MOORLACH UPDATE — Highway Robbery — September 23, 2013

Yesterday’s OC Register provided the subject for this morning’s Orange County Transportation Authority Board meeting. Taking a twist on the quote from “Field of Dreams:” If you build it, the state will take it away. It should be a most interesting morning.

I-405 tolls, expansion on OCTA table Monday

States must unclog carpool lanes or lose federal funding.


Hundreds of thousands of daily Orange County commuters have a direct stake in a debate that has been building for years and now hinges on the next few months: What to do with Interstate 405?

The Orange County Transportation Authority has more than $1 billion on the table, enough to pay for at least one new lane in each direction. But Caltrans has made clear that extra lanes alone might not solve I-405’s congestion problems and that charging tolls in the carpool lanes is very much an option.

The OCTA board is scheduled to vote Monday on whether to join Caltrans in looking at tolling policies as part of its planning. The mere possibility of such a move already has stirred fierce opposition in the cities that front the I-405, which treat “toll” as just another four-letter word.

At issue are 16 jammed miles of I-405, from just past the Los Angeles County line to the 73 freeway. Included is the busiest stretch of freeway in the United States, a segment near Seal Beach that sees 370,000 vehicles a day.

Orange County voters backed a plan to add a single lane in each direction when they approved a half-percent sales tax to pay for such transportation fixes. But the OCTA has also considered building two lanes in each direction, or adding a tolled “express” lane to the project.

Into that debate came a piece of federal legislation that threatened to block federal funding to any state that let its carpool lanes bog down with traffic and slow below a 45 mph average, even during rush hour. The law applies whenever a state lets solo drivers of electric cars or other low-emission vehicles use the carpool lanes, which California does. it gave those states six months to fix any problem lanes they had identified, or risk losing their funding.

Caltrans launched a statewide study of its carpool lanes, concluding that nearly every freeway in Orange County has sections where the carpool lanes fail that federal standard. Among the remedies it’s considering: Changing the definition of “carpool” to three people or more and charging a toll for anyone else who wants to use the HOV lanes.

That has added a game-of-chicken element to the I-405 debate because Caltrans could act without Orange County, implement tolls and then take control of the revenue. The department is considering a range of options for freeways across the state, not just in Orange County; I-405 has become such a focus of discussion because that effort coincides with Orange County’s search for solutions on the freeway.

Caltrans typically has followed the wishes of local transportation authorities when it comes to planning big freeway improvements like the I-405 project.

“But in this case,” District Director Ryan Chamberlain told the OCTA last month, “it’s not a guarantee.”

“Our HOV systems are heavily congested,” Chamberlain said. Even with one new lane in each direction, he added, “we still have a concern out there that we’d like to see addressed.”

Said OCTA board member Tim Shaw: “I don’t think you need an expensive crystal ball to see where this is going.”

The recommendation heading to OCTA board members on Monday would keep the focus on building one free lane in each direction of I-405. But it also would have the OCTA explore ways to ease traffic in the carpool lanes – including analyzing toll policies and the possible use of toll revenue.

At the same meeting, board members are scheduled to vote on a letter to Caltrans that questions its carpool-lane traffic study. A draft of the letter says that the study was based entirely on traffic counts from six months in 2011, using detection systems that weren’t always reliable. Part of the freeway was under construction during the study.

“I just get the sense that my colleagues are being lobbied pretty heavily to just accept it and move on,” said board member and county Supervisor John Moorlach. He favors another option that costs more but would add two free lanes to each side of the freeway, and he said he’s not giving up on that. Tolling, he said, “gives a whole new definition of highway robbery.”

That’s a familiar argument in cities like Los Alamitos and Westminster that have an over-the-fence view of anything that happens on I-405. They mobilized to fight the idea of tolls last year, when the OCTA board considered it, and won a hard-fought “no” vote. They have again started filing letters of protest.

“They’re trying to impose something from the outside, and they’re trying to use scare tactics,” said Westminster Councilwoman Diana Carey, who represents the so-called “corridor cities.” “It’s definitely working.”

On the other side of the debate is the Orange County Business Council, which was an early and ardent supporter of using tolls to get traffic moving in the carpool lanes. It points to the 91 freeway, where the OCTA manages traffic in the 91 Express Lanes by raising or lowering tolls based on congestion.

The council’s chief executive, Lucy Dunn, also serves on the state Transportation Commission and said California needs to find other sources of revenue to maintain its roads and highways. Caltrans estimates that it needs $7.1 billion a year to maintain its highway system; it has around $2.1 billion.

