Administrative Abuses, Controversies and Remedies
Administrative Abuses, Controversies, and Remedies
Whose Really in Charge Here?
In reality there are few situations where one can accurately described as having no discretion in a situation. However, because we (the people) choose to operate in a legal framework
no administrator or folks who operate or participate in a decision-making process has complete discretion either.
Administrative discretion is the power to make significant decisions that have the force of law, directly or indirectly,
and that are not specifically mandated by the Constitution, statutes, or other sources of black letter law.
Why is Discretion Necessary?
Administrative discretion is both necessary and,
to some degree, desirable.
It is necessary, in part, because it is not possible for a legislature to draft statutes clearly and specifically enough to
dictate every action to be taken in the administration of a program at all points in the future.
In addition, administrative discretion is necessary in order to improve and increase effectiveness and efficiency of the administration through
the increase flexibility in management and problem-solving.
At a another level, discretion is desirable because it permits individualize consideration
and treatment of those that come before the agency.
Can Excessive Discretion be a Problem?
Discretion is a tool when properly used; like an axe, it can be a weapon for mayhem or murder. The language is a bit strong, but the point is well taken.
There is no absolute positive or negative correlation between discretion and just and equitable decisions.
Note: Please remember that all things begin in chaos.
From chaos we seek order.
To much order creates a demand for more freedom.
Too much freedom creates chaos.
With freedom comes responsibility.
The discretionary decisions of public decision-makers can impact the freedoms of the public that comes before them.
Types of Discretionary Decisions
There are at least three types of discretionary decisions:
when a decision in which the administrator by discretion determines a right, duty, or obligation, or promulgates a rule on particular question of policy.
a decision is selection of a procedure to be used to gather facts or make policy decisions.
a decision which is both substantive and procedural.
Note: the way an administrator proceeds (i.e. gathers information) can create a bias (or a butterfly effect) in how they determine
what is right or wrong, or what is a duty or an obligation.
In chaos theory, the butterfly effect is the sensitive dependence on initial conditions in which a small change in one state can result in large differences in a later state
Sources of Discretionary Authority
Common characteristics of decision-making and their limits are an extension from the sources from which the authority emanates.
Broad legislative or executive delegations of authority to administrators;
Expertise in a particular field;
Experience in a specific area of activity;
Political support from groups and individuals both in and out of government;
The intergovernmental factor;
The move to entrepreneurial government;
Conflicting Values and Perceptions on Administrative Discretion
In a sense one’s discretion is often understood and address by different people in very different ways.
Folks who are ethically doing what is consider the “right” behavior may be doing it for a different set of values.
When decision-makers with differing valves or priorities approach basic problems the value conflicts (or biases) can and do have important consequences.
Biases are systematic patterns of deviation from norm or rationality in judgment, and are often studied in psychology and behavioral economics.
Although the reality of these biases is confirmed by replicable research,
there are often controversies about how to deal or explain them. .
There are also controversies over some of these biases as to whether they count as useless or irrational, or whether they result in useful attitudes or behavior.
For example, when getting to know others, people tend to ask leading questions which seem biased towards confirming their assumptions about the person.
However, this kind of confirmation bias has also been argued to be an example of social skill: a way to establish a connection with the other person.
Is it simply wrong per se to take the human moral agent entirely out of the decision-making loop?
The creation of a decision-making process that automatically chooses what best for the folks involve may not have the ability to hold the administration answerable for their lack of accountability or concern to the public they serve.
Is it wrong as a matter of principle to create public agents that act without human control? (i.e. computer)
The shift of power will go from the public administrator to the programmer that created the computer program that’s making all of the decisions.
The formulation of standards for the exercising of discretion is self-defeating since standards would impair flexibility.
Basically today’s technogly is basically unbiased, it’s how they are deployed. Questions should be on accountably, control, and oversight.
Judicial Imperatives: Due Process, Equal Protection, and Substantial Justice
If the watchwords of public administration are expertise, flexibility, and efficiency, the terms that guide the judiciary in reviewing governmental actions have traditionally been:
the protection of the concept of the process of law,
prevention of violations of equal protection of laws, and
general concern that government actions ought to be characterized by substantial justice or fundamental fairness.
