CooksonLaw
CooksonLaw

Law and Public Administration Lecture
Law/PA513
30 January 2017
Bernard F. Cookson
Abstract
In order to see the entire abstract and lecture for this week click on: "Expand view" on the right of your UoP screen. You may then select all, copy and paste the lecture into a format of your choice for offline viewing. Please remember the lecture is copyrighted so excerpts with references are appropriate.
Law and Public Administration is a six-week class that explores various aspects of public administration as follows:
Introduction to Public Administration
Federalism and Intergovernmental Relations
Government Regulations and Agency Rulemaking
Policy Analysis and Implementation
Agency Accountability
Agency Ethics and Future Trends in Public Administration
We follow two students through a conversation on the issues that are often political in nature since they involve government intrusions into the lives of citizens around the nation. The two students Maria and Jose do have a common heritage but they have developed radically different political philosophies. The differences in viewpoints are what makes their discussions interesting and it highlights the controversies that can be envisioned once you start describing and explaining governmental public administration. 
The material discusses the six headings in bolded type above from liberal and conservative perspectives that sometimes seem to intertwine so it is really difficult to remember which side of the argument each person is on. Differences are sometimes blurred when you take a moment to understand the other side's perspective. It is too bad that people in government sometimes get so caught up in their own agendas that they do not take those moments and find some synergy rather than traveling down their own divergent paths. Hopefully we will find a lot of common ground over the next six weeks of discussion.
Legend:
Black = Instructor composed information
Maroon = Notes/Simulated discussion 
Blue = Quotations copied from the referenced website
Reference Page Entry
Rosenbloom, D. H., Kravchuk, R. S., & Clerkin, R. M. (2015). Public administration: Understanding management, politics, and law in the public sector (8th ed.). New York, NY: McGraw-Hill Education.
In-Text Citation
1. Rosenbloom, Kravchuk, and Clerkin (2015) Insert the paraphrased material. 
2. Insert the paraphrased material (Rosenbloom, Kravchuk, & Clerkin, 2015). 
3. “Insert the quotation” (Rosenbloom, Kravchuk, & Clerkin, 2015, p. xx ).
Milakovich, M. E., & Gordon, G. J. (2013). Public administration in America (11th ed.). Boston, MA: Cengage Learning.
In-Text Citation
1. Milakovich and Gordon (2013) Insert the paraphrased material. 
2. Insert the paraphrased material (Milakovich & Gordon, 2013). 
3. “Insert the quotation” (Milakovich & Gordon, 2013, p. xx).
Cookson, B. F. (2016). Law and public administration lecture
: lecture week #1 (1st ed.). UoP
In-Text Citation
1. Cookson (2016) Insert the paraphrased material. 
2. Insert the paraphrased material (Cookson, 2016). 
3. “Insert the quotation” (Cookson, 2016, p. xx).
LAW/562
LAW AND PUBLIC ADMINISTRATION
Lecture: Week #1
In order to see the entire lecture for this week click on: "Expand view" on the right of your UoP screen. You may then select all, copy and paste the lecture into a format of your choice for offline viewing. Please remember the lecture is copyrighted so excerpts with references are appropriate.
Following are the topics for this week: 
Introduction to Public Administration
Contrast the differences between public administration and private management.
Identify the various sources of administrative law in the U.S. (specifically federal Administrative Procedures Act (APA), uniform state APA of 1946 as amended, etc.).
Describe the general avenues of interest group participation in Public Administration. 
Maria and Jose are two young people enrolled in a law class discussing the differences between public administration and private management. This was an unlikely topic for two young people but they are now UoP graduate students taking a class and trying to understand what they originally thought might be a rather boring subject. Their differences of opinion on many issues are changing their class outlook. Maria and Jose have developed very different political views over their short lifetimes. When they talked about some of these class issues they did not agree very often since they have developed vastly diverging philosophies. Opposites do attract though so they really were drawn into these discussions. As all good students do Maria and Jose have read the Instructor Policies for this class so even when they are forcefully disagreeing about various political issues their discussions will follow those posted rules.
Quote from the posted instructor policies: 
"Our discussion goal is to be collaborative, not combative. Experience shows that even an innocent remark in the online environment can be easily misconstrued. I suggest that you always reread your responses carefully before you post them to make certain that you have worded your message in a way that will not be seen as a personal attack! Always be positive in your approach to others and diplomatic with your words. I will do my best to do the same. Respect is the foundation of successful online teaching and learning."
Maria and Jose did have some common ground regarding the following distinctions between public administration and private management.
Contrasting Public Administration and Private Management
Public Administration 
Public Administration refers to the functions conducted by a government agency while Private Management revolves around the operation of profit and non-profit independent organizations. Government agencies are usually perpetual and may even survive the actual government that formed them in the first place. We have seen some government organizations file for bankruptcy but usually they continue to exist. Our more recent prime example is the City of Detroit that has relieved itself of some massive debt after the loss of a large amount of its population. There are continuous news updates on the City of Detroit bankruptcy aftermath and here is a fairly recent article.
How Motor City Came Back from the Brink…and Left Most Detroiters Behind
Two years after going bankrupt, is Detroit still Detroit?
Retrieved 4 December 2016 from:
http://www.motherjones.com/politics/2015/06/motor-city-after-bankruptcy-and-detroiters-left-behind
Jose thinks this is a great story and shows how the private and public sector can work together. Jose references the article as follows:
"Gilbert, founder and chairman of Quicken Loans and owner of the Cleveland Cavaliers, had already invested heavily in the city; in 2010 he moved Quicken's headquarters from the suburbs to downtown and relocated several of his businesses along with 12,500 employees. Six weeks before that White House meeting, the city had filed for the largest municipal bankruptcy in US history. Gilbert was in Washington as part of an elite delegation to discuss federal assistance for the country's most visibly dysfunctional city.     
The heads of the Kresge and Ford Foundations—large philanthropies that have roots in Detroit's industrial past and continue to invest in the city—were there, as well as the CEO of the Henry Ford hospital system and the then-chair of Wayne State University's Board of Governors."
Maria counters with her own reference to the same article and indicates that the residents of the city that went bankrupt have absolutely no voice in its recovery. 
