The Discretionary Function Exemption: Legislation and Case Law
Giannatasio, Nicholas A., Public Administration Quarterly
Public administrators are often left without a decision schematic in the execution of public policy. All decisions are not made with certitude; rather, discretionary decisions are frequently made in deciding the who, what, where, and how of politics. The Discretionary Function Exemption of the Federal Tort Claims Act offers immunity from prosecution to public administrators who exercise discretion within the scope of their employment. This paper will explore the political rationale of discretion and the protection of discretion by the legislatures and courts. Furthermore, it offers a perspective on the future of the Discretionary Function Exemption.
Decisions in the public sector are fraught with conflict between facts and values. Occasionally, we empirically observe decision schema that provides the decision maker a modicum of certitude or at least the impression of dealing with certainty. These schematic decisions, prescribed courses of action (Berkovitz v. United Slates 486 U.S. 531 ), are made with little or no discretionary power. Notwithstanding these non-discretionary decisions, most decision making in public administration is discretionary. It is not the nature of public policy makers to describe to the bureaucracy specifics on the execution of policy. Rather, the execution of public policy is often left to the discretion of administrators. What is the locus and focus of these discretionary decisions?
The locus of discretionary decisions range from the Fire Chief who determines that a fire is "under control," and therefore defers additional equipment at a fire-to the FBI Bureau Chief who removes a surveillance detail for fiscal considerations. In a less emergent sense we can recognize the school principal who decides to close the school gym on weekends to save operational funds-to the Family Services case Supervisor who assigns child welfare cases to an overburdened child welfare case worker.
The focus of discretionary decision making is on accountability and responsibility. Is there protection from legal liability for the Fire Chief who appears to be negligent when the burning building collapses? Can we hold the FBI Bureau Chief responsible for the drug deals that may happen in the former surveillance sight? When the foster care mother batters the child can we hold the case worker responsible for designating this foster home? In essence, are public managers protected when they make discretionary decisions, even those that appear-post facto-as negligent? Furthermore, if we can protect the use of discretion, how far does that protection extend?
This paper explores discretionary decision making and the protection of that decision praxis by the Federal Tort Claims Act (FTCA) protection and the concomitant Discretionary Function Exemption (DFE). Additionally, does the FTCA continue to provide adequate protection or have recent court interpretations weakened tort claims protection? Are there recent trends in tort claim decisions indemnifying the future of discretionary decisions or do public administrators lose discretionary freedom in the future?
DISCRETION AND PUBLIC ADMINISTRATION
Discretionary decision making as a function of public administration is well rooted in political and public administration literature. John Locke, in his Second Treatise of Government (1690: 159) is very emphatic on the executive's use of discretion:
Where the legislative and executive power are in distinct hands, as they are in all moderated monarchies and well-framed governments, there the good of society requires that several things should be left to the discretion of him that has the executive power.
Locke perceived that legislatures could not "foresee and provide all laws that may be useful to the community" (1690: 159). This argument is antithetical to Theodore Lowi's End of Liberalism (1969) where he counters that governmental agencies, influenced by interest groups, have taken on too much discretionary power in the administration of public policy. …