Sometimes They’re Fined, Sometimes They’re Not

Sunday, Aug. 23, 2009 | On a warm June day in 2007, a construction crew hired by Caltrans closed a southbound lane of Highway 125 in La Mesa to pour concrete. The median barrier needed work.

Construction workers from the company got a late start. They had a narrow window to work. Caltrans designates specific times for construction to happen. Workers were allowed to close the lane at 10:01 a.m. The road needed to be reopened by 12:30 p.m.

But, according to Caltrans records, the crew’s concrete truck ran behind schedule. So work started an hour late on the project near Grossmont Boulevard. And the road didn’t reopen until 2:25 p.m. — almost two hours late.

That should have brought the company, Peterson-Chase, a fine of more than $85,000. Caltrans includes provisions in its contracts with construction companies that promise to fine contractors if work crews open roads late. For every 10-minute increment they’re late, contractors are to be fined as much as $17,000 per increment.

But Peterson-Chase was not fined for the late opening. Caltrans’ San Diego office has repeatedly given that break to Peterson-Chase and other contractors who don’t open roads on time. It has fined two companies, but not nine others — despite instructions from Caltrans’ Sacramento headquarters to always collect fines if work runs late. Even the two companies that were penalized aren’t always.

Caltrans’ local office appears to be selectively enforcing the penalties, levying them in some instances but not others. It isn’t clear why. Though a Caltrans spokesman offered two reasons why the fine wouldn’t be levied, Caltrans’ actions have contradicted both.

By failing to enforce its own regulation over the last four years, records show that the local office of Caltrans, the state transportation agency, has foregone more than $1.2 million in fines it was supposed to levy.

Caltrans includes late-opening penalties in its regulations to ensure that road closures don’t inconvenience the traveling public and to motivate contractors to have contingency plans and reopen roads on time. The penalties are designed to keep road closures from affecting rush-hour traffic.

The rules call for penalties to be assessed is black-and-white. It states that a contractor whose work goes over schedule “will” be fined.

Hayden Manning, a Caltrans spokesman, offered two reasons why fines may not have been levied. He said in an e-mail contractors aren’t fined if the late opening isn’t their fault. “Even though there are late pickups it does not mean they are all Contractor’s responsibility,” Manning wrote.

Caltrans records obtained by voiceofsandiego.org show, however, that construction delays caused some late openings that didn’t draw penalties. Contractors are responsible for planning ahead, ensuring that their crews are ready to work and that their materials are in place so work can be finished within the window of time Caltrans allows.

But one company’s crew opened part of Interstate 5 three hours late in 2005 because it needed more time to pour concrete. Its contract called for a $29,400 fine. It wasn’t levied. A closure on the San Diego-Coronado Bay Bridge opened 55 minutes late in 2007 in part because a construction crane had to be demobilized. Another Interstate 5 closure reopened late in 2007 because the crew’s concrete truck ran late. Neither contractor was penalized.

Manning also said Caltrans doesn’t collect fines if late openings have no impact on traffic. He acknowledged that that’s not written anywhere in Caltrans’ regulations. And two contractors disagree, saying they’ve been fined when they haven’t delayed traffic.

Last November, Coffman Specialties, a San Diego-based contractor, was late to reopen Interstate 5’s southbound on-ramp at Lomas Santa Fe Drive. Construction was supposed to have finished by 5 a.m. But work went late, and the ramp didn’t reopen until 6:20 a.m.

Caltrans levied a $56,800 fine.

Coffman protested. Bard Kearns, a Coffman project manager, told Caltrans in a letter that the late reopening on the company’s $36.3 million project hadn’t slowed traffic.

Caltrans rejected the excuse.

Amir Etezadi, a Caltrans senior resident engineer, told Coffman in a reply that the company’s explanation about traffic impacts “does not have relevance.”

“The late opening is the responsibility of the contractor and if not for poor planning, it could have been avoided,” Etezadi wrote.

So the fine stood. Manning, the Caltrans spokesman, didn’t respond to e-mailed questions about the exchange.

During the last four years, Caltrans records show that 11 contractors have opened roads late. Only two of those companies, Coffman and Flatiron Construction Corp., have been fined. Flatiron has paid $15,200 in fines, records show, and Coffman has paid more than $160,000. They haven’t always been penalized when they’ve opened roads late, though.

And those records aren’t complete. Coffman’s late opening in November 2007 didn’t show up in a database that Caltrans provided voiceofsandiego.org in response to a California Public Records Act request.

Jeff Turner, Flatiron’s district manager, challenged Manning’s statement about not levying fines when no traffic impacts occur. Turner said his company has been penalized for opening roads late when traffic wasn’t impacted. “We’re responsible for it and we were assessed penalties,” Turner said.

“It’s not tied to traffic,” he said. “You can be assessed a penalty on a road that has no traffic on it.”

Caltrans’ Sacramento office has directed local offices to always collect penalties — even if traffic isn’t impacted. In a 2001 e-mail obtained by voiceofsandiego.org, Jim Linthicum, then Caltrans’ construction chief, told local offices to always collect fines.

“We must take the penalty,” Linthicum wrote. Engineers in local offices “can no longer negotiate these penalties if there was no congestion caused by the late pickup.”

Manning didn’t respond to questions about the e-mail. He asked for more time to research the issues voiceofsandiego.org raised, despite having already had two weeks to do so.

Please contact Rob Davis directly at rob.davis@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.