A letter to Tony Ferrante (AOV-1)

A PDF of the following letter was attached to a recent email, sent to Mr. Ferrante, who has been one of FAA’s top safety officials for well over a decade. The text here includes gold endnotes and green-box links to webpages…

January 21, 2013

Dear Mr. Ferrante:

I would appreciate your professional assistance to ensure appropriate FAA action to resolve a safety failure at the FAA tower in Camarillo, CA (KCMA).[1] This concerns a documented ATC operational error (OE) that occurred on 7/25/10.Œ This error had three ATC witnesses, including a supervisor (FLM) who failed to act with the required report. Perhaps the larger problem is that this safety failure has gone unresolved due to an ongoing series of deficient investigative activities by FAA management, at both the District and Service Area levels.[2] This matter was even shared with Mr. Foushee,Ž but I suspect he just reflexively passed it off (which clearly was not the best move, considering the purpose of Audit & Evaluation).

It is likely that you first became aware of this 7/25/10 KCMA OE via an 8/2/11 memo from Dianne Bebble, your subordinate at AOV-100. The subject of Ms. Bebble’s memo was ‘Report of Investigation: FAA Employee Complaint, Camarillo ATCT’. The memo’s five pages included a chronology of the OE and subsequent ‘investigations’; notes of the four interviews; a partial transcript from the ATC recordings;[3] and a list of facts gleaned from an ATC tape and interviews of the KCMA personnel. The production of this 5-page memo required a visit by ATSI Mark McClure, who flew down from AOV-210 in Renton, WA, to perform the investigation. Mr. McClure heard the tapes,[4] which were thoroughly consistent with the detailed account of a same-runway error, as provided by Ground Controller Mike Marcotte.[5] Oddly, the two other witnesses (both of whom had a vested interest to deny any safety incident) had no memory; i.e., both the Local Controller (Mr. One’ Nielsen, who has since been promoted to be a supervisor) and the FLM in the tower (Mr. Pruitt, who has since promoted to a busier tower) had no information to contribute to Mr. McClure’s investigation. Based on these interviews, Mr. McClure declared the investigation was ‘inconclusive’.

Please note, an ATSAP report WAS FILED by the Local Controller (Mr. Nielsen), but the facts within this critical record were not used (as they clearly should have been) to refresh the memories of Mr. Nielsen and Mr. Pruitt, and thus enable the conclusive analysis that ATSI McClure failed to produce (on his first try).

I trust that you agree, this is not acceptable performance by FAA. I also assume that you were not aware of many of these details when they were reported (or not?) to you in August 2011. Frankly, in an organization as large as FAA, it is quite conceivable that information often gets filtered and/or concealed and/or misdirected. Thankfully, consistent with our Safety Culture, we can easily and quickly remedy these failures.

Some online research shows that you are aware of the Peter Nesbitt whistleblower retaliation case. Mr. Nesbitt responsibly spoke up about serious safety failures at Memphis, TN (KMEM), including events where commercial pilots going around during intersecting runway operations had reported passing under other commercial flights with as little as 100’ vertical separation. You sent a 4/2/07 memo to Bruce Johnson‘ identifying this unsafe ATO noncompliance. Part of your memo stated: “…this ongoing lack of compliance with FAA regulations, despite the advice from ATO’s Safety Services, is unacceptable and requires your immediate attention to ensure compliance with the safety standards in FAA Order 7110.65.”

For the record, the issues at KMEM centered on unsafe operations’ on intersecting runways which management was failing to report, while the unreported 7/25/10 OE at KCMA centered on unsafe operations on the same runway. There is not a lot of difference between these two air traffic safety failures. Both represent clear noncompliances with safety standards. Both represent events that, had just one more link in the chain been broken, they would have produced real fatalities when FAA employees failed.

You are likely also aware that NTSB has included Improve General Aviation Safety“ on their top-ten most-wanted list. This is largely due to the much higher accident/fatality rate for GA vs. commercial aviation. Indeed, thus far in 2013, we have already seen fifteen fatal GA accidents” with at least 30 fatalities. At this rate, and consistent with past FAA safety oversight (which many believe is failing its potential to serve), we can expect roughly 500 aviation fatalities by the end of this calendar year. This is not acceptable.

When our organization fails to identify controller errors, and thus fails to adopt better and safer practices, we not only put pilots at risk; we also diminish public confidence AND we demoralize our best senior controllers, while destroying the potential of our new controllers.

Mr. Ferrante, I suggest our FAA needs to be more assertive in preventing GA accidents. A good place to start would be to ensure that all GA operational errors, such as the concealed KCMA OE of 7/25/10, are fully investigated. Give those two supervisors amnesty if you must, but get them to tell the whole truth. It seems reasonable to expect that, if we promptly conducted an assertive investigation and subsequent report of findings to hundreds of FAA and contract towers, it would reinforce the importance of maintaining same-runway separation. It would also reinforce the importance of timely and open communications related to systemic safety failures. And, it might just prevent a real accident.

