THE TIMID PUBLIC MANAGER: A SLOW-MOVING TARGET FOR CIVIL SUITS

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THE TIMID PUBLIC MANAGER: A SLOW-MOVING TARGET FOR CIVIL SUITSAuthor(s): GERALD J. MILLERSource: Public Administration Quarterly, Vol. 10, No. 4 (WINTER, 1987), pp. 410-418Published by: SPAEFStable URL: http://www.jstor.org/stable/41575719 .

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THE TIMID PUBLIC MANAGER:

A SLOW-MOVING TARGET

FOR CIVIL SUITS

GERALD J. MILLER

Rutgers University

INTRODUCTION

No greater source of confusion exists in public administration than the appropriate place for responsivness and responsibility . On the one hand, we greet the stereotype of public managers who fear making a mistake; on the other, one finds the dogma that managers must act quickly and decisively.

The problem of civil liability presents a crucial problem which lies at the center of the clash between the companion fears of negligence and overzealousness. At once, managers find their very financial integrity threatened. Yet, professionalism prozelytizes for action: "get on, get over the mistakes, go on, go on."

Going back through the myriad court opinions and other comments on liability issues, one discerns the same emphasis: not only acting, but acting fairly. Initially, the courts made clear the link between an administrator's civil liability for civil rights violations and negligence law. Doing or acting decisively profoundly envelopes the issue. Consider two examples. The first comes from Justice Douglas in the crucial 1961 case of Monroe v. Pape (365 U.S. 167). He defined liability as the force necessary to ensure that public officials do their jobs.

To stop the Ku Klux Klan in 1871, Douglas said, the Congress did not pass criminal laws outlawing that group's acts. Rather, Congress passed a law, the Civil Rights Act of 1871 [J], providing citizens a remedy for the negligence of public



PAQ WINTER 1987 (411)

officials. Justice Douglas said that, while one main 4 'scourge'' of the evil remedied by the Act of 1871 was the Ku Klux Klan, the remedy the act created was not a remedy against the perpet- rators but agsinst those who, representing the state in some capacity, were unable or unwilling to enforce the state law prohibiting the work of the Ku Klux Klan.

To emphasize the point: the primary reason for liability has been action, especially in the act's willingness to provoke action on the part of public officials. Most importantly, the law held officials accountable for doing nothing to stop the KKK. By virtue of holding public officials accountable for the foreseeable consequences of their acts, the law forces these public officials to act to protect individuals' rights.

By the same token, negligence law persuades one to avoid recklessness. Thus a second example of liability thought tends to relate administrators' responsibility to harness disparate efforts through organization.

As one observer said: (McManis, 1979)

The fundamental principle of our freedom also make sound principles of management. Indeed, throughout the cases imposing personal liability for civil rights violations, the common thread is poor administration, whether it be poor training and supervision of employees, or poorly conceived or nonexistent administrative procedures.

The liability question, to McManis, was not one of being more cautious or more timid, but making the public service "achieve- ment prone."

Personal liability teaches one to guard against the extreme of inaction; that is, public management which is too weak, too inept, too timid to act responsively. Importantly, liability also calls for decisiveness but fairness in order to check the inherent strength of unharnessed governmental action. Nevertheless, the trick is to balance responsiveness with responsibility, to promote excellence while guarding against excess.

The first step toward understanding the balance between responsiveness and responsibility is accurately estimating the size of the liability problem. The statistics on litigation create uneasiness for any public manager who reads them. Since 1960, when plaintiffs filed about 300 civil rights suits in all of the



(412) PAQ WINTER 1987

federal courts, the number has multiplied. In 1980, there were about 30,000 suits filed. Yet, analysis of the data shows a startling fact: most of these suits were prisoner petitions. A much smaller number, about 7,000, were liability suits against government officials for negligence or actual injuries to citizens. Seven thousand suits across about 40,000 governments and several million public managers, while still serious and growing more so, is not the picture one gets from stories of bankrupted governments or even from stories of large, out-of-court settlements. [2]

The litigation problem is a statement about public management: that the role we play in management has a tough side to it. Remember that, theoretically, one pays lip service to a standard role, that of neutral civil servant. The traditional role of neutral civil servant emphasizes neutral and servant. The public manager is an instrument, not a director of action, a machine or tool, not an actor. The manager serves the political decision-maker and the organizational hierarchy, never anything else, unless it is technical competence, narrowly defined.

This role served as a conceptual basis for the reform movement, as Rosenbloom (1982) pointed out but it hardly depicts reality. Perhaps a different role describes reality more faithfully. Another role, others have argued, is that of a trustee, a fiduciary. We can conceptualize the trustee as one who learns and adapts to an environment, often murky and hard to discern. In other terms, the trustee is one who encourages adaptability among organization members often at the price of encouraging interest aggregation and internal dissent in order to gain information.

