Case Study: Brand X

Case Study:
National Cable & Telecommunications Association et al. v. Brand X Internet Services et al. (2005)

Full Text of the Opinion: http://www.techlawjournal.com/courts2003/brandx/brandx_scus.pdf

1. Background and Summary of Case.

In February, 2015, the FCC released the 2015 Open Internet Order. Among other things, the Order reclassified broadband Internet access as a telecommunications service subject to common carrier regulation under the FCC’s Title II authority, pursuant to authority granted by the Telecommunications Act of 1996. Litigation in federal courts has already begun to challenge the FCC’s new regulatory scheme, including the FCC’s authority to change broadband’s existing classification from an information service regulated under Title I (in which it was not subject to common carrier regulatory practices).

However, Brand X clarifies the Supreme Court’s perception of this authority. Although in Brand X the Court upheld the FCC’s authority to classify broadband as an information service and not a telecommunications service, the rationale of the majority opinion clearly supports the opposite decision, too. Brand X recognizes the FCC’s authority to make this decision, regardless of which way it decides to classify.

The opinion discussed in this case study was issued concurrently on June 17, 2005 with the certiorari on Federal Communications Commission et al v. Brand X Internet Services et al. It reverses the decision of the Ninth Circuit Court of Appeals which had ruled against the FCC’s classification of broadband as an information service. The Ninth Circuit had reasoned that because cable modems used telecommunications technology, classifying broadband as telecommunication service was the best interpretation of The Telecommunications Act of 1996. The Ninth Circuit reasoned that since the FCC did not make the best interpretation, the agency’s classification could be struck down by the court. Supreme Court Justice Thomas’ majority opinion found fault with the Ninth Circuit’s reasoning.

2. Major Points of Reasoning.

The majority found the FCC’s construction of language from the Telecommunications Act of 1996 to be well within its lawful authority. Much of the opinion provides a primer on internet technology, both emerging and converging at that time. It gives the appropriate technological and policy background for why the thorny distinctions between “information” and “telecommunication” services exist in the first place. Given the complexity of this discussion, it suffices to say it allowed the Court to assert that the FCC’s interpretation of The Act was, in fact, reasonable. That it may not have been the best or even the only interpretation was beside the point to the Court, so long as it was reasonable.

In terms of precedent, the Court disapproved of the Ninth Circuit’s use of AT&T Corp. v. Portland which held that cable modem was a telecommunications service. The Court asserted that the proper precedent to use was Chevron. The Court’s reasoning began first with establishing the ambiguity of The Act, an ambiguity immediately obvious upon any reading of the legislation, and a persistent regulatory problem in more cases than this one.

The Court then uses this ambiguity to establish Chevron as the correct precedent in such a case: “If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation. Id., at 843-844, and n. 11” (Thomas, 2005, p. 8).

Therefore, the majority opinion in Brand X clearly established:
1. The Telecommunications Act of 1996 is ambiguous regarding the definitions and classifications of “telecommunications services” versus “information services”, and
2. This ambiguity affords the FCC the authority to classify the services and create regulation based on a reasonable interpretation of the given wording, and
3. This interpretation does not need to agree with any particular court’s preferred reading of the ambiguity but must only be reasonable, and
4. In such a scenario where a court might read The Act differently than the FCC might, the courts must defer to the FCC (per Chevron).

In short, the FCC has authority under the ambiguous terms of the Telecommunications Act of 1996 to classify cable modem internet access as either information service (regulated under Title I) or telecommunications service (regulated under Title II) as it sees fit. Therefore, when considering the 2015 Open Internet Order, it is entirely reasonable to accept the FCC’s authority to now reclassify broadband as a telecommunications service (Title II) despite its earlier classification to the contrary, for this classification power rightly belongs to the FCC.

3. Dissenting Opinion.

Justice Scalia’s dissenting opinion focuses on his belief that because a cable modem has a telecommunications function, it by definition renders broadband cable Internet access a telecommunications service. This contrasts with majority arguments that the essential service provided as broadband Internet access is, by definition, an information service, and the modem is simply a functionally inseparable tool for providing the actual underlying service.

