BART cellphone shutdown option introduced to board of directors in closed session; or, 3 Questions For #BART

Before beginning, it’s worth stating that EFF-Austin [ @EFFaustin ] is based in…well, Austin. Our statements have no association with national EFF [ @EFF ], based in San Francisco, beyond the principles we share (see here for details on that history if you’re interested; our hearts go out to you guys during this challenge, you have our support). As such, EFF-Austin’s analysis is restricted to online sources and documents.

That analysis has revealed a discrepancy in the first public statement made by Lynette Sweet, a Director on BART’s board, in the wake of BART’s shutdown of cellphone and 911 service for passengers last Thursday between 4-7pm PST at least between the Civic Center and Embarcadero stations. Sweet provided an interview to San Francisco’s CBS affiliate KCBS in which she roundly condemned BART’s action. The statement that interested us occurs at the beginning of the interview (audio excerpt below):

“The BART board was alerted just a few hours before they planned to do this without having it as an agenda item. We really couldn’t talk much about it.”

[audio:https://effaustin.org/wp-content/uploads/2011/08/bart-board-lynette_sweet-2011_08_13-agenda_item.mp3|titles=KCBS (Aug 13) – Interview w/ BART Director Lynette Sweet – excerpt re: agenda item]

That directed us to the Agenda for the board meeting in question, available on the BART website. That meeting was scheduled to begin at 9AM PST on Thursday August 11th. The cellphone shutdown occurred at 4pm PST that very same day.

#BART – Board Meeting (August 11, 2011) – Agenda

According to this version of the document, there is in fact a relevant agenda item listed on page 3:

10. CLOSED SESSION (Room 303, Board Conference Room)
A. THREAT TO PUBLIC SERVICES OR FACILITIES:
Consultation with: Chief of Police; Acting Manager, Rail Security
Programs; and Assistant General Manager – Operations
Government Code Section: 54957(a)

That’s some important information.

BART board meetings are scheduled in advance and a “Notice of Meetings” is sent out, sometimes with attachments. A notice for Thursday’s BART board meeting was sent out on August 5th, and included the agenda as an attachment. Here’s that notice:

San Francisco Bay Area Rapid Transit District – Notice of Meetings (Aug 5, 2011)

So, the agenda for Thursday’s BART board meeting—which includes reservation of a closed session timeslot for discussion of “THREAT TO PUBLIC SERVICES OR FACILITIES”—was ready to go by August 5th. Our analysis of the metadata embedded in the agenda document confirms this.

• Document Author: Pat Williams (would love to chat!)
• xap:CreatorTool: Microsoft Word 2007
• Document Last Modified: 8/5/11 6:46:45pm

If this document is to be believed then a timeslot was reserved for a closed session with the board fully six days prior to the event. It’s important to emphasize that this does NOT necessarily mean that the subject matter of that meeting was determined in advance (I guess it’s equally important to emphasize it might mean just that!). At a minimum, it signifies awareness that a meeting might be necessary. That’s an important item to keep in mind as questions swirl about whether the BART board COULD have had time to deliberate a formal policy decision.

By now you might be wondering, as we were, about the people who participated in the meeting and what their responsibilities are. With a little help from the index of BART Job Descriptions and Google, we were able to identify these folks for future reference:

• BART Chief of Police: Kenton W. Rainey
  • Job Description (Word document)

• BART Acting Manager, Rail Security Program: Kevin Franklin
  • Job Description (Word document)
  • Confirmed via “Point of View” Volume 39, Number 2 (April 2011), p. 29. See “Transfers from Patrol”.
  • Reports to the General Manager.
  • For historical context, Franklin was present at the BART police shooting of Oscar Grant on New Year’s Day 2009.
  • Earlier in his career (October 2004), Franklin was part of a series of controversial “high-profile” patrols on BART trains “carrying assault rifles and gas masks and clad in SWAT uniforms”.

• BART Assistant General Manager – Operations: Paul Oversier
  • Job Description (Word document)
  • Confirmed via @SFAppeal (April 14) – “BART Hires Sherwood Wakeman as Interim General Manager”
  • Reports to General Manager; elsewhere described as ‘second in command.’

A few things seem clear to your observers from Texas. It seems like the BART Board has been having its own internal trouble for quite some time. And it seems like there is an adversarial relationship between the board and other parts of the BART organization. And it seems like the BART system in general is in trouble both financially and in terms of customer satisfaction; their biannual customer satisfaction survey (p. 16) indicates “40 out of 47 ratings (85%) of specific service attributes were lower in 2010 compared to 2008.” And it seems like BART just keeps digging the hole deeper, such as with this over produced video—completed overnight on Thursday August 11 in time for publication to YouTube and promotion by 8:38am PST Friday morning—which could be characterized as a “preemptive strike” seeking to justify BART’s actions on Thursday night:

http://www.youtube.com/watch?v=HsKEvd6gH0A

Unless BART gets their act together, and stops taking an adversarial stance to world opinion, this debacle could truly result in greater formally codified civil liberties for Americans as an example for the rest of the world to follow. But I guess that’s what America is supposed to be all about, right?

I present BART with these questions three, answer rite we might forgive ye:

1. When did the cellphone shutdown option become the subject of the timeslot reserved sometime before Friday August 5th, 2011 at 6:46:45pm PST?
2. When was the cellphone shutdown option conceived?
3. Why wasn’t the BART board of directors notified of the cellphone shutdown option some time  between  times A and B?

Thank you, and help us do the right thing now, BART.

Next: BART’s Protest Position Does Not Withstand Legal Scrutiny
Earlier: Statement on San Francisco BART cellphone service shutdown