"Gilbert's fist-pounding proved persuasive. Several weeks after the White House meeting, the Obama administration pulled together a $300 million aid package for Detroit, made up of combined federal and private dollars. There was money to hire firefighters, repair buses and begin the construction of the M-1 Rail, a $140 million trolley line that will travel 3.3 miles through the city's gentrifying downtown. But almost half of the total was earmarked for blight removal, and Gilbert himself became co-chair of a task force charged with identifying the demolition targets. There are no minutes of the White House meeting, so it's impossible to know what discussion there was about the blight-removal approach. It also appears that not a single representative of the neighborhoods soon to be bulldozed—no minister, no community organizer, no teacher or city council member—attended the meeting. The closest person to a community representative was Dennis Archer, who had served as Detroit's mayor from 1994 to 2001."
Maria goes on to indicate that the same article shows that the residents of the city that went bankrupt are being pushed out to make room for rich men to create development on the land of their former homes. 
"Blight removal is not unique to this period in Detroit's history. It was also a strategy in the "urban renewal" era in the fifties and sixties, when thousands of black families were displaced from slums because planners thought that vacant land was more valuable. More recently, blight represents the lost fortunes of ordinary Detroiters. It is the ghost of Detroit's remarkable post-war reign as an industrial Mecca, a place that drew tens of thousands of young men and women from Kentucky and Ohio and West Virginia and Tennessee."
Jose states that unfortunately that is the price of progress in America. Urban renewal is necessary for a fresh start. Detroit is now balancing the budget.
“Matt Helms, Detroit Free Press 10:24 p.m. EST February 25, 2016
Detroit Mayor Mike Duggan told the City Council today that the city’s 2016-17 financial plan would mark the third straight year of balanced budgets, clearing the way for Detroit to come out of state oversight in 2017 — even with a $490-million hole in pension funding the city must begin to address.”
Retrieved 11 September 2016 from:
http://www.freep.com/story/news/local/michigan/detroit/2016/02/25/duggan-next-city-budget-have-3rd-straight-surplus/80931706/
Maria says well let’s talk about Flint, MI just north of Detroit. Flint officials ended up poisoning the children of the city trying to save some money on the water supply. Jose says the city officials were just being fiscally responsible even though they made a few mistakes. Marie says you call this a few mistakes:
(CNN)Here is a look at the water crisis in Flint, Michigan, where cost-cutting measures led to tainted drinking water that contained lead and other toxins.
Since the water wasn't properly treated, lead from aging service lines to homes began leaching into the Flint water supply after the city tapped into the Flint River as its main water source.
Health effects of lead exposure in children include impaired cognition, behavioral disorders, hearing problems and delayed puberty. In pregnant women, lead is associated with reduced fetal growth. In everyone, lead consumption can affect the heart, kidneys and nerves. Although there are medications that may reduce the amount of lead in the blood, treatments for the adverse health effects of lead have yet to be developed.
Retrieved 8 December 2016 from:
http://www.cnn.com/2016/03/04/us/flint-water-crisis-fast-facts/
Public administration often starts in free societies when Constitutions establish the relationship between the government and the people. The government organizations specified by those Constitutions are then created and they develop the public administration rules for their own existence and their interactions with the people.
"How the U.S. Government Is Organized
The Constitution of the United States divides the federal government into three branches to ensure a central government in which no individual or group gains too much control:
1. Legislative – Makes laws (Congress)
2. Executive – Carries out laws (President, Vice President, Cabinet)
3. Judicial – Evaluates laws (Supreme Court and Other Courts)"
Retrieved 11 September 2016 from:
http://www.usa.gov/Agencies/federal.shtml
In the United States the federal constitution provides designated powers to the federal government. Those powers not granted to the federal government are reserved to the states and the people. The states then have their own constitutions to guide those governments and the provisions of those state constitutions will vary rather substantially. The federal constitution though has the bill of rights encompassed in the first ten amendments to the federal constitution designed to protect the people from an overreaching government. The fourteenth amendment to the federal constitution makes it clear that the bill of rights also applies to the state governments when dealing with the people. The Executive branches of government operate the public administration organizations and they are charged with writing and executing the implementing regulations for the statutory laws passed by the Legislative branches of government. The Courts issue judicial pronouncements that rule on the Constitutionality of those laws and regulations. Our legal system actually precedes the Constitutions and through those years a system of precedent based common law evolved from the settlement of various disputes. Statutory laws passed by the legislative bodies have specifically superseded the common law on many occasions but the common law that remains coexists with statutory law so you will see both mentioned in some judicial proceedings.
Private Management
Private organizations are not subject to the state and federal constitutions but they do have to comply with the laws and resulting regulations generated by those government agencies created by the constitutional agreements. Private management has much more flexibility so those organizations can grow beyond their national boundaries or actually go broke and cease to exist. In the USA we have many private organizations whose primary pursuit is to secure a decent return on investment for the owners of the business. In addition, we have a large number of non-profit organizations whose primary purpose is to further a sponsors point of view, advance the interest of particular groups, support the welfare of various endeavors, help disadvantaged people, cure disease, support animals, champion various environmental issues, etc.
Maria would like to start a non-profit organization to help the poor while Jose would like to start a non-profit organization to educate the people on the advantages of private enterprise and the disadvantages of big government. Maria states that non-profits are all charitable organizations that help the poor, fight disease, etc. Jose thinks that Maria is kind of naïve and explains that there are many other types of non-profit organizations that are designed to further the public interest but they are not necessarily focused on helping the poor. As an example he points out the Rand Corporation.
The RAND Corporation is a nonprofit institution that helps improve policy and decision-making through research and analysis.
For more than six decades, RAND has used rigorous, fact-based research and analysis to help individuals, families, and communities throughout the world be safer and more secure, healthier and more prosperous. Our research spans the issues that matter most, such as energy, education, health, justice, the environment, and international and military affairs.   
