10-5 Working with FACA in Designing a Process

Many people involved with collaborative processes “discover” FACA when the group includes Federal agencies.  It often is raised as a concern but at times can feel like a block to group formation.  What is FACA and what is it all about?  The Federal Advisory Committee Act (FACA) was created with the intent of making sure that when federal decisions makers receive advice on decisions from the public all interests have the opportunity to be included.  For people interested in facilitating or managing collaborative processes or participating in such a process, the idea of inclusion seems to make sense.  Why then does FACA seem to be a constraint?   The answer is that it is a procedural law that requires compliance.

There are a number of strategies for approaching FACA.  The first question is if it applies.  This should be considered as part of the assessment phase of the collaborative process.  If federal agencies or their representatives are likely to be involved in the process you are considering, then explore the implications of FACA.  We have included a flow chart and some more specific information at links to pages in the Introduction to Collaborative Governance workbook.  The flow diagram will help you with you assess the implications of FACA.

If it is clear that FACA does not apply, the process should be designed according to the best principles of collaborative processes, the assessment and the needs of the participants.

If it is not clear, and there is a question, obviously each Federal agency must make a determination with appropriate legal advice.  Generally, if the agency is not directly establishing or controlling the group, it can participate without having the group considered its advisory group.

If it is determined that this particular collaboration can only be done as a FACA chartered group, the agency will have to work through the processes for chartering or identify an existing chartered committee.  The actual process design can still be established pursuant to principles of collaborative governance, and the process can be conducted pursuant to the steps of a collaborative agreement seeking process.

Comments or experiences you’ve had working with FACA?

3-1 F- When and Why to Collaborate

Concept:  When and Why to Collaborate

We all struggle with the question of when to use collaborative approaches.  We recognize that not all problems or contexts are ripe for this approach.  A number of problem settings do call out for collaboration.  As we pointed out previously, in a power shared world and in our world of environmental and natural resource problems, it is not surprising that collaborative governance approaches are increasingly appropriate.  Why?  Indeed, why work with others?

First of all, we find ourselves working with others in a variety of settings that reflect power sharing.  We may not be in charge, or not fully in charge.   Here are some conditions requiring collaboration:

• When policy issues have high degrees of uncertainty, ambiguity or indeterminacy
• When authority is overlapping
• When solutions require joint action
• When you require their information
• Or their concurrence
• Or their resources

A Final Thought: What does this work look like and how does it differ from managing when we are in charge?  We, and others (Gordon and Berry, Environmental Leadership equals Essential Leadership, 2006), argue that collaborative governance is different in that it requires leading as well as managing.

Here we mean that leaders attend to the “social work as well as task work” involved in problem solving.  Leaders recognize that different people bring into a problem setting different interests and values.  Leaders recognize that leadership is a relational property among leaders and followers.   While leaders have a predisposition for action, they also are learners and seek to learn through engagement.  While this course recognizes different roles in collaborative governance such as the role of a third party or neutral facilitator, we know that leading and participating in collaborative processes is enhanced by an understanding of collaborative governance.   In the power shared world that is our “new normal”. Where power sharing is designed into the context in which we work,  collaborative governance offers an approach to knit back together our ability to address the challenges we face.

In this section we have tried to provide a background and the large context for the work of collaborative governance, particularly in the American experiment of democratic governance.

Discussion: Post a problem you think requires working with others because of one or more of these reasons.  This will help you integrate some of these abstract concepts, and all of us to learn more about the problems and contexts you face in your work.

Are there any questions or comments?

3-1 E The Nature of Today’s Environmental & Natural Resource Problems

Here is an argument about the nature of the challenges we face today in the public sphere.  Professor Marcus Ingle, a colleague working in sustainability in international settings, likes to call this the “new normal”.  The argument is that today’s challenges are “wicked”; a term of art developed by policy analysts in the 1970’s and recently revived in the sustainability literature.  We highlight natural resource problems here, but we can explore how broadly applicable the idea is in your world!

Concept: The Nature of Today’s Environmental and Natural Resource Problems

Wicked Problems

 For more background on the concept of “Wicked Problems” check out this website and Tackling Wicked Problems: A Public Policy Perspective. 

Here are a couple of sets of characteristics we’ve developed for ENR challenges. 

If you are interested, try developing a general list for the challenges you face.  Make the list not for just one challenge, but for the kinds of public challenges you face in health care, education or housing, for instance.

3-1 D Procedural & Civic Republic Tradition – OPTIONAL

Note: This is an optional post for students.

