There exists a powerful strategy for vanquishing the Administrative State. It requires we adopt a new paradigm, however, one not so easily grasped unless one has 'been there.' Once impressed upon our minds, however, this insight captures the otherwise unseen Achilles' Heel of our vast bureaucracy. And once apprehended, the Leviathan's Achilles' Heel is easily exploited, allowing us total victory. Read on. See how.
NLRB AND EEOC ATTACK!
In 2005, my two partners and I owned a three-professional (us) private mental health clinic, i.e. mental health version of a primary care office. Together, we grossed about $500,000.00 annually, before expenses. At the time, we employed one full time and one part time secretary, the latter having worked for us for merely four months. We'd assumed we were blessed: Since opening in 2001 we'd only faced one Workers' Compensation lawsuit and we'd prevailed. We didn't know at the time this was merely the initial skirmish in a larger war.
In 2005 our part-time secretary was non-compliant with assigned tasks, clinic policy, and, when supervised about this presented us with a letter (in a staff meeting, without warning) of her complaints about
us. We fired her, as already planned, with cause.
Soon after this we were sent a letter from the NLRB (National Labor Relations Board--the same outfit that attempted to forbid Boeing from moving to South Carolina). We were accused of violating the rights of a member of a "protected class," by virtue of our failure to respond appropriately to a "protected communication."
I quickly phoned the NLRB lead investigator in our case. I asked, "If what my research says about the NLRB is correct, isn't your purview limited to relationships between unions and corporations--large ones?"
The investigator answered, snidely (yes, snidely), that this was the case with us. "We consider your former employee to be a member of a
protected class and when she tried to give you that letter and discuss it in the meeting, you violated her rights to present a
protected communication."
"But, wait a second," I persisted, "protected class" means a union, right? We don't have a union."
"For our purposes you do," she said.
"We only had one full time and one part time employee at the time. They never told us they were a union; we never suspected they could be."
The investigator did not relent, "Well, we consider them a union nonetheless and her letter therefore a protected communication."
"Are you high?" I asked (not really). I continued, "and about that letter, she neither scheduled time in the staff meeting to address it, there was no time because we were late with patients, and we had and could have had no way of knowing it was or could be a "protected communication." Also, she was terminated with cause in any case."
The investigator replied, "That's not how we see things; even if you didn't know you should have known. And even if she was terminated with cause, your response to her protected communication is actionable."
Concluding this was a bad joke, my partners and I nevertheless consulted a business attorney. The attorney told us we were in deadly peril, that if we lost the case (
there was going to be a case?), we might lose the business in fines and reparations. Honestly, none of us could understand what we'd done wrong in the first place: failing to know or understand the vagaries of NLRB regulations?; failing to predict these regulations would be applied to wildly inappropriate circumstances?
If you've been there, you know the nature of the drill that followed: Many hours spent researching and exchanging and providing letters, subpoenas, document demands, and more--scores and scores of person-hours lost to responding to this falderal; stress, apprehension, waiting for the "other shoe to drop."
After $50,000.00 of attorney's fees spent on victory in the initial case, then victory in the appeal, we could go no further--we could not afford to fight the second appeal. We agreed to a $3,000.00 payment to the employee. We thought we had survived and concluded this catastrophic chapter in our experience. We were wrong.
The employee was not finished. She next complained to the EEOC (Equal Opportunity Employment Commission). She alleged we'd violated her civil rights because she was
disabled and we had failed to accommodate her
disability. She'd never said she was disabled. In fact, she'd explicitly told us she was not disabled. Unbelievably, the two men who had referred her to us, from DWD, (Division of Workforce Development), had told us, on direct questioning, she was
not disabled. Unbelievably, these same two men testified under oath (in the final Hearing) they had lied to us about this.
The EEOC was not interested in logic or justice. They held a complaint in their hands and were bound by this, and intended to investigate and prosecute any allegation of violation--no matter how absurd it might be on its face.
We were lucky. This case cost us only $35,000.00. Of course, this figure did not account for hundreds of person-hours, emotional strain, psychological trauma, etc., etc. We did win the initial case. The employee appealed. We won the first appeal. She appealed again, final appeal, and we won. Final appeal was in front of an Administrative Law Judge and under oath.