Scalia’s dissent also argued that the “Chevron deference” to agency interpretation gave federal agencies a dangerous amount of power to take “action that the Supreme Court found unlawful” by creating an environment where “judicial decisions” are “subject to reversal by Executive officers” (p. 14, p. 13).

4. Conclusion.

If the distinction between “information” and “telecommunication” services appears confusing or arbitrary, it is exactly this artificial and legally cumbersome distinction between converging technologies the 2015 Open Internet Order seeks to eliminate. While the majority may have been correct on their legal definitions, Scalia too was correct in his insight that these technologies could not logically or meaningfully be separated.
The FCC’s interpretation of Brand X agrees with this analysis. Section C.43 of the 2015 Order refers to both the majority and dissenting opinions of this case. And it states in no uncertain terms,

“Exercising our delegated authority to interpret ambiguous terms in the Communications Act, as confirmed by the Supreme Court in Brand X, today’s Order concludes that the facts in the market today are very different from the facts that supported the Commission’s 2002 decision to treat cable broadband as an information service” (FCC, 2015, Feb. 26, p. 14).

Opponents of the 2015 Open Internet Order who argue the FCC lacks authority to reclassify broadband under Title II betray a shallow understanding of the Brand X case. The FCC may have classified broadband one way for years, but that classification is theirs to make—or, as is now the case, to remake.

Case Study: Obergefell v. Hodges

Case Study:
576 U.S.; Obergefell v. Hodges, Director, Ohio Department of Health, et al. (2015)

Full Text of Opinion:
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

1. Summary of Case and Decision.

This case addresses several cases consolidated by the Sixth Circuit Court where same-sex couples filed District Court suits when their States had either denied them marriage licenses or refused to recognize same-sex marriages performed lawfully in other States. The District Courts all ruled in favor of these people, but the Circuit Court reversed and ruled against them.

Associate Justice Kennedy’s majority opinion reversed the Sixth Circuit Court’s decision. The Supreme Court determined States must grant marriage licenses to same-sex partners and recognize the legality of same-sex marriages performed in other States, per the Fourteenth Amendment.

2. Opinion as to Jurisdiction and Justiciability.

The opinion asserts marriage is a fundamental civil right and therefore covered by the Fourteenth Amendment “guarantee of equal protection” as a fundamental constitutional right. The opinion argues the Court can strike down laws which create inequality even when such laws have not been previously challenged. The opinion rejects arguments that more debate and studies need to be done, arguing that a body of law and literature has sufficiently addressed the question, and that “individuals who are harmed need not await legislative action before asserting a fundamental right.”

The Court refused to leave the fundamental right to marry in the hands of State legislatures because citizens were being denied Constitutionally-protected liberties. The opinion asserts this fundamentally constitutional matter falls within the jurisdiction of the Court and is entirely justiciable, not a matter which must await State legislation.

3. Opinion as to the Definition of Marriage.

The opinion’s discussion of the definition of marriage is broken down into several arguments. First, the opinion rejects arguments that same-sex marriages demean marriage, reasoning that same-sex applicants clearly place a high value on marriage or else would not pursue it. Second, the opinion recognizes that the institution of marriage has greatly changed and been redefined throughout history, and the inclusion of same-sex partners is merely one more phase in that historical trend. (The opinion refers especially to prior laws banning inter-racial marriages, though it touches on other historical trends such as arranged marriage.) Finally, the opinion gives no credence to arguments on the immorality of homosexual acts, arguing instead that laws to that effect demean citizens.

4. Opinion as to Marriage as a Fundamental Constitutional Right.

Four principles support the opinion’s assertion that marriage is a fundamental, constitutional right. First, the choice to marry is “inherent in the concept of individual autonomy.” Second, marriage “supports a two-person union unlike any other in its importance to committed individuals.” Third, marriage “safeguards children and families” by providing stability and dignity. (The court rejects arguments that intent to procreate is a qualification for marriage, reasoning that even opposite-sex unions may choose not to procreate.) Fourth, “marriage is a keystone of the Nation’s social order” due to the role it plays legally and socially.

