BILL ANALYSIS �
SB 110
Page 1
Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 110 (DeSaulnier) - As Amended: June 24, 2013
SENATE VOTE : Not relevant
SUBJECT : Bay Bridge Safety Review Task Force
KEY ISSUES :
1)Should task force members TASKED WITH EVALUATING THE
STRUCTURAL SOUNDNESS AND CALTRANS OVERSIGHT OF THE BAY BRIDGE
CONSTRUCTION be immune from liability for any injury caused by
their acts or omissions as Task force members?
2)Should the task force be exempted from the Bagley-Keene open
meeting ACT and the california public records act?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
In response to recent media reports about construction problems
with the new, yet-to-be-opened East Span of the San
Francisco-Oakland Bay Bridge, this author-sponsored bill would
create a task force to evaluate Department of Transportation
(DOT) oversight of the construction and design process and would
require the task force to submit a report of its findings to the
Legislature and Governor. In addition to providing for the
appointment, compensation, and duties of task force members,
this bill also seeks to assuage the fears of prospective task
force members that they might somehow potentially be liable for
an injury resulting from their participation on the task force.
In particular, prospective task force members are apparently
concerned about lawsuits brought by a contractor or
subcontractor who might find their work impugned by the findings
of the task force. While the prospect that such a lawsuit would
ever be successful seems highly remote, the prospective task
force members are nonetheless concerned that they might incur
legal costs to defend even frivolous lawsuits. This bill,
therefore, declares that neither the task force nor its members
shall be liable for any act or omission done "in connection
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with" the task force. In addition, this bill would exempt the
task force from the Bagley-Keene Open Meetings Act and, by
deeming task force records "legislative records," it would also
exempt task force records from the California Public Records Act
(PRA). The Consumer Attorneys of California oppose the immunity
provisions of this bill. The California Newspaper Publishers
Association opposes the open meeting and PRA exemptions. For
reasons stated below, this analysis recommends the Committee
consider modifying the immunity provisions. The Committee may
also wish to consider, and discuss with the author, whether the
open meeting and PRA exemptions are wise policy - especially
given the fact that journalists relied on the CRA to bring the
underlying problems about the new bridge span into public light.
Due to time constraints, however, any Judiciary Committee
amendments to the bill must be formally taken in the Assembly
Transportation Committee, which will hear this bill should it
move out of this Committee.
SUMMARY : Establishes a safety review task force to assess the
seismic safety of the East Span of the San Francisco-Oakland Bay
Bridge, exempts the task force and its members from liability,
and exempts the task force from open meeting and public record
access requirements. Specifically, this bill :
1)Establishes the East Span, San Francisco-Oakland Bay Bridge
Safety Review Task Force, consisting of seven members
designated by the Legislative Analyst. Sets forth the
qualifications of task force members and provides for their
compensation. Specifies that all task force meetings shall be
held in California, although members may participate via
conference call with the prior consent of the Legislative
Analyst.
2)Requires the task force to assess the anticipated seismic
structural performance of the East Span as follows:
a) Review the seismic design criteria of the East Span and
evaluate the appropriateness of the approach,
methodologies, and modeling assumptions of the Department
of Transportation (DOT) as they pertain to the ability of
the structure to withstand an earthquake.
b) Review the construction techniques, testing documents,
and other pertinent information on the construction of the
East Span, including questions raised about construction
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quality due to possible problems with oversight by DOT of
construction contractors and subcontractors.
c) Review and evaluate analyses performed by DOT to assess
the impact of any identified construction defects and, if
necessary, request DOT to run models of the East Span
foundation or bridge using a different set of assumptions,
as specified.
d) Perform a high-level assessment of the risk analysis
conducted by DOT and whether its evaluations of the East
Span's seismic performance were appropriate.
3)Requires the task force to submit a final written report to
the Governor and Legislature, as specified, that sets force
the results of its reviews.
4)Provides that the neither the task force nor its members shall
be liable for any injury arising out of an act or omission in
connection with the task force.
5)Exempts the task force from the requirements of the
Bagley-Keene Open Meeting Act.
