| Review of: | Madison's Managers: Public Administration and the Constitution by Anthony M. Bertelli, Laurence E. Lynn, Jr. A Reasonable Public Servant: Constitutional Foundations of Administrative Conduct in the United States by Yong S. Lee, David H. Rosenbloom |
|---|---|
| Reviewed By: | Steven Cann |
| Reviewed in: | Public Administration Review |
| Date accepted online: | 02/11/2007 |
| Published in print: | Volume 67, Issue 04, Pages 780-782 |
Book Reviews: The Administrative State, the Exercise of Discretion, and the Constitution
Both of these books are about the exercise of discretion, albeit from different perspectives.
Both books begin with a discussion of what happens when the exercise of discretion goes awry. Anthony M. Bertelli and Laurence E. Lynn, Jr., remind us that citizens who have been adversely affected tend to take their complaints to elected representatives or interest groups with superior access to policy makers-or else to the courts. The result is, all too often, micromanagement (micro-mismanagement?) or injunctions, and the consequences of either are rarely "better public management and heightened trust in government" (2). The prescription is to recruit the "right" kind of people into public service in order to create a "repository of responsible legislative agents who will exercise discretion within the confines of the separation of powers" (164).
In the foreword to Yong S. Lee and David H. Rosenbloom's
Each book is concerned with the Constitution, but from different perspectives. The constitutional focus of
For Lee, the constitutional focus has to do with the concept of immunity from legal liability. The Supreme Court has created the concept of qualified immunity-that is, public employees and their employers are protected (immune) from lawsuits so long as the exercise of discretion comports with the Constitution (or what the Court says the Constitution says). Public employees, and sometimes their employers, lose that immunity when actions fall outside constitutional mandates. Lee is concerned that there is widespread ignorance among public employees regarding where that line is.
More than a decade ago, Robert Reich (1994), former secretary of labor and now an economics professor, argued that volumes had been written about making judicial review compatible with democracy, but very little had been written about making the administrative state compatible with democracy.
As with any broad theoretical piece, there are certain assumptions that a reader must accept before adopting the theory. With
Bertelli and Lynn argue that the early public administration literature had it right. "The serious study and practice of public administration originated in the efforts of educated, bourgeois reformers to replace administration that was ...no better than 'a convenient tool for the spoilsman,' with something more professional and democratic" (18). They posit that a good deal of that early literature searched for a legitimate role for public administration within a constitutional scheme. Moreover, they argue that the early literature had a Madisonian ring to it, as much of it was concerned with perfecting the institutions that control factions on behalf of the "public interest" (16). Bertelli and Lynn go on to argue that the subsequent behaviorist literature, which was critical of the early writings, was misguided, and current public administration literature, with its emphasis on best practices is also misguided, as it is not grounded in the Constitution and is ignorant of administrative law.
Bertelli and Lynn's volume intends to establish a precept of managerial accountability. It does this primarily through an extensive and exhaustive review of the literature in the areas of public administration that influence the precept. This is a highly theoretical work. The precept dictates that when legislative power is delegated, discretion should be exercised with the following axioms derived from the literature: judgment, balance, rationality, and accountability.
Because the separation of powers is central to the precept, Bertelli and Lynn criticize current public administration literature for its neglect of administrative law. In chapter 4, they discuss administrative law as it relates to the fit between constitutional constraints and the precept.
How the system will produce public managers who will exercise discretion according to the precept is the focus of the final three chapters of the book. The personnel system is the basic mechanism for ensuring that those who receive legislative delegations possess the proper characteristics to exercise discretion in a constitutional sense. The personnel system should also work to ensure that the "right" kinds of people are attracted to public service. To appreciate how all of this will work, the reader needs some familiarity with social choice theory and game theory. Those who have difficulty with the assumptions of social choice and game theory will probably remain skeptical regarding the precept.
Whether or not one buys in to the highly theoretical assumptions, this book is a passionate argument for democratizing the administrative state. The argument needs to be heard in the academies in which public administrators are trained. By way of a recent example of how the administrative state can take on a life of its own that is not consistent with democracy, consider the case of ergonomics. For years, labor and progressive groups pressured the Occupational Safety and Health Administration (OSHA) and the U.S. Department of Labor to promulgate rules regarding the prevention of repetitive stress injury in the workplace. Business groups lobbied just as hard in the opposite direction. Finally, near the end of the Bill Clinton administration, OSHA promulgated such rules, which were expected to be the most costly in the agency's history. The Republican majorities in Congress, apprehensive of a Clinton veto, bided their time until a more sympathetic occupant of the White House was sworn into office in January 2001. The Republicans passed a congressional review bill that forbade OSHA from regulatory activity in the field of repetitive stress injury, and President George W. Bush signed it into law. Apparently undaunted by this flurry of legislative activity, OSHA adopted, without Administrative Procedure Act hearings, "voluntary" rules and, by 2005, had conducted thousands of inspections and issued citations for violations of the voluntary regulations (Morgan 2004). Someone needs a good dose of Bertelli and Lynn's
By way of contrast, Lee and Rosenbloom's
The U.S. Supreme Court, by common law (
However, the Supreme Court has created qualified immunity for individual public employees (but not local agencies) who commit constitutional torts. If a public employee commits an act that violates a citizen's constitutional or civil rights, the employee might not be liable if he or she acted without malice or if the employee did not know nor should not have known that his or her actions would violate a citizen's rights. Notice that the second prong of the test implies a certain element of knowledge about the Constitution and civil rights. In such a case, a judge instructing a jury about whether the employee "should have known" would not be unreasonable in telling jurors that they could assume anyone with master of public administration degree and limited administrative experience "should have known." The problem is, of course, that although the judge might not be unreasonable in his or her assumptions, the judge would almost certainly be wrong. Most public administrators, unless they have gone out of their way to get it, probably do not "know"-but certainly should be expected to "know"-and that knowledge is the essence of
What follows is a partial listing of areas of law of which a mid-level manager should have a working knowledge-and will gain a better understanding of from reading this book:
Liberty interests and property interests under due process of law
How much process is due in an internal due process hearing
Intersection between the two items above and employee termination and discipline
What kinds of public employee speech are protected
Citizen and public employee interests in privacy
Citizen interests in privacy involving information about them (this involves Fourth Amendment law)
Citizen and public employee expectations of privacy, generally and in the workplace
Searches or inspections based on suspicion versus the special needs doctrine
First Amendment rights of students in public schools
Privacy rights of students in public schools
Three-tiered analysis of equal protection
Racial discrimination
Gender discrimination
Age discrimination
Discrimination based on other socioeconomic characteristics
Sexual harassment
Affirmative action-not just based on race but also on gender and other criteria
Americans with Disabilities Act
Only through a basic understanding of public law can public employees protect themselves from their employers and avoid committing simple mistakes in the exercise of discretion that could lead to a lawsuit. Lee and Rosenbloom warn that "it is not enough ...that the public agency hires a legal counsel to represent it in court .... Those in nonhierarchical positions ...must also have a good working knowledge of constitutional and statutory rights. The reasonable public servant at all levels must keep abreast of the ever-changing constitutional law and integrate the relevant principles to his or her job performance" (240).