« PreviousContinue »
individual thought the regulations “probably” did so. That this instance of basic misunderstanding within the Commission was an isolated case is attributable to the hard work of Commissioners and staff members alike. I believe the Commission's decision in this case was correctly communicated to and understood by the General Counsel's office; the confusion must have arisen during Commission discussion of the issue and was never detected as the Commissioners cast their votes for and against the various alternative policies presented for their discussion and decision.
Four of us, including one of the attorney's from IRS, in the Commission's General Counsel's office ended up (probably inevitably) spending the entire night until dawn of November 12 at the Commission's offices drafting and re-drafting the regulatory package so that it could be retyped and filed for publication with the Federal Register that morning. Reflecting the Commission's policy statement that was also released on November 12, the regulations published on November 13 were not models of clarity. But, with numerous amendments, they served their purpose well despite the very rushed circumstances under which they were prepared.
The following week the regulations were amended several times. The Director of the Office of the Federal Register wisely perceived that the General Counsel's Office needed experienced assistance in drafting new regulations and in organizing those we had published on November 13. The Commission was fortunate to have then secured the services of James B. Minor, an acknowledged expert in legislative and regulatory drafting. Minor was hired on a contract basis to completely rewrite and revise, within 30 days, the Commission's regulations. The revised regulatory package was published on December 16, 1971. Minor stayed with the Commission on a part-time basis until he was named General Counsel in July, 1972 upon the departure of W. David Slawson, the Commission's first General Counsel.
The Commission's experience with the development of the first regulatory package and its immediate amendment and revision, served as education-byexperience for the Commission's Chairman and the leading office directors. It became clear at that time, and was fairly well understood throughout the remainder of the Commission's tenure, that the development of regulations was not an easy process. It was a process that required vast amounts of time and that was of vital importance to the Commission's success.
The precipitous publication of the Commission's grossly inadequate rent regulations represented a step backward in the educational process and illustrated the adverse effects that can result when the press of an agency's business prevails over the competing need to develop a sound regulatory foundation for agency action.
The Rent Advisory Board was establsihed by the President pursuant to he same executive order which established the Cost of Living Council, Pay Board and Price Commission. The Board was intended to advise the Council and Commission on the matter of rent. The Board met frequently in the early days of Phase II; it developed a general policy that was discussed at length and modified by the Price Commission; then forwarded to the General Counsel's Office for the formulation of regulations.
As the basic rent policy emerged from the Commission, however, it became
apparent that because the Commission's decisions on rent did not resolve many of the basic issues, any implementing regulations would be complex. The Chairman and others at the Commission were advised by the General Counsel's Office that the rent policy would take considerable time to turn into a legally sufficient regulation and that the process would inevitably require consideration by the Commission of matters which had not been resolved previously. We were told to proceed, nevertheless, working with the staff of the Rent Advisory Board, to develop the regulations as quickly as possible, but in any case, to have them ready for publication in the Federal Register no later than December 31, 1971, a date about 2 weeks subsequent to the date of the Commission's decisions. That deadline was apparently necessitated by certain commitments made by persons at the Commission to individuals at the Board who, in turn, had made promises to others interested in the rent regulations.
The rent regulations were issued before the first of the new year, but in form and substance they were totally inadequate. I am convinced that no one could have turned the Phase II rent policy into a coherent regulatory package in so short a time. We spent hundreds of hours developing the regulations themselves and could devise no way to avoid the complexities and the inherent inconsistencies that were so obvious in the ultimate regulatory product. Throughout the Commission's tenure the regulations proved a hornet's nest of interpretative problems. They were impossible ot explain to any layman, and were probably disregarded by many smaller landlords simply because they were unable or unwilling to retain legal assistance in order to apply them.
Fortunately, this was an isolated incident. I was advised several times later in Phase II that the decision to "go" with the rent regulations would not be made again if Phase II were somehow to repeat itself.
Legal Education of Agency Heads
A priority of any new legal office, and one necessary to the achievement of the goal of legal sufficiency, is to ensure that the chairman, administrator, or other head of the agency and his immediate subordinates are made well aware of the legal requirements relevant to any exercise of the agency's authority. This is an educational exercise designed to make certain that the agency's activities are conducted legally, free from challenge as being in violation of the enabling legislation, the Administrative Procedure Act, the Constitution, or any other relevant authority.
