Associate Articles

1. Contractual and pass-through agreements for local agencies, school districts and community college districts. This includes all pass-through payments for school districts;
2. Redevelopment Obligation Retirement Fund for Successor Agencies' payments; and
3. Remaining property taxes will be provided to Cities, the county, schools, community college districts, and non-enterprise special districts in the proportional shares of what would have been received absent redevelopment.

1. One member appointed by the County Board of Supervisors;
2. One member appointed by the mayor of the city that formed the RDA;
3. One member appointed by the largest special district;
4. One member appointed by the county superintendent of education;
5. One member appointed by the Chancellor of the California Community Colleges;
6. One member of the public appointed by the county board of supervisors; and
7. One member appointed by the mayor or the chair of the board of supervisors from the largest representative employee organization of the former RDA.

Last month in the Hall Monitor, Bob Nicholson addressed the history of the Field Act and AB 300. Over the coming months we will present a series of articles addressing the many complex topics involved with seismic safety. It is our hope that this will add to the discussion sparked by major quakes world-wide, and the recent increase in public concern. 

In this first part we will raise a number of questions for facilities managers to consider and also address the question of design immunity, the central concept governing liability. Our hope is to provide California school districts with a road map for taking action, for evaluating your facilities, and for creating partnerships with the public. 

Does your Board continue to enjoy design immunity? Are your facilities safe according to accepted standards? Is your District acting legally to affect needed retrofits? Are you in compliance with AB 300 reporting requirements? Are you helping to place your District in line for future funding?  These are some of the key questions that facilities managers should consider when evaluating seismic safety, liability and public perception. 

We know that all facilities managers would like to ensure that their students and colleagues will be safe when a major quake hits. But how do we measure safety? How do we move forward with limited funds and without causing undue concern in the community? Can we assume we are off the hook if the building was built using the codes current at the time, or if it passed a DSA structural review when modernized? How do we ensure that we are acting wisely now and with funds we will commit to our facilities in the future? 

First, let’s consider Board liability and the important concept of design immunity. For structures built to code in the past, Board members enjoy design immunity, and therefore cannot be held personally liable for damage and injury in the event of a quake. This is true despite the fact that in many cases, we are talking about buildings constructed many decades ago. Over that time period we have gained important knowledge about design and construction weak points and have changed our building codes as a result.  The District continues to enjoy design immunity provided a building has not been flagged by the State, and Architect, or an Engineer as a building potentially at risk. 

Do you have a Master Facilities Plan (MFP) that identifies needed seismic work? Did you have an Architect or Engineer help prepare an Emergency Repair Program application that lists structural deficiencies? Do you have buildings on the AB 300 list? If you answered yes to these questions than a clock started ticking when the State, Architect, or Engineer identified the potential risk. 

This clock is counting down on an uncertain period of time, currently defined only as acting within a timely fashion, in which the District must act on the potential deficiencies. Failure to do so places Board members at risk of losing design immunity, in which case they may be held personally liable in the event of an earthquake that results in injury! Despite the vagueness of the term, a damaging quake is sure to abruptly end the time allotted for acting in a timely fashion. Given California’s location in an active seismic zone, we recommend that each District develop a formal plan for evaluating, prioritizing, and correcting (if indicated), potential deficiencies. In the absence of such a plan and the presence of unaddressed deficiencies, should a quake cause injury, we can be certain that the courts and the grieving community will hold that the District has been negligent. 

On the other hand, if Districts act proactively to evaluate their facilities and to plan repairs, then it is far more likely that the community will recognize that facilities man-agers have acted in good faith. More importantly, it is far more likely that the funds for urgent repair work will be found, and lives saved. 
In following issues of the Hall Monitor we will address how to: 

• Develop an Evaluation and Mitigation Plan 
• Determine if the “design immunity” clock is ticking 
• Assess potential deficiencies 
• Prioritize and price repairs 
• Make seismic mitigation an integral part of your current and future capital program 

Part 2:  The Evaluation and Mitigation Plan 

This is the second article in our series exploring the responsibilities and exposure that Districts face in addressing seismic safety in their facilities, from both a legal perspective and in terms of public perception. In a time of increased public scrutiny and severely limited resources, our intent is to help Districts navigate these tricky issues, while helping the public to understand that most Districts will not be able to completely fulfill their duty unless the public provides the necessary resources. 

Last month we explored the concept of Design Immunity, noting that a District’s failure to act on buildings that have been flagged could lead to Board Members being held personally liable. Districts are required to act “in a timely fashion” when an Architect, Engineer, or the State has alerted the District that a building serving students may be unsafe in the event of an earthquake. 

In the absence of such notification, Board members and Districts enjoy the legal favor of being protected from liability so long as their facilities were built to code at the time they were constructed. This is even the case with buildings built decades ago, long before the engineering community learned of weak points in our older structural systems. These vulnerabilities came to light following significant earthquakes. Hard knowledge acquired in this way drives our code upgrades. 

