Dear Bureaucrat,
Lots of the people I deal with at work are lawyers. I’m not; I have an MPA and experience in government. But whenever there’s an issue about how to handle something in our agency, the bosses always side with the lawyers. It’s like they see the lawyers as adult supervision for the rest of us. How can I convince the bosses what’s best for our mission when the lawyer at the table is raising trivial objections?
Signed, Dick from Blackheath
Dear Dick,
The boss has three reasons to side with the lawyer. First, laws are often vague, and as a practical matter they mean whatever courts have interpreted them to mean in previous cases. If you are looking at the text of the law, but the lawyer understands the precedents, she will have the better grasp of how a court or other lawyers would view your agency’s action.
Second, if there is controversy later, the boss can deflect blame with, “I acted on advice of counsel.” To say, “I acted on advice of a public administrator” would not be an effective dodge.
Third, the lawyer has an ethical obligation to act in her client’s interest. Who is her client? There are various opinions, but the Federal Bar Association said the client of a federally employed lawyer is “the agency where he is employed, including those charged with its administration insofar as they are engaged in the conduct of the public business.” By this interpretation, the lawyer’s obligation is to the officials currently controlling the agency, even if she understands their actions are contrary to the public interest. So the boss has reason to believe the lawyer will look out for his interest, whereas you might have a different agenda based on your own view of the public interest.
To overcome the lawyer’s advantages, do not argue the law. Any government decision involves other considerations beyond law, so focus on those. Try to lead the lawyer to clarify for the boss the limitations of her own argument. You might say, “I understand, Portia, that you have concluded it would be legal for us to withhold this information. But does the law require us to withhold it, or do we have authority to release it so the public will be better informed?”
Convince the boss that your way is safe by showing your own kind of precedents; that is, examples where your agency or another agency already did what you are advocating. It’s sad but true that the argument that persuades officials often amounts to “we got away with it last time” (just don’t say it that bluntly).
You will be even more persuasive if you can show that the approach you are advocating has produced good results in the past. Pass around whatever evidence you have found: program evaluations, press coverage, etc. Evidence of bad results from not doing what you are suggesting also works. Was an agency head raked over the coals in a congressional hearing for some failure that doing it your way will prevent? Pass around a transcript of the hearing.
In short, the boss has some good reasons to think he is safest going along with the lawyer. To overcome that, first get the lawyer to acknowledge in front of the boss that the way you want to do things is not illegal, even if it is not the way she recommends. Second, show the boss that your way has worked before, or that not doing it that way has blown up in the face of some other official.
Dear Bureaucrat provides the federal workforce with the opportunity to submit questions about their careers to David S. Reed, founder of the Center for Public Administrators, a 501(c)(3) civil society organization that builds communities of practice in the public sector. Reed has spent 35 years in and around government. He has worked for large contractors, owned a small contractor, and is currently a government employee. He holds a Master in Public Policy from the Harvard Kennedy School, and is a frequent speaker at public administration conferences.
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