It must be kept in mind that throughout this process, we had committed no crime, and, worse, we had not committed any violation of any logically interpreted "regulation." However, even having prevailed, we were not refunded our expenses. We could not (in reality) countersue. The plaintiff had no expenses.
Prosecution of regulation violations are not subject to due process regardless of their potential draconian consequences. In contrast, criminal prosecutions require compliance with well-defined due process. Even though regulations violations can cost millions of dollars and jail time, (our small clinic paid $85,00.00 in defense fees) there is no uniformly applied due process. Investigations, assessments, convictions are for the most part based upon caprice. There is no meaningful organizational or judicial "review" or "oversight."
The EEOC and NLRB appeals in our cases were based upon nothing more than a sheet of paper and a moment's thought. No new evidence was presented, no allegation of breach of protocol, due process or constitutional rights. The appeals in our case were simply a product of the former employee's caprice in seeking them--they cost the employee only a few minutes' time, and that, even, with the aid of the investigator(s). Certainly in such a case, why
wouldn't a disgruntled employee appeal? We inquired into this--apparently the standard for appeal with regulatory agencies is as complicated as: "The Complainant asked for an appeal."
As noted above, at the final appeal in the EEOC case, the two government employees (DWD) who'd referred this employee to us admitted, under oath, they'd lied to us about her not having a disability. After the hearing we asked our attorney if this was cause for a lawsuit against the DWD. She reported it might be, but, we'd unlikely recover the cost of such a suit, and we'd have to get the government's permission in order to sue the government (DWD). And of course, she noted, the two government employees who'd lied to us, and referred this employee, and thus were the source of this EEOC debacle in its entirety, could not be held personally liable regardless of admission of lying under oath.
It should be easy to understand, at this point, why most people cannot mentally apprehend the ruinous lunacy and capricious cruelty inherent in attacks by the Administrative State.
Insight
Pondering the experience of 2004-2006 foisted upon us by the Administrative State, I've struggled to imagine forces and structures with the potential to prevent calamities similar to those enjoyed by my partners and I. I remained convinced there must be some insight to be gleaned from our unending pain. I knew what the insight could not be. I knew it could not be faith in the utility of the failed nostrums of "common sense" reforms such as "cutting regulations" or "cutting back."
The 26:1 government destruction multiplier effect
First, I concluded the 'source' of our pain was not the regulations. It was the people--the bureaucrats themselves, the DWD liars and the EEOC/NLRB investigators and the supervisors who affirmed their outrageous interpretations.
Notably, however, it was clear most of the employees of the State were not 'bad' people. In fact, the evidence indicated they were rather nice people, "doing their job." In our case, then, though the people working for the bureaucracy were "good," they were also the force translating enormous pain from State regulations into our lives. 'Fixing' the people,
as people, would paradoxically not have saved us. Some other force was at play. I sensed an Achilles heel--finally.
The Administrative State could be overcome by determining how its well-intentioned employees--all of presumed good character--might reduce their hours--and thus reduce the
number of cases they could pursue. It seemed clear that even were we to maintain the bureaucratic Juggernaut, its employees, its structure, its everything, in place, we could nevertheless roll back the damage of the State
--merely by paying its employees to stay home.
I came to this realization by again visualizing the enormous damage wrought upon a three owner small business with 1.5 employees, damage initiated by nothing more than a groundless complaint by a part-time employee, with us only four months. I contrasted this with the "cost" to the government in wreaking such damage. My best estimate was that total expenditure of government employee time on our case was no more than two work-weeks, not counting the time of the Administrative Law Judge. I found a significant "multiplier effect." No more than 80 hours' work by the government ($3200.00 @$40.00/hour) resulted in our cost of $85,000.00, not counting lost work or pain and suffering.
Stated another way, every dollar spent on "enforcement" in our regulatory agencies, costs the private sector twenty-six dollars.
This 26:1 ratio has enormous implications.
26:1 Leveraged government destruction
Let's return to my personal traumas--attack by the NLRB and EEOC. Visualize the NLRB investigator having so much time on her hands she can bother with a case as ridiculous as ours. Think about
each of her work hours resulting in 26 hours of destruction in the private sector. Doesn't it become insanely clear then that the cost of this government employee has nothing to do with her direct salary and benefits, etc. Her true cost is the 26:1 ratio of damage each of her hours unleashes.
