AMERICAN PUBLIC TRANSPORTATION ASSOCIATION 2015 LEGAL AFFAIRS SEMINAR

AMERICAN PUBLIC TRANSPORTATION ASSOCIATION

2015 LEGAL AFFAIRS SEMINAR

February 22-24, 2015

Hyatt French Quarter

New Orleans, LA

Welcome to the 2015 APTA Legal Affairs Seminar. This professional development seminar will help you gain up-to-date information on

legislative, regulatory litigation, and other legal issues affecting the transit industry.

Topics for this conference will highlight the most recent developments in civil rights, procurement, commuter rail, rail transit, and 13(c) labor

protection, as well as quickly evolving legislative and regulatory initiatives that will impact transit lawyers.

As part of APTA’s sustainability commitment, conference materials are posted and available to registered attendees approximately one week prior to the seminar and continuously available for reference or downloading thereafter at http://www.apta.com/mc/legal/synopsis/Pages/default.aspx. To view the

conference materials during the conference, please be sure to download the 2015 Synopsis of the Law and either bring a laptop with the files to the conference or print the portions you wish to use in hard copy and bring those copies to the conference. The 2015 Synopsis of the Law will be made available upon request in CD or printed form at additional cost. Additionally, the conference materials will be available for downloading on-site throughout the conference.

APTA’s Vision Statement

Be the leading force in advancing public transportation.

APTA’s Mission Statement

To strengthen and improve public transportation, APTA serves and leads its diverse membership through advocacy, innovation, and information sharing.

APTA’s Policy on Diversity

APTA recognizes the importance of diversity for conference topics and speakers and is committed to increasing the awareness of its membership on diversity issues. APTA welcomes ideas and suggestions on how to

We would like to thank our sponsors for their generous

contributions to the 2015 Legal Affairs Seminar

2015 Legal Affairs Seminar

Program-at-a-Glance

Sunday, Feb. 22 Monday, Feb. 23 Tuesday, Feb. 24

Seminar will be held in D.H Holmes on the first level.

9 a.m. – 3 p.m.

Registration

10 – 10:15 a.m.

Welcome & Seminar Overview

10:15 – 11 a.m. Legislative Update 11 a.m. –12 p.m. Round-Table Discussion 12:15 p.m. – 1:15 p.m. Lunch

Sponsored by Kaplan Kirsch & Rockwell

1:15 p.m. – 2:30 p.m.

A Conversation with the FTA Chief Counsel

2:30 – 3:30 p.m.

Regional Multi-jurisdictional Organizations:

Legal Issues Involved in

Intergovernmental Cooperation

3:30 – 4:30 p.m.

Alternate Transportation Services: A Blessing or a Curse? 6 – 7 p.m. Opening Reception Garden Courtyard Second Level Sponsored by Nossaman LLP 7:30 – 8:30 a.m. Breakfast

Sponsored by Hogan Lovells US LLP

8:30 a.m. – 4 p.m.

Registration

8:30 – 10 a.m.

Ins and Outs of Transit Litigation: Tips, Trends and Tales

10 – 10:15 a.m.

Break

10:15 – 11:45 a.m.

Rail Session

This Train is Bound for Glory, This Train…

11:45 a.m. – 12 p.m.

Break

12 – 1:15 p.m.

Working Lunch:

Ten Years After Katrina: Public Transit's Recovery

Sponsored by Hanson Bridgett LLP

1:15 – 1:30 p.m.

Break

1:30 – 2:30 p.m.

Technology Procurements

2:30 – 3:30 p.m.

Surviving the Triennial & Other Reviews

3:30 – 3:45 p.m.

Break

Sponsored by Apperson Crump PLC

3:45 – 5:15 p.m.

Labor Update:

13(c) & Collective Bargaining

5:30 – 7:30 p.m.

Special Event

Crescent City Brewhouse

Sponsored by Thompson Coburn LLP

7:30 – 8:30 a.m.

Breakfast

Sponsored by Manatt, Phelps & Phillips, LLP

8 – 8:30 a.m.

Legal Affairs Committee Meeting

8:30 – 11 a.m.

Registration

8:30 – 9:30 a.m.

Hot Topics in Real Estate

9:30 – 10:30 a.m.

P3 and Innovative Financing

10:30 – 10:45 a.m.

Break

Sponsored by Beveridge & Diamond, P.C.

10:45 – 11:45 a.m.

Civil Rights

11:45 a.m. – 1 p.m.

Ethics Update:

The Ethics of Negotiation, and How to Protect Privileged Information

1 p.m.

