The long-flawed tolling system that has vexed officials at the San Diego Association of Governments for several years is now the subject of a legal claim filed by a driver who says he was wrongly billed for using the South Bay Expressway.
The claim was filed by the same lawyer representinging a former finance director who has accused the regional planning agency known as SANDAG of firing her in retaliation for blowing the whistle on the failed software.
It seeks unspecified damages and will likely be rejected by the SANDAG board of directors when it meets Friday in closed session. Such a claim must be filed and rejected by the public agency before a civil lawsuit can proceed.
The public session of the same meeting includes an update on the problematic toll-collection system and a path forward, which is expected to include the hiring of a new vendor to manage the toll-road fees at a cost of more than $28 million.
SANDAG declined to comment on the claim or any potential class-action lawsuit.
San Diego attorney Joshua Gruenberg filed the claim late last year on behalf of Brandon Kelsoe, a Chula Vista resident who said he twice was incorrectly cited for driving on the toll-road portion of state Route 125 known as the South Bay Expressway.
“There were issues with the ETAN transponder software from, at least, Oct. 11 through Oct. 12, 2023 that caused these alleged violations,” states the claim.
According to the claim, Kelsoe received a bill for $85 for the two violations — $2.50 for each pass through the tollway and two $40 fines for failing to pay.
He petitioned the agency because he holds a FasTrak pass and believed the charges were a mistake.
Kelsoe was given two options: pay $7.50 to settle the violations, or request a hearing and pay $127.50, the claim asserts. He opted to pay $7.50 but later received a notice indicating that he had not paid his fine and now owed $205.
The plaintiff “is aware that fabricated ‘toll violations’ by SANDAG and ETAN are emblematic of violations (that) are occurring to all drivers on the SR125 highway.” the claim says.
“Kelsoe not only seeks to redress the instances on Oct. 11 and 12, 2023, but to redress past, present and future fabricated ‘violations’ and seemingly misappropriation of funds,” it adds.
Gruenberg said he heard from numerous drivers like Kelsoe after The San Diego Union-Tribune and other news organizations reported about the problematic software last fall.
He said he expects SANDAG will reject the claim and that he has already prepared most of what he plans to be a class-action lawsuit he may file as soon as later this month. Gruenberg said he does not believe discussions aimed at resolving thousands of inaccurate billings will succeed.
“We would love for SANDAG to sit down with us and craft a remedy, but we are not hopeful,” he said.
The planning agency acknowledged late last year that the tolling system that charges drivers for using the South Bay Expressway wrongly billed some drivers and failed to account accurately for payments to accounts held by frequent toll-road users.
According to internal audits and staff reports, flaws in the billing system developed by ETAN Tolling Technology adversely affected some 45,000 people.
Records also show that SANDAG officials were aware of the deficiencies for years but nonetheless continued to pay the company as well as another contractor that had been hired to help oversee the system.
The $1.2 billion planning agency was sued in November by former finance director Lauren Warrem, who said she was wrongly fired after refusing to omit her findings from reports and raising questions about the failed software in an internal meeting.
“Defendant’s motivating reason for terminating her employment was based on her opposition to misrepresenting and/ or omitting material financial information in an audit, as well as her subsequent disclosure of that information,” she says in her lawsuit, also filed by Gruenberg.
By the time the SANDAG board convened in December, however, it was clear changes would be forthcoming.
Several board members complained publicly that they were not kept informed about deficiencies in the tolling system and asked why senior officials continued to pay the vendors for work when it did not meet contractual standards.
A staff recommendation on the Friday agenda calls for ETAN Tolling to continue being paid to help make sure the transition to a new vendor goes smoothly.