In a trustee system, information is wrenched from partici- pants in their own interest. It is a relationship involving a trustee for the rights and obligations of individuals and collectivities and is government by social contract in which government performs functions, in trust, which the individual or collectivity cannot do by itself. Thus, it is the government, with the manager as agent, which takes in trust certain rights and responsibilities of another and manages the trust in a benefici- ary's interest. The trustee role is evolving and has special difficulties, one of which is liability. Increasingly, citizens have




come to insist that those entrusted with individual and collective well-being- not just our various governments but our professions and our corporations- accept the legal responsibilities of a fiduciary as well. This fiduciary relationship is one in which: (Robins v. Hope , 57 Cal. 497)

neither party may exert influence or pressure upon the other, take advantage ... or deal ... in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other ... shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence of another being totally prohibited.

No more onerous duties known to law exist than those of a trustee and the courts have been hard on these new, unwilling fiduciaries.

Fiduciary rules present difficulty when one tries to translate them into operationally precise terms. Standards, rather than rules, become the norm but the resulting imprecision prompts litigation. How does one define the due process to be afforded a dismissed employee, the equality of protection which an Hispanic job applicant deserves, or the professional competence that a trainer must provide a trainee?

Perhaps some rules of conduct do exist, however. [3] Five such rules based on liability law will be examined.

First, public officials cannot act unreasonably, in bad faith. (Scheuer v. Rhodes , 416 U.S. 232, 1974) "Acting unreasonably," however, depends upon the background and circum- stances surrounding an action. Determining good faith requires one to judge the intentions of an official taking a questionable action. For example, does the sheriff in a rural county intend bad faith when he locks up some of his employees after finding out that they had voted for his opponent?

Second, courts have ruled that public managers are liable for acts which they know or should have known were illegal at the time they acted. (Wood v. Strickland , 420 U.S. 308, 1975) Just as the citizen must know the law, a public manager has the same responsibiliity, if not more so.

Third, the courts hold officials liable when their acts or omissions are sufficiently harmful, suggesting deliberate




indifference to constitutional rights. (Estelle t>. Gamble , 429 U.S. 97, 1976) Liability holds when a pattern of incidents exists which one could characterize as "wanton," "reckless" or "grossly negligent." For example, accidently tipping a flower pot off a second floor balcony onto a pedestrian is mere negligence, simple and, most of the time, unavoidable. Dropping the flower pot on the person deliberately -to prevent pedestrains from walking by- is wanton, reckless, and gross negligence.

Fourth, public officials, as supervisors, can be held liable. They have responsibility when they become personally involved in the acts of subordinates which courts have found to be unreasonable and in bad faith.

Fifth, public officials can be held liable when they had knowledge of the probability of a given negligent act and did nothing to try to stop it. Most often, this involves police officers and supervisors. For instance, an officer who has used wrongful force once would probably not be found liable, although exceptions exist. If he has not been restrained, suspended or otherwise disciplined and commits a violent act using wrongful force again, he may be liable, but so will his superior be.

What should a manager do to avoid liability and ensure a responsive but responsible organizational effort? First, one could cede all action having legal implications to the attorney. The attorney can defend the government or the manager, or the attorney can countersue to contend with frivolous suits, or the attorney can help set up a legal fund to defray the cost of contesting and, hopefully, changing the law on liability.

Second, one can cede all action to the political leader. The political leader can influence legislation to limit liability to specific acts and limit damages one might have to pay. The political decision-maker also can indemnify the employee and allow the governmental unit to pay for counsel and judgment if the case is lost.

Third, one can cede all action the to claims agent, who can pay all claims.

Fourth, one can cede action to the fiscal agent who can design systems of organizational introspection and devise funding strategies to prevent organization insolvency.




All of these efforts in combination have value. Ceding action to anyone else, however, will never solve the real problem: how to get the work of government done, to use the power granted public managers to act in the public interest. Alone, such efforts react to, instead of anticipating problems. They provide piecemeal rather than comprehensive action. And they set in place destructive, competitive crosscurrents as one department gains an artificial mandate to check and evaluate the work of others.

However, one can achieve more by designing a system which promotes organization excellence and preserves managerial control- a self-forcing/self-enforcing system. [4] Managers must create within their departments or agencies a means of identifying problems when they arise, of making the people in them want to do what is needed, and of proceeding to the point where the system - coordinated individual effort - literally learns to run itself.

A self-forcing/self-enforcing system is essentially a pressure system. It corrects significant errors and prevents major distortions from arising. Yet, the system operates primarily through indirect pressure rather than through coercion or authoritarianism .

How does one orchestrate an indirect pressure system? Here are six rules. (Sayles and Chandler, 1971)

1. Organize on the basis of task or mission. People with a task orientation (Harrison, 1972) devote their energy to solving problems rather than controlling and policing people and reinforcing roles and rules. Less effort is displaced in determining in whose territory problems belong, while rewards follow tangible evidence of having solved problems rather than having gained some sort of proficiency at holding down a role. One's ability is judged more on contributions to a group's work than to tenure.

