Jonathon Turley testimony regarding the Chevon Doctrine

Professor Turley's testimony before Congress on the Chevron Doctrine is super wonky, the kind of subject normally interesting to only the geekiest of public administration geeks.  Turley's comments are certainly more restrained and cerebral than breathy conspiratorial whispering about "The Deep State."

The vast and intractable administrative state is a problem.  But equally so is the abdication of power by the judicial and legislative branches.  Most know from 7th grade social studies that the Founding Fathers created three branches of government (arguably two, with the third emerging in the aftermath of Marbury v. Madison). 

The "checks-and-balances" of this system have always been imperfect, but never so flawed as the last half century.  There has been a massive shift of power to the executive branch and its administrative agencies, beyond the wildest dreams of even the most imperial former presidents.  Federal agencies create de facto laws (in the form of regulations), enforce them, and adjudicate them, often with no meaningful public or legislative oversight.

In his testimony, Turley said:

"I come to this issue as someone who often agrees and supports the work of federal agencies.  Indeed, law professors have a natural affinity toward agencies, which are usually directed by people with advanced degrees and public service values. The work of federal agencies is critical to the preservation of our health and security as a nation.  This is not a debate about the importance of the work of the agencies, but rather the accountability of agencies in carrying out that work.  The agreement with the work of agencies – or for that matter with this Administration as a whole – should not blind us to the implications of the growing influence and independence of federal agencies."

I like this.  Public service is honorable work; public servants are usually honorable people.  Supporting the work and the individuals, however, should not allow public administrators to turn a blind eye to the dangers posed by the leviathan administrative state and a debasement of the separation of powers.

Mother should I trust the government

On my office wall is a Pink Floyd concert poster.  The poster art is a graffiti-covered section of the Berlin Wall, fitting since the concert occurred on July 4, 1988, in West Berlin.

The most prominent piece of graffiti on the poster is a Pink Floyd lyric, "Mother, should I trust the government." A new staff member noticed the poster and asked if I was a Pink Floyd fan.  "I am," I said, "but I also really like the irony."

One of the single most important (and disturbing) trends in American public administration is the public's loss of trust in government.  The Pew Research Center has charted this long decline.  Quoting from the PRC,

"Fewer than three-in-ten Americans have expressed trust in the federal government in every major national poll conducted since July 2007 – the longest period of low trust in government in more than 50 years. In 1958, when the American National Election Study first asked this question, 73% said they could trust the government just about always or most of the time."

Colleagues often are quick to argue that public opinion of state and federal government is lower than that of local government.  That's a bit like a business saying Comcast and the IRS have lower customer satisfaction ratings.  Not being the worst doesn't make one good.

What does it say about the profession of public administration that during the past half century, we have come to a point where less than 20 percent of Americans think "the government is run for the benefit of all"?

First Person Singular

During a recent meeting, I listened to two administrators talking about projects.  In that conversation, the first person singular pronoun "I" featured prominently therein.  "I installed new HVAC equipment on the building," or "I replaced the bridge."

The administrators in question were not on a roof turning wrenches or pouring concrete into a form for a bridge abutment.  They simply were engaging in a (disputed) Louis XIV moment, i.e., L'Etat, c'est moi.

Local government is a team sport.  Regardless of one's role on the team, we build bridges and we maintain buildings.  When giving credit, you.  When describing work, we.  When accepting responsibility for a failing, I.

Pension solutions

I wrote a brief essay for the Maryland Reporter about pensions.  I am reposting it here without the headlines inserted by the editors:

Potential solutions to Maryland’s looming pension crisis can be found in the one place the legislature would never think to look: Local governments.

Caroline County has its own pension system.  Five years ago, the County’s retirement plan was less than 65% funded.  Today, the funding level has increased to over 81% despite substantially lowering the expected rate of return on investments.  Caroline’s fund for retiree healthcare (“Other Post-Employment Benefits”) is over 100% funded.  The state of Maryland has almost nothing set aside to fund its generous retiree healthcare benefits.