Closing

R

ECOGNITIONS

The APTA Legal Affairs Committee acknowledges with gratitude the following Committee members who have contributed invaluably to the public transit legal community. We wish each of them much happiness upon their well deserved retirements.

Ed Gill

Ed Gill had a lengthy career in transit in the government, with APTA, and in private practice. Ed started his career in the office of the Chief Counsel in the US Coast Guard. He served as Deputy Chief Counsel of the Urban Mass Transportation Administration from 1978 to 1989 and while there wrote the original Buy America regulations. Ed then joined APTA as Assistant Chief Counsel and Executive Director of Regulatory Affairs. In 1995, Ed joined the law firm of Eckert, Seamens, Cherin and Mellott and in 2001 joined Thompson Coburn. Ed represented public agencies across the Country and transit suppliers on Buy America and FTA regulatory issues, New Starts, construction issues, contracts, and procurement matters. Ed is a proud graduate of Georgetown University and Catholic University, and a very proud Red Sox fan!

David J. Miller

David Miller has had a remarkable career contributing his creativity, energy and legal acumen to the development of public transportation in the San Francisco Bay Area for over four decades. He served in a leadership capacity at APTA as the Chairperson of the Labor and 13(c) Committee from 1980 -1985, and as a member of the APTA Elderly and Disabled Task Force prior to enactment of the Americans with Disabilities Act. As the General Counsel to the Golden Gate Bridge, Highway and Transportation District, the San Mateo County Transit, the CalTrain Joint Powers Board, and the San Mateo County Transportation Authority, he has led the legal teams on major transportation infrastructure projects throughout the Bay Area, and been a wise counselor to generations of policy boards and general managers. An accomplished jazz pianist, he continues to perform and record music with his daughter Rebecca, an accomplished vocalist, and the Dave Miller Trio. Retirement means more time for family, travel, golf and to root for his childhood team, the Giants.

Ken Scheidig

Ken Scheidig served as the Chair and Vice Chair of the APTA Legal Affairs Committee from 2006 through 2010, and was a member of APTA’s Accessibility Standards Policy and Planning Committee and the Procurement Standards Oversight Committee. He served on many APTA and TRB panels on topics ranging from how to be a more effective transit attorney, organizing successful transit funding ballot measures, and Title VI issues arising from reductions in services.

Ken served as General Counsel to the Alameda-Contra Costa Transit District from 1992 through 2010. The District convinced him to come back in 2012, which totally interfered with his golf game. Ken is an avid golfer and remembers specific holes on golf courses all over the USA, even some in Europe, and can tell you how well, or not, he played them. He would entertain his staff by singing “Let it Snow” beginning in July of every year. He also managed to convince the entire District that the “Legal Department is your friend.”

In Memoriam

Will Sears

We note with sadness the untimely passing of our friend Will Sears, on November 28, 2014.

Will was a lifetime transit advocate, working on the staffs of Representative Robert Walker and Senator Rick Santorum, as an advocate working with the Martin Hamberger firm and the Peterson Group, and as FTA’s Chief Counsel.

Will was appointed FTA Chief Counsel by President Bush in 2001, and was instrumental in drafting and advocating for what ultimately became SAFETEA-LU, which established record federal funding of public transportation.

Most of all, Will was a warm and welcoming friend, whether driving back to Washington with a car full of Philly cheese steaks, or holding forth on the local bocce court, and he will be greatly missed.

2015 Legal Affairs Seminar

Sunday, February 22

9 a.m. – 3 p.m.

_Registration

10 – 10:15 a.m.

_{Welcome & Seminar Overview}

Speaker:

Madeline Chun, Member, APTA Board of Directors; Chair, APTA Legal Affairs Committee; and Partner, Hanson Bridgett LLP, San Francisco, CA

Salvador G. Longoria, Chairman, Board of Commissioners of the Regional Transit Authority, New Orleans Regional Transit Authority, New Orleans, LA

10:15 – 11 a.m.

Legislative Update

Congressional reauthorization efforts, appropriations for transit programs, and what to anticipate in the coming year and

beyond, will be discussed from the transit industry and U.S. Department of Transportation perspectives.

Speaker:

Robert L. Healy, Jr., Vice President-Government Affairs, APTA

11 a.m. – 12 p.m.

_{Round-Table Discussion}

This is an informal session for public transit agency attorneys to introduce yourselves and share information and strategies for handling legal issues facing your agencies. Come with your questions, ideas, and news about the legal challenges your agencies have asked you to solve.

Moderator:

Madeline Chun, Member, APTA Board of Directors; Chair, APTA Legal Affairs Committee; and Partner, Hanson Bridgett LLP, San Francisco, CA

Sunday,

12:15 – 1:15 p.m.

