By Erin Sherbert
By Howard Cole
By Erin Sherbert
By Erin Sherbert
By Leif Haven
By Erin Sherbert
By Chris Roberts
By Kate Conger
Late in the afternoon of Oct. 23, 1999, Muni driver Sarah Benton picked up an empty bus at a Municipal Railway yard in southeast San Francisco, drove off, and an hour later exited Highway 280 at Monterey Boulevard, racing at 70 miles an hour toward her first stop. Slowing down in front of the speeding bus was a red Nissan Sentra driven by J.C. Criswell, a retired Hunters Point Shipyard laborer who was on his way to visit his cousin. Benton's bus slammed into the back of Criswell's car so hard that a slightly raised identifying number on the front of the bus was imprinted on the trunk of the Nissan. "It was like an explosion," Criswell recalled in a legal deposition. "My spine went."
When California Highway Patrolman Robert Johansen pulled up to the scene, Benton told him a white truck had crushed the Nissan, and she had swerved to miss the accident. More cops arrived; they measured skid marks, drew diagrams of the accident, and interviewed witnesses. After seeing the bus medallion number stamped on the back of the wrecked Nissan, Johansen reinterviewed Benton.
"She seemed very confused," he wrote in his report. "I noticed the odor of an alcoholic beverage emanating from her breath, that her speech was thick and slurred, and that her eyes were bloodshot and watery." The bus operator acknowledged downing a margarita at the Sam Jordan's bar on Third Street, around the corner from the Muni bus yard, before her shift started. After she failed a sobriety field test, Benton was arrested and charged with driving under the influence of alcohol. At the highway patrol station downtown, she took a Breathalyzer test, which showed her blood alcohol level to be 0.13 percent. That's to say, she was legally drunk. (She was, in fact, later convicted of driving under the influence.)
Immediately after the accident, the Municipal Railway suspended Benton without pay. She was let go a year later. By the dictates of common sense, she should have been fired a long time before she used a Muni bus to paralyze Criswell from the waist down for the rest of his life.
Muni officials had long been aware that Benton was a substance abuser and a terrible driver, says attorney Joseph Nierenberg, who sued Muni for Criswell. Research for a lawsuit Nierenberg filed on behalf of Criswell turned up a damning Muni accident report in court files related to a child custody hearing in San Mateo County. Muni hired Benton as a part-time driver in 1991; in February 1992, the report said, Benton caused "property damage" while operating a streetcar in the Sunset District. The accident inspector at the scene "detected a suspicious odor on the operator's breath," and Benton failed to pass a field sobriety test, "repeatedly touch[ing] her upper lip and nostrils instead of the tip of her nose as called for," the report said.
The inspector escorted Benton to St. Luke's Hospital for a urine test. "When the operator submitted her first urine sample to the staff nurse, the nurse questioned the sample's validity: the nurse said the sample did not emit heat that should have been generated by the body ... [t]herefore the nurse requested another sample, and was present when the operator produced the sample." Benton's urine tested positive for cocaine, and the driver was suspended without pay for 30 days.
In November 1992, one of the fathers of Benton's children declared under penalty of perjury that Benton's brother "advised me that she used our children's urine to pass drug tests." Another man who had fathered a child with Benton swore that, while he knew her, she drank an average of two 8-ounce glasses of vodka every day and once ran her car into a mailbox while driving under the influence. (In a sworn court declaration, Benton denied using drugs or alcohol.)
Despite the streetcar accident and the cocaine test, in August 1993 Muni promoted Benton to full-time status. In court filings, Muni officials have admitted that over the next six years, Benton had at least five more accidents, one of which was her fault. When the City Attorney's Office entered into settlement negotiations with Nierenberg, however, it filed court papers that said, "There is no evidence that Muni knew or should have known that Ms. Benton had a 'known alcohol and substance abuse problem.'"
Nierenberg, who has sued Muni many times, laughs. He says that after he showed a deputy city attorney the Muni accident report and the positive drug test, "Muni paid me to go away." In September 2000, the transit agency settled with Criswell, paying him $3,350,000.
