The Jan. 22 and Jan. 31 letters between American Traffic Solutions and the U.S. Postal Service regarding unpaid traffic infractions by mail carriers in East Cleveland, Ohio.
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January 31, 2013 VIA FEDERAL EXPRESS AND FACSIMILE: (215) 351-3852 Ms. Jennifer Breslin Senior Litigation Counsel United States Postal Service Eastern Area Law Office 3190 South 70 th Street Philadelphia, Pennsylvania 19153 RE: Automated Traffic Control Violation Notices Nos.: 2181200882419, 2181200882724, 2181200882930, 2181200888705, 2181300000276, 2181200858856, and 2181200856231 Dear Ms. Breslin: Please accept this letter in response to your correspondence dated January 22, 2013, wherein you addressed several traffic citations United States Postal Service (“USPS”) employees(s) received while in the course of performing their job duties in the City of East Cleveland, Ohio. To begin, we must admit our surprise upon reading your letter. Please understand that as a photo traffic safety company we have grown accustomed to receiving letters from citizens and entities asserting traffic laws do not apply to them. However, we never expected to receive such a letter from the USPS. The crux of your argument appears to be that due to its status as an “independent establishment of the executive branch of the Government of the United States” the USPS and all its drivers are rendered virtually untouchable by state and local laws. Unfortunately for the USPS, this proposition is completely contrary to the case law, is in direct conflict with the instructions set forth in the Postal Employee’s Guide to Safety Manual, and contradicts other instances where the USPS has paid similar photo enforcement violations. Although the United States government is free from state regulation in the absence of congressional mandate to the contrary, Hancock v. Train, 426 U.S. 167, 178–81 (1976), the USPS's immunity does not shield its employees from civil fines for violations of statutes, regulations, or ordinances relating to the safe operation of motor vehicles. See Commonwealth of Virginia v. Stiff, 144 F.Supp. 169 (W.D. Va. 1956); State of Oklahoma v. Willingham, 143 F.Supp. 445 (E.D. Okla. 1956). In Commonwealth v. Closson, the court held that the driver of a vehicle transporting United States mail is not exempt from the operation of state statutes and municipal ordinances regulating traffic on the highways. 229 Mass. 329, 118 N.E. 653, (1918). Thus, a fine for a violation committed while using a government vehicle is the personal responsibility of an employee. Here, the East Cleveland ordinance establishing its photo enforcement program imposes liability for red-light violations on the owner of the vehicle. East Cleveland Ordinance No. 07-06, Section 1(c)(1). Pursuant to the statute, the owner of the vehicle may transfer liability to the Letter to Jennifer S. Breslin January 31, 2013 Page 2 operator of the vehicle by providing an affidavit identifying the operator. East Cleveland Ordinance No. 07-06, Section 1(c)(4)i. Rather than asserting immunity and demonstrating to its employees and the public that USPS postal carriers can drive recklessly without penalty, the USPS would be better served to simply transfer liability to the driver committing the violation so that the employee may take personal responsibility, as the City of East Cleveland ordinance contemplates. Furthermore, such a course of action is consistent with the Postal Employee’s Guide to Safety Manual (“Employee Safety Guide”) (http://www.nalc.org/depart/cau/pdf/manuals/EL- 814%20(2006-Aug).pdf), presumably issued to all postal service employees, which states that employees must “obey all state and local traffic laws when driving any Postal Service vehicle.” Employees “will receive no special privileges or rights as a postal driver.” The Employee Safety Guide clearly makes “citations for traffic violations” the personal responsibility of the employee. See Employee Safety Guide, Section X, Motor Vehicles, Section B. It is disturbing, to say the least, to think that the USPS would not only permit, but actually assist its employees to avoid personal responsibility by attempting to shield them with an assertion of USPS immunity rather than transferring liability to them so that they can be held personally responsible for their poor driving. It’s evident that the case law is settled on the side of liability for traffic infractions, and the Employee Safety Guide imposes personal responsibility for civil infractions on each and every USPS employee. Yet, you as counsel for the USPS, write to us to inform us that instead, the USPS is only obligated to “work within local and state laws and regulations, when feasible.” Surely you are not arguing that the drafters of the statutory language envisioned carving out protection for the irresponsible and dangerous driving habits of USPS drivers. Finally, please allow me to remind you of just a few examples where the driving and non-driving habits of various USPS carriers resulted in well publicized legal consequences which were found to be in conflict with USPS’ mission “of providing prompt, reliable and efficient mail services to all communities…” My first example is out of New Mexico, where a USPS truck rolled over after colliding with another