6)Provides that the records and documents of the task force
shall be deemed "legislative records," as defined, but
provides that those records shall be exempt from disclosure
under the Legislative Open Records Act until the final report
is submitted to the Legislature and Governor. After the
report is submitted, the task force shall provide copies of
the report and all documents used by the task force in
preparing the final report to the Legislative Analyst, and the
records will at that time become subject to disclosure in
accordance with the Legislative Open Records Act.
7)States Legislative intent that the work of the task force not
delay the opening of the new East Span of the Bay Bridge if
the DOT determines at any time that the bridge is safe and
ready to open.
EXISTING LAW :
1)Provides, generally, that a public entity is not liable for an
injury, whether such injury arises out of an act or omission
of the public entity or a public employee or any other person,
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except as otherwise provided by statute. (Government Code
Section 815 et seq.)
2)Provides, except as authorized by statute, that a public
employee is not liable for an injury resulting from his act or
omission where the act or commission was the result of the
exercise of the discretion vested in him or her, whether or
not such discretion be abused. (Government Code Section
820.2.)
3)Provides that if an employee or former employee of a public
entity makes a timely request that the relevant public entity
defend any claim or action against him or her for an injury
that arises out of an act or omission occurring within the
scope of his or her employment with the public entity, then
the public entity shall defend that claim or action. If the
employee or former employee reasonably cooperates in good
faith in the defense of claim or action, then the public
entity shall pay any judgment, or pay any compromise or
settlement amount to which the public entity has agreed.
(Government Code Section 825.)
4)Requires, under the Bagley-Keene Open Meeting Act, designated
government bodies, boards, and commissions to publicly notice
their meetings, prepare agendas, accept public testimony and
conduct their meetings in public unless specifically
authorized by the Act to meet in closed session. (Government
Code Sections 11120-11132.)
5)Requires, under the California Public Records Act (PRA), that
all records of a state or local agency be open to inspection
or duplication by members of the public, unless exempted by an
express provision of the PRA. Imposes certain requirements on
the manner and timeframes within which a state or local agency
must respond to a public record request and requires the
agency make reasonable efforts to assist a member of the
public in making a focused and effective request. (Government
Code Sections 6253-6354.)
6)Defines and limits, under the Legislative Open Records Act,
public access to legislative records. Provides, generally,
that members of the public shall have access to legislative
records, unless access is otherwise prohibited by the terms of
the Act. (Government Code Sections 9070-9080.)
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COMMENTS : According to the author, this bill was stimulated by
recent media reports raising questions about the structural
soundness of the new East span of the San Francisco-Oakland Bay
Bridge, which is currently under construction and will replace
the older East span of the bridge, the structural soundness of
which was exposed by the 1989 Loma Prieta earthquake. In
particular, media attention has focused on steel bolts that
broke when tightened, corroded steel tendons in the spans skyway
viaduct, questionable welds, and lapses in the testing of the
main tower's concrete foundation. In light of these problems,
the Toll Bridge Program Oversight Committee, which is made of
the heads of several state agencies, must decide whether the
East Span will be open for the upcoming Labor Day weekend, as
planned. Public officials are faced with two undesirable
options. On the one hand the oversight committee does not want
to open the bridge until all known flaws are corrected; on the
other hand, most engineers seem to agree that, even with its
flaws, the new span is safer than the old span, so that delaying
the opening of the new span might put users of the bridge at
even greater risk in the event of a major earthquake. Adding to
the complexity of this problem is that contractors are entitled
to incentive bonuses if the span is completed on time. (See
e.g. Sacramento Bee, June 12, 14, 2013; New York Times, June 15,
2013.)
This bill would formally create a task force which, apparently,
has already been assembled. According to the author and a
recent report in the Sacramento Bee, the Senate Transportation
and Housing Committee (which the author chairs) originally asked
the Legislative Analyst's Office (LAO) to convene an independent
panel to review questions concerning the foundation of the new
eastern span. However, the author believes that, in light of
recent developments and media reports on other problems, the
scope of the review should be expanded. Therefore, the author
introduced this bill in hopes of strengthening the LAO review
panel by establishing it in statute and by providing task force
members with assurances that they will not be held liable for
any injury that results from any of their acts or omissions made
while serving on the task force. (See "Expanded Role to Examine
Bay Bridge Problem Proposed for LAO Panel," Sacramento Bee, June
12, 2013.)
