John Blanding/Globe Staff/File
During the record-breaking winter of 2015, when thousands of commuters were left stranded by late and canceled trains, the company that runs the commuter rail tried to avoid paying hundreds of thousands in penalties for poor service by blaming the weather.
But Governor Charlie Baker’s office appeared to brush aside the idea, bluntly suggesting that Keolis Commuter Services should “focus its energy on restoring full service to the commuter rail as soon as possible.”
And the MBTA went ahead and issued the fines, ultimately totaling more than $1.7 million for subpar performance in February and March. For riders who had to wait for hours on frozen platforms and pack into overcrowded trains, it felt like a measure of justice.
But seven months later, the Globe has learned, the MBTA quietly reversed course.
Transit officials agreed to waive $839,000 in fines from February and March 2015, nearly half the original amount, according to a November 2015 letter obtained through a public records request. The decision to forgive the fines has never been publicly disclosed and drew angry rebukes from elected officials and commuters alike when they learned of it.
“That’s not right,” said Kristen DiMarzio, a Norwood commuter who remembers waiting for a train for almost four hours in South Station that winter. “They shouldn’t be forgiven. They really impacted people’s lives.”
The Baker administration and MBTA officials have pledged to discuss decisions about the transit system openly, but they have not mentioned the decision to waive some performance penalties at scores of meetings this year.
State Senator Jason Lewis, a Democrat from Winchester, decried the shift, noting that he continues to hear complaints from riders about delays and cancellations.
“I should be hearing about this from the MBTA and Keolis directly, and they should be sharing with lawmakers and the public exactly what they’re doing to improve performance and service and how they would justify not collecting the fines that are due,” he said.
“If we’re continually forgiving the fines, then we are not holding Keolis accountable,” he added.
Keolis declined an interview request, but said in a statement that it paid penalties for chronically late trains that winter, which crippled the transit system for weeks. Keolis said it was granted relief from other violations, such as dirty trains or not having enough trains in service.
“During what was an unprecedented series of winter storms, Keolis was prioritizing the efforts of all our staff to return the fleet back to full operations” Leslie Aun, a Keolis spokeswoman, wrote in an e-mail.
The MBTA also refused to grant interviews, but issued a statement by John Ray, its assistant general manager for commuter rail. Ray said that under a provision in Keolis’s contract, the MBTA can forgive fines when “unforeseeable circumstances prevent a contractor from fulfilling its obligations.” Officials did not say why the forgiven fines had never been disclosed publicly.
MBTA officials also noted that Keolis, despite the waived penalties, still paid more than $868,000 in performance fines during February and March 2015, along with about $11,000 in other fines.
The governor’s office responded to questions through a Transportation Department spokeswoman, Jacquelyn Goddard, who said the administration expects the MBTA to hold Keolis “fully accountable per the terms of the contract when on-time performance is not achieved.”
In November, the MBTA forgave the fines after Keolis officials provided “satisfactory explanations” for its shortcomings, according to a letter from a top Keolis official.
“Keolis has articulated how its ability to meet the non-OTP [on-time performance] standards was impacted by the severe nature of the weather events themselves, and, in some instances, as a result of the diversion of critical personnel and resources deployed to restore full service as safely and quickly as possible,” the company’s general manager, Gerald Francis, wrote in a Nov. 20 letter to the MBTA’s chief railroad officer.
Francis listed a range of causes for the company’s failure to meet requirements: station crews who had to remove snow rather than tend to other maintenance; ice and snow preventing door systems from working; overcrowding that prevented proper fare collection; and staff members who had trouble making it to work because of the storms.
Under its contract with the MBTA, Keolis is subject to fines for late, dirty, or otherwise subpar trains. During the 2015 and 2016 fiscal years, Keolis was fined about $12.8 million, and it was docked $1.1 million in the first two months of the current fiscal year, according to the MBTA.
The MBTA has been criticized before for how it has treated Keolis’s fines. Last year, the company was allowed to put about $5.5 million in fines toward improving its service, which critics said effectively lifted the fines.
In 2014, Keolis received an eight-year, $2.6 billion contract — the largest public services contract in state history — to run the MBTA’s commuter rail service. But earlier this summer, MBTA board members agreed to pay the company at least $66 million more over the life of the contract, a move that was also criticized.
The winter of 2015 overwhelmed the region’s public transportation system, with commuter rail service the hardest hit. Keolis ran on a sharply reduced schedule for weeks, its trains so crowded that conductors couldn’t move through to collect fares.
Beverly Scott, the MBTA’s former general manager who oversaw the Keolis deal, described it at the time as a “no excuses” contract. But under a “force majeure” clause, a fairly standard provision, the MBTA can waive penalties for uncontrollable events such as severe weather.
Keolis tried several times to invoke that clause during the winter, records show. Keolis’s general manager at the time, Thomas Mulligan, sent at least four letters, dated Jan. 28, Feb. 3, Feb. 9, and Feb. 18, asking the MBTA to forgive its fines.
Publicly, Baker was slamming Keolis over its performance, saying in February he was “done with excuses” from the company. MBTA officials also seemed to suggest they had no interest in letting Keolis sidestep any fines.
But in April, an MBTA spokesman described the winter as an anomaly that inevitably affected the company’s performance, a clear shift in tone.
“The operating agreement includes exceptions for extraordinary events, and if the snowiest winter in the history of Boston doesn’t meet that criteria, then nothing will,” MBTA spokesman Joe Pesaturo wrote in an e-mail to the Globe.
For commuters who still vividly remember getting left on platforms by overcrowded trains and shivering in cars whose doors had been frozen open, the notion of forgiving even some of the penalties seems unthinkable.
That winter, some commuter rail riders requested refunds for their monthly passes, which can cost nearly $400. Instead, the MBTA allowed customers to ride the system free for a day.
State Senator Jamie Eldridge, a Democrat from Acton, said many commuters will be “outraged” by the news.
“I remember getting dozens of calls from commuters who couldn’t get into work or who were late to work, and had to suffer a decrease in income because their company wasn’t paying for it,” he said. “None of them were compensated for those losses, and for Keolis to finagle their own financial obligations to be forgiven — that’s very disappointing.”
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