The Party Process….Or Not

It’s been widely reported in both the general media and the aviation trade press that the National Transportation Safety Board has removed both the UPS pilot’s union and the company as parties to accident investigation arising from the August 14, 2013, Birmingham, AL, accident, which took the lives of the two pilots.  Given the fact that the investigation appears complete and the Board hearing will be held shortly, the practical effect of this action is, at best, minimal, if not purely symbolic.

Our purpose in writing about this is not to analyze the Board’s actions in this instance.  Rather, it’s to focus upon the Board’s rules which address the conduct of parties to an investigation.  We do so as a reminder of what those rules say, so that anyone involved in an NTSB investigation as a party knows, at least according to the Board, what they can and can’t say.

The simple fact is that sometimes the rules are a “moving target,” dependent, in some measure, on how the person interpreting them chooses to do so measured against the facts of a specific occurrence.  With that said, there are a couple of things to remember.

  1. Neither airlines, manufacturers nor unions have a right to be parties to an NTSB investigation. Under the NTSB’s rules, party status is, essentially, by invitation only and, as the Birmingham accident instructs, an invitation that can be withdrawn by the NTSB.
  2. As a party, the easiest rule of thumb with which to operate, from a media perspective, is that “you can’t say anything after the accident, which you couldn’t have said before the accident.”
  3. If you think about it, that’s actually a pretty bright line. You can talk about programs and procedures, safety record, flight crew background, training and experience, maintenance program, aircraft history, etc.  What you can’t talk about is anything occurring after the accident, including causation, information learned during the investigation, etc.

If in doubt, go to the NTSB Investigator in Charge (IIC) and ask whether or not what you want to say to the media would be considered acceptable as being within NTSB rules.

  1. If negative/adverse/incorrect information has hit the media, whether generated by a party to the investigation, the NTSB itself or some third party, go to the IIC and/or the Board Member who is/was on-scene. Request that the Board take action, whether it’s permitting you to issue a statement or the Board issuing a statement.  When doing so, have prepared to share with the Board, the precise corrective action and/or language you want taken or issued.
  2. If you don’t like the answer given to you by the IIC, go to either the General Counsel or the Board member who is/was on the scene for the investigation. While the IIC is running the investigation, he/she is not necessarily the final word on such issues.
  3. If another party to an investigation makes an improper public statement, don’t succumb to the understandable temptation of engaging in dueling press releases. The first thing you should do is go to the Board.  Request that the Board remove the offending party from the investigation and issue a statement.  Request that the statement specifically address the substance of the improper statement and have proposed responsive/corrective language to present to them.
  4. Depending upon the stage of the investigation, consider giving up your party status. This is a dramatic step, but one which removes any restrictions relative to speaking out, except those associated with ensuring that your public statements are in line with good judgment and common sense.
  5. If the field phase of the investigation is complete and the report is being drafted, resigning party status is actually a viable alternative if you find yourself handcuffed by the Board’s rules. Remember, the Board does not provide a copy of the draft final report to the parties for comment.  As a result, when investigative activities are complete and the report is being written, even the parties to the investigation become, essentially, spectators.  Parties to the investigation have no role in the drafting of the report or the meeting of the Board.  While this would occur late in the process, it nonetheless does remove the restrictions which accompany party status.

One aspect of this strategy to consider is what effect, if any, giving up party status may have regarding future incident/accident party investigations and participation.  While there is no way to definitively state there won’t be an effect, the key to this strategy, if you decide to pursue it, is how you do it.

  1. Prior to giving up party status so you can make public comments which would, as a party, not be allowed, do all you can to work with the Board to address your concerns.
  2. If unsuccessful, consider the stage of the investigation and the effect of becoming an “outsider”
  3. If you choose to give up party status, confer with the Board in advance and permit them to see any public statement you will be issuing.
  4. In your public statement, indicate the high degree of respect you have for the Board and party process, but that the limitations imposed by party status have made it impossible to discharge the full range of your obligations to the company, its employees and customers. Accordingly, point out that you are reluctantly giving up your party status so you can comment on public releases and statements being inappropriately made by others.

In the context of Board investigations, this is a big decision.  However, at the same time, these may well be situations where, in order to protect the company, it is an option which should be considered.

While the NTSB party system is, without a doubt, far better than any accident investigation process in the world, and certainly not one to be opted out of lightly, giving up party status voluntarily is for preferable to being “fired” by the NTSB.

(Originally posted September 8, 2014)

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