Legal and Ethical Environment of Public Administration - Coursework Example

Legal and Ethical Environment of Public Administration of Section One Response to Question Judicial review refers to the power of courts to look into laws, policies, decisions, and executive orders to test their constitutionality. Judicial review has the power to ensure that administrative decisions of public entities as well as the policies and laws established by these entities are procedurally fair and respect the constitutional principles of public administration. To litigants, judicial review serves to achieve the fairness of decisions, orders, laws, and policies made by the public entity to which the litigants were subject from both the procedural and substantive angles. The judicial review process can either quash the measures taken by the public entity and order the revision of the measures or force the public entity to act appropriately to serve the interests of the litigant. Because the public entity serves the general public, judicial review ensures that the general public is safe from future maladministration by the entity concerned. The judicial review streamlines the actions of the public entity to curb future malpractices. This way, judicial review serves as a check and balance on administrative power. Response to Question 2 George’s position in the company is to ensure financial accounts are accurate through constant monitoring. Information of this kind, if true, means that the company’s accounts are in a serious mess due to the fraud by the employee. George should first investigate the matter to ascertain its merits. The investigation should seek to know the conferences attended by the employees and other travels as far as meal options are concerned. He can call the employee to shed more light on these. Individually, ethical decisions are governed by religious beliefs, cultural beliefs, and conscience as to what is right or wrong. At the organizational level, the results of a particular action largely determine whether it is right or wrong. George should order the employee to reimburse the company for the inappropriate meal charges. The salary of the employee could be deducted in this regard. Failing to take action could implicate George’s responsibility as the comptroller, and he would be deemed to have acted unethically in discharging his duties. The ASPA Code of Ethics promotes the highest standards of conduct among employees of entities that serve the public. The guidelines can help George instill integrity in the employee thereby boosting public confidence in the company. Response to Question 3 The laws relating to freedom of information and open meetings ensure efficiency in the government because they can be enforced whenever the government is in the wrong. There is a sound basis from the constitution and a number of statutes embodying the freedom of information. On the other hand, transparency is a choice by the government, which it can either exercise or ignore. It is very difficult to test government transparency or force the government to be transparent. The federal government under the Sunshine Act is the people’s servant. It should be accountable to people for all actions it takes on people’s behalf. It is necessary that the public should monitor the proceedings of FISA because security is a public concern. Events such as the 9/11 have confirmed that foreign agents could be dangerous to the state. The Congress should pass a law to enable the application of the federal open meeting law to the FISA. It sounds illogical to interfere with the independence of the court. However, the public is interested in the intelligence matters in which the FISA specializes. Ethically, the greatest good should have its way. Open meetings would boost public confidence in the transparency of the FISA. Response to Question 4 Ideally, a search warrant is necessary before investigating any business premises for faults or legal violations. At least this is the position in criminal law. However, the obtaining of search warrants sometimes takes long whereas the investigation to be carried out is urgent. The case here involves food poisoning. There are greater implications that the poisoning could affect a large number of people if there is a delay in investigation. LT’s Raw Bar could still be making its food in the same way that poisons patrons. Clearly, this is an emergency requiring immediate attention of the health department. On an ethical balance, the benefits of the investigation conducted promptly without a search warrant would be greater. Procedural technicalities should not hamper service delivery where the public interest is involved (Pierre, 2003). Obtaining the search warrant under these circumstances is a procedural technically. Therefore, the food inspector should proceed and inspect LT’s Raw Bar without the search warrant. Response to Question 5 In the public sector, fundamental issues that surround the role of public servants as the public stewards rest largely on legal and ethical considerations. Stewardship largely concerns the core values that guide the judgments of public servants as they perform their duties and relate with the public. Ethical considerations in public management provide the standards against which to measure the accountability of public servants. Laws, on the other hand, streamline public operations by ensuring procedures are followed in service delivery. Most public entities are governed by statutes that create the boundaries within which they should act. Therefore, it is impossible to separate public management from ethical and legal considerations. Public administrators should keep corruption at bay in discharging their duties. Graft has been proven to fuel unethical administration. Public administrators should instead adhere strictly to the rules and regulations governing their entities. Public representatives pass enabling statutes of