In 2001, Muni buses, streetcars, trolleys, and cable cars were involved in 3,145 accidents -- or more than twice as many crashes per mile traveled as transit vehicles in five comparable U.S. transport systems. San Francisco pedestrians are particularly endangered: The U.S. Department of Transportation reports that from 1998 to 2000, Muni bus drivers killed 10 pedestrians, more than were killed by the bus drivers in all five comparable cities combined. Beyond loss of life, injury, and property damage, Muni's safety problems have had a tremendous economic cost, with the agency paying out $42 million in settlements over the last five years to accident victims.
Muni's lamentable safety record should be well known to the agency's management, its policy-making board, and the San Francisco Board of Supervisors, which approves Muni's budget. Time and again, government audits and scholarly studies have severely criticized the agency's safety practices and repeatedly recommended reforms.
Even so, Muni's hiring practices remain inferior to those used by similar transit systems, and its disciplinary rules continue to be remarkably lax. Muni drivers, for example, can be at fault in as many as three accidents in a year without fear of significant disciplinary action. And, when a year has passed, the record of an accident is erased from the driver's file, leaving the driver free to crash, and crash, and crash again, without danger of being fired.
When contacted for this article, members of the board that sets Muni policy, the Municipal Transportation Authority, seemed to be unaware of, or not particularly concerned by, the agency's poor safety record. MTA board member Mike Casey said he did not know about the high accident rate. When asked how transit accidents might be reduced, board member Shirley Breyer Black said, "Pedestrians should look where they are going." And MTA board Chairman H. Welton Flynn, who has been sitting on Muni governing boards since 1970, said, "We are doing something about the problem, but I can't say what."
When asked about the documented safety problems at his agency, Muni Executive Director Michael Burns acknowledged that the long-standing practice of including driver safety and discipline standards in union contract negotiations works against improving the Municipal Railway's safety record. Still, he said he is proud of Muni's safety record in the last four years, noting that the number of accidents per mile had been reduced since his 1999 hiring.
Indeed, since Burns joined Muni, the agency has instituted innovative policies aimed at lowering Muni's extraordinary accident rate. A few years ago, Burns' administration decided that some falls on transit vehicles -- often caused by drivers stopping or starting a bus or streetcar too abruptly -- would no longer be defined as accidents, automatically creating a reduction, on paper, in the accident rate. And, ostensibly because of budget constraints, the agency recently fired the three statisticians who had been compiling the records that document Muni's immense safety problem.
Burns says Muni is in the process of installing a new computer system to replace the statisticians. "We do not need the statisticians anymore," he explains. "There is no more work for them."
Ned Einstein, a national transit safety expert based in New York City, has a less charitable judgment on the statisticians. "Unlike most other transit agencies, [Muni] drivers seem to have the impunity to get into lots of accidents," he says. "Muni had a small cadre of professionals analyzing these. So Muni's approach to the [high] accident rates was apparently to eliminate the accident analysis team."
Early on a Saturday morning in November 1998, Muni driver Levert J. Horner revved up his 5 Fulton electric-powered trolley bus; on his first run, at around 5 a.m., one of his trolley poles popped off the electric wires over Market Street, between Third and Fourth streets. This kind of disconnection -- known, in transit-speak, as dewirement -- occurs when a "shoe" at the end of the pole that delivers electricity from overhead wires to the electric motor of a trolley loses contact with the wire. Dewirements occur often in San Francisco, Muni's own management has acknowledged, because the design of the carbon inset inside the shoe is incompatible with the design of the hundreds of miles of overhead wires on which it rides. The two pieces of equipment -- wire and shoe -- just do not fit properly.
At 1 p.m. that Saturday, Horner's pole dewired again, at almost the same spot on Market Street. The driver allowed his bus to coast about 150 feet before stopping. Along the way, the end of the dewired pole, now hanging low off the side of the bus, smashed the head of Andy Gescheidt, the 40-year-old owner of Popular Mechanix, a small Volvo repair shop in the Mission District, who was walking to a movie theater. The pole fractured his skull and pushed bone fragments into his brain, causing brain tissue to leak out. Gescheidt nearly died.
