ASSESSING CONTRACTOR ACCOUNTABILITY IN THE SUPREME COURT.

Author:Beaty, Leann
Position:Report
 
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In 1993, John E. Malesko was assigned to the fifth floor of a halfway house operated by Correctional Services Corporation (CSA), a private corporation under contract with the Bureau of Prisons. Malesko was exempted from the halfway house's policy requiring inmates living below the sixth floor to use the stairs rather than the elevator due to a known heart condition. However, when a CSA employee refused to let Malesko use the elevator, he climbed the stairs and suffered a heart attack. Malesko filed suit against CSA for its negligence in refusing to let him use the elevator, citing Bivens v. Six Unknown Fed. Narcotic Agents, 403 U.S. 388 (1971), a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court ruled against Malesko, reasoning that the threat of suit against an individual's employer was not the kind of deterrence contemplated by Bivens (Correctional Services Corp. v. Malesko, 534 U.S. 61, 2001).

THE NEW FACE OF GOVERNMENT IS THE MARKETPLACE

The case of Malesko above illuminates a growing dilemma in the wake of New Public Management--a model of governance that fosters public-private arrangements for the delivery of government services to citizens. Contracting out, a form of privatization in which a government agency enters into a business arrangement with a private entity to perform certain services on the government's behalf, has become one of the most prevalent mechanisms of alternative service delivery in the United States (Amirkhanyan, Kim, & Lambright, 2007; Kettl, 2005; Milward & Provan, 2001). Indeed, as of 2002 more than 80 percent of states and local governments relied upon some form of privatization, and even the New York Times weighed in on the debate surrounding the contracting boom, saying: "without a public debate or formal policy decision, contractors have become a virtual fourth branch of government" (Greene, 2002; Shane & Nixon, Feb. 4, 2007, online). New Public Management (NPM), part of a "reinventing government" movement that emerged during the 1980s to encourage government to adopt private sector principles and practices to enhance their efficiency and effectiveness, has driven this trend.

Yet, with the focus on NPM, as illustrated by the Malesko case, the dimension of governance once associated with public sector accountability has changed (Gilmour & Jensen, 1998; Choi, Cho, Wright, & Brudney, 2005; Girth, 2012; Hansen, 2003; Johnston & Romzek, 1999, 2005; Kettl, 1993; Leazes, 1997; Milward & Provan, 2001). This article expands the contractor accountability literature by empirically considering whether the increasing use of government contractors has had an effect on the legal accountability of these private entities as determined by the United States Supreme Court over time. We begin with a discussion of public sector accountability, its key forms within the field of public administration, and why the conception of legal accountability is the most appropriate way to examine how the Courts have held private vendors accountable for legal violations or other misconduct unrelated to contract performance. We also include a section on the origins and theoretical basis of New Public Management, including how the contracting out boom has complicated accountability with regard to the transfer of state power to private providers. We conclude with a statistical analysis of more than 60 years of Supreme Court decisions involving contractor litigants. The results suggest the Court's propensity over time has been more favorable to private corporations.

PUBLIC SECTOR ACCOUNTABILITY

Accountability--the answerability for one's actions or behavior--has long been recognized as a dominant public service value. Raga & Taylor refer to it as a "fundamental prerequisite for preventing the abuse of power and for ensuring that power is directed towards the achievement of efficiency, effectiveness, responsiveness and transparency" (2005, p. 1). Enhanced accountability, says Dubnick (2005), will impose pressures for greater oversight, improve the quality of government services, and provide access to the courts where abuses of authority or harm to individuals can be challenged.

Romzek and Dubnick (1987) identify four types of accountability systems (bureaucratic, professional, political, and legal) by which public agencies and their workers manage the diverse expectations generated within and outside the organization. Under the bureaucratic system of accountability, the expectations of public administrators are managed by focusing on the priorities at the top of the organizational hierarchy. For professional accountability, public officials rely on the expertise of employees to meet job performance expectations. Political accountability refers to the key relationships between the representative (the public administrator) and their constituents (e.g., general public, elected officials, agency heads, etc.) to whom they are accountable, whereas legal accountability, the fourth system, refers to the relationship between two autonomous parties--typically a controlling party outside the agency and members of the organization. That outside party, emphasize Romzek and Dubnick, is not just anyone; "it is the individual or group (i.e., U.S. Supreme Court) in a position to impose legal sanctions or assert formal contractual obligations (Ibid., pp. 228-229).

