Kimberly Seay
Senior Symposium Editor
Loyola University Chicago School of Law, J.D. 2018

New Jersey Transit, one of our nation’s busiest commuter railroads, is no stranger to service and safety issues. Once a model agency to others, it is now the U.S. leader for breakdowns, accidents, and fines. Last year the agency logged the most accidents of the nation’s 10 biggest commuter railways, including the deadly Hoboken train crash. This past March, Todd C. Barretta took the reins of New Jersey Transit’s Chief Compliance Officer—a position that had been vacant since the agency created a safety office in 2014. He lasted a mere six months before being demoted, suspended, and ultimately fired. The New Jersey Transit system is a dysfunctional runaway train that needs an overhaul of its operating system to ensure safety for passengers and employees.

New Jersey Transit’s finance and safety issues

The agency has increasingly struggled with increased ridership and static public funding, diverting capital for future improvements to cover its day-to-day costs. In the last seven years alone, almost $3 billion was diverted to cover budget shortfalls. Lack of investment in new infrastructure is causing rampant issues, and promises to worsen. The understaffed agency is running on a slim budget; its state subsidy plummeted to just $33 million in 2015, compared to $348 million in 2009. A new federal deadline to install positive train control that can override human error is looming, with the agency already having received a waiver for the 2015 installation deadline. Though other large railroads received waivers, they are considerably further along in meeting the 2018 standards. As of June 30^th, 2017, New Jersey Transit had only trained 69 of the 1,100 employees who require positive train control training, equipped 13 of 440 trains, installed only 11 out of 124 radio towers, and begun installation on one of 11 train lines. The system is currently not functioning on a single mile of the 326 miles of track.

The agency’s finance dilemmas are also negatively affecting reliable service and passenger safety, with railcars breaking down every 85,000 miles. (Just four years ago, the breakdown rate was every 120,000 miles.) Moreover, in 2014 the agency reported an alarming 533 major mechanical rail failures, 12 times higher than the national commuter-rail average. Neither are the problems just mechanical. Human behaviors, such as falling asleep, drug and/or alcohol impairment and distraction have led to 165 safety incidents over the past 10 years—almost as many as the other 9 major commuter systems combined. This includes the 2016 Hoboken accident, where the engineer fell asleep at the wheel due to undiagnosed sleep apnea, killing one bystander on the platform and injuring over 100 passengers.

In 2016, the Federal Railroad Administration (FRA) audited the agency after a spike in safety violations and found, amongst other things, rampant questionable entries in the daily duty logs. The logs are maintained to document adequate rest employees undertake between their work assignments, in compliance with FRA safety regulation.

New Jersey Transit’s compliance woes

Todd Barretta was hired months after lawmakers from the state Assembly and Senate began a joint legislative oversight committee investigating New Jersey Transit’s safety and financial issues, as well as the agency’s political appointments. The committee found an alarming amount of key agency positions, such as CCO, were vacant. Barretta claims he was fired after he refused to ignore the systematic safety and staffing issues he uncovered during his brief tenure. After his dismissal, Barretta gave testimony before the committee portraying the agency as run by incompetent and unqualified management that condoned a poor safety culture by refusing to acknowledge concerns or implement changes. Specifically, he said the agency adhered to outdated safety policies and procedures, and employee training was so inadequate that he witnessed instructors giving answers to employees on safety-training tests. Furthermore, he was told by executive director Steve Santoro not to put any of these failures in writing. Officials said he was let go initially for not returning a work laptop, but once he provided a receipt showing they had received it, Santoro changed his story, saying Barretta was terminated for misuse of his work vehicle.

Additionally, when the committee looked into patronage hiring concerns, the agency was unable to provide resumes for many top staffers, and officials could not explain why they were unable to locate such records.

Barretta’s claim that during his brief employment he “witnessed more occurrences of agency-wide mismanagement fueled by ignorance, arrogance, hypocrisy, incompetence, patronage, cover-up and corruption that one can reasonably expect to experience throughout an entire career,” would be alarming even in the private sector. From a public entity, it is unconscionable. By consistently resisting and retaliating against employees who speak against it, the agency is placing self-protection over public service and safety.

The agency would benefit from implementing all seven pillars of the OIG’s effective compliance elements to ensure compliance with obligations and to increase commuter-rail safety. Ensuring all employees are regularly and properly trained on policies and procedures would be a step in the right direction for the agency. Moreover, implementing an auditing and monitoring system, especially regarding the daily duty logs, would prevent further incidents like the Hoboken crash. By setting the tone at the top with leadership and by emphasizing ethical and responsible behavior, New Jersey Transit can begin the process of improving any systematic failures that exist.