Public contracting,policy preferences and minority business enterprises

About three years ago a Special Issue of the International Journal of Public Administration focused on the topic “Government Set-Asides, Minority Business Development, and Publi Contracting.”^(l) Much of the discussion in the issue addressed race conscious government set-aside programs in the aftermath of the U.S. Supreme Court decision in City of Richmond v. J. A. Croson Co. ⁽²⁾ The decision declared unconstitutional a local government minority business set-aside provision designed to help minority business enterprises (MBEs) obtain government contracts. At the time, the decision was applicable only to state and local governmental jurisdictions.⁽³⁾ Government set-asides involve the practice of providing minority contractors and subcontracting a certain percentage of a public jurisdiction's contract dollars.

In 1995 the Supreme Court in Adarand v. Pena ⁽⁴⁾ extended the Croson ruling to include set-aside programs in federal agencies. This Special Issues examines and discusses the Adarand decision and the developments that have followed. The first article by Mitchell F. Rice, “Federal Set-Asides Policy and Minority Business Contracting: Understanding the Adarand Decision,” reviews the Adarand decision and discusses the implications of the decision for minority business development. The next article by Audrey L. Mathews and Mitchell F. Rice, “Adarand v. Pena: Turning Challenges Into Opportunities,” uses a case study of two public preference programs to suggest how Adarand requirements may be successfully utilized to maintain set-aside preference programs.

The third article by Shelton Rhodes, “Mirmative Action Review ‘Report’ to the Presidents: Implications of Military Affirmative Actions Programs to Current and New Millennium Affirmative Action Programs,” reviews the Affirmative Action Review: Report to the President which was ordered by President Clinton soon after the Adarand decision. Rhodes considers the implications of the possible applicability of the successes of affirmative action and equal opportunity in the military, which is highlighted in the Report, to other public and private organizations. The final article by Wilbur C., Rich, “Presidents and Minority Set-Aside Policy: Race, Gender and Small Opportunities,” analyzes the impact of presidential leadership on minority set-asides policy and shows how politicians use set-asides to facilitate exchanges and cooperation with the business elites.     

The changing nature of urban affirmative action programs: the search for race-neutral alternatives

In January, 1989, the U.S. Supreme Court cast in doubt the legality of minority set-aside programs. The Court required government set-aside programs to meet a “strict-scrutiny” standard of review and required cities to first explore race-neutral means for increasing minority firm participation prior to utilizing any type of rigid quota system. This paper examines how four cities have reacted quite differently, with some cities continuing old practices, and others developing a mixture of new policies and implementation structures. It is argued that the Supreme Court's decision will have only a minor impact on minority contracting programs, with cities seeking to combine affirmative action contracting programs with those that stress economic development.     

Judicial Disagreement need not be Political: Dissent on the Estonian Supreme Court

I investigate the non-unanimous decisions of judges on the Estonian Supreme Court. I argue that since judges on the court enjoy high de jure independence, dissent frequently, and are integrated in the normal judicial hierarchy, the Estonian Supreme Court is a crucial case for the presumption that judicial disagreement reveals policy preferences. I analyse dissenting opinions using an ideal point response model. Examining the characteristics of cases which discriminated with respect to the recovered dimension, I show that this dimension cannot be interpreted as a meaningful policy dimension, but instead reflects disagreement about the proper scope of constitutional redress.     

Affirmative action review “report to the president”: implications of military affirmative action programs to current and new millennium affirmative action programs

This article reviews the Affirmative Action Review: Report to the President that was submitted to President Clinton in 1995. The Report points out the successes of equal opportunity/affirmative action initiatives in the military. The article considers the implications of the possible applicability of the military equal opportunity/affirmative action initiatives to other public and private organizations.     

Drug testing in the public sector: The role of unions

Not surprisingly, unions have traditionally played an active role in employee drug testing. And, although the U.S. Supreme Court upheld the constitutionality of drug testing in two 1989 decisions, unions have continued to wage challenges to urinalysis under the U.S. Constitution and in the labor arena. As this research shows, federal as well as state and local government unions have had some success in challenging the categories of employees targeted for testing, good faith bargaining over drug testing, and due process and equity violations around testing.     

Eight supreme court cases that have changed the face of public administration

This article examines eight recent Supreme Court decisions that have important implications for public administrators. The areas examined include public personnel policy, solid waste management, budgeting and finance, taxation, privacy, and public school education.     