It was our experience that members of the Commission had had little experience in government and consequently had little appreciation of the legal requirements incumbent upon Commission action. So great were the pressures to act, so great was the public interest in decisions of the Commission, so necessary was it to keep, as much as possible, the activities of the Commission in public view, that it was only after things quieted down in early 1973 that the General Counsel's Office could, as a routine matter, review the press releases and policy statements and prepare the appropriate implementing regulations or regulatory changes with sufficient time to make such review and preparation meaningful and competent.
I would expect similar circumstances to prevail inevitably at the beginning of any future controls program and at times after the program was established. By educating the program's directors to the legal basics, however, appreciation can be developed for the importance of the legal office's role and the necessity that the actions of the program's operating units be legally sufficient at every turn.
THE PUBLIC'S RIGHT TO KNOW
Simultaneously with resolution of the basic regulatory problems, it became necessary for the legal office to assert its interest in the wording and timing of press releases issued by the Commission's public affairs staff. This was another educational process. Quite understandably, the public, especially the business community, sought information of any and all kinds about the policies, procedures, thoughts, personnel, budget and attitudes of the Commission and for a long time any news about the Commission warranted front-page coverage. The Commission, embarking on the nation's first experience with peacetime wage and price controls and understandably desirous of assuming the posture of an active, on-top-of-things agency with an aggressive and articulate Chairman, was interested in securing as much favorable publicity about its activities as possible. The Public Affairs Office was also interested in “putting out the word” to the business community and the public at large that the Commission meant business. Given all of these circumstances, it was not surprising that the number of press releases issued during the first few weeks of Phase II was quite high.
It developed during those early days that as soon as the Commission had made a decision in a certain area, a press release was issued giving a general but not very detailed description of the new policy. The General Counsel's Office was often not consulted in the wording of these releases. We were faced with a situation in which the legal office would be drafting detailed regulations implementing a Commission decision that had been announced to the public, often in summary fashion, days or even weeks before. Because the Commission's policy decisions were almost always of a very general nature, requiring major fleshing out by the regulation drafters, the ultimate published regulation was often quite different from the policy first announced by press release and carried in all major papers. We discovered that businessmen were making important decisions with respect to their compliance with the Commission's program on the basis of reports in the Wall Street Journal and other business publications which, in turn, were based on the press releases and on conversations with Commission representatives. This was a major problem.
The matter was never fully resolved, but early on we in the legal office made certain that press releases contained a statement to the effect that the complete, detailed policy would appear in regulatory form in a subsequent edition of the Federal Register and advising that action should be deferred or kept under consideration until study of the actual regulatory document was possible.
In an emergency program, such as Phase IV, where there is frequently a need to make and implement complex decisions before their implications can be fully ascertained, the problem here described is probably unsolvable. In an established agency, that normally does not have to operate under this kind of overriding urgency, the problem is generally avoided by the agency's following the provisions of section 553 of the Administrative Procedure Act for “proposed rule making”. Not just a press release about proposed rules, but the rules themselves, are then published in the Federal Register at least 30 days before they become effective. The public is invited to comment upon them in the interim. The agency then can, and commonly does, take any comments it receives into account in making amendments to the rules before the rules become effective. The General Counsel's Office of the Price Commission, however, not only usually had no time to solicit and obtain public comment, it had no time even to think out fully the implications of decisions before the decisions were announced in the form of press releases. The
decisions were announced in press releases before the rules that were to implement them had even been drafted. Under these circumstances, even when a member of the Office of General Counsel was consulted before a press release was released, his ability to insure that the release would not ultimately prove to be misleading was very limited.
THE PLACE OF THE GENERAL COUNSEL'S
There are two approaches to the proper place of the General Counsel's Office in the organization of a Federal agency. On the one hand, there are agencies in which the general counsel and his staff report directly to the Chairman of the agency, and on the other hand, there are agencies in which the general counsel and his staff work through and under the general direction of an executive director or administrator who in turn reports to the Chairman. The decision of the Chairman of the Price Commission to organize the Commission's staff so that all office directors reported to the Chairman through the Executive Director and his Deputy was troubling to senior members of the General Counsel's Office who believed the functions of the legal office were sufficiently distinct from other offices to warrant a more direct link between the General Counsel and the Chairman and Commission, In practice, however, the General Counsel had ready access to the Chairman at all times and was frequently asked to advise the Chairman directly and to complete tasks communicated directly to the General Counsel by the Chairman. The General Counsel attended and participated in all Commission meetings, often as the staff member upon whom the Commission relied most heavily in comprehending and resolving major policy issues.
