Quality Of Governance: Values And Violations 3030215210, 9783030215217, 9783030215224

Table of contents :
Preface and Acknowledgements
......Page 5
About Study Group IV—Quality of Governance
......Page 6
Acknowledgements
......Page 9
Contents......Page 11
The Contributors......Page 13
List of Figures......Page 15
List of Tables......Page 16
Introduction......Page 17
1.1 Topic of the Volume......Page 18
1.2 Values Covered in This Volume......Page 19
1.2.1 The Good and the Bad: Examining Both Sides of Values......Page 22
1.2.2 Defining Governance and Quality......Page 24
1.2.3 Value Pluralism......Page 27
1.2.4 Contextual Relevance of Values......Page 29
1.2.5 Contributions to This Volume......Page 30
1.3 Part I: Quality—Institutionalizing Values in Governance Practices......Page 32
1.4 Part II: Quality—Translating Values in Practitioner Behavior......Page 34
References......Page 36
Part I: Institutionalizing Values in Governance Practices......Page 40
Chapter 2: Democratic Legitimacy in Bureaucratic Structures: A Precarious Balance......Page 41
2.1 Democratic Legitimacy as a Governance Value......Page 42
2.1.1 The Balancing Act Between Democracy and Bureaucracy......Page 43
2.2 The Ascendancy of Market Values and the Decline of Faith in Democracy......Page 48
2.3 Crisis and Control: The Problem of Bureaucratic Distortion......Page 50
References......Page 55
3.1 Addressing Accountability and Quality of Governance......Page 58
3.2 The Forum and Accountable Governance......Page 62
3.2.1 One Model Among Many......Page 63
3.2.2 The Bovens Model......Page 64
3.2.3 Assessing the Forum......Page 68
3.2.4 The Relational......Page 70
3.3.1 Agora......Page 72
3.3.1.1 A Role for Moral Theory......Page 74
3.3.2 Bazaar......Page 77
3.3.2.1 Ubiquity......Page 80
3.3.2.2 Productivity......Page 81
3.3.2.3 Hostility......Page 83
3.4 Concluding Remarks......Page 84
References......Page 87
4.1 A Deeper Understanding of Transparency......Page 93
4.2 Transparency in Government......Page 94
4.2.1 Transparency as Access to Information......Page 95
4.2.2 Transparency as Two-Way Communication......Page 96
4.2.3 Transparency as Predictability......Page 97
4.3 Case Study: Government Transparency in Romania......Page 99
4.3.1 General Framework and Evolution of Transparency in Romania......Page 100
4.3.2 Transparency as Access to Information......Page 102
4.3.3 Transparency as Two-Way Communication......Page 103
4.3.4 Transparency as Predictability......Page 104
4.4 Discussion and Conclusion......Page 107
References......Page 109
5.1 Governance......Page 114
5.2.1 Introduction: Integrity?......Page 115
5.2.2 Values, Ethics, Integrity, and Governance......Page 117
5.2.3 Integrity Violations......Page 118
5.3.1 Introduction......Page 119
5.3.3 Public Value......Page 120
5.3.4 Public Values......Page 121
5.3.5 Pluralism and Universalism of Public Values......Page 123
5.3.6 Managing Conflicting Values......Page 124
5.3.7 Quality of Government: Specific Values......Page 125
5.3.8 Good Governance......Page 126
5.4.2 Integrity (and Quality)......Page 128
5.4.3 Integrity Violations and Relevant Values......Page 129
5.4.4 Resulting Value Panorama......Page 131
5.4.5 Quality (and Integrity)......Page 132
5.4.6 How to Combine Integrity and Quality?......Page 134
5.4.7 Agenda for Research......Page 136
References......Page 137
6.1 Lawfulness, Rule of Law and Typicality of Administrative Action......Page 142
6.2 Lawfulness and Plurality of Legal Sources: The ‘Traditional’ Scenario and the Relationship Between Statutes and Regulations......Page 147
6.3 Lawfulness and Good Administration......Page 148
6.4 The Evolution of Lawfulness of Administrative Action and the Judicial Review: Brief Remarks......Page 153
6.5 Public Interest and Private Law: No More a Dichotomy for Administrative Action......Page 154
6.6 Simplification v. Complication and the Pitfalls of Lawfulness: Two Significant Examples......Page 156
6.7 The Independent Authorities’ Guidelines and the Acceptance of Atypical Legal Sources as an Answer to the Crisis of ‘Traditional’ Administrative Lawfulness......Page 158
6.8 Final Remarks......Page 159
References......Page 162
Part II: Translating Values in Practitioner Behavior......Page 168
7.1 An Empirical Study of Effectiveness and Quality......Page 169
7.2 Public–Private Partnerships......Page 170
7.3 Quality-Shading, Quality, and Prior Research......Page 171
7.4 Assessing Quality in DBFMO and Method......Page 173
7.5.1 The Highway......Page 176
7.5.2 The Water Project......Page 178
7.5.3 The Detention Center......Page 179
7.5.4 The Ministry of Finance......Page 181
7.6 Conclusion......Page 183
7.7 Discussion......Page 185
References......Page 187
8.1 Quality of Governance at Street Level: Introducing Public Craftsmanship......Page 191
8.2 A Bottom-Up Approach to Sense-Making by Public Professionals......Page 193
8.3 From Value Sets of a General Public Nature to the Specific Work Context......Page 195
8.4 Studying Public Craftsmanship Value Convergence......Page 199
8.5 Values and Craftsmanship in the Prison Context......Page 201
8.6 Research Methods and Analysis......Page 202
8.7.1 Craftsmanship Among Prison Officers: Prioritizations Alike, Varied Interpretations......Page 205
8.7.2 Variance of Prison Officers’ Value Orientations......Page 207
8.7.3 Patterns of Value Prioritization Among Prison Officers......Page 212
8.7.4 Convergence in Variance: How Prison Officers Interpret Craftsmanship......Page 213
8.8 Discussion and Conclusion......Page 216
References......Page 218
9.1 What It Means to Be Robust......Page 224
9.2 Quality of Governance: Integrity +?......Page 227
9.3 Integrity of Governance......Page 228
9.4.1 Bureaucratic Animosity in the Processes of Governance......Page 231
9.4.4 Systemic Bureaucratic Animosity......Page 232
9.4.5 Animosity by Bureaucrats—Willing or Not......Page 234
9.4.6 Citizen/Clients—Contributing to Their Own Circumstances......Page 235
9.4.6.1 Complaint-Oriented Citizens......Page 236
9.4.7 Discretion Allowed and Disallowed, Used and Unused......Page 237
9.5 Bureaucratic Animosity and Integrity Violations......Page 239
References......Page 241
Conclusion......Page 244
10.1 Quality of Governance, and Values in Context......Page 245
10.2 Where We Have Been......Page 247
10.3 Values Interpretation—Clarity and confusion......Page 248
10.3.2 Translating Values into Action......Page 249
10.4 Many Values Matter for Governance: How Do They Relate......Page 250
10.5.1 Values in Different Policy Phases......Page 252
10.5.2 Different Value Scopes......Page 253
10.6 Agenda for Research......Page 254
References......Page 255
Index......Page 256

Citation preview

Quality of Governance Values and Violations Edited by Hester Paanakker · Adam Masters Leo Huberts

Quality of Governance

Hester Paanakker  •  Adam Masters Leo Huberts Editors

Quality of Governance Values and Violations

Editors Hester Paanakker Radboud University Nijmegen, The Netherlands Leo Huberts Vrije Universiteit Amsterdam Amsterdam, The Netherlands

Adam Masters Centre for Social Research and Methods Australian National University Canberra, ACT, Australia

ISBN 978-3-030-21521-7    ISBN 978-3-030-21522-4 (eBook) https://doi.org/10.1007/978-3-030-21522-4 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface and Acknowledgements

This volume is the result of the admirable hard work of many. The topics this volume addresses stem directly from the continuous flow of papers, ideas, and discussions generated by the members of the Study Group on Quality of Governance. Over the past few years, this group has fostered many inspiring meetings and outputs. We are particularly indebted to the continued support of the many academics and practitioners involved. A particularly inspiring idea emerged a few years ago, when the three of us started deliberating an edited volume that would draw together the work of the group and would be an accurate reflection of the research agenda we pursue as a group. The ongoing developments in governance systems and settings are not to be taken lightly. In a highly complex and interconnected world, with swift technological advancements, with people, capital and information on the move, and with an increasingly global impact of public policies, the way we govern societal problems and solutions has become ever more crucial—and yet, volatile at the same time. Political fragmentation, economic breakdowns, and escalated human suffering and inequality lie at wait. Attempts to do justice nowadays to normative questions of governance, and to attain and uphold high levels of quality in governance, might be a hazardous undertaking that brings both perils and potential breakthroughs to the table. In both instances, careful assessment and deliberation on what it is that constitutes quality of governance and what can be done to improve it are, in our view, decisive for our future administrations and their impact. It is this question our study group devotes its academic work to. We are proud v

vi 

PREFACE AND ACKNOWLEDGEMENTS

to present the fruits of this labor in this edited volume on values and violations of quality of governance. We gratefully take this opportunity to explain a little more on the composition and aims of the Quality of Governance Study Group. We would also like to express some words of gratitude to those that helped to accomplish this volume.

About Study Group IV—Quality of Governance Many national and international governmental and non-governmental organizations are increasingly involved in topics that concern the quality of governance and its foundations. Among them are many initiatives concerning ethics and integrity including the struggle against corruption; programs aimed toward other valued aspects of governance such as democracy, human rights, and the rule of law; and initiatives focused on the effectiveness and efficiency of public policies and services. This involvement coincides with the research agendas of several fields of study in academic disciplines including public administration. In 2012, the International Institute of Administrative Sciences (IIAS), a non-profit organization seated in Brussels, aimed at promoting the exchange of knowledge on the main trends of public administration in the different regions in the world, created a new entity: Study Group IV— Quality of Governance (QuGo). The QuGo study group convened in Amsterdam with scholars from five continents (Africa, Asia, Australia, eastern and western Europe, and North America) and intended to develop a better understanding of the processes of governance and the values which contributed to the quality of governance. From its initiation onward, the study group conceived of the quality of governance as containing a light and a dark side—quality of governance can be good, and quality of governance can be bad. Focusing on only one side of the equation or the other leaves a gap in our understanding on how to maintain and foster good quality in the processes of governance and to reduce or eliminate the bad. A set of themes underpin the research agenda of the QuGo study group. These include, 1. Quality of Governance: good and bad governance in context. What is quality of governance given the manifold public values? What values matter in governance (processes) and what is their impact in decision-making and policy-implementation? How do the

  PREFACE AND ACKNOWLEDGEMENTS 

vii

values relate to ‘relevant publics’ (e.g., citizens, politics and administration, elite and street-level)? How do we understand ‘good governance’ from the top down and bottom up and internationally? 2. Quality of governance policies, systems, instruments, leadership. Many initiatives to improve the quality of the governance process exist. These are apparent in, for example, the literature on ‘integrity systems,’ including actors involved in protecting public values (e.g., anti-corruption agencies, civil society involvement, judicial actors, ombudsmen, auditing and oversight divisions, etc.). But how do these actors relate and work, and what really works in what context? 3. Quality of governance and quality of outcomes. How do characteristics of (the) governance (process and organization) relate to the quality of resulting policies and results? This is important to reflect upon in (sub)national contexts, but the (un) intended effects in a broader (international) context are relevant as well. 4. Quality of governance and governance studies: theory and methodology. What is the state of the art in this field, paying attention to theoretical development (and its relationship to, for instance, political theory and philosophy), and methodological advancement (quantitative, qualitative, ethnographic, etc.)? These themes serve as a starting point for our initial and ongoing work. The QuGo study group has grown and explored further in a series of sessions at IIAS and other conferences (Box 1), in initiatives to connect the manifold groups in this field, and through cooperative comparative research. Since the convening, the study group has met regularly in Europe, the United States, and Asia. Within the first two years, more than fifty concept papers, presentations, or full papers have been presented by the study group to develop its research agenda. Our aim is to relate, connect, and synergize these fields of study in a global context. In doing so, the Study Group strengthens existing initiatives through its global forum in this challenging and important area. Our leading research question is: What is quality of governance and how can quality be advanced in multi-faceted national and international governance processes and structures?

viii 

PREFACE AND ACKNOWLEDGEMENTS

Box 1  IIAS Study Group IV: Activities 2012–2018

• Inaugural Seminar, Amsterdam, the Netherlands—7–12 May, 2012 • Pre-conference workshop, New Orleans, USA—14 March, 2013 • Panel: Quality of Governance: Understanding Corruption, Animosity, and Integrity, in cooperation with the Ethics Section, American Society for Public Administration (ASPA) Annual Conference, New Orleans, USA, 15–19 March, 2013 • Panel: Quality of Governance, International Institute of Administrative Sciences (IIAS) International Congress, Bahrain—1–6 June 2013 • Pre-conference workshop, Washington DC, USA—13 March, 2014 • Panel: Quality of Governance: Values, Policies, Corruption and Training, in cooperation with the Section on Ethics and Integrity of Governance (SEIGOV), ASPA Conference, Washington DC, USA—14–18 March, 2014 • Sessions: (I) Challenges to Quality of Governance: Good Governance in Context, (II) Quality of Governance Institutions IIAS International Congress, Ifrane, Morocco—15–16 June 2014 • Pre-conference workshop, Chicago, USA—5 March 2015 • Panel: Quality of governance, in cooperation with the Section on Ethics and Integrity of Governance (SEIGOV), ASPA Annual Conference, Chicago, USA—6–10 March, 2015 • Sessions: (I) What is Quality of Governance about? (II) How does quality of the governance system/process relate to the quality of society? (III) The organizational level, IIAS/IASIA (International Association of Schools and Institutes of Administration) Joint Congress, Chengdu, PR China—19–23 September, 2016 • Panel: Quality of Governance, International Conference on Public Policy, National University of Singapore—28–30 June 2017 • Panel: The vulnerability of governmental agencies for threats from outside, in cooperation with the Section on Ethics and Integrity of Governance (SEIGOV), ASPA Annual Conference, Denver Co, USA—9–13 March 2018 • Sessions: (I) Quality of Governance, (II) Integrity of Governance, (III) Resilience of Governance, IIAS/IASIA Joint Congress, Tunis—25–29 June 2018

  PREFACE AND ACKNOWLEDGEMENTS 

ix

Acknowledgements Our acknowledgements, like the study group, span a large array of like-­ minded scholars. Some of the following kudos the reader will easily follow, the ‘dinosaur’ theme flows from a running joke within the study group. First, we would like to acknowledge the IIAS for facilitating our QuGo study group and for recognizing the importance of the topic. They help us to advance theory and practice on quality issues of governance by providing a platform for us to meet and attract new members. We thank professor Geert Bouckaert for his skillful and cordial leadership and Anne de Boeck and Steve Troupin for their excellent organizing talent and flexibility in facilitating our many (and often late) requests. Second, we want to recognize the fellow co-chairs of our study group. In accord with IIAS policy, three scholars co-chair Study Group IV. Professor Leo Huberts, Vrije Universiteit Amsterdam; Professor Adam Graycar, Flinders University, Adelaide and Honorary Professor at the Crawford School of Public Policy at the Australian National University; and Associate Professor Tina Nabatchi at the Maxwell School of Syracuse University, New York. We would like to acknowledge the contribution of Adam Graycar and Tina Nabatchi, as well as the senior academics in Study Group IV who have provided mentorship to their junior colleagues. For this, the young dinosaurs, Hester Paanakker and Adam Masters who have edited this volume thank both them and their editorial colleague—the oldest dinosaur—Leo Huberts. Many of the activities of the study group could not have occurred without the administrative support provided by various assistants at the VU and the Australian National University—roles from which two of the ­editors—Paanakker and Masters—have emerged. Others who have supported the administration of the QuGo study group include Thomas Westveer, Martijn Wessels, and Sanne-Minouk van den Broek. Especially, we would like to thank all who have contributed directly to this volume, as well as those who have actively participated in the many QuGo activities we have listed. Without their enthusiasm and collaboration, many of the insights of this volume would be left unsaid. On a personal level, we also thank them for their good company at conferences and other meetings. Furthermore, some of the authors within, and many of our other colleagues have gone on to publish their contributions to the various QuGo study group meetings around the globe (e.g., Adams & Balfour, 2017; Anechiarico, 2017; de Graaf & van Asperen, 2016; Schnell, 2016; Van der Wal & Yang, 2015; Yang, 2016; Yang & Van der Wal, 2014). This volume continues the theme established in 2012 and represents our most significant shared output as members of the IIAS Study Group IV on Quality of Governance.

x 

PREFACE AND ACKNOWLEDGEMENTS

Finally, no book is possible without the support of those involved in the publishing process. We thank our reviewers for their insightful comments and feedback, which strengthened the work before you. Thanks is also due in no small part to Oliver Foster, Jemima Warren, and the team at Palgrave. Nijmegen, The Netherlands  Canberra, ACT, Australia Amsterdam, The Netherlands 

Hester Paanakker Adam Masters Leo Huberts

References Adams, G. B., & Balfour, D. L. (2017). Doubling down on derivatives: The legal but corrupt exploitation of the fallout from the great recession. In F. Anechiarico (Ed.), Legal but corrupt: A new perspective on public ethics (pp. 15–28). London, England: Lexington Books. Anechiarico, F. (2017). Racialized policing in New  York City: The NYPD and stop, question, frisk. In F. Anechiarico (Ed.), Legal but corrupt: A new perspective on public ethics (pp. 81–104). London, England: Lexington Books. de Graaf, G., & van Asperen, H. (2016). The art of good governance: how images from the past provide inspiration for modern practice. International Review of Administrative Sciences. https://doi.org/10.1177/0020852316630392 Schnell, S. (2016). From information to predictability: Transparency on the path to democratic governance. The case of Romania. International Review of Administrative Sciences. https://doi.org/10.1177/0020852316648756 Van der Wal, Z., & Yang, L. (2015). Confucius meets Weber or “Managerialism takes all”? Comparing civil servant values in China and the Netherlands. International Public Management Journal, 18(3), 411–436. https://doi.org/ 10.1080/10967494.2015.1030486 Yang, L. (2016). Worlds apart? Worlds aligned? The perceptions and prioritizations of civil servant values among civil servants from China and The Netherlands. International Journal of Public Administration, 39(1), 74–86. https://doi.org /10.1080/01900692.2015.1053614 Yang, L., & Van der Wal, Z. (2014). Rule of morality vs. rule of law? An exploratory study of civil servant values in China and the Netherlands. Public Integrity, 16(2), 187–206. https://doi.org/10.2753/PIN1099-9922160206

Contents

Introduction   1 1 Quality of Governance: Values and Violations  3 Hester Paanakker, Adam Masters, and Leo Huberts Part I Institutionalizing Values in Governance Practices  25 2 Democratic Legitimacy in Bureaucratic Structures: A Precarious Balance 27 Neal D. Buckwalter and Danny L. Balfour 3 Dissecting the Semantics of Accountability and Its Misuse 45 Ciarán O’Kelly and Melvin J. Dubnick 4 Transparency Assessment in National Systems 81 Sabina Schnell 5 Integrity and Quality in Different Governance Phases103 Leo Huberts 6 The Multi-interpretable Nature of Lawfulness in a National Framework131 Anna Simonati xi

xii 

Contents

Part II Translating Values in Practitioner Behavior 157 7 Mission Impossible for Effectiveness? Service Quality in Public–Private Partnerships159 Anne-Marie Reynaers 8 Professionalism and Public Craftsmanship at Street Level181 Hester Paanakker 9 Robustness and the Governance Sin of Bureaucratic Animosity215 Adam Masters Conclusion 235 10 Reviewing Quality of Governance: New Perspectives and Future Research237 Adam Masters, Hester Paanakker, and Leo Huberts Index249

The Contributors

Editors Leo Huberts  is Professor of Political Science and Public Administration at the Vrije Universiteit Amsterdam, the Netherlands. Adam  Masters  is Lecturer in Criminology at the Australian National University, Australia. Hester Paanakker  is Assistant Professor of Public Administration at the Nijmegen School of Management, Radboud University Nijmegen. At the Vrije Universiteit Amsterdam, the Netherlands, she is completing a PhD on understandings of public craftsmanship in the Dutch prison sector.

Value Chapter Authors Danny  L.  Balfour is Professor of Public, Nonprofit, and Health Administration at the Grand Valley State University, USA, and former chair of the Section of Ethics and Integrity of Governance for the American Society for Public Administration. Neal  D.  Buckwalter  is Assistant Professor of Public Administration at the Grand Valley State University, USA. Melvin J. Dubnick  is Professor of Political Science and director of the MPA program at the University of New Hampshire. He has written on a range of issues from accountability, regulatory policymaking, and federalism to health care reform. xiii

xiv 

The Contributors

Ciarán O’Kelly  is Lecturer in the School of Law at Queen’s University, Belfast, and is on the editorial boards of American Review of Public Administration and Public Integrity. Anne-Marie Reynaers  is Assistant Professor of Public Administration in the Department of Political Science and International Relations, Autonomous University Madrid, Spain. Sabina  Schnell is Assistant Professor of Public Administration and International Affairs in the Maxwell School of Citizenship and Public Affairs, Syracuse University, USA. Anna  Simonati is Associate Professor of Administrative Law at the University of Trento, Italy.

List of Figures

Fig. 2.1 Fig. 2.2 Fig. 3.1 Fig. 3.2

An array of values to uphold democratic legitimacy 30 The balance of democracy and bureaucracy 31 Accountability (Figure 1 in Bovens, 2007, p. 454) 54 The accountability cube (Figure 1 in Brandsma & Schillemans, 2012)54 Fig. 5.1 System model of politics (governance) 104 Fig. 5.2 Famous World Bank good governance values 116 Fig. 9.1 Model of bureaucratic animosity and discretion 228

xv

List of Tables

Table 2.1 Governors triggering emergency financial manager or emergency manager in Michigan 38 Table 2.2 The revolving door of emergency managers in Flint, MI, USA 40 Table 3.1 Five models of accountability 50 Table 3.2 Accountability as a social relation (Box 1 in Bovens, 2007, p. 452)53 Table 4.1 Perspectives of transparency 87 Table 4.2 Transparency in Romania: Key legislation and patterns of behavior95 Table 5.1 Eight views on integrity 105 Table 5.2 Types of integrity violations 108 Table 5.3 Number of integrity violations and impression of the values violated119 Table 7.1 Case characteristics and number of respondents 165 Table 7.2 Conditions influencing quality in DBFMO 174 Table 8.1 Respondent characteristics 193 Table 8.2 Overview of prison officers’ reported value orientations toward public craftsmanship 196 Table 9.1 Integrity violations and NSW ICAC matters 221 Table 9.2 Elements of bureaucratic animosity 224 Table 9.3 Integrity violations and bureaucratic animosity 231

xvii

Introduction

CHAPTER 1

Quality of Governance: Values and Violations Hester Paanakker, Adam Masters, and Leo Huberts

1.1   Topic of the Volume Why do values matter, and how can they be employed to address the quality of governance? Ongoing theoretical and empirical work explores the collective meaning of public values as guiding sets of action in governance settings and beyond. However, research that explicitly sets out to unravel the meaning of individual values and reflects on their coherent—or incoherent— adherence and significance is far scarcer, especially seen in application in concrete contexts. This volume represents a joint effort of the Study Group on Quality of Governance, a group of international researchers associated with the International Institute of Administrative Sciences (IIAS), to fill this gap and to advance our understanding of concrete value attainment. It is a

H. Paanakker Radboud University, Nijmegen, The Netherlands e-mail: [email protected] A. Masters (*) Centre for Social Research and Methods, Australian National University, Canberra, ACT, Australia e-mail: [email protected] L. Huberts Vrije Universiteit Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_1

3

4 

H. PAANAKKER ET AL.

continuation of the broader agenda of the Study Group to grasp the complex dynamics of what “Quality of Governance” constitutes and outlines the thematic line of values-based research to uncover the content and scope of the topic. In line with this specific objective, the volume harnesses a very specific framework limited to eight values as its point of departure. The contributions to this volume cover, respectively, democratic legitimacy, accountability, transparency, integrity, lawfulness, effectiveness (in terms of service quality), professionalism, and robustness. As such, it is the first of its kind to look beyond the taken-for-granted nature of abstract, aspirational, and often-assumed rather universalistic values. In a set of independent case studies, this book seeks to provide a truly in-depth examination of the relevance, limitations, and applicability of some of these claimed core values of the quality of governance. How does transparency matter to the complex dynamics of a set of public, private, non-governmental, civil society, and other associated actors in daily governance settings? How to interpret the importance of democratic legitimacy? What are critical indicators to uniformly safeguard public effectiveness? And what role do interpretations and semantics play in the violation of such values of governance? The establishment and evaluation of governance processes, practices, policies, and tools geared toward maintaining quality—in society and government—continually demand our attention. Contextual, applied values-based research enables us to peel back some of the layered complexity of these questions.

1.2   Values Covered in This Volume We specifically aim to complement existing research by zooming in on the importance and meaning of this particular set of values to the overall quality of governance. Therefore, each chapter explicitly addresses one specific value at a time, and each contribution discusses the underlying question of the relevance, limitations, and applicability of that specific value to the quality of governance. Of course, many other and perhaps equally valid frameworks exist. Rather than an attempt to streamline or limit our understanding of the role of certain values to quality of governance at the expense of others, we fully acknowledge that our volume represents just one way of looking at quality of governance among many. We do not claim that our perspective is better, more comprehensive, or more conclusive than other distinguished work on quality of governance, which we applaud and are inspired by. By no means do we claim our analysis to be exhaustive in either the number of values or the number of cases discussed. We do ­present to you an interesting peak into the role of some key values that, in our view, might

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

5

very well constitute the core of governance processes in the late-modern world. These values have roles of their own, relationships with each other that mutually reinforce maxims for thought and action, or work in combination with other values that are left outside the equation in this volume. The choice for this set of eight values is obviously not a random one and builds on extensive groundwork of adjacent literatures. Classifications of the values a quality of governance framework should contain are widespread and diverse. Besides promoting single values such as impartiality (Rothstein, 2011) or democracy (Bevir, 2010) as the central characteristic of governance quality, several more inclusive lists of a range of complementary values exist. Bovens et al. (2007), for instance, distinguish four clusters of values that are relevant to the assessment of good governance: lawfulness, integrity, democracy, and effectiveness/efficiency. A seminal article (La Porta, Lopez-de-Silanes, Shleifer, & Vishny, 1999) empirically addressed the determinants of the quality of governments in a large cross-­ section of countries. Quality or ‘good governance’ was interpreted as ‘good  for economic development,’ using the measures of government intervention, public-sector efficiency, public good provision, size of government, and political freedom. That specific focus on ‘economic’ development is anything but uncommon in the good governance literature. The most influential—and arguably also most heavily criticized—framework is that of the World Bank, which sees good governance as participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive, and in accordance with the rule of law. What these three examples have in common is the fact that they include values that pertain to both process (for instance, participation) and outcomes (for instance, effectiveness) of governance, or in potential to both (for instance, integrity and equitability). In this volume, we build on the previous work of Huberts (2014), who integrated this insight into a value panorama of seven key values in his book The Integrity of Governance: What Is It, What We Know, What Is Done and Where to Go. Based on an elaborated examination of theoretical and empirical work on the morality of governance over the last decades, he hypothesizes that the following central values (clusters) define the quality of governance (Huberts, 2014, p. 213): 1. ‘democracy with responsiveness and participation’—paying attention to social preferences and with the involvement of actors having an interest (including citizens); 2. ‘accountability and transparency’—being open, honest, and willing to account for behavior;

6 

H. PAANAKKER ET AL.

. ‘lawfulness’—respecting laws and rules; 3 4. ‘incorruptibility and impartiality’—acting in the public interest instead of self-interest or other inappropriate partial interests; 5. ‘effectiveness and efficiency of process’—acting capably in agenda-­ building and preparing, taking, and implementing decisions; 6. ‘professionalism and civility’—acting in line with professional standards and standards for (inter)personal behavior; skillfulness (expertise), civility and respect, neutrality and loyalty (including confidentiality), and serviceability for civil servants; and reliability, civility, and trustworthiness for politicians; 7. ‘robustness’—being stable and reliable but also able to adapt and innovate. Huberts (2014) underlines that future research will have to demonstrate how tenable this panorama is and encourages further reflection on its meaning and usefulness. With this volume, we set out to meet this call and produce a coherent collection that provides further insight into how each value relates to the overall quality of governance. For this purpose, the contributions to this volume relate to these key value clusters and fully cover the spectrum. Specifically, we invited experts on particular values to bring together their knowledge and insights on that value as well as reflect on the central question of the volume. This lead to a slight adaptation of the value labels used to ensure good coverage of the authors’ work. For instance, ‘democracy with responsiveness and participation’ is addressed in this volume as ‘democratic legitimacy,’ ‘incorruptibility and impartiality’ is addressed as ‘integrity,’ ‘effectiveness and efficiency’ is represented by a contribution of effectiveness understood as service quality, and the cluster ‘accountability and transparency’ is accounted for by two different contributions (one on accountability and one on transparency) as they represent two quite separate bodies of literature in practice. Inherently, this expert approach also means that the volume does not represent geographical or sectoral distribution in terms of the countries or cases that were selected. Rather, the contributions are independent case studies. The case studies derive their value from the profound, comprehensive, and deep analysis of that value’s relevance, applicability, and limitations in concrete contexts, which is where values ultimately manifest themselves and attain their practical ‘worth.’ The proof of the pudding is in the eating…. It is this demarcated, detailed analysis that carries lessons that reach far beyond the confines of the specific cases or country contexts that are discussed. On this, we hope future research will build further.

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

7

1.2.1  The Good and the Bad: Examining Both Sides of Values Without a doubt, quality of governance is a contested topic and one that has own itself a spot in both academic as well as policy debates worldwide. Governance has become one of the key concepts for public administration over the last three decades, and is popularly recurring in several disciplines that study steering,1 power, authority, politics, policy, administration, government, management, and organization (Bevir, 2009; Fukuyama, 2016; Kettl, 2015; Kjaer, 2004; Rose-Ackerman, 2017). As our understanding of the concept widens and deepens, key questions arise from both empirical studies and normative thinking. Vital among them is how do we delineate between governance that is good and governance that is bad. This volume scrutinizes this notion of good and bad through a values-­ based analysis of the quality of governance. Concurrent to the dispersion of governance, the concept of good governance has permeated both theory and practice of governance in the public sector worldwide (Huberts, Maesschalck, & Jurkiewicz, 2008). Increasing emphasis is put on guaranteeing a certain standard of quality of governance. What quality of governance actually comprises remains subject to debate: interpretations vary from impartial government (Holmberg, Rothstein, & Nasiritousi, 2009; Rothstein & Teorell, 2008) to integrity of governance (Evans, 2012), and from a minimum set of delivered public services (Woods, 2000) to a set of complementary values (Bovens, ‘t Hart, & van Twist, 2011; de Graaf, Van Doeveren, Reynaers, & Van der Wal, 2011). A common denominator in the vast body of literature on good governance, either explicitly or implicitly, is the central role of values. Since 2000, the public administration field, in general, has witnessed increased scholarly attention to the role of values (Van der Wal, Nabatchi, & De Graaf, 2015), for example, in public-­ private debates (Reynaers, 2014a, 2014b; Van der Wal, 2008) or in the economic individualism discourse (Bozeman, 2007). Despite discussions on public values labels and definitions, a stable, new, and increasingly diverse agenda seems to have taken root in public administration to map and assess the functioning of governance (Bøgh Andersen, Beck Jørgensen, Kjeldsen, Pedersen, & Vrangbæk, 2012; Van der Wal, 2016; Van der Wal et al., 2015). 1  The word ‘governance’ derives from Latin origins that imply a notion of “steering.” This connotation of ‘steering’ a society contrasts markedly with the traditional ‘top-down’ approach of governments ‘driving’ society.

8 

H. PAANAKKER ET AL.

The concurring shifts to examining quality of governance on the one hand, and to examining if and how which public values are addressed on the other, merge into this volume on values of quality of governance. Contributions include attention to their violation and its corresponding impact on quality at large. As a Study Group of international researchers, we have found a focus on quality of governance and a set of values which underpin this quality has enabled a better understanding of not only the outcomes, but also the processes of governance—which are equally, if not more, important than governance outcomes. To illustrate this importance with a brief analogy, a government policy for a new hospital demands its construction in a controversial location. The government may engage a private consultant to ensure that opposition to the hospital is minimized and land appropriated for its construction. The consultant hires a sub-­ contractor who engages in violent, unethical, and illegal behavior, keeping no records. Both charge exorbitant fees for their services. The outcome is a well-run hospital as much at the cost of the quality of governance as a badly run hospital that compromises patients’ health and well-being—in the process, the values of democracy, accountability, transparency, integrity, lawfulness, and efficiency have all been sacrificed. Such an example is illustrative only, but any scholar or practitioner of public administration need not stretch their mind too far to think of real-life examples which demonstrate how both processes and outcomes of governance are important to quality. Contributions in this volume, therefore, seek to explore the quality issue by looking at process-oriented issues as well as outcome-­ oriented issues. In addition, some chapters put more emphasis on exploring the ideal of ‘good’ quality of governance, whereas others have a stronger focus on violations of a central value, illustrating ‘bad’ quality of governance. Collectively, these chapters demonstrate our need to examine the ‘good’ or positive aspects of public values to understand the ‘bad’ or negative aspects arising from violations of public values—and vice versa. Thus, we derived the sub-title of this book: values and violations. For instance, (1) how does integrity or lawfulness contribute to the accomplishment and preservation of quality?; (2) how can we attain such a value and actuate it to reach its full potential?; and (3) what happens if we fail to address it adequately? We think this satisfactorily complements the scientific and applied studies that pull larger sets of values together in distinct classifications, assigned or assumed weight, aspirational public purposes, or inherent conflicts to be resolved among them. In contrast then, our volume

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

9

highlights the complementary importance of single values and stresses their individual indispensability—often best signaled by exploring or theorizing the consequences of violation of these values. In addressing both the positive (values) as the negative (violations) side, our volume represents a tribute to the role of some individual values we deem relevant and whose significance we should not lose sight of when deliberating the quality of governance. Before describing the contents of this volume in more detail, we will first set out how we understand some of the core concepts used and what theoretical assumptions our work is based on. 1.2.2  Defining Governance and Quality The attractiveness of the governance concept is partly explainable by the many changes taking place within society in terms of public power and policy-making. In addition to politics, government, and administration, many other actors and organizations have become involved in addressing public problems and challenges (Huberts, 2014). With respect to good governance, Grindle argues ‘Not all change has to be orchestrated by the state or demanded by the international financial institutions’ (2004, p.  537). One of the ‘godfathers’ of governance theory, Jan Kooiman (2003, p. 4), defined governing as ‘the totality of interactions, in which public as well as private actors participate, aimed at solving societal problems or creating social opportunities; attending to the institutions as the contexts for these governing interactions; and establishing a normative foundation for all those activities.’ Globally, governance is generally characterized as who governs, at what level, how and toward what end (Rajagopal, 2013). In this volume, governance is seen as ‘authoritative policy-making on collective problems and interests and implementation of these policies’ (Huberts, 2014, p. 68). Governance is about addressing collective ­problems and interests, possibly by one actor but also by a network of public and private actors (Huberts, 2014). Another important element is authoritative, a term referring to the relation between the governing actor(s) and the collectivity involved (Huberts, 2014). It presupposes support and legitimacy of the organization or community whose problems and interests are addressed—the relation to Easton’s (1953) famous definition of politics as the ‘authoritative allocation of values’ is of course not coincidental. As will be demonstrated throughout this volume, different entities

10 

H. PAANAKKER ET AL.

may assert the authoritative role of safeguarding values in governance, depending on the context. Examples include central or local governments, civil society, public institutions, private sub-contractors, street-level bureaucrats, financial administrators, legal experts, or, as a counterforce to politics, professionalized bureaucracies. When reflecting on the quality of governance, of course the central question arises what quality is? Quality is a rather complex concept. Dictionaries tell us it refers to ‘the standard of something as measured against other things of a similar kind; the degree of excellence of something,’ and to a ‘distinctive attribute or characteristic possessed by someone or something’ or to ‘levels of excellence,’ to ‘being of good worth, well made, fit for purpose.’2 In the context of ‘quality of governance,’ the concept then refers to standards (of excellence) for governance, to criteria that distinguish between good and bad governance, or in other words to the relevant values to judge governance (Huberts, 2014). The literature defines values in a number of ways. These definitions contain common elements such as beliefs or qualities, and each contains subtle differences which can shift the analytical perspective. Here we combine the work of many, leading to a broad definition: values are beliefs or qualities appreciated for constituting, or contributing to, judgments about what is good, right, beautiful, admirable or worthy of praise, and guide people’s thoughts and actions (Bozeman, 2007; De Graaf, 2003; Huberts & Van der Wal, 2014; Van der Wal, 2008; Rutgers 2014). Contributions to this volume may harness slightly different definitions. What they have in common are the basic assumptions that values have considerable weight in the choice of action by individuals and collectives and that values underpin practices of good and bad governance. Finally, they emphasize that a perspective of values is a useful tool to evaluate governance policies, instruments, strategies, institutions and systems, and to discuss how the quality of governance can be improved. This volume explicitly understands quality to pertain to process as well as outcomes of governance. In her reflection on how to define quality in public administration, Löffler (2002) presents an analysis on the way in which the concept of quality evolved in the private and public sectors. She  http://oxforddictionaries.com/definition/english/quality and http://en.wiktionary. org/wiki/quality (acc. January 31, 2018). 2

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

11

states that today’s notion of quality public services clearly stems for the business concept of Total Quality Management, with a focus on the outcome of customer satisfaction as the point of reference for the degree of quality achieved. In a similar vein, the focus on outcomes recurs in perceptions that ‘good governance is that which contributes to the good of society’ (Perry, de Graaf, van der Wal, & van Montfort, 2014, p.  27). According to Löffler (2002), quality has always played a role in public administration, at least implicitly, but its meanings have changed over time to include both process and outcome criteria. She quotes Beltrami (1992, p. 770) who distinguished three phases in the evolution of quality in the public sector: quality in the sense of respect of norms and procedures (which we would characterize as process-oriented quality), quality in the sense of effectiveness, and quality in the sense of customer satisfaction (which we would characterize as output-oriented and outcome-oriented quality, respectively). Initially, quality meant formal correctness, which corresponds to the early notion of quality as technical conformance to specification in industry (Löffler, 2002). The meaning of quality in the public sector changed in the late 1960s when management by objectives gained popularity in public administration (Löffler, 2002). The quality in the public sphere would still include the absence of errors but also started to link the concept of quality with the purpose a product or service is supposed to serve. In the early 1980s, the ‘total quality’ concept of the private sector was transferred to the public sector in North America and Western Europe, making customer satisfaction the point of reference for the degree of quality achieved (Löffler, 2002). However, although improving the quality of services may increase customer satisfaction as an outcome criterion, it may not necessarily boost trust in government—the latter demands honoring values that target the administrative process: … a high quality public administration must not only be able to increase customer satisfaction with public services but also build trust in public administration through transparent processes and accountability and through democratic dialogue. In order to do so, conventional business concepts of quality which regard public agencies as service providers and citizens as customers must be enriched by a democratic concept of quality which perceives public agencies as catalysts of civic society and citizens as part of a responsible and active civic society. (Löffler, 2002, p. 15)

12 

H. PAANAKKER ET AL.

The way this reverts to the importance of guaranteeing quality in how governance comes about signals a move in the public sector during the 1990s from a dominant concern with excellence in service delivery to a concern for good governance in a broad sense, including improvements in quality of life and improvements in governance processes (Bovaird & Löffler, 2003). Involving stakeholders to negotiate ‘improved public policy outcomes and agreed governance principles’ has become commonplace (Bovaird & Löffler, 2003, p. 316). These publications illustrate that the interpretation of quality of governance shifted from ‘good process’ to ‘good outcome according to citizens,’ and back to good process in combination with good outcomes again. In any respect, the values perspective evidently enables us to grasp what quality of governance is about, how it evolves, and how we can assess and improve it. To summarize, we conceive quality of governance here as the relevant values to judge governance processes and outcomes. 1.2.3  Value Pluralism By using the theoretical stance of value pluralism as a point of departure, this volume fully recognizes the rich diversity and complexity of the value spectrum in global governance. Value pluralism is based on two leading premises. First, it adopts the idea that, in governance settings, practitioners are faced with multiple coexisting values they must try to accommodate, which reveals their inherently conflicting nature (Berlin, 1982; Spicer, 2001, 2010; Steenhuisen, 2009). In a survey among 231 top public officials or managers in the Netherlands, Van der Wal (2008) researched no less than 20 core values, with lawfulness, impartiality, and serviceability being reported in the top ten as a result. In comparison, Beck Jørgensen and Bozeman (2007) even constructed a ‘public values universe’ of 72 values, extracted from 230 studies on public values, based on a literature review of public administration journals from the United States, United Kingdom, and the three Scandinavian countries, from 1990 to 2003. They categorized these 72 values into seven overarching families, including public sector’s contribution to society (among which are the common good and sustainability) and behavior of public-sector employees (among which are accountability, professionalism, and moral standards) (Beck Jørgensen & Bozeman, 2007, pp. 360–361). Evidently, it is a sheer impossibility for public officials to address so many categories and so many val-

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

13

ues to the same extent at the same time: ‘The pursuit of certain values must inevitably comprise or limit our ability to pursue certain other values’ (Spicer, 2001, p. 509). Values are often incompatible—for example, the resources consumed in democratic processes may undermine the efficiency of a system. Another example includes lawfulness and effectiveness: strict adherence to complex and partially overlapping national and global rules and regulations, sticking to the letter of the law, can stand in the way of achieving goals (de Graaf & Paanakker, 2015). Especially, in terms of good governance, it is acknowledged that endless wish-lists of values for governance actors to comply with serve little purpose (Perry et al., 2014). This goes for Western or non-Western, richer or poorer countries alike. Demanding developing countries to adhere to unrealistically long and overwhelming lists of good governance indicators that embody a wide variety of Western values in exchange for different types of aid has proven particularly harmful (Grindle, 2010; Stiglitz, 2002). As Grindle (2004, p.  525) aptly argues, we need to be ‘explicit about trade-offs and priorities in a world in which all good things cannot be pursued at once.’ Second, the value pluralism perspective holds that values are not only incompatible but also incommensurable. Lukes (1989, p. 125) describes incommensurability as follows: ‘There is no single currency or scale on which conflicting values can be measured […]. Neither is superior to the other, nor are they equal in value.’ When values are regarded as incompatible, public officials will most likely opt for a trade-off, weighing the different pros and cons of alternative courses of action and evaluating those in terms of their contribution to some coherent set of measurable goals or values (Thacher & Rein, 2004; Spicer, 2005, p. 541). Conceiving values as incommensurable, however, means that not all choices can be understood as trade-offs as the relative importance of values can often not be measured or determined as such (Thacher & Rein, 2004). It underscores the significance of addressing values in their own right. Different coping strategies can be employed to accommodate different values (Steenhuisen & van Eeten, 2008; Stewart, 2006; Thacher & Rein, 2004), but, as this volume will show, also to accommodate different interpretations of a single value, or to accommodate different interests pertaining to a given value. If quality of global governance is about managing conflicting and contradictory values (de Graaf & Van Der Wal, 2010; Perry et al., 2014), we are interested in what those values mean and how they matter in the first place. If quality of governance is more than the sum of its parts, which we

14 

H. PAANAKKER ET AL.

endorse, we feel an in-depth exploration of the essential parts is a helpful exercise in comprehending the larger picture. In our view, a contextual perspective is essential and imperative to understanding the variety of values associated with accomplishing and improving quality of governance, including attention to the scope and severity of value-related violations. 1.2.4  Contextual Relevance of Values Ultimately, what quality means depends on the context in which it is scrutinized. What specific policy issue lies on the table? Which (types of) actors are involved, with what kinds of interests? How well do they succeed in bringing those interests to the table? With what outcomes for different stakeholders involved? How well was the collective action achieved in defining and addressing problems? Moreover, these questions are likely to be answered differently in different cultural and geographical contexts. Despite some shared administrative traditions, democracy might have a different connotation in the Netherlands than that in the United States or in Italy. And more importantly, it may play out differently: different norms may be attached to democracy in different national frameworks, depending on cultural, historical, political, and administrative history. For instance, does democratic governance imply consulting citizens on selected policy issues or not? Does it engender a multi-party system or a dichotomous political system? How acceptable is strategic influencing of voting? And how local is sovereignty over policy implementation allocated? The question of quality evokes different answers over time and space: ‘Good governance does not stop with basic agreement on abstract hooray concepts; it also encompasses a continuous process of sense making of values’ (Perry et  al., 2014, p.  28). Conventionally, scholars subscribe to the impossibility of determining inherently prime values of a universal nature or values with universal and one-dimensional meanings (Rutgers, 2008; Van der Wal, 2016; Yang, 2016). As Bøgh Andersen and colleagues stress: ‘[w]e know that public values are ultimately context-dependent and that classifications can only be exclusive and comprehensive in a given context’ (2012, p. 716). Internationally, experience taught us blueprints in values thinking and governance practices are neither possible nor desirable. Ethnocentric views can distort building genuine understanding and advancing governance practices in other countries than our own. They can surpass existing

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

15

norms, customs, and institutions and eliminate them—and directly or indirectly, their underpinning values—as inferior, which may fail to produce marked societal gains (Brinkerhoff & Goldsmith, 2005; Grindle, 2004). Sometimes, what is considered bad governance from a Western, Anglo-Saxon, or European perspective, ‘can serve valuable functions, such as providing a social safety valve or distributing assets to low-income people, that offset its cost to society’ (Brinkerhoff & Goldsmith, 2005, p. 208). Accounts of the superiority of neoliberalist values, for instance, and their often imposing character in global governance, are increasingly criticized in scholarly debates up to a point that its full global feasibility is completely refuted (Pollitt, 2015; Rajagopal, 2013; Trommel, 2018). Often, such debates question the added value of neoliberalism to improve quality of governance worldwide. Moreover, as actors ‘negotiate, formulate, and implement’ governance policies and instruments ‘in accord with their particular interests’ (Bevir, 2010, p. 3), what constitutes ‘good’ and how this is to be translated to ‘good policy’ or ‘good service delivery’ is to a large extent a matter of choice and opinion. These choices and opinions are often rooted in promoting or defending public actor’s specific interests and understandings. This volume sets out to make sense of such dynamics and explicitly draws them into the narrative of what values matter to the quality of governance, and how. Key to this volume is the notion of the quality of governance as a highly volatile and context-dependent concept, which can only be understood in a given time and place (see Woods, 2000). Viewing its underpinning values as contextually relevant underscores the need for case-based evidence of the role of values in quality debates. This volume addresses this notion by adopting a contextual approach to values and violations of the quality of governance in incorporating contextual reflections and perspectives on a set of demarcated values in designated, independent case studies. 1.2.5  Contributions to This Volume The individual contributions in this volume follow the order of the values framework as described earlier—democratic legitimacy, accountability, transparency, integrity, lawfulness, effectiveness (in terms of service quality), professionalism, and robustness—respectively. In addition, this volume consists of two parts: quality: institutionalizing values in governance

16 

H. PAANAKKER ET AL.

practices (Part I), and quality: translating values in practitioner behavior (Part II). Part I covers the contributions on democratic legitimacy, accountability, transparency, integrity, and lawfulness. These chapters are approached by the authors from an institutionalized perspective and mainly focus on how values are embedded in institutional structures and thinking. They consider how these values matter to governance practices, such as policies, strategic programs, rules and regulations, and assessment tools that address, or ought to address, overall quality. Of course, institutionalized practices have repercussions for the confines within which governance practitioners find themselves working. These practices create a public playing field that may determine and constrain public official behavior in administrative reality. Hence, rather than what is done to accommodate values of governance, which is the focus of Part I, Part II concentrates on who is doing it and covers the remaining values of effectiveness, professionalism, and robustness. Within the confines of any larger entity, be it state, institution, or organization, public officials create their own value dynamics on the work floor. Through trial and error, and based on, and sometimes in spite of, institutionalized practices, they actively transfer values to practice— shaping, modifying, and changing values to fit the unique constraints of an organization or society along the process. Part II develops this theme of practitioner behavior with chapters addressing effectiveness in terms of service quality, professionalism in terms of public craftsmanship, and an analysis of robustness and how this value can be seriously undermined by forces of bureaucratic animosity. Thematically, these chapters have a greater focus on behavior of practitioners and how they, when faced with complex governance structures, translate values into practice. The chapters reflect on values through several case studies in a variety of countries and policy domains, ranging from Italy to Australia and Romania, and from the prison sector to migration and crisis response. Others still are more theoretically oriented. Each contribution offers in-­ depth examination of the importance of the value at hand as a vital ­component of quality while at the same time reflecting on issues of violation. Questions dealt with include practical relevance and applicability in complex administrative realities, limitations to optimal utilization and adherence, and sub-optimal realization and its adverse effects. The contributions will be discussed in more detail in the following section.

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

17

1.3   Part I: Quality—Institutionalizing Values in Governance Practices Democratic Legitimacy in Bureaucratic Structures: A Precarious Balance  Chapter 2, our first substantive chapter by Neal Buckwalter and Dan Balfour, analyzes the value of democratic legitimacy. Their chapter considers the puzzle to what extent can democratic legitimacy be supported and maintained through bureaucratic means and authority? They frame bureaucracy as the process of governance subject to quality of governance scrutiny. Using one of the great failures of public administration in recent times—the lead poisoning in the water supply of Flint, Michigan, USA—these authors examine the concept of democratic legitimacy—what it entails, why it matters, and how it relates to other governance values. This case study and chapter reflects the darker side of governance processes where violations occur, and even the best intentions have led to outcomes harmful to the public. They then turn their focus toward those factors which may strengthen or diminish perceptions of democratic legitimacy, for as their guiding question implies, legitimacy is not a static value but rather exists in a relative state of flux. To flesh out these ideas, they examine the unique use of emergency financial managers in Michigan, an approach which has been much highlighted in recent years through the lens of a large-scale municipal bankruptcy and the water crisis. Dissecting the Semantics of Accountability and Its Misuse Subsequently, Ciarán O’Kelly and Melvin J. Dubnick address the many different meanings that accountability harbors and examine the effects of such complex and multifaceted interpretations. They argue that good governance is increasingly put on par with the concept of accountability. As a cultural keyword, accountability has become both the medium and the message of modern governance. However, the call to make situations, processes, or people ‘more accountable’ often reflects a failure to appreciate the ­fundamentally relational nature of accountability. The concept is often abused to impose and control hierarchical and monopolistic relationships in governance. In Chap. 3, O’Kelly and Dubnick expand the metaphor of the ‘forum’ as a relational space of accountability to the ‘agora’ and the ‘bazaar,’ In doing so, they encourage a broader relational perspective that includes conceptions of people constructing purpose collectively, and people deriving meaning from mutual exchange. As such, the chapter explains how unaccountability tend to be a failure of power, and often a failure of force.

18 

H. PAANAKKER ET AL.

Transparency Assessment in National Systems  Sabina Schnell uses Chap. 4 to propose a new conceptual framework for assessing transparency at the country level. Her chapter identifies three distinct interpretations of transparency: access to information; two-way communication; and predictability, or decision-making based on clear and publicly known rules. Each represents an increasingly demanding form of transparency, but all are tied to democratic accountability and the rule of law. Using the case of Romania, this chapter illustrates how such a framework can be employed to assess the evolution of transparency in a relatively recent democracy. Schnell’s chapter reproduces work she foreshadowed for the Quality of Governance Study Group in 2015, which has since been published by the IIAS journal International Review of Administrative Sciences. Integrity and Quality in Different Governance Phases In Chap. 5, Leo Huberts deals with incorruptibility and impartiality when he unpacks the concept of integrity—a task complicated by the plethora of meanings attributed to the concept by the extant literature. Furthermore, Huberts recognizes that there may be a number of blindspots in our interpretation of integrity and integrity violations within a quality framework. To address such blindspots, he focuses on four fundamental questions: (1) what is governance?; what is integrity (of governance)?; what is quality of governance in public values, good government, and good governance research?; and (4) what is the meaning/content of integrity in the context of quality of good governance? While answering such questions underpins the goals of the IIAS Quality of Governance Study Group, we recognize that Huberts’ theoretical contribution to this volume is but another step and not the final word on our agenda. As he rightly points out, an empirical turn in research on values and quality is required. The Multi-interpretable Nature of Lawfulness in a National Framework  In Chap. 6, Anna Simonati produces an in-depth reflection on lawfulness in a detailed Italian case study. Like democratic legitimacy, Simonati demonstrates that lawfulness in terms of public administration is also a fluid value. Italy, like so many other modern democracies, has and continues to undergo administrative reforms in the public sector. Simonati’s forensic examination of Italy’s laws ruling its infamous bureaucracy demonstrates that despite the Italian constitution providing a rigid foundation for public administration, a level of flexibility is found within the processes of governance exercised by both the executive and legislature. In effect, the instru-

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

19

ments of state comply with the general principles in place as well as the rules (i.e. law) in force. Simonati argues that this allows at least three different conceptions of lawfulness. Her analysis demonstrates that lawfulness remains a value for the quality of governance; we, therefore, cannot neglect the technical boundaries—weak or strong—lawfulness provides to an administrative system.

1.4   Part II: Quality—Translating Values in Practitioner Behavior Mission Impossible for Effectiveness? Service Quality in Public-Private Partnerships  Next, in Chap. 7, Anne-Marie Reynaers covers the value of effectiveness and specifically explores the level of effectiveness of public-­ private partnerships (PPPs) in terms of the quality of Dutch public-private infrastructure and delivery of public services. The chapter analyzes the quality shading hypothesis—the assumption that private partners degrade public service quality as they prioritize profits and hence corrode overall effectiveness. The research uses a series of interviews with more than 60 project members in four projects in the Netherlands—the construction and operation of a highway; the construction, renovation, and operation of wastewater cleaning installations; the construction and operation of a detention center; and the renovation and operation of the Ministry of Finance headquarters. The outcome of Reynaers’ elaborate research ­identifies which conditions determine quality in PPPs and concludes that service quality is neither safeguarded nor a priori better protected. Professionalism and Public Craftsmanship at the Street Level  In Chap. 8, professionalism is subjected to a rigorous analysis from the perspective of public craftsmanship. Specifically, Hester Paanakker’s chapter represents an interpretation of professionalism on the micro level of policy implementation by street-level bureaucrats. Based on empirical data from a prison case study in the Netherlands, she contends that values of public craftsmanship are directly associated with, and derived from, the nature of the profession involved. In addition, even within professions, detailed accounts of good craftsmanship may be highly contextualized, with marginal levels of convergence among professionals. As a consequence, professionalism constitutes a broad category that may yield very different meanings and interpretations and that may harbor many different sub-­

20 

H. PAANAKKER ET AL.

values. She concludes that conceptions of good craftsmanship ultimately determine how the public professional thinks, acts, and performs, and that they define how quality of governance is given shape at the frontline level. Robustness and the Governance Sin of Bureaucratic Animosity  In Chap. 9, the final substantive chapter, Adam Masters reflects on the meaning of robustness, focusing on the potential bad side of governance by means of individual public official behavior. Masters uses empirical examples from Australia to elaborate on how robustness, as a value that represents reliability and stability but also resilience and adaptive capacity, can be seriously flawed by what he labels as ‘bureaucratic animosity.’ Masters argues that bureaucratic animosity occurs within the black-letter framework of law and covers a range of governance sins that do not meet the threshold of criminal or corrupt behavior, but still violate the quality of administration. Such violations sometimes have devastating consequences for individuals or businesses, including significant financial loss of capital or income, business failure, and physical or mental harm. This widespread but underacknowledged governance sin involves fixed, inappropriate behaviors that directly undermine the required versatility and reliability of robust governance. For instance, irrespective of alternatives, administrators may be locked into a fixed and inappropriate response to the detriment of citizens or clients, who, in turn, may exacerbate poor governance by taking aggressive or combative approaches toward the system or the bureaucrat. This chapter concludes that both system-generated and client-­induced instances of bureaucratic animosity are to the detriment of the robustness of governance. The observant reader may notice now that the focus of the case studies in this volume has a rather Western character and is limited to American and European perspectives only. This is a limitation we acknowledge. This does not mean that we feel non-Western perspectives should be left out of the equation, on the contrary, but simply that the work of the members of our study group does not cover this geographical terrain directly yet. In addition, it is important to note that this volume contains no claim to universality whatsoever and does not set out to provide a ‘global’ overview of value attainment. Rather, as emphasized in the beginning of this chapter, we seek to provide a set of interesting, independent case studies that each explore the normative meaning and practical significance of a set of selected core governance values in applied settings. We will reflect on the meaning of this limited scope in more detail in Chap. 10, the conclusion

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

21

of this volume, which also identifies important (theoretical and practical) lessons that run across the chapters of this volume and articulates an agenda for future research on the quality of governance, for this study group and beyond.

References Beck Jørgensen, T., & Bozeman, B. (2007). Public values: An inventory. Administration & Society, 39(3), 354–381. http://doi.org/10.1177/ 0095399707300703. Beltrami, M. (1992). Qualità e pubblica amministrazione (Quality and public administration). Economia e diritto del terziario, (3), 669–781. Berlin, I. (1982). Against the current: Essays in the history of ideas. London: Hogarth Press. Bevir, M. (2009). Key concepts in governance (Sage Key Concepts). London: Sage. Bevir, M. (2010). Democratic governance. Princeton, NJ: Princeton University Press. Bøgh Andersen, L., Beck Jørgensen, T., Kjeldsen, A.  M., Pedersen, L.  H., & Vrangbæk, K. (2012). Public value dimensions: Developing and testing a multi-dimensional classification. International Journal of Public Administration, 35(11), 715–728. http://doi.org/10.1080/01900692.2012.670843. Bovaird, T., & Löffler, E. (2003). Evaluating the quality of public governance: Indicators, models and methodologies. International Review of Administrative Sciences, 69(3), 313–328. https://doi.org/10.1177/0020852303693002 Bovens, M. A. P., ‘t Hart, P., & van Twist, M. J. W. (2007). Openbaar Bestuur– Beleid, organisatie en politiek [Public governance. policy, organization and politics] (7th ed.). Alphen aan den Rijn, Netherlands: Kluwer. Bovens, M. A. P., ‘t Hart, P., & van Twist, M. J. W. (2011). Openbaar Bestuur, Beleid, organisatie en politiek (8th ed.). Dordrecht, Netherlands: Kluwer. Bozeman, B. (2007). Public values and public interest: Counterbalancing economic individualism. Washington, DC: Georgetown University Press. Brinkerhoff, D. W., & Goldsmith, A. A. (2005). Institutional dualism and international development. A revisionist interpretation of good governance. Administration & Society, 37(2), 199–224. https://doi.org/10.1177/ 0095399704272595 de Graaf, G. (2003). Tractable morality: Customer discourses of bankers, veterinarians and charity workers. Rotterdam, Netherlands: Erim. de Graaf, G., & Paanakker, H. (2015). Good governance: Performance values and procedural values in conflict. The American Review of Public Administration, 45(6), 635–652. https://doi.org/10.1177/0275074014529361

22 

H. PAANAKKER ET AL.

de Graaf, G., & Van Der Wal, Z. (2010). Managing conflicting public values: Governing with integrity and effectiveness. The American Review of Public Administration,40(6),623–630.https://doi.org/10.1177/0275074010375298 de Graaf, G., Van Doeveren, V., Reynaers, A.-M., & Van der Wal, Z. (2011). Goed bestuur als management van spanningen tussen verschillende publieke waarden. Bestuurskunde, 20(2), 5–11. Easton, D. (1953). The political system: An inquiry into the state of political science. New York, NY: Alfred A. Knopf. Evans, M. (2012). Beyond the integrity paradox–towards ‘good enough’ governance? Policy Studies, 33(1), 97–113. https://doi.org/10.1080/01442872 .2011.637324 Fukuyama, F. (2016). Governance: What do we know, and how do we know it? Annual Review of Political Science, 19. http://doi.org/10.1146/annurevpolisci-042214-044240. Grindle, M. S. (2004). Good enough governance: Poverty reduction and reform in developing countries. Governance: An International Journal of Policy, Administration, and Institutions, 17(4), 525–548. https://doi. org/10.1111/j.0952-1895.2004.00256.x Grindle, M. S. (2010). Good governance: The inflation of an idea. Harvard Kennedy School of Government, CID Working paper 202. Holmberg, S., Rothstein, B., & Nasiritousi, N. (2009). Quality of government: What you get. Annual Review of Political Science, 12, 135–161. https://doi. org/10.1146/annurev-polisci-100608-104510 Huberts, L. (2014). The integrity of governance: What is it, what we know, what is done and where to go (IIAS Series: Governance and public management). Basingstoke: Macmillan. Huberts, L., Maesschalck, J., & Jurkiewicz, C. L. (Eds.). (2008). Ethics and integrity of governance: Perspectives across frontiers. Cheltenham: Edward Elgar. Huberts, L., & Van der Wal, Z. (2014). What is valued in politics and administration. In L. Huberts (Ed.), The Integrity of Governance: What it is, what we know, what is done, and where to go (pp. 79-109). Basingstoke: Palgrave Macmillan. Kettl, D. F. (2015). The transformation of governance: Public administration for the twenty-first century. Baltimore, MD: JHU Press. Kjaer, A. M. (2004). Governance: Key concepts. Cambridge: Polity. Kooiman, J. (2003). Governing as governance. Thousand Oaks, CA: Sage. La Porta, R., Lopez-de-Silanes, F., Shleifer, A., & Vishny, R. (1999). The quality of government. Journal of Law, Economics and Organizations, 15(1), 222–279. https://doi.org/10.1093/jleo/15.1.222 Löffler, E. (2002). Defining and measuring quality in public administration. In J.  Caddy & M.  Vintar (Eds.), Building better quality administration for the public: Case studies from Central and Eastern Europe (pp. 15–34). Bratislava,

1  QUALITY OF GOVERNANCE: VALUES AND VIOLATIONS 

23

Slovakia: Network of Institutes and Schools of Public Administration in Central and Eastern Europe. Lukes, S. (1989). Making sense of moral conflict. In N.  L. Rosenblum (Ed.), Liberalism and the moral life. Cambridge: Harvard University Press. Perry, J. L., de Graaf, G., van der Wal, Z., & van Montfort, C. (2014). Returning to our roots: “Good government” evolves to “good governance”. Public administration review, 74(1), 27–28. https://doi.org/10.1111/puar.12164 Pollitt, C. (2015). Towards a new world: Some inconvenient truths for Anglosphere public administration: The IIAS Braibant lecture 2014. International Review of Administrative Sciences, 81(1), 3–17. https://doi. org/10.1177/0020852314544069 Rajagopal, B. (2013). Right to development and global governance: Old and new challenges twenty-five years on. Human Rights Quarterly, 35(4), 893–909. http://doi.org/10.1353/hrq.2013.0063. Reynaers, A.-M. (2014a). It takes two to tangle: Public-private partnerships and their impact on public values. Vrije Universiteit, Amsterdam, Netherlands. Reynaers, A.-M. (2014b). Public values in public–private partnerships. Public administration review, 74(1), 41–50. https://doi.org/10.1111/puar.12137 Rose-Ackerman, S. (2017). What does “governance” mean? Governance: An International Journal of Policy, Administration, and Institutions, 30(1), 23–27. https://doi.org/10.1111/gove.12212 Rothstein, B. (2011). The quality of government: Corruption, social trust, and inequality in international perspective. Chicago, IL: University of Chicago Press. Rothstein, B., & Teorell, J. (2008). What is quality of government? A theory of impartial government institutions. Governance: An International Journal of Policy, Administration, and Institutions, 21(2), 165–190. https://doi. org/10.1111/j.1468-0491.2008.00391.x Rutgers, M. R. (2008). Sorting out public values? On the contingency of value classification in public administration. Administrative Theory & Praxis, 30(1), 92–113. https://doi.org/10.1080/10841806.2008.11029617 Rutgers, M. R. (2014). As good as it gets? On the meaning of public value in the study of policy and management. The American Review of Public Administration, 45(1), 29–45. http://doi.org/10.1177/0275074014525833 Spicer, M.  W. (2001). Value pluralism and its implications for American public administration. Administrative Theory & Praxis, 23(4), 507–528. https://doi. org/10.1080/10841806.2001.11643542 Spicer, M.  W. (2005). Public administration enquiry and social science in the postmodern condition: Some implications of value pluralism. Administrative Theory & Praxis, 27(4), 669–688. http://doi.org/10.1080/10841806.20 05.11029517. Spicer, M. W. (2010). In defense of politics. A value pluralist perspective. Tuscaloosa, AL: The University of Alabama Press.