Retrieved 11 September 2016 from:
http://www.rand.org/about/history.html
New Public Management (NPM)
Maria and Jose start to realize the diversity in their views and the discussion of NPM only confirms their suspicions. Maria and Jose were both born in the USA to Mexican parents that were not legally admitted into the USA. Maria also has siblings that came to the USA with her parents and they are not in the USA legally either. Maria states that she is a strong believer in NPM since the governed should be involved in making the governing decisions. Jose states that the traditional government role is to make decisions for the good of the governed since they are elected and appointed to perform those functions. The influence of her siblings based on their upbringing in Mexico may have something to do with the differing views between Maria and Jose but we shall see as time goes on.
Jose thinks the government is generally thought to be bureaucratic and not very responsive to the needs of the citizens and their various constituencies.
NPM is a movement to adopt some of the private sector motivational techniques and decentralized response systems to government operations. NPM was developed in Anglo Saxon countries other than the USA but adoptions of the NPM ideas have moved into many aspects of American governance. 
Maria is not usually in favor of adopting things from other countries since she believes the USA is the greatest country in the world and that we already pretty much do everything better than anyone else.
Maria mentions Student Loans and touts that this is a great benefit for young people in the USA.
Retrieved 11 September 2016 from:
http://studentaid.ed.gov
Jose indicates that Maria may be surprised that the student aid loans may not even be dischargeable in Bankruptcy so if you run up a large debt but cannot obtain a good job you have a big problem. Jose works and pays for his college tuition while living with his parents.
"You must repay your loans even if you don’t complete your education, can’t find a job related to your program of study, or are unhappy with the education you paid for with your loan.  However, certain circumstances might lead to your loans being forgiven, canceled, or discharged."
"If you file Chapter 7 or Chapter 13 bankruptcy, you may have your loan discharged in bankruptcy only if the bankruptcy court finds that repayment would impose undue hardship on you and your dependents."
Retrieved 4 December 2016 from:
http://studentaid.ed.gov/repay-loans/forgiveness-cancellation
They both agree that students need to fully understand the regulations associated with student loans. Maria states that her siblings cannot get loans for college but she can. The following Federal Student Aid website should be reviewed by anyone obtaining student loans.
"Non-U.S. Citizens
Generally, if you have a “green card” (in other words, if you are a permanent resident alien), you will be considered an “eligible noncitizen” and will be able to get federal student aid if you meet the other basic eligibility criteria."
Retrieved 11 September 2016 from:
http://studentaid.ed.gov
Public administration is very complicated and it is required to respond to conflicting constituencies at various times. Public administration where possible is often being required to adopt the NPM approach that is focused more on customer satisfaction rather than strict compliance with various rules. 
Maria is generally in favor of this NPM approach but in some areas she does show some of Jose's conservative trends. NPM practices make those government agencies more similar to Private Management operational needs. A good example of this is the administration of the various state run lottery systems. In order to attract the right revenue these groups must compete with private gambling establishments in their home or in neighboring states. Maria is a little concerned about the government encouragement of gambling even if they are using her favored NPM techniques.
Private management is not simple either since in addition to satisfying customers there are owners, employees, neighbors, suppliers, competitors and regulators that must be satisfied for continued operation of those private enterprises.
Sources of Administrative Law
The first assignment in this class asks for a paper exploring the federal and state Administrative Procedure Acts (APA). 
Maria and Jose both explored the following links before writing their class APA papers that earned each of them an A.
The various federal government agencies write their administrative regulations in compliance with the federal Administrative Procedure Act.
Administrative Procedure Act (5 U.S.C. Subchapter II)
Retrieved 11 September 2016 from:
http://www.archives.gov/federal-register/laws/administrative-procedure/
http://www.law.cornell.edu/uscode/5/usc_sup_01_5_10_I_30_5_40_II.html
After looking at this material Maria made note of the fact that the APA seems to incorporate other acts that we have heard about such as the Freedom of Information Act. 
Administrative Procedure Act
The Freedom of Information Act
5 U.S.C. § 552
UNITED STATES CODE 
o TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES 
PART I - THE AGENCIES GENERALLY 
CHAPTER 5 - ADMINISTRATIVE PROCEDURE 
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE 
§ 552. Public information; agency rules, opinions, orders, records, and proceedings
(a) Each agency shall make available to the public information as follows:
https://www.archives.gov/federal-register/laws/administrative-procedure/552.html
Jose’s reaction was wow I guess all of this stuff is interconnected so no wonder it takes so long to create regulations to comply with new legislative acts.
The various state government agencies write their administrative regulations in compliance with their own Administrative Procedure Acts.
"The National Conference of Commissioners on Uniform State Laws (NCCUSL) The Uniform Law Commission provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law."
Retrieved 11 September 2016 from:
http://www.uniformlaws.org/
"The Model State Administrative Procedure Act (MSAPA) was first promulgated by the Uniform Law Commission (ULC) in 1946. The Federal Administrative Procedure Act was drafted at about the same time as the 1946 Act, and there was substantial communication between the drafters of the two acts. The MSAPA has since been revised three times: 1961, 1981 and the most recent revision was completed and adopted by the ULC in July of 2010."
Retrieved 11 September 2016 from:
http://www.uniformlaws.org/ActSummary.aspx?title=State%20Administrative%20Procedure%20Act,%20Revised%20Model
The NCCUSL created the new 2010 update of the State Administrative Procedure Act but it has not been enacted by any of the states yet.
Retrieved 11 September 2016 from:
http://www.uniformlaws.org/Act.aspx?title=State%20Administrative%20Procedure%20Act,%20Revised%20Model
Not all states have adopted the Model State Administrative Procedures Act but they have all passed a version of such an act. Specific adoptions of the Acts are found at the various state websites. Following is the California website:
ADMINISTRATIVE PROCEDURE ACT *
Retrieved 11 September 2016 from:
http://www.oal.ca.gov/Administrative_Procedure_Act.htm
The Florida State University School of Law has a list by state.
Retrieved 11 September 2016 from:
http://www.law.fsu.edu/library/admin/admin3.html
Interest Group Participation in Public Administration
Participation Examples
