Registering those gifts

4 January 2012

The return to work over the next few days should see the disclosure and registration of benefits whether accepted or declined over the Christmas “gift giving” period.

In guidance on “Understanding the Code of Conduct” the State Services Commissioner indicates that

“We must not seek or accept favours from anyone, or on behalf of anyone, who could benefit from influencing us or our organisation. Organisations’ policies on accepting gifts and hospitality vary, depending on their business. In all cases, it is expected that gifts will only be accepted following a transparent process of declaration and registration. To avoid misperceptions, it is essential that the process is public.”

The traditional expectation was that nothing of value was acceptable as that gave rise to perceptions of possible influence. Agencies have evolved different views on what is a token and therefore, acceptable, gift.

The de minimis views of the Auditor General in the Controlling Sensitive Expenditure Guidelines get scant attention these days –   “We expect entities to:

  • require receipt of gifts, except for inexpensive gifts that are openly distributed by suppliers and clients, to be disclosed, to be recorded in a gifts register, and to remain the property of the entity;
  • allow staff to personally acquire only infrequent and inexpensive gifts that are openly distributed by suppliers and clients (for example, pens, badges, and calendars); and
  • have policies defining “infrequent” and “inexpensive” in relation to receiving gifts.”

The standard seems more influenced by the State Services Commissioner’s view on what is acceptable. Guidance to chief executives on the preparation of their disclosure of expenses and benefits indicated that “…the minimum value for a gift to be disclosed will be $100, rather than $50 as originally proposed.”

An interesting comparison is with the United States Office of Government Ethics latest report on prosecutions for conflict of interest breaches. Of the 16 convictions across federal agencies, half relate to managers influencing the award of contracts, or the grant of funds, to businesses in which they had an interest.

However 30% (and all of which resulted in fines and the imposition of probation) involved failing to, or falsely declaring gifts – usually tickets to sporting or social events totalling “only” several hundred dollars. The most blatant case involved a false declaration about an expenses paid golf trip, resulting in 12 months imprisonment and 2 years release supervision.

www.oag.govt.nz/2007/sensitive-expenditure/

www.ssc.govt.nz/sites/all/files/disclosure-ce-expenses-gifts-hospitality-nov2010.pdf

http://ssc.govt.nz/node/1914

www.usoge.gov/OGE-Advisories/Legal-Advisories/LA-11-08–2010-Conflict-of-Interest-Prosecution-Survey/

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January 4, 2012

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Judging judges – are they better at identifying conflicts?

2 January 2012

The Chief Justice of the United States Supreme Court prepares an end of year report. In several recent reports the focus has been on the need to increase the pay for the judges!  Because of the tight relativities in salaries of US officials, and the fact that the President has not had a pay rise since 2001, federal judges have had their pay frozen.

In the end of year report published yesterday, remuneration does not feature. The Chief Justice has focused his report on the integrity standards of his justices and how conflicts of interest should be determined.

Roberts CJ asks “Where do federal judges look for guidance in resolving ethics issues?”  His answer is that Supreme Court judges are different from other judicial officers.  As the Supreme Court is a creature of the US Constitution, rules for other judges should not apply to Supreme Court judges. Although the chief justice chairs the Judicial Conference which manages the code of conduct for federal judges, he rejects a growing body of opinion that the code should apply equally to the Supreme Court.

Yet there are widely known differences in the willingness of justices like Ginzburg and Stevens to declare ethical matters and the close handedness of justices like Alito and Stevens.  Interestingly the chief justice acknowledges that the Supreme Court conforms to rules directed by Congress for judges to declare gifts and outside-earned income,   although as a separation of powers issue, he queries the appropriateness of complying with that Congressional direction.

The chief justice presents the perspective that Supreme Court justices cannot recuse in the same way as other judges. His concern is that any recusal affects the composition of the Court. Yet with unconscious irony he emphasises the non partisan character of Supreme Court justices – disregarding the major forensic excitement if ever justices give an opinion which does not reflect the politics of the party of the president who appointed them.