Concept: Procedural and Civic Republic Traditions

Here is a reference providing extra insight on how people relate to governments in solving problems.  It is a story set in Portland, Oregon and it underscores how important it is to work with people.

For those who want to explore this more, check out the figure that compares these two traditions.  Think about how you would feel if you were the citizen in each of these models.  What are the virtues and vices of each approach?

Review Transforming Customers into Citizens: Some Preliminary Lessons from the Field (Morgan & Vizzini, PAR 1999)

3-1 C- American Political Economy

As suggested in the introduction to this section the American political economy is complex, and complex by design.  As we have seen, the very nature of limited government ensures the importance of civil society.  However, the founders were also clearly spoke to the importance of a growing private sector: a commercial sector of actors other than individuals or households.  Over time, the non-profit sector developed out of the formalization of civic associations, churches and other mutually benefiting societies.  Recently specialized single purpose governments have become important as well.

This is what we are going to explore in this blog post.  Note the inclusion of the figure that underscores that tribal governments and organizations are also an important part of the institutional landscape in which we work.

Concept: American Political Economy

Number of Governments in the US Exercise

Instructions:  Print and mark the PDF for this activity, or take notes on a piece of paper. Make your best estimate for the number of governments in each category as reported by the US Census Bureau.  Feel free to talk with others inside or outside of your groups, but please refrain from searching on line, or referencing a text.

Leave a reply to this post with your results.

3-1 B- Civil Society

Here is another concept that can help set the stage for the work we do in collaborative governance. Consider this take away idea.  Civic capacity within communities in which we work will make a difference in how we do our work.  Communities higher in civic capacity will have high relational competency and so be “ahead of the curve” in their ability to engage in collaborative processes.  An interesting question for us  to think about is how we can add to “social capital” stocks rather than deplete them during the work we do.  Take away: Communities matter!

Deep Structure of American Society

Concept: Civil Society

When we have been talking about a mixed political economy so far, we have focused on the market place and the political arena as the locus of action.  However, in American politics it is important to remember that Civil Society is an important consideration as well.  While we often think of business and governments as dominating policy making and problem solving, civil society is critical to the success of collaborative problem solving.   For some theorists civil society is equated to voluntary, non-government organizations (NGO’s), or nonprofit organizations; we like to consider civil society as Tocqueville did in explaining the success of the American experiment in government.  In the early 1800’s he described a propensity to “associate” at the community level.  This notion is critical to strategies of collaborative governance, as it is the communities in which we live and work that give legitimacy to our collective actions and provide the anchor for the solutions we develop together.  It is true that an increasing amount of civil society space is occupied by formal organizations, but we know that the fabric of communities varies in its civic capacity.

Civic capacity relates to community resilience or the ability to be self-authoring in the face of change.  While not essential to moving forward with the course, if you would like to explore the idea of civic capacity – resilience in communities and civil society – here are some links and references.

Linked in for Review Civic Capacity: Theory, Research and Practice (Shinn, 1999)

References for topical books for those going above and beyond!

• Sirianni, Carmen. Investing in Democracy: Engaging Citizens in Collaborative Governance.  (Brookings Press 2009)
• Dent, J.  2008. “Civic Capacity and Community Response to Government Action: The ESA and State Water Law in the Methow and Walla Walla Basins in the Pacific Northwest.”  International Journal of Public Administration, 31:252-276.

3-1 A- Federalism

Here’s another concept important to the challenges of working in a power shared world.

Concept: Federalism

Federalism is the concept that power is divided vertically among levels of government.  It can be expanded to include the horizontal division of power.  We then typically talk about it as intergovernmental relations (IGR).   In this sense the American constitution can be seen as an “and” document.  The Founders had a choice of a strong federal government or strong states.  Remember that the Article of Confederation era of American government chose strong states as a principle for organizing.  The constitutional convention had as a prime purpose strengthening the union among states.   In that process, the framers chose to enshrine both a strong federal government and strong states.

In fact the 10^th amendment famously reserves to the states those powers not expressly given to the federal government.  The challenge is that many problems that at one time seemed well located at one level of government or another (roads at local levels, fish and wildlife at state levels, international trade at the federal level) no longer seem to have such clear cut boundaries.  We have states and large cities engaged in international trade activities.  Roads have multiple centers of activity, and fish and wildlife now have both strong state and strong federal policy and administrative presences.

We can think about the relationships among governments as being well layered (affectionately described as a layer cake model) or much less clearly articulated (marble cake).  For those working in ENR, it then creates the possibility that professionals with the same training at one level of government, in one agency, may find themselves implementing policy with modestly or strikingly different goals.  Obviously for many aspects of such work, the impacts are interwoven on the ground.  Federalism is a particular kind of power sharing, but one that still calls for collaborative competency.