How did one of Maryland’s poorest counties outperform state government?  The County Commissioners budgeted pension contributions first.  Our elected officials and employees accepted short-term sacrifices for long-term solvency When progress occurred and the “required annual contribution” shrank, we kept our employer payments at the same level.  The commissioners adopted comprehensive reforms and we radically restructured our pension investments to minimize management and administrative fees.  Perhaps most importantly, we focused on fixing the problem rather than fixing blame.

One interesting change the commissioners adopted was to move newly hired senior managers out of the pension system into a defined contribution (457b) plan, (the public sector equivalent of a 401(k) plan).  If promoted, an employee vested in the pension can remain in, but new directors are not eligible for the traditional pension plan.

When the county hires senior managers externally, many are mid- or late-career professionals.  A “thirty-years-and-a-gold watch” retirement benefit is rarely compelling to a person with less than 10 or 15 years left to work.  In our recent recruiting experience, Millennials also are not terribly enthusiastic about a benefit that takes 30 years to fully realize.  This is crucial because a retirement plan isn’t simply a way to enrich public employees; it is a tool for recruiting and retaining a quality workforce.

Gov. Hogan’s proposal for a defined contribution plan can be a starting point for a long overdue grown-up conversation about the state’s pensions and retiree healthcare benefits.  For a defined contribution plan to be a realistic option, however, Maryland should follow Caroline County’s lead and invest more than a modest 5% match, particularly since these plans shift all investment risk onto employees.  Our employer match for defined contribution plans is the same as the employer share paid into the pensions system, currently about 14%.

Maryland also should consider preserving the existing pension system for rank-and-file employees while moving more highly compensated managers (who are often better able to save for retirement) onto defined contribution plans.  In our experience, pension reform is more successful if the priority is making the retirement system solvent rather than using pension changes to balance the annual budget.

Maryland employees and taxpayers deserves better approach to pension obligations than, “Wait till next year!”  The state’s expected rates of return for pension investments are still too high (7.55%).  The level of funding into the plans is still too low.  Retiree healthcare funding has been ignored for far too long.  Some plans like Maryland’s Law Enforcement Officers Pension System (LEOPS) are simply too expensive.  The employer share for LEOPS participants in the coming year will exceed 39%.  Paying an additional 39 cents on every dollar of wages for any retirement plan simply is not sustainable.

Local governments have found some excellent models including hybrid systems that combine the best qualities of traditional pensions and defined contribution plans.  We have also recognized that the new generation of iPhone7 employees want more than a “rotary dial” retirement option.

The state of Maryland can afford to provide its employees with a financially sound pension system and additional retirement benefit options, but the state cannot afford to continue kicking this can down the road.

The first 400 people

The International City/County Manager's Association (ICMA) facilitates a scholarship (or two) every year for the Harvard Kennedy School Senior Executives in Local Government program.  I applied for the scholarship in 2010 but was not selected.

It probably didn't help my application that I made reference to the famous quote by William F. Buckley, "I'd rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University."

After some deliberation, I decided to apply again this year.  Rather than invoking Buckley, I wrote, 

"Sustainability and citizen engagement are worthy topics, but they are the not the critical self-reflection our profession needs now more than ever." 

And further

"Public administrators cannot dismiss the political events of 2016, hiding behind the politics/administration dichotomy like a certain much-discussed wall.  With all due respect to ICMA, the slogan “Life Well Run” seems awfully self-congratulatory in the midst of historic populist discontent.  If we are doing so well, why do citizens think so poorly of the governments we manage?


I think that's a fair question and perhaps--contrary to Buckley--the folks at Harvard have some answers.

Is local government the "high ground"?

I recently read a well-intended short essay entitled, "Is #localgov Part of 'The Swamp'?"  The article by Miranda Lutzow offered three ways local governments can differentiate themselves, "We're accountable.  We're accessible.  We care."

My initial response via LinkedIn:


"What we think--as mostly professional city/county administrators--is far less telling than what citizens think. While polls generally show folks more approving of local governments than state or federal, we have our share of highly visible failings.

