Eric! Congrats on your excellent article in EM Magazine. I do wonder to some degree whether your comment on page 34 could be construed as confined to implementing WEB 2.0 in FEMA specifically or FEMA operations generally. Just in case it was the latter I make the following comment that you are welcome as always to post on your wonderful blog or ask Jim McKay at EM to publish if he feels appropriate. Editorial changes to this if published elsewhere correcting, commenting, supplementing or whatever of course are welcome as always assuming the underlying intent of my comment is captured.
The comment to which I am referring states as follows:
they communicators; Their role is to ensure that what's said or done is legal.
Background
Since I held almost every legal job in FEMA (except for the position of the General Counsel) formally or informally from 1979-1999 when I retired I feel qualified to address your position, which of course may be justified because this fall will have been retired from FEMA for a decade. In my time the lawyers not only did not run FEMA but the staffing and funding of the General Counsel's Office was completely inadequate. In fact when asked if I might be interested in being the General Counsel in early 1993 I said only on the condition that I was given 75 on board FTE of which 25 would be assigned to the 10 FEMA regions as Regional Counsel and staff. Between 1981 and 1984 there were individual Regional Counsels in 5 of the 10 FEMA regions. Their work oddly enough, partly because of Mother Nature was largely NFIP (National Flood Insurance Program) litigation (42 USC 4001 and following) including both affirmative and defensive litigation, and Nuclear Licensing issues pursuant to 10 CFR Part 50 Appendix E and 44 CFR Parts 351-354. With less than that staffing I believed the Agency could not be legally served or even protected adequately. Needless-to-say that staffing did not occur nor did I become the General Counsel. Fortunately, a very talented political appointment for the General Counsel occurred and he was authorized by Director James Lee Witt to hire field disaster attorneys as DAE and CORE staff. That system helped but in my opinion is still inadequate.
Briefly, I believe the client should know what he/she wants to do and how to do it but when necessary should always error on the safe side to have legal counsel provide generic or specific advice as to whether that action is legal, and (here many program officials will disagree) whether he/she the lawyer knows of other legal options that might result in even more effective program administration. FEMA as an independent agency was given a great deal of discretion through delegation from the President or by statute vesting authority directly in the Director FEMA. So the occasions to say NO by the lawyers were somewhat de minimis. Yet it was always surprising to me how many program officials and civil servants would ask before taking any action the question "What can I legally do?" even when given almost absolute discretion to design and implement program fundamentals by law. So the retort was often "Why not decide what you want to do and then ask for a legal opinion?" My point is simple, legal counsel in a federal Executive Branch Department or Independent Agency have a variety of statutes through which they have to maneuver but its the program officials responsibility to do as much as possible first to design an effective and efficient program that can then be legally reviewed for adequacy. Clearly, not all program eventualities can be dealt with in advance and therefore discretion should be delegated downwards together with accountability and authority so that the lowest level can be empowered to make the decision. If in the rush of events that decision is later reversed by higher ups and unless absolutely barred by statute or published regulations (which is a rare event in an administrative agency like FEMA) that allows whatever program "damage" to be at least geographically or individually confined and then if properly reviewed and even when reversed if necessary a learning organization can learn from that review and reversal to build an even more efficient and effective program, function, or activity.
My hope is that this comment gives you a better understanding of the federal administrative lawyers role in assisting his/her clients. One way to make sure authority and accountability are delegated the furthest down the bureaucracy possible is that published official delegations do that step. In fact both the Federal Register Act of 1935 and the Administrative Procedure Act of 1947 both require that action. Also in 1803, the SCOTUS (Supreme Court of the United States) ruled in the case Little v. Bareme that each person dealing with a government official is entitled to know what that official's position actually is and his/her authority to take an action impacting that citizen or interested person impacted by that action. Of course the implicit premise of that conclusion is that the government official also knows.
My comment about attorneys trying to "run everything" has to do with informal feedback I've gotten from Washington, D.C. insiders--who names I can't reveal. The issue being that people do not feel free to act. This of course applies to Web 2.0 circumstances and to testifying and providing information to congress.
We need to "turn the horses loose" and let them run. People who are empowered will do so much more than when they are kept corralled in a tight span of control. Attorneys are part of the team--but, just one member like everyone else.
