Imagine sharing with two equally qualified colleagues the decision-making authority affecting long-term railroad service quality, profitability and capital investment. Such is the power of the three Senate-confirmed members of the STB—Chairman Dan Elliott and Deb Miller, both Democrats; and Republican Ann Begeman.
But unlike as with corporate boards, committees of Congress and our military leadership, these three STB members are prohibited from discussing, informally among themselves or individually with parties of interest, the warp and woof of matters before them for decision.
Distinct from a court, which makes decisions based entirely on the law, the STB has quasi-legislative powers in addition to quasi-judicial powers, with a mandate to consider, foremost, the public interest, termed by former ICC member Rupert L. Murphy as “something fitted to the public need.”
Government Sunshine law prohibits a majority (two in the case of the three-member STB) of federal regulatory agency members from consulting with each other except during formal sessions open to the public. Senate Commerce Committee Chairman John Thune (R-S.D.) likely can’t change that, but he seeks to increase STB members to five, which would allow two members at a time to confer in private.
Congressional budget hawks likely will reject increased spending to enlarge the STB 20 years after a less conservative Congress downsized what previously was the ICC. More pointedly, how effective would Socratic exercises—cherished by opinion leaders and decision-makers—be if three of five STB members were excluded?
A second snag is the STB’s ethics rules prohibiting so-called ex parte communications by which individual STB members meet privately with parties of interest. That hitch could be solved with an internal rulemaking.
Miller, who distinguished herself in Kansas state government by having successive Democratic and Republican governors choose her as their transportation secretary, is no stranger to collaborative decision-making. She sees meaningful benefit in informal conversations with fellow board members, as well as parties of interest.
Miller doesn’t cotton to backroom, blinds-drawn sessions with parties of interest, but informal meetings attended by an STB attorney with a written record created and made public with an attendance list.
“I know that other agencies, including the FRA, permit these types of meetings and that they have generally been well-received,” Miller said. “I generally find that I can much better understand an issue after engaging in a dialogue about it for 30 minutes than I can by spending two hours reading a 50-page filing, or listening to someone’s attorney recite prepared remarks. I know from conversations with stakeholders that they sometimes feel that the STB, despite having digested a voluminous paper record, makes a decision without having fully grasped the issues and arguments.”
During her short stint as acting chairman, Miller set the STB’s legal staff to work developing procedures to permit ex parte communications, but because of the legislative prohibition on STB members consulting with each other, she has “no idea where Chairman Elliott or Vice Chairman Begeman are on the issue.”
Some may argue that the same result might be achieved through advance-notice, open-to-the-public formal sessions of the Board that include staff presentations.
Miller, however, sees an innate stiffness in such formality, with Board members understandably loathe to challenge one another or STB staff—or to admit to personal knowledge gaps—at public meetings. “No legal filing or prepared testimony can substitute for the value of a back and forth discussion, particularly when the issue to be determined is policy in nature, not legal,” she said.
This is a Board where informal, collaborative discussions could be fruitful given the solid educational credentials, diverse transportation experience and demonstrated intellectual curiosity of these three STB members. Elliott is the lone attorney, possessing a transportation labor background. Miller’s resumé includes state transportation regulation, plus private sector transportation planning and policy consulting. Begeman advised U.S. senators on transportation issues and has previous private sector business experience.
In its 1897 annual report, the ICC said, “We sit for the correction of what is unreasonable and unjust.” Now, as then, reaching agreement on what should or should not be corrected is a complex exercise encompassing familiarity with accounting, business practices, economics, finance, history, transportation law and constitutional law, plus an acute understanding of transportation networks, modal capabilities and shipper requirements.
Erecting barriers preventing informal knowledge-sharing restricts the free flow of information, retards understanding of complicated subject matter and chokes off a candid sharing of ideas.
The consequences of such limitations do not best assure—to paraphrase National Transportation Policy—the promotion of safe, adequate, economical and efficient service, and the fostering of sound economic conditions in transportation adequate to meet the needs of commerce.