At the time, Gescheidt and his lawyer wife, Karen Balacek, owned a house in Noe Valley and were very much the San Francisco middle-class couple, comfortably affluent, urbane, politically liberal, outdoorsy. In his leisure time, Gescheidt enjoyed writing computer programs and riding his motorcycle. When he came home from the hospital months later, his short-term memory and vision were impaired, he bumped into objects while walking, he could not perform simple arithmetic calculations. The quality of his life and the life of his wife was irrevocably changed.
"The last thing I remember before the accident," says Gescheidt in an interview with SF Weekly, "is going for a hike with Karen at Point Reyes. Even today, I have to look at your business card to remember your name." He grins sweetly. "I like to think I present a normal façade to people like yourself, though. Three years ago, a person had to walk around with me to keep me from walking into mailboxes."
"Most people carry a list of things in your brain that you can do -- like ride a bike. It's like having a file cabinet with your identity stored. It's no fun to dig into the cabinet and find empty files," his wife says. "But Andy's recovery is so much better today than what I would have settled for in those dark days of bargaining with God."
It took three very long years for Gescheidt to reach a settlement agreement with San Francisco City Attorney Louise Renne. While the couple went heavily into debt for medical and living expenses, the City Attorney's Office contested the brain-damaged man's claim with a "design immunity" defense, claiming that, under California law, the city could not be held liable for equipment design flaws like an ill-fitting trolley shoe that causes dewirement.
"I think they just wanted to test the design immunity theory," Balacek says bitterly. "Neither the deputy city attorneys nor Muni cared about what happened to Andy. Nobody sent flowers to the hospital room, not the mayor, not the head of Muni, not the driver. Nobody called us to see how we were, or to simply say, 'We are sorry that this happened.'"
When a Superior Court judge upheld the design immunity argument, Gescheidt and Balacek were devastated. "The city intended to give us zero," Balacek recalls.
On appeal, though, the ruling was overturned. Gescheidt's attorneys subsequently deposed a slew of Muni employees -- administrators, training instructors, mechanics, and drivers -- as well as outside experts to determine exactly what had happened. It soon became evident from depositions taken by Gescheidt's lawyers that Muni drivers and high-ranking administrators knew pedestrians had been severely injured by dewired poles. Three officials testified that Muni was fully aware of the problem with the carbon shoe insert and had taken no steps to fix it. In fact, the city had previously settled similar pole-thumps-head lawsuits -- at least four since 1990. "The risk to pedestrians, I don't think, was given much consideration," Muni's chief statistician, R.J. Hundenski, testified.
"There is a culture of secrecy at Muni," Balacek, still shocked by the callousness of city government, says. "They keep secrets from each other. One division doesn't know what the other is doing. They pretend if you don't talk about it, it didn't happen."
In mid-2001, Muni awarded Gescheidt and Balacek $2.5 million. The settlement was calculated to cover Gescheidt's medical expenses, with a bit thrown in to compensate the couple for the liquidation of their former lifestyle. Gescheidt and Balacek are still searching for emotional closure, though.
"If the city acknowledges that there is a safety problem with Muni, that will be a first step towards closure," Balacek says. "Transit will never be 100 percent safe, but when you find something you can fix, why not fix it?"
Since Gescheidt's accident, the number of Muni dewirements has been rising. In 2001, there were 64 dewirements that resulted in damage or personal injury, a 55 percent increase over the previous year, according to a Muni report.
According to the U.S. Department of Transportation, 10 pedestrians died in Muni bus crashes in 1998, 1999, and 2000. During this time frame, Seattle transit bus drivers were involved in accidents that killed one person. In Atlanta, two pedestrians were killed. The same number died in Boston and Washington, D.C. One pedestrian died in Sacramento, none in San Diego. Muni's kill rate is remarkable in a holistic sense: 33 percent of all pedestrians killed by vehicles in San Francisco during this time were killed by Muni buses, according to the federal data. The ratio in Seattle and Boston was 16 percent; 13 percent in Los Angeles; 10 percent in Atlanta.
