Remedying Agency Misconduct

by Alex Spitzer

The Minnesota Pollution Control Agency (MPCA) secretly took part in an illegitimate and illegal procedure when providing a national pollution discharge elimination system (NPDES) permit to PolyMet.[1]  PolyMet is a foreign company owned by Switzerland’s mining juggernaut Glencore. Fortunately, brave EPA employees blew the whistle and uncovered that the MPCA illegally withheld written comments made by EPA professional staff. These comments expressed major concerns that the permit MPCA planned to issue to PolyMet did not comply with the Clean Water Act.[2] The MPCA clearly and intentionally misrepresented and concealed material facts during the permitting process. The concealment warranted a transfer to Minnesota District Court to review the MPCA’s permitting process and decision.[3] But there has been no indication that the MPCA’s sinister actions will cause the District Court to review and remedy the situation any differently than a typical Administrative Procedure Act (APA) violation. The court, however, needs to recognize the rarity and severity of MPCA’s corrupt actions and address them accordingly.

Government agencies commonly engage in misconduct of some sort, which is why Congress created the APA. The APA’s purpose is to “improve the administration of justice by prescribing fair administrative procedure.”[4] No restraint is more important to upholding justice than the restraint of judicial review. Judicial review through the APA advances justice by providing the only avenue to challenge an agency action, finding, or conclusion.   Judicial review enables the courts to review and compel agency action when the court finds a previous agency action improper. The APA lists six categories of agency actions that qualify as a type of misconduct that would allow the courts to intervene through judicial review.[5]

All agency misconduct damages society but not to the same extent. Surprisingly, the APA does not create any guidelines for how to evaluate the severity of the misconduct that it lists. This means there are no procedures in place to ensure that courts respond to misconduct with the appropriate force. However, logically, it makes sense the more severe the misconduct is, the stronger the court’s response must be.  Put simply, bigger problems require bigger solutions; the worse the misconduct is, the more harm it does to society. Therefore, a key aspect of “bigger solutions” to aggressive misconduct is taking proper steps to ensure the misconduct is not repeated.

Now, the big question becomes how to measure the degree of agency misconduct? First, we have to understand what agency misconduct is. At its most basic understanding, agency misconduct is a form of corruption. Corruption is defined as “a departure from the original or from what is pure or correct.”[6] Thus, when an agency initially fails to follow the proper procedures, that can be considered corruption. Corruption and intentional agency misconduct are two sides of the same coin. Therefore, we can use similar metrics to measure the degree of agency misconduct as we would use to measure the degree of corruption.

Fortunately, Zephyr Teachout has already created a way to measure corruption. Corruption is best understood by its context and intent.[7] That is why attitude is a requisite for corruption because it is impossible to separate corruption from a moral failure.[8] Therefore, each potential act of corruption should be examined on an individual basis, like misconduct. Typically, corruption is recognized based on five concepts: quid-pro-quo, inequality, drowned voices, dispirited public, and lack of integrity.[9] Therefore, it makes sense to measure the “corruptness” of an agency’s misconduct by evaluating how intensely it satisfies one or more these concepts. We can use these elements to measure intentional agency misconduct because intentionally agency misconduct impacts society in the same way.

Having said all that, the Supreme Court has created a specific term for acts that should automatically qualify as a severe type of corrupt agency misconduct; that term is “affirmative misconduct.” Affirmative misconduct is one way to describe egregiously wrongful government conduct.[10] Affirmative misconduct is intentionally misrepresenting or concealing  material facts by the government (sound familiar?).[11] Mere inadvertence, mistake, imperfect conduct, delay, inaction, or even failing to follow agency guidelines cannot qualify as affirmative misconduct.[12] Additionally, neither an innocent or negligent misrepresentation will be  considered affirmative misconduct.[13] Not even unprofessional or misleading conduct can qualify as affirmative misconduct.[14] Unlike regular misconduct, affirmative misconduct establishes that something larger than a casual mistake occurred.

Intentionally engaging in wrongful conduct as a government official is a severe abuse of power and uncovering affirmative misconduct should automatically trigger the process for remedying agency corruption. It is difficult establishing a proper process for handling agency corruption to ensure it doesn’t happen again. The most pragmatic way to resolve this issue is to handle the problem the best we can every time it comes up and begin to develop effective and consistent remedies. This process would create a kind of law that was common for dealing with agency corruption. A sort of “common law,” if you will.

Fortunately, the MPCA situation mentioned earlier is a perfect place to begin on this journey. The courts should consider the MPCA’s misconduct as affirmative misconduct and automatically consider it as type two misconduct: corrupt. The courts must take adequate steps to restore agency credibility, to minimize the harm to society, and to ensure the corrupt act will not happen again. Therefore, the next step is to read my article on how the courts should begin laying the foundation for how to manage agency corruption.