Good evening! Thank you, Justin, for that very kind introduction and thank you, Tony and your members for inviting me to speak to you this evening. What a pleasure to be here at IATSBA’s (the International Air & Transportation Safety Bar Association’s) Dinner. It is a true honor to be addressing this group of aviation law professionals. It is an honor but quite nerve-wracking as well. I certainly never have been the only public health professional in a room full of attorneys. That sounds like the start of a good lawyer joke!
I know this group, unlike some of the groups that I have the opportunity to address, is very familiar with the National Transportation Safety Board (NTSB), its operations, and functions. You work on behalf of your clients during the on-scene portion of NTSB investigations, at NTSB investigative hearings, and throughout the Board process. In fact, I know many of you could teach me a great deal about the NTSB. Likewise, others of you, like John Yodice, who received IATSBA’s lifetime achievement award last night, have dedicated your lives to advocating on behalf of pilots, mechanics, and air carriers before the FAA, as well as the NTSB law judges and the Board. You, too, could teach me a great deal about the NTSB.
So tonight, I’m not going to give you a recitation of what the Board does, what accidents we are investigating, and what O&Os we have pending because you already know so much about the Board and because you had presentations this week from my fellow Board Members and our General Counsel’s office. Instead, I hope to give you my observations on how the legal profession positively affects the work that I and my colleagues do EVERY DAY at the National Transportation Safety Board.
When I started at the NTSB a little over a year ago, little did I know just how intertwined law and ethics is with everything we do at the NTSB.
But briefly, before I do that, since I am new to this group, I would like to explain how I, a public health scientist, ended up at the National Transportation Safety Board.
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. This involved working with the United Nations and other countries on topics related to injury prevention such as infrastructure, vehicle design, medical care, and laws. I was preparing to go into a meeting on sustainable development at the UN 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 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. These also are values that I see in the legal profession. Perhaps because of my public health and injury prevention 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.
When I was identified as the potential nominee by the White House, the very first individuals I spoke with at the NTSB were attorneys – David Tochen, the NTSB General Counsel, and one of his attorneys, Shannon Bennett, who now works as my special assistant. David and Shannon initially were the only people at the NTSB who knew I was the potential nominee – even the other Board members were in the dark. They worked with the White House Counsel and the Office of Government Ethics on my ethics clearance, because no one can make it through the nomination process without first obtaining an ethics clearance. So my first experience at the NTSB involved the law!
In my first year at the Board, I have been amazed at all the ways that the law touches all we do. I find this especially interesting given the fact that one of our “party participation” rules is that parties are named for the purpose of providing technical expertise to the NTSB, not for the purpose of preparing for litigation (We often joke – no lawyers, except our lawyers!) But, in reality, lawyers are involved behind the scenes in everything that we do.
We are fortunate at the NTSB because by law 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 often will 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. As for transparency, our work, deliberations, and votes also are governed by law – the Government in the Sunshine Act. Whenever three or more of us gather together, David Tochen is there to ensure that we stay within the bounds of the Sunshine Act.
Although Board Members, like myself, are not political in the traditional sense, we never really can forget our party affiliation – once again, by law, NTSB is bipartisan since no more than three of the five 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 three current members that, for these Board Members and certainly for myself, our disagreements are for the sake of keeping the transportation system safe, not for any political gain or gamesmanship. Inaddition, I know you can see that when you hear my fellow board members speak, as you did earlier this week.
BOARD RULES – we have many! 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. I have learned that the NTSB statute is located at 49 U.S.C. 1101 to 1155. One of my Most Wanted List Issues this year is to expand the use of recorders. A great tip that I learned from a lawyer is that you add an air of authority by citing a statute when you speak … so I have practiced saying that our statute regarding recorders is found at 49 U.S.C. 1114.
One of the other statutes that I have learned a great deal about during the past year is 49 USC 1133. I don’t think I quite processed, when I was nominated for the position, that I, a non-lawyer, would serve as a quasi-judicial appellate authority for enforcement actions taken by the FAA Administrator or the US Coast Guard Commandant. The first time I heard the term O&O – I had no idea what I had gotten myself into. Much to my surprise, I really enjoy this role! As I mentioned earlier, I was lucky to hire Shannon Bennett as my special assistant. Many of you know that Shannon led the NTSB’s enforcement program during her five years in the Office of General Counsel. She has educated me on the jurisprudence in this area of law and has passed on to me some of her passion for this area, as well as her deep respect for the work of our Administrative Law Judges.
I now know that the Hart v. McLucas three-prong test requires the Administrator to prove 1) falsity, 2) materiality, and 3) intent. Also, the law judge’s explicit credibility findings are necessary to resolve the issue of intent. I have learned much about standards of review. As respondent’s counsel, I know you love when the Board finds the law judge’s credibility findings are arbitrary and capricious or that he has abused his discretion in an evidentiary ruling. I also enjoy reading your briefs and learning new legal terms of art – for example, assuming arguendo that you make a colorable argument, you may prevail unless your argument defies logic! I speak Spanish, but the law – and indeed, transportation law – is a much more difficult language to learn! David Tochen has even lent me, for my light reading pleasure, his extra copy of Aviation Regulation in the United States! All kidding aside, I see the passion for the law and the dedication each of you have for protecting the rights of your clients.
As you all know, 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, and this is not surprising since my journey with the NTSB started with the GC ethics teams, I have learned that ethics touches everything we do at NTSB. To safeguard our values of independence, credibility, and transparency, we examine everything we do under an ethics microscope. All of our Board employees, whether they are political appointees or career staff, must follow the Standards of Conduct for the Executive Branch.
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.
The NTSB also takes care to provide ethics advice to all staff to help us make good decisions. David Tochen also serves as the Designated Agency Ethics Official, and his office conducts in-person mandatory annual ethics training for the entire agency that includes gift acceptance, outside employment, and 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!
The NTSB also has rules about the “ethics” surrounding participation of a party to an NTSB investigation, rules which I know all of you know very well.
Our statutes, regulations, Board orders and policies make the NTSB what it is. Our agency is ever-changing, but there are core laws, core ethics, and core values that I, as a board member, do my best to preserve. Yes, there are agency values of transparency, credibility, and independence, but there also are the unwritten agency values of inspiration, compassion, and ambitious goals for safety. Why are the law and ethics so important to what we do at the NTSB? Perhaps, because in most organizations, it is our ethics and our values that bring humanity to what we do. In addition, it is the law and – yes – the legal profession that helps us do that. 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 – those injured and killed in the accidents we investigate and those respondents who come before the Board for appeal of enforcement actions.
A 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 thank you for the key role each of you play in our agency’s mission. Many of you have dedicated your lives to aviation and transportation safety, 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 law. It has been an honor to be with you today. Thank you.