5. Dissenting Opinions.

Dissenting opinions claim the Court had the “power to say what the law is, not what it should be,” denying arguments on the constitutionality of marriage rights. Dissenters argued marriage has “always been understood” as between a man and a woman, and was understood as such when the Fourteenth Amendment was ratified. Dissenters argued this core definition is not subject to change until State legislatures or public referenda redefine it through the democratic process. Dissenters argued the Court was not interpreting law but making policy, a job reserved for the legislature.

Dissenters found no merit in applying the Fourteenth Amendment to marriage, arguing that the judicial role is not to determine which rights are fundamental constitutional rights. Alito argued the constitution gives the people the right to determine what marriage is, not a fundamental right to marry regardless of gender. Thomas’ dissent focuses on the definition of liberty in terms of the Due Process and Equal Protection clauses of the Fourteenth Amendment, and argues that denying same-sex marriages in no way infringes upon a citizen’s liberty. He asserts that protected liberties are freedom from government interference, not necessarily freedom to do anything.

Dissenters argued that judicial precedent does not support the majority opinion, and the opinion is based solely on the majority’s belief that same-sex couples should be able to marry.

6. Conclusion.

Though I am glad for the Supreme Court’s decision, the Dissenters have valid reservations about the Court’s pushing the boundaries of its power. However, future generations will look back on this decision as favorably as Brown v. Board of Education, where the Court exercised power to strike down segregated education, or even Abraham Lincoln’s decision to end the institution of slavery. Neither of these actions was viewed without dissent at the time. Yet progressive-minded people view them favorably, for they acted against discrimination, inequality, and bigotry.

A fully democratic process does little to prevent abuses of minorities. The majority can always vote to marginalize a minority group, and this is the weakness of leaving this matter to State legislatures. As long as the Supreme Court uses its power to provide equal civil rights, then I applaud its application of power. The letter of the law as to the boundaries of power will always be a subordinate concern to the primary questions of improving justice in a society based on equality and fairness.

APPENDIX: Amendment 14, Section 1 (of 5)

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Passed by Congress 13 June, 1866. Ratified 9 July, 1868.

Political Pitfalls of Solving Budget Problems with Taxation

Political Pitfalls of Solving Budget Problems with Taxation:
A Case Study Analysis

Matthew Howard
Northern Arizona University

PAS 421C: Public Agency Policy
February 9, 2013

Abstract

Budgeting serves three major purposes: control, planning, and management. Public agencies must create their budgets under intense political pressures from within and without. Internal competition, special interest groups, and conflicting desires in the public itself make budgeting difficult. In the case study, the City Manager faces all these challenges. His long term solutions (cross-functional teams and a review of team-generated cost-benefit analysis) have been covered previously. Here, we consider his short-term means of revenue by taxation, and the political downsides of all of them.

The Case Study in question is Balanoff and Pinto’s “What Do You do When your City is Looking at a Million-dollar Deficit in the Current Fiscal Year?” in Public Productivity & Management Review, 1999.

Purposes of Budgeting

Starling (2011) takes his three purposes of budgeting from a 1966 article in Public Administration Review: control, management, and planning (pp. 505-6).

Control. Budgets aim to control more than just how much money gets spent by an agency. They also control how, when, and on what that money gets spent. Audits play a key role in this control process. Audits check to see if the money was spent in the way it was intended. Control is less concerned with outputs and outcomes than inputs.

Our City Manager faces many decisions about controlling expenditures. But more importantly, his audit process needs refined. At the very least, the audits work well enough that he is seeing irregularities. However, no one seems to enforce audit standards, and spending is all over the map. He will need to begin holding people and departments accountable for compliance, a practice that seems absent in his current state of affairs.

Management. Budgets also set a standard for managers to monitor efficiency. They can review the outputs of their agency and compare them to dollars spent. Does the department meet performance standards for maximizing the use of public funds? Budgets help determine that, alongside analysis and measurement of the agency’s activities. These may include financial control systems to report and track an agency’s spending, and further analysis to uncover patterns and motivations in the organization (Cohen, 2002, p. 204-5).