The pedestrian-death problem shouldn't be news to the agency's executives or policy-making board. Two years ago, Hundenski, Muni's chief statistician, reported to the Municipal Transportation Authority that anyone who read San Francisco newspapers could see that pedestrian accidents were increasing dramatically; in fact, they had by more than a third over the previous year. "Could those fatalities have been prevented?" the record-keeper asked rhetorically. "Probably. Could they have been easily prevented? Probably not."
To determine the extent of Muni's safety problem and the effectiveness of its response, SF Weekly spent four months obtaining and examining thousands of pages of public records, including internal transit agency reports, audits, and court files relating to lawsuits brought by accident victims; talking to the maimed, and to their attorneys; speaking with survivors of the deceased; interviewing a score of transit experts across the country; and scouring government databases for comparative accident data.
Public transit systems are studies in complexity. None is perfectly comparable to another. State and federal officials acknowledge that some of their transit accident statistics are unreliable, usually in the direction of underreporting. And broad statistics seldom provide a complete explanation for the causes of individual accidents. Keeping those caveats in mind, and even giving Muni managers the benefit of the doubt, the public record makes it clear that Muni accident rates are higher than those in comparable transit agencies.
Although hills, weather, street conditions, traffic flow, and other individual characteristics of different cities make it statistically difficult to compare the safety successes and failures of municipal transit agencies, the statistical benchmark most commonly used for assessing the relative safety of public transit systems, according to a wide variety of transportation experts, is the accident rate, or the number of collisions per million miles traveled. The figures used for the intercity comparisons in this article were obtained from officials at six transit systems selected, after consultation with transit experts, because they are similar to Muni in geography, population density, numbers of passengers served, budget size, fleet size, and modes of transit offered (i.e., motorbus, electric trolley, and light rail). Not all systems provided statistics in all categories.
In 2002, Muni had 109 accidents per million miles traveled. By comparison, the King County Department of Transportation, which serves the Seattle metropolitan area, had 38 accidents per million miles. The Los Angeles Metropolitan Transit Authority had 35, Washington, D.C.'s Metropolitan Area Transit Authority 27, and Atlanta's MARTA just 25. From 1989 to 1999, Muni's accident rate increased by 11 percent (reaching a high of 124 four years ago). Muni's numbers improved after the agency redefined what it considered an accident, but Muni is still booking an accident rate that is more than twice what comparable systems report.
And Muni drivers appear to be getting worse at their job. In 2001, according to the most recent data available from the agency, Muni reported that the number of operators involved in one or more accidents increased by 8 percent over the previous year. And the number of operators with zero accidents was 200 fewer than in the previous year, an 8 percent decrease.
Ned Einstein, president of Transportation Alternatives Inc., a transit safety consulting firm, worked as a planner for many years in Los Angeles, Paris, and Washington, D.C. One of the country's leading experts on transit safety, he says he understands the concerns of the union drivers, the system administrators, and the public, and is familiar with Muni's safety issues. He says that Muni management does not draw appropriate conclusions from its accident data.
"There is a subtle blend of factors from which a high accident rate emerges," he contends. With too much overtime, he says, drivers become fatigued. Because the schedules are too tight, it is hard to enforce safety. Drivers cut corners to save time.
"It's a chain reaction," observes Einstein. "Things add up and make the driver's job tough."
Overall, he says, it just takes a lot of energy, intelligence, stamina, and attention to detail to be a safe transit driver.
On Dec. 15, 1996, Emily Landsverk walked out of her Cole Valley apartment to buy burritos for herself and her boyfriend. A recent UC Berkeley graduate in anthropology, Landsverk, 26, was working as a legal secretary for the American Civil Liberties Union. At the intersection of Haight and Cole, she crossed the street.
Welton N.M. Beattie, a 12-year Muni veteran, was driving the No. 37 bus west on Haight Street. In a deposition, Beattie said that he felt a "bump." Then another. Somethingwas in the way of the bus, he did not know what. He accelerated; bump again. According to a half-dozen witnesses, Beattie rolled the 15-ton bus on top of the obstruction and stopped. Angry, frightened passers-by pounded on the bus door, shouting, "Get off of her! Get off of her!" At that point, according to his deposition, Beattie looked in his side mirror, saw a body under his tire, and pulled forward.
