The High Price of Cooperating with FAA Investigations by John Goglia

My fellow mechanics this is a cautionary tale based on a true story that could have happened to almost any of us. The details are intentionally left fuzzy as the case winds itself through the FAA enforcement system. This tale begins more than three years ago when certain hapless mechanics were first questioned by an FAA inspector about maintenance they had performed. As these men were used to a cooperative relationship with their local FSDO, they willingly recounted details of the work that they had done in response to informal – and later formal – questions from FAA inspectors.

Little did they realize that far from using these informal conversations to advance the safety of the air transportation system, these conversations were being gathered as evidence to be used against the mechanics. And so – three years later, yes, three entire years after first learning of these alleged violations – the FAA used the statements made by these mechanics to revoke their certificates. The FAA made out its entire case on the voluntarily provided statements of the mechanics. There was not one other shred of evidence against them.
So – while you might right now be saying, well, I would never do that. My experience is that people used to cooperating with authority figures – be they local cops, the IRS or the FAA – tend to do so, thinking that they’re innocent and innocent people have nothing to hide. Well, the bottom-line is you can be innocent and still be found guilty. And the cost of proving your innocence or that your words were taken out of context is very, very difficult and, of course, incredibly expensive. At the point that you are facing an emergency order of revocation, you have no choice – no realistic choice – but to hire an attorney or just mail in your certificate. While the hearing before the NTSB is an administrative one where you do not have to have an attorney, the reality is that the rules of evidence and the rules of practice are so complex that they require not only an attorney, but one knowledgeable in the federal and NTSB rules.
So, one of the few good things to come out of the Pilot’s Bill of Rights – which faithful readers of this column know applies to mechanics as well as pilots – is that the FAA must now warn mechanics in their letters of investigation that they do not have to respond to the LOI and that failure to respond will not be held against them. But if they do respond, everything they say can and will be used against them.
This warning – coming with the Letter of Investigation – may be enough to give some airmen second thoughts about responding to the FAA. But its warning is not soon enough when inspectors ask questions in the hangar or on the ramp – before an LOI is even sent.
Moral of the Story: If you are not as lucky as these mechanics to have a union willing to pay for top-notch lawyers (who in the end prevailed against the FAA), join PAMA’s Legal Services Plan – you do not have to be a member of PAMA to purchase the legal services plan. For pennies a day, you will have access to attorneys specialized in FAA and NTSB cases, if an inspector ever questions your work. The plan is managed by Yodice Associates, long-time defenders of airmen’s rights.
 And always remember, other than providing the minimum information required by regulation, never respond to an FAA inspector’s question without first getting advice from an experienced attorney. The certificate you save may be your own.

Comments

Great stuff John, I love reading your articles. I too have been guilty of being the helpful obedient mechanic anytime the FAA inspectors show up. I've since learned that the FAA is not always trying to make the system better, they are only there to do a job. That job often times is to find discrepancies in your operation. The FAA inspector even told me during one visit that if he doesn't find SOMETHING, then it looks bad on him and his superiors may question him on it. No matter how minor, he had to find something to put in the report.

A recent co-worker was recently visited by the FAA. They found a calibration label on a tool to be "faded" although it was admittingly readable.

None of these issues were serious enough for an LOI but it was noted nonetheless.

Nowadays I give simple one word answers when possible. I avoid running my mouth. "just the facts Mame"

as a side note, I work in the helicopter EMS industry. We have a separate group of inspectors that watch over the company's certificate. The local FSDO does not have jurisdiction over us.

John, I am a former FAA inspector and retired a couple years back. I read your article and it is very fuzzy with no details. Revocation is a serious offense and something must have happen to start inspectors asking questions. It is also very difficult to prove any revocation case even in falsification cases where to prove a person intentionally have falsified a document. The NTSB judges are very strict of falsification cases and in most cases the FAA will not take a case if they cannot win it. I will admit there are some FAA inspectors I think do go too far and I have worked with a few very few, but they do exist. However most inspectors are just mechanics and have nothing to prove. There nothing that says an inspector must find something on every inspection. I certainly did not find stuff on all of my required inspections. I do want to point out working with your local FSDO inspector and have an professional relationship is always the best policy at least that is how I played it. I did enforcements when a situation required it, but enforcements are always the last thing most inspector want to do. Again not saying there are some inspectors that thrive on enforcements.

I think the Pilot Bill of Rights is a good thing, but having the working relationship with your local FSDO is always the best and preferred method. There are ways of dealing with inspectors that over reach starting with their Front Line Managers.

I would like to know the rest of the story behind this incident three years is a long time and the stale complaint rule must of played into it unless there was something more to it. In cases like this the enforcement us usually lowered to a suspension by the NTSB or dismissed. Again I would like to know the rest of the story.

I trust that everyone knows that there are no informal discussions with the FAA, it is at the discretion of the inspector in what he or she chooses to keep confidential, however, under no circumstances should that preclude or discourage anyone from openly and genuinely discussing any issue of concern that they may have regarding safety or regulatory compliance.