This can be difficult to do.
First, judges sitting in various courts have found it difficult to define the role of the courts in reviewing administrative actions.
Second, although one can recognize the need for judicial deference to administrative initiatives, they have been uncomfortable with the idea
that administrative expertise, flexibility, and efficiency are always adequate to justify broad discretionary action.
In general, corruption is a form of dishonesty or criminal activity undertaken by a person or organization entrusted with a position of authority, often to acquire illicit benefit.
Corruption may include many activities including bribery and embezzlement, though it may also involve practices that are legal in many countries.
Corruption can occur on different scales. Corruption ranges from small favors between a small number of people (petty corruption), to corruption that affects the government on a large scale (grand corruption), and
corruption that is so prevalent that it is part of the everyday structure of society, including corruption as one of the symptoms of organized crime.
Political corruption is the use of powers by government officials or their network contacts for illegitimate private gain.
An illegal act by an officeholder constitutes political corruption only if the act is directly related to their official duties, is done under color of law or involves trading in influence.
Forms of public corruption vary, but include
bribery, extortion, cronyism, nepotism, parochialism, patronage, influence peddling, graft, and embezzlement.
Governance comprises all of the processes of governing –
whether undertaken by the government of a state, by a market or by a network – over a social system (family, tribe, formal or informal organization, a territory or across territories) and whether through the laws, norms, power or language of an organized society.
It relates to “the processes of interaction and decision-making among the actors involved in a collective problem that lead to the creation, reinforcement, or reproduction of social norms and institutions“.
In lay terms, it could be described as the political processes that exist in and between formal institutions.
Governance is complex concept that assumes that key decisions and implementation are often the product of a set of nonprofit, and governmental organizations at several levels.
Governance is the way rules, norms and actions are structured, sustained, regulated and held accountable.
The degree of formality depends on the internal rules of a given organization and, externally, with its business partners.
As such, governance may take many forms, driven by many different motivations and with many different results. For instance,
a government may operate as a democracy where citizens vote on who should govern and the public good is the goal, while a non-profit organization or a corporation may be governed by a small board of directors and pursue more specific aims.
In addition, a variety of external actors without decision-making power can influence the process of governing.
These include lobbies, think tanks, political parties, non-government organizations , community and media.
Governance Imperatives; Creativity, Flexibility, Results-Oriented, and Independence
Governance regimes are commonly created as problem-solving mechanisms.
They are often constructed on the assumption that existing governmental institutions are too rigid or that the authority necessary to address pressing problems is
fragmented and allotted among too many agencies that contest for control rather than collaborate for problem-solving.
The ability to create mechanisms outside normal jurisdictional boundaries, free from standard procedural constraints,
a central dynamic of contemporary governance.
As a result many governance regimes are contractual mechanisms with disputes to be
resolved through alternatives to standard judicial process.
Remedies for Abuse of Discretion
Because administrative discretion is both useful and necessary the following are a number of remedies that can help reduce a possible abuse of discretion act whether it’s intentional or accidental.
Self-help (in-house training, posting Rules & reg’s, close supervision)
Oversight by the Legislature and Supervision by the Executive
City Managers (as a special case to reducing political interference)
Judicial Review (delaying the process)
Tort Liability Suits (suing for damages)
Criminal Prosecutions ( only in extreme cases)
Contract-Related Actions (breach of contract)
Injunctive Relief (asking the court to end the practice i.e. consent degree)
Negative Discretion and Judicial Responses
Currently attention is focus on situations in which administrators either refuse to act at all or withdraw from previously developed policies.
Note: “Too often it is taken for granted that as long as we can keep government from doing wrong we have made it more responsible. What is more important is to insure effective action of any sort …
An official should be as responsible for inaction as for wrong action;
certainly the average voter will criticize the government as severely for one as for the other.”
The four basic types of legal forces compelling the exercise of discretion:
Those objecting to an administrative refusal to launch a fact-finding or policymaking process;
Agency refusal to issue rules;
Intentional delay in agency action;
Rescission of existing or proposed policies.
Special Challenges of Addressing Abuse of Emergency Discretion