As an aside concerning public perception, there is confusion concerning the importance of State certification of completed facilities constructed or upgraded. Most Districts are wading through a backlog of uncertified buildings. For some Districts this is largely the result of the school construction boom that mirrored the housing boom that occurred over the past twenty years. In our experience, buildings are rarely uncertified because they failed to be built to code. With most projects, the cause is simply missing paperwork. There is some irony here when we consider that there has been public outcry about recently constructed uncertified buildings. These buildings have been designed using the stricter modern codes and built by an industry where the technician’s watchword is “build to code”. This is especially true in the public sector where trade unions and associations bring continuity and professionalism to training. These structures are no doubt safer than many older buildings that carry the “certified” label. Certification is important, but the underlying design and work being certified is what really matters. Fortunately, there are checks in place and trade knowledge is one of those balancing factors. 

Given that the cost to upgrade all school buildings to modern standards would be so great; our public policy for upgrading is focused on buildings that have been flagged by key building professionals. This is where Districts should focus their attention as well, with a careful review of Facilities Assessments, Master Plans, Emergency Repair Program grant applications, and any other reviews by architects or structural engineers that may have raised concerns about the structural integrity of their buildings. 

And of course, most Districts have buildings flagged by the State as a result of AB 300. First we should note that AB 300 requirements are minimal and are little more than a nudge from the Division of the State Architect. By itself, compliance with AB 300 is unlikely to satisfy a jury that a District acted responsibly if one of these listed buildings is shown to have structural deficiencies that contributed to damage causing injury. This is because the DSA 300 reporting form merely asks the Districts to report by answering “Yes or No” if they have had the listed buildings reviewed by a structural engineer and if so, whether seismic “or other” upgrades were performed. There is no actual requirement to have the building assessed by a structural engineer or for them to use a specific safety standard as a yard stick. More importantly, there is no requirement for the District to take further action if potential deficiencies are identified. 

This highlights the need for a District to draw up an internal Evaluation and Mitigation plan that can be used to demonstrate to the public that the District is working diligently to insure student safety, to determine if certain reports require that a facility be evaluated further to preserve Design Immunity for the Board, and to plan future capital projects. 

Start by creating a formal plan that lays out the specific steps that the District will take to determine the following: 

• Which buildings have been flagged, setting off the design immunity clock? 
• What engineering methodology should be employed to assess if there are potential deficiencies in these buildings? 
• What safety standard should be met? 
• Which projects should be prioritized? 
• How will the District integrate seismic evaluation and upgrades with work currently planned and future work? 
• What are the likely needs for interim housing and available options? 
• What will the appropriate level of evaluation, carried out in stages, cost? 
• What are the potential costs of mitigation using best case and worst case scenarios for correcting possible deficiencies that are identified? 
• What sources of revenue are available? 

Districts that generate an Evaluation & Mitigation Plan will have a planning document of substance to demonstrate to the public that their District is serious about seismic safety. 

In the next article in the series we will take a closer look at engineering methodologies used to assess seismic risk. We will see that “safe” or “unsafe” is rarely a straight forward determination. This can help most Districts move forward with a responsible evaluation and mitigation process without falling into the trap of declaring a needed building unsafe while lacking immediate resources to effect repairs.


Part 3: Evaluation Methodology – “Safe for Now”

This is the third and final article in our series exploring the responsibilities and exposure that Districts face in addressing seismic safety in their facilities.

In Part 1 of this series we explained that in the event of an earthquake causing injury, Board Members can be held personally liable if the District fails to act “in a timely fashion” to address buildings that have been flagged for further evaluation by the State, an Architect, or an Engineer. Virtually all Districts have buildings on the AB 300 list; hence Districts must act on these buildings in order to preserve design immunity with the attendant legal protections for Board members. Compliance with AB 300 reporting requirements alone (filing DSA 300 forms) will not preserve design immunity.

In Part 2 of this series we recommended that Districts develop a formal Evaluation & Mitigation plan to identify all buildings flagged (not just buildings on the AB 300 list), adopt a methodology for evaluation, and move forward with mitigation measures. It is our contention that by adopting an Evaluation & Mitigation plan and integrating this plan into the District’s Capital Improvement Program, Districts can demonstrate to the public that they are acting to ensure the safety of their students while helping to preserve design immunity. However, Districts have long grappled with an apparent Catch- 22, fearing that the discovery of seismic deficiencies, in the absence of resources to affect repairs; will leave the District in an impossible position.

In this article we explain how Districts can evaluate their buildings using a nationally recognized standard, identify potential deficiencies in the process, and still have a reasonable level of confidence that they will be able to report that most, if not all, of their buildings are currently safe. This will not relieve Districts of their responsibility to act on the deficiencies identified, but it will give them time to act. It will also afford time for those concerned with seismic safety in our schools to organize for the passage of a State bond to fund repairs and modify the current Seismic Mitigation Program (SMP) in a way that does not put Districts in a Catch-22(a).