Critics of tolls often point out that they paid for the freeways once already, with the tax dollars that built them. Dunn doesn’t buy it. “That would be like saying, ‘Well, I bought my house, so I don’t have to do repairs on it.’ ”

Caltrans, as the owner of the freeway system, has the final say on what happens to Orange County’s slice of I-405. It currently has four options: one new lane in each direction; two new lanes in each direction; one or two tolled express lanes replacing the carpool lanes, paired with one or two new free lanes; or nothing. It’s scheduled to make a decision before the end of the year, possibly as early as October.

Construction could start in 2015, with the new lanes open to traffic in 2020.

Attending the meeting

What: OCTA meeting

When: 9 a.m. Monday

Where: OCTA headquarters, 600 S. Main St. in Orange


September 22


The OC Register’s Business section’s “The Daily Briefing” had a “Chatter” segment of brief news items. After cajoling a reporter about printing positive news, this is what resulted under the title “Dutiful taxpayers:”

Orange County property owners have been more prompt with tax payments than at any time in the past 12 years, says John Moorlach, the county’s tax collector. Moorlach said 98.5 percent of property owners paid their taxes on time in fiscal year ’97-98.

September 23


The OC Register printed a letter to the editor, “Moorlach’s dramatics,” that was written by an individual with whom I now get to work with on a regular basis as he serves in the Sheriff’s Command Staff. As you can imagine, we exchange fun smiles to this day. The retirement system now has a $5.7 billion unfunded actuarial assumed liability, more than four times what it was in 2003. With hindsight, the “doomsayer” was right.

Orange County Treasurer John Moorlach suggests that the county consider filing Chapter 9 bankruptcy again as a negotiation tool with public employees [“The ongoing union takeover,” Guest Column, Sept. 21].

What is he thinking? The taxpayers should recognize this “politician” for what he truly is – a doomsayer.

Fiscal responsibility and tough negotiations are what we expect from our treasurer during negotiations, not pie-in-the-sky dramatics.

Steven Kea

Santa Ana


Tony Saavedra of the OC Register provided a public safety debate concern in “DNA contract reveals plan to probe offenders’ families – ‘Genetic surveillance’ plan put on hold by D.A.”

Now you see it, now you don’t: A proposed $300,000 contract between Orange County District Attorney Tony Rackauckas and a British DNA lab provided for software that would help track down criminals by identifying their relatives.

The method, called "familial searching," is rarely used in the United States because of privacy concerns, although California Attorney General Jerry Brown has said he would consider opening the state database to such searches on a case-by-case basis. The FBI is exploring its use as well.

Rackauckas removed the "familial searching" provision from the 30-page contract with Forensic Science Service last week after an aide to John Moorlach, chairman of the board of supervisors, started asking questions. Rackauckas said Monday he doesn’t want the controversy surrounding familial searches to derail his effort to build a DNA database of people convicted of local misdemeanors. So far the database has 4,000 samples.

"I don’t want to risk the contract for an ancillary function that we may not even use," Rackauckas said. "It was something I believe is a good investigative tool…but if I’m going to start getting push-back from various people, I don’t think we need it."

The amended one-year contract, pulled from the Sept. 16 agenda by Moorlach and chief-of-staff Mario Mainero, will go before the board on Tuesday – with a $50,000 reduction.

But that doesn’t mean Rackauckas is giving up on familial searching. He’s just putting it on the back-burner, letting the state, FBI and other jurisdictions take the lead in exploring the method and fighting the legal challenges.

Authorities in the United Kingdom have solved several high-profile murders by finding people whose DNA closely matched the offender, usually siblings, parents or offspring. Investigators then focused on the relatives in an attempt to identify the criminal. Such methods are used only on violent crimes when a direct match is not found.

Still, privacy advocates such as the American Civil Liberties Union and some scientists see familial searching as a form of genetic surveillance of the innocent.

"It is guilt by blood," said Michael Risher, an attorney for the ACLU of Northern California. "Because your brother did something 50 years ago, you’re going to be a suspect in an unsolved case."

Risher said the genetic tactic expands the DNA database from people arrested in a crime to their families, putting the spotlight of suspicion on them.

David Lazer, a Harvard professor and author of "DNA and the Criminal Justice System," said the debate comes down to a delicate balance between privacy and security.

"I am deeply troubled by effectively placing people under genetic surveillance just because they are related to people pulled in by the system," Lazer said. "I am also deeply troubled if all you had to do was click a button and use some shoe leather to catch a serial rapist (and you didn’t)."

Local prosecutors, however, say that familial searching led to the arrest of the famous "BTK" killer in Kansas – who eluded authorities for three decades until they tied DNA from the crime scene to his daughter. To ignore family DNA is to possibly let criminals run free, prosecutors say.

Camille Hill, an Orange County deputy district attorney assigned to DNA cases, said it is a shame for lab technicians to sit on matches that are not close enough to be the offender, but are close enough to be a family member.

"You can’t just ignore that," Hill said. "You have a match that close, you need to see where it goes."

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