In 2013, a bill went into a legislative conference committee on Beacon Hill with a section limiting MBTA fare increases to 5 percent every two years. The section emerged from the conference committee with a one-word change that raised the cap to 10 percent, which is roughly the size of one of the two fare increases the T is now considering.
How that switcheroo came about, and why no one raised a ruckus about it until recently, is testament to a Beacon Hill culture that thrives on secrecy and backroom deals that even those involved sometimes seem to know very little about.
The story begins more than two years ago, as House and Senate leaders were hammering out legislation to provide funding for state transportation needs. Then-Gov. Deval Patrick was pushing for a $1.9 billion tax plan to fund transportation and education initiatives, but House Speaker Robert DeLeo and then-Senate President Therese Murray were balking.
The House ultimately approved a bill raising the gas tax by 3 cents a gallon and calling for $500 million in other tax hikes, including a $1 increase in the cigarette tax and an expansion of the sales tax to computer design services and software. The Senate, in a rare Saturday session, approved a similar bill that was expected to raise a total of $805 million by 2018.
During the course of the Senate debate, Sens. Katherine Clark (who is now a US representative) of Melrose, Sonia Chang-Diaz of Boston, and Patricia Jehlen of Somerville filed an amendment restricting when and how much the MBTA could raise fares. The amendment, approved by a voice vote, said the MBTA “shall not increase fares at intervals of less than 24 months or at a rate greater than 5 percent.”
According to State House News, the amendment’s sponsors were very clear about what they were trying to do. “Quite simply, this amendment ensures that fare increases, if they are to occur, are reasonable and fairly spaced,” Clark was quoted as saying on the Senate floor. “The fares could only be increased under this amendment every two years and not more than 5 percent at any time.”
The House and Senate appointed a conference committee to resolve differences between their two bills, including the language on fares. The committee’s members included Sens. Stephen Brewer of Barre, Thomas McGee of Lynn, and Robert Hedlund of Weymouth and Reps. Brian Dempsey of Haverhill, William Straus of Mattapoisett, and Steven Howitt of Seekonk. Brewer and Dempsey were the budget chiefs in the two branches and McGee and Straus were the co-chairs of the Transportation Committee.
In the conference committee, a single word – annual — was added to the fare section that doubled the allowable fare increase to 10 percent. The new language said the MBTA “shall not increase fares at intervals of less than 24 months or at an annual rate greater than 5 percent.”
Patrick vetoed the Legislature’s transportation finance bill, and lawmakers responded by overriding his veto. Amid the political drama, the bill’s section on fares received little public attention and the word change in conference committee went unnoticed.
Indeed, state officials and transportation advocates acted as if there had been no change, that fare increases were capped at 5 percent every two years. In a March 2014 report on how the transportation finance law was working, Rafael Mares of the Conservation Law Foundation stated that the law allowed the T to raise fares only 5 percent every two years. When the MBTA adopted a fare hike in 2014, the authority said the 5 percent increase was consistent with the transportation finance legislation passed in 2013.
But as the Baker administration began grappling with new revenue shortfalls last year, T officials dropped the bombshell that fares could be raised 10 percent. Straus, the House chairman of the Legislature’s Transportation Committee, said he agreed.
Many in the Senate, led by Senate President Stanley Rosenberg, cried foul. They noted the Senate voted to limit fare increases to 5 percent every two years, but Straus and T officials pointed to the wording of the law, which allowed for annual increases of 5 percent over a two-year period for a total increase of 10 percent.
What has been less clear is how and why the word “annual” was inserted into the bill in conference committee. Some transportation advocates believe it was some sort of honest mistake, while others say it was inserted deliberately.
Straus declined to discuss the inner workings of the conference committee, which, like all conference committees, operated in secrecy. Choosing his words carefully, he said he believed the original Senate language was unclear so he supported the insertion of the word annual to make it clear that a 10 percent increase was allowed. He declined to say who recommended the addition of the word annual, although he said it was supported by the conference committee members.
“I didn’t view it as a change,” he said.
McGee, the Senate chair of the Legislature’s Transportation Committee, isn’t sure what happened in conference committee. “I’m not sure how that happened. And I can’t say I was aware of it happening at the time, however it did happen,” he said. “It is what it is. It happened. I’m not going to point fingers at anybody. If it was in there and I didn’t see it, well OK, but it wasn’t my intention to support the word annual.”
The two Republicans on the conference committee said they don’t know what happened. Howitt said he doesn’t remember. Hedlund, who is now the mayor of Weymouth, said he was generally excluded from the conference committee’s deliberations. Brewer is retired from the Senate and Dempsey could not be reached for comment.
One person familiar with the 2013 deliberations said House and Senate leaders weren’t interested in restricting too severely the ability of the T to raise fares. The person said Senate leaders allowed the amendment setting a 5 percent limit on fare increases to pass because they wanted to avoid a lengthy debate on the Senate floor on a Saturday. But the person said the Senate leaders, in cooperation with House leaders, took care of the situation in conference committee by doubling the allowable fare hike.
John Englander, the MBTA’s attorney and one of the first state officials to say the T was legally allowed to raise fares by 10 percent, said he based his opinion on the wording of the law as well as conversations with officials familiar with its passage. “What we understand is that it was a deliberate decision made in conference,” he said. “They understood what they were doing.”
Asked who told him that, Englander said he wasn’t comfortable with disclosing his sources. “To me the language is clear, and that’s the end of the story for a lawyer,” he said. “However, we wanted to be comfortable that it wasn’t a mistake and we became quite comfortable it wasn’t a mistake.”
The state legislature’s conference committee’s deliberations should be subject to public oversight with open meetings and easily available records of those meetings. It’s downright ridiculous for the two Republicans on the conference committee to not know what happened, for one member saying he doesn’t remember what happened, another member saying he wasn’t there for the deliberations and for two members not even to respond to CommonWealth’s inquiries to discuss what transpired. Sergeant Shulz would be proud of how our state legislature works.
The committee changed the language, then the legislature voted the amended language. That was the time to speak up.
Why did the original motion sponsors not notice that there was a material change? This is pretty basic stuff, as legislative work goes.
Conference committee deliberations should be subject to Open Meeting Law. Had that happened, people would have caught on right away on this 5% annual rate hike.
But the legislators were careful to carve an exception for all the legislative functions when they imposed Open Meeting Law on all local governments.