Provide Better Training and Incentives For Regulators

Provide Better Training and Incentives for Regulators

BACKGROUND

A regulatory system is only as good as the people implementing it. A
well-trained and informed cadre of regulatory officials is crucial for
an efficient, innovative regulatory system, that emphasizes choice of
the appropriate regulatory approach. Inadequate training can result in
errors, no matter how intelligent and well-meaning the officials may be.
No current programs provide the training necessary to effect the needed
major changes in the federal government's regulatory culture.[Endnote 1]
Proper training and performance incentives are needed to ensure that the
agency officials involved in regulatory activities are as effective as
possible.

As is well known, presidential appointees have widely diverse
backgrounds and familiarity with the federal government. Many (but not
all) are well-versed in their agency's substantive program, but few
appointees can be expected to know, at the time of their appointment,
the details of the arcane statutes and rules that govern the agency's
rulemaking procedures.[Endnote 2] Yet a lack of understanding of these
rules can slow and possibly trip the most eager of new appointees. It is
crucial that this blank slate be filled quickly since studies show that
nearly half of all presidential appointees leave office within two
years--hardly enough time for them to develop a meaningful understanding
on their own.[Endnote 3]

There have been some attempts in the past to furnish training to
presidential appointees. Based on a 1975 recommendation, the
Administrative Conference of the U.S. (ACUS) provided a three-day
seminar for commissioners of the independent regulatory agencies in
1977.[Endnote 4] It covered a broad range of topics relating to
regulation.[Endnote 5] No such systematic programs have been held since.
ACUS has also more recently provided shorter, day-long or half-day
programs on various aspects of administrative law and procedure relevant
to regulatory commissioners. A continuing, comprehensive approach is
needed, however.

Some limited training opportunities do exist for career staff. The Legal
Education Institute (LEI) within the Department of Justice's Office of
Legal Education presents courses for government lawyers.  The Federal
Executive Institute provides management training for the Senior
Executive Service (SES), and some federal officials have attended
courses at the Kennedy School of Government at Harvard University. A few
outside firms also provide training courses.  These opportunities are
limited, both in number and in scope, and fall short of ensuring that
all relevant personnel are familiar with the pertinent laws and
processes.

Career regulators and Hill staff often lack a broad perspective about
the regulatory process because career paths are often confined to one
agency.  Rotational assignments among agencies in the executive branch
and among the branches are not common. Although some programs accomplish
some of these goals for entry level officials, such as the two-year
Presidential Management Intern program, there are no established
inter-agency or inter-branch career paths for regulatory
professionals.[Endnote 6] Such officials do not have any real incentive
to seek rotational assignments, since it is the person's "home-base"
agency that continues to conduct performance appraisals and absence is
not likely to "make the heart grow fonder." Members of the SES also
theoretically have this opportunity but they are often in such
high-level positions that there is little incentive for them to seek or
be permitted to accept rotational assignments.

NEED FOR CHANGE

Despite the increasing complexity of the regulatory process, little or
no relevant training is currently available for regulatory officials.
High-level policymakers, particularly those who are Presidential
appointees, are often provided no training or background in the laws and
processes they must follow, and career staff have access only to
limited, and often inadequate, training opportunities.

The lack of training for presidential appointees is all the more glaring
given the availability of intensive orientation to members of Congress
and the federal judges.[Endnote 7] Indeed, a survey by the National
Academy of Public Administration (NAPA) reported that 79 percent of
presidential appointees received no orientation of any kind.[Endnote 8]
As NAPA has concluded:

It is hard to imagine that anyone could regard this disinterest in the
orientation of new presidential appointees as a sound way to run the
federal government. We believe the historical absence of such programs
is a matter of great concern, a problem that should be permanently
corrected.[Endnote 9]

With respect to career regulatory staffs, the situation is only somewhat
better. Training for non- lawyer career staff is hit-and-miss. The Legal
Education Institute (LEI) does an excellent job of training agency
lawyers on a variety of issues, a number of which relate to agency
rulemaking and regulation. These courses have typically been one-day
courses held in Washington, D.C. About 95 percent of the roughly 4,000
LEI attendees in 1991 were from Washington, D.C.[Endnote 10] Rather than
having its own paid teaching staff, the institute typically relies on
professionals from throughout the government to volunteer to teach
courses in their areas of expertise.

Unfortunately, recent Department of Justice appropriations legislation
required the Institute to be moved to Columbia, South Carolina, as part
of a move of the entire Office of Legal Education.[Endnote 11] As a
result, it is expected that either attendance by agency staff lawyers
will drop significantly or training costs will rise significantly to
cover the increased travel costs to send personnel to South Carolina (as
opposed to across town).[Endnote 12] Moreover, LEI's travel expenses for
faculty would increase, since almost 95 percent of the faculty were from
Washington, D.C., and it is unlikely that as much of the necessary
administrative law and regulatory expertise would be locally available
in South Carolina.

