Good morning! Thank you, Dr. Yoak, for that very kind introduction and thank you, to the APPE board, and members for inviting me. What a pleasure to be here for the 25th Anniversary of the Association for Practical and Professional Ethics. It is a true honor to be with professionals from all 50 states and around the world who work to advance the practice, study, and teaching of ethics. It is an honor but quite nerve-wracking as well. There is nothing more intimidating than speaking before a large group ethicists, except perhaps speaking before a large group of ethicists who count among their number my own former professor, Dr. Elizabeth Heitman. It was about 25 years ago when I had the privilege of being a student in Dr. Heitman’s medical ethics class at Rice University. Thank you, Dr. Heitman, for giving me examples of ethics cases to consider before I experienced my own dilemmas, thank you for giving me a chance to experience how people in situations different from my own are treated, and thank you for teaching me early on about how to define my own personal and professional values clearly and strongly, so that I can confidently employ them every day to make decisions. That was a gift Dr. Heitman gave me and I have a feeling that each of you in the audience are sharing that gift to those with whom you work and teach.
Today I hope I can give you a glimpse into how what you do affects the work that I and my colleagues do every day at the National Transportation Safety Board. The title of my talk is “The Everyday Ethics of Disaster: Before, During, and After Transportation Accidents at the NTSB.” The concepts of Before, During, and After an accident are somewhat arbitrary delineations since we are always in between accidents, before or after, but I thought it might be a useful way to organize my thinking about the ways in which we use ethics at the NTSB.
In the BEFORE component, I will give you an overview of the NTSB, what we do, our values, our mission, and if you will indulge me, I would like to explain how I, a public health scientist, ended up at the National Transportation Safety Board.
Responding to and investigating transportation accidents, the DURING part, is how our agency often is defined by others and also by ourselves. Accidents are tragic, dramatic and memorable, and during the long hectic and exhausting days at the scene of an accident, the situations test how well we have prepared ourselves, both technically and ethically, to do our jobs.
And finally, although the NTSB is most often seen publicly DURING an accident, with our dark blue jackets with the large yellow NTSB letters emblazoned on the backs, because that is when the news media is there, it is actually AFTER an accident when most of our work takes place, careful work in matters of engineering, human factors, medical issues, legal issues, family assistance, weather conditions, data recorders, and other areas specific to each accident. AFTER an accident also is when the 5 Board Members of the NTSB meet in a public or sunshine meeting and when we determine the Safety Recommendations that will be made to help prevent future accidents.
So let’s start with the Before phase. The NTSB originated in the Air Commerce Act of 1926, in which Congress charged the Commerce Department with investigating the causes of aircraft accidents. Later, that responsibility was given to the Civil Aeronautics Board's Bureau of Aviation Safety, when it was created in 1940.
In 1967, Congress consolidated all transportation agencies into a new U.S. Department of Transportation (DOT) and established the NTSB as an independent agency placed within the DOT. Since 1967, the NTSB has investigated accidents in the aviation, highway, marine, pipeline, and railroad modes, as well as accidents related to the transportation of hazardous materials.
Then, in 1974, Congress reestablished the NTSB as a completely separate and independent entity, outside the DOT, reasoning that "...No federal agency can properly perform such (investigatory) functions unless it is totally separate and independent from any other ... agency of the United States." The NTSB, unlike the USDOT has no authority to regulate, fund, or be directly involved in the operation of any mode of transportation, so we can conduct investigations and make recommendations from a truly independent and objective viewpoint.
In 1996, Congress assigned the NTSB the additional responsibility of coordinating assistance to families of accident victims. How and why the Family Assistance Act was passed and some of the rather shocking things that led to it will, I think, be of interest to you and I will explain further in the AFTER part of my remarks.
At the NTSB, we are on call 24 hours a day, 365 days a year, and investigators travel throughout the country and to every corner of the world to investigate significant accidents and develop factual records and safety recommendations with one aim—to ensure that such accidents never happen again. The NTSB's Most Wanted List of Transportation Safety Improvements highlights safety-critical actions every year that should be taken to prevent accidents and save lives.
We are fortunate at the NTSB because Congress mandated our mission to be a noble one – to be an independent agency charged with investigating transportation accidents, determine their probable causes, and make recommendations to prevent their recurrence. Our sole purpose is to save lives and prevent injuries by advancing transportation safety. We do not have regulatory authority and we have no financial incentives to promote our recommendations. As a result, we fiercely protect our values of independence, credibility, and transparency. These are the values which define our agency perhaps because they also are what keep our agency functioning and relevant.
