week 1
Wildchild
1.0PublicLawandAdministration.pptxPublic Law and Administration
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A Rule of Thumb for Rule Makers
All Solutions are tomorrow’s problem,
Redefine the problem as a challenge,
then look for opportunities.
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Conflict, Change, and Transformation
All change begins with conflict. Without change our ability to grow personally would limit not only our inner selves but
also our social institutions located within the external environment.
In a sense the roots of social change is strongly influence by a shape-shifting variable called ethics.
Although ethics concerns itself with matters of value, ethics seeks to resolve questions of human morality by defining concepts such as
good and evil, right and wrong, virtue and vice, justice and crime.
Once change is implemented transformation begins and the cycle begins all over again.
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Law vs the No-Control Zone
Laws, customs, rules, or norms are conventions that for the most help guide and regulate one’s behavior when interacting in the external environment.
As a system, law is a type of lifeline for the state to help individuals adhere to the will of the community and it’s membership.
When one is faced with what appears to an overwhelming challenge in life, they may disregard the ethical and moral codes that guided their behavior in the past
and enter a type of no-control zone.
A no-control zone is where the individual can make a decision free from the constraints imposed by their external environment empowered by the belief that they can do whatever they want.
Examples of this are suicide, suicide by police, murder-suicide crimes and terrorist bombers.
Why suicide bombers? When the needs of the one disregards the needs of the many.
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Most problems in the public area are true paradoxes. A true paradox cannot be resolved only managed.
It’s a balancing act.
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Introduction to PUB 647
Alexis de Tocqueville’s observed that almost all almost all important political problems in America sooner or later are recast as legal problems.
If he was alive today he would, in all probably, observe that sooner or later most important political problems would be transformed into a type of administrative conflict that’s eventually challenged in a court of law.
In this country, there is a complex, ongoing interaction between matters legal and administrative.
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What is Public law?
Public law is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to society.
Public law comprises constitutional law, administrative law, tax law and criminal law, as well as all procedural law.
In public law, mandatory rules prevail.
Laws concerning relationships between individuals belong to private law.
The relationships public law governs are asymmetric and unequal –
government bodies (central or local) can make decisions about the rights of individuals.
However, as a consequence of the rule of law doctrine, authorities may only act within the law.
The government must obey the law. For example, a citizen unhappy with a decision of an administrative authority can ask a court for judicial review.
Rights, too, can be divided into private rights and public rights.
A paragon of a public right is the right to welfare benefits – only a natural person can claim such payments, and they are awarded through an administrative decision out of the government budget.
The borderline between public law and private law is not always clear in particular cases,
giving rise to attempts of theoretical understanding of its basis.
https://en.wikipedia.org/wiki/Public_law
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What is Private Law?
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as
the law of contracts or torts (as it is called in the common law),
and the law of obligations (as it is called in civil legal systems).
It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including
regulatory statutes, penal law and other law that affects the public order.
In general terms, private law involves interactions between private citizens,
whereas public law involves interrelations between the state and the general population.
https://en.wikipedia.org/wiki/Private_law
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What is Natural Law?
Natural law is a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature—traditionally by God or a transcendent source—
and that these can be understood universally through human reason.
As determined by nature, the law of nature is implied to be objective and universal; it exists independently of human understanding, and
of the positive law of a given state, political order, legislature or society at large.
Historically, natural law refers to the use of reason to analyze human nature to deduce binding rules of moral behavior
from nature's or God's creation of reality and mankind.
Natural and legal rights are two types of rights.
Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal and inalienable (they cannot be repealed or restrained by human laws).
Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws)
Because of the intersection between natural law and natural rights, natural law has been claimed or attributed as a key component in
the United States Declaration of Independence (1776),
the Declaration of the Rights of Man and of the Citizen (1789) of France,
the Universal Declaration of Human Rights (1948) of the United Nations General Assembly,
as well as the European Convention on Human Rights (1953) of the European Union.
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Natural Person
In jurisprudence, a natural person is a person (in legal meaning, i.e., one who has its own legal personality) that is an individual human being, as opposed to
a legal person, which may be a private (i.e., business entity or non-governmental organization) or public (i.e., government) organization.
Historically, a human being was not necessarily a natural person in some jurisdictions
where slavery existed (subject of a property right) rather than a person.
In many cases, fundamental human rights are implicitly granted only to natural persons. For example, the Nineteenth Amendment to the United States Constitution,
which states a person cannot be denied the right to vote based on their biological sex, or Section.
Fifteen of the Canadian Charter of Rights and Freedoms, which guarantees equality rights, apply to natural persons only.
Another example of the distinction between natural and legal persons is that a natural person can hold public office, but a corporation cannot.