Maria stated that many people are not aware of their ability to participate in the regulatory process. Jose thinks that sometimes the generally uninformed participation by citizens can be detrimental to the regulatory process. Maria responds that our system does allow for that participation even when it is inappropriate and hopefully the courts will sort out issues that might affect peoples' rights.
Following is a Federal Government website that allows for comments on the various regulations.
"Participate Today!
Submit your comments on proposed regulations and related documents published by the U.S. Federal government. You can also use this site to search and review original regulatory documents as well as comments submitted by others.
Help improve Federal regulations by submitting your comments."
Retrieved 11 September 2016 from:
http://www.regulations.gov/#!home
Maria indicates that the following shows where participation by the public was not appropriate but it was overturned as indicated by this Federal District Court ruling on a California passed voter initiative concerning gay rights.
Proposition 8 Is Unconstitutional Because It Denies Plaintiffs a Fundamental Right Without A Legitimate (Much Less Compelling) Reason
Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 United States District Court for the Northern District of California US 624, 638 (1943).
Conclusion
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional. (Perry v. Schwarzenegger in The United States District Court For The Northern District Of California 2012)
Jose stated that he does not think many people are aware of the participation opportunities provided by the regulatory websites so more should be done to encourage involvement in many of the issues. Maria is very interested in reading what some of the students think in the discussion forum when they click on the above comments link reposted in the Participation Questions.
Jose pointed to the California court decision on gay rights to indicate that his view concerning participation by those outside of government was inappropriate since they could not understand all of the details necessary to make a valid decision. The court overruled the voters in this gay rights case so why have them participate in rule making.
Lobbying
Maria is in favor of public participation in government but probably not the kind we are used to. 
Interest group participation in public administration often means lobbyists jockeying for their particular interest. The voters are supposed to be the primary interest groups that the elected officials try to respond to but lobbyists are the ones vying for attention and providing elected officials with various incentives for acting in their behalf. We see specific interest groups pushing for specific legislation so there is always a concern about how that legislation will be perceived by the voters. Names attached to the legislation may not be a true description of the content of that legislation. 
Jose points out that many non-profits have industry affiliations and goals to promote and protect that industry.
BSA | The Software Alliance (www.bsa.org) is the leading advocate for the global software industry before governments and in the international marketplace. Its members are among the world’s most innovative companies, creating software solutions that spark the economy and improve modern life.
With headquarters in Washington, DC, and operations in more than 60 countries around the world, BSA pioneers compliance programs that promote legal software use and advocates for public policies that foster technology innovation and drive growth in the digital economy.
Retrieved 11 September 2016 from:
http://www.bsa.org/about-bsa
Maria is getting an education on the scope of the non-profit industry in the USA and in the world. 
Jose or Maria may be aware of and in favor of the nomenclature attached to legislation but they may not necessarily know of or like the specific provisions of that legislation. The Patriot Act as an example has provisions on privacy issues and detention that neither Maria nor Jose like but for vastly different reasons.
There is basically an organization for every conceivable interest group that you can imagine. Most of these interest groups receive favorable tax treatment through our non-profit tax regulations. The various groups could range from union organizations for specific employee issues to environmental groups for the general well-being of the citizens.
The legal interest groups are often concerned with the compliance of public administration with the basic tenets of the Constitutions that establish the public sector. An example of this is that some of the legal groups frown upon using restricted categories to predict the behavior of individuals. Race, sex, religion would be examples of profiling that would catch the attention of various legal groups.
Jose considers himself very conservative and wants to limit government involvement in his personal life. The American Civil Liberties Union (ACLU) typically fights the government in cases associated with individual rights but for some reason the ACLU is not Jose's favorite group. Maria thinks the ACLU often does the wrong thing too so it is very hard to classify a group as conservative or liberal but the groups usually have a persona. Jose and Maria both think the ACLU is a liberal left leaning organization. Jose will not admit that he likes the ACLU but it does espouse Jose's philosophy of protecting the individual from the government.
"For nearly 100 years, the ACLU has been our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country."
Retrieved 11 September 2016 from:
https://www.aclu.org/about-aclu
At times there are blurs between interest groups and political action groups. The Republican and Democratic Political parties as an example seek contributions but those contributions are not tax deductible. The Tea Party groups on the other hand identify themselves as non-profit groups disseminating information so they can have the benefit of tax-deductible contributions.
"The Tea Party is a grassroots movement that calls awareness to any issue which challenges the security, sovereignty, or domestic tranquility of our beloved nation, the United States of America."
Retrieved 11 September 2016 from:
http://www.teaparty.org/about-us/
Maria thought the Internal Revenue Service (IRS) was right to audit the various Tea Party organizations that claim non-profit rather than political status since they have people in Congress that identify themselves as Tea Party members and the Tea Party is constantly mentioned in political discussions. Maria told Jose that the IRS was right to single out the Tea Party groups to audit their non-profit status claims because there is a blur between their eleemosynary and political actions. Jose stated that singling them out for audit was an outrageous intrusion by the liberally focused government administration into a conservative group dear to his heart. Jose and Maria are not getting along but they do seem to be switching sides now and then without realizing it. A conservative such as Jose would normally want to check the Tea Party organizations status as non-profits, trust but verify, as former President Reagan was fond of saying and a liberal like Maria would probably take the groups at their word unless there was probable cause to disagree with the claims of a particular group. 
Jose and Maria made it through week one but they still have five weeks to go to try to settle their differences while still maintaining their good educational relationship.
Legend:
Black = Instructor composed information
Maroon = Notes/Simulated discussion 
Blue = Quotations copied from the referenced website
© 2017 Bernard F. Cookson

