MTA's $1 Billion Development Scheme

MTA board member Yaroslavsky’s press deputy, Joel Bellman, when told that ethics officer Gorman had admitted the loophole didn’t come from Hayden, said he would try to resolve the confusion. Two hours later, Gorman and Sotero contacted the Weekly. “I’m sorry for not making myself clear,” Gorman said. She cited Title 2, Division 6, Chapter 7, Article 1, Section 18708 of California’s Code of Regulations. In a subsequent e-mail, Sotero cited yet another justification — “the long established common law Rule of Necessity,” upon which he says the MTA has relied.

It will be news to those who have long cited the “Hayden Procedure” that the regulation in Section 18708 is not a special law for the MTA, does not mention the MTA — and might not even legally supersede Hayden’s anti-corruption law. The regulation states that “a random means of selection may be used” to produce a quorum for a vote. “The lottery-based vote,” Gorman said, “was our ‘random means of selection.”

The MTA’s topsy-turvy claim that they could draw straws thanks to a special MTA law by Tom Hayden has arguably discouraged legal challenges against the MTA’s practice. While not commenting on the MTA case, professor of law emeritus Michael Asimow of UCLA Law School, an expert in state administrative law, said that “If the regulation is inconsistent with [state law], the regulation is invalid.”

“It sounds suspicious,” says professor Greg Keating, who teaches legal ethics at USC’s School of Law, of the MTA’s tortured explanations. “And it’s definitely a loophole that undermines [Hayden’s] law.” Keating notes that if deep-pocketed developers know a lottery-based vote can be conducted when board members have ethical conflicts, developers may contribute money to every board member to cover their bets when names are pulled out randomly. “It may be expensive,” says Keating, “but if you have the money . . .”