Weeping from the pain of a crushed pelvis, Landsverk feebly tried to raise herself on her forearms. Beattie called the Muni dispatcher. A witness to the accident, Lorri Puente, who was on the sidewalk, testified in a deposition that the driver "was screaming about being disruptive of his schedule. And I kept a couple of people from going at him physically because they said, you know, 'What's wrong with you? You just ran over an individual twice, dragged her. Don't you have any compassion?'
"And he was a very angry individual. He says -- he said, you know, 'This is going -- I'm going to be late for my schedule.'"
As paramedics rushed Landsverk to San Francisco General Hospital, where she fought for her life, Beattie told a police officer, "I was making a left turn. All of a sudden this lady ran in front of the bus." Based on Beattie's statement, the cop wrote into his report that Landsverk had crossed the street outside the crosswalk -- in other words, that she was a jaywalker. The police did not interview eyewitnesses to the initial strike. But Puente testified that a passer-by told her Landsverk had been inside the crosswalk.
Doctors treated Landsverk for three broken ribs; a bruised lung; a punctured diaphragm; a lacerated liver; wounded intestines; a busted spleen; nerve damage in her legs and urethral sphincter muscle; a tear in her vagina, which had been separated from her abdominal wall; a shattered, free-floating pelvis; a degloved (skinned) left arm; deep abrasions on her legs; a large chunk of flesh torn out of her groin; and a broken pinkie finger.
In a deposition given a few months later to Landsverk's attorney, Mary Alexander, Beattie changed the story he told the police, saying he never saw Landsverk until he heard "a human cry." Parsing his words, he seemed to try to disassociate himself from a bus that had acted badly on its own volition.
Beattie: It appeared that the bus had some kind of contact with the pedestrian ....
Alexander: [Did] the bus run over the person?
Beattie: I determined that there was an injured person.
Alexander: When did you decide that your bus had run over this person?
Beattie: I never came to that decision or conclusion.
Alexander: As you sit here today, have you come to the conclusion that your bus ran over the person?
Beattie: I came to the conclusion that it was involved in an incident.
Beattie decided that he could not have seen Landsverk run in front of the bus because "[t]hat entire front end is a blind spot." He said that drivers often discussed among themselves how the blind spots made it impossible to see pedestrians. "We [also] informed the training department that there are blind spots all over."
Alexander: You understand that as a bus driver you are supposed to yield to pedestrians?
Alexander: Pedestrians have the right of way; is that correct?
Beattie: At some times.
Alexander: What times do pedestrians not have the right of way?
Beattie: Jaywalking ....
Alexander: Are you supposed to yield to a pedestrian if they're jaywalking?
Beattie: You can. It depends on the situation ....
Alexander: Your goal is not to hit a pedestrian even if they're jaywalking; is that correct?
Alexander then read out loud the instructions from the Muni Operators Training Guidebook requiring bus drivers to make sure pedestrians see the bus and to yield to pedestrians, even when they "make foolish moves." The guidebook notes that buses have blind spots on the right and left sides; to avoid creaming pedestrians in the blind spots, operators are to drive very slowly when turning or moving through a crowded area, and to maintain a four-foot "space cushion" of clearance on the curb side.
Landsverk, who has recovered from her injuries and recently graduated from law school, says she is not angry with Beattie. "But," she says with emotion, "he should have seen me. It could have been prevented."
Muni saw the matter differently, listing the Landsverk accident as "unavoidable," meaning that Beattie was not at fault. But the driver could have been an unsympathetic figure in court, Alexander says, not least because of his apparent lack of concern about the results of his actions. In his deposition nearly a year after the accident, Beattie testified that he did not know whether Landsverk was alive or dead.
"I just say a little prayer that she's okay," he said.
Shortly after Beattie testified, the City Attorney's Office agreed to settle the case for $4 million, a Muni record to this day.
