Regulating ethical values, integrity and transparency in Romanian public employment: strategy and legal provisions.
The quest for strengthening the administrative capacities was supported by the legislative process, the adoption of the Romanian fundamental law in 1991 and its amendment in 2003 marking a milestone in the process of strengthening the Romanian rule of law (6). The succeeding legislatures engaged in the administrative reform process with various normative acts aimed at delivering the necessary instruments to increase the accountability and transparency within central and local public institutions and authorities.
Defined as "the abuse of public roles and resources by private parties" (7), corruption is one of the main challenges for economic growth and democratization of both past and nowadays societies (8).
Contrary to the tendency of adopting new anti-corruption measures, researchers emphasize the need of a stronger accent on implementation and assessment by national agencies since, at present, it is argued that the assessment of anti-corruption mechanisms is carried out mainly by international organizations such as the OECD, the Council of Europe (GRECO)9 and the UN. The official statistics of the cases of corruption brought before justice stand as a clear argument for the functioning of these mechanisms.
International treaties such as the United Nations Convention against Corruption (2004) prescribe standards against corruption and mark the importance of implementation and constant assessment of integrity-assurance mechanisms such as the universal use of the merit-based system for the recruitment, selection, promotion of civil servants and all non-elected officials (10). Public employment is dealt with in Article 7 which provides for preventive measures such as the use of the "principles of efficiency, transparency and objective criteria such as merit, equity and aptitude" (paragraph 1.a), "adequate procedures" that eliminate integrity vulnerabilities for the selection and training of public personnel (paragraph 1.b), "adequate remuneration and equitable pay scales" (paragraph 1.c), training and education (paragraph 1.d), financial transparency for public offices candidatures and political parties (paragraph 3), the avoidance of conflicts of interests (paragraph 4). Moreover, Article 8 of the Convention prescribes for the implementation of codes of conduct within public authorities that would limit the susceptibility of conflicts of interest by making public the office bearer's assets, financial interests, gifts received in the exercise of the function and other activities. Other focal points which interest our discussion prescribed as preventive measures by the Convention are dealt with in Article 9 (public procurement and the management of public finances), Article 10 (public reporting), Article 11 (judicial sphere), Article 13 (cooperation of the civil society), Article 14 (preventing money-laundering). Criminalization of corruption is institutionalized pursuant to Articles 15 and 16 (bribery), Article 17 (embezzlement and misappropriation), Article 18 (trading in influence), Article 19 (abuse of functions), Article 20 (illicit enrichment). We have to note at this point that at international level the measures set to increase the integrity, accountability and transparency of public, be they national, international or local authorities, cover prevention, education and criminalization of corruption activities. It appears thus normal to assert that the Romanian authorities followed a similar approach.
Strengthening ethics, integrity and transparency as national strategical objectives
Aiming at strengthening integrity and good governance within national public institutions and authorities the Romanian Government adopted the Decision no. 215 of March 20th 2012 regarding the approval of the National Anti-Corruption Strategy during 2012-2015, of the Inventory of anti-corruption prevention measures and of the assessment indicators, as well as of the National Action Plan for implementing the National Anti-Corruption Strategy 2012-2015 published in the Official Gazette no. 202 of March 27th 2012.
The document styled National Anti-Corruption Strategy for the period 2012-2015 is joined by the strategy of the National Integrity Agency Strategy for combating and preventing the accumulation of unjustified assets, conflicts of interest and incompatibilities 2011-2014 and the efforts of the Superior Magistrature Council to increase the accountability of the judiciary. The National Anti-Corruption Strategy was supposed to work in line with the Commission's Reports on the Cooperation and Verification Mechanism in order to increase the institutional coordination of consolidating integrity within the public sector.
The Romanian National Anti-Corruption Strategy recognizes the classical three types of action in the fight against corruption: prevention, education and repression (p. 9) still it is centered on prevention measures and their specific indicators: introducing and enforcing ethical, deonthological, behaviour codes, enforcing the compulsoriness of assets and gifts declarations, identifying and dismissing conflicts of interests, enforcing ethical values through the use of ethical advisors, identifying and removing incompatibilities, consolidating the transparency of the decision-making process, strengthening transparency by increasing the access to public interest information, increasing the protection of personnel notifying integrity infringements, assurig the random distribution of files and office duties, imposing post-employment interdictions (Pantouflage measures) (11). This special attention on prevention is noticeable if one analyses the eight specific prevention objectives included in the Strategy:
"1. Remedy vulnerabilities specific to public institutions through the systematic implementation of preventive measures.