A corporation or non-governmental organization can, however, file a lawsuit or own property as a legal person.
https://en.wikipedia.org/wiki/Natural_person
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Legal Person
A legal person (in legal contexts often simply person, less ambiguously legal entity) is any human or non-human entity, in other words, any human being, firm, or government agency that is recognized as having privileges and obligations,
such as having the ability to enter into contracts, to sue, and to be sued.
The term "legal person" is however ambiguous because it is also used in contradistinction to "natural person",
i.e. as a synonym of terms used to refer only to non-human legal entities.
So there are of two kinds of legal entities, human and non-human:
natural persons (also called physical persons) and juridical persons (also called juridic, juristic, artificial, legal, or fictitious persons ), which are other entities (such as corporations) that are treated in law as if they were persons.
While human beings acquire legal personhood when they are born (or even before in some jurisdictions), juridical persons do so when
they are incorporated in accordance with law.
Legal personhood is a prerequisite to legal capacity,
the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations.
In international law, consequently, legal personality is a prerequisite for
an international organization to be able to sign international treaties in its own name.
https://en.wikipedia.org/wiki/Legal_person
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What is a Public Administrator?
A public administrator is a type of human capital made-up of natural persons who works for or employed by a government who provides a service or services to members of the general public. Types of these public servants are:
Civil Servants
General civil service employees are employed and managed in accordance with the merit principle.
The merit system is the process of promoting and hiring government employees based on their ability to perform a job, rather than on their political connections.
Political Officials
A person holding a position or occupation established by law or by the act of a government body, for the purpose of exercising the authority of the government in the service of the public.
This can range from cabinet-level appointees to press aides, policymaking officials with whom political loyalty is a given.
Political officials are appointed officials who help elected officer implement policy agendas.
Contract Employees
Folks who are employed directly by government on individual service contracts,
or indirectly as employees of contractors who deliver government services to citizens.
Special Employees
Are public servants holding particularly sensitive posts that serve special government requirements. (i.e. administrative law judges and officials who deal in national security affairs)
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Just How Many People Work for the Public?
The truth is the actual size of the body of people who deliver public services is unknown.
For one thing , all levels of government rely on large numbers of contractors to carry out many public functions.
The ambiguity is not really an accident.
Governments are special employers which represents all the people within its jurisdiction and therefor
is expected to respond to the needs of it’s citizenry.
Note: They only have those powers granted to them by law, and even those powers are limited by
the rights and liberties of citizens and employees granted by the Constitution and statutes.
United States Administrative Law
United States federal administrative law encompasses statutes, common law, and directives issued by the Office of Information and Regulatory Affairs in the Executive Office of the President, that together define
the extent of powers and responsibilities held by administrative agencies of the United States Government (both executive branch agencies and independent agencies).
The executive, legislative, and judicial branches of the U.S. federal government
cannot always directly perform their constitutional responsibilities.
Specialized powers are therefore delegated to an agency, board, or commission.
These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.
Justice Breyer defines administrative law in four parts. Namely, the legal rules and principles that:
define the authority and structure of administrative agencies;
specify the procedural formalities employed by agencies;
determine the validity of agency decisions; and
define the role of reviewing courts and other governmental entities in relation to administrative agencies.
U.S. federal agencies have the power to adjudicate, legislate, and enforce laws within their specific areas of delegated power
https://en.wikipedia.org/wiki/United_States_administrative_law
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Administrative Law
Authority and structure of administrative agencies
Procedural formalities employed by agencies
Validity of agency decisions
Role of reviewing courts and other governmental entities
Governance
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.
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An Observation
In the U.S.A., administrative law is not regarded as the law relating to public administration, the way commercial law is the law relating to commerce, or land law the law relating to land. It is limited to powers and remedies and answers the question:
What powers may be vested in administrative agencies?
What are the limits of those power?
What are the ways in which agencies are kept within these limits?
Despite the fact that members in the legal community have begun to take a broader view of administrative law,
the tendency to focus on the narrow procedural approach remains dominant among practitioners and teachers alike.
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Broadly Speaking
Administrative law questions do not arise without reference to substantive administrative decisions, to the legislation that controls the administrative action,
and to the complex fact pattern that gave rise to the governmental decision.
A more narrow approach to administrative law concerns what is sometimes called “internal versus external dichotomy.”
this view asserts that the proper scope of administrative law is limited to agency actions that affect the rights of private parties.
A third point is that administrative law acts a way for the administrative process as rule making when
not done by legislature and adjudication when not done by the courts.
Please note that administrative law is specifically excluded from its consideration situations involving the use of contracts as compared with
administrative based upon regulations or adjudicative rulings.