In this case, we see something Cohen warns of: “Managers attempt… to please financial control systems. They think about what type of data they want more senior managers to see in financial tracking reports (ibid, p. 206-7). In the case study, our City Manager finds that shady budget practices have made the city appear to be more solvent than it is: shuffling expenditures into untracked accounts, relying on reserve funds to pay budget expenses without tracking the costs, and much more. At some point, creative accounting devolves into lying to make the reports look good. Our manager will need to root out these unethical and poorly-advised actions to present a clear and accurate picture of the City’s current finances.

Planning. Making a budget plays a significant role in planning. With the needs and demands of millions of citizens to address, planners must carefully select what programs to fund. Which ones contribute to economic growth? And, as we will discuss further, which ones meet the political goals of the agency and its stakeholders? A budget gives shape to a plan, clearly transforming strategic goals and policies into revenues and expenditures that will, hopefully, accomplish those aims.

Politics and Policy

Private companies can create budgets at will. Depending on their size and complexity, they might have anything from a single business owner to a finance department that reports to the CFO or the Board. Publicly owned and traded companies may add a layer of complexity by answering to shareholders. But, a governmental department or agency pursues its budgeting aims in a much more complex web of political maneuvering and obligations.

Influence of Special Interest Groups. Lobbyists and powerful, well-funded coalitions constantly seek to affect the budget process and the allocation of funds. Government must answer to the public, and these groups of citizens can derail even the most well-intended fiscal policy. “If a powerful interest group supports your request, your professional reputation and the general level of political support for your request may be irrelevant. The interest group’s strength may carry the day” (Cohen, 2002, p. 197).

Internal Politics. Some analysts identify internal agency politics as the creators of “the highest level of conflict” (ibid). If an agency has multiple programs competing for limited funding, its own departments may struggle against one another to prove their worth. Politically, a manager must consider that if he cuts someone’s pet program, he risks alienating their support at a time when he most needs it.

Conflicting Public Demands. The public wants better services from the government but would prefer to give them less money. Some of the citizens want programs that conflict with the values of other citizens, such as some public health policies. And, everyone’s immediate needs seem, of course, most pressing to them. If the City Manager seeks to please everyone, he may very well end up pleasing no one. Managers need to think strategically, see the big picture, and choose the topmost priorities. One thing is certain: no one in the public wants to pay more taxes.

Revenue in the Short Term

Our City Manager can use six different means of taxation as revenue sources in the short-term. Using them even in the short-term has political downsides as well as administrative challenges. He would do well to consider solutions in the long term that will revitalize his department from within. Placing the burden for his department’s inefficiencies on the shoulders (and bank accounts) of his constituents is not only politically dangerous but simply irresponsible. We have covered, in a previous essay, a long-term solution in forming cross-functional teams and performing cost benefit analysis of his projects from within those teams. So, here we will focus entirely on his short-term revenue possibilities.
Starling (2011) again provides a succinct summary of these tax bases in his Figure 11.6 – Pros and Cons of Six Revenue Sources (p. 517).

Personal Income Tax. Incredibly unpopular with the general public for obvious reasons, the personal income tax also disproportionately burdens the middle class. The source seems stable, but politically, one must ask why the middle class should pay for the incompetence our Manager’s predecessor.

Corporate Income Tax. Just when the city needs lifted out of its economic woes, the government imposes a tax that will depress the rate of return on any capital investments in its jurisdiction. Does that sound like a good idea? One can only imagine the political backlash as the primary investors the city needs right now begin pulling all their money out of her.

Property Tax. This stable tax has some appeal, except when we consider how delinquent amounts are collected. If the City is in an economic low to the point where jobs are dying off, people will be less likely to pay property taxes. To get the revenue, the City would have to foreclose on the property, putting people on the streets and generally making things worse for everyone. It doesn’t sound like a politically favorable situation.