In September 1997, the National Transportation Safety Board severely criticized Muni's driver safety practices and called for a reform of Muni's entire management, maintenance, and operations structure. In 1999, auditors from the California Public Utilities Commission found that Muni did not have adequate safety procedures, and that the safety rules it did have were not being followed. The auditors found that a significant cross-section of train operators generally did not understand the meaning of the flashing lights that regulate train speed. The auditors also reported that Muni's accident rate exceeded the rate for all other transit agencies under its jurisdiction, including Los Angeles, Sacramento, and San Diego.
Proposition E, passed by voters in November 1999, restructured the governing board of Muni and called for safety improvements. Mayor Willie Brown increased the agency's budget by $100 million. But the core safety problems remain unresolved. Those problems relate to the quality of Muni drivers hired, the overworking of drivers, and an absurdly lax disciplinary process for drivers involved in accidents.
R.J. Hundenski, the longtime Muni statistician recently laid off from his job, blames about half of Muni-related pedestrian accidents on erratic behavior by jaywalkers and drunks. There are some problems with aging vehicles, incompatible pieces of equipment, inadequate maintenance, and chronically malfunctioning doors on streetcars. Also, the fairly new transit "islands," which require passengers to cross traffic to board buses, are infamous among transit experts nationwide as examples of unsafe engineering.
But one of the main causes of Muni's high accident rate, Hundenski says, is the agency's hiring process, which regularly allows inexperienced, unskilled, and untrainable drivers to join the payroll.
To apply to be a Muni driver, you must be 21 years of age; have no more than two moving violations, and no convictions for major traffic violations, on your driving record; have no convictions for drug or sexual felonies during the last seven years; and have one year of "public contact or customer service experience." Applicants are required to pass a written test and a drug test.
Unlike the transit agencies for Atlanta, Seattle, New York City, and Chicago, Muni does not require driver applicants to have commercial driving licenses. And unlike public transport systems in many major cities -- including Seattle, Atlanta, New York City, and Sacramento -- Muni does not require that job applicants have two or more years of professional driving experience.
Hundenski, who has been involved in driver selection for 20 years, is very critical of the hiring process. "There needs to be better assessment of abilities," he says. "Applicants need to be tested behind the wheel, at least mimicking driving a bus. ... There should be a whole battery of tests and physical observation, not just a written exam."
Einstein, the New York-based transit expert, has testified in more than 100 court cases as a forensic witness, for plaintiffs as well as for defendants. He says he has read hundreds of depositions by bus drivers. As a consequence of a national driver shortage, he says, some agencies may be settling for less qualified people. "It's important to remember," he says, "that a bus is complex to drive. It can be as difficult as piloting an airplane.
"Lots of drivers are idiots."
Burns, the Muni director, says that he would like to improve his agency's hiring standards, but that it is hard to do so because "there are not enough people out there for us to fill the positions."
Once drivers are hired, Muni puts unnecessary pressure on all of them, good and bad, qualified and not. And the agency's disciplinary process is so benign as to be essentially useless in terms of rooting out bad operators.
Dr. June Fisher, associate clinician at UCSF and an internationally renowned expert on the health of transit workers, has been studying Muni drivers since 1978. By its nature, Fisher says, bus driving is one of the most stressful occupations in the world, and one that's full of conflicting demands. In San Francisco, for example, drivers are torn by pressure from above to meet tight schedules, while driving in a hilly, pedestrian-filled environment in vehicles afflicted with blind spots. (Although Muni vehicles are usually behind schedule -- only 46 percent of the fleet was on time in 2001 -- management closely monitors the timing of the stops, and drivers can be reprimanded for arriving at a scheduled stop late, or, for that matter, early.)
Due to an unusually high rate of driver attrition -- about a third higher than comparable transit systems -- Muni has to replace 10 percent of its 2,235 drivers every year. In addition, 14 percent of the scheduled operators are absent from work on any given day, according to Muni documents. The high rates of turnover and absenteeism mean that there is a permanent shortage of available drivers, a constant need for new hires, and a continuing call for drivers to work overtime, says Hundenski.
