The Wonder Wander

06/17/2016

The Solution Has to Fit the Problem

Filed under: Government,Politics — Tom Malley @ 5:53 pm

Many industries invest a lot of time investigating problems to make sure their response to those problems will be effective.  In industries such as nuclear power, aviation, and medicine, the consequences of significant problems can be fatal. It is imperative that problems are corrected before they grow into catastrophes.

Problem solving must focus on finding effective solutions. There is no room for posturing in order to look good.  This tendency to adopt a strong posture and propose spurious solutions is found in business as well as in politics.  It is disastrous.

Proposing solutions and putting them in place because “something” must be done is counterproductive. Ineffective problem responses are inefficient and annoying. They don’t fix the problem, and they erode confidence in the system.

So how can we find effective solutions? One article that I read many years ago helped me develop a better approach to problem solving.  I found it on someone’s desk.  It was a photocopy of a photocopy of a photocopy. Some of it could not be read.  I looked for the source, but could not find it. I could not find the author, nor the person mentioned in the article. Still, it helped me focus on what types of solutions are most effective for various types of problems.

The article is reproduced below, as much as I could make out of it.  If you recognize the source of the article, the author, or the person he mentions, please let me know. I hope you enjoy it and find it useful.

COMPLIANCE by ?? Brobst

Everyone seems to be doing studies these days.  They are studying what they are doing, what somebody is doing, or what nobody is doing.  Being closely allied to safety regulatory programs, I have followed for many years a large number of studies on regulatory effectiveness.  Will Jennings has defined a regulation as “a governmental solution to a problem.”  It’s then logical for people to try to see how effective the problem solution really is.

If a regulation is a solution to a problem, then there is no need for a regulation until a problem has been identified.  Once the problem is identified, it must then be clearly defined, or there can be no national regulation.  As soon as he issues a regulation which sets a legal standard of performance, the regulator must turn his attention to getting compliance with the regulation.  Issuance of a regulation does not, in itself, raise the level of performance by persons who are regulated.  It only sets a legal requirement which, if complied with, raises the level of performance.  It is compliance with the regulation which produces the desired result.

Many regulatory studies have identified compliance–or lack of compliance–as one of the very most critical of all regulatory problems.  To the extent that regulations are not followed, they are useless in raising the level of performance.  Regulations which are not followed are useful only for prosecution.  But what we are after is a higher level of com­pliance, not punishment for noncompliance.

Some regulators believe that the best solution to the problem of non­compliance is to issue more voluminous and comprehensive regulations.  Some of these regulators are driven by a conscientious belief that the lack of compliance comes because the regulation is inadequate.  That is often so but that indicates a need for better regulations, not more regulations.  Some regulators are driven by their enforcement officials or legal counsel who want regulations which are easier to enforce or which will allow a firmer basis for prosecution.  Again. this is a valid reason for better regulations, rather than more regulations.

But the key to public safety is compliance.  Without compliance, the regulation-writing efforts are wasted. How do we improve the compliance?

Investigations of accidents in the hazardous material transportation field have clearly shown that the major cause of accidents–leaks, property damage, deaths, injuries–is a failure by one or more people to comply with a regulation.  Who are these people, and why do they fail to com­ply?  What can we do about it?

It has been my experience that violators fall into four categories:

  1. Those who knowingly and criminally violate the regulations (“Crooks”).
  2. Those who liberally interpret the regulations for their own convenience (“Smarties”).
  3. Those who don’t know or understand the regulations (“Ignorants”).
  4. Those who don’t care about the regulations, or who can’t be bothered by them (“Lackadaisicals”).

Most of the compliance programs I have seen attempt to missing text of violators.  This approach usually hinges around an educational program.  This is very useful for the Ignorants, such as new employees, or as refresher training, or for others who don’t know or understand the regulations.  An aggressive training program will bring about a higher level of compliance by the Ignorants, on the assumption that informed people will act responsibly.  Our social structure is built on voluntary compliance with the law, but one cannot comply with the law if he doesn’t know about the law.  Jennings says that education is then the bridge between issuance of a regulation and compliance with it.

But what about the Crooks?  Or the Smarties? Or Lackadaisicals?  They already know what the regulations require, or at least have been exposed to them.  That Crook who violates the regulations for reasons of profit or competitive advantage is not likely to be much influenced by an education program designed to inform him what the requirements are.  He already knows.  What he will be influenced by is an enforcement and prosecution program that will make it unprofitable to violate the rules.  There are those who will willingly accept a $1,000 noncompliance fine if, by doing so, they can make a $5,000 profit.  But if the fine is $10,000, then the Crook will be more likely to comply.  This implies that if an agency wants to go after the Crooks, it needs an effective enforcement program.  Fortunately, this field of enforcement is one that lends itself to cooperative agreements by Federal and State Governments, whereby State attorneys and courts can enforce the Federal regulations.  On the other hand, it is easy to fall into the trap of thinking that legal enforcement is the best way to get compliance with the regulations.  The regulating agency should adopt the needed public safety regulations, without regard for that agency’s ability to enforce them.  Then the agency should seek compliance with the regulations through a variety of means, of which enforcement is one, education is another, and surveillance is a third.

The backbone of any compliance program is inspection or surveillance. Inspectors should monitor the regulated activities to find out whether the regulations are being followed. Where the regulations are not being followed, this inspection program then leads to an enforcement action, either to punish the wrongdoers, or to improve compliance, or (hopefully) both.  A good inspection program has another role, however, one that is just as important as sabre-rattling or even head-knocking.  A good inspection program can find out whether the regulations are adequate, whether the education program is adequate, and which problem areas need priority application of agency resources.

Well, there are still two groups of violators remaining.  We have discussed the Ignorants and the Crooks.  How about the Lackadaisicals?  A good compliance program– education, surveillance, and enforcement–will do about as much as can be done for these people, particularly if the compliance program is aimed at their bosses. Their “don’t care” attitude is often a reflection of their management’s attitude, so the compliance program needs to be aimed at the bosses as well as the workers.

How about the Smarties?  They’re also called “Sea Lawyers” and “Nit-Pickers.”  They are experts in finding every possible loophole in the regulations.  They make very liberal interpretations of the rules to suit their own convenience, and are convinced that they can hoodwink an inspector or a jury with their logic.  I fear that this group, fortunately small in size, is essentially unapproachable   missing text clearer regulations for them (not more regulations, just clearer).

So, the three elements of a compliance program are education, inspection (or surveillance), and enforcement.  Teach people the right way to do things, watch them to make sure they do them, and slap their wrists if they persist in doing something else.  And be fair about carrying out the compliance program.

 

 

 

 

 

 

 

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