Facing a crisis after a huge crater formed in the main flood-control spillway at Oroville Dam, officials at the California Department of Water Resources called in an old hand to help: David Gutierrez, a nationally known engineer who had just retired as chief of the agency’s dam-safety division.
He seemed like an obvious choice for dealing with an emergency at America’s tallest dam – valued for his technical expertise, his coast-to-coast connections in the engineering field, and his years of experience. Before long he was advising DWR on repairing the spillway, conducting briefings with reporters and fielding testy questions from legislators and townspeople.
It’s as if Gutierrez never left state government.
The difference? He’s now working for Boston engineering firm GEI Consultants Inc., brought in under a contract that could pay GEI as much as $474,876 for Gutierrez’s services through Nov. 1. That’s far more than the $179,000 base pay he earned in his last year with the state, although he said his work probably will end well before November and the total payout to GEI will be considerably less than the contract maximum. Gutierrez doesn’t receive a share of the contract payments; he’s collecting his regular GEI salary, which he said is “just a little more” than what he made at the state.
Financial arrangements aside, critics of the state’s handling of the Oroville crisis are questioning why Gutierrez – who for years ran the Division of Dam Safety, or DSOD – was brought back at all. Citing preliminary investigative reports, these critics say DSOD’s inspectors appear to have missed critical problems at the Oroville spillway that may have contributed to the near-catastrophe in February.
“Clearly DSOD failed to catch the vulnerability of the main spillway,” said Ron Stork of Sacramento environmental group Friends of the River. “To have missed that developing problem is a big miss and a consequential miss. It set up that cascade of failures that almost killed a bunch of people....It certainly has the appearance that Dave may be there to cover up DSOD’s mistakes.”
Republican Assemblyman James Gallagher, whose constituents were among the 188,000 residents forced to evacuate at the height of the crisis, said Gutierrez is too much of an insider to give DWR the advice it needs.
“Why not bring in someone who is actually, truly independent and who wasn’t their career employee?” said Gallagher, who has clashed with Gutierrez at legislative oversight hearings. “It just seems there’s a lot of circling the wagons.”
Gutierrez made no apologies for the work he’s done since February.
“I never approached DWR; DWR approached me,” he said in an hourlong interview. “In a situation like this you can’t say no. I mean, you’ve got to go help.”
He said his primary role is “technical expert,” and his lengthy history with DWR and his deep institutional knowledge about dam safety has served the state well in his new capacity.
“DWR does have confidence in me, and I do have a lot of experience in this area,” said Gutierrez, who spent 37 years at the agency. “If somebody doesn’t think I’ve got the experience, hey, I’ve got plenty of other stuff to do.”
It’s hardly unusual for a state agency to hire outside help on construction, communications and other matters. Experts consulted by The Sacramento Bee said it doesn’t appear the contract for Gutierrez’s services violates the law governing work performed by retired state workers. He also isn’t running afoul of the one-year “revolving door” rule that forbids recently departed state employees from lobbying their former agency.
‘He has the chops’
State officials said Gutierrez’s technical know-how has helped guide DWR’s response to the spillway crisis, which is expected to cost more than $500 million and consume two years. His ability to convey complex engineering information to the public in understandable ways also has proven invaluable at legislative hearings and town hall meetings, said spokeswoman Erin Mellon of the Natural Resources Agency, which oversees DWR.
“He has the chops and the intelligence and experience working in this industry, working for the last 40 years or so,” she said. “Why wouldn’t we use him?”
During his interview with The Bee, Gutierrez provided a list of national dam-safety experts as references, including Lori Spragens, executive director of the Association of State Dam Safety Officials. Gutierrez is a former president of the association’s board.
“He’s obviously got an excellent reputation nationally,” Spragens said.
At Gutierrez’s request, Spragens’ association conducted a review of California’s dam-safety unit last year. It concluded that the Division of Safety of Dams operates “the leading dam safety program in the nation.”
Still, Gutierrez acknowledged the possibility that inspectors working for him at DWR overlooked clues leading up to the Oroville spillway crisis.
When he ran the dam-safety unit, he directed his inspectors to focus most of their attention on badly aging dams along fault lines that could crumble during earthquakes. Those intensive inspections prompted more than $1.5 billion worth of retrofits and upgrades, including the $800 million reconstruction of Calaveras Dam in the earthquake-prone East Bay, he said.
“We fixed a lot of dams over the last 10 years, and you can’t lose that in the debate,” Gutierrez said.
But while the high-risk dams received closer scrutiny, which he compared to an MRI, other dams such as Oroville got routine inspections similar to a doctor’s checkup.
“We’re trying to find the obvious issues,” he said. “It’s a visual inspection. You’re climbing things. You’re not X-raying.”
Nearly a decade’s worth of inspection reports reviewed by The Bee showed no major problems at Oroville. However, a panel of independent forensic experts said the spillway’s fracture may have been caused by a variety of longstanding issues. The panel issues its final report this fall.
Gutierrez wouldn’t comment on possible causes of the Oroville emergency.
“Maybe we did miss it,” Gutierrez said. “Let’s let the forensic team tell us. I don’t know.”
A contract at $268 an hour
After retiring from the state in December, Gutierrez joined GEI Consultants, a nationwide engineering firm with an office in Rancho Cordova. When it comes to water projects, GEI is the nation’s 20th-largest engineering firm, according to Engineering News-Record. The firm has extensive ties with DWR. Its president, Raymond Hart, is a former agency director, and it has done millions of dollars worth of work for the state over the years.
When the DWR asked for his help at Oroville, two days after the spillway cracked, Gutierrez said he agreed to take a leave of absence from GEI and return to DWR as a retired annuitant. That’s the term for an ex-employee who’s allowed to return to state government without violating pension rules.
However, Gutierrez said he didn’t want to ignore his duties at GEI for very long. So a month later a deal was struck: GEI agreed to provide a “lead person” – Gutierrez – to help the state. The agreement was an amendment to a contract that had GEI assisting the state on a flood-management initiative.
The contract amendment provides little explanation for what Gutierrez’s role is, other than reporting directly to DWR executives and working with “participating agencies” on the Oroville recovery and issues related to “flood-control, public safety, emergency preparedness, response and recovery.”
Throughout the spring, Gutierrez was often asked to respond to questions as if he had resumed his duties as a state dam executive.
At a state legislative oversight hearing on Oroville Dam in May, Gutierrez sat beside John Laird, secretary of the Natural Resources Agency, and Bill Croyle, who has since retired as acting director of DWR.
Gallagher, the assemblyman who represents the Oroville area, grilled Gutierrez about problems identified in the past state inspection reports, such as small cracks in the spillway’s concrete and trees growing too close to the structure. When Gutierrez deferred to the forensic team’s final findings, Gallagher grew agitated.
“I’m not asking the forensic team,” Gallagher told Gutierrez. “I’m asking the Department of Water Resources.”
Kathleen Clark, a government ethics expert at Washington University School of Law in St. Louis, said she found it odd that the state chose to hire a consultant for public outreach duties – work that she said state officials themselves should handle.
“Why isn’t there anybody in-house who can do this work?” she said. “There is something kind of strange about contracting out the communications function. ... That’s a core governmental function.”
Gutierrez said he regularly served as DWR’s point person in high-stress situations. For instance, he led the implementation of California’s controversial 2014 groundwater law. Helping communicate the state’s position is part of the job, whether it involves groundwater or Oroville Dam.
“This isn’t the first public meeting that I’ve been to,” he said. “I’ve been here a long time. I know the department pretty well. I know a lot of technical issues, and I kind have become ... a crisis manager. I go and fix things.”