Tickets, tickets, you'll get tickets

Oct. 1, 1998

Tickets, Tickets, You'll Get Tickets

WPA Program For Lawyers?

By Stephen Prentice

October 1998

Steve Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant license and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran.

Those who remember the "New Deal" of the Roosevelt administration will recall the "WPA," which stood for Works Progress Administration. It was a "make work" program that was put into place to get people off the streets during the Depression and back on the job. The jobs were menial, usually involving street and building construction and repairs. It served its purpose well until the advent of WWII and then everybody went to work.

The FAA has recently published a paper detailing how they are going to authorize inspectors to hand out tickets (Proposed FAA form 2150-7) to airmen in the field for violations of the FARs that they detect — something like traffic tickets. Although the emphasis seems to be on pilots and aircraft operations, it is clear that the tickets can be used against any certificated airman or company. They will even look like traffic tickets; your copy will be pink. The published rationale for this is an effort to reduce enforcement administration and paperwork. They say the basic idea is to increase surveillance. Quite the contrary, this is typical bureaucratic nonsense at its worst. It definitely will not reduce paperwork and in fact, will increase the burden on our overworked inspectors who already have too much to do! And, oh, by the way, it will provide a guaranteed works progress program for lawyers. Let's take a look...

The FAA published Bulletin 98-1 on February 10, 1998, and it described the proposed ticket program. The concept has since been kicked around here and there and the Administrator spoke of it at Oshkosh. However, it has been roundly criticized on all fronts. Most of the general aviation and corporate aviation groups are vigorously against it, and for good reason. It is only a beginning! We know it can only get bigger.

The bulletin describes the program and how it will work, although it leaves a lot to the imagination as is usually the case with FAA statements. The airman concerned, whether he is the technician, pilot, or other certificated person, or representative of a company, is told to sign a ticket that describes the violation of various FARs. At this point, he can sign it and essentially admit the offense, or not sign and walk away. If the inspector wishes to take the matter further, he can in the traditional way. Or, on the other hand, he can simply do nothing.

If the inspector decides to file an enforcement letter with the Region, the FAA can pursue a certificate action or fine. But, this route obviously allows you to argue about it at an informal hearing, or later before the law judge and present your side of the case.

You can't get a hearing if you sign the ticket and admit the offense. In other words, you can refuse the ticket and let the chips fall where they may. You can still get a hearing on any issue and I can assure you that most will opt for the appeal proceeding if the inspector decides to make a big deal out of the alleged violation. The alternative is to give in to the allegation made by the inspector that you have violated some FAR. He will ask you to admit the offense, sign the ticket, and await your "sentence," which is in essence, having the ticket in your file. If you get a second one, things get tougher. You have a "prior." Of course, they say if your attitude is "compliant," and you are a good boy, the ticket will simply be placed in your file and expunged after two years. Right! You would have to be a fool to agree that you have violated anything without seeking further advice. AOPA and some other organizations already provide counseling and lawyers if necessary, to defend against any alleged violations. The whole enforcement system will come crashing down under the burden of many appeals. You can bet changes will be made.

Some general aviation people have even claimed that this is a well intentioned program, but lacks specifics. Believe it or not, I find it difficult to believe that anyone could support such a system.

The vast majority of people looking at this proposed program consider it unnecessary and a further burden on inspectors. Also, it will absolutely destroy the long-standing, good relationship between most inspectors and airmen in the field. No one needs to be told about their relationship with traffic cops on the street!

A key point in the proposal is for the inspector to note on the ticket whether or not the airmen has a "compliant attitude." This feature, which apparently will have something to do with sanction if any, down the road, is an item that can be held over your head and lead to a very abusive situation. Where the emphasis is less about gathering evidence of a violation of the FAR and more about your so-called "compliant attitude," there is clearly a problem! Any suggestion that this proposed program can be fixed or "softened up" is a mistake and can only lead to a bad program getting worse.

