Approve Amendments to the Table of Organization Primarily Impacting the Bus Transit and Administration Divisions

This item was deleted from the agenda on September 8, 2008.

Approve Adoption of the Record Retention Program for E-Mail Communications

In a memorandum to Committee, Director of Information Systems Robert Haar and General Manager Celia Kupersmith provided staff’s recommendation to approve adoption of the Record Retention Program for E-mail Communications (E-Mail Retention Program), and to authorize the General Manager, or her designee, to administer the E-Mail Retention Program, as described in Attachment 1 (attached), with the understanding that the General Manager, in consultation with the Attorney, may revise retention periods and authorize destruction of records to comport with applicable State of California (State) guidelines.

The report stated that State law permits governing boards to authorize destruction or disposition of records that are not expressly required by law to be preserved. In addition, State law allows governing boards to authorize the destruction of a particular category of records, provided that the destruction of this category will not adversely affect any interest of the District or of the public. The E-Mail Retention Program complies with State requirements and will help staff to manage e-mail storage more efficiently.

The report also stated that since e-mails typically are used for informal and short-term communication, under the proposed E-Mail Retention Program, e-mails will be retained for 90 days, after which the computer system will be programmed to automatically discard them. E-mails with more lasting significance will be retained for preservation in two-year archive folders, but will be subject to automatic disposal as well. E-mails regarding pending litigation or construction contracts, where retention is required beyond two years, will be retained for preservation in special archive folders until no longer needed. The determination of when the records may be disposed of will be made in consultation with the District Secretary, the Attorney and the General Manager or designee.

The report further stated that the staff will develop procedures to implement the E-Mail Retention Program, as well as provide training for all users of the District’s e-mail system. It is anticipated that the E-Mail Retention Program will reduce future expenses related to e-mail management and costs, and promote a more efficient use of the District’s e-mail system by controlling the proliferation of e-mails. A copy of the report is available in the Office of the District Secretary and on the District’s web site.

At the meeting, Celia summarized the staff report, stating that the District Secretary’s office is in the process of developing a formal Records Retention Program for all written records of the District, and that staff decided to bring forward the E-Mail Retention Program at this time.

Discussion ensued, including the following comments and inquiries:

• Director Hernández made the following comments and inquiries:
  • She commended staff for the work done thus far on developing records retention programs, and expressed her concerns in regards to the District’s adherence to applicable State and Federal laws. She commented that, in her opinion, it is important for the District to adopt a philosophy to retain documents that may help its employees in terms of various legal actions and Public Records Act requests, of which e-mails and certified payroll records could be beneficial. In response, Mr. Miller stated that there is a combination of issues related to the E-Mail Retention Program, including the Public Records Act and the corollary statute regarding records retention. Mr. Miller stated that the work has been carefully coordinated between staff and counsel in this limited policy for e-mail. He also stated that records will be preserved for litigation that may arise; however, e-mail discovery has become an arduous exercise. He further stated that, while recognizing the spirit and the letter of the law, it is important to maintain a balance between preserving records and maintaining and managing the District’s assets.
  • She inquired as how the e-mail records are maintained. In response, Ms. Kupersmith stated that e-mails are an electronic correspondence that is kept on one of the District’s servers. In addition, Ms. Tarantino stated that e-mails are not the District’s filing system and it is customary that District staff will print out pertinent e-mails and place them in the relevant “hard copy” subject files. Ms. Tarantino noted that in those instances, e-mail correspondence will be preserved.

Staff recommended, and the Committee concurred by motion made and seconded by Directors STROEH/MOYLAN to forward the following recommendation to the Board of Directors for its consideration:

RECOMMENDATION

The Rules, Policy and Industrial Relations Committee recommends that the Board of Directors approve adoption of the Record Retention Program for E-mail Communications, effective January 15, 2009, as described in the Attachment; and, authorize the General Manager or her designee to administer the Record Retention Program for E-mail Communications in accordance with the retention periods outlined in the Attachment; with the understanding that the General Manager, in consultation with the Attorney, may revise such retention periods and authorize destruction of records to comport with applicable law and the Secretary of State’s Local Government Records Management Guidelines, as they may be amended from time to time.

