What Parks & Recreation Can Teach Us About Local Administrative Law: An Overview of the Regulatory State Within Local Government

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The study of administrative law revolves around the ‘pencil-pushing’ of federal agencies. This federal approach ignores the multitude of administrative bodies that make and implement policies that directly affect the everyday lives of citizens at the local government level. While federal agencies are promulgating rules by having some intern or low-level staff members publish them to a dull database of regulations – the Federal Register – where most people will never find them, the local agencies are actively engaging and directly impacting the public via local regulation. The administrative law of the regulatory state within cities, suburbs, towns, villages, and counties is not as well-studied as its federal counterparts despite local agencies being more impactful and directly correlated to bringing local communities together through government regulation.

While administrative law scholars have ignored local government, Hollywood has not.^[1] The most recent and poignant example of this would be the hit and multiple time Emmy-nominated political satire sitcom, Parks and Recreation. The NBC produced show that was created by Greg Daniels and Michael Schur focuses on local government. Specifically, the focus is on the city government of the fictional small town, Pawnee, Indiana. The main character is Leslie Knope, who starts off the series as the Deputy Director of the Pawnee Parks and Recreation Department. The show follows Leslie’s and her Parks and Recreation Department coworkers’ careers within the local government of Pawnee. Eventually, Leslie is elected to the Pawnee City Council. The series concludes with her eventually serving as the Department Director of the Midwest region for the National Parks Service.

Parks & Recreation provides many lessons about the importance of administrative law in local government. Specifically, that local-government administration affects the everyday lives of Americans and how local government can be a significant force for good all the while providing debate over how the local government administrative state should be utilized.

CHILD-SIZED SODAS AND BOTTOM-UP RULEMAKING

“Word around the slop trough is they’re talking about laying people off. So maybe you could get off your high horse and help me keep my job.” – Disgruntled Colonel Plumps employee at Public Forum

Season Five finds Leslie taking on a new role in the Pawnee city government, that of city councilor. One committee that Leslie is placed on as a member of City Council is the Public Health Committee. Due to her efforts as a member of the Public Health Committee,  Leslie proposes a tax on soda served at restaurants. As always with Leslie’s proposals, it is a well-intentioned effort, one aimed at helping curb Pawnee’s obesity problem. Specifically, the proposal is made in response to local restaurants serving gallon and “child-sized” sodas. Ron Swanson and others in the community complain that the soda tax is government overreach, a common complaint of the modern administrative state.

Prior to the scheduled City Council vote on the tax, Councilor Knope engages in a bottom-up approach to rulemaking. As Leslie often does, she decides to engage the public for input as she is well aware that “the public can . . . become a bottom-up source for proposed regulations by lobbying.”^[2] At the local level in Pawnee, the policymaking of the administrative body, specifically the Pawnee City Council “is not confined to the formal structures of administrative law as envisioned by the drafters of the Administrative Procedure Act.”

While most of the federal agency rulemaking process is initiated from the top-down approach, local agency rulemaking, especially in Pawnee, is largely derived from the bottom-up approach. At the federal level, agencies take most of their marching orders from Congress or from the President as part of the top-down approach to rulemaking. On the other hand, in Pawnee and on the local administration level, most of the rulemaking is initiated from the bottom-up approach.

The bottom-up approach includes both agency staff recommendations and more publicly driven efforts such as lobbying and petitions. This bottom-up approach to rulemaking tends to dominate local administration because

This episode of Parks and Recreation is a prime example of the bottom-up approach to rulemaking that occurs at the local level. Leslie holds a Public Health Committee meeting with local stakeholders in regard to the proposed soda tax. The Pawnee Restaurant Association, a form of lobbying agency for the local restaurant industry, informs Leslie of their opposition to the tax. The meeting begins with the all too familiar argument that has become the rallying cry for many business and restaurant owners during forced government closures and restrictions due to COVID-19–that burdening the economics of local restaurants is not good for the economy.

