Even though you have not been convicted of anything the TSA will have you suspended and terminated from your job.
Obviously, if the employee did not reveal the matter to his employer, most likely, he would still have his job. A diversion is an otherwise private matter although it is of record in the court. The probation department could however, have a reason to contact your employer.
Keep this in mind. Never discuss security matters or your thoughts on them while on the job. Any adverse comment could be construed by a fellow employee as some sort of security threat and report you to the TSA. That's how easy it would be to get you into trouble and terminated! In other words as many have said
. . . keep your mouth shut!
The short process
If you are targeted by the TSA they will send you and the FAA a letter stating that you are considered to be a security threat. They don't tell you anything else in the letter much less provide you with evidence supporting their determination.
When you receive the notice you have 15 days to respond and ask for any information that they can release. They then have 30 days to respond to your request and will usually say it is classified and therefore not releasable.
You then have 15 more days to formally provide some sort of a response and try to get yourself off the hook. The TSA will review your response and most likely determine that you're still a threat. There is no further formal method to challenge this decision. You're stuck!
Granted security is a paramount consideration in view of Sept. 11, but even the FAA provides an avenue when it takes what is called emergency action and suspends or revokes your certificates on an immediate basis because of a perceived threat to safety. It allows an appeal to determine if in fact an emergency exists at all. It seems to me that the TSA could afford the same type of appeal process.
The general objections - Due process
From a legal standpoint, what most are concerned about is due process. What this means, among other things, is that you should have an opportunity to present your case to an independent body before any determination of threat is made. You should be afforded an opportunity to argue against any action before you lose your job and/or certificates.
Added to this feature is the notion that you should also of course have access to the evidence they have against you that supports the TSA position that you are a threat. They usually will not want to provide information to you because they will describe it as classified and secret stuff. Hogwash! How can you be expected to reply to any charge without knowing what it is based on?
In addition, a formal procedure should be available to challenge any TSA finding. A proceeding, not unlike the NTSB appeal process, as noted, should be added to the law. If a process is provided for the most minor violation of the FAR, it certainly can and should be provided for a charge that strips you of your right to earn a living, demeans you before your peers, and deprives you of a means to provide for your family.
So, don't beat your wife (it's a felony), get caught in a serious DUI, rob a bank, etc. Basically, all the crimes listed in the 10-year background check statute, are grounds for TSA action. Be careful about what you say on the job, and don't ever talk about security risks or make any bizarre security statements in public. It could cost you or your buddy a job and maybe your certificates. If you have any contact with TSA or have had punitive action taken against you please forward your story to this writer at firstname.lastname@example.org. By getting the word out to the field maybe we can get this law changed for the better!
Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He can be reached at email@example.com.
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