_Lunch

Kaplan Kirsch & Rockwell

1:15 – 2:30 p.m.

_{A Conversation with the FTA Chief Counsel}

America Act, the Secretary's Ladders of Opportunity initiative, and evolving issues in implementation of the Federal Transit Administration's Safety Program, state of good repair, transit asset management, ADA, MPO planning, the Capital

Investment Grants Program, and Buy America. Speaker:

Dana Nifosi, Acting Chief Counsel, Federal Transit Administration, Washington, D.C.

2:30 – 3:30 p.m.

_{Regional Multi-jurisdictional Organizations:}

Legal Issues Involved in Intergovernmental

Cooperation

This panel will discuss the various legal issues and challenges that arise with expansion or integration of an existing

transportation system with other jurisdictions or transit agencies. Panelists will overview recent projects and explain how counsel assisted with working out disputes over taxing authority, enabling legislation, funding, and fare policies. The allocation of responsibility and roles of the regional transit agency with neighboring jurisdictions will also be addressed. With regard to intergovernmental agreements, the panelists will address key elements to successful negotiation, governance, accounting, audit responsibilities, and important contractual provisions.

Moderator:

Dana A. Henderson, General Counsel, Pierce County Public Transportation Benefit Area Authority Corporation, Lakewood, WA

Sunday,

Speakers:

Desmond Brown, General Counsel, Sound Transit, Seattle, WA

Elizabeth O’Neill, AGM Legal Services/Chief Counsel, Metropolitan Atlanta Rapid Transit Authority, Atlanta, GA

Karen G. Seimetz, General Counsel, Chicago Transit Authority, Chicago, Il

3:30 – 4:30 p.m.

Alternate Transportation Modes:

A Blessing or a Curse

To Uber or not to Uber? Alternate transportation modes have been popping up like weeds during the last few years, from TNCs (Taxi Network Companies) to Google buses to special shuttles. The panel will provide an overview of these new services, legal problems associated with them, and discuss their effects on more traditional modes, such as public transit and taxis.

Moderator:

Robin M. Reitzes, Immediate Past Chair, APTA Legal Affairs Committee, and Deputy City Attorney, City & County of San Francisco, CA

Speakers:

Michael N. Conneran, Partner, Hanson Bridgett LLP, San Francisco, CA

Kate Toran, Deputy Director, Taxis and Accessible Services Division, San Francisco Municipal Transportation Agency, San Francisco, CA

6 – 7 p.m. Garden Courtyard Second Level

Opening Reception

Monday, February 23

7:30 – 8:30 a.m.

_Breakfast

Hogan Lovells US LLP

8:30 a.m. – 4 p.m.

_Registration

8:30 – 10 a.m.

_{The Ins and Outs of Transit Litigation:}

Tips, Trends and Tales

From low exposure personal injury cases to high stakes environmental and civil rights disputes, in-house and outside counsel are kept busy servicing the litigation needs of transit agencies. This panel will embark on a wide-ranging

exploration of litigation challenges, including: building a legal department from scratch within a major transit agency;

developing a critical early checklist for major litigation; developing the administrative record early in the NEPA process; techniques to manage a diverse litigation docket; effective ways to keep General Managers and Boards of Directors in the loop; and strategies to maximize insurance coverage. Legal and political aspects of "bet the farm"

litigation, with examples, will be covered, as well as emerging issues and trends in transit litigation.

Moderator:

Geoffrey P. Forgione, Associate General Counsel, Southern California Regional Rail Authority, Los Angeles, CA

Speakers:

Kimon Manolius, Partner, Hanson Bridgett LLP, San Francisco, CA

W. Eric Pilsk, Partner, Kaplan Kirsch & Rockwell LLP, Washington, D.C.

Nancy-Ellen Zusman, Assistant Chief Counsel for Litigation and Regional Operations, Federal Transit Administration, Chicago, IL

Monday,

10:15 – 11:45 a.m.

_{Rail Session:}

This Train is Bound for Glory, This Train…

The rail side of the transit industry continues to see a growth of issues that arise as state and local governments around the country realize anew the benefit of relying upon rail as an integral part of the package of transportation alternatives available to their residents and visitors.

Panelists will discuss: rail safety issues, both the relationship between FRA’s traditional regulatory structure and the new proposed FTA safety rules, and the attempts by local

governments that have commuter rail service to address the risks associated with increased volumes of crude oil moving across the shared systems; Amtrak’s attempts to enforce the timely

performance requirements established by PRIIA, and the challenges Amtrak has faced in implementing the mandate to have a nationwide system for allocating costs incurred by state-supported intercity services; and, the ways that commuter rail agencies are finding their roles increase as the communities they serve recognize the importance of rail service as part of the transit network. In addition, we’ll have a brief update on the status of the “RailTerm” case that is addressing the status of contractors to the rail industry under the Railroad Retirement Act.