Bell, California? Flint, Michigan? Ferguson, Missouri, where the local government's dependency on court-driven revenues contributed heavily to serious racial and policing issues. Pick any city in California where retired city administrators are earning $200k+/year in pension payments while municipal services are suffering.

It's easy to dismiss these as aberrations, but I think an argument can be made that they are systemic problems. And the not-so-pleasant truth is that our profession has fallen short in addressing them."

Ms. Lutzow generously responded, sharing her opinion that the examples I provided are indeed aberrations and asking, "If you believe mismanagement truly is systemic, how do you think we, as a profession, should go about addressing systemic failures?"

Active mismanagement is one kind of failure.  It's easy enough to focus on headlines like those coming out of Bell, California, in 2010.  The larger problem our profession's apparent inability to move the needle on transformational problems (rather than just nibbling on the incremental ones). 

Let's take public pensions as an example. State and local government pensions. The cumulative level of unfunded liabilities has been estimated at $5 trillion. Trillion. With a "T."
  
It's easy enough to blame the pension crisis on politicians, but that's a bit like blaming the owners of the White Star Lines for the Titanic.  Public administrators are at the helm of local (and state) governments.  It is our responsibility to manage beyond the election-to-election focus and lead ethical and financially sustainable organizations.

The amount of pension debt is staggering. And the "salt in the wound" is every story citizens read about pension spiking. I can understand why everyday folks feel like we're either not competent enough to stop the financial bleeding or are corrupt enough to take advantage of the system.  (And closing lemonade stands doesn't help us either.)

The meta-idea of Washington, D.C. as "the swamp" is about far more than individual corruption.  It is about the widespread perception that government cannot (or will not) solve the transformational problems we face from community to nation.  Local governments may be more highly regarded than state or federal bureaucracies but a high point in the swamp is still swampy.

The Dignity Culture

Author Ron Bailey does a good job of summarizing a theme of an academic article by Bradley Campbell and Jason Manning.  At the risk of oversimplifying, Campbell and Manning discuss the evolution of conflict and social control.  I will gloss over the "honor" model, to capture the "dignity" culture.
 
"But during the 19th century, most Western societies began the moral transition toward what the authors call dignity cultures, in which all citizens are legally endowed with equal and 'unalienable' rights. In such a culture, one's honor does not depend upon one's reputation. Having a thick skin and shrugging off slights thus come to be seen as virtues, because they help maintain social peace."

Of course, serious conflicts cannot always be resolved privately. In dignity cultures, when a person's rights are violated, he may as a last resort seek recourse from third parties, like courts and police, which are empowered to wield violence on victims' behalf. Still, because dignity cultures practice tolerance, they're much more peaceful than honor cultures."

Campbell and Manning observe the phenomena of microaggressions as an indicator of a movement to a third model of conflict and social control: victimhood.  I will lazily quote Bailey again,

"A victimhood culture combines an honor culture's quickness to take offense with an overdependence on the nonvoluntary institutions that serve as a dignity culture's last resort. If Campbell, Manning, and Horwitz are right about the direction American society is headed, we're in for an increase in social conflict, and an ever-larger and more intrusive government tasked with trying to suppress that social conflict, in years to come."

City managers and county administrators tend to be "apex predators" of activist local governments.  No matter what the problems, managers often try to solve them often without any contemplating the proper role of government or making an honest assessment if we might make the problem worse. 

Rarely does one hear a senior public manager opine that perhaps some residents just need to develop thicker skins.  And in perfect candor, that is precisely the message some citizens should hear.  Government should not be a cudgel or axe wielded against neighbors.  City and county leaders are in a strong position to to affirm the dignity culture, to encourage informal resolutions, and to promote tolerance.  For this to happen, public administrators need to go beyond the technical, narrow, and "safe" offerings of professional organizations like ICMA and engage in larger debates.

Government isn't always the answer... and holding that belief makes me the contrarian administrator.