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Audit: Sloppy oversight increases risk of unsafe school buildings

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State regulators charged with overseeing school construction have failed to ensure that the buildings children occupy are safe, according to a state audit released today.

The California State Auditor’s report found that the Division of the State Architect has limited authority to penalize school districts for not complying with the Field Act – California’s landmark earthquake safety law for public schools – and that its oversight is “neither effective nor comprehensive.”

Legislators called for the audit in May after a California Watch investigation revealed that the state had allowed children and teachers to occupy buildings with structural flaws and potential safety hazards reported during construction.

Mary Lou Zoback – a former research scientist with the U.S. Geological Survey and a vice president at Risk Management Solutions, which advises the insurance industry – said the audit is deeply concerning.

"I think that all of the seismologists and earthquake engineers need to speak out in a strong voice and say the past practices are not acceptable," Zoback said. "The Division of State Architect has to start taking this job seriously."

In a written response to the audit, Fred Klass, director of the Department of General Services – the parent of the Division of the State Architect – said the audit’s findings were consistent with his agency’s own internal review. The department, he wrote, "is fully committed to promptly and completely addressing the issues identified in the audit report. In general, the actions recommended by the (Bureau of State Audits) have merit and will be promptly addressed."

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Evan Westrup, a spokesman for Gov. Jerry Brown, said the audit "identifies one of the many challenges this administration inherited. Earlier this week, the governor appointed a new State Architect and directed him to immediately review the division’s work and streamline operations."

State auditors found nearly a quarter of school construction projects completed during the last three fiscal years were not certified as safe by the state. They said the state doesn’t adequately document the safety issues it identifies and does not prioritize projects with safety concerns. California Watch's report revealed that at least 20,000 projects had been completed without receiving final Field Act certification. The state audit, which was limited in scope, found more than 16,000 projects still lack certification.

As California Watch has previously reported, school board members, builders, architects and inspectors can be charged with a felony for failing to follow the Field Act's provisions. School board members could face additional criminal charges if a student or staff member dies or is injured by earthquake damage at a school without Field Act certification.

But under the law, even if the Division of the State Architect denies safety certification to a school construction project, districts can fill them with children and teachers anyway. The law does not give regulators authority to penalize school districts for occupying uncertified buildings, the report said.

Still, auditors found, the state rarely uses the enforcement tools it does have. When regulators identify safety concerns, they can issue an order to comply – which tells the district it must resolve problems or the division may order construction to stop – or a stop work order, which shuts down construction until the district resolves the problems. But the state issued only 23 orders to comply and six stop work orders during the last three fiscal years, auditors found.

In one project highlighted in the report, auditors found that a school district had completed a multipurpose building in August 2007 without installing the required fire hydrant. The state architect's office did not certify the project as safe, but school district officials began using the building anyway. It wasn’t until December 2009 – two years after the district started using the building – that the state got confirmation that the hydrant had been installed.

Senate Majority Leader Ellen M. Corbett, D-San Leandro, said she would call a hearing of the Select Committee on Earthquake and Disaster Preparedness to explore the audit’s findings.
 
“It is unacceptable to allow children to use facilities that are unsafe,” Corbett said in a written statement. “I look forward to a robust discussion on how the state architect’s division can fulfill its mission.”

Unlike standard construction projects, which use city or county inspectors, public school and community college building projects are monitored by a special network of inspectors trained in the Field Act. The division relies heavily on these inspectors – who are employees or contractors of the school districts – to ensure that districts build school facilities according to approved plans. But state auditors found several problems with the state’s oversight of inspectors.

Field engineers, who work for the Division of the State Architect, are supposed to supervise inspectors' work. But out of 24 completed school construction projects reviewed by auditors, three projects had no evidence of a site visit by a field engineer. These three projects had estimated costs as high as $2.2 million.

"This does not appear to be an adequate level of oversight given that, in a recent field pilot program, the division established criteria of a minimum of one visit by field engineers to all sites," the report said.

And out of 34 projects reviewed by state auditors, the state had not approved the inspectors for 22 projects until a month after the districts had begun construction, the report found.

The lack of effective oversight was particularly troubling because, as state auditors noted in the report, the relationship among inspectors, school districts and construction managers creates an inherent risk that construction might not comply with approved plans. The Division of the State Architect's own regional managers told auditors that school districts or construction managers sometimes interfere with the work of project inspectors.

In one of the files auditors reviewed, for example, a project inspector said in written reports to the state that the construction manager had violated the Field Act by telling the building contractor not to comply with the architect’s instructions to install specified fireproofing materials.

In a prepared statement, the California Coalition of Professional Construction Inspectors said the group would closely monitor the issues raised in the report.

"Project inspectors have a great deal of responsibility and no authority," the statement says. "Historically some ... project inspectors have been removed from projects by representatives of school districts without concurrence of the design professionals, and (the Division of the State Architect) has enforced this as their standard protocol despite the code requirements."

Auditors also blasted the Division of the State Architect's risk classification system as inadequate and contradictory. Although the agency's internal memos establish a way to classify projects with known safety concerns, the acting state architect told auditors that the system does not accurately capture the risk of a project’s deficiencies and therefore should not be used to notify the public about safety concerns.

"The existence of a classification system that identifies projects with deficiencies that could cause serious injury or death suggests that the division is aware that such projects may exist. Yet ... its lack of action regarding these projects demonstrate that the division lacks concern about them," auditors wrote.

Bryan Burns, a father of two who for more than two years has raised concerns about seismic hazards at Pescadero High School, said the report showed the Division of the State Architect had failed him and the people of California.
 
The agency "has been given the ultimate power since the enactment of the Field Act on April 10, 1933, to protect our children of the state of California no matter their race, color or creed,” he said. “This systemic failure is one that cannot go on any longer, and I only hope lawmakers see the importance in this audit.”

The audit, which is the first of a two-phase investigation, focused on the division’s construction
oversight and project closeout process. It did not touch on several other problems identified by California Watch earlier this year. California Watch's investigation identified specific safety concerns, including problems at Southeast Middle School in South Gate, where a former inspector believes key defects in huge window walls might not have been fixed, posing serious risks to children.

California Watch also found the state architect’s office has allowed building inspectors hired by school districts to work on complex and expensive jobs despite complaints of incompetence. Inspectors have been missing from construction sites at key moments and have been accused of filing false reports – but that has not stopped them from getting more work.

The Department of General Services welcomes the work of state auditors, department spokesman Eric Lamoureux said in an e-mail.

"We are moving forward to address many of the recommendations," Lamoureux wrote. "Governor Brown appointed a new State Architect this week who has overseen scores of public construction projects and has more than four decades of experience."

The agency will discuss the option of pursuing legislation that would change the Field Act to prohibit occupancy in cases in which the state has identified significant safety concerns. The state architect's office will issue additional policies to help ensure stop work orders and orders to comply are used consistently as part of construction project oversight.

The agency also will better classify construction projects that have been completed without state certification, providing a rationale behind each classification, notifying districts of the reason a project was not certified and prioritizing which projects to follow up on based on risk. 

Field engineers will be required to make face-to-face contact with project inspectors on construction projects that are larger than a certain size. They also will receive training on adequately overseeing inspectors.

Next, auditors plan a second phase of their investigation into the Division of the State Architect. That probe will focus on the agency's plan review functions – the process of reviewing school districts' construction plans before they begin work to ensure the plans meet code requirements. The second-phase audit will focus in particular on the agency's use of outside contractors for plan review.

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