July 25 (Bloomberg) -- Moments before a single-engine aircraft and a helicopter collided over the Hudson River near Manhattan in 2009, an air-traffic controller who should have been advising the plane’s pilot was on the phone, joking with an airport worker about a dead cat.
Nine people, including three teenage boys, died. The Teterboro, New Jersey, controller, whom safety investigators said was distracted and partly to blame for the accident, still works for the Federal Aviation Administration. Although the agency tried to fire him, his punishment was reduced to a suspension, a transfer and a demotion.
What happened to the controller isn’t surprising, according to data obtained by Bloomberg News under the Freedom of Information Act. More than four of every 10 air-traffic workers the FAA tried to fire over almost two years kept their jobs or were allowed to retire, the data show. That included two-thirds of those targeted for firing over drug or alcohol violations.
“Americans should be outraged,” said Marc Scribner, transportation analyst for the Competitive Enterprise Institute, a nonprofit Washington group that advocates limited government. “Most government employees are good people and are not screwing up, not doing drugs, but there are bad apples in all levels of government and they should be fired.”
The findings spotlight Transportation Secretary Ray LaHood’s challenge in carrying out his pledge to fire three controllers caught sleeping on the job in Seattle, Miami, and Knoxville, Tennessee. The Miami worker still works for the FAA after the proposed termination was reduced to a lesser penalty, the Seattle case is pending and the Knoxville worker retired, according to an agency official who isn’t authorized to speak on personnel matters and asked not to be named.
Workers in 58 of 140 proposed firings who kept jobs had penalties rescinded, reduced or deferred, the data show. The disciplinary information was culled from a pool of 20,486 FAA workers, including about 15,600 controllers, and excludes employees with less than one year of service who lack disciplinary protections in the union contract.
The National Air Traffic Controllers Association, the union for the 15,600 employees, declined three requests to respond to the findings of the Bloomberg analysis and offered an e-mailed comment.
Controllers “work to ensure the safety of 70,000 flights every day and make our system the world’s safest,” Doug Church, the group’s spokesman, wrote. “This is the story that the public needs to hear.”
The Senate aviation subcommittee will “ensure that safety standards are a top priority” as the panel evaluates FAA personnel practices, said Senator John Thune of South Dakota, the panel’s leading Republican, in a statement.
“While many factors need to be considered when making air traffic control personnel decisions, safety must be the FAA’s guiding principle,” Thune said.
The FAA’s firing rate, as a percentage of its total workforce, is similar to that of other federal agencies, where disciplinary terminations are also rare, government data show.
Federal workers have due-process protections to prevent wholesale firings when a new administration comes to power. Union contracts provide another layer of protection.
Controllers are among the top-paid government workers, according to a Web page published by Embry-Riddle Aeronautical University in Daytona Beach, Florida. Certified controllers, excluding trainees, earned an average of $136,000 in the fiscal year that ended Sept. 30, according to FAA figures.
The pay figure excludes benefits and includes overtime pay, incentives and other sorts of extra compensation, according to agency figures from last fiscal year.
The agency’s public-safety mission should allow it to fire more easily than other government bodies can, Scribner said. “Any time there is a greater risk of human casualties due to government error, those employees should be held more accountable,” he said.
Federal workers including controllers can challenge disciplinary penalties through a government panel called the Merit Systems Protection Board. Controllers also have the option to use a process described in 15 pages of their union contract to appeal sanctions to an arbitrator. The process has been in contracts for at least two decades, signed during both Republican and Democratic administrations.
Disciplinary cases can take months, even years, to complete. A controller appealed to the Merit Systems Protection Board after the FAA fired him in August 2009 for testing positive for marijuana during rehabilitation for an alcohol violation in January of that year, according to the board, an independent federal agency.
The FAA challenged his right to appeal, saying he had waived it when he agreed to rehabilitation, board documents show. The employee contends he was forced into the waiver as the only way to keep his job, according to the documents. Almost two years later, the case is still pending before an administrative law judge, though the employee no longer works for the agency, according to the agency official who couldn’t be named.
LaHood said he hasn’t given “one second worth of thought” to seeking changes in the controller contract, which expires next year, to make it easier to dismiss workers.
“We have due process so that people can be treated fairly,” LaHood, whose department includes the FAA, said in an interview in May.
The FAA’s disciplinary system is “essentially the same process that every federal employee enjoys in the interest of fairness,” FAA Administrator Randy Babbitt said in an interview in May. “I have experience in the private sector, and it’s not unsimilar there.” He is a former airline pilot and former head of the Air Line Pilots Association, the world’s largest union for cockpit crews.