So, would you please ensure this is done without any further delay? It would be so easy to resolve the ‘inconclusive’ status of the KCMA investigation by simply having one accountable official (such as you) actually read the ATSAP report and report its content.

Thank you for your service, and please let me know if there is anything I can do to assist.

Jeff Lewis
Former FAA ATCS/whistleblower

 


[1] It is my understanding that you are the Director of the Air Traffic Safety Oversight Service, AOV-1; further, that you report to Peggy Gilligan, who is the Associate Administrator for Aviation Safety (AVS). Please advise if any of this is incorrect and/or if there is another, more appropriate FAA official for this letter. I also understand you are a key FAA official behind the ATSAP MOU signed with NATCA.

[2] It is notable that there was no Local investigation. Two investigations were done belatedly at the District Level. First, in late September 2010, when Rolan Morel reviewed the tapes prior to their release under FOIA, and concluded there was no OE (though he never interviewed anyone, and his transcript erroneously added the word ‘turning’ to the taxiing arrival – you need to listen to the audio). And, second, in March 2011, when Jeff Cunnyngham did a phone interview of the Local Controller. A Western Service Area investigation was conducted in mid-June 2011; AOV-210’s Mark McClure flew down from Renton, WA, and conducted all three needed interviews for the ROI – a full eleven months after the safety failure had occurred.

[3] The key transmission was the ‘cancel takeoff clearance’‘ issued by Local Controller One’ Nielsen, when he recognized the arrival Cessna was still on the runway and being overtaken by the Cub departure on takeoff roll behind the Cessna. This clearly violates 7110.65 para. 3-9-6a and para. 3-9-6b.

[4] It is a measure of the lack of ATO cooperation that Mr. McClure had to obtain these tapes from the whistleblower, as they were not provided by local ATO management.

[5] Be sure to look at the details Mr. Marcotte provided at pgs.4-5. Thus far, the word of a credible and experienced controller has been completely ignored.

How about a ‘Whistleblower-Amnesty Act’?

There is a major opportunity in the Lance Armstrong story, with ramifications for all Whistleblowers, past and future, including those in the FAA.

A current NYTimes news story says wealthy supporters of the Livestrong charity he started have been trying to persuade Lance to come clean: to clear his conscience.

Here’s the good and the bad on Lance Armstrong’s history:

The Good: he won seven Tour de France’s. He became an outstanding advocate for those impacted by cancer. He inspired; he was heroic.

The Bad: Lance Armstrong screwed up. He doped, and then he covered it up. His failure tarnished his image and diminished his cause.

This story would not even exist, if not for the few Whistleblowers who bravely spoke the truth. Now, others are encouraging Lance to become the final – and biggest – Whistleblower in his own case.

So, where is the opportunity?

Well, frankly, this guy should be a hero for what he did and does. After coming clean, he will forever be a tarnished hero, but an earnest confession might be as powerful as his past triumphs (and perhaps far more meaningful?), if it helps deter others from making the same mistakes. Plus, his confession would set an example; it would show true leadership toward cleaning up the performance-doping problem that afflicts all sports.

But that is only half of the opportunity. There is also a great opportunity here for political leaders – as in Congress – to help clean up the whistleblower messes that happen within many corrupted federal agencies, such as the FAA.

Imagine this:

What if Congress passed legislation that directed federal agencies to give full amnesty to those federal managers who were aware of (and even possibly aided) retaliation against a Whistleblower?

How might this improve the FAA?

If, under the terms of this new law, a single FAA manager came clean with the information they had felt compelled to conceal, he or she would receive nothing more than a ‘thank you’. Meanwhile, the information would enable FAA to ferret out the few FAA managers doing the real dirty business. Which, of course, would be the other half of the new law: FAA leaders would be directed to fully investigate and discipline the key agency wrongdoers.

Four examples…

(1) Let’s say a safety inspector in Texas acts to compel American or Southwest to comply with required repairs for a problem like cracked fuselages, but she finds an FAA manager is undermining her work while taking care of his ‘airline customers’. The safety problem was very serious, but due to the manager’s years of intervention, the repairs are still not done. In this case, no accidents have happened related to the failure. So, in the spirit of ‘No Harm, No Foul’, if that FAA manager (or any other employees with knowledge) came forward and admitted he felt pressured by perceived policies to aid the delay by his ‘customer’, why not grant him full amnesty?

