From: LandLineNow: Checklist Fatigue: A Follow-up
E-mail indicates that some Minnesota officials are trying to hide checklist from truckers, media – and state lawmakers
Few things have generated quite the level of controversy in the trucking industry as the Fatigued Driving Evaluation Checklist.
The checklist is a project promoted by an officer of the Minnesota State Patrol, a list of apparently arbitrary questions that officers say determine whether a trucker is fatigued.
After our initial reports on the topic, truckers and state lawmakers began to inquire about the list. And many were not pleased.
Now, a memo has been sent from the e-mail account of an officer in the Commercial Vehicle Enforcement Division of the Minnesota State Patrol. In the memo, other enforcement officers are told to keep quiet about the checklist, even when they’re using it, even to the trucker they’re using it on.
OOIDA obtained a copy of the e-mail from an anonymous, but reliable source. It was sent from the e-mail account of Lt. Steve Lubbert.
The memo reads as follows:
“Due to much publicity, both on a local and national level, several inquiries are being made about our fatigue report by the State Legislature, news media, etc.
“We as an organization do not want to damage what we have worked so hard to accomplish. Please use your interviewing skills to determine if the driver is fatigued.
“I ask that you do not tell the drivers that you need to fill out a checklist (worksheet), that you are taking a survey or any other statements that you use to reference the report.
“The report is for you to use to document what you observed; statements made by the driver; notes for you to reference to about the event; and as a guide to gather the various indicators from different areas on the report.”
The e-mail went on to say that enforcement officials with questions contact Lt. Thooft or Lt. Lubbert, listed as the author of the e-mail, if they had any questions about the report or the way they are using it.
Lt. Doug Thooft is listed on the State Patrol Web site as the contact person for commercial vehicle enforcement at Station 4710, the part of the State Patrol that covers the far southeastern portion of the state.
Lt. Lubbert’s e-mail also included a new version of the report. The report appears the same, with a listing of question topics divided into six categories, and with a box next to each question topic for a checkmark.
However, the title has been changed. Instead of “Fatigued Driver Evaluation Checklist,” it now says “Fatigued Driver Evaluation Report.”
A few questions have been removed – for example, the presence of reading materials such as newspapers, magazines and books, or whether the berth qualified as a sleeper.
Several new categories have been added, such as financial worries and presence of an out-of-service violation. The financial worries were not originally on the Minnesota checklist, but were on the Indiana version.
The memo raises several concerns. In the document, an official with a state agency is asking his officers to conceal from members of the public the rules that his agency will enforce on them.
That’s something that Doug Morris says should not happen.
Morris now works on the OOIDA staff, dealing with security matters. But before that, he was a commander with the Maryland State Police, spending several years in the traffic safety division, and then spending 10 to 12 years in commercial vehicle enforcement, including a stint as commander of the Commercial Vehicle Enforcement Division.
Morris states with some pride that Maryland is one of the premiere law-enforcement agencies when it comes to commercial vehicle enforcement.
He says an enforcement agency should never hide the rules from the public who’s called up to obey them.
“Absolutely not,” Morris said. “It should be transparent in every way and form. And it shouldn’t be used for either ridicule or to bolster the system. … This other thing, it’s just bizarre.”
Joe Rajkovacz now serves as a regulatory affairs specialist with OOIDA. However, he is also a former law-enforcement officer. He says hiding the checklist and its contents from the public doesn’t make sense in terms of the mission of law enforcement.
“The law-enforcement community is here to protect and serve the public,” he said. “They take constitutional oaths to protect and uphold the constitution.
“If they’re actually targeting enforcement toward a particular behavior, it would seem to me that the logical thing to do is to communicate that this is what you’re doing,” Rajkovacz added. “You would want to have people know what’s going on and what behaviors they should avoid in order to not run afoul of the law. It’s as simple as that.
“If people know that something is going to be enforced, they have a real disincentive to engage in that sort of behavior,” he said. “The problem here is, as we’ve said, this is so subjective that … we’ve seen folks that have literally just woken up from being off duty 10 hours, and they’ve been put back out of service for 10 hours.”
Another concern is whether a state agency should attempt – in part, because of inquiries by the state Legislature – to in essence hide their processes from members of that Legislature.
At least one member of that body has inquired. Minnesota state Rep. Andy Welti, a member of the House Transportation Finance and Policy Committee and the Transportation and Transit Policy and Oversight Committee, indicated to Land Line Now that he is working to schedule a meeting with the directors of the Minnesota State Patrol to discuss the list.
He’s also informed the chairs of the two transportation committees he sits on about the list, and the interview process it’s part of.
In an e-mail to an OOIDA member, Rep. Welti said, “It is my goal to get the agency to modify the checklist. If they do not agree, I may introduce legislation to force them to change the checklist.”
Doug Morris says acting to hide something from the Legislature is entirely inappropriate.
“It’s bizarre,” he said. “I mean, if this happened at the agency I came from, I would have been transferred pretty quick. I would be at the quartermaster counting paperclips.
“The state Legislature usually holds the purse strings; I’m sure their superintendent or the chief of the police is probably questioning this document as we speak.”
However, the big question some have in the wake of the memo is, why would Minnesota enforcement officials try to stop officers from discussing the interview process and the checklist that goes with it?
We tried to get in touch with the officer listed as the author of the e-mail, Lt. Lubbert, and with Capt. Ken Urquhart, who heads the Commercial Vehicle Enforcement Division, to ask them about the e-mail. However, we were unable to get through to them by the deadline for this story, despite several attempts.