You will often hear us speak of our independence and that is because we are an agency headed by 5 independent Board Members who are appointed by the President and confirmed by the U.S. Senate. We do not report to anyone so we can make recommendations to anyone, such as the US Department of Transportation, state governments, associations, or private companies. Currently there are 4 Members on the Board (one spot is vacant) so each Member is “on call” every 4 weeks in case of a major transportation disaster. We value scientific and investigative rigor because our credibility lies in our reports and recommendations. As for transparency, our work, deliberations, and votes are done in public, televised meetings in compliance with what is known as the Government in the Sunshine Act.
Although Board Members, like myself, are not political in the traditional sense, we never really can forget our party affiliation – by law, NTSB is bipartisan since no more than 3 of the 5 board members can be nominated by the same party – but we never let that get in the way of safety. This philosophy of collegiality for the sake of a good cause is strong among the current NTSB Board Members. We still disagree with each other – and we often do, vehemently, which is one of the great privileges and responsibilities of being independent Board Members of an independent agency. But I feel very lucky to be able to say, after working closely with the other 3 current members that, for these Board Members and certainly for myself, our disagreements are for the sake of keeping the transportation systems safe, not for any political gain or gamesmanship.
When I was nominated to the NTSB, it was a surprise. I was happily working in international road safety for a philanthropy that focused on transportation in developing countries and I was about to go into a meeting on sustainable development at the United Nations when I got the first call from the White House – a call which turned out to be a possibility for a dream job in transportation safety. That first call was just the start of a very long process for the White House nomination and then Senate confirmation, a process with interviews and a very thorough FBI investigation which included everything from visits to my employer in London to my elderly neighbors next door – who insisted the FBI agents come in for coffee! Even though I had been tapped as a potential nominee, I didn’t have high hopes in the beginning because no public health professional had ever been chosen to serve on the NTSB. But even then I felt that many public health values – justice, equality, access – seemed a natural fit with transportation. Perhaps because of my different background, and despite the change in leadership of the Senate, after 7 months, I was confirmed by the Senate and then soon after, appointed Vice Chairman by the President.
The Chairman is generally the spokesperson for the NTSB before Congress, but when he is not available, sometimes, the Vice Chairman fills in. In my first few months at the agency, I testified twice before a Congressional Committee. At one of those Hearings, before members of the Senate, I was asked to testify about Positive Train Control (PTC), which is a system of functional requirements for monitoring and controlling train movements to provide increased safety and which can be implemented using various types of technology. It was a typical Senate Hearing set-up in one of the beautiful ornate hearing rooms in one of the Senate Buildings. As you probably have seen, those of us who are testifying are placed at a long but relatively modest table in front of the Senators on the Committee – in this case, the Senate Commerce Committee – and the Senators look down on us from an imposing raised semicircular dais. Their legislative aides are seated in chairs behind them ready at a moment’s notice to provide documentation or remove the Senator’s name plate if they must hurry on to another meeting to speak or vote, as they often do. So as we are sitting there testifying or answering questions, there is often a flurry of activity behind and in the Senators’ area while, of course, the C-SPAN cameras are trained on us.
It was at this, my first Senate Hearing representing the NTSB, in this rather intimidating setting, that I broke a cardinal rule of Congressional testimony – I volunteered information and answered a question that was not directly addressed to me. This hearing was held, in part, as a result of the crash of the Amtrak train near Philadelphia last May where 8 people died and many more were seriously injured. I had given my testimony and answered the few questions related to the importance of Positive Train Control. The NTSB staff sitting in the audience seemed to breathe a sigh of relief that I survived my questioning unscathed! But when a Senator unsuccessfully asked a representative from another federal agency about why they were forcing the railroads to use this complicated and expensive technology, I could not stay quiet. I indicated that I wished to answer (much to the horror of my NTSB colleagues), I turned on my microphone, and said that when the NTSB made the recommendation and then USDOT passed the requirement 7 years ago, we deliberately gave railroads the freedom to decide what type of PTC they would implement, and that they in turn chose this technology themselves, but then waited until the expiration date 7 years later to say it was too difficult and too expensive. In addition, I also noted that PTC would have very likely prevented the accident last May by detecting the excessive speed, slowing the train and, if needed, automatically applying the brakes before the crash.
