Rules, Rigidity and Reasonableness

Giving public employees the power to make prudent interpretations would render government more effective and better regarded.
January 24, 2018
Man ripping up a piece of paper that says "rules."
By Richard Clay Wilson Jr.  |  Contributor
Retired city manager of Santa Cruz, Calif.

Two recent experiences have caused me to reflect on how public agencies go about achieving their purposes. Both involved the rigidity with which government's rules are typically applied, and both reinforced my long-held belief that this rigidity is an enemy of achieving the very goals those rules are designed to further.

The first was when a friend of mine told me how he had changed from being a supporter of governmental rules to improve the environment to being an opponent. The cause was his personal experience with officials responsible for applying the rules for a small building project. In brief, the officials chose, at every opportunity, to make rule compliance as difficult, expensive and time-consuming as possible. The rules at issue could have been reasonably applied. The unreasonableness with which they were applied changed my friend's entire outlook toward environmental regulations.

The second experience was my own. I needed to record a one-page document in a distant county. It would never again be used or needed for any purpose. There was one small complication: The document wasn't in English. The meaning of each word was self-evident, but the county had a rule: Documents not in English must be translated. I was required to find and retain a qualified translator, pay the county to approve both the translator and the translation, and then submit all of these documents to be recorded. It cost $200 and took considerable time. The department manager to whom I complained was entirely sympathetic. He would have been happy to waive the requirement, but could not. Thinking it would ease my irritation, he told me that his office had recently required a translation of a single word that was obviously "mister."

These examples are trivial in the scheme of things. But that's the point. If reasonableness is difficult to obtain in small matters, how can it be obtained in big ones?

To a very considerable extent, rule compliance has become an end in itself rather than a means to other ends. Employees of government are discouraged from distinguishing between reasonable and unreasonable, fair and unfair, efficacious and not efficacious. Once established, rules and their original interpretations reign supreme.

Unfortunately, negative personal experiences shape larger world views. Every bad experience with one government agency shapes perspectives about government at large. It doesn't take too many experiences with absurdity to convince people that reasonableness is impossible. No wonder a substantial part of the electorate opposes rules and regulations as a matter of political belief, regardless of the purposes served. The entirety of government appears, to many, to be utterly lacking in reasonableness. The inevitable result is the election of politicians who also don't believe there can be such a thing as reasonable government regulations.

One answer to the problem of excess rigidity is to grant government's employees permission to make reasonable interpretations. Most public workers would welcome the prerogative to exercise reasonable judgments. Agencies that embraced reasonable judgments would increase effectiveness, employee satisfaction and the satisfaction of most of those they serve and regulate.

Another answer is to write rules with reasonable interpretation in mind. Most rules are designed to prevent, rather than accommodate, the exercise of discretion. Rigidity is too often seen as a virtue; wiggle room is seen as something to be avoided at all costs.

As a longtime proponent of exercising wiggle-room, I experienced the same responses over and over again from fellow government employees. The first response was unwillingness to vary from rigid interpretation. The second response was hesitant, tentative acceptance that, in a particular instance, exercising flexibility might prove a good thing. The third response was appreciation, when clearly superior results were obtained and feared downsides did not materialize.

Fixed, unvarying rules cannot possibly fit the variety of circumstances they must address. Recognition of that variety, and willingness to accept and deal with it, would render government more effective and better regarded. Moreover, the application of flexibility in modest degree would promote rather than impede the goals that the rules exist to serve. Small adjustments reflective of individual circumstances would serve to promote, rather than impede, progress toward the larger purposes of rules. Goodwill extended by government agencies seeking to achieve their goals would mostly be met with goodwill on the part of those who must comply.

Rules are means toward ends. The goal of rulemaking is not to achieve 100 percent compliance, or 100 percent consistency, or even 100 percent fairness. None of those things is possible. But if reasonableness were added to the processes of rulemaking and compliance, overall progress toward government's purposes would be boosted, not compromised.