BILL ANALYSIS �
SB 110
Page 1
Date of Hearing: July 1, 2013
ASSEMBLY COMMITTEE ON TRANSPORTATION
Bonnie Lowenthal, Chair
SB 110 (DeSaulnier) - As Amended: June 24, 2013
SENATE VOTE : Not applicable
SUBJECT : East Span, San Francisco-Oakland Bay Bridge Safety
Review Task Force
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 (task force) in state government, to
consist of seven members, each appointed to a one-year term
and each selected on the basis of qualifications related to
expertise and independence.
2)Assigns the Legislative Analyst's Office (LAO) with the
responsibility to provide administrative support for the task
force.
3)Provides compensation to task force members as follows: the
chairperson is to receive $20,000 and each task force member
is to receive $16,000. All members are entitled to
reimbursement for expenses, paid for by the State Highway
Account.
4)Appropriates $149,000 from the State Highway Account for
expenses related to the task force and requires the Bay Area
Toll Authority to reimburse these expenses.
5)Requires all task force meetings to be held in California but
allows members to conduct meetings outside the state or to
participate via conference call, with prior approval by LAO.
6)Exempts task force members from provisions of existing law
that otherwise prohibit state officers and state employees
from working outside California and traveling out of the state
without the Governor's approval; authorizes the LAO to approve
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out-of-state travel.
7)Directs the task force to assess the anticipated seismic
structural performance of East Span of the San
Francisco-Oakland Bay Bridge, as follows:
a) Review the seismic design criteria of the east span and
evaluate the appropriateness of the approach,
methodologies, and modeling assumptions used by the
California Department of Transportation (Caltrans) as they
pertain to the ability of the bridge as designed to
withstand an earthquake of an appropriate hazard level.
b) Review construction techniques, testing documents, and
other pertinent information regarding construction of the
bridge and address specific questions that have been raised
about construction quality due to possible problems with
Caltrans' oversight of the construction contractor and
subcontractors.
c) Review and evaluate Caltrans' analyses to assess the
impact of construction defects.
d) Evaluate Caltrans' risk assessment to determine if
Caltrans appropriately assessed the bridge's ability to
withstand an earthquake.
8)Provides that the task force may request Caltrans to run
models of the bridge and the bridge foundation using various
assumptions; additionally requires Caltrans to otherwise
cooperate fully with the task force.
9)Requires the task force to submit a final written report to
the Legislature and the Governor setting forth the task
force's findings, specifically:
a) Whether Caltrans made proper assumptions and followed
proper procedures to ensure the bridge will perform as
expected in the event of an earthquake; and,
b) Whether Caltrans' evaluations concerning the bridge's
performance as a lifeline structure in the event of a
serious earthquake are appropriate.
10)Makes the bill's provisions inoperative as of July 1, 2014,
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and repeals these provisions on January 1, 2015.
11)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.
12)Exempts the task force from the requirements of the
Bagley-Keene Open Meeting Act.
13)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.
14)States legislative intent that the work of the task force
should not delay the opening of the new East Span of the Bay
Bridge if Caltrans determines at any time that the bridge is
safe and ready to open.
EXISTING LAW :
1)Provides that state officers and employers are required to do
state business within the state unless they obtain prior
approval of the Governor to travel out of state.
2)Generally provides 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.
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
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settlement amount to that the public entity has agreed.
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.
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.
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.
7)Creates the Bay Area Toll Authority to administer all toll
revenues for the seven state-owned Bay Area toll bridges.
FISCAL EFFECT : This bill appropriates $149,000 from the State
Highway Account for task force expenses and requires these
expenses to be reimbursed by the Bay Area Toll Authority.
COMMENTS : Media reports over the last year have raised
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.
Questions were first raised last year specifically about the
soundness of the bridge's main tower foundation. Subsequently,
Caltrans reported that its own Seismic Peer Review Panel
reviewed pertinent data and confirmed the bridge was safe. That
report, however, did not assuage skeptics. They challenged the
panel members' independence and judgment, arguing that panel
members had a vested interest in finding that the bridge was
safe given that they had participated in the bridge's design.
Critics, therefore, concluded that the panel members' opinions
could not be trusted.