(2) Let’s say an air traffic controller was a witness to an error where two aircraft almost hit on the runway. As a true adherent to the principles of a Safety Culture, she promptly reports the facts to her management. She is shocked when they knowingly DO NOT investigate, and she watches them create no records. She recognizes the error could easily happen again, and with fatalities, so she shares her concern elsewhere. As in the previous example, given that they did not actually collide, let’s consider this another ‘No Harm, No Foul’ situation. There would be considerable value in cleaning this one up, as it would further confirm FAA’s commitment to safety (building the ‘Safety Culture), while also reducing the odds of a repeat with a more serious outcome. So, why not grant full amnesty to her supervisor and/or manager, when they come clean and confirm they failed under the pressure of perceived policies?

(3) Another air traffic controller knows that his brief failure while working alone at the end of his overnight shift contributed to a horrific accident with dozens of fatalities. He knows he was inattentive for just one minute – perhaps distracted by a movie on his laptop computer, or maybe a good book, or maybe he was just tired and shut his eyes – and thus failed to look out the tower window and make the one critically-timed transmission that would have averted this disaster. For that one minute, he failed to do his job. He feels horrible and scared, and is ready to openly share everything when the investigators arrive, but the union officials pressure him, so he speaks only through the union. Nobody is accountable while both the union and the agency do deep damage control, concealing all details so as to diminish liabilities. The result is a secondary tragedy: this controller now has to live with the sole awareness of his failure, which he knows has been improperly concealed. Much as Lance Armstrong is burdened with the extraordinary weight of his ‘secrets’, which have since been almost entirely revealed. So, if this controller could be granted full amnesty to come clean – to tell all that he knows, and reveal that which was creatively concealed during the major NTSB investigation – what good might come of it? Clearly, the controller would be healthier; the FAA would become less corrupt and more respectable (which would greatly improve employee morale); and, the FAA mission to protect safety would be furthered. FAA would be moving strongly toward a true Safety Culture.

Note that in most cases, FAA’s corruption is more in the overall culture than in the individual. So, even in a failure as serious as this, it would be hugely beneficial to safety if we took disciplinary action only against those individuals who clearly and knowingly operated in a manner solely accountable for the outcome.

(4) An FAA employee with a good record speaks up about a safety issue. She soon receives retaliation: loss of duties, demotion, suspension, maybe she is even fired. She tries to work with her supervisor, her manager, and dozens of other FAA officials, but everyone is afraid to work with her, so the improper retaliation persists. Her Due Process rights are virtually nonexistent. In this case, ‘No Harm, No Foul’ would not apply, as the Whistleblower was damaged. So, why not grant full amnesty to all FAA officials involved except the one manager who is accountable for initiating the retaliation? Then, conduct a full investigation and disciplinary action against that one accountable official. The outcome sets an example for other FAA officials, and will thus help clean up FAA’s deep-rooted corrupt practices.

So, what do you think? Should Congress pass REAL Whistleblower Protection by directing FAA and other federal agencies to grant some amnesties and follow through with the appropriate investigations and disciplinary actions?

I certainly think so. This is decades overdue.

Jeff Lewis
January 2013

Ever heard of Con Air? Yes, they also retaliate against their aviation Whistleblowers.

The record clearly shows that FAA has a bad habit of damaging those controllers, inspectors and other employees who speak up to fix problems. But, to FAA’s credit, here’s evidence that the same corrupt practice is found in other, non-FAA areas of aviation.

JPATS is the Justice Prisoner and Alien Transportation System, also known as ‘Con Air’.
They have a fleet of approximately ten older, noisier Boeing 727’s and MD83’s. A few government entities, such as ICE and the Bureau of Prisons, hire JPATS to fly prisoners and illegal aliens around the country. A 2006 DoJ-OIG Audit states that JPATS has 329 employees and an $87M annual budget. JPATS is a small organization, and they are not regulated by FAA, but they do have a fleet of aircraft, thus they have more than a few aircraft mechanics.
A few years ago, one of the JPATS aircraft maintenance coordinators expressed concerns that requirements in the JPATS general maintenance manual were being violated. He spoke up, just as all brave whistleblowers do, to correct a problem so that mechanical failures would not happen, and passengers would not be killed. Soon after he spoke up, he was removed from his supervisory position and downgraded from a GS-13 to a GS-12 position. The memo demoting him[1] stated in part, that the complainant had placed JPATS in a “…vulnerable position by communicating aircraft maintenance issues to external organizations without first discussing with your immediate supervisor and senior JPATS Management.” Based on this language and other evidence, OSC concluded that there were reasonable grounds to believe that the complainant’s demotion violated the Whistleblower Protection Act. They found this to be a retaliation for a protected disclosure, which is a Prohibited Personnel Practice. When OSC advised JPATS of its conclusion, JPATS agreed to take corrective action. The whistleblower was appointed to another GS-13 position, his duties were restored, and he was reimbursed reasonable attorney fees. In exchange, he withdrew his OSC complaint. That one was fairly and fully settled (which is very different than how FAA tends to handle its whistleblower retaliations).