public entities. Therefore, adhering to the provisions of these laws when discharging public functions equals the honoring the wishes of the public. Response to Question 6 A formal adjudication should be held on the record following the opportunity for a hearing by an agency. The formal adjudication hearings follow the same procedure as rulemakings, which include the introduction of evidence on the record. The person subject to the hearing must be notified of the same, including time, place, nature, jurisdiction, facts, and law. A private party plaintiff is not necessary for the agency. An administrative law judge presides over formal hearings. He makes the final decision on the record. The decision could be appealed. Due process requirements apply to the adjudications where issues or adjudicative facts affecting small groups are involved, or the hearing is about the possibility of depriving property or liberty. Actions by an administrative agency may be set aside as unlawful if the right to counsel is denied. The right to counsel is granted by statute – the Administrative Procedure Act. According to the Act, a person forced to take part in an administrative proceeding is entitled to counsel accompaniment, representation, and advice. Section Two Response to Question 1 The scenario at hand presents a number of legal issues revolving around administrative fairness and constitutional implications. National security is founded in the Constitution, and it surpasses all other interests. On the other hand, the constitution and statutes demand that individuals should be accorded fairness in public administrative decisions and that the freedom of information should be available to all. Clearly, there is a conflict as to what should take precedence. This conflict manifests in the FAA’s power to revoke the license of a pilot air safety and public interests are involved. Khan has not been denied the due process and equal protection rights as provided in the Constitution. The FAA has not discriminated against Khan based on his origin. The proceedings were brought purely on the evidence available that warranted the revocation of his license. The FAA followed the due process as provided in the enabling statute. The agency could not invent its procedures other than those provided by statute. According to the Administrative Procedure Act, however, Khan should have been notified of the evidence against him well in advance so that he could prepare his defense. The fact that the evidence was sealed means that procedural fairness was denied. The evidence could have been hearsay in which case its weight could not warrant the revocation of Khan’s license. The hearing was trial-type because it involved the examination of witnesses and oral testimony. Khan was also represented by a counsel in the proceedings that were presided over by an Administrative Law Judge. Although the Freedom of Information Act allows the public to petition for information held by public agencies, there is a limitation to obtaining such information if it involves matters of national security. Therefore, Khan cannot petition successfully under the Act to obtain the information in the sealed file. Khan cannot bring a tort action against the FAA and its top administrators. The essential tort elements that must be proven to succeed in a tort action are not available in the present scenario. Firstly, neither the FAA nor its top administrators owed Khan a duty of care as far as the revocation of license is concerned. The agency and its officials operate strictly on the statutory mandate. If evidence was found implicating Khan to terrorist activities, the agency and its top officials had the mandate to bring Khan to investigation. There can be no breach of a duty of care where the duty does not exist in the first place. Khan’s situation is one in which what is just for the society is unjust for the individual. National security is a matter of public interest. Therefore, Khan has no otherwise but to be subjected to the strict confines of adjudicating national security matters, which include the concealment of evidence and the deprivation of the freedom of information. These limitations and confines are in the public interest (that is, they benefit the majority of the society) at the expense of the individual. The greatest happiness for the greatest number is the guiding principle in this situation. The US Circuit Court of Appeals is likely to be persuaded by this argument and rule in favor of the FAA. The questions of national security are likely to dominate its decision. Response to Question 2 The Framers of the American Constitution intended the government to be limited by fundamental legal principles. However, the party regimes rotating between the Democrats and the Republicans brought bureaucracy in the American public sector. The party in power ensured that party loyalists fill all public positions as a means of frustrating all other persons loyal to the opposition. Precisely, therefore, public administration is controlled from the top (that is, the president and executive). The notion of separation of powers cannot work in the present public administration. This is because all appointments are deemed presidential appointments. It would be hard for the judiciary, for instance, to make decisions that outrageously go against the government principles. The President and the Congress influence the other arms of government largely. Federalism has been diluted to an extent that it is efficient no more as intended by the Framers. The rule of law is principally a legal principle that requires the law to direct government actions as opposed to arbitrariness. Public administration depends much on the rule of law because this is the only way it can guarantee fairness to the general public. Extra Credit a) T b) F c) F d) F e) F Reference Pierre, J. (2003). Handbook of public administration. New York: Routledge. Read More