Entry submitted by: A Boyle

Claimed: 9/23/07

Initial post completed:



Definition
Administrative Discretion
- The exercise of professional expertise and judgment, as opposed to strict adherence to regulations or and statutes, in making a decision or performing official acts or duties. A discretionary action is informal and, therefore, unprotected by the safeguards inherent in formal procedure. A public official, for example, has administrative discretion when he or she has the freedom to make a choice among potential courses of action. ABUSE OF DISCRETION is the failure to exercise reasonable judgment or discretion. It might provide a CAUSE OF ACTION for an unconstitutional invasion of rights protected by the DUE PROCESS CLAUSE of the Constitution. " West's Encyclopedia of American Law. 2nd Ed. Ed. Jeffrey Lehman and Shirelle Phelps. Gale Group, Inc., 2005. eNotes.com. 2006. 27 Sep, 2007 <http://www.enotes.com/wests-law-encyclopedia/

History
The general history of administrative discretion can be found in Article I of the Constitution which states "all legislative Powers shall be vested in a Congress of the United States." Therefore, it is Congress (House and Senate) that has the power and is the policy making body of the government. Before the New Deal Congress could not give power to an entity or a non-elected body that could make policy. This was known as the the non-delelation doctrine. These agencies were allowed to enforce laws but not make them.


In the New Deal, Congress created a number of administrative agencies to regulate and set policy in their areas of jurisdiction. In order to maximize the benefits of expertise and regulatory flexibility, Congress generally created administrative agencies with the authority to regulate a given economic activity. Administrative Discretion, Delegation of." Encyclopedia of American History. Answers Corporation, 2006. Answers.com 30 Sep. 2007. http://www.answers.com/topic/administrative-discretion-delegation-of

In general, wide discretionary power is granted to public administrators, this discretion is to be guided by reasonableness, fairness and should reflect the belief of the agency. It should also only be used in the execution of laws set out by a legislative act.

There is a potential for abuse of administrative discretion by public administrators. This is well defined as noted in the West's Encyclopedia of America Law, "A failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedents and settled judicial custom. Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge." Abuse of Discretion." West's Encyclopedia of American Law. The Gale Group, Inc, 1998. Answers.com 30 Sep. 2007. http://www.answers.com/topic/abuse-of-discretion

Public managers are obligated to administer the law and distinguish between rules, laws and policies using terms such as creativity, leadership and decisionmaking in a field that is complicated by strict organizational structures and political values. Therefore, it is critical that public administrators demonstrate their leadership by using responsible administrative discretion.
Recent studies of the theory of representative bureaucracy have focused on active representation, whereby administrators in public organizations work to advance the interests of particular groups, achieving policy outcomes that directly address the needs of those groups. The concept of administrative discretion is central to these studies, as an administrator must have the discretion to produce results that reflect the values and beliefs of these groups. While the presence of discretion is often implied in these studies, few have examined it explicitly. The results strongly support the conclusion that administrators who perceive themselves as possessing significant discretion and who assume the role of minority representative in their agencies are more likely to enact policy outcomes that favor minority interests. Jessica E. Sowa, Sally Coleman Selden (2003)
Administrative Discretion and Active Representation: An Expansion of the Theory of Representative Bureaucracy
Public Administration Review 63 (6), 700–710.