It is noteworthy that within the settlement agreement, JPATS admitted no liability. This is a standard procedure with FAA, too; when they are caught retaliating against a whistleblower, they ALWAYS just pay their way out of jail, and NEVER admit accountability. If anyone has an example where FAA has admitted whistleblower wrongdoing, please forward the evidence, and it will be eagerly posted on this website.

[link to a U.S.Marshalls Service web article about JPATS]

 ____________________

[1] it is not uncommon for federal managers to say incredibly stupid things in their retaliatory actions. In my FAA case, District Manager Mark DePlasco had to provide ‘Douglas Factors’ to justify firing me. He sent the HR Specialist a first draft that said I had to be fired because I had refused to accept a medical retirement. link The HR Specialist sent it right back to Mark, since she knew that I was medically fully certified (thus not eligible for the alleged retirement) and most importantly, the response as originally drafted would never fly if the case ever saw a fair adjudication. Mark immediately fixed it.

 

A short primer on the NoFEAR Act, and the Annual Report requirement

Congress passed the Notification and Federal Employee Anti-discrimination and Retaliation Act (NoFEAR Act) in 2002. This Act was intended to protect federal employees from retaliation when, while working for the American people, they ‘blew the whistle’ on safety, fraud, and other issues.  Two of the NoFEAR Act requirements (see sec. 101, items #7 and #8) were to make agencies submit annual reports to Congress, and force agencies to cover the cost of a judgment or settlement, with a payment to the Judgment Fund of the U.S. Treasury. It was believed this law would “…enable Congress to improve its oversight over compliance by agencies…” and “…improve accountability with respect to discrimination and whistleblower laws….” In theory, the Annual Reports would provide a metric which could be used by Congress and/or NGO’s to pressure performance improvements and a reduction in whistleblower retaliations.

Although NoFear Act seems simple enough, it is not working (so far) because nobody is effectively using the Annual Reports. It seems the reports are going to Congress, but our elected officials and their staff are too busy with other business. If the Annual Reports are being reviewed by GAP, POGO, and other NGO’s advocating for whistleblower protections … well, same problem; it appears nobody there is doing any analysis either (at least not yet).

Earlier this year, WhistleWatch.org initiated a series of FOIA requests, seeking NoFEAR Annual Report copies for a variety of federal agencies. Some agencies were very cooperative, some were partially cooperative, and some have just blown off the request. Here is a page with links to the 62 NoFEAR Annual Reports received so far.

aiREFORM.com was especially curious to find NoFEAR Act Annual Report data online for the FAA. Well, despite the fact that FAA has roughly 50,000 employees, they are just a component agency within the Department of Transportation (DoT). So, the FAA NoFEAR Annual Report data is ‘batched’ together with data from FHWA, FRA, and a dozen or so other transportation-related agencies. Thus, it is not possible to look at FAA-only data.

DoT/FAA Needs to Improve its NoFEAR Act Performance

A brief analysis of the entire series of DoT NoFEAR Annual Reports revealed some very disturbing trends, including:

  • The number of overall EEO cases in which whistleblower reprisal is alleged has trended upward, and has nearly doubled from 2004 to 2011.
  • The number of Federal Court Cases in which whistleblower reprisal is alleged has likewise recently surged; it averaged 7 per year from 2006-2010, but exploded to 40 cases in 2011.
  • The number of Federal Court Cases in which age discrimination is alleged has also recently surged; it averaged less than 6 per year from 2006-2010, but exploded to 35 cases in 2011.
  • One metric which may be used as an index of accountability, is to track the total number of days of suspension issued. This peaked at 234 suspension-days in 2006, then decayed downward to 85-days (in 2007), 55-days (in 2008), 14-days (in 2009), and 5-days (in 2010). The trend finally reversed in 2011, when 76-days of suspensions were issued.

In summary, complaints have increased, while suspension days have decreased. It appears that agencies are comfortable that nothing bad will happen if their lower managers choose to reprise against whistleblowers or discriminate against older employees.

It is very well known that some older employees, perhaps owing to their experience and maturity, or to a desire to find pride in the latter years of their chosen career, become increasingly inclined to speak up and blow the whistle. It is also known that a retirement-eligible employee is a good target for hostile and disparate treatment, if only because they may retire, should they endure enough retaliation hell.

All of the metrics, as reported in the DoT NoFEAR Annual Reports, indicate that FAA and other DoT agencies are pressuring older employees and whistleblowers through improper management misconduct. This problem is not abating; in fact, it is growing.

Protected: Will FAA Whistleblowers Soon Start to Get the Respect they Deserve?

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