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How do judges reach conclusions in complex cases where the law is often open to interpretation, or where the laws are still changing in response to the times? Are judges influenced by cultural currents? Do politics sway their decisions? What role does their material interest play in shaping their rulings and legal reasoning?

Appellate Court Judges Fin Holdings 1

A network diagram of the 42 of California’s 105 Appellate Court judges who own at least $2,000 of stock or bonds in a financial company. The larger and darker colored nodes are financial companies. The node size is based on the number of judges who reported an ownership stake in the company. The larger the line connection two node (judges to their investments), the larger the investment in dollar terms.

I don’t claim to have answers to any of these questions. But in searching for some possible reasons for the outcomes of homeowner lawsuits against banks, mortgage lenders, and mortgage servicing companies in California, I thought it might be useful to compile information on the economic interests of the judges themselves. The advantage of focusing on the economic interest of judges, as opposed to other factors that shape their interpretations of law, like political ideology or culture, is that material economic interests are literally material, and therefore easily identified and measured.

Appellate Court Judges Fin Holdings 2

17 California Appeals Court judges reported owning at least $2,000 of stock or bonds in Bank of America, the most of any financial company. Bank of America is one of the largest mortgage lenders and servicers in the U.S., and has been frequently sued by California homeowners over alleged fraudulent and deceptive business practices, and wrongful foreclosure. Justice Elizabeth Grimes reported owning between $100,000 and $1 million of stock in Bank of America in 2012, the most of any judge. Altogether these 17 judges reported owning as much as $2.3 million of Bank of America securities.

Appellate Court Judges Fin Holdings 3

Citibank was the second most commonly held financial company investment by California’s Appeals Court judges. 10 justices reporting owning at least $2,000 in stock or bonds.

From 2008 to the present California’s courts have been swamped with lawsuits, many more than in prior years, contesting foreclosures. Most often the plaintiffs have been homeowners suing banks and mortgage servicers over the foreclosure process. The banks have also initiated lawsuits against each other, against businesses, and against homeowners.

I haven’t done the research that would allow me to discern whether or not the banks are winning more than borrowers, but what I’ve heard from plaintiffs’ lawyers is that they feel the justice system has been biased in the favor of large financial companies. Lawyers and homeowners say that the courts favor the interests of creditors over consumers. Has anyone compiled comprehensive statistics on the outcomes of lawsuits between banks and borrowers through the financial crisis? I’d love to see that data set.

Appellate Court Judges Fin Holdings 8

Judge Donald Franson of the 5th District Appellate Court reported owning stocks or bonds worth significant amounts in multiple banks as well as in the Och-Ziff hedge fund (which was briefly financing a foreclosure to rental business), the credit card powerhouse VISA, and Warren Buffet’s conglomerate Berkshire Hathaway (which owns a bank, a real estate firm, and other real estate and financial sector companies).

One theory to explain what homeowners and their lawyers perceive as judgements biased in favor of financial companies involves the material interests of the judges. In the most direct sense, many judges own stocks and bonds in mortgage lending and servicing companies, and so these judges might be biased in favor these same companies when they are sued by borrowers. Judges should recuse themselves from cases in which they have a financial interests in the profitability of one of the parties before them, but they sometimes don’t. Recusal is meant to avoid any actual biased options stemming from conflicted interests on the part of the justices, but it’s also supposed to prevent even the perception of a conflict of interest. Perception that justice system is fair is as big a deal it seems as the actual fairness of outcomes, however you might measure the latter.

Appellate Court Judges Fin Holdings 9

Justice Arthur Gilbert of the 2nd Appellate District Court disclosed owning stock in three of the largest national banks that dominate the mortgage lending market, as well as having owned a financial stake in Lender Processing Services, a small specialized financial company that describes itself as “a leading provider of mortgage and consumer loan processing services, mortgage settlement services, default solutions and loan performance analytics.” Gilbert has sat on appellate panels hearing foreclosure lawsuits pitting banks and mortgage servicers against homeowners.

