The FAA Follies

So yesterday we took a look at how Bobby Sturgell went from being the Acting Administrator of the FAA, where the FAA invested in and certified equipment (for NextGen) for the Rockwell Collins corporation, to working for Rockwell just 3 months or so after he left the FAA, to being so crucial to Rockwell’s further success as a company that just 6 days after going to work for them, he was guaranteed a huge payout of 1200% of his normal salary should Rockwell be taken over by another company in a merger or takeover.

This case was brought to the Follies’ attention by the group Quiet Rockland, who have the estimable John J Tormey III as a leader. Mr Tormey is apparently blessed with the power of the Energizer Bunny; he continually cranks out information about the FAA and its leaders.

While much of it might be easy to blow off, the reality is that he’s really on to something. It shouldn’t surprise any regular FAA-watchers that when someone from outside of our little world takes a hard look at the FAA, they come to realize that these government officials won’t hestitate to lie, cheat, steal, and generally do whatever they deem necessary to advance their personal agendas. Mr Tormey realized this pretty quickly when he started fighting for his cause.

Mr Tormey said, in the press release announcing the Sturgell-to-Rockwell story…

“As an example, according to an unabashed Rockwell Collins post on their own website today, Bobby Sturgell’s FAA just certified Rockwell Collins product for intended use in FAA’s NextGen Air Traffic System as recently as December 2008, at a time while Sturgell still headed the federal agency but knew he would soon be eclipsed by the Obama administration. The ousted Bobby Sturgell then “resigned” from FAA a month later in January 2009. Then, but three months after that in April 2009, Sturgell jumped into bed with the very government contractor whose product his old agency had just certified. That’s an OUTRAGE.”

Unfortunately, Mr Tormey misses the mark in at least one spot- this isn’t seen as an outrage, at least not among the mucky-mucks that run the FAA. Of course, we’ve detailed here on the Follies in the past how FAA officials make decisions that have huge benefit for private contractors, then retire and go (sometimes within just a few months) to work for those same contractors. To private citizens, sure, it’s outrageous; to the people in power, it’s just the accepted way of doing business. Which is pretty sad, when you think about it.

These folks don’t WANT anyone looking at how they pull this off. If the public knew, why, that same public might get upset and actually demand that their Congressional representatives and Senators DO something about this travesty.

What could, or should be done? What areas of the law apply here?

As Quiet Rockland points out in their press release (which got me going on this story in the first place) demanding a federal probe into this situation…

“Quiet Rockland calls for this federal Congressional inquiry of the actions of Bobby Sturgell and Rockwell Collins – a plenary investigation as to whether federal or other laws have been broken including without limitation 18 United States Code § 207 (Restrictions on former officers, employees, and elected officials of the executive and legislative branches):

http://www4.law.cornell.edu/uscode/18/usc_sec_18_00000207—-000-.html
http://www.doi.gov/ethics/eth-207.html

It may take a while. But Bobby Sturgell should be aware that he will be brought to justice for defiling and damaging the American aviation system, and for once again scamming the American public.”

To save you the time, here’s a rundown of what those links say. The basic gist of the ethics laws and rules is that if you work for the federal government, and you are in various executive positions, you have restrictions on your future employment activities. You can work for whoever you want, but there’s only certain things you can actually DO for them.

Those restrictions depend on your level of pay with the government, which roughly corresponds to your level of decision-making power.

I couldn’t find any information later than 2007, but in 2007 Bobby Sturgell made just under $167,000 a year. His pay grade was “EX04″.

Now, this gets a little confusing, but the Department of Interior has a page up about ethics that makes it a little more clear. It’s the second of the links that Quiet Rockland referred to in their press release. It says, in part:

Your rate of pay or your pay schedule at the time you leave federal service determines exactly which of these six provisions will apply to you. Specifically, when you terminate from Federal service under these laws:

If you are being paid at an annual rate which is less than the rate established for Level 5 of the Senior Executive Service (ES-5), currently $130,000, you will be subject to three prohibitions — 18 U.S.C. 207(a)(1), (a)(2) and (b).

If you are in a position paid under the Executive Schedule (EL-II through EL-V) or if you are in a Senior Executive Service position paid at the ES-5 or ES-6 level, you will be subject to five prohibitions — 18 U.S.C. 207(a)(1), (a)(2), (b), (c) and (f).

Finally, Executive Level I (EL-I, currently $166,700 per annum) employees who terminate from Federal service will be subject to all six post employment prohibitions — 18 U.S.C. 207(a)(1), (a)(2), (b), (c), (d) and (f).

Sturgell’s official position was, I believe, Deputy Administrator of the FAA. That appears to put him in the second category mentioned above (Deputy Administrator is level IV). However, he was acting as Administrator for the last year or so he worked for the FAA. This doesn’t appear (to me) to make any difference, because FAA Administrator is level II, and therefore subject to the same five restrictions on post-government employment activities.

So what are those restrictions? Well, as I said, the actual law is pretty confusing. Again, we turn to the DOI’s ethics page, and it lays out what those restrictions are:

18 U.S.C. 207(a)(1). Lifetime ban on making a communication or appearance involving particular matters involving a specific party or parties.

Prohibits all former Government employees from knowingly making, with the intent to influence, any communication to or appearance before an employee of any department, agency, or court of the United States on behalf of any other person (except the United States) in connection with a particular matter involving a specific party or parties when (1) the employee was personally and substantially involved in the matter as a Government employee and when (2) the United States is a party or has a direct and substantial interest in the matter. This restriction also applies to former special Government employees.

I added the boldfacing above. What it amounts to is that there’s a lifetime ban on former employees from appearing for or lobbying for any company on any matter that the former employee had “personal and substantial participation” in when that former employee was working for the government.