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Private Law Conflicts vs Public Law Conflicts
Private law conflicts are the types of disputes that envolve a fender bender in the local shopping center parking lot
or when one neighbors chop down the half of your cherry tree that happens to hangs over the property line.
Public law conflicts involve the government more directly as a party in the dispute and not merely as the provider of a forum for dispute resolution.
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The Administrative Justice System
The ability to produce administrative law is accomplished by several institutions and actors (or players) working together systematically to produce
a goal that can satisfy what can be called a administrative system.
The parts of this system can be broken down into:
Functional classification of agencies
Institutional Types
Repeat Players and Single-Shot Players
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The Administrative Justice System
Functional classification of agencies
Institutional Types
Repeat Players and Single-Shot Players
Functional Classification of Agencies
Since World War II the administrative system has tended to emphasize and support the major independent regulatory commissions that focus on particular social service agencies.
From a public manager’s perspective, the largest agencies and programs are oriented towards providing services of one kind or another rather than regulation.
Regulatory commissions
Social services agencies
Second-generation regulators
Administrative services agencies
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Regulatory Commissions
The following is an incomplete list of agencies that were created by Congress as collegial bodies with a great deal of independence from the executive branch and Congress to protect the agencies from political interference.
Nuclear Regulatory Commission (NRC)
Federal Communications Commission (FCC)
Federal Trade Commission
Securities and Exchange Commission
National Labor Relations Board
Federal Maritime Commission
Most independent commissions are usually headed by three to seven commissioners appointed for fixed terms by the President with advice and consent of the Senate.
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Social Service Agencies: An Example
The California Department of Social Services (CDSS) is a California state agency for many of the programs defined as part of the social safety net in the United States,
and is within the auspices of the California Health and Human Services Agency.
Federal and State funds for adoptions, foster care, aid to the disabled, family crisis counseling, subsistence payments to poor families with children, child welfare services
and many other efforts are distributed through this department.
Its mission is "to serve, aid and protect the needy and vulnerable children and adults in ways
that strengthen and preserve families, encourage personal responsibility, and foster independence.“
https://en.wikipedia.org/wiki/California_Department_of_Social_Services
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Second-generation regulators
Some agencies preform both regulatory and social service functions. Examples are:
Occupational Safety and Health Administration (OSHA)
Environmental Protection Agency (EPA)
Consumer Product Safety Commission (CPSC)
Equal Employment Opportunity Commission (EEOC)
These watchdog groups have a varying degree of regulatory power.
Because they implement a policy mix rather than independent policies to attack a problem, they, on occasion,
may be acting as a negotiators, and at other times they act as a type of a enforcement arm for the government.
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Administrative Services Agencies
At one time, administrative service agencies, such as General Services Administration (GSA), were viewed as
essentially ancillary bodies and given very little attention.
However the way government does business has changed because these agencies have become more important.
States and larger local governments have their own type of GSA’s.
They now lease and manage property, contract for a host of services as well as products, provide support and guidance for other contracting units or government,
and often set the terms for the purchase and management of critical systems such as computers.
https://en.wikipedia.org/wiki/General_Services_Administration
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Institutional Types
Looking back one identify traditional governmental institutions as those agencies located within the executive branch and those independent commissions that report primarily to the legislature. Some of these folks can be group in the following way:
Executive Branch Agencies
Independent Regulatory Commissions
In both the Legislative and Executive branch
Municipal Corporations and County Governments
Special purpose governmental unit
Government Surrogates and Governance Regimes
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Repeat Players and Single-Shot Players
Its useful to distinguish two significantly different categories of parties who place demands on the administrative justice system to wit:
Single-shot players
Repeat players
Single-shot players are generally individuals who rarely deal with governmental agencies.
Repeat players are often organizations with more or less continuous, long-term relationships with particular agencies.
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Administrative Process vs Public Contract Process
When governments utilize contractors as service providers for public programs, public managers and consumers of administrative actions are impressed into the following actions.
The contract process starts within a hierarchical “bureaucratic ” administrative process involving a horizontal process in order to accomplish a public purpose.
This becomes a type of mutual commitment between a government and a private organization.
Three core aspects of this relationship becomes obvious:
Integration of the nongovernmental organization (whether nonprofit or for profit) or other agency with the primary government unit;
Operation of the joint endeavor;
Separation or transformation of the relationship when the contract is done.
It is important to understand the public-private contractual relationship because
much of the work done at the state and local levels are actually accomplished through contracts.
Because of this “Words” are important too.
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Information Overload
Information overload is a term used to describe the difficulty of understanding an issue and effectively making decisions when one has too much information about that issue.
Generally, the term is associated with the excessive quantity of daily information.