A more nuanced version of this conflict of interest theory has it that judges are ideologically influenced by their class position as high income earners, and holders of considerable wealth, a lot of which is invested in the securities of the major banks, and the mortgage lending and servicing companies. Quite a few of California’s Appeals Court judges are millionaires and they vest their wealth in stocks and bonds of large blue chip companies, often ones that pay hefty dividends. The financial sector is a major investment target for judges, and its biggest banking and mortgage lending companies pay them hefty dividends. Under this theory, even if a judge doesn’t hold stock directly in a financial corporation that argues a case in their court, judges are believed to be influenced by their general interest in the banking and mortgage lending sectors of the economy. Judges are said to exhibit bias in favor of the banks, and to respond to borrowers’ legal arguments with a weary skepticism as rulings in favor of borrowers could upset the appreciation of stocks and the yields on bonds of the entire financial sector.

Lastly it should be noted that financial companies are probably not the largest targets of investment by California’s Appeals Court judges. If ranked by the upper end of the disclosed range of investment, finance and banking falls after tech, energy (mostly oil and gas), consumer products, industrial manufacturing, and diversified funds (including private equity, mutual funds, bond funds, etc.) as a sector of the economy where judges like to seed their wealth.

California Appellate Court Judges Ownership of Securities, by Sector of the Economy, Reported as of 2012.
Sector Low Est. High Est.
Technology $3,214,000 $31,620,000
Energy $3,902,000 $27,560,000
Consumer Products $2,474,000 $24,270,000
Industrial $3,272,000 $22,960,000
Funds $3,984,000 $21,770,000
Finance, Banking $4,034,000 $21,270,000
Retail Stores $914,000 $8,820,000
Pharma & Biotech $804,000 $7,770,000
Telecom $752,000 $7,260,000
Real Estate $1,586,000 $6,780,000
Healthcare $386,000 $3,680,000
Entertainment & Hospitality $550,000 $3,400,000
Utilities $328,000 $3,240,000
Government Bonds $240,000 $2,400,000
Misc $226,000 $2,230,000
Consulting $166,000 $1,630,000
Agricultural $142,000 $1,410,000
Insurance $114,000 $1,070,000
Mining $96,000 $930,000
Media $68,000 $640,000
Logistics $64,000 $570,000
Transportation $34,000 $320,000
Total
$27,360,000 $201,700,000

 

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michael-corbat

Citibank’s Michael Corbat, 2nd highest paid banker on the list.

In 2013 the top 27 executives at Bank of America, Wells Fargo, JPMorgan Chase, Citibank, and Ally —the five big financial institutions most responsible for the foreclosure crisis, and subject to the National Mortgage Settlement— paid themselves $296 million in cash and stock. Under the National Mortgage Settlement these banks were forced to write down principal debt on home loans in California. The average principal reduction they granted on 1st lien loans was about $137,000. 33,000 California borrowers benefited from this.

Had the banks applied the $296 million to further principal reduction, instead of using it to pay their top 27 executives, they could have wiped out debt on another 2,164 home loans, effectively saving about that many homes from foreclosure.

And if the banks applied the same sum they paid to their top 27 executives over the past 3 years (2011-2013), a total of $735 million, the could have reduced the 1st lien principal debt on 5,367 homes in California.

To put that in perspective, there were about 31,400 foreclosures in California in 2013, and 283,000 foreclosures between 2011 and 2013. It would have made a small, but significant, contribution to reducing the number of foreclosures and freeing up the finances of thousands of struggling households.

But instead the banks paid their CEOs, CFOs, COOs, VPs and Presidents millions. Average pay in 2011 for these bankers was $11 million each. Wells Fargo’s CEO John Stumpf led the list with over $19 million in compensation in 2013, followed Citibank executives Michael Corbat and James Forese. Three of JPMorgan Chase’s bankers (none of them the infamous Jamie Dimon) followed in the 4th, 5th, and 6th position pulling $16 and $17 million salaries and stock grants.

In 2014 the pay for these 27 executives, whose compensation is public record, will most likely be up yet again, easily topping $300,000,000.

ExecCompBanks

difiblum

Richard C. Blum and Dianne Feinstein enjoying a chuckle.

Last month I published an investigation examining the big corporate investors that have bought up the East Bay’s foreclosed homes, turning thousands of them into rental properties. Featured in the story was Cheri King, an Oakland resident who lost her house due to predatory bank lending and the foreclosure crisis. Now her home in East Oakland is owned by Colony Capital, a private equity firm from Santa Monica run by billionaire Thomas Barrack, Jr.

Last Friday it was announced that a hotel chain owned by Barrack, FRHI Hotels & Resorts, purchased Oakland’s Claremont Hotel. Joining Barrack in buying the Claremont is Richard Blum, husband of U.S. Senator Dianne Feinstein.

