Tim Steller's column: Publicly funded group should not be shielded from criticism

It may surprise you to hear the Pima Association of Governments described as a private entity.

It is, after all, the metropolitan planning organization for the Tucson area, paid for by federal, local and state taxpayer money — in that order of importance.

PAG also manages the Regional Transportation Authority, a thoroughly public, transportation-improvement effort covering Pima County, paid for by a half-cent sales tax that is raising close to $2 billion over 20 years.

But the executive director of PAG, Farhad Moghimi, has insisted in a series of emails we’ve exchanged in recent weeks that I should view PAG as private, noting it is organized as a 501©(4) nonprofit corporation.

After I sent him a series of questions Nov. 17, the first paragraph in the email he sent me the next day said:

“PAG is a private corporation. An association formed by its members. Similar to any other association with rules for membership and conduct, etc. We are not a public body. However, we apply Robert’s Rule of Order and Open Meeting Laws by policy because we perform services under contract(s) for the state.”

It struck me as a weird distinction to highlight, even though it is true that PAG is formally organized as a nonprofit corporation. In my mind, the best description of PAG, along the public-private continuum, would be “quasi governmental.”

But this year’s context may explain the insistence.

Moghimi, who has directed PAG since 2013, has some strong supporters within the organization and among local governments, but he has been under steady criticism this year as well. Pima County Supervisor Matt Heinz called at a September meeting for him to be fired. Heinz and others have pointed out that Moghimi hasn’t had a formal performance review in years.

Also, some members of the Regional Transportation Authority’s citizen committees have been challenging his way of running the RTA. (Employees of PAG, including Moghimi, run the RTA.)

“PAG employees, including me, are being harassed and intimidated for performing our contractual and fiduciary responsibilities and for holding a few committee members accountable,” Moghimi said in an email.

“Individual committee members have no administrative powers and are expressly prohibited from interfering in the administrative affairs of PAG and its operations,” he went on. “Consequently, these individuals are spreading false and malicious lies about me, my staff and our work around the community.”

‘RTA Next’ at stake

To understand what’s going on here, you have to do some unpacking.

The 20-year RTA plan is funded by a half-cent per dollar sales tax that Pima County voters approved in 2006. It has accomplished most of what was presented to voters, but there is not enough money to complete the whole plan, and several remaining projects are in the city of Tucson. This has led to some anger from city officials.

Moghimi, who previously held public-works positions in Marana and Sahuarita, makes around $200,000 per year. The leaders of those suburban towns have largely supported Moghimi, while officials in Tucson and, to an extent, Pima County have increasingly questioned his leadership.

The big push now is to get Pima County voters to approve the so-called RTA Next, a planned 20-year extension of the half-cent sales tax, before the current RTA expires in 2026.

In January, the Tucson City Council went to the brink of opposing an RTA Next before agreeing to stay in the process. As part of a compromise, the city accepted increased representation on the RTA’s Citizen Advisory Committee and Technical Management Committee, in exchange for sticking with the plan. The Citizens Advisory Committee is key in that it is charged with drafting the RTA Next plan for consideration by the board and voters.

Some of the new committee members, appointed by the city, appear to be a cause of Moghimi’s consternation and claims of harassment. Amanda Maass, for example, has repeatedly argued that the Citizens Advisory Committee is not being given sufficient information to assess projects, nor opportunity to set committee agendas and seek public input on projects proposed for inclusion in RTA Next.

In a May email to PAG staff, Maas wrote: “The issue I’m raising is that the memos we have received to date include misinformation about OML (Arizona’s Open Meeting Law) and the purview of the CAC; they also carry a patronizing tone with a threatening undertow. In addition, the RTA/RTA Board seems to be actively preventing the CAC from doing its job — for example, (neither) we (nor our Chairs) can even create our own agendas — and continue to change the narrative/move the goalposts for our role in developing the draft plan.”

When I asked her and seven other committee members who have been critical of RTA whether they have been accused of harassment, intimidation, retaliation or anything similar, they said no.

“I have never been told/warned that my communications or actions have been considered harassment, retaliatory, or intimidating toward PAG/RTA staff,” Maass told me in an email. “I’ve bcc’d or forwarded you (and many of the region’s public officials) most/all my communications with staff; aside from being persistent and long winded, I haven’t come close to crossing those lines.”

Supporters and dissenters

While many members of the citizen committees are content with the direction and management of the RTA, a loose network of dissenters is causing trouble for them.

A Sept. 8 2022 memo from RTA Chair Peter Yucupicio, the chairman of the Pascua Yaqui tribe, had the subject line “RTA welcomes feedback.” But in it, he pushed back on dissenting committee members.

“It is unreasonable, as suggested by a number of CAC members, that the CAC as an advisory committee could ignore the feedback from individual board members, the TMC and/or staff if we hope to have a successful plan at the ballot.”

CAC Chair Tom McGovern said in an Aug. 24 memo: “PAG is required by law to protect its employees against harassment. As an employer, PAG must not tolerate any harassment of its professional staff by members of its committees, or by anyone else.”

