Weber and Bureaucracy

Max Weber (generally credited as the father of Sociology), in his Wirtschaft und Gesellschaft (Economy and Society, 1921), looked primarily at how society was organizing itself at the beginning of the 20th century.  Although the primary purpose of the book was to look at much larger economic and social forces, he did dedicate part of one chapter to the issue of how changes in business and social organizations were affecting how government agencies organize themselves, and conduct their business. Although Weber actually describes six characteristics of bureaucratic organizations, we can synthesize them really into three basic attributes:

If you think about any large company that you’ve ever worked for (or ever had to deal with on the phone), you can relate somewhat to this characterization.  If you call your credit card company on the phone, and ask them to increase your credit line, what do they say? “Sorry, ma’am, I have to get my supervisor to approve that.”  That’s a hierarchical and specialized organization: the phone operator can give you your balance, tell you when your next bill is due, and give you a list of the last three purchases, but their responsibilities are pretty well-defined.  If you want some other service, you’ve got to be transferred to some other person whose job it is to offer that service.  At NDSU’s Business Office, there used to be three different people who handle credit card payments: one could only with deal with Discover, one could only handle Mastercard and Visa payments, and only one dealt with American Express.  That’s a good example of specialization.  Weber’s point is that, in modern governmental bureaucracies (i.e. the people who work for the Executive branch), many of these same organizational principles apply.   That’s why, if you ever have any dealings with a governmental agency (let’s say, the Department of Motor Vehicles, or the Veterans’ Administration), you’ll sometimes feel like you’re being “bounced” from one person to another, looking for the right one who can handle your question, and there’s an intricate set of “rules” that has to be followed.   If you look at the sample organizational charts posted in this unit's outside readings, you'll notice that even though they're from different states, and even of different TYPES of agencies, they all have a very hierarchical system of organization.  The agency head is at the top, and then, as you move down the page, there are lines of reporting and responsibility, moving through some "middle management" types of roles, until you get to individual offices and programs.  Take, for example, the Washington State Department of Transportation (DOT) chart.  Under the Asst Secretary of Finance and Administration, there's an office that collects tolls from the state highway system.  And then, on the other side of the chart, under the Asst Secretary of the State Ferry System, there's an office that coordinates "Marine Operations" (Washington has a state-run ferry system, which connects the residential islands in Puget Sound to the cities in the Seattle metro).  Both of these offices are part of the state DOT, but they perform very different functions, and it's likely that if you called one of those offices, and asked a question about what the other one does, they'd probably say something like: "I'm not sure; let me transfer your call to that office."

Spoils and Merit

Weber’s notion of “professionalism” relates to another aspect of government organizations that was quite controversial in the 19th century, and that’s the question of how government jobs are supposed to be filled.  Andrew Jackson was an advocate of what he called the “spoils system”, based upon the old Roman adage “to the victor belong the spoils.”  What he meant by this was that the political party in power should have, at its disposal, government jobs to hand out to its supporters in return for their help in the last election.  Jackson thought that this system would democratize government administration by making it possible for any citizen to obtain a government job.  What Jackson didn’t foresee was the corruption that was possible (and sometimes likely) under this system.  Since government officials were only guaranteed their jobs until the next election (which would be never more than four years away), they would look to outside sources of income (such as bribes) in order to secure their own financial futures.  Seeing this corruption, a coalition of Democrats and Liberal Republicans, in the years following the Civil War, started to advocate for what they called “civil service reform”.  This reform would replace the spoils system with the “merit system”, where government employees would be identified, hired, trained, and promoted not on the basis of political loyalty, but on ability and training.

