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Rio de Janeiro, RJ, Brazil May 24, 2004 Ashley Brown

Independence and Autonomy of Infrastructure Regulatory Agencies: Their Importance and Their Elements. Rio de Janeiro, RJ, Brazil May 24, 2004 Ashley Brown Executive Director, Harvard Electricity Policy Group John F. Kennedy School of Government Harvard University

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Rio de Janeiro, RJ, Brazil May 24, 2004 Ashley Brown

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  1. Independence and Autonomy of Infrastructure Regulatory Agencies: Their Importance and Their Elements Rio de Janeiro, RJ, Brazil May 24, 2004 Ashley Brown Executive Director, Harvard Electricity Policy Group John F. Kennedy School of Government Harvard University Of Counsel, LeBoeuf, Lamb, Greene and MacRae, LLP

  2. Definition of Independence • Created by Law or Constitution (Not Decree) • Ability to Make Decisions Without Obtaining Prior Approval • Freedom from Short-Term Political Considerations/Repercussions • Stable Financial Arrangements • Ability to Make Subsidiary Policy

  3. Rationale for Independence: From Whom? For What? From Where? • From Whom? • From Government • From Interest Groups and Vested Interests • From Politics • For What? • To Make Engage in De-Politicized, Deliberative Decision-Making • To Assure Transparency and Integrity • From Where? • Regulatory Agencies Are Part of All Branches of Government • Judicial • Executive • Legislative

  4. Elements for Achieving and Maintaining Independence • Institutional • Financial • Ethical • Competence • Process • Public Education/Public Relations

  5. Institutional • Fixed, Staggered Terms for Commissioners (Directors) • Legislative Approval of Executive Appointments • Removal of Commissioners Only for Proven Good Cause • Stable Terms and Conditions of Employment for Commissioners • Final Decision-Making Authority • Enforcement Powers

  6. Financial • Independent Source of Revenue (e.g., Regulatory Fees) • Regulatory Fee Revenues Off Government Balance Sheet • Revolving Fund/No Diversion Allowed • No Discriminatory Mid-Cycle Budget Cuts Permitted • Competitive Salaries and Benefits

  7. Ethical • Strict Rules Governing: • Conflicts of Interest • Financial Disclosures • Limits on Subsequent Employment • Prohibition of Gratuities and Favors

  8. Competence • Professional Qualifications of Commissioner and Staff • Technical Expertise and Experience • Effective Decision-Making • Clarity in Policies and Reasoning

  9. Process • Necessity of Accepted and Respected Regulatory Forum • Elements Required for Forum: • Transparent Decision-Making Process • Encouragement and Facilitation of Meaningful Public Participation • Deliberative Decision-Making Process • Well-Articulated and Reasoned Decisions With Supporting Documentation

  10. Public Education/Public Relations • Maintain Effective Public Dialogue • Promotion of Intellectual Infrastructure • Maintain Equilibrium and Symmetry of Information Among Interest Groups • Political Sophistication But Not Political

  11. Relationship Between Independence and Transparency • Transparency Requires that Regulatory Process be THEProcess for Making Decisions • There Must Be No Back Doors (Jeitinho Nao Existe)

  12. Social Control (Accountability) • A. Judicial (Retrospective) • B. Legislative (Prospective) • C. Executive • Retrospective on Administrative and Fiscal Only • Prospective on Administrative, Fiscal and Policy

  13. Judicial Social Control • Assure Compliance With Law and Policy • Assures Procedural Fairness • Protects Against Arbitrary and Unreasonable Decisions

  14. Legislative Social Control • Can Change Powers of Agency • Can Change Policies and Methods Agency Must Follow and Use • Can Disapprove Commissioner Appointments (If Law Allows • Can Approve Budget and Personnel Arrangements • Can Conduct Oversight Hearings/Investigations • Public Criticism

  15. Executive Social Control (Retrospective) • Fiscal Control and Oversight • Administrative Oversight • Public Criticism

  16. Executive Social Control (Prospective) • Can Change Policies Agency Must Follow (If Law Permits) • Can Advocate Point of View • Approves Budget

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