 

Law and Public Administration Lecture

Law/PA513

30 January 2017

Bernard F. Cookson


Abstract

Law and Public Administration is a six-week class that explores various aspects of public administration as follows:

Introduction to Public Administration

Federalism and Intergovernmental Relations

Government Regulations and Agency Rulemaking

Policy Analysis and Implementation

Agency Accountability

Agency Ethics and Future Trends in Public Administration

The material here is limited to week #1.

 We follow two students through a conversation on the issues that are often political in nature since they involve government intrusions into the lives of citizens around the nation. The two students Maria and Jose do have a common heritage but they have developed radically different political philosophies. The differences in viewpoints are what makes their discussions interesting and it highlights the controversies that can be envisioned once you start describing and explaining governmental public administration.

The material discusses the six headings in bolded type above from liberal and conservative perspectives that sometimes seem to intertwine so it is really difficult to remember which side of the argument each person is on. Differences are sometimes blurred when you take a moment to understand the other side's perspective. It is too bad that people in government sometimes get so caught up in their own agendas that they do not take those moments and find some synergy rather than traveling down their own divergent paths. Hopefully we will find a lot of common ground over the next six weeks of discussion.

Legend:

Black = Instructor composed information

Red = Notes/Simulated discussion

Blue = Quotations copied from the referenced website


LAW/562
LAW AND PUBLIC ADMINISTRATION

Lecture: Week #1

In order to see the entire lecture for this week click on: "" on the right of your UoP screen. You may then select all, copy and paste the lecture into a format of your choice for offline viewing. Please remember the lecture is copyrighted so excerpts with references are appropriate.

Following are the topics for this week:

Introduction to Public Administration

  • Contrast the differences between public administration and private management.
  • Identify the various sources of administrative law in the U.S. (specifically federal Administrative Procedures Act (APA), uniform state APA of 1946 as amended, etc.).
  • Describe the general avenues of interest group participation in Public Administration.

Maria and Jose are two young people enrolled in a law class discussing the differences between public administration and private management. This was an unlikely topic for two young people but they are now UoP graduate students taking a class and trying to understand what they originally thought might be a rather boring subject. Their differences of opinion on many issues are changing their class outlook. Maria and Jose have developed very different political views over their short lifetimes. When they talked about some of these class issues they did not agree very often since they have developed vastly diverging philosophies. Opposites do attract though so they really were drawn into these discussions. As all good students do Maria and Jose have read the Instructor Policies for this class so even when they are forcefully disagreeing about various political issues their discussions will follow those posted rules.

Quote from the posted instructor policies:

"Our discussion goal is to be collaborative, not combative. Experience shows that even an innocent remark in the online environment can be easily misconstrued. I suggest that you always reread your responses carefully before you post them to make certain that you have worded your message in a way that will not be seen as a personal attack! Always be positive in your approach to others and diplomatic with your words. I will do my best to do the same. Respect is the foundation of successful online teaching and learning."

 

Maria and Jose did have some common ground regarding the following distinctions between public administration and private management.

Contrasting Public Administration and Private Management

Public Administration

Public Administration refers to the functions conducted by a government agency while Private Management revolves around the operation of profit and non-profit independent organizations. Government agencies are usually perpetual and may even survive the actual government that formed them in the first place. We have seen some government organizations file for bankruptcy but usually they continue to exist. Our more recent prime example is the City of Detroit that has relieved itself of some massive debt after the loss of a large amount of its population. There are continuous news updates on the City of Detroit bankruptcy aftermath and here is a fairly recent article.

How Motor City Came Back from the Brink…and Left Most Detroiters Behind

Two years after going bankrupt, is Detroit still Detroit?

Retrieved 4 December 2016 from:

http://www.motherjones.com/politics/2015/06/motor-city-after-bankruptcy-and-detroiters-left-behind

            Jose thinks this is a great story and shows how the private and public sector can work together. Jose references the article as follows:

"Gilbert, founder and chairman of Quicken Loans and owner of the Cleveland Cavaliers, had already invested heavily in the city; in 2010 he moved Quicken's headquarters from the suburbs to downtown and relocated several of his businesses along with 12,500 employees. Six weeks before that White House meeting, the city had filed for the largest municipal bankruptcy in US history. Gilbert was in Washington as part of an elite delegation to discuss federal assistance for the country's most visibly dysfunctional city.     

The heads of the Kresge and Ford Foundations—large philanthropies that have roots in Detroit's industrial past and continue to invest in the city—were there, as well as the CEO of the Henry Ford hospital system and the then-chair of Wayne State University's Board of Governors."

            Maria counters with her own reference to the same article and indicates that the residents of the city that went bankrupt have absolutely no voice in its recovery.

