The BART board of directors voted to ask general manager Dorothy Dugger to resign Thursday in closed session, then rescinded its vote when alerted it was a Brown Act violation, Bay Area News Group has learned.
An open government expert said the board violated the state open meeting law numerous times by failing to agendize a possible termination, notify Dugger 24 hours in advance of the action, and announce both votes in open session.
The general manager's annual performance review was on Thursday's closed session agenda.
A source close to the events said several board members aired grievances about Dugger's performance in closed session, and then called for a vote to ask her to resign. The board voted 5-4, with Bob Franklin, Robert Raburn, John McPartland, James Fang and Tom Radulovich in favor of dismissing her. Gail Murray, Lynette Sweet, Thomas Blalock and Joel Keller voted to keep Dugger, according to the source.
Following the vote, BART general counsel was brought into the closed session and alerted the board they cannot take such a vote without agendizing a "notice of discipline, dismissal or release." The board voted unanimously the rescind its earlier vote. Dugger was then brought into the meeting to discuss board concerns with her job performance, the source said.
Board members declined to discuss specific grievances against Dugger, general manager since 2007.
When the board emerged from closed session, neither vote was
Dugger remains in her position Friday, said BART spokesman Linton Johnson.
"Nothing has changed," Johnson said. "They took no public action nothing was agendized to take public action. It was just an annual performance review and it's routine.
"People like to gossip everything under the sun, sometimes it turns to craziness," he said.
Dugger did not return a call for comment Friday.
Thursday's closed session votes need scrutiny, said Terry Francke of Californians Aware, a Sacramento-based nonprofit advocating for open government.
"You cannot lawfully, in my view, discipline, dismiss or release in closed session when you're only dealing with a performance evaluation," Francke said.
In order to lawfully take such a vote, Francke said BART would have to place that actionable item on the agenda and give Dugger 24-hours written notice. The law allows the public employee to request a public hearing.
Had the board not rescinded the resignation vote, Dugger would have been able to reverse it through legal channels, Francke said.
"They would be shooting themselves in the foot," he said.
In addition, the board should have reported both closed session votes immediately after they returned to open session, Francke said, including who voted for what.
Johnson said he did not attend the closed session and does not know if Brown Act violations occurred. He said closed-session discussions are meant to remain confidential.
Board members were not saying much Friday. Fang declined to comment and Blalock referred questions to BART's general counsel.
Dugger's support among some BART board members has waned in the last two years over concerns about her communication skills and leadership.
Several board members have said publicly that Dugger didn't show enough leadership and visibility in response to the high-profile fatal shooting of unarmed passenger Oscar Grant III by then-transit police officer Johannes Mesherle on Jan. 1, 2009.
Mesherle was later convicted of involuntary manslaughter by a Los Angeles County jury, and BART overhauled many police procedures and its police training program.
Many board members were also upset that BART was denied $70 million in federal economic stimulus funds last year for a people-mover rail link to the Oakland International Airport after federal officials ruled that BART had failed to adequately analyze whether the project had discriminatory impacts on low-income people and minorities.
In 2009, Radulovich and Sweet, the two BART directors from San Francisco, publicly called for Dugger's resignation over her handling of BART's response to the Grant shooting.
Radulovich said Friday he still thinks Dugger should leave, but he declined to confirm whether the board had asked her quit.
"My feelings haven't changed," Radulovich said. "She is an extremely hard worker, but I think she is part of a BART culture that is not accountable and transparent. She didn't start it, but she didn't fix it."
Radulovich also has criticized BART for spending too much on rail expansions at the expense of caring for and rehabilitating the existing train system.
Dugger is the first woman selected to head the transit agency. In 2009, her salary was $354,010 a year, the second highest CEO salary among California's transit agencies.
Reach Matthias Gafni at 925-952-5026 and Denis Cuff at 925-943-8267.