Information overload is a state in which a decision maker faces a set of information (i.e., an information load with informational characteristics such as
an amount, a complexity, and a level of redundancy, contradiction and inconsistency) comprising the accumulation of individual informational cues of differing size and complexity that inhibit the decision maker’s ability to optimally determine the best possible decision.
The probability of achieving the best possible decision is defined as
decision-making performance.
The suboptimal use of information is caused by the limitation of scarce individual resources.
A scarce resource can be limited individual characteristics (such as serial processing ability, limited short-term memory) or limited task-related equipment (e.g., time to make a decision, budget).
https://en.wikipedia.org/wiki/Information_overload
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The Darkside of a Public Servant
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.
https://en.wikipedia.org/wiki/List_of_cognitive_biases
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The Ethical Environment of the Public Manager…
Because the question of managerial effectiveness is a constant, public organizations have a special responsibility to citizens, elected officials, and political appointees and the different levels of scrutiny, oversight, and accountability expected of them.
Questions:
How does an organizational culture influence a public manager’s beliefs and behavior? Both on an formal and informal level…
How does the organization’s hierarchical structure influence the ethical attitudes and actions of public employees working within a bureaucratic style government?
How does the combination of both of the organization culture and structure impact on the thinking, doing, deciding, and ethical perspectives of the public manager?
Are Codes of Ethics or Codes of Conduct effective in Public Organizations? Why or Why Not?
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The Needs of the One vs the Needs of the Many?
Officers allegedly planted gun on man after running him over
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What is Corruption?
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.
Political corruption occurs when an office-holder or other governmental employee acts in an official capacity for personal gain.
Corruption is most commonplace in kleptocracies, oligarchies, narco-states and mafia states.
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.
Corruption and crime are endemic sociological occurrences which appear with regular frequency in virtually all countries on a global scale in varying degree and proportion.
Individual nations each allocate domestic resources for the control and regulation of corruption and crime.
Strategies to counter corruption are often summarized under the umbrella term anti-corruption.
https://en.wikipedia.org/wiki/Corruption
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Political Corruption
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 corruption vary, but include bribery, extortion, cronyism, nepotism, parochialism, patronage, influence peddling, graft, and embezzlement.
Corruption may facilitate criminal enterprise such as drug trafficking, money laundering, and human trafficking, though is not restricted to these activities.
Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is also considered political corruption.
The activities that constitute illegal corruption differ depending on the country or jurisdiction. For instance, some political funding practices that are legal in one place may be illegal in another.
Worldwide, bribery alone is estimated to involve over 1 trillion US dollars annually.
A state of unrestrained political corruption is known as a kleptocracies, literally meaning "rule by thieves".
Some forms of corruption – now called "institutional corruption" – are distinguished from bribery and other kinds of obvious personal gain.
A similar problem of corruption arises in any institution that depends on financial support from people who have interests that may conflict with the primary purpose of the institution.
Over time, corruption has been defined differently. For example, in a simple context, while performing work for a government or as a representative, it is unethical to accept a gift.
In most cases, the gift is seen as an intention to seek certain favors such as work promotion, tipping in order to win a contract, job or exemption from certain tasks in the case of junior employee giving the gift to a senior employee who can be key in winning the favor.]
https://en.wikipedia.org/wiki/Political_corruption
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Police Corruption
Police corruption is a specific form of police misconduct designed to obtain financial benefits, personal gain, career advancement for a police officer
or in exchange for not pursuing or selectively pursuing an investigation
or arrest
or aspects of the thin blue line itself where force members collude in lies to protect other members from accountability.
One common form of police corruption is soliciting
or accepting bribes in exchange for not reporting organized drug or prostitution rings
or other illegal activities.
Another example is police officers flouting the police code of conduct in order to secure convictions of suspects—for example, through the use of falsified evidence.
More rarely, police officers may deliberately and systematically participate in organized crime themselves.
In most major cities, there are internal affairs sections to investigate suspected police corruption or misconduct.
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Judicial Corruption
Judicial corruption refers to corruption-related misconduct of judges, through
receiving or giving bribes,
improper sentencing of convicted criminals,
bias in the hearing and judgement of arguments
and other such misconduct.
Governmental corruption of judiciary is broadly known in many transitional and developing countries because the budget is almost completely controlled by the executive.
The latter undermines the separation of powers, as it creates a critical financial dependence of the judiciary.
It is important to distinguish between the two methods of corruption of the judiciary:
the government (through budget planning and various privileges), and the private.
Judicial corruption can be difficult to completely eradicate.
Corruption in judiciary also involves the government in power using the judicial arm of government to
oppress the opposition parties in the detriments of the state.
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Images of Administrative Process
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