Creation and Duties of Task Force : The bill sets forth the
manner in which the task force will be created, provides for
compensation of its members, and enumerates the duties of the
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task force. Specifically, the bill provides for a seven-member
task force as designated by the Legislative Analyst; it provides
that the Chair of the task force will receive $20,000 and each
other member will receive $16,000, and that their service shall
be for one year. The primary duty of the task force will be to
"assess the anticipated seismic structural performance of the
East span" by reviewing design criteria, methodologies, modeling
assumptions, oversight, and overall analysis of the DOT as they
pertain to the ability of the structure to withstand a major
earthquake. The review, in other words, will primarily target
the DOT evaluation process rather than the quality of work
performed by contractors and subcontractors. Indeed, to the
extent that the task force is asked to review "construction
techniques," it is required to focus specifically on "questions
that have been raised about construction quality due to possible
problems with the oversight by the Department of Transportation
of the construction contractor and subcontractors." [Emphasis
added.] In other words, the task force will not so much review
the work of contractors and subcontractors as it will review the
work of DOT in overseeing the project. Finally, the task force
is required to submit a report of its findings to the
Legislature and the Governor. The bill does not specify a due
date for completion of this report, but presumably it would be
before the provisions of the bill become inoperative as of July
1, 2014, and certainly, one presumes, before the scheduled
opening of the East Span of Bay Bridge. Originally the East
Span was scheduled to open on Labor Day weekend of 2013, but in
light of recent revelations and construction concerns, bridge
officials are expected to decide within the next few weeks
whether they will meet the scheduled opening. (Sacramento Bee,
June 14, 2013.)
Whenever the final report is submitted, it is not entirely clear
what power or impact it will have. On the one hand, it appears
that the purpose of the report is to ensure that the bridge is
safe before it is opened to the public. On the other hand, the
bill expressly states that it is not the Legislature's intent to
delay the opening of the new span. Both the bill and the
author's background material make it clear that ultimate
responsibility for the decision to open the new span will be
determined by the Governor and DOT officials. There is nothing
in the bill to suggest that DOT or anyone else would be bound
by, or even required to consider, the findings of the final
report. Indeed, the bill seemingly presumes the possibility
that the bridge could open before the report is submitted.
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Liability concerns : SB 110 also seeks to assuage the concerns
of prospective task force members that they might be liable for
an injury resulting from their participation on the task force.
According to the author, the panel that was assembled by the
Legislative Analyst, and who are expected to serve as task force
members, expressed concern about potential lawsuits brought by
contractors or subcontractors who felt that their work had been
impugned by any findings or reports of the task force, or
perhaps whose incentive bonuses might be jeopardized if the
opening is delayed. While the prospect of such suits succeeding
seems highly remote, especially given that the task force will
primarily be evaluating the DOT's oversight process - not
primarily the contractors - the prospective task force members
are nonetheless reportedly concerned that they might incur legal
costs to defend even frivolous lawsuits. This bill, therefore,
declares that neither the task force nor any of its members
shall be liable for any injuries caused by acts or omission of
the task force members while performing their duties. The
Committee is not aware of any precedent in which the Legislature
has granted such immunity to a government task force or its
members, which probably reflects the Legislature's assumption
that a task force, as a government entity, and its members, are
already immune from liability when acting within the scope of
the task force duties.