Action by the Board at its meeting of September 12, 2008 – Resolution
NON-CONSENT CALENDAR

AYES (5): Chair Pahre; Vice Chair Hernández; Directors Newhouse Segal and Stroeh; President Moylan (Ex Officio)
NOES (0): None
ABSENT (5): Directors Grosboll, McGlashan, McGoldrick, Sanders and Sandoval

Approve an Amendment to CalPERS Pension Plan to Allow Employees to Purchase Service Credit on a Pretax Basis Relative to a Change in the Title of the Membership Coverage Group

In a memorandum to Committee, Director of Human Resources Harvey Pye and General Manager Celia Kupersmith provided staff’s recommendation to approve an Amendment to the California Public Employees Retirement System (CalPERS) Pension Plan to reflect an administrative change in the title of the membership coverage group from “70002” to “All Miscellaneous Coverage Groups.” The report stated that this change will provide for an elective benefit that allows employee’s to purchase service credit on a pretax basis at their own expense. The report noted that there will be an adverse impact on the pre-tax status of contributions by participants if the Amendment is not approved. The Amendment has no fiscal impact to the District’s existing coverage and does not increase costs. A copy of the report is available in the Office of the District Secretary and on the District’s web site.

Staff recommended, and the Committee concurred by motion made and seconded by Directors STROEH/HERNÁNDEZ to forward the following recommendation to the Board of Directors for its consideration:

RECOMMENDATION

The Rules, Policy and Industrial Relations Committee recommends that the Board of Directors approve an amendment to the California Public Employees Retirement System (CalPERS) Pension Plan to allow employees to purchase service credit on a pretax basis, relative to a change in the title of the membership coverage group from “70002” to “All Miscellaneous Coverage Groups.”

Action by the Board at its meeting of September 12, 2008 – Resolution
NON-CONSENT CALENDAR

AYES (5): Chair Pahre; Vice Chair Hernández; Directors Newhouse Segal and Stroeh; President Moylan (Ex Officio)
NOES (0): None
ABSENT (5): Directors Grosboll, McGlashan, McGoldrick, Sanders and Sandoval

Annual Progress/Status Report and Update on the Disadvantaged Business Enterprise Program

In a memorandum to Committee, Disadvantaged Business Enterprise (DBE) Program Administrator Gail Jackson, Deputy General Manager/Administration and Development Z. Wayne Johnson and General Manager Celia Kupersmith provided an annual progress report on the FY 07/08 Diversity Program for Contracts, as well as a status reports on the FY 08/09 Annual Overall DBE Goal, Goals set in previous years along with expanded outreach.

A DBE is a small business concern that is at least 51 percent owned and controlled by socially and economically disadvantaged individuals, historically ethnic minorities and women of any race. The District administers its DBE program on a race neutral basis, in light of judicial decisions that have established parameters for DBE programs under federal and state constitutional law. The report summarized the participation of DBE’s in contract and procurement awards and commitments during FY 07/08, including tracking DBE participation regardless of the funding source. The report noted that the District’s Diversity Program for Contracts complies with federal regulations and was formally adopted by the Board of Directors.

Annual Progress Report on FY 07/08 Diversity Program for Contracts

The report outlined total disbursements for District-wide contracts and procurements, as well as Federal Transit Administration (FTA)-assisted contracts and Federal Highway Administration (FHWA)-assisted contracts. The report provided a table showing the breakdown of the amounts paid to various categories of DBEs. The report stated that, although no Annual Overall DBE Goal was established for District-wide contracts and procurements, the District achieved an overall 4 percent DBE participation during FY 07/08. Based on awards and commitments, DBE participation achieved less than 1.0 percent of the established 4 percent annual FY 07/08 DBE goal for FTA-assisted contracts due primarily to timing of contract awards. The District anticipates achieving the 6.13 percent established annual FY 07/08 DBE goal for FHWA-assisted contracts.