24 

H. PAANAKKER ET AL.

Steenhuisen, B. (2009). Competing public values: Coping strategies in heavily regulated utility industries. Delft University of Technology, Delft, Netherlands: Next Generation Infrastructures Foundation. Steenhuisen, B., & van Eeten, M. (2008). Invisible trade-offs of public values: Inside Dutch railways. Public Money and Management, 28(3), 147–152. Stewart, J. (2006). Value conflict and policy change. Review of Policy Research, 23(1), 183–195. https://doi.org/10.1111/j.1541-1338.2006.00192.x Stiglitz, J.  E. (2002). Globalization and its discontents (Vol. 500). New  York, NY: Norton. Thacher, D., & Rein, M. (2004). Managing value conflict in public policy. Governance: An International Journal of Policy, Administration, and Institutions, 17(4), 457–486. https://doi.org/10.1111/j.0952-1895.2004.00254.x Trommel, W. A. (2018). Veerkrachtig bestuur: voorbij neoliberale drift en populistische kramp. Amsterdam, Netherlands: Boom Besterkunde. Van der Wal, Z. (2008). Value solidity: Differences, similarities and conflicts between the organizational values of government and business. Ipskamp Drukkers B.V: Vrije Universiteit, Enschede, Netherlands. Van der Wal, Z. (2016). Public values research in the 21st century: Where we are, where we haven’t been, and where we should go. International Journal of Public Administration, 39(1), 1–5. https://doi.org/10.1080/01900692. 2015.1072219 Van der Wal, Z., Nabatchi, T., & De Graaf, G. (2015). From galaxies to universe: A cross-disciplinary review and analysis of public values publications from 1969 to 2012. The American Review of Public Administration, 45(1), 13–28. https://doi.org/10.1177/0275074013488822 Woods, N. (2000). The challenge of good governance for the IMF and the World Bank themselves. World Development, 28(5), 823–841. https://doi. org/10.1016/S0305-750X(99)00156-4 Yang, L. (2016). Worlds apart? Worlds aligned? The perceptions and prioritizations of civil servant values among civil servants from China and The Netherlands. International Journal of Public Administration, 39(1), 74–86. https://doi.org/10.1080/01900692.2015.1053614

PART I

Institutionalizing Values in Governance Practices

CHAPTER 2

Democratic Legitimacy in Bureaucratic Structures: A Precarious Balance Neal D. Buckwalter and Danny L. Balfour

Democratic societies are based on legitimacy, which itself is largely based on effectiveness. How can governments preserve their legitimacy if they deny themselves of the means of being effective? … One of the crucial elements that contributes to or detracts from responsive, accountable, effective, and legitimate government is the instrument through which all governments exercise their authority—the state bureaucracy. (Suleiman, 2003, pp. 2, 7) If a nation gives the control of government to only a part of the people, it therefore establishes an incontrovertible fact that some of the people do not count. Government is democratic government only if it is government by the whole people…. Our problem from now on is … to extend and make stronger the institutions and ways that are essential to popular government. Bureaucracy must find its proper place within this pattern of essential institutions and ways. (Hyneman, 1950, p. 12)

In the sections that follow, we first briefly examine the concept of democratic legitimacy—what it entails, why it matters, and how it relates to other governance values. We then turn our focus toward those factors which may

N. D. Buckwalter (*) • D. L. Balfour Grand Valley State University, Allendale, MI, USA e-mail: [email protected] © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_2

27

28 

N. D. BUCKWALTER AND D. L. BALFOUR

strengthen or diminish perceptions of democratic legitimacy, for as our guiding question implies, legitimacy is not a static value but rather exists in a relative state of flux. To flesh out these ideas, we examine the unique use of emergency financial managers (EFMs) in Michigan, an approach which has been much highlighted in recent years through the lens of a large-scale municipal bankruptcy as well as a devastating water crisis.

2.1   Democratic Legitimacy as a Governance Value Democratic legitimacy, in its most formal definition, refers to when the policies and actions of government (including the appointment of public officials) are the result of, or are undergirded by, laws passed by the duly elected representatives of the citizenry or by direct vote (referendum).1 Public policies are legitimate (have authority) because they are seen as rooted in the will of the electorate (preferably a majority) and consistent with constitutional requirements and limitations (protection of minority rights). Democratic legitimacy can be bolstered by processes that promote and facilitate citizen participation in policy formulation (inform, input, commentary, etc.; see e.g. Nabatchi, 2010 or Buckwalter, 2014). These formal requirements—governance by the rule of law and by the consent and will of the governed—are necessary, but arguably not sufficient, to achieve and maintain democratic legitimacy. In addition, the policies promulgated by democratic government must be effective in serving the needs of the citizenry, or, as Waldo (1948, p. 74) pointed out nearly 70 years ago, people will lose faith in the institutions of democracy: Traditional institutions of democracy in themselves do not guarantee democracy; indeed, they may impede it. ‘It is important to keep prominently before us,’ prefaced the President’s Committee, ‘the ends of reorganization… There is but one grand purpose, namely, to make democracy work today in our National Government; that is, to make our Government an up-to-date, efficient, and effective instrument for carrying out the will of the Nation. It is for this purpose that Government needs thoroughly modern tools of management.’ The ‘will of the nation,’ it will be recalled, was interpreted as ‘the steady sharing of the gains of the Nation,’ ‘security, steadier employment, better living and working conditions,’ and so forth. ‘Without results we know that democracy means nothing and ceases to be alive in the minds and hearts of men.’ 1

 It is not exactly the same as but overlaps considerably with the rule of law.

2  DEMOCRATIC LEGITIMACY IN BUREAUCRATIC STRUCTURES… 

29

In other words, legitimacy rests in large measure on a government’s ability not just to make policy, but to effectively carry it out toward desirable ends. To achieve results, modern democracies depend on bureaucracy to expertly manage the policy process, from helping legislators formulate policies, to implementing, evaluating, and re-formulating those policies. This, of course, is undergirded by the assumption that bureaucracy as an organizational form is unparalleled in its ability for getting things done (e.g. Weber, 1946). Again, Dwight Waldo posed the essential question: ‘But, in that case, what about the democracy in which we profess to believe? Is bureaucracy superior to democracy? American students of public administration have, paradoxically, held to a strong belief in democracy at the same time they have been firmly convinced of the superiority of “the monocratic type of bureaucratic administration”’ (Waldo, 1948, pp.  46–47). This paradox comes at least, in part, because bureaucracy serves values, such as efficiency and expertise, which may not be as well achieved by democratic processes. On the other hand, democracy may be better at securing values such as representativeness and openness. A further look at the values of democracy and bureaucracy follows below. 2.1.1  The Balancing Act Between Democracy and Bureaucracy Through the years, much ink has been spilled in academic debates regarding the relationship of politics and administration. Over time, notions of a strict dichotomy between these spheres have been more or less resolved; in general, stark lines have been blurred and more fluid interrelationships acknowledged. Such is the state of our understanding of the role of bureaucracy in democratic governance. Still, at the risk of oversimplifying an instrumentalist viewpoint, in a democratic state, the institutions and values of democracy carry a certain primacy as intrinsic ends. Bureaucracy, or administrative structure, takes a more instrumental role in carrying forward the political will of the sovereign. In that way, bureaucracy becomes a means to an end, equally able to serve a range of political forms—from authoritarian to democratic. An Array of Public Values. Bureaucracy, as an administrative form, is rather self-legitimating (Weber, 1946). Democracy, on the other hand, requires constant attention to maintain legitimacy. Democratic legitimacy is nestled in a broad array of dynamic values, many of which are highlighted in other chapters of this book. Figure  2.1, far from exhaustive, highlights a few select examples for the sake of illustration. The yin-yang image is meant to soften the suggested dichotomy and depict something

30 

N. D. BUCKWALTER AND D. L. BALFOUR

Democratic Values

Bureaucratic Values

Responsiveness

Effectiveness

Representativeness

Participation

Efficiency

Democratic Legitimacy

Transparency

Accountability

Expertise

Control

Order

Fig. 2.1  An array of values to uphold democratic legitimacy

of the fluidity in this characterization of values.2 Some values such as efficiency, expertise, and control find more emphasis on the bureaucratic side. Others such as representativeness, participation, and transparency (see Schnell in this volume) provide counterweight from the democratic side. One could argue that effectiveness and accountability (see O’Kelly and Dubnick in this volume) are served from both sides. The point here is not necessarily to argue the exact placement of these values so much as to suggest that many different values are important to the attainment and maintenance of democratic legitimacy. Democratic legitimacy is non-static. If anything, it is characterized by a nearly constant negotiation (and re-negotiation) between both democratic and bureaucratic values and processes. Within this dynamic framework, it is possible for the values of one sphere to overwhelm and displace the values of the other sphere. It would take little imagination to envision 2  Yang and Holzer (2005) briefly introduced the yin-yang image as a way to think about the politics-administration dichotomy; the overlay and discussion of democratic and bureaucratic values is our own interpretation.

2  DEMOCRATIC LEGITIMACY IN BUREAUCRATIC STRUCTURES… 

31

a scenario in which the drive for efficiency crowds out opportunity for public participation, or in which the role of experts supersedes responsiveness to the public. And the imbalance can go in the other direction as well, with endless public engagement making it impossible to make decisions, let alone move them forward in an efficient and effective way. Therefore, the question of balance remains pertinent (e.g. see Meier, 1997; Feldman & Khademian, 2000). Figure 2.2 reflects various scenarios of balance between democracy and bureaucracy. In Panel A, democratic means and ends roughly match up in size and scope with bureaucratic means and ends. Note that the state of balance in Panel A does not optimize either democratic or bureaucratic values; rather it reflects a sort of compromise between the two. For example, while the value of participation would not overpower the drive for efficiency, or vice versa, such a balance could result in governance that is

Fig. 2.2  The balance of democracy and bureaucracy

32 

N. D. BUCKWALTER AND D. L. BALFOUR

neither very participative nor very efficient. Empirically, such a perfect balance would likely never be observed; normatively, it may not necessarily be desirable. In reality, the balance between democracy and bureaucracy may look more like the images depicted in Panels B and C, where the fulcrum point—representing the interplay of many sociopolitical factors—shifts to the left or right of the center. An un-centered fulcrum point demands a re-calibration of counterweights to achieve a balance. For example, in Panel B, the fulcrum point has shifted to the left of center, with an attendant focus on democratic values and processes (notice the shaded box is larger). A similar shift to the right of center in Panel C places heavier attention on bureaucratic values and processes. A History of Shifting Balance Points. The shifting fulcrum, or balance point, is used here for illustrative purposes and is not intended necessarily to correspond synonymously with the common parlance of left and right political leanings. The shift in balance point has more to do with broader social, cultural, and economic factors, some of which may be tied up in political leanings, though unpacking the relationship is not so simple. For this discussion, however, we will treat the various political leanings as responding to shifts in the balance points rather than driving those shifts. Many different sociopolitical factors can shift the balance point between democracy and bureaucracy. The historical development of the United States is instructive of the type of back-and-forth recalibrating that occurs over time, as one response acts as a sort of corrective to a previous response. The American Revolution of the mid-to-late 1700s—captured by such slogans as ‘no taxation without representation’—was, in part, a backlash by the colonists to the policies and administrative practices of their British governors. The result was a dramatic shift to the left, in the direction of democracy, with notable animosity and wariness toward centralized power structures. Later, with the acknowledged weaknesses of the prevailing form of government under the Articles of Confederation, the young nation moved to bolster federal powers and administration in a new constitution. In many ways, this meant a swing back toward focusing on structures and values on the right of the scales—such as effectiveness and control. The rigorous debate that ensued in the late 1780s between proponents and opponents of the new Constitution, with all of its implications regarding federal and state powers was, at its heart, about where each side thought the balance between democratic and bureaucratic values should be.

2  DEMOCRATIC LEGITIMACY IN BUREAUCRATIC STRUCTURES… 

33

The years that followed were marked by a leftward shift, as the combination of westward expansion and a building resentment toward what some viewed as the rule of elites contributed to the push for certain democratic reforms during the Jacksonian Era (roughly 1830s–1850s). This included, among other things, the rise of the spoils system, which opened doors to paid government positions to common citizens (Kweit & Kweit, 1981). Decades later, in response to the seemingly endemic problems of corruption and inefficiency in a rampant spoils system, the Pendleton Civil Service Reform Act of 1883 was passed. Those familiar with the field of public administration in the United States also point to then-Professor Woodrow Wilson’s article published a few years after the Pendleton Act in which he strongly called for a more systematic and dedicated focus on studying administration, noting that, ‘It is getting to be harder to run a constitution than to frame one’ (1887, p. 200). Both examples reflect a marked shift toward a professionalized and more expertly trained civil service, values clearly on the bureaucratic side of the scales. The build-up of a professionalized public administration amounts to additional steps away from direct democracy, and can increase people’s concerns about governance structures that are increasingly distant from and non-representative of the public they serve (Mosher, 1982). In response to perceived incursions by the administrative apparatus, reformers often push to ‘overcome the checks and balances of a polity biased against the expansion of government by promising to restore power to the people,’ particularly through promises of more direct citizen participation in governance (Morone, 1998, p.  4). These sentiments, along with broader social movements emphasizing greater equality, seem to have pervaded many of the democratic and participation-based reforms sought during the turbulent, anti-establishment decades of the 1960s and 1970s. Even students and scholars of public administration began calling for a ‘new public administration’ that more actively would value and pursue social equity (see e.g. Frederickson, 1971). In the 1980s and 1990s, efforts to adopt the managerial emphasis of the so-called New Public Management, again shifted the balance point back to the right. Many of the attendant reforms of this period reflect what Paul Light (1997) called ‘liberation management,’ infusing market-­like values into government agencies or moving toward privatization. Some have argued that the increased focus on collaborative governance since the early 2000s may ‘shift our concern away from hierarchical accountability to notions of responsibility, responsiveness, and the fostering of democratic

34 

N. D. BUCKWALTER AND D. L. BALFOUR

ideals’ (Agranoff & McGuire, 2004, p.  189). This remains to be seen. What seems clearer is that an increased credence toward market values and an accompanying erosion of faith in democratic institutions has the fulcrum currently positioned well to the right of the center.

2.2   The Ascendancy of Market Values and the Decline of Faith in Democracy Recently, in the European Union (EU), when push has come to shove, market values have taken precedence over democracy in the form of austerity measures aimed at bringing fiscal discipline to countries (e.g. Greece, Ireland, Portugal, Spain, and Italy) that, under the common currency and structure of the EU, lack the means to manage their own economies. Once again, the primary casualties are public values and democratic governance as bureaucratic power is invoked to impose ‘market discipline’ on countries that cannot sustain their social and economic policies as members of the regional framework. As Meyerson (2011) put it: Over the past year, in fact, capitalism has fairly rolled over democracy. Nowhere is this more apparent than in Europe, where financial institutions and large investors have gone to war under the banner of austerity, and governments of nations with not-very-productive or overextended economies have found that they could not satisfy those demands and still cling to power. The elected governments of Greece and Italy have been deposed; financial technocrats are now at the helm of both nations. With interest rates on Spanish bonds rising sharply in recent weeks, Spain’s socialist government was unseated last weekend by a center-right party that has offered no solutions to that country’s growing crisis… It’s as though the markets throughout Europe have had enough with this democratic sovereignty nonsense.

Perhaps not surprisingly, as citizens lose confidence and feel disenfranchised by their leaders and institutions, extremist (non-democratic) political parties on both the right and left are gaining traction in almost every European country. The contemporary American context can be characterized as a longer-­ term erosion of institutional integrity and faith in democracy, when although the formal requirements of democratic legitimacy remain in place, policies, and actions by elected and appointed officials are increasingly seen as corrupt, ineffective, and serving narrow interests. The ascendancy of the market state over the past 30 years (see Adams & Balfour,

2  DEMOCRATIC LEGITIMACY IN BUREAUCRATIC STRUCTURES… 

35

2010, 2017) has progressively undermined the trustworthiness of social, political, and economic (cultural) institutions and organizations. Discussing the financial meltdown of 2007–2008, Stiglitz points out the damage not only to the economy, but also to society more broadly as a result of pervasive breaches of trust (2010, pp. 275–276): We have gone too far down an alternative path—creating a society in which materialism dominates moral commitment, in which the rapid growth that we have achieved is not sustainable environmentally or socially, in which we do not act together as a community to address our common needs, partly because rugged individualism and market fundamentalism have eroded any sense of community and have led to rampant exploitation of unwary and unprotected individuals and to an increasing social divide. There has been an erosion of trust—and not just in our financial institutions.

Indeed, American civil society seems to be entrenched in a self-sealing cycle: As institutions and organizations are perceived as becoming increasingly corrupt and venal, the more people mistrust and expect the worst from them. Organizations and institutions become the last place that individuals look to for the nurturing of values and instead, see them as settings in which only the foolish or stubborn act with high ethical standards (Callahan, 2007). Heclo (2008, pp. 17–21) presents a long table of 39 government scandals in the United States stretching from 1958 (Sherman Adams’—President Eisenhower’s chief of staff—acceptance of bribes in the form of gifts) to 1999 (President Clinton’s impeachment after lying to cover up an affair with a White House intern). An even longer list could almost certainly be constructed just for the years since. This ongoing, progressive erosion of trust in public institutions and organizations has sent a different and unfortunate signal around the globe according to Stiglitz (2010, pp. 225–226): Faith in democracy is another victim. In the developing world people look at Washington and see a system of government that allowed Wall Street to write self-serving rules, which put at risk the entire global economy, and then when the day of reckoning came, Washington turned to those from Wall Street and their cronies to manage the recovery—in ways that gave Wall Street amounts of money that are beyond the wildest dreams of the most corrupt in the developing world. They see corruption American-style as perhaps more sophisticated—bags of money don’t change hands in dark corners—but just as nefarious… They see, in short, a fundamental problem of political accountability in the American system of democracy.

36 

N. D. BUCKWALTER AND D. L. BALFOUR

Though we believe that counter-balancing shifts will naturally occur over time, the decay of public trust in democratic institutions and the continued rise of market-based governance values seem poised to continue in the near term. But these phenomena are not the only challenges to democratic legitimacy. While the previous discussion highlighted the more long-term ebb and flow between democratic and bureaucratic values, crisis events often trigger shorter-term shifts as well.

2.3   Crisis and Control: The Problem of Bureaucratic Distortion The uncertainty associated with various types of crises, such as war or economic recession, can also have significant impacts on democratic legitimacy, or the space in which legitimacy is negotiated. Often these negative focusing events or conditions create a form of bureaucratic distortion. By this, we mean a tendency to employ a lens through which every problem appears to be best solved by responses that are heavier on bureaucratic values. This is more than just seeing every problem as a nail when you only have a hammer. The typical response to mitigating uncertainty is to seek more means for asserting control, to add a measure of rationality to the seemingly irrational. Because bureaucratic means are built largely on perceptions of rationality and control, during crises the scales could become heavily unbalanced. There are clear benefits to adding certainty to an uncertain situation, but there can also be a dark side to this. Perhaps, the most poignant historical example of this occurred in the Weimar Republic (Germany) in the early 1930s when the now infamous Article 48 was invoked (legally) hundreds of times to empower the chancellor to act without legislative action in response to political gridlock, economic crisis, and civil unrest (Burleigh, 2000; Pollock, 1938). We now know that the longer-term effect of these actions was to empower the bureaucracy at the expense of the already shaky institutions of the Weimar democracy, and pave the way for dictatorship. Self-Governance vs. Expert Intervention: The Michigan Emergency Manager Law. In the past few years, two major local government crises in Michigan—the Detroit bankruptcy and the Flint water debacle—gained widespread attention because of their scope and impact on human life. While the situation in each of these cities was unique, they did share some common connections. For one thing, their respective crises were years in the

2  DEMOCRATIC LEGITIMACY IN BUREAUCRATIC STRUCTURES… 

37

making, deeply entrenched, and multi-faceted. Each faced deep-seated fiscal challenges to their ongoing operations as governing jurisdictions. Because of this, each also found itself subject to the control of a state-­appointment emergency manager. While the outcomes of these control-­based interventions in Detroit and Flint are different, the case of Michigan’s use of emergency managers provides some insight into how democratic legitimacy can be undermined in the name of financial responsibility. This is particularly the case when citizens are deprived of the one source of power that does not depend on their wealth—the power of self-governance. The current emergency manager law passed by the Michigan Legislature in 2012 allows the state to appoint an emergency manager in cities or schools deemed to be entrenched in calamitous financial conditions. The emergency manager is granted ‘broad powers in receivership to rectify the financial emergency and to assure the fiscal accountability of the local government and the local government’s capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare’ (Michigan Legislature, 2012). While some may interpret this as the state sending much needed reinforcement to a struggling entity, the application of this law results in duly elected local officials being replaced by state-appointed experts when the former is deemed to have failed to govern effectively. The reader should consider that at the most basic level, the emergency manager law passes the test of democratic legitimacy within the U.S. federal framework. Local governments are an extension of the state government and are therefore subject to its authority. Hence, it is reasonable on its face to have a bureaucratic instrument in place to deal with exceptional circumstances (restore balance) where a local government fails to fulfill its basic functions and responsibilities. However, the historical development and implementation of this law provides some insight into the delicate balance of democracy and bureaucracy, and, unfortunately, how things can go very wrong when lawmakers and experts deny citizens the right to govern themselves (see also Masters in this volume). As with any historical case, the starting point is not all that easy to determine. The evolution of the laws enabling this form of state ‘solution’ is detailed below, but the reader should keep in mind that other state actions were also part of the problem. For example, starting in the mid-2000s, the legislature began raiding the statutory portion of local government revenue sharing (eventually totaling over $6 billion) to help balance the state budget, effectively creating or exacerbating fiscal crises in municipalities across the state (Minghine, 2014).

38 

N. D. BUCKWALTER AND D. L. BALFOUR

Early versions of the law include Public Act 101 of 1988 and Public Act 72 of 1990. The former was used just one time, when Governor James Blanchard took steps to install an EFM in Royal Oak Township at the beginning of 1990. The latter piece of legislation, which essentially replaced the former, was expanded to include failing public school systems. As would likely be expected for this type of dramatic intervention, its usage was initially very sparse. This, however, has changed over time (Hakala, 2016). Table 2.1 depicts the cities and townships (not school districts) that have been the subject of state intervention through the installation of either an emergency financial manager or emergency manager. The table only shows the governor who triggered the usage of the law in that jurisdiction, and not subsequent changes made in emergencies that spilled over to different administrations. The infrequency of usage in the early Table 2.1  Governors triggering emergency financial manager or emergency manager in Michigan Governor

Date

Blanchard (D) Jan-­90 Engler (R) Nov-­00 Jun-­01 Jul-02 Granholm Dec-­08 (D) Mar-­09 Oct-­09 Apr-­10 Snyder (R) Oct-­11 Nov-­11 Oct-­12 Mar-­13 Jul-13 Jul-14

Jurisdiction

Law

Appointment typea

Royal Oak Township City of Hamtramck City of Highland Park City of Flint Village of Three Oaks City of Pontiac City of Ecorse City of Benton Harbor City of Pontiacb City of Flint City of Allen Park City of Detroit

Public Act 101 of 1988 Public Act 72 of 1990 Public Act 72 of 1990 Public Act 72 of 1990 Public Act 72 of 1990 Public Act 72 of 1990 Public Act 72 of 1990 Public Act 72 of 1990 Public Act 4 of 2011 Public Act 4 of 2011 Public Act 72 of 1990c Public Act 72 of 1990/ Public Act 436 of 2012d Public Act 436 of 2012 Public Act 436 of 2012

EFM EFM EFM EFM EFM EFM EFM EFM EM EM EFM EM

City of Hamtramck City of Lincoln Park

EM EM

Source: Table created based on data available at http://www.michigan.gov/documents/treasury/ EM-EFM_Appointment_History_2-12-16_514604_7.pdf EFM Emergency Financial Manager, EM Emergency Manager Not a new emergency, but replaced existing emergency financial manager (EFM) with new emergency manager (EM) under Public Act 4 c When Public Act 4 was suspended by voter referendum, Public Act 72 was revived d Public Act 72 was repealed by Public Act 436 of 2012 a

b

2  DEMOCRATIC LEGITIMACY IN BUREAUCRATIC STRUCTURES… 

39

years is clearly evident, with a decade having passed between the first and second instance. Also evident is the growth in frequency of usage over time and over each subsequent gubernatorial administration. It should be noted that implementation of the laws in question cuts across political party, with both Republican and Democratic governors triggering emergency intervention. However, significant changes came in 2011, when then newly elected governor, Rick Snyder, pushed the legislature to pass a much stronger emergency manager law. The new law— Public Act 4—impacted both the frequency and scope of intervention, including replacing emergency financial managers with the expanded authority of emergency managers. The new emergency managers basically retained all governing responsibilities, including the power to hire/fire employees, renegotiate labor contracts, sell/lease/privatize local assets, change budgets without local legislative approval, initiate municipal bankruptcy proceedings, and so on (Cramer, 2011). At the time, many municipalities and school districts, small and large, across the state were in fiscal distress with little prospect for improvement. While the circumstances were not all the same, all were subject to the double whammy of the Great Recession and years of cutbacks in the statutory portion of state revenue sharing to local governments. Because revenues could not be increased enough to relieve the fiscal stress, municipalities were under severe pressure to cut spending and services to bring their budgets into balance. Public Act 4 of 2011 was meant to provide the legal authority to do so, but met immediate resistance across the state and it was repealed by popular referendum the following year. Most Michiganders, it seemed, valued the democratic legitimacy of their local governments over the state’s interest in imposing fiscal discipline. A revised 2012 law (Public Act 436 of 2012) did little to enhance democratic legitimacy, especially with its provision prohibiting repeal by referendum, but did provide the broader authority sought by the governor to unilaterally appoint numerous emergency managers to distressed local governments—almost all poor with predominately minority populations—across the state (and the law survived a legal challenge in 2013). The Irony of Flint. While the democratic legitimacy of the emergency manager law was in question from the beginning, its expert legitimacy was greatly diminished with the news of the Flint water crisis. This unprecedented public health disaster occurred under the watch of multiple emergency managers, and indeed, seems to be the result of trying

40 

N. D. BUCKWALTER AND D. L. BALFOUR

Table 2.2  The revolving door of emergency managers in Flint, MI, USA Date

Emergency Manager

Law

Nov-11 Aug-12 Jul-13 Oct-13 Jan-15

Michael Brown Edward Kurtz Michael Brown Darnell Earley Gerald Ambrose

PA 4 PA 72 PA 436 PA 436 PA 436

Source: Based on data available at http://www.michigan.gov/documents/treasury/EM-EFM_ Appointment_History_2-12-16_514604_7.pdf

to reduce costs by switching to a cheaper water source (Flint River) without the proper safeguards against pipe corrosion, resulting in widespread lead poisoning. However, beyond the technical decisions to switch water sources, the Flint case is also characterized by a high degree of volatility and turnover among its appointed experts, as shown in Table  2.2. In November of 2011, Governor Snyder installed Michael Brown as the city’s emergency manager. Less than a year later, when the law was suspended by public referendum, the provisions of Public Law 72 were re-instituted and existing emergency managers were reappointed as EFM. However, because Michael Brown was a former city employee, he was ineligible to serve in that role. Therefore, Edward Kurtz, who had originally served as the EFM in Flint in 2002, resumed this position for the city, staying in the role until being replaced again by Brown when Public Law 436 was passed. Since then, two additional emergency managers have served. It is ironic that a law intending to bring stability to a city in crisis could result in such revolving-door volatility in leadership. Many have since asked whether the so-called fiscal discipline should be allowed to usurp local governance, and if the cure isn’t worse than the disease (Bosman et  al., 2016). Further, as implied above, it is not clear whether the cities that got emergency managers were fully responsible for the fiscal crises they faced. For example, if the state had met its statutory obligations for revenue sharing during the 2000s, the City of Flint, with the nearly $55 million in lost revenue, could have eliminated its deficit, paid off all $30 million of its bonded indebtedness, and still had more than a $5 million surplus (Minghine, 2014).

2  DEMOCRATIC LEGITIMACY IN BUREAUCRATIC STRUCTURES… 

41

2.4   Conclusion The case of Michigan’s emergency manager law supports the importance of achieving a balance between democratic legitimacy and bureaucratic authority. The original emergency financial manager law seemed to achieve that; a rarely used mechanism to restore balance in exceptional circumstances. The new law and its application upset that balance with a political overreach by the state government to frequently and deeply usurp local governance in the name of fiscal responsibility amidst a crisis that had, in part, been brought about by the state. Ironically, the attack on democratic legitimacy by the state government also undermined bureaucratic legitimacy and effectiveness. With the accountability controls of local governance removed, basic bureaucratic procedures and technical requirements were bypassed and overlooked, leading to a public health disaster. While it is certainly important to manage public budgets well, it is far more important to protect the basic rights and well-being of citizens, and to avoid what Bozeman terms ‘public values failures,’ in this case, one of a ‘direct threat to subsistence and human dignity’ (Bozeman, 2002, p. 151). Students and practitioners of public administration should keep the value of democratic legitimacy at the forefront of their consideration. Of particular concern are knee-jerk reactions to crises that tend toward bureaucratic distortion, with its attendant emphasis on technical experts and centralized control. While bureaucratic and control-oriented responses may provide some short-term stability, the question must be asked: Does this strengthen or damage the polity in its ability to self-govern and the integrity of governance? We argue that democratic legitimacy outweighs expertise, even (and perhaps especially) in times of crisis. Therefore, if any imbalance occurs, we urge that it be on the side of democratic values.

References 8 things to know about Michigan’s Emergency Manager Law. (2011, 6 December). Michigan Radio Newsroom. Adams, G. B., & Balfour, D. L. (2010). Market-based government and the decline of organizational ethics. Administration & Society, 42(6), 615–637. https:// doi.org/10.1177/0095399710381347 Adams, G. B., & Balfour, D. L. (2017). Doubling down on derivatives: The legal but corrupt exploitation of the fallout from the great recession. In F. Anechiarico (Ed.), Legal but corrupt: A new perspective on public ethics (pp. 15–28). London, England: Lexington Books.

42 

N. D. BUCKWALTER AND D. L. BALFOUR

Agranoff, R., & McGuire, M. (2004). Collaborative public management: New strategies for local governments. Washington, DC: Georgetown University Press. Anger in Michigan over appointing emergency managers. (2016, 22 January). New York Times. Bosman, J., Davey, M., & Smith, M. (2016, January 20). As water problems grew, officials belittled complaints from Flint. The New York Times. Retrieved from https://www.nytimes.com/2016/01/21/us/flint-michigan-lead-watercrisis.html Bozeman, B. (2002). Public value failure: When efficient markets may not do. Public Administration Review, 62(2), 145–161. Buckwalter, N.  D. (2014). The potential for public empowerment through government-­organized participation. Public Administration Review, 74(5), 573–584. https://doi.org/10.1111/puar.12217 Burleigh, M. (2000). The Third Reich, A new history. New York, NY: Hill and Wang. Callahan, D. (2007). The cheating culture: Why more Americans are doing wrong to get ahead. Orlando, FL: Harvest Books. Cramer, M. (2011). 7 things to know about Michigan’s emergency manager law. Michigan Radio, December 6. https://www.michiganradio.org/post/7things-knowabout-michigans-emergency-manager-law Feldman, M. S., & Khademian, A. M. (2000). Managing for inclusion: Balancing control and participation. International Public Management Journal, 3(2), 149–167. https://doi.org/10.1016/S1096-7494(01)00035-6 Frederickson, H.  G. (1971). Toward a new public administration. In F.  Marini (Ed.), Toward a new public administration: The Minnowbrook perspective. Scranton, PA: Chandler Publishing Company. Hakala, J. (2016). How did we get here? A look back at Michigan’s emergency manager law. Michigan Radio, February 3. https://www.michiganradio.org/ post/how-did-weget-here-look-back-michigans-emergency-manager-law Heclo, H. (2008). On thinking institutionally. Boulder, CO: Paradigm Press. How did we get here? A look back at Michigan’s Emergency Manager Law. (2016, 3 December). Michigan Radio Newsroom. Hyneman, C. S. (1950). Bureaucracy in a democracy. New York, NY: Harper. Kweit, M.  G., & Kweit, R.  W. (1981). Implementing citizen participation in a bureaucratic society: A contingency approach. New York, NY: Praeger Publishers. Light, P. C. (1997). The tides of reform: Making government work, 1945-1995. New Haven, CT: Yale University Press. Local Financial Stability and Choice Act 2012. Michigan Legislation. United States. Meier, K. J. (1997). Bureaucracy and democracy: The case for more bureaucracy and less democracy. Public administration review, 193–199. http://doi. org/10.2307/976648. Meyerson, H. (2011). The growing tension between capitalism and democracy. The Washington Post. Retrieved November 24, 2011 from.

2  DEMOCRATIC LEGITIMACY IN BUREAUCRATIC STRUCTURES… 

43

Minghine, A. (2014). The great revenue sharing heist. The Michigan Municipal League, February. Morone, J. A. (1998). The democratic wish: Popular participation and the limits of American government. New Haven, CT: Yale University Press. Mosher, F. C. (1982). Democracy and the public service (2nd ed.). New York, NY: Oxford University Press. Nabatchi, T. (2010). Addressing the citizenship and democratic deficits: The potential of deliberative democracy for public administration. The American Review of Public Administration, 40(4), 376–399. https://doi.org/10.1177/ 0275074009356467 Pollock, J.  K. (1938). The government of Greater Germany. New  York, NY: Van Nostrand. Stiglitz, J. E. (2010). Freefall: America, free markets, and the sinking of the world economy. New York, NY: WW Norton & Company. Suleiman, E. (2003). Dismantling democratic states. Princeton, NJ: Princeton University Press. The great revenue sharing heist. (2014, February). Michigan Municipal League. The growing tension between capitalism and democracy. (2011, 24 November). The Washington Post. Waldo, D. (1948). The administrative state. New York, NY: Ronald Press. Weber, M. (1946). Essays in sociology (H.  Gerth, & C.  Wright Mills, Trans.). Oxford: Oxford University Press. Wilson, W. (1887). The study of administration. Political science quarterly, 2(2), 197–222. http://doi.org/10.2307/2139277. Yang, K., & Holzer, M. (2005). Re-approaching the politics/administration dichotomy and its impact on administrative ethics. Public Integrity, 7(2), 110– 127. https://doi.org/10.1080/10999922.2005.11051274

CHAPTER 3

Dissecting the Semantics of Accountability and Its Misuse Ciarán O’Kelly and Melvin J. Dubnick

3.1   Addressing Accountability and Quality of Governance Even if we could agree to the core principles of good governance, we would have no sense of how those principles ought to be expressed. People might accept that an organization should be transparent but differ over how much transparency is required, what it is to be transparent (actively publish reports? respond to requests for information?), or—most importantly perhaps—on who decides transparency’s parameters at any point in time. What, alternatively, is it to accept democratic voice? What constitutes acceptable democratic restraint? To what degree can a democratic say over micro-level decisions (specific placements of wind farms for instance) be balanced against an organization’s effective pursuit of already-mandated macro-level goals (operationalizing a carbon-mitigation energy plan). Governance not only requires everyday decision-making processes in order to decide questions such as these but has shied away from solving them by allocating unilateral decision-making power to single C. O’Kelly (*) Queen’s University Belfast, Belfast, UK M. J. Dubnick University of New Hampshire, Durham, NH, USA © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_3

45

46 

C. O’KELLY AND M. J. DUBNICK

decision-­makers. It has instead developed ever-more-complex mechanisms that test decision-makers, and expose them to scrutiny and often to retribution. No decision-maker’s power is absolute therefore, although precisely how their non-absolutism can be characterized may differ in different circumstances. The degree that law simply prohibits specific kinds of executive behavior varies for instance. Law might delegate power over executives to boards themselves or designate organizational stakeholders either as decision-­ makers or as decision-reviewers. Or it might aim at some mixture of the three. Questions of what it means—in everyday operational terms—for powers to be delegated arise, as do questions of how powers of restraint may be expressed. What executive discretion even means is subject to negotiation, struggle, and debate both within law-making, within organizations and between the two. Our expressing values in governance are not simple, therefore. How democratic voice is imagined in administrative contexts; which degrees or kinds of transparency are deemed appropriate, and so on, often comes down to authority and decision-making power being shared and checked in a multiplicity of ways. Once we expect those exercising authority to answer for their decisions, then we are in the realm of accountability. Once we decide that no decision-making power can be unilateral, then accountability and the quality of governance become the same thing. In this chapter, we not only address how resolutions for such questions are imagined but suggest supplementary pathways to imagining those resolutions. How do descriptions of social situations shape and constrain the solutions used to answer the questions posed above? The words we use to describe social phenomena are not neutral. They are constructive of the conceptual maps we use to navigate and negotiate the social world. Checks and balances, decision-making powers, and the like are reproduced using analogies and metaphors that themselves play a role in how solutions to social problems are conceived. We focus on Mark Bovens’s use of the forum metaphor in his accountability model. The forum metaphor has emerged as a fundamental component in accountability’s status as a ‘cultural keyword,’ reflecting its extension into the political rhetoric and everyday language of our time (Dubnick, 2014). People do not imagine value in governance directly, through observation. They construct it through metaphorical language and, when it comes to how the underlying decision-making processes are described, Bovens’s work is at the fore.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

47

Contra Bovens, we argue that his relational perspective could be taken much further. We advocate a far broader and more fundamental engagement with the idea of relational accountability. Expanding the metaphors, we point to two other accountability spaces: ‘agora,’ a primordial accountability space and ‘bazaar,’ an emergent accountability space rooted in ground-level exchange between different actors. Assertions about ‘unaccountability,’ we argue, very often reflect a failure to appreciate the fundamentally relational nature of accountability: those who use such assertions as bases for action aimed at making situations, processes, or people ‘more accountable’ in fact seek to assert or impose a certain form of relationship—one that is hierarchical and monopolistic—and reflect therefore a drive to power and domination. Its mere appearance in the title of legislation for example triggers an affective response whether or not the term’s use is appropriate or justified by the content of the law. The symbolic gesture of stating ‘we shall hold them accountable’ is now part of the standard repertoire of public officials responding to some scandalous faux pas or criminal act. Moreover, we now associate the notion of accountability to any ‘good governance’ reform agenda that promises to reduce corruption, enhance performance, assure justice, and improve democratic involvement. The concept of accountability has, in short, become both the medium and the message of modern governance. Today, the study of governance is effectively the study of accountability.1 The first half of this chapter is devoted to a discussion of the Bovens model, how it uses the forum metaphor and how it negotiates a line between more traditional and mechanistic ‘principal-agent’ perspectives and an outlook that focuses on particular social relations in the development of accountability. We distinguish Bovens’s relational perspective from other ways of approaching the problem of what accountability actually is. And we show that ideas of ‘unaccountability’ only work where our ideas of integrity, accountability, and so on, are inordinately fixed. Broadening our perspective pushes us to think about how organizational dysfunction functions, so to speak. The chapter’s second half seeks to expand upon the Bovens model by outlining two relational accountability spaces: ‘agora,’ which we regard as a ‘primordial’ accountability space upon which other spaces rely, and 1  CF Strydom 1999, who saw ‘responsibility’ as the emerging ‘master frame’ that would shape social and political thinking in the twenty-first century.

48 

C. O’KELLY AND M. J. DUBNICK

‘bazaar,’ where accountability relationships based on mutual exchange emerge. This exercise is useful in its own right because it highlights how a more flexible approach to accountability’s conceptual underpinnings can refocus our thinking about how organizations might be arranged and understood. It is also useful because it allows us to consider how our concepts of accountability underpin the ways we understand key organizational norms—such as democratic voice and transparent work—and from there how organizational integrity might be constructed. We aim, at least in the first instance, to isolate the principal-agent components of the relational model and to demonstrate how critical the ‘relational’ model is to accountability in the first place. We do not do this in order to abstract out the components of accountability for its own sake but because we seek to explain the so-called unaccountability: deviations from principal demands (drifting though they are, on which see Schillemans & Busuioc, 2014) tend to be conceptualized as simple misfeasance, or corruption, or ‘shirking,’ the solution to which invariably involve harsher penalties or more tempting inducements (a cynic might suggest, depending on how high up the ‘unaccountable’ actor sits in the hierarchy). It may be that apparent unaccountability should be approached and conceptualized as a function of other forms of accountability, though perhaps ones that are subterranean and are illegible within the forum concept. These forms of accountability represent the human drive to negotiate the multiple, diverse, and often conflicting expectations (Dubnick, 2014b) that arise in all aspects of their social lives, including their worlds of work. We differ from the Bovens model in the degree to which we emphasize organizations, whether administrative or corporate, as a social flux, unpredictable, unstable, and often unmanageable. Modernity is in large part the story of the organizational tools employed to solidify, constrain, and direct that social flux, but we ought not to pretend either that modernity’s project has been a resounding success on this front or that we would wish its success to be complete. Accountability’s role in the policy realm and in theory both invites frustration in its ongoing failure to achieve submission and acts as ‘promise’ (Dubnick & Frederickson, 2011), holding out the hope that the right measures or the right attitudes or the right interventions will lead us to better performance, or coordination or the like. Accountability so conceived aims toward a kind of silence, where aims, intents, and actions are transparent and clear. Accountability as we conceive it is never so: it is noisy, complicated, and multifaceted. The Bovens model hints that this

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

49

sense of accountability is what differentiates it from the principal-agent perspective. Our point is that the model does not go far enough. The forum metaphor, we fear, acts to constrain thinking about accountability and allows people to drive themselves back toward the very principal-­ agent thinking that the forum metaphor could have surpassed. The focus on process and hierarchy restricts the forum’s potential to broaden our thought: a point we discuss in the section below.

3.2   The Forum and Accountable Governance Ironically, while the relevance and salience of (and academic interest in) accountable governance has expanded, accountability has become more elusive both conceptually and theoretically. Often regarded in the past as a species of ‘responsibility,’2 accountability is now frequently treated as the primary concept (i.e., the genus) among those terms bearing a synonymic ‘family resemblance’ to responsibility.3 Thus, rather than being regarded as a distinct alternative to other members of that conceptual family, accountability is increasingly perceived as an encompassing concept that covers what has traditionally been associated with responsibility, and then some. In everyday usage as well as in scholarship, few would argue with the idea that to be accountable is to be liable, obliged, responsive, transparent, answerable, blameworthy, trustworthy, and so on. Accountability as a cultural phenomenon has enveloped and contained most of its familial relations. This ‘ever expansive’ nature of the concept (Mulgan, 2000) is clearly a challenge to those who seek conceptual clarity, and especially to those attempting to make theoretical sense of how the cultural form of ­accountability 2  Two often cited expositions of the historical development of responsibility as a concept are McKeon 1957 and Ricoeur 2000 [1995]. Both rely on a historical distinction between ‘imputation’ and ‘accountability’; see Kelty 2008 for an overview of these works. Much of the scholarship on responsibility has followed that approach. For example, Goodin 1987 drew a distinction between ‘blame’ and ‘task’ responsibilities and assigned accountability to the latter. In Bovens 1998, accountability is presented as a distinctive (‘passive’) form of responsibility and contrasted with ‘active’ (virtue-related) responsibility. In his explication of environmental governance, Pellizzoni (2004) posits accountability as one among four types of responsibility (the others are care, liability, and responsiveness). More recently, Vincent 2010 provides a sixfold elaboration of responsibilities (based on the work of H.L.A. Hart) that avoids any reference to accountability while clearly implying its relevance to several of the ‘syndromes’ she highlights. 3  See Bambrough 1960 for an overview of Wittgenstein’s view of family resemblances.

50 

C. O’KELLY AND M. J. DUBNICK

impacts on governance. In this section, we explore and seek to build on the major effort undertaken by Bovens and others to deal with that challenge— the development of a forum-based model of accountability. The work of Bovens and his colleagues represents one pathway among several that have attempted to address the need for fresh approach to the study of accountability now that it has assumed keyword status and become untethered from responsibility. 3.2.1  One Model Among Many Putting the Bovens model in perspective, it must be seen in the light of the broader metatheoretical challenge to make sense of accountability (see Table 3.1 below).4 Various theories and frameworks have been mobilized and applied to that task. Some deal with accountability through principal-­ agent models that stress a mechanistic view of accountability—that is, that accountability involves various arrangements aimed at dealing with the problematics of getting agents to comply to with the preferences of their principals (see Gailmard, 2014; Mansbridge, 2014). Others treat accountability as a function of governance, and rely on institutionalist theories and models to explain their emergence and development over time (e.g., Harlow, 2014; Olsen, 2014). Cultural theorists perceive accountability as a reflection of what kinds of behavior and relationships are prescriptively valued in alternative social settings (Licht, 2001; Wildavsky, 1987). Still another perspective views accountability as a form of individual behavior that can be explained using theoretical lenses borrowed from social psychology (see Hood, 2014; Patil, Vieider, & Tetlock, 2014). The relational view of accountability, finally, focuses attention on accountability’s emergent and ‘second-personal’ nature. As we will argue, Table 3.1  Five models of accountability Accountability as

Relevant theory

Mechanism Function Value Behavior Relationships

Principal-agent theories Institutional theories Cultural theory Social psychology Moral theory

4

 Compare with overview in Bovens, Schillemans, & Goodin 2014.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

51

much of the theoretical work underlying this view is associated with moral theory and specifically the work of contemporary writers such as Steven Darwall (2006, 2013) and others5 who have revived interest in the ethical foundations of accountable relationships. Because it is rooted in the relational perspective, the Bovens model offers some insight into this understanding of accountability; but as we will see, its reliance on the forum metaphor does not provide a theoretical foundation for pursuing the study of accountability. Our task here is to lay the groundwork for such a theory by using other metaphorical models to demonstrate the relevance and power of the second-personal standpoint for our understanding of relational accountability (Table 3.1). 3.2.2  The Bovens Model Central to the Bovens model is the concept of the ‘accountability forum’ that was first used by Mark Bovens in his 1998 The Quest for Responsibility: Accounting for oneself, taking responsibility, and justifying oneself never… happen in a vacuum; there is always something or someone who asks the questions or makes the imputation. Such asking and accusing happens mostly at the instigation and in the presence of some forum or other, varying in the Constitution from the forum internum of the conscience to the informal forum of family members, friends, and colleagues, the much more formal disciplinary committee, tribunal, or parliamentary committee of inquiry, or even the television, the forum of the nation (Bovens, 1998, pp. 23–24; italics in original).

The concept is applied loosely and broadly throughout that work, with the forum indicating both some referenced ‘other’ and/or a type of venue. It is within the context of a forum that responsibility is transformed into accountability.6 In that regard, the forum is more than a mere ‘meeting space’ for interactions and exchanges (political, economic, social, and otherwise). In that sense, it is neither Habermasian public sphere nor Hayekian marketplace.  See the work of Judith Butler (2005), R. Jay Wallace (1994).  Bovens cites H.L.A. Hart’s elaboration of various forms of responsibility in this regard, noting that he is using the term ‘accountability’ in lieu of ‘liability-responsibility,’ which he prefers ‘since it has fewer strictly legal connotations and also entails an element of moral or political responsibility’ (Bovens, 1998, p. 24, n.3). 5 6

52 

C. O’KELLY AND M. J. DUBNICK

The accountability forum functions, rather, as a juridical location where one is subjected to the judgment of others through imputation and interrogation (Ricoeur, 2000 [1995]; Van Hooft, 2004). The concept next emerges in 2005  in a number of sources, including a paper by Albert Meijers and Bovens focused on accountability and information technologies (Meijer & Bovens, 2005), and again in a chapter, Bovens contributes to a volume on public management (Bovens, 2005). These become the basis for a draft proposal for the funding of a major research project, which was to focus on accountable governance in Europe (Bovens, ‘t Hart, et al., 2005). There, the Utrecht group (co-led by Meijers & Bovens) initially equates the forum with the ‘accountee’ in an accountability relationship and uses the existence of a forum as the pivotal factor which distinguishes accountability from other forms of political conduct or activities that involve, such as transparency, responsiveness, and participation. ‘For an actor to be accountable, information is given to a forum, which then comes to a judgment that may have consequences for the actor in case it is negative’ (Meijer & Bovens, 2005, p. 5).7 In that sense, the forum becomes the defining feature of accountability, and the projects to be undertaken in the research program would highlight the various ‘accountability modes’ and ‘accountability regimes’ reflecting that forum-centered perspective. What we regard as the Bovens model becomes clearer as the proposal focuses on their intent to “open the black box of the accountability process” (emphasis in original). The relationship between the actor and the forum, the account giving, usually consists of at least three elements or stages. First of all, the actor must feel obliged to inform the forum about his conduct, by providing various sorts of data about the performance of tasks, about outcomes, or about procedures. Secondly, the information can prompt the forum to interrogate the actor and to question the adequacy of the information or the legitimacy of the conduct (debating phase). Thirdly, the forum usually passes judgement on the conduct of the actor. In case of a negative judgement the forum may impose some sort of sanctions on the account or. These may be formal, such 7  Interestingly, the initial reference to the forum concept does not cite Bovens’s 1998 work, but rather Christopher Pollitt’s use of the concept in his 2003 The Essential Public Manager. Pollitt, however, is using the concept quite different—that is, to describe the deliberative arena in which public managers are operating. See Pollitt 2003, pp. 84-85.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

53

as fines, disciplinary measures, or dismissal, but they can also be implicit or informal (such as negative publicity). The three projects will ascertain to what extent the various accountability regimes entail each of these stages of an accountability process, and will study the relevant processes to examine how they unfold, and what pattern of relations between accountor and accountee exists (Bovens, ‘t Hart, et al., 2005, p. 6).

By 2007, Bovens was able to present the model as “a parsimonious analytical framework that can help to establish more systematically whether organization or officials, exercising public authority, are subject to accountability at all” (Bovens, 2007, 448, emphasis in original).8 Bovens emphasizes that the ‘framework’ is intentionally narrow and analytic in its explicit focus on ‘account giving,’ which he defines as a relationship involving ‘the obligation to explain and justify conduct’ to a forum. While acknowledging that the framework does overlap with principal-agent models, he emphasizes that the actor-forum relationship can be quite different (a point recently made explicit by two members of the Utrecht project group (see Schillemans & Busuioc, 2014), and he offers a seven-point summary of what constitutes the ‘social relations’ at the heart of the model as well as a graphic representation of the model’s relationships (Table  3.2 and Fig. 3.1): The four-year research project based on the forum model generated a number of empirical studies (e.g., Brandsma, 2013; Bovens, Curtin, & ‘t Hart, 2010), as well as further development of the model itself. For example, two members of the Utrecht group—Thomas Schillemans and Gijs Brandsma—recently published a more elaborate version (termed the Table 3.2  Accountability as a social relation (Box 1 in Bovens, 2007, p. 452) A relationship qualifies as a case of accountability when:  1. there is a relationship between an actor and a forum  2. in which the actor is obliged  3. to explain and justify  4. his conduct;  5. the forum can pose questions;  6. pass judgment; and  7. the actor may face consequences.

8  See also Schillemans & Bovens 2011; Bovens 2010; Bovens, Schillemans, & ‘t Hart 2008; Bovens 2007.

54 

C. O’KELLY AND M. J. DUBNICK

Fig. 3.1  Accountability (Figure 1 in Bovens, 2007, p. 454)

Fig. 3.2  The accountability cube (Figure 1 in Brandsma & Schillemans, 2012)

‘accountability cube’: see Fig. 3.2) that attempts to enhance its usefulness as an analytic tool by transforming the three dimensions of the original formulation (information, discussion, and consequences) into operational measures.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

55

3.2.3  Assessing the Forum As one of the only explicit attempts to develop a framework for analyzing accountability relationships, the Bovens forum model might also be regarded as the basis for a theory of such. However, while we think the model has proven its value as an analytic framework, we are concerned that its analytic success can restrict the development of a credible theory of relational accountability. The basis for our argument is, in part, found in the developmental path of the model: 1. Accountability is conceptualized as a relationship, thus narrowing the model’s focus and making alternative views (accountability as mechanism, function, or behavior) of secondary relevance. 2. The focus is further narrowed when the actor–forum interaction is established as the core relationship. In the process, consideration of other forms of accountability relationships is put aside. 3. Within the actor–forum relationship, three process factors are emphasized (e.g., informing, discussing, judgment/sanctioning, etc.) to the minimization or exclusion of other, often more substantive, situational factors (e.g., norms, values, rules, etc.). To be clear, there is nothing inappropriate or wrong with that developmental path—and in fact, the very process of modeling necessarily involves the selection and highlighting of certain factors and the winnowing out of others. It is in the nature of model development to narrow one’s perspective, which is why methodologists are quick to warn of the possible drawbacks of overcommitment to any such construct (Kaplan, 1964, ch. 7). Another source of concern for us involves the inherently metaphorical nature of the forum model. Technically, the Bovens group regards the forum per se as just one factor among several in their model (i.e., as synonymous with the ‘accountee’ in the relationship). Nevertheless, their use of the forum factor is pivotal and critical to the model, and few would argue against calling the construct the ‘forum model.’ But this labeling can prove problematic, for the notion of a forum is tied into a range of different meanings and contexts. Even within the Bovens group (as well as in Bovens’s initial use of the concept, as quoted above), strict adherence to the idea of ‘forum = specific

56 

C. O’KELLY AND M. J. DUBNICK

accountee’ is rare, and they (like all of us) are easily drawn to the image of forum as a place or venue—a physical or virtual space within which the action is taking place. A major attraction of the ‘metaphorical style’ in model and theory construction is its capacity to make difficult and abstract concepts and ideas come to life through more familiar forms.9 Moreover, metaphors often act as an intellectual stimulant, allowing analysts to extend their understanding of a subject further and deeper than that was intended by developers of the initial model.10 At the same time, the fertility and richness of metaphors can prove counterproductive when they function as (pardon the metaphor) blinders or constraints on theory development and analysis. As we hinted at in the introduction above, it is our sense that the forum model/metaphor is proving so inviting that it may be undermining the development of a more elaborate and credible theory of relational accountability. Models, as valuable as they are to enhancing our understanding of complex subject like accountability, are not theories. Oftentimes, they play key and critical roles in the process of theory development, but they can also act as distractions and diversions when they block consideration of alternative constructs that might prove more fruitful. In the case of the forum model and its success, we seem to be on the verge of over-commitment. The metaphor of the forum is a powerful one, and fits well with the conventional view of accountability. Our sense is that the forum model, for all its insights and analytic power, is lacking when it comes to theoretical credibility. It describes much, but at this juncture explains little. And yet, we are intrigued by the forum metaphor itself, for in establishing the idea that accountability relationships occur within a certain context, the model has led us to consider and contrast alternative metaphorical contexts within which account giving takes place.  Kaplan 1964, pp. 259–262, elaborates six different ‘cognitive styles’ through which models are applied (literary, academic, eristic (propositional), symbolic, postulational and formal), and treats metaphors separately as a problematic (pp. 265–266). During the 1970s and 1980s, however, a ‘metaphorical turn’ occurred among methodologists and those who study the history, sociology, and philosophy of science (see Marshak, 2003), and there is little doubt that Kaplan would have included ‘metaphorical style’ in an updated list. 10  For example, see Leary 1990. 9

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

57

3.2.4  The Relational Our plan in the remainder of this chapter is to broaden the relational perspective on accountability. Without at all suggesting that they represent an exhaustive overview of possible accountability relationships,11 we do so by pointing toward two accountable relationships that might emerge in public administration, where accountability emerges in particular kinds of venue and toward specific others. These are the ‘agora’ and the ‘bazaar.’12 While the forum’s overlap with principal-agent models in Bovens and others lies in its focus on appraisal and action, it is possible to distinguish, as we see it, its relational underpinning from its principal-agent derivation. Bovens’s emphasis on the investigatory or confessional character of the forum ought not to diminish his perspective of it as relational. What this means, however, cannot simply be formulated with reference to process: the relational is by necessity a negotiated space, both requiring social imagination on the part of both account-holders and accountees.13 The forum’s juridical character is investigatory, relying in the first instance upon a sympathetic engagement between accountor and ­accountee.14 This provides us with a crucial distinction between the forum 11  In fact, we suggest four possible relationships elsewhere (see O’Kelly & Dubnick, 2014) though we expand on only two in this chapter. The two relationships that are missing from this chapter are the ‘cathedral,’ a space bound by hierarchies, rituals, and rules, and the ‘monastery,’ a stable space defined by ‘thick’ relationships founded on shared norms. 12  We employ these terms, as we say above, in order to assist some complex concepts and ideas to come to life. The first thing to note, given this, is the overlap between the Greek ‘agora’ and the Latin ‘forum’: both in reality denoted the same or similar public spaces, where people gathered for trade (drawing in parallels with the Persian (through Italian) ‘bazaar’). We draw the following distinctions (in brief): forum as juridical and historiographical, ritualistically aimed at reconstructing reasons and states of mind behind actions and then at producing some form of action in response to the perspectives that emerge; agora as the foundational space within which—fleeting and contingent perhaps—publics emerge through fundamental social interactions; and bazaar as a space through which people use exchange in order both to pursue objectives and to ‘thicken’ their social ties. 13  The forum, as we see it, through its procedures and rituals, seeks at its best to construct a kind of ‘historical knowledge,’ as Collingwood would call it, that requires a ‘re-enactment’ of some event (see Collingwood, 1946, p.  282). For an historian, this requires that ‘past thought [be] rethought by means of the critical scrutiny of contemporary evidence’ (Browning, 2004, p. 74) in order to bring past thought into the present (see Collingwood 1944 [1939], p. 73; and Collingwood, 1946, 302 in particular). In the forum’s case, the production of knowledge requires the soliciting of evidence from events, documents, and, most significantly, from the accountee him or herself. 14  Sympathetic in Adam Smith’s (2009 [1759], p. 21) sense, as in a route into an understanding of the other’s ‘sentiments.’

58 

C. O’KELLY AND M. J. DUBNICK

in the Bovens model and the principal-agent model, which is led far more by power and contract.15 Whereas the forum must by definition begin with the relationship, the principal-agent model brings the event that is under investigation to the fore, linking it primarily to a principal’s (not necessarily unchanging, as Schillemans and Busuioc (2014) point out) interpretation of contract and seeks to allocate consequences on that basis. The forum, in other words, is interpretative, in the first instance at least. The principal-agent relationship is punitive. What Schillemans and Busuioc call ‘forum drift’ (Schillemans & Busuioc, 2014, p. 11) is more likely a drift in principal intent with the necessary discourse inherent in the forum as we describe it being weak or absent. A distinction between the forum and the principal-agent perspective is important because it helps place the forum as a subset of and as reliant on the multiplicity of other accountability spaces through which people live their lives and do their work. Bovens’s use of the forum metaphor—assisting him in taking an important step away from mechanistic perspectives— still underplays the negotiated and the social in the relational form. The forum relies upon a pre-exiting sympathy between actors, whereas the principal/agency model places a far greater emphasis on force or on the threat of force. That said the forum as described in the Bovens model is narrowed by its focus both on the actor–forum interaction and, within that, by the emphasis on the process factors. The remainder of this chapter seeks to broaden our understanding of accountability beyond that point. One final remark on this matter: it is important to note, as we also say below, that each of these metaphors and types point to distinct traits that can be discerned in actually existing administration. They do not exist in isolation. Each of the spaces we describe is in fact one component of a single phenomenon: the everyday ground-level experience of accountability in administrative work. When we speak of conditions of multiple, diverse, and often conflicting expectations under which actions and decisions are made—of accountability as a kind of second-personal ‘practical reason’—we are interested in the constant flux of normative reflections, social relationships, practical bargains, expedient compromises, and m ­ yriad other maneuvers that people construct in order to get through their day with their personal integrity and their social milieu more or less intact.16 So 15  Although an archaic form of contract that lacks the relational elements identified in socio-legal scholarship (see MacNeil, 2001; Fried, 1982; Fried, 2012). 16  When we speak of practical reason, we mean the construction of reasons for action: resolving the question of ‘what one ought to do.’ See Darwall 2006; Wallace 2014.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

59

isolating one element is rather like isolating a person’s heartbeat from the flow of their blood for scrutiny, or a city’s traffic from its streets. It is useful but we must always remember that it is one part of a whole. In the next section, where we discuss both the agora and the bazaar, we broaden the relational account through a focus on that which underpins all ‘relationality’ (agora) and through a focus on an alternative accountability space that might emerge (bazaar).

3.3   Two Accountability Spaces 3.3.1  Agora Let us begin with a discussion of the ‘agora.’ We are concerned with the agora—in our context—as a fluid, contingent, and localized accountability space, founded on an unending cascade of social situations and the relationships that these situations inform. Following Norton (2014), we take the situations and relationships that emerge within such spaces as our ‘primordial unit of analysis.’ The agora, that is, is the fundamental social milieu from which reasons, purposes, and norms emerge, not because that is the agora’s aim, but because, such a space is required if these things are to emerge. Taking ground level administrative work—as with any other collaborative spheres—as fundamentally and inherently social, we see human sociality and, following Smith (2009 [1759]), reciprocal sympathy as the foundation of practical reason. Such social spaces and their relationships, that is to say, found our motives for action: they are inextricably linked to the development of collaborative purposes. Motives for action are founded, we argue, on the matrix of second-person standpoints within which we live our lives (following Darwall, 2006). It is through these relationships that people develop and contribute toward collaborative projects, underpinned by collectively derived norms that focus on the fairness of group aims, and the internal fairness of the procedures that the group employs.17 Our model, following Tyler and Blader (2003, 116, for instance), is that the general ‘toing-and-froing’ of people getting on (their ‘thick’ relations, so to speak), informs their standpoints toward relatively ‘thin’ orga17  On which, see Tom R. Tyler & Steven L. Blader 2000; Steven L Blader & Tom R Tyler 2003; also Tom R.  Tyler 2010; Olkkonen & Lipponen 2006; Lind & Bos 2002; Tom R. Tyler & Steven L. Blader 2000.

60 

C. O’KELLY AND M. J. DUBNICK

nizational procedures, managerial power, and the narratives of purpose that are handed down through organizational structures. The metaphor of the agora, as such, constitutes the crux of our distinctive perspective on accountability because, rather than holding ground-level actors to be relatively passive in the construction of reasons for action, or individual motives, we hold these actors and their relationships as primary in the construction of reasons for action. To put this differently, our existence in these spaces help us “bridge the gap” between “what can be immediately experienced about the other person and that person’s psychological states” (Schilbach et al., 2013, p. 394). These spaces, in bridging that gap, give us a place from whence we can absorb the practices that help us get on. It is from there that common purposes can emerge and develop in the context of people combining their broader moral sentiments with the particular ethical requirements and constraints they experience in their everyday lives.18 We see the development of collective purpose, in other words, as being a function of more fundamental sets of thick social interaction. Stepping on from this, our idea of the ‘agora’ denotes the everyday, ordinary, story of collective purpose emerging from people’s being together. The special contribution of administrative, corporate, state, and other organizational bodies is that they seek to exploit these social dynamics in order to harness the productive energies that emerge from social relations. Accountability, as we see it, describes the spaces produced through these situations and relationships. This is significant, at the very least, for more mechanistic accountability studies because such studies tend to assume a collective purpose as given, as something that is available to enforce (following Schillemans & Busuioc, 2014). ‘Unaccountable’ behavior and the like is, in such approaches, taken simply as a matter of compliance.

