Violation of State Law? : New Plan for Airport Security May Not Fly

A controversial plan by John Wayne Airport officials to require a security background check of airport workers and private pilots may be in violation of state law.

“It is questionably constitutional and a real intrusion on a person’s right to privacy,” said Scott Raphael, a Newport Beach attorney with the Orange County Airport Assn., which represents private pilots and aircraft service companies.

The plan, which also would require about 3,000 private pilots, service company employees and airport workers to carry photo-identification badges to enter John Wayne airfield space from public areas, is under study by the county counsel’s office, airport spokesman Alan Murphy said.

“We weren’t specifically aware of this (apparent conflict with state law),” Murphy said. “The plan is still in the formative stage. Once we receive an opinion from the county counsel, we’ll make any modifications necessary to meet state or federal requirements.”

The security move was prompted in part by a rule proposed last month by the Federal Aviation Administration. It calls for 269 airports around the country to install a computer-controlled card system on doors and gates leading to secure areas, FAA spokeswoman Elly Brekke said.

The public has until May 2 to comment on the rule before the FAA takes final action.

But the background security checks proposed at John Wayne Airport would not be required by the FAA rule. “That appears to be over and above what we are requiring,” said Fred Farrar, an FAA spokesman in Washington.

Background security checks on airport workers and private pilots also are not now allowed under California law, according to an interpretation of the penal code by Los Angeles International Airport officials. An exception, required by the FAA, exists only for airport personnel doing security work, officials said.

“In the past, we have requested that some exemption be made to permit background checks on employees with access to the airfield,” said Virginia Black, a spokeswoman for Los Angeles International Airport, “but right now they are not permissible in the state of California.”

State Penal Code 13300 prohibits any criminal justice agency from supplying information from background checks to anyone except those on a state list, she said. “According to our attorney, airport employers are not on that list,” Black said.

A bill introduced in the Assembly in February by Curtis Tucker (D--Inglewood) would, if enacted, exempt airports, airlines and other airport employers from that state law. The bill would require those employers to check all airport personnel with the state Department of Justice for any criminal history.

Under the John Wayne Airport plan, private pilots and airport workers would be issued badges about the size of a credit card only after a security check by the Orange County Sheriff’s Department, said Bill Pemberton, airport facilities officer.

Aircraft service employees, such as those at Martin Aviation, would receive the key cards after their employer guaranteed that a background check covering the past five years had been completed, Pemberton said.

At first, the cards would have only a name and a serial number and would be different colors to control access to certain secure areas of the airport, he said. The photographs would be added sometime in 1990, he said.

Airport officials would begin issuing the new cards late this summer if the plan gains final approval, according to Pemberton.

Private pilots arriving from other airports would gain access to John Wayne through the service operators who refuel and maintain the planes, Pemberton said.

Any security plan adopted by John Wayne Airport must be approved by the FAA under its proposed rule, said Brekke, an FAA spokeswoman in Los Angeles.

The security-card proposal is the latest in a series of moves by the FAA to tighten airport security following the disaster that occurred last December when a disgruntled former USAir employee smuggled a gun onto a flight from Los Angeles International Airport.

According to the FBI, David A. Burke shot the PSA pilot, and all 43 people on board died in the ensuing crash.

“This has a lot to do with Mr. Burke,” Farrar said. “Although he is not named, the incident is mentioned in the proposed rule.”

The 269 airports that would be affected by the order are the source of 95% of airline passenger traffic, Brekke said. Following FAA review of public comment on the rule, final action on the proposal could take “30 to 90 days,” Brekke said. “It depends on how controversial the comments are.”

Raphael, the attorney representing private pilots, said the FAA proposal “does not have to be the Draconian hatchet job” that John Wayne Airport officials propose.

“I don’t know where this started,” he said. “They are coming up with some overreacting, elaborate scheme to solve a problem that does not exist and that is not required by any interpretation of the (FAA) proposal.”