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He went on, “Finally, false and misleading statements about the work of the CAC are not acceptable. As the chair of the CAC, I am delegated to act as the spokesperson for the CAC and I will work closely with PAG/RTA staff to more publicly counter misinformation moving forward.”

In an email to me Wednesday, McGovern said adding new members this year has meant bringing them up to speed on transportation planning and other topics, including a code of conduct and legal requirements.

“On several occasions, CAC members have pushed back on some of those requirements, despite my counseling,” he said. “Those situations have been and will continue to be addressed by RTA staff and the Board.”

‘Cease and desist’

Perhaps no dissenter has stuck her neck out more than Ruth Reiman, a city appointee to the Citizens Accountability for Regional Transportation committee, which is charged with ensuring projects are getting done and watching over costs and revenue.

Reiman used to work for PAG, leaving in 2019, and she has regularly criticized the way the RTA is operating in the opinion pages of the Star. In an August op-ed piece, for example, she argued that Moghimi has not received a thorough performance review, despite discussion of it a year before.

The conflict has cropped up in person, too. On Monday, Nov. 14, at one of the two annual meetings of the citizens accountability committee, members approved the written summary of the previous meeting before Reiman could request a change. When she tried to ask for the change, Moghimi stepped in and stopped her, saying Robert’s Rules required it.

Five days later, on Nov. 19, Reiman received a letter from a PAG attorney, Abbe Goncharsky. “PAG demands that you immediately cease and desist any actions that are intended to interfere with, harass and/or retaliate against PAG, or any of its employees, for its conduct consistent with its business purpose,” the letter said.

Reiman said she didn’t know what specifically prompted the letter, and Moghimi declined to elaborate, calling it a confidential personnel matter.

Where is the line?

I don’t know exactly what Moghimi is referring to when he talks about harassment, retaliation, intimidation or “malicious lies.” I’ve asked, but he has declined to provide details either of cases or of the types of behavior he’s talking about.

At the Nov. 3 meeting of the PAG regional council, the board made up largely of elected officials charged with overseeing PAG, members held an executive session to discuss “complaints by PAG staff regarding harassment and retaliation.”

When I asked Moghimi “where is the line” between harassment and legitimate criticism or public participation, he responded that “harassment is a personnel matter. As a result, these items were discussed in an executive session to consult with our legal counsel pursuant to Arizona law. As you are aware and I hope you will recognize and understand, I cannot disclose any privileged and/or confidential information.”

Moghimi did forward two Dec. 1 memos, both titled "Notice of Potential Dismissal from CAC" —  each one reprimanding a different Citizens Advisory Committee member for making "reckless claims" that Moghimi or Marana Mayor Ed Honea violated Arizona open meetings laws. One memo says, "If you persist in harassing PAG staff or otherwise disregarding our code of conduct, I will request that the RTA Board remove you from the CAC."

In an email to me, Moghimi wrote, “PAG as a private sector employer is obligated by law to protect the victims here, and to ensure they are being treated with respect and dignity and are able to perform their work in a safe place free from further intimidation, harassment, or abuse.”

Of course, governments also are legally obligated to protect employees. I sent Tucson City Attorney Mike Rankin some of Moghimi’s comments about his duties as a private employer. Rankin’s response: “I can’t explain the described distinction between potential liability of PAG vs. a traditional government employer.” The city also must “protect its employees from harassment, retaliation, discrimination and/or a hostile work environment.”

So, still, it’s impossible for an outsider to know how this alleged harassment differs from the usual pushback and criticism received by governmental and quasi-governmental bodies.

Extra protection

I called the Maricopa Association of Governments to ask whether they consider themselves a public or private entity. Kelly Taft, the spokeswoman for the association, which is the equivalent to PAG in the Phoenix area, was quick to explain: “We consider ourselves a public entity,” she said.

Yes, she acknowledged, her group is organized as a nonprofit, like PAG, but “we perform as a public entity.”

The emphasis on the idea that PAG is a private entity appears to me to be arising largely as a defense against increasingly loud local dissent from the way RTA is being run. Moghimi seems to think his status as a private employee should also offer him greater protection from criticism.

Last week I asked, “Do you think that because you are formally a private employee of a private entity, carrying out public duties, you should be more protected from criticism than a true public employee would be?”

His response: “No one is truly protected from statements of criticism. However, retaliatory, false, and misleading statements about private entities and private employees are subject to libel laws.”

This sort of answer troubles me. PAG and RTA are paid for by us. They exist to serve us.

I think the well-paid leader of a quasi-governmental agency must be willing to deal with criticism of his and his agency’s performance, not try to use the law or the nature of the entity as a shield.

Tim Steller is an opinion columnist. A 25-year veteran of reporting and editing, he digs into issues and stories that matter in the Tucson area, reports the results and tells you his conclusions. Contact him at tsteller@tucson.com or 520-807-7789. On Twitter: @senyorreporter