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Rights vs. Authority: The Ethical Application of Official Power

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

By Thomas E. Poulin
September 27, 2020

Occasionally, you may hear an elected or appointed official make a statement about their “rights” as a public administrator, suggesting they had greater rights than someone not holding an official position. This is a deeply flawed perspective, created by conflating the concepts of rights and authority, which might contribute to unethical or illegal actions. Public sector leadership must create the proper perspective in their employees—that as public officials their authority is granted to serve the community, not manage it.

Human Rights vs. Natural Rights

Human rights are those assumed to be inherent in all individuals. Conceptually, these are shared across cultures, nations and ideologies, though differing societies describe them differently. In the United States lexicon, they were identified in the Declaration of Independence as “…unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Our society’s ideal asserts these rights are universal. They may only be limited through very specific processes, usually judicial actions.

These are the rights of individuals, not of governments. Indeed, the Declaration of Independence states, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” While everyone possesses these human rights, when acting as an agent of government, public administrators have no additional rights. When acting in their official capacity, their role is to protect the rights of others. Public servants will have authorities beyond those of the average person, but only for the narrow purposes of performing their official functions. These are authorities, not rights.

Civil rights are those provided by collective consent through some form of legislative action, and they are typically framed in a document. In the United States, they are enumerated in the Constitution’s Bill of Rights, which presents limits on the use of government authority to impinge upon the rights of individuals or the separate states.

Civil rights may be subject to government regulation, but this must be done in a prescribed manner, providing for due process. There will always be some form of appeal to any perceived impingement on a civil right. Technically, a civil right may be lawfully revoked, but this would require an amendment to the Constitution. The Bill or Rights effectively limits the authority of public administrators unless applied with due process. In effect, the Bill of Rights achieves the very opposite of providing public servants additional rights.

Rights vs. Authority

No public administrator in the United States, regardless of their discipline, has any “right” associated with their official position. Public administrators have authority beyond that of members of society, in a manner narrowly prescribed. This authority is based upon the enabling legislation creating their public agency and their official position, and this authority will be limited to that which is considered necessary and appropriate to conduct their formal role. The framework for this is often further specified in organizational policies and procedures.

None of this suggests public administrators lack discretionary authority, but there are limits framed by law, policies and procedures. Discretionary vs. non-discretionary can be distinguished in terms of either the ministerial or magisterial function. For example, if someone submits a building permit application which is filled out properly, the ministerial function is to process it appropriately. There is no discretion to the process. However, if someone seeks a waiver to some element of building code, the magisterial function applies, and the public administrator must determine if the request seems reasonable and achieves the intent of the code, even if approached in a differing fashion. No written rule can cover all contingencies, and the magisterial function permits a reasoned, discretionary approach, with the intent of the written rule, not personal values, foremost in the minds of decisionmakers.

Preparing Employees to Exercise Authority

The public expects authority shall be used in a judicious, ethical manner meeting the needs and expectations of the community, and not to impinge upon the rights of others. The authority of individual public administrators will be tied to their position, with those at higher levels having greater authority based on their roles. No public administrator may grant themselves greater authority, nor provide authority to their subordinates which exceeds that provided by law.

Public sector leaders must ensure employees understand the differences between rights and authorities, and that they are prepared to exercise their authorities appropriately. If you hear a public official speaking of their official “rights” based on their public role, this should be a red flag, and appropriate action should be taken without pause. If this misperception is permitted to continue, we may be failing in our legal, ethical, and professional obligations to our communities.

Author: Thomas E. Poulin, PhD, MS(HRM), MS(I/O Psych.), EFO is a core faculty member in Capella University’s public administration programs. Prior to this, he served in local government for over thirty years. He is President of the Hampton Roads Chapter of ASPA. He may be reached at [email protected].

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