Federal set-asides policy and minority business contracting: understanding the adarand decision

In Adarand Constructors v. Pena ⁽¹⁾, the Supreme Court ruled that federal affirmative action preference programs must undergo the “strict scrutiny” standard. A program subject to strict scrutiny is one that cannot pass muster under the Constitution's “equal protection” mandate unless there is a “compelling government interest” in its objectives and the program is “narrowly tailored” to meet the objectives. This paper reviews the Adarand decision and discusses the implications of the decision for minority business federal contracting.     

Public administration,executive power,and constitutional confusion

This article examines the ambiguity in the meaning of executive power in both the text of the U.S. Constitution and in subsequent judicial interpretations. This ambiguity has had a profound impact on the constitutional position of the public administration. In the recent independent counsel case, the U.S. Supreme Court offered a restrictive interpretation of the President's constitutional powers to remove subordinate officers. This new interpretation could lead to increased congressional control over administrative agencies.

The proper place and function of the public administration, unfortunately for the public administration, have been and remain inherently ambiguous because of the longstanding confusion about executive power in the Constitution of the United States. Richard Neustadt captured this ambiguity nicely when he noted that the two great themes that have characterized the American presidency have been “clerkship” and “leadership.”⁽¹⁾ There is no easy formula to bring clerks and leaders together to make them march in lock-step, and yet the President is clearly both. Today we may tend to emphasize his role as leader with imperial pretensions and Nixonian excesses still relatively fresh in our memories, but this is only a question of emphasis. No one denies that the President is a legally accountable officer who must do the bidding of the Congress. This is the clerkship side of the presidency.

Herbert Storing counsels against any effort to cut the Gordian knot and to try to determine once and for all just what it is our President is supposed to be: clerk or leader. “The beginning of wisdom about the American presidency,” Storing maintains, “is to see that it contains both principles and to reflect on their complex and subtle relation.”⁽²⁾ Following Storing's advice, this essay reflects on the inherent ambiguity of the executive power that provides the constitutional foundation of the public administration. First, we examine the text of the Constitution and the meaning of executive power at the time of the founding. Then we study the confusion that the Supreme Court has created in its efforts to draw practical conclusions for presidential personnel management from the constitutional grant of “the executive power” to the President in relation to the removal power. Third, we examine some of the recent problems of executive power that surfaced in Watergate and became salient in the important constitutional debate over the special prosecutors, those most unwelcome intruders into the inner precincts of the Reagan administration.     

Love and let die

When the very technology that can save lives is only prolonging death, how should a patient decide whether to stop treatment--or help death along? In the last days of a ravaging disease, patients and their families face all but unbearable decisions. Is there a right to die? To commit suicide? To be killed on request? As the private dilemmas multiply, they have become the public province of interest groups, policymakers and the U.S. Supreme Court.     

台湾判例制度三论

本文集中探讨了台湾判例制度中存在的三个关系重大而又充满争议的问题。首先,在判例的遴选机制上,台湾判例遴选机制算得上严谨精细,但是又有过于集权化的趋势。其次,在判例约束力问题上,台湾地区的判例具有事实上的约束力,甚至法律上的约束力,但是在是否接受违宪审查问题上又举棋未定。再次,在判例的适用机制上,台湾判例特殊的体例使得法官倾向于适用判例旨要,而不采纳个案类比的方法。这些问题在大陆地区的指导性案例制度中同样存在,这就要求我们正视台湾地区判例制度的经验和教训。     

Federal sector union liability for breach of duty of fair representation under title vii of the civil rights act: The problem of legal uncertainty

The duty of fair representation (DFR) was initially formulated by the U.S. Supreme Court in the 1940s to protect racial minorities working in the private sector from discrimination by their unions. More recently, the courts have extended the protections afforded by the DFR to state and local government workers. However, the ability of federal employees to invoke this doctrine, specifically under Title VII of the Civil Rights Act as amended, has not yet been resolved. This article examines the case law addressing this issue and argues that federal employee unions, just as unions operating in the private sector and at the state and local levels of government, should be subject to DFR obligations.     

