Manager's family ties to contract probed by BART
A BART manager failed to disclose her spouse's employment at a major San Francisco construction company when she played a role in recommending board approval of a $40 million contract to that company, BART's inspector general said in a report released recently.
The investigation into the relationship between the BART manager — who isn't identified in the report — and an employee of PGH Wong Engineering forced the agency to halt some construction on projects in January, including BART's Hayward train maintenance complex and a new station in Fremont. The BART manager also failed to disclose she previously worked for the company, which also employs her sibling. The company worked as a construction manager on a variety of BART projects.
Harriet Richardson, the inspector general, is also calling on BART to void a remaining $27 million in contract funds that have yet to be allocated and $5.4 million in unpaid invoices.
Richardson said there is no indication that the BART manager or the construction company willfully hid the relationship, when the BART board approved the contract in August 2020. Instead, she said unclear conflict-of-interests codes and required forms were likely behind the lack of disclosure.
“BART's codes of conduct are not clear,” Richardson said. “Because you don't want someone to be able to influence the contracting
process and benefit from it.”
BART's general counsel accepted the majority of the report's findings and now is updating the agency's contracting process to more explicitly require certain conflict of interest disclosures. BART also immediately removed its employee from all of the projects and reassigned oversight of the PGH Wong contracts to the General Manager's office.
But the BART's general counsel refuted the inspector general's central finding that the BART employee possibly violated California Government Code 1090 and thus the outstanding contract should be void as required by the law. In a response, BART said the contract is “fair and reasonable” and “management is of the opinion that no financial interest was realized by the employee or the firm.”
The BART manager's spouse was not part of PGH Wong's management, but Richardson said he received a few thousand dollars from an annual profitsharing agreement distributed to all employees that likely was bolstered by the BART contract.
PGH Wong Engineering declined to respond to detailed
questions. In a statement, Clifford Wong, the president of PGH Wong Engineering, said his company looks to avoid conflicts of interest. “We have been fully transparent throughout this investigation,” he said. “We look forward to resolving this matter and getting on with the important work of supporting BART.”
Richardson's report argued that allowing the PGH Wong contracts to move forward BART could expose BART and the construction company to litigation.
“They want to get this contractor back to work so it's to BART's advantage — and to the contractor's advantage — to find that there isn't a conflict of interest,” Richardson said. “But when you look at that profit-sharing piece, it's hard to say there isn't.”
Michael Martello, a former city attorney for Mountain View and Concord, said that violations of the conflict of interest statute typically result in voiding the contract.
“(The law) is like playing with a hand grenade with the pin out,” Martello said, “because there's no stepping over the line just a little bit.”