2. Increase institutional transparency by enhancing the degree of open data availability placed at service by public authorities.
3. Consolidating the integrity and transparency of the judiciary system through the promotion of anti-corruption measures and professional ethical standards.
4. Increasing transparency of political parties and electoral campaigns financing.
5. Consolidating integrity within members of Parliament.
6. Increasing the efficiency of mechanisms for preventing corruption in the field of public procurement.
7. Promoting a competitive, correct and integer business environment.
8. Consolidating integrity, efficiency and transparency at the level of the local public administration." (12)
In the Strategy one also claims the need to meet international integrity standards with a new coherent institutional vision that would surpass the legislation approach and insist on implementation. This change of optics envisioned by the government is in line with some researchers' arguments that regulation alone without proper implementation and promotion of a coherent and comprehensive integrity policy cannot guarantee for success. Thus the Strategy announces the implementation of periodic organisational self-assessments of the use of integrity measures such as "assets declaration, respecting the rules which bind the receival of gifts, managing conflicts of interests, incompatibilities, ethical and deonthological codes, decisional transparency, access to information of public interest, managing public funds, public procurement, random repartition of files or office duties, personnel selection and promotion procedures" (13) completed by "a mechanism dealing with thematic assessment missions made by mixt teams, constituted by experts of different public institutions and nongovernmental organizations" (14), thus drawing onto the international practices. However, in line with "measures to promote institutional integrity, having as main landmarks: implementing ethical codes, applying internal/managerial control standards and consolidating the appropriate administrative sanctioning mechanisms, the protection of integrity notifier, the management of weaknesses specific to each institution" (15), the anti-corruption strategy marks some loopholes in the current legislation that can only be addressed by adopting other pieces of legislation (16).
Thus, promoting integrity, transparency of the decision-making process, dismissing conflicts of interest and incompatibilities in the exercise of public duties, performing in the interest of citizens are part of a wider institutional scenario of anti-corruption actions.
Progress has been made through the adoption of legislation aimed at strengthening anti-corruption measures and integrity of civil services, transparency and open access for the civil society to the decision-making process. Nevertheless, a study commissioned by the European Commission notes that Romania, as well as the other new EU Member States, is more regulated than old Member States (17) as regards the conflicts of interests within public institutions and authorities.
The legal framework designed to enhance ethics and ensure integrity in the public sector regulates the conduct of public employees, the regime of assets, financial interests, gifts received in the exercise of their duties, conflicts of interests, introduces ethical advisors, the regime of incompatibilities, strives to increase the transparency of the decision-making process, the access to public interest information, regulates the notification of integrity infringements etc. A discussion on the legal anticorruption measures adopted by Romanian public authorities has in our view to begin with the regulation of the status of public employees.
In Romania, there are three categories public employees: civil servants subordinated to the National Agency of Civil Servants, special status civil servants and contractual employees (18). The provisions of Law no. 140/2010 for the amendment and completion of Law no. 188/1999 regarding the Statute of public employees (published in the Official Gazette, Part I, No. 471 of July 8th, 2010) apply to the first category of employees, regulating the public function, the rights and obligations of civil servants, measures applicable to recruitment, selection, training, promotion, remuneration, special provisions for the category of senior civil servants. The law prescribes the possibility for the other categories of public employees (including contractual employees, healthcare and education sectors personnel, magistrates etc.) to be regulated through special statutes applicable to each institution in part (Article 5), and through the labour code (Article 6). This regulation discriminates between general and specific public functions, first class, second class and third class public functions, and state, territorial and local public functions (Article 7).
Law no. 140/2010 stipulates in Article 3 that Romanian civil servants must observe the following principles when on duty: compliance to the law, political neutrality, objectivity, transparency, efficiency and effectiveness, accountability (according to the law), prioritising public interests, stability in the exercise of public office, hierarchical obedience. Also, the law provides Romanian civil servants with the right to express their opinions, to asociate in unions, and to strike. Moreover, the law forbids civil servants to exercise leadership functions in political parties and express their political options, while senior civil servants are forbidden to join in political parties (Article 44).