As you can see from the definition, that personal and substantial participation clause goes pretty far. It’s hard to imagine any matters involving any part of, say, NextGen that Sturgell didn’t have a hand in while he was working for the FAA. Likewise, since it applies to matters decided by employees that were subordinate to the employee, and since Sturgell served as Acting Administrator and Deputy Administrator, he was in charge of everyone in the FAA.

There’s more restrictions than this lifetime ban.

18 U.S.C 207(a)(2). Two-year restriction on particular matters involving a specific party or parties where the matters were under your official responsibility
Prohibits all former Government employees from knowingly making, with the intent to influence, any communication to or appearance before an employee of any department, agency or court of the United States on behalf of any other person (except the United States) in connection with a particular matter involving a specific party or parties when the employee knows or reasonably should know that the matter was actually pending under his or her official responsibility during their last year of Government service.

18 U.S.C. 207(c). One-year restriction on communications with one’s former agency
For one year after service in a “senior” position terminates, no former “senior” employee may knowingly make, with the intent to influence, any communication to or appearance before an employee of a department or agency in which he/she served in any capacity during the one-year period prior to termination from “senior” service, if the communication or appearance is made on behalf of any other person (except the United States), in connection with any matter concerning which he/she seeks official action by the employee.

18 U.S.C. 207 (b) and (f) both have more to do with trade or treaty negotiations; while the FAA does get involved in some international work, I doubt they apply.

So that’s the legal prohibition on work- there’s a lifetime ban on matters someone was directly involved with, there’s a two-year ban on stuff that your agency was responsible for, and there’s a one-year ban on going back to your former agency on behalf of your clients.

What are the penalties for violating these provisions?

PENALTIES
(a) Whoever engages in conduct constituting an offense of 18 U.S.C. 207 shall be imprisoned for not more than one year or fined an amount not to exceed $50,000, or both.

(b) Whoever WILLFULLY engages in conduct constituting an offense of 18 U.S.C. 207 shall be imprisoned for not more than five years or fined an amount not to exceed $50,000 or both.

(c) The Attorney General may bring a civil action in the appropriate U.S. District Court against any person who engages in conduct constituting an offense under Section 207 of Title 18 and, upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. The imposition of such a civil penalty does not preclude any other criminal or civil statutory, common law or administrative remedy, which is available to the U.S. or any other person.

(d) If the Attorney General has reason to believe that a person is engaging in conduct constituting an offense under 18 U.S.C. 207, the Attorney General may petition an appropriate U.S. district court for an order prohibiting that person from engaging in such conduct. The filing of such a petition does not preclude any other criminal or civil statutory, common law or administrative remedy, which is available to the U.S. or any other person.

Now, let’s get down to brass tacks here. Do I think Bobby Sturgell is at any serious risk for what sure looks like a violation of these provisions? No, I don’t. Sadly, this is the reality in today’s Washington DC. Do I think anyone could convict him of bribery-related offenses other than these provisions above? Again, no, I don’t; no prove a bribery charge, you pretty much have to prove direct intent. While it might sure LOOK like bribery to a casual observer seeing the money involved and timeline, the reality is that without evidence of Rockwell going to Sturgell and saying “if you ensure that the FAA certifies our equipment we’ll give you a sweetheart job and a huge golden parachute”, you probably don’t have a case.

I am personally intrigued by the civil case provisions in the law. It’s a shame that only the Attorney General of the United States can bring that action; it’d be interesting if private citizens or groups were allowed to try those kinds of cases. The reason is simple- in a civil trial, the standard of proof is considerably different. It’s a “preponderance of the evidence” instead of “beyond a reasonable doubt”. This makes it much easier to prove, and I hope that the US Attorneys keep an eye on Sturgell (not to mention any/all former federal officials!) and pay attention to what projects they lobby for.

Sturgell is plainly not as smart or lucky as former FAA Administrator Marion Blakey. Blakey didn’t go to work for any one company; instead, she went to work for the overall trade group that covers a bunch of companies, meaning she’s not lobbying on behalf of any particular person or company that had business pending while she was Administrator. Sturgell, on the other hand, is now one of Rockwell’s chief lobbyists; the reality is that there ARE restrictions on his actions for Rockwell, and he’ll have to walk a narrower line with an Obama Administration-appointed US Attorney or three watching him.

But this whole thing should demonstrate to you just how differently the people at the top of the food chain live and think. To them, our outrage at something like this is silly, misplaced, and kind of cute- like when a child gets upset at the rules being different for adults than they are for kids.

To you or me, someone going from being in the top decision-making ranks at the FAA over several years, setting the agency on course to blow tens of billions on various technological products, and then going to work for the very companies that stand to rake in billions in profits on those same products… that seems outrageous.

To them, it’s just business as usual, and it demonstrates just what a disconnect there is between the top levels of the FAA and its workers. When you wonder “how on earth can they think that’s a good idea?”, well, now you know.

You do the math. At this level, it all too often becomes about money and power. The real question is “what can we do about it?”

The answer is simple- get involved. I’d prefer you do it with the Democrats, but heck, if you are motivated by the right things and go to fight the fight in the Republican Party, that’s fine too. This isn’t really a party issue as much as it’s a power issue- and we’ve got to force these guys, we’ve got to take back some of the power.

Support better candidates. Work for some. Write an email or a letter to your elected officials. Educate your neighbors. Talk to them about it. Print out this blog entry, maybe the one about Blakey’s AIA job, and share it with friends. Educate, get people involved, and work yourself into a spot where the people in power MUST listen to you.

It’s doable. We can have change; we just have to work for it and not expect it to be handed to us. Let’s take positive action and move forward, towards the America we deserve to have.