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In response to these media reports, the author, in his capacity
as chair of the Senate Transportation and Housing Committee,
requested that the LAO review Caltrans' and others' foundation
reviews and evaluations and confirm that the problems identified
by the media were resolved. Following that hearing, the LAO
determined that it did not have the expertise to review the
highly technical reviews of the bridge and decided to establish
a task force of independent experts to review the reviews
originally conducted by the Caltrans and others (including the
Federal Highway Administration).
The LAO convened the task force earlier this year amidst
controversy of its own. Soon after task force members were
identified, media scrutiny focused on alleged conflicts of
interests due to members' ties to Caltrans. (Media also noted
that, like the Caltrans peer review panel, the LAO task force
members originally barred the public from their meetings.)
Proceeding undeterred, nonetheless, the LAO sought to negotiate
final contracts for the task force but found resistance by the
task force members who were concerned about the legal liability
of findings they may reach in the course of their work on the
task force. As a result, the work of the task force has been
stalled until resolution of the immunity issue can be remedied.
The author has introduced this bill in an attempt to do just
that-i.e., alleviate task force members' concerns regarding
liability so that the work of the task force-assessing the
safety of the bridge-can continue in earnest. This bill would
formally create the task force in state government and provide
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. In addition to
its immunity provisions, this bill exempts the task force from
the open meeting requirements of the Bagley-Keene Act and
provides that the records and the documents created or used by
the task force are "legislative records," and, as such, are
exempt from the more permissive access provisions of the Public
Records Act.
Pending amendments: SB 110 was doubled-referred to the Assembly
Judiciary Committee, which approved the bill 10-0. The
committee approved the bill with the understanding (and the
commitment of the author) that, due to scheduling constraints,
the bill will be amended in Assembly Transportation Committee to
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address the Assembly Judiciary Committee's concerns, outlined
below:
1)Immunity : The Assembly Judiciary 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 and cited potential unintended consequences of
creating this new immunity. For example, if the Legislature
expressly states that this particular task force and its
members are not liable for any damages arising from the task
force 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.
In response, the author agreed to accept amendments that would
delete the existing immunity provisions and instead clarify
that task force members are already covered by existing
government immunity provisions. The amendment would also
ensure that task force members can request Caltrans to defend
against any claim or action based on the task force members
acts or omissions in the scope of work on the task force. The
specific amendment is as follows:
On page 6, strike lines 29 through 38 and insert:
Notwithstanding subdivision (b) of Section 30964.10 of the
Streets and Highways Code, the Department of Transportation
shall be solely responsible for performing the duties of a
public entity pursuant to Article 4 (commencing with Section
825) of Chapter 1 of Part 2 of, and Part 7 (commencing with
Section 995) of, Division 3.6 of Title 1 of the Government
Code in the event that a member of the East Span, San
Francisco-Oakland Bay Bridge Safety Review Task Force,
established in Chapter 4.4 (commencing with Section 30964.10)
of Division 17 of the Streets and Highways Code pursuant to
this act, invokes the protections provided in those provisions
of the Government Code.
2)California Public Records Act : The author agreed to subject
the documents of the task force to disclosure under the
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California Public Records Act, with the following specific
amendment:
On page 6, delete lines 39 and 40 and on page 7, delete lines
1 through 13 and insert.
The records and documents of the task force shall be subject
to disclosure under the California Public Records Act (Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of
the Government Code.
3) Bagley-Keene Open Meeting Act: The author agreed to
amendments that would subject the task force to open
meeting laws, rather than exempt them from such
requirements. The specific amendment is as follows:
On page 4, line 28, strike "exempt from" and insert "subject
to"
Additional suggested amendments:
1) As proposed to be amended, the bill will require
Caltrans to defend task force members against any claim or
action based on their acts of omissions in the scope of
their work on the task force. It would also require
Caltrans to pay any judgment, compromise, or settlement
amount arising from the action or claim.
The bill should be amended to require the Bay Area Toll
Authority to reimburse Caltrans for any of its legal costs
incurred as a result of these provisions.
2) The bill directs the task force to review specific
aspects of the bridge project and then directs the task
force to submit a report to the Legislature and the
Governor and prescribes elements to be included in the
report. These prescribed report elements do not reflect
the specific review tasks. The bill should be amended to
have the task force report on the results of its required
reviews, as follows:
On page 6, line 11, after "review" delete the remainder of the
sentence and delete lines 12 through 19.
3) Finally, the author has indicated his intent to take
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amendments in committee to adopt an urgency clause so that
the bill can become effective immediately upon enactment.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Janet Dawson / TRANS. / (916) 319-2093