The chief justice comments that “…a Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

And yet a simple test of whether a reasonable person would see a conflicting interest would seem much more pertinent.  An interesting truism is the observation that “….at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic.”

What is also interesting is that the disclosure that Supreme Court justices make, in the same way as other federal judges, includes non-governmental income, investments, liabilities, gifts, and reimbursements from third parties. Supreme Court justices declare surprisingly small personal wealth, with most disclosing assets valued at less than $2 million.

The current salary of the US chief justice is US$223,500, (NZ$287,277). Other US Supreme Court justices earn US$213,900 (NZ$274,938).

Salaries for the New Zealand Supreme Court are $460,000 for the chief justice, and $431,000 for the other judges.

 

http://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf

www.legislation.govt.nz/regulation/public/2011/0433/latest/whole.html

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January 2, 2012

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Celebrating 2012

 1 January 2012

This year is the centenary of the Public Service Act.

The Act set up the framework for the Public Service with some characteristics that are still valued What was previously a civil service, with direct Ministerial involvement in appointments, became a new Public Service, a statutory term used already in Canada and Australia. Setting up the Public Service Commissioner as the employing agency facilitated a permanent service, not subject to whims of Ministers.

A number of integrity aspects were entrenched by the legislation to minimise conflicts of interest, including

* excluding direct or indirect political influence in appointments

* empowering the Public Service Commissioner to inspect departments to ensure a “proper standard of efficiency and economy”

* providing for examination and entry qualifications, and requiring all appointments to be on probation

* providing for the classification and grading of positions

* allowing increments for good conduct

* conditioning the eligibility of married women whose spouses were public servants

* restricting public servants from taking part in any occupation or profession whether as principal, agent or office holder.

Activities to mark the centenary are being planned.

This year is also the 111th anniversary of the Constitution of Australia Act which came into force on 1 January 1901. The Australian Prime Minister referred to this in her New Year’s message. Interestingly the Constitution makes no reference to a position of Prime Minister. The Act of course provides for New Zealand to form part of the Commonwealth of Australia.

The reference to New Zealand is in the interpretation section of the Act:

“The States” shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State .

　

http://legislation.knowledge-basket.co.nz/gpacts/public/text/1912/an/023.htmlwww.austlii.edu.au/au/legis/cth/consol_act/coaca430/s6.htmlhttp://en.wikipedia.org/wiki/Commonwealth_of_Australia_Constitution_Act#Amendments <http://en.wikipedia.org/wiki/Commonwealth_of_Australia_Constitution_Act>

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January 1, 2012

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Rapping against corruption

16 January 2012
 
The anti corruption message is championed in different ways. An advocate in Morocco is a prominent rapper. As Morocco has a rating of 3.4 on the 2011 Corruption Perceptions Index there is quite a lot to rap about ( although at 80th place on the CPI, Morocco is placed equally with Thailand, Greece, ElSalvador, Colombia and Peru.)
 
Known as El Haqed – the Sullen One – the rapper is one of the boldest critics of the Moroccan monarchy. He was released from a prison sentence last week having serving four months for attacking a politician of the Monarchist Party. His lawyer claims the charge was intended to muzzle criticism, but on release he said he would continue rapping in protest against the massive corruption Moroccans endure at the hands of the state and politicians.

Reuters describes him as the singing voice of the movement demanding a constitutional monarchy, an independent judiciary and a crack down on corruption. He raps about the need for Moroccans to “wise up” to the corruption about them. He has had more than 600,000 You Tube hits on his song “Bite just as much as you can chew”.

 http://af.reuters.com/article/topNews/idAFJOE80B09X20120112?pageNumber=2&virtualBrandChannel=0&sp=true

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January 1, 2012

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Havel – the art of the impossible – improving ourselves

31 December 2011

 

The end of the year is a suitable time to recognise the contribution to the principles of good government made by Vaclac Havel (who died earlier this month).