And when it comes to transit, overtime is dangerous. Federal transit safety law requires that transit operators "may not remain on duty for more than 12 consecutive hours or more than 12 hours spread over a period of 16 hours." A 1999 state audit reported that every Muni operator examined in a spot check was in violation of this law. "The records indicated that these employees were on duty anywhere from 13 to 15 hours per working day with the exception of one operator who was on duty for 19 hours," the audit said.
Transit planner Einstein says there is a common thread in the hundreds of bus accidents he has studied: In the vast majority of cases, fatigued drivers are rushing to catch up with tight schedules.
Muni reported in 2001 that 70 percent of its drivers chalked up one or more accidents a year; 8 percent of the drivers scored four or more accidents a year; 4 percent had five or more. Yet the agency's system of driver discipline is almost laughably lenient. Drivers are generally allowed to be at fault in three or more major accidents a year before being subject to dismissal, says Muni spokesman Alan Siegel. (Major accidents are defined as causing more than $5,000 in property damage.)
After his first "avoidable" accident, a Muni driver receives some retraining. His second or third avoidable accident results in more retraining, with the possibility of a suspension of up to 30 days. Even racking up three major accidents in a year doesn't necessarily mean termination. A driver who racks up five avoidables in a year has a good chance of being fired, says Siegel, but there is no limit on the number of unavoidable accidents a driver can incur without being disciplined.
Making matters worse, chronically bad drivers can slip through the system of discipline year after year because after 12 months, each accident is expunged from the record (in what is called a "rolling drop"). In other words, a bad driver might be allowed as many as five major, avoidable accidents a year for his entire career.
"A rolling drop of one year is categorically irresponsible," Einstein says. "If you keep expunging the record, you cannot identify drivers that really need to be gone. And you have no rationale with which to dismiss them."
Muni's leniency in this regard is not shared by similarly configured, but safer, transit systems. At the Seattle transit agency, whose union drivers have a much better safety record than Muni's drivers, accidents remain on a driver's record for four years, and a system of "points" is used in deciding driver discipline. The San Diego transit system rolls accidents off the driver records after three years. The Los Angeles County Metropolitan Transit Authority never expunges an accident from the driver's record and can take a driver's entire career into account when necessary, says a spokesman.
The Massachusetts Bay Area Transit Authority rolls an accident off the record every two years. But five avoidable accidents incurred during the two-year period results in an automatic "recommendation for discharge."
And in Seattle, San Diego, Atlanta, and Boston, a driver who tested positive for cocaine while on duty (or off duty) -- as Muni's Sarah Benton did -- would be given a swift boot, not a promotion.
Unlike those agencies, Muni has no rules for the automatic termination of an operator convicted of driving under the influence. Muni allows drivers, on their first DUI conviction, to "reduce the loss of pay and return to driving duties" by attending a class about substance abuse.
Many transit experts interviewed for this story insisted it is unrealistic and dangerous to negotiate safety rules as part of a labor contract. But what might be unrealistic and dangerous elsewhere is standard operating practice in San Francisco, where the politically powerful Transit Workers Union Local 250A is a major force in city elections, and driver hiring, disciplinary, and safety policies have been part of the Muni collective bargaining agreement for as long, it seems, as anyone can remember.
At 4:40 p.m. on April 16, 1998, Wilhelmina Antoinette McGriger drove the 38 Geary bus toward Ocean Beach. McGriger had racked up 12 accidents in a little over four years as a Muni driver. Four of these accidents were on the record as her fault, or "avoidable."
As she cruised down Geary Boulevard, McGriger stopped to let a passenger off at 33rd Avenue. She then turned right onto 33rd, heard a thump, then a scream. She got out of the bus and saw a woman lying under the coach. She called Muni dispatch and reported, "A female pedestrian made contact with the bus, causing injuries to herself."
A few hours later, a senior investigator from the City Attorney's Office interviewed McGriger. She denied having a record of accidents and said she did not know that the victim, Janice Racek, was in the crosswalk when she drove through it.
