State and Local Legal Blog

Personal views & “I know better”

September 30, 2009
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While there are many things that may affect policy implementation and administration, the two most often seen in public administration are (1) the inability to subordinate personal (ethical) views and (2) the “I know better” syndrome.

In the first — personal views — a public employee may find personal difficulty in laying aside his or her personal convictions.  We all have personal convictions; that is a good thing.  But when personal convictions, values and attitudes of the public employee tasked with policy implementation, administration and regulatory oversight interfere with, impede or nullify the articulated purpose of the law or the articulated purpose of the policy-makers, personal conviction has gone too far.  It must be reigned in.  Personal views must be subordinated to the purpose of the policy-maker.  If a public employee cannot do that, he or she should ask to be relieved of this duty and reassigned, or he or she should leave the post.

The second — the “I know better” syndrome — is common among experienced administrators, particularly those who have been at a particular agency for a long period of time or those who are authorities in the field of their labors.  They are specialists!  But policy-makers are, at their best, generalists.  So their decisions are ripe to be second-guessed by specialists.  When the articulated purpose of the law or the articulated purpose of the policy-makers is being second-guessed and manipulated because the public employee knows better, administrative competence has gone too far.  It, too, must be reigned in.

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“…in His own image….”

September 29, 2009
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The Bible reflects in Genesis that when God created man, he did so “in His own image.”  I can’t speak to why God did that, but I can speak to the fact that many people in public service who find themselves in a position of policy implementation believe that they “know best.”  (I can assure you, I did!)  So the tendency is to take the legislation, proclamation, or legal opinion, and apply it in the way that he or she knows will work best — in his or her own image — in his or her own view of the world.

And that decision is an absolutely erroneous one.

Public employees charged with the implementation and administration of policies and laws should do so as equitably, efficiently and economically as possible.  But not in their own image.  They are responsible for implementing the policy as the legislature, the executive or the court saw it.

Public employees, for the most part, understand it.  But there are two general areas of friction — pitfalls, if you will, that deter public employees from appropriate policy implementation and administration.  We’ll discuss those tomorrow.


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Who is responsible for policy formulation?

September 28, 2009
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Elected officials are accountable to the public, and they “make laws” — they legislate (Congress, state legislators, local boards), they establish orders and treaties (the President, governors and mayors), and they express law through case decisions (the Supreme Court, the federal court system, various state and local courts and various “executive” adjudicatory systems).  But it is there that their job ends.

And it is there that the enormous responsibility for implementation begins.

Public servants are often tasked with developing programs which will serve to implement great policy initiatives.  And often the officials who “make laws” provide very little guidance as to how that’s done — except a budget.

Public employees are responsible for policy formulation.  But they must always respect the fact that they are not policy makers.  And as such, they must do their best to follow the articulated and tacit directions of the policy makers. They must not re-shape policy in “their own image”.


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Safeguarding the Public Interest: policy formulation

September 28, 2009
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Jacobson’s 1st principle is safeguarding the public trust.  One of the fundamental areas of tension in safeguarding the public interest comes in policy formulation and implementation.  The workings of a democratic government — the “real” workings, where the rubber meets the road — does not come from legislation, Executive Orders or case law.  The workings of a democratic government “applies” what the Executive, the legislature and the courts express; that’s done via policy.

Who formulates policy?  I can assure you that the president, the legislature and the courts do not.  They may express policy opinions, but they do not formulate policy.  That task is left to the “implementers” — public servants.

Public servants are tasked with interpreting expressions of policy(express or tacit), implementing that policy, and pursuing the goals of the policy as expressed by the policy-makers or law makers.  The effectiveness of all “governing” actions in a democratic society revolves around whether laws and policies are implemented, and how.

Remember the Cherokee Nation of Georgia in the Jacksonian Era?  Instead of “fighting” the US with bows and arrows, the Cherokee Nation took their “land fight” to court.  And the United States Supreme Court authorized them to remain on the land ceded to them in Georgia by treaty.  And what was Old Hickory’s response?  “The Court has made its decision; now let them enforce it.”  And the Cherokee Nation joined the trail of tears and is now principally an Oklahoma tribe.

During the course of this week, we will talk about policy implementation, the impact of personal views on policy expressions, and how public servants are faced with — and deal with — policy disagreements.  Stay tuned!


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Principles of Public Service Ethics 5

September 25, 2009
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The final principle established by Josephson is:  Show respectability and fitness for office.  Josephson identifies the supporting standards as follows:

Standard I:  Suitability for public office.  “Public employees should conduct their professional and personal lives so as to reveal character traits, attitudes and judgments that are worthy of honor and respect and demonstrate suitability for public office.”

