Confusing Right to be Heard vs. Right to Prevail – Advice Giving vs Decision Making

‘Here’s a question we recently received:

“I [am] the new director of a program that has extensive public participation. What I am finding is that the history and expectation is that some public groups have way too much power over the process. In the last brown bag, I was very much in agreement with the point you made about some groups confusing the right to be heard with the right to prevail. It seems the stage is set in my situation with rather high and difficult expectations and I am wondering how to ‘fix’ this.” – T.K. from NM

Unfortunately, this is a commonplace problem for public-sector professionals; so T.K., you are in good company. At essence to the situation is the problem that members of the public (and probably even some staff) are confusing the roles of Advice-Giving and Decision-Making.

Can We Fix This?

Absolutely. The first step to take is that the MOMENT you realize that the roles of Advice-Giving and Decision-Making are being confused — YOU need to jump on it. Further, you must exploit every opportunity to correct the confusion.

How to Correct the Confusion

Look for opportunities (informal, formal, related to these stakeholders who are confused about their right to be heard versus right to prevail, as well as those that are unrelated) to get your PAIs (Potentially Affected Interests) to understand:

  1. Your MISSION (your agency or organization’s Raison d’Etre – Reason for Being), which includes:
    • WHY your organization was ever created (give the history, of WHEN and by WHOM), and what problems/opportunities it was expected to address
  2. HOW your organization works to accomplish that Mission. In other words, the Problem-Solving and Decision-Making process you and your staff use. Often what the public does not understand is:
    • RIGOR (the thoroughness and objectivity) of the process
    • the FAIRNESS of the process
    • the inherent challenges and resource limitations
    • and your collective continuing effort to be both RESPONSIVE to the public AND, at the same time, RESPONSIBLE to the mission you’ve been given.
  3. You need to emphasize:
    • that the INPUT you need is THAT input that allows you to do your job better… that assists you in accomplishing your Mission.
    • That it would be IRRESPONSIBLE of you to give-in to any input that diverts from your mission. (It is worth mentioning that it IS understandable that some stakeholders will try to get you to do precisely that… After all, they’re not responsible for the mission, on you and your staff are.)

These three steps form the basic Recipe for “Developing Your Legitimacy.”

What Shifts for Stakeholders?

When PAIs/stakeholders understand – and own up to the fact – that YOU have a mission, a RESPONSIBILITY… it’s only then that they are ready to accept that they may have the RIGHT to be HEARD by you and the organization, but that do NOT have the right to PREVAIL.

Some Additional Suggestions

Go out of your way to BLAME YOURSELF (rather than the PAIs) for somehow having created this misunderstanding of roles. Not only is this good diplomacy, it’s also the truth. It IS YOUR FAULT! Even if you are new on the scene, blame yourself and the agency at large for managing to contribute to this confusion.

Why are We at Fault for this Confusion?

Because people almost always confuse Advice-Giving and Decision-Making. . . . UNLESS you work tirelessly to prevent it. Even then, when you have prevented it, you must work to maintain a distinct understanding of the differences. Don’t let people get sucked back into confusion. This is something that requires maintenance on YOUR part.

Although PREVENTING confusion is a lot easier than straightening out confusion after the fact, it IS perfectly doable. Don’t throw up your hands, you CAN get people to understand they have the right to be heard, but not to prevail.

Thank you for bringing this problem up for discussion, and let us know if you (or anyone else) has follow-up questions, problems, or suggestions. We wish you the best of luck on straightening out this confusion about the right to be heard vs. right to prevail. Do keep us posted on how this works for you!

Becoming a Student of American Values for Developing Informed Consent

As often is the case following one of our 90-minute Brownbag teleconferences, additional points we could have discussed come to mind. Right after the January 2011 session which covered the topic of “The Tactic of Focusing on Higher Values… When Your Proposal is Really Bad News for Some of Your Stakeholders,” I sat down with a cup of coffee to get caught up on my stack of newspapers.

Because the Brownbag was still very much on my mind, three little articles jumped out at me as examples of how we — as a society — explore, debate, and eventually settle on the finer points of what is “fair,” and what is “unfair” . . . What “rights” and “limitations of rights” apply in certain specific situations.