Racek, 47, had just been to the movies. She suffered from muscular dystrophy, kidney disease, diabetes, and hypertension, and, to cap it all, had survived a heart transplant. She lived with her husband, Wayne, an automobile mechanic, in a small apartment in the Richmond District.
According to city investigators, Racek started across the street in front of the bus, walking with the green light and inside the crosswalk. McGriger's bus hit her on her left side, crushing her feet as she fell. Two men who had been traveling on the bus tried to comfort Racek. She was "curled up like a fetus," said Mark Sutton, one of the witnesses. She was moaning, "I don't want to die, I don't want to die," he said.
"Me and Howard [the other witness] are the only two that ran out there," Sutton told an investigator charged with assessing potential liability to the city. "Howard's been in Vietnam, and all I could do was console him. It was all I could do not to look at, it was as, it, it was hamburger."
Racek's almost-severed feet were amputated by doctors at General Hospital. She lost personal independence and was repeatedly rehospitalized over the next few months. Six months after the accident, she was institutionalized for psychiatric care because she had become unable to cope with the dimension of her tragedy, according to court records.
Racek's attorney, Walter Walker, had the accident re-enacted a few weeks after it occurred. Experts for the plaintiff determined that McGriger must have looked left, while turning right. The only reasonable alternative to that theory, says Walker, is that she deliberately ran over Racek. McGriger did not respond to repeated telephone calls seeking comment.
In defending the city and McGriger, the City Attorney's Office posited that Racek's previous ailments had so impaired her judgment that she mistakenly walked into the bus. When that argument collapsed in the face of the re-enactment, the city settled Racek's claim for $3.3 million, which, Walker says, is enough to finance her new life as a perpetual invalid.
McGriger still works for Muni. The agency declines to say in what capacity.
When it comes to safety, Muni's statisticians have been telling it like it is for decades. In report after report to their bosses, they have cataloged the agency's severe and costly safety problems. But it's not as if the statisticians have been nagging nabobs of negativism.
Last year, for instance, statistician Peter Der wrote a simple computer program to red-flag accident-prone drivers and drivers who were racking up overtime in excess of government safety standards. The idea was to improve safety by holding drivers and their supervisors accountable. Der says that Muni director Michael Burns declined to use the program. Burns says he does not remember Der's proposal.
Rather than reduce driver overtime, hire more qualified drivers, or discipline drivers more effectively, Muni has chosen a simpler method of reducing its accident rate. A few years ago, over Hundenski's objections, Muni officials decided that some types of "incidents" on Muni vehicles would simply no longer be defined as accidents.
And on July 1, ostensibly because of budget cutbacks, Muni laid off Hundenski, Der, and a third statistician. Due to the obliteration of the agency's statistical unit, Hundenski said as he cleaned out his desk, there is no longer any way for Muni to keep track of accidents, much less analyze causes and suggest fixes. "There has been a concerted effort to treat a number of incidents as non-accidents," Hundenski remarked. "In fact, I believe that this is much of what is behind getting rid of me."
In the four years ending at the close of December 2002, Muni paid $42.2 million in compensation to more than 4,000 accident victims. Pedestrians received $15.2 million of the total. Transit expert Einstein says that across the country, cities are "spending more money on defending transit agencies, trying to annihilate the plaintiffs, than they are spending trying to prevent accidents."
Muni's continuing refusal to face and deal with a safety problem that kills citizens and costs taxpayers millions seems to be based, like many a chronic San Francisco problem, in bureaucratic inertia and union politics. Over the years, Muni has allowed its standards for hiring and disciplining drivers to be set out in its contracts with TWU Local 250A. Because overtime increases drivers' pay, there is little incentive for the politically influential TWU to call for reforms to reduce overtime, and, thereby, the driver fatigue at the root of many transit accidents. In essence, transit safety has been a bargaining chip in contract talks, rather than a focus of concern -- for either union leaders or Muni management.
It's a chip, apparently, that will remain part of the game.
"Whether or not it makes sense to include safety and discipline issues in collective bargaining negotiations is not the issue," Burns says. "Ideally, you would prefer not to. But it's a long-standing tradition in San Francisco to do so.
"It's not going to change. It's the character of the system."