18  This echoes Hegel’s conception of Sittlichkeit, described by Pinkard as ‘the system of practices and institutions that surround the moral life.’ Sittlichkeit, in other words ‘furnishes agents with a conception of what is good and best for them, and it trains them into a kind of ‘ethical virtuosity’ in discerning what is required for the type of person they are in the type of situation in which they find themselves’ (Pinkard, 1999, pp. 226, 226). In some ways, also, our outlook echoes that of Julia Annas’ discussion (2011, see also Rorty & Wong, 1993 and other essays in the same volume), from a virtue ethics perspective, of virtues as learned— as skills—and as being in many ways subject to intelligent engagement (as opposed to being simply handed down from authority).

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

61

Our argument is, first, that the kinds of hierarchical intent that underpin relationships within the Bovens model, and that are at the heart of broader principal-agent mechanisms, is only one force being brought to bear on collective purpose–and brought to bear very often with unforeseen consequences—and that the so-called ‘unaccountability’ is likely to lie in the realm of the broader accountabilities we describe here rather than in simply self-serving conduct or in shirking. Where accountability studies places the forum at its core of a system through which hierarchical will is disseminated and deviance is uncovered—a system of control in other words—we see accountability as a far more pervasive matrix of standpoints within which the individual negotiates their social existence, the group develops purpose, and that purpose is normalized. This is not simply a ‘black box’ that is irrelevant to accountability studies, and nor is it a dynamic that accountability forums should aim to overcome. Accountability in the broader sense, as the font of practical reason, both limits or enables the forum’s reach, depending on the situation or on the manner in which the forum’s power and message cohere with other powers and messages as people’s standpoints form and persist. 3.3.1.1 A Role for Moral Theory Theories are not arguments, as David Schmidtz points out: they ‘are maps.’ ‘Like maps,’ he writes ‘theories are not reality. They are at best serviceable representations. They cannot be more than that (but they can be less; some maps are useless)’ (Schmidtz, 2007, p. 433).19 Theories set out to define a terrain—of justice, of ‘good work,’ or the like—and in the case of moral theory are inextricably linked to everyday experience and the hard questions we encounter every day. In accountability’s case, such terrains have long been the subject of moral philosophy. We are particularly interested in the moral sociology of Adam Smith (2009 [1759]; 1999 [1776]) and, as we mention on the pages above, in the work of Stephen Darwall (2006, 2013). 19  Schmitz goes to say that no map represents the only reasonable way of seeing the terrain. We would be astounded if two cartography students independently assigned to map the same terrain came up with identical maps. It would not happen. Likewise, theorists working independently inevitably construct different theories. The terrain underdetermines choices they make about how to map it. Not noticing this, they infer from other theorists choosing differently that one of them is mistaken and that differences must be resolved (Schmidtz 2007, p. 433).

62 

C. O’KELLY AND M. J. DUBNICK

Smith’s contribution comes through his focus on sympathy and on the social foundations of and the interaction between normativity, recognition, and esteem. Darwall, following from Smith, focuses on the ‘second-­ personal’ character of norms and thus emphasizes their elementary, emergent, and egalitarian bases. So, while the metaphors scholars use as are useful in articulating and illuminating complex concepts—in this instance the accountability’s relational character—we ought not to overlook their theoretical roots: that through metaphor we are setting out a terrain through which moral theory can be read into and applied to the ground-level experiences of everyday work. The Smithian perspective on practical reason, which acted as a precursor to Kant’s more ‘internal’ perspective (see Fleischacker, 1991; Kant, 2005), focuses on the social considerations in the development of reasons for action. Smith’s perspective is radically intersubjective. If we think about it from the individual’s point of view, people develop reasons for action, appropriate to the context they find themselves in, based on irreducibly social considerations. They engage with questions of action in terms that sit in the same conceptual arena as Smith’s ‘impartial spectator’—that is, they consider their own position by developing a sense of how they might appear to others. This is not a simple egoistical calculation, but a combination of contextualized norms, concern for their fellows and concern for how their fellows see them.20 Such an endeavor would not be possible, however, without the individual’s entry into society and without the development and practice of everyday social relationships between the individual and their peers. Moral self-examination is a skill and as such it must be learned (see Annas, 2011, for similar points).

20  As Smith has it, when I endeavour to examine my own conduct, when I endeavour to pass sentence upon it, either to approve or condemn it, it is evident that, in all such cases, I divide myself, as it were into two persons; and that I, the examiner and judge, represent a different character from that other I, the person whose conduct is examined into and judged of. The first is the spectator, whose sentiments with regard to my own conduct I endeavour to enter into, by placing myself in his situation, and by considering how it would appear to me, when seen from that particular point of view. The second is the agent, the person who I properly call myself, and of whose conduct, under the character of a spectator, I was endeavouring to form some opinion’ (Smith, 2009 [1759], 135f). See also Raphael 2007, esp ch. 5, for an account of how the idea of the impartial spectator evolved across the various editions of Smith’s Theory of Moral Sentiments.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

63

As Darwall (2006) has it, this ‘team-building’ skill is rooted in conditions of mutual recognition between people as they regard each other in various ways, as moral equals, as particular subjects of esteem, and as authorities on particular modes of action. Note that, for Darwall’s development of Smith, the authority of others is not initially a function of any formal office they hold, but a recognition of them as moral equals acting in a particular shared context, of which formal offices are one part. So, we argue, as Sennett (2007) would have it, a formal office holder who was not deemed deserving of their authority would have little capacity for influencing social action. The forum’s traction, as we see it, is filtered through such perspectives. It is not separate from them. Its relational power comes not from its formal processes but from a broader and partly emergent legitimation dynamics that all social offices must both undertake and undergo (on legitimacy and legitimation in political offices, see Barker, 2001). A relational ‘grammar’ must emerge whereby the forum’s imperatives agree with broader social expectations: otherwise, actors might well balk at the prospect of obeying the forum’s demands. Any descriptor of action as ‘accountable’ or ‘unaccountable’ is in effect a call for particular ‘proper’ purposes over others and is, we think, invariably taken as given within accountability studies. In fact, as our perspective suggests, purposes emerge, evolve, and are negotiated within social spaces at the ground level,21 in (invariably incomplete and contingent) answer to multiple, diverse, and often conflicting social expectations (see Dubnick, 2014b, for a discussion) with externally disseminated imperatives constituting but one force on people’s active engagement with their conduct. Of course, we do not discount the possibility of shirking or dishonesty in administrative work. Nor do we dismiss the capacity of disciplinary mechanisms for limiting opportunities for such conduct to take hold. Our point is more that those mechanisms necessarily interact with people’s more ‘primordial’ accountability spaces, often in unpredictable ways. Consider, for instance, the problem of gaming in target systems, as described by Hood (2006) and others (Bevan & Hood, 2006, for instance), where attempts to deliver accountability with regard to performance led instead to almost the opposite of what was intended. From our perspective, the disruption is very often linked not only to tension between hierarchical aims and ground-level dynamics but also to  See for instance Suchman and Edelman 1996, on such dynamics within law-making.

21

64 

C. O’KELLY AND M. J. DUBNICK

the effects that reinforced imperatives, ‘externally’ imposed (relative to social dynamics), have on the internal politics of organizations. Given this, for instance, we hold the forum’s effectiveness—the forum as described by Bovens, etc.—to be in large part a function of the agora rather than being an independent force in its own right. Both the forum’s capacity to bring itself to bear on people’s conduct and its capacity to comprehend the roots of ‘unaccountable’ conduct are rooted not so much in hierarchical force and in the tools that the principal-agent model propose, but in the ground-level social dynamics that we describe above. Whether these dynamics are described as ‘culture,’ or as ‘networks,’ or the like, they come down to a relatively free-flowing, morally egalitarian set of interactions, from which common purposes emerge. The force that mechanisms bring to bear do not do so in a vacuum: they do so in a context and the context determines the effect they will have. Bovens notes that individual identities emerge ‘on the basis of existing ideas and in dialogue with others’ (Bovens, 1998, p. 99) but he is less successful at extending this observation to the hierarchical power of the forum itself. This matters because accountability (in its forum guise) tends to regard itself both directly as monitor and indirectly as reason for action. It constitutes the transparency that allows knowledge to be passed up the hierarchy and as such is, post-factum, the vehicle for retribution and pre-­ factum, the edifice that induces compliance (on pre- and post-factum, see Dubnick & Frederickson, 2011). It is, in other words, necessarily hierarchical and coercive. The forum is weak if there is no ground-level ‘fit.’ In practice, the forum’s response to this weakness is invariably a reinforced turn toward its principal-agent tools. When the principal-agent mechanism comes to the fore, the focus turns to reinforced surveillance and scrutiny, reinforced reward/penalty structures and reinforced narratives of admonition and approbation. Again, however, the success or not of these tools depends on the broader patterns of accountability that have emerged within organizations. 3.3.2  Bazaar Whereas the Bovens forum, as with all other accountability spaces, relies upon the agora for its traction, other accountability spaces that pervade public administration tend to be illegible to more formal or ritualized

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

65

spaces, or are treated with great hostility. We turn to the ‘bazaar’ here as one such space. Bazaar describes the exchange element in the accountability space: the standpoints that emerge in situations where people develop relationships—fleeting at times—rooted in their trading with others in mutual pursuit of each other’s interests. This section is crucial for us because it sets out an alternative and emergent relational space, independent of—and illegible to—the forum, through which both accountable relationships and seeming unaccountability emerge. We suggest that the dynamics inherent in bazaar are fundamentally human, elemental, and inevitable (following Smith, 1999 [1776]) but also that they are fundamental to administrative work. That the Bovens model cannot account for bazaar is striking, we think, because it suggests the model’s narrow nature: it seeks accountability out in a space largely defined by the principal-agent model but not by the social underpinnings upon which its relational precepts rely. The section is broken down into two parts. First, we discuss what precisely we think is included in this kind of ‘thin/thick’ space. Second, we discuss some characteristics of bazaar—its ubiquity and its contribution to productivity and from there discuss the attitude of actually existing forums toward the bazaar and what that tells us about the idea of accountability itself. Our aim is as such twofold: to draw out the special characteristics of this accountability space and to emphasize its centrality to actually existing administration. Note that we do not approach the forum as a moral problem primarily: as we have it in the discussion below, exchange may well be used for good reasons and bad. One can easily imagine the emergence of a kleptocratic system as people trade on their insider power. What is hard to imagine, though, is a social system where people do not trade on their positions to some extent. It is not automatically the case that this must be deemed a bad thing. Our focus is on the emergent cascade of negotiations, exchanges, and favors that come to the fore both in corporate and administrative environments. These sometimes fleeting instances of exchange, emerging within the agora, assist people in developing reciprocal standpoints, committing to arrangements and giving accounts of themselves to their peers. They also help them to develop practical reasons and to act on the social foundations that they (collaboratively) construct. Such arrangements are ‘thin’ in their fleeting nature, but ‘thick’ in the moments that they hold (drawing

66 

C. O’KELLY AND M. J. DUBNICK

on the thick-thin distinction that is brought to the fore in O’Kelly and Dubnick, 2006).22 What we are interested in in this section, in other words, is the fundamental trait Smith outlines in The Wealth of Nations: In civilized society [a person] stands at all times in need of the co-operation and assistance of great multitudes, while his whole life is scarce sufficient to gain the friendship of a few persons … But man has almost constant occasion for the help of his brethren, and it is in vain for him to expect it from their benevolence only. He will be more likely to prevail if he can interest their self-love in his favor, and show them that it is for their own advantage to do for him what he requires of them. Whoever offers to another a bargain of any kind, proposes to do this. Give me that which I want and you shall 22  Let us begin by noting that we do not associate the core characteristics of the ‘bazaar’ accountability space with the dynamics that are associated with New Public Management (NPM) and subsequent movements. New Public Management’s call to utilize the price mechanism, market forces, and innovation to allow the state to steer public services rather than provide them itself (Osborne & Gaebler, 1992). It is no coincidence that this major driver in discussions of public administration has been positively correlated with the rise of accountability as government’s core focus. NPM and its heirs are, after all, articulated precisely as being a solution to accountability failures in bureaucracy and as the route to weeding out non-performance through accountability. What does this form of accountability actually mean, however? Accountability here is a form of exposure. NPM’s point, in a sense, was to create new, seemingly more constructive problems and vulnerabilities for bureaucrats to focus on—competition, tendering, and the like—in such a way that something called accountability would emerge (see for instance Beer, Eisenstat, and Spector 1990 on ‘change management’ and the requirement to concoct new pressures to force organizational reform). This accountability would come either from the disciplinary effects of failure’s transparency, or from the more explicit standards set by ‘contractual’ governance. It relies, in short, on the production of narrow principal-agent mechanisms. NPM aims to expose non-performance and from there to develop metrics that will see performance improved (although the link between this style of ‘accountability’ and administrative performance is tenuous at best, on which see Dubnick, 2005). The actually existing switch to a more business-like public administration, however, emerged not as marketized bureaucracy, but as a market for bureaucracies. The major thrust of the era has been the rise of ‘giant firms’ (as Colin Crouch, 2011, has called them) that compete for relatively long-term contracts in the provision of public services, be they in education, healthcare, administration of security or employment benefits, and so on. As with the state, each of these firms is in many ways characterised by complex lines of vertical and horizontal integration, and is subject to processes of a Weberian ‘militarised’ discipline (Weber 1978, p.  1155) that seek to define and control the landscapes of work.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

67

have this which you want, is the meaning of every such offer; and it is in this manner that we obtain from one another the far greater part of those good offices which we stand in need of (Smith, 1999 [1776], pp. 118–119).23

The will to exchange ‘by treaty, by barter, and by purchase’ is a central social trait, whatever the currency of exchange. Trade in reputation, esteem, influence, access, gifts, or power is as compelling as more traditional commerce and it provides an important basis for cooperation in organizational settings. It is also worth pointing out, following Smith, that we do not necessarily see this kind of trade, to put it somewhat pointedly, as the ‘feral’ pursuit of some kind of solipsistic advantage. Exchange as Smith sees it can be more related to prudence, a rational balancing of interests with the facts and constraints of the exchange itself and a socializing influence on human ambition (see Hirschman, 1997; also Macfie, 1967, esp ch. 4). If this is the case, then exchange ought to be regarded as a far more nuanced phenomenon than is generally the case. The relationships that emerge in the ‘bazaar’ tend to be viewed as purely egoistical—borne purely from unreasonable or non-reasoned self-interest. The perception of informality around exchange, its association with individual gain, and the whiff of corruption all lead exchanges invisibility in administrative ethics literature except as a phenomenon that needs to be rooted out. Contrary to this perspective, we look upon exchange as a crucial subject of study in our field—for two reasons: its ubiquity and its underpinning of organizational productivity. We discuss ubiquity and productivity briefly below before moving on to discuss the relationships between accountability within exchange and the accountability forum. 3.3.2.1 Ubiquity In part, as Smith realized, exchange rooted in self-interest is a fundamental aspect of human society and requires a strong level of mutual respect for each other’s dignity on the part of the persons involved (Darwall, 2013, p. 39). Although exchange does not rely on thick personal connections, people pursue their goals by shifting to the development of relatively narrow connections, based on reciprocal commitments to pursue 23  This paragraph continues, famously, with Smith telling us that ‘It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.’

68 

C. O’KELLY AND M. J. DUBNICK

agreed ends with their interlocutors, and on normative commitments, ‘for example that the exchange is made by free mutual consent, that neither will simply take what the other has and so on’ (Darwall, 2006, pp. 46–47). Exchange, Darwall goes on to say, … involves a reciprocal acknowledgement of norms that govern both parties and presupposes that both parties are mutually accountable, having an equal authority to complain, to resist coercion, and so on. (Darwall, 2006, p. 48)

This kind of exchange, in other words, is a necessary element in the human condition and it is surely beyond the capacities of any organizational infrastructure to eradicate it. Where people work together toward various ends, they will exchange favors, information, or esteem in pursuit of those ends. Exchange involves the development and maintenance of skills that derive from familiarity with the rules and norms of a range of social practices (involving an (implicit) absorption both of ‘games’ and of ‘meta-­ games,’ following Tanney, 2000). It is inherently social and, for those who develop the skills, especially in ‘repeat games,’ where the same players repeat their interactions numerous times, benefits follow. 3.3.2.2 Productivity In fact, given that any work process must be necessary be incomplete, it may well be that these kinds of relationship are necessary given the difficulty both in fully anticipating the requirements of any task and in rendering work fully legible to managerial control. The travails of organizations where employees ‘work to rule’ are proof of the reliance of organizations on self-directed action by their workforce. While it is not the only aspect of this, we place bazaar into this category—self-directed collaborative action without which administrative organizations would simply not function. In part, this is because the kinds of exchange we are interested in, often as part of repeat games are crucial in the development (or not) of trustworthiness and in networks of trust. So, while bazaar in and of itself sits between ‘thick’ and ‘thin’ in terms of social relationships (‘thick relations’ within ‘thin parameters’), repeated iterations of exchange may well lead to some thickening of relationships as people establish their reliability and bona fides and as more stable accountability spaces emerge. Bureaucratic back-scratching. One instance of this was outlined by Robert Goodin (1975) at level of bureaucratic agencies: ‘bureaucratic

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

69

back-scratching’ as he called it. Writing from a public choice perspective, Goodin challenged the idea that bureaucratic interaction could be explained simply in terms of clashing self-interest. ‘The traditional emphasis on conflict in the bureaucratic politics model is appropriate only in certain circumstances,’ Goodin wrote. ‘Where high stakes are involved it is likely to work well, but on the other side of some fuzzy threshold stakes are low and rational bureaucrats would cooperate rather than fight’ (Goodin, 1975, p. 65). For Goodin, the key dynamic in exchange of this type was toward coordination and collaboration aimed at ensuring, not that all would compete, but that all would get something that they wanted. It was inherently cooperative—a point that can be made in more general terms about markets (Lindblom, 2002). And indeed, administrative systems can be highly efficient in their development of dual trust-exchange dynamics between parties (Williamson, 1975). Tolkach. The Soviet system represents one—perhaps surprising— administrative arena where exchange emerged in interesting ways. The intensely top-down system through which the mid-twentieth Century Soviet Union was organized relied upon Gosplan’s instructions and disciplinary capacities to drive production. The basic idea was that Gosplan would concoct a matrix of inputs and outputs required to arrive at an endpoint for production, that this would be disseminated to plants, distribution points, and so forth, and that managers would implement the plan in accordance with their instructions. In fact, the system was sustained, to the degree that it was, through a system of exchange that existed well below the official line of sight. This system relied on ‘blat’—the exchange of favors, goods, and the like—and especially on the tolkach (see Berliner, 1957).24 Present in most Soviet enterprises, a tolkach acted “as an expeditor,” as Litwack puts it (for Berliner (1957, p. 209), a ‘pusher’ or ‘jostler’), whose primary responsibility is to establish long-run personal relationships with other organizations for the purpose of procuring needed supplies, particularly in emergency circumstances. The presence of these informal relationships is critical to the coordination mechanism of the economy itself” (Litwack, 1991, p. 80).

24  See also Berliner 1952; Berliner 1957; Padgett and Powell 2012; Holden 2011; Khestanov 2014.

70 

C. O’KELLY AND M. J. DUBNICK

The Soviet system, especially the vertical economic planning system centered around Gosplan, the Soviet State’s economic planning commission, can be imagined as the ultimate realization of vertical integration, in its case integration across the state as a whole. Importantly, though, it could only have persisted as long as it did because of the informal institutionalization of exchange at the ground level through the tolkach (on Gosplan, etc., see Spufford, 2010; Shalizi, 2012). Blat, of course, also extended into society as a whole. The delegitimation of explicitly price-driven market institutions in Soviet economic life simply served to displace exchange into informal—and invisible—arenas, with exchange reconstituted as part of the broader workings of social life. The truck and barter of everyday life, so to speak, serves to fill the vacuums created within managerial orders. As the hero of Monika Maron’s Flugasche, an East German novel of the 1980s, was chastised: ‘“You have so many friends,” Aunt Ida always said, “and in spite of that everything in your place always needs to be fixed”’ (Maron, 1986 [1981], p. 17). This is where we find bazaar to be most interesting: it emerges as one part of a broader social milieu: one set of expectations that sit in an unstable equilibrium with other expectations in the accountability space. And it is inextricably linked to the creation, management, and maintenance of relationships between people. So the lesson we can learn from the Soviet experience is this: no matter how much exchange is discouraged, it can at best be displaced. It is not only an essential part of human interaction but is, as Goodin points out, irreducibly normative. It can of course be highly exploitative, where people trade on their insider power—as gatekeepers, as service providers, etc.—for their own benefit, but it is not necessarily so. It can equally involve people trading on their insider power, with other insiders, in order to get things done, to construct relationships of trust and to deepen productive ties within or across organizations. 3.3.2.3 Hostility The hostility with which bazaar is greeted in actually existing accountability forums arises, we think, from two concerns. First and foremost, is the concern about ‘trade as kleptocracy’: that is, that people might trade their insider power in exchange for favors, goods, money, and the like. This is, in other words, a concern about corruption, as commonly defined. The second concern is a broader concern for the ‘illegibility’ of the kinds of exchange we discuss above: that such exchange is not open to description,

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

71

or formal scrutiny or the like. That makes it seem either trivial—because it is simply part of a ‘black box’ of everyday work—or sinister—because it cannot be brought within the remit of the hierarchies that the forum seeks to enforce. The problem of corruption is of course undeniable, but we see it very often as a distraction. Our point is that an understanding of accountability must entail an understanding of the ground-level environment through which people construct their fields of action. Those environments involve the construction, management and maintenance of both thick and thin relationships between people and most importantly they are the substrate through which the productive character of work emerges. Accountability, understood as a forum, is rightly concerned with corruption, but the study of accountability must also be a study of performance, regarding which the forum is simply not the only place to look. For the same reason, the suggestion of triviality—that bazaar is not a relevant subject for accountability studies—is misplaced. In constructing the accountability space, that is, in developing a practical reason in the face of multiple, diverse, and often conflicting expectations, the forum is but one motivating factor among many. That is because people function in a network of expectations and pressures to act and seek to form a path through their working day in accordance with the imperatives the derive from that network (including through broader concerns about purpose as derived through the ‘agora’). ‘Third-personal’ hierarchies and their forums are certainly important, but they are only one element in the pattern of expectations. And apparently ‘unaccountable’ conduct from one—say third-personal—perspective might well be accountable conduct from, say a second-personal perspective. What’s more, what we privilege in the third-personal perspective might well function best as a series of second-­ personal perspectives as managerial force is translated into persuasion, collaboration and, as we see below, the collaborative development of the corporate purpose.

3.4   Concluding Remarks Drawing on Dubnick’s Situating Accountability (2007), Bovens discusses the phenomenon of “political officials and public organizations sometimes [free-riding] on [the] evocative powers of accountability” (2010, p. 949). His point is that political actors recruit the term ‘as a rhetorical tool to

72 

C. O’KELLY AND M. J. DUBNICK

convey an image of good governance and to rally supporters’ (Bovens 2010, p. 950). We too find this to be striking and important, although we suggest that the line from this view of accountability as ‘desirable’ to the idea of it as ‘normative’ is complicated by the problems of power, ‘subservience,’ and discretion that Bovens goes on to discuss. It is important to emphasize the political content of public institutions when we discuss the idea of governmental questions as being normative. The ‘normative,’ in such environments, cannot simply be regarded either as exogenous to the institutions, or as separated from the kinds of political struggle that we associate with the political realm. The normative, in other words, cannot simply be taken as given, introduced from outside our sphere of interest. It is, rather, a territorial claim, designating the speaker, or their favorites, as authorities who possess the right to define and enforce specific organizational purposes. In this context, the virtue statements contained in many accountability discourses are better described as polemical rather than solely as normative. This means that we ought to push one step beyond the ‘ought statements’ that make up much accountability talk and take note of accountability’s utility in attempts to solidify and fix organizational purposes toward specific ends. Official accountability discourses—the accountability forum, in other words—are at base rooted in questions of power (on which, see O’Kelly & Dubnick, 2013). Our core point is this: assertions about ‘unaccountability’ very often reflect a failure to appreciate the fundamentally relational nature of accountability. Those who use such assertions as bases for action aimed at making situations, processes, or people ‘more accountable’ in fact seek to assert or impose a certain form of relationship—one that is hierarchical and monopolistic—and reflect therefore a drive to power and domination. That this is rationalized as the quest to improve performance, democracy, ethics ought not obscure its basic intent. The accountability forum, driven by polemical claims, seeks to impose order and authority on the social milieu within public organizations (and elsewhere) but it constitutes only one form of accountability. It constitutes only one cascade of expectations amongst an often conflicting and diverse multiplicity. The Bovens model, with its emphasis on process, seems to regard it as describing and enforcing a preeminent expectation that ought to override the others, which is a way of saying that they tend to either assume (or accept) the legitimacy of the forum’s claims. This is unfortunate because it allows the forum to tack toward an emphasis on its principal/agent

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

73

components. A greater emphasis on the relational would take the forum’s claims and authority as negotiated and as a contingent by-product of many other commitments that people have made and (emergent) expectations under which they work. It is insufficient for any study of accountability, however, to simply describe unaccountability as an absence of accountability and leave it at that. Such an apparent absence, from the forum’s point of view, most often describes a situation shaped by two factors, whether for good or ill: 1. The forum’s making a claim that runs, on balance, against the other expectations through which people have shaped their working lives. and thus 2. The forum’s disciplinary mechanisms either failing to overwhelm those expectations or reconfiguring the paths people negotiate through their expectations in unintended ways.25

So unaccountability is not a failure of people to ‘be accountable,’ or at least that is not a useful description of their conduct. Unaccountability is, rather a failure of power, and often a failure of force. We say this without committing ourselves to the rightness or otherwise of any path of conduct within organizations, although we are disposed to approaching accountability failures sympathetically in the first instance. Rather than assuming the decision-making autonomy of a homo economicus, we treat people as irreducibly social in their motivations and in their developing reasons for action. They are active agents in the construction of integrity, transparency, and the like. Organizational ends are in fact negotiated at the ground-level and are not simply ’received.’ Those who hold the formal power to shape ends, their purported agents and myriad gatekeepers and middlemen all negotiate collection action on endless bases having ‘come together as a [in this case relatively local] public’ (Habermas, 1989, p. 27) in—as we call it—an ‘agora.’ They do not do this as a matter of policy or by organizational imperative. They do this because the agora is a fundamental aspect of both governance and the human condition. Administration, from this perspective, is just that: human before anything else. 25  It is also possible that some apparent accountability failures might best be explained as a forum style mechanism (the bonus system in large financial institutions perhaps) creating, reinforcing, and even intensifying a social milieu that runs against outsiders’ interests.

74 

C. O’KELLY AND M. J. DUBNICK

References Annas, J. (2011). Intelligent virtue. Oxford: Oxford University Press. Bambrough, R. (1960). Universals and family resemblances. Proceedings of the Aristotelian Society, 61, 207–222. https://doi.org/10.1093/aristotelian/ 61.1.207 Barker, R. (2001). Legitimating identities: The self-presentations of rulers and subjects. Cambridge: Cambridge University Press. Berliner, J.  S. (1952). The informal organization of the soviet firm. Quarterly Journal of Economics, 66(3), 342–365. https://doi.org/10.2307/1885308 Berliner, J.  S. (1957). Factory and manager in the USSR. Cambridge, MA: Harvard University Press. Bevan, G., & Hood, C. (2006). What’s measured is what matters: Targets and gaming in the English public health care system. Public Administration, 84(3), 517–538. https://doi.org/10.1111/j.1467-9299.2006.00600.x Blader, S. L., & Tyler, T. R. (2003). What constitutes fairness in work settings? A four-component model of procedural justice. Human Resource Management Review, 13(1), 107–126. https://doi.org/10.1016/S1053-4822(02)00101-8 Bovens, M. A. P. (1998). The quest for responsibility: Accountability and citizenship in complex organisations. Cambridge: Cambridge University Press. Bovens, M.  A. P. (2005). Public accountability. In E.  Ferlie, L.  E. Lynn, & C. Pollitt (Eds.), The Oxford handbook of public management (pp. 183–208). Oxford: Oxford University press. Bovens, M.  A. P. (2007). Analysing and assessing accountability: A conceptual framework. European Law Journal, 13(4), 447–468. https://doi. org/10.1111/j.1468-0386.2007.00378.x Bovens, M. A. P. (2010). Two concepts of accountability: Accountability as a virtue and as a mechanism. West European Politics, 33(5), 946–967. https://doi. org/10.1080/01402382.2010.486119 Bovens, M. A. P., Curtin, D., & ‘t Hart, P. (2010). The real world of EU accountability: What deficit? Oxford: Oxford University Press. Bovens, M. A. P., Schillemans, T., & Goodin, R. E. (2014). Public accountabilty. In M. A. P. Bovens, R. E. Goodin, & T. Schillemans (Eds.), The Oxford handbook public accountability (pp. 1–20). Oxford: Oxford University Press. Bovens, M. A. P., Schillemans, T., & ‘t Hart, P. (2008). Does public accountability work? An assessment tool. Public administration, 86(1), 225–242. https:// doi.org/10.1111/j.1467-9299.2008.00716.x Bovens, M.  A. P., t Hart, P., et  al. (2005). Multilevel governance and public accountability in Europe: Which institutions, which practices, which deficit? Utrecht, Netherlands: Utrecht University. Brandsma, G.  J. (2013). Controlling comitology: Accountability in a multi-level system. New York: Springer.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

75

Brandsma, G. J., & Schillemans, T. (2012). The accountability cube: Measuring accountability. Journal of Public Administration Research and Theory, 23(4), 953–975. https://doi.org/10.1093/jopart/mus034 Browning, G. (2004). Rethinking RG Collingwood: Philosophy, politics and the unity of theory and practice. Basingstoke: Palgrave Macmillan. Butler, J. (2005). Giving an account of oneself (Feminism & Psychology). New York, NY: Fordham University Press. Collingwood, R.  G. (1944 [1939]). An autobiography. Harmondsworth: Penguin Books. Collingwood, R. G. (1946). The idea of history. Oxford: Clarendon press. Crouch, C. (2011). The strange non-death of neo-liberalism. Oxford: Polity. Darwall, S. L. (2006). The second-person standpoint: Morality, respect, and accountability. Cambridge, MA: Harvard University Press. Darwall, S.  L. (2013). Honor, history, and relationship: Essays in second-personal ethics II (Vol. 2). Oxford: Oxford University Press. Dubnick, M. J. (2005). Accountability and the promise of performance: In search of the mechanisms. Public Performance & Management Review, 28(3), 376–417. Dubnick, M. J. (2007). Situating ccountability: Seeking salvation for the core concept of modern governance. New Hampshire. Dubnick, M.  J. (2011). Public accountability: Performance measurement, the extended state, and the search for trust. Washington, DC: National Academy of Public Administration & The Kettering Foundation. Dubnick, M. J. (2014a). Accountability as a cultural keyword. In M. A. P. Bovens, R. E. Goodin, & T. Schillemans (Eds.), Oxford handbook of public accountability (pp. 23–38). Oxford: Oxford University Press. Dubnick, M. J. (2014b). Toward an ethical theory of accountable governance. In International Political Science Association Annual Meeting, Montreal, Canada, 20–24 July. Dubnick, M.  J., & Frederickson, H.  G. (2011). Introduction. In H.  G. Frederickson & M. J. Dubnick (Eds.), Accountable governance: Problems and promises (pp. xxiii–xxxii). New York, NY: M.E. Sharpe. Eisenstat, R.  A., Spector, B., & Beer, M. (1990). Why change programs don’t produce change. Harvard Business Review (November–December), 4–12. Fleischacker, S. (1991). Philosophy in moral practice: Kant and Adam Smith. KantStudien, 82(3), 249–269. https://doi.org/10.1515/kant.1991.82.3.249 Fried, C. (1982). Contract as promise. Cambridge, MA: Harvard University Press. Fried, C. (2012). Contract as promise thirty years on. Suffolk University Law Review, 45, 961. Gailmard, S. (2014). Accountability and Principal-Agent Theory. In M.  A. P. Bovens, R. E. Goodin, & T. Schillemans (Eds.), Oxford handbook of public accountability (pp. 90–105). Oxford: Oxford University Press.

76 

C. O’KELLY AND M. J. DUBNICK

Goodin, R. E. (1975). The logic of bureaucratic back scratching. Public Choice, 21(1), 53–67. Goodin, R.  E. (1987). Apportioning responsibilities. Law and Philosophy, 6(2), 167–185. Habermas, J. (1989). The structural transformation of the public sphere: An inquiry into a category of bourgeois society. Cambridge, MA: The MIT Press. Harlow, C. (2014). Accountability and constitutional law. In M.  A. P.  Bovens, R. E. Goodin, & T. Schillemans (Eds.), Oxford handbook of public accountability (pp. 195–210). Oxford: Oxford University Press. Hirschman, A.  O. (1997). The passions and the interests: Political arguments for capitalism before its triumph. Princeton, NJ: Princeton University Press. Holden, N.  J. (2011). “Not with the mind alone” A critique of “Knowledge transfer between Russian and Western firms: Whose absorptive capacity is in question?” by Snejina Michailova and Irina Jormanainen. Critical Perspectives on International Business, 7(4), 350–356. http://doi.org/abs/10.1108/ 17422041111180782 Hood, C. (2006). Gaming in targetworld: The targets approach to managing British public services. Public Administration Review, 66(4), 515–521. https:// doi.org/10.1111/j.1540-6210.2006.00612.x Hood, C. (2014). Accountability and blame avoidance. In M. A. P. Bovens, R. E. Goodin, & T.  Schillemans (Eds.), Oxford handbook of public accountability (pp. 603–616). Oxford: Oxford University Press. Kant, I. (2005). Groundwork of the metaphysic of morals (T. K. Abbott, Trans.). London: Broadview Press. Kaplan, A. (1964). The conduct of inquiry: Methodology for behavioral science. Scranton, PA: Chandler Publishing Company. Kelty, C. (2008). Responsibility: McKeon and Ricoeur. Anthropological Research on the Contemporary Working Paper (12). Khestanov, R. (2014). The role of culture in early Soviet models of governance. Studies in East European Thought, 66(1-2), 123–138. ­http://doi.org/10.1007/ s11212-014-9206-1. Leary, D. E. (Ed.). (1990). Metaphors in the history of psychology (Cambridge studies in the history of psychology). Cambridge, England: Cambridge University Press. Licht, A. N. (2001). The mother of all path dependencies: Toward a cross-cultural theory of corporate governance systems. Delaware Journal of Corporate Law, 26(1), 147–205. https://doi.org/10.2139/ssrn.208489 Lind, E. A., & Van den Bos, K. (2002). When fairness works: Toward a general theory of uncertainty management. Research in Organizational Behavior, 24, 181–223. https://doi.org/10.1016/S0191-3085(02)24006-X Lindblom, C. E. (2002). The market system: What it is, how it works, and what to make of it. New Haven, CT: Yale University Press.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

77

Litwack, J.  M. (1991). Legality and market reform in Soviet-type economies. Journal of Economic Perspectives, 5(4), 77–89. Macfie, A. L. (1967). The individual in society: Papers on Adam Smith. London: Allen & Unwin. Macneil, I.  R. (2001). The relational theory of contract: Selected works of Ian MacNeil. London: Sweet & Maxwell. Mansbridge, J. (2014). A contingency theory of accountability. In M. A. P. Bovens, R. E. Goodin, & T. Schillemans (Eds.), Oxford handbook of public accountability (pp. 55–68). Oxford: Oxford University Press. Maron, M. (1986 [1981]). Flight of the ashes [Flugasche] (D. N. Marinelli, Trans.). London: Readers International. Marshak, R. J. (2003). Metaphor and analogical reasoning in organization theory: Further extensions. Academy of Management Review, 28, 9–10. http://doi. org/10.2307/30040685. McKeon, R. (1957). The development and the significance of the concept of responsibility. Revue internationale de philosophie, 39(1), 3–32. Meijer, A. J., & Bovens, M. A. P. (2005). Public accountability in the information age. In V.  Bekkers & V.  Homburg (Eds.), The information ecology of e-­government. e-government as Institutional and technological innovation in public administration. Amsterdam, Netherlands: IOS Press. Mulgan, R. (2000). ‘Accountability’: An ever-expanding concept? Public administration, 78(3), 555–573. https://doi.org/10.1111/1467-9299.00218 Norton, M. (2014). Mechanisms and meaning structures. Sociological Theory, 32(2), 162–187. http://doi.org/10.1177/0735275114537631. O’Kelly, C., & Dubnick, M. J. (2006). Taking tough choices seriously: Public administration and individual moral agency. Journal of Public Administration Research and Theory, 16(3), 393–415. https://doi.org/10.1093/jopart/mui050 O’Kelly, C., & Dubnick, M. J. (2013). Power and the ethics of reform. In H. G. Frederickson & R.  K. Ghere (Eds.), Ethics in public management (2nd ed., pp. 59–88). Armonk, NY: M.E. Sharpe. O’Kelly, C., & Dubnick, M. J. (2014). Authority, accountability and authorisation. In American Society for Public Administration Annual Conference, Washington, DC. 13 March. Olkkonen, M.-E., & Lipponen, J. (2006). Relationships between organizational justice, identification with organization and work unit, and group-related outcomes. Organizational Behavior and Human Decision Processes, 100(2), 202– 215. https://doi.org/10.1016/j.obhdp.2005.08.007 Olsen, J.  P. (2014). Accountability and ambiguity. In M.  A. P.  Bovens, R.  E. Goodin, & T.  Schillemans (Eds.), Oxford handbook of public accountability (pp. 106–123). Oxford: Oxford University Press. Osborne, D., & Gaebler, T. (1992). Reinventing government: How the entrepreneurial spirit is transforming government. Reading, MA: Adison Wesley.

78 

C. O’KELLY AND M. J. DUBNICK

Padgett, J. F., & Powell, W. W. (2012). The emergence of organizations and markets. Princeton, NJ: Princeton University Press. Patil, S. V., Vieider, F., & Tetlock, P. E. (2014). Process versus outcome accountability. In M.  A. P.  Bovens, R.  E. Goodin, & T.  Schillemans (Eds.), Oxford handbook of public accountability (pp. 69–89). Oxford: Oxford University Press. Pellizzoni, L. (2004). Responsibility and environmental governance. Environmental Politics, 13(3), 541–565. https://doi.org/10.1080/0964401042000229034 Pinkard, T. (1999). Virtues, morality and sittlichkeit: From maxims to practices. European Journal of Philosophy, 7(2), 217–239. https://doi.org/10.1111/ 1468-0378.00083 Pollitt, C. (2003). The essential public manager. Philadelphia: Open University. Raphael, D. D. (2007). The impartial spectator: Adam Smith’s moral philosophy. Oxford: Oxford University Press. Ricoeur, P. (2000 [1995]). The concept of responsibility: An essay in semantic analysis (D. Pellaur, Trans.). In The just (pp. 11–35). Chicago, IL: University of Chicago Press. Rorty, A. O., & Wong, D. (1993). Aspects of identity and agency. In O. Flanagan & A. O. Rorty (Eds.), Identity, character and morality: Essays in moral psychology (pp. 19–34). Cambridge, MA: MIT Press. Schilbach, L., Timmermans, B., Reddy, V., Costall, A., Bente, G., Schlicht, T., et al. (2013). Toward a second-person neuroscience. Behavioral and brain sciences, 36(4), 393–414. https://doi.org/10.1017/S0140525X12000660 Schillemans, T., & Bovens, M. A. P. (2011). The challenge of multiple accountability: Does redundancy lead to overload? In H.  G. Frederickson & M.  J. Dubnick (Eds.), Accountable governance: Problems and promises (pp.  3–21). Armonk, NY: M.E. Sharpe. Schillemans, T., & Busuioc, M. (2014). Predicting public sector accountability: From agency drift to forum drift. Journal of Public Administration Research and Theory, 25(1), 191–215. https://doi.org/10.1093/jopart/muu024 Schmidtz, D. (2007). When justice matters. Ethics, 117(3), 433–459. http://doi. org/10.1086/511734. Sennett, R. (2007). The culture of the new capitalism. New Haven, CT: Yale University Press. Shalizi, C. (2012). In Soviet Union, optimization problem solves you. Retrieved August 7, 2014, from http://crookedtimber.org/2012/05/30/insovietunion-optimization-problem-solves-you/ Smith, A. (1999 [1776]). The wealth of nations books I–III. Harmondsworth: Penguin Books. Smith, A. (2009 [1759]). The theory of moral sentiments. Harmondsworth: Penguin Books. Spufford, F. (2010). Red plenty. London: Faber & Faber.

3  DISSECTING THE SEMANTICS OF ACCOUNTABILITY AND ITS MISUSE 

79

Strydom, P. (1999). The challenge of responsibility for sociology. Current Sociology, 47(3), 65–82. https://doi.org/10.1177/0011392199047003006 Suchman, M. C., & Edelman, L. B. (1996). Legal rational myths: The new institutionalism and the law and society tradition. Law & Social Inquiry, 21(4), 903–941. https://doi.org/10.1111/j.1747-4469.1996.tb00100.x Tanney, J. (2000). Playing the rule-following game. Philosophy, 75(2), 203–224. Tyler, T. R. (2010). Why people cooperate: The role of social motivations. Princeton, NJ: Princeton University Press. Tyler, T. R., & Blader, S. (2000). Cooperation in groups: Procedural justice, social identity, and behavioral engagement. Abingdon: Psychology Press. Tyler, T. R., & Blader, S. L. (2003). The group engagement model: Procedural justice, social identity, and cooperative behavior. Personality and social psychology review, 7(4), 349–361. https://doi.org/10.1207/S15327957PSPR0704_07 Van Hooft, S. (2004). Ricoeur on responsibility. Borderlands: ejournal, 3(1), 1–8. Vincent, N. A. (2010). On the relevance of neuroscience to criminal responsibility. Criminal Law and Philosophy, 4(1), 77–98. https://doi.org/10.1007/ s11572-009-9087-4 Wallace, R.  J. (1994). Responsibility and the moral sentiments. Cambridge, MA: Harvard University Press. Wallace, R. J. (2014). Practical reason. In E. N. Zalta (Ed.), The Stanford encyclopedia of philosophy. Stanford, CA: Stanford. Weber, M. (1978). Economy and society: An outline of interpretive sociology (new ed., vol. 1). Berkley, CA.: University of California Press. Wildavsky, A. (1987). Cultural theory of responsibility. In J.-E.  Lane (Ed.), Bureaucracy and public choice (pp. 283–294). London: Sage. Williamson, O. E. (1975). Markets and hierarchies: Analysis and antitrust implications. London: Macmillan.

CHAPTER 4

Transparency Assessment in National Systems Sabina Schnell

4.1   A Deeper Understanding of Transparency From the exponential spread of Freedom of Information Acts (FOIAs) since the 1990s to recent initiatives such as the Open Government Partnership, efforts to increase government transparency have proliferated over the last two decades. The popularity of ‘transparency’ is due, in part, to its multifaceted nature, and to its framing as both an intrinsic democratic value (Birkinshaw, 2006) and an instrumental value (Heald, 2006). While this multifaceted nature increases the popularity of transparency, it also makes it difficult to assess actual government transparency and to identify salient areas for reform. To help address these challenges and deepen our understanding of transparency as a democratic value, this chapter proposes a conceptual framework that combines three related yet distinct perspectives on transOriginally published as: Schnell, S. From information to predictability: transparency on the path to democratic governance. The case of Romania. International Review of Administrative Sciences 84(4), pp. 692–710. Copyright © 2016 by the Author. Reprinted by permission of SAGE Publications, Ltd. S. Schnell (*) The Maxwell School, Syracuse University, Syracuse, NY, USA e-mail: [email protected] © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_4

81

82 

S. SCHNELL

parency: (1) access to information (e.g. Meijer, 2013); (2) two-way ­communication (e.g. Coglianese, 2009); and (3) predictability in decision-making (e.g. Hood, 2006). Each perspective represents an increasingly complex interpretation, and each places increasingly strong demands on governments, citizens, and civil society organizations (CSOs). Moreover, although each perspective is discussed in the transparency literature, they are rarely, if ever, discussed in tandem. By bringing these perspectives together in a conceptual framework, this chapter provides an approach for assessing the democratic value of transparency at the macro-systemic, governmental level. To illustrate the value of this approach, the chapter uses the framework to inform a case study of Romania, a relatively young democracy with a growing focus on transparency efforts. The findings suggest that a narrow focus on access to information can obscure the broader democratic potential of transparency. If this potential is to be realized, transparency researchers and activists should consider how the principle of transparency is reflected in mechanisms for citizen consultation, as well as in the broader system of rules and procedures for public decision-making. To this end, this chapter first details the conceptual framework by exploring the three interpretations of transparency. It then uses the framework to investigate the evolution of transparency in Romania over the last decades. It concludes with recommendations for researchers and practitioners who want to strengthen the nexus between transparency and democracy.

4.2   Transparency in Government Transparency, like other governance-related concepts, has a variety of meanings that are often used inconsistently. Perhaps, the most concise definition is ‘the ability to find out what is going on inside government’ (Piotrowski & Van Ryzin, 2007, p. 306). Considerable research has focused on the micro-level of transparency (i.e. how it is enacted in day-to-day administrative decision-making), but less research has examined the macro-level of transparency (i.e. how it is codified in laws and policies, and reflected in government behavior at a systemic level), where the concept has the most power as a democratic value. This macro-level is particularly relevant for ‘newer’ democracies, where the idea of transparency as a public value and the legal and institutional infrastructure supporting it are more recent than in established democracies.

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

83

Transparency legislation is particularly important because it enshrines transparency-related rights and obligations into law at the systemic level. Such legislation includes, for example: FOIAs; asset, income, and conflict of interest disclosures for high-level officials; Administrative Procedure Acts (APAs) requiring public consultation in decision-making; Open Meetings Laws (OMLs) or sunshine laws; and whistle-blowing protection laws. Other transparency-related policies, regulations, and practices include the general publication of government statistics (Islam, 2006), elements of e-government (Wong & Welch, 2004), efforts to improve budget and fiscal transparency (De Renzio & Masud, 2011), open data initiatives (Huijboom & Van den Broek, 2011), and various mechanisms for increasing transparency and accountability in service delivery (Kosack & Fung, 2014). However, actual transparency is difficult to achieve through legislation alone. The adoption of legislation can be purely symbolic, resulting in a ‘transparency illusion,’ or only in ‘nominal’—as opposed to ‘effective’— transparency (Heald, 2006, 2012). Many transparency laws get ‘lost in implementation’ due to a lack of compliance from public agencies (Darch & Underwood, 2009; OSJI, 2006). Even pro forma compliance can be ineffective if agencies use tactics that undermine transparency while remaining within the confines of the law (Heald, 2012; Pasquier & Villeneuve, 2007). Effective transparency requires active demand from the public to ‘find out what is going on inside government,’ and the capacity and willingness of public agencies to comply not only with the letter, but also with the spirit, of the laws (Darch & Underwood, 2009; Pasquier & Villeneuve, 2007). Therefore, before effective implementation can take place, agencies, public officials, CSOs, and citizens have to understand the meaning and purposes of transparency, and its democratic potential. As noted earlier, this can be difficult given the multifaceted nature of the concept. To address this challenge and to help scholars and practitioners better assess the democratic value of transparency, the next sections present a conceptual framework that unpacks three different, but related, perspectives on transparency: access to information; two-way communication; and predictability. 4.2.1  Transparency as Access to Information The most basic understanding of transparency is ‘not hiding’ information, or, in a more ambitious formulation, ‘lifting the veil of secrecy’ (Roberts, 2006). Coglianese (2009) calls this ‘fishbowl transparency’ to highlight its

84 

S. SCHNELL

passive dimension and its focus on already-existing information. A more active interpretation calls for measures that improve access to information, whether through legal provisions like the ‘obligation to publish’ in FOIAs or notice obligations in APAs, or through other forms of proactive disclosure, such as open data, information portals, and communication officers. Measures that ‘force’ the release of information, such as ‘leaking’ or whistle-­ blower protection, also increase access to information (Meijer, 2014). This interpretation of transparency can be a powerful democratizing element if based on the idea that ordinary citizens have the right to access government information (Ackerman & Sandoval-Ballesteros, 2006). Yet, if the result is only access to ‘raw’ government information, its democratizing potential is limited. Large amounts of decontextualized information are difficult to interpret and require high processing and interpretation capacity from specialized intermediaries, such as the press, CSOs, or specialized institutions (Heald, 2012; Roberts, 2012). Moreover, various actors may use the information selectively to pursue their goals and even conceal important facts or intentions (Heald, 2012; O’Neill, 2006). If this is the case, simply granting access to information does not improve transparency, as citizens cannot really ‘find out what is going on inside government’ (Piotrowski & Van Ryzin, 2007, p. 306). In addition to the availability and accessibility of information, more complex definitions also emphasize its comprehensibility, completeness, and accuracy (Heald, 2012). The demand is not just for more information, but for better information (e.g. IMF, 1999, 2007). However, even these more demanding interpretations of transparency require only one-­ way action, from the government to the public, treating ‘information as detachable from communication’ (O’Neill, 2006, p. 81). This limits the potential for effective transparency if ‘huge quantities of information are… made public in order to meet transparency requirements, but a great deal of it is not actually communicated to anyone’ (O’Neill, 2006, p. 81). 4.2.2  Transparency as Two-Way Communication A second perspective on transparency focuses on two-way communication. For example, Coglianese (2009, p.537) advocates for ‘reasoned’ transparency, where the government goes beyond disclosing information to explaining the reasoning behind its decisions and actions. Such explanations require more than just ‘lifting the veil of secrecy’; they require substantive argumentation based on normative principles and empirical

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

85

evidence (Coglianese, 2009). Moreover, this substantive argumentation cannot simply be top-down, there must be an exchange of arguments to achieve a common understanding (Mercier & Landemore, 2012). Thus, ‘reasoned transparency’ requires two-way communication, and is reflected in the broader concept of open government, whose varying interpretations couple access to information with participation, collaboration, responsiveness, and similar values (e.g. McDermott, 2010; Meijer, Curtin, & Hillebrandt, 2012). All these imply some ‘give and take’ or exchange of arguments between governments and citizens. Examples of this perspective on transparency include notice-and-consultation requirements in OMLs and APAs (Piotrowski & Borry, 2010), alongside a variety of other so-called ‘transparency and accountability initiatives’ (Kosack & Fung, 2014). Transparency as two-way communication is more complex and demanding than ‘just’ increasing access to information. In addition to informing citizens about, and providing substantive explanations for, already-made decisions (ex post output transparency in Heald’s (2006) terms), it also requires informing them about ongoing decisions (real-time event transparency) and providing space for dialogue with the government. Two-way communication also has more potential for democratic development. It not only increases the ability of citizens to find out what is going on inside government; it also facilitates a better understanding of what is going on and why, and empowers citizens to use this understanding to shape government decisions more directly. However, limiting our understanding of transparency to this perspective also has its shortcomings. A more ambitious interpretation of transparency considers not only the opportunity for citizens to know why certain decisions are made, but also the ability to understand how decisions are made—both retrospectively and prospectively. The idea of transparency as predictability reflects such a view. 4.2.3  Transparency as Predictability By demanding clear reasoning behind public decisions, transparency as communication puts the emphasis on their substantive legitimization. Laws and regulations provide an alternative, procedural, basis for the legitimization of public decisions (Prechal & De Leeuw, 2007). These procedures limit the scope for arbitrary—hence non-transparent—state actions and decisions, thus increasing the predictability of administrative behavior.

86 

S. SCHNELL

The perspective of transparency as predictability reflects this logic, emphasizing decision-making according to clear and publicly known or knowable rules. This interpretation is the most complex and demanding, and also the least well researched. This is, in part, because predictability is the result not of ‘specialized’ transparency legislation, but rather of the overall body of laws that regulate decision-making and implementation, as well as of compliance with these by public authorities. Transparency as predictability goes beyond access to information and two-way communication to focus on the nature of the system of governance itself. For example, Hood (2006, p. 5, emphasis added) states that ‘transparency denotes government according to fixed and published rules, on the basis of information and procedures that are accessible to the public, and (in some usages) within clearly demarcated fields of activity.’ Transparency as predictability is linked to legal or procedural definitions of accountability, that is, public officials acting in accordance with given rules. Transparent administrations are those that behave in accordance with formal—and thus publicly known—rules, as opposed to informal— and thus ‘non-transparent’—practices. Even more importantly, this perspective has important implications for democratization because it embraces a substantively different view of fairness. In the access to information and two-way communication perspectives, transparency is a prerequisite for judging fairness—lack of transparency creates the suspicion of wrongdoing. However, in the predictability perspective, transparency becomes an element of fairness. It highlights the importance of equality (i.e. treating like cases alike) and impartiality (i.e. objective decision-making) as fundamental principles of procedural justice and rational-legal governance, which are, in turn, key foundations for functioning democracies (Prechal & De Leeuw, 2007; Rothstein & Teorell, 2008). In sum, the framework outlined here suggests three main interpretations of transparency: access to information; two-way communication; and predictability. Each of these is increasingly complex in terms of the democratic values they represent, and increasingly demanding in terms of the capacity required to translate them into practice. Guidelines on ‘good practices of transparency’ in different policy and administration areas implicitly include all these perspectives—in terms of the information that has to be made available (access to information), explanations that have to be given (communication), and the clarity and publicity of rules and regulations (predictability) (e.g. IMF, 2007; OMB, 2009).

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

87

Table 4.1  Perspectives of transparency Perspective of transparency

Access to information

Content of State actions and Transparency decisions are clear: citizens are informed about what public institutions are doing Related Ex post event concepts transparency (Heald, 2006, 2012); fishbowl transparency (Coglianese, 2009) Legislative FOIAs, open data tools, policies provisions, the publication of official statistics, etc. Transparency Official responses to in practice information requests; the quality, comprehensiveness, comprehensibility, and accessibility of official data and information

Two-way communication Predictability Reasons for official decisions are clear: public officials explain decisions and engage in dialogue with citizens Real-time process transparency (Heald, 2006, 2012); reasoned transparency (Coglianese, 2009) OMLs, notice, and consultation provisions in APAs, public participation, and social accountability initiatives Actual public consultation and participation in decision-making

Procedures for making decisions are clear (transparent)

Process transparency (Heald, 2006, 2012) can be seen as systemic transparency (good governance / rule of law) Body of laws regulating decision-making and implementation— clarity of de jure system of governance Compliance with the body of laws regulating decision-making and implementation; clarity of de facto system of governance and resulting predictability of decision-making

Table 4.1 summarizes: the three interpretations of transparency and related concepts from the literature; the typical policies and legislative acts through which they are codified; and their reflection in broader patterns of political and administrative behavior. Together, the three perspectives provide a useful framework for exploring government-wide transparency. To illustrate this, the next sections apply the framework to the case of Romania.

4.3   Case Study: Government Transparency in Romania Romania, a relatively young democracy, is a particularly relevant case for showcasing how the framework can be used. The former regime was among the most repressive ones in the former communist bloc. When democratization began in 1990, Romania had weak democratic institutions and values, including an entrenched tradition of secrecy, and a weak

88 

S. SCHNELL

understanding of the role of transparency as a public value. While challenges remain, Romania has achieved significant progress in democratization over the last 25 years. Thus, it is particularly suitable for applying the conceptual framework to investigate the evolution of transparency as a democratic value. The case-study research question is thus: How have the three perspectives on transparency evolved in law and in practice as democracy deepened in Romania? The focus is on cross-cutting transparency-related legislation that affects both the central (executive) and local governments. Data were collected in the autumn of 2011 and spring of 2012 from two sources: public documents on transparency in Romania; and key informant interviews. The document review included: (1) legislation and official government strategies, reports, and statements; (2) statements and reports from CSOs and think tanks engaged in transparency policy in Romania; (3) reports from international governmental and non-­ governmental organizations; and (4) media reports and news articles on transparency from leading Romanian national newspapers. The document analysis was complemented with semi-structured interviews, carried out between November 2011 and February 2012. Using a snowball sampling technique, interviewees were selected from among current or former government officials (six interviews, coded G1 through G6) and civil society actors (12 interviews, coded C1 through C12) involved in the development and implementation of transparency legislation. Three main interview questions informed the study: (1) ‘What are the main laws and policies for advancing government transparency?’; (2) ‘What is the current status of their implementation?’; and (3) ‘What are the major challenges that these policies face?’ Based on these sources, the case study first explains the general framework for the evolution of transparency in Romania, and then investigates how the three perspectives are reflected in Romanian law and practice. 4.3.1  General Framework and Evolution of Transparency in Romania Article 31 of the 1991 Romanian Constitution enshrines the right to information as a fundamental citizenship right, but a law operationalizing this right was not adopted until 2001. This indicates that while acknowledged as a democratic value in theory, transparency was not a key concern of the first post-communist governments in Romania. Instead, transpar-

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

89

ency rose up the political agenda as part of the anti-corruption drive in the late 1990s and early 2000s. In Romania, as in most countries, there is no ‘transparency policy’ per se, in the sense of a deliberate government strategy or set of related actions and goals (C1, C2, C4, C6, C7, C8, C9, G4, G5). Rather, there are a few key transparency laws. The most important ones are the 2001 ‘Law on Free Access to Public Interest Information’ (FOIA) and the 2003 ‘Law on Decisional Transparency’ (OML). These laws clearly reflect the first two interpretations of transparency: access to information and two-way communication. Moreover, these two laws introduce an element of transparency as predictability in how government agencies interact with citizens by specifying the rules, procedures, and boundaries of transparency. As one interviewee put it, ‘both laws were a reaction to civil society pressure against chaotic decision-making by government, Parliament, the political class, and the public administration’ (C6). For example, civil society activists who pushed for a FOIA critiqued not the absence of public information, but the fact that access to it was erratic and determined by ‘connections,’ bribery, and leakage of information to discredit opponents (cf. Mungiu-Pippidi, 2001). While well-connected parts of the media were able to obtain ‘scandalous’ information, routine government information useful for citizens, such as parliamentary votes, budget data, property records, statistics, and so on, was missing or hard to obtain (Mungiu-Pippidi, 2001). In addition to the two core transparency laws, other government strategies also include measures that reflect the three perspectives of transparency. Romania’s anti-corruption strategies (GoR, 2001, 2005, 2008, 2012) emphasize the need to increase access to information, strengthen consultation requirements in regulatory processes, and provide clear, streamlined, and predictable regulations and administrative procedures. Likewise, the 2008 ‘Strategy for Better Regulation’ includes measures to increase consultation (and thus transparency) in decision-making (G4), and Romania’s Open Government Partnership (OGP) Action Plans focus heavily on improving access to information via strengthening open data systems (GoR, 2011, 2014). As noted earlier, however, legislation is necessary but insufficient for achieving effective transparency. To realize their democratic potential, transparency laws and provisions need to be consistently implemented, and the principles they embody need to be followed in practice. The next sections investigate whether this is the case—both in terms of compliance with FOIA and OML, and in terms of broader patterns of access to information, consultation, and predictability in decision-making.

90 

S. SCHNELL

4.3.2  Transparency as Access to Information The adoption of an FOIA, following an intense campaign by CSOs, was considered a breakthrough for democratic values in Romania (Mungiu-­ Pippidi, 2001). After the government adopted the implementation norms in 2002, FOIA compliance rates and response times improved markedly, especially between 2002/2003 and 2006/2007 (APD and TI Romania, 2007a; also C1). Romania’s FOIA also performed well in international comparison. In 2006, it had among the highest compliance rates and consistency of answers out of 14 countries studied (OSJI, 2006). The use of the FOIA is also substantial. In 2008, Romania ranked sixth internationally for annual FOIA requests per 100,000 inhabitants (Vleugels, 2009). While some observers report a decline in FOIA use and compliance after 2008 (GIR, 2008, 2010; also C1 C8), the FOIA seems to have been institutionalized and routinized to a significant degree (World Bank, 2012; also C10, G2). This is not to say that the FOIA functions seamlessly. However, lack of uniform compliance across public institutions and types of requests (CJI & IPP, 2009; also C12) is not unique to Romania (OSJI, 2006). Even in established democracies with longer FOIA histories, public agencies have many strategies at their disposal to avoid compliance (Pasquier & Villeneuve, 2007). Furthermore, in a context of low administrative capacity, problems such as lack of training, lack of financial and human resources, and weaknesses in internal communication and information management systems create additional hurdles for implementation and compliance— especially at the local level and in rural areas (Dragoş, Neamţu, & Cobârzan, 2012). Beyond compliance, the more profound question is whether the FOIA has generated a shift in how public administrators relate to citizens. This is difficult to ascertain due to a lack of data on the democratic values of public servants. Inconsistency in FOIA implementation has often been attributed to a ‘culture of opacity’ (C2, G1, G3, G4) and a tendency toward secrecy and reliance on informal, personalized communication (CJI & IPP, 2009). Anecdotal evidence also suggests that paternalist, top-down attitudes persist among some public officials, who see citizens as ‘subjects’ rather than ‘owners’ of government information. For example, in 2004, public institutions asked for a justification for 70% of the FOIA requests placed by CSOs, even though such justification was not required by law (APD & IRIS, 2004).