The law prescribes the principle of open competition for the recruitment of public employees according to the merit-based system with vacancies published in the Official Gazette at least 30 days before, stipulating the compulsoriness of a national competition by an independent, permanent commission for senior civil servants (Article 18). The law also prescribes that some public employees are recruited through open competition. In this case, recruitment for civil servants positions falls under the competence of the National Agency of Civil Servants which is endowed by law with the power to "approve the participation conditions and the recruitment and promotion procedure for public offices selected through competition and endorses and monitors recruitment and promotion for the other public positions" (Article 22.j). The creation of the National Agency of Civil Servants was envisaged so as to ensure the professional, stable and neutral character of public employees, an objective adherent to the managerial paradigm of public administration (19).
The anti-corruption legal framework is founded on Law no. 78/2000 on the prevention, discovery and sanctioning of corruption actions, with the subsequent amendments and supplements (20) which introduces special rules of behavior for persons in the exercise of public positions in order to prevent corruption such as the obligation to observe the law and professional behavior rules, to follow the solicitors' rights and interests without ensuring for themselves inadequate benefits, to declare their assets (Article 2), and discriminates among different categories of crimes of corruption: corruption offences, breaches assimilated to corruption offences, breaches in direct connection to corruption offences, and offences against the financial interests of the European Communities.
Anti-corruption measures applicable to persons in the exercise of public positions were further regulated through the adoption of Law no. 176/2010 regarding integrity in the exercise of public positions and dignities, amending Law no. 144/2007 regarding the establishment, organizing and functioning of the National Integrity Agency, as well as amending other normative acts (published in the Official Gazette, Part I no. 621 of September 2nd, 2010). Law no. 176/2010 regulates on declaring assets and interests, and institutes further procedures of ensuring integrity and transparency in the exercise of public positions and dignities establishing the regime of integrity inspectors within the National Integrity Agency, assets assessments, conflict of interests and incompatibilities assessments. Moreover, Law no. 161/2003 regarding some measures for ensuring transparency in the exercise of public offices, civil service and in the business environment, the prevention and sanction of corruption, with subsequent amendments and Law no. 251/2004, regarding some measures referring to the goods received on the occasion of protocole actions in the exercise of the mandate or office, stand at the basis of the compulsory nature of completing assets, gifts and interests declarations and are part of a wider set of legal instruments to increase transparency of public administration at local and central level. Thus, transparency of the decision-making process is enhanced since the adoption of Law no. 52/2003 regarding decision transparency within public administration, with further amendments and Law no. 544/2001 regarding free access to information of public interest, with further amendments.
Legal provisions aimed at removing conflicts of interests and strengthening transparency within public organizations includes, without being limited to, Law no. 176/2010 regarding integrity in the exercise of public positions and dignities, amending Law no. 144/2007 regarding the establishment, organizing and functioning of the National Integrity Agency, as well as amending other normative acts and Law no. 161/2003 regarding some measures for ensuring transparency in the exercise of public dignities, public positions and businesses, preventing and sanctioning corruption, with subsequent amendments. Integrity was further enhanced through the adoption of Law no. 571/2004 regarding the protection of personnel within public authorities, public institutions and other units who notice breaches to the law. In addition, increasing ethical values was sought legally through the adoption of legislation imposing professional codes (21) for public employees such as Law no. 7/2004, republished, regarding Civil Servants Behavior Code and Law no. 477/2004 regarding the Behavior Code for the contractual employees in public institutions and authorities.
After reviewing part of the Romanian anti-corruption legislation (22) we have to note the growing tendency to regulate this field by imposing preventive measures at a high extent. In this sense we have to mention the measures adopted by the Romanian legislator as regards the obligation of introducing ethical professional codes, declaring one's assests and interests, regulating conflicts of interests, incompatibilities, increasing transparency in the decision-making process, increasing the access to public interest information, increasing the protection of personnel notifying integrity infringements, ensuring the random distribution of files and office duties, imposing post-employment policies.