Here’s what the company’s press release said:

“FRHI Hotels & Resorts (FRHI), the parent company of luxury and upper upscale hotel brands Raffles Hotels & Resorts, Fairmont Hotels & Resorts and Swissôtel Hotels & Resorts, together with California financier Richard C. Blum and his family, have purchased the historic Claremont Hotel Club & Spa in Berkeley, California, it was announced today. FRHI and the Blum family are equal partners and terms were not disclosed.”

Whatever the specific terms were, the general gist is that Blum and Feinstein are now business partners with Barrack.

What does this mean for victims of the foreclosure crisis like Cheri King, and homeowners currently fighting to stop foreclosure? In her effort to stave off foreclosure by Wells Fargo, and win back her home from Colony Capital, King wrote to Senator Feinstein’s office last year. According to King, Feinstein’s staff were responsive and helpful, but ultimately nothing has come of her attempt to bring the California Senator’s attention to the problem of continuing bank foreclosures, dual tracking, and the investors like Colony Capital taking advantage of this situation.

Now that Feinstein is a business partner with one of the largest foreclosure investors in the nation, Colony Capital, will there be a push for more meaningful oversight of the banks that are creating the inventory of empty homes for buyers like Barrack to buy up?

BACLobbyTrip2011

Bay Area Council CEO Jim Wunderman, BART director Grace Crunican, and MTC representative Tom Bulger in the Capitol with Rep. Nancy Pelosi in 2011.

On October 3 a business lobbying organization released a poll claiming that Bay Area residents are in “overwhelming agreement” that BART workers should accept the current contract proposal offered by the transit system’s management in order to avoid another strike. That offer would actually amount to a pay cut for most BART employees, but it was described in the poll as a “raise of 10 percent.” The survey’s overall design seems geared to elicit a result favoring BART management. No doubt this is because the business lobby that paid for and helped engineer the poll has an interest in driving down labor costs and freeing up BART’s revenue for system expansion.

The lobbying group that paid for the poll is the Bay Area Council, or BAC. The BAC was formed in 1944 as a coordinating committee of the region’s biggest banks, construction companies, manufacturers, oil giants, and real estate corporations, most of them headquartered in downtown San Francisco. The impetus to create the BAC stemmed from the frustrations of elite corporate executives who, during World War II, worried that the Bay Area’s fragmented geography and multitude of county and city governments would prevent the creation of grand transit and industrial projects. The war time boom minted huge fortunes for these tycoons, but they feared northern California’s auto-driven sprawl would diminish real estate values in their cherished urban core, San Francisco, and further that it would drive up operating costs for their companies as their white collar employees, and some of their peer companies, dispersed to the suburbs.

“These prospects were greeted with exaggerated gloom in San Francisco,” wrote Melvin Webber in a 1976 study of BART. Webber was the founder of Berkeley’s Transportation Center, and an influential author of an early analysis of BART’s impact on the region. Webber found the origins of BART in both the financial and political interest of San Francisco’s wealthy elite:

“Surely, no other American city is as proud and narcissistic-no civic leaders elsewhere so obsessed by their sense of responsibility for protecting and nurturing their priceless charge. The idea that San Francisco might go the way of Newark or St. Louis was utterly abhorrent. And so it was, as the San Francisco Chamber of Commerce proudly reported in a multi-page advertisement in Fortune, that the civic leaders of San Francisco and their neighboring kin initiated a major effort to keep the Bay Area from going the way that cities of lesser breed were headed. The campaign was masterful in both conception and execution.”

Alan Browne, a senior vice president at Bank of America who participated in this masterful campaign to establish BART said the problem was, “essentially just a breakdown on the movement of people,” from the hinterlands to the urban core.

Joining Browne was Adrian Falk, the president of S&W Foods. Falk helped raise funds and coordinate the 1962 ballot campaign to launch BART. S&W Foods, today known as Del Monte, the $3.8 billion corporate agribusiness giant, is still headquartered three blocks from BART’s Embarcadero Station. After helping wage the successful public relations campaign for BART’s creation, S&W’s Falk became the first president of BART’s board of directors.

Falk told the local newspapers quite frankly that the main purpose of BART was to create the necessary people moving infrastructure to benefit the wealthy downtown corporations already located in San Francisco. “Certain financial, banking, and industrial companies want to be centralized, want to have everyone near each other,” said Falk. “They don’t want to have to go one day to Oakland, the next day to San Jose, the next day to San Francisco.” (For a lengthy discussion of BART see John Dickey’s Metropolitan Transportation Planning, 2nd Edition, 1983, p. 378).

