The regional planning agency that operates a flawed toll-collection system along state Route 125 has now been named in a proposed class-action lawsuit filed by a driver who says he was wrongly charged after using the roadway.
The lawsuit, filed this week against the San Diego Association of Governments, or SANDAG, seeks repayment of what it says were improperly collected fees and penalties going back four years. It also wants a judge to block the agency from collecting those fees going forward.
The plaintiff is Brandon Kelsoe, who lives within a half-mile of the tollway and regularly drives it. He says he was wrongly cited for not paying his toll and issued two $40 fines. The suit alleges many other drivers were similarly victimized.
“Plaintiff is not the only driver who received false violations and notices of violations while defendant SANDAG’s transponder software was malfunctioning,” the lawsuit states.
Agency officials declined to comment on the complaint. But the lawsuit follows a series of missteps and allegations related to the toll-collection system that have dogged SANDAG for years.
The SANDAG board of directors last month agreed to find a new vendor to operate the toll system along the 10-mile stretch of state Route 125 slicing across the South Bay.
That decision was made after senior staff acknowledged long-running problems with the software that the contract was unable to correct. They said more than 45,000 drivers could have received incorrect toll billings but that most of those have since been corrected.
The new tolling contractor will be a joint venture of Deloitte and A-to-Be, under a nearly $30 million agreement that was reached without the benefit of competitive bidding. Instead, SANDAG staff told the board they reviewed six proposals and recommended the two firms.
At the same time, the board agreed to allow original contractor ETAN Tolling Technology and its outside manager HNTB to continue collecting almost $2 million through the transition.
SANDAG staff told the board that the two prior contractors, who were paid more than $12 million in recent years to operate and oversee the state Route 125 toll system, needed to remain on the public payroll to ensure a smooth transition to the new operator.
The San Diego Union-Tribune reported last year that internal SANDAG records showed that concerns were raised with ETAN and HNTB almost as soon as they were hired to manage and oversee the state Route 125 toll system.
Despite those concerns, however, senior agency staff continued to pay the companies.
Board members complained at public meetings in December and January that they had not been kept apprised of the contract failures. However, previous audits had repeatedly found SANDAG was failing in its contracting practices and not properly monitoring its vendors.
Audits also found the agency relied too heavily on consultants, hampering staff’s ability to learn how to oversee contractors themselves. Senior staff also neglected to correct deficiencies that could in theory allow contractors to collude in order to extend their work, auditors found.
The lawsuit also comes just three months after SANDAG was sued by a former finance director.
In that lawsuit, Lauren Warrem said she was fired in November after raising questions about the ETAN tolling software. Warrem said the software wrongly billed at least 45,000 drivers and she was unable to tell when — or even if — the collection errors might be fixed.
SANDAG’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 subsequent disclosure of that information,” her suit alleged.
In the Kelsoe litigation, SANDAG is accused of failing to disclose problems with the tolling software and actively misrepresenting the extent of the errors.
“By their conduct, defendant has engaged in unfair competition and unlawful, unfair, and fraudulent business practices,” the complaint states.
“Defendant’s unfair or deceptive acts or practices occurred repeatedly in defendant’s trade or business, and were capable of deceiving a substantial portion of the purchasing public,” it adds.
SANDAG has yet to respond to the filing in court.
The case has been assigned to Superior Court Judge Richard S. Whitney, and a case-management conference is scheduled for August.
Both cases are being litigated by San Diego attorney Josh Gruenberg, who said he began hearing from many drivers like Kelsoe after news reports of the toll-system failures last fall.
The planning agency is a $1.2 billion organization that focuses on regional transportation and other issues that affect San Diego County and cities such as climate change, economic development, housing and clean energy.
The 21-member board is composed of elected officials from the county and its 18 cities.
SANDAG also is responsible for investing billions of dollars generated by the regional half-cent sales tax that was first approved by voters in 1987 and extended in 2004. Union leaders and other activists spent more than $2 million last year to qualify a November ballot measure that would increase what’s called the TransNet tax by a half-cent.