Public needs vs. private loss: land use regulation and property rights

Property rights and government regulation have been the subject of considerable discussion and controversy in recent years. The issue of “takings” has been raised in most of the state legislatures in the 1990s. Congress has considered legislation as well. Supreme Court decisions, in particular the Lucas and the Dolan cases, have focused judicial attention on the issue in recent years. Local elected officials, planners and local government administrators confront the issue increasingly as they attempt to respond to growth pressures and regulate land use. Unfortunately, a great deal the public's perception of property rights is myth or fable. This article addresses the issue of takings by putting it first into historical perspective. Thus, we see that regulation of private property by government is not new. The concern over “regulatory takings” is explored and traced briefly noting the entry of the federal government into the arena of land use regulation. Legislative responses are reviewed and finally the status of judicial consideration of the issue is brought up to date. The article closes with recommendations for those who confront the takings issue. While caution is indeed called for, regulation of private property is still a fact of life in American public administration and will be for some time to come.     

How did Tarasoff affect clinical practice?

The Tarasoff decisions of the California Supreme Court in 1974 and 1976 held that psychotherapists could be held liable for failing to protect the victims of their potentially violent patients. Our survey of psychiatrists, psychologists, and social workers in eight metropolitan areas showed that Californians were more likely to have heard of the case, to believe it required warning the likely victim, and actually to issue warnings in such cases than were psychotherapists from other jurisdictions. Therapists were more willing to take steps to protect victims in 1980 than in 1975, but willingness to warn increased more among Californians than among those in other states. We conclude that although Tarasoff has influenced therapists' attitudes and behavior more in California than elsewhere, the case has also affected psychotherapeutic practice nationally.     

The Polish Commissioner for Citizens' Rights Protection: Decaying Communism to Pluralist Democracy Through An Ombudsman's Eyes

The Polish Commissioner for Citizens' Rights Protection was established during the Communist regime but survived the transition to plural democracy after 1989, despite suggestions that the Office was a survival from the Communist era which ought to be dismantled as part of the transition to democracy. His role has involved securing respect for the law by officials who were accustomed to ignore it so long as they followed the Communist Party's 'line'. Equally, many citizens still find challenging officialdom daunting because of their experience of the old regime. Hence much of the Commissioner's work has entailed pursuing official illegalities through the Constitutional Tribunal and the Supreme Administrative Court, rather than pursuing claims of maladministration. The Commissioner has become engaged in several of the major controversies facing Polish society, in particular the introduction of religious instruction into the public schools and the circumstances in which an abortion may legally be carried out. Also, there have been many complaints about the government's inability to maintain social security payments. Furthermore, successive Commissioners have criticized the inability of President and Sejm to agree on a new constitution. The Commissioner is now securely established among European ombudsmen and the Office has become an important factor in ensuring his country's compliance with its international obligations, especially in the field of human rights.     

The Russian Constitutional Court and the Communist Party case: Watershed or whitewash?

Constitutional Courts stand at the interface between law and politics, as the newly formed Russian Constitutional Court exemplified during Russia's time of troubles between 1991 and 1993. One Constitutional Court case from that period had particular significance. The Russian court considered the constitutionality of the Communist Party of the Soviet Union (CPSU) and the Russian Communist Party (CP RSFSR). The seven month long hearing tested the court's stamina and resolve. Described before it began as ‘Russia's Nuremberg’, was the Communist Party case a turning point in Russia's relationship with her past, or was it a staged showpiece with no real impact? This paper explores the Russian Constitutional Court's longest case and its effects.     

IS THE TREATY OF MAASTRICHT AN ADEQUATE‘CONSTITUTION’FOR THE EUROPEAN UNION?

This article explores the likely impact of the Treaty of Maastricht on the institutional balance of the European Community and the new European Union. It places particular emphasis on the impact of the Treaty on the role of the European Court of Justice, an institution which has been generally ignored by political scientists. However, it does not accept the received wisdom of legal scholars concerning the Court, which suggests that the Court, acting on its own has saved the Community from self-destruction. Instead, the analysis presented here places the Court in a political context. On the basis of this understanding, the potential of the Treaty of Maastricht to unravel some of the existing structure of the European Community is drawn out.     

Medical alert: sexual harassment in the health care industry

Sexual harassment is an illegal form of sexual discrimination prohibited by Title VII of the Civil Rights Act of 1964. Although the U. S. Supreme Court has recognized that sexual harassment is illegal conduct for which an employer is liable, this transgression continues to be a major workplace problem. Although some researchers have analyzed the incident level of sexual harassment in general, little work has been conducted on particular industries.