"Gilbert's fist-pounding proved persuasive. Several weeks after the White House meeting, the Obama administration pulled together a $300 million aid package for Detroit, made up of combined federal and private dollars. There was money to hire firefighters, repair buses and begin the construction of the M-1 Rail, a $140 million trolley line that will travel 3.3 miles through the city's gentrifying downtown. But almost half of the total was earmarked for blight removal, and Gilbert himself became co-chair of a task force charged with identifying the demolition targets. There are no minutes of the White House meeting, so it's impossible to know what discussion there was about the blight-removal approach. It also appears that not a single representative of the neighborhoods soon to be bulldozed—no minister, no community organizer, no teacher or city council member—attended the meeting. The closest person to a community representative was Dennis Archer, who had served as Detroit's mayor from 1994 to 2001."

            Maria goes on to indicate that the same article shows that the residents of the city that went bankrupt are being pushed out to make room for rich men to create development on the land of their former homes.

"Blight removal is not unique to this period in Detroit's history. It was also a strategy in the "urban renewal" era in the fifties and sixties, when thousands of black families were displaced from slums because planners thought that vacant land was more valuable. More recently, blight represents the lost fortunes of ordinary Detroiters. It is the ghost of Detroit's remarkable post-war reign as an industrial Mecca, a place that drew tens of thousands of young men and women from Kentucky and Ohio and West Virginia and Tennessee."

            Jose states that unfortunately that is the price of progress in America. Urban renewal is necessary for a fresh start. Detroit is now balancing the budget.

Matt Helms, Detroit Free Press 10:24 p.m. EST February 25, 2016

Detroit Mayor Mike Duggan told the City Council today that the city’s 2016-17 financial plan would mark the third straight year of balanced budgets, clearing the way for Detroit to come out of state oversight in 2017 — even with a $490-million hole in pension funding the city must begin to address.”

Retrieved 11 September 2016 from:

http://www.freep.com/story/news/local/michigan/detroit/2016/02/25/duggan-next-city-budget-have-3rd-straight-surplus/80931706/

            Maria says well let’s talk about Flint, MI just north of Detroit. Flint officials ended up poisoning the children of the city trying to save some money on the water supply. Jose says the city officials were just being fiscally responsible even though they made a few mistakes. Marie says you call this a few mistakes:

(CNN)Here is a look at the water crisis in Flint, Michigan, where cost-cutting measures led to tainted drinking water that contained lead and other toxins.

Since the water wasn't properly treated, lead from aging service lines to homes began leaching into the Flint water supply after the city tapped into the Flint River as its main water source.

Health effects of lead exposure in children include impaired cognition, behavioral disorders, hearing problems and delayed puberty. In pregnant women, lead is associated with reduced fetal growth. In everyone, lead consumption can affect the heart, kidneys and nerves. Although there are medications that may reduce the amount of lead in the blood, treatments for the adverse health effects of lead have yet to be developed.

Retrieved 8 December 2016 from:

http://www.cnn.com/2016/03/04/us/flint-water-crisis-fast-facts/

            Public administration often starts in free societies when Constitutions establish the relationship between the government and the people. The government organizations specified by those Constitutions are then created and they develop the public administration rules for their own existence and their interactions with the people.

"How the U.S. Government Is Organized

The Constitution of the United States divides the federal government into three branches to ensure a central government in which no individual or group gains too much control:

1. Legislative – Makes laws (Congress)

2. Executive – Carries out laws (President, Vice President, Cabinet)

3. Judicial – Evaluates laws (Supreme Court and Other Courts)"

Retrieved 11 September 2016 from:

http://www.usa.gov/Agencies/federal.shtml

In the United States the federal constitution provides designated powers to the federal government. Those powers not granted to the federal government are reserved to the states and the people. The states then have their own constitutions to guide those governments and the provisions of those state constitutions will vary rather substantially. The federal constitution though has the bill of rights encompassed in the first ten amendments to the federal constitution designed to protect the people from an overreaching government. The fourteenth amendment to the federal constitution makes it clear that the bill of rights also applies to the state governments when dealing with the people. The Executive branches of government operate the public administration organizations and they are charged with writing and executing the implementing regulations for the statutory laws passed by the Legislative branches of government. The Courts issue judicial pronouncements that rule on the Constitutionality of those laws and regulations. Our legal system actually precedes the Constitutions and through those years a system of precedent based common law evolved from the settlement of various disputes. Statutory laws passed by the legislative bodies have specifically superseded the common law on many occasions but the common law that remains coexists with statutory law so you will see both mentioned in some judicial proceedings.

Private Management

Private organizations are not subject to the state and federal constitutions but they do have to comply with the laws and resulting regulations generated by those government agencies created by the constitutional agreements. Private management has much more flexibility so those organizations can grow beyond their national boundaries or actually go broke and cease to exist. In the USA we have many private organizations whose primary pursuit is to secure a decent return on investment for the owners of the business. In addition, we have a large number of non-profit organizations whose primary purpose is to further a sponsors point of view, advance the interest of particular groups, support the welfare of various endeavors, help disadvantaged people, cure disease, support animals, champion various environmental issues, etc.

Maria would like to start a non-profit organization to help the poor while Jose would like to start a non-profit organization to educate the people on the advantages of private enterprise and the disadvantages of big government. Maria states that non-profits are all charitable organizations that help the poor, fight disease, etc. Jose thinks that Maria is kind of naïve and explains that there are many other types of non-profit organizations that are designed to further the public interest but they are not necessarily focused on helping the poor. As an example he points out the Rand Corporation.

The RAND Corporation is a nonprofit institution that helps improve policy and decision-making through research and analysis.

For more than six decades, RAND has used rigorous, fact-based research and analysis to help individuals, families, and communities throughout the world be safer and more secure, healthier and more prosperous. Our research spans the issues that matter most, such as energy, education, health, justice, the environment, and international and military affairs.  

