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Ambiguity and Accountability

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By James Nordin
June 30, 2021

In the discussions of police reform, the valid point of public accountability often is raised. The same is true of discussions around vaccine development, care for immigrants detained at United States borders and the extent of intrusions on privacy by agencies designed to protect United States citizens from outside threats.

The same point is raised regarding the response to the events of January 6, 2021 at the United States Capitol. Even elected officials have been challenged on their public accountability. I support raising this issue in all these settings, and others too numerous to mention.

Michael Lipsky examines discretion in his book, Street Level Bureaucracy: Dilemmas of the Individual in Public Services. At the risk of oversimplification, Lipsky describes the cause (and to some extent, the effects) of these dilemmas as coming from ambiguity. He describes four stages or steps that lead to these dilemmas and the discretion used by public servants. I will add a fifth step he does not specifically mention, but which logically flows from the first four.

Before describing the four steps, let’s take a look at a simple example. The California Highway Patrol (CHP) is charged with enforcing all highway laws and maintaining good traffic flow. There are obvious conflicts in these duties. If a driver is traveling at 65 miles per hour on a highway with a designated 55 mile per hour speed limit, the CHP presumably has a duty to issue a citation to that driver. If all other drivers also are traveling at 65 miles per hour, to pull one driver over would seriously disrupt the flow of traffic. Even when one driver is traveling at 85 miles per hour in a 55 mile per hour zone, pulling that presumably dangerous driver over will disrupt the flow of traffic. Which duty should the CHP follow and how can or should they justify their discretionary action?

Lipsky says this (and almost all other such situations) are caused by ambiguity in laws passed. He does not consider lawmakers feckless or irresponsible; he recognizes that many interests have input to laws and those interests are not all the same. In order to gain agreement on a piece of legislation, many, if not most, of those interests must be satisfied, which leads to laws that almost always lack crystal-clear clarity. The laws do not provide explicit instructions; they are ambiguous. Lipsky also argues that this is a good thing: No law can anticipate every situation that will arise, so it is best to give implementors some “wiggle room.”

Since the laws are ambiguous, street level bureaucrats have no clear direction for what to do in every situation. Whether they want it or like it, street level bureaucrats must exercise discretion—their best judgement—most of the time.

Third, this discretion is a two-edged sword. It provides cover for street level bureaucrats since there is no firm guidance, but also it leaves the public servant open to second guessing. What if citizens don’t agree with the professional best judgement? What makes professional judgement superior to popular sovereignty?

Lipsky points out that this ambiguity that comes from discretion is quite stressful for public servants. They want to know what to do. So, they create, or have created for them, “Standard operating procedures (SOPs).” These procedures provide guidance for most situations. Street level bureaucrats therefore have less discretion, but also have reduced ambiguity. Their stress is reduced because they know what to do and the second-guessing is reduced.

The final step in this process (and one I do not believe Lipsky enumerates) is that the SOPs become the de facto performance standards for the position, regardless of what the original law called for or what citizens express as desired outcomes. When citizens complain or have concerns, the standard for judgement is rarely the outcome of the bureaucrat/client interaction. The standard for judgement is whether the bureaucrat followed established procedures. Not surprisingly, this results in very low levels of findings against street level bureaucrats and commensurate low levels of satisfaction from the general public.

In the trial of Derek Chauvin, there was essentially no question as to whether his actions resulted in the death of George Floyd. Rather, the trial focused on whether Chauvin followed established procedures, whether he implemented the protocols he had received in training. The question wasn’t whether he had killed George Floyd. The question was: Did he do it by the book?

Each of us in our everyday lives make numerous decisions. Most are good, some not so much. Some are just plain stupid. For every decision, there are consequences and we generally grudgingly (sometimes very grudgingly) accept those consequences. Sometimes we claim extenuating circumstances. If I make a full stop at a stop sign and turn right and run over a pedestrian, it doesn’t matter that I made a full stop at the stop sign. We can reasonably expect street level bureaucrats to make mostly good decisions, with some that are not so good and some that are really questionable. What we also reasonably should expect is that street level bureaucrats are responsible for the consequences of their decisions and that they should be judged on those consequences (considering extenuating circumstances), and not simply on whether they followed procedures.

Author: James Nordin, adjunct professor in the MPA program at Sonoma State University, is a retired federal civil servant with more than 33 years of service as a grants and financial manager and program director for the Department of Health and Human Services and the Department of Agriculture. He has a passion for social equity and created and endowed ASPA’s Gloria Hobson Nordin Social Equity Award. Jim received his BA from Knox College, his MPA from Roosevelt University and his DPA from the University of Southern California and can be reached at [email protected].

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