Agency Lawyers Outside the General Counsel's Office
A related organizational problem that developed from the Commission's early reliance upon the recommendations of an outside management consulting organiza. tion, was the fact that there were many attorneys hired to fulfill legal duties who were not in the General Counsel's Office, were not hired by the General Counsel and were not under his supervision. This group included attorneys in the Office of Program Operations who reported to their respective division chiefs who in turn reported to the Director of the Office of Program Operations. These individuals were located in these operational offices because it was felt, wisely in my opinion, that the presence of an attorney well-versed in the regulatory framework and aware of the need for consistency of approach between offices of the Commission, would serve a beneficial purpose. While the General Counsel was given an opportunity to interview several of these individuals, the failure to place them under his supervision often proved to have been a serious error. Most of these attorneys had no prior experience in either government or private practice. Many of them came on board so late that they were not really familiar with the basic policies and regulations of the Commission. It took them a long time to catch up. Instead of fulfilling the functions for which they were hired, these individuals in most cases became case processors and analysts. While they were undoubtedly helpful to the success of the Office of Program Operations, they did not fulfill their assigned purpose in a legal sense and would only have done so had they been hired, recruited and under the supervision and control of the General Counsel. Under such circumstances, they could have been assigned as attorney-advisors to the operating divisions.
Other Activities of the General Counsel
In addition to fulfilling the various responsibilities traditional to all government legal offices, the Price Commission's General Counsel served as an informal adjudicator between the various offices of the Commission and between the Commission and business firms subject to its regulations. Thus, senior members of the legal office routinely advised operating division personnel with respect to the best of several approaches to the application of Commission regulations and procedures to a given firm under particular circumstances. Additionally, the General Counsel and his senior attorneys met frequently with representatives of business firms disputing decisions of the Office of Exceptions or the Office of Program Operations. In my view, the availability of the General Counsel to resolve certain of these difficulties helped to ensure the correctness of Commission decisions in hard cases and saved the Commission from potentially damaging litigation.
It is elementary that the ability of a legal office, like any other office, to fulfill its mission is ultimately dependent upon the competence and spirit of its personnel. Consequently, the most perplexing administrative problem facing a general counsel in any new Federal agency is the matter of the recruitment of professional and support personnel.
It is probable that any new agency, required to begin operations with little or no administrative lead-time, will, like the Commission, be staffed with a combination of detailees from other agencies and new recruits hired on an emergency indefinite basis without civil service standing. The Price Commission had no difficulty in securing the services of adequate numbers of detailees from other agencies. Many of these individuals were sent to the Commission involuntarily while others had volunteered for the new assignment. As I recall, the General Counsel's Office was assigned a total of 10 detailees from other departments and agencies during the course of its tenure, primarily during the first two months of its operation. Detailees were assigned to various offices within the Commission with the understanding that they could be sent back to their parent department or agency if their work were not considered adequate or appropriate for the Commission. Only three of the ten detailees in the General Counsel's Office were retained for full-time employment.
The legal office also was able to recruit a number of full-time emergency indefinite attorneys, most of whom had recently graduated from law school. Certain individuals in this group turned out to be among the most creative and hardest working attorneys in the office.
It is difficult to staff the legal office of a new agency, especially a temporary one. The time of the agency's inception may not coincide with the normal availability dates of recent law school graduates. Also, certain of the detailees willing to transfer from their positions appeared to be looking for a quick increase in grade and little else. Finally, many talented individuals, capable of making a real contribution in the legal office, were unwilling to join an agency destined to be phased out of existence on little or no notice.
On the support side, the office was staffed primarily with detailees who eventually became full-time Commission employees. Their work was probably about average for government service and, with a couple of exceptions, warrants no particular commendation.
One fact of life confronting any novice to government service is the extreme reluctance with which the Federal bureaucracy approaches the resolution of per