"Honesty is the Best Policy"
by
Charles M. Finkel, Esq.
I believe in preventative medicine. It is infinitely wiser to exercise, eat healthy foods, and refrain from drinking and smoking in the present, than to spend considerable time and sums of money in a doctor's office in the future, all the while suffering from some preventable physical ailment. This is a common sense policy. Likewise, it is much more prudent to be truthful at all times, than to risk credibility problems in the future. One need only look at the leader of our nation to glean how hedging the truth can harm reputation and believability. When President Clinton finally gets around to telling the nation what really happened with Monica Lewinsky, we may or not believe him. The problem is that because of past questions concerning the President's propensity for truthfulness, or lack thereof, people will always have uncertainties as to whether or not he is in fact being honest with the public.
Credibility is crucial in legal proceedings. A jury instruction standard in most courts says something to the effect of: "A witness who is untruthful in one part of his testimony, may be distrusted as to the remainder of his testimony." If a jury feels that a witness is intentionally untruthful, it is likely that witness' testimony will be given little, if any, weight. A good example of this was seen in a medical malpractice case I recently tried. The defense called a pediatric cardiologist to state, in effect, we had no case. A major issue in the case was whether a young boy died of hypertrophic cardiomyopathy, an enlarged and sick heart. On autopsy, microscopic tissue evaluation showed evidence of box car like nuclei, which are indicative of the enlarged heart. The defense witness testified at his deposition as to these box car nuclei, and even defined them. Yet at trial, he testified he had never heard of box car nuclei. This was the best thing that can happen for a cross-examining attorney, and opened the door for me to share with the jury, and the doctor, his prior testimony. His credibility was shot, as was the defense.
I am now involved in a case where the plaintiff was injured while loading luggage in the baggage compartment of a L-1011 jet. Had the accident never happened, and no claim made for compensation, the airline employer would have been none the wiser to a misrepresentation made on the employment application. Through testimony which was given by the employee in the worker's compensation action, it became known that he had two prior felony convictions. On the application, it is noted that he had none. He was terminated, not because of the felony convictions themselves, but for making misrepresentations on the applications.
Truthfulness with pilots is mandatory. There can be no room for doubt as to a pilot's credibility. As such, one of the top reasons for revocation of licenses is a violation of Federal Aviation Regulation 61.59, which states in pertinent part:
- "No person may make or cause to be made:
- Any fraudulent or intentionally false entry on any application for a certificate, rating, authorization, or duplicate thereof, issued under this part;
- Any fraudulent or intentionally false entry in any logbook, record, or report that is required to be kept, made, or used to show compliance with any requirement for the issuance or exercise of the privileges of any certificate, rating, or authorization under this part."
Airline Transport Pilots have an additional burden to uphold under FAR §61.153(c) - to be of good moral character. Lying and cheating are not indicative of good moral character, and thus ATPs risk losing it all when caught making misrepresentations. A story I relate most often on this point is that of a young flight instructor whose logbook was examined after a student had a mishap. The FAA inspector noted the CFI's logbook showed considerable time in a Cessna 421. The suspicious inspector determined that most of this time was fabricated, and revocation proceedings were brought. The CFI thought he could talk his way out of the misdoing, and represented himself at the administrative hearing. Needless to say, he lost, and was never again able to obtain his flying privileges.
I get many calls from pilots who ask how to deal with a situation where a misrepresentation was made in the past, most often on a medical certificate application, which is now coming back to haunt them. A common quandary is one in which the pilot does not mention a driving while intoxicated violation (DUI) on a medical application. Another situation which often arises is one where an applicant does not mention on the application a medical condition which might be potentially disqualifying.
For instance, one pilot recently called and stated he did not put on the last application for medical certificate the fact that he had a DUI infraction. I was asked what should be put on the application when he went for his upcoming physical. In another recent call, an airman stated he neglected to place on his application for 3rd Class Medical Certificate the fact that in the past he suffered an emotional disability for which he had taken medication. The question was whether he should now put it on the application when he renews his medical.
I am hesitant to give advice in this regard because it can be a Catch-22 predicament. If one doesn't say anything, the FAA may find about it later by way of motor vehicle or medical records. Then, it will be too late. On the other hand, if you bring it to their attention, you could be placing your head on the chopping block. Thus, legal advice on how to take remedial measures for past misrepresentations, is something I tend to avoid. My general advice to pilots facing this situation is to be honest. Continuing misrepresentations are harder to deal with. If one confesses to his errors and omissions, there is a better chance of providing a reasonable explanation as to the omission, and hopefully receiving leniency in return. That is, unless you are a gambler. Perhaps the FAA will never find out about a misrepresentation. But then again, perhaps they will. Is it worth the risk to take a chance? I believe honesty is the best policy, and so does the FAA.
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