Estate, Inheritance, and Gift Taxes. No one likes them. The main advantage is the progressive nature of the tax that places greater burden on those who can more easily bear it.

Sales Tax. This easily-collectible tax has major downsides. First, the tax burden goes most heavily on the poor and those with large families to feed. Second, if the tax becomes too high, people will begin exchanging goods and services in cash (or even barter). At that point, the government cannot track transactions. The revenue from them falls to zero.

User Fees. An incredibly efficient revenue source, they have one major downfall. Most government services don’t fit the “pay per use” model but come without price tags; for example, fire fighting and police service.

Again, we cannot overemphasize the Manager’s need to fix internal problems in his agency. Taxing the public in this case is more than just a political disaster. It violates the notions of public service and administrative responsibility. Mismanagement of the City caused the problems. Management needs to step up and correct their course. Taxes may provide an emergency measure, but only thinking in the long-term will solve the City’s money problems.

Conclusion

These taxation possibilities highlight the highly charged political environment in which a public manager must make financial decisions. Every category makes someone unhappy, and some of those groups exert political pressure on the City. Faced with similar pressure from special interest groups and internal competition for funds, City Managers must pick and choose their steps wisely. Taxation may make sense in the short-term to generate revenue. But, unless leaders correct their own internal mismanagement, they are politically doomed. 

References

Balanoff, H., and Pinto, C. (September, 1999). What do you do when you city is looking at a million-dollar deficit in the current fiscal year? In Public Productivity & Management Review, 23:1, pp. 83-88.

Cohen et. al. (2002). Mastering the budgetary process. In Cohen, Steven, Emicke, W., Eds., The Effective Public Manager: Achieving Success in a Changing Government, pp. 187-208. San Francisco, CA: Jossey-Bass.

Starling, G. (2011). Managing the public sector. Boston, MA: Wadsworth, Cengage Learning.

Coordination in the Face of Public Crisis

Coordination in the Face of Public Crisis:
Examining a Case Study of Dr. Helene Gayle

The case study referred to here comes from PricewaterhouseCoopers Endowment for the Business of Government. You can access their PDF free of charge: Managing Across Boundaries: A Case Study of Dr. Helene Gayle and the AIDS Epidemic.

ABSTRACT

Dr. Helene Gayle faced obstructive forces in the political, social, and economic arenas when she began to change the face of public policy on HIV/AIDS prevention, education, and treatment. She experienced a coordination crisis when confronted with the myriad organizations needed to combat the disease on all fronts: church groups, non-profits, government agencies, and the international community. She rose to the challenge by forging strong partnerships at all levels, crossing cultural and political boundaries to form alliances. Her strong diplomatic skills and her expert use of an administrator’s three main political resources brought her success. Dr. Gayle’s case reminds us of the complex political environment we face today, and how we can tap into our individual power to create change.

GATHERING FORCES

Social Forces

Dr. Gayle faced powerful social and cultural forces, including conceptions of gender and sexuality, and patterns of intravenous drug use. Stemming the spread of HIV involved addressing cultural ideas about who got it and how they got it, and a host of behavioral taboos. Preconceptions about risk behaviors floated in a sea of misinformation that only increased risk.

Economic Forces

Within the social groups most deeply affected by HIV exists a trend towards low income. People with little or no access to health care and education due to poverty lacked the information about risk behaviors and the proper diagnoses. Government funding for research and prevention lies on the other side of the economic equation. Without strong advocates like Dr. Gayle in place, mandates remain unfunded, and cutting edge research remains undone.

COORDINATION CRISIS

Powerful political forces come into play also, and they create a coordination crisis. Cooper (1998) defines coordination crisis as “the difficulty of planning, coordinating, and operating the many organizations… involved in the same area of activity simultaneously (p. 94). Cooper proposes that our government has become more complex than a three-tiered top-down hierarchy of federal, state, and local spheres of influence. Now we have a complex network of interdependent agencies addressing public concerns such as health and transportation and income assistance. That these agencies operate independently, sometimes with competing agendas authority, and at different levels of society makes them incredibly hard to coordinate. Thus, the crisis comes when faced with serious health problems like the spread of HIV. How can all these groups be mobilized together, effectively?