Standard II:  Ensuring public respect.  “In treating their office as a public trust, public servants should act so as to ensure the reality and perception that government is conducted according tot he highest principles of democracy with honesty, integrity and a concern for justice that is, therefore, worthy of respect, trust and support.”

During the last week of September 2009, we will begin to consider these principles and standards in depth.


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Principles of Public Service Ethics 4

September 24, 2009
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Josephson denominates principle four as:  Lead with Citizenship.  “Public employees should honor and respect the principles and spirit of representative democracy and set a positive example of good citizenship by scrupulously observing the letter and spirit of laws and rules.”

Supporting this principle are the following standards:

Standard I:  Obeying all laws.  “Public employees have a special obligation to obey all laws and regulations.”

Standard II:  Artifices and Schemes.  “Public employees should not engage in artifices and schemes to emploit loopholes or ambiguities in the law in a way that undermines their spirit and purpose.”

Standard III:  Integrity of the process.  “In using procedural rules, public employees should maintain the integrity, fairness and efficiency of the process by honoring the substance and spirit of the rules and by refraining from conduct which undermines the principles of representative democracy.”

Standard IV:  Civil Disobedience.  “In rare cases, a public employee may exercise the prerogative of conscientious objection by disobeying the law.  In such cases, the illegal behavior should be open and the official should be willing to bear the appropriate legal and political consequences.”


Principles of Public Service Ethics 3

September 23, 2009
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Josephson designates the third principal:  Be publicly accountable.

Supporting this principle, Josephson establishes five standards.

Standard I:  Oversight.  “Public employees should assure that those to whom they have delegated public power, including their staffs and administrative agencies, carry out their responsibilities efficiently, equitably and ethically.”

Standard II:  Openness.  “Public employees should exercise the authority of their offices openly so that the public is informed about governmental decisions and the citizenry can hold them accountable for their actions.”  Today the buzz-word is transparency.

Standard III:  Duty to Improve the System.  “Public employees who believe that a law or policy is not achieving its intended purpose, is creating unintended harms, or is wasteful or inefficient, should take affirmative steps to improve procedures in a way that will increase the fairness and quality of government services and assure that policies are implemented equitably, efficiently and economically.”

Standard IV:  Self-Policing.  “Public employees should maintain the integrity and trustworthiness of government by taking whatever steps are necessary, including reporting improper conduct to appropriate authorities, to prevent the unlawful or unethical use of public position, authority or resources.”

Standard V:  Whistleblowing and leaking.  “Public employees, having the “good faith” believe that the public interest requires the disclosure of governmental policies or actions thought to be unlawful or improper, should reveal their information to appropriate authorities.”


Principles of Public Service Ethics 2

September 22, 2009
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Josephson establishes the second principle:

Principle 2:  Use independent, objective judgment. “Public employees should employ independent, objective judgment in performing their duties, deciding all matters on the merits, free from conflicts of interest and both real and apparent improper influences.”

Josephson has established 4 standards under this principle:

Standard I:  Conflicts of Interest.  “Public employees should safeguard their ability to make independent, objective, fair and impartial judgments by scrupulously avoiding financial, social and political relationships and transactions which may compromise or give the appearance of compromising their objectivity, independence or honesty.  Conflict of interest may be one of the most misunderstood concepts that public servants deal with;  while they are quick to find conflicts in the actions of others, they seldom turn the microscope on themselves. Conflict of interest will be studied in detail in weeks to come.

Standard II:  Recusal and disqualification.  “Public employees should not take any public action under circumstances where, due to a conflict in interests, they are not certain that they can do so fairly and objectively.”

Standard III:  Bias and favoritism.  “Public employees should exercise the powers and prerogatives of office fairly and without prejudice or favoritism.  It is improper to use public authority to reward relatives, friends or political supporters, or to hinder or punish enemies or opponents.”  (emphasis mine).  Experience shows us that many people enter local politics because they are ANGRY about something in their community.  They bring with them this anger and hostility and often experience an inability to distance themselves from those they entered into politics to defeat.

Standard IV:  Intervening in Administrative Actions.  “Public officials should be extremely cautious about directly or indirectly intervening with normal decision making, investigatory or adjudicative processes of governmental bodies since such intervention can threaten the ability of government administrators to exercise independent objective judgment on the merits.”