BART’s first general manager was a former executive with the Western States Oil and Gas Association, John Pierce. The oil industry’s dominant West Coast driller and refiner, Standard Oil of California, was at the time headquartered two blocks from BART’s planned Montgomery Street Station. Support from oil companies was just one sign that BART was never meant to reduce freeway traffic and reliance on oil. The Bay Area’s freeways were still planned to expand in size by multiples. (Years later Standard of California, broken off the larger oil monopoly and renamed Chevron, moved to San Ramon, far off the BART line.)

Executives of Bank of America, Wells Fargo, and Crocker National Bank, all with their headquarters just blocks from BART’s planned stations running along Market Street, were instrumental in the campaign to create the transit system. For example, Bank of America CEO Carl Wente was the chair of the BAC’s rapid transit committee and chairman of the fundraising effort for the ballot measure that funded BART.

More than a few of the BAC’s corporate members made fortunes off the construction of BART.

No sooner had BART collected its first pot of sales tax revenue in 1958 then the District’s leadership paid Bechtel and Tutor to design the railway. Bechtel’s offices were again both located just blocks from where the planned funnel of BART trains would dump workers along Market Street. Bechtel, the giant engineering and construction company then busy building petroleum and nuclear plants around the world, later landed the contract to build BART’s tunnels and tubes. More recently Tutor was paid over $600 million by BART to build the SFO extension, and millions more to build the South San Francisco and San Bruno stations. The S.D. Bechtel, Jr. Foundation to this day funds the Bay Area Council.

Bay Area banks underwrote the bonds for BART, skimming millions off the discount fees and interest payments secured ultimately by regressive bridge tolls and sales taxes.

Again, Bank of America’s Alan Browne provides a candid description of how BART’s lucrative financial and construction contracts were divvied up between San Francisco’s business lobby. “As it worked out,” said Brown in a 1988 interview, “Bechtel saw a chance to do the engineering work, and Kaiser was also involved in the idea of selling concrete and steel and engineering. PG&E could sell power; Chevron, if they took cars off the freeways, they’d be replaced with other cars. So that was another factor, and they all could see that they were going to benefit.”

As for Bank of America, Browne understated the benefit the San Francisco financial behemoth reaped from BART’s construction and operations:

“We were pretty good at investing. We weren’t as successful in bidding for the securities [BART bonds], and I used to be amused because all of our competitors in the banking world had no part at all in the growth and development of the BART concept. But when the bonds were finally approved and were being offered for sale, they were in there with both feet. So they were trying to prove something. All that we were able to obtain out of the spoils of victory were being made the trustee and fiscal paying agent. Which was not a big item, but it was one thing.”

That one thing was profitable enough for Bank of America. Other financial institutions made millions over the years financing BART, and Wells Fargo and Crocker National (merged into Wells Fargo in 1986) saw their downtown San Francisco fortunes boom.

The foundations established by these banks currently funnel dollars to support the Bay Area Council’s activities, including the recent poll it paid for about BART. Bank of America Foundation, US Bank, and the Wells Fargo Foundation all channel money to BAC.

Is it any surprise then that the Bay Area Council, a big business lobbying group, with its origins in the campaign to create BART and finance it with regressive sales taxes and passenger fares, would sponsor a poll today pressuring BART’s workers to accept pay cuts?

Today the Bay Area Council continues to to be the mouthpiece for some of the same mega-corporations that built and benefited the most from BART, including Wells Fargo, Bechtel, Clorox, Bank of America, and the hospital giant Kaiser that was spun off the industrial conglomerate of the same name years ago.

More than a few of the current members of the Bay Area Council have a strong financial interests in cutting the compensation of BART employees in order to free up more revenue for costly system expansions.

The Orrick Herrington & Suffcliffe law firm was paid a pretty penny in 2010 bond as counsel to BART on a $129 million sales tax bond flotation. Orrick law is a member of the BAC. Last year Orrick earned another pot of money on BART’s $240 million sales tax bonds. BART is a big client for Orrick. Every time the transit district needs to borrow money it’s likely that Orrick will be paid to help structure a deal.

The trustee on most of BART’s bonds is US Bank, a member of the BAC, which basically inherited the business from Bank of America.

