Professionalism, Responsibility and Decision Making: A Framework for Discussion

1. Professionalism, Responsibility and Decision Making:A Framework for Discussion Gregory L. Riggs, J.D. AABI Industry/Educator Forum July 14, 2011

2. Concepts for Discussion • Professionalism • Decision-Making • Responsibility • Risk Management • Accountability

3. The Arbiters of Accountability • System Boards of Adjustment • Regulatory agencies • Administrative tribunals • Congress • Courts – Civil • Courts - Criminal

4. The Parameters of Accountability • Ground level – The case of the L-1011 cross-bleed valve • The summer of ’87 • LAX 767 • BNA 737 • LEX 737 • BOS Takeoff • BOS Landing • LGW-ATL

5. The Summer of ‘87 FAA Report: “The presence of these behaviors is primarily due to a lack of clear cut, definitive guidance from those responsible for developing and standardizing cockpit procedures.”

6. Making a Case of Negligence To establish a prima facie case, an injured plaintiff must prove: 1. Duty of care -- Obligation to take reasonable care 2. Breach of the duty -- Failure to take reasonable care 3. Causation -- The breach causes the injury

7. Schwamb v. Delta

8. The Airline Standard of Care “With proof of injury to a fare-paying passenger on common carrier and failure to reach his destination safely, the plaintiff establishes a prima facie case of negligence . . .

9. Standard of Care – Cont. … and the burden shifts to the defendant to overcome the prima facie case.” Judge Watkins, Schwamb v. Delta (Louisiana Ct. of Appeals 1987)

10. Standard of Care – Cont. “At this point the carrier must show: • that the incident did not occur, or • that it was without the slightest degree of negligence.”

11. Why the High Standard? “A public carrier of passengers is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport.”

12. DL 1141 • Probable Cause: • The Captain and F/O’s inadequate cockpit discipline • Failure of the takeoff warning system • Contributing Cause: • Management’s slow implementation of necessary modifications to its operating procedures, manuals, checklists, training and crew checking programs

13. NTSB Draft Report • The Safety Board finds that the management policies of Delta Air Lines with respect to crew guidance and training were deficient and directly causal to the accident. • The performance of the Flight 1141 crew was mainfested by the failure of Delta’s management to demand and maintain stricter adherence to the standards expected of professional flight crews.

14. Eagle Jetstream Crash at RDU – 12/13/94 • Probable Cause: • The pilot’s incorrect assumption that an engine had failed • The pilot’s failure to follow approved procedures for engine failure • Contributing Cause: • The failure of management to identify, document, monitor, and remedy deficiencies in pilot performance and training

15. Express Airlines Jetstream Crash – 12/31/94 • Probable Cause: • The Captain’s actions, which led to a breakdown in crew coordination and the loss of altitude awareness by the flight crew during an unstabilized approach • Contributing Cause: • The failure of company management to adequately address previously identified deficiencies in airmanship and crew resource management of the captain

16. Exxon Valdez Oil Spill

17. The Jury’s Decision Exxon Valdez Jury Verdict: Gross negligence on the part of Exxon management

18. Punitive Damages Award $5 Billion!

19. DL 1141 NTSB Draft Report • The Safety Board finds that the management policies of Delta Air Lines with respect to crew guidance and training were deficient and directly causal to the accident.

20. Gross Negligence Findings • KAL 007 • Pan Am 103 • AMR Cali

21. Corporate Criminal Accountability • In 1991, Federal Sentencing Commission issues Federal Sentencing Guidelines for Organizational Defendants • Introduced severe, mandatory penalties to companies that violate the law • Company is accountable for criminal activity committed by employees

22. The Dangers for Companies Strong, well-managed companies can face huge penalties even where: • The company has high ethical principles • No officer has done anything wrong • Management and the Board of Directors thought everything was going fine A company can and will be held responsible for the acts of its employees.

23. Compliance Accountability Inc. Accountability here Top Management No knowledge of wrongdoing here Middle Management Front-Line Employees Wrong committed here

24. Managing the Risks The Federal Sentencing Guidelines provide that companies may substantially reduced penalties for most federal crimes if they have “an effective program to prevent and detect violations of law.”

25. Guidance to Prosecutors Justice Department Guidance: In deciding whether to bring charges against a corporation, prosecutors should consider . . . “the existence and adequacy of the corporation’s compliance program.” “The fundamental questions any prosecutor should ask are: Is the corporation’s compliance program well designed? Does the corporation’s compliance program work?” Larry D. Thompson Deputy Attorney General January 20, 2003

26. Seven Elements of a Corporate Compliance Program • To be eligible for credit, a Corporate Compliance Program must have: 1. Established compliance standards and procedures 2. Oversight by specific high-level officers 3. No delegated responsibility to untrustworthy employees 4. Training and communications 5. Monitoring and auditing 6. Consistent enforcement 7. Steps to prevent future offenses

27. Criminal Accountability • AMR Hazmat Case • Argenbright • Valujet/Sabretech

28. Tying Back to the Concepts • Accountability • Professionalism • Decision-Making • Responsibility • Risk Management

29. Bridging the Gap • Who has responsibility for instilling the values of high professionalism, robust compliance, sound decision-making and effective risk management??? • What responsibility should educators accept for imbedding these principles into the curriculum? • What opportunities and advantages might AABI member institutions gain from a renewed focus on these principles?