Retrieved 11 September 2016 from:

http://www.rand.org/about/history.html

New Public Management (NPM)

Maria and Jose start to realize the diversity in their views and the discussion of NPM only confirms their suspicions. Maria and Jose were both born in the USA to Mexican parents that were not legally admitted into the USA. Maria also has siblings that came to the USA with her parents and they are not in the USA legally either. Maria states that she is a strong believer in NPM since the governed should be involved in making the governing decisions. Jose states that the traditional government role is to make decisions for the good of the governed since they are elected and appointed to perform those functions. The influence of her siblings based on their upbringing in Mexico may have something to do with the differing views between Maria and Jose but we shall see as time goes on.

Jose thinks the government is generally thought to be bureaucratic and not very responsive to the needs of the citizens and their various constituencies.

NPM is a movement to adopt some of the private sector motivational techniques and decentralized response systems to government operations. NPM was developed in Anglo Saxon countries other than the USA but adoptions of the NPM ideas have moved into many aspects of American governance.

Maria is not usually in favor of adopting things from other countries since she believes the USA is the greatest country in the world and that we already pretty much do everything better than anyone else.

Maria mentions Student Loans and touts that this is a great benefit for young people in the USA.

Retrieved 11 September 2016 from:

http://studentaid.ed.gov

Jose indicates that Maria may be surprised that the student aid loans may not even be dischargeable in Bankruptcy so if you run up a large debt but cannot obtain a good job you have a big problem. Jose works and pays for his college tuition while living with his parents.

"You must repay your loans even if you don’t complete your education, can’t find a job related to your program of study, or are unhappy with the education you paid for with your loan.  However, certain circumstances might lead to your loans being forgiven, canceled, or discharged."

"If you file Chapter 7 or Chapter 13 bankruptcy, you may have your loan discharged in bankruptcy only if the bankruptcy court finds that repayment would impose undue hardship on you and your dependents."

Retrieved 4 December 2016 from:

http://studentaid.ed.gov/repay-loans/forgiveness-cancellation

They both agree that students need to fully understand the regulations associated with student loans. Maria states that her siblings cannot get loans for college but she can. The following Federal Student Aid website should be reviewed by anyone obtaining student loans.

"Non-U.S. Citizens

Generally, if you have a “green card” (in other words, if you are a permanent resident alien), you will be considered an “eligible noncitizen” and will be able to get federal student aid if you meet the other basic eligibility criteria."

Retrieved 11 September 2016 from:

http://studentaid.ed.gov

Public administration is very complicated and it is required to respond to conflicting constituencies at various times. Public administration where possible is often being required to adopt the NPM approach that is focused more on customer satisfaction rather than strict compliance with various rules.

Maria is generally in favor of this NPM approach but in some areas she does show some of Jose's conservative trends. NPM practices make those government agencies more similar to Private Management operational needs. A good example of this is the administration of the various state run lottery systems. In order to attract the right revenue these groups must compete with private gambling establishments in their home or in neighboring states. Maria is a little concerned about the government encouragement of gambling even if they are using her favored NPM techniques.

Private management is not simple either since in addition to satisfying customers there are owners, employees, neighbors, suppliers, competitors and regulators that must be satisfied for continued operation of those private enterprises.

Sources of Administrative Law

The first assignment in this class asks for a paper exploring the federal and state Administrative Procedure Acts (APA).

Maria and Jose both explored the following links before writing their class APA papers that earned each of them an A.

The various federal government agencies write their administrative regulations in compliance with the federal Administrative Procedure Act.

Administrative Procedure Act (5 U.S.C. Subchapter II)

Retrieved 11 September 2016 from:

http://www.archives.gov/federal-register/laws/administrative-procedure/

http://www.law.cornell.edu/uscode/5/usc_sup_01_5_10_I_30_5_40_II.html

            After looking at this material Maria made note of the fact that the APA seems to incorporate other acts that we have heard about such as the Freedom of Information Act.

Administrative Procedure Act

The Freedom of Information Act

5 U.S.C. § 552

  • UNITED STATES CODE 
  • TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES 
  • PART I - THE AGENCIES GENERALLY 
  • CHAPTER 5 - ADMINISTRATIVE PROCEDURE 
  • SUBCHAPTER II - ADMINISTRATIVE PROCEDURE 


§ 552. Public information; agency rules, opinions, orders, records, and proceedings

(a) Each agency shall make available to the public information as follows:

https://www.archives.gov/federal-register/laws/administrative-procedure/552.html

            Jose’s reaction was wow I guess all of this stuff is interconnected so no wonder it takes so long to create regulations to comply with new legislative acts.

The various state government agencies write their administrative regulations in compliance with their own Administrative Procedure Acts.

"The National Conference of Commissioners on Uniform State Laws (NCCUSL) The Uniform Law Commission provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law."

Retrieved 11 September 2016 from:

http://www.uniformlaws.org/

"The Model State Administrative Procedure Act (MSAPA) was first promulgated by the Uniform Law Commission (ULC) in 1946. The Federal Administrative Procedure Act was drafted at about the same time as the 1946 Act, and there was substantial communication between the drafters of the two acts. The MSAPA has since been revised three times: 1961, 1981 and the most recent revision was completed and adopted by the ULC in July of 2010."

Retrieved 11 September 2016 from:

http://www.uniformlaws.org/ActSummary.aspx?title=State%20Administrative%20Procedure%20Act,%20Revised%20Model

The NCCUSL created the new 2010 update of the State Administrative Procedure Act but it has not been enacted by any of the states yet.

Retrieved 11 September 2016 from:

http://www.uniformlaws.org/Act.aspx?title=State%20Administrative%20Procedure%20Act,%20Revised%20Model

Not all states have adopted the Model State Administrative Procedures Act but they have all passed a version of such an act. Specific adoptions of the Acts are found at the various state websites. Following is the California website:

ADMINISTRATIVE PROCEDURE ACT *

Retrieved 11 September 2016 from:

http://www.oal.ca.gov/Administrative_Procedure_Act.htm

The Florida State University School of Law has a list by state.