The Pawnee Restaurant Association warns Leslie that the soda tax will have consequences, both for the restaurant industry and for her new position on City Council. In particular, the Restaurant Association threatens that the tax will cause about one-hundred employees to be laid off. Leslie is dumbfounded after this meeting and is left wondering whether the Restaurant Association is bluffing or not.

Leslie begins the public forum with a statement that conveys how the lobbying efforts have affected her rulemaking process stating, “I proposed this bill, but the issue has become very complicated so before I decide on how I am going to vote on it, I’d love to hear from both sides.” Immediately, a fast-food worker stands up and proclaims that there is talk about him being laid off so Leslie should “get off her high horse” and help him keep his job. There are a few supporters in the audience who support the tax, one lady stating her support when she says that “My husband started drinking those giant sodas and he gained 100 pounds in three months. Consequently, we haven’t had sex in ten years.” The forum ends with the same fast-food worker (who very well could be a shill from the Pawnee Restaurant Association) exclaiming, “Instead of me losing my job, you ought to lose your job. Let’s recall Leslie Knope!”

Despite the negative feedback Leslie does encounter some support from the public as well as from her coworkers and ends up voting in favor as the deciding vote to approve the soda tax, 3-2 at the City Council meeting. Unfortunately, not every local administrator has the fortitude of Leslie Knope to withstand the impact of such bottom-up rulemaking initiatives. The majority of local government administrators and officials “are not paid adequately” for their time and public service.

Unlike many local government administrators and officials, “at the federal level, .” Thus, local administrators and officials are arguably more susceptible to bottom-up rulemaking efforts, particularly lobbying. Additionally, with the local aspect, smaller venues, and lower constituent numbers that come with local administration, it is easier for the public, interest groups, lobbyists, etc. to conduct bottom-up rulemaking. Paul Diller makes this clear when he writes about how local governments have been able to accomplish more than their state and federal counterparts in public health administration, stating that “the lower constituents-to-official ratio and the physical proximity of government decision-makers to their constituents may lower the costs of both campaigning and lobbying, key tools by which interest groups pursue their goals. The synergy between these factors may help explain why proponents of public health regulation have comparatively more influence at the local level than at the state and federal levels.”

The episode, as many do throughout the show, demonstrates the importance of public forums (or importance of avoiding them, depending on your viewpoint). In this episode, the public forum seems to take on the role of a bottom-up rulemaking procedure since Leslie seems to call the public forum to assist in her decision-making process.

NOTICE AND COMMENT PERIODS, A.K.A., CRACK-POT CONVENTIONS

If this gets out every time you want to do anything, some guy’s gonna come into your office and handcuff himself to a pipe.” – Ben Wyatt

In Season Three, Episode Five Leslie aims at promoting civic engagement and boosting Pawnee pride through dedicating a time capsule at one of the parks. The time capsule is meant to be opened fifty years later and will include items that ‘encapsulate’ the spirit of Pawnee. A citizen named Kelly Larson comes to Leslie’s office and makes a passionate plea for the Twilight book series to be included. When Leslie refuses because the books have no connection to Pawnee, Kelly handcuffs himself to a pipe in her office until she reconsiders. He is able to stay for several days because he brought food, water, and a pillow.

Upon learning that Kelly is only trying to impress and connect with his estranged daughter via her love for Twilight, Leslie wants to give in to his demands. Ben points out that Leslie should invoke the classic government strategy of ‘not negotiating with terrorists,’ stating, “if this gets out every time you want to do anything, some guy’s gonna come into your office and handcuff himself to a pipe.” In response to Ben’s warning on not negotiating with people that handcuff themselves to pipes (terrorists), Leslie responds “then we shall bring the pipe to them.” Ben is left wondering what that means, but Ron is quick to inform him that means there is going to be a “crack-pot convention,” also known as a public forum.