Moderator:

Charles A. Spitulnik, Partner, Kaplan Kirsch & Rockwell LLP, Washington, DC

Speakers:

Kevin M. Sheys, Partner, Nossaman LLP, Washington, DC

Allison I. Fultz, Partner, Kaplan Kirsch & Rockwell LLP, Washington, D.C.

Teresa J. Moore, General Counsel, South Florida Regional Transportation Authority, Pompano Beach, FL

John D. Heffner, Of Counsel, Strasburger & Price, LLP, Washington, DC

Monday,

11:45 a.m. – 12 p.m.

_Break

12 – 1:15 p.m.

_{Working Lunch:}

Ten Years After Katrina: Public Transit’s

Recovery

After the devastation from Hurricane Katrina in August 2005, the New Orleans Regional Transit Authority (NORTA) contracted with Transdev North America (formerly Veolia Transportation) to get its battered transit system back in operation. Mark A. Major, NORTA's Chief Investment Officer, will discuss the profound post-Katrina challenges to NORTA, how the agency has recovered, and what lies ahead. Speaker:

Mark A. Major, Chief Investment Officer, New Orleans Regional Transit Authority, New Orleans, LA

Sponsored by:

Hanson Bridgett LLP

1:15 – 1:30 p.m.

_Break

1:30 – 2:30 p.m.

_{Technology Procurements}

This session will provide both public and private perspectives on key issues that arise when negotiating contracts including intellectual property, ranging from off-the-shelf software purchases to complex integrated system implementation projects or rolling stock purchases. This interactive

discussion will feature useful practice tips, highlight pitfalls to avoid, and provide examples of battle-tested contract language. Moderator:

Steven D. Miller, Partner, Hanson Bridgett LLP, San Francisco, CA

Speaker:

Monday,

2:30 – 3:30 p.m.

_{Surviving the Triennial & Other Reviews}

It is no longer just the triennial and an occasional procurement review. Now FTA performs multiple reviews, including drug and alcohol, DBE, civil rights, and financial management. This panel will discuss tips for surviving such reviews, the

problems both grantees and the FTA have encountered with them, and the advantages to the transit agency from the reviews. This is intended to be an interactive panel, and audience participation is encouraged.

Moderator:

Robin M. Reitzes, Immediate Past Chair, APTA Legal Affairs Committee, and Deputy City Attorney, City & County of San Francisco, CA

Speakers:

Richard Bacigalupo, Federal Relations Manager, Orange County Transportation Authority, Orange County, CA

Roberta Bender, Deputy General Counsel, Metropolitan Transportation Authority, New York, NY

Cecelia Comito, Assistant Chief Counsel, Federal Transit Administration, Washington, DC

3:30 – 3:45 p.m.

_Break

Sponsored by:

Apperson Crump PLC

3:45 – 5:15 p.m.

_{Labor Update:}

13(c) & Collective Bargaining

The panel will discuss labor and section 13(c) labor protection issues that arose in the contracting of rail maintenance-of-way services, the “business case” for lawyers in the contracting of streetcar services, the recent decision handed down by a California court finding a Department of Labor determination that state pension legislation violated collective bargaining rights under 13(c) to be arbitrary and capricious, and issues in collective bargaining in the transit industry from the

perspective of a national contractor. Moderator:

Jane Sutter Starke, Partner, Thompson Coburn LLP, Washington, DC

Monday,

Speakers:

Teresa J. Moore, General Counsel, South Florida Regional Transportation Authority, Pompano Beach, FL

Tom Secrest, Vice President, Labor Relations, First Transit, Inc., Cincinnati, OH

G. Kent Woodman, partner, Thompson Coburn LLP, Washington, DC

Kenneth A. Korach,JD, President, Transportation Research Associates, Inc., Philadelphia, PA

5:30 – 7:30 p.m.

Crescent City Brewhouse

Special Event

Sponsored by:

Tuesday, February 24

7:30 – 8:30 a.m.

_Breakfast

Manatt, Phelps, & Phillips, LLP

8 – 8:30 a.m.

_{Legal Affairs Committee Meeting}

Madeline Chun, Member, APTA Board of Directors; Chair, APTA Legal Affairs Committee; and Partner, Hanson Bridgett LLP, San Francisco, CA

8:30 – 11 a.m.

_Registration

8:30 – 9:30 a.m.