I was at that on-scene investigation of the Amtrak crash and I could not forget it. The twisted metal at the accident scene, the destruction of the tracks and train, and the many, many relatives at the family center were my first experience with such a major train accident. I knew that Positive Train Control, which was in place in the parallel track going in the opposite direction but not on this track, where the train lay flung in the dirt, would have prevented all those deaths and injuries. So I felt compelled to speak up at that Senate hearing, even though it was not my “turn,” because we at the NTSB should value providing truthful, lifesaving information more than we fear breaking protocol or even risk the wrath of a Senator.
At the NTSB, we have rules and regulations that govern every aspect of our work. As with all Federal agencies, of course, we get our authority from our statute. The NTSB statute is located at 49 U.S.C. 1101 to 1155. Our statute provides for the Board composition, lays out our investigative authority in each mode of transportation, and provides that the Board is the appellate authority for enforcement actions taken by the FAA Administrator or the US Coast Guard Commandant, among many other things.
Additionally, we have regulations codified at 49 C.F.R. parts 800 to 850 that govern how we implement our accident investigations, investigative hearings, and public forums, among other things. These regulations are approved by the Board after receiving public comment in the Federal Register.
The Board also approves Board Orders. These Board Orders govern how the Board operates. We currently have 22 Board orders. They generally fall into 1 of 4 topic areas: General Management and Administration (for example, how we vote), General Program Policies and Procedures (for example, how we classify safety recommendations), Accident Investigation and Related Programs (for example, go-team launch procedures), and Financial Management and Related Programs (for example, Board member office budgets).
Finally, I must highlight, because this is an ethics group after all, that all of our Board employees, whether they are political appointees or career staff, must follow the Standards of Conduct for the Executive Branch. These standards include items such as:
Public service is a public trust, requiring employees to place loyalty to the Constitution, laws, and ethical principles above private gain.
Employees shall not hold financial interests that conflict with the conscientious performance of duty.
Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest.
An employee shall not, except pursuant to such reasonable exceptions as are provided by regulation, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties.
Employees shall put forth honest effort in the performance of their duties.
Employees shall make no unauthorized commitments or promises of any kind purporting to bind the Government.
Employees shall not use public office for private gain.
Employees shall act impartially and not give preferential treatment to any private organization or individual.
Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.
Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those -- such as Federal, State, or local taxes -- that are imposed by law.
Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards promulgated pursuant to this order.
All NTSB employees also must follow the regulations established by the Office of Government Ethics. In addition, political appointees, like me, must follow additional Executive Orders, such as Executive Order 13490, commonly known as the Obama Pledge, which prohibits political appointees of this Administration from accepting gifts from registered lobbyists or lobbying organizations.
ETHICS TRAINING FOR NTSB EMPLOYEES
The NTSB also takes care to provide ethics advice to all staff to help us make good decisions. David Tochen, here with me today, is our General Counsel, but he also serves as the Designated Agency Ethics Official. David’s office conducts in person mandatory annual ethics training for the entire agency and has a webpage with links to all the different ethics rules that might apply to employees from gift acceptance to outside employment to financial conflicts of interest.
Speaking of financial conflicts of interest, you might be interested to know that in order to work at the NTSB, each potential new hire undergoes an ethics interview. If the ethics staff determines they hold stock or investments in a transportation-related enterprise, for example stock in an airline, that individual must choose to either divest of the stock before coming to work at NTSB or potentially turn down the employment. We want to ensure that our independence from the industries we investigate is unquestionable!
I also am lucky in that my Special Assistant, Shannon Bennett, is an attorney who is well versed in ethics, and in fact, she served as Deputy Ethics Official for the NTSB before joining my office. I hope some of you will have a chance today to talk with David, Shannon, and John Brown who is the Confidential Assistant in my office. They each provide good and different perspectives about the values of our agency and the challenges we face.
Now on to the During-the-Accident-Investigation Phase… Our Response Operations Center (the ROC) is constantly monitoring the news around the clock so we are alerted to accidents of all sizes. When there has been a major accident and we decide to launch a full investigative team, called a Go Team, with a Board Member, the entire agency springs into action. We often launch within hours of learning about an accident so it is pretty fast paced. We gather our Go Bags, which contain safety gear like hard hats, safety goggles, reflective vests, gloves, steel toe boots, and everyone gathers at Hangar 6 at DCA National Airport where we take one of the FAA airplanes, which hold between 8 to 16 people, directly to the accident scene. While in the air, I am briefed so we can be ready to give our first “Plant the Flag” press conference soon after landing so law enforcement, first responders, local officials, and the public know we are on scene and beginning the investigation. At the scene of an accident, the person in charge is the (aptly named) Investigator in Charge or IIC. He or she leads the investigation, organizes the personnel, holds organizational meetings, and briefs me and my Special Assistant so I can speak to families, the press, and politicians as needed. Although it is hectic, there is an established order which helps things run smoothly.