It was New Year’s Day 22 years ago that in his first speech as the Czechoslovak president he indicated the need to …. “teach ourselves that politics can be not just the art of the possible, especially if that means the art of speculation, calculation, intrigue, secret deals and pragmatic manoeuvring, but that it can even be the art of the impossible, namely the art of improving ourselves and the world.”

His philosophy was that “the prerequisite for everything political is moral. Politics really should be ethics put into practice.”

These views were rubbished by Vaclac Klaus, his political rival and onetime colleague, who saw him as wanting… ” to take advantage of the end of communism to create something more than a free society” … of wanting….”to have not only free men and women here, but better men and women as well.”

Havel’s idealism however is not unlike the spirit of service expected by the State Sector Act, and the State Services Commissioner’s code of conduct, including the obligation to strive to make a difference. Some of his pertinent observations include the following: –

　

“Genuine politics – the only politics I am willing to devote myself to – is simply a matter of serving those around us: serving the community and serving those who will come after us. Its deepest roots are moral because it is responsibility expressed through action, to and for the whole.”

“The prerequisite for everything political is moral. Politics really should be ethics put into practice.”

“The truth is not simply what you think it is; it is also the circumstances in which it is said, and to whom, why, and how it is said.”

“Keep the company of those who seek the truth – run from those who have found it”

“There is only one thing I will not concede: that it might be meaningless to strive in a good cause.”

Parts of his 1975 open letter to Czechoslovakian President Husak have a continuing and universal relevance:

“… it is not surprising that so many public and influential positions are occupied, more than ever before, by notorious careerists, opportunists, charlatans, and men of dubious record; in short, by typical collaborators, men, that is, with a special gift for persuading themselves at every turn that their dirty work is a way of rescuing something, or, at least, of preventing still worse men from stepping into their shoes. Nor is it surprising, in these circumstances, that corruption among public employees of all kinds, their willingness openly to accept bribes for anything and allow themselves shamelessly to be swayed by whatever considerations their private interests and greed dictate, is more widespread than can be recalled during the last decade.”

And for those with an interest in ethics and public sector integrity a good grounding is to remember Havel’s advice that ….”Anyone who takes himself too seriously always runs the risk of looking ridiculous; anyone who can consistently laugh at himself does not. ”

 

www.goodreads.com/author/quotes/71441.V_clav_Havel

www.guardian.co.uk/world/2011/dec/18/vaclav-havel

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December 31, 2011

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Clean government but not too clean?

30 December 2011

Most politicians, when in opposition seek tools for more effective scrutiny of government; they speak encouragingly about transparency. Opposition parties are attracted to policies that “keep government honest”. On gaining office, priorities change. This is evident in a number of jurisdictions where the commitment to strengthening openness regimes has diminished. The move in Australia to set up a framework to enforce ethical standards among federal politicians is an example. Despite the pledge by the Prime Minister to speedily enact a code of conduct policed by an integrity commission, these anti corruption measures are unlikely to be in place within the next 12 months.

The New South Wales Premier when opposition leader, was outspoken about the need for higher ethical behaviour from Ministers. But, now in power, he is less driven about finalising his proposed Public Sector Ethics Act.

The Canadian experience, perhaps, is typical. The Conservative Government elected to clean up government and implement the findings of the Gomery Commission, has still not appointed the Appointments Commission which was among the ethics watchdogs provided for in the Federal Accountability Act. And the Integrity Commission, has been an embarrassment, with a politically sympathetic appointee taking no substantive action on any of the 170 allegations made to her. An Auditor General inquiry also found that allegations of the Integrity Commissioner bullying staff and abusing the privacy of some, were well founded. In the ultimate irony for an Integrity Commission, the new Commissioner appointed a fortnight ago has said that … “our biggest challenge remains establishing trust in the Office.”

The Canadian Government must be embarrassed already by actions earlier this month by the former Auditor General, Lobbying Commissioner, Chief Electoral Officer, Information Commissioner, Privacy Commissioner, Official Languages Commissioner and the Acting Integrity Commissioner. They jointly signed what the Ottawa Citizen called an “unprecedented appeal” for better parliamentary scrutiny of governance watchdogs and their work.