Decision no. 215 of March 20th 2012 regarding the approval of the National Anti-Corruption Strategy during 2012-2015, of the Inventory of anti-corruption prevention measures and of the assessment indicators, as well as of the National Action Plan for implementing the National Anti-Corruption Strategy 2012-2015 published in the Official Gazette no. 202 of March 27th 2012, source: http://www.mai-dga.ro/downloads/Strategia/HG_nr_215-2012.pdf
DEMMKE, C M. BOVENS, T. HENOKL, K. VAN LIEROP, T. MOILANEN, G. PIKKER A. SALMINEN, Regulating Conflicts of Interest for Holders of Public Office in the European Union. A Comparative Study of the Rules and Standards of Professional Ethics for the Holders of Public Office in the EU-27 and EU Institutions. A study carried out for the European Commission, European Institute of Public Administration in co-operation with the Utrecht School of Governance, the University of Helsinki and the University of Vaasa, Maastricht, June 2008, source: http://ec.europa.eu/dgs/policy_advisers/publications/docs/hpo_professional_ethics_en.pdf
GEORGESCU, Catalina Maria, "EU competences in the field of public administration of Member States and Candidate Countries", Revista de Stiinte Politice/Revue des sciences politiques, Universitaria Publishing House, Craiova, no. 21-22/2009, pp. 106-112.
GHERGHE, Cosmin Lucian, The evolution of constitutionalism in Romania beyond 1989. Case study: The Constitution of 1965 and the Constitution of 1991 in "Revista de Stiinte Politice. Revue des Sciences Politiques", no. 35/ 2012, pp. 401-407.
IANCU, Diana-Camelia, Uniunea Europeana si administratia publica (European Union and Public Administration), Iasi: Polirom, 2010.
JOHNSTON, Michael, Coruptia si formele sale. Bogatie, putere si democratie, Iasi: Polirom, 2007. Ministere du Budget, des Comptes Publics et de la Fonction Publique, Administration and the Civil Service in the EU 27 Member states. 27 country profiles, source: http://www.fonctionpublique.gouv.fr/files/files/publications/etudes_perspectives/Administration_and_the_Civil_service_ in_the_27_EU_Member_states.pdf
NEGREA, Xenia, Communism in the Romanian Press during the Economic Crisis, in "Revista de Stiinte Politice. Revue des Sciences Politiques", no. 33-34/2012, pp. 269-278.
OLIMID, Anca Parmena, Politica romaneasca dupa 1989, Craiova: Aius PrintEd, 2009.
ROSENBLOOM, David H., Deborah D. GOLDMAN, Public administration: understanding management, politics and law in the public sector, New York: McGraw-Hill, 1993.
UNPAN, Division for Public Administration and Development, Department of Economic and Social Affairs, Report of the Experts Group Meeting on Ethics, Integrity, and Accountability in the Public Sector: Re-Building Trust in Government Through Implementation of the United Nations Convention against Corruption, St. Petersburg, Russia, 2006, source: http://unpan.org/publications/PDFs/E-Library%20Archives/ 2006%20EGM%20Ethics,%20Integrity,%20and%20Accountability%20in%20the%20Public%20Sector.pdf
Catalina Maria GEORGESCU, University of Craiova, Faculty of Social Sciences, Political Sciences Specialization
(1) For an outlook on the transition challenges for public administrations of former Communist countries we recommend the study of the United Nations, Department of Economic and Social Affairs, Division for Public Economics and Public Administration, Professionalism and Ethics in the Public Service: Issues and Practices in Selected Regions, New York, 2000, pp. 10-20, source: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan000112.pdf
(2) For an inquiry into the main themes of the transition debate we recommend the interest readers the paper of professor Anca Parmena Olimid, Politica romaneasca dupa 1989 (Romanian Politics after 1989), Craiova: Aius PrintEd, 2009, pp. 11-47.
(3) For an insight into the manner the press related to communism during recent years we recommend the interest readers the research of professor Xenia Negrea, Communism in the Romanian Press during the Economic Crisis, in "Revista de Stiinte Politice. Revue des Sciences Politiques", no. 33-34/2012, pp. 269-278.
(4) Anca Parmena Olimid, op. cit., p. 15.