Dr. Gayle rose to confront this crisis and coordinate more than just public agencies at the federal, state, and local level. She partnered with non-profits and community groups. She reached beyond the nation’s border to forge partnerships in Africa and abroad, recognizing the spread of HIV as a global epidemic affecting us all. Her tremendous interpersonal skills and genuine concern made these partnerships possible. Dr. Gayle also makes expert use of all the political resources available to her.

USING POLITICAL RESOURCES

The political resources available to public administrators like Dr. Gayle include professionalism, external support, and individual power (Starling, 2011, p. 83).

Professionalism

Max Weber believed bureaucracies would engender the development of specialists, career professionals with substantial expertise who excelled in their roles. They would have great knowledge of the details and requirements of their positions. Starling sees these career professionals possessing enough power to overcome stifling political pressure from above. They can devote attention to a given problem full-time, monopolize information, and break down problems into smaller achievable parts due to their specialization (ibid, p. 84). Dr. Gayle exemplifies this lifetime of dedication to a role as a provider of health services. Before spearheading public policy on HIV, she studied medicine, earned an MD and a Masters of Public Health, and worked her way up through the ranks of administration from Acting Special Assistant to Director at the Center for Disease Control (Riccucci, 2002, p. 9).

External Support

To implement her policy initiatives, Dr. Gayle built a network of external support. She reached beyond the boundaries of her department into the community, working one-on-one with churches and non-profits. She saw their importance in influencing public perception on health matters, and the dissemination of much needed education and information to local communities. She also created collaborations with other federal agencies like the National Institute of Health and the Department of Health and Human Services. She joined South African President Mbeki’s advisory panel on HIV/AIDS. Mbeki counted on Dr. Gayle to “keep everyone together so that programs could be moved forward” (ibid, p. 21). Such a widespread support network requires not only great knowledge but great diplomacy.

Individual Power

Great leaders exhibit great diplomacy. Dr. Gayle’s cross-cultural and international partnerships prove her a diplomat of the highest order. The Center for Creative Leadership breaks diplomacy down into components. Diplomatic leaders are trusted, culturally sensitive, tactful, and well-connected to a wide range of people who can help get things done (Campbell, 2004, p. 31-2). CCL studies further suggest a link between diplomacy and the emotional intelligence skills of impulse control, stress tolerance, a sense of humor, and composure (Ruderman, 2004, p. 6-10). This kind of individual power lends itself to effective results through influence rather than coercion. It builds consensus and connection.

CONCLUSION

The Political Environment

Nothing exemplifies the coordination crisis of complex, competing agencies more than the CDC’s conflict with the Red Cross. In 2011’s Managing the Public Sector, Starling describes how the CDC appealed to the federal government to impose HIV screenings at blood banks, but met resistance. Based on Randy Shilt’s exposé The Band Played On, Starling makes it clear the large blood banks associated with the Red Cross used their political connections and greater experience in the political arena to block the CDC’s efforts (p. 16).
Thrown into such a political arena, Dr. Gayle’s ability to forge relationships and coordinate efforts proved key to her success. The ability to connect with a wide range of people to get things done provides a competitive edge. These external alliances take administrators out of their desks and into homes, offices, and other countries to nurture their formation and growth. Once in place, this network of alliances provides key influence and manpower to fully implement needed policies.

Available Resources

People do want good public programs, and they want them at the local, state, and federal levels. The very complexity and interdependence of government that causes the coordination crisis provides the key resource to unlock it: many departments working on the same problem. Coordinating these units for effective results, however, requires public administrators who are “adaptable and capable of understanding government not as a simple overhead authoritative organization of institutions, but as a complex collection of different organizations” functioning in different ways (Cooper, 1998, p.119). Dr. Gayle’s success shows that she understands this complex network and possesses the diplomacy to connect the parts into a functioning apparatus that carries out policy goals.

