An unnamed pilot posted videos on YouTube showing how baggage handlers can access aircraft just by swiping their ID cards at a door. Meanwhile, TSA subjects pilots to thorough searches, even those some pilots are permitted to carry firearms on-board, and have access to a hand ax in the cockpit. Now, the Transportation Security Agency (TSA) has responded -- not by addressing the security issues, but rather by subjecting the pilot to an investigation. According to San Francisco attorney Don Wersto, federal authorities have confiscated the pilot's firearm and removed him from a program that trained pilots on advanced security procedures.Mr. Werno told the Associated Press that the pilot has now removed the videos from YouTube. They had documented the difference in security screenings between pilots and ground crews at San Francisco International Airport. The episode raises a concern that TSA is more concerned about its public image than it is about real security. Real security policy makers welcome disclosures about weaknesses in current practices that they can fix. Hopefully, Mr. Wersto will be advising his client about the right to file a retaliation claim within the 90-day time limit under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21").
Captain Dan Hanley (center in photo) is the host of the Whistleblowing Airline Employees Blog Talk Radio Program and a leader of the Whistleblowing Airline Employees Association. He is a former United Airlines pilot, and succeeded in getting the Securities and Exchange Commission to investigate improprieties in United's bankruptcy. When the Senate passed its flawed version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and the National Whistleblowers Center called on the House to fix the flaws, Capt. Hanley initially signed onto a letter urging NWC to support House passage of S. 372, as is. Now he has retracted his support of that letter. Here is what he says today through Facebook:
My overriding concern is the continued corruption that lies within the DOJ and all intelligence services, which will be exacerbated with passage of the bill in its present form. It is for these reasons that, although some improvements were achieved in specific areas, the overall bill is sorely lacking in areas of import to me and our association.
S. 372 would coral the whistleblower complaints of federal employees in the intelligence agencies to a panel run by the heads of those agencies. Capt. Hanley now rejects the idea that we can advance our cause with legislation that is "sorely lacking in the areas of import to me and our association."
Air traffic controller Ray Adams put aviation safety ahead of his own career when he blew the whistle on near misses on the runways of Newark Airport in New Jersey. NJ.com reports that when Adams raised concerns about how runway intersections at Newark posed a risk of collision, he was removed from the control tower on a false charge of failing to follow orders. The Office of Special Counsel has now confirmed that Adams was right about the inherent dangers of Newark's runway configuration. At a Senate committee hearing last month, Sen. Frank R. Lautenberg (D-N.J.) questioned Randy Babbitt, the Administrator of the Federal Aviation Administration (FAA). Sen. Lautenberg expressed dismay that any air traffic controller would face threats of removal for raising a safety concern.
Babbitt agreed that the FAA mishandled Adams' case, and said that the FAA would establish a new office where agency employees could raise concerns without fear of being fired. "When someone raises a question and they have to ‘blow a whistle’ to get the information to us, we’ve already had a breakdown, we’ve already had a slip in the system," Babbitt said.
While Babbitt's recognition of the agency's misstep is a welcome development, Babbitt's statement does not yet reflect a fully reformed safety-conscious commitment. Offices already exist where federal employees can raise safety concerns with legal protection against retaliation. These include the Department of Transportation's Inspector General, the Office of Special Counsel, and every member of Congress. Indeed, every office of the FAA, and of every other government safety agency, should be such an office. The problem is not the lack of a whistleblower office, but rather lack of leadership to use existing offices to put safety first. Any act of retaliation against a whistleblower is a betrayal of the FAA's basic mission to put safety first.
"I was really waiting for him to take it one step further and say, ‘We will hold the managers accountable,’ but it was still excellent to hear the administrator," Adams told NJ.com. Adams had worked for the FAA for 19 years, and at Newark Airport for eight years. He got it right when he sees management recognize a problem, but balk at the idea of disciplining abusive managers. If managers were as afraid of discipline for their abuse of power over their subordinates as they are of discipline for failing to meet objectives for the volume of traffic, then all employees would see that management really wants them to put safety first.
Sen. Lautenberg could help the air traffic controllers in his home state by calling on his fellow senators to dump the Senate's hurdle-filled version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and approve the House's version, HR 1507. The House version would guarantee that all federal employees could get jury trials when management retaliates against them for whistleblowing. Maybe then it won't take two years for the FAA to implement a Converging Runway Display Aid to address the issue Adams raised.
The Idaho Supreme Court gave an aviation safety whistleblower good news on July 7. In Van v. Portneuf Medical Center, the Court remanded Mark Van’s case back to an Idaho trial court to consider his claim of wrongful termination. The Idaho Supreme Court held that the district court judge erred in granting summary judgment to a hospital on the whistleblower part of the lawsuit.
Mark Van had worked as the Portneuf Medical Center since 1986 in helicopter maintenance. After a 2001 crash, Van became more concerned about complying with state and federal safety standards. The National Transportation Safety Board determined that the 2001 crash was a result of pilot error, and Van raised concerns about pilots working more hours than allowed. He also raised concerns about loopholes in a maintenance contract with a helicopter vendor. In 2005, the medical center fired Van, citing his, “his inability to maintain positive interpersonal relations with his colleagues and to foster a positive team environment.”
The Idaho Supreme Court made clear that the state’s Whistleblower Act, I.C. § 6-2105(4), protects employees for raising protected concerns reguardless of whether or how an employer addresses the substantive violation. Slip opinion, page 7. The Court also held, however, that raising a concern about a possible future waste of funds is not protected under Idaho law. The Court also affirmed dismissals of Van’s claims for breach of contract and breach of the covenant of good faith and fair dealing, Finally, the Court upheld a decision denying Van discovery of the vendor’s proposed contract as Van’s concern about that contract was not protected.
It will be interesting to follow what the medical center says about why it thought Van could not maintain a positive interpersonal relationship with the other staff. Could it be that it was because Van was blowing the whistle on their failure to put safety first? It would be good for courts to recognize that an employer claim that a whistleblower cannot get along with others reflects a stereotype of whistleblowers and is direct evidence of animus against their protected activity.
Other aviation whistleblowers may want to consider filing complaints with the U.S. Department of Labor under the AIR 21 law. The time limit to file written complaints with OSHA is 90 days.