　

www.theaustralian.com.au/national-affairs/long-wait-for-integrity-watchdog-for-politicians/story-fn59niix-1226232951253

www.nsw.liberal.org.au/news/premier-of-nsw/nsw-govt-taking-steps-to-restore-integrity-to-public-service

http://psic-ispc.gc.ca/about_apropos/message_dec-eng.aspx

www.ottawacitizen.com/news/Parliamentary+watchdogs+still+waiting+hear+back+their+request+better+accountability+from/5889179/story.html

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December 30, 2011

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Some parting concerns of UK Cabinet Secretary

 
23 December 2011
 
Sir Gus O’Donnell who leaves office as Head of the UK civil service and Cabinet Secretary at the end of the month, has made a series of interesting comments about  governance arrangements. 
 
Most newsworthy is his observation that the Union is at risk, with a likelihood that Scotland will go its own way. This follows anger expressed earlier this year that UK civil servants working with the Scottish Government were advising on ways to implementing the Scottish Nationalist Party’s separation policy.
 
 
To face  “enormous challenges” like the economic crisis, the EU situation,and issues like Scotland’s future,  Sir Gus has suggested that officials should be given greater opportunities for “doing more for less”. Ministers should be less enthusiastic about legislating change, reducing rather than increasing the amount of regulation.
 
 
He is concerned about public access to Cabinet minutes. He worries about the implications for effective government if records of debates among Ministers at Cabinet meetings are to be made available under the freedom of information law. Although a transparency advocate, he considers Ministers need to be comfortable knowing that they can strongly disagree with proposals without matters being disclosed until the general release of documents by National Archives after 20 years.
 
 
As Cabinet Secretary  Sir Gus takes minutes of Cabinet discussions.  He said he was concerned that in future officials will tone down any record of dissent in Cabinet minutes to avoid Ministers being embarrassed if material must be disclosed.  He indicated that he did not fudge minutes but that rules requiring the release of records of Cabinet discussions could have that effect in future.
 
 
(No records of debates within Cabinet or in Cabinet Committee are disclosed in New Zealand.   Minutes of formal decisions made by Cabinet have restricted circulation and constraints on accessibility.  The Cabinet Manual sets out the interface between the Official Information Act and Cabinet material.)
 
 
Another interesting observation by Sir Gus was his impression of the effectiveness of lobbyists. His view is that lobbyists exaggerate their access and influence as part of self promotion. He feels that businessmen can get their message across to decision makers quite openly, and that officials should be able to make direct contact when seeking information. Lobbyists should be dispensed with. “It’s very important that we as civil servants aren’t monks. I need to be able to pick up the phone to the chairman of a FTSE 100 company and say ‘What’s going on?”
 
 
It is interesting to speculate on the business-related roles Sir Gus may take on in his retirement.  The expectation is that he will be appointed to the House of Lords.
 
 
 
 
 
 
 

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December 23, 2011

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Things for departments to do better

22 November 2011

The Auditor General has released her report on Central Government: Results of the 2010/2011 audits.

This annual publication always has a pearl or two buried among content that may excite auditors but few others. A consequence is that these reports are seldom referred to as an authority for anything in particular.

From an integrity perspective Part 8 of the 2003 / 2004 audits report is one of the pearls. This is the chapter on “Fraud – The responsibilities and duties of public entities”.

It sets out systems the Auditor General expects agencies have to minimise fraud and their response processes in the event of fraud. The content was repackaged as the “Result for fraud management strategies – prevention detection, incidents of fraud and fraud response” in the report on the “Cleanest Public Sector in the World – Keeping fraud at bay” published on October this year.