vehicle. The driver was cited for running a red-light at the intersection and causing the accident. Our second example is from Massachusetts, where a USPS truck driver was cited with failure to yield for a bicyclist after he struck a four-year old girl on a bicycle. In Wisconsin, a USPS truck driver was cited for operating a vehicle while intoxicated on the job. My last and favorite example is of the USPS truck driver delivering mail while naked. He was arrested for lewd and lascivious behavior. The tickets you disclaimed liability for in your January 22, 2013 letter were received by the USPS for its driver(s) running red-lights as well as speeding in school zones. By attempting to hide behind an immunity claim, you are aiding and abetting your drivers in their blatant disregard for the traffic laws in East Cleveland, which have endangered other drivers, pedestrians and school children. We suggest that you transfer the liability for the infractions to the USPS drivers who incurred them, and instruct them that pursuant to Ohio law, as well as the USPS guidelines, the infractions are their responsibility. If you choose to ignore the infractions, penalties and fines will continue to accumulate. Letter to Jennifer S. Breslin January 31, 2013 Page 3 In closing, in light of your immunity assertion, we have taken the liberty of crafting a revised version of the Post Office Creed: Neither snow, nor rain, nor heat, nor gloom of night, nor traffic lights stays these couriers from the swift completion of their appointed rounds. Sincerely, American Traffic Solutions, Inc. George J. Hittner General Counsel and Corporate Secretary Cc: Mr. Patrick Donahoe Postmaster General and Chief Executive Officer United States Postal Service The Honorable Tom Carper Chairman, Committee on Homeland Security and Governmental Affairs United States Senate The Honorable Tom Coburn Ranking Member, Committee on Homeland Security and Governmental Affairs United States Senate The Honorable Darrell Issa Chairman, Committee on Oversight and Government Reform House of Representatives The Honorable Elijah Cummings Ranking Member, Committee on Oversight and Government Reform House of Representatives City of East Cleveland 14340 Euclid Ave East Cleveland, OH 44112 DECLARATION/AFFIDAVIT Document Number: 2181200882419 Date Created: 1/24/2013 10:28:50 AM 1/25/2013 9:35:13 AM Page 1 of 2 Received On: 112412013 By: KFIELDS EASTERN AREA LAW OFFICE PHILADELPHIA, PA ,0 UNITEDSTL1TES POSTL1L SERVICE January 22,2013 City Of East Cleveland Automated Traffic Control Violation System P.O. Box 742503 Cincinnati, OH 45274-2503 City of East Cleveland Automated Traffic Control Violation System P.O. Box 22091 Tempe, AZ 85285-2091 RE: Automated Traffic Control Violation Notice Notice Nos.: 2181200882419 2181200882724 2181200882930 2181200888705 2181300000276 2181200858856 2181200856231 To Whom It May Concern: Please accept this letter in response to your Notice of Liability sent to the United States Postal Service facility at 1801 Broadway Avenue, Cleveland, OH 44101- 9000, seeking payment of the above-referenced citation. As an initial matter, you should know that the United States Postal Service is proud to serve the many thousands of communities across the country, including those in Cleveland, Ohio. With over 27,500 post offices delivering well over 200 billion pieces of mail annually, the Postal Service continues to meet its mission of providing prompt, reliable, and efficient mail services to all communities, as it has done for over two centuries. In providing mail service across the country, the Postal Service attempts to work within local and state laws and regulations, when feasible. However, as you are probably aware, the Postal Service enjoys federal immunity from state and local regulation. The Constitution of the United States authorizes Congress to establish Post Offices and in 1775 the first Post Offices were founded. U.S. Canst. art. I §8, cl.7. In 1971, Congress enacted the Postal Reorganization Act ("PRA") which established the United States Postal Service as an "independent establishment of the executive 3190 SOUTH 70 TH STREET PHILADELPHIA, PA 19153 VOICE: FAX: 215-351-3852 City of East Cleveland 14340 Euclid Ave East Cleveland, OH 44112 DECLARATION/AFFIDAVIT Document Number: 2181200882419 Date Created: 1/24/2013 10:28:50 AM 1/25/2013 9:35:13 AM Page 2 of 2 Received On: 112412013 By: KFIELDS -2- branch of the Government of the United States." 39 U.S.C. §201. The Postal Service requires its employees to obey all traffic laws and rules while operating Postal Service vehicles and while operating a self-owned vehicle while conducting Postal Service business activities. However, the state and/or local ordinances imposing penalties and fines cannot be enforced as against the Postal Service, and there is no statutory basis for doing so. Accordingly, the Postal Service will not pay the civil penalties assessed against it in the above-referenced Notices of Liability. Should you have any questions or wish to discuss, please do not hesitate to contact me. Thank you for your attention to this matter. Respectfully, JENNIFER S. BRESLIN Senior Litigation Counsel Eastern Area Law Office 3190 South 70 th Street Philadelphia, PA 19153 (215) 351-3840 cc: Jill Miniard Mark V. James Z\ \ '2-0 0