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

91

Yet, there are signs of improvement. In a 2007 follow-up survey, requests for justification were no longer a problem (APD & TI Romania, 2007a), and, as noted, routine FOIA compliance functions relatively well. Perhaps the most illustrative story comes from a local civil society activist (C10). As he explained, the initial public reaction of local authorities to a FOIA request was confusion, fear, and resistance: he had to wait outside the building while the local official, who doubted such a law existed, looked it up and got approval from his supervisor to communicate the information. Yet, by 2011, local authorities ‘had gotten used to it,’ and answering simple and non-sensitive FOIA requests had become a routine activity. While FOIA led to an improvement in access to ‘raw’ government information, there seems to be less progress in proactively publishing relevant, comprehensive, and clear information in a number of policy areas (G2). Budget transparency exists in theory, but the information released is difficult for citizens to use (GIR, 2008). Despite the obligation to publish all regulation in the Official Gazette, only 52% of legal acts were published in 2007 (APADOR-CH & SAR, 2008). Even the OGP action plan shows significant weaknesses: only five out of 15 commitments of the first action plan were specific, relevant, transformative, and completed on schedule (Open Government Partnership—Independent Reporting Mechanism, no date). 4.3.3   Transparency as Two-Way Communication The ‘twin’ transparency law to FOIA is the OML, which requires public institutions to: (1) publish information on legal acts under development; (2) allow interested parties and citizens to formulate comments and proposals; (3) organize public hearings; and (4), since 2010, offer reasons for rejecting proposals made during the consultation process. At the time of its adoption, the OML represented a significant step forward from previous legislation, which forbade public employees from disclosing any information during the drafting process (Ristei, 2010). Surveys of OML implementation show low compliance over time, both from central and local-level authorities (APADOR-CH, 2007; APD & TI Romania, 2007b; Dragoş et al., 2012). In some cases, the quality of the local-level reports of OML compliance was so low that CSOs described it as showing ‘outright contempt for the law and the citizens’ (APADOR-CH, 2007, p.  40). CSO activists were sometimes denied access to meetings that were supposed to be public (APADOR-CH, 2007). Citizens rarely

92 

S. SCHNELL

made comments and suggestions on proposed local laws or decisions, and even when they did, local authorities rarely took these into account (APADOR-CH, 2007; Dragoş et al., 2012). Interviews with CSO and government representatives confirmed that the OML is only weakly used in practice, not just because of resistance from public agencies, but also because the demand side is weak (C2, C9, G5). At the local level, especially outside of the capital city and a few other urban centers, few CSOs are capable of representing citizens and engaging in public decision-making processes (C1, C2). Even where such organizations exist, they have difficulties mobilizing the public to participate (C2, C10). Even at the central level, one of the most enduring criticisms of the Romanian government is that it acts in haste and does not allow enough public consultation and debate on important legislative measures (APADOR-CH, 2012; ARC, 2012; also C2, C6, C11). The lack of consultations has been criticized not only by CSOs, but also by ‘technocrats’ concerned with the quality of decision-making (G4, G5). While government agencies comply relatively well with formal requirements for publishing draft legislation on their websites (G5), they rarely engage in consultations in earlier stages of policy development, such as problem formulation or assessment of policy options (G4, G5). The top-down decision-­making style is aggravated by a lack of policy analysis and impact assessment, which further limits the potential for substantive debates about policy proposals (Mungiu-Pippidi, 2010; also G4). In sum, while the intent behind the Romanian OML was to promote transparency as two-way communication, its democratic potential has not been fully realized. Not only is the implementation of the OML weaker than that of the FOIA, but neither public authorities nor citizens seem to be strongly invested in putting the principle of transparency as communication into practice. The result is a lack of communication in the development of legislation (C6, G4, G5). As argued in the next section, this also reduces the predictability of decision-making. 4.3.4  Transparency as Predictability As noted earlier, both the FOIA and OML lay out procedural requirements, and thus introduce the concept of transparency as predictability. Indeed, increasing predictability in decision-making was also among the central reasons for the adoption of the OML (C6, C11). As one inter-

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

93

viewee pointed out, if more consultation were carried out during the development of legislation, there would be less need for frequent revisions of legislation after adoption (G5). A comment from a Romanian businessman sums up this challenge well: ‘The problem is not just that the laws change…. It is that the government never explains itself. If you want people to endure hardship, you have to involve them in the decision making process.’ (Dietrich, 2000, p. 20). Frequent, unexplained changes in laws—and thus lack of transparency as predictability—have been highlighted as a key overall problem of public decision-making in Romania (Mungiu-Pippidi, 2010). However, even in areas where laws are relatively stable and clear, administrative behavior is marked by unpredictability. For example, as noted, even compliance with the two main transparency laws themselves—the FOIA and OML—is inconsistent and dependent on both the particular public agency and specific individuals involved. Beyond specific legislation, the high level of corruption in Romania is itself an expression of inconsistent compliance with the overall legislative framework regulating administrative behavior. As Mungiu-Pippidi (2003, 83, emphasis added) argues, Abusive treatment by the various state administrations is not universal. It is simply arbitrary and unpredictable, as summed up by the answer to the question ‘How often do you have to bribe?’ To this, 53 per cent of Romanians … answered: ‘Depends on the civil servant you encounter.’

Thus, corruption itself is an expression of unpredictability in the behavior of public officials, and a form of ‘non-transparency.’ The arbitrary and non-transparent nature of decision-making is also visible in the often-criticized politicization of personnel policies, especially for top- and middle-level management (Ioniţa & Freyberg-Inan, 2008; Mungiu-Pippidi, 2010). Some reform proposals emphasize the need not only to limit political appointments in the public sector, but to do so in consultation with political parties so that this is ‘supported by everyone openly and transparently, and regulated accordingly’ (Tudorache in Pantazi 2016, emphases added). The goal is to ensure compliance with regulations in order to achieve ‘a level of predictability that allows the administration to function well’ (Tudorache in Pantazi 2016, emphasis added). Another area that illustrates well both the progress achieved on transparency as predictability, and the challenges that still exist from this per-

94 

S. SCHNELL

spective, is the relationship between local and central government. As part of the transition process to democracy, the roles, responsibilities, and allocation of funds between central and local government have been progressively clarified through a series of laws and administrative acts. Ionit¸ă (2004, p. 25, emphasis added) argues that in 1998/1999, ‘new legislation dealing with local finance instituted for the first time in Romania the system of resource sharing based on automatic formulas, thus making the local budgetary process more autonomous, transparent and predictable.’ Nevertheless, discretionary behavior is still widespread. Key decisions about the allocation of equalization transfers between counties and local councils are often made in a non-transparent manner, and the impact of clientelism and patronage is still high (Ionit¸ă, 2005). Even the term ‘local barons’ (local political and economic power-holders), with its semantic reminiscence of feudalism, highlights that the predictability embodied in rational-legal governance is still weak in Romania. In sum, while there have been improvements over the last decades, transparency as predictability seems to be the least understood and least practiced among public officials. This is not particularly surprising given that this perspective is the most complex and challenging to implement. Thus, despite the fact that various laws and regulations have been established to guide decision-making, decision-making practices often ­ remain arbitrary and unpredictable. In conclusion, Romania has seen some significant progress on transparency over the last decades. Transparency—in its three interpretations—has gained a more prominent place in public discourse, and is being prescribed through an increasing number of legislative acts and provisions. The adoption of the FOIA and OML represented a significant break from the past. However, challenges remain. Transparency as access to information is the most established, but administrative practice centers more on routine FOIA compliance than on the proactive publication of high-quality information. Transparency as two-way communication is enshrined in the OML, but public officials rarely embrace public consultation. Transparency as predictability is the least well established, and decision-making is often arbitrary. Corruption, civil service politicization, and clientelistic allocations of funds between levels of government are broader reflections of the weak embeddedness of transparency as predictability in the Romanian political and administrative system. Table 4.2 summarizes the three perspectives on transparency in Romanian law and practice.

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

95

Table 4.2  Transparency in Romania: Key legislation and patterns of behavior Perspective

Access to information

Two-way communication

Predictability

Romanian Interpretation

Institutional transparency (codified through FOIA)

Decisional transparency (codified through OML)

Implementation of core transparency legislation

Increasing compliance with the FOIA over time, some use by citizens / CSOs.

Low(er) compliance with OML, difficulty of mobilizing public to participate

Patterns of transparency in decision making and implementation

Weak transparency in other areas (e.g. budget transparency, open data), limited quality, comprehensiveness, and comprehensibility of information released

Lack of transparency and consultation in the development of national legislation, many public officials do not see a reason to explain their decisions, let alone consult the public or interested parties

No explicit translation. Implicit: progressive clarification of the roles, rights, and responsibilities of public institutions Not applicable / some compliance with legislation developed in post-communist / transition times BUT… (see the next cell) Widespread discretionary behavior in many institutional and policy arenas (e.g. personnel policy, financial transfers between levels of government, corruption in general, local barons)

4.4   Discussion and Conclusion The previous sections provide a number of insights. First, they illustrate that access to information, two-way communication, and predictability represent three related, but distinct and increasingly complex and demanding, perspectives on transparency. Second, they show how differentiating among these interpretations can deepen our understanding of how transparency is both preached and practiced. Finally, they reaffirm the limitations of trying to achieve effective transparency through legislation alone. Effective transparency is likely to remain elusive unless public officials, CSOs, and citizens accept it as a fundamental democratic principle and develop the skills and capacities to supply and/or demand it. This is particularly challenging in transitioning or developing countries with a relatively recent history of democracy, where transparency provisions are new(er).

96 

S. SCHNELL

The framework and the findings of the case study also have implications for advocates of greater transparency as a way to strengthen democratic governance. They suggest that access to information is a necessary but insufficient condition for effective transparency, and that improved two-­ way communication and predictability are also needed. Measures to increase transparency as two-way communication include OMLs, sunshine laws, or notice-and-consultation provisions in administrative decision-­ making. Such measures must also be accompanied by efforts to strengthen the communication and consultation capacity of public authorities, CSOs, and citizens. Transparency as predictability is perhaps the hardest to support through specific measures. It is largely achieved through the progressive definition of the roles and responsibilities of public institutions, including rules for decision-making, accompanied by measures to increase compliance with legislation and reduce informality in the public sector. That said, ­transparency as predictability is a broader feature of a functioning rationallegal system of governance, and can only emerge as part of the general process of political, economic, and administrative development. Still, understanding the principle of transparency as predictability can help officials and activists also strengthen its practice. The framework and the case study also provide directions for further research. First, they illustrate the value of combining multiple perspectives on transparency. Normatively, such a definition captures the richer essence of transparency compared to a narrow focus on access to information. This is especially important when discussing the democratic importance of transparency. Considering whether the reasons and procedures for making decisions are ‘visible’ and ’comprehensible’ to the public can shift the debate from a passive—and easily manipulated or ‘gamed’—form of transparency, to one that places more emphasis on how transparency facilitates a better understanding of what the government does and how it does it. Second, from an empirical perspective, they highlight the need for more research on transparency at the country level, in addition to the current focus on organizational transparency. While there are a number of success stories of individual transparency initiatives in developing countries, as well as some of failures (Kosack & Fung, 2014), there is less evidence on the impact of systemic transparency measures, such as cross-cutting or sector-specific transparency legislation (Gaventa & McGee, 2013). Yet, it is unlikely that individual successes are sustainable if the broader political and administrative system does not reflect the value of transparency.

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

97

Exploratory in nature, the case study generates some preliminary questions and hypotheses for further research on macro-level transparency and its role in advancing the overall quality of governance. The findings show that the three interpretations of transparency are closely intertwined, and that progress on one depends on progress on the others. Transparency as access to information is perhaps the ‘easiest’ to achieve. Opening up decision-­making processes and behaving according to ‘clear and publicly known rules,’ are more demanding—both for government and for citizens. Investigating when, whether, and how progress on all three dimensions happens across countries is challenging, as cross-national country-level data on the three perspectives is limited, especially regarding de facto as opposed to de jure transparency. However, applying the framework to other country-level case studies can help overcome the limitations of cross-national data and give us a richer picture of how transparency evolves as systems of governance change. This can also help move forward the research agenda on how ‘large forces’ shape the evolution of public administration (Roberts, 2013) beyond developed countries and established democracies. Acknowledgments  The author would like to thank Tina Nabatchi, Jennifer Brinkerhoff, and Gjalt de Graaf for their comments and suggestions.

References Ackerman, J. M., & Sandoval-Ballesteros, I. E. (2006). The global explosion of freedom of information laws. Administrative Law Review, 58, 85. APADOR-CH (Asociaţia pentru Apaˇrarea Drepturilor Omului în România— Comitetul Helsinki). (2007). Transparenta decizionala in administratia publica in Romania anului 2007—Context, constatari si perspective. Bucharest, Romania: APADOR-CH. APADOR-CH (Asociaţia pentru Apaˇ rarea Drepturilor Omului în România— Comitetul Helsinki). (2012). Ce a aflat premierul Ungureanu despre transparenţa instituţionaloǎ. Retrieved April 15, 2016, from http://www. apador.org/blog/ce-a-aflat-premierul-ungureanu-despretransparenta-institutionala/. APADOR-CH (Asociaţia pentru Apaˇrarea Drepturilor Omului în România— Comitetul Helsinki), & & SAR (Societatea Academica Romana). (2008). Publicarea monitoarelor oficiale judetene. Bucharest, Romania: APADOR-CH and SAR.

98 

S. SCHNELL

APD, & IRIS. (2004). Monitorizarea modului de aplicare a Legii 544/ 2001. Bucharest, Romania: APD and IRIS. APD, & TI Romania. (2007a). Raport privind liberul acces la informţiile de interes public În Romania—analiza comparative 2003–2007. Bucharest, Romania: APD and TI Romania. APD, & TI Romania. (2007b). Transparenta decizionala în România anului 2007. Raport de monitorizare cu privire la aplicarea si respectarea Legii 52/2003 privind transparenta actului decizional la nivelul administratiei publice. Bucharest, Romania: APD and TI Romania. ARC (Alianta pentru o Romanie Curata). (2012). Pentru o Romanie curate!. Paper presented at the Semnati aici Carta Alba a Bunei Guvernari 5 February. Birkinshaw, P. J. (2006). Transparency as a human right. In C. Hood & D. Heald (Eds.), Transparency, The key to better governance? (pp. 47–58). Oxford: Oxford University Press. CJI (Centrul pentru Jurnalism Independent), & and IPP (Institutul pentru Politici Publice). (2009). Informaţia de interes public—un drept fundamental şi o responsabilitate pe moaˇsuraˇ. Bucharest, Romania: CJI and IPP. Coglianese, C. (2009). The transparency president? The Obama administration and open government. Governance: An International Journal of Policy, Administration, and Institutions, 22(4), 529–544. https://doi. org/10.1111/j.1468-0491.2009.01451.x Darch, C., & Underwood, P. G. (2009). Freedom of information and the developing world: The citizen, the state and models of openness. New York, NY: Elsevier. Dietrich, M. K. (2000). Legal and judicial reform in Central Europe and the former Soviet Union-voices from five countries. Washington, DC: The World Bank. Dragoş, D. C., Neamţu, B., & Cobârzan, B. V. (2012). Procedural transparency in rural Romania: Linking implementation with administrative capacity? International Review of Administrative Sciences, 78(1), 134–157. https://doi. org/10.1177/0020852311430283 Gaventa, J., & McGee, R. (2013). The impact of transparency and accountability initiatives. Development Policy Review, 31(s1). https://doi.org/10.1111/dpr.12017 Global Integrity Report. (2008). Global integrity report. Romania. Retrieved July 6, 2016, from https://www.globalintegrity.org/research/reports/globalintegrity-report/global-integrityreport-2008/gir-scorecard-2008-romania/ Global Integrity Report. (2010). Global integrity report. Romania. Retrieved July 6, 2016, from https://www.globalintegrity.org/global/the-global-integrityreport-2010/romania/. GoR (Government of Romania). (2001). Program National de Prevenire a Coruptiei. Bucharest, Romania: Government of Romania. GoR (Government of Romania). (2005). Strategia nationala anti-coruptie pe perioada 2005–2007. Bucharest, Romania: Government of Romania.

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

99

GoR (Government of Romania). (2008). HOTARARE nr. 609 din 4 iunie 2008 pentru aprobarea strategiei nationale anticoruptie privind sectoarele vulnerabile si administratia publica locala pe perioada 2008–2010. Bucharest, Romania: Government of Romania. GoR (Government of Romania). (2011). Open government partnership national action plan. Bucharest, Romania: Government of Romania. GoR (Government of Romania). (2012). Strategia nationala anticoruptie pe perioada 2012–2015. Bucharest, Romania: Government of Romania. GoR (Government of Romania). (2014). Open government partnership. Romania national action plan. July 2014–June 2016. Bucharest, Romania: Government of Romania. Heald, D. (2006). Varieties of transparency. In C.  Hood & D.  Heald (Eds.), Transparency, The key to better governance? (pp.  25–43). Oxford: Oxford University Press. Heald, D. (2012). Why is transparency about public expenditure so elusive? International Review of Administrative Sciences, 78(1), 30–49. https://doi. org/10.1177/0020852311429931 Hood, C. (2006). Transparency in historical perspective. In C. Hood & D. Heald (Eds.), Transparency, The key to better governance? (pp. 2–23). Oxford: Oxford University Press. Huijboom, N., & Van den Broek, T. (2011). Open data: An international comparison of strategies. European Journal of ePractice, 12(1), 4–16. IMF (International Monetary Fund). (1999). Code of good practices on transparency in monetary and financial policies: Declaration of principles. Washington, DC: IMF. IMF (International Monetary Fund). (2007). Manual on fiscal transparency. Washington, DC: IMF. Independent reporting mechanism—OGP commitments and actions database beta. (n.d.). https://docs.google.com/spreadsheets/d/1BA3QySgIrawbuHb lx0EbSCQyNSIu2mLnSaaIYgykMig/edit#gid¼1253091469 Ioniţa, A.  L., & Freyberg-Inan, A. (2008). Public administration reform in the context of European integration: Continuing problems of the civil service in Romania. Southeast European and Black Sea Studies, 8(3), 205–226. https:// doi.org/10.1080/14683850802338403 Ionit¸ă, S. (2004). Romanian local governments. The unfinished reform. Romanian Journal of Political Science, 4(1), 24–36. Ionit¸ă, S. (2005). Money for our people? Decentralisation and corruption in Romania: The cases of the equalisation, infrastructure and pre-university education funds. Public Administration and Development, 25(3), 251–267. https://doi.org/10.1002/pad.365

100 

S. SCHNELL

Islam, R. (2006). Does more transparency go along with better governance? Economics & Politics, 18(2), 121–167. https://doi.org/10.1111/j.14680343.2006.00166.x Kosack, S., & Fung, A. (2014). Does transparency improve governance? Annual Review of Political Science, 17, 65–87. http://doi.org/10.1146/annurevpolisci-032210-144356. Marea reforma in administratie: primele detalii despre calendar si obiective. Interviu cu Dragos Tudorache, mina dreapta a premierului Ciolos in guvern. (2016, 21 January). HotNews.ro. McDermott, P. (2010). Building open government. Government Information Quarterly, 27(4), 401–413. https://doi.org/10.1016/j.giq.2010.07.002 Meijer, A. J. (2013). Understanding the complex dynamics of transparency. Public Administration Review, 73(3), 429–439. https://doi.org/10.1111/puar.12032 Meijer, A.  J. (2014). Transparency. In M.  A. P.  Bovens, R.  E. Goodin, & T.  Schillemans (Eds.), The Oxford handbook public accountability (pp.  507– 524). Oxford: Oxford University Press. Meijer, A.  J., Curtin, D., & Hillebrandt, M. (2012). Open government: Connecting vision and voice. International Review of Administrative Sciences, 78(1), 10–29. https://doi.org/10.1177/0020852311429533 Mercier, H., & Landemore, H. (2012). Reasoning is for arguing: Understanding the successes and failures of deliberation. Political Psychology, 33(2), 243–258. https://doi.org/10.1111/j.1467-9221.2012.00873.x Mungiu-Pippidi, A. (2001). Coalition for transparency-The passage of the Freedom Information Act (FOIA) in Romania case study. Retrieved March 31, 2013, from www.sar.org.ro/files_h/docs/advocacy_foia/7_case_study.pdf Mungiu-Pippidi, A. (2003). Culture of corruption or accountability deficit? East European Constitutional Review, 12(1), 80–85. Mungiu-Pippidi, A. (2010). A case study in political clientelism: Romania’s policy-­ making mayhem. SSRN, OMB (Office of Management and Budget). (2009). Memorandum for the heads of executive departments and agencies. Open government directive. Washington, DC: Executive Office of the President. O’Neill, O. (2006). Transparency and the ethics of communication. In C. Hood & D.  Heald (Eds.), Transparency, The key to better governance? (pp.  75–90). Oxford: Oxford University Press. OSJI (Open Society Justice Initiative) (2006). A survey of access to information laws and practices in 14 countries: Transparency & silence. In Justice in action series. New York, NY: Open Society Institute. Pasquier, M., & Villeneuve, J.-P. (2007). Organizational barriers to transparency: A typology and analysis of organizational behaviour tending to prevent or restrict access to information. International Review of Administrative Sciences, 73(1), 147–162. https://doi.org/10.1177/0020852307075701

4  TRANSPARENCY ASSESSMENT IN NATIONAL SYSTEMS 

101

Piotrowski, S. J., & Borry, E. (2010). An analytic framework for open meetings and transparency. Public Administration and Management, 15(1), 138. Piotrowski, S. J., & Van Ryzin, G. G. (2007). Citizen attitudes toward transparency in  local government. The American Review of Public Administration, 37(3), 306–323. https://doi.org/10.1177/0275074006296777 Prechal, S., & De Leeuw, M. (2007). Dimensions of transparency: The building blocks for a new legal principle? Review of European Administrative Law, 1(1), 51–62. https://doi.org/10.7590/REAL_2007_00_03 de Renzio, P., & Masud, H. (2011). Measuring and promoting budget transparency: The open budget index as a research and advocacy tool. Governance: An International Journal of Policy, Administration, and Institutions, 24(3), 607– 616. https://doi.org/10.1111/j.1468-0491.2011.01539.x Ristei, M. (2010). The politics of corruption: Political will and the rule of law in post-communist Romania. Journal of Communist Studies and Transition Politics, 26(3), 341–362. https://doi.org/10.1080/13523279.2010.496324 Roberts, A. (2006). Blacked out: Government secrecy in the information age. Cambridge: Cambridge University Press. Roberts, A. (2012). WikiLeaks: The illusion of transparency. International Review of Administrative Sciences, 78(1), 116–133. https://doi.org/ 10.1177/0020852311429428 Roberts, A. (2013). Large forces: What’s missing in public administration: Alasdair Roberts. Rothstein, B., & Teorell, J. (2008). What is quality of government? A theory of impartial government institutions. Governance: An International Journal of Policy, Administration, and Institutions, 21(2), 165–190. https://doi. org/10.1111/j.1468-0491.2008.00391.x Vleugels, R. (2009). Overview of all 90 FOIA countries & territories. Fringe Special, 1–22. Wong, W., & Welch, E. (2004). Does e-government promote accountability? A comparative analysis of website openness and government accountability. Governance: An International Journal of Policy, Administration, and Institutions, 17(2), 275–297. https://doi.org/10.1111/j.1468-0491.2004.00246.x World Bank. (2012). Implementing right to information. A case study of Romania. Washington, DC: World Bank.

CHAPTER 5

Integrity and Quality in Different Governance Phases Leo Huberts

5.1   Governance The concept of ‘governance’ has become very popular in many disciplines that study power, authority, politics, policy, administration, government, management, and organization. In addition to those in politics and public administration, many other actors and organizations have become involved in addressing public problems and challenges. In this book—and in this chapter—governance is seen as ‘authoritative policy making on collective problems and interests, and implementation of these policies’ (Huberts, 2014, p.  68). Governance is about collective problems and interests being addressed, possibly by one actor but also by a network of public and private actors. The term ‘authoritative,’ refers to the support offered and legitimization by the organization or community whose problems and interests are addressed (in line with Easton’s (1953) famous definition of politics as the ‘authoritative allocation of values’). Policy making and policy implementation processes are characterized by different aspects and phases. Classic system models of politics (Easton, 1979)

L. Huberts (*) Vrije Universiteit Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_5

103

104 

L. HUBERTS

Fig. 5.1  System model of politics (governance)

point to input (demands, support), to throughput (how the political and administrative system deals with input in order to establish o ­ utput), the policy output, as well as actual effects or results of the output (outcome). It is important to keep in mind this distinction across input-­throughput-­output-outcome in reflecting upon the integrity and the quality of governance, and the relationship between them (Fig. 5.1).

5.2   Integrity of Governance 5.2.1  Introduction: Integrity? What is integrity? What characterizes the integrity of a person, functionary, organization? What characterizes, for example, politicians acting with integrity, what is an ‘integrous’ politician? The extant literature provides at least eight different views on integrity (Huberts, 2014), summarized in Table 5.1. Four views may be considered ‘mainstream’: integrity as ‘wholeness, consistency, and coherence,’ integrity as ‘professional responsibility,’ integrity as a ‘(number of) value(s),’ and integrity as ‘accordance with relevant legal or moral values and norms.’ The first, rather dominant, perspective is in line with the meaning of the Latin integras: ‘intact, whole, harmonious,’ and sees integrity as ‘wholeness’ or completeness, as consistency and coherence of principles and values (Montefiore, 1999, p. 9). The second view sees integrity as professional wholeness or responsibility (or quality) (Karssing, 2001, p. 3).

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

105

Table 5.1  Eight views on integrity 1.  Integrity as wholeness 2.  Integrity as being integrated into the environment 3.  Integrity as professional responsibility 4.  Integrity as conscious and open acting based on moral reflection 5.  Integrity as a (number of) value(s) or virtue(s), including incorruptibility 6.  Integrity as accordance with laws and codes 7.  Integrity as accordance with relevant moral values and norms 8.  Integrity as exemplary moral behavior

Other perspectives are more characterized by the relationship between integrity and morals; in other words, what is right and wrong. One focuses on a specific value or a collection of certain values (Dobel, 1999), for example, incorruptibility, honesty, impartiality, accountability, and so on. A view that fits into this category relates integrity to acting in line with virtues such as wisdom, justice, courage, and temperance (van Tongeren & Becker, 2009). Yet, other viewpoints see integrity more as an umbrella concept, one that combines sets of values that are relevant for the official being judged. Among these is the legal or constitutional view (Rohr, 1989, pp. 4–5) with its focus on ‘constitutional or regime values.’ A further perspective argues that the ‘law’ does not offer a clear guiding principle for many aspects of the actual decision-making and implementation processes in government and governance, and therefore, offers an interpretation in terms of ‘complying with the relevant moral values and norms’ (see e.g. Becker, 1998; Huberts, 2014; Thomas, 2001; Thompson, 1995; Uhr, 1999). This interpretation, of course, comes close to ‘a general way of acting morally’ and ‘morality’ (Brenkert, 2004, p. 5). The view that will be leading in this chapter sees the relationship with ethics and morals, with right and wrong, good and bad as crucial, with integrity as a characteristic or a quality that refers to being in accordance with the relevant moral values and norms. Moral values, norms, laws, and rules lie at the heart of the analysis of integrity. A ‘value’ is a belief or quality that contributes to judgments about what is good, right, beautiful, or admirable and thus has weight in the choice of action by individuals and collectives (Huberts & Van der Wal, 2014; Van der Wal, 2008). The more specific ‘norm’ tells us whether something is good or bad, right or wrong, beautiful or ugly. Hence, for types of behavior, these parameters answer the question ‘what is the right thing to do?’ These values and norms, of course, also include a number of

106 

L. HUBERTS

values and norms that are central in the other perspectives (such as wholeness, responsibility, incorruptibility, lawfulness). Integrity, however, does not concern what is beautiful (aesthetics), what is conventional (etiquette), or what works (technology). Rather, it focuses on ‘moral’ norms and values; that is, those that refer to what is right or wrong, good or bad. Defining integrity in terms of relevant moral values, norms, and rules requires precise understanding of what a moral value, norm, or rule is, of what is meant by ethics, morals, and morality. Despite agreement that both concern ‘right and wrong’ or ‘good and evil,’ different interpretations of the terms abound, especially in the realm of philosophy and the study of ethics. Kaptein and Wempe (2002, pp. 40–42) distinguished six features exhibited by moral pronouncements. They concern ‘right and wrong’ (a normative judgment that expresses approval or disapproval, evokes shame or pride), but they also appeal to the general consent, are not a matter of individual taste, apply to everyone in similar circumstances, involve the interests of others (interpersonal), and the interests at stake are ‘fundamental’ (2002, p. 42). To summarize, integrity is about ‘moral’ norms and values, those that refer to what is right or wrong, good or bad. The features also presuppose a general consent from everyone in the same circumstances, giving the meaning to ´relevant´ moral values and norms. 5.2.2   Values, Ethics, Integrity, and Governance How, then, does integrity relate to ethics, morality, values, and norms? In the view proposed, integrity is the concept that should be applied to the behavior of the participants in agenda building, decision-making, and decision implementation. That is, it does not concern everything in politics and business, or the content of government policy (or business strategy); rather, it concerns behavior, process, and procedure (in a broad sense). This is not to deny that many important ethical controversies and debates concern policy content (output) and outcome. There are, and always will be, intense feelings about the rights or wrongs of certain policies (e.g. on war and peace, abortion, euthanasia, etc.), and these are frequently fueled by religious convictions. The focus on integrity, however, should not distract us from the fact that all policy areas involve choices about good and bad, about social equity, social justice, and other crucial values. Policy ethics is about the content of decisions, policies, and laws, and focuses specifically on the consequences or results of policy, which, of course, are crucial for both citizens and society.

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

107

It is, however, important to distinguish between policy content (and outcome) and policy process, and the ‘integrity of governance’ refers to the policy or governance process: how policy is made and implemented. This process includes the input phase of agenda building, the throughput phase of policy preparation and decision-making, and the output phase of decision-making and policy implementation (and evaluation). In all these phases, the actors are guided by moral values and norms, operating within an institutional framework that itself contains moral values and norms about how to operate. Values have become more prominent in the theory and practice of public governance. However, the enormous number of relevant values makes public values research highly complex, and this can lead to despondency in the practitioners who must act on it. In addition, actors must deal not only with complexity but also with contradictions between values, with the problem of translating (competing) values into a decision or a behavior, which Hood (2010) described as ‘an awkward endeavor.’ One aspect of this endeavor is that different values matter in different contexts. For example, transparency might be crucial for the relationship between government and parliament but less important for that between civil servants and the public. The same applies to the relative importance of other values in governance. Actors must cope with many values that cannot all be optimized simultaneously. The chapters in this book clarify the meaning and relevance of different values, including legitimacy, accountability, lawfulness, and effectiveness, also referring to their relationship. Hence, governance is all about managing conflicts between competing and sometimes conflicting values, moral and otherwise. When we focus on governance, therefore, different values will be involved in our reflections on such different aspects as policy making and policy implementation or the involvement of different actors (e.g. politicians, civil servants, networks, citizens, interest groups, etc.). 5.2.3  Integrity Violations To further clarify the content of ‘integrity,’ it is useful to reflect on behavior that violates the relevant moral values and norms, that is, on integrity violations. Table 5.2 presents an idea of the types of behavior that can be seen as integrity violations. The (validated) typology was developed, step by step, building on several bodies of knowledge on police corruption, integrity research, integrity of governance research, and, for example,

108 

L. HUBERTS

Table 5.2  Types of integrity violations 1.  Corruption: bribing 2.  Corruption: favoritism 3.  Conflict of interest (gifts, jobs etc.) 4.  Fraud and theft of resources 5.  Waste and abuse of resources 6.  Breaking rules /misusing power (also when carried out for the organization) 7.  Misuse and manipulation of information 8.  Indecent treatment (intimidation, discrimination) 9.  Private time misconduct

organizational misconduct research (Huberts, 2014; Lasthuizen, Huberts, & Heres, 2011; Vardi & Weitz, 2004). Why focus on a broad variety of integrity violations instead of focusing on corruption, for example (Huberts, 2007; Huberts, Lasthuizen, & Peeters, 2006)? The first and most obvious reason is that a focus on the moral dimension in the behavior of individuals, organizations, and even countries (as well as on the behavior that violates relevant moral values and norms), by definition begs for a broad framework. Although it is certainly worthwhile knowing more about corruption in government and administration (bribery and favoritism), it is also important to discover more about such violations as waste and abuse of (public) resources, discrimination, improper use of authority, and private time misconduct. It thus seems advantageous to distinguish clearly between subtypes of ‘unethical’ behavior (or integrity violations), with corruption defined as the abuse of office for private gain (Pope, 2000).

5.3   Quality of Governance 5.3.1  Introduction In this section several approaches and bodies of knowledge are summarized that seem relevant for reflection upon the content of ‘quality of governance.’ First, the concept of quality is discussed, followed by a brief sketch of the meaning of the concept in public administration. This is an early indication that ‘good process’ as well as (later) ‘good outcome according to citizens’ are aspects of the topics addressed. ‘Quality’ refers to standards, criteria, and values, and the literature offers several bodies of knowledge that seem relevant for clarifying the basic notion of quality of

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

109

governance. Secondly, there is a focus on the public values (and public value) that are recognizable in all interpretations of the quality of governance. This is followed by the presentation and review of frameworks that deal with ‘public value(s),’ ‘quality of government,’ and ‘good governance.’ These are inputs to the next section which discusses the relationship between the quality and the integrity of governance and offers a potential framework for their study. 5.3.2   Quality Quality is a rather complex concept, as already suggested in the first chapter of this book. In the context of ‘quality of governance,’ the concept refers to standards (of excellence) for governance and to criteria that distinguish between good and bad governance. In other words, quality refers to the values that are relevant when judging governance. Löffler (2002) addresses the topic of defining quality in public administration by sketching the changing interpretations and elements: respect of (formal) norms and procedures, effectiveness of services, and customer satisfaction. Bovaird and Löffler (2003) describe the move in the public sector during the 1990s from concern largely with excellence in service delivery to a concern for good governance, and they demonstrate that there is widespread interest in measuring not only the quality of services but also the improvement in quality of life and improvement in governance processes. They also discuss how measures of good governance are being used in different contexts around the world. These publications illustrate that the interpretation of quality of governance shifted from ‘good process’ to ‘good outcome according to citizens,’ with the additional note that process quality nevertheless seems important when trust in government is at stake. 5.3.3  Public Value The focus on citizen’s satisfaction with government services can also be recognized in a widely known ‘theory’ on public management that was developed by Mark H.  Moore in his Creating Public Value: Strategic Management in Government (1995, p. 1), which sketched out ‘what public managers should think and do to exploit the particular circumstances they find themselves in to create public value’ (see also Benington & Moore, 2011). For Moore, public value is to public management what

110 

L. HUBERTS

shareholder value is to business, and managerial success in the public sector is related to (an increase in) the value of public-sector enterprises in the short and longer terms. Hence, at its most basic, public value refers to what the public values (in output and outcome of public policies and services—see Alford & O’Flynn, 2009). De Jong (2012) summarized Moore’s approach, stating that Moore’s notions of an authorizing environment, operational capacity, and public value proposition help map the landscape for public managers who seek to make positive change. ‘There is political work to do (obtaining legitimacy and support), there is a managerial task to fulfill (creating capacity), and there is an entrepreneurial, imaginative dimension to the job (envisioning public value)’ (De Jong, 2012, p. 56). As this outline summary of Moore’s method clearly illustrates, its main focus is on how public managers can get an idea of public value in policy making and implementation while taking into account the logics of politics, policy content, and administrative implementation. Moore’s framework thus focuses on the output and outcome of governance, in particular, on ‘what the public values’ (which is reminiscent of the focus on ‘customer or citizen satisfaction’ in ‘total quality management’). Moore did not pinpoint the content of the values of citizens concerning the governance output and process, and this will be addressed later. 5.3.4   Public Values An important body of knowledge concerning the quality of governance has developed and is continuing to evolve through research on public values. Many definitions and interpretations of the meaning of ‘value’ exist. Some speak about ‘values literature confusion’ (Agle & Caldwell, 1999, p. 327). Values can, at the most basic level, be perceived as ‘anything good or bad’ (Pepper, 1959, p. 7) or ‘convictions,’ ‘standards,’ or ‘principles’ that influence individual and group choices among alternative courses of action (e.g. Rokeach, 1973). In daily organizational life, values address not only what ought to be but also what is; not only what is good or desirable, but also what is simply the right thing to do in a decision-­ making situation (in order to ultimately achieve what is good and desirable from an organizational perspective). In accordance with Van der Wal (2008, p. 10), a ‘value,’ is defined here as a belief or quality that contributes to judgments about what is good, right, beautiful, or admirable and, as previously stressed, has weight in the choice of action by individuals and

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

111

collectives. The more specific ‘norm,’ in contrast, tells us whether something is good or bad, right or wrong, or beautiful or ugly in a given situation. Norms answer the question ‘what is the proper thing to do’ in a certain situation. Although the crucial values for public functionaries and institutions, in various shapes and forms, have been much at the forefront of many recent debates in public administration, the character of the debates on ‘public values’ varies. Several scholars have addressed public values in general and proposed sets of public values (Kernaghan, 2003; Van Wart, 1998) or have derived specific sets of public values through empirical research (Beck Jørgensen & Bozeman, 2007; Schmidt & Posner, 1986; Van Der Wal, Pevkur, & Vrangbaek, 2008). As a result, the examples of public values mentioned in the literature differ greatly (cf. De Bruijn & Dicke, 2006; De Vries & Kim, 2011). The literature thus deals with manifold values, a diversity well illustrated by literature reviews on values for the public sector (Beck Jørgensen & Bozeman, 2007; Van der Wal, Huberts, Van Den Heuvel, & Kolthoff, 2006). Beck Jørgensen and Bozeman (2007, pp. 360–361) distinguished seven categories, including ‘behavior of public-sector employees,’ ‘public sector’s contribution to society,’ and ‘intra-organizational aspects of public administration.’ These ‘seven constellations of public values’ thus refer to different sets of values for different aspects and phases of the governance process. For each category or aspect of governance, a number of central or nodal values are mentioned. For ‘Behavior of public-sector employees,’ these are accountability, professionalism, honesty, moral standards, ethical consciousness, and integrity (Beck Jørgensen & Bozeman, 2007, pp. 360–361). In a comparison of fourteen codes of conduct in different parts of the world, Beck Jørgensen and Soerensen (2012) identified a very interesting set of apparently global public values (which also happen to reflect ideals from constitutionalism and rational bureaucracy): public interest, regime dignity, political loyalty, transparency, neutrality, impartiality, effectiveness, accountability, and legality. These values, they pointed out, match the international code of the UN and the model code of the European Council, as well as conceptions of good governance promoted by the OECD, IMF, World Bank (WB), UN, and EU. Consequently, the authors suggested, they constitute a set of global public values.

112 

L. HUBERTS

5.3.5  Pluralism and Universalism of Public Values An important problem is how the values relate to one another. Are the values global and valid everywhere, as suggested in Beck Jørgensen and Soerensen’s (2012) overview (universalism); are they in conflict, thereby making management of tension and conflict essential (pluralism); or is their worth fully dependent on the context (relativism)? A value list, as such, offers no answers to these fundamental questions. What characterizes the approach in this chapter? I tend to be most sympathetic toward value pluralism (see also Chap.  1), with an additional flavor of universalism. What clarifies this leaning? First, skepticism about value relativism. To put it simply, values, as well as their prioritization in relation to each other, are of course constructed in context, so the meaning of incorruptibility and efficiency and their importance among other values will differ between, for example, governance in an Indian village and governance in the wealthy metropolitan areas of the world. To use, or even prescribe, the same criteria and policies in both contexts would thus be unrealistic and counterproductive. Yet, I nevertheless doubt whether a poor Indian villager and a New York yuppie differ that much in their views on a governance system in which the private profit of their ‘governor’ dominates over public interest. Hence, there do seem to be universalistic values on governance. The poor farmer and the yuppie prefer incorruptibility above corruptibility, even though they are part of systems and contexts that will—understandably—produce very different types of behavior. The discussion on the universality of governance values and quality also has its parallels in discussions on universal human rights and development. For example, Nussbaum (2011) argues that a number of aspects of human development are universal (e.g. health), and Rothstein (2011) supports that argument in his discussion on quality of governance with a focus on policy outcomes. Although I agree, I tend to more explicitly add governance values to their impressive work. That is, there still exists an undefined universal idea of what ‘good governance’ is, even though the alleged ‘capture’ of the good governance concept by the World Bank and others is, with good reason, questioned by many. Not that I mean to oppose, the pluralistic view that discussion and decision-making about policy making and implementation will always require the management of tensions between values, resulting in different outcomes in different contexts. In that sense, value pluralism reflects the reality of actual governance processes.

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

113

5.3.6  Managing Conflicting Values The variety of moral (and other) values makes public values research highly complex, but it may also lead to despondency in the practitioners who must act on it. In addition, actors must deal not only with complexity but also with contradictions between values, with the problem of translating (competing) values into a decision or a behavior, which Hood (2010) described as ‘an awkward endeavor.’ Actors must cope with many values that cannot all be optimized. Hence, governance is all about managing conflicts between competing and sometimes conflicting values, moral and otherwise (De Graaf and Van der Wal, 2010). An important aspect of ‘managing values,’ then, is whether all values deserve the same priority in the process. Rothstein and Teorell (2008), for example, argued for ‘impartiality’ as the central value, but other scholars have focused in their research on accountability (Bovens, 1998; Dubnick & Yang, 2011; see also O’Kelly & Dubnick, this book), transparency (Piotrowski, 2007; Schnell, this book), lawfulness (Rosenbloom, 2011; Simonati, this book), or integrity. For now, I think it is premature to argue against the importance of a set of quality of governance criteria, not least because the concept of value by definition refers to something valued, and hence inherently a ‘quality.’ In the end, the proof of the pudding will have to be in the eating, meaning that we need research to establish the relative importance of these criteria. One criterion that might be applied relates conflict of values to ‘who is governed.’ That is, if public governance is policy making on public problems and interests as well as the implementation of these policies, why not let the involved public ‘decide’ what quality is, even when values are in competition or contradiction? Hence, when we want to evaluate governance in terms of quality, the relevant publics are at least an important ‘referee’ (in line with Mark Moore’s approach: public value is what the public values, but then not only on outcome but also on process…). This assumption, however, begs the question that the members of the ‘public’ are able to referee, which in turn presupposes their ability to come to an informed judgment. As a consequence, when a country’s population considers robustness and decisiveness as more important than impartiality and incorruptibility, or democracy and accountability, in distinguishing bad from good governance, that ‘actor’ as referee is important for reaching conclusions about the quality of governance in that country. What is good or bad governance in terms of the relative importance of the governance values thus differs in

114 

L. HUBERTS

various contexts. Managing values in context and in accordance with what the public considers good governance is, in the end, the proof of the pudding for actual governance. Another important and related discussion among public value scholars is on the incommensurability of values. There seems to be agreement on ‘conflicting values,’ not all values can be optimized in policy and governance. But are values also ‘incommensurable,’ and it is therefore impossible to come up with a satisfying or compromise strategy in decision-making (De Graaf & Van der Wal, 2017; Overeem & Verhoef, 2014)? Or are procedural values, by definition, in conflict with performance or outcome values (De Graaf & Paanakker, 2015). Incommensurability of values also leads to the question of how governance actors can then cope. Thacher and Rein (2004) explicitly address this issue and summarize their argument thus: ‘Policy actors do sometimes try to strike a “balance” among conflicting values, but they often avail themselves of other strategies as well: they cycle between values by emphasizing one value and then the other; they assign responsibilities for each value to different institutional structures; or they gather and consult a taxonomy of specific cases where similar conflicts arise’ (2004, p. 457). 5.3.7  Quality of Government: Specific Values Another framework is that proposed by the Quality of Government (QoG) Institute in Goteborg Sweden, and summarized by Bo Rothstein, in Quality of Government (2011). This framework positions impartiality as the central characteristic of quality and relates it to the quality of the governed society (wealth, welfare and social security, health, education). Hence, as Rothstein convincingly argued, impartial government leads to better policies and more developed societies. Rothstein’s analysis, however, raises crucial questions. Most especially, in my view, it fails to consider the possible importance (in terms of quality of life) of separating the quality of the governance process from the quality of the policy outcomes. What this omission should lead to is reflection on research and policy agendas and how they connect the quality of the governance process and the quality of policies, in terms of the results for the quality of society (see also Masters’ chapter in this book on bureaucratic animosity, relating integrity also to outcome). A second point for reflection concerns the dependent variable, the quality of output and outcome, or the quality of society. I tend to agree

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

115

with Rothstein (2011) that the work of Nussbaum (2011) and Sen (Nussbaum & Sen, 1993) on human development offers an intriguing starting point for considering this issue because social outcome involves not only wealth, income, and economy but also such factors as health, education, and gender. Yet the question of how the quality of society relates to the way society is governed is a topic that has not attracted the interest it deserves. A third point, and one of utmost importance, is the question of which characteristics of the governance process actually influence the outcomes. That is, there is little doubt that impartiality is a crucial characteristic, as Rothstein has argued (Rothstein, 2011; Rothstein & Teorell, 2008), but it is more doubtful (Longo, 2008) that it is the only aspect of the governance process that matters. Indeed, as suggested before, several values and criteria are relevant for the ‘quality of the governance process’ and also that this quality is decisive for appreciation of governance by society. Quality of governance, therefore, although it does include incorruptibility and impartiality, also has democracy, accountability and transparency, lawfulness, effectiveness and efficiency, professionalism and civility, and robustness as central values. Thus, there is a great need for valid research on the relationship of those values, or on the quality of the governance process in relation to policy quality and human development. 5.3.8  Good Governance Both governance theory and practice offer many interpretations of ‘good governance,’ most of which select a number of seemingly more prominent values to distinguish between good and bad, or better and worse, governance. La Porta et al. (1999) empirically address the determinants of the quality of government in a large cross-section of countries. Quality or ‘good governance’ was interpreted as ‘good-for-economic-development,’ using measures of government intervention, public-sector efficiency, public good provision, size of government, and political freedom. This focus led to a number of conclusions about the conditions that influence quality: ‘We find that countries that are poor, close to the equator, ethnolinguistically heterogeneous, use French or socialist laws, or have high proportions of Catholics or Muslims exhibit inferior government performance. We also find that the larger governments tend to be the better performing ones’ (1999, p. 222).

116 

L. HUBERTS

Fig. 5.2  Famous World Bank good governance values

That specific focus on ‘economic’ development is all but common in the good governance literature. The most influential framework is that of the WB, which sees good governance as participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive, and in accordance with the rule of law (Fig. 5.2). The WB also adds that it is important that corruption be minimized, that the views of minorities be taken into account, and that the voices of the most vulnerable in society be heard in decision-making. Good governance is also responsive to the present and future needs of society. This also raises the question of how the WB framework relates to the previous information on governance. Two observations are important. First, the WB focuses on both the governance process and the outcome of the resulting policies. The values ‘equitable’ and ‘needs of society,’ specifically, refer to outcome. As previously argued, however, even though outcome is of course very important, it is not self-evident that good governance in terms of process is dependent on ‘good’ outcomes. Second, and more important, by apparently presupposing that all the criteria must be optimized, the WB is failing to recognize neither the tension between values, nor the importance of context for the choices that must be made in actual governance. This failure has led to widespread criticism of the WB policy as limited and ‘Western,’ as imposing a framework that does not suit the conditions in many (developing) countries. Good governance thus concerns dealing with these often-conflicting values on process and outcomes with a broader perspective than the

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

117

‘integrity’ of the process. That leads to intriguing discussions on national and international policies and on how to stimulate good governance in countries, but it also opens up a challenging agenda for research. Rothstein (2011) argues that impartiality of government is the crucial factor for societal progress. In contrast, Grindle (2004) presents the concept of ‘good enough governance,’ acknowledging that many countries are not capable of fulfilling all good governance demands with impartiality and integrity. Other good governance frameworks exist, including one which refers to four families of values (Bovens et  al., 2007). In this paradigm, good governance concerns (political) democracy and responsiveness, lawfulness, effectiveness and efficiency (policy performance), and integrity (incorruptibility and accordance with professional ethics). A challenging aspect of this paradigm is that integrity is part of the framework.

5.4   Quality and Integrity of Governance 5.4.1  Introduction The previous sketch of the different elements and interpretations of the integrity and the quality of governance offers food for thought on ‘integrity’ and its relationship with ‘quality’. How does the suggested integrity perspective fit into the broader approaches on the quality of governance? And what is the significance of integrity in the views on quality of governance as summarized before? This automatically results in reflection about both fields of study: how do integrity and quality relate, is there a framework that links both concepts and perspectives? The last section will be about the agenda for research. 5.4.2  Integrity (and Quality) Integrity refers to relevant moral values and norms, to what is right or wrong, good or bad, shared by the community and thus very important to all participants in governance. It therefore concerns their behavior in making, deciding, and implementing policies. Integrity violations point at behavior that is in conflict with those moral norms and values, and there are many types of violations, contravening different values and norms. At first sight, this may seem a plausible and workable distinction but what does it tell us about the ‘morality’ of the manifold values that were

118 

L. HUBERTS

mentioned in the quality perspectives, such as democracy (including participation), accountability and transparency, lawfulness, incorruptibility and impartiality, effectiveness and efficiency (also addressed in different chapters in this book), professionalism, and robustness? One line of reasoning is that all values can be moral values when they are seen as important for right and wrong in the governance process and in the behavior of the governing actors under scrutiny. It then depends on the process whether, for example, transparency is seen as relevant for good or bad behavior in governance. If it is, one might argue that being transparent is among the values to take into account when governance is evaluated in terms of integrity. Opposing that is a line of reasoning arguing that lack of transparency as such is not always wrong or bad, because of the tension between transparency and the other values that matter in governance: protecting the privacy of actors, for example, or the necessity of secrecy in order to be effective. That does not deny that lack of transparency can be morally wrong when that behavior results from inappropriate goals or interests, and that it thus conflicts with other (moral) values such as impartiality and incorruptibility. In cases such as this, the context and the relationship with other values must be examined in order to conclude that ‘secrecy’ does in fact conflict with the standards for integrous behavior. In research as well as in public debate, we seem to have different conceptions of integrity: integrity as a specific value amidst others with relevance for the quality of the governance process (behavior) and integrity as the overall moral quality of the governance process. There is an even broader third interpretation: integrity as the overall moral quality of the governance process and the ethical quality of policy and resulting societal outcomes. This raises many questions, also more general ones on the quality of governance framework. But first, it seems relevant to discuss another aspect of the integrity perspective: the relationship between bodies of knowledge on integrity violations and views on relevant values in quality of governance research. 5.4.3  Integrity Violations and Relevant Values Although seldom addressed, a question worth asking is which moral values and norms are at stake in those integrity violations that can be distinguished and observed (see, from: Huberts, 2014, pp.  211–214). There

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

119

seem to be two separate bodies of knowledge: one on ‘ethics and values’ and one on ‘violations,’ without the connections that one might expect actually being made. When the ‘bright side’ of ethics is discussed, with overviews of the many relevant (moral) values and norms, limited attention is paid to the types of behavior that violate those values. And in the research on integrity violations and unethical behavior, the ‘dark side,’ it is seen as self-evident that moral values and norms are violated, but with very limited attention paid to which norms and values are at stake in the different violations (corruption, fraud, conflict of interest, abuse of information and power, discrimination and intimidation, etc.; see Table 5.2). However, Table 5.3 offers a first idea on this neglected connection. It is included because it provides food for thought on the particular overview of values that is prominent in the public value and ethics literature (and in this book). What is offered is not meant to be complete; it serves merely to illustrate the topic. In most instances, it is not difficult to establish the relationship between violations and the moral values violated; for example, between corruption and the values of incorruptibility and impartiality, with a reference to accountability and lawfulness. In other cases, it seems Table 5.3  Number of integrity violations and impression of the values violated Integrity violation 1. Corruption: bribery

Violated value

Incorruptibility and impartiality; accountability and transparency; lawfulness 2. Corruption: favoritism (nepotism, Incorruptibility and impartiality; accountability cronyism, patronage) and transparency 3. Fraud and theft of resources Accountability and transparency; lawfulness; effectiveness/efficiency 4. Conflict of (private and public) interests Incorruptibility and impartiality; accountability and transparency; professionalism 5. Improper use of authority Lawfulness; accountability and transparency; robustness 6. Misuse and manipulation of Accountability and transparency; lawfulness; information professionalism; robustness 7. Indecent treatment (including Professionalism discrimination, intimidation, and sexual harassment) 8. Waste and abuse of organizational Effectiveness/efficiency; professionalism; resources robustness 9. Misconduct in private time Incorruptibility and impartiality; accountability and transparency; lawfulness; professionalism

120 

L. HUBERTS

less obvious and less convincing, particularly in the case of private time misconduct and indecent treatment, although for different reasons. That also raises the question of whether values are missing in the framework (Huberts, 2014). One type of integrity violation that is difficult to relate to the violation of those values previously highlighted is ‘indecent treatment,’ including discrimination, intimidation, and sexual harassment. Obviously, such behavior violates the value of ‘professionalism’; however, discrimination and sexual harassment also contradict basic values for interpersonal relations, meaning that such treatment goes beyond ‘unprofessional behavior’ and brings to mind such issues as decency, civility, humanity, and respect. Simply confronting this type of violation with the panorama of values that features in our discourse seems to indicate that we are missing something in our research on the moral values of politicians and civil servants. This may result from the fact that such research tends to focus on ‘functional’ values related to decision-making and decision implementation, to processes. As a result, it pays little attention, if any, to the (inter)personal and private aspects of political and administrative behavior. This may demonstrate an incomplete overview of basic moral values: in particular, ‘civility’ or ‘decency’ seems to be missing. 5.4.4  Resulting Value Panorama Public values are related to policy content (outcome), political democracy (input), the governance process in general, and the different phases of that process (input, throughput, output). Combining the values discussed in the literature for aspects and phases of governance, including integrity violations, and combining that with the previous analysis of values and violations, the following central values of governance can be hypothesized (Huberts, 2014, p. 213; see also Chap. 1 of this book): 1. ‘democracy with responsiveness and participation’—paying attention to social preferences and with the involvement of actors having an interest (including citizens); 2. ‘accountability and transparency’—being open, honest, and willing to account for behavior; 3. ‘lawfulness’—respecting laws and rules; 4. ‘incorruptibility and impartiality’—acting in the public interest instead of self-interest or other inappropriate partial interests;

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

121

5. ‘effectiveness and efficiency of process’—acting capably in agenda building and preparing, taking, and implementing decisions; 6. ‘professionalism and civility’—acting in line with professional standards and standards for (inter)personal behavior. For civil servants, this means skillfulness (expertise), civility and respect, neutrality and loyalty (including confidentiality), and serviceability. For politicians, it entails reliability, civility, and trustworthiness. 7. ‘robustness’—being stable and reliable but also able to adapt and innovate. This overview shows a broader value panorama than the dominant literature takes into account, but also raises the relevant question of how this relates to ‘integrity’? Integrity does not appear in this overview. How should this be interpreted: is it in line with the information presented that stems from the body of knowledge on the quality of governance? 5.4.5  Quality (and Integrity) The concept ‘quality of governance’ refers to standards (of excellence) for governance, to criteria that distinguish between good and bad governance, or in other words to the relevant values for judging governance. Quality of governance is about good governance (in accordance with relevant values) and bad governance (violating relevant values). This interpretation first of all connects the concept of quality with that of (public) value, defined as a belief or quality that contributes to judgments about what is good, right, beautiful, or admirable and has weight in the choice of action by individuals and collectives. Manifold values are distinguished in the literature, as mentioned before, and most authors compose a list of (public) or governance values, without specific reference to the different aspects and phases of governance. The framework of governance presented, however, distinguishes between input, throughput, output, and outcome. All these phases of governance seem crucial for reflection on the quality of governance, but this does not deny the importance of distinctions between them, and this differs from the position that ‘in the end’ only results matter. The main argument against the focus on outcome is that, in the eyes of citizens, the quality (and integrity) of the governance process matters as such, independently of the results in terms of social outcome. Citizens not only ‘value’ outcome, citizens also ‘value’ governance process. This is

122 

L. HUBERTS

illustrated by research of the trust in governance by citizens and other stakeholders, even though trust research is not easy to interpret because citizens answer questions on trust almost identically to questions on the quality or integrity or incorruptibility of systems of governance (Bouckaert & Van de Walle, 2003; Van de Walle, 2008). Nevertheless, as research on procedural justice has shown, those governed seem to appreciate the quality of how they are governed more than the results of the policies issued. This observation raises the interesting research questions of whether this finding of procedural priority remains valid for governance and which (procedural) values contribute (most) to trust in governance. Are impartiality and incorruptibility (Rothstein, 2011) the central values or are accountability, civility, and robustness, for example, also important? By no means is this interpretation of aspects of quality of governance meant to neglect the importance of the quality of output and outcome. Such values as, for example, the common good, social cohesion, social justice, equity, equality, wealth, health, and sustainability are relevant to addressing questions about the quality of society (as in the discussion on Human Development, Nussbaum, 2011). These outcome values are very relevant for ‘quality of governance’ in general, as is the prominent value of ‘effectiveness’: Are the effects of policies in accordance with its ambition and goals? Nevertheless, it also seems very relevant that ‘differentiation matters’ and that it will contribute to a better description, explanation, and evaluation of governance. This ‘differentiation’ should also include more attention to the values that matter for different levels within organizations, as Paanakker’s chapter on public craftsmanship shows. When we focus on the process, on input and throughput, a next question is how integrity fits into quality. The overview of theory and research on the quality of the governance process showed many different interpretations. Often ‘integrity’ is not mentioned among the relevant values, which does not exclude referring to such values as impartiality and incorruptibility. Some researchers explicitly reflect on the meaning of integrity within their framework. Beck Jørgensen and Bozeman (2007) offer an interesting example. Among the values for public-sector employees, they mention accountability and professionalism (work in a serious, reflective, and competent manner), and, in addition, values such as honesty, moral standards, and ethical consciousness. They add that honesty is related to a number of other values such as objectivity, impartiality, openness, integrity, and accountability, and:

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

123

It seems, however, that the central value in this group is integrity. A person with integrity is a person who remains unmoved by personal motives, interests, bribery, popular opinion, changing fashions, smears, and so forth but has sufficient backbone to stick to a certain point of view or principle. A person with integrity has a solid core. Integrity is also one of the values that relate to a large number of other values because it takes so many words to define the meaning of integrity: honesty, dignity, fairness, ethical consciousness, moral standards, professionalism, openness, impartiality, and regime loyalty. The latter may sound surprising but is included because a person with integrity has to remain loyal to the system within which he or she works—or resign. (Beck Jørgensen & Bozeman, 2007, p. 368)

This view illustrates the struggle of many researchers with the concept of integrity within a broader quality framework that has many interrelated values. Integrity seems crucial, the central value for public-sector employees, but connected to other values and many different aspects of governance. 5.4.6  How to Combine Integrity and Quality? Concepts are almost always contested: there are different interpretations and definitions, and this makes it important to be clear about one’s interpretation. For now, different options are on the table. The quality of governance framework raises the question of how the ‘integrity’ of governance relates to the ‘quality’ of governance. 1. Is Integrity More or Less Synonymous with Quality, in the Sense that It Refers to Being in Accordance with all the Values that Matter? This chapter offered two arguments against that position. First, quality of governance concerns all aspects and phases of governance, including the content of policy and policy outcomes (and whether they are in accordance with values). Integrity, though, concerns the behavior of governance actors in that policy or governance process. Second, integrity refers to the moral quality of that process and focuses on the behavior of actors. When governance actors operate not (very) efficiently or responsively or robustly, the quality of governance is at stake, not, by definition, their integrity. Integrous behavior and integrity violations concern such values as incorruptibility and impartiality (inappropriate personal or family/party interests versus public interest) and civility in personal behavior.

124 

L. HUBERTS

2. Is Integrity Synonymous with the Moral or Ethical Quality of Governance (Actors)? Again, it is important to distinguish between aspects and phases in governance. The ethical quality of governance output and societal outcome is a crucial aspect to consider for the quality of governance (good governance), but integrity refers to the governance process (in accordance with the relevant moral values and norms). But for that process and behavior, the question of how moral values and other ‘quality’ values relate is relevant. In other words, are there qualities other than moral quality? There is, for example, ‘democratic quality,’ which refers to the involvement of interested publics and whether policies are responsive to their preferences, and ‘technical quality’ related to the methods and practicalities of the process (decisiveness, robustness). These qualities and values may be seen as essential for ‘good and bad’ by the relevant public(s). A rather inefficient or unresponsive mayor will be criticized by citizens, but how and when does this relate to the mayor’s integrity, and result in doubts about their integrity? 3. How Does Integrity Relate to the Relevant Values for the (Moral) Quality of Governance (Actors)? The moral quality of governance (actors) refers to ‘good and bad,’ ‘right and wrong’ in the eyes of relevant publics. An inefficient politician or disrespectful public servant thus violates values and norms that relate also to the moral quality of governance. Does this entitle the public to doubt the integrity of the public servant? Two different views seem relevant. The first can be summarized as ‘all bad behavior raises questions about integrity’; the second presupposes extra aspects to ‘integrity,’ ­relating it to the reasons and background of that behavior. Public servants can do stupid things, but when is their integrity questionable? 4. When Do Governance Actors Lack Integrity Amidst Many Relevant Values? Governance actors operate within a complex context with many criteria and expectations for how they operate. Many values are important: they are to be effective, responsive, transparent, integrous, etc. Integrity seems to be a crucial value, with many interpretations of how to behave, decide,

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

125

and implement with integrity when many values conflict. More clarity concerning ‘integrity’ seems crucial for governance practice as well for our research (and for this book on Quality where there are many relevant values presented). As food for thought, for what is work in progress, a number of remarks seem relevant. The integrity of governance is an important value within the framework of quality of governance. Whereas quality of governance refers to the many relevant values for all aspects and phases of governance, integrity focuses on the moral quality of the behavior of actors. The exact meaning of integrity in relation to quality needs clarification, given the many views and interpretations presented. For now, though, it seems promising to build on the view that integrous behavior and integrity violations concern such values as incorruptibility and impartiality (inappropriate personal, family/party interests versus public interest) and civility in personal behavior. Whether that interpretation is adequate is to something for discussion and reflection, but it might lead to greater clarity within the broader quality of governance framework. Of course, when a politician or public servant acts inefficiently or undemocratically, the quality of their governance is at stake, but someone’s integrity is at stake when inappropriate interests and/or behavior come into play. 5.4.7  Agenda for Research The general mission or goal in the study of governance is to describe, explain, understand, and improve governance. The last, more normative part of that ambition, to evaluate and improve, is the most disputed. An evaluation by definition brings in criteria or norms or values for evaluation (and improvement). This may seem self-evident for researchers interested in normative questions, but many others consider this reflection as non-scientific. These scholars will probably doubt even more whether quality is a relevant concept for scientific description and explanation. In my eyes, this is not very surprising and not only because of the basic differences within the scientific community as to what ‘science’ is all about. Another reason is that ‘quality’ frameworks have to be specified and translated in order to make them relevant in empirical research into the causes and effects of agenda building, policy making, and policy implementation. When ‘quality’ is about values, an important question becomes whether the values of

126 

L. HUBERTS

actors and institutions are useful or even necessary to describe and explain governance. In order to find out, we need to compare the significance of those factors for governance processes and outcomes with the significance of other factors, such as the self-interest of actors, power and power relations, and organizational rules and procedures. Answering these important questions will require an empirical turn in our research on values and quality. That empirical turn to the actual significance of integrity and quality in governance should also concern research on the effectiveness of the many instruments and systems that exist to promote integrity and quality and to prevent violations. What really works is not very clear yet… An ‘empirical turn’ in ethics and integrity research will possibly (and hopefully) contribute to an ‘ethics and integrity turn’ in contemporary research on governance. Individual and organization (moral) values and norms deserve more attention in our field of study and deserve to be part of all the research that tries to explain and understand governance processes.