We are all familiar with our own various judicial systems, and needless to say, we have all appeared in Traffic Court at one time or another. The problem with the proposed FAA plan is that there is no further recourse for you if you sign the ticket. What the FAA will create if this ticket thing goes through, is a windfall of work for all the lawyers who practice before the NTSB, including myself! I can assure you that none of my clients will ever sign a ticket. They will all demand a hearing in the traditional fashion. Rather than streamlining the enforcement process, it will bring it to a halt!

This is where the FAA is betting wrong with this proposal. They seem to think that the poor sap in the field will simply roll over and say "I'm sorry" and take his ticket. It ain't gonna happen. The airman will have nothing to gain by admitting an offense. If the case is trivial and has little to support it, the inspector will most likely walk away from it. If it is serious you have no business admitting it anyhow.

I see inspectors roaming around the flight line or the maintenance shops, with their "quota" for the day in mind. And, don't try to tell me there won't be quotas. I know better. The street cops have them although they never admit it. So will the FAA people. What better way to keep tabs on the inspectors and make sure they are out there doing their job? As if the inspectors don't have enough to do right now! They will be asked to turn in ten tickets a week to justify their jobs — I don't think so — it won't work.

It does not take a rocket scientist to figure out that this will only be the start. I can envision a broader enforcement system that will only argue for more staff. The inspectors out there at the moment have more to do than they can handle. They are already overworked. What to do? Simple. Hire more cops to give out the tickets! A great idea to increase staff for what appears to be a good reason.

Technicians have to be careful about their "record." You can be sure that employers will have access to the ticket record at the FAA. If a person has too many tickets, one can only wonder about the employment outcome. Your record could be affected forever. You have been subjected to what is called administrative enforcement action by way of the ticket.

More importantly, just think about the insurance companies and their access to your ticket record. You already know what it does to your car insurance rates. Will employment forms have a place for tickets? How about your pilot medical exam? Will it have a question about tickets?

We all know that government programs only get bigger and hire more people. They never get smaller. So what will the future bring? Use your imagination and you are probably right.

If this ticket program gets rolling, you will have to watch for the roaming inspector looking for his quota of tickets to give out. Maintenance facilities will get added surveillance as well as the flight line and pilots. As the rules now stand, an inspector can enter your shop and ask questions about your work and procedures. If the shop is a repair station, surveillance can take place anytime. Are you following your operations specifications? Are your training records accurate and up to date? How about repair orders? Are they available for inspection and how long do you have to keep them available for inspection? Are all your employees properly certificated? It pays to step back and examine your operation with a checklist of items for inspection.

Although it is common that most local inspectors are easy to recognize and are usually known by the people they deal with, you still must be wary of strangers who ask too many questions. If the ticket program gets going, you may see more ramp and shop surveillance in order to make the "quota."

Remember, there is no advising you of your legal rights when you speak to a stranger who happens to be a FAA inspector. He does not have to tell you that he is gathering evidence to nail you. However, if you do know that it is an inspector your are talking with, all you have to do is keep your mouth shut until you talk to your counselor. You can, with courtesy, tell the inspector you will get back to him for a statement after you see your lawyer. Keep in mind, that anything you say to the inspector can be used against you. Even a simple conversation can result in a violation!

An interesting aside will be the effect of filing an NASA safety reporting form after being cited by the proposed ticket system. Will filing the form make a difference?

For example, if cited more than two or three times in a twelve month period, will having filed a safety report after each ticket prevent sanctions if certificate or civil penalty action results from the tickets? Keep in mind also that if you refuse to sign the ticket, you can file a safety report and perhaps avoid a later sanction.

A system already exists to do exactly the same thing that this proposed ticket system is designed to do. Yes, inspectors can issue citations using letters of correction, investigative inquiries, and warning notices under current procedures. Indeed, the common condition notice can be used in the same way. (FSAW 93-49 deals with the subject).

FAA does not need a ticket system. Tell them!