In 2009 BART’s board of directors fed at least two $15 million dollar contracts to URS Corporation, another member of the BAC, for various engineering and construction work related to the system’s expansion. In 2007 URS won a $10 million contract from BART to manage construction upgrades of BART’s elevated train lines. URS makes a lot of money from BART’s capital budget, having helped build three BART stations. A vice president of “corporate strategic planning” with URS currently sits on the Bay Area Council’s board of directors.

The real estate developer TMG Partners has multiple projects that will be affected by BART’s investments of public funds. Just earlier this year the San Francisco Business Times straightforwardly published an article about TMG entitled, “Landlords snap up sites near BART, Muni stops.” On its web site TMG says its vision is to “take advantage of [an] under-construction BART station,” by building an 1,100 unit apartment complex with a hotel in San Bruno where real estate values are poised to climb thanks to BART. TMG’s chairman and CEO Michael Covarrubias is a board member of the Bay Area Council, and his company is a corporate member.

Another member of the BAC, the engineering company CH2M Hill, was awarded a $25 million contract earlier this year to advise BART on vehicle maintenance and refurbishment. CH2M Hill’s prime contract includes multiple subcontractors like BAC members URS and Arup North America.

The Pillsbury Winthrop Shaw Pittman law firm is another Bay Area Council member with deep financial links to BART. Pillsbury has been paid millions by BART to lobby for the transit agency in Sacramento for many years. A Pillsbury partner Robert James has represented BART in real estate deals around planned stations. Robert James is a board member of the BAC.

Bay Area Council member Citibank has underwritten multiple BART bonds in prior years. Citibank has also sold BART complex financial derivatives like the 2004 interest rate cap that cost BART $245,000. Citibank’s Rebecca Macieira-Kaufmann is a BAC board member.

And of course joining all these CEOs whose companies do multi-million dollar business with BART on the board of the Bay Area Council is BART’s general manager Grace Crunican.

Larry-Ellison

In 2012 Larry Ellison, CEO of the Redwood City-based Oracle Corporation, was awarded a compensation package worth ($96.1 million) nearly as much as the entire healthcare and pension costs of all BART employees ($101 million).

Are Bay Area Rapid Transit employees paid too much? It’s amazing that the question is even being asked. BART’s board of directors, general manager, and chief negotiator put this rhetorical query in front of the public during the strike two weeks ago as part of their strategy to undermine sympathy for BART workers. BART even set up a web site to spread it’s narrative of greedy employees, http://bartlabornews.com, where “Bart Rider” is soberly informed that “BART employees contribute $0 toward their pension plan, BART riders and taxpayers fund their retirement plans.” The point of public relations communiques like this are clear: in the Bay Area’s economy BART employees consume too many tax dollars and don’t have a legitimate need to maintain their existing pay and benefits.

BART management added pension and healthcare contributions to their tally of employee pay to claim that their employees “earn an average of $134,000,” even though pension and healthcare expenses are not cash equivalents for BART employees, and even though the healthcare expenses actually benefit BART as an employer by keeping their workforce healthy and productive. Even so most news outlets dutifully reported the average pay of BART employees and included health and pension costs as if this were cash, erroneously implying that the train system’s workers take home six figure salaries.

BARTLaborCosts2012

BART’s labor costs. Source: BART, Fiscal Year 2013 Preliminary Budget Memo, March 30, 2012.

It’s amazing that the pay of BART’s employees has gained so much attention from the regional media in the first place. For over a decade the Bay Area’s major newspapers and TV news stations have been guilty of failing to adequately cover one of the most important stories of our time: rising income and wealth inequality, and the decline of middle class jobs in the face of inflation, globalization, automation, and the tax revolt that has scaled back the public sector. And now that most of the Bay Area’s news outlets finally reported a story about the pay of middle class public employees they bungled the story by framing it inside a question pre-packaged for them by an anti-labor consultant from Ohio: don’t BART employees make too much already?

The BART strike readily tells the big-picture story of austerity for millions of workers and exponentially growing incomes for the wealthy few. Let’s therefore re-frame the question of how much BART employees are paid and consider their compensation, its source and impact on the wider economy, to that of the top 1% of California’s income earners.