The heart of the Evaluation & Mitigation Plan is the adoption of a methodology for determining whether a building is acceptably safe or not. Determining the seismic safety of a building is not straight forward. The complications start when we try to explain how the engineering community defines safety. Only in the most general sense is it possible to simply declare a building as safe or unsafe. Engineers will instead talk of “acceptable risk”. No parent wants to hear that officials have determined that the risk for their child to enter a building is “acceptable”. But in fact, these same parents choose to take on all sorts of “acceptable” risks all day long. The most obvious and not insignificant risk is that of driving in our vehicles. Multiple factors affect this risk: what safety features are built into the car; how many miles are involved; how heavy is the traffic that must be negotiated, etc.? All these factors play a part in determining the risk faced by our children every day. Parents find this to be an “acceptable risk”. District officials will need to be familiar with the concept of “acceptable risk” and how to explain this principle to their community members.

Multiple factors determine the risk of driving. In a similar fashion multiple factors determine seismic risk. Four factors are central. They are:

• Site Geological Conditions (soil type, distance from faults)
• Building Type (structural system, concrete, wood, etc.)
• Acceptable Risk Factor (expressed as a probability percentage)
• Recurrence Factor (the time window of exposure)

We recommend that Districts adopt the American Society of Civil Engineers (ASCE) standard 31 (ASCE 31). This standard sets forth a methodology that structural engineers can follow to determine how a particular building or connection will perform when subjected to seismic forces. Unlike much of the Building Code, which specifies what hardware or nailing schedule must be followed (prescriptive standard), ASCE 31 is a performance standard. The standard is not concerned with the specific hardware used, only how it will perform. This allows the engineer some latitude when considering both the strength of an existing connection, and how to upgrade that connection.

In terms of the factors listed above, ASCE 31 lays out the following base line: an acceptable level of risk is achieved when there is less than a 10% chance that an earthquake will be large enough to cause critical building connections to fail, over the next 50 years. With this standard, 10% percent is the Acceptable Risk Factor, 50 years is the Recurrence Factor, and for each site considered, it all depends on the underlying Geological Conditions and the Building Type(b).

It is important to note that the Recurrence Factor of 50 years makes sense if we are concerned with how a building will perform over its expected lifetime. It does not make sense if we are concerned with the safety of a kindergartener embarking on thirteen years of study before graduation. In this case, the window of exposure for that student is just 13 years. As a onetime fix for this problem, it makes sense to modify the standard to be based on a Recurrence Factor of 20 years rather than 50 years. Additional ASCE standards describe methodologies that can be followed by structural engineers to modify factors such as the recurrence period. If we modify the bench mark standard in this way, a deficient building with a greater than 10% chance of failure over 50 years (unacceptably risky for this time frame, according to the standard) may will be found to have less than a 10% chance of failure over 20 years (the acceptable risk factor for this time frame is met).

Using this approach Districts can evaluate their facilities using a national standard for safety and are likely to find that most of their buildings, including many with deficiencies, will be acceptably safe for the academic career of their current students. We believe this is a reasonable way around the current Catch-22. Districts can move forward with a professional evaluation of their older buildings, buildings of a weaker building type (AB 300 list), and buildings otherwise flagged. Districts can incorporate their mitigation plans into a 10 year capital improvement plan, and facility advocates can gather hard data that can be used to plan for a future state bond and a workable State Funding Program (c).

Districts embarking on this path to student safety and preservation of design immunity should expect to spend time explaining these engineering concepts and study results in a candid fashion. Ultimately, our parents must come to understand that our school stock is not as safe as it should be for the world’s eighth largest economy sitting on the “ring of fire”. But how safe is “safe enough”? While we can expect action, we cannot expect our school officials to fix the problem if the public fails to provide the resources.

Footnotes:
(a) Recently, as a result of a concerted effort by State officials, the SAB directed OPSC to relax the SMP rules to make it easier for Districts to access approximately $200m in funding set aside for seismic upgrades. Unfortunately for most Districts, to access these funds the District must still have the building in question declared to be in eminent danger of collapse and this finding most be supported by DSA

(b) Districts and emergency planners should note that most school buildings, including multipurpose rooms and Gymnasiums, are designed for ‘life safety protection’ only, not for the higher performance standard that would allow us to expect that these buildings can be safely occupied immediately after a major quake hits. If District facilities are part of an emergency response plan where it is expected that these large buildings can serve as emergency shelters, then the designers for the seismic upgrade should be made aware of this and design accordingly. In these cases, Districts should approach government agencies responsible for emergency response, to share the cost to upgrade.

(c) A new SMP will need to allow districts that meet a 10% risk factor with a shortened recurrence period to still qualify for funding if they can show that their buildings fail to meet this risk factor with a longer recurrence factor up to the useful life of the building. To prevent abuse of the ASCE 31 standard, we recommend that a rule be adopted disqualifying Districts from State funding should they opt to use a reduced Recurrence Factor more than once.

District circumstances will vary so districts should consult their design and engineering professionals and their legal counsel regarding their specific circumstances.  For more information contact David Randolph, Associate, at 408 480-7127 cell or david@erichallassociates.com.

November 30, 2011