References Agle, B. R., & Caldwell, C. B. (1999). Understanding research on values in business: A level of analysis framework. Business & Society, 38(3), 326–387. https:// doi.org/10.1177/000765039903800305 Alford, J., & O’Flynn, J. (2009). Making sense of public value: Concepts, critiques and emergent meanings. International Journal of Public Administration, 32(3– 4), 171–191. https://doi.org/10.1080/01900690902732731 Beck Jørgensen, T., & Bozeman, B. (2007). Public values: An inventory. Administration & Society, 39(3), 354–381. https://doi.org/10.1177/ 0095399707300703 Beck Jørgensen, T., & Sørensen, D.-L. (2012). Codes of good governance: National or global public values? Public Integrity, 15(1), 71–96. http://doi. org/10.2753/PIN1099-9922150104. Becker, T. E. (1998). Integrity in organizations: Beyond honesty and conscientiousness. Academy of Management Review, 23(1), 154–161. https://doi. org/10.5465/amr.1998.192969 Benington, J., & Moore, M.  H. (2011). Public value: Theory and practice. Basingstoke: Palgrave Macmillan. Bouckaert, G., & Van de Walle, S. (2003). Comparing measures of citizen trust and user satisfaction as indicators of ‘good governance’: Difficulties in linking

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

127

trust and satisfaction indicators. International Review of Administrative Sciences, 69(3), 329–343. https://doi.org/10.1177/F0020852303693003 Bovaird, T., & Löffler, E. (2003). Evaluating the quality of public governance: Indicators, models and methodologies. International Review of Administrative Sciences, 69(3), 313–328. https://doi.org/10.1177/0020852303693002 Bovens, M. A. P. (1998). The quest for responsibility: Accountability and citizenship in complex organisations. Cambridge: Cambridge University Press. Bovens, M.  A. P., ‘t Hart, P., & van Twist, M.  J. W. (2007/2012). Openbaar Bestuur – Beleid, organisatie en politiek [Public governance. Policy, organization and politics] (7th and 8th ed.). Alphen aan den Rijn, Netherlands: Kluwer. Brenkert, G.  G. (2004). Corporate integrity and accountability. London: Sage publications. Bruijn, H. D., & Dicke, W. (2006). Strategies for safeguarding public values in liberalized utility sectors. Public Administration, 84(3), 717–735. https://doi. org/10.1111/j.1467-9299.2006.00609.x de Graaf, G., & Paanakker, H. (2015). Good governance: Performance values and procedural values in conflict. The American Review of Public Administration, 45(6), 635–652. https://doi.org/10.1177/0275074014529361 de Graaf, G., & Van Der Wal, Z. (2010). Managing conflicting public values: Governing with integrity and effectiveness. The American Review of Public Administration, 40(6), 623–630. https://doi.org/10.1177/0275074010375298 de Graaf, G., & van der Wal, Z. (2017). Without blinders: Public values acholarship in political science, economics, and law—Content and contribution to Public Administration. Public Integrity, 19(3), 196–218. https://doi.org/10. 1080/10999922.2016.1269277 de Jong, G.  J. (2012). Dealing with dysfunction. A conceptual, theoretical, and empirical exploration of problem solving in public sector bureaucracies. Vriej Universitat, Amsterdam: Gilderprint. De Vries, M. S., & Kim, P. S. (2011). Value and virtue in public administration: A comparative perspective. Basingstoke: Palgrave Macmillan. Dobel, J.  P. (1999). Public integrity. Baltimore, MD and London: The John Hopkins University Press. Dubnick, M. J., & Yang, K. (2011). The pursuit of accountability. In D. C. Menzel & H. L. White (Eds.), The state of public administration: Issues, challenges, and opportunities (pp. 171–186). Armonk, NY and London: M.E. Sharpe. Easton, D. (1953). The political system: An inquiry into the state of political science. New York, NY: Alfred A. Knopf. Easton, D. (1979). A systems analysis of political life. Chicago IL and London: University of Chicago Press (orig. New York: Wiley, 1965). Grindle, M.  S. (2004). Good enough governance: Poverty reduction and reform in developing countries. Governance: An International Journal of Policy, Administration, and Institutions, 17(4), 525–548. https://doi.org/ 10.1111/j.0952-1895.2004.00256.x

128 

L. HUBERTS

Hood, C. (2010). Accountability and transparency: Siamese twins, matching parts, awkward couple? West European Politics, 33(5), 989–1009. https://doi. org/10.1080/01402382.2010.486122 Huberts, L. (2007). Pathology of the state: Diagnosing in terms of corruption or integrity. In D. Argyriades, O. P. Dwivedi, & J. G. Jabbra (Eds.), Public administration in transition. A fifty year trajectory worldwide. Essays in honor of Gerald E. Caiden (pp. 202–217). London and Portland, OR: Vallentine Mitchell. Huberts, L. (2014). The integrity of governance: What is it, what we know, what is done and where to go (IIAS Series: Governance and public management). Basingstoke, England: Macmillan. Huberts, L., Lasthuizen, K., & Peeters, C. (2006). Measuring corruption: Exploring the iceberg. In C. Sampford, A. Shacklock, C. Connors, & F. Galtung (Eds.), Measuring corruption (pp. 265–293). Burlington, VT: Ashgate. Huberts, L., & Van der Wal, Z. (2014). What is valued in politics and administration. In L. Huberts (Ed.), The Integrity of Governance: What it is, what we know, whta is done, and where to go (pp. 79-109). Basingstoke: Palgrave Macmillan. Kaptein, M., & Wempe, J.  F. D.  B. (2002). The balanced company: A theory of corporate integrity. Oxford: Oxford University Press. Karssing, E. D. (2001/2007). Morele competentie in organisaties [Moral competence in organizations]. Assen, Netherlands: Van Gorcum. Kernaghan, K. (2003). Integrating values into public service: The values statement as centerpiece. Public Administration Review, 63(6), 711–719. https://doi. org/10.1111/1540-6210.00334 La Porta, R., Lopez-de-Silanes, F., Shleifer, A., & Vishny, R. (1999). The quality of government. Journal of Law, Economics and Organizations, 15(1), 222–279. https://doi.org/10.1093/jleo/15.1.222 Lasthuizen, K., Huberts, L., & Heres, L. (2011). How to measure integrity violations. Public Management Review, 13(3), 383–408. https://doi.org/10.1080 /14719037.2011.553267 Löffler, E. (2002). Defining and measuring quality in public administration. In J.  Caddy & M.  Vintar (Eds.), Building better quality administration for the public: Case studies from Central and Eastern Europe (pp. 15–34). Bratislava, Slovakia: Network of Institutes and Schools of Public Administration in Central and Eastern Europe. Longo, F. (2008). Quality of governance: Impartiality Is not enough. Governance: An International Journal of Policy, Administration, and Institutions, 21(2), 191–196. https://doi.org/10.1111/j.1468-0491.2008.00392.x Montefiore, A. (1999). Integrity: A philosopher’s introduction. In A. Montefiore & D.  Vines (Eds.), Integrity in the public and private domains (pp.  3–18). London: Routledge. Moore, M.  H. (1995). Creating public value: Strategic management in government. Cambridge, MA: Harvard University Press.

5  INTEGRITY AND QUALITY IN DIFFERENT GOVERNANCE PHASES 

129

Nussbaum, M. (2011). Creating capabilities: The human development approach. Cambridge, MA: Belknap Press of Harvard University Press. Nussbaum, M., & Sen, A. (1993). The quality of life. Oxford: Oxford University Press. Overeem, P., & Verhoef, J. (2014). Moral dilemmas, theoretical confusion: Value pluralism and its supposed implications for public administration. Administration & Society, 46(8), 986–1009. http://doi.org/10.1177/0095399713519096. Pepper, S.  C. (1959). The Sources of value. Berkeley and Los Angeles, CA: University of California Press. Piotrowski, S. J. (2007). Governmental transparency in the path of administrative reform. New York, NY: State University of New York Press. Pope, J. (2000). The Transparency International source book. Berlin: Transparency International. Rohr, J. A. (1989). Ethics for bureaucrats: An essay on law and virtue. New York, NY: Marcel Dekker. Rokeach, M. (1973). The nature of human values. New York, NY: Free Press. Rosenbloom, D. H. (2011). Public administration’s legal dimensions: Three models. In D. C. Menzel & H. L. White (Eds.), The state of public administration: Issues, challenges and opportunities (4th ed., pp.  368–387). Armonk, NY: M.E. Sharpe. Rothstein, B. (2011). The quality of government: Corruption, social trust, and inequality in international perspective. Chicago, IL: University of Chicago Press. Rothstein, B., & Teorell, J. (2008). What is quality of government? A theory of impartial government institutions. Governance: An International Journal of Policy, Administration, and Institutions, 21(2), 165–190. https://doi. org/10.1111/j.1468-0491.2008.00391.x Schmidt, W. H., & Posner, B. Z. (1986). Values and expectations of federal service executives. Public Administration Review, 447–454. ­ http://doi. org/10.2307/975784. Thacher, D., & Rein, M. (2004). Managing value conflict in public policy. Governance: An International Journal of Policy, Administration, and Institutions, 17(4), 457–486. https://doi.org/10.1111/j.0952-1895.2004.00254.x Thomas, R. M. (2001). Public trust, integrity, and privatization. Public Integrity, 3(3), 242–261. https://doi.org/10.1080/15580989.2001.11770874 Thompson, D. F. (1995). Ethics in Congress: From individual to institutional corruption. Washington, DC: Brookings Institution Press. van Tongeren, P., & Becker, M. (2009). Integriteit als deugd [Integrity as virtue]. In E. Karssing & M. Zweegers (Eds.), Jaarboek Integriteit 2010 (pp. 58–65). De Haag, Netherlands: BIOS. Uhr, J. (1999). Institutions of integrity: Balancing values and verification in democratic government. Public Integrity, 1(1), 94–106.

130 

L. HUBERTS

Van de Walle, S. (2008). Perceptions of corruption as distrust? Cause and effect in attitudes toward government. In L. Huberts, J. Maesschalck, & C. L. Jurkiewicz (Eds.), Ethics and integrity of governance: Perspectives across frontiers (pp. 215– 236). Cheltenham: Edward Elgar. Van der Wal, Z. (2008). Value solidity: Differences, similarities and conflicts between the organizational values of government and business. Vrije Universiteit, Enschede, Netherlands: Ipskamp Drukkers B.V. Van der Wal, Z., Huberts, L., Van Den Heuvel, H., & Kolthoff, E. (2006). Central values of government and business: Differences, similarities and conflicts. Public Administration Quarterly, 30(3), 314–364. Van Der Wal, Z., Pevkur, A., & Vrangbaek, K. (2008). Public sector value congruence among old and new EU member-states?: Empirical evidence from the Netherlands, Denmark, and Estonia. Public Integrity, 10(4), 317–334. https:// doi.org/10.2753/PIN1099-9922100402 Van Wart, M. (1998). Changing public sector values. New York: Garland. Vardi, Y., & Weitz, E. (2004). Misbehavior in organizations: Theory, research, and management. Mahwah, NJ: Lawrence Erlbaum Associates.

CHAPTER 6

The Multi-interpretable Nature of Lawfulness in a National Framework Anna Simonati

6.1   Lawfulness, Rule of Law and Typicality of Administrative Action The principle of lawfulness belongs to the deepest tradition of the democratic legal systems, and it is considered a direct consequence of popular sovereignty (Guastini, 1990, p. 99; Tarello, 1989, p. 345; Cattaneo, 1987: 260; about democratic legitimacy, see also Buckwalter & Balfour, this volume). Notwithstanding that value pluralism has been chosen as the starting point for this collective research (Paanakker, Adams, & Huberts, this volume), lawfulness may be considered as a cornerstone, at least from a methodic point of view, and it represents an aspect of integrity and quality of governance (Huberts, this volume; but see the interesting caveat on the importance of the context by Masters & Paanakker, this volume). In other words, even though values are necessarily flexible, lawfulness as a principle that requires the legal rules to be respected is expected to be a stable foundation of administrative action.

A. Simonati (*) University of Trento, Trento, Italy e-mail: [email protected] © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_6

131

132 

A. SIMONATI

In Italy, art. 97 of the Constitution makes clear that ‘public offices are organized according to law, so as to ensure good functioning and impartiality of administration.’ Hence, lawfulness means compliance with the rules in force (Giannini, 1970, p.  82); the principle works by making invalid those acts issued by public powers that are not compatible with the statutes. Its function is basic, especially when the protection of individual rights and interests is concerned, but it has a general value. A normative reference is contained in art. 1, Law no. 241/1990 (the general statute about administrative action and procedure), where it is held that administrative action pursues those aims determined by the legislator. The perception of the binding strength of lawfulness for administrative action has changed over time. At the beginning of its history in democratic legal systems, a ‘formal’ notion of lawfulness seemed to be enough, and was intended to compel the executive power to respect ‘the law.’ This refers to the primary-level sources of law; in the Italian system in force, Parliamentary and Regional statutes, as well as primary sources created by central government, either by Parliamentary delegation—the legislative decrees—or in case of necessity and urgency and under ratification by a Parliamentary statute—the law decrees. In a more modern conception, however, the principle of lawfulness also has to do with necessary compliance with the general principles and with all the rules in force (bearing in mind their different nature and legal force), in a more substantial perspective. In legal systems where the Constitution is rigid and not flexible, then, the principle is connected not only with the expression of executive (and, of course, judiciary) power, but also with the exercise of legislative power, in accordance with the hierarchy of the legal sources (Guastini, 1993; Guastini, 1992, p. III; Zagrebelsky, 1991, p.  8; Zagrebelsky, 1992). In Italy, the (rigid) Constitution lays down the basic purposes to be pursued by the institutions, and ordinary legislation imposes more specific rules aimed at achieving specific objectives; at the same time, the pursuit of objectives that are incompatible with the Constitution is not permitted. The exercise of administrative power (which is separate from the legislative and the judicial) is normally subject to the control of special courts that verify compliance with the rules in force. There are at least three different conceptions of the principle of lawfulness. In a ‘weak’ view, administrative measures should be compatible with the rules, which still allows praeter legem acts (Zagrebelsky, 1992, p. II). In a second view, administration is allowed to issue measures when a rule

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

133

expressly permits it and affords the corresponding power, at least in general terms. Finally, the principle may mean that a rule of law must d ­ etermine the structure and content of the administrative measures (Guastini, 1993, p. 86). The first view fits more easily with administrative regulations, which are expression of normative administrative power (Carlasarre, 1966, p. 113; Carlasarre, 1988, p.  621; Carlasarre, 1990, p.  2; Zagrebelsky, 1991, pp. 49–54). In fact, in art. 4.1. of the preliminary rules to the civil code, it is held that regulations may not be contrary to statutes. If they are, notwithstanding that they cannot be directly challenged before an administrative court, administrative courts may decline to apply them in a specific case (Macchia, 2013, p. 261). Consequently, public authorities are allowed to produce regulations—the so-called ‘independent’ regulations, described in art. 17.1, c, Law no. 400/1988), the issuing of which nevertheless requires that the general principles are respected (Pizzorusso, 1987, p. 330; Cheli, 1990, p. 53; Amato, 1962, p. 15; Carlasarre, 1988, p. 626; Zagrebelsky, 1991, pp. 299–300)—even in the absence of a specific statute in the same field, if the subject is not covered by a rule of law. There are two routes that can be followed in establishing the rule of law in Italy. Sometimes the Constitution requires that a subject is covered completely by a statute or a primary-level source (the so-called ‘absolute’ rule of law). But at other times, the statutes simply must determine the general legal scenario, while the details may be ruled on by secondary sources, such as executive (and also ‘independent’) regulations: this is the so-called ‘relative’ rule of law. The consensus is that in light of art. 97 of the Italian Constitution, administrative action is covered by a ‘relative’ rule of law. There are other points in the Constitution where the rule of law has to be applied in various fields connected to a greater or lesser extent with administrative action: at least, in art. 23 (where the rule of law is required to impose personal and financial obligations), in art. 95 (where the legislative power to rule the government is set out), in art. 101 (where it is made clear that courts are subject only to the law), and in art. 113 (according to which anyone may protect his/her rights and legitimate expectations before an ordinary or an administrative court, especially by challenging administrative measures). None of these rules is sufficient in itself, but the whole system represents the basis by which the principle of lawfulness is applied to administrative action (Carlasarre, 1966, p.  148; Giannini, 1970, p.  83; Amato, 1962, p. 129). In particular, the principle of the justiciability of administrative

134 

A. SIMONATI

measures plays a fundamental role in taking lawfulness to the Constitutional level. It is clear, in fact, that the subordination of administration to legal rules is needed to allow for judicial review of administrative action, in order to have a measure quashed when it has been issued in breach of the law, in the absence of a specific power or with excess of power (art. 21 octies, Law no. 241/1990). The Constitutional Court has held that administrative power may never be assigned to the competent authority without specifying the criteria to be followed in taking decisions (Constitutional Court, no. 32/2009; Ead., no. 272/2005; Ead., no. 307/2003). Therefore, the principle of lawfulness in the field of administrative law also binds the legislator, who, while allocating administrative powers, must indicate their purpose, conditions for implementation, content and legal effects (Constitutional Court no. 35/1961). Depending on which idea of lawfulness (weak or strong) is accepted, the role of the legislator will change. Sometimes, it is enough that an administrative power is given to the competent authority: in such a case, if the administrative act is undertaken by the competent subject, this assures its lawfulness. But where the issuing of individual administrative measures is concerned, the statutes normally must indicate how administration may act in the different fields. In other words, the categories of administrative measures that may be issued by each public authority, their legal effect, and the conditions, which allow and/or compel the intervention, are decided by the legislator; so, the administrative act is lawful if it respects all the elements specified. This is the principle of the typicality of administrative measures (recently, Cons. St.,1 IV, no. 3700/2016 and Id., V, no. 3674/2016; Id., V, no. 4147/2015), which (together with the principle of the separation of powers) forbids the administrative courts to issue administrative measures on their own (recently, Cons. St., VI, no. 3194/2016). The exceptions to this principle (as a corollary of lawfulness) must also be typical (Cons. St., III, no. 3048/2013). One of the most relevant examples is the power of mayors and the prefects to issue emergency ordinances: in this case, the conditions for the legal issuing of the administrative measure are very broad, because it 1  The Consiglio di Stato is the Italian supreme administrative court; the first degree administrative courts work at the Regional level and are named Tribunali Amministrativi Regionali (T.A.R.).

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

135

is enough to be facing imminent danger (Pedrabissi, 2014, p.  409; Rissolio, 2012, p. 2183; Brocca, 2012; Marazzita, 2011, p. 55; Furlan, 2010, p. 141). From another perspective, there is a further example in the debate about the existence of implicit administrative powers (Bassi, 2001). In the past, it was commonly held that the powers that had been expressly given to public authorities automatically yielded some other, related administrative powers (even though these powers were not explicitly granted, and only under the condition that they were closely connected with the initially granted exercise of powers). Later on, in the 2005 legislative reform of Law no. 241/1990, the legislator decided to rule for the first time a number of such powers, especially with reference to the issuing of ‘secondary degree’ measures, such as those aimed at removing an act because it is voidable or not proper any more, and those aimed at keeping an act valid when it ought to be voided by correcting it and making it compatible with the statutes in force. This legislative choice has produced relevant systemic effects. In fact, in the past, while using the power to issue ‘secondary degree’ measures, public subjects were not required to comply with detailed rules (as happens at present), but merely with the general principles of fair administration (but compliance with the general principles for the issuing of ‘secondary degree’ measures is still important: Cons. St., VI, no. 3659/2015, Id., III, no. 3452/2013 and Id., VI, no. 3963/2011). The need for strong administrative measures allows them to have direct effect even if invalid, until they are quashed. The only exceptions are those measures that lack the essential elements, those issued in absolute lack of power or adopted in breach or in avoidance of a judgment: they are therefore null and void (art. 21 septies, Law. no. 241/1990). The same need is particularly important when the act requires to be implemented by the addressee with a practical behavior. In such a case, the aim of economy and speed of administration takes precedence, empowering the issuing authority to unilaterally enforce the private recipient to make the measure effective, without applying to any court (art. 21 ter, Law no. 241/1990). However, this is possible only in accordance with a specific rule of law (Cons. St., VI, no. 2565/2013 and Id., IV, no. 2431/2013; Grüner, 2012; Continella, 2010; Pagliari, 2007; Raffaele, 2007).

136 

A. SIMONATI

6.2   Lawfulness and Plurality of Legal Sources: The ‘Traditional’ Scenario and the Relationship Between Statutes and Regulations A general issue concerns the increasing multiplicity of the normative levels. In art. 117 of the Constitution, those areas wherein legislative power is reserved to the national legislator are indicated. In a separate list, art. 117 indicates the fields where legislative power is split between central and regional legislators; in these fields, the state regulates the general principles, the regions regulate the detail. In all of the areas that are not mentioned, legislative power is fully owned by regional legislators. In addition, public entities, in general, have autonomous normative power. Except when an ‘absolute’ rule of law is spelled out in the Constitution, they may produce regulations that implement the primary-level normative sources. Art. 117 of the Constitution refers to regulation as the typical secondary-­ level source of law. Hence, according to a doctrinal opinion, regulations, as described in the statutes in force, are the only ‘lawful’ secondary sources or at least the only ones with Constitutional legitimacy (Batistoni Ferrara, 2005; Bin, 2004; Cheli, 2003; De Siervo, 1992; Di Cosimo, 2005; Modugno, 1993). However, at the same time, in light of art. 117, the government may produce regulations only in the areas which are totally reserved to the national legislative power. In the areas of concurrent competence, the power to issue secondary-level sources of law belongs to the regional legislators. Therefore, the governmental regulation model, whose procedure of production is strictly described in Law no. 400/1988, is not the only one. That model has been considered inefficient by public authorities, and as a result they have begun issuing different kinds of secondary-­ level sources of law, without respecting those procedural rules (and among the scholars discourse this phenomenon is known as ‘escape from regulation’: Guzzetta, 2001; Moscarini, 2008; Padula, 2010; Marcenò, 2011; Di Cosimo, 2005; Albanesi, 2011a, 2011b). Another issue concerns the emission of very detailed statutes, because— in light of the principle of separation of powers—a statute may not have the same specific kind of content as an individual administrative measure (Constitutional Court no. 241/1998, Ead., no. 267/2007, Ead. no. 271/2008). If such a statute directly and immediately were to have an adverse legal effect on some individuals, then, it would contradict the principle of justiciability, because statutes are not individual administrative measures, and therefore, they may not be challenged by citizens. This last

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

137

point has been occasionally raised in the case law of the Constitutional Court (Constitutional Court no. 271/2008), but the Court also held that the Constitution does not fully forbid the issuing by Parliament of statutes with specific content (Constitutional Court no. 347/1995; Ead. no. 267/2007). However, since the probability of breaching the principle of equality is strong (Rescigno, 2007, p. 319; Rescigno, 2008a, 2008b), the Court added that these kind of provisions could be subject to administrative judicial review, to check their potential arbitrariness or unreasonableness (Constitutional Court no. 492/1995, Ead. no. 195/1998, Ead. no. 429/2002; Ead. no. 364/1999; Ead. no. 2/ 1997, Ead. no. 241/2008; Ead. no. 271/2008; Cons. St., IV, no. 1918/2014).

6.3   Lawfulness and Good Administration Notwithstanding that the parameter of good functioning is expressly indicated in art. 97 of the Italian Constitution, in the past there has been a tendency to deny the existence of a real legal duty to provide good administration, because—similarly—there may not be a legal duty of legislators to produce good statutes and rules (Casetta, 1957, p. 315). In this view, art. 97 had to do essentially with the efficient organization of public bureaux and with the personal virtues of public servants, which cannot be legislated for. More recently, however, awareness of the strategic importance of the principle of good administration has grown and it is at present connected with many different corollaries: not only efficiency, efficacy, and economy of administrative action (Lillo & Festa, 2003; Melis, 2014; Pellegrino & Manzo, 2010; Sortino, 2003), but also its ability to be understood by citizens (Cons. St., III, no. 2497/2016), its affordability, the justiciability of administrative decisions, accountability (as a sort of species of ‘responsibility’: O’ Kelly & Dubnick, this volume), openness, and fairness. An important element—that is also closely linked to lawfulness and is expressly ruled on in art. 118 of the Italian Constitution—has to do with subsidiarity, both in the vertical sense (in the mutual relationships among authorities) and in horizontal sense (in the relationship with private subjects). In the former perspective, it is important to mention art. 120 of the Constitution, according to which the statutes lay down procedures to ensure that public powers are exercised in compliance with the principles of subsidiarity and fair cooperation. In the perspective of horizontal ­subsidiarity, participation by citizens in administrative action of course plays a fundamental role.

138 

A. SIMONATI

Another basic principle mentioned in art. 97 of the Italian Constitution is impartiality. Impartiality of administrative action potentially has multiple in relation to the principle of lawfulness. In fact, impartiality is a general rule of behavior for public authorities, a consequence of the more general principle of equality, ex art. 3 of the Constitution. Moreover, impartiality corresponds to a precise duty of administration, in order to implement parameters of good faith in its daily action (Benvenuti, 1975, p.  818; Merloni, 2009; Spuntarelli, 2008; Cons. St., III, 10.6.2016, no. 2497). An interesting point concerns the harmonization between lawfulness and administrative efficiency: the latter, of course, is concerned not only with costs, but also with the overall quality of governance. The two principles must work together. The harmonization between lawfulness and a results-based approach to administration (Iannotta, 2003; Perfetti, 2008) is related to the evaluation not only of single measures, but also of the wider view of public action that goes beyond the analysis of behaviors by individual employees in individual procedures. The two levels have different objects, aim at partially different purposes, and are based on different methods. When it concerns single measures, the principle of lawfulness may be easily redirected to the general criteria of legitimacy of administrative acts. When it is used in a comprehensive perspective, compliance with the general principles of planning, programming, and policy-making action becomes more important. Moreover, rule-making is also involved, as is demonstrated by the introduction to the Italian legal system of the Analysis of Impact of Regulation (A.I.R) and Evaluation of Regulatory Impact (V.I.R) mechanisms, both provided for in art. 14, Law no. 246/2005. Before the issuing of a normative act by government, the first, Analysis of Impact of Regulation, studies reasons for its being issued and its probable impact; the second, Evaluation of Regulatory Impact, makes an analogue analysis after a primary period of implementation of the act (Fracchia, 2016, p. 9). The link between lawfulness and good administration and between good administration and its main corollaries (primarily, efficiency, efficacy, and economy of administrative action) has created a need for the evaluation parameters of administrative action to be ‘translated’ into qualitative terms. This problem is evident in the case law created by the Constitutional Court, where it is very seldom that the principle of good administration alone has been the basis of a declaration that the Constitution has been violated in a contested statute. In most cases, rather, the Court has recognized the existence of a wide legislative power of choice when it comes to

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

139

how the principle should be implemented in practice. Good administration is normally referred to, in order to void primary sources of law, together with the principle of impartiality, primarily at an ‘organizational’ level. For instance, some statutes were considered not compatible with art. 97 of the Constitution, because they requested that a number of political appointees be made members of administrative boards that had technical competences: the Constitutional Court held that provisions allowing a majority of politicians rather than technicians to be included on a selection panel for the recruitment of civil servants were not compatible with art. 97 (Constitutional Court no. 453/1990). Such a conclusion is considered a consequence of the principles of good administration and of lawfulness of administrative action. In light of the same principles, to be really impartial, each administrative decision requiring a choice among various candidates seeking a favorable measure must be based on an objective method of selection. An effect of this is the separation of politics and administration: if democracy is the legitimizing source of governments, the rules about recruitment and career path assure competency, professionalism, and expertise of public servants (Cons. St., V, no. 4192/2013, Id., V, no. 808/2014 and Id., V, no. 4139/2015; Monzani, 2014; Mascagni, 2012). If good administration in itself cannot be the basis for an objective check of the overall quality of administrative action, in various recent rulings the principle of quality of administrative action has been mentioned. Of course, the problem of how to measure the quality of administration is still open, and the answer given by rules inevitably relies on quantitative criteria. For instance, this happens in connection with public utilities (see, in general, art. 11, Legislative Decree no. 286/1999) and in this field the Citizens’ Charter may be an instrument for proposing specific indicators. Further proof of efforts to ensure quality of administration by imposing quantitative criteria are found in the necessary respect for the terms under which the procedures are concluded, which is ruled upon in Law no. 241/1990 (even if, according to the case law, they are not strictly compulsory: Cons. St., V, no. 4980/2013). Such an orientation is particularly evident, then, in Legislative Decree no. 33/2013 (emended in 2016) about administrative transparency, according to which some types of documents and information must be published on the authority’s website or may be given to people asking for it, in order to contrast corruption and maladministration. It is, however, relevant that in these rulings great attention is paid to enforcement and justiciability, both before the administrative courts and through alternative dispute resolution mechanisms. This shows that the whole

140 

A. SIMONATI

administrative and judicial system is involved to ensure compliance with the rules that impose respect for the criteria of good administration. Other relevant tools to assure good administration are provided for in Law no. 241/1990. As already pointed out, this is the fundamental statute about administrative procedure in Italy; it has generalized principles that previously had been implemented often by the administrative courts (de Pretis, 2010). Following the administrative procedure indicated in the statute not only corresponds to formal compliance with the legal system, but also ensures that all the relevant interests for the final decision are taken into account by the competent authority. The fair execution of the procedure is a method of granting that the principle of good administration, which is a direct corollary of lawfulness in a broad sense, works to achieve efficiency without causing an excessive or disproportionate sacrifice on the part of the individual (Trimarchi Banfi, 2016, p. 361). From this perspective, lawfulness of administrative action requires, in a ‘positive’ view, conformity to reasonableness, correspondence with the facts and substantial equity (de Pretis, 2010). To provide just a few examples, one may say that the first important procedural tool is described in art. 2 of Law no. 241/1990 and concerns the duty to ensure each procedure produces an expressed act. This means that the exercise of administrative power, at least when a procedure has formally begun, normally corresponds to a duty of the competent authority (Cons. St., III, no. 3827/2016). Hence, the principle of lawfulness does not work only to prevent administrations acting in breach of the statutes in force. It compels administrations to exercise their power and to exercise it properly, fully respecting the rules and principles and within a reasonable time. This is a consequence of lawfulness—in a ‘constitution-­ oriented’ interpretation—as the source of a duty to pursue the public interest. In other words, where the statutes assign an administrative competence to fulfill a public interest, the owner of such a power can (but must, as well) act to protect that interest. However, rigidly interpreting this duty can produce excessive and inefficient complications. As a result, sometimes there will be a legislative reduction in public authorities’ duty to exercise power, using a provision for tacit decisions. This so-called ‘significant silence’ is lawful (as it has to be expressly allowed by a ruling) and of course it makes administrative action simpler, but at the same time it opens up some serious issues from the point of view of good administration (Constitutional Court no. 245/2015). In fact, de

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

141

facto it allows administration not to examine the case in hand and, consequently, not to take into account the interests involved (Bombardelli, 2016, p.  758; De Clementi, 2016, p.  17; Scalia, 2016, p.  11; Certomà, 2014, p. 322; Pastori, 2010, p. 267; Corso, 2010, p. 274). Nonetheless, the duty of administration to protect the individual interests of private parties who are directly involved in administrative action is of primary importance and is considered a direct consequence of the principles of lawfulness and good administration (Cons. St., V, no. 4140/2015). The link between lawfulness, good administration, and participation by private parties is quite evident, even if, in recent years, the Constitutional Court has not recognized the Constitutional relevance of the administrative due process of law (Constitutional Court no. 13/1962, Ead. no. 143/1989, Ead. no. 344/1990, Ead. no. 103/1993, Ead. no. 57/1995, Ead. no. 68/1998; later, the Court held that administrative participation corresponds to a general principle: Constitutional Court no. 353/2001, Ead. no. 133/2005, Ead. no. 397/2006; due process is imposed by art. 97 of the Constitution, instead, according to Constitutional Court no. 103/2007). It must be borne in mind that although on one hand participation is clearly useful for allowing an administration to undertake a complete inquiry step, in order to get all the relevant factual and legal elements to take the a decision; on the other hand, it also complicates things, both from the point of view of administrative organization and from the point of view of costs. The same may also be inferred with reference to institutional cooperation, which is required when different public interests are involved in decision making (Marzaro, 2016; Cons. St., IV, no. 4280/2014; Id., V, no. 5292/2012). The potential conflict between efficiency, efficacy, and economy is only sometimes directly solved in advance by the legislator (for instance, when a specific provision permits ‘tacit decisions’ by the administration) (Cons. St., IV, no. 2136/2005). In other cases, there is space for the exercise of administrative discretionary power that is reserved to administrative authorities and allows them to choose the best solution in the specific situation, in light of a balance between the interests involved (Cons. St., VI, no. 6041/2013). Therefore, legal attention gradually moves from the content of the final measure to the procedure. The former is seen as the effect of the inquiry step. The real focus becomes the compliance with the principle of due process, and administrative action is not seen as a monolithic activity any more, on the contrary being based on bilateral or even multilateral legal relationships.

142 

A. SIMONATI

Finally, another basic general tool to ensure good administration is provided for in Law no. 241/1990 and is the duty of administration to give reasons for each administrative final measure. The duty to give reasons is the classical corollary of the principle of lawfulness, because it compels administration to show what rules have been implemented and the decisional path that has been followed in the inquiry stage (Cons. St., III, no. 1656/2016; Id., III, no. 5857/2014).

6.4   The Evolution of Lawfulness of Administrative Action and the Judicial Review: Brief Remarks Due to the necessary synthesis of ideas in this chapter, it is only possible to offer some basic information about the judicial review of administrative measures (Romeo, 2012; Scoca, 2009, p. 118), and only with reference to the Italian legal system and not to its links with the E.U. one. Discretionary administrative power cannot be the object in its substantive content of a judicial review; its exercise can be checked by the administrative courts, not on its merits, but only from the point of view of whether it is in accordance with the aims indicated in the statutes. In other words, judicial review is permitted to check whether or not the discretionary power was correctly used: in the negative, the measures are vitiated with excess of power. A fundamental parameter for checking whether an administrative measure is voidable because of excess of power is the principle of proportionality. This ensures that the desired result in the public interest is obtained with the least sacrifice of private interests (Cons. St., V, no. 4733/2012; Id., VI, no. 5615/2015; Id., VI, no. 287/2016). Another parameter is the prohibition of unequal treatment: this cannot be used to obtain a favorable unlawful measure, even if it has been already applied to someone else (Cons. St., VI, no. 1298/2013; Id., VI, no. 3044/2011). The rules governing possible reasons for voiding an administrative measure have evolved, and at present, an act cannot be declared void ­simply just because of formal procedural infringement of an individual’s rights. Moreover (and in parallel), if there is no proof of a substantial breach of an individual’s interests, the act may not be declared void in the presence of certain procedural irregularities. In such cases, the autonomous relevance of public interest in compliance with the principle of law-

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

143

fulness is not enough; a voidable administrative measure may be quashed if there is another (and further) public interest to eliminate it (Cons. St., IV, no. 4148/2013; Id., IV, no. 1216/2014). Evidence of this evolution may be found in art. 21 octies, Law no. 241/1990, amended by Law no. 15/2005. According to this rule (as has already been made clear), administrative measures are voidable if they have been issued in breach of the law, without the specific powers required, or are vitiated by excess of power. At the same time, when the breach of law concerns rules about forms or procedure, the measure has just ‘formal defects’ and it cannot be quashed if it is evident that its content should have been the same in any case. Besides, an administrative measure is not voidable if the breach consists in the failure to communicate to the interested private parties that the procedure has begun, if the authority shows that the content of the final measure would have been the same, even if those subjects had been allowed to participate. Therefore, notwithstanding that in these cases lawfulness has been breached, what really matters is the absence of an individual interest to be concretely protected. The need for stability in administrative decision making is the dominant value. The overall coherence of the legal system is saved, because the exception to the general principle of administrative lawfulness is also ruled by a statute. The administrative decision in this case is unlawful (even if not voidable), and consequently, the way to a damages action may be open (de Pretis, 2010; about the conditions for compensation of damages before an administrative court, see recently in general Cons. St., V, no. 1584/2016 and Id., IV, no. 4375/2015).

6.5   Public Interest and Private Law: No More a Dichotomy for Administrative Action In Italy, the principles and rules about administrative action represent a special branch of public law. Notwithstanding this, privatization has been developing, especially since the 1990s, with various consequences. First, privatization has determined the progressive withdrawal of public bodies from certain fields, and their replacement by (at least formally) private subjects. The direct involvement of private subjects in the fulfillment of public interest is partially an effect of the growing legal and economic integration—especially at the European level—with the supranational systems.

144 

A. SIMONATI

The Italian legislator transformed numerous public entities already involved in economic activity into public companies; in those areas, administrative involvement was no longer direct and became instead about rule-­ making and supervising. At the same point, various independent authorities were created and given regulatory powers; their constitution is an effort to reduce the political influence in strategic sectors in accordance with good administration, lawfulness, and impartiality. Hence, issues arise from the perspective of protecting the public interest (Cons. St., VI, no. 1574/2012) and avoiding maladministration in the interwoven with profit-oriented activities. An indirect effect of privatization concerns the mutual approaching of private and public law. Besides, the (so to say) ‘traditional’ principles of fair administration, the new parameters involving reduction of costs and good performance levels have been acquiring value. Such principles are especially linked with service provision and customer satisfaction (Margheri, 2009; Alagna, 2010; Nardozzi Tonielli & Carbone, 2011; Nicodemo, 2014; about the possible role of public–private partnerships, Reynaers, this volume). This phenomenon has also produced some relevant effects on the principle of administrative lawfulness. Art. 1 of Law no. 241/1990 provides that when adopting non-authoritative measures, administration acts in accordance with private law, unless a rule provides differently. The interpretation of this provision is very complicated, but it is clear that it opens up the use of private law by authorities when it is compatible with the pursuit of public interest. Nonetheless, one must realize that private law criteria are not completely extendable to public action, as the latter may not be reduced simply to the fulfillment of economic benefits (Astone & Martines, 2016, p. 109; Mazza Laboccetta, 2015, p. 633; Wright, 1994, p. 137; Immordino & Police, 2004; Cons. St., IV, no. 326/2016; Id., VI, no. 5617/2015; Id., VI, no. 3571/2015). From another point of view, privatization has also been relevant to the employment of public servants, who nowadays are normally subject to private law for many aspects of their legal position, after their recruitment (which is instead mainly ruled by public law; Polizzi, 2012; Romeo, 2010; Battini, 2006; Carinci, 2006; Cons. St., III, no. 1017/2015). Finally, privatization has worked with the aim of simplifying administrative action, by removing direct competences from the public authorities and replacing them with (partially or totally self-sufficient) interventions by private parties, who are normally the subjects aiming at obtaining a

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

145

favorable administrative measure (in general, ex art. 19, Law no. 241/1990). In such cases, private subjects are allowed either to start their activity immediately, or to start their activity after having sent all the relevant documents to the competent authority. Then, the public power acts ex post, to check the compliance with the legal system of the private action. In the recent legislative evolution, however, this power has been progressively reduced (especially with the provision for a strict timetable within which the power should be exercised), in order to make it compatible with the principles of legal certainty and of the protection of legitimate expectations. This may mean that, in this case, privatization is able to move the balance point between lawfulness and other values, with a tendential sacrifice of the traditional role of public authorities as ‘sentinels’ of lawfulness, on their own as a first step and in cooperation with the courts as a second.

6.6   Simplification v. Complication and the Pitfalls of Lawfulness: Two Significant Examples It would be a mistake to think that the age of reforms, begun in Italy with the issuing of the 1990s statutes (especially Law no. 241/1990) and still partially pending, has made the complex relationship between lawfulness and good administration clearer and simpler. Certainly, the aim was to introduce a new vision of administrative action, based on transparency and the participation of the citizens (Pastori, 2009); nonetheless, the rules issued in recent years are often partial and fragmentary. Consequently, it is necessary to have some ‘read across’ of the various statutes in force to get a comprehensive view of how administration really works or should work. Besides, some subjects require a deep technical knowledge to be properly ruled upon, and the legislator is not always able to express detailed contents; moreover, technical and scientific rules frequently develop and change, and they are hardly compatible with a static set of binding legal sources. The typical example, from this point of view, concerns the use of new technologies by public authorities, which, clearly, has changed the techniques of administrative activity. Digitalization is not considered as a principle or a goal in itself, but as an element of a comprehensive strategy of reform, in order to make administration more efficient (Cardarelli, 2015, p.  271; Civitarese Matteucci, 2016,

146 

A. SIMONATI

p.  127). The rules are partly proposed in the so-called digital Code (Legislative Decree no. 82/2005, later emended several times), partly in other primary sources (such as Legislative Decree no. 33/2013, focused on administrative transparency) and specific indications live together with general principles, whose implementation requires an effort at adapting them. From another point of view, slightly paradoxically, complication may be an effect of legislative reforms. One example is the discipline of the principle of transparency, as a corollary of good administration. Basically, the rules are contained in Law no. 241/1990 and in Legislative Decree no. 33/2013 (which aim at preventing and contrasting corruption in administrative action: Carloni, 2013, p. 34). In Law no. 241, the principle of administrative transparency is mentioned, but it is not described (Manganaro, 2012, p. 3; Marsocci, 2013; Occhiena, 2011, p. 143), and so the legislator accepts the ‘traditional’ idea of transparency, which—in general terms—compels administrative action to be comprehensible during the procedure and checkable in its final results (Abbamonte, 1991, p.  13; on the relationship between transparency and predictability, Schnell, this volume). In this view, publicity is just one of the mechanisms for obtaining transparency (Arena, 2006, p. 5945) and, in order to be substantially transparent, the subjects acting in the public interest have a general duty to make sure their measures are able to be fully understood by the citizens (Spasiano, 2011, p. 89; Bonomo, 2012). At the same time, according to Legislative Decree no 33/2013, transparency is closely allied with publicity, because it is intended as total accessibility of information, in order to encourage widespread control of the pursuit of the institutional duties and of the use of public resources. At present, therefore, there Italy has two different notions of transparency. The first, and traditional, one (implicitly but clearly accepted in Law no. 241/1990) essentially aims to grant to private parties information tools for self-protection in their relationship with administration. The second one (now expressed in Legislative Decree no. 33/2013) is essentially based on publicity and despite the limits set by the protection of public confidentiality, of an individual’s right to privacy and by administrative efficiency, aims to give citizens broad control of public action. Ensuring a fair and rational co-existence of the twin souls of the same principle is a not simple mission for legal scholars and practitioners.

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

147

6.7   The Independent Authorities’ Guidelines and the Acceptance of Atypical Legal Sources as an Answer to the Crisis of ‘Traditional’ Administrative Lawfulness In recent years, numerous independent authorities have been created, with the role of actively cooperating in the issuing of rules, in technical or specialized sectors. The legislator often provides them with the power to issue guidelines to be implemented. This has the fundamental effect of adding new legal sources in the administrative system. For instance, interesting rules concern the joint action of the Data Protection Authority and the National Anti-Corruption Authority (A.N.A.C.), in the field of access to administrative documents and information. After a participatory procedure, they indicate the groups of information which may not be published or may only be published in part, compatibly with the principles of proportionality and simplification (art. 3 and art. 5 bis.6, Legislative Decree no. 33/2013). Other relevant examples concern, first, the competence of the A.N.A.C. in the emission issuing of guidelines related to the implementation of the ‘public procurement code’ (Legislative Decree no. 50/2016) and, second, the issuing of guidelines by the Independent Authority for Data Protection in many fields concerned with data processing The integration of the legal framework with guidelines issued by independent authorities is not in itself a breach of the ‘relative’ rule of law, contained in art. 97 of the Constitution. In any case, notwithstanding that they may be globally indicated as secondary-level sources of law, the various kinds of guidelines are quite different from one another. In fact, while some of them only have the status of indicating best practices to be followed, other are legally binding (such as some of those issued by the A.N.A.C. in the field of public procurement). Therefore, it is not correct to define all of them as ‘soft law’ measures, because their effect is not reduced to moral suasion (Morettini, 2011). When they produce binding effect, they also determine the abrogation of pre-existing regulations. This is not a problem when a statute requires that they are approved with a decree of the competent Secretary of State, because such a choice s­ ubstantially makes them Ministerial regulations, with a clear place in the legal system. But, in the other cases, they work as atypical legal sources. They are of course an answer to the need for quick and flexible rules, and may be considered as the most advanced paradigm of administrative lawfulness. At the same time, they must be very

148 

A. SIMONATI

carefully looked at, because they allow public authorities—which are not democratically legitimated and are often closely aligned with groups of private subjects, holders of economically and socially strong interests—to create binding rules. This could be in conflict with the basic corollaries of the principle of good administration, such as impartiality. Actually, the procedure for their issuing grants participation by the interested parties, and their proper publication is also assured. But this is probably not enough to regard them as regulatory acts (which are similar to regulations in strict sense), sometimes issued by the independent authorities in execution of specific statutes. In case law, such regulations are commonly referred to as secondary-level sources (Cons. St., advice 14.2.2005; Id., VI, no. 2182/2016; Id., VI, no. 1532/2015; Id., VI, no. 4874/2014), based on a series of conditions: first, their frequent strong supra-national legitimacy (often at the E.U. level); second, their technical nature and the narrow dimension of the field of implementation; third, a strong need that rule-making is independent of government and political power, especially due to the primary relevance of the interests involved. These conditions do not work (or, at least, do not work in the same way) with guidelines (Morbidelli, 2007), and their full compliance with the principle of lawfulness is thereby put in doubt. They are clearly a breach of the ‘strong’ conception of the principle, while instead they are compatible with a weaker idea of lawfulness, according to which the rule-making action by the independent authorities is an expression of the ‘regulatory role’ assigned to them by the legislator. There is just one common point in the various views: guidelines are unlawful when a statute allows their issuing only in pursuit of a broad goal or value, and this is surely a too general reference. Opinion remains open about their definition either as a new sort of normative act or as administrative acts with general content, addressed to the group of stakeholders who are the subjects acting in the specific field of competence. In both cases, they show that in recent years in Italy, the principle of lawfulness has become much more flexible than it used to be.

6.8   Final Remarks In Italy, administrative action is based on the (rigid) Constitution, on some fundamental statutes and on a series of different sources of law that have recently grown in number and in importance. It is not reduced to the mere execution of the rules in force, because the principle of

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

149

good administration often requires that decisions are taken through a discretionary evaluation of the concrete circumstances and interests involved in the case. While in the past one could think of the legal order as at a sort of ‘closed’ system, this is no longer possible. In addition to each rule, there are now a number of exceptions. Moreover, the relationship between administrative competence and private action has progressively become more and more complicated and, in numerous fields, authorities simply have a supervisory role in relation to the initiatives of individuals (especially, in economic and productive sectors; Bin, 2009). In summary, lawfulness sometimes works through very specific and technical statutes and regulations; at other times, it is based on general rules. Complexity is evident from a procedural point of view. The comprehensible and proper desire to ensure that each relevant interest is taken into account, either before the production of new rules or the issuing of individual measures, determines the necessity of involving a number of subjects, particularly when the public intervention concerns technical fields. At the normative level, this metamorphosis is based on the progressive replacement of ordinary statutes with emergency law decrees as primary-­ level legal sources, and on the progressive abandonment of the ‘traditional’ executive regulations issued by government (their production is considered too complicated from a procedural point of view) as secondary-­ level sources. The other interesting element is the frequent emission of guidelines by independent authorities, not only as soft law tools, but also with real normative effect. The result is that legal sources often require careful interpretation, to be really understood and properly implemented. Consequently, the role of scholars and of the courts has a primary relevance. The courts are often able to have the last word. Even if in Italy their voice has no legislative value, as it can have in other legal systems, it is nonetheless listened to carefully. In this perspective, one must keep in mind that the judicial system is made up not only by the national courts, but also by the supra-national ones, especially the European Court of Justice. Case law made by the Luxembourg Court is normally binding for the national courts, and it is also able to produce an indirect influence on the legislators (Della Cananea & Franchini, 2017; Pepe, 2012). The scholars are influenced by the supra-­national rules and case law. Therefore, the parameters for

150 

A. SIMONATI

a check on the lawfulness of administrative action have changed in recent decades. In particular, the general principles of administrative action are accepted as a product of sharing concepts and views in a wide cultural and legal context. Clearly, such a method takes with it a danger, which is a possible ‘legal colonialism’ in the field of the principles of good administration by the E.U. member countries, whose older and more settled tradition is considered (and objectively is) stronger than another’s. In conclusion, in light of all the elements indicated one could infer that at present, and also in the view of the legislator, the ‘traditional’ idea of lawfulness is too rigid and should be partly replaced with more flexible rules that are the product of negotiation among various subjects, representative both of the institutions and of the stakeholders in the specific sector. In this perspective, lawfulness is becoming, so to say, ‘less authoritative.’ Nonetheless, such a transformation is at present driving lawfulness toward a stronger conception of the protection of procedural rights, in order to produce both normative acts and individual administrative measures (Cons. St., VI, no. 2182/2016; Id., VI, no. 1532/2015). Such “evolutional” conception of lawfulness may offer food for thought for further research, in both empirical and comparative studies. In particular, in the dichotomy between clarity and confusion (Master, Paanakker, & Huberts, this volume), one may say that as far as Italy is concerned, the principle stays somewhere in the middle. This is because the concept of administration itself is becoming increasingly complicated, from both subjective and objective points of view. Nonetheless, lawfulness still represents and will necessarily represent one of the main reference points for good administration. It could be that some other values could be added, and others might change their physiognomy in the near future (think for instance of the views on accountability expressed by O’ Kelly & Dubnick, and those on providing service quality through public–private partnerships expressed by Reynaers, this volume). The principle of lawfulness seems to be a stable foundation for all administrative systems, even though the content of the rules in force can change over time. The potential transformation of the principle has mainly to do with the enrichment and progressive flexibility in the number and typology of legal sources. Therefore, the physiognomy of lawfulness needs to be explored further, especially with the purpose of making clear its relationship with other values.

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

151

References Abbamonte, G. (1991). La funzione amministrativa tra riservatezza e trasparenza. Introduzione al tema, in Aa.Vv., L’amministrazione pubblica tra riservatezza e trasparenza. Paper presented at the XXXV Convegno di Studi di Scienza dell’Amministrazione – Varenna, 1989, Milan, Italy, Alagna, S. (2010). Ristrutturazioni, privatizzazioni e liberalizzazioni dinanzi alla sfida del mercato globale. In Rivista di Diritto dell’economia dei Trasporti e dell’ambiente (p. n.p.). Italy. Albanesi, E. (2011a). I decreti del Governo “di natura non regolamentare”. Un percorso interpretativo. In M. Cartabia, E. Lamarque, & P. Tanzarella (Eds.), Gli atti normativi del Governo tra Corte costituzionale e giudici (p.  169 ff.). Turin, Italy. Albanesi, E. (2011b). La banca dati normattiva e gli atti normativi non numerati. In N.  Lupo (Ed.), Taglialeggi e normattiva tra luci e ombre (pp.  225–232). Padua, Italy. Amato, G. (1962). Rapporti fra norme primarie e secondarie (aspetti problematici). Milan, Italy: Giuffrè. Arena, G. (2006). Trasparenza amministrativa. In S. Cassese (Ed.), Dizionario di diritto pubblico. Milan, Italy. Astone, F., & Martines, F. (2016). Principio di legalità ed attività di diritto privato delle amministrazioni pubbliche (The Principle of legality and the activities of private law of the public administration). Diritto dell’economia, (1), 109–126. Bassi, N. (2001). Principio di legalità e poteri amministrativi impliciti. Milan, Italy: Giuffrè. Batistoni Ferrara, F. (2005). Una nuova fonte di produzione normativa: i decreti minusteriali non aventi natura regolamentare. Rivista di diritto tributario, 10, 1123–1127. Battini, S. (2006). La disciplina delle mansioni dei dipendenti pubblici: per una “privatizzazione sostenibile”. Giornale di diritto amministrativo, 12, 1382–1387. Benvenuti, F. (1975). Per un diritto amministrativo paritario. In Aa.Vv. (Ed.), Scritti in memoria di Enrico Guicciardi (p. 816ff.). Padua, Italy: Cedam. Bin, R. (2004). “Problemi legislativi e interpretativi nella definizione delle materie di competenza regionale”—Rileggendo Livio Paladin dopo la riforma del Titolo V.  In Aa.Vv. (Ed.), Scritti in memoria di Livio Paladin (p.  304ff.). Naples, Italy. Bin, R. (2009). Soft law, no law. In A.  Somma (Ed.), Soft law e hard law nelle società postmoderne (p. 31ff.). Turin, Italy: Giappichelli. Bombardelli, M. (2016). Il silenzio assenso tra amministrazioni e il rischio di eccesso di velocità nelle accelerazioni procedimentali. Urbanistica e appalti, 2016, 758–767.

152 

A. SIMONATI

Bonomo, A. (2012). Informazione e pubbliche amministrazioni: dall’accesso ai documenti alla disponibilità delle informazioni (Vol. 15). Bari, Italy: Cacucci Editore Sas. Brocca, M. (2012). L’altra amministrazione: profili strutturali e funzionali del potere di ordinanza. Naples, Italy. Cardarelli, F. (2015). Amministrazione digitale, trasparenza e principio di legalità. Diritto dell’informazione e dell’informatica, 31(2), 227–273. Carinci, F. (2006). Giurisprudenza costituzionale e cd privatizzazione del pubblico impiego. Il Lavoro nelle pubbliche amministrazioni, (3–4), 499–548. Carlasarre, L. (1966). Regolamenti dell’esecutivo e principio di legalità (vol. 40). Padua, Italy: Cedam. Carlasarre, L. (1988). Regolamento (diritto costituzionale). Enc. dir. (vol. XXXIX). Milan, Italy. Carlasarre, L. (1990). Legalità (principio di). Enc. giur. (vol. XVIII). Rome, Italy. Carloni, E. (2013). I principi del codice della trasparenza. In B. Ponti (Ed.), La trasparenza amministrativa dopo il d. lgs. 14 marzo 2013 (pp. 29–56). Rimini, Italy: Maggioli Editore. Casetta, E. (1957). Attività e atto amministrativo. Rivista Trimestrale Diritto Pubblico, 298 ff. Cattaneo, M. A. (1987). Garantismo. In G. Zaccaria (Ed.), Lessico della politica (pp. 260–269). Italy: Rome. Certomà, F. (2014). Nuove fattispecie in tema di silenzio amministrativo. Giornale di diritto amministrativo, (3), 322–327. Cheli, E. (1990). Ruolo dell’esecutivo e sviluppi recenti del potere regolamentare. Quaderni costituzionali, (1), 53–76. Cheli, E. (2003). La produzione normativa: sviluppo del modello costituzionale e linee di tendenza attuali. In Accademia Nazionale dei Lincei (Ed.), Lo stato della Costituzione e l’avvio della Costituzione europea (p. 127ff.). Rome, Italy: Accademia Nazionale dei Lincei. Civitarese Matteucci, S. (2016). Digitalisation and reforms of public administration in Italy. Italian Journal of Public Law, 8(1), 127–163. Continella, D. (2010). L’esecutorietà del provvedimento amministrativo ai sensi dell’art. 21-ter della L. 241/90. Quaderni amministrativi, 3, 13–15. Corso, G. (2010). Administrative procedures: Twenty years on. Italian Journal of Public Law, 2(2), 273–289. de Clementi, F. (2016). Il silenzio assenso procedimentale tra amministrazioni pubbliche e tra amministrazioni pubbliche e gestori di beni o servizi pubblici. Quaderni amministrativi, 1, 17–26. de Pretis, D. (2010). Italian administrative law under the influence of European law. Italian Journal of Public Law, 1, 6. de Siervo, U. (1992). Il potere regolamentare nell’amministrazione centrale. Bononia, Italy: Il mulino.

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

153

Della Cananea, G., & Franchini, C. (2017). I principi dell’amministrazione europea: Con la collaborazione di Marco Macchia. Turin, Italy: G. Giappichelli Editore. di Cosimo, G. (2005). I regolamenti nel sistema delle fonti. In Vecchi nodi teorici e nuovo assetto costituzionale. Milan, Italy: Giuffrè. Fracchia, F. (2016). Legistica, AIR e VIR: tecnica legislativa, effetti invalidanti e diritti dei cittadini. Il Diritto dell’Economia, 29(1), 9–40. Furlan, F. (2010). La disciplina concreta del potere di ordinanza. Le regioni, (1–2), 141–156. Giannini, M. S. (1970). Diritto amministrativo (Vol. 1). Milan, Italy: A. Giuffrè. Grüner, G. (2012). Il principio di esecutorietà del provvedimento amministrativo. Naples, Italy. Guastini, R. (1990). Le garanzie dei diritti costituzionali e la teoria dell’interpretazione. In R. Guastini & P. Comanducci (Eds.), Analisi e diritto 1990. Ricerche di giurisprudenza analitica (p. 99). Turin, Italy. Guastini, R. (1992). Quindici lezioni di diritto costituzionale2 (vol. III). Turin, Italy. Guastini, R. (1993). Le fonti del diritto e l’interpretazione. Milan, Italy: Giuffrè. Guzzetta, G. (2001). Problemi ricostruttivi e profili problematici della potestà regolamentare dopo la riforma del Titolo V.  Istituzioni del federalismo, 6, 1123–1148. Iannotta, L. (Ed.). (2003). Economia, diritto e politica nell’amministrazione di risultato. Turin, Italy. Immordino, M., & Police, A. (2004). Principio di legalità e amministrazione di risultati. Turin, Italy. Lillo, F., & Festa, G. (2003). I controlli di legittimità sugli atti amministrativi tra proposte e riforme. Il Foro Amministrativo, 4, 1472–1487. Macchia, M. (2013). The incidental legality review of regulations in Italy. Italian Journal of Public Law, 5(2), 261–292. Manganaro, F. (2012). L’evoluzione del principio di trasparenza. In F. G. Scoca (Ed.), Studi in memoria di Roberto Marrama (p. 3 ff.). Naples, Italy. Marazzita, G. (2011). L’irresistibile tentazione del potere di ordinanza (The irresistible temptation of the ordinance power). Osservatorio sulle fonti, 2, 1–55. Marcenò, V. (2011). Quando il formalismo giuridico tradisce se stesso: i decreti di natura non regolamentare, un caso di scarto tra fatto e modello normativo nel sistema delle fonti. Giurisprudenza costituzionale, 1041–1053. Margheri, A. (2009). La rilevazione della customer satisfaction nelle amministrazioni pubbliche. Informator, 1, 9–14. Marsocci, P. (2013). Gli obblighi di diffusione delle informazioni e il d. lgs. 33/2013 nell’interpretazione del modello costituzionale di amministrazione. Istituzioni del federalismo: rivista di studi giuridici e politici, (3), 687–724. Marzaro, P. (2016). Coordinamento tra amministrazioni e silenzio-assenso. Giustamm.it, 5, 1–15.

154 

A. SIMONATI

Mascagni, F. (2012). Il principio di distinzione delle competenze tra politica e dirigenza è ancora in grado di garantire l’indipendenza e quindi l’imparzialità dell’attività amministrativa? Nuova Rasegna di Legislazione, Dottrina e Giurisprudenza, 1, 25–35. Mazza Laboccetta, A. (2015). Autorità amministrative indipendenti e principio di legalità. Diritto dell’economia, (3), 633–648. Melis, G. (2014). La lunga storia dei controlli: i conti separati dall’amministrazione. Rivista Trimestrale Diritto Pubblico, (2), 397–413. Merloni, F. (2009). Organizzazione amministrativa e garanzie dell’imparzialità. Diritto pubblico, 1, 57. Modugno, F. (1993). Validità (diritto costituzionale). Enc. dir (vol. XLVI). Milan, Italy. Monzani, S. (2014). Principio di separazione tra funzione di indirizzo politico e funzione di gestione quale valore di rango costituzionale funzionale alla realizzazione dei principi di buon andamento ed imparzialità dell’azione amministrativa (The principle of separation between political functions and management functions as a constitutional value functional to the realization of the principles of good performance and impartiality of the administration). Il Foro Amministrativo, 9, 2303–2320. Morbidelli, G. (2007). Il principio di legalità e i c.d. poteri impliciti. Diritto Amministrativo, 703–777. Morettini, S. (2011). Il soft law nelle autorità indipendenti: Procedure oscure e assenza di garanzie? www.osservatorioair.it, luglio(4). Moscarini, A. (2008). Sui decreti del Governo “di natura non regolamentare” che producono effetti normativi. Giurisprudenza costituzionale, 53(6), 5075–5108. Nardozzi Tonielli, G., & Carbone, S. (2011). Lo Stato da gestore di grandi imprese a referente nel loro governo. Genoa, Italy: Fondazione Ansaldo. Nicodemo, A. (2014). La dubbia natura delle società pubbliche “figlie” della privatizzazione: il caso ANAS (The dubious nature of public “daughters” companies of privatization: the ANAS case). Il Foro Amministrativo, 6, 1718–1732. Occhiena, M. (2011). I principi di pubblicità e trasparenza. In M.  Renna, & F. Satta (Eds.), Studi sui principi di diritto amministrativo. Milan, Italy. Padula, C. (2010). Considerazioni in tema di fonti statali secondarie atipiche. Diritto pubblico, 1(2), 365–408. Pagliari, G. (2007). Esecutorietà. Note di commento dell’art. 21 ter, l. 7 agosto 1990, n. 241 e s.m.i. Il Foro Amministrativo, 1, 321–343. Pastori, G. (2009). Recent trends in Italian public administration. Italian Journal of Public Law, 1, 1–27. Pastori, G. (2010). The origins of law no. 241/1990 and foreign models. Italian Journal of Public Law, 2(2), 259–272.

6  THE MULTI-INTERPRETABLE NATURE OF LAWFULNESS IN A NATIONAL… 

155

Pedrabissi, S. (2014). Le ordinanze sindacali “extra ordinem” e il presupposto dell’urgenza (Trade union ordinances «extra ordinem» ex art. 54, comma 4, d. lgs. 267/2000, and the assumption of urgency). Amministrare, 44(3), 409–426. Pellegrino, F., & Manzo, R. (2010). I controlli di legittimità e quelle sulla perfomance delle Pubbliche Amministrazioni. Peculiarità ed integrazione. Un caso di sovrapposizione nei Servizi contabilità e gestione finanziarie delle Prefetture. L’Amministrazione italiana, 11, 1458–1479. Pepe, G. (2012). Principi generali dell’ordinamento comunitario e attività amministrativa. Rome, Italy: Eurilink. Perfetti, L. R. (2008). Le riforme della L. 7 agosto 1990, n. 241 tra garanzia della legalità ed amministrazione di risultato (Vol. 6). Padua, Italy: Wolters Kluwer Italia. Pizzorusso, A. (1987). La disciplina dell’attività normativa del Governo. Le regioni, 330 ff. Polizzi, L. (2012). Viaggio nella privatizzazione del pubblico impiego: dalla legge al contratto… e ritorno. Il lavoro nelle giurisprudenza, 1, 51–56. Raffaele, D. (2007). Riflessioni su esecutività ed esecutorietà del provvedimento amministrativo dopo la legge n. 15 del 2005. Giustizia amministrativa, 1, 170–172. Rescigno, G.  U. (2007). Leggi-provvedimento costituzionalmente ammesse e leggi-provvedimento costituzionalmente illegittime. Diritto pubblico, 2, 319–343. Rescigno, G.  U. (2008a). Ancora sulle leggi-provvedimento, sperando che la Corte cambi opinione (nt. a C. cost., n. 241/2008). Giurisprudenza costituzionale, 2877–2882. Rescigno, G.  U. (2008b). Variazioni sulle leggi-provvedimento (o meglio, sulle leggi al posto di provvedimento) (nt. a C. cost., n. 271/2008). Giurisprudenza costituzionale, (4), 3070–3071. Rissolio, A. (2012). Poteri di ordinanza del sindaco dopo la sentenza della Corte Costituzionale 4 aprile 2011 (City mayor’s ordinance powers after the latest judgment of the Italian Constitutional Court, n. 115 of 2011, 4th April). Foro Amministrativo, 6, 2183-2201. Romeo, C. (2010). Privatizzazione del pubblico impiego tra discontinuità e modernizzazione. Il lavoro nelle giurisprudenza, 7, 653–659. Romeo, G. (2012). A proposito del controllo di legalità. Diritto Processuale Amministrativo, 30(2), 551–568. Scalia, F. (2016). Il silenzio assenso nelle c.d. materie sensibili alla luce della riforma Madia. Urbanistica e appalti, 1, 11–20. Scoca, F. G. (2009). Administrative justice in Italy: Origins and evolution. Italian Journal of Public Law, 1, 118.