Case #1

In the article “Pay Sale Rewards Good Looks” Amelia Rayno reported that researchers found that “thin women are paid significantly more than their average-size counterparts” (Monterey County Herald, January 11, 2011). The article went on to note that “skinnier-than-average men, on the other hand, cash smaller paychecks than their average-weight peers.” According to Rayno’s report, although these pay differences are unintentional, they nevertheless bear significant impacts on individuals: Thinner women make — on average — $16,000 more than their less-thin counterparts, while thin men earn on average $8,000 less than their stouter colleagues.

What Does This Have to Do with Me and My Work???

Perhaps you’re asking yourself “what’s the reason for the research that led to these findings?” And” why did journalist Rayno write an article about it?” More pointedly, “what does this have to do with my work as a public-sector professional or even with the January 2011 Brownbag session on legitimate projects that have (unintended) and unavoidable negative impacts for some stakeholders…?”

Glad you asked because while it is obvious to me, you might dismiss it without even a modicum of interest. But there is a lesson within it that is worthy of your attention…

Although it is never directly mentioned in the article, the entire point is that it calls into question our feelings of “fairness.” Americans, — that includes you, me, ALL of us — have the need to “be fair.” When we catch ourselves NOT being fair, our behavior violates our values, which — in turn — bothers us. Even though the article delineates the likely reasons why this discrimination happens, you can’t read it without thinking what the article never actually says “This just isn’t fair.”

Case #2

Another article that caught my eye was in the Wall Street Journal “Judge Rules that NY City Can Release Teacher Ratings” from January 10, 2011. According to the article, a judge ruled that the Department of Education in New York City must release the ratings and names of some 12,000 public school teachers. (How well — or poorly — students perform on standardized tests determines an individual teacher’s rating.) Part of the justice’s basis for the decision and a rejection of a petition by the United Federation of Teachers to keep the names private was that by releasing the names along with the ratings, “would not be arbitrary or capricious under the law.” A teachers’ union lawyer argued that “releasing the data would unfairly subject teacher to possible ridicule.”

What is “Fair?” What is a “Right?”

You see, when we can’t settle what’s “fair,” or what defines a “right” (i.e. higher level of values I discussed in this Brownbag — the meta-values), and what the limitations to those rights (i.e. meta-meta-values) then we turn to a court to settle the issue. That’s what has happened here. . .

While this judicial ruling probably DOES settle this particular “fairness-values” issue, courts don’t always have the last word. When the public feels that the court is too far removed from its interpretation and application of society’s values, the public — through its elected representatives — changes the law. In other words, the public usually has the last word on values-related issues. In fact, the next case I bring to your attention, makes reference to just such an instance. . .

Case #3

Following the recent attempted assassination of Arizona Rep. Gabrielle Giffords (where she and 13 others were seriously wounded, and another six were killed), was an article focusing on the alleged shooter’s likely “insanity” defense. In the Monterey County Herald piece dated January 11, 2011, reporter Mark Sherman’s “Insanity Defense Difficult in Tucson Case” lays out the history of the insanity defense, and how a previous case changed the standards and outcomes of such a defense.

Here are the most values-pertinent parts of the article:

