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Queens DA's office joins probe; governor says violators should be 'punished'

The district attorney's office said this week that prosecutors "have met and are in consultation with" Metropolitan Transportation Authority inspector general Barry Kluger in an investigation into possible overtime fraud by MTA employees.

A train at the Hicksville LIRR station on

A train at the Hicksville LIRR station on Sept. 5, 2018. Photo Credit: Newsday/Thomas A. Ferrara

Gov. Andrew M. Cuomo on Wednesday called for any MTA employees committing overtime fraud to "be punished.”

Cuomo’s remarks came a day after the Queens District Attorney's office said prosecutors “have met and are in consultation with” the Metropolitan Transportation Authority Inspector General’s office as it moves ahead with its probe into possible overtime fraud among MTA employees, including those at the Long Island Rail Road.

“I don’t believe the workers of the Long Island Rail Road or the New York City Transit Authority sanction any of their colleagues defrauding taxpayers. It’s theft. It’s stealing. It’s potentially criminal. And that’s why the [Queens] District Attorney is looking into it,” Cuomo told reporters at Bethpage State Park on Wednesday.  “And if there was criminality, they should be punished.”

The involvement of the district attorney’s office raises the possibility of criminal charges against MTA employees. Kluger and a spokesman for the MTA both declined to comment Tuesday.

At the urging of MTA chairman Patrick Foye, Kluger earlier this month said he would launch an investigation into the agency’s overtime practices. Concerns were raised about the legitimacy of some MTA workers’ overtime after the Empire Center for Public Policy last month released an MTA payroll report that revealed alarmingly high overtime rates among some employees.

The MTA's top earner in 2018, LIRR chief measurement officer Thomas Caputo, made $344,147 in overtime on top of his base salary of $117,499, according to the Empire Center, a nonprofit group based in Albany. Caputo, who earned more last year than the railroad president and the MTA's managing director, since has retired.

Foye said Friday that five LIRR workers recently were disciplined, or currently face disciplinary sanctions, for overtime abuses.

At an emergency MTA board meeting Friday, Foye noted that Kluger’s office had “open investigations” into overtime abuse at the LIRR. Foye said that, while he believed most overtime at the MTA is legitimate, “There is a small fraction of overtime that is fraudulent and involves abuse of the current system.”

Kluger’s office routinely works with prosecutors on cases that could result in criminal charges.

MTA union leaders have fought back against the agency’s handling of the overtime controversy, including the decision to have armed MTA Police officers monitor employee time and attendance at job sites last week. They also rejected accusations from MTA board member Lawrence Schwartz, who represents Gov. Andrew M. Cuomo, of “constant overtime, payroll and pension abuses” across the MTA.

The LIRR’s senior union official, Anthony Simon, did not immediately respond to requests for comment Tuesday. Simon said Monday that, while he does not condone employees collecting overtime for hours they didn’t work, the MTA should be working to resolve labor issues at the negotiating table.

"You have to let the process take its place. You have to get in the room with us and talk to us to see how we fix things like that,” Simon said. “Before you go and destroy people’s lives, let’s have a conversation.”

LIRR overtime costs climbed by about 50 percent from 2015 to 2018, and were already over budget two months into 2019. Overtime, which is assigned based on seniority at the LIRR, helped railroad laborers snag six spots on a list of the MTA's Top 10 earners in 2018.

Union officials have said the MTA's rising overtime costs come as managers urge employees to work long hours to support efforts to improve service reliability, including at the LIRR.

The MTA Inspector General's Office has successfully worked with prosecutors in the past to secure convictions of MTA employees accused of improperly collecting pay. In 2012, David Varlack, a New York City Transit Authority signal maintenance supervisor, pleaded guilty to grand larceny and was made to pay back $18,421 — "the amount of money he stole from the New York City Transit Authority by claiming that he was working when, in fact, he was not," Kluger's office said at the time. 

Kluger also worked with federal prosecutors in their probe into charges that LIRR retirees were working with doctors to falsify medical reports to illegally collect disability benefits. The investigation resulted in the conviction of 33 people, including several former LIRR employees.

Cuomo noted that, as New York State Attorney General, he launched his own investigation into the alleged disability fraud at the LIRR in 2008.

"If you break the law, if you are scamming or defrauding taxpayers, I want every New Yorker to know that this state will do everything that it can to stop the fraud," Cuomo said Wednesday. "We are investing money to fix the train system, but New Yorkers expect that the money is going to be spent in the way it’s intended to be spent and they are not going to be ripped off. And if they steal money, they should be punished. They deserve nothing less.”

With Robert Brodsky

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