156 

A. SIMONATI

Sortino, S.  C. (2003). I controlli. Evoluzione storico-amministrativa. Controlli interni. Controlli e Corte dei conti. Prospettive  – Autonomia e legittimità. Nuova rassegna di legislazione, dottrina e giurisprudenza, 10, 1221–1225. Spasiano, M.  R. (2011). I principi di pubblicità, trasparenza e imparzialità. In M. A. Sandulli (Ed.), Codice dell’azione amministrativa (p. 89 ff.). Milan, Italy: Giuffrè Editore. Spuntarelli, S. (2008). Il principio di legalità e il criterio di imparzialità nell’amministrare (Vol. 1, pp. 223–255). Diritto Amministrativo. Tarello, G. (1989). Due volti del garantismo: Difesa della libertà e conservazione degli assetti economici (Sei inediti di Tarello, a cura di Comanducci e Guastini). In S. Castignone (Ed.), L’opera di Giovanni Tarello nella cultura giuridica contemporanea (p. 345). Bononia, Italy. Trimarchi Banfi, F. (2016). Canone di proporzione e “test” di proporzionalità nel diritto amministrativo. Diritto Processuale Amministrativo, 2, 361–400. Wright, V. (1994). Reshaping the state: The implications for public administration. West European Politics, 17(3), 102–137. Zagrebelsky, G. (1991). Manuale di diritto costituzionale, I, Il sistema delle fonti del diritto. Turin, Italy: UTET. Zagrebelsky, G. (1992). Il diritto mite. Legge, diritti, giustizia. Turin, Italy: Einaudi.

PART II

Translating Values in Practitioner Behavior

CHAPTER 7

Mission Impossible for Effectiveness? Service Quality in Public–Private Partnerships Anne-Marie Reynaers

7.1   An Empirical Study of Effectiveness and Quality This chapter scrutinizes the effectiveness of public–private partnerships (PPPs) in terms of public service and infrastructure quality. In relation to the volume´s title (Values and Violations), it is assessed to what extent PPPs improve or harm the value of quality. As such, this chapter is related to theme 3 (see page v, this volume) of the research agenda of the QuGo study group as it focuses on the quality of outcomes of governance processes. Service quality is understood to be related to the overall output and outcome effectiveness of the PPPs. It is suggested (Klijn & Teisman, 2000) that organizational manifestations of the New Public Management (NPM), for example, privatization, outsourcing, and PPPs, improve cost-­ efficiency and quality of service delivery because of private sector involvement and the use of private sector management tools such as performance measurement and performance related pay (Osborne & Gaebler, 1992; Osborne & Plastrik, 1997). In contrast, it is argued that private companies

A.-M. Reynaers (*) Autonomous University Madrid, Madrid, Spain © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_7

159

160 

A.-M. REYNAERS

will pursue financial profit precisely at the expense of quality (Box, 1999). This assumption, known as the ‘quality-shading hypothesis’ (Domberger & Jensen, 1997), has been scrutinized in the context of privatization (Fumagalli, Garrone, & Grilli, 2007; Galiani, Gertler, & Schargrodsky, 2005; Van Slyke, 2003) and outsourcing (Chakrabarty, Whitten, & Green, 2008; Jensen & Stonecash, 2005). However, whether this hypothesis holds in the specific context of PPPs remains unanswered. Hodge and Greve (2007, p.  549) indeed observe that despite the numerous and often contradicting claims on service quality in the context of PPPs, empirical evidence remains very limited. In order to shed light on the question of whether service quality is shaded in PPPs and how this can be explained, perceptions of project members in four PPPs in the Netherlands are analyzed. The structure of the rest of this chapter is as follows. First, the specific type of PPPs considered in this study is defined. The quality-shading hypothesis, the ambiguity of the quality concept, and the results from prior research on the quality-shading hypothesis are discussed in Sect. 7.2. Section 7.3 describes the research approach and explains the multiple-case study approach, the use of semi-structured interviews, and the process of data analysis through coding. Subsequently, the findings are presented per case (4) and per quality dimension (2). The first dimension, ‘infrastructure quality,’ refers to the quality of the construction of the public infrastructure, for instance, the construction of a water purification plant. The second dimension, ‘service delivery quality,’ refers to the quality of the service provided through the infrastructure, in this case the purification of waste water. The cases are compared in the conclusion after which, in the discussion section, the findings are contrasted with previous findings on the quality-shading hypothesis.

7.2   Public–Private Partnerships The term PPPs is used to refer to informal and horizontal alliance partnerships as well as formal and hierarchical concession partnerships (Sullivan & Skelcher, 2003; Weihe, 2008). Long-term Infrastructure Contracts (LTICs) from a specific type of the latter (Hodge, 2010). This study addresses a specific and popular type of LTIC known as Design-Build-­ Finance-Maintain-Operate projects (DBFMO) (Bult-Spiering & Dewulf, 2006) that are used in many Western countries for the realization and

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

161

operation of public infrastructure (such as highways, tunnels, and water purification plants) and utility service buildings (such as schools, hospitals, and detention centers). In DBFMO, public procurers transfer the responsibility for the design, construction, maintenance, financing, and operation of a facility to a private consortium consisting of various private sector companies. This is conducted through a long-term performance contract that may last more than 30 years. Public procurers regulate consortia by the use of a long-­ term performance contract that contains output specifications, performance monitoring, and the application of fines when performance is not as it should be. These projects consist of a preparation phase during which the public procurer defines the output specifications and financial and technical contract aspects, a realization phase during which the consortium constructs the infrastructure, and an operational phase during which the consortium provides services (Reynaers, 2014a, 2014b). Pollitt (2002, p. 274) observes that it is somewhat surprising that many countries have embraced NPM reforms before the credibility of claims of improvement were even assessed. Given the increasing application of DBFMO and the lack of empirical insight on the question of whether quality is shaded or not, it is indeed time to assess the quality-shading hypothesis in DBFMOs.

7.3   Quality-Shading, Quality, and Prior Research As mentioned before, service quality forms an important dimension of output and outcome effectiveness. The quality-shading hypothesis suggests that the quality of services and products is at stake when service production is transferred to the private sector (Jensen & Stonecash, 2005). The first theoretical assumption underlying this hypothesis is that private firms are expected to focus on productivity rather than on quality, given that the first is measured more easily (Holmstrom & Milgrom, 1991). Second, the use of incomplete contracts (see below) and the fact that quality is difficult to measure would allow private companies to lower quality without procurers detecting it (Hart, Shleifer, & Vishny, 1997; King & Pitchford, 1998). The measurement of public service quality has received increased attention over the past few decades (Bovaird & Löffler, 2003). Conceptual ambiguity and the lack of clear points of reference, however, make it a

162 

A.-M. REYNAERS

challenging undertaking (Bovaird & Löffler, 2003; Domberger & Jensen, 1997; Howie, Heaney, & Maxwell, 2004; Maynes, 1976). With respect to conceptual ambiguity, Bovaird and Löffler (2003, 314) suggest that ‘there is no single view on what “quality’ means” and demonstrate that, ­depending on the specific institutional context, quality is defined differently. Domberger and Jensen (1997, p. 74) furthermore show that it is very difficult to verify whether quality has improved after—and because of—contracting out, given that accurate data on previous quality is often unavailable. Despite these limitations, attempts to assess quality in the context of contracting and privatization have been made, but results vary (Beuve & Chever, 2014). In the context of contracting, Ascher (1987) and Hartley and Huby (1986) suggest quality is indeed at stake, while Domberger, Hall, and Li (1995) conclude that it has been maintained or has even improved because of the use of output specifications and the introduction of performance monitoring. In the context of privatization, Van Slyke (2003) finds that quality of social services has diminished, while Galiani et al. (2005) conclude that service quality has increased in privatized water firms. In line with this, after comparing service quality in the electricity industry, Fumagalli, Garrone and Grilli (2007) conclude that privatization has not led to a reduction in service quality. Andaleeb (2000) even finds evidence for an increase in service quality in privatized hospitals. Contract completeness and the ability of public managers to properly implement quality management instruments are often mentioned as prerequisites for safeguarding service quality. Contract completeness refers to the degree to which contracts define the rights and obligations of buyers and sellers across future contingencies (Brown, Potoski, & Van Slyke, 2009). It is suggested that the more complete or specific contractual conditions are in terms of outcomes and output, the less uncertainty will exist around whether the contractor meets the contract terms (Brown, Potoski, & Van Slyke, 2007). With respect to the ability of public managers to properly implement quality management instruments, Peat and Costley (2001) demonstrate that this has proven to be problematic in practice. Indeed, various empirical studies support this finding and show that, because of a decline in management capacity and a lack of financial, technical, or strategic knowledge, public managers struggle to adequately apply such instruments (de Bettignies & Ross, 2009; Savas, 2000). It is argued that the ability to manage quality through the use of quality management mechanisms may vary per context (Domberger & Jensen, 1997)

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

163

and that some governments may indeed be very well able to apply these instruments correctly (Van Slyke & Hammonds, 2003). Given the differences between outsourcing (a temporary and singular principal–agent relationship in which the public partner defines what, how, and by whom something must be done (Klijn & Teisman, 2000)), privatization (defined as ‘any action that transfers some or all of the ownership and/or control of state-owned enterprises to the private sector’ (Hitt et al., 2000, p. 511)), and DBFMO (a long-term, multiple principal–agent relationship in which the execution of multiple tasks is transferred to a private consortia but ownership remains with the state), it remains to be seen to what extent these findings are generalizable to DBFMO.

7.4   Assessing Quality in DBFMO and Method In order to shed light on the central research question of whether service quality is shaded in DBFMO and how this can be explained, this study analyzes project members’ perceptions of quality in four PPPs in the Netherlands. The following sections explain, respectively, why this chapter focuses on perceptions, what quality refers to, and why the judgments of project members rather than service users are taken into account. Ideally, one could measure a service’s objective quality when defined as ‘measurable and verifiable superiority on some predetermined ideal standard or standards’ (Zeithaml, 1988, p. 3). It is argued, however, that such objectivity does not exist given that determining quality always requires subjective judgments, even when objective and quantitative performance standards are used (Domberger & Jensen, 1997; Maynes, 1976). Following this argument in combination with the fact that data on quality prior to DBFMO do not exist, this chapter focuses on subjective quality defined as a ‘[j]udgment about a product’s overall excellence or superiority’ (Zeithaml, 1988, p. 3). The products under judgment in this chapter are infrastructure and service delivery. The first refers to the construction of the public infrastructure whereas the second refers to the provision of services related to the infrastructure. Judgments on the excellence or superiority of infrastructure and service delivery provide insight into the perceived quality within each project. However, they do not reveal whether quality has improved because of the procurement through DBFMO. Although this study by no means claims to provide statistically credible assertions on causality, project members

164 

A.-M. REYNAERS

involved in public procurement before and after the introduction of DBFMO were asked to compare their perceptions of quality. Moreover, the explanations project members provided for their quality perceptions were divided into DBFMO-specific and non-DBFMO-specific conditions. DBFMO-specific conditions refer to conditions that are specific to the DBFMO structure (e.g. the integrality of the procurement and the use of output specifications). Non-DBFMO-specific conditions are conditions (such as budget and cooperation) that can be of influence in projects other than DBFMO projects exclusively. Again, although this does not allow for inferring causality, it does provide empirical insight into the possible explanatory power of conditions relating to quality that are specific to DBFMO. The reason for assessing quality through the perceptions of project members instead of citizen users is that unlike services that are privatized—energy supply or public transport for example—the products and services that are provided through DBFMO are delivered at a distance from most citizen users. Given this distance and the relative complexity of most products and services, waste-water plants, for example, and water purification, it is unlikely that citizen users would be able to properly evaluate them. Of course, project members can be service users too. For example, most project members in the case of the DBFMO project to renovate the Ministry of Finance also worked in the building renovated and operated by the consortium. This study adopts a comparative case study approach involving four cases. Scrutinizing multiple cases does not only provide more empirical insight, it also allows for the comparison of findings and this reveals to what extent results are ‘consistently replicated by several cases’ (Eisenhardt & Graebner, 2007, p. 27). The selected cases were the only cases already in operation at the time of case selection, a prerequisite given that service quality is only visible during the operational phase. All cases are Dutch, and this strengthens the internal validity of the results since the domestic context of the cases is identical (Reynaers & Grimmelikhuijsen, 2015). The fact that the same DBFMO structure is applied in other countries contributes to the external validity, that is, the extent to which the findings can be generalized to other DBFMO projects in other countries. The first case concerns the construction of a highway for which the procurer has signed a twenty-year contract with a private consortium, to include the road’s design and construction, as well as maintenance of the road and its infrastructure, for example, viaducts, lighting, and tunnels.

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

165

The second case concerns the design and construction of multiple new water purification plants and the renovation of older water plants. The thirty-year contract also includes the water purification process itself. The third case concerns a detention center used to accommodate those denied access to the Netherlands and illegal foreigners who do not return voluntarily to their country of origin. Besides the construction of the center itself, the twenty-seven year contract includes the provision of infrastructure such as cameras and fire alarms, and services such as cleaning and the supply of food. The final case concerns the renovation of the accommodation of the Ministry of Finance. This twenty-five year contract includes the renovation of the building and the provision of services such as catering, cleaning, waste management, and energy supply. Whereas the water project and the highway are infrastructure projects, the detention center and the Ministry of Finance are utility service buildings. The data used in this study is derived from a broader research project on DBFMO (Reynaers, 2014a, 2014b; Reynaers & Grimmelikhuijsen, 2015; Reynaers & Parrado, 2017). Sixty-six semi-structured interviews were conducted with project members on the public procurer’s side (contract managers and procurement team members), project members on the consortium’s side (contract managers and consortium members), and external advisors that either work for the consortium or the procurer (such as lawyers and financial experts). Table  7.1 provides an overview of the number of respondents per case and the case characteristics. Respondents were invited to share their thoughts on infrastructure and service quality, Table 7.1  Case characteristics and number of respondents

Product

Highway

Waste-water project Detention center Ministry of Finance

Construction and operation of highway (infrastructure)

Construction, renovation, and operation of water cleaning installations (infrastructure) State: 4 Consortium: 5 External: 3

Respondents State: 12 Consortium: 5 External: 1

Adapted from Reynaers and Grimmelikhuijsen (2015)

Construction and operation of detention center (utility service building) State: 9 Consortium: 2 External: 0

Renovation and operation of headquarter Ministry of Finance (utility service building) State: 10 Consortium: 8 External: 7

166 

A.-M. REYNAERS

to compare these perceptions, if possible, with perceptions on quality before the introduction of DBFMO, to explain their perceptions, and, finally, to illustrate their perceptions. The interviews had an average length of 90 minutes and contain valuable data on the interviewees’ perceptions of infrastructure and quality. The interviews were transcribed verbatim (238,000 words) and analyzed through the method of coding which refers to the labeling of text fragments (Boeije, 2005; Miles & Huberman, 1994). Infrastructure and service quality formed the main codes for categorization after which, during the analysis, sub-codes such as ‘positive perception,’ ‘negative perception,’ and ‘explanation’ were added. The citations used in the findings section represent the general findings unless explicitly mentioned otherwise.

7.5   Findings 7.5.1  The Highway Infrastructure. Although the road is not perfect and thought to be a bit bumpy, the procurer is satisfied with its overall quality. A contract manager from the procurer’s side described the situation: ‘If you overlook the managerial mess around the contract and you take your car and drive the road, then I say: It’s perfect. We didn’t do anything and it works. The road is bumpy [b]ut we’ve constructed very bumpy roads before: that’s almost inevitable.’ Initial distrust of the consortium made the procurer use higher quality standards than usual and this may have improved the overall quality of the infrastructure. A contract manager explained: ‘I don’t like to admit it, but on reflection we should not have tried to create a heaven on earth by demanding more of the consortium then we asked of ourselves. [I] have to concede, we became overenthusiastic and began exaggerating.’ The relative straightforwardness and generally clear output specifications seem to have influenced infrastructure quality positively. A procurement team member explained: ‘I think it was quite clear what we expected. It is, in that sense, also a simple product: a road, a bridge, and a tunnel. It’s not rocket science.’ However, discussions about whether or not the consortium provided the requested quality did take place. These discussions were not always concerned with a risk to quality, but rather with the discrepancy between what was offered by the consortium and the expectations of the procurer. A consortium member illustrated the point: ‘They

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

167

[the procurer] have a fixed idea of what it must look like and anything different becomes the subject of discussion. When this happens, we are not talking about quality but about whether a purple bridge is more beautiful than a yellow one.’ Reasonable solutions provided by the consortium were sometimes overruled by the procurer even though they met the quality requirements. A procurement team member explained: ‘Sometimes they [the consortium] had very good solutions that were perhaps even better than ours. But we are proud and we do not always want to recognize that private parties might be a bit smarter.’ Finally, as this project was a pilot it provided an opportunity for the consortium to build a strong reputation and that might have had a positive influence on the quality of the infrastructure. A procurement team member explained: ‘I think they [the consortium] want to deliver a good product because their reputation is at stake. If this project is a success, they might win other tenders. If this project fails, they can forget about that.’ Service delivery. Because of the integration of tasks, it is suggested that the consortium might do to a better job with respect to road maintenance, resulting in less disruption for road users and greater road availability. A contract manager from the procurer stated: ‘[w]e must admit they do it so much better than we do. Before, we would send a different guy for all the different tasks. Now they have invented a type of car that carries out all those tasks automatically in one trip.’ The consortium also seems more capable of rapid problem solving. A project team member argued: ‘They work as a company and time is money, so the sooner things are solved, the better. [W]e don’t have that stimulus, so we do things a bit slower.’ Notwithstanding all of this, the procurer is not always satisfied. Discussions on whether or not service quality is as expected often arise because of ambiguous or incomplete output specifications. A contract manager from the procurer argued: ‘Sometimes it is just very difficult to formulate your demand on paper. So you try, but it remains vague. And that always causes trouble in a contract relationship. If your service level is not clearly defined, you will get into trouble.’ Because of this ambiguity, the services provided by the consortium did not always correspond to the procurer’s expectations. On occasion, fines were applied in order to stimulate the consortium to provide the quality expected, and the possibility of doing this was considered a useful instrument for assuring quality. A contract manager from the procurer’s side explained: ‘Sometimes, the output specification is not enough and when repeated requests to improve quality also fail, I at least

168 

A.-M. REYNAERS

have the financial mechanism to spur them into action. So when it’s not going the way we want it to, I look at how we can hurt them financially.’ It was suggested, however, that the effectiveness of the use of financial incentives depends largely on the quality of the calculations made by financial experts during the project preparation. Several respondents expressed their concerns in that respect. Finally, service quality was suggested as depending on the available budget. An apparent lack of budget made the consortium provide service levels that were not always in line with the procurer’s expectations. A consortium member argued: ‘Many people think that we are responsible for quality, but it is the procurer itself that decides what it wants and how much that might cost. [I]n the Netherlands, they let us compete on price but not on quality. So if I offer them a Fiat and they are fine with that, they should not complain later that I didn’t give them a Ferrari.’ 7.5.2  The Water Project Infrastructure. The procurer is satisfied with the quality of the renovation and construction of the water plants with the exception of floating roofs that caused odor problems at the start of the operational phase. As a procurement team member put it: ‘We have had hardly any questions about the quality of their work and we are very happy with the quality they deliver.’ It was even suggested that, because of a lack of stimulus for technical optimization, infrastructure quality wouldn’t have been as good if the procurer itself had been responsible for coordinating the design and construction phase. A procurement team member said: ‘PPPs is a great stimulus for technical optimization. I think that if we had done it ourselves, we would not have been able to deliver what they have. We miss that stimulus, while a commercial party always searches for an optimum.’ Service delivery. With the exception of an odor problem caused by floating roofs that did not close the water basins sufficiently, the procurer is satisfied with the quality of the operation. A procurement team member explained: ‘We had scarcely any problems with the operation. There may be problems with it in other projects but the operational side is our primary process so we invested a lot in its preparation.’ The fact that the consortium started relatively early on preparation for the operational phase seems to have had a positive effect on service quality. A procurement team member illustrated: ‘What was quite unusual in this project was that the operating team started work about three months after the project started

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

169

while their first deadline was not be for 18 months. I think they realized that the operational stage had to be prepared carefully.’ The fact that the process of water purification is not directly connected to users might have positively influenced the procurer’s opinion on the quality of the operation. A procurement team member explained: ‘In PPP projects concerning public utility buildings [such as a detention center], the perception of the user is very important. The users judge whatever the consortium does. Some like the coffee, others do not. In this project, you don’t have that user involvement. It is much more objective. We measure the quality of the water that enters and the quality of the water that goes back into the sea again.’ The technical character of the operation in allowing for the use of quantitative output specifications provided relatively little room for interpretation and discrepancy between the procurer’s expectations and the consortium’s performance. As a procurement team member pointed out: ‘The fact that it concerns a simple product, a simple organizational structure and a technical process that allows for standardizing output norms has had a great influence on the overall quality.’ The level of fines used by the procurer has been low throughout the project and this might indicate that the consortium, indeed, provided the requested service quality. As a consortium member put it: ‘Once in a while they receive a fine. In general, they are not that high and [I] know the procurer is satisfied. Sometimes little problems are exaggerated but in general, they are pleased and we also communicate that to each other.’ Finally, the apparently good relationship between the procurer and the consortium seems to have had a positive effect on service quality. An external advisor argued: ‘As far as I can see, and I have not shared this with others, this project has the best relationship between procurer and consortium that I have seen in the last ten years and that determines the overall quality.’ 7.5.3  The Detention Center Infrastructure. Although the procurer is satisfied with the overall functionality of the asset, it is less satisfied with its esthetics. Ambiguous output specifications that allow for multiple interpretations and/or a lack of serious effort by the consortium are the cause of this dissatisfaction. A procurement team member explained: ‘We cannot complain about the quality in general but I think they could have done a better job. [Y]ou expect a certain quality and you think you have expressed that clearly in the output

170 

A.-M. REYNAERS

specifications. But when I look at the building, some parts look ten years old yet we have only been using the building for two years.’ Service delivery. The quality of service delivery, especially at the start of the operation, was considered disappointing although it improved over time. Complaints vary from what was asked for not being delivered to the malfunctioning of installations. A procurement team member explained: ‘The quality of the operation was very bad in the beginning. Recently the consortium has hired extra people to improve all of this, but that took a while.’ The problems that arose might have stemmed from a lack of attention to how the actual operation would be organized. A procurement team member explained: ‘I think that much more attention is given to design and build then to maintenance and operation. If you pay more attention to that latter part, the service delivery will be better.’ Ambiguous output specifications that do not reflect the precise expectations of the procurer provide a second reason for dissatisfaction. Whereas the procurer thought the specifications would make the consortium deliver the solutions they had in mind, this was not always the case. A contract manager working for the procurer explained: ‘Security is our priority so we stipulated that there should be a recovery time of zero seconds to fix a security camera. This implies that they will be fined immediately when a camera fails. In stipulating this we hoped to encourage the consortium to place two cameras on every corner. But they didn’t. Then I wonder, haven’t we been clear?’ The application of fines did not always improve service quality. One of the procurer’s contract managers admitted: ‘I was too naive in thinking that with fines of a hundred thousand euro they would improve service delivery. That is not true in this case.’ The effectiveness of the financial incentive system was undermined because of inconsistent application. A procurement team member explained: ‘At the beginning we were tolerant about fines. We played with the fines to get what we wanted. I do not know whether that was smart and I know that in other projects, they are stricter with this.’ Despite these irregularities, improvement was visible too. For example, the procurer was very satisfied with the way in which the consortium organized food supply. A digital supermarket was developed that allows detainees to buy and pay for groceries themselves. This was considered an improvement compared with the way in which groceries were traditionally ordered and distributed.

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

171

Increase of service quality was not only the result of innovation, however. Initial fear of losing control over service quality increased the procurer’s demands and their effort to control quality. As a procurement team member put it: ‘We sometimes demand much more than we would demand of our own organization. But because you give away control, you want to make sure things are done perfectly.’ Finally, the available budget seems to influence service quality. A procurement team member explained: ‘I have been involved in many projects and we almost always select on price. If there is relatively little money provided for the operation, then it is logical that the operation will be bad. If we want quality, we should select on quality and not on price.’ 7.5.4  The Ministry of Finance Infrastructure. Despite some imperfections, the procurer is pleased with the quality of the renovated building. A procurement team member commented: ‘There was a lot of resistance but when we saw what they delivered, we were all very happy: a showcase building that was even more beautiful than we could have imagined. It’s not perfect but in the end, it is a very pretty building.’ Since it was the first DBFMO pilot, the procurer invested a great deal of time and money in the preparation phase during which the output specifications were developed. This relatively intensive preparation seems to have increased the procurer’s expectation of quality compared with other projects and this, in turn, seems to have had a positive influence on the quality of the delivered infrastructure. A consortium member put it: ‘I think this procurer formulated its expectations very well. With other projects, we have had much more to criticize in their preparation, and we are often surprised at what is being asked for. [I]n this project we haven’t seen those mistakes because they gave much more thought to what they were asking for.’ The integrated tender approach seems to increase quality in comparison with traditional ways of procuring. As a consortium member outlined the difference: ‘[T]here was a positive synergy in that respect. For example, we have floors wired for computer throughout the entire building, which means that whenever the layout changes, the floor doesn’t have to be lifted. So there you see the construction and technical people working together. Normally we keep to our own little world and don’t seek to cooperate like that.’

172 

A.-M. REYNAERS

Cooperation between the consortium and procurer during the construction phase also seems to have helped the quality of the renovation. The procurer and consortium shared a construction shed and that made constant communication and fine-tuning easier. A procurement team member recalled: ‘I think there was a physical component to the success of the construction. They [procurer and construction company] were one team and sat next to each other on the construction site. They shared their ambitions and their vision for making this a successful and exciting project.’ Finally, the procurer’s and the consortium’s motivation to create a good reputation during this pilot project also seems to have had a positive influence on infrastructure quality. A procurement team member explained: ‘If this weren’t the first pilot, and didn’t involve the Ministry of Finance, then some things would never have been achieved. This was an excellent opportunity for the consortium to show what it was capable of. If it were successful, it could win other tenders.’ Service delivery. In contrast to infrastructure quality, the quality of service delivery was considered to be less successful and this may be related to the lack of attention paid to this phase during earlier stages of the project. A consortium member explained: ‘We have underestimated that completely in this project and we do it differently in other projects. Normally we think about the operation during the construction phase whereas in this project, we thought about it when the construction was almost finished.’ Whereas both the preparation and construction phase were considered highly important, the operational phase seemed to be taken for granted. As a procurement team member put it: ‘We were very focused on a good tender process and on the renovation. After these two peaks, our attention wandered. We honed in on the technical norms and there was little attention paid to the transition to maintenance and operation.’ Conflicts about service quality were often the result of ambiguous output specifications. Solutions provided by the procurer did not therefore always fit the procurer’s expectation. A consortium member explained: ‘The procurer has a definite idea of how the final product should be but the output specifications do not always directly reflect that idea. We interpret the specifications in our own way so there is always the chance that the procurer’s expectations and ours don’t match.’ The ability to use fines when the quality delivered is not as expected, and hence the desired goals compromised, is considered to be an ­improvement. A procurement team member described: ‘If the building demonstrates deficiencies, they are not paid, so it is a big stimulus to

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

173

deliver good quality. We don’t have that stimulus with traditional projects.’ However, the effectiveness of the financial mechanism is not always guaranteed. Inappropriate levels of fining and the inconsistent application of the fining mechanism seem to have undermined the effectiveness of the instrument. A procurement team member described the situation: ‘There was a point at which the mechanism just didn’t work any longer. When we reached that point, we decided it was time to hire a mediator.’ With respect to the incorrect level of fines applied, it was suggested that it is very difficult to determine that correctly, given the lack of information on the consortium’s costs and profit margins. An external advisor outlined the problem: ‘You can estimate costs and prices but I think the financial mechanism is as soft as butter. Fines should hurt the consortium in such a way that they feel obliged to do something about it. But if you have little information about their financial housekeeping, how can you determine an appropriate level of fine?’ With respect to the application of the system, the procurer’s contract management team decided not to apply all fines automatically. Instead, it was decided on a case-by-case basis whether a fine would help improve service quality. An external advisor explained: ‘At the Ministry of Finance I saw that they did not want to apply the fines too strictly. I understand that, because it is a pilot. But eventually you ruin your own service delivery because of it. If you give the consortium one finger, they will take your hand and they will take advantage of that. The procurer should not be too kind.’

7.6   Conclusion The jury is still out on whether service quality is shaded in DBFMO. In fact, the answer differs by quality dimension (infrastructure vs service delivery, representing two different aspects of overall DBFMO effectiveness), DBFMO type (utility service building vs infrastructure), and project phase (design and construction vs operation). Table 7.2 summarizes the DBFMO-specific and the general conditions that have influenced infrastructure or service delivery quality, either positively, or negatively, in the four PPPs under scrutiny in this study. Although in none of the cases is it considered perfect, satisfaction with infrastructure quality is fairly uniform across all four projects, especially in the highway and waste-water cases (both infrastructure projects). Some procurers even hint at a possible increase in infrastructure quality in comparison with traditional procurement, which would suggest a considerable

174 

A.-M. REYNAERS

Table 7.2  Conditions influencing quality in DBFMO

Positive

DBFMO

Non-­ DBFMO

Negative DBFMO

Non-­ DBFMO

Infrastructure

Service delivery

Clear output specifications (H) Integrality procurement (W, M) Higher quality standards (H) Pilot (H, M) Cooperation (M)

Integrality procurement (H) Application of fines (H, W) Quantitative output norms (W)

Ambiguous output specifications (D)

Lack of effort consortium (D)

Higher quality standards (D) Careful preparation operation (W) Indirect user contact (W) Good relationship (W) Ambiguous output specifications (H, D, M) Inconsistent application fines (D, M) Incorrect calculation of fines (M) Tight budget (H, D) Lack of preparation operation (D, M)

H Highway, W Water, M Ministry, D Detention center

increase in effectiveness on this point. The integrality of the procurement and use of clear output specifications are DBFMO-specific conditions that have positively contributed to the quality of the infrastructure. The opportunity for consortia to build a strong reputation during the pilot projects, cooperation between the consortium and procurer, and the use of higher quality standards because of initial distrust are non-DBFMO-specific conditions that have also had a positive influence on infrastructure quality. Where infrastructure quality suffers, it can be attributed to ambiguous output specifications (DBFMO-specific) and a lack of effort by the consortium (non-DBFMO-specific). Whereas the level of satisfaction with the infrastructure is fairly uniform across all four projects, this is not true for the other aspect of effectiveness that was examined: service delivery. Service delivery was considered disappointing in the two utility service buildings (the detention center and the Ministry of Finance), but is valued positively in the infrastructure projects (highway and waste water). The integrality of the procurement process, the application of fines, and the use of quantitative output norms are DBFMO-specific conditions that have influenced service delivery positively in the infrastructure projects. The careful preparation of the opera-

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

175

tional phase, the absence of direct user contact, and the good relationship between the procurer and consortium are non-DBFMO-specific conditions that seem to have influenced service quality positively, especially in the water case. The use of higher quality standards (non-DBFMO-­specific) positively influenced service quality in the detention center case. Where service quality suffers, it can be attributed to the use of ambiguous output specifications, the inconsistent application of fines, and the incorrect calculation of fines (DBFMO-specific). Tight budgets and a lack of preparation for the operational phase of the consortium are non-DBFMO-specific conditions that seem to have influenced service quality negatively, especially in the case of the detention center and the Ministry of Finance. The detention center case demonstrates, however, that despite initial disappointment, service delivery quality can improve over time. Moreover, it shows that some aspects of the service delivery process were valued positively and considered to have improved when compared with service delivery before DBFMO. In general, it can be concluded that the most vulnerable aspect is quality of service delivery and that utility service buildings experience more irregularities with respect to service quality, and that irregularities with respect to service quality are most prominent during the operational phase of utility service buildings.

7.7   Discussion Given the lack of empirical evidence on quality in PPPs (Hodge & Greve, 2007) and on the credibility of claims of quality improvement in organizational manifestation of the NPM (Pollitt, 2002), this study addressed the question of whether or not effectiveness in terms of quality is shaded in DBFMO and, whether it is or is not, how the answer can be explained. The findings indicate a general satisfaction with infrastructure quality and an improvement of some aspects of infrastructure and service quality. Despite irregularities (especially experienced in relation to service delivery), the findings do not provide indications that affirm the quality-­shading assumption. Service quality is contested, but not per se diminished, and this differs from studies that report a reduction in quality (Ascher, 1987; Hartley & Huby, 1986; van Slyke, 2003). Quality, whether of the infrastructure or of service delivery, seems to be at least maintained or ­sometimes even improved, which is in line with earlier empirical findings in the context of contracting and privatization and adds to its overall effec-

176 

A.-M. REYNAERS

tiveness (Andaleeb, 2000; Domberger et al., 1995; Fumagalli et al., 2007; Galiani et al., 2005). Although results from previous studies on quality in contracting and privatization formulate definite conclusions about whether effectiveness by means of quality has diminished, this study concludes that it is difficult to provide a definitive answer in the context of DBFMO.  Scrutinizing quality in DBFMO is different from doing so in the context of contracting or privatization, given that the long-term integrated project approach unites different products during various project phases into one single project over a long period of time. This provides a longitudinal (including the different project phases) and multidimensional (including multiple quality dimensions) perspective on quality which, as was shown, provides a nuanced picture of quality in DBFMO that can’t be summarized with a definite ‘yes’ or ‘no.’ With respect to the question of how quality could be explained, the findings of this study coincide with earlier research stressing the importance of contract completeness (Brown et al., 2007, 2009) and of public managers having the ability to adequately implement quality management instruments (Peat & Costley, 2001). In relation to contract completeness, the findings of this study show that incomplete or ambiguous output specifications cause dispute in relation to quality. Although public procurers could invest in writing more complete or less ambiguous output specifications, it is very unlikely that contracts or output specifications will ever be perfectly complete or unambiguous (Brown et al., 2009). As such, public procurers should be aware of the limitations of output specifications and anticipate possible disputes or discrepancies. With respect to the ability of public managers to adequately implement quality management instruments, this study indicates that public procurers do struggle with the construction and implementation of quality management instruments such as output specifications and the application of fines (cf. De Bettignies & Ross, 2009; Peat & Costley, 2001; Savas, 2000). This was particularly true in the case of the utility service buildings, thereby confirming the suggestion of Domberger and Jensen (1997) and Van Slyke and Hammonds (2003) that the ability of public managers to adequately implement quality management instruments differs according to context. Taking into account the fact that the four projects under scrutiny are all pilot projects, it is understandable that mistakes have been made with regard to the implementation of management instruments. However,

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

177

it is highly desirable that experienced people are assigned the challenging task of managing DBFMO projects to ensure its effectiveness in the long run. DBFMO does not guarantee success or failure by definition: it is what people make of it. Besides contract completeness and the ability to implement management instruments correctly, this study has identified many more conditions that either positively or negatively influence quality in DBFMO (see Table 7.2). The ultimate question that arises, of course, is whether or not DBFMO provides opportunities for effective infrastructure and service quality. Table 7.2 demonstrates that DBFMO-specific conditions such as the use of clear output specifications, the integrality of the procurement process, and the possibility of applying fines do indeed provide opportunities for safeguarding, or even improving, quality. However, as suggested earlier, the actual existence of these conditions is not guaranteed by the DBFMO structure, but requires craftsmanship by public procurers. In that respect, Table 7.2’s synopsis of conditions that have positive and negative influence might be useful to have at hand when developing or optimizing this craftsmanship. When reflecting on this volume´s title (Values and Violations), this chapter demonstrates that values (and their possible violation) should be studied in their specific context. That is, we cannot suppose that quality will be harmed on theoretical (or perhaps) normative grounds only. PPPs provide opportunities as well as threats when it comes to providing service and infrastructure quality. Quality is not guaranteed by simply signing a performance contract nor is it by definition at stake when administrations collaborate with private sector businesses. It all depends on the specific interaction between the public and private governance partners.

References Andaleeb, S. S. (2000). Public and private hospitals in Bangladesh: Service quality and predictors of hospital choice. Health Policy and Planning, 15(1), 95–102. Ascher, K. (1987). The politics of privatization: Contracting out public services. New York, NY: St Martin’s. Boeije, H. R. (2005). Analyseren in kwalitatief onderzoek: denken en doen. Meppel, Netherlands: Boom Koninklijke Uitgevers. Bovaird, T., & Löffler, E. (2003). Evaluating the quality of public governance: Indicators, models and methodologies. International Review of Administrative Sciences, 69(3), 313–328. https://doi.org/10.1177/0020852303693002

178 

A.-M. REYNAERS

Box, R.  C. (1999). Running government like a business: Implications for public administration theory and practice. The American Review of Public Administration, 29(1), 19–43. https://doi.org/10.1177/027507499220 64256 Brown, T. L., Potoski, M., & Van Slyke, D. M. (2007). Trust and contract completeness in the public sector. Local Government Studies, 33(4), 607–623. https://doi.org/10.1080/03003930701417650 Brown, T. L., Potoski, M., & Van Slyke, D. M. (2009). Contracting for complex products. Journal of Public Administration Research and Theory, 20(suppl_1), i41–i58. https://doi.org/10.1093/jopart/mup034 Bult-Spiering, M., & Dewulf, G. (2006). Strategic issues in public private partnerships. An international perspective. Oxford: Blackwell Publishing. Chakrabarty, S., Whitten, D., & Green, K. (2008). Understanding service quality and relationship quality in IS outsourcing: Client orientation & promotion, project management effectiveness, and the task-technology-structure fit. Journal of Computer information systems, 48(2), 1–15. https://doi.org/10.10 80/08874417.2008.11646004 de Bettignies, J.-E., & Ross, T. W. (2009). Public–private partnerships and the privatization of financing: An incomplete contracts approach. International Journal of Industrial Organization, 27(3), 358–368. https://doi.org/10.1016/j. ijindorg.2008.10.004 Domberger, S., Hall, C., & Li, E. A. L. (1995). The determinants of price and quality in competitively tendered contracts. The Economic Journal, 1454–1470. https://doi.org/10.2307/2235110 Domberger, S., & Jensen, P. (1997). Contracting out by the public sector: Theory, evidence, prospects. Oxford Review of Economic Policy, 13(4), 67–78. https:// doi.org/10.1093/oxrep/13.4.67 Eisenhardt, K.  M., & Graebner, M.  E. (2007). Theory building from cases: Opportunities and challenges. Academy of Management Journal, 50(1), 25–32. https://doi.org/10.5465/amj.2007.24160888 Fumagalli, E., Garrone, P., & Grilli, L. (2007). Service quality in the electricity industry: The role of privatization and managerial behavior. Energy Policy, 35(12), 6212–6224. Galiani, S., Gertler, P., & Schargrodsky, E. (2005). Water for life: The impact of the privatization of water services on child mortality. Journal of Political Economy, 113(1), 83–120. http://doi.org10.1086/426041 Hart, O., Shleifer, A., & Vishny, R. W. (1997). The proper scope of government: Theory and an application to prisons. The Quarterly Journal of Economics, 112(4), 1127–1161. https://doi.org/10.3386/w5744 Hartley, K., & Huby, M. (1986). Contracting-out policy: Theory and evidence. In J.  Kay, C.  Mayer, & D.  Thompson (Eds.), Privatisation and regulation: The UK experience (pp. 284–293). Oxford: Clarendon Press.

7  MISSION IMPOSSIBLE FOR EFFECTIVENESS? SERVICE QUALITY… 

179

Hitt, M., Zahra, S., Ireland, D., & Gutierrez, I. (2000). Privatization and entrepreneurial transformation: emerging issues and a future research agenda. Academy of Management Review, 25(3), 509–524. Hodge, G. A. (2010). Reviewing public-private partnerships: Some thoughts on evolution. In G. A. Hodge, C. Greve, & A. Boardman (Eds.), International handbook on public–private partnerships (pp.  81–112). Northampton, MA: Edward Elgar Publishing. Hodge, G. A., & Greve, C. (2007). Public–private partnerships: An international performance review. Public Administration Review, 67(3), 545–558. https:// doi.org/10.1111/j.1540-6210.2007.00736.x Holmstrom, B., & Milgrom, P. (1991). Multitask principal-agent analyses: Incentive contracts, asset ownership, and job design. Journal of Law, Economics, & Organization, 7, 24–52. Howie, J., Heaney, D., & Maxwell, M. (2004). Quality, core values and the general practice consultation: Issues of definition, measurement and delivery. Family Practice, 21(4), 458–468. https://doi.org/10.1093/fampra/cmh419 Jensen, P. H., & Stonecash, R. E. (2005). Incentives and the efficiency of public sector-outsourcing contracts. Journal of Economic Surveys, 19(5), 767–787. https://doi.org/10.1111/j.0950-0804.2005.00267.x King, S., & Pitchford, R. (1998). Privatisation in Australia: Understanding the incentives in public and private firms. Australian Economic Review, 31(4), 313– 328. https://doi.org/10.1111/1467-8462.00076 Klijn, E.-H., & Teisman, G.  R. (2000). Governing public-private partnerships: Analysing and managing the processes and institutional characteristics of public-­private partnerships. In S. P. Osborne (Ed.), Public private partnerships. Theory and practice in international perspective (Routledge Advances in Management and Business Studies) (Vol. 19, pp. 84–102). London: Routledge. Maynes, E.  S. (1976). The concept and measurement of product quality. In Household production and consumption (pp. 529–584). Washington, DC: NBER. Miles, M. B., & Huberman, A. M. (1994). Qualitative data analysis: An expanded sourcebook. Thousand Oaks, CA: Sage. Osborne, D., & Gaebler, T. (1992). Reinventing government: How the entrepreneurial spirit is transforming government. Reading, MA: Adison Wesley. Osborne, D., & Plastrik, P. (1997). Banishing bureaucracy: The five strategies for reinventing government. Reading, MA: Wesley. Peat, B., & Costley, D.  L. (2001). Effective contracting of social services. Nonprofit Management and Leadership, 12(1), 55–74. https://doi.org/ 10.1002/nml.12105 Pollitt, C. (2002). The new public management in international perspective. In K. McLaughlin, E. Ferlie, & S. P. Osborne (Eds.), New public management: Current trends and future prospects (pp. 274–292). London: Routledge.

180 

A.-M. REYNAERS

Reynaers, A.  M. (2014a). Public values in public–private partnerships. Public Administration Review, 74(1), 41–50. Reynaers, A. M. (2014b). It takes two to tangle: Public Private Partnerships and their impact on Public values. Doctoral thesis, VU University Amsterdam. ISBN 978 90 90280912. Reynaers, A. M., & Grimmelikhuijsen, S. (2015). Transparency in public–private partnerships: Not so bad after all? Public Administration, 93(3), 609–626. Reynaers, A.  M., & Parrado, S. (2017). Responsive regulation in public-private partnerships: Between deterrence and persuasion. Regulation & Governance, 11(3), 269–281. Savas, E. S. (2000). Privatization and public-private partnerships. New York, NY: Chatham House. Sullivan, H., & Skelcher, C. (2003). Working across boundaries: Collaboration in public services. Health & Social Care in the Community, 11(2), 185–185. https://doi.org/10.1046/j.1365-2524.2003.04183.x Van Slyke, D. M. (2003). The mythology of privatization in contracting for social services. Public Administration Review, 63(3), 296–315. https://doi. org/10.1111/1540-6210.00291 Van Slyke, D. M., & Hammonds, C. A. (2003). The privatization decision: Do public managers make a difference? The American Review of Public Administration, 33(2), 146–163. https://doi.org/10.1177/0275074003251374 Weihe, G. (2008). Public-private partnerships and public-private value trade-offs. Public Money and Management, 28(3), 153–158. http://doi. org/10.1111/j.1467-9302.2008.00637.x. Zeithaml, V.  A. (1988). Consumer perceptions of price, quality, and value: A means-end model and synthesis of evidence. The Journal of marketing, 52(3), 2–22. https://doi.org/10.2307/1251446

CHAPTER 8

Professionalism and Public Craftsmanship at Street Level Hester Paanakker

8.1   Quality of Governance at Street Level: Introducing Public Craftsmanship Based on the profession of prison officers, this chapter will provide insight into interpretations of public craftsmanship at the street level. As such, and taking a slightly different angle than the previous chapters in this volume, it will situate the public values debate in street-level discourse. It will scrutinize the role of public values in frontline public-service delivery and, specifically, will examine professional divergence in values of craftsmanship. Craftsmanship is understood to represent ‘the desire to do a job well for its own sake’ and brings together the skill and commitment needed to do such good work, with continuous judgment and questioning of the abilities required, in an overriding motivation for quality-driven work (Sennett, 2008, p. 9285). Numerous studies examine when governance is ‘good’ at the macroor meso-level, commonly highlighting one or more core values of governance, without zooming in on what it means to be a ‘good’ performing

H. Paanakker (*) Radboud University, Nijmegen, The Netherlands e-mail: [email protected] © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_8

181

182 

H. PAANAKKER

professional at micro-level. Some studies set out to determine the overall levels of impartiality (Holmberg, Rothstein, & Nasiritousi, 2009; Rothstein & Teorell, 2008), integrity (Evans, 2012), or effectiveness pertaining to a minimum set of delivered public services (Woods, 2000). Others fully acknowledge the pluralistic character of governance values, for instance, stating good governance is to be understood as competence to handle a set of complementary values (Bovens, ‘t Hart, & van Twist, 2011; De Graaf, Van Doeveren, Reynaers, & Van der Wal, 2011) or the management of several simultaneously present competing and conflicting values (Bozeman, 2007; De Graaf & Van Der Wal, 2010; Spicer, 2009). What many studies specifically omit to address is what these values mean to the officials who must put them into practice. Clearly, the value orientations of public professionals toward what public craftsmanship is about bear substantially on policy implementation and, ultimately, on public-service delivery. Research shows extensively that public professionals’ individual orientations toward the values embedded in policy visions and programs have an important effect on the final implementation of public policies (Kelly, 1994; Lipsky, 1980, 2010; Tummers, Bekkers, Vink, & Musheno, 2015). Value orientations at operational level shape bureaucratic reality and the way officials handle their work (cf. Stewart, 2006). It is often thought that dealing with conflicting values is at the center of what public officials do or ought to do: it represents the daily reality of on-the-ground decision making (De Graaf & Van der Wal, 2010; Oldenhof, Postma, & Putters, 2014; Steenhuisen & Van Eeten, 2008). Understanding how public officials themselves express such values to start with (similarly or differently) seems to be a fundamental exercise that would advance future research. We argue that views on what it means to be good at one’s job constitute the core of public performance (and, ultimately, quality of governance). The key to understanding the role of values in the eyes of street-level public professionals lies in unraveling concrete value orientations in concrete work contexts. Rather than using a fixed and predetermined list of values considered to cover the public sector at large, we seek to explore the (widest possible) range of concrete value orientations as brought forward by public professionals themselves. We narrow this down further by looking at values of public craftsmanship: key values of a context-specific and professional nature that public officials deem relevant to their specific work context.

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

183

The purpose of this chapter is threefold. First, we explore and map the value orientations that characterize public craftsmanship according to professionals in the public-sector prison service. Second, we analyze the ­principal value categories of public craftsmanship to which these value orientations can be assigned and what patterns of prioritization can be detected within such a homogenous professional group. Third, we assess whether this analysis indicates a more—or less—shared value understanding than one would typically expect from the rather one-dimensional use of value labels in overarching policy frameworks and scientific studies. The remainder of the chapter follows the structure of these three questions of value interpretation, prioritization, and convergence. In the next paragraphs, we address them theoretically, explain the methodology of research and analysis, and then report the empirical findings on each aspect. The central research question that we answer is: What value orientations do public professionals have toward public craftsmanship and how convergent are these orientations?

8.2   A Bottom-Up Approach to Sense-Making by Public Professionals Rather than simplifying things, adding the public dimension to the values concept further complicates a clean line of theory and research (Van der Wal & Van Hout, 2009). Values are usually abstract constructs, often considered hard to grasp or measure, but so are the confines of what public is (Beck Jørgensen & Bozeman, 2007; Beck Jørgensen & Rutgers, 2015). According to Rutgers (2008, 2015), studies on public values tend to have a built-in ambiguity because they often omit to clearly, let alone unambiguously, define what they understand public values to be, and are consequently about very different phenomena. We argue that, at the other extreme, those that explicitly attach clear-cut definitions to the individual values they use, methodologically harnessing a fixed interpretation of, for instance, loyalty or effectiveness, may also suffer from ambiguity issues, albeit of a different nature. Researchers might overlook the meaning their research subjects attach to values, whether in their personal view or in their work context. In this chapter, we approach values from the perspective of professions, regarding public professionals as frontline or street-­ level workers with a shared occupation and expertise (see Lipsky, 1980; Tummers et al., 2015).

184 

H. PAANAKKER

For the purpose of this study, we understand values as ‘qualities that are appreciated for contributing to or constituting what is good, right, beautiful, or worthy of praise and admiration,’ which as such are ‘manifested through behavior and action’ (De Graaf, 2003, p. 22). Public values, then, refer to values that directly relate to desired public-sector conduct, processes, and outcomes, or in Bozeman’s words, to ‘the principles on which governments and policies should be based’ (2007, p. 13) and that are supposed to guide public decision making in all its aspects.1 In the narrower context of public craftsmanship, we understand values as the key qualities that public professionals value in the context of, and toward, the object of their work (e.g. education or, in this study, detention). Such qualities may pertain to the qualities of individuals in the realization of public craftsmanship (for instance, treating detainees with respect), or to qualities of the governance process by means of which public craftsmanship can prosper (for instance, providing a safe work environment for employees in penal facilities). Of necessity, a value contains a normative disposition, and obtains meaning from its observer: ‘a value can be any concept that expresses a positive or negative qualitative (or evaluative) statement and has a ‘motivating force,’ that is, it gives direction to people’s thoughts and actions’ (Rutgers, 2015, p. 5). Similarly, Van der Wal states that ‘their meaning is derived not from the essence of the concept but from its usage […]: a meaning that constantly changes and differs from context to context’ (2008, p. 21). Rather than treating values as abstract entities, ‘we must remember that values first attain their actual significance in the concrete situation’ (West & Davis, 2011, in Bøgh Andersen, Beck Jørgensen, Kjeldsen, Pedersen, & Vrangbæk, 2012, p. 725). In her work on cross-­ cultural value interpretation, Yang adds that ‘[t]he study of values therefore largely relies on how people interpret the values, which includes the meaning of a value and how its importance differs from person to person, from case to case, or/and from culture to culture’ (2016, p. 75). While scholars are warned to be aware of and to make explicit (the criteria of) their interpretations of values (Rutgers, 2008), the interpretations of the professionals that have to deal with values in daily decision making seems less prominently emphasized in empirical work.

1  See the work of Beck Jørgensen and Bozeman (2007) for an elaborate account of the aspects to which the “public” in public values can refer.

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

185

In measuring public values, many empirical studies start from a predetermined set of values, and more importantly, a predefined set of values, specifying to respondents how the values in question are understood by giving them a brief description of each value (cf. Reynaers, 2014a; Van der Wal, 2008; Van der Wal & Yang, 2015). Although such predetermined definitions are very useful for demarcation purposes in research and to produce reliable and face valid results, we argue that content validity may actually be at stake. Predetermination of values may distort the portrayal of reality since public officials may understand and explain such values very differently, or perceive them differently in different settings, contexts, situations, or periods of time (cf. Haque, 2011; Rutgers, 2015; Witesman & Walters, 2015; Yang, 2016). Potentially, then, research might offer an exaggerated and misleading image of value convergence. We aim to complement existing foci on value rankings and value preferences among public officials by giving an in-­ depth account of how public professionals themselves express values. We deconstruct abstract notions of ‘good governance’ and broad public values into more tangible, context-dependent, concrete descriptions of how values are embodied by professionals and how they matter most in the job at hand. In line with Steenhuisen’s work (2009), this study harnesses a bottom-up approach to values and explores at street level how professionals, in their own words, express the key qualities connected with their work. The way individual public professionals make sense of the values they bring to their work is the focus of the study. After all, as ‘the room for interpretation of values is usually considerable […]. Surveys are generally poorly suited for capturing differences in interpretations, and […] uncover[ing] the multi-faceted interpretations in the time and space of public values’ (Bøgh Andersen et al., 2012, p. 725).

8.3   From Value Sets of a General Public Nature to the Specific Work Context Studies that examine the normative role of public values in administrative reality can be grouped under the umbrella of what Beck Jørgensen and Rutgers call Public Values Perspective (PVP) research. Here, diverse approaches are connected by the generic view that processes of, and in, public administration are ‘guided or restricted by public values and are public value creating: public management and public policy-making are both concerned with establishing, following and realizing public values’

186 

H. PAANAKKER

(2015, p. 3). We would like to add that many public professionals at operational level are just as involved in creating public value. They willingly act as craftsmen: they possess the skill, motivation, and commitment to ­pursue quality-driven work in a sociable way—that is, by focusing on mentoring, knowledge transfer, and setting standards in such a way that they are comprehensible to the lay person as much as to expert colleagues (Sennett, 2008, pp. 248–249). They ‘equally make and repair’ and ‘in turning outward, they hold themselves to account and can also see what the work means to others’ (Sennett, 2008, pp. 248–249). In doing so, they are the ultimate agency for handling, shaping, and transmitting values in practice. Different bodies of literature prompt us to focus on values in specific work contexts and these inform our framework of public craftsmanship. Street-level bureaucracy and policy implementation literature place a strong emphasis on the role of public employees in policy execution and on what practices they develop to translate policy or professional principles (cf. Lipsky, 1980; Tummers, 2013; Tummers & Bekkers, 2014), but they generally fail to address the more normative question of whether public employees feel this constitutes good performance or not, and whether appreciative views differ among them. It seems fair to state that this category of literature is independent of public values literature (2015). Studies on public-service motivation focus on what motivates public employee personally, pinpointing the set of values that drives the behavior of public-­ sector employees (Perry, 2000; Witesman & Walters, 2015), but they neglect broader considerations of what those employees believe their public performance should look like in its optima forma. Lastly, and most closely related, much PVP research tends to use quite broad and generalized sets of values that are presumed to be applicable to all public professionals across the whole of the public sector. Commonly cited values are loyalty, accountability, transparency, democratic legitimacy, lawfulness, and integrity, to name but a few (see also O’Kelly & Dubnick Schnell, Buckwalter & Balfour, Simonati, and Huberts in this volume). In 2009, Van der Wal and Van Hout noted that ‘almost all authors (ideologically) assume that there is a distinct and consistent set of public values’ (2009, p. 222). Of course much work has been done since, but the predisposition that ‘one set of values with undisputed meanings’ (Van der Wal & Van Hout, 2009, p. 227) exists, and can be used to characterize public-sector conduct in general when conducting public values research across different governance settings and groups, still leads in many studies. Examples include Reynaers’ (2014a) set of five predefined

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

187

values in four different case studies on public–private partnerships or Van der Wal and Yang’s (2015) list of 25 predefined values in a questionnaire among Dutch and Chinese public administrators from different ­occupational fields. We are curious to see if restricting the focus to bounded professions produces values of a different or more differentiated nature. Therefore, in contrast, the approach of public craftsmanship explores the values that public employees deem relevant in the specific context of their professional lives. Of course, the call for context-driven analysis of values in governance (and even from a professional angle) is not new. According to Rutgers (2008, p. 109), public administration values only acquire their meaning in relation to the specific context they are found in, that is, ‘their very purpose in time and place.’ Conventional wisdom holds that it is undesirable to use, impose, or prescribe particular governance values as blueprints in very different national and cultural contexts when discussing quality of governance (Huberts, 2014, pp.  213–214; Van der Wal, 2016, p.  2). Likewise, other authors state ‘[w]e know that public values are ultimately context-dependent and that classifications can only be exclusive and comprehensive in a given context (2012, p. 716) and ‘there are no inherently prime values, or no indisputable self-evident truths’ (Beck Jørgensen & Bozeman, 2007, p. 373). However, relatively few studies however depart from this notion as their main analytical focus. Subsequently, and despite these acknowledgments, most studies proceed with attempts to systematically order the public values spectrum in multidimensional classifications from the belief they ‘must be sorted to allow stringent analysis’ (2012, p.  716). Long lists of universalistic approaches to (categories of) values are the result (Haque, 2011; Charles, De Jong, & Ryan, 2010). For instance, Huberts contends that the overall importance and meaning of his seven core governance values (democracy with responsiveness and participation, accountability and transparency, lawfulness, incorruptibility and impartiality, effectiveness and efficiency of process, professionalism and civility, and robustness) is essentially and inherently universal by nature, even if corresponding behavior and policies may differ slightly according to the specific context at hand (2014, pp.  213–214). This assumption of universality is strongly disputed throughout this volume (see the in-depth analyses of O’Kelly and Dubnick on accountability and Simonati on lawfulness, to name a few). There are many other generic value constellations: those based on public-­versus-private spectra (Van der Wal, 2008; Van der Wal, De Graaf, &

188 

H. PAANAKKER

Lasthuizen, 2008), different value sources (organizational, individual, public, and so on, Van Wart, 1998), different scopes of impact (such as democratic values and ethical values, Pollitt, 2003), different modes of governance and corresponding organizational designs (such as user-­ focused values and rule-abidance values, Bøgh Andersen et  al., 2012), inherently different types of values (performance versus procedural values, De Graaf & Paanakker, 2015, or Hoods’ families of thèta, lambda, and sigma values (1991)), and many other categorizations (see Rutgers, 2008). The most frequently referred to seem to be Beck Jørgensen and Bozeman’s seven public values constellations, that include values associated with the relationship between public administration and politicians, values associated with intra-organizational aspects of public administration, and, the focus of our analysis, values associated with the behavior of public-sector employees (2007, pp. 367–368). We add the perspective of public craftsmanship in specific professional work contexts to narrow this down further. To capture the full range of value orientations among public-sector officials, an applied and work-specific approach that includes contextual professional values can add to our knowledge on which values matter most. The professional angle is also touched upon by many scholars. For instance, Van Wart (1998) distinguishes the profession as one of the sources from which important public-sector values emerge. More recently, Bøgh Andersen et al. found professionalism to be one of seven key value dimensions in public-sector organizational designs, consisting of independent professional standards, having professional drive, and professional commitment as a motive (2012, p. 721). Likewise, Beck Jørgensen and Rutgers found, in an empirical examination of central public values in Dutch and Danish job advertisements from 1966 to 2008, that the value of merit, also verbalized as expertise or professionalism, ‘is and continues to be the most important selection criteria, but the meaning of merit explodes in several directions’ (2014, p. 59). Pollitt (2003, pp. 134–135) also explicitly identifies ‘professional values’ as a main category but restricts its meaning primarily to the singular interpretation of impartiality. In a similar vein, numerous studies mention ‘professionalism’ or ‘expertise’ as one value amongst many (Beck Jørgensen & Bozeman, 2007; Van der Wal, 2008; Van der Wal & Huberts, 2008; Huberts, 2014; Van der Wal & Yang, 2015; Trommel, 2018). Definitions, again, typically delineate this value as ‘acting in line with professional codes and standards’ (Huberts, 2014, p. 213) or ‘act[ing] with competence, skill, and knowledge’ (Van der Wal & Yang, 2015, p. 418), indicating that many different types of (sub) val-

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

189

ues may fit under this broad umbrella. None of these studies reveal what is precisely entailed by those interpretations of professionalism, or, to put it differently, what exactly qualifies as public craftsmanship.

8.4   Studying Public Craftsmanship Value Convergence As argued, many public-values studies focus on detecting, mapping, and classifying public values, for instance in elaborate literature reviews, large civil servant surveys, or by means of case studies of their role in public–private partnerships (Beck Jørgensen & Bozeman, 2007; Reynaers, 2014b; Van der Wal, Nabatchi, & De Graaf, 2015; Yang & van der Wal, 2014). A smaller sample of studies concentrates on identifying and explaining value differences, most notably between public and private sector logics, between administrative morals in different countries, or a combination of both (Van der Wal, 2008; De Graaf & van der Wal, 2008; Jelovac, van der Wal, & Jelovac, 2011; Yang & van der Wal, 2014; Van der Wal & Yang, 2015; Yang, 2016). Gradually, research on value differences is expanding to include more qualitative work on differences or conflicts between values themselves, and how public officials cope with conflicting value sets in their daily work practice (Steenhuisen & van Eeten, 2008; Koppenjan, Charles, & Ryan, 2008; De Graaf & Paanakker, 2015; De Graaf, Huberts, & Smulders, 2016). In an empirical article on organizational values of Dutch government ministries and semi-autonomous executive agencies, Van Tiel and Van der Wal (2010) discuss differences within the public sector, juxtaposing very different types of organizations. In-depth research on value differences within more homogenous groups of public officials, and down professional lines of public craftsmanship, is scarce. Whether to expect high- or low-value convergence within professions is unclear. There is no doubt that professional groups make up a large—and therefore not to be overlooked—part of public-sector employees, and often share a common mode of operation and work ethos: In Western Europe, the relevant group is often a profession; that is, an occupation with intra-occupational norms and specialized, theoretical knowledge in the given area. The professions enforce the professional standards (norms within the profession) via peer review, and the desirable is compliance with intraoccupational norms, making professional commitment very important (Bøgh Andersen et al., 2012, p. 717)

190 

H. PAANAKKER

In this definition, norm diffusion and homogenization are key characteristics of a professional group. Whether a similar collective logic also extends to value orientations is less well understood. A few studies indicate that, in the public sphere, different actors may have different understandings of values (cf. De Graaf & Paanakker, 2015; Reynaers & Paanakker, 2016; Yang, 2016). For example, Yang (2016, pp.  78–79) found that Chinese and Dutch civil servants attached six different meanings to the value ‘loyalty,’ including ‘loyalty to the organization and colleagues’ and ‘loyalty to the country, to the political party, or to the laws and regulations.’ Some clear patterns of divergence emerged with the majority of Dutch officials endorsing the first interpretation and Chinese ones the latter. Furthermore, interpretations also diverged within sub-categories. Dutch officials interpreted ‘loyalty to the superior’ in terms of being loyal to ‘the bigger picture of the vision and mission of the organization,’ whereas Chinese officials understood ‘superior’ in terms of obedience and subordination to their manager (Yang, 2016, pp. 78–79). Finally, also within each of the two groups responses were scattered across the different meanings (Yang, 2016, pp. 78–79). Likewise, views on what public craftsmanship values precisely entail, or to put it differently, what it means to be a good civil servant, may differ from professional to professional. Alternatively, theories of social learning and organizational socialization theory suggest that public officials, especially in smaller sub-groups, are socialized into group norms and values (Bandura, 1977, 1986; Kohlberg, 1969), and this would suggest high-value convergence (Chao, O’Leary-­ Kelly, Wolf, Klein, & Gardner, 1994; Feldman, 1981). Through enculturation processes, shared organizational values create internal integration but also guide external adaptation and are strong catalyzers of behavior in the work context (Schein, 1985; Paarlberg & Perry, 2007). Interestingly, Bøgh Andersen et al. (2012) establish empirically that core value differences between public sector organizations correspond largely to the professional focus of such organizations. They found that, compared to managers in regulating or administrating organizations, ‘managers of service providing organizations had higher scores on professionalism (clan [mode of governance]) and user focus (market [mode of governance])’ and ‘[i]n line with this, managers of lower-level organizations scored lower on balancing interests, rule abidance, and budget keeping and higher on user focus and professionalism compared to higher-level authorities’ (Bøgh Andersen et al., 2012, p. 725).

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

191

In an empirical study among 182 city-level public administrators, Witesman and Walters also found that public officials use a limited number of well-defined context-driven values in their professional decision ­making: they selected specific subsets of values that were relevant to the specific work situations they were confronted with (2015, p. 90). Besides the suggestion that a distinct type of values could be deemed relevant in specific professions, the question arises of whether these values are assigned similar meanings or not. Even in the earlier cited work of Yang (2016), respondents generally attached no more than five different meanings to a value. Although these respondents represented public administrators in different policy domains (and hence, different occupational groups), could this demonstrate the occurrence of patterns that are indeed varied, but at the same time have a limited scope of variance? And would these value orientations be even more similar within more homogenous professional groups? This provides interesting leads for further research on the uniformity of public craftsmanship values. To date, the level of value convergence in specific work contexts in terms of demarcated professions, and among frontline workers specifically, remains an unexplored field of research.