2. Promote interdependency to induce cooperation. A manager promotes interdependency by controlling the amount of dependency one group or person has on another. Often two projects in tandem can create interdependency as when superior and subordinate roles become reversed in each project. Natural interdependencies work best when:




•people have worked well in the past; •workers seem to view the world in similar ways; •workers prefer to work with each other; •workers work well together outside the organization; and •some well-meaning rules, such as those dealing with nepotism, are disregarded in the interest of cooperation.

3 .Promote parallel efforts among groups to induce constructive competition . A certain amount of organizational redundancy may help to get the job done. Such competition may actually be constructive. Redundancy should mean simply acting in complementary ways: two or more efforts can be launched at the same time but with different approaches to solve a particular problem. The problem, therefore, becomes the province of no one group or even of any one task force. In fact, emphasizing the task and instilling competition may actually speed solution. More than anything, redundancy prevents sovereignty or the ability of any one group to gain a stronghold, to veto other's work or to prevent solutions.

4. Develop alternative sources of effort which support the collaborative efforts of those inside the organization . Perhaps the most dangerous threat to collaboration is its threat to one's job. Sovereignty, after all, does breed security. A major way to gain cooperation- to ensure the security of individuals- is to follow the Japanese example. The Japanese economize on commitment. Some employees- the core - have a lifetime commitment to the organization and vice versa. These people always have work and are buffered by temporary workers and contracts with vendors. In times of cutting back, the core stays and the temporaries and contractors go. For example, during an economic downturn, Mazda supported a core group of workers by giving sales jobs to some of its line manufacturing workers.

5. Penalize those who resist collaboration and who stay outside group activities . Managers can subtly penalize resistance to collaboration. Managers who resist may find themselves outside after plans are made and forced to carry out a plan which they had no part in formulating.

6. Prevent efforts by those who tend to hide information and encourage those who reveal it. Most of the time, information




lies hidden. Cross-functional or departmental efforts often solve this problem but, still, organizations lose much information unnecessarily. Incentives to seek information and, even more importantly, incentives for all to act on information sponta- neously when it appears, should form the heart of a self-forcing, self-enforcing system. One of the ways to handle the problem of hidden information or information hiding lies in rewarding the reporting of errors and penalizing their hiding. Another is a sign-off system whereby everybody who worked on a project signs off and all bear responsibility for not revealing potential or recognized problems.

CONCLUSION

The self-forcing/self-enforcing system directly confronts the problem of a liability suit- that queasy feeling one gets when the process server arrives at the office one morning, papers in hand. The system acts hrst to reduce the chance of inaction, even negligence, by putting indirect and subtle pressures and incentives on workers to force decisions and to recognize information. The system works to prevent overaction in the form of irresponsibility by creating cross-pressures which identify such situations in the making and harness the pressure system to prevent or solve the unreasonable or bad faith problems of agency executives.

This conclusion, without much risk, can be generalized even more. We, as managers, have the managerial knowledge and, undoubtedly, the talent to perform the functions of the government executive. That we will not teach or use it until the liability threat looms indicts public administration and declares our own timidity. Public management too weak, too inept or too timid to use its power is useless. Civil liability reminds managers, not of limits, but of the role, responsibilities, and full reach of trusteeship.

NOTES

1. The Civil Rights Act of 1971 states simply: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory,




subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

2. See the various accounts of South Tucson, Arizona, for example, including present day efforts to quell the explosion of insurance premiums.

3. For a discussion of these rules in the context of administrative ethics, see Jack Rabin, Gerald J. Miller, and W. Bartley Hildreth (1981). "Administrative Mal- practice Suits, Tort Liability, and the Challenge of Professionalism." Public Personnel Management 10 (Special Issue): 119-1 25, 122.

4. See especially, Robert T. Golembiewski (1985), chapters 5-8 and pp. 318-361. The concept itself comes from Sayes and Chandler (1971).

REFERENCES

Golembiewski, Robert T. (1985). Humanizing Public Organizations. Mt. Airy, Md.: Lomond.

Harrison, Roger (1972). "Understanding Your Organization's Character." Harvard Business Review 50:3, 122.

McManis, Charles (1979). Personal letter, dated April 10. Rosen bloom , David R. (1982). "Politics and Public Personnel Administration: The Legacy of 1983," in David R. Rosenbloom (ed.). Century Issues of the Pendleton Act of 1883: The Problematic Legacy of Civil Service Reform. New York: Marcel Dekker.

Sayles, Leonard R. and Margaret K. Chandler (1971). Managing Large Systems ; Organizations for the Future. New York: Harper and Row.



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THE TIMID PUBLIC MANAGER: A SLOW-MOVING TARGET FOR CIVIL SUITS