The research described in this article is the summary of the results of a study of sexual harassment in the health care industry. A written survey was sent to 950 randomly selected members of the Kentucky Board of Nursing. Thirty-five percent of the 441 respondents to the survey indicated they had been sexually harassed in their capacity as nurses. More than 77 percent of those occurrences involved physicians as the harassers. When harassed, 51 percent of the respondents were aged 25 to 35; 25 percent, 25 or younger; 20 percent, 36 to 45; and 4 percent were 46 to 55. Fifty-three percent said they were harassed by supervisors; 32 percent said they were harassed by patients.

The survey showed that 23 percent of those harassed felt threatened in their job status if they did not go along with harassing behavior, and 24 percent reported the incidents. Only 23 percent of the nurses indicated that their employers had policies and procedures in place to address sexual harassment. Further, of the respondents that reported being sexually harassed, only 23 percent of these victims reported the incidents.

Sexual harassment complaints in the health care industry must be taken seriously. Health care institutions must adopt appropriate policies and procedures to address sexual harassment. The written policy statement on sexual harassment should show strong support from top management, specify the types of behavior perceived as sexual harassment, and be widely disseminated. Training should be provided to all staff, and effective enforcement mechanisms should be implemented.     

Reflexive Watchdogs? How Supreme Audit Institutions Account for Themselves

Supreme Audit Institutions (SAIs) such as the UK National Audit Office and the French Cour des Comptes play important roles within the institutional mechanisms of the democratic state. They are given high independence in order to secure public accountability for, first, the probity and legality of public spending and, second, economy, efficiency and effectiveness. During the last twenty years several SAIs’ mandates have been adjusted to reflect the latter, more managerialist, concerns. This article asks two questions: first, what evidence do these SAIs offer as to the quality and effectiveness of their activities in carrying out their mandates and, second, to what extent does their self–reporting appear to have been influenced by the precepts of the ‘New Public Management’ (NPM)? To address these questions an analysis is carried out of the annual reports and other relevant documents of the Finnish, Swedish, French and UK SAIs, and of the European Court of Auditors. The analysis shows considerable differences of approach. These may well be related to the differing constitutional positions and administrative cultures of the SAIs concerned. In conclusion we identify different concerns which are associated with either a fervent embracing of NPM criteria by SAIs or, alternatively, with an apparent rejection of those approaches.     

PUBLIC LAW

Traditionally, both the academic study and the practice of UK public administration have drawn very little inspiration from the discipline of public law. In contrast to most other European countries, in which public services are subject to extensive administrative-legal codes, and in which administrative disputes fall under the jurisdiction of separate and specialized administrative courts, UK administrative law remains – recent reforms notwithstanding – significantly undeveloped. There is a marked contrast also with the United States, where the founding scholars of the discipline of public administration saw it as being firmly rooted in public law. There is no codified British constitution and no counterpart of the US Supreme Court; and there is no British counterpart of the US Administrative Procedure Act 1946. However, there are three factors which underline the urgent need in the UK for greater collaboration and convergence between the disciplines of public law and public administration: first, the accumulation in recent years of a substantial body of research-based, academic literature on public law, which provides important insights into the changing landscape of UK public administration; secondly, the continuing development of machinery for the redress of citizens’grievances against the state – in particular, the substantial growth of judicial review proceedings and the development of ombudsman systems; thirdly, the continuing transformation of the agenda of UK law and politics by developments in the European Union.     

The special action office for drug abuse prevention : drug control during the nixon administration

The creation of the Special Action Office for Drug Abuse Prevention, during the Nixon Administration , provides a case study in presidential program management. Much has been said and written about the President-as-manager, especially in terms of hands-on program management. The Special Action Office, an outgrowth of the Nixon-Agnew “law and order” campaign, provided close proximity to the President and increased visibility for drug abuse prevention efforts.

The SAODAP utilized its focal position to coordinate the many and disparate drug abuse programs of the federal government. Many of these programs derived substantial financial as sistance from SAODAP efforts . However, President Nixon's counter-bureau-cracy philosophy caused the organization to become embroiled in controversy.

Although the Special Action Office for Drug Abuse Prevention eventually fell from presidential grace, the organization's creation and operation provide further insight into presidential management styles and the view of the President as a “general manager” of government.