NJ Transit Dinky Train

New Jersey Transit is seeking a declaratory judgment finding that a critic of the agency’s management who was fired is not entitled to protection under the state whistleblower law.

The agency filed suit Thursday against Todd Barretta, who was hired in February for the newly created post of chief compliance officer. Barretta was fired on Aug. 21, and four days later, he testified before a legislative committee that New Jersey Transit is mismanaged and beset by patronage.

The suit, filed in Mercer County Superior Court, seeks a declaratory judgment that New Jersey Transit’s demotion, suspension and ultimate termination of Barretta were due to poor job performance and violations of agency policies, and did not violate the Conscientious Employee Protection Act. New Jersey Transit is “entitled to a declaration that it did not violate CEPA and that its actions with respect to Barretta’s employment were not retaliatory,” the suit stated.

The suit also seeks damages for breach of a duty of loyalty, based on Barretta’s alleged misuse of an agency-owed vehicle. In addition, the suit seeks an injunction against the use and dissemination of confidential privileged information by Barretta. The complaint states that Barretta shared such information with legislators and with the media, but gives no indication what type of information is at issue.

The job of chief compliance officer entailed “developing and implementing systems and strategies to ensure each operating unit of NJ Transit complies with applicable legal and regulatory requirements, internal policies and risk management plans,” the suit said. Barretta was hired after the agency received 130 applications for the job, which paid $175,000.

Barretta issued a memo to agency executive director Steve Santoro on June 2, claiming that abuse of the Family and Medical Leave Act by employees is widespread, leading to gaps in service.

But on the job, Barretta displayed a “confrontational attitude” and agency leadership spoke to him on multiple occasions to explain that his approach was inappropriate, the suit said. He “refused to listen to, or learn from, employees with subject matter expertise who had spent far more time than he working at NJ Transit, and instead insisted that he was right and knew everything related to the operations of NJ Transit while dismissing the opinions of his co-workers.”

Barretta requested an agency vehicle and was issued one but was told it was not for personal use, commuting or carrying passengers. He told a fleet manager that he would obtain permission for such uses from a superior, but failed to do so. In July, after he had the vehicle for two months without obtaining the authorization, an investigation into his use of the vehicle was undertaken.

New Jersey Transit’s complaint said Barretta falsely claimed on monthly vehicle reports that he used the car only for official use. Between May 8 and July 10, Barretta put more than 2,000 miles on the vehicle, but less than 10 percent of those miles were for legitimate business purposes, the suit claims. GPS records and an investigation show that he used the car to take his child to school, in violation of agency policy, and to make shopping trips to Best Buy and Marshalls, the suit claims.

“Barretta’s misuse of the vehicle, which began as soon as he obtained it, is indicative of the utter disregard he had for the policy and the governmental property entrusted to him by NJ Transit,” the suit said. “In short, the investigation revealed that NJ Transit’s CCO—whose very job included overseeing the policy—was committing daily, flagrant violations of the policy.”

While he was under investigation, he was asked to return an agency-issued laptop computer. He failed to do so by the specified date, but did so at a later date, the suit claims. He was terminated on April 21.

Barretta made headlines Aug. 25 when he said at a joint hearing of the Assembly Judiciary Committee and the Senate Legislative Oversight Committee that New Jersey Transit has lost qualified personnel because of the power wielded over them by political appointees, who he described as highly paid but lacking job descriptions. Barretta also said the agency misused grants intended for Superstorm Sandy recovery and that he saw instructors giving railroad engineers the answers to safety tests. Barretta claimed at the hearing that he was told by superiors to stop putting such criticism in writing, although New Jersey Transit disputes that claim.

Barretta also said in the hearing that he was instructed to mark memos privileged so they would not be subject to Open Public Records Act requests. In addition, Barretta testified that New Jersey Transit’s safety policies were outdated and inconsistent with federal requirements. In the complaint, New Jersey Transit disputes the allegations by Barretta in the hearing.

Barretta “used his legislative testimony as a vehicle to portray himself as a model employee who was only trying to right a wayward organization; to accuse NJ Transit as an institution, as well as its leadership, of gross incompetence; and to otherwise claim that he was somehow suspended and terminated for improper and/or retaliatory reasons, purportedly in violation of CEPA,” the suit said. “NJ Transit is entitled to a declaration that it did not violate CEPA and that its actions with respect to Barretta’s employment were not retaliatory.”

New Jersey Transit is represented in the suit by Deputy Attorney General James Duttera. New Jersey Transit and the Attorney General’s Office decline to comment on the litigation.

Attorney William Russiello of Leslie & Russiello in Hackensack exchanged correspondence with New Jersey Transit concerning Barretta’s employment. But Russiello said he would not be Barretta’s trial counsel and no other attorney has been retained to do so. Russiello declined to comment on the suit and Barretta could not be located.