmit them to the jurisdictions. The jurisdictions don't get a formal say, and 90 days doesn't leave much time for consultation.

Further, future USDOT secretaries can't change those parameters without permission by Congressional committees. I'd be interested in any constitutional scholars saying if this kind of thing is legal under Chadha or not. INS v. Chadha is a Supreme Court case which said Congress can't give some power to the executive branch but retain the right for just one house to overturn it. Since the Constitution specifies that Congress's action is by passing things out of both houses and having the President veto or sign, Chadha says, basically, that it has to use this mechanism for overriding actions as well. (I'm not a lawyer, though, and this is my lay understanding.)

The final board would have no more alternates. Instead, each of DC, Maryland, Virginia, and the federal government would pick two members. DC/MD/VA would choose a ninth to be chair, but if they can't agree, USDOT chooses.

Directors are paid, must have professional expertise, and can't veto. But the prohibition on elected officials isn't there for the permanent board, nor is the fiduciary responsibility.

Longer term finance

To emerge from “reform board” into the permanent board, a few things have to happen. There has to be some kind of spending limit which DC/MD/VA can grant waivers from, but the board can't otherwise exceed. And jurisdictions' payments to WMATA can't grow more than three percent a year.

GSA is supposed to study standardizing transit benefits in the region. I'm not clear on what this part means and have asked for clarification. The standard “rate” can include some amount of direct subsidy to WMATA and also commuter benefits, but the bill says that this total “rate” has to be no more than 90 percent of the current rate from any federal agency or department.

Limits on arbitration

Today, if the union and WMATA management can't agree on a new labor contract, it goes to arbitration. Awards by the arbitrator have been a point of controversy. The LaHood draft report says pay rates are not out of line with other properties, though others have said the arbitrator will grant raises to workers even if the agency doesn't have enough money in its budget, because it can raise fares to cover it.

The bill would restrict future arbitration awards by stopping the arbitrator from considering things like the ability to raise fares to cover pay raises. It has “findings” that a labor arbitration board should factor in, including that labor costs “have increased at an alarming rate” and “are unsustainable” and that higher fares shouldn't be used to justify higher compensation.

The Arbitrator also can't award compensation that makes operating subsidies rise 1.5% or more, and can't award any compensation increase at all if there is “financial stress.” This condition of “financial stress” kicks in if two of three of these factors are present:

1. Total revenues declined over the last two years;
2. There was any fare increase, service cut, or capital shift to operating in the last two years (given that current policy is to raise fares every two years, this condition would basically always be met);
3. The system is not in a “state of good repair” and is not expected to be for two years.

The arbitrator generally has to be more deferential to authority's financial projections, consider overtime in the total package comparing to rates elsewhere, and can only increase compensation if it won't hurt the “public welfare.”

Other stuff

The bill strengthens protections for whistleblowers.

WMATA has to contract with National Academy of Public Administration to advise the board and write reports for USDOT about it.

It sets up a Reform Commission made of a number of officials or their staff: the two governors, the DC mayor, the DOT secretary, the General Manager, and someone from National Academy of Public Administration. There would be eight House members (five Republicans and three Democrats, unless the Democrats take over the House in which case it would flip) and three Senators (two Republicans and one Democrat, as long as Republicans control the Senate). The Speaker of the House would pick the chair.

The governors and mayor have to show the commission their progress on a new, permanent compact any time the commission meets.

Last week, Democratic Reps. Anthony Brown and Jamie Raskin of Maryland proposed a very different bill, backed by organized labor, which would have given WMATA more flexibility and called for studies of proposals like a flat fare and free transfers.

What do you think of these proposals?