I believe you are embellishing the facts surrounding this case just as Stacheair1 on Wednesday, April 3, 2013 mentioned in his introductory paragraph. having reviewed the transcripts, and the Board’s decision NTSB Order EA-5658 , on the appeal filed by the mechanics, I am left with a slightly different picture of the circumstances surrounding the FAAs decision to pursue the case after almost three years than you describe.

It appears that these gentlemen were accused of intentionally falsifying maintenance records that were related to the accomplishment of an Airworthiness Directive. The presiding judge at the hearing clearly recounted the facts in this matter and the evidence. The transcripts revealed that the mechanics did not testify on their own behalf. You, yourself took the stand on behalf of the mechanics as their hired expert witness.

Furthermore, it is implied that these mechanics were somehow entrapped into providing information, a review of the Judge's summation and transcript reveals that the FAA Inspectors first inspected the aircraft and then interviewed the mechanics only after the mechanics were advised that there was an investigation into their work, on two separate occasions. Having responded to LOIs myself, the LOI has always stated that you MAY, not must, respond within a certain time frame and it appears the mechanics in this case requested a meeting with the FAA office manager as their response to the LOI.

Again the circumstances surrounding this incident are unfortunate, however if you go to the NTSB’s web site http://www.ntsb.gov/legal/o_n_o/query.aspx and type in the underlined block “Order Number:” the following order 5658 (click on the hyperlink) you can read the Judge's summation of the facts and the Boards decision in this matter. From what I gather the board ruled against the FAA for no other reason than the length of time it took to bring the emergency order of revocation to bear. The material facts in this case were never in question.

Now that I have read the entire enforcement file thanks to Bystander13 for providing it the rest of the story. Like the two inspectors for the Certificate Management Office (CMO) for the airline and not the Flight Standard District Office (FSDO) I have been in the same situation these two inspector found themselves. Often times the FAA inspector will not find a false entry until a year or more later when they are reviewing aircraft records. This is why I brought up the stale complaint rule, I knew there was more to this story.

In this case the FAA did prove why the process did take three years to file and that is acceptable under the rules. What these mechanics did is flat wrong and this time they were caught, but one has to think how many other times did they do this same thing and not get caught. It has been my experience if they do it once they have or will do it again.

The part that really disturbers me most is why everyone attacks the FAA inspectors for catching this criminal act. I have been on the witness stand many times and been attacked by the defense lawyers like I did something wrong. I was made out as being aggressive, mean, out to get someone, and/or being a loose cannon. Of course the lawyers always want to make the FAA inspector look as bad as possible and for not following FAA procedures. I think this is the wrong message to send when a person gets caught to try and make the FAA look as bad as possible.

As pointed out by Bystander13 there are no informal discussions with the FAA, however if a mechanic or pilot has done nothing wrong what do they have to hide. I always made it a point to go and talk openly with mechanics to gain their trust because it’s a two way street. The FAA inspector is there to keep mechanics out of trouble not to burn them at least I was and many I know are the same way. But if a mechanic intentionally breaks a rule like these two mechanics did I think they should get their tax dollars’ worth. What these mechanic’s did was wrong, it cause an unsafe condition, and they intentionally made a false entry knowing it was wrong not caring if the plane crashed…

I for one congratulate the FAA inspectors in this case for sticking with it I know the pressure they were under. The FAA did the right thing in this case, but no one wants to hear that.

Lastly I to want everyone to go and read the entire NTSB file about the circumstances surrounding this incident are unfortunate. Here is how Bystander13 got me there “go to the NTSB’s web site http://www.ntsb.gov/legal/o_n_o/query.aspx and type in the underlined block “Order Number:” the following order 5658 (click on the hyperlink) you can read the Judge's summation of the facts and the Boards decision in this matter. From what I gather the board ruled against the FAA for no other reason than the length of time it took to bring the emergency order of revocation to bear. The material facts in this case were never in question.”

Two words; literary license. John's job is to write aviation articles that evoke conversations amongst the readers and he does it well. This particular article has generated more than the normal amount of debate. Although a few have taken a swing at it, I think we've missed the bigger picture!

From my perspective, either as an aviation technician or as a cop, I have always relied on the idioms that honesty is the best policy and cheaters never win! It's how I was raised. But when society rewards lying and cheating, and punishes whistleblowers, how honest are we being about our own morals and values? These are among the best known sayings of all times, but reality shows us that today's society's respect for these principles is betrayed by the fact that, all too often, it is the liars and cheaters we reward.

Examples are Mark Maguire, Roger Clemons and A-Rod in baseball; PEDs in the NFL in numerous cases; and arguably the most notable case in Lance Armstrong. Look at WikiLeaks or the Abu Grab fiascos. In both cases, those who spoke on behalf of the "offenders" were ridiculed, threatened and/or fired yet time proved their defenses right!