Potential Impact of Liability Provisions on Future Task Forces
Standard Presumption: Existing law already provides government
entities - including any advisory board, which would conceivably
include a task force - with broad immunity from liability for
any injury caused by its acts or omissions, unless a statute
provides otherwise. In other words, the state tort claims act
presumes immunity of government entities unless a statute
expressly provides for liability; it does not presume liability
unless a statute expressly grants immunity. Thus while specific
government entities sometimes ask the Legislature to grant
immunity for specific kinds of activities, such express
exemptions from liability are arguably unnecessary, and possibly
even erode the principle of sovereign immunity. For example,
legislation that expressly states that a particular public
entity is not liable for a particular kind of injury necessarily
risks creating the presumption that, absent the statute, the
public entity would have been liable. As express immunities
accumulate, therefore, it risks creating a presumption that
general government immunity in existing law is not as broad as
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its broad language would seem to indicate, otherwise special
grants of immunity would not be necessary. This bill arguably
provides a case in point: if the Legislature expressly states
that this particular task force and its members are not liable
for any damages arising from the task members' acts or omissions
while serving on the task force, it will create the presumption
that, absent legislation, members of a task force are in fact
liable for injuries caused by their acts or omissions. If this
bill is enacted, the members of every future task force created
in this state will, quite understandably, want the Legislature
to grant express immunity from liability in each case, a
direction that does not appear advisable.
Open Meeting and Public Records Act Exemptions : In addition to
its immunity provisions, this bill would exempt the task force
from the open meeting requirements of the Bagley-Keene Act.
Presumably this is because the author believes that the various
prior notice provisions of the Act will delay the work of the
task force. The bill also provides that the records and the
documents created or used by the task force shall be deemed
"legislative records," and as such they will be exempt from the
more permissive access provisions of the PRA. In addition, the
records of the task force will also be exempt from the
Legislative Open Records Act, which provides less access than
the PRA until copies of its records and documents are
transferred to the Legislative Analyst. It is not clear why the
records would be deemed "legislative records" before they are
submitted to the Legislative Analyst, but the effect of this
designation means that the records will never be subject to the
California Public Records Act. Because all of these proposed
exemptions will likely limit press and public access to the work
of the task force, this bill is opposed by the California
Newspaper Publishers Association (CNPA) unless these exemptions
are removed and meetings and records on this extremely important
public policy issue are made accessible to the public.
Irony of Open Meeting and PRA Exemptions : The Committee may
wish to discuss with the author his willingness to delete the
Bagley-Keene exemption and clarify that records, whether deemed
"legislative records" or not, will be subject to the Public
Records Act. The author contends that one purpose of the task
force is to restore public confidence; however, inadvertently
shrouding the task force in secrecy may arguably generate more
suspicion than confidence.
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Moreover, there appears to be an unintended irony in these open
meeting and PRA exemptions. In preparing this analysis,
Committee counsel reached out to the Sacramento Bee to see if
its several stories on problems with the Bay Bridge construction
project relied upon either the PRA or the Bagley-Keene Act. The
Committee learned that the journalist had relied upon the PRA
extensively. While the journalist did not rely on Bagley-Keene
in writing those particular stories, the Committee was informed
that a Bagley-Keene exemption provided to the Caltrans Peer
Review Panel made reporting on the activities of that agency
much more difficult. (E-mail to Committee staff counsel, June
22, 2013.) Indeed, as the author of this bill noted when DOT
agreed in a Senate hearing last November that, going forward,
its "expert panels" would be subject to greater public scrutiny:
"These are public dollars. It's important that there's a
transparent process and that people are held accountable."
(Quoted in Charles Piller, "Caltrans Agrees to Greater Public
Scrutinyof Expert Panels," Sacramento Bee, November 29, 2012.)
ARGUMENTS IN SUPPORT : According to the author, "the media have
recently raised significant concerns about the eastern span of
the Bay Bridge, and this in turn is undermining the public's
confidence in the new signature span scheduled to open this
fall. SB 110 creates an independent safety review task force to
assess the structural safety of the bridge and report to the
Legislature its findings." The author argues the panel convened
by the Legislative Analyst was asked to review questions
concerning the foundation of the new eastern span, but that
recent revelations suggest that the scope of the review needs to
be expanded to include other issues. The author notes the new
span of the Bay Bridge is one of the most expensive projects in
the state's history, "and the public needs to proud of and
confident in the bridge when it opens."
ARGUMENTS IN OPPOSITION UNLESS AMENDED : The California
Newspaper Publishers Association (CNPA) has no objection to the
creation of the task force or the scope of its work, but, as
noted above, it has "significant concerns" about the proposed
exemptions from the Bagley-Keene Act, the PRA, and the
Legislative Open Records Act.