This issue split the Republican Party to the point where, in several Presidential elections, one faction of the party on this issue would get the Presidential nomination, whereas the other faction had to be given the Vice Presidential nomination in order to keep the peace.  One such example was in 1880, where Ohio Congressman James Garfield, who was supported by the pro-civil-service faction, was nominated for President, and Chester Alan Arthur, the former Collector of the Port of New York who was removed from that job in 1878 because of the corruption going on around him, was nominated for the office of Vice President.  When a disappointed (and deranged) Republican office-seeker named Charles Guiteau didn’t get an appointment to a clerkship at the U.S. embassy in Paris, he shot President Garfield, declaring his support for Arthur.  Garfield lived for several weeks, but the blood poisoning caused by numerous infections near the bullet wound finally killed him.  When Arthur became President, many Liberal Republicans were prepared for what they thought would be their worst nightmare: a Presidential Administration with New York Senator Roscoe Conkling (who was considered the most corrupt of the spoils-style politicians, and Arthur’s old boss) as the power behind the throne.  Instead, Arthur signed the Pendleton Act in 1883, which implemented a civil service reform system for about 10% of the federal government’s jobs.  This percentage expanded in the subsequent years, to where, today, more than 95% of federal government positions are under a merit-based, civil service system.

At the state level, reform was a little slower to develop, as the 1883 Pendleton Act didn’t require implementation of the merit system by the states.  That requirement didn’t come until 1939, when an amendment to the Social Security Act required the states to use a merit system to deliver functions which the federal government helped to pay for.  Today, the effect of the 1939 Act is that almost all state jobs, like federal jobs, are hired under the merit system.  A few exceptions (especially in larger cities like Chicago or suburban areas like Long Island, NY, where political party “machines” still run the local administrations) still exist, but the number of jobs that these machines can control is shrinking.  When I was 16, I applied to be a Lifeguard at a Town-run swimming pool (this was in Long Island, where the Republican machine ran things at the time, and where most local services are provided at the Town [think “township”] level).  I had to still pass the State Health Department’s Lifeguard Test, but before the Town would hire me, they checked my parent’s voter registrations.  Because my dad was a Republican (and Mom was an Independent, which was better than being a Democrat, at least in the eyes of those who were hiring), they offered me a job.  This sort of thing still goes on in those areas which don’t rely on any federal funding (primarily parks and garbage collection), but the long-term trend is definitely in favor of shifting more and more to the merit system. 

Many of you are studying to be law enforcement officers (the Criminal Justice program).  When I was in school, there was no such thing as a "Criminal Justice" major (some of Sociology majors who wanted to become parole officers might have taken some extra classes in Criminology, but there wasn't a separate major).  If you wanted to be a cop, the process was pretty simple: you applied to the local police academy, which was often run by a city police department, the county sheriff's office, or (maybe) the state police.  Of course, if your dad or uncle was already a cop, it probably helped to get your name noticed on the applicant list.   In 1994, Congress passed a law (supported by President Clinton) which, among many other things, provided federal funding to pay part of the salaries for 100,000 new police officers.  That's actually what led to the growth in college-level CJ and police officer programs: because the federal government was now paying (at least in part) for local policing, those cops had to be hired under a "merit" system (so, no more getting into the police academy because your uncle got you an interview). 

Some jobs at the state level, of course, don’t make sense to take out of the political sphere.  Some examples would be the Governor’s staff (the Governor should expect that his speechwriters and policy advisors would adhere to his basic belief system), Legislative staff (same logic), and Cabinet appointments are all still primarily political appointments.  Clerks to the Justices of State Supreme Courts (and, in some states, Appellate Courts) are also not hired via the merit system.  This job is such a personal relationship that each Justice is going to want someone who they can feel comfortable working with.  These jobs are usually short-term (it’s unusual to see someone clerking for more than two or three years – after that, it’s time to go practice on your own or get a job with another government agency).