In addition to training, a broad outlook on regulatory issues and
first-hand awareness of a variety of perspectives can be extremely
useful in developing regulatory programs. Providing select mid- level
career staff an opportunity to spend time at different agencies, on
Capitol Hill, at the Office of Management and Budget (OMB), and/or in
the judicial branch would provide those people and their agencies with
extremely useful expertise for effective implementation of regulatory
programs. They would discover how other agencies approach similar
problems, what Congress' perspectives are, how the judiciary looks at
regulatory issues as they come before the courts, and how OMB approaches
problems of regulation. In addition, the quality of communication and
coordination among agencies, Congress, and OMB might be improved through
increased and ongoing contact. Also, the Office of Information and
Regulatory Affairs (OIRA), as a centralized locus for regulatory review,
could be a place to train agency staff. Agency staff could learn not
only what Presidential review entails and the technical skills involved
in regulatory analysis, but also how other agencies address various
regulatory problems.

The need for this type of rotation has been increasingly recognized.
Judge Stephen Breyer, in his new book on improving risk regulation,
called for a "circulating career path" for "(eventual) high level
executives," modeled on France's Conseil d'Etat.[Endnote 13] As Judge
Breyer visualized it, an OMB "special group" could be created with a
special civil service career path leading though agencies, congressional
committee staffs, back to OMB, with possible presidential appointments
for the most successful members. Such a concept would not only augment
OMB (especially OIRA's capabilities), it would "seed" the government
with experts in broader regulatory issues.

Cross-References To Other Npr Accompanying Reports
						
Reinventing Human Resource Management, HRM04:  Authorize Agencies to
Develop Incentive Award and Bonus Systems to Improve Individual and
Organizational Performance; and HRM11: Strengthen the Senior Executive
Service so that It Becomes a Key Element in the Governmentwide Culture
Change Effort.

Creating Quality Leadership and Management, QUAL02:  Improve Government
Performance Through Strategic and Quality Management; and QUAL03:
Strengthen the Corps of Senior Leaders.

Streamlining Management Control, SMC04: Increase the Effectiveness of
Offices of General Counsel.

Endnotes

1. See generally Adler, Robert S., Stephen H.  Klitzman, and Richard A.
Mann, "Shaping Up Federal Agencies: A Basic Training Program for
Regulators," Journal of Law & Politics, vol. VI, no. 2 (Winter 1990)
[hereinafter "Shaping Up Federal Agencies"].

2. For a description of 18 such statutes, see Administrative Conference
of the U.S., Federal Administrative Procedure Sourcebook, 2nd ed.
(Washington, D.C., 1992).

3. National Academy of Public Administration (NAPA), "Leadership in
Jeopardy: The Fraying of the Presidential Appointment System," November
1985, pp.  4-5, as cited in "Shaping Up Federal Agencies," supra note 1,
p. 351.

4. Administrative Conference of the U.S., "Statement on Strengthening
Regulatory Agency Management Through Seminars For Agency Officials"
(adopted June 5-6, 1975), 1 C.F.R.   310.4 (1988 ed.).

5. Discussions with officials of ACUS. The program was discussed in
"Shaping Up Federal Agencies," supra note 1, pp. 360-364.

6. See discussion in Carnegie Commission on Science, Technology, and
Government (Carnegie Commission), Risk and the Environment: Improving
Regulatory Decision Making (Washington, D.C., June 1993), pp.  94-95.

7. In this environment, regulatory appointees need and should be
provided an orientation, as early as possible, in the basics of
administrative law. Newly elected Congressmen are offered intensive
orientation courses by the congressional leadership, by outside seminars
at Harvard's John F. Kennedy School of Government or by other
non-governmental organizations (NGOs). Newly appointed federal judges
have similar offerings available to them at the National Judicial
College (located at the University of Nevada - Reno) and by the Federal
Judicial Center. Even career civil servants have at least some
opportunities for intensive training (at OPM's Federal Executive
Institute and the USDA Graduate School, or the Harvard JFK School).
Presidential appointees, ironically, are the only major regulatory
actors who do not receive orientation and basic training.

8. NAPA, p. 20, as cited by "Shaping up Federal Agencies," supra note 1,
p. 364.

9. Ibid.

10. Information is provided in unpublished data sheet prepared by Legal
Education Institute (LEI).

11. See H.R. 2608, 102d Cong., 1st Sess., p. 14. The Office consists of
LEI and the much larger Attorney General's Advocacy Institute (AGAI)
which trains assistant U.S. Attorneys drawn from all over the country.
In 1991, LEI had 9 employees and an annual budget of $1.5 million while
AGAI had 14 employees and a budget of $9 million. While an argument can
be made for relocating AGAI, moving LEI was perhaps inadvertent. Because
AGAI and LEI do not overlap and have separate staff, it would be a
simple matter to separate them.

12. Travel costs from Washington, D.C. to Columbia, South Carolina,
amount to approximately $400 per student (airfare plus one day's per
diem). Assuming that 4,000 students from Washington, D.C. continue to
attend courses in South Carolina each year, annual additional costs
would amount to $1.6 million.

13. Breyer, Stephen G., The Vicious Circle: Toward Effective Risk
Regulation (Cambridge: Harvard University Press, 1993).