Authority structure

Another way to think about federalism can help us understand the structure of authority among governments and the agencies of those governments in the setting in which we do work.  In education policy for example, special districts at the local level have had primary responsibility for policy and implementation.  Over the last fifty years state and federal governments have gotten more involved in policy making and funding.  This has obscured the structure of authority and ensures that many parties will need to be involved to solve problems like this when authority overlaps.   In general in forest policy, federal policy applies to federal land and state policy applies to non-federal lands.   Here, authority is not overlapping, but because many problems address processes that don’t stop at federal property lines, i.e. fires, watershed, and recreation, we find we have to coordinate activities across these zones of authority.

Finally, in some cases such as in implementing the Clean Air Act, states actually implement federal policy through State Implementation Plans.  Here, authority is hierarchical.  Even where authority is clearly structured vertically, we often find a need to work together because the issues on the ground in one place are not the same as issues on another.  To balance overarching policy goals with local interests we find the need to work together.  Understanding the authority structure among public entities doesn’t resolve problems, but can help us understand why we find ourselves in such complex power sharing circumstances.

Paradox of Power:

Another challenge we have with the context in which we solve public problems is that power has two faces.  One reason we find ourselves reaching for collaborative approaches is that when power is divided we often find the need to knit it back together to accomplish the goals we share or to solve a common problem.

This can be seen as a paradox of power.  Power has many faces.  Two at work here are the faces of power over and the power to do work.  We typically think of power as being able to get an entity to do what they might not do otherwise – power over.  We lodge a particular type of this power in governments where the state can compel behavior of citizens.  Driver’s licenses, building permit enforcement, limits on recreational access are all examples of power over.  Similarly, the plenary power of the federal government is an example of federal power over states.

Power to do work is a reminder that all organizations, including public organizations, as well as individuals can contribute real resources, real competency, real authority to accomplishing work outcomes.  Volunteers planting riparian areas are an example of power to do work.  Similarly the authority and resources of the U.S. Army Corps of Engineers to restore stream channels is an example of the power to do work.  You can see that in both faces to solve public problems, especially ENR problems at the landscape level, we would need to work collaboratively.

3-1 Leading in a Power Shared World

In this next section of the materials (3-1 a-f) we’ll explore the larger context in which we solve public problems.  While we often experience the circumstance described below as the “way things are” we seldom take time to think about why they are that way.  The argument here is that the tensions we find when we work to solve public problems are designed in to our political economy. And in the case of the American experiment in democratic governance, designed into the very framework of our political institutions.  When we add to this the nature of the policy problems we work on, it is no wonder we need competency in collaboration

Introduction:  Leading in a Power Shared World

Ours is a Power Shared World. The arrangements for governance in the American political economy intentionally divide power among levels of governments, among types of governments, and across the sectors of the political economy.   By design, values are arbitrated in both the market place and in the political arena.   As a philosophically liberal state, our struggle in the constitutional era has been to balance the need for order with freedom.   This is but one tension in American political philosophy.

Here are others.  We reify individualism, but also embrace community.  (See Habits of the Heart by Bellah et al for more on this theme, or Community and the Politics of Place by Kemmis).  Other tensions are apparent in our preference for representative government, whereby we elect representatives, and our desire for direct democracy (town meeting forms, open government laws, petition by citizen initiative, etc.)

• Individualism vs. Community
• Elected Representatives vs. Direct Democracy
• Private vs. Public
• Federal Sovergnity vs. 10^th Ammendment

Discuss your own list of the kinds of tensions inherent in American government by leaving  a reply at the end of this post.

Here is the take away: There is little doubt these tensions create a “power shared world.”    For those of us interested in solving real world problems, especially in environmental and natural resource (ENR) policy arenas, the challenges are even larger. Many agencies and organizations have interests in virtually any issue we address from transportation planning to endangered species recovery, or from accessing timber for harvest to planning for wetlands restoration.  These two ideas – constitutionally limited government and divided power – along with the nature of public problems, ensure that we face a power shared world.  We often talk about problem solving in these contacts as “many hands problems.”  These types of problems and this context for problem solving are ripe for collaborative governance approaches. While you don’t need to go much deeper for this course, if you’d like to explore the way power sharing is designed into the context in which we work to solve public problems, we recommend the book Foundations of Public Service by Morgan, Green, Shinn and Robinson (M.E. Sharpe, 2008).