The “Kafkaesque” FAA and federal-government personnel processes lead to firing rates below that of the private sector, said Andrew Steinberg, a partner at Jones Day in Washington and FAA chief counsel under President George W. Bush. “That tells you we have extremely low standards or we aren’t able to enforce them, and I’d say it’s the latter,” he said.
Managers who crack down on bad employees often receive harassment, discrimination or whistle-blower complaints, said Mary Schiavo, a former Transportation Department inspector general.
“Federal managers take the easy way out and let some underperformers or troublemakers retire, or they transfer them,” said Schiavo, now an attorney with Motley Rice LLC in Mount Pleasant, South Carolina. “It is just easier to go with the flow than weed out underperformers.”
‘Fire Up the Cat’
Babbitt announced the Teterboro worker’s planned firing in November 2009, three months after the accident, citing violations of procedures “we expect employees to follow, period.”
The controller, about two minutes after he had cleared a small plane for takeoff, called an airport worker who had been forced to pick up a dead cat.
“We got plenty of gas in the grill,” the controller said, according to a transcript of the call on the National Transportation Safety Board’s website. “Fire up the cat.”
The nearly three-minute call, which ended four seconds before the collision over the Hudson, distracted the controller from correcting the small-plane pilot’s mention of a wrong radio frequency and delayed handing off responsibility for the flight, according to the board.
The NTSB in September 2010 partly blamed the controller for the accident, which killed five Italian sightseers -- two teenage boys and three of their parents -- and the pilot aboard a Eurocopter AS 350 BA. The pilot, his brother, and his 16-year-old nephew aboard the Piper PA-32R-300 single-engine airplane also died.
The FAA moved to fire the controller for “negligent or careless work performance.” The termination was reduced to a suspension in May 2010 after “the opinion by neutrals, or outside parties, suggested” the firing wouldn’t be upheld, Babbitt said in the interview, without elaborating. “That’s part of the due process.”
The employee no longer controls traffic, according to the agency official who couldn’t be named.
“He should have been fired,” House Transportation and Infrastructure Committee Chairman John Mica, a Florida Republican, said of the controller in an interview July 14. “That was just dereliction of duty.”
JFK Firing Dropped
Another proposed firing dropped by the FAA was of a controller at John F. Kennedy International Airport in New York who allowed his son and daughter to make radio calls to aircraft from the tower on two successive days in February 2010, according to agency data, news media reports and a recording posted on the website LiveATC.net.
“This is what you get, guys, when the kids are out of school,” the controller told pilots 10 seconds after a child cleared a JetBlue Airways Corp. flight for takeoff, according to a recording posted at LiveATC.
“These kinds of distractions are totally unacceptable,” Babbitt said in a statement two weeks after the incidents.
The controller appealed the proposed firing, succeeded in getting the penalty reduced to a 45-day suspension without pay and is still on the job, according to the FAA official.
Bloomberg requested 10 years of FAA data on controller disciplinary actions after cases of workers napping and watching a movie on duty became public earlier this year. Nine controllers have been reported by the FAA as sleeping or being unresponsive on the job since January, resulting in five suspensions and a reprimand letter, and the three proposed firings, according to FAA statements.
The FAA provided a database of disciplinary decisions only from Oct. 1, 2009, through May 20, 2011, deleting names and locations of the workers. Information from 2001 to Sept. 30, 2009, is in a database “that is no longer in use and is not searchable,” Angela Porter, the FAA acting deputy assistant administrator for human resource management, said in a letter May 27.
The database provided by the FAA contained records of 715 disciplinary cases, mostly non-termination actions such as reprimands and suspensions, from the pool of 20,486 workers. Besides about 15,600 controllers, workers with the same job classification included supervisors, support staff and other executives in air-traffic management.
The agency carried out proposed firings in 82 of 140, or 59 percent, of termination cases completed during the period, the data show. Terminations were proposed for actions ranging from inappropriate conduct to unauthorized absences. They led to 73 firings and nine resignations to avoid firing, the data show.
Of the other 58 cases, the penalty was lessened, overturned, settled or rescinded in 21. In 17 cases, proposed firings were deferred, pending no further violations, data show. Workers were transferred, reassigned or demoted in 11 cases and retired in nine.
The Bloomberg analysis excludes 91 cases of proposed terminations during the 20-month period -- 33 because outcomes haven’t been determined and 58 because workers were on probationary status. That means they’d been federal employees for less than a year and lacked due-process rights of more experienced colleagues.
No Sleepers Fired
Six of the 715 disciplinary cases involved sleeping offenses, the Bloomberg analysis found. One of those cases -- in Fort Worth, Texas, this year -- was previously publicized by the agency.
The FAA proposed termination in one of the sleeping cases, involving a probationary employee, who resigned. The other five cases resulted in two letters of reprimand and three suspensions.