  • “In an earlier time, the emerging portrait of a deeply troubled man might have given Jared Loughner’s lawyers the basis of an insanity defense. But John Hinckley’s successful insanity claim after shooting President Ronald Reagan led Congress to raise the bar, making the task harder.”
  • “The Justice Department has not said wither it will seek the death penalty against Loughner. . . But federal prosecutors already are moving forward with charges, and veteran lawyers anticipate they will ask for him to be executed.”
  • “Yet comments from friends and former classmates bolstered by Loughner’s on Internet postings also have painted a picture of a social outcast with almost indecipherable beliefs steeped in mistrust and paranoia.”
  • “On Monday, Loughner made a brief appearance in court, where he acknowledged the charges against him and was ordered held without bail.”
  • “Public outrage over the jury’s verdict in Hinckley’s trial — not guilty by reason of insanity — prompted Congress to make it much more difficult to establish that claim in federal criminal trials.
  • According to Harvard Law Professor Alan Dershowitz, prior to the Hinckley case Loughner’s “would be a clear case of insanity because the pre-meditation would not be seen as undercutting insanity, it would be part of demonstrating insanity.” However, under the current rules, which were created because of the Hinckley case Loughner’s lawyers will have a “very uphill battle.”
  • “‘Arizona also has modified the insanity defense so that a defendant in a state trial no longer can be found not guilty by reason of insanity. Instead, the jury can deliver a verdict of guilty but insane,’ said Pima County Attorney Barbara LaWall. ‘So the person is held at a state mental hospital, and if sanity somehow comes back, he’s transferred to prison, not just let go,’ LaWall said.”
  • “The case against Loughner is at an early stage, as is his defense.”
  • “Among arguments that could be made is that, if not insane, Loughner was ‘mentally impaired’. That argument concedes that a defendant bears some responsibility for what he has done, but lacks the guilt necessary to face the death penalty. The compromised state of mind sometimes is referred to as ‘diminished capacity.'”
  • “Dershowitz predicted that federal officials will seek death for Loughner no matter what his lawyers argue. ‘The prosecution will seek the maximum punishment in a case like this,’ he said.”
  • “A veteran of death cases, San Diego attorney Judy Clarke, led the team that represented Loughner at his court appearance Monday. Clarke succeeded in negotiating a guilty plea and a life sentence for the Unabomber, Theodore Kaczynski. She also helped spare the life of serial bomber Eric Rudolph and Susan Smith, convicted of drowning her little boys.”

Understanding Meta-Values

Note: We — as a society — feel it would not be fair to subject an insane murderer to the death penalty, but we DO consider it fair to a mentally stable person. But when John Hinckley was found “not guilty by reason of insanity,” people felt that was going too far. They corrected it by making it more difficult to use the insanity defense, and Arizona came up with a very practical correction. Since the concern with Hinckley was that, if and when he could convince mental health professionals that he no longer was insane, he would be free, Arizona got rid of the “not guilty by reason of insanity” finding and replaced it with the “guilty, but insane” finding.

This responds to our society’s sense that it isn’t fair to treat an accused killer who is mentally impaired as we would an accused person with full mental capacity. And yet, they managed to fix the problem of murderers who might claim insanity to take advantage of our society’s sense of “fairness.”

By the way, what kind of value — in the Bleiker Hierarchy of Values (you have the diagram of what I call the “squashed wedding cake” in the handouts from the January 2011 Brownbag session) — is this value? This value that says “While it is OK to execute a murderer, it is not OK if he/she is mentally impaired”. . . .?

Deciphering Between Higher and Object-Related Values

Let’s explore the levels of values . . .

  • “Life” . . . is actually an Object-Related value (as I mentioned in relation to one person’s question during the Brownbag session)
  • “The Right to Life” . . . is a Meta-Value (i.e. a value about a value) — because it is ABOUT another value: Life.
  • “The Death Penalty” . . . is a Meta-Meta-Value (i.e. a value about a meta-value) — because it is about a Limitation to a Right.
  • “The Death Penalty is ruled out for mentally impaired killers” . . . is a Meta-Meta-Meta-Value — because it is a Limitation on the Meta-Meta-Value of the Death Penalty being OK.

Become a Student of American Values

Well, it’s this kind of stuff that I delve into as a “Student of American Values,” and strongly encourage you to do the same in order to better understand your PAIs, and even yourself.

Next time you read your own newspaper, find instances on your own that offer insight into what we as a society debate when there is a collision of values . . . Because that’s when it gets interesting, when — for example — we DO want to dish out severe punishment to a murderer, but we also want to be “fair.” We are then, in such an instance, forced to figure out just what we MEAN by “fair.”

There are many reasons you need to become a “Student of American Values.” One major reason is that if you insist on earning a living by working in the public-sector; you BETTER understand your public’s values . . . ESPECIALLY what I call their “higher values.” And, the reason you really need to become a lifelong “Student-of-Values” is that understanding Americans’ Higher Values is a real challenge. They are MUCH more complicated than you’d think. That’s why I feel obligated to help you gain insights into them as best I can. . .