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Transportation Dept. faulted in right-of-way audit

Friday, December 7, 2018 by Jo Clifton

When Austinites are asked for their top complaints about the city, one of the most frequent responses relates to traffic. The central city is particularly congested and contractors working in the right-of-way exacerbate the problem.

According to a report released by the Office of the City Auditor this week, efforts by Austin’s Transportation Department to enforce regulations related to work in the right-of-way are not sufficient to minimize risks to public safety and prevent traffic disruptions.

Members of the Council Audit and Finance Committee who attended Wednesday’s meeting, Mayor Pro Tem Kathie Tovo and Council members Alison Alter and Leslie Pool, all expressed concern after hearing the audit’s findings.

The audit, described by auditor-in-charge Kathie Harrison and audit manager Katie Houston, pointed out that the department does not have complete information on all right-of-way activities. In addition, the primary computer tool for showing when workers are working in the right-of-way “does not have the ability to show exactly when work begins within the approved window.” That window allows permittees to do such things as hire subcontractors and adjust for weather days.

Contractors working in the right-of-way are required to get prior approval from the city and call 311 when they actually start work. However, auditors said that during an inspection ride-along and review of 311 call data, workers at six of eight sites visited, or 75 percent, had not called the number prior to beginning their right-of-way work.

“In addition,” the audit notes, “the city does not notify permittees when permits are about to expire. Without this notification, permittees may continue to work in the right-of-way beyond their permitted period.”

Auditors were particularly critical of the department’s inspection regimen, beginning with the fact that the department has only five right-of-way inspectors and one “code enforcement officer” for the entire city and there is no system for ensuring that they cover their territories. Auditors said, “Despite these resource limitations, ATD management does not deploy inspectors following a strategic method, such as focusing on critical arterial streets or areas that have not been inspected recently.”

Auditors observed inspectors patrolling the same streets repeatedly and reviewing the same projects multiple times per week, instead of inspecting new areas.

Auditors also found inspectors did not use the city’s permitting system in a consistent manner. For example, auditors wrote, “We observed similar situations where workers did not have a physical permit on site. Two inspectors allowed work to continue while one inspector suspended construction work until a physical permit was presented.”

They also discovered that some inspectors were not recording all enforcement activities in the city’s permitting system. “For example, the inspections noted above pertaining to the Lavaca Street conflicts were not documented in the city’s permitting system. As a result, neither permittee was penalized for their noncompliance with city regulations.” The failure to document such violations limits the city’s ability to assess penalties when there are repeated violations.

The auditors also found that right-of-way inspectors can issue a notice of violation and recommend assessing investigative fees, but such fees are rarely assessed. Some inspectors told auditors they felt that the city should be collecting more of these fees and that the fees being charged “were not severe enough to deter future violations. For example, at the time of our audit, the fee for work without a permit in the right-of-way was limited to the cost of obtaining a permit. Our comparison of investigating fees assessed and documented violations showed that only 16 of 221 (7 percent) with at least one documented violation were assessed an investigative fee.”

Auditors attributed some problems to “missing procedural guidance for staff, misinformation about ATD’s enforcement authority, and a lack of management oversight.”

Transportation Department director Robert Spillar defended his department’s procedures related to assessing investigative fees, saying it is better to continue the current “three strikes” policy, which means that the contractor will not be fined on the first two occasions he is found to be out of compliance. But auditors pointed out that many violations were never recorded into the system, so it would be difficult to determine when the third strike occurs.

Currently there are about 3,000 active permits on any given day, Spillar said, but he said he expects the amount of development activity to peak in the near future. That makes him reluctant to hire a lot of new employees who may have insufficient work at some point.

Spillar said one of the problems in his department has been turnover in right-of-way management. However, as of this month all of the vacancies should be filled, according to his written response to the audit. “The traffic control supervisor will establish review procedures to ensure inspection and enforcement activity reports are completed and entered into AMANDA (the computer system),” he wrote.

The audit also noted that the right-of-way section of the department has only one cashier, who accepts cash and checks as well as credit card payments. Council members seemed alarmed and Pool urged Spillar to digitize the system as soon as possible, but Spillar was resistant to the idea, saying that some property owners prefer to pay their fees in cash.

The audit also said that Transportation and the Development Services Department should work together to clarify their roles and responsibilities. Auditors said the two departments have been working on a memorandum of understanding since June 2016 and Spillar indicated that he expected to have the memorandum finalized in 2019.

Photo courtesy of the city of Austin.

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