The average BART train operator has a base salary of $47,000, and takes home about $66,000 in cash when overtime is accounted for. Station agents have a base salary of $52,000 on average, and take home about $68,000 when overtime is included. Because BART employees have their healthcare and retirement costs currently covered, this means that their decent salaries are largely spent on housing, food, recreation, and other goods. All of this spending, including healthcare and eventually purchases made using retirement income, happens almost entirely within the Bay Area. What goes around, comes around, with $275 million in wages for BART workers fueling sales and profits for businesses in the Bay Area, feeding back into the budgets of other cities and local agencies.

Let’s now compare what BART employees make to the compensation of the region’s top one percent of income earners, the CEOs of Silicon Valley’s tech companies, and San Francisco’s financial institutions.

In 2012 Larry Ellison, CEO of the Redwood City-based Oracle Corporation, was awarded a compensation package worth ($96.1 million) nearly as much as the entire healthcare and pension costs of all BART employees ($101 million). Ellison has been raking in this kind of cash for decades and is one of the wealthiest men in the world. Last year he spent $300 million to buy an island in Hawaii. For that same sum of money Ellison could have bought every single BART train car and still had $44 million left over, enough to pay the overtime clocked by every single BART employee, and still he’d have $13 million left to buy a couple more trophy homes like his house on Broadway in San Francisco’s Pacific Heights, but truth be told in spite of the America’s Cup, most of Ellison’s fortune doesn’t get spent in the Bay Area. It sits in bank accounts, or is held as shares in corporations, or goes toward acquisitions of boutique real estate in distant enclaves of global wealth.

last year Ebay’s CEO John Donahoe was paid a lot more ($29.7 million) than all of BART’s 348 station agents combined ($23.6 million). His pay package could have covered their salaries and overtime, and picked up 2/3 of their healthcare and pension costs.

Wells Fargo’s CEO John Stumpf was paid ($19.3 million) almost enough to cover the total pension and healthcare costs of all BART train operators and station agents ($20.8 million), a combined workforce of 832 employees. It’s hard to imagine Stumpf spending even five or ten million in one year on groceries, transportation, and other goods from Bay Area businesses.

Meg Whitman, CEO of electronics giant Hewlett Packard, was paid ($15.3 million) more than double the total cash earnings of BART’s 131 utility workers ($6.4 million).

John Martin, the CEO of Gilead Sciences, was paid a bonus ($3.37 million) that exceeded the total healthcare costs of BART’s utility workers ($3.09 million).

So who’s paid too much? What is “enough” when it comes to the amount of money a person needs to live with dignity in California’s Bay Area.

Keep in mind that the above described levels of executive compensation are not determined by “natural” market forces. Nor are these spoils calculated by sober boards of directors mulling over the services these executives provide.

Pay at the top of the corporate food chain is as much a matter of culture, power, and politics, as it is the outcome of a supply and demand curve for managerial talent. That’s the lesson of the BART strike. The wages and benefits that will be afforded to BART’s employees are being struggled over in a political fight, not determined by mathematical economic principles.

When it comes to the eight figure pay packages afforded to CEOs today, on the culture side America has simply slipped further into an ethical quagmire that allows the polarization of classes between an elite few who are hoarding immense fortunes, and the many who live increasingly in debt. In political terms, those at the top of the economy engage constantly in their own version of collective bargaining, but instead of trying to wrest pay and benefits from management through unions, their focus is set instead on the U.S. federal tax code. As the management, holding the financial and legal resources necessary to lobby and influence legislators and regulators to write favorable legislation and to look the other way, these men (mostly they are men) have the power to often get what they want. And the decline of labor unions over the past four decades means that there is virtually no serious counter-force to fight them, to demand a more equitable economic regime.

The pervasive use of stock grants and stock options to pay company executives is now the top cause of massive pay packages for management, including those outlined above. Corporations shifted from simply paying their executives seven figure salaries to paying seven and eight figure stock grants and options packages when Congress disallowed tax deductions on salary expenses above $1 million in 1993. The law that disallowed deductions on salaries in excess of $1 million was an ethical rule resulting from the scandalous damages caused by excessive greed at the top of the economy in the 1980s and early 1990s. Management raided corporate wealth, crashed entire companies, and the response was to regulate the tax benefits they were gaming to enrich themselves.