To summarize and refocus on how the increased use of contracting out impacts the dimension of public accountability, it is important to note, as do legislative attorneys Manuel and Perry (2015), that reports of waste, fraud, or abuse in federal contracting often prompt questions about what the government can do to hold vendors accountable for failure to perform as required under their contracts, or for legal violations or other misconduct unrelated to contract performance. Broadly speaking, say Manuel and Perry, the government can pursue two courses of legal recourse, the first involving rights related to the contract that do not require judicial proceedings, and the second type involving sanctions or damages through the courts. It is on this second form of legal recourse that we analyze, over time, how the Court has held private contractors acting under authority of government accountable.

NEW PUBLIC MANAGEMENT

New Public Management (NPM) is a paradigm shift that emerged in the 1980s to modernize the public sector (Frederickson & Ghere, 2005; Hodge, 2000; Savas, 1987, 2000). NPM was considered by many as an improvement to the traditional public administration managerial theories (Gow & Dufour, 2000; Gruening, 2001; de Vries, 2010). Founded on neo-liberalism thought, public organizations were equated with private organizations, relying heavily on themes of disaggregation, competition, and incentivization to innovate public organizations (Dunleavy, Margetts, Bastow & Tinkler, 2005). However, as Gow and Dufour (2000) observe, there has been little reflection concerning the validity of NPM, with others suggesting that the central premise of NPM, improved efficiency and effectiveness, have not been proven (see also, Dunleavy, 2005; O'Toole & Meier, 2004). The following overview of the NPM movement does not attempt to resolve the tensions between the opposing ideological positions of NPM, but rather provides a brief overview of its origins and theoretical basis related to its most notable implication, the privatization movement.

The origins of the NPM movement follow the leads of Prime Minister Margaret Thatcher in the United Kingdom and local government practitioners here in the U.S. to implement market-based reforms amidst severe recessions and other fiscal challenges (Gruenig, 2001). The governments of New Zealand and Australia quickly joined the movement, followed by President Reagan who argued that government had grown too large and inefficient. Hence, the role of the state should be reduced with the functions and responsibilities of government shifted to the private sector (Frederickson & Ghere, 2005; Hodge, 2000; Savas, 1987, 2000).

NPM can be traced to a variety of theoretical managerial perspectives. However, conventional public administration literature holds that public choice theory (PCT) and principal-agent theory (agency theory) inform the basis of NPM market-based philosophies, that contracting out to competitive private vendors will enhance quality, improve accountability and lead to greater cost-efficiencies. Both theories derive from business management and economic rationality assumptions that self-interest dominates human behavior, and thus government bureaucrats, in the absence of profit motives, are motivated by the desire to maximize individual benefits with the least amount of effort or cost (Bennett, 1990; Buchanan & Tullock, 1962; Boyne, 1996; Green & Shapiro, 1994; Niskanen, 1971, 1975; Tiebout, 1956). Professional and legal accountability thus arise from hiring the right person--or in the case of public-private partnerships, the right contractor--and rewarding or punishing them accordingly (Eisenhardt, 1989; O'Connell, 2005).

The NPM movement began in earnest with the release of Osborne and Gaebler's book Reinventing Government (1992) in which the former practitioners argued that the efficiency of the public sector could be enhanced through five fundamental strategies: devolution of services to lower levels of government, cutting through red tape, managing for results, customer satisfaction, and fostering competition and alternative ways of delivering goods and services. The most conspicuous implication of the NPM movement has been privatization--the transfer of government management and service delivery to the private sector. The various forms of privatization sometimes leave very little...

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