Status Report on FY 08/09 Annual Overall DBE Goal

The report also stated that the Board of Directors, by Resolution No. 2008-051, at its meeting of June 13, 2008, approved for publication the proposed FY 08/09 Annual Overall DBE Goal for FTA-assisted contracts. The Board authorized the General Manager to formally adopt the goal if no comments were received that required further consideration or modifications to the proposed goal. No comments were received by the deadline date of July 28, 2008; therefore, the District has adopted a 4.5 percent FY 08/09 Annual Overall DBE Goal applicable to $32,123,000 in FTA-assisted contracts.

Status Report of Project Goals set in Previous Years

The report further stated that in FY 03/04 the District began establishing project goals separate from the Annual Overall DBE Goal for multi-year FTA-assisted contracts, including those that may include multiple contracts within a large project. The purpose of separating out multi-year projects from those completed in one year is to avoid reporting and attainment discrepancies. The report provided a table that summarized two of the project goals that were assigned in FY 03/04.

Expanded Outreach

The report further stated that the District is a member of the Business Outreach Committee (BOC), which is a consortium of ten transit agencies in the San Francisco Bay Area. The BOC explores race-neutral outreach practices in an effort to maximize opportunities for DBEs and small businesses, increase visibility of the DBE program and encourage minority and women-owned businesses to become DBE certified. The report noted that recent outreach events include annual goal-setting and one-on-one subcontractor match-making between DBE vendors and thirteen architectural and engineering firms. The BOC has established an annual calendar of quarterly newsletters and events. A copy of the report is available in the Office of the District Secretary and on the District’s web site.

At the meeting, Gail Jackson provided a brief summary of the FY 07/08 Diversity Program for Contracts and the FY 08/09 Annual Overall DBE Goal. Ms. Jackson stated that she and many of her counterparts, who administer DBE Programs around the Bay Area, have formed the BOC, and have been very successful with outreach efforts to DBEs. She stated that the BOC is planning its third event next month, which will be aimed at small construction companies.

Discussion ensued, including the following:

• Director Hernández made the following comments and inquiries:

  • She commended staff for the work accomplished over the last year, noting Ms. Jackson’s one-year anniversary as the DBE Program Administrator.
  • She requested that staff provide information to the Board regarding the dates of upcoming quarterly events with the BOC.
  • She commented that in her experience as a Compliance Officer, the reason why agencies set DBE goals at 0 percent is because there are no contractors that specialize in a particular type of work that are registered in the databases for certified DBEs.
  • She commented that a possible reason why there are so few DBE contractors is that the District is dependent upon the information posted on the databases from agencies that certify DBEs according to a formula. She emphasized that it would benefit staff to contact the certification agencies to encourage DBE recruiting.

• Director Newhouse Segal made the following comments and inquiries:
  • She expressed her concerns regarding the figures for the DBE goal achieved for the District and requested that staff provide the Directors with information about the steps the District is taking in order to raise the DBE percentages.
  • She requested clarification on the terminology in the staff report regarding “…which presumptively included designated ethnic minorities and women.” In response, Ms. Kupersmith stated that the DBE program is set up under federal regulations that designate specific groups that are presumed to be disadvantaged, explaining that disadvantaged refers to such things as a company’s assets and ethnicity. In addition, Mr. Mulligan stated that there is a Ninth Circuit Court of Appeals ruling in the State of Washington, applicable to the State of California, that precludes the District from setting race- or gender-specific goals. Mr. Mulligan noted that, pending a disparity study in the State of California, the court ruling forces the federal language upon the District. Furthermore, Mr. Miller stated that the State of California Proposition 209 uniquely constrains the District by precluding any preferences in contracting. He noted that the disparity studies will determine if there has been a pattern of discrimination in the State of California and, depending on the outcome, it may be possible in the future that the federal program might allow the District to establish race conscious goals.

• Chair Pahre applauded staff’s efforts to recruit more DBE contractors.

Action by the Board - None Required

Public Comment

There was no public comment.

Adjournment

All business having been concluded, the meeting was declared adjourned at 9:45 a.m.