(5) Since the public administration of the European Union unites all the 27 public administrations of its Member States, it becomes natural to consider the administrative capacity when calculating the potential of a Candidate Country. See, for that matter, the considerations expressed by the author Diana-Camelia Iancu, Uniunea Europeana si administratia publica (European Union and Public Administration), Iasi: Polirom, 2010, pp. 49-109 and also Catalina Maria Georgescu, EU competences in the field of public administration of Member States and Candidate Countries, in "Revista de Stiinte Politice. Revue des sciences politiques", Universitaria Publishing House, Craiova, no. 21-22/2009, pp. 106-112.
(6) See for this matter the views on the foundamental principles of the Romanian constitutional system expressed by Cosmin Lucian Gherghe, The evolution of constitutionalism in Romania beyond 1989. Case study: The Constitution of 1965 and the Constitution of 1991, in "Revista de Stiinte Politice. Revue des Sciences Politiques", no. 35/2012, pp. 401-407.
(7) Johnston, Michael, Coruptia si formele sale. Bogatie, putere si democratie (Syndromes of Corruption: Wealth, Power, and Democracy), Iasi: Polirom, 2007, p. 24.
(8) Ibidem, p. 31.
(9) C. Demmke et al., Regulating Conflicts of Interest for Holders of Public Office in the European Union. A Comparative Study of the Rules and Standards of Professional Ethics for the Holders of Public Office in the EU-27 and EU Institutions. A study carried out for the European Commission, European Institute of Public Administration in co-operation with the Utrecht School of Governance, the University of Helsinki and the University of Vaasa, Maastricht, June 2008, p. 9, source: http://ec.europa.eu/dgs/policy_advisers/publications/docs/hpo_professional_ethics_en.pdf
(10) United Nations Office on Drugs and Crime, United Nations Convention against Corruption, New York, 2004, source: http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/0850026_E.pdf. Romania is a party to the United Nations Convention against Corruption (date of signature--9 Dec 2003, date of ratification--2 Nov 2004).
(11) See Annex 2 to Decision no. 215 of March 20th 2012 regarding the approval of the National Anti-Corruption Strategy during 2012-2015, of the Inventory of anti-corruption prevention measures and of the assessment indicators, as well as of the National Action Plan for implementing the National Anti-Corruption Strategy 2012-2015 published in the Official Gazette no. 202 of March 27th 2012, source: http://www.mai-dga.ro/downloads/Strategia/HG_nr_215-2012.pdf
(12) See Annex 1 to Decision no. 215/2012.
(13) Ibidem, p. 9.
(14) Ibidem, p. 9.
(15) Ibidem, p. 8.
(16) See, in this sense, Annex 2 to Decision no. 215/2012 in which one argues for new normative acts to address, for instance the breaches in the behaviour of high officials, civil servants and contractual personnel carrying duties in the field of protecting EU financial interests, or the behaviour of personnel exercising control duties in the field of protecting EU financial interests.
(17) C. Demmke et al., op. cit., p. 11.
(18) In this sense we recommend the comparative analysis delivered in the study of Ministere du Budget, des Comptes Publics et de la Fonction Publique, Administration and the Civil Service in the EU 27 Member states. 27 country profiles, source: http://www.fonctionpublique.gouv.fr/files/files/publications/ etudes_perspectives/Administration_and_the_Civil_service_in_the_27_EU_Member_states.pdf
(19) For a complete analysis of this perspective we recommend the interested reader the work of the authors David H. ROSENBLOOM and Deborah D. GOLDMAN, Public administration: understanding management, politics and law in the public sector, New York: McGraw-Hill, 1993.
(20) The following normative acts amended Law no. 78/2000 on the prevention, discovery and sanctioning of corruption actions (published in the Official Gazette, Part I no. 219 of May 18th 2000): Government Emergency Ordinance no. 43/2002, Law no. 161/2003, Law no. 521/2004, Government Emergency Ordinance no. 50/2006, Law no. 69/2007.
(21) A list of normative acts supporting the government anti-corruption measures is presented in Annex 2 to the National Anti-Corruption Strategy during 2012-2015, available at: http://www.maidga.ro/downloads/Strategia/HG_nr_215-2012.pdf
(22) For the Romanian country profile in the field of regulating conflicts of interests see C. Demmke et al., op. cit., pp. 293-298.
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|Title Annotation:||ORIGINAL PAPER|
|Author:||Georgescu, Catalina Maria|
|Publication:||Revista de Stiinte Politice|
|Date:||Dec 1, 2012|
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