Panel that reviewed Bay Bridge foundations has ties to Caltrans

03/25/2012 12:00 AM

04/11/2012 8:47 PM

Leading engineering advisers, who met in secret to assess the testing and safety of the new San Francisco-Oakland Bay Bridge, maintain numerous financial and professional ties to the agency whose work they evaluate.

Transportation officials described the panel as independent, and late Friday it released its findings declaring work by the California Department of Transportation as correct and the bridge safe and sound.

But three of its four members have had financial ties with Caltrans or its contractors, and three helped select the Bay Bridge design – conflicts of interest that affected the panel's judgment, according to ethics experts contacted before the report's release.

The Toll Bridge Seismic Safety Peer Review Panel drew nearly all of its conclusions from material prepared or managed by Caltrans, even though the panel was asked to do the assessment because of possible malfeasance by the agency.

Experts on government ethics said the panel lacks the impartiality necessary to be perceived by the public as unbiased. Paula A. Franzese, a law and ethics professor at Seton Hall University in Newark, NJ, advises state and local governments on such matters. She described the panel's practices as "a significant departure from standard ethical canons."

"One central tenet of good governance," Franzese said, "is that those who act in the public trust must not be perceived as amassing some sort of personal gain as a product of that work."

The panel's Bay Bridge efforts were sparked by a Bee report last fall that a state employee had fabricated integrity tests on other structures, and failed to ensure accuracy while examining the foundation of the new span's main tower. Since December, panel members have studied testing issues related to the new $6.5 billion eastern span of the Bay Bridge, scheduled to open by Labor Day next year.

Joseph Nicoletti, chairman of the four-member panel, said in the report that the foundation piles for the main tower were "designed, constructed, and tested in a way that meets or exceeds the state-of-practice and will result in a safe and reliable performance of the bridge." The panel, created and appointed by Caltrans in 1997, had been assessing the adequacy of certain tests on the tower foundation, according to Caltrans.

Its meetings were held in private despite requests from The Bee to open them.

State Sen. Mark DeSaulnier, D-Concord, transportation committee chairman, said the panel's meetings should have been open. If needed, he said, the Legislature would work to ensure such practices.

"We have to fix it. The whole idea of building a new bridge is for public safety," DeSaulnier said about the panel. "It would be awful to have that impaired in any way due to a conflict of interest or lack of transparency."

The four highly regarded engineers, whom Caltrans collectively paid about $143,000 in the most recent fiscal year for which complete records were available, are:

Nicoletti, 90, a structural engineer who has served on the panel since its inception in 1997. He has nearly 70 years experience in coastal, seismic and structural engineering.

Izzat M. Idriss, 76, a geotechnical engineer and member of the National Academy of Engineering, is professor emeritus at UC Davis. A leading expert on geotechnical earthquake engineering, Idriss has served since 1997.

John Fisher, 81, a structural engineer and National Academy of Engineering member, is professor emeritus at Lehigh University and a private consultant. An expert on metal fatigue, he has been on the panel since 2008.

Frieder Seible, 62, a structural engineer and NAE member, is author of more than 500 technical reports. Dean of the UC San Diego Jacobs School of Engineering, he has served since 1997.

Outside of their panel work, two members have had financial ties to Caltrans.

The agency gave contracts worth nearly $19 million to UC San Diego to fund work by Seible or professors under his purview for studies of the Bay Bridge and other seismic issues since 2003. Caltrans has paid Seible more than $1.4 million more for his advice.

"My motivation, both professionally and personally, is to ensure that my expertise in seismic retrofit and seismic design for bridges and other transportation structures benefits the people of California," Seible said via email. He follows university and Caltrans disclosure rules, the professor said, and otherwise declined to comment.

Fisher consults for key contractors on the Bay Bridge and Benicia-Martinez Bridge, subjects of the panel's work, but said the business relationships did not influence his judgment.

Caltrans spokeswoman Tamie McGowen said the two panelists faced no conflict because the panel's current "issue under consideration" concerned a specific radiation test, called gamma-gamma logging, that was unconnected to Seible's research or Fisher's consulting.

Research conflicts

Caltrans formed the panel after the Loma Prieta earthquake prompted a decision to replace the Bay Bridge eastern span.

Steve Heminger heads the Metropolitan Transportation Commission for the nine Bay Area counties and chairs the Toll Bridge Program Oversight Committee, which manages funds for Bay Area bridges. The committee requested the panel's assistance on the Caltrans tests.

Heminger said the panelists often "tell Caltrans officials what they don't want to hear." They successfully argued against a Caltrans plan for retrofitting the Dumbarton and Antioch bridges, he said. Caltrans normally follows the advice of the panel, but in at least two other cases, the agency overrode panelists' suggestions.

In its Friday report, the panel validated all of Caltrans' previous assertions about the bridge foundations after relying almost exclusively on Caltrans officials to manage or conduct research for its report.

The background materials for that report were provided to The Bee. They included analyses of radiation-based tests of the bridge foundation by Caltrans; a report by Fountain Valley-based Earth Mechanics Inc., a geotechnical engineering firm; and a report on tests of demonstration piles built by Caltrans to reproduce the conditions of the bridge piles. They also cited a Federal Highway Administration computer analysis, not yet publicly released, which concluded that Caltrans employees had not fabricated Bay Bridge test data.