The public forum descends into chaos when the public argues over what to include and makes off-the-wall suggestions, like pet paintings, baseball cards, dead cats, and even human ashes. Leslie tries to compromise by making multiple time capsules, but she ultimately decides to stick to one capsule and include nothing except a video recording of the public forum, which she said represents Pawnee because it shows “a lot of people with a lot of opinions arguing passionately for what they believed in.” People arguing passionately for what they believe in is exactly what notice and comment periods were designed for. In the case of Chocolate Manufacturers Association v. Block, Circuit Judge Sprouse of the Fourth Circuit explains that the purpose of the notice-and-comment procedure is both “to allow the agency to benefit from the experience and input of the parties who file comments . . . and to see to it that the agency maintains a flexible and open-minded attitude towards its own rules.”[3] Thus, the notice-and-comment procedure encourages public participation in the administrative process and educates the agency, thereby helping to ensure informed agency decision making.

In the federal-centric study of administrative law, very rarely would one plan for a situation where a citizen can just wander into your office and chain themselves in your office. But in a small-town like Pawnee, there are no federal U.S. Marshals guarding the entrances to city hall and citizens can and do freely walk the halls. At the very least, federal agency officials do not have to worry about dealing with public comments and debate upfront and personal within proximity of their neighbors and community.

Unlike local administrators like Leslie Knope, federal agency officials do not have to deal with the public up close and personally. An integral part of ” A great name for the primarily bottom-up regulatory approach within local agencies is “street-level bureaucracy.” Specific examples of “street-level bureaucracy” can be seen in the daily actions of local government officials such as “” As Nestor Davidson points out, “the daily work of local administration is embodied in a distributed web of officials interacting directly with the public” abundantly more so than at the federal level.

In contrast, federal agency officials have little to no contact with local residents, especially if the agency is located in Washington, D.C. While federal department and agency officials communicate with the public via the Federal Register, “

Section 553(c) of the Administrative Procedure Act requires federal agencies to provide interested persons an opportunity to comment “ When it comes to the public’s right to comment on federal regulatory actions, “” This is in direct contrast to local agencies that almost always require in-person and open public hearings, meetings, public debate, public comments, etc. prior to promulgating any rules or regulations. Per the APA, federal agencies must provide While publication in the Federal Register acts as legal constructive notice, it is certainly not actual notice. Furthermore, federal agencies seldom, if ever, rely on actual notice.

Conclusion

Overall, local agencies are both different and similar to federal agencies. They can be similar in that both have procedures to follow and rules to promulgate. Both provide for some type of notice and or comment. However, as Parks and Recreation points out, local government administration is different from federal administration. At the local level, officials interact with the public on a face-to-face basis. Local agencies cannot hide regulations in the Federal Register; they have to attend public forums and bear the brunt of their regulatory decisions–whether it be deciding on everything from soda-taxes to whether or not Twilight should be put in a time capsule. While local administration may not be as exciting as Parks and Recreation makes it out to be, there is certainly a case to be made that local agency administration should be a substantive area of study in administrative law due to the direct impact of local agencies. Like Leslie says, local administrators are not just pencil pushers like federal officials, but they are a reflection of their community, and they strengthen that community because, in the end, the main reason for local government is to bring people together.

^[1] See Show Me a Hero (HBO television broadcast Aug. 16, 2015); Parks & Recreation (NBC television broadcast April 9, 2009  – Feb. 24, 2015); The Wire (HBO television broadcast June 2, 2002 – March 9, 2008); Spin City (ABC television broadcast Sept. 17, 1996 – April 30, 2000); Chinatown (Paramount Pictures 1974).

^[2] William F. Funk, Sidney A. Shapiro, & Russell L. Weaver, Administrative Procedure and Practice: A Contemporary Approach 52 (West Academic Publishing 6th ed. 2018)

[3] Chocolate Manufacturers Association v. Block, 755 F.2d 1098, 1103 (4th Cir. 1985); citing National Tour Brokers Ass’n v. United States, 591 F.2d 896, 902 (D.C.Cir.1978)