What to Expect, When Everything is Expected

A note for our readers: the views reflected by the authors do not reflect the views of ASPA.

By Antwain T. Leach

The rise of the modern administrative state has drastically altered the way in which the general public views the role of government. Government is viewed as both the problem and the solution to all of the trials that Americans face throughout the course of their daily lives. As managers and operators of the actual levers of government power, the role of public administrators has also become increasingly complex throughout this process of administrative expansionism.

Over the past several decades, we have witnessed a rather sharp increase in the relationship between the public and private sectors of society. Because of the rapid development of modern technology, the sheer complexity of particular projects and the need to insert high-quality and well-trained specialists in positions of trust and responsibility, government’s relationship with the private, nonprofit and other sectors of society has become exceedingly crucial to the management of the nation’s business. I believe that the solution to the conundrum of the role of government, as well as the increasing role that the private sector has grown to play in performing government functions, lies in the creation of a more nuanced and modern framework geared toward strengthening this public-private symbiosis.

From a public relations standpoint, the relationship between government and the private sector has received some tough challenges to its reputation over the past few years. Six of the newest recipients of the Nobel Peace Prize were rewarded for actions that were directly related to a breakdown between a U.S. government agency and one of its more popular contracting groups. In addition, we have all read and heard about some of the challenges that the federal government and its former information technology contractor faced in operating and managing the Affordable Health Care website during its early stages.

Some of these challenges are not new. Yet I find it especially necessary to insert these recent episodes into a larger framework that allows one to critically assess developments from a more advantageous point of view. The advantage of hindsight and the ability of foresight, give scholars and practitioners of public management and administration, an opportunity to engage in such an undertaking. In creating such a framework, any new construction must ultimately be able to account for past areas of weaknesses, as well as for any potential vulnerabilities foreseen through past practices, experiences and research. It is important that these areas are well understood and highly scrutinized by both the public and private communities, so that past trends of failures can be eliminated and success can become more repetitive.

In this article, I highlight a few private/public issues articulated by Ronald Moe in his 1987 Public Administration Review article titled “Exploring the Limits of Privatization.” Also, in order to generate a wider discussion surrounding these different themes, I summarize a few of the more recent challenges arising out of the rapid expansion of the privatization of government responsibilities.

One issue with employing contractors to perform government functions is that government agencies are usually held accountable to elected officials. On the other hand, according to Moe, private entities are held accountable to elected officials only through an indirect and subtle relationship. Elected officials are constitutionally bound to their constituents, while contracted entities are not limited by such democratic constraints. This becomes problematic at times because federal officials are placed in a position where they are responsible for programs that they do not actually control. Private entities hire and fire, operate and organize and essentially run their organizations in accordance with their own independent goals and objectives. However, these goals and objectives can at times collide with the desires and interests of the principle governmental entities. Issues such as these can be reconciled by ensuring that officials reward contracts to the most qualified and able parties. Though government does not have much authority to direct the internal operations and programming elements within private entities, they do have the ability to encourage and promote stellar behavior by bestowing contracts only upon those whom are consistently in compliance with their standards of ethical and respectable business practices.

A second common issue with retaining contractors involves the legal status of private entities employed by government, as well as its various agencies. How does the law account for private actors while performing government functions? Are private employers, as well as their offices and records, subject to the protections of the Fourth Amendment’s privacy rulings, which are applicable to private U.S. citizens? Or are their offices and records considered part of the public domain, and hence, not protected to the same degree by the Privacy Act and the Fourth Amendment?

Private entities employed by the government want to remain public in their rights and interests, but private in their direction and discretion. The status of these sorts of entities has been a legal conundrum for quite some time. The U.S. Supreme Court, with their 2011 decision in Minneci v. Pollard, No. 10-1104, gave extra maneuverability to private entities performing activities on the behalf of government. This ruling cuts both ways however, because it also weakened government control over projects that it is ultimately responsible for.

A third issue commonly encountered with government contracting, stems from the balance that public administrators must maintain between regulation and overregulation. In many cases, private contractors must overcome a tremendous amount of legal and technical hurdles, in order to become compliant with all relevant and applicable regulations. Such cases can depress the potential benefits associated with government contracting. This is because the rules to the contract, are at times even longer than the actual contract produced by the parties. Undoubtedly, this enters into the calculus of any potential private contractor and in many cases, is enough to deter some of the higher quality contractors from bidding. Unfortunately, this leaves public administrators with a lower quality stock of private entities to choose from.

These situations can be remedied by simply making the rules to contracts, and the contracts themselves, more plain and straightforward. The choice of contractors for some of the government’s larger projects is also a problem. Few contractors have the capability to handle such colossal projects and competition for them is routinely obsolete. Competition drives efficiency, and perhaps government can play a larger role in promoting a more robust and competitive private/public environment.

Not only must public administrators manage the agencies and various projects they are assigned to, but because their jobs fulfill social functions and enterprises, they must also manage the expectations of the general public. Without public support, it is nearly impossible for public administrators to accomplish their many goals. Administrators in the federal foreign policy arena must be especially cognizant of this social dimension. If policies, guidelines and practices implemented by private actors, who are employed by the federal departments, are not in equipoise with mainstream ideals and ideologies then they will be forced to accept concessions below their minimum levels of flexibility and potentially disadvantageous to the nation’s overseas posture. Because the nation has witnessed such a rapid expansion in the privatization of government responsibilities, so too must there also be a more holistic change among the legal, managerial and political elements within our society to integrate and promote creative, intuitive and lateral thinking.

 

Author: Antwain T. Leach, MPA, is Editor-In-Chief of The American Listener. Previously, he served as President of the Center for Strategic Affairs and Public Diplomacy and was employed as a Congressional aide in the office of former congressman Bart Gordon, where he worked on public administration issues. You can reach Mr. Leach at [email protected].

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