Asked about the Caltrans pile demonstration analysis, Nicoletti said in an email Saturday that he was unaware of that report, although the panel's findings relied on its conclusions.

Earth Mechanics was directed by Caltrans, according to Nicoletti. The company has often worked for the agency and as a subcontractor for builders of projects funded by Caltrans. It had a major role in pile design and geological considerations for the foundation of the new Bay Bridge eastern span, and cited its own prior work in materials provided to the panel.

The demonstration pile testing was conducted by the Foundation Testing Branch of Caltrans – the division implicated in data fabrication, other lapses and a cover-up of those problems.

'Group think'

Several panel members have served – often with pay – on other Caltrans advisory groups or efforts integral to Caltrans projects.

Nicoletti and Idriss were members of a related review panel, the Caltrans Seismic Advisory Board, which counsels the agency more broadly. Seible has been a member of that board since 1990, and its chairman since 2005. All three also served on an engineering advisory board, chaired by Nicoletti, that was instrumental in selecting the design of the new Bay Bridge. Seible has claimed credit for a key design concept behind the new span's main tower.

Franzese said Nicoletti, Idriss and Seible, who participated in the highly contentious design selection process, might "have a vested interest" in seeing that the chosen plan remains untainted in the face of uncertainties created by testing lapses and design questions.

"To avoid any untoward appearance, a completely new panel of impartial arbiters" should have been appointed to review the current problems, she said.

Judy Nadler, former mayor of Santa Clara, now a senior fellow at the Markkula Center for Applied Ethics at Santa Clara University, said the panelists' participation on powerful, overlapping boards could bias them to favor past decisions – a particular weakness when weighing possible wrongdoing by Caltrans.

She called it "group think" – a failure of independent analysis – which often occurs within small groups that operate privately for long periods.

The panel, according to its chairman, has a casual, informal approach to its work.

The engineers influence bridge safety for millions of people and the spending of billions of public dollars, yet operate without bylaws, terms of office or a prescribed appointment process. Caltrans said it does not maintain a list of who served on the Seismic Safety Peer Review Panel other than its current members.

In an email before the panel released its report, Nicoletti described panel meetings as "intentionally more like workshops than formal meetings." The group and Caltrans bar the public from those sessions. Caltrans said the panel is not subject to the state Open Meeting Act.

Legal or not, Franzese called such informality and secrecy in a group with authority concerning profound and costly public safety issues "aberrational."

Heminger, of the Metropolitan Transportation Commission, defended private meetings as proper "as long as the advice ultimately makes its way to an accountable decision maker" – in this case, Caltrans.

"The public is extraordinarily well served" by the current peer review process, he said.

Max H. Bazerman, a business ethics professor at Harvard University, also defended closed meetings as sometimes more effective. Some advisory groups work more efficiently and are "more capable of being skeptical and critical in secret than in public," Bazerman said.

But the relative merits of efficiency and openness depend on the context of the task, he said. Last fall, The Bee reported that Caltrans didn't reveal serious bridge-testing problems – including fraud – to the public, elected officials, Heminger and the peer review panel itself.

"The less trust there is," Bazerman said, "the more effort we need to recreate trust in the process."

Lucrative research

Panel members never have been obligated to report economic interests, such as business clients, investments and corporate board memberships, so a comprehensive examination of possible conflicts has not been possible. After a recent inquiry from The Bee, the California Fair Political Practices Commission acted to require such reporting by the four panelists beginning in April. Heminger said he supports the move.

Panelists' earnings from Caltrans or bridge builders might particularly affect their independence, experts said.

Since 1991, Seible's contracts for providing advice to Caltrans as a member of this panel and similar boards averaged about $70,000 annually.

Public records, although incomplete, show that he has benefited financially and professionally from work on Caltrans projects beyond those fees. He has received Caltrans funding for at least 42 seismic research projects related to the Bay Bridge and other structures since 1991.

In some cases, Caltrans funded Seible's work via contracts with his private consulting companies; in others, contracts with UCSD specifically supported his work.

Among those funded projects, at least 30 came after his appointment to the Seismic Safety Peer Review Panel. Seible received Caltrans funds for numerous other projects while serving as a member of the separate Seismic Advisory Board. Professors in his school have been funded for at least 23 additional projects since he became dean in 2003.

Caltrans said it had no comprehensive records about the number of such contracts or their value, but 26 of the most recent agreements for Seible or members of his faculty totaled nearly $19 million, including Seible's $4.1 million "seismic research proof testing" project for the new Bay Bridge.

In addition to the financial benefits to Seible and UCSD, he and his professors wrote scholarly papers and gained professional honors for work underwritten by Caltrans.

"Even presuming the high-mindedness of everyone serving on this board, the body itself is fraught with, at a minimum, significant concerns for the appearance of untoward conflicts of interest," Franzese said. In most states, she added, given a situation like that of Seible, "recusal would be warranted."

Fisher, meanwhile, consults for Wiss, Janney, Elstner and Associates Inc., a Chicago-based architectural and engineering firm that has worked for Caltrans on several projects. The firm also worked as a subcontractor for Kiewit Corp., a prime contractor for Caltrans on the Benicia-Martinez Bridge. Omaha-based Kiewit was also a member of the joint venture that built the Bay Bridge tower foundations – central to the panel's latest report.

"I seek the truth for any problem that I am confronted with," Fisher wrote in an email. Commercial relationships with his many other clients have no influence on his judgments, he said.

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