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Principles of Public Service Ethics

September 21, 2009
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The Government Ethics Center Commission of the Josephson Institute of Ethics.  Michael Josephson is a lawyer, former law professor, and entrepreneur who currently serves as a consultant to federal, state and local government agencies.  The Josephson Institute of Ethics is located in Los Angeles.  The book Preserving the Public Trust:  The Five Principles of Public Service Ethics, from which this week’s inspiration comes, can be ordered from http://www.charactercounts.org.  The ISBN number is 1-58832-134-7.  All quotes not otherwise acknowledged this week are from this book.

Josephson has identified 5 principles of public service ethics, perfect for this week’s considerations.  So we begin…

“Principle 1:  Safeguard the Public Interest. Public office is a trust; us it only to advance public interests, not personal gain.”  Under this principle, Josephson establishes 3 standards:

Standard I: Policy Implementation.  “Public administrators and executives should interpret and implement policies and laws in good faith and energetically pursue the goals of policy and lawmakers.”

Standard II:  Personal Gain.  “Except for official compensation, public employees should neither seek nor accept any form of payment, gratuity, or other personal benefit relating to the performance of their responsibilities.”

Standard III:  Loyalty:  “Loyalty is an issue of great concern when dealing with policy issues because it can bias the outcomes of policies.”  Thee must be an analysis of to what or whom the loyalty of the public servant lies.

While these standards will be discussed more fully in later posts, think of them as you go about your day.


Safe Public Environments

September 14, 2009
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On July 28, 2009, the Mississippi Court of Appeals reached a decision in A.B. v. Stone County School District, No. 2008-CA-00478-COA.  While the public party was a school district, some of the analyses apply to any public entity.

In this particular case, a minor (A.B.) made a number of allegations against the school district which could be attributed to any governmental community outlets that serve and control children.  A.B., who was good at skipping school, took advantage of an opportunity made available from an invitation from her school bus driver and went to his home to spend the day, in lieu of attending school.  At his home, but in his absence, A.B. alleges that she was raped 3 times by the driver’s nephew in the driver’s home.

When filing her claim against the school district, A.B. alleged that the district was negligent in its failure to use ordinary care by (1) allowing students to leave campus without authorization, (2) failing to adopt policies to notify parents of excessive unexcused absences, (3) failing to follow policies in place regarding the notification of parents when a child was inexplicably absent from school, (4) failing to notify A.B.’s parents of her excessive unexcused absences, (5) failing to enforce Mississippi Code Annotated section 37-9-69 (Rev. 2007) which states that pupils are held “to strict account for disorderly conduct at school, on the way to and from school, and on the playgrounds, and during recess,” (6) failing to provide adequate supervision of students arriving and departing by school bus, and (7) hiring Collins (the bus driver) who took A.B. to his home and also allowed her to board his bus early before school was dismissed.

The Court determined that the district was not liable under the Mississippi Tort Claims Act. The MTCA  provides exemptions from liability available for a public entity:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

(b) Arising out of any act or omission of an employee of a governmental entity exercising

ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;

. . . .

(d) Based upon the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

(e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation…..

 

 

Miss. Code Ann. § 11-46-9(1)(b),(d), and (e) (Supp. 2008).

 

 

The statutory duty applied to public schools is found in Mississippi Code Annotated section 37-9-69, which states:

It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.

The Court found that A.B. did not meet her duty of proving negligence of the school district.  It cited the burden imposed by the law upon A.B., noting:

Proximate cause is a concept which is more accurately defined by reference tothe distinct concepts of which it is comprised, which are: (1) cause in fact; and (2) foreseeability. Cause in fact means that the act or omission was asubstantial factor in bringing about the injury, and without it the harm would not have occurred. Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others.

The Court affirmed the findings of the Circuit Court that there was no reason, prior to the event when the bus driver invited A.B. to his home, to think that the bus driver was anything other than a model citizen.  Thus, the district, in hiring the bus driver, had no inkling or ability to forsee the issue with A.B.

The moral in this for all public entities is to consider, regularly and consistently, those very basic things that public entities often FAIL TO DO when they hire individuals — and that is to check backgrounds.  Often public entities in smaller communities hire the way small private concerns do;  a current employee hears about an opening and recommends his/her sister, or cousin, or neighbor.  Because the current employee is “the salt of the earth”, the HR personnel do not even question the background of his/her sister, cousin or neighbor. 

When something goes wrong — and it often can when a public entity stands en loco parentis for a child in its care or custody, or for that matter, an adult within the environs under control of a public entity (such as a municipal court building, a park, etc.) — if the public entity has hired employees who have less than perfect backgrounds, that will come to the fore in any claim for injury.  Let the employer beware!

 

 

 


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