If the value of a policy can be measured by the extent we, society, tend to reward compliance and penalize non-compliance, then the premise that honesty is the best policy is itself disingenuous. Instead, it is not so much a question of right or wrong, honesty or cheating, as it is a question of whether people hear what they want to hear and see what they want to see. In a tangible sense, it can be more rewarding to give ourselves a false sense of well-being or pander to our preconceived notions than it is to be honest and potentially cause ourselves doubt or disappointment.

In his farewell address, President George Washington said: "I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy." Maybe again some day George but not today! As a society, we should not complain about dishonesty and cheating when we keep rewarding vices as if they were virtues.

Oh, yeah, P.S.
Remember... what goes around, comes around!

This discussion thread clearly illustrates the enforcement mentality embedded in the FAA’s culture. As an aircraft MX professional, I would have read the work card and immediately asked myself if there were a way to accomplish the intent of the work card (find any cracks in the specified location that were discoverable with the specified technique) without the performing the step of the work card that directed the invasive action of removing “the yellow electric pump and yellow power accumulator”. Perhaps a Borescope or some other commonly used hi-performance tool would more effectively accomplish the intent of the work card (and the AD). I would compare this situation to a hypothetical one where a surgeon gets an order to cut open a patient’s chest and place a stent in a coronary artery with the surgeon realizing it is less invasive, and thereby less risky, to place the stent using "angioplasty" (look it up).

In the case of the mechanics on the floor, “Work Cards” typically provide no option to state use of a superior alternate procedure, just a place to stamp that the specified task was performed. This discussion thread and the NTSB Order are completely absent sufficient detail to make any judgments such as “Bystander13” and “Stacheair1” made, but unfortunately this apparently is the current culture at the FAA.

The issue of “Falsification of Records” is a slippery slope and one that can wedge MX professionals between the moral imperative of "safety first" and an individual FAA inspector’s interpretation of regulations.

Sorry AvSafePro but I'm not buying your Frank Sinatra approach to perform maintenance doing it "My Way". This shows more of your culture than that of the FAA's and your way is cleary NOT the right way, here's why!

Becoming a surgeon is a lengthy process generally requiring four years of undergraduate school, four years of medical school and 3-10 years of residency and fellowship training. Surgeons also continue the education process throughout their careers in order to maintain licensure and stay informed of medical advances. Do you really think this allegory is a fair and equitable comparison of the two professions?

For discussion's sake, let's say that you have a bachelor's degree, you've graduated from an accredited aviation mx program as well and you have an equal amount of field mx experience in years. With all due respect sir, what gives you the right [substitute unmittigated gaul] to think that you have the authority to perform mx contrary to published procedures? If you worked for me you'd be out the door faster than vasolined buttocks could slide down a polished bannister! Your position is exactly why the FAA has the "enforcement mentality" you espouse.

Your JOB, Mr Aircraft Maintenance Professional, is to perform the tasks assigned to you IAW FAA Regulations and manufacturer's published procedures NOT the AvSafePro method of compliance. IF, during those tasks, you notice a better, easier, more effective or cheaper way to accomplish the same task to the same level as intended you MAY submit an AMOC - Alternate Method of Compliance to the FAA. If the FAA, or issuing authority, agree to your methods and approve them, then - and ONLY then- can you play Frank Sinatra. That, sir, is the right way...

P.S.
Please note the obvious ommission of the safety and liability issues purposely not discussed here.

Bob.Pasch's input is correct in a world where the tech writers who write the maintenance data are accurate in their work.

In the real world this is not the case in many, many work tasks. Bob is correct in that the technician does not have the authority to deviate from bad data. The manufacturer's engineering team or a DAR/DER do have the authority to approve alternate data. When you find "bad data", a technician has several choices.

1. Comply with bad data with bad or ineffective results and approve for return to service.

2. Perform the maintenance in a known proven manner that does not follow the bad data and approve for return to service referencing the bad data which means falsification.

3. Perform the maintenance in a known proven manner that does not follow the bad data and approve for return to service referencing the bad data along with the changes to the bad data. Legal but you better be right.

4. Submit corrected data with supporting information for approval by the manufacturer's engineering team or a DAR/DER and approve the task for return to service per the alternate approved data. Downside of doing it right is time and money.

Question for everyone. When performing a task card as a part of an inspection package and the card instructions say to close all panels and access, yet they need to stay open for other cards, how do you sign off the card? Do you note that the close up portion of the task was not performed and make a discrepancy to track that the area gets closed properly then note that discrepancy on the task card?

Good enough is the enemy of excellence and the friend of "Git-er-done".

Best of luck out there.

John,
Once again another excellent article - thank you, and keep up the great writing.
Susan

Although this case is not new to some, it is a great reminder of a sad situation. In the end, I think it a stinking shame that A&Ps (and pilots) are put through this by the FAA. In actual practice, the A&Ps are getting a Miranda Warning and they should pay close attention. Criminals still get a better deal because statements made before the Miranda Warning is issued are usually excluded from evidence. Not, repeat NOT so with the FAA. Be careful and have a lawyer at the ready. What a great way to begin 2014!

A major part of the FAA Inspector's role is to guide and to educate. Most do that just fine. The few who let the power go to their heads are a sorry lot indeed.