Avionics News December 2016 - 56

Should I use a lawyer?
There are risks to self-disclosure. For example, it may
reveal information that could be used in civil litigation.
1. Gather initial information.
There also are serious possible missteps. A technically
2. Make an immediate assessment of whether laws or
improper self-disclosure can surrender the expected mitiregulations may have been infringed.
gation benefits of the self-disclosure. If you get the facts
3. Make an immediate assessment of whether safety is
wrong in your self-disclosure, then you may cause the govjeopardized.
ernment to get the wrong impression about the event that is
4. Identify immediate containment efforts (to prevent
the subject of the disclosure (possibly a worse impression
harm from the noncompliance) and implement
than is warranted). A number of cases that we've defended
them.
have been substantially complicated by incorrect facts
5. Continue investigating to gather all relevant facts.
shared early in the matter before full investigation had taken
6. Undertake a root cause analyplace. Even when the facts showed
sis to identify root cause(s).
the earlier statements to be untrue and
7. Design corrective action to
inadvertent, FAA inspectors tended to
BEING ABLE TO FREELY
correct the root cause(s).
suspect that the early incorrect stateCOMMUNICATE WITH THE
8. Implement corrective action.
ment was an intentional untruth. This
FAA ABOUT SAFETY ISSUES,
9. Assess the effectiveness of
needlessly complicates the investigaAND ABOUT STRATEGIES
corrective action relative to
tion and may delay corrective action;
FOR IMPROVING SAFETY,
the root causes.
our law firm has worked on client
IS AN IMPORTANT PART
10. Assess whether corrective
self-disclosures to make sure the stateOF SUPPORTING THE
action aimed at the identified
ments are all compatible with, and
NEW SMS PARADIGM AND
root causes is effective in presupported by, the facts.
venting future noncompliance
Even when the self-disclosure is
MAKING IT SUCCESSFUL.
(if not, then you may need to
proper,
it is possible to regret the disIF YOU ENCOUNTER A
reassess the root cause(s)).
closure. I once represented a pair of
NONCOMPLIANCE SITUATION,
You may have noticed that selfpilots who had made proper NASATHEN CONSIDER WHETHER
disclosure was not included in the above
filings (self-disclosures). The FAA
A SELF-DISCLOSURE
list. How can this be a self-disclosure
sought to invalidate the self-discloWOULD SUPPORT YOUR
process? Self-disclosure was not includsures for technical reasons and tried to
COMPANY GOALS.
ed in the list because when to make
suspend the pilots' certificates because
the self-disclosure is going to be a factof the underlying event. We were sucdependent assessment. If there is a statute,
cessful in protecting the certificates, but
regulation or policy that affects self-disclosure, then you need
it took a court battle in order to convince the FAA that the
to follow those standards in order to gain the benefit of the
self-disclosures were valid. Without a lawyer in that case,
self-disclosure program. In addition, you want the investigathose pilots would have been grounded.
tion to be sufficiently far-along so that you can provide details
in the self-disclosure. But at the same time, you want to make
Conclusion
the self-disclosure as early as possible in order to involve the
The FAA has been moving toward a Safety Management
government agency as a partner (not to mention meeting any
Systems paradigm. Part of that paradigm requires regulated
self-disclosure deadlines). These two conflicting criteria have
businesses to take on more of the compliance-assurance burto be balanced in order to select the right time to self-disclose.
den. Being able to freely communicate with the FAA about
It is not unusual to achieve this balance through an initial selfsafety issues, and about strategies for improving safety, is
disclosure that is then coupled with follow-up disclosures as
an important part of supporting the new SMS paradigm and
more information becomes available.
making it successful. If you encounter a noncompliance
Even without a firm definition of when self-disclosure
situation, then consider whether a self-disclosure would supshould take place, the process is important because it helps
port your company goals. Remember, situations of adversity
the company react effectively, and it gathers the informawill test your virtue - self-disclosure can be an opportunity
tion that ultimately will become part of the self-disclosure.
to demonstrate and increase that virtue. q
LEGAL EASE

Continued from page 55

avionics news

december

2016

Table of Contents for the Digital Edition of Avionics News December 2016