In this year’s report Chapter 6, about audits in government departments, lists nine particular issues. Of these, the three most common concerns are;

* management risks associated with structural changes, such as restructuring costs, loss of institutional knowledge, or weakening of internal controls

* weaknesses in procurement practice

* unappropriated expenditure

In essence these are integrity matters. They are addressed by the State Services Commissioner’s integrity standards, particularly those grouped under the public service principles of being Responsible and Trustworthy.

 

 
 
 

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December 22, 2011

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Lobbyists – unseen and unaccountable

21 December 2011

A general election results in jobless former politicians. Most want to remain on the political scene. Their skills may make them suitable for appointment to Crown entities or similar boards. Others will find lobbying roles – euphemistically referred to in New Zealand as public relations.  Some will combine lobbying with an agency appointment.  There will be very little transparency about the relationships. Passes to Parliament Buildings, meaning ready access to MPs and Ministers, attest to their continung influence. They will be contracted to promote interests to those former colleagues. This “revolving door“ is seen in most developed jurisdictions as a cause of declining trust in government.

Last year the OECD published Principles of Integrity and Transparency in Lobbying.  New Zealand stands apart from the other member-states, having done nothing to acknowledge the Principles. These Principles reflect experiences within the OECD and the need for openness to counter the corrupting influence inherent in lobbying.

The OECD expectations include

  • setting of lobbying standards,
  • registering lobbyists–with a stand-down period before MPs and particularly Ministers can be registered,
  • deregistering lobbyists who breach the standards
  • requiring the disclosure of lobbyists’ clients
  • obliging Ministers and senior officials to disclose meetings with lobbyists
  • prohibitions on lobbyists giving gifts and providing hospitality

Because powerful vested interests expect ready access to decision makers, all countries have difficulty with policing their lobbying measures.  In Canada the Lobbying Commissioner has been advocating for tighter controls because of the breach of standards-already much more rigorous than anything in New Zealand.

In Australia both federal and state provisions are being bolstered.

The British media is currently focusing on the influence of lobbyists. A concern centres on Bell Pottinger – a  politically well-connected lobbyist – which disclosed clients whose reputations it has laundered, including Uzbekistan, Belarus, Yemen , Sri Lanka, News of the World and Pinochet.    The Independent this week reported that 20% of former MPs who left office at the 2010 election work for companies that lobby the UK Government. There are 326 former MPs with passes to Westminster who are not required to declare their business interests.

The OECD standards are seen as unnecessary having regard to the generally high standards of public life in New Zealand.  But matters are more likely to deteriorate than stay the same. With his recent death, an observation of Vaclav Haval, the Czech champion of democracy is apposite;  “Evil must be confronted in its womb”.

www.oecd.org/document/48/0,3746,en_2649_34135_44644592_1_1_1_1,00.html

www.cbc.ca/news/canada/story/2011/12/12/pol-weston-jaffer-analysis.html

www.thebureauinvestigates.com/2011/12/14/members-passes-explained/

http://waterpressure.wordpress.com/2011/06/14/nbr-lobbyist-explains-his-swipe-card-into-parliament-my-comments/

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December 21, 2011

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Democracy really is good for us

 20 December 2011
 

 

The deaths this week of two national leaders focus attention on the advantages to national well being of democracy. Coincidentally this is the week that the Economist Intelligence Unit released the Democracy Index 2011. The Index published annually since 2008 evaluates democratic practices in 167 countries covering almost all the World’s population (as only micro states are excluded.)

The survey provides an opportunity to compare the Czech Republic which was the first part of the Soviet Bloc to abandon authoritarianism and pursue full democratic values, and North Korea, which has remained ultra authoritarian, rejecting the values of democracy.

In the Czech Republic, the death is being marked of former President Havel. He led the “velvet revolution” and as observed by President Obama “helped to unleash tides of history that led to a democratic Europe”.  Czech Republic is ranked 16th on the Democracy Index.

In North Korea Kim Jong Il, successor to his father as the Dear Leader, has died. As the absolute ruler, he maintained authoritarian practices which have ensured North Korea’s place as the lowest ranking country on the Democracy Index, at 167th place.

Czech Republic is the highest rated of former communist countries (