"By allowing the task force to meet behind closed doors," CNPA
argues, "SB 110 would prevent the public from monitoring for
itself whether its interests are being protected by the work of
the task force. In turn, public confidence in the task force's
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work becomes shrouded in suspicion. Additionally, by meeting in
secret, the task force could be potentially deprived of
information brought forth by members of the public that could
make a significant difference in the task force's conclusions."
CNPA believes that these exemptions will only "compound the
suspicion and doubt that accompany secret meetings . . . The
lack of public access to the meetings of the task force and the
documents it reviews unnecessarily undermines the credibility of
the task force at a time when the public needs to be reassured
that the task force is working to protect it from harm."
CNPA observes that it was, after all, only because journalists'
access to public meetings and public records that they were able
to bring the construction problems to the public's attention in
the first place. Thus CNPA opposes this bill unless it is
amended to remove the exemptions to Bagley-Keene, PRA, and the
Legislative Open Records Act.
The Consumer Attorneys of California (CAOC) objects to the
"overly broad" immunity granted to the task force and its
members. Although some of CAOC's concerns have been partially
addressed by recent amendments, it still believes that "this new
immunity is unnecessary because statutorily created task force
members are implicitly covered" by the existing government
immunity provisions of the Government Code. CAOC believes that
"the reason why California has never explicitly granted task
forces such immunity is because task forces and their members
are implicitly covered by existing governmental immunity laws."
CAOC fears that one unintended consequence of explicitly stating
that this particular task force is exempt from tort liability
"is that other task forces and their members previously created
by the Legislature could be subject to new liability because
they weren't explicitly granted a similar immunity at the time
they were created by the Legislature." Rather than creating a
"new" immunity in statute, therefore, CAOC recommends simply
that the bill clarify that the task force is a "public entity"
and therefore already immune from liability under Government
Code Section 815 et seq.
PROPOSED COMMITTEE AMENDMENT : As noted above, Committee counsel
could not find any other example in state law in which the
Legislature has granted immunity from liability to any state
task force or its members. In searching appellate court cases,
the Committee could find only one example in which a task force
member was sued, but in that case the task force member was sued
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for wrongful misappropriation of funds, not for actions or
omissions within the scope of his duty as a task force member.
(Stevens v. Geduldig (1986) 42 Cal. 3d 24.) The Committee may
thus conclude that rather than creating a new immunity that
might have unwanted and unintended consequences, for the reasons
discussed above, it would be preferable to instead clarify that
task force members are already covered by existing government
immunity provisions. This is because it appears clear that the
task force is a "public entity" within the meaning Government
Code Section 815, and therefore immune from liability. In
addition, the individual members of the task force are likely
immune from liability given the inherently discretionary nature
of any conclusions that they reach (Government Code Section
820.2.) In addition to these broad existing immunities,
Government Code Section 825 provides that any "public employee"
may request the relevant public agency to defend him or her
against any claim or action based on the public employee's acts
or omissions in the scope of employment. That section also
requires the public entity pay any judgment, compromise, or
settlement amount arising from the claim or action. While it is
not clear whether the task force members would be deemed "public
employees" - and, indeed, the prospective task force members
apparently prefer not to be thought of as such - there is
nothing to prevent the Legislature from affording this existing
protection to the task force members for the limited purpose of
this bill.
Specifically, the Committee may wish to discuss with the author
the merits of deleting the existing immunity provision and
replacing it with the following language:
Task force members shall not be deemed public employees but
they shall be afforded the same protections that public
employees are afforded under subdivision (a) of Section 825
of the Government Code. In the event that a task force
member invokes this protection, the Department of
Transportation shall be the public entity responsible for
defending the action and paying any judgment, compromise, or
settlement, in the manner prescribed in Section 825 of the
Government Code.
REGISTERED SUPPORT / OPPOSITION :
Support
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None on file
Opposition
California Newspaper Publishers Association (unless amended)
Consumer Attorneys of California (unless amended)
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334