Retrieved 11 September 2016 from:

http://www.law.fsu.edu/library/admin/admin3.html

Interest Group Participation in Public Administration

Participation Examples

Maria stated that many people are not aware of their ability to participate in the regulatory process. Jose thinks that sometimes the generally uninformed participation by citizens can be detrimental to the regulatory process. Maria responds that our system does allow for that participation even when it is inappropriate and hopefully the courts will sort out issues that might affect peoples' rights.

Following is a Federal Government website that allows for comments on the various regulations.

"Participate Today!

Submit your comments on proposed regulations and related documents published by the U.S. Federal government. You can also use this site to search and review original regulatory documents as well as comments submitted by others.

Help improve Federal regulations by submitting your comments."

Retrieved 11 September 2016 from:

http://www.regulations.gov/#!home

Maria indicates that the following shows where participation by the public was not appropriate but it was overturned as indicated by this Federal District Court ruling on a California passed voter initiative concerning gay rights.

Proposition 8 Is Unconstitutional Because It Denies Plaintiffs a Fundamental Right Without A Legitimate (Much Less Compelling) Reason

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 United States District Court for the Northern District of California US 624, 638 (1943).

Conclusion

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional. (Perry v. Schwarzenegger in The United States District Court For The Northern District Of California 2012)

Jose stated that he does not think many people are aware of the participation opportunities provided by the regulatory websites so more should be done to encourage involvement in many of the issues. Maria is very interested in reading what some of the students think in the discussion forum when they click on the above comments link reposted in the Participation Questions.

Jose pointed to the California court decision on gay rights to indicate that his view concerning participation by those outside of government was inappropriate since they could not understand all of the details necessary to make a valid decision. The court overruled the voters in this gay rights case so why have them participate in rule making.

Lobbying

Maria is in favor of public participation in government but probably not the kind we are used to.

Interest group participation in public administration often means lobbyists jockeying for their particular interest. The voters are supposed to be the primary interest groups that the elected officials try to respond to but lobbyists are the ones vying for attention and providing elected officials with various incentives for acting in their behalf. We see specific interest groups pushing for specific legislation so there is always a concern about how that legislation will be perceived by the voters. Names attached to the legislation may not be a true description of the content of that legislation.

            Jose points out that many non-profits have industry affiliations and goals to promote and protect that industry.

BSA | The Software Alliance (www.bsa.org) is the leading advocate for the global software industry before governments and in the international marketplace. Its members are among the world’s most innovative companies, creating software solutions that spark the economy and improve modern life.

With headquarters in Washington, DC, and operations in more than 60 countries around the world, BSA pioneers compliance programs that promote legal software use and advocates for public policies that foster technology innovation and drive growth in the digital economy.

Retrieved 11 September 2016 from:

http://www.bsa.org/about-bsa

            Maria is getting an education on the scope of the non-profit industry in the USA and in the world.

Jose or Maria may be aware of and in favor of the nomenclature attached to legislation but they may not necessarily know of or like the specific provisions of that legislation. The Patriot Act as an example has provisions on privacy issues and detention that neither Maria nor Jose like but for vastly different reasons.

There is basically an organization for every conceivable interest group that you can imagine. Most of these interest groups receive favorable tax treatment through our non-profit tax regulations. The various groups could range from union organizations for specific employee issues to environmental groups for the general well-being of the citizens.

The legal interest groups are often concerned with the compliance of public administration with the basic tenets of the Constitutions that establish the public sector. An example of this is that some of the legal groups frown upon using restricted categories to predict the behavior of individuals. Race, sex, religion would be examples of profiling that would catch the attention of various legal groups.

Jose considers himself very conservative and wants to limit government involvement in his personal life. The American Civil Liberties Union (ACLU) typically fights the government in cases associated with individual rights but for some reason the ACLU is not Jose's favorite group. Maria thinks the ACLU often does the wrong thing too so it is very hard to classify a group as conservative or liberal but the groups usually have a persona. Jose and Maria both think the ACLU is a liberal left leaning organization. Jose will not admit that he likes the ACLU but it does espouse Jose's philosophy of protecting the individual from the government.

"For nearly 100 years, the ACLU has been our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country."

Retrieved 11 September 2016 from:

https://www.aclu.org/about-aclu

At times there are blurs between interest groups and political action groups. The Republican and Democratic Political parties as an example seek contributions but those contributions are not tax deductible. The Tea Party groups on the other hand identify themselves as non-profit groups disseminating information so they can have the benefit of tax-deductible contributions.

"The Tea Party is a grassroots movement that calls awareness to any issue which challenges the security, sovereignty, or domestic tranquility of our beloved nation, the United States of America."

Retrieved 11 September 2016 from:

http://www.teaparty.org/about-us/

Maria thought the Internal Revenue Service (IRS) was right to audit the various Tea Party organizations that claim non-profit rather than political status since they have people in Congress that identify themselves as Tea Party members and the Tea Party is constantly mentioned in political discussions. Maria told Jose that the IRS was right to single out the Tea Party groups to audit their non-profit status claims because there is a blur between their eleemosynary and political actions. Jose stated that singling them out for audit was an outrageous intrusion by the liberally focused government administration into a conservative group dear to his heart. Jose and Maria are not getting along but they do seem to be switching sides now and then without realizing it. A conservative such as Jose would normally want to check the Tea Party organizations status as non-profits, trust but verify, as former President Reagan was fond of saying and a liberal like Maria would probably take the groups at their word unless there was probable cause to disagree with the claims of a particular group.

Jose and Maria made it through week one but they still have five weeks to go to try to settle their differences while still maintaining their good educational relationship.

 

Legend:

Black = Instructor composed information

Red = Notes/Simulated discussion

Blue = Quotations copied from the referenced website

© 2017 Bernard F. Cookson