The deepest resources a leader can tap live within. Personal qualities – self control, charisma, people skills, a sense of humor and confidence – form the foundation for connecting with other people for the common good. A genuine concern for other people and cultural sensitivity pave the way for strong partnerships.


References

Campbell, D. 2004. Nine keys to good leadership. In Wilcox, M. and Rush, S., Eds., The CCL Guide to Leadership in Action, pp. 29-33. Jossey Bass: San Francisco, CA.

Cooper, P. 1998. The intergovernmental policy structure and action. In Cooper, P., et al., Eds., Public Administration for the Twenty-First Century, pp. 94-121. Harcourt Bruce College Publishers: Fort Worth, TX.

Riccucci, N. Jan., 2002. Managing across boundaries: A case study of Dr. Helene Gayle and the AIDS epidemic. Special Report by PricewaterhouseCoopers Endowment for the Business of Government. Retrieved from http://www.businessofgovernment.org/sites/default/files/AIDSEpidemic.pdf

Ruderman, M., et al. 2004. Making the connection: Leadership skills and emotional intelligence. In Wilcox, M. and Rush, S., Eds., The CCL Guide to Leadership in Action, pp. 3-14. Jossey Bass: San Francisco, CA.

Starling, G. 2011. Managing the public sector. Boston, MA: Wadsworth, Cengage Learning.

Ethics and Technology: A Case Study

A study of long-distance calls at the Department of Housing and Urban Development found that 30% were personal calls charged to the government. It estimated the cost to the agency at $290,000. Many calls went to employee’s homes or their relatives. Others went to prerecorded messages for time and temperature, horoscopes, and finance. We must understand why employees use official telephone lines in this way before considering how to limit misuse, respond to arguments that the misuse is necessary, and consider the effects on morale that enforcement would carry. However, seen in the proper light, the ethical quandaries dissolve by effectively bringing technology to bear to meet human needs.

How do employees justify misuse of phone lines? Beyond their loyalty to the organization and its policies, workers feel a primary loyalty to family and loved ones. Should the administrator put the guidelines of her workplace above her family’s needs? Finer (1941) states “the servants of the public are not to decide their own course” (p. 7). But, such a sweeping mandate guarantees conflicts of loyalty when the course decided by the rules precludes family contact.

In determining what could be done to limit misuse, we first should evaluate the rules. We cannot simply accept all the rules handed down to us as some implacable moral mandate. HUD could, instead, come up with creative solutions. HUD could set up a private room or booths with phones dedicated to long-distance personal calls, and get reduced rates on those lines. When calling cards were popular, HUD could have received a corporate group rate on blocks of cards and resold them to employees at less than the individual market rate. Everyone could win.

HUD may have an expense problem, but making a nonsensically restrictive rule fails to address human needs. It only says that dollars matter more than people. In such a system, a person becomes dehumanized to the point of being what Max Weber (1958) called “only a single cog in an ever-moving mechanism which prescribes to him an essentially fixed route of march” (p. 228). The solution lies in treating people humanely, acknowledging that all have personal lives, and creating a system to effectively meet those needs. Simply slapping a rule book down on the desk typifies bureaucracies. Rife with inertia and resistant to change, they often “act as a brake on innovation and change” (Tompkins, 2005, p. 55).

Can we imagine that using agency lines for personal use might be necessary at times? Yes. Using agency phone lines for personal use can become absolutely necessary. On the day of the World Trade Center attacks, no one at the university hospital where I worked argued about the ethical use of phone lines. They called their loved ones. They called their colleagues in New York. They called their families stuck in far-flung airports when the planes grounded. The drain on the phone system may have been massive. It did not matter. We had no ethical quandary, only the need to connect with loved ones in an emergency. The problem is not the personal use of phones. It is the rules. When we make a nonsensical rule that separates a mother from a daughter injured in a car wreck, we must re-examine the rules. When we cannot call a grandfather in the hospital despite sitting next to a phone, we must re-examine the rules. Rules must be made to serve people, not the other way around.

If you cut people off from their loved ones in the course of their work, morale of course will suffer. People have lives outside of the narrow confines of their employment. Those lives and the people in them form the reasons people work in the first place. The answer to serving both the job and the family lies in technology.