The NTSB has rules about the “ethics” surrounding participation of a party to an NTSB investigation. During an NTSB investigation, our investigator-in-charge will appoint parties to the investigation to assist us in the fact gathering process. We have certain rules by which those parties must play to remain party members. We have many specific rules which include
- Participation as a party to an NTSB investigation is a privilege that confers no rights or benefits
- Parties are named for the purpose of providing technical expertise to the NTSB, not for purpose of preparing for litigation (We always like to say – no lawyers, except our lawyers! )
- Parties participate in fact-finding phase only, not analysis. (But parties are invited to submit proposed findings, probable cause, and recommendations.)
- Parties may not withhold any information pertaining to the accident or in any manner relevant to the investigation, nor may they conduct independent investigative work or hire third parties to conduct investigative work without NTSB knowledge/involvement.
- Parties may not release information about the investigation to the media or anyone outside the investigation without approval of the IIC.Parties that fail to comply with our rules and procedures will be removed from the party process for the investigation.
Most often the ethical area that causes parties problems is dealing with the media. I want to give you 3 recent examples involving the media – a positive example, a negative example, and an example where NTSB intervened to help a party with the media.
In June 2014, the NTSB investigated a Walmart tractor-trailer that crashed into the back of a limousine carrying comedian, Tracy Morgan. Walmart became a party to our investigation because of their technical expertise in motor carriers. This accident, because of the famous person involved and the company that caused the accident, stirred up a great deal of media interest. The media was barraging Walmart with questions about the accident. Walmart, working through our investigator-in-charge, our public affairs office, and our legal counsel, developed a standard response that they issued to inquiries about the accident. They expressed sympathy to those injured and killed in the accident and consistently ended the statements with “We are cooperating fully with the ongoing investigation and working to resolve all of the remaining issues as a result of the accident.” Because of this type of cooperation, the media had accurate information from us, when it was time to give it to them. And when we had the public Board Meeting, we were able to concentrate on making recommendations to improve safety for all vehicles of these types, rather than being distracted by media speculation.
In December 2013, the NTSB investigated a Metro-North train that derailed in the Bronx, New York, when it entered a curve going 82 mph. The train derailed killing four passengers and injuring dozens more. The Association of Commuter Rail Employees (ACRE) was initially designated as a party in order to provide technical information. However, one of ACRE’s senior officials made unauthorized and premature comments about the train engineer at a press conference, stating that the train engineer had not fallen asleep when that fact had not been ascertained yet. The investigator-in-charge removed ACRE as a party three days into the investigation.
In November 2015, the NTSB investigated the sinking of El Faro, a cargo ship, off the coast of the Bahamas during Hurricane Joaquin. Everyone on board died. I was the on-scene Board member for that accident and we flew to Jacksonville, Florida, which was the ship’s point of departure. The company that owned the vessel was designated a party to our investigation. In an effort to comply with NTSB’s party rules, the company was not responding to press inquiries and was being challenged by the press for not answering questions. So in my press conference, I informed the media that once a party joins the NTSB’s investigation, they are not permitted to release documents or talk publically about the investigation without the consent of the NTSB. In addition, I assured the press that all the parties to our investigation were cooperating fully with the NTSB. This reduced some of the incorrect statements from the media and allowed us to continue our investigation.
After an accident is where the bulk of our work takes place. We hold public board meetings usually once or twice a month to hear investigative reports and vote on them. Although we have no regulatory authority, our good reputation has enabled us to make and pursue adoption of recommendations for the benefit of safety. We have issued over 14,000 safety recommendations to more than 2,500 recipients and about 80% have been adopted.
Although we have a good track record of having our recommendations adopted, we do not give up on recommendations that are not achieved quickly. Some take years or even decades to pass, especially if they must pass in all 50 states in the United States. At times, we are criticized, even vilified, for our efforts.