Penalties for sleeping on the job when safety is endangered range from a 14-day suspension to removal on the first offense, and removal for the second, according to the “Human Resources Operating Instructions,” a 12-page table that lists offenses and sanctions supervisors should administer in response.
Penalties for sleeping when safety isn’t threatened start with a reprimand to a 10-day suspension for the first offense, a 10- to 30-day suspension for the second offense, and removal for the third offense, according to the table.
Drug, Alcohol Violations
The agency didn’t carry out proposed removals in 18 of 27, or 67 percent, of drug or alcohol violations cited among the 140 cases, FAA data show.
In 14 cases the sanction was deferred pending an opportunity for rehabilitation and no further violations. The employee settled, was transferred or accepted a lesser penalty in the other four cases, the data show.
The employee failed drug or alcohol tests in 10 of the 27 cases, the data show. In three of those 10, the worker was fired or resigned, according to the FAA.
Controllers who test positive for illegal drugs or have a blood-alcohol content of 0.04 percent, half the legal limit for automobile drivers in most U.S. states, face termination, according to the FAA’s penalty table. Workers who use illegal drugs or misuse legal drugs off duty should be fired on the first offense, according to the table.
Conflicting Drug Policies
However, a broader Transportation Department order calls for employees to generally get a chance at rehabilitation after a first failure of a drug or alcohol test. A second offense calls for removal, according to the order.
On-duty use of alcohol, or use or possession of illegal drugs on the job, results in termination with no offer of a chance for rehabilitation, according to the FAA penalty table. The FAA said July 19 it was investigating a controller near Denver who tested positive for alcohol on the job, according to media reports.
Giving workers a “last chance” to get off drugs and alcohol is better than firing them, said Patrick Forrey, former president of the National Air Traffic Controllers Association.
“Alcoholism and drug abuse addiction is a disease,” Forrey said. “Everyone should be given one opportunity to come forth and address that.”
The FAA overall fired 247 of 48,343 workers, or 0.51 percent, for discipline and performance reasons in the year ending Sept. 30, 2010, based on data on the U.S. Office of Personnel Management website. The entire government fired 11,668 of an average of 2.08 million workers on the payroll during the same period, a 0.56 percent rate.
While there are no directly comparable figures, the Bureau of Labor Statistics found private sector layoffs and discharges ranged between 18 and 23 percent annually from fiscal 2001 through 2009, while the figure for the government was 4 to 8 percent during the same period.
“The disciplinary process or lack thereof is an ugly secret in our dysfunctional government personnel system,” said Paul Light, a professor of public service at New York University who has written on federal workforce issues. “It’s nearly impossible to fire someone” in the federal government, he said.
Fewer than one percent of federal workers get performance ratings below “fully successful,” Jeffrey Zients, the government’s first chief performance officer, said in a speech in February 2010. Only 29 percent of employees believe steps are taken to address poor performers, he said.
The government is working on “strengthening the performance appraisal system,” said Kenneth Baer, a senior adviser at the Office of Management and Budget, where Zients is based, in a statement.
‘Damn Good Reason’
Proposed penalties at the FAA are sometimes reduced because of poor investigations and incomplete evidence, said Forrey, the former controllers’ union president.
“Once the facts come out, firing isn’t always the most advantageous for the agency,” which spends years and tens of thousands of dollars training controllers, Forrey said. “When you’re going to talk about terminating an employee and throwing all that away, you better have a damn good reason.”
For instance, the FAA found after proposing to fire a controller in February, for failing to report the use of a prescription drug, that the charge was incorrect, according to the FAA official. The worker was transferred anyway after a “training failure,” the data show.
Layers of Appeals
Controllers can contest the penalties under a process described in their collective-bargaining agreement with the FAA, if they choose not to pursue an appeal at the Merit System Protection Board.
The agency, for instance, must give controllers 30 days written notice of a proposed termination, according to the contract. The worker has 15 days to reply, and the agency must consider the response before issuing a written decision, according to the contract.
The union can file a grievance with the agency over the action within 20 days, and if managers uphold the termination, the union can appeal to a higher level within the agency.
If the FAA upholds the termination again, the union can appeal within 30 days to an independent arbitration process. After a hearing is scheduled and an arbitrator issues a decision, the contract allows the dispute to be taken to a U.S. appeals court.
The FAA addresses the vast majority of disciplinary matters before they become significant enough to warrant termination, through steps such as decertifying workers, said William Voss, a former FAA controller and training manager.
“When you are told you are being removed, you’re at the end of a long road,” said Voss, chief executive officer of the nonprofit Flight Safety Foundation, based in Alexandria, Virginia. “You’ve done something really awful. It’s likely something in your private life -- you stole a car or got convicted for a drug possession.”
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