Hot Topics in Real Estate

This panel will address joint development, rail station development, and station and park-n-ride area development from the perspectives of the Federal Transit Administration (FTA); Amtrak in its work with local governments, transit providers, and station owners; and, UTA as it engages in station area planning and developments along new light and commuter rail corridors. FTA guidance, legislation governing Amtrak and the application of those laws and regulations to planning, funding, and contracting for development between public and private partners will be highlighted.

Moderator:

Marla L. Lien, Vice Chair, APTA Legal Affairs Committee, and General Counsel, Regional Transportation District, Denver, CO

Speakers:

Christopher T. Hall, Attorney Advisor, Federal Transit Administration, Washington, DC

Jennifer Rigby Kohler, Senior Counsel, Utah Transit Authority, Salt Lake City, UT

Jane R. Spangler-Weiss, Associate General Counsel, Amtrak Philadelphia, PA

Tuesday,

9:30 – 10:30 a.m.

_{P3 and Innovative Financing}

This panel will address the development, financing and operation of mass transit and BRT/toll road partnerships, including procurement issues, private sector risk transfer, federal funding considerations, and examination of the various P3 tools currently available to transportation agencies.

Moderator:

Marla L. Lien, Vice Chair, APTA Legal Affairs Committee, and General Counsel, Regional Transportation District, Denver, CO

Speakers:

David Narefsky, Partner, Mayer Brown LLP, Chicago, IL

Jodie Misiak, Director, Office of Innovative Project Delivery, Maryland Department of Transportation, Baltimore, MD

Tony Ryan, Partner, Hogan Lovells, Denver, CO

10:30 – 10:45 a.m.

_Break

Sponsored by:

Beveridge & Diamond, P.C.

10:45 – 11:45 a.m.

_{Civil Rights}

ADA is on everyone's mind as the comment period recently closed on FTA's proposed new chapters Circular 4710.1. We will share with you the positions FTA has taken as a result of recent inquiries and complaints related to ADA, as well as other federal initiatives of interest.

As the DBE Final Rule changes became effective in November 2014, we will provide you with an overview of the FTA's objectives and new program modifications. We are fortunate to have on the panel both a representative of FTA and a consultant advocate for transit agencies, who will have a dialogue about the effectiveness of the tools afforded by the program.

Tuesday,

We will also bring to you the concerns of the agencies working on the ground to implement their DBE programs, from certification to goal setting to short-fall analysis to the Personal Net Worth Statement itself. We all have our "eye on the prize" of creating opportunity, but what is the best way to get there? If different groups face different problems, how can these be addressed? How can the regulations be used in the most effective way?

Moderator:

Nancy Lowenthal, Attorney, San Francisco Bay Area Rapid Transit District, Oakland, CA

Speakers:

Linda Ford, Director, Office of Civil Rights, Federal Transit Administration, Washington, DC

Colette Holt, Attorney, Colette Holt & Associates, Oakland, CA

11:45 a.m. – 1 p.m.

_{Ethics Update:}

The Ethics of Negotiation, and How to Protect

Privileged Information

The Ethics Session will discuss two of the most critical issues faced by transit lawyers: (1) ethics in negotiations and alternate dispute resolution (ADR); and (2) protection of confidential and privileged information.

The “do’s” and “don’ts” of negotiations are evolving. In lawyer-to-lawyer settlement negotiations and ADR, just as in traditional adversarial proceedings, lawyers have ethical duties and professional responsibilities to their client, the adverse party, and the tribunal. To what extent may a lawyer puff its claim? When does bluffing as to one’s position to a mediator cross the line into misrepresentation, which subjects the lawyer to professional discipline?

Tuesday,

Transit lawyers are responsible for protecting the transit agency’s confidential and privileged information. With increasing emphasis on electronic information and the use of social media, it is critical to examine the interplay of Open Records statutes with confidentiality considerations. There are differences between attorney-client privilege and the lawyer’s duty of confidentiality. Staff often expects that every conversation with counsel and every email on which counsel is a recipient is privileged and confidential. The board, management, and staff must recognize what is and is not privileged, and how confidentiality can be lost. The session will address how to assert, protect, and defend attorney-client privilege; measures the transit agency can take to protect confidential information; and ways by which confidentiality may be lost or attorney-client privilege waived.

Moderator:

Bruce M. Smith, Attorney at Law, Apperson Crump PLC, Memphis TN

Speaker:

Fred Wagner, Principal, Beveridge & Diamond, P.C., Washington D.C.

1 p.m.

_Closing

Speaker:

Madeline Chun, Member, APTA Board of Directors; Chair, APTA Legal Affairs Committee; and Partner, Hanson Bridgett LLP, San Francisco, CA