Unshielding the Bureaucrats

Maria Sanchez and her neighbors in adjoining apartments were concerned about an abandoned build­ing next door at 2639 W. Haddon Ave., in Chicago.

It was strewn with broken glass, foundations were badly cracked, floors buckled, exterior doors missing and rats every­where.

THE OWNER of this sag­ging structure was the U.S. Department of Housing and Urban Development. One of many such urban dwellings saddled on the government by corporate beneficiaries of a bankrupt federal hous­ing program, this building was a firetrap that actually caught fire.

The flames also destroy­ed the apartment building where Maria Sanchez and her neighbors lived. They filed a lawsuit for damages against HUD officials for negligent maintenance and supervision of the offending building.

All the defendants — the HUD regional director, two lower-echelon HUD admin­istrators and the private property broker under con­tract with HUD to maintain such properties — pleaded the doctrine of sovereign immunity.

This doctrine descends from the ancient legal de­fense that “the king can do no wrong.” After the Founding Fathers ejected King George III, the law­yers and, judges neverthe­less continued this protec­tive immunity around government officials and agencies.

IN RECENT decades .some laws, such as the Federal Torts Claims Act, have allowed citizens to file money claims against gov­ernment agencies that dam­age them or their property.

However, Congress and the courts have been reluc­tant to expose federal civil servants to damage suits for malperformance of their duties. The reason was that these public officials would find themselves less able or willing to exercise their judgment and discretion in making decisions.

But in recent years the bureaucracy has seemed to many people too shielded from direct accountability to the citizens it is supposed to serve.

Viewing the charred ruins of their apartment building, Maria Sanchez and her neighbors thought they had a case against the HUD officials.

Federal District Court Judge Prentice H. Marshall threw out the sovereign im­munity defense for the broker and the two lower HUD officials but dismissed the damage claim against the regional director. Why the distinction?

Because, Judge Marshall ruled, the lower level offi­cials had strict government regulations to follow per­taining to building mainte­nance that were not subject to discretion. They were to be routinely applied for the public’s health and safety in a mandatory manner.

Whereas, the judge ruled, the higher HUD official had duties which were discre­tionary, involving judgment, planning or poli­cy decisions not exercised at operational levels

THE JUDGE wrote in his Aug. 8, 1975, opinion that “the effect of denying im­munity is merely to place an additional sanction against officials who fail to perform clear ministerial duties.”

The government will ap­peal this ruling, which Sen. Charles Percy, R-Ill., called one of “major signifi­cance.”

Indeed it is. The case, which still remains to be tried in court on the facts, is another step forward in the growing movement for rea­sonable but effective civil service accountability to­ward aggrieved citizens.

Still unresolved is the question of the manner in which the law should treat negligence, misfeasance and malfeasance at high bureaucratic levels. For a bureaucracy is like a fish — it rots from the head down