Larry Ellison’s $96.1 million in pay primarily comes in the form of $90.6 million in options to purchase shares of Oracle Corporation at a set future date for a set price. One of the reasons companies like Oracle pay their CEOs this way is that they can deduct this sum from their federal corporate income taxes, along with bonus payments and stock grants. If a form of compensation other than base salary can be characterized as “performance-based,” then it can earn a corporation a tax benefit. Ellison’s compensation last year in the form of stock options therefore may have sliced upwards of $32 million off Oracle’s federal tax bill.

Ellison will have to pay taxes on his $90.6 million (or more if Oracle’s stock price outperforms the options pricing model they used to guess the value of the shares he may purchase), but until he exercises the options it’s all deferred. So last year Oracle and Ellison temporarily sheltered $90.6 million from the tax man.

When Ellison exercises his options he pays federal income tax on their value, and he’s likely in the top marginal bracket, but that bracket is at a historical low point. Massive reductions in income tax rates for the wealthy are part of the reason people like Ellison have become so enormously wealthy in recent years while the federal budget has run continuous deficits.

If Ellison holds the shares and they appreciate further in value, he can later sell them for a capital gain. Capital gains are taxed also at historically low rates of about 23.8 percent for the wealthiest handful of people like Ellison who currently own more than half of all stock in publicly traded companies. So although federal taxpayers supposedly “make up” for the loss of revenue deducted by Oracle when Ellison pays taxes on his stock options, the taxes Ellison is paying are quite low.

The other Bay Area CEOs you likely wont see riding BART because they can afford their own private jets are also paid mostly in the form of stock grants and options, creating valuable tax deductible expenses for their firms, and providing the executives with securities that can be held for years and sold for quite large capital gains.

Earlier this year Citizens for Tax Justice, a research organization that studies inequity in the tax system, found that 280 of the largest U.S. corporations used stock option executive pay to reduce their tax bills by $27.3 billion over three years.

A good chunk of these deductions are potentially retained by corporate America as a kind of arbitraged profit because of the quirky accounting rules that allow them to basically guess the value of the stock they’re granting when they report their income to shareholders, but to then use the actual cost of the stock options to determine their eligible deduction when they’re exercised by the executive. The difference between that guess and the real price when exercised is all gravy. This quirk is entirely the product of lobbying by corporations and the wealthy to maintain a loop-hole permeated tax system set up for them to game.

ExcessStockOptionsCorpsTPJ

Silicon Valley tech companies are among the biggest users of stock option compensation awarded to CEOs. Apple, Facebook, HP, Oracle, Google, Cisco and others therefore also reduce their federal taxes by billions each year. Source: Citizens for Tax Justice, “Executive Pay Tax Break Saved Fortune 500 Corporations $27 billion Over the Past Three Years,” April 24, 2013.

So what’s the connection back to BART?

A lot of BART’s funding for capital improvements comes from the federal government, and once upon a time transportation funds for operations were also available from the federal government, but these were mostly eliminated beginning in the Reagan administration. The loss of federal funds for operations and maintenance is a serious crisis for many of the nation’s bigger transit agencies like BART, and few think operations assistance will return due to the chronic federal budget crisis.

The squeeze on federal funds available for capital expansion also mean that transit agencies have to raid their own fares and tax dollars to come up with funds to pay for expansions. All of this creates the pressure that leads to the politics of austerity and demands that workers take cuts to shoulder more of the burden of funding public goods. When you zoom out and look at the entire system by which transit is funded, it’s clear that the political victories of the wealthy and corporate America to reduce statutory tax rates, and avoid taxes through numerous loopholes, sets the stage for conflicts between public sector workers, transit riders, and local government managers.

Bay Area’s Top Executive Pay in 2012:

Larry Ellison, Oracle Corporation

Salary: $1

Bonus: $3.9 million

Perks: $1.5 million

Options: $90.6 million

John Donahoe, Ebay

Salary: $970,000

Bonus: $2.8 million

Perks: $160,000

Stock: $23.7 million

Options: $2 million

John Stumpf, Wells Fargo

Salary: $2.8 million

Bonus: $4 million

Perks: $15,000

Stock: $12.5 million

Meg Whitman, Hewlett Packard

Salary: $1

Bonus: $1.68 million

Perks: $220,000

Stock: $7 million

Options: $6.4 million

John Martin, Gilead Sciences

Salary: $1.4 million

Bonus: $3.37 million

Perks:$7,500

Stock: $4.94 million

Options: $5.43 million

John Chambers, Cisco

Salary: $375,000

Bonus: $3.95 million

Perks: $11,000

Stock: $7.34 million