However, the vast majority of state employees are going to be "merit system" hires (and thus, permanent fixtures until they retire).  If you look at those organizational charts that I posted as samples, most of the "boxes" shown on those charts provide represent an entire office, or group of people (they don't represent EVERY person who works for the agency, since that could mean hundreds, or even thousands, of people).  There might be a name there (some of these state agencies put the name of a Director or Manager on the actual chart, in the interest of public accountability), but that doesn't mean that that person does ALL of the work of that office (I'd be shocked if ONE person is handling all of the teacher licensing applications in the State of Colorado, for example).  That name is probably the Manager or Director for that function, with several employees under him/her, doing the actual day-to-day tasks of the agency.  It's possible that that Manager or Director is a political appointee (either of the Governor, or maybe the agency's Commissioner or Deputy Commissioners/Administrators), or they might be a permanent, civil service hire who's worked his/her way up the ladder.  But below that level, for the day-to-day tasks, those people would all be permanent employees, hired (and retained) for their skills and experience.  Think about things like a lab technician in the state crime lab, an accountant in the state Office of Management and Budget, or a software programmer in the State Department of Transportation.  Those would all be examples of "merit system" hires.  They're not sitting around the office at election time, worrying that if the other party takes control of the Governor's office, that they'll all lose their jobs.  That's a relic of the 19th and early 20th centuries, for the most part.

Administrative Law

Another topic to discuss (it’s hinted at in the book, but not really explained) is the role of executive agencies in administering the various rules that state governments implement.  The basic difference between a “rule” and a “law” is this: a “law” is written by the Legislature and signed by the Governor (during the statutory process); a “rule” is a guideline, written by the Executive branch, as a guide by which to implement the laws passed by the Legislature.   Why do we need both?  Let’s use an example: duck hunting regulations.  The Legislature passes laws establishing a duck hunting season; however, can we expect the Legislature to have the expertise, or the ability to act quickly enough, to lay out the specific rules needed to implement the annual hunt?   What if there’s a late thaw (or an early one)?  What if there’s a short nesting season up in Canada the year before, so the number of ducks is quite lower than it was the year or so earlier?  What if certain areas of the state, maybe because of weather, or habitat, have smaller populations (or larger) than other areas?  The Legislature will give authority to an executive branch agency (in this case, the North Dakota Game and Fish Department, or the Minnesota Department of Natural Resources) to establish rules by which to declare the opening and closing dates of seasons, changes to bag limits, changes to the number of licenses available in certain zones, and so on.  Since we assume (because of professional hiring requirements) that the DNR or G&F have experts on staff, those agencies are often given the authority to work out the details of policy implementation, as long as those administrative “rules” fit into the power given to that agency or department by the Legislature.

Now, what happens if there’s a conflict between a citizen and an executive agency?  Let’s say, for example, that you want to drain water from a field.  In some states, you have to get a permit for that from the State Health Department, or the State Department of Environmental Quality (or whatever that agency might be called in each state).  If the field is near a navigable waterway, you might even need a federal permit from the Army Corps of Engineers (but let’s leave them out of it for now, since the state process is complicated enough).  What if the state agency denies your permit?  Do you have any recourse?  Your first instinct might be to sue the agency; however, the state courts try to avoid getting involved in this sort of thing, at least early on.  Instead, most state courts apply what’s called the “Primary Jurisdiction Doctrine”.  What this means is that the courts recognize that the expertise on the issue lies with the executive agencies, not with the general jurisdiction courts.  Thus, they usually require that you go back to that agency first, and appeal their ruling, before running straight to the courts.

However, that’s not to say that the agency can just ignore you, and continue to tell you “no” (at least not without a good reason).  First of all, the agency will have another set of rules that governs the process by which one appeals this sort of thing, and they have to follow that set of rules.  Related to this is the “Exhaustion of Remedy Doctrine”.  This is a legal theory which states that you, as the citizen, have to go through all of the levels of agency appeal before filing suit with the courts.  However, it also requires the executive agencies to inform you of that process.  For example, let’s say that you’re not happy with a grade in a class (being not happy and being treated unfairly are usually different things; let’s assume that you believe that was actual discrimination involved).  We actually have a process, outlined in the Student Handbook, that tells you how to go about filing a grade appeal (generally, you go to the instructor first, then the Dean, then the Vice President of Academics, then the College President, then the State Chancellor’s office).  Let’s say that you go through all of those levels of appeal, and you still believe that you’ve been discriminated against.  Since you’ve “exhausted all of your remedies” with the actual agency (in this case, MinnState, the State Colleges and University system), now you can go ahead and file a lawsuit (that’s not to say that you’ll actually win, but if you hadn’t gone through that process first, the judge would have thrown out your suit immediately).