True, new technologies often create new ethical puzzles to solve. But, technology can also solve old ethical problems. Now that virtually everyone in the U.S. labor force has their own cell phone, no one should worry that they cannot contact their loved ones from work. With the ubiquitous connection to the internet in offices, no one needs to call a phone number to check weather. Finding the weather on the internet does not incur a single penny more in cost! Twenty years ago, people had to take time off to stand in line for four hours at the Motor Vehicle Department to renew their registrations. If they had used up their leave, they might face the quandary of lying about sick days. Now, people can log on to the MVD site to have their registration renewed for two years in about 10 minutes. Done on a lunch break or by staying ten minutes after work, this increases costs not at all.

None of this means that workers did not once face an ethical challenge about personal calls or that their actions were completely justified. But, this case seems a bit outdated. Technology has largely solved the problem. When asked to make a judgment call about whether some actions are right or wrong, we might be better off asking if the system needs fixed. By bringing innovation and technology into play to better serve fundamental human needs like connection to loved ones, we can eliminate many ethical dilemmas. We can improve the human condition. Sometimes the rules do not serve us well. It is up to us to change them.

References

Finer, H. (1941). Administrative responsibility in democratic government. London: University of London.

Tompkins, J. R. (2005). Organization theory and public management. Belmont, CA: Wadsworth, Cengage Learning.

Weber, M. (1958). Politics as a vocation. In H. H. Gerth and C. W. Mills, Eds., Max Weber: Essays in Sociology. New York: Oxford University Press.

Separation of Powers: United States vs. Klein, 1871

UNITED STATES V. KLEIN
U.S. Supreme Court (1871)

Facts: Wilson abandoned property to the Treasury Department when he was judged to have aided the rebellion. Under the Abandoned and Captured Property Act of March 12, 1863, Wilson’s property was sold, and the proceeds added to the Treasury. Wilson gained a full presidential pardon and amnesty by swearing a loyalty oath under the proclamation of Dec. 8th, 1863, said proclamation promising restoration of all rights of property to those who took the oath and accepted pardon. After Wilson’s death, Klein, the administrator of his estate, successfully petitioned the Court of Claims for the refund of said proceeds from the Treasury. An appeal was taken to the Supreme Court.

Within months of the filing of this appeal, the Supreme Court ruled in favor of the claimant in a factually similar case: U.S. v. Padelford. Congress subsequently passed new legislation, inside the year’s appropriation bill, that would force the courts to throw out cases in which the claimant had received a pardon for aiding the rebellion, and whose only proof of loyalty was an oath and acceptance of pardon. This legislation precluded a pardon as evidence in a claim, and would make unqualified acceptance of the pardon an admission of guilt in aiding the rebellion. The Attorney General remanded Padelford to the Supreme Court for dismissal under this new legislation.

Issue: Does Congress’ power to make exceptions to the appellate jurisdiction of inferior courts extend to withholding appellate jurisdiction from the Supreme Court in order to force a decision or to limit the full effect of presidential pardons, even to the extent of restoration of property rights?

Rule: Using legislation to either limit an executive pardon or force a de facto judicial decision exceeds the constitutional powers of the legislative branch.

Reasoning: Congress provided that the Supreme Court has appellate jurisdiction of the judgments of the Court of Claims in 1863. The appropriation bill of 1870 removed this jurisdiction only in specific cases, all of which would be adverse decisions for the government, effectively deciding the cases for the court. Although Congress has powers relating to the judicial branch, this exercise of legislative power to create judicial decisions surpasses the limits of separation of powers.

Furthermore, the bill’s impairment of the full effect of a presidential pardon infringes on the executive branch. Congress can neither limit the effect of a presidential pardon nor exclude from its exercise any class of offenders. The Supreme Court upheld its decision of Padelford, ruled in favor of Klein, and declared that Congress had violated its constitutional powers. The dissenting opinion disagreed upon the ruling of Klein’s case on matters of interpretation, but upheld the majority opinion on constitutional separation of powers.