8.5   Values and Craftsmanship in the Prison Context In the literature on prison dynamics, the presence of strong values that underpin penal logic and point penal behavior and practices in a clear direction is widely acknowledged. Many scholars stress how the incapacitation of detainees is inextricably tied to the prioritization of security at the expense of other goals of imprisonment (DiIulio, 1987; Sykes, 1958). In prisons, security as a value is linked to the deprivation of liberty and exertion of authority and tight control (Craig, 2004), and these are regarded as the core objectives of incarceration, ‘for the prison constitutes a place of domination’ (Liebling & Arnold, 2004, p. 442). Others contrast the focus on security values with their predominantly procedural nature (such as the strict enforcement of rules and regulations, control, order and stability, routine, authoritative action, and coercion) with values of a relational nature (Liebling & Arnold, 2004, pp.  435–442; Molleman & Van der Broek, 2014, p. 35). Liebling and Arnold assert that, in day-to-day prison practices, these so-called harmony values are as essential—if not even more so—as security values, and relate to human dignity, respect, fairness, and trust in detainee–employee interaction and relationships, as well as to

192 

H. PAANAKKER

detainees’ personal support and development (2004, pp.  435–442, see also Molleman & Van Ginneken, 2015). He states that striking a balance between two such inherently different values, no matter how complicated, is the ultimate key to ensuring quality in prison performance (Liebling & Arnold, 2004, p. 442), and hence constitutes penal craftsmanship. Others, still, argue that rehabilitation of the offender has been part of the Western penal system for over a century, often as part of a humane form of punishment (Craig, 2004; Molleman, 2014). These three goals or values are also explicitly incorporated in the mission of the Dutch prison system, which reads: ‘We ensure a safe and humane detention and work with our adjacent organizations and the inmate, toward reintegration’ (DJI, 2009). If, and how, Dutch prison officers mirror these abstract values in their views on craftsmanship is unknown. Scientific studies on the real-life role of prison officers in the United States or the United Kingdom, for instance, produce long lists of required competences that indirectly reflect on craftsmanship in the penal domain (Gilbert, 1997; Liebling, Price, & Shefer, 2010). They underline how much of prison work is about operating routines effectively; how prison officers share characteristics such as being resourceful, loyal, self-­confident, and proud; how complex it is to cater to the needs of a highly unpredictable group of beneficiaries; and how utterly important is the ability to balance security and discipline on the one hand and highly developed people-skills on the other (Liebling et al., 2010). Peacekeeping seems to be a recurring characteristic of penal craftsmanship: ‘Being a good prison officer involves being good at not using force but still getting things done, and being prepared to use the various power bases officers can draw on when necessary’ (Liebling et al., 2010, p. 205).

8.6   Research Methods and Analysis To allow for in-depth qualitative analysis of the way public craftsmanship is subjectively understood and characterized, we incorporate the results of semi-structured interviewing in a case study among Dutch prison officers (N = 18). Because of the closed setting of detention facilities (which, in Goffman’s (1968) words, would be characterized as total institutions), this research concerns a very specific and homogenous group of professionals. They are also public professionals, since all detention facilities in the Netherlands are fully publicly run. Respondents were working in the same penal facility in Amsterdam, the capital, with identical job

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

193

Table 8.1  Respondent characteristics Prison officials (N = 18) Gender Age

Male Female

15 3

30–35 36–40 41–45 46–50 51–55 56–60

1 2 2 4 4 5

Years of service

30

6 0 3 5 2

descriptions (running the daily detainee programs and taking care of the ­detainees) and highly similar target groups (male detainees awaiting the verdict on their case, prior to potential conviction), but at different departments throughout the facility (including those with special emphasis on heightened medication use or repeat offenders). Table  8.1 lists respondent characteristics. Men are overrepresented, which is a distinguishing feature of the prison officer population in general. Older employees with a considerable length of service are also overrepresented, an accurate reflection of this particular facility. Many of them have been working here their entire employable lives. All respondents were typical street-level bureaucrats, directly interacting with detainees, doing their work with a considerable level of discretion, and in charge of implementing and shaping prison policy on the frontline (see Lipsky, 1980, p. xvii; Tummers et al., 2015, p. 1099, 1105). Using an inductive approach, interviewees were asked for their view on what constitutes a good prison official. To avoid any bias (toward certain types of values), we did not ask for specific values, but purposefully asked broad questions such as ‘what does a good prison official look like?’ to bring to the surface value orientations toward public craftsmanship. The word ‘values’ itself was avoided, as it proved too vague a concept for respondents. Several control questions were asked in order to eliminate socially desirable answers, for example, questions about perceptions of ideal penal policy, descriptions of the job of prison officer, and questions about when they felt they were doing their job well. Respondents were entirely free to elaborate and to raise topics themselves in response to, and in addition to, the questions. Interviews were recorded and transcribed verbatim (131.706 words).

194 

H. PAANAKKER

The data analysis consisted of a systematic content analysis through software-supported (MAXQDA) coding: a process of attaching distinct labels to data segments to organize, classify, and conceptualize the interview material (Friese, 2014; Miles & Huberman, 1994). In the belief that ‘a properly developed code is more than just a descriptive label’ (Friese, 2014, p. 94), the coding system was developed largely inductively, using two-stage coding to build categories from the bottom up (see Bazeley, 2007; Kuş Saillard, 2011; Friese, 2014). During the first stage, open coding was applied to the data to explore and create sub-categories of values that provide ‘a good description of heterogeneity and variance in the data material’ (Friese, 2014, p.  113). We united data segments with similar content into mutually exclusive codes to create a methodological hierarchical coding system that reflects the data in all its facets (Friese, 2014, pp. 130–131). Next, we set out to find common denominators by renaming, modifying, and integrating sub-labels into larger overarching coding categories (Friese, 2014, pp. 130–131). ‘Going back and forth between data and codes’ (Weiss, 1994, p. 156), this validated version was applied to the data set at large and allowed us to grasp the subtleties of value orientations and compare them between respondents. Concretely, this means that qualities as mentioned by respondents were inductively aggregated and classified into four main categories of values: humanity, security, reintegration, and task effectiveness. The overarching value categories are described thus: • Humanity orientations refer to the idea that detainees are to be treated as humanely as possible, with a detention climate and staff approach that first and foremost sees the person behind the detainee. • Security orientations contain the key notion that detention should first and foremost be executed safely and should be aimed at maximizing safety and security for both employees and detainees and at minimizing occurrences of aggression, violence, and crime within the penal facility. • Reintegration orientations were depicted as a direct investment in stimulating detainees’ rehabilitation so as to obtain a life(style) free of criminal activity in the long term. • Task effectiveness orientations can be defined as being granted the time and means to conduct everyday business effectively, without unnecessary unrest, distraction or time constraints getting in the way and salting the game.

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

195

These four values accurately and inclusively capture the common characteristics among the different qualities. With the exception of task effectiveness, respondents also named these more abstract, singular value labels spontaneously themselves. For example, the category ‘humanity’ features concrete value orientations such as ‘personal care and support of detainees’ and ‘treating and approaching detainees with respect and dignity,’ but the word ‘humanity’ itself was specifically mentioned as a key quality of craftsmanship by respondents and included as a separate sub-category (‘literally mentioning ‘humanity of detention’ or ‘humane treatment of detainee’). In addition, prioritizations were analyzed. Respondents were not explicitly asked to rank or prioritize their orientations—rather, we made sense of that in the analysis and coded rankings into their responses, depending on how much weight or emphasis the respondent put on the quality mentioned and its relationship to the other qualities mentioned. For instance, if respondents argued their work should mainly revolve around contact with detainees and getting to know them, and, that, in addition to this, security in the facility is also important, then ‘humanity/personal contact with detainees’ was listed as the number one ideal value orientation and ‘security/security of detention’ was coded as the number two ideal value orientation. This resulted in a top five or six of value orientations per respondent (very few respondents named more than six different value orientations), and these formed the basis of the findings reported below.

8.7   Findings 8.7.1  Craftsmanship Among Prison Officers: Prioritizations Alike, Varied Interpretations Findings show that an impression of varying interpretations of craftsmanship is given initially. However, the overarching types of values they describe, and the prioritization of these overarching values, demonstrate a remarkably consistent pattern. The table below lists all value orientations mentioned by respondents in their ideal portrayal of prison work (Table  8.2). It indicates which value orientations, according to respondents, should ideally play a central role in detention and the way it is organized and provided by the prison officers themselves. At aggregated level, three types of values stand out: humanity, security, and reintegration unequivocally constitute the core of what prison officials feel public craftsmanship in the Dutch prison sector is about. The following sections discuss the variance of value orientations reported, patterns of prioritization, and the level of professional convergence, respectively.

196 

H. PAANAKKER

Table 8.2  Overview of prison officers’ reported value orientations toward public craftsmanship Public craftsmanship according to prison officers (N = 18) Main value category

Humanity (45)

Value orientations

Individual care and support of detainees (helping out practically and emotionally) Treating and approaching detainees with respect and dignity (being polite and acknowledging as fellow man) Literally mentioning ‘humanity of detention’ or ‘humane treatment detainee’ Treating and approaching detainees with empathy (being sympathetic to moods and behavior resulting from stress and personal problems) Motivational treatment Monitoring detainee behavior Personal one-on-one contact with detainees Treating and approaching detainees honestly (keeping one’s promises) Stimulating detainees to assume personal responsibility in regulating prison life Belief in the ability of detainee to change Security (26) Security of detention and/or for detainees (reducing or preventing aggression, violence, unsafe atmosphere) Treating and approaching detainees from a disciplining perspective (setting clear boundaries to desirable and acceptable behavior) Security Awareness (managing tensions through contact) Security of Employee (keeping oneself and colleagues safe) Sentencing as punishment Changing mindset and behavior of detainee during Reintegration detention (24) Contributing to detainees’ return to society Teaching detainee life skills (work, education, etc.) Contributing to long-term public safety Reducing recidivism Task Ensuring daily peace and quiet Effectiveness (9) Getting daily tasks done

No. of respondents mentioning this 15 7 6 5

3 3 2 2 1 1 11 9

4 1 1 10 6 5 2 1 6 3

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

197

Variance of Prison Officers’ Value Orientations 8.7.2   Humanity. The first set of value orientations is clustered into the category of humanity in detention provision (see Table 8.2). As shown by the specific qualities mentioned, humanity refers to the idea that detainees are to be treated as humanely as possible, with a detention climate and staff approach that first and foremost sees the person behind the detainee. Value orientations in this category refer, without exception, to qualities in the individual professional and focus on how detainees should be approached. In total, ten variations of this value cluster were coded. One variation stands out. First and foremost, prison officers state they ought to be there to handle individual requests for help and assistance, both practical (e.g. with filling out forms or managing distribution of food, soap, or clothing at the department) and emotional (e.g. putting stressful detainees at ease or referring inmates to social workers). ‘You are some sort of spokesman for the detainees. They come to you with all sorts of requests for help […]. Basically, I am the filter for them to the rest of the facility’ (respondent 13). Besides such personal and tailor-made care and support for individual detainees (the most frequently mentioned, with 15 out of 18 respondents mentioning it), the most important key quality of the prison officer is said to be the deployment of a treatment style toward detainees that is founded on respect and dignity (mentioned by seven respondents) and empathy (mentioned by five respondents). Or, in the words of a respondent: ‘c’est le ton qui fait la musique’ (respondent 5). This respondent provides the example of the quality of the first contact in the morning when waking detainees to go to labor. One can open the cell door by saying ‘Good morning, time for labor, would you like to go to labor, did you manage to get some sleep?’ or by snapping ‘Labor!,’ which evokes an entirely different dynamic. Other respondents mention offering ‘an almost tailormade detention climate’ by being sensitive to detainees’ personal problems or stress and allowing an extra phone call or providing basic emotional guidance accordingly: ‘But also […i]nsecure boys that don’t know what to expect, for them I am a centerpiece to at least explain to them what is coming and how to cope with that’ (respondent 12) and ‘I just approach them as fellow human beings and I do not approach them as a piece of dirt’ (respondent 7). Other value orientations in this category were mentioned far less frequently but are nevertheless evidently related to the provision of support and the style of treatment, such as the monitoring of detainee behavior and treating detainees honestly by not making false promises and by keep-

198 

H. PAANAKKER

ing one’s word (each mentioned by three respondents), or personal one-­ on-­one contact with detainees (mentioned by two respondents). Also mentioned explicitly three times was motivational treatment, a label for a prison-taught approach to detainees and based on motivational interviewing: ‘Staff members who use this method encourage inmates to participate in activities, help them make plans for when they have served their sentence, and try to hold up a mirror to them’ (Molleman & Van der Broek, 2014, p.  35). This does not mean other respondents found these value orientations irrelevant. Rather, it means they do not seem to consider them as a key indicator of public craftsmanship (or, at least, it did not come spontaneously to mind). Being the first port of call and most important point of contact is a shared characteristic that runs across the value orientations centered around humanity. With that comes a perceived need and obligation to pay genuine attention, to use listening skills (letting detainees blow off steam) and to treat detainees as human beings rather than as mere criminals. In addition, prison officers aim at yielding behavioral change by doing so, as is exemplified by the following quotes from respondents: Well before my time they only hired prison officers that measured 2 by 3 meters and who only had to shut the door and open it and could just throw them inside. My tranche is selected on the bases of a more social interaction and talking and being interested. I do think there is the way of showing people, I mean detainees, like: if I behave…that is also an option. (respondent 11) Respect is the basis of everything, or else you can’t get close or be around because you will be rejected. […] I treat people the way I want to be treated. If you go sour…. You just have to remain normal and friendly. If you stand broad-shouldered and give orders, it evokes aggression. They say: bugger off mate! What you give is what you get in return. (respondent 6) A good prison officer, well, provides care. A good prison officer, to me, is someone who has contact with the detainees regularly, who is often on the work floor, who hears and sees, the vibes I just mentioned, who can detect if someone is slipping off and anticipates in that: ‘what’s going on, this is not how I know you’. You know, who is eyes and ears on the floor. (respondent 9)

Clearly, professional behavior based on humanity orientations represents an important exemplary role and spurs a give-and-take dynamic that is illustrative of penal craftsmanship. Here, important linkages with the other two key values of security and reintegration emerge and are discussed below.

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

199

Security. A second set of value orientations can be grouped around security of detention. Although many respondents do not stress security aspects as much as they stress humanity aspects, the majority describes it as an important conditional value. Security is a prerequisite of their work and should always be warranted and never be compromised: ‘Yes that’s very simple, that’s guarding order, peace and quiet, and security within the facility, that’s of course the slogan that comes first’ (respondent 13 in response to what the essence of the job of a prison officer is). Five variations of security orientations can be identified from the data. Again, one specific orientation dominates: over half of the respondents (11 in total) specifically mention ‘security of detention’ as playing a role in their conception of ideal public craftsmanship. They emphasize that this refers to the general notion of guaranteeing safety within the facility, meaning a safe environment for detainees during incarceration and the minimizing of incidents of aggression, violence, and an atmosphere that is conducive to such incidents—only one respondent extends this focus directly to the safety of employees. This is as much a quality of the governance process (think of an adequate employee–detainee ratio or prison cell inspections to check for weapons or drugs) as a professional quality of the prison officers who, according to respondents, should actively steer on security. It is well captured by the value orientation of ‘safety awareness’ through which respondents report important spillover effects from the safeguarding of humanity to the safeguarding of security: knowing one’s detainees well (which includes clear humanity orientations such as close monitoring of behavior and anticipating (potentially) divergent behaviors by entering into dialogue) directly enables security to be preserved. Tensions are managed by means of contact and involvement. Although only four respondents mention this relational security explicitly, it was hinted upon by many others. Examples include, What is security about? [..] About being on your own floor with the crooks you know, with the activity program you know. […] So security has to do with: how much contact and influence do you have with respect to your environment. […] Because if [the prison officer] feels safe, he also creates safety. (respondent 14) Security is not just doors open and shut or having 3 guys on the prison yard, but security is also: in what state does the detainee reside behind that door. (respondent 5)

200 

H. PAANAKKER

…. if that boy explodes and ends up in isolation while you could’ve also just talked to him. You will take away a lot of tension for such a person. […] listening to what he has to say, a bit of safety, protection. Seems odd to say, but that they feel at ease here, so to speak. (respondent 1)

A second, often-mentioned security orientation relates to the behavioral disciplining of detainees. Almost half of the respondents perceive a disciplinary attitude toward detainees to be part of their craftsmanship, either as opposed to the treatment styles clustered under humanity, or as a complementary treatment style, necessary to obtain a healthy balance between loose and strict employee–detainee interaction. These respondents feel that a good prison officer sets clear boundaries to undesirable and unacceptable behavior from detainees as a way of disciplining them to behave more appropriately. The punitive character of detention permeates in this value orientation and is notably less clearly captured by the value orientations mentioned (for instance, sentencing as punishment is mentioned as an ideal feature only a single time). The disciplinary approach is well illustrated by the following quotes: Crooks do not fear prison. Detainees have too much space to shit on the system. If I touch them they can sue me. I say: if you shit on me, I will shit on you, puke on you, etcetera. Then they know what time it is. (respondent 6) I am fairly rigid. I am fairly ‘no’ and as soon as you come to me and say ‘I need to do this and this’, then you can forget about it. You may ask politely ‘can I, do you have some time for me’ or whatever. I do not work for you. You are not the one that pays my salary, so I don’t owe you shit. (respondent 12)

Reintegration. The third set of value orientations toward craftsmanship is focused on efforts to reintegrate detainees into society. Although these value orientations resonate well with the humanity perspective, their character is clearly distinct. Certainly, reintegration efforts can be attributed to humane rather than restrictive and punitive detention climates. However, whereas humanity orientations here focus on the nature and quality of direct employee–detainee interaction and the types of attitudes adopted by prison officers, orientations clustered in the category of reintegration focus on the attainment of long-term effectiveness—the purposeful commitment to elicit change through detention. These values represent what prison officers’ work is ultimately aimed at and is meant to accomplish. In the words of one prison officer: aim for detainees to ‘come out better than

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

201

they came in’ (respondent 5). Another stated: ‘I believe just punishing is of no use. […] I believe that just locking up, that’s not it. You have to do something with them’ (respondent 11). Hence, reintegration orientations are more outcome oriented than output and process oriented, and the value of reintegration not only represents a quality in the individual but also revolves around concrete governance tools to realize that objective. As in the previous two categories, one value orientation predominates here: for ten respondents, detention is ideally characterized by aiding the reintegration of detainees through changing their mindset and behavior during detention. As mentioned, this pedagogical conviction is strongly related to the humane and disciplining treatment styles that were put forward. It was only coded under ‘reintegration’ when respondents explicitly signaled that prison work should be about teaching, coaching, or even developing detainees to become better citizens. Descriptions remained rather abstract, but some examples were provided, such as teaching detainees discipline, providing a better daytime–nighttime routine, or a different perspective on the appropriateness of criminal behavior and how to make a living. Terminology such as contributing to ‘detainees’ return to society’ (mentioned by six respondents), ‘contributing to public safety’ (mentioned by 2), and ‘reducing recidivism’ (mentioned by 1) is very mainstream in penal policy and execution and was also mentioned in a rather abstract sense. Lastly, five respondents named the teaching of concrete life skills: giving detainees a course in Dutch language, teaching them a specific trade, or providing other types of training to smoothen their post-­ incarceration reintegration into society. In general, when talking about reintegration efforts, respondents referred to the use of institutionalized policy instruments such as in-house reintegration centers, in-house dispensing of psychological or psychiatric support, or involving chain partners to deal with post-detention matters such as housing, social security disbursement, and employment. Task effectiveness. The final set of value orientations is a relatively small one and was labeled ‘task effectiveness.’ In contrast to humanity, security, and reintegration, this overarching label was not given a name as such by respondents. This category features two value orientations: six respondents named ‘ensuring daily peace and quiet’ in their ideal portrayal of the prison officer, and an additional three respondents named ‘getting daily tasks done,’ which typically refers to clearly circumscribed tasks like conducting cell inspections, sending detainees to their activities on time, and conducting the weekly mandatory amount of mentor conversations with

202 

H. PAANAKKER

detainees. This particularly includes being granted enough time to manage those core tasks. With respect to upholding peace and quiet on the floor, this was mentioned five out of six times in combination with security, in the expression well known to prison officers ‘orde, rust en veiligheid’ (order, peace and quiet, and security): a phrase taught to them as a guideline for performing their job and for creating the right climate on the floor. As an ideal of craftsmanship, it seemed to have relatively little concrete meaning to them and appeared to be more of an automated response than a sincere substantive characterization, other than as a means of avoiding unnecessary hassle and unrest on the floor that would have been a distraction from the job in hand. Besides the obvious relationship with security (unrest between detainees themselves or between employees and detainees can invert to insecurity), maintaining order and peace and quiet may also refer to being organized in terms of having enough personnel on the floor and having at your disposal all the materials required to run the daily programs effectively (functioning showers, kitchen equipment, sufficient cleaning material, access to detainee files, being able to reach other in-house personnel when needed, etc.). In both instances, the value orientations of task effectiveness have a short-term focus. They refer to managing concrete tasks in the prison officer’s daily work context. As such, task effectiveness means short-term effectiveness and contrasts with the perspective of the reintegration category that centers on contributing ultimately to long-term (partially post-) detention effects. 8.7.3  Patterns of Value Prioritization Among Prison Officers Table 8.2 unequivocally shows that, overall, the three values of humanity, security, and reintegration are referred to most frequently by respondents, in that order: together, the 18 respondents mentioned variations of these values 45, 26, and 24 times, respectively. Although prioritization of these values differs slightly depending on the respondent, these three values are remarkably recurrent in each respondent’s listing of the ideal values of public craftsmanship. The prison officials interviewed give elaborate accounts of the importance of humanity (160 coded segments), reintegration (57 coded segments), security (44 coded segments), and task effectiveness (34 coded segments), meaning that they gave numerous examples of how and why these values mattered in the daily practice of their work.

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

203

This is confirmed when accounting for the mutual positioning of these values. No fewer than 17 out of 18 respondents mentioned humanity as an ideal value: it was coded in the top 3 of all of these 17, and 13 respondents even gave it as their number one top priority value. Humanity orientations by far outnumber the others, which indicates that respondents clearly find humanity the most important value that the ‘good’ prison official ought to adhere to. Reintegration and security vie for second place, with no definite winner. Reintegration recurred as an ideal value among 15 out of 18 respondents, and for 11 of them it was in their top 3. Security was mentioned as an ideal value by 14 out of 18 respondents, and again for 11 of them, coded in their top 3. When looking at values coded number one, security-related orientations were coded as the most important quality four times, and reintegration orientations only once. The only exception to the pattern is task effectiveness, the value category representing the prison official’s ability and—perhaps even more so—opportunity to get daily tasks done. This contains as many as 34 coded segments but occupies a far less prominent spot in the prioritizations. Task effectiveness is coded in the respondents’ top 3 only 4 times— the other five who mention it do so almost as an afterthought at the end of their enumeration of the key qualities of public craftsmanship. Its position is explained by the fact that the nine respondents who mentioned it, mentioned it quite frequently and elaborately. And, as mentioned before, five of them quoted this as part of the fixed and automatically coming to mind line ‘order, peace and quiet, and security’ and seemed to attach far less priority to it in relation to some of the other value orientations. 8.7.4  Convergence in Variance: How Prison Officers Interpret Craftsmanship If we combine our findings on which value orientations emerged and how they were prioritized by prison officers, we can address the second part of the research question on whether there is convergence of views on craftsmanship within a distinct group of public professionals. On one hand, the results yield an image of variance and, on the other, convergence within that variance. 1. Detainee care, safety, and behavioral change are key and mutually interdependent

204 

H. PAANAKKER

Our analysis illustrates that, despite a relatively large degree of variance in value orientations, respondents also have some obvious shared understandings of the ideal prison officer. On average, the main categories of values that were distinguished harbor five associated yet different value orientations, increasing to ten variations in the case of humanity orientations. Within the categories of humanity, security, and reintegration however, examination of the relative positioning of orientations shows that, for each category, one particular orientation stands out. This reveals an interpretation of craftsmanship that fosters the individual care and support of detainees (humanity), keeping the detention environment safe for detainees (security), and changing detainees’ attitudes and behavior (reintegration). Coincidentally, these orientations happen to represent the most frequently mentioned single orientations too (by 15, 11, and ten respondents, respectively). Hence, respondents spontaneously denoted a mix of different types of values but exhibited similarities in their emphasis of the most important key qualities. Many respondents also agreed on the interdependency of these values, with humanity as an important catalyzer and breeding ground for security and reintegration, and named these three values in the same breath when describing the (aspirational) prison officer: My job entails supporting and treating detainees well. That goes by ten [detainees] and is in the first place about security surrounding the detainees on your floor. (respondent 2) My job is just that I have to guarantee security and order and peace and quiet on the floor and that I provide guidance to the patients or clients in their say day-to-day concerns. Giving information on certain matters. [..] for them to be able to return to society. You should focus on the boys, on their future. (respondent 18)

2. Humanity of detention has top priority It is in the analysis of the values that underpin concrete orientations that convergence can be most clearly observed. Despite the multiple variations, prison officers’ orientations could be clustered in no more than four overarching values—an extremely narrow and uniform scope considering the range of public values generally mentioned in PVP studies. None of the qualities cited by respondents fell outside the scope of the four categories of humanity, security, reintegration, and task effectiveness: they captured exhaustively the (common characteristics of the) concrete qualities.

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

205

Furthermore, these four values were similarly prioritized, with humanity taking the ultimate lead as most important pillar of craftsmanship. Respondents prioritized either security or reintegration next, and almost uniformly put task effectiveness last (if they mentioned it at all). The clear majority of respondents maintained that a combination of some manifestations of the first three values characterized public craftsmanship in the prison sector, pointing to a clear commonality, albeit of a disparate nature due to different sub-interpretations. 3. Different emphasis and different combinations However, the level of convergence should not be exaggerated. None of the concrete value orientations was unanimously mentioned by all respondents, and of all value orientations mentioned, only three were mentioned by more than half of respondents. Apart from these three orientations of detainee care, safety, and change, orientations were more scattered. They received far less uniform credit and were mentioned by nine or (more often) far fewer respondents. Despite the variations within the overarching categories sharing a common underlying value base, each does constitute a change of emphasis with potentially very different professional performance as a result. Orientations toward security differed most: envisioning security in terms of sentencing as punishment, putting the safety of employees first, or building security awareness through as much detainee contact as possible all constitute truly different meanings. Orientations toward humanity were more closely related. But even then, a humane treatment style primarily based on respect triggers slightly different behavior from one based primarily on honesty or empathy (e.g. being polite does not necessarily mean never breaking promises, and one can be very honest and straightforward without showing any empathy). Of course, such orientations can also exist alongside each other, or even complement each other. Finally, with respect to reintegration efforts and task effectiveness, far less divergence was found. Essentially, reintegration efforts can be reduced to two interpretations: a quality of prison officers themselves to engineer change within the detainee, or a quality of the detention process to organize detention in a way that assists the detainee to get to grips with his post-­incarceration life through inhouse training and with the help of relevant external chain partners. Task effectiveness seems to contain the most convergent orientations and refers to the coherent notion of there being not too much chaos and having sufficient time to fulfill the daily tasks of a prison officer.

206 

H. PAANAKKER

In addition, there can be different combinations of value orientations that may further obscure the illusion of a highly uniform interpretation of craftsmanship. For instance, individual care and support of detainees was outlined by the vast majority of respondents, yet very different treatment styles were suggested to describe how this support was to be provided. Some advocated a disciplining perspective founded on the display of authority and preservation of distance toward detainees, others opted for an emphatic approach founded on sheer equality and purposeful employee– detainee proximity and leveling. Several respondents also recognized that the concept of a homogenous penal craftsman was not feasible, and some explicitly said this was undesirable: ‘There is no such thing as the ideal prison officer, rather you need a mix of people, and people themselves are also a mix of various aspects’ (respondent 14).

8.8   Discussion and Conclusion This chapter examined value orientations and consequent value convergence toward public craftsmanship among frontline professionals in the Dutch prison sector. It concerns the classification of meanings and the way corresponding value orientations are expressed to fit public officials’ own ideas and the professional framework of craftsmanship. In their conceptions of ideal craftsmanship, prison officers exhibit both similarities and differences. First, the prison officers demonstrate remarkable convergence on a more aggregated level of abstraction and prioritization, that, in addition, reflects well on the Dutch penal mission. Clearly, prison officers have internalized the values that underpin it and mirror them in their conceptions of good craftsmanship. Respondents adhere to the same (types of) values of humanity, security, reintegration and, to a lesser extent, task effectiveness, and prioritize them in a similar way. Contrary to much prison literature, reintegration is a distinct category alongside direct interaction-­ oriented humanity orientations, and task effectiveness was identified as another category. Rather than security, humanity triumphs as most important determinant of craftsmanship. This may be considered characteristic of the Dutch penal climate, which, in comparison with some other countries, puts a notably strong emphasis on humane treatment in relation to repressiveness, punitiveness, and retaliation. Security and reintegration were cast as the second most important things in good job performance, followed by task effectiveness as a much smaller category.

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

207

Interestingly, few of the standard public values we usually find in PVP studies surfaced among prison officers in the Netherlands. Values such as integrity, professionalism, lawfulness, or responsiveness, which are associated with the behavior of public-sector employees and their relationship to citizens, for instance by Beck Jørgensen and Bozeman (2007, p.  361), were simply not mentioned as such by our respondents when reflecting on public craftsmanship in prisons. Arguably, some of these values, such as honesty and transparency, were brought into other value orientations, for example, an honest treatment style toward detainees, but only in a way that was applied to the distinct context of prison work. At the very least, it indicates that the prison service has a vocabulary of its own that is less compatible with the terminology of general public-values research. What is more, it accurately reflects the logic and language of the penal profession, and how this relates to characterizations of doing the job well. As such, in reflecting on the general context of the professions, the values of public craftsmanship would seem to offer a more conclusive picture of which values matter most in the specific profession under study. Second, prison officers demonstrated a convergent perception of value interdependency. The symbiotic relationship between the values of humanity and security was confirmed, but their inherently conflicting nature was not. Rather, respondents report a positive interdependence in which the safeguarding of humanity directly and inevitably leads to more security, and to a better consolidation of reintegration efforts. In addition, high levels of task effectiveness directly enable prison officers to properly pay tribute to those three core values. Finally, the clear majority of respondents mentioned at least three types of values in combination. Hence, none of the four main values of penal craftsmanship is a stand-alone value: evident interlinkages exist between them and they are to a large extent mutually influential and reinforcing. Lastly, far more divergence was found in the sub-levels of value orientations. When mapping the concrete specifications of ideal qualities, a relatively large variation was seen. Interpretations of how security is to be safeguarded differed most substantially, followed by differences in emphasis on the humane treatment of prisoners and the achievement of reintegration. It is on these specific qualities that prison officers concretely base their behavior. They are highly contextualized and detailed accounts of good craftsmanship and demonstrate the uniqueness of individual prison officers, or at least of different types of prison officers, possibly impacted by factors such as age, character, or years of service. Prison officers differed in the emphases they put on specific qualities, in the way they combined

208 

H. PAANAKKER

qualities within each category and in the way they combined qualities from different categories. This may produce very different behaviors. This variance suggests that the one-dimensional use of overarching value labels, often prominent in scholarly debates and policies, does poor justice to the complex professional (in this case penal) reality and those navigating it. It represents a call to move away from currently dominant sets of values that focus on macro-level governance to apprehension of the meaning of values in the specific work context, and from broad, predefined and prearranged value sets to concrete articulations of values and recognition of the disparate nature of their actual application. The perspective of public craftsmanship might offer some interesting leads. It sets out to address and absorb the crucial values in a given public profession—values that may not be generalizable to the public sector at large but are e­ ssentially shaping the public job at hand and determine how the public employee thinks, acts, and performs. Future research into the scope of craftsmanship values is needed, both with respect to a larger and more diverse sample of prison workers and in comparison with other types of professions. Is the prison officer unique in the limited scope of values that are put center stage and the disparate nature of the specific qualities attached to those values? Or is this dynamic endemic to the bounded spaces of all professions? Does it go for all professions that there are dozens of different approaches in practice to the implementation of these values? Another interesting locus for future research is how values might converge within the hierarchy of positions, how the values of street-level workers compare with their immediate superiors and senior managers. As professional colleagues, do they adhere to the same types of values and hold similar ideas on corresponding qualities of craftsmanship? Finally, more empirical work needs to be done on the effect on professional practice of the views on public craftsmanship that are held. How do these views translate to public performance, and if there are strongly divergent views on what craftsmanship entails, does this have a negative effect on public performance?

References Bandura, A. (1977). Social learning theory. Englewood Cliffs, NJ: Prentice-Hall. Bandura, A. (1986). Social foundations of thought and action: A social cognitive theory. Englewood Cliffs, NJ: Prentice-Hall, Inc. Bazeley, P. (2007). Qualitative data analysis with NVivo. London: Sage.

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

209

Beck Jørgensen, T., & Bozeman, B. (2007). Public values: An inventory. Administration & Society, 39(3), 354–381. http://doi.org/10.1177/ 0095399707300703. Beck Jørgensen, T., & Rutgers, M. R. (2014). Tracing public values change: A historical study of civil service job advertisements. Contemporary Readings in Law & Social Justice, 6(2), 59–80. Beck Jørgensen, T., & Rutgers, M. R. (2015). Public values: Core or confusion? Introduction to the centrality and puzzlement of public values research. The American Review of Public Administration, 45(1), 3–12. https://doi. org/10.1177/0275074014545781 Bøgh Andersen, L., Beck Jørgensen, T., Kjeldsen, A.  M., Pedersen, L.  H., & Vrangbæk, K. (2012). Public value dimensions: Developing and testing a multi-dimensional classification. International Journal of Public Administration, 35(11), 715–728. http://doi.org/10.1080/01900692.2012.670843. Bovens, M. A. P., ‘t Hart, P., & van Twist, M. J. W. (2011). Openbaar Bestuur – Beleid, organisatie en politiek. Dordrecht, Netherlands: Kluwer. Bozeman, B. (2007). Public values and public interest: Counterbalancing economic individualism. Washington, DC: Georgetown University Press. Chao, G.  T., O’Leary-Kelly, A.  M., Wolf, S., Klein, H.  J., & Gardner, P.  D. (1994). Organizational socialization: Its content and consequences. Journal of Applied psychology, 79(5), 730–743. https://psycnet.apa.org/doi/10.1037/ 0021-9010.79.5.730 Charles, M, de Jong, W. M, & Ryan, N. (2010). Public values in Western Europe: A temporal perspective. The American Review of Public Administration, 41(1), 75–91. Craig, S.  C. (2004). Rehabilitation versus control: An organizational theory of prison management. The Prison Journal, 84(4_suppl), 92S–114S. https://doi. org/10.1177/0032885504269394 de Graaf, G. (2003). Tractable morality: Customer discourses of bankers, veterinarians and charity workers. Rotterdam, The Netherlands: Erim. de Graaf, G., Huberts, L., & Smulders, R. (2016). Coping with public value conflicts. Administration & Society, 48(9), 1101–1127. http://doi.org/ 10.1177/0095399714532273. de Graaf, G., & Paanakker, H. (2015). Good governance: Performance values and procedural values in conflict. The American Review of Public Administration, 45(6), 635–652. https://doi.org/10.1177/0275074014529361 de Graaf, G., & Van Der Wal, Z. (2008). On value differences experienced by sector switchers. Administration & Society, 40(1), 79–103. https://doi. org/10.1177/0095399707311785 de Graaf, G., & Van Der Wal, Z. (2010). Managing conflicting public values: Governing with integrity and effectiveness. The American Review of Public Administration,40(6),623–630.https://doi.org/10.1177/0275074010375298

210 

H. PAANAKKER

de Graaf, G., Van Doeveren, V., Reynaers, A.-M., & Van der Wal, Z. (2011). Goed bestuur als management van spanningen tussen verschillende publieke waarden. Bestuurskunde, 20(2), 5–11. DiIulio, J. J. (1987). Governing prisons: A comparative study of correctional management. New York, NY: Free Press. DJI (Dutch Correctional Agency). (2009). Strategisch kader modernisering gevangeniswezen. Den Haag, Netherlands: Programma MGW. Evans, M. (2012). Beyond the integrity paradox–towards ‘good enough’ governance? Policy Studies, 33(1), 97–113. https://doi.org/10.1080/01442872 .2011.637324 Feldman, D.  C. (1981). The multiple socialization of organization members. Academy of Management Review, 6(2), 309–318. Friese, S. (2014). Qualitative data analysis with ATLAS. ti. London: Sage. Gilbert, M. J. (1997). The illusion of structure: A critique of the classical model of organization and the discretionary power of correctional officers. Criminal Justice Review, 22(1), 49–64. https://doi.org/10.1177/073401689702200105 Goffman, E. (1968). On the characteristics of total institutions: Staff-inmate relationships. In D. R. Cressey (Ed.), The prison: Studies in institutional organization and change. New York, NY: Rinehart & Winston. Haque, M. S. (2011). Contemporary trends and dilemmas of administrative ethics in the developing world. In M. S. De Vries & P. S. Kim (Eds.), Value and virtue in public administration (pp. 169–185). Hampshire: Palgrave Macmillan. Holmberg, S., Rothstein, B., & Nasiritousi, N. (2009). Quality of government: What you get. Annual Review of Political Science, 12, 135–161. https://doi. org/10.1146/annurev-polisci-100608-104510 Huberts, L. (2014). The integrity of governance: What is it, what we know, what is done and where to go. Houndmills: Macmillan. Jelovac, D., Van Der Wal, Z., & Jelovac, A. (2011). Business and government ethics in the “new” and “old” EU: an empirical account of public–private value congruence in Slovenia and The Netherlands. Journal of Business Ethics, 103(1), 127. http://doi.org/10.1007/s10551-011-0846-5. Kelly, M. (1994). Theories of justice and street-level discretion. Journal of Public Administration Research and Theory, 4(2), 119–140. https://doi. org/10.1093/oxfordjournals.jpart.a037201 Kohlberg, L. (1969). Stage and sequence: The cognitive-developmental approach to socialization. In D.  Goslin (Ed.), Handbook of socialization theory and research (pp. 347–480). Chicago, IL: Rand McNally. Koppenjan, J., Charles, M. B., & Ryan, N. (2008). Editorial: Managing competing public values in public infrastructure projects. Public Money and Management, 28, 131–134. http://dx.doi.org/10.1111/j.14679302.2008.00632.x

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

211

Kuş Saillard, E. (2011). Systematic versus interpretive analysis with two CAQDAS packages: NVivo and MAXQDA. Forum Qualitative Sozialforschung/Forum: Qualitative Social Research, 12(1), Art. 34. Liebling, A., & Arnold, H. (2004). Prisons and their moral performance: A study of values, quality, and prison life. Oxford: Oxford University Press. Liebling, A., Price, D., & Shefer, G. (2010). The prison officer. Abingdon: Willan Publishing. Lipsky, M. (1980). Street-level bureaucracy: Dilemmas of the individual in public services. New York, NY: Russell Sage Foundation. Lipsky, M. (2010). Street-level bureaucracy 30th ann. ed.: Dilemmas of the individual in public services. New York, NY: Russell Sage Foundation. Miles, M. B., & Huberman, A. M. (1994). Qualitative data analysis: An expanded sourcebook. Thousand Oaks, CA: Sage. Molleman, T. (2014). Performance measurement in the Dutch prison system. Methodological guidance for public sector performance assessment. Utrecht University, Enschede, Netherlands: Ipskamp Drukker B.V. Molleman, T., & Van der Broek, T. (2014). Understanding the links between perceived prison conditions and prison staff. International Journal of Law, Crime and Justice, 42(1), 33–53. Molleman, T., & van Ginneken, E. F. (2015). A multilevel analysis of the relationship between cell sharing, staff–prisoner relationships, and prisoners’ perceptions of prison quality. International Journal of Offender Therapy and Comparative Criminology, 59(10), 1029–1046. https://doi.org/10.1177/03 06624X14525912 Oldenhof, L., Postma, J., & Putters, K. (2014). On justification work: How compromising enables public managers to deal with conflicting values. Public Administration Review, 74(1), 52–63. https://doi.org/10.1111/puar.12153 Paarlberg, L. E., & Perry, J. L. (2007). Values management: Aligning employee values and organization goals. The American Review of Public Administration, 37, 387–408. Perry, J. L. (2000). Bringing society in: Toward a theory of public-service motivation. Journal of Public Administration Research and Theory, 10(2), 471–488. https://doi.org/10.1093/oxfordjournals.jpart.a024277 Pollitt, C. (2003). The essential public manager. Philadelphia: Open University. Reynaers, A.-M. (2014a). It takes two to tangle: Public-private partnerships and their impact on public values. Vrije Universiteit, Amsterdam, Netherlands. Reynaers, A.-M. (2014b). Public values in public–private partnerships. Public Administration Review, 74(1), 41–50. https://doi.org/10.1111/puar.12137 Reynaers, A.-M., & Paanakker, H. (2016). To privatize or not? Addressing public values in a semiprivatized prison system. International Journal of Public Administration, 39(1), 6–14. https://doi.org/10.1080/01900692. 2015.1028637

212 

H. PAANAKKER

Rothstein, B., & Teorell, J. (2008). What is quality of government? A theory of impartial government institutions. Governance: An International Journal of Policy, Administration, and Institutions, 21(2), 165–190. https://doi. org/10.1111/j.1468-0491.2008.00391.x Rutgers, M. R. (2008). Sorting out public values? On the contingency of value classification in public administration. Administrative Theory & Praxis, 30(1), 92–113. https://doi.org/10.1080/10841806.2008.11029617 Rutgers, M. R. (2015). As good as it gets? On the meaning of public value in the study of policy and management. The American Review of Public Administration, 45(1), 29–45. https://doi.org/10.1177/0275074014525833 Schein, E.  H. (1985). Organizational culture and leadership. San Francisco: Jossey-Bay. Sennett, R. (2008). The craftsman. New Haven, CT: Yale University Press. Spicer, M. W. (2009). Value conflict and legal reasoning in public administration. Administrative Theory & Praxis, 31(4), 537–555. https://doi.org/10.2753/ ATP1084-1806310405 Steenhuisen, B. (2009). Competing public values: Coping strategies in heavily regulated utility industries. Delft University of Technology, Delft, Netherlands: Next Generation Infrastructures Foundation. Steenhuisen, B., & van Eeten, M. (2008). Invisible trade-offs of public values: Inside Dutch railways. Public Money and Management, 28(3), 147–152. http://doi.org/10.1111/j.1467-9302.2008.00636.x. Stewart, J. (2006). Value conflict and policy change. Review of Policy Research, 23(1), 183–195. https://doi.org/10.1111/j.1541-1338.2006.00192.x Sykes, G. M. (1958). The society of captives: A study of a maximum security prison. Princeton, NJ: Princeton University Press. Trommel, W. A. (2018). Veerkrachtig bestuur: voorbij neoliberale drift en populistische kramp. Netherlands: Boom Besterkunde. Tummers, L. (2013). Policy alienation and the power of professionals: Confronting new policies. Northampton: Edward Elgar Publishing. Tummers, L., & Bekkers, V. (2014). Policy implementation, street-level bureaucracy, and the importance of discretion. Public Management Review, 16(4), 527–547. https://doi.org/10.1080/14719037.2013.841978 Tummers, L., Bekkers, V., Vink, E., & Musheno, M. (2015). Coping during public service delivery: A conceptualization and systematic review of the literature. Journal of Public Administration Research and Theory, 25(4), 1099–1126. https://doi.org/10.1093/jopart/muu056 Van der Wal, Z. (2008). Value solidity: Differences, similarities and conflicts between the organizational values of government and business. Vrije Universiteit, Enschede, Netherlands: Ipskamp Drukkers B.V. Van der Wal, Z. (2016). Public values research in the 21st century: Where we are, where we haven’t been, and where we should go. International Journal of Public Administration, 39(1), 1–5. https://doi.org/10.1080/01900692. 2015.1072219

8  PROFESSIONALISM AND PUBLIC CRAFTSMANSHIP AT STREET LEVEL 

213

Van der Wal, Z., De Graaf, G., & Lasthuizen, K. (2008). What’s valued most? Similarities and differences between the organizational values of the public and private sector. Public Administration, 86(2), 465–482. https://doi. org/10.1111/j.1467-9299.2008.00719.x Van der Wal, Z., & Huberts, L. (2008). Value solidity in government and business: Results of an empirical study on public and private sector organizational values. The American Review of Public Administration, 38(3), 264–285. http://doi. org/10.1177/0275074007309154. Van der Wal, Z., Nabatchi, T., & De Graaf, G. (2015). From galaxies to universe: A cross-disciplinary review and analysis of public values publications from 1969 to 2012. The American Review of Public Administration, 45(1), 13–28. https://doi.org/10.1177/0275074013488822 Van der Wal, Z., & Van Hout, E.  T. J. (2009). Is public value pluralism paramount? The intrinsic multiplicity and hybridity of public values. International Journal of Public Administration, 32(3-4), 220–231. https://doi.org/ 10.1080/01900690902732681 Van der Wal, Z., & Yang, L. (2015). Confucius meets Weber or “Managerialism takes all”? Comparing civil servant values in China and the Netherlands. International Public Management Journal, 18(3), 411–436. https://doi.org/ 10.1080/10967494.2015.1030486 Van Thiel, S., & Van der Wal, Z. (2010). Birds of a feather? The effects of organizational value congruence on the relationship between ministries and quangos. Public Organization Review, 10(4), 377–397. Van Wart, M. (1998). Changing public sector values. New York: Garland. Weiss, R. S. (1994). Learning from strangers: The art and method of qualitative interview studies. New York, NY: The Free Press. West, K., & Davis, P. (2011). What is the public value of government action? Towards a (new) pragmatic approach to values questions in public endeavours. Public Administration, 89(2), 226–241. https://doi.org/10.1111/ j.1467-9299.2010.01847.x Witesman, E. M., & Walters, L. C. (2015). Modeling public decision preferences using context-specific value hierarchies. The American Review of Public Administration, 45(1), 86–105. https://doi.org/10.1177/ 0275074014536603 Woods, N. (2000). The challenge of good governance for the IMF and the World Bank themselves. World Development, 28(5), 823–841. https://doi. org/10.1016/S0305-750X(99)00156-4 Yang, L. (2016). Worlds apart? Worlds aligned? The perceptions and prioritizations of civil servant values among civil servants from China and The Netherlands. International Journal of Public Administration, 39(1), 74–86. https://doi.org/10.1080/01900692.2015.1053614 Yang, L., & Van der Wal, Z. (2014). Rule of morality vs. rule of law? An exploratory study of civil servant values in China and the Netherlands. Public Integrity, 16(2), 187–206. https://doi.org/10.2753/PIN1099-9922160206

CHAPTER 9

Robustness and the Governance Sin of Bureaucratic Animosity Adam Masters

9.1   What It Means to Be Robust We expect our governance systems to be robust. When they are challenged by internal or external actors, ideally they are sufficiently flexible and appropriately thought out to cope and function for the betterment of society. A governance system incapable of resisting challenges is soon replaced—or so we would hope. Unfortunately, lived experiences for many find that bureaucratic inertia gives a new meaning to robustness— the system survives and continues to roll on despite its flawed integrity. Robustness as a value thus has two interpretations—it is good when it protects the processes of governance from spurious challenges; and ­robustness is bad when a techno-rational mindset violates the integrity of governance to cause harm to the governed (see Adams & Balfour, 2012). Robustness (n.) The condition or quality of being robust (in various senses); sturdiness, hardiness; strength. (OED) A. Masters (*) Centre for Social Research and Methods, Australian National University, Canberra, ACT, Australia e-mail: [email protected] © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_9

215

216 

A. MASTERS

This chapter conceptualizes a new type of integrity violation—bureaucratic animosity1—locates it within Hubert’s (2012, 2014) framework concept of quality of governance, and in turn uses it as a mirror to reflect further on the concept of quality of governance. In particular, bureaucratic animosity reveals the flaws in robustness as a value. Robust has specific meaning in the pantheon of public values. According to Beck Jørgensen and Bozeman (2007), robustness is part of the value set within the constellation of intraorganizational aspects of public administration (p. 360). They further allocate a set of sub-values to robustness— adaptability, stability, reliability, and timeliness. To explain further, these authors frame their approach to this value as ‘[o]rganizational robustness [being] all about a suitable combination of stability and adaptability, about being immune to outside influences, and about the ability to flow with the tide when necessary’ (Beck Jørgensen & Bozeman, 2007, p. 366, emphasis added). On the surface, this frames robustness as a positive value—yet the frame limits our thinking to the robustness of an organization. In these terms, robustness comes into conflict with their constellation of values associated with the behavior of public-sector employees (Beck Jørgensen & Bozeman, 2007, pp.  367–368). In essence, these are the values of the individuals who collectively make up any public organization with the value of accountability resting on the sub-values of professionalism, honesty, moral standards, ethical consciousness, and integrity. The latter being the key with Beck Jørgensen and Bozeman describing a person with integrity as someone ‘unmoved by personal motives, interests, bribery, popular opinion, changing fashions, smears, and so forth but has sufficient backbone to stick to a certain point of view or principle’ (Beck Jørgensen & Bozeman, 2007, p. 368, emphasis added). This locates a significant degree of robustness at the individual rather than the organizational level, pointing out the idiosyncratic dimension of robustness as a personal characteristic embedded in public servant behavior. It is this level that this chapter examines robustness on. Specifically, a critical eye is casted on the challenges posed to robustness in individual public  servant behavior. In this respect, Beck Jørgensen and Bozeman provide an interesting lead. In their explanation of the values associated with the behavior of public-sector employees, they go on to specifically 1  Acknowledgements: The concept of bureaucratic animosity grew from a conversation between professor’s Glen Withers and Adam Graycar at The Australian National University, later related to the author. It was further developed for the International Institute of Administrative Sciences (IIAS) Quality of Governance (QuGo) Study Group meetings.

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

217

discuss regime loyalty as an important related value to integrity, with the option for a public servant resign if they cannot follow the regime requirements (Beck Jørgensen & Bozeman, 2007, p. 368). While the public servant involved can justify their actions within the value expectations of integrity toward their organization, it also creates a space for individual acts of bureaucratic animosity—the systemic or overzealous application of rules, regulations, and the law to the point of harm to individuals and businesses (citizen/clients)2—to occur. While organizational stability is a positive, as is the ability to adapt, resist external influences and be flexible, they can also become a negative when applied to the governance processes that an agency is wholly or partially responsible for administering. Unless all the sub-values apply consistently and evenly when required, the interaction between values can lead to friction and poor quality of governance outcomes. For example, a stable organization that fails to adapt in a timely fashion to changing social values may result in harm to those within the organization, or whom it is meant to serve— think of the US military policies toward gay and transgender service personnel. Going further, individuals within an organization may fail to adapt to unique circumstances, or be acrimonious for a variety of reasons toward citizen/clients relying on strict interpretations of laws, regulations, policies, guidelines, or rules resulting in real harm. This is bureaucratic animosity. Governance is a complex and contestable term. Supplementing this with a defining concept—that of quality—opens an entirely new can of worms and results in the conceptual question, what is quality of governance? At first glance, our Study Group IV of the International Institute of Administrative Sciences (IIAS) paraphrased the famous line from former US Supreme Court Justice Potter Stewart on pornography—we don’t know how to define it, but we know it when we see it. In the main, this volume explores the positive values associated with quality of governance—accountability (O’Kelly and Dubnick, this volume), democratic legitimacy (Buckwater & Balfour, this volume), quality itself (Simonati, this volume), transparency (Schnell, this volume), integrity (Huberts, this volume)—as well as the more problematic areas of values conflict (Paanakker, this volume). This chapter also explores poor quality of governance using bureaucratic animosity as the dark mirror to reflect upon what quality of governance may be. 2  The term citizen/clients captures the concept of people and organizations subjected to bureaucratic animosity in both the singular and plural forms. The term also includes entities that interact with bureaucracies who are not strictly citizens of the state running the bureaucratic system.

218 

A. MASTERS

Bureaucratic animosity covers a range of governance sins that do not meet the threshold of criminal or corrupt behavior, but nevertheless violate the integrity of governance processes and corrupts the robustness of public institutions—sometimes with devastating consequences for individuals or businesses. These consequences can include significant loss of capital or income, business failure, and physical or mental harm. Working from an Australian perspective, this chapter reveals how systems, public officials, and citizen/clients contribute to bureaucratic animosity, and, as a result, undermine robustness as a value of public servant behavior. The chapter frames the concept of bureaucratic animosity within the developing literature on quality of governance (Huberts, 2012), and integrity violations (Huberts, Anechiarico, & Six, 2008; Huberts & Six, 2012; Lasthuizen, Huberts, & Heres, 2011), before proposing a further research agenda.

9.2   Quality of Governance: Integrity +? Quality of governance presents two challenging concepts in one: governance and quality. Conceptually, a lot has been said on defining governance. For example, from a global perspective, James Rosenau differentiated between governance and government by saying that ‘governance is a system of rule that works only if it is accepted by the majority (or, at least, by the most powerful of those it affects), whereas governments can function even in the face of widespread opposition to their policies’ (1992, pp. 4–5). Furthermore he suggested that governance is always effective, characterizing it as ‘order plus intentionality.’ Bevir, on the other hand, narrows the term to the specific description of the ‘changes in the nature and role of the state following the public sector reforms of the 1980s and 1990s.’ (2009, p. 3). These definitions reflect a gulf between the various conceptions of governance variously shaped by their social, geographical, and temporal context. Rather than getting bogged down in the ongoing debate, this research builds on the work of Huberts, and therefore uses the general definition he quoted that ‘“governance” refers to “authoritative policy-making on collective problems and interests and implementation of these policies”’ (2012, p. 6). This chapter concentrates on the implementation of these policies, or in other words, the processes of governance. So what lies at the heart of the concept of quality of governance then? The key ingredient is integrity—the moral values and norms that are in accordance with the expectations of the organization, society, community, or nation subject to the aforementioned governance processes. Note that integrity here applies to the integrity of governance processes, not the

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

219

integrity of the individual described above. According to Huberts, there are seven types of values that are important to the integrity of governance. Within the concept of quality of governance, ‘quality means governance that is democratic, accountable and transparent, lawful, incorruptible and impartial, effective and efficient, professional and civil, and robust’ (Huberts, 2012, p. 12). These values are not necessarily prioritized, nor are they necessarily equal. Also contexts of time and place influence the interaction of values for analytical purposes. A simple example of the uneven, context specific nature of applying/analyzing these values would be the role of democratic values in an Iranian governance system compared to one in the United States. Furthermore, it should be reinforced that quality of governance is good or better when the system of governance and those administering it act in accordance with the value expectations of those governed. Governance becomes of poorer or bad quality when governance processes fall short of value expectations. Therefore, researchers need to be mindful that the governed are the best judges of the quality of governance (Huberts, 2012, p. 13). While this chapter explores bureaucratic animosity in terms of robustness, its negative influence on the other quality of governance values requires consideration. Having established the centrality of moral and ethical values of the processes of governance to the overarching quality of governance, the chapter turns to the integrity of governance and violations thereof.

9.3   Integrity of Governance The section focuses on violations of integrity of governance within processes of governance. Huberts (2012, p. 8, emphasis in original) expressed his view on integrity (of governance) as: the concept that should be applied to the behavior of the participants in decision-making and decision implementation. That is, it does not concern everything in politics and business nor even the content of government policy (or business strategy); rather, it concerns behavior, process, and procedure (in a broad sense).

This is not to say that integrity does not exist elsewhere in the governance cycle. For example, the democratic values of consultation and deliberation can contribute to the inputs of governance (Stevenson & Dryzek, 2012). Likewise, the final outcome of policy should be ethically appropri-

220 

A. MASTERS

ate. The ethical considerations are the moral norms and values that accord with public expectation and relate to the processes of decision-making and implementation by public officials. When the behavior of a public official is contrary to, or falls short of the ethical expectations, an integrity violation will have occurred (see Fig. 5.1). Research into integrity violations broadens the focus of research into public maladministration beyond the study of corruption. While corruption remains problematic, many other types of public activities that fall short of expectations that do not meet the common definition of corruption—‘the abuse of public office for private gain’ (Pope, 1995, 2000). Public administration scholars are understandably concerned about corruption and seek methods to understand its origins (Byrne, 2012; Uslaner, 2008), extent (Kaufmann, Kraay, & Mastruzzi, 2006), effects on politics and societies (Byrne, 2012; Graycar & Villa, 2011) as well as suggesting methods to reduce corrupt behavior (Graycar & Felson, 2010; Huberts, Anechiarico, Six, & Veer, 2008; Kpundeh, 2008). Yet a closer look at the actual work of agencies tasked by societies with deterring corruption reveals a far broader range of behaviors than just corrupt activities. Within Australia, there are a number of anti-corruption agencies at the state and federal level. Yet a brief look at their annual reports reveals a relatively low level of corruption as opposed to a relatively high number of referrals of matters that fail to meet public expectations, yet do not meet the corruption definition. For example, in New South Wales (NSW), the Independent Commission Against Corruption (ICAC) received some 2489 matters from the public or government agencies in 2016/17, yet from these only 27 preliminary investigations were commenced and only 10 proceeded to full investigations; in the same period, only 11 findings of serious corruption were made (ICAC, 2017, p. 3). These figures represent a bare fraction of 525,000 state and local government employees in NSW (Australian Bureau of Statistics, 2017). Broken down to sub-categories, the matters referred to the ICAC were partiality (20%), improper use of records (19%), personal interests (15%), failure to perform required actions (14%), improper use or acquisition of funds or resources (12%), corrupt conduct related to investigations or proceedings (6%), intimidating or violent conduct (6%), bribery, secret commissions and gifts (5%), and other corrupt conduct (7%) (ICAC, 2017, p. 90).3 Two things are clear from this data. Firstly, there is a large gap between what is reported 3  Total percentages exceed 100% because the same matter can address multiple forms of conduct.

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

221

as corruption and what is treated as corruption. Secondly, there is a broad range of ethically or morally deficient behaviors that do not meet the integrity standards of those members of the public reporting matters to the ICAC. Similar disparities between corrupt activities and other misbehavior can be found with the NSW Ombudsman (2017), while internationally Huberts (2012, pp. 4–5) research also showed a low level of strictly corrupt behavior in the context of the Netherlands police, local government, and US companies. Therefore, his argument to expand the field of inquiry by public administration scholars from corruption to integrity violations seems well justified. The first two columns of Table 9.1 outline the current Table 9.1  Integrity violations and NSW ICAC matters Violation

Description

Descriptors – NSW ICAC

Corruption: bribery

Misuse of public powers for private gain; asking, offering, or accepting bribes Misuse of public authority to favor friends, family, party, etc.

Bribery, secret commissions, and gifts

Improper private gain acquired from organization (no involvement of external actors) Personal interests (through assets, jobs, gifts, etc.) interfere (or might interfere) with public interest Using illegal/improper methods to achieve organizational goals

Improper use or acquisition of funds or resources

Lying, cheating, manipulating information, breaching confidentiality of information Misbehavior toward colleagues, citizens, or clients Failure to comply with organizational standards, improper performance, incorrect or dysfunctional internal behavior Conduct in one’s private time that violates moral norms, harms public trust

Improper use of records

Corruption: nepotism, cronyism, patronage Fraud and theft

Conflict of (private and public) interest Improper use of authority (for noble causes) Misuse and manipulation of information Discrimination and sexual harassment Waste and abuse of resources

Private-time misconduct

Other corrupt conduct

Personal interest

Corrupt conduct related to investigations or proceedings

Partiality/intimidating or violent conduct Failure to perform required actions / improper use or acquisition of funds or resources Category not mapped to ICAC data

Source: Modified from Huberts (2014), Huberts and Six (2012), p. 160, ICAC (2017), p. 90

222 

A. MASTERS

mapping of integrity violations, while the third column draws clear— though not perfect— parallels between this map and the NSW ICAC breakdown. Each integrity violation degrades the quality of governance delivered to citizen/clients scaling from individuals to society as a whole. Depending on the jurisdictional context, most integrity violations are also breaches of the law. Yet, there remains a broad gap between the number of reported instances and the number of those that proceed to formal action by an integrity agency. The fact that citizens are sufficiently motivated to report matters indicates the quality of governance does not meet their individual expectations. Integrity violations therefore open space to explore quality of governance. Within this space, we can find another integrity violation, that of bureaucratic animosity.

9.4   Bureaucratic Animosity At times, poor governance causes enormous pain, social harm, and adverse health consequences to citizen/clients. It is not corruption in the normal course of events, but inconsistent or simply poorly executed regulation; sometimes done maliciously, oftentimes not. Bureaucratic animosity is the systemic or overzealous application of rules, regulations, and the law to the point of harm to individuals and businesses (citizen/clients). Unlike the integrity violations listed above, bureaucratic animosity occurs within the rule of law and within the most seemingly robust of organizations, yet any objective observer can see that it falls short of the moral and value-­ based expectations of those subjected to it. Bureaucratic animosity occurs in the processes of governance, can be mobile across government agencies, and is multi-actored. 9.4.1  Bureaucratic Animosity in the Processes of Governance Bureaucratic animosity occurs within the processes—or throughputs—of governance, and is therefore a concept within the broader frame of quality of governance. It cannot form part of the inputs, although inputs such as poor system design, badly drafted regulations, or indifferent selection of personnel to enact a process may exacerbate the problem of bureaucratic animosity. Nor is bureaucratic animosity a part of outcomes or outputs. Even when disastrous outcomes and outputs result, they are the end of the process, where bureaucratic animosity is a feature of the throughputs.

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

223

9.4.2  Mobile Bureaucratic Animosity In advanced societies, procedures to deal with perceived governance failures exist. Ombudsmans’ offices, for example, have been around for hundreds of years as a place for citizen/clients to make complaint (Mulcahy, 2012, p.  12). When matters and cases are re-raised, reviewed, or re-­ opened, the activity commences a new set of throughputs as a separate part of the bureaucracy. However, bureaucratic animosity toward citizen/ clients can cross-over and influence the throughputs of the review process. This could be because the review authority is not sufficiently independent, such as often criticized cases of police investigating misconduct by police (Landau, 1996). Alternatively, a fair review process may not achieve the result sought by the citizen/client, leading them to exacerbate their circumstances by alienating the review agency (e.g. Jarrett, 1995). Thus, bureaucrats and citizen/clients can cause bureaucratic animosity to travel between governance systems. 9.4.3  Actors in Bureaucratic Animosity By its very nature, bureaucratic animosity occurs at the point where and when a bureaucratic system and those who operate it interact with citizen/clients. Three groups of actors contribute to bureaucratic animosity: the bureaucratic system itself, the bureaucrats within the system, and the citizen/clients involved. The system and the bureaucrats have direct or explicit control on whether bureaucratic animosity occurs or not. Citizen/clients are not necessarily neutral actors in cases of bureaucratic animosity, and can implicitly or explicitly trigger the animosity of a bureaucracy. Table 9.2 frames the actors with the elements of bureaucratic animosity and an explanation of the interaction between actor and element. 9.4.4   Systemic Bureaucratic Animosity

Systemic bureaucratic animosity has five possible elements: (1) it can take the form of a system that is contradictory in nature; (2) it may be outdated; (3) the system could provide too much discretion for the bureaucrats who administer it; (4) the system allows too little discretion for bureaucrats; or (5) the system socializes bureaucrats into working against the interests of citizen/clients. A bureaucratic system that fails to meet the

224 

A. MASTERS

Table 9.2  Elements of bureaucratic animosity Actor

Element

Explanation

Bureaucratic system

Contradiction

Legislatively or procedurally contradictory requirements within a bureaucratic system The system demands bureaucratic processes continue, despite being invalidated through technological or societal change Bureaucrats can choose to either smooth or exacerbate a situation

Outdated

Too much discretion available Too little discretion available Rotten barrel syndrome Individual or groups of bureaucrat

Citizen/clients and their agents

Too much discretion exercised Too little discretion exercised Aggression

Rights oriented

Poorly informed

Complainers

Bureaucrats are locked into a response, irrespective of alternatives A system that socializes new members toward what an outsider would consider as unacceptable behavior Acts within the framework of black-letter law and regulation to maximize inconvenience for citizen/ clients Bureaucrats have the discretion to resolve an issue but choose not to Immediate or progressively aggressive or combative approach by citizen/clients toward the system or the bureaucrats Insistent on exercising rights or receiving an instant solution (even though they may be addressing it to the wrong area) Citizens/clients interactions are misinformed or poorly advised from other areas of the bureaucracy, family or friends acting as armchair lawyers, or even real lawyers. Citizen/client either makes, or has the reputation to make, regular and trivial or vexatious complaints about bureaucrats or the system.