Rajkovacz offered his own explanation as to why the agency – or one of its officials – might send out a memo of this type.
“I think that the pressure that we have brought to bear has caused them to do a little soul searching,” he said.
“Could it be guilt? That knowing that what you’re doing isn’t right?” Rajkovacz added. “That’s why you would do something like this. That’s why you would want to go and hide in the darkness instead of in broad daylight.”
And in fact, that very scenario – pressure causing action by the state – has played out elsewhere.
Indiana created its own version of the Fatigued Driving Evaluation Checklist, and had used its version of the list differently.
While Minnesota focused on putting drivers out of service, Indiana had encouraged its enforcement officers to cite truckers under local ordinances, often resulting in fines of $150 or more.
Now, the state has told its officers to stop using the checklist. Maj. Thomas Melville of the Indiana State Police discussed the decision recently with Land Line Now’s Reed Black.
Black: Again, just to reiterate what you said, what happened: Why did you quit using the checklist?
Melville: Well, the state of Indiana and Minnesota took quite a beating over the past two or three months over some of the terminology that was on the checklist. So Indiana chose to just disregard using the checklist. We are still doing fatigued driving enforcement, and we will continue to do that. But we just chose not to use the checklist.
BLACK: And when you say ‘took a beating,’ what do you mean? By the media, by politicians, by your own department?
MELVILLE: We took a beating from the independent operators. And some companies called us and talked about it. Once we explained how we did it, they did not have a particular issue to the checklist. But the independent truck drivers did. So, we thought it was in the best interest just to disregard the checklist and continue enforcement.
BLACK: And so your enforcement now consists of what I presume it always did, if a trucker appears to be fatigued, then you try to ascertain whether that is the case using means other than the checklist.
MELVILLE: That’s correct. Yes. I mean, some of the things we still check are things that were on the checklist, it’s just that we don’t provide the checklist for folks anymore. They will have to document individually the things that they determine are factors in the fatigue, whether it be, you know, explaining what the driver did on his off time and the fact that he did not get any sleep, or got just a few hours sleep; his driving behavior, the violations that the officer might see on the vehicle going down the road – just a combination of things.
While Indiana has dropped the use of their list, Minnesota has apparently responded to pressure a different way. In addition to asking officers not to discuss the list, enforcement officers have also changed it.
Instead of a “checklist,” the list is now called a “report.” Several items were dropped from the list; others were added.
However, Tom Weakley, director of operations at the OOIDA Foundation, says the changes don’t change the problems he has with the process.
“Absolutely not,” he said. “Certainly they’ve looked at some things, I guess, and made some modifications.”
However, Weakley stressed that he doesn’t “know what the rest of the checklist is even based on.”
“Unfortunately, the letter … indicated that what they want them to do basically is not tell them about the checklist, not to show them the form, not to have that with them, he said. “Rather than examining the whole concept of what they’re doing, they’re just looking at this as if this is their problem, this checklist.
“That’s not the problem,” Weakley said. “That was never the problem.
“The problem is, it’s based completely on subjective thought, or subjective opinion, it’s not based on any objective … type of measurement,” he added. “To me, it’s just another one of those, ‘let’s try to get around the criticism,’ without actually changing the process, which needs to be changed.”
OOIDA’s Joe Rajkovacz agrees.
“What they’ve done is wordsmith,” he said. “It’s laughable. OK, instead of checklist, we call it report. You say ‘tomato,’ I say ‘to-mah-toe.’ This is what we’re talking about … simply trying to pick very innocuous words to try and minimize what’s really going on.
“But the fact of the matter is the officers use this report, this checklist to follow their interview process,” Rajkovacz added. “They have an interview process, and this is what’s teeing it up. This is what they’re asking.
“Based on your responses, or lack of – I mean, if you haven’t showered, he’s going to check you off anyhow – you’re screwed.”
Rajkovacz went on to say that the list doesn’t even address the problem it’s trying to – violations of the federal regulation involved.
Doug Morris says that ultimately, if officers are going to question a trucker with the intent that the interview will lead to a ticket, citation or other law-enforcement action, officers need to do what federal courts long demanded.
“Well, if it’s going to lead to any type of enforcement action, they should read them their Miranda rights,” he said. “I mean, looking at this checklist, they’ve already pre-determined that these guys are fatigued. It’s not a ‘driver evaluation report,’ it’s a ‘fatigued driver evaluation report.’ So once they start questioning you, they’re trying to find you as a fatigued driver. And cite you or put you out of service for that.”
OOIDA officials continue to object to the use of a checklist as a measure of fatigue, or its use to put truckers out of service.
The Association has long contended that if objective measures of fatigue are present – such as weaving in and out of traffic, erratic driving or other actions in traffic that can be observed and quantified – then the trucker should stop and get the necessary rest to drive safely.
However, OOIDA officials do not think that kind of objective measure translates into the checklist.
Shortly after our initial coverage of the fatigued driving evaluation checklist, Joe Rajkovacz announced on Sirius-XM that OOIDA intended to take court action to stop use of the checklist.
He says the changes made by Minnesota have not satisfied the Association’s concerns, and OOIDA will move forward as planned.
--by Mark H. Reddig, host, Land Line Now
EDITOR’S NOTE: If you have been put out of service in Minnesota using the checklist, or put out of service after a series of questions or a survey there, we encourage you to call OOIDA. Dial 1-800-444-5791, and ask for the compliance department. Again, that’s 1-800-444-5791.
