Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, February 26, 2010

A Few Moments With Harvey Mackay, The Indispensable Man

Yesterday, I took a few moments out of a busy day to attend a book-signing. The event centered on the release of Harvey Mackay’s latest title, Use Your Head to Get Your Foot in the Door

As many people who know me well – and frankly, even many of those who don’t know me particularly well – could tell you, I am a huge Harvey Mackay fan.

I have read all of the items in the Mackay oeuvre – which is considerable – and have been known to press the bounds of polite conversation in urging others to read one or another of Harvey’s titles.

For someone who wasn’t lucky enough to be born here on the prairie, looking back, it is clear to me that some of the more remarkable and wonderful things that have happened for me here had their roots in that catalogue.

The books and cassettes are transformational.

A short forty word summary of Harvey Mackay’s books, articles, tapes, videos and “tweets” can be found in the epilogue of his latest book. In classic Mackay style, refurbishing a famous quote from Andrew Carnegie, Harvey declares: “You could take my money from me, my home from me, my factories … whatever … but leave my good name, my reputation, and my network…. And I will be back where I was in two years.”

The Mackay genre is a set of road maps for building one’s good name, reputation and professional network. It is jammed with strategies, every day tactics and healthy food for thought – all delivered in a home-spun style that is accessible to just about every reader. These road maps will lead you to unimagined heights in good times and help you to chart a swift return when – as happens to every one of us, sooner or later – disaster strikes. 

And, along the way, I think that they also help to make the world a better place than the way that Harvey found it.  In my book, that is the highest praise that one can render.

Ever au courant, Mackay’s newest title is a field manual for Americans who are suffering in this era of economic calamity and collapse. As Mackay explains in the opening pages of what turns out to be an unbelievably useful volume, this is the book that his wife of nearly fifty years, Carol Ann, urged him to write.  No doubt a lot of lives will be changed for the better because of that prompting.

More remarkable still, notwithstanding the fact that Mackay is approaching 80, this week also marks the debut of his own internet browser tool. The software provides handy, drop-down menus to Harvey's on-line content and the very best of the internet’s networking and professional research engines. The add-on is very cool and is accessible here.

So, thanks Harvey. Yesterday was good day. And for me, so is most every other one because of what you have written, said and done.

Sunday, February 21, 2010

Moving Toward the Right Procurement Agenda – For Congress and For Us

Steven L. Schooner, Associate Professor of Law and Co-Director of the Government Procurement Law Program at George Washington University, recently posted to the Social Science Research Network a chapter from a forthcoming book: “Framing a Public Management Research Agenda.”

For those who are interested in government acquisition issues, this is a really interesting and worthwhile read. And, folks like me, who are alumni of the program, can take genuine pride in the fact that such clear and incisive analysis continues to spring from Foggy Bottom.

Consider this provocative shot across the federal regulatory bow:
While a successful procurement regime depends upon high standards of integrity and compliance, a pervasive ‘corruption control’ focus not only stifles creativity and encourages mechanical rule adherence, but encourages timidity and risk-averse behavior. Kelman hits close to the mark in his prediction that public managers (or procurement professionals) over the next decade: “rather than transforming, learning, and challenging themselves … could be preoccupied with 'ferreting' out waste, fraud and abuse, … 'exposing mismanagement,' … 'complying with rules and procedures' … in a mode of 'hunkering down' and 'keeping out of trouble[.]”
The imperative to address this public management challenge thoughtfully and well is great. The federal government now undertakes nearly $500 billion in contracting with private firms each year – with a spending trend line that is on the rise. In such an environment, centering on ‘keeping out of trouble’ is not where I would have procurement professionals aim.

This past November, Schooner and others gathered for a conference in Washington to wrangle over this question, and others – a matter that is all to the good. For me, however, the far more difficult challenge is how we could prompt Congressional committees to take the time out for work on these complicated riddles. I wondered what it would take to get Capitol Hill to focus on some of the questions that were debated at the conference; such as:

• How can the government systematically evaluate its acquisition workforce needs and capabilities?

• How does government assess the impact of an acquisition workforce development program on acquisition outcomes? How will government know if it is successful?

• How significant are the transaction costs resulting from the administration’s commitment to transparency (generally, and specifically in the context of stimulus or recovery spending), and who will bear those costs?

• How can government develop and define better metrics on acquisition outcomes?

To me, the idea that Congressional committees would venture into these thickets – even as weighty as these questions are – seemed other worldly. Still, we can dream; and cajole; and thank Professor Schooner for such a worthwhile start – which is accessible here.

Saturday, February 13, 2010

The Land Use Case that Every Minnesota Rule Writer Should Read

On Thursday, the Minnesota Supreme Court issued an interesting and important opinion that the rulemaking community is certain to be thinking about, reading and discussing for weeks to come.

The opinion arises out of a challenge to the Department of Natual Resources' refusal to certify a local variance in favor of a landowner who wished to build a home along the Saint Croix River. The City of Lakeland granted the variance, but the DNR refused to certify this action -- a matter that under the state's scenic river rules purportedly deprived the variance of its legal effect.

An evidentiary hearing before an Administrative Law Judge followed. The Commissioner of Natural Resources affirmed the denial of the certification, issuing his decision within 90 days of the Administrative Law Judge's recommended decision.

In a challenge to that denial, the Minnesota Court of Appeals reversed the agency's determination. The appellate court reasoned that because the denial of the certification was not rendered within 60 days of the ALJ's decision, it was untimely and ineffective. The appellate court concluded that, under the requirements of Minnesota Statutes, section 15.99, such a decision was due within 60 rather than 90 days.

Disagreeing, the agency sought further review with the Minnesota Supreme Court.

A unanimous Supreme Court affirmed the lower court decision; albeit on very different grounds. The Supreme Court reasoned that the Legislature's delegation to the DNR to "manage and administer" the scenic river system was not broad enough to authorize the state rules which required the DNR's approval of locally-granted variances. In the view of the Court, if such a review power was intended, the grant of authority to the DNR would be both differently-worded and more explicit. Without the lawful authority to set-aside locally-granted variances, the lack of an approval from the DNR did not imperil the landowner's variance.

A question that was not reached by the high court, and thus remains unclear, is how vibrant is the Court of Appeals' analysis as to the due date for agency decisions in matters that touch upon zoning and land use? Are these decisions due in 60 days?

And while that would be helpful to know, interestingly, the longer-term impact of this decision will probably not be felt in land use cases; but rather in state rulemaking proceedings. The decision will likely sharpen an already rigorous and detailed focus on the phrasing of delegations of rulemaking authority in favor of state agencies.

For a more detailed study of the two appellate court decisions -- which each administrative lawyer should be doing these days -- the Court of Appeals' unpublished decision is accessible here; and the Supreme Court's affirmance is accessible here.