Source: Author

quality of governance expectations of the populace may contain any or all of these elements in multiple combinations. Many bureaucratic systems have become so complex and burdensome as to become contradictory in their very nature. Oftentimes, this results from an organizational pursuit of stability at the expense of adaptability, with the sub-value conflict undermining the overall robustness of the gov-

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

225

ernance system. These systems make it difficult or almost impossible for individuals or groups of bureaucrats to act ethically—no matter how strong their desire to do so. An example of this is the Australian system of processing refugee applicants. A policy requirement is that all refugees applying to Australia must pass a security assessment. To complete this function, inquiries are generally required in the person’s country of origin. However, the catch-22 is that under the Migration Act (Cth) (1958. § 336F), which ratifies Australia’s obligations under United Nations refugee conventions, migration officials are prohibited from making inquiries in the country of origin, thus making it impossible for the system to be anything but hostile toward refugee applicants. Of course, many thousands of refugees are admitted into Australia annually under the existing policy; therefore, it is clear that a certain amount of discretion is involved in the process. The refugee processing system in Australia is run by a bureaucracy that spent the better part of the twentieth century enforcing what was known as the ‘White Australia Policy.’ This policy deliberately discriminated against non-British migrants, and later non-Europeans. The discretionary power given to migration officers meant they could effectively bar entry into Australia through such means as the infamous language test, which could be administered in any language, with a requirement to translate it to any other language (not necessarily English) (Marr & Wilkinson, 2004, pp. 44–45). Thus, we can see that this particular bureaucratic system has elements of contradiction and values conflict; variously too little and too much discretion for those administering it; robustness without sufficient flexibility; regime loyalty overriding individual rights; and has maintained a socializing role that shapes bureaucrats’ attitudes toward excluding refugees from entering Australia. 9.4.5  Animosity by Bureaucrats—Willing or Not Individual street-level bureaucrats often have enormous powers over the lives of citizens. Lipsky (1980) established the concept of street-level bureaucrat and described the power they wield over citizen/clients decades ago. A council ranger in NSW for example has broad discretionary powers over a person’s behavior (e.g. littering, vehicle parking, noise emission from parties or worksites, and use of firearms); their property (e.g. fire hazard clearance and property fencing); and even pets (animal control) (NSW Government, 1993, § 124). As a result, these officers have the abil-

226 

A. MASTERS

ity to severely impact on a citizen/clients life while remaining strictly within the law. Imagine coming home to find thousands of dollars’ worth of fencing torn down and the family dog taken to the pound—all done by council officers acting within the law. There may be recourse through legal channels; however, the damage is done and then further exacerbated through the stress of further bureaucratic and legal processes. 9.4.6   Citizen/Clients—Contributing to Their Own Circumstances The final group of actors involved in bureaucratic animosity is citizen/ clients. These actors are not always passive participants, nor are they necessarily victims of state actions manifested through governance processes. In many cases, they can contribute to their own circumstances. Lipsky (1980, pp. 59–60) argues that individuals who engage with bureaucrats are re-­ constructed as clients. This de-personalizing process can have long-term adverse effects on both individuals as well as client organizations if they are labeled as a troublemaking client. Aggressiveness when dealing with a bureaucrat by a citizen/client can bring bureaucratic animosity on their own head. A simple example of this is a motorist pulled over by police—if they ‘fail the attitude test’4 they may find themselves subjected to a much more rigorous application of black-letter law than what may otherwise have resulted in a simple warning. This aggression often manifests in the form of a rights-oriented approach. While a citizen/client may indeed have the right to certain services from state employees and institutions, demanding these rights from the wrong office of a bureaucracy can easily result in the appropriate office being warned about the person through internal networks. This warning may trigger bureaucratic animosity in the appropriate office, thus demonstrating both the mobility of bureaucratic animosity and contribution of citizen/clients to their own woes. The demand for ‘rights’ to be exercised may often be poorly informed by deeply held beliefs. The overwhelming depiction of US and British police culture on television lead many Australians to believe that they have been maltreated by police because they were not ‘read their rights’; or that 4  For an example of this, see YouTube http://www.youtube.com/watch?v=c8XLVKIWDs, where in this case, the Irish police officer chose to de-escalate a problem rather than engage in bureaucratic animosity—of course it must be borne in mind that the police officer knew he was being filmed.

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

227

the rights they were informed of do not match the Miranda rights requirement of the US, or of those of the Police and Criminal Evidence Act (1984) (UK). Perceived breaches of rights can also take other forms. 9.4.6.1 Complaint-Oriented Citizens Citizen/clients who regularly make trivial complaints, with or without justification, can earn themselves a reputation within bureaucratic circles that results in them being treated with undue caution, and/or the subtle exercise of unfavorable discretion by bureaucrats. A revealing piece of data is the small number of complaints about the NSW Ombudsman (10  in total) (NSW Ombudsman, 2017, p. 23). The citizen/clients in these cases have come to the agency designed to impartially address failings in the larger system of the NSW government, only to then lodge complaints about the watchdog. These are not necessarily conspiracies, although they might be, but the end result is that the citizen/client clearly feels subjected to bureaucratic animosity. A qualification is required here. This chapter recognizes the role citizen/clients can have in instigating, initiating, and perpetuating bureaucratic animosity upon themselves. The paper does not intend to argue or extrapolate this point into administrative evil (Adams & Balfour, 2005, 2009, 2012). To do so would be to suggest that victims of genocidal action are somehow complicit in their own fate—this argument was made by the Third Reich and other genocidaires (cf. Tatz, 2003). While individuals or groups may create or exacerbate their own circumstances of bureaucratic animosity, they are ultimately not the ones who inflict needless or unjust pain and suffering as is the case with administrative evil. The active participation of citizen/clients is not a necessary element in all instances of bureaucratic animosity, and should therefore be assessed on a case-by-case basis. Citizen/client behavior can clearly trigger or exacerbate bureaucratic animosity. Bureaucrats are people too, who have good days and bad days, and even the most professional person has limits. This can be seen in any hospital emergency department on a daily basis—an aggressive client without serious medical issues can wait for much longer than necessary because those operating the triage system can de-prioritize them in response to their behavior. This can be done without presenting serious risk to the citizen/clients physical health, but may result in exacerbating mental health issues. This simple scenario combines at minimum the elements of client aggression and the exercise of bureaucrat discretion.

228 

A. MASTERS

9.4.7  Discretion Allowed and Disallowed, Used and Unused The element of discretion is clearly at the heart of bureaucratic animosity. It is arguable that a system is a neutral actor and should not be included here as a system incapable of exercising discretion itself—that can only be done by actors within the system. However, the system itself may provide too broad a scope for bureaucrats to act in a manner deleterious toward citizen/clients or one that is too narrow. How much available discretion is exercised provides the link between systemic bureaucratic animosity and the animosity of bureaucrats themselves. Figure 9.1 presents the discretionary framework in which bureaucratic animosity can develop. To begin with, all actions are assessed as occurring within the laws of the relevant jurisdiction. Anything outside the law, as mentioned, moves beyond the scope of bureaucratic animosity on the scale of wrongdoing. Discretion plays a role in the decision-making of bureaucrats irrespective of whether citizens/clients have endeared or alienated themselves to the bureaucrat/s with whom they interact. However, one could expect that human nature would take its course in shaping the approach of the bureaucrats if they find themselves in the firing line of an aggressive or otherwise painful client (Lipsky, 1980, Legal framework of society Bureaucratic System System enables Citizen / Client/s

Endears

\

Alienates / \ Exercises does not discretion use discretion / \ / \ Yes No Yes No / \ / \ / \ / \

\ No Discretion | N/A | no discretion

Ethically aligned

/ \ Yes No / \ / \

\ does not use discretion / \ Yes No / \ / \

Outcome for citizen / clients

+

-

+

-

+

-

+

-

+ - + - +

-

+

Bureaucratic animosity

|

|

|

|

|

|

|

| | | | | |

|

|

N N N Y N N N Y N N N Y N N N Y N N N Y

Bureaucrat/s

/ Exercises discretion

/

Discretion

/

Fig. 9.1  Model of bureaucratic animosity and discretion

/ Yes / \

\

-

+

-

+

-

|

|

|

|

|

/

No \

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

229

pp. 57–58). Thus, despite appearances, the likelihood of an even distribution of outcomes for citizens/clients is minimal, and it is to be expected that those who alienate themselves will find discretion turned against their interests. Figure 9.1 represents a model of discretion within bureaucratic animosity, with all activities taken to operate within the legal framework of society. Therefore, criminal behavior by the system, bureaucrats, or citizen/ clients cannot be assessed by this model. The top three rows incorporate the inputs into the processes of governance: systems, citizen/clients, and bureaucrats. First, the system itself may or may not allow the bureaucrat to exercise discretion. If no discretion is available, the actions of bureaucrats and citizen/clients are not applicable in the processes. Second, citizen/ clients can endear themselves to the bureaucrats they are dealing with, or they can alienate them. The actions of citizen/clients in endearing or alienating themselves can occur at any point in the processes of governance. Third, bureaucrats with the ability to do so, exercise their discretion that is either ethically aligned with societal expectations, or not. This manifests through the action or inaction of the bureaucrats, or whether the processes embedded within the system meet the moral norms of society. The outcomes for citizen/clients are either positive or negative. However, a negative outcome does not necessarily equate to bureaucratic animosity. While the chapter remains focused on the processes of governance, it is the point where outcomes are received that allows citizen/clients to judge whether they have been subjected to a bureaucracy that is meeting or failing to meet their needs. The judgment of citizen/clients is not the only factor to determine whether bureaucratic animosity has occurred. For example, the path of positively exercised discretion for a client that has endeared themselves may still result in a negative outcome. This can be seen when a triage nurse treats a polite client with speed and efficiency in an attempt to do the right thing medically, yet the client dies. Despite the tragic outcome, this is not bureaucratic animosity. Thus, the combination of the outcome and negative ethical performance—through bureaucratic discretion or the processes embedded within the system—is the determinant as to whether bureaucratic animosity has occurred or not. The solution to bureaucratic animosity and integrity violations in general will not be found in the removal of all discretion from street-level bureaucrats. Quite simply it is impossible for a policy formulation to capture all variations of citizen/client needs from government and any such

230 

A. MASTERS

formulaic solution will often result in less than ideal service, or even greater harm to those which the system is designed to assist. Yet from a values perspective, Beck Jørgensen and Bozeman highlighted that ‘[o]rganizational robustness is all about a suitable combination of stability and adaptability’ (2007, p.  366, emphasis added). Thus, the goal is to find the suitable combination.

9.5   Bureaucratic Animosity and Integrity Violations Having outlined a concept of bureaucratic animosity, its elements, and the role of discretion, the issue arises as to whether the element of discretion is simply a different way of perceiving discrimination. In short, no it is not. To illustrate this, we need to compare bureaucratic animosity with the established integrity violations. Table 9.3 presents the established integrity violations as conceived above and whether they are necessarily related to the conception of bureaucratic animosity. In the majority of cases, other integrity violations do not need to occur for bureaucratic animosity to exist. However, the apparent relationship between discrimination and bureaucratic animosity warrants further discussion. Impartiality is a central characteristic of ‘good’ quality of governance, and when bureaucrats begin to discriminate against citizen/clients, quality declines. Hence, discrimination is an integrity violation. Lasthuizen et al. (2011, p. 395–396) broke discrimination down into four subtypes: discrimination against colleagues; sexual harassment of colleagues; indecent treatment of colleagues; and indecent treatment of citizens and customers. It is this last sub-type that closely matches an aspect of the conceptualization of bureaucratic animosity. The integrity violation of ‘indecent treatment of citizens and customers’ falls within the concept of bureaucratic animosity when initiated by bureaucrats, who choose to exercise their discretion to the detriment of individual citizen/clients. However, the broader conceptualization of bureaucratic animosity captures three key differences. Firstly, bureaucratic animosity can be exercised to the detriment of organizational as well as individual clients. Secondly, bureaucratic animosity can be systemic when processes are contradictory, outdated, allow too much or too little discretion, or where bureaucrats are socialized by the system to work against the interests of clients. Finally, bureaucratic animosity recognizes the role of the citizen/client. Therefore, while some types of bureaucratic animosity align with an existing integrity violation, conceptually it is something more.

Description

Failure to comply with organizational standards, improper performance, incorrect, or dysfunctional internal behavior Conduct in one’s private time that violates moral norms, harms public trust

Note: Violations and Descriptions from Huberts and Six (2012), p. 160

Private-time misconduct

Waste and abuse of resources

Misuse of public powers for private gain; asking, offering, or accepting bribes Corruption: nepotism, etc. Misuse of public authority to favor friends, family, party Fraud and theft Improper private gain acquired from organization (no involvement of external actors) Conflict of (private and Personal interests (through assets, jobs, gifts, etc.) public) interest interfere (or might interfere) with public interest Improper use of authority Using illegal/improper methods to achieve (for noble causes) organizational goals Misuse and manipulation Lying, cheating, manipulating information, breaching of information confidentiality of information Discrimination and sexual Misbehavior toward colleagues, citizens, or clients harassment

Corruption: bribery

Violation

Table 9.3  Integrity violations and bureaucratic animosity

No—BA does not require extra-­curricular activity

No—because it is difficult to conceive of a system misbehaving, they behave as they were designed with intentional and unintentional consequences Yes—when exercised by an individual bureaucrat, BA can be construed as misbehavior toward citizens, but it can be strictly within the law No—when citizen/clients trigger or exacerbate a situation, the response of bureaucratic systems and individual bureaucrats is not discriminatory in the sense that it is ‘misbehavior’ No—BA can be conducted efficiently and effectively in terms of resources

No—friends, family, or party do not gain No—misappropriation of public property not a necessary element No—BA may be system generated, negating any personal interest of bureaucrats No—technically speaking BA is conducted using lawful and proper methods No—as per the above, BA is lawful and proper

No—bureaucrats or the system do not gain

Required element of bureaucratic animosity (BA)?

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

231

232 

A. MASTERS

9.6   Conclusion Robustness is an important value for quality of governance, integrity of governance, and integrity violations that include bureaucratic animosity. Yet, as this chapter has demonstrated, organizational robustness can be problematic at the level of governance processes and lead to conflict between individual bureaucrats, citizen/clients, and the organizations responsible for the delivery of public services. Looking more deeply, the discretion delegated to individual public servants can, when the sub-­ values for robustness are unevenly applied, lead to bureaucratic animosity, particularly when their discretionary flexibility fails to temper a public servant’s loyalty to an organizational regime. In short, the value demands of robustness require balance, otherwise the values cocktail of robustness becomes distinctly ‘un-robust.’ This chapter makes no claim to have settled the debate on what quality of governance is; however, it makes a strong argument that bureaucratic animosity is a concept that not only warrants inclusion in the debate, but further research in its own right. Bureaucratic animosity is not only an integrity violation, it is more in two dimensions. Firstly, the concept provides a space to examine integrity violations that are system generated by treating the system as an actor. Recognition of systemic bureaucratic animosity in the first place may lead to an unmasking of administrative evil, which is arguably present in Australia’s refugee policy and system for handling boat arrivals. Secondly, by treating citizen/clients as potential participants, bureaucratic animosity recognizes that even the most robust systems operated by the best people do not necessarily have to deal with the best society has to offer. It may well be that this is a case of citizen/clients getting the governance that they deserve. However, at the very least the concept of citizen/client initiated bureaucratic animosity provides a fresh approach to analyzing the other core values of quality of governance, and to a nuanced critical examination and interpretation of robustness as a governance value.

References Adams, G. B., & Balfour, D. L. (2005). Public-service ethics and administrative evil. In H. G. Frederickson & R. K. Ghere (Eds.), Ethics in public management (pp. 114–138). Armonk, NY: M.E. Sharpe. Adams, G. B., & Balfour, D. L. (2009). Unmasking administrative evil (3rd ed.). Armonk, NY: M.E. Sharpe.

9  ROBUSTNESS AND THE GOVERNANCE SIN OF BUREAUCRATIC ANIMOSITY 

233

Adams, G.  B., & Balfour, D.  L. (2012). The dynamics of administrative evil in organizations. In C. L. Jurkiewicz (Ed.), The foundations of organizational evil (pp. 16–30). Armonk, NY: M.E. Sharpe. Australian Bureau of Statistics. (2017). 6248.0.55.002—Employment and earnings, public sector, Australia, 2016–17. Canberra, Australia: Australian Bureau of Statistics. Beck Jørgensen, T., & Bozeman, B. (2007). Public values: An inventory. Administration & Society, 39(3), 354–381. http://doi.org/10.1177/ 0095399707300703 Bevir, M. (2009). Key concepts in governance (Sage Key Concepts). London: Sage. Byrne, E. A. (2012). Political corruption in Ireland 1922–2010: A Crooked harp. Manchester: Manchester University Press. Graycar, A., & Felson, M. (2010). Situational prevention of organised timber theft and related corruption. In K.  Bullock, R.  V. Clarke, & N.  Tilley (Eds.), Situational prevention of organised crimes. Cullompton: Willan. Graycar, A., & Villa, D. (2011). The loss of governance capacity through corruption. Governance: An International Journal of Policy, Administration, and Institutions, 24(3), 419–438. https://doi.org/10.1111/j.14680491.2011.01535.x Huberts, L. (2012). Corruption, integrity and quality of governance: Some food for thought. Paper presented at the 13th International Winelands Conference, Stellenbosch, South Africa, April 2012. Huberts, L. (2014). The integrity of governance: What is it, what we know, what is done and where to go (IIAS Series: governance and public management). Basingstoke: Macmillan. Huberts, L., Anechiarico, F., & Six, F. (Eds.). (2008). Local integrity systems: World cities fighting corruption and safeguarding integrity. The Hague, Netherlands: BJU Legal Publishers. Huberts, L., Anechiarico, F., Six, F., & van der Veer, J. (2008). Local integrity systems: Analysis and assessment. In L.  Huberts, F.  Anechiarico, & F.  Six (Eds.), Local integrity systems: World cities fighting corruption and safeguarding integrity (pp. 271–295). The Hague, Netherlands: BJU Legal Publishers. Huberts, L., & Six, F. E. (2012). Local Integrity systems: Toward a framework for comparative analysis and assessment. Public Integrity, 14(2), 151–172. https:// doi.org/10.2753/PIN1099-9922140203 ICAC (Independent Commission Against Corruption) (2017). Annual report 2016–17. Sydney, Australia: Independent Commission Against Corruption. Jarrett, J. (1995, November 4). Murder of Assistant Commissioner Winchester: The Tragic End of an Era, Canberra Times. Kaufmann, D., Kraay, A., & Mastruzzi, M. (2006). Measuring corruption: Myths and realities. World Bank Institute, Washington, DC. Washington: World Bank Institute.

234 

A. MASTERS

Kpundeh, S. J. (2008). Limiting administrative corruption in Sierra Leone. The Journal of Modern African Studies, 32(1), 139–157. https://doi.org/10.1017/ S0022278X0001257X Landau, T. (1996). When police investigate police: A view from complainants. Canadian Journal of Criminology, 38, 291–316. Lasthuizen, K., Huberts, L., & Heres, L. (2011). How to measure integrity violations. Public Management Review, 13(3), 383–408. https://doi.org/10.1080/ 14719037.2011.553267 Lipsky, M. (1980). Street-level bureaucracy: Dilemmas of the individual in public services. New York, NY: Russell Sage Foundation. Local Government Act 1993. Australia. Marr, D., & Wilkinson, M. (2004). Dark victory. Crow’s Nest: Allen and Unwin. Migration Act 1958. Australia. Mulcahy, S. (2012). Money, politics, power: Corruption risks in Europe. Berlin: Transparency International. NSW Government. (1993). Local Government Act. NSW Ombudsman (2017). Annual report 2016–17. Sydney, Australia: New South Wales Ombudsman. Pope, J. (1995). Containing corruption in international transactions—The challenge of the 1990s. In Commission on Global Governance (Ed.), Issues in global governance: Papers written for the Commission on Global Governance (pp. 67–90). London: Klewer Law International. Pope, J. (2000). The Transparency International source book. Berlin: Transparency International. Rosenau, J. N. (1992). Governance, order and change in world politics. In J. N. Rosenau & E. O. Czempiel (Eds.), Governance without government: Order and change in world politics (Cambridge Studies in International Relations) (Vol. 29, pp. 1–29). Cambridge: Cambridge University Press. Stevenson, H., & Dryzek, J. S. (2012). The discursive democratisation of global climate governance. Environmental Politics, 21(2), 189–210. https://doi.org/ 10.1080/09644016.2012.651898 Tatz, C. (2003). With intent to destroy: Reflecting on genocide. London: Verso. Uslaner, E.  M. (2008). Corruption, inequality, and the rule of law: The bulging pocket makes the easy life. Cambridge: Cambridge University Press.

Conclusion

CHAPTER 10

Reviewing Quality of Governance: New Perspectives and Future Research Adam Masters, Hester Paanakker, and Leo Huberts

10.1   Quality of Governance, and Values in Context Why is a better understanding of quality of governance values important? What is the value of this book and further study of public values more broadly? To answer this, we must remember that public values are the benchmark for peoples’ expectations of their institutions of governance, creators of governance instruments, and the practitioners of governance. People believe in the importance of public values. Public officials, both elected and appointed espouse them, legislators craft laws to meet public A. Masters (*) Centre for Social Research and Methods, Australian National University, Canberra, ACT, Australia e-mail: [email protected] H. Paanakker Radboud University, Nijmegen, The Netherlands e-mail: [email protected] L. Huberts Vrije Universiteit Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4_10

237

238 

A. MASTERS ET AL.

values—policies flow from law and embody public values, as do guidelines, rules, codes of conduct, training, expectations, interpretations, and more. Yet whenever an empirical eye is applied to a particular value—or in our case a range of values—we find differences in understanding, interpretation, application, and in the effect values have on any given society. Differences can be contextually driven from nation to nation—Simonati aptly demonstrate this with the growth of administrative law shaped for the Italian context, and Schnell also demonstrates the relevance of context in Romania. Elsewhere differences can be shaped to suit institutional or organizational needs or points of view—as was the case in Flint, Michigan, addressed in Chap. 2. As Reynaers, Paanakker, and Masters showed, even officials working in the same context can interpret values differently at the individual level. So the complexity of values requires research to know when they are applied to the satisfaction of the community which has set them, when they are violated, or when they come into conflict. A better understanding should improve the application of the values core to quality of governance. Our goal was to scrutinize notions of good and bad quality of governance through a values-based analysis. The preceding chapters focused on a particular set of values and the contribution these values add to or detract from to the overall quality of governance. Some interesting new perspectives or themes can be identified that run across the different chapters and deserve acknowledgment in this concluding chapter. These challenging perspectives cover a broad scope both temporally and geographically, but do not exhaust the field of values research. Our work peels back some of the mysteries in this important aspect of public administration. Values remain central—as Frederickson put it: ‘…that values inhabit every corner of government is given. Who studies administration studies values and who practices administration practices the allocation of values’ (1996, p. 32). Such sentiments apply equally to the broader study of governance and our closer examination of quality of governance—values are key. As our study is admittedly not the final word, we must acknowledge that more scholarly energy needs to be directed at not only normative thinking about values and quality of governance, but empirical research to support scholastic notions which can improve the lives of both administrators and the publics they serve. Here, we offer some reflections on the preceding work to contextualize its importance. How does this work reflect both quality of governance and the relevant values associated with the concept? How do these values relate to one another? Where does confusion lie—for both the academic and the

10  REVIEWING QUALITY OF GOVERNANCE: NEW PERSPECTIVES… 

239

practitioner? Why is the variety of contexts an important consideration in a values analysis? What influence do the various layers of governance exert on values, and consequently the quality of governance? And finally, what does the agenda for future values and quality of governance research look like in light of this contribution?

10.2   Where We Have Been But first of all, a brief recap of the work this book contains. In a set of case studies from around the globe, this volume addresses which values matter in governance processes and outcomes, how they matter in specific contexts, and what dangers arise when they are violated. As such, it offers a unique and in-depth assessment of quality of governance and its contingent and disparate nature. The contributions to this volume cover the following values in part one: democratic legitimacy, accountability, transparency, integrity, and lawfulness. These values consider values from an institutionalized perspective, how these particular values matter to governance practices—policies, strategies, rules, regulations, etc.—or what is being done to accommodate governance values. Part two concentrates more strongly on who is implementing the values—the governance practitioners. The second part opens with effectiveness (in terms of service quality), followed by an examination of professionalism—or public craftsmanship. Finally, a careful examination of robustness as a value reveals how conflict in values can lead to violations of what should otherwise be seen as good. Combined, the contributions discuss the underlying question of the relevance, limitations, and applicability of these specific values to the overall quality of governance. The first values chapter by Buckwalter and Balfour demonstrated that an attack on democratic legitimacy could have perverse effects, both on a range of other public values and on public outcomes. Their case study of Michigan’s emergency response to a tainted water supply showed how values conflict with each other in the reality of administrative practice. As a key yardstick of quality of governance, democratic legitimacy was argued to outweigh other values such as expertise, even (and perhaps especially) in times of crisis. Chapters 3 and 4 demonstrated that both accountability and transparency harbor an array of different, and sometimes conflicting, meanings. From both O’Kelly and Dubnick’s American/Irish take on accountability and Schnell’s Romanian perspective, they stressed that such conflict may obscure clear-cut harnessing of these values. Conflicting

240 

A. MASTERS ET AL.

meanings may produce irreconcilable normative point of departures, incompatible policies, or power struggles to the detriment of other values. Yet at the same time, it can also open up opportunities to do justice to these different meanings in theory and practice. Huberts then explored incorruptibility and impartiality, approaching these values from the angle of integrity and its meaning for the overall quality of governance. Part one concludes with Simonati’s detailed examination in Chap. 6 of lawfulness in Italy proved how both the executive and legislative powers flexibly interpret this value, and imposes technical boundaries—strong and weak— to running administrative systems efficiently and effectively, while upholding quality. Reynaers opens part two by framing the value of effectiveness in one of the key markers of governance—the public-private partnership (PPP), the classic formulation of governments no longer rowing, but steering the ship of state (Rhodes, 1996). Reynaers explains that effectiveness was questionable at least: in different case studies service quality was neither safeguarded nor a priori better protected with the involvement of a private partner. Chapter 8 introduced the concept of public craftsmanship as a way to look at street-level quality of governance, or street-level professionalism. Paanakker argued how case-based evidence in the Dutch prison sector illustrates the contingent and disparate nature of quality of governance as a concept. Finally, Masters illustrates how the uneven weighting and conflicting nature of the sub-values of robustness—at both the organizational level and that of the individual public servant—can create the conditions for the integrity violation of bureaucratic animosity to occur. It remains open for debate whether the panorama of values summarized above is complete and adequate. The different chapters offer food for thought on this point—on the one hand, the definition or interpretation of the values, and on the other—the focus on these values, and what might be missing in the framework.

10.3   Values Interpretation—Clarity and confusion The starting point of the book was to include a ‘panorama’ of relevant values with chapters that reflected on the content and importance of those values in different contexts. A first insight to reflect upon is that the different chapters clarify that challenging and different interpretations of the

10  REVIEWING QUALITY OF GOVERNANCE: NEW PERSPECTIVES… 

241

values exist. Some chapters reveal clashing perspectives in our philosophical or theoretical conceptions of values—normative conceptions that underpin policy and behavior, and that determine the direction of scholarly and administrative debates. Other chapters demonstrate how values are differently translated to decision-making and behavior in administrative practice. Some address a combination of both different theoretical underpinnings and different implementation behaviors. Hence, attention to and clarity about which conception we use is key to make sense of how value debates evolve in theory and practice. 10.3.1  Clashing Perspectives That theoretical and philosophical conceptions of values are contested is hardly surprising. This volume is the latest attempt to add some clarity to what values are, to give clarity to the practitioners who are guided by organizational and societal values as they implement the processes of governance. Yet this is not straightforward. For instance, O’Kelly and Dubnick in Chap. 3 frame accountability as a metaphorical spectrum. Such a widening is necessary for us to better understand the relationship between the value of accountability, and its darker reflection unaccountability—a violation of the core value. This forms the central theme of their argument— the overzealous adherence to accountability can be a ‘bad’ quality of governance value through signaling a struggle for power or domination between the accountable and those they account to with respect to the interpretations they opt for. Only when it is made clear and transparent which interpretation of accountability is used and why, can it become a ‘good’ quality of governance value. 10.3.2  Translating Values into Action The contributions on effectiveness and service quality by Reynaers in Chap. 7 and professionalism by Paanakker in Chap. 8 shift our focus away from the philosophical reflections toward empirical insights into the application of values. Both Reynaers’ and Paanakker’s insights come from interviews with practitioners. One cannot get further from theorizing about values than to discuss it with those charged with their implementation. As Heclo and Wildavsky (1974, p. xiii), advised, ‘[t]he cure for ignorance about how something gets done is to talk with those who do it’. In Reynaers’ case, the different public and private partners involved were

242 

A. MASTERS ET AL.

found to interpret service quality in different ways, and Reynaers argues that it requires craftsmanship to make PPP’s work—craftsmanship that takes into account different meanings, labels, and interpretations. The importance of facilitating ambiguity is supported by Paanakker, who also explains how practitioners make their own compilations of values of craftsmanship. When considering Reynaer’s work with Paanakker’s chapter on professionalism as a value, we can see the worth in centralizing value interpretations during processes of change in public management and public administration. Another illustration of this point is Masters’ exposition on bureaucratic animosity in Chap. 9 as the dark side of quality of governance, which also highlights the clash of values perspectives. At the macro-level the pursuit of lawfulness or rule compliance oftentimes leads to both intended and unintended violations of integrity, effectiveness, or efficiency. Also at the micro-level, adaptability conflicts with regime loyalty. His chapter also frames the role of citizen/clients in the governance processes—in effect giving due consideration to their role in the co-production of both ‘good’ quality of governance and ‘bad’ quality of governance. In part two, Reynaers and Paanakker directly, and Masters indirectly, share a common element in their empirical engagement with street-level bureaucrats (defined by Lipsky, 1980, 2010), those practitioners charged with the implementation of values, and focus on the level of differences in their value conceptions and interpretations. These chapters demonstrate that values are not fixed: the context shapes how we translate values into action. Similarly, the chapters on democratic legitimacy, transparency, and lawfulness show how context shapes values into institutional practices. Getting quality of governance values right or wrong, as with all cases in this volume, improves or degrades the level of success in both process and outcome.

10.4   Many Values Matter for Governance: How Do They Relate Many values are addressed by the diverse research of this volume. The importance of each separate value is argued convincingly, but a relevant question that remains under-addressed is how do they relate to one another. As the recap in this conclusion clearly outlines, although contributions to this volume focused on one value at a time, all contributions

10  REVIEWING QUALITY OF GOVERNANCE: NEW PERSPECTIVES… 

243

acknowledge the interdependency of values and mention, either explicitly or implicitly, how a certain value interacts with some other values, stressing their related nature, or the inevitable sequential impact of addressing one value on another value. In short, context determines whether values complement or compete with each other. The authors in this volume unequivocally conclude that there is no such thing as a stand-alone value in governance, and addressing quality inevitably means addressing values in combination with each other. Unsurprisingly, this rarely led to explicitly addressing the potential conflict with other values in the research presented here, as that fell beyond the scope of this volume, addressing a particular value in each chapter. There are however many debates on value pluralism, on conflicting values, and how these can, or should, be managed. Some of these overarching debates are also touched upon in the chapters. The clashing nature of values, for instance, is in particular addressed in the chapters on robustness and bureaucratic animosity, which points out potential conflicts between bureaucratic animosity (the systemic or overzealous application of rules, regulations, and the law), lawfulness, and integrity, and the chapter on professionalism, which examines conflicting (value) expressions of craftsmanship in the prison sector (for instance, security versus humanity). More in-depth research on how (conflicting) values relate in administrative praxis, and explicit attention to a broader spectrum of related values to account for ‘value spill-over effects,’ would advance our theoretical and practical knowledge on how values matter. Can values reinforce each other’s role and worth in governance processes and outcomes, and if so, in what way and to what extent? What are the limitations to value enhancement through value interdependency, for instance, through processes of isomorphism between governance institutions, or through cultural institutionalization and socialization within organizations? And how can values function to undermine each other, exacerbating negative behaviors and (side) effects within confined governance settings? In addition, more detailed analysis of how conflicting conceptions are dealt with by public officials, and how their modes of coping relate to the nature of the values, the severity of the value conflict, the impacts administrators foresee in a more consequentialist reasoning of public decision-making, or their effectuated impact on public service delivery are promising research areas that require more attention. Providing further insight into the management of, and coping with, conflicting values offers a challenging agenda for research.

244 

A. MASTERS ET AL.

10.5   Quality of Governance in Context This volume explicitly draws attention to the importance of contextualizing the role and impact of values, and adherence to them. The chapters unanimously illustrated that values always must be put in to context—as context generates differences on how the values are interpreted and applied by practitioners. The chapters illustrated the range of differences almost by necessity, depending on the policy domain or policy topic, on the sets of actors involved (public/private, politics versus administration, etc.), on the national context, or on the profession at hand, to name a few examples. However, regardless of contextual differences, it seems also clear that the selected values have to be taken into account in advancing knowledge on what matters for the quality of governance. Nevertheless, theory and research on the quality of governance is still rather macro-­ oriented and quantitative, with frameworks of values that suggest a common, universal meaning. The studies in this book illustrate that the relevance and interpretation of the many values are context dependent, in content and consequences. More specific knowledge taking into account the context seems an important topic for future research, including moving toward more clarity about the characteristics of the context that seem to matter, including the different phases and levels of governance. 10.5.1  Values in Different Policy Phases Governance is about input, throughput, output, and outcome—and also the connection with different types of values. The chapters address primarily process, with challenging insights on accountability, transparency, legitimacy, lawfulness, integrity, professionalism, with attention at times for the quality of the outcome (policy effectiveness, service quality). In addition, though, it seems worthwhile for future research and theory building to be more clear on the phases or aspects of governance that are addressed as well as on the (inter)relationship between process and outcome values. First, on the phases of the governance process. This process includes the input phase of agenda-building, the throughput phase of policy preparation and decision-making, and the output phase of decision and policy implementation and evaluation. In all these phases, the actors’ operations are guided by values and norms within an institutional framework, which itself also contains public values and norms. The different chapters in the volume deal with all phases, but more differentiation per phase might be

10  REVIEWING QUALITY OF GOVERNANCE: NEW PERSPECTIVES… 

245

worthwhile to reflect upon and take into account in future research. Is legitimacy, accountability, and/or transparency equally relevant in all phases of governance? Or does that differ for agenda-building, preparation of policy, decision-making, and implementation?—like Reynaers addressed in her chapter on PPPs in different policy phases. Second, on the relationship between the quality of the governance process and the quality of the outcome. Both matter for the overall quality of governance, but how they relate is a crucial topic to reflect upon more explicitly. This also relates to issues addressed in other relevant bodies of knowledge, including on ‘procedural and substantive justice.’ With, on the one hand, attention for the quality of the process of decision-making or governance and, on the other, the consequences of that for the legitimacy and acceptability of the output and outcome of the process. Van Ryzin for example concluded that trust depends ‘not just on the extent to which government succeeds at delivering outcomes to citizens, but on getting the process right’ (2011, p. 755). Thus, the process of governance might be more important for the legitimacy of government and governance than the output legitimacy. But what qualities and values of the process do really matter then? Rothstein (2011) focused on the impartiality of governance, for example, as the decisive process characteristic for quality of outcome. We doubt that for now, also building on the relevance of many values addressed in this book, but it is clear that impartiality leads to a challenging empirical research agenda on the relationship between the quality of the governance process and the societal quality of the outcome. Process and outcome seem intertwined, more than our joint research on the quality of governance seems to realize. 10.5.2  Different Value Scopes Our research on good governance and the quality of governance often focuses on the macro-level (comparing countries), sometimes also the meso-level of organizations (as in this book), with relatively little attention for the micro-level: how do individual public servants cope with the also conflicting aspects and values of ‘good governance.’ The attention for the micro-level seems to offer an inspiring and important contribution to our reflection on the quality of governance (for example, Paanakker’s chapter in this book). At all levels, values are important, but what is seen as quality or good governance also seems to differ at the macro-, meso-, and micro-­

246 

A. MASTERS ET AL.

level. More clarity about the different levels or scopes seems important, also in research. How do they relate, and how do they influence one another?

10.6   Agenda for Research Careful assessment and deliberation on what it is that constitutes quality and what can be done to improve it remain, in our view, imperative for our future research and its impact. The ideas presented are the state-of-the-art research and theory building on the quality of governance, which offer challenging insights to advance theory and practice in our field of study, but of course also open up an agenda for future research. In line with the themes outlined here, more research into concrete cases with attention for (coping with) conflicting values seems important. As does research into the interdependency of values and the way they complement and reinforce each other in concrete cases. In addition, empirical research on the actual application of values in decision-making and policy implementation seems an interesting venue for future studies. How are abstract values translated to actual behavior of politicians, public administrators, and a variety of semi-public, non-profit, or private sets of actors? This also relates to the relationship between ‘process’ and ‘outcome’ values. Governance cannot escape the rise of populism in recent years, and its influence on public values. Commentators note this rise of both right-­ wing and left-wing populism, which increasingly challenges core governance values such as democratic legitimacy (e.g. Albright, 2018, pp. 79, 81, 113). Such ingrained and extemporaneous claims—although useful in their own right—have very little scholarly use when unsubstantiated by research. This volume touches on populism—Buckwalter & Balfour show that even in the most advanced economies democratic legitimacy can be swamped by populism, which results in a deficit of legitimacy, as was the case of Flint, Michigan. Populism further distorts public values like robustness, favoring systemic efficiency over flexibility, as Masters’ reflection on Australia’s governance of refugees shows. Yet populism can drive positive change as well, Schnell’s analysis of the growing transparency regime in Romania demonstrates improvement in public values, and consequently, the quality of governance can be driven by popular demand. The continued rise of populism in the advanced economies provides license for a rethinking of public values in other nations (see Albright, 2018; Trommel, 2018). Populism tends to challenge governance and governance values de

10  REVIEWING QUALITY OF GOVERNANCE: NEW PERSPECTIVES… 

247

facto. A critical necessity for future research is normative and empirical work focused on the public values that are relevant to, and lead the involvement of populist movements and parties in public governance. Governance practitioners and researchers need to look for more substantiated ways to understand these challenges, working within value frameworks rather than rejecting them in advance to win popular vote. Another topic that needs more attention is the relationship between the ‘quality of governance’ at the macro-, meso-, and micro-levels. How do societal, organizational, and personal values relate in decision-making and policy implementation? These questions remain an important challenge as we try to better understand quality of governance, identify areas for improvement, and try to shift governance toward the quality expected from the increasingly diverse societies of the twenty-first century.

References Albright, M. (2018). Fascism: A warning. New York, NY: HarperCollins. Frederickson, H.  G. (1996). The spirit of public administration. San Francisco, CA: Jossey-Bass. Heclo, H., & Wildavsky, A. (1974). The private government of public money: Community and policy inside British politics. London: Macmillan. Lipsky, M. (1980). Street-level bureaucracy: Dilemmas of the individual in public services. New York, NY: Russell Sage Foundation. Lipsky, M. (2010). Street-level bureaucracy 30th ann. ed.: Dilemmas of the individual in public services. New York, NY: Russell Sage Foundation. Rhodes, R. A. W. (1996). The new governance: Governing without government. Political Studies, 44(4), 652–667. https://doi.org/10.1111/j.14679248.1996.tb01747.x Rothstein, B. (2011). The quality of government: Corruption, social trust, and inequality in international perspective. Chicago, IL: University of Chicago Press. Trommel, W. A. (2018). Veerkrachtig bestuur: Voorbij neoliberale drift en populistische kramp. Amsterdam, Netherlands: Boom Besterkunde. Van Ryzin, G. G. (2011). Outcomes, process, and trust of civil servants. Journal of Public Administration Research and Theory, 21(4), 745–760. https://doi. org/10.1093/jopart/muq092

Index1

A Abuse, 119 See also Violations, integrity Access, 67 Accountability, 4–6, 17, 241 agora, 59–61 bazaars, 64–67 conflicting values, 113 cube, 54 democratic legitimacy, 35 hostility, 70–71 integrity and quality, 115, 116, 120 lawfulness, 137 productivity, 68–70 professionalism, 186 public values, 111 quality, 122 relational, 55, 57–59 robustness, 216 transparency, 86 ubiquity, 67–68 Acknowledgement, reciprocal, 68

Actions, 48, 58, 60, 62, 64 administrative, 139 collaborative, 68 Activists, 89, 91 Actors, 9, 63, 88 Bovens model, 52 (see also Citizen/ clients) conflicting values, 113, 114 integrity and quality, 107, 118, 124–125 political, 71 robustness, 223, 228 transparency, 58, 60, 84 Adaptability, 216, 217, 224, 242 Administration, 33, 137–142, 144, 188 Administrative action, 131–135, 144 Administrative power, 133–135, 140 Advisors, external, 165, 173 Agenda-building, 244 Agendas, 106, 107, 114 Aggression, 226, 227

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2020 H. Paanakker et al. (eds.), Quality of Governance, https://doi.org/10.1007/978-3-030-21522-4

249

250 

INDEX

Agora, 59–64 Aims, 48, 63 Ambiguity, 161, 167, 172, 176, 183, 242 Andaleeb, S. S., 162 Anticipate possible disputes, 176 Appointments, political, 93 Appropriateness, 173 Arguments (argumentation), 84 Ascher, K., 162 Assistance, 197 Attitudes, 48, 200 Australia, 220, 225 Authority, 46, 63, 68, 108, 206

Bureaucratic animosity, 217, 218, 222, 242, 243 actors, 223 bureaucrats, 225–226 citizen/clients, 226–227 discretion, 228–230 governance processes, 222 integrity violations, 230 mobile, 223 systemic, 223–225 Bureaucratic back-scratching, 68–69 Bureaucratic distortion, 36–40 Bureaucrats, 225–226 See also Bureaucratic animosity

B Balfour, Dan, 17 Bargains, 58, 66 Bazaars, 64–67 hostility, 70–71 productivity, 68–70 ubiquity, 67–68 Beck Jørgensen, T., 111, 112, 122, 185, 188, 216 Behaviors, 50 discretionary, 94 (see also Discretion) See also Violations, integrity Bias, 193 Blat, 69, 70 Bøgh Andersen, L., 188, 190 Boundaries, 89, 200 Bovaird, T., 109, 162 Bovens, M. A. P., 5, 46, 53, 64, 71 Bovens model, 51–55 Bozeman, B., 122, 184, 188, 216 Breaches, 135, 142, 143, 148, 227 Bribery, 89, 93, 123 Brown, Michael, 40 Buckwalter, Neal, 17 Budgets, 39, 91, 168, 171 Bureaucracy, 29–30, 32

C Capacity, 162 Capitalism, 34 Care, 198 See also Detainees Certainty, legal, 145 Chief security officers (CSOs), 83 Choices, 138 Citizen/clients, 223, 226–229, 242 See also Bureaucratic animosity Citizens (public), 5, 113, 124, 222 democratic legitimacy, 33, 34, 37 integrity and quality, 106, 109, 110, 121 lawfulness, 136, 137, 146 transparency, 83, 84, 91 transparency as two way communication, 85 transparency in Romania, 89–92 Citizen users, 164 Civility, 6, 115, 120, 121 Codes (coding), 111, 188, 194 Coercion, 64, 68 Coglianese, C., 83–85 Collaboration, 69, 85 Commitment, 35, 186, 200

 INDEX 

See also Morality; Professionalism Communication, 143, 169 See also Transparency Communities, 35, 103, 117, 218, 238 Compensation, 143 Competency (competence) lawfulness, 136, 139, 148, 149 professionalism, 182, 188 Complaints, 223, 227 Compliance, 242 accountability, 60, 64 lawfulness, 132, 145, 148 lawfulness and good administration, 140, 141 transparency, 83, 86 transparency in Romania, 90, 91, 93 Compromises, 31, 58, 114 Confidentiality, 6, 121, 146 Conflict of interest, 119 Conflicts, 69, 117, 172, 189, 243 integrity and quality, 113, 114 lawfulness, 141, 148 robustness, 224, 225 (see also Value convergence) Consciousness, 111 See also Ethics Consensus, 5, 116 Consistency, 90, 217 Consortia, 161, 166, 167 Constitutional Court, 134 Consultation, 89, 92, 93 Content, political, 72 Contexts, 242, 244–246 accountability, 51, 56, 62–64 conflicting values, 114 effectiveness, 162, 175, 177 integrity and quality, 14–15, 107, 109, 116, 118 pluralism, 112 professionalism, 184, 187, 190 robustness, 218, 219, 222 transparency, 55 Contract completeness, 162, 176

251

Contracting out, 162 Contract manager, 166 Contracts, 58 Contradictions, 107, 113 Control, 36, 171 Convergence, 203–206 Cooperation, 66, 67, 69, 137, 171–172 Coordination, 69 Corruption (anti-corruption) accountability, 47, 67, 70, 71 democratic legitimacy, 34, 35 integrity and quality, 108, 116, 119 lawfulness, 139 robustness, 220, 221 transparency in Romania, 89, 93 Costley, 162 Costs, 144, 173 Craftsmanship, 19, 195–197, 206– 208, 242, 243 sense-making, 184 values, 188, 189, 197–202 See also Prison officers; Professionalism Craftsmen, 186 Creating Public Value: Strategic Management in Government, 109 Crises, 36, 37, 39, 40 Criteria, quantitative, 139 Cultures, 64, 90, 226 Customer satisfaction, 109, 144 D Damages, 143 Darwall, Stephen, 51, 61, 63, 68 Data, 52, 83, 89, 147, 194, 220 effectiveness, 162, 163, 165 Data Protection Authority, 147 De Jong, G. J., 110 Decision-making, 58, 83, 86, 106 accountability, 45, 46 transparency in Romania, 89, 92, 93

252 

INDEX

Decisions, 85 See also Legitimization Decisiveness, 113 Democracy, 5, 113, 115, 117 See also Legitimacy, democratic Democratic legitimacy, 4, 6, 17, 242 See also Legitimacy, democratic Democratization, 86, 88 Design-Build-Finance-Maintain-Operate (DBFMO), 160–161, 175–177 assessing quality, 163–166 Detainees, 203–204, 206 See also Prisons Detention center case study, 169–171 Detention centres, 161 Development, economic, 115 Differentiation, 95, 122, 187, 244 Digitalization, 145 Dignity, 41, 67, 191 Disasters, 39, 41 Disciplinary measures, 53 Disciplinary mechanisms, 63, 73 Discipline, 34, 51, 192, 200, 206 Discrepancy, 166, 169, 176 Discretion, 72, 141, 193, 225, 227 bureaucratic animosity, 228–230 Discretion, executive, 46 Discrimination, 108, 119, 120, 225, 230 Dissatisfaction, 170 Divergence, 190, 207 Domberger, S., 162, 176 Domination, 47, 72, 191, 241 Dubnick, Melvin J., 17, 71, 241 E Effectiveness, 4–6, 19, 175–176, 241 integrity and quality, 109, 116, 117, 121, 122 professionalism, 200 values, 111, 115 Effectiveness, task, 194, 201–203, 205

Efficacy, 137, 141 Efficiency, 5, 6 integrity and quality, 115–117, 121 lawfulness, 137, 138, 140, 141, 146 Emergencies, 69, 134 Emergency financial managers (EFMs), 38, 40 Empathy, 197, 205 Employees, 68, 123, 193 public, 186, 188, 216, 220 Empowerment, 85, 135 Enforcement, 60, 72, 139, 189 Environments, 65, 71 Equality (equitable), 86, 116, 138, 206 Equality, moral, 63 Esteem, 62, 63, 67, 68 Ethics, 35, 51 integrity and quality, 118, 119, 122, 124 robustness, 216, 220, 221, 225 values, 106–107, 111 European Council, 111 European Union, 34 Evaluation, 4, 138 Evidence, 175 Evil, administrative, 227 Exchanges, 65, 67 See also Hostility Expectations, 145 accountability, 48, 58, 70, 71 dentention center case study, 170 effectiveness, 166–168 Ministry of Finance case study, 171, 172 moral theory, 63 public, 220 robustness, 219, 222 water plant case study, 169 Expert intervention, 36–40 Expertise, 139, 188 Experts, financial, 168 Explanation (explain), 53 Exploitation, 35, 70

 INDEX 

F Failure, 170 Fairness, 59, 86, 137 Favors, 65 Financial mechanisms, 168, 173 Fines accountability, 53 detention center case study, 170 effectiveness, 161, 176 highway case study, 167 Ministry of Finance case study, 172, 173 water plant case study, 169 Flexibility, 225 Flint, 17, 39 Food supplies, 170 Force, 58 Forum, assessment of, 55–56 Forums, 49–51, 55 Fraud, 119 Free-riding, 71 Friction, 217 Fumagalli, E., 162 Funds, allocation of, 94 G Galiani, 162 Games, 68 Gaming, 63 Garrone, 162 Gatekeepers, 70 Germany, 36 Gifts, 67 Goals, 45, 67, 148, 172 Governance, 5, 7, 9–12, 103–104, 106–109 accountable, 49–50 conflicting values, 113–114 good, 115–117 pluralism, 112 public values, 109–111

253

quality, 109 specific values, 114–115 Governments, quality of, 5 Great Recession, 39 Greece, 34 Grilli, L., 162 Grindle, M. S., 9, 13, 117 Guidelines, 147–148, 202 H Hall, C., 162 Hammonds, C.A., 176 Harm, 217, 222 Hartley, K., 162 Heclo, H., 35, 241 Help, 66, 197, 198 Hierarchies, 49, 61, 64, 71, 132 Highway case study, 166–168 Highways, 161 Honesty (dishonesty), 63, 111, 122, 197, 205, 216 Hood, C., 63, 86, 107, 113 Hospitals, 161, 162 Hostility, 70–71 Huberts, Leo, 5, 6, 18, 187, 218, 221, 232 Huby, 162 Human development, 112, 115 Humanity, 120, 194, 197–198, 202–205 Human rights, 112 I Impartiality, 5, 6, 188, 230, 245 good governance, 117 integrity and quality, 120, 122 lawfulness, 138, 139, 144, 148 transparency, 86 values, 111, 113, 115 Impartial spectators, 62

254 

INDEX

Implementation, 83, 90, 148 Imputation, 49n2, 51, 52 Inclusivity, 5, 116 Incommensurability, values, 114 Inconsistency, 170, 173 Incorruptibility, 6, 113, 115, 120, 122 Indecent treatment, 120, 230 Independent Authority for Data Protection, 147 Individuals, 140, 141 Inequality (unequal), 142 Influence, 67, 223 effectiveness, 167, 171, 172, 174 integrity and quality, 110, 115 Information, 52, 146 See also Transparency Infrastructure detention center case study, 169–170 infrastructure, 168 Ministry of Finance case study, 171–172 public, 161, 163 Insiders, 65, 70 Institutions, public, 72 Integration, 147, 190 Integration, vertical, 70 Integrity, 4–6, 18, 104–106, 186 combining with quality, 123–125 governance, 117–118 quality, 122 research agenda, 125–126 robustness, 216, 218 values and ethics, 106–107, 111, 113 violations and values, 107–108, 118–120 Interactions, 64, 177, 200 Interactions, social, 60, 198 Intermediaries, 84 International Institute of Administrative Sciences (IIAS), 217

Interpretations, 4, 84, 169, 172, 183, 184, 190 Interrogation, 52 Interventions, 38, 39, 48, 115 Interviews, 88, 92, 166 Intimidation, 119, 120 Ioniţă, A.L., 94 Italian Constitution, 132, 133, 136 J James Rosenau, 218 Jensen, P., 162, 176 Judgment, 135, 163, 229 accountability, 52 integrity and quality, 113, 121 Judicial reviews, 134, 137, 142–143 Justice, 47, 86, 106 Justiciability, 133, 136, 139 Justification (justify), 51, 53, 217 K Kleptocratic system (kleptocracy), 65, 70 Knowledge, 162, 186 Kooiman, Jan, 9 L La Porta, R., 115 Language, metaphorical, 46 Lasthuizen, 230 Lawfulness, 4–6, 18, 131–135, 144, 186, 242 good administration, 137–142 independent authorities’ guidelines, 147–148 integrity and quality, 113, 115, 117, 120 judicial reviews, 142–143 legal sources, 136–137 pitfalls, 145–146

 INDEX 

Lawmakers, 37 Law, rule of, 131–135 Laws, 89, 93, 143–145 Leadership, 40 Leakage (information), 89 Legality, 111 Legal (rule of law), 116 Legislation, 47, 83, 88, 93, 132 Legislators, 134–137, 141 Legislature, 37 Legitimacy, 30, 138, 148, 186, 245 Legitimacy, democratic, 28, 30–32 See also Democratic legitimacy Legitimization, 85 Li, E.A.L., 162 Life, quality of, 12, 109, 114 Lipsky, M., 225, 226 Listening, 198 Local barons, 94 Löffler, E., 109, 162 Loyalty, 111, 123, 186, 190, 217, 225, 242 M Maladministration, 139, 144, 220 Management, 162 Managers, 162, 190 Managers, emergency, 37–39 Market values, 34–36 Masters, Adam, 20, 242 Media, 89, 226 Mediators, 173 Mentoring, 186 Merit, 188 Metaphors, 56 Michigan Emergency Manager Law, 36 Ministry of Finance case study, 171–173 Minorities, 116 Misconduct, 108, 120, 223 Models (modeling), 50–51, 55, 56 Moore, Mark H., 109, 110

255

Morality integrity and quality, 106, 111, 118, 122, 124 robustness, 216, 220, 221 Moral theory, 51, 61–64 Motivation, 186 N National Anti-Corruption Authority, 147 Negotiation, 30, 65, 150 Netherlands (Dutch), 192, 221 Networks, 64, 68, 71 Neutrality, 6, 111, 121 Norton, 59 Nussbaum, M., 112, 115 O Objectivity, 122, 163 Official Gazette, 91 Officials, 34, 47, 88 O’Kelly, Ciarán, 17 Ombudsmen (Ombudsmans’ offices), 223, 227 Open data, 83 Open Government Partnership (OGP), 89 Open governments, 85 Openness, 122, 137 Outcomes, 52, 162, 229, 245 integrity and quality, 112, 114–116 Output, 162 Output specifications, 166 detention center case study, 170 effectiveness, 161, 162, 176 highway case study, 167 Ministry of Finance case study, 171, 172 water plant case study, 169 Outsourcing, 159, 163 Ownership, 163

256 

INDEX

P Paanakker, Hester, 19, 122, 238, 241, 242 Participation, 5, 52 integrity and quality, 116, 120 lawfulness, 137, 141, 143, 148 transparency, 85, 92 Peacekeeping (peace and quiet), 192, 199, 201–204 Peat, 162 Peers, 62, 65, 189 Penalties, 48, 64 Pendleton Civil Service Reform Act, 33 Perceptions, 163, 164 Performance, 115, 144, 229 accountability, 47, 48, 52, 63, 71 effectiveness, 163, 169 monitoring, 161, 162 Phases, 107, 161, 172, 244 Pluralism, 12–14, 112, 131 Poisoning, lead, 40 Pollitt, C., 161, 188 Power, 145, 148 accountability, 46, 47, 58, 60, 67, 72 democratic legitimacy, 34 (see also Emergencies; Lawfulness; Managers) Predictability, 85, 86, 89 Principal-agent, 49, 50, 53, 61, 64 Prioritization, 195, 202, 203 Prison officers, 195–197, 206–208 craftsmanship, 203–206 patterns of value prioritization, 202–203 value variance, 197–202 Prisons, 191–192 Privacy, 146 Privatization, 143–145, 162, 175, 176 Proactive disclosure, 84 Problem solving, 167

Procedures, 52, 60, 89, 140, 143, 219 Processes, 49, 114, 116, 121, 245 Procurement, 69, 164 Productivity, 68–70, 161 Professionalism, 4, 6, 19, 181–183, 241, 243 craftsmanship, 195–197 integrity and quality, 111, 115, 120–122 lawfulness, 139 (see also Prison officers) public craftsmanship, 189–191 public professionals, 183–185 research, 192–195 values and context, 185–189 values and craftsmanship in the prison context, 191–192 Project members, 163 Public Act 4, 39 Public agencies, 11, 83, 90, 92 Public authorities, 92, 96, 133, 135, 148 See also Lawfulness Public companies, 144 Public consultation, 83, 92, 94 Public employees, 186, 187, 208 Public health, 37, 39 Public infrastructure, 160, 161, 163 Public interests, 111, 141–145 Publicity, 146 Public Law 72, 40 Public officials, 83, 90, 189, 190, 220 See also Value convergence Public Perspective(PVP), 186 Public-private partnerships (PPPs), 160–161, 175–177 Public servants, 144, 216 Public services, 7, 182, 186 Public values, 110–111, 120–121, 183–185, 187 Public Values Perspective (PVP), 185

 INDEX 

Publishing (publication), 83, 91, 92, 139, 147, 148 Purposes, 59, 60 Q Quality, 9–12, 18, 109, 121–123, 161, 177, 243 combining with integrity, 123–125 DBFMO, 163–166 research agenda, 125–126 Quality of Government: Corruption, social trust, and inequality in international perspective, 114 Quality-shading, 161–163, 175 Quest for Responsibility: Accountability and Citizenship in Complex Organisations, The, 51 Questioning (questions), 52, 193 R Reasoned transparency, 84 Recognition, mutual, 63 Recruitment, 139, 144 Referees, 113 Referendums, 39, 40 Reflections, 58 Reforms, 47 Refugees, 225 Regime dignity, 111 Regions, 136 Regulations, 85, 89, 133, 136–137, 222 Rehabilitation, 192 Rein, 114 Reintegration, 194, 200–203, 205 Relationships accountability, 47, 50, 55, 56, 58 agora, 59, 61 bazaars, 67

257

Bovens model, 52, 53 effectiveness, 167, 169 hostility, 71 integrity and quality, 107, 118 productivity, 68, 70 transparency, 94 Reliability, 68, 216 Reputation, 67, 167, 172, 227 Research, 113, 114, 118, 246–247 Resistance, 39, 92, 171 Resources, 90, 108, 146 Respect, 67, 109, 120, 198 Responsibility, 49, 51 Responsiveness, 5, 52, 85, 116, 117, 120 Retribution, 46, 64 Reviews, 223 See also Judicial reviews Reynaers, Anna-Marie, 19, 186, 241 Rights, 226 Robustness, 4, 6, 20, 113, 115, 121, 215–218, 232 bureaucratic animosity, 222–230 bureaucratic animosity and integrity violations, 230 integrity of governance, 219–222 quality of governance, 218–219 Romania (case study), 87–88 framework and evolution, 88–89 transparency as access to information, 90–91 transparency as predictability, 92–95 transparency as two-way communication, 91–92 Rothstein, Bo, 112–115, 117, 245 Rule-making, 138, 148 Rules, 35, 68, 222 lawfulness, 137, 147 transparency, 86, 89 Rutgers, M. R., 183, 185, 187, 188

258 

INDEX

S Safeguarding, 40, 162, 177, 199 Sanctions, 52, 55 Scandals, 35 Schillemans, Thomas, 53, 58 Schmidtz, David, 61, 61n19 Schnell, Sabina, 18 Schools, 37, 38, 161 Scrutiny, 17, 46, 64 Secrecy, 84, 87, 90, 118 Security craftsmanship, 191–192 detention, 198–200 detention center case study, 170 professionalism, 202, 203, 205 research, 194 Self-governance, 36–40 Self-interest, 67, 69 Sen, A., 115 Sense-making, 183–185 Service delivery, 83, 109, 163, 167–168 detension center case study, 169–170 Ministry of Finance case study, 172 water plants case study, 168–169 Service providers, 70, 144, 190 Service quality, 4, 6, 19, 175, 241 See also Effectiveness Services, 109, 161 Service users, 163, 164 Sexual harassment, 120, 230 Shirking, 61, 63 Significant silence, 140 Simonati, Anna, 18 Situating Accountability: Seeking salvation for the core concept of modern governance, 71 Skills, 60n18, 68, 95, 186, 188, 201 Smith, Adam, 59, 61, 67 Snyder, Rick, 39, 40 Social interactions, 57n12, 198

Socialization, 190, 243 Social relations, 53, 60 Societies, 114, 116, 122 Soerensen, D. -L., 111, 112 Sources, legal, 132, 136–137, 147–148 Soviet Union, 69 Spain, 34 Stability, 40, 68, 143, 216, 217, 224 Stakeholders, 12, 14, 46, 122, 148, 150 Standards, 166, 186, 188 Statutes, 133, 136–137, 140, 142 Stiglitz, J. E., 35 Subordination, 134, 190 Subsidiarity, 137 Supermarkets, digital, 170 Surveys, 91 Sustainability, 34, 35 T Task effectiveness, 194, 201–203, 205 Tasks, 167, 201–203, 205 Teaching, 201 Team-building, 63 Technical optimization, 168 Technologies, 52, 145 Tenders, 171, 172 Tensions, 63, 112, 116, 118, 199, 200 Teorell, J., 113 Thacher, D., 114 Theories, 50, 56 Thin/thick spaces, 65 Timeliness, 216 Tolkachs, 69–70 Tools, 48, 54, 64, 140, 142 See also Statutes Trade (trading), 65, 67 Training, 90 Transcriptions, 193

 INDEX 

259

Transparency, 4–6, 18, 186, 242 access to information, 83–84 accountability, 45, 52, 64 in government, 82–83 integrity and quality, 111, 113, 115, 116, 118, 120 lawfulness, 139, 146 predictability, 85–87 two-way communication, 84–85 Treatment, indecent, 120, 230 Trust (distrust), 35, 245 democratic legitimacy, 35 effectiveness, 166, 174 integrity and quality, 109, 122 Trustworthiness, 35, 68 Tunnels, 161

V Value convergence, 189–191 Value differences, 189 Values, 4–9, 106–107, 183, 187–188, 240–243 conflicting, 113–114 specific, 114–115 See also Public values Van der Wal, Z., 110, 184, 186, 187, 189 Van Hout, E.T.J., 186 Van Ryzin, G.G., 245 Van Slyke, D. M., 162, 176 Violations, 17 integrity, 4, 107–108, 117–120 Voidability, 135, 142, 143

U Ubiquity, 67–68 Uncertainty, 36, 162 Understanding, 85 United Kingdom (British), 192, 226 United Nations (UN), 111 United States of America (US), 32, 35, 192, 221, 226 Universalism, 112 Useful instrument, 167 Users, 169 Utility services, 161, 176 Utrecht group, 52, 53

W Walters, L.C., 191 Water plants case study, 168–169 Water purification plants, 161 Water sources, 40 Wealth of Nations, The, 66 Wildavsky, A., 241 Witesman, 191 World Bank (WB), 112, 116 Y Yang, L., 184, 187, 190, 191