When Massachusetts became the last state in the nation to approve the use of civilian flaggers on its roads in 2008, Joshua Elgart saw an opportunity to start a business providing the very flagmen the state would need. Today, nearly three years later, his company, MA Traffic Control in Framingham, has yet to sign its first flagging contract. American Flagging and Traffic Control in Salem, N.H. hasn't landed a flagging job in Massachusetts at all this year and New England Flagger Services in Willimantic, CT has given up trying.
“We assumed by being one of the only businesses in Massachusetts on the forefront of an industry with zero competition, it was the ideal business but it didn't pan out,” said a disappointed Elgart.
The reason it hasn't panned out for Elgart and other flagging companies like his, critics say, is because the state regulation allowing the use of flagmen on road jobs is stacked in favor of police.
Currently only a handful of Bay State communities, some of them with small police departments that don’t have enough officers to do details, use civilian flaggers on local street projects, according to a survey by The New England Center for Investigative Reporting (NECIR).
Four loopholes in the state regulation have undercut the effort to replace police details with flagmen, the NECIR investigation has found.
One is the provision that requires police details on all roads where the speed limit is 45 mph which ends up being most major roads in the state.
A second loophole—each city and town police department can insist that police details be used on road jobs for “public safety” reasons. Critics say, when that happens, the Massachusetts Department of Transportation (MassDOT) representative on the job often gives police the final say.
A third loophole allows cities and towns to bypass the requirement to use flagmen on local road projects including work done by utility companies. .
A fourth loophole pertains to police union contracts. If the contract requires police details on all road jobs —which most of the state’s big city police union contracts do—flagmen are not allowed if the city or town is paying for the project.
“The problem is it (the regulation) doesn’t go very far. There's a huge opportunity for more savings that are going unrealized,” Michael Widmer, president of the Massachusetts Taxpayers Foundation, said of the savings that can be accrued from using flagmen, rather than officers, on town and city roads. “The hype surrounding this reform has always been much greater than the reform itself,” notes Widmer.
Police unions contend that one major reason why more flagmen aren’t being used on state road jobs is that they cost more. The state’s prevailing wage law, which sets salaries for various categories of jobs on public works projects, requires that flagmen be paid between $32 and $40 an hour, depending on the region of the state.
“It (the regulation) hasn’t worked. It won’t work,” argues Hugh Cameron, president of the Massachusetts Coalition of Police.
But MassDOT figures provided to NECIR show that the average hourly rate for flaggers in low bid contracts submitted between 2009 and 2011 is about $32 an hour for flaggers—far less than the $37 average hourly rate for a detail officer. Most utility companies NECIR spoke with did not cite the prevailing wage as a reason for not using flagmen. Contractors, however, said the prevailing wage law requirement often means it’s cheaper for them to use a police detail.
While most cities and towns surveyed by NECIR say they use only detail officers on state and local road projects, MassDOT claims the use of civilian flaggers is on the rise.
According to MassDOT data, the number of state transportation projects using civilian flaggers has increased in the last three years to 48.5 percent, up from 12.7 percent in 2009, one year after Gov. Deval Patrick announced that civilians would replace police detail officers on certain state roads. Of the 625 road projects in Massachusetts this year, 303 used flaggers, MassDOT said. The state has saved $23 million in the past three years as a result, the agency claims.
“The savings are there,” noted Thomas Broderick, chief engineer of MassDOT's Highway Department, explaining that the 2008 flagger regulation has saved the state money by allowing it to pay only for the amount of time a flagman or detail officer is on the job. Before the 2008 regulation, the state was required to pay police detail officers for a minimum number of hours.
But drivers, taxpayer advocates and even legislators who deal with transportation issues are scratching their heads over how MassDOT could have achieved such a huge savings when so few civilian flaggers are seen on Bay State roads.
“Personally, I don't think I've seen a flagman anywhere on the job,” said Senator Robert Hedlund (R-Weymouth), a member of the Joint Committee on Transportation, calling MassDOT's $23 million savings figure “sketchy.” Hedlund said he’s been skeptical of data supplied by MassDOT in the past and concerned over the way the agency’s leadership responds to questions during the state legislature’s transportation committee hearings.
A state auditor's report, completed in 2009, raised similar concerns. According to that report, auditors found that the Massachusetts Executive Office of Transportation and Public Works, (EOTPW) MassDOT's name until 2009, “overstated” annual cost savings projections of $5.7 million to $7.2 million.
A cost savings analysis produced by MassDOT for NECIR, however, shows savings far above those projections questioned by the auditor. In 2009, the first full year the flagger program was in effect, the state claims savings of more than $9 million, the analysis showed. The following year in 2010, cost savings topped $8.4 million. From Jan. 1, 2011 through August 18, 2011, MassDOT claims savings of more than $5.6 million.
The 2009 state audit of the flagger program also found errors in the way the department calculated cost savings.
There’s an ugly side to this as well. Because the state regulation doesn’t specifically require cities and towns to use flagmen, the loopholes in the regulation have spawned an entitlement mindset among officers who look to detail work as a way to increase their salaries, officials with some flagging companies said.
“There are some real horror stories out there,” said James Toomey, with Palmer Paving Corp. in Palmer, MA. Like other construction firms, Toomey said he's had police officers stop trucks for inspection and run checks on loads and employees while working on jobs where flaggers, rather than detail officers, are used.
“They know how to get their point across,” he said. He now uses detail officers on almost all construction jobs.
Officials at American Traffic Control in Salem, NH, who didn't want to be identified out of fear of reprisals, said the concept of police details is so engrained in cop culture, one Massachusetts police chief even torpedoed a state contract because flaggers would be used in place of police details.
“I had one police official tell me we would never flag in his town and he was right, we didn't,” said one company official. This year alone, he said, the Salem, NH firm bid on about 100 flagging jobs in Massachusetts but hasn't won a single job yet.
The New England Center for Investigative Reporting (www.necir.org) is a nonprofit investigative reporting newsroom based at Boston University. John Wayne Ferguson, a graduate student at the university’s College of Communication, contributed to this report.