Academic journal article Public Administration Quarterly

Assessing Contractor Accountability in the Supreme Court

Academic journal article Public Administration Quarterly

Assessing Contractor Accountability in the Supreme Court

Article excerpt

In 1993, John E. Malesko was assigned to the fifth floor of a halfway house operated by Correctional Services Corporation (CSA), a private corporation under contract with the Bureau of Prisons. Malesko was exempted from the halfway house's policy requiring inmates living below the sixth floor to use the stairs rather than the elevator due to a known heart condition. However, when a CSA employee refused to let Malesko use the elevator, he climbed the stairs and suffered a heart attack. Malesko filed suit against CSA for its negligence in refusing to let him use the elevator, citing Bivens v. Six Unknown Fed. Narcotic Agents, 403 U.S. 388 (1971), a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court ruled against Malesko, reasoning that the threat of suit against an individual's employer was not the kind of deterrence contemplated by Bivens (Correctional Services Corp. v. Malesko, 534 U.S. 61, 2001).

THE NEW FACE OF GOVERNMENT IS THE MARKETPLACE

The case of Malesko above illuminates a growing dilemma in the wake of New Public Management--a model of governance that fosters public-private arrangements for the delivery of government services to citizens. Contracting out, a form of privatization in which a government agency enters into a business arrangement with a private entity to perform certain services on the government's behalf, has become one of the most prevalent mechanisms of alternative service delivery in the United States (Amirkhanyan, Kim, & Lambright, 2007; Kettl, 2005; Milward & Provan, 2001). Indeed, as of 2002 more than 80 percent of states and local governments relied upon some form of privatization, and even the New York Times weighed in on the debate surrounding the contracting boom, saying: "without a public debate or formal policy decision, contractors have become a virtual fourth branch of government" (Greene, 2002; Shane & Nixon, Feb. 4, 2007, online). New Public Management (NPM), part of a "reinventing government" movement that emerged during the 1980s to encourage government to adopt private sector principles and practices to enhance their efficiency and effectiveness, has driven this trend.

Yet, with the focus on NPM, as illustrated by the Malesko case, the dimension of governance once associated with public sector accountability has changed (Gilmour & Jensen, 1998; Choi, Cho, Wright, & Brudney, 2005; Girth, 2012; Hansen, 2003; Johnston & Romzek, 1999, 2005; Kettl, 1993; Leazes, 1997; Milward & Provan, 2001). This article expands the contractor accountability literature by empirically considering whether the increasing use of government contractors has had an effect on the legal accountability of these private entities as determined by the United States Supreme Court over time. We begin with a discussion of public sector accountability, its key forms within the field of public administration, and why the conception of legal accountability is the most appropriate way to examine how the Courts have held private vendors accountable for legal violations or other misconduct unrelated to contract performance. We also include a section on the origins and theoretical basis of New Public Management, including how the contracting out boom has complicated accountability with regard to the transfer of state power to private providers. We conclude with a statistical analysis of more than 60 years of Supreme Court decisions involving contractor litigants. The results suggest the Court's propensity over time has been more favorable to private corporations.

PUBLIC SECTOR ACCOUNTABILITY

Accountability--the answerability for one's actions or behavior--has long been recognized as a dominant public service value. …

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