No one I've spoken with about the 26:1 effect has understood
viscerally its implications. I pray I am describing it here in a way that will inspire insight and move you to action. Condensed into one dictum, the 26:1 factor means that it is hugely
profitable for us to eliminate merely one hour of a regulatory employee's time AND, it therefore is hugely
profitable to do so
by paying any such employee full salary and benefits were they merely to stay at home.
Until now, everyone has focused upon reducing the direct cost of the regulatory employee.
This cost is negligible. It's what the employee does that is most important, it is the
handiwork of the employee, that does the most grievous damage to our society. Accordingly, all the handwringing over the cost (direct) of the Administrative State is a waste of time. All of the political maneuvering necessary to "cutting" the State is unnecessary. Instead, we're talking about paying employees (and throw in their cousins and family members) full salaries and benefits merely for remaining at home and not working. Sounds crazy. Sounds like it will be offensive to the employee, to his/her value. Most won't care, though. They'll be crying all the way to the bank. Everyone else will be jealous and resentful. Give them the same deal.
If such a plan had been in place in 2004, our assigned (NLRB, then EEOC) investigator would of necessity been compelled to limit her valuable time to focusing upon the
real killers (just kidding), limiting her work, at minimum, to the job actually intended for her agency. If she'd not had time to investigate and prosecute us, we would have saved $85,000.00 and endless hours of lost work time and emotional trauma. If we, the citizens, paid her to stay home all year long, we would save (the country, private business) $85,000.00 x 26 (2 week periods) = $Two Million, two hundred thousand dollars ($2,210,000.00). Compare $2,210,000.00 per year with the approximately $100,000.00 (salary and benefits for a year for the investigator).
Can you feel it?
Achilles' Heel
Can you see it? Paying regulatory agency workers FULL SALARIES WITH BENEFITS for staying home and never coming back, forever, is ENORMOUSLY PROFITABLE. It is 26:1 profitable. It is politically profitable. It is temporally profitable--it can be done tomorrow.
Imagine our President, our Chief Executive Officer of the Administrative State, declaring, tomorrow: "We're going in a different direction--to fundamentally change America. We've decided too many obstacles lay in the path of fundamentally changing our legislation, our rules and regulations. Instead, to help our agencies focus only on the highest priority items Congress originally intended, I'm honored to offer the following.
Any employee of a regulatory agency is hereby granted indefinite leave, for life, at the level of full salary and benefits they have now, in addition to any employment they may find in the future.
With the provisos of course, no employees will be hired, ever, to fill the positions of those who depart, and, no departing employee can ever work again for any local, state, or federal government.
Are there details? Sure. Should reasonable care be taken to ensure a successful lift-off? Sure. Should optimal rhetoric be crafted? Sure.
Should budgets be reduced? No. (Keep in mind the 26:1 rule). The budgets are needed to pay all of the people who are staying home and not working in government.
One last item: The indirect offense to regulatory employees ("you're so worthless we're paying you to stay home"), can be softened with the analogy to
Fantasia's Sorcerer's Apprentice. Animating one mop to clean is helpful. Animating a herd of mops is potentially fatal.
The Achilles' Heel Real Deal:
The Grand Leviathan of the U.S. Administrative State possesses an Achilles' Heel which permits us to vanquish
most if not all of it. It is the unrecognized 26:1 government destructive effect ratio: Eliminating (yet still paying for) one hour of regulator employee time SAVES 26 TIMES this amount in the private sector. This means we do not need to bother with attempting to work around touching the third rail of cashiering government workers. We simply need keep paying them at the same level--but insisting they NOT work--at least in any government job.
We must vanquish the Leviathan. We must vanquish the well-intentioned handiwork of the morally unimpeachable government worker. WE MUST
PAY THESE GOVERNMENT WORKERS
NOT TO WORK. If we can bring ourselves to do this, not only will we eliminate senseless predations upon tens of thousands of otherwise victimized businesses each year, we will also increase private sector productivity by orders of magnitude beyond the costs of government workers who are being paid for not working.