For example, almost every other day for the past few weeks, I have had a media interview with TV stations and a few radio stations from around the country – Minnesota, Tennessee, Kentucky, Pennsylvania, and many others - about our recommendation to all 50 U.S. States and Territories to change the BAC or Blood Alcohol Content law from .08 to .05. We made this recommendation 3 years ago. It is worth noting more than 100 countries around the world already have a .05 BAC law in place, which also means there have been hundreds of peer-reviewed studies demonstrating such a law would indeed prevent impaired driving crashes. Despite decades of evidence and despite surveys showing that 63% of Americans would support .05 BAC, not a single U.S. state has passed this lifesaving law. Why? Because the myths have endured about .05. Although countries with .05 BAC have higher per capita consumption of alcohol and yet lower death rates due to impaired driving, the hospitality and beverage industry think they will lose business and continue to lobby against .05 despite little evidence. But persistence is something we value, too, at the NTSB, resulting from past experience. We recommended seat belts and air bags in cars long before they were installed and now they are universal – so we know people eventually will adopt .05 BAC and assume it was always the law of the land although it may take some years. Of course, many more lives would be saved if a .05 BAC law were passed sooner, but we are in it for the long run. It isn’t very hard to argue, even against a vocal majority, when we know we are on the right side of these arguments, such as .05. Consequently, it is somewhat comforting to understand that it is not a question of IF but WHEN recommendations like this will be adopted.
I have saved the best for last. Our family assistance program is the face of NTSB for family members and the communities we serve. While NTSB has always provided whatever we could to families, the Family Assistance Act of 1996 formalized our agency’s role as contact and assistance for families following a transportation disaster. In the 1990’s there were several high profile aviation crashes such as ValuJet in Florida (110 deaths), US Airways in Pennsylvania (132 deaths), and TWA 800 (230 deaths). At these crashes and others, shocking things happened. Whether through lack of experience or a misguided attempt to help, in one case the airline put the damaged belongings of the people who died into a dumpster rather than offering to return them to their families! In another instance, the airline buried all of the unidentified human remains at night in a mass grave without asking the family members for permission.
As a result of the uproar caused by this type of treatment of the families in these and other accidents, President Clinton passed the Family Assistance Act in 1996 and designated NTSB to be the single point of contact because we conduct the investigation and what families wanted most was to know what happened. After 1996, the NTSB’s Transportation Disaster Assistance (TDA) program was given the authority to organize all the volunteer agencies and coordinate information for families. TDA’s values are compassion and responsible engagement.
Family Assistance has provided information to so many families in so many ways over the years, but one of my favorite stories involved the Egypt Air accident in Rhode Island. There were interpreters in 5 languages and hundreds of family members, mostly from Egypt, were flown in. A longtime employee of NTSB realized that all the families were cold (it was fall in Rhode Island and they had come from Egypt), and they were wearing clothing provided for them because they were not prepared for the cold weather. The family members were being served food that was completely foreign to them – all while just hearing about a family member’s death. The NTSB staff member realized it was an uncomfortable, difficult situation and looked for a way to give them some comfort. She spoke with the hotel manager who was able to convince a former hotel chef who was from Cairo to return for a few days and the families were served Egyptian food. I asked her what she said to the chef, and she replied that she told him to make the Egyptian equivalent of mashed potatoes because she knew she would have wanted comfort food in a situation like this. This was a difficult situation that was made better because of a caring and smart family assistance staff member. It did not cost anyone anything and, as my colleague said, she knew she had done something right when an elderly Egyptian man, who had probably lost a son or daughter in the accident, looked up at her and gave her a thumbs up sign over his plate of food. In this case, NTSB was able to bring humanity to a tough situation.
Our written and unwritten values make the NTSB what it is. Our agency is ever-changing, but there are core ethics and core values that I, as a board member, do my best to preserve. Yes, there are ethics of transparency, credibility, and independence, but there also are the unwritten ethics of inspiration and ambitious goals. Why is ethics so important to what we do at the NTSB? Perhaps, because, like in most organizations, it is our ethics and our values that bring humanity to what we do. Because of our detailed investigations, it may seem that our work is largely mechanical, but we never forget that the purpose of our work is to serve people. I would like to read to you a part of a letter that a former NTSB Chairman received from the parents of a young woman who died in the Colgan Air crash in 2009 in New York, on behalf of all the families: “We will live forever with our sadness and grief for the loss of our loved ones, but we will be comforted in some way with the knowledge that our government sent its best people to be there for us during this overwhelming experience.” It is one thing to follow the book operationally, but I suppose you really know you have done things right morally and ethically when you get a letter of appreciation from a relative or community member whom you have helped.
Another former Chairman from the 1990’s used to describe NTSB’s mission and goals by paraphrasing Thomas Jefferson’s quote: "The care of human life and happiness…is the first and only legitimate object of good government." I agree.
In closing, I would like to wish APPE a happy 25th Anniversary and thank you for your many years of good work, which has a positive impact on people’s lives every day, as my colleagues and I at the NTSB can personally attest. Here’s wishing you many more years of service to the practice of ethics for the common good. It has been true honor to be with you today. Thank you.