Agency Capture — 5/1/2009

This thread arises from my hope that we as a community supporting three very important governments, the village and Districts 96 and 208, can find ways to encourage reconciliation after the election and progress toward shared goals. This is the fifth post in this series. Some 75+ other posts have been made, all of which are significant and helpful, because more public involvement solves most public problems.

As has been said often, this Forum is a fantastic vessel for our involvement, so — please join in.

My prior posts suggest a mechanism for ongoing public dialogue on major issues, a virtual trusteeship (or school board membership), pushing out public agendas via RSS, etc. and an expansion of “public comment” to include recorded comments.

Each of these ideas relies on community use of technology to equalize information between officials and the public and create points of access for information going both from officials to us and from us to officials.

In this post I will suggest a step officials can take, and I hope they will take, to more fully represent us in their work. It is not about technology, but here as well there is need for community action to support our officials and institutions.

The original concern referred to by the term “agency capture” arose from a realization that regulators and their regulated tend to share information. Government regulators tended to depend on their private sector counterparts for a good deal of the information they needed to do their regulating.

After initial steps to regulate the railroads, and then later in finance and commerce generally, up to today’s SEC, FTC or EPA, to name a few, the concern has most basically been formulated as, “will the regulated capture their regulators, and thus divert the regulators from performing their assigned task?”

This question fills miles of law library shelves (now towers of data storage) for the benefit of students, professors, judges, government attorneys, big law firms, etc. With the Wall Street meltdown and the failures of Fannie and Freddie, it is a very hot topic.

But over time it has also become evident that “capture” through shared expertise was only one form of the phenomena.

Capture by other constituencies, such as appointing authorities, legislative overseers and vendors is quite possible, since each has a comparative advantage over the nominal agency heads in terms of accumulated information and resulting power.

Personally, I do not think any of these is an ongoing concern here in Olmstedia. Rather, the variant we need to avoid is staff capture.

Staff — the employees — almost always know more about their agency than the officials they serve.

Ask yourself: Who knows more about a school or a village office, someone who is there 40+ hours a week, or the officials who are there typically in the evenings, two or three times month?

I am not suggesting that our officials should work harder or longer, nor am I suggesting that our various staffs are anything but loyal and dedicated.

What I do suggest is that our agencies themselves, like all such agencies everywhere –in themselves, apart from us — take on lives of their own in their day-to-day operations. These lives, in turn, inevitably draw the attention of our officials. At a certain point our officials may use more of their time and effort explaining to us why the agency must do things its way, than telling the agency that it must do things our way.

If that happens, then they are captured.

This day-to-day activity has its own impetus. The urgent, it is frequently said, can overtake the important. Further, the mundane has its own importance. (Bills, for instance, must get paid.) All of such items tend to accrete and color the agency staff chief’s (a village manager or superintendent, for instance) view of “next most important item.”

When that happens, the agency is captured.

The agencies subsist in state and federal statutes, regulations, rules, practices and customs that go far beyond our elected representatives’ ability to influence. For instance, a village president will most likely be able to have a working meeting with a Congressman, but a village president cannot change administrative EPA rules that determine how waste is dealt with at a municipal garage.

The webs of law within which the agencies operate are hugely significant. They cannot be ignored. But at times — and I think we saw allusions to such circumstances in the recent campaigns — the web of law of a given agency gives its staff chief a momentum to move an agency in a particular direction. Part-time volunteer elected officials may — or may not — have the time and background to discern the subtle difference between activity that is “mandated” and that which is “voluntary.”

Crossing the threshold to “voluntary” activity grounded on legal mandates — instead of official policy — by definition depletes the agency’s ability to respond to its elected representatives when they seek to guide it in their direction, presumably based on their understanding of what their voters (us) want.

If this happens, the agency is captured.

Without replaying any of the campaigns and candidate statements one way or another, I personally have experienced over the last several years incidents at each of the institutions mentioned in which I concluded, “this is happening because staff has set it up to happen, not because our officials chose it to happen.”

And I was wrong. Why? Because, if the elected officials cede to hired staff an authority beyond execution according to law and policy established by our elected representatives, it is not the staff’s fault — it is the officials’.

This is where we as residents, taxpayers, voters and activists come in.

The quickest way to help officials be swallowed by staff is to not show up at meetings.

Several posts ago I argued for video public comment to help those who either cannot or do not want to appear at a public meeting, like single parents with precious little time. I am not arguing against that idea now. Rather, I think if we can make a meeting — we should go. We need to keep our links with our elected officials to remind them they are there for us and we are not here for them or their agency.

If along the way we have balanced the information supply, we have more to say to them. If we are actively contributing to solving their issues through a “community of practice,” mentioned above, better still. If we know the agenda, and have read the board packet, even more so. If we taped our comment so time can be spent on the agenda instead of desultory exchanges, we have paid respect to their time — and ours.

But, if instead, we abandon our officials, then their reliance on senior staff — and vendors, and employees, and other units of government, etc. skyrockets.

Our officials are there to represent us. Staff is there to execute. That means our officials tell the agency it must perform according to law and our policy — as expressed by them, our representatives.

If this does not happen, then the agency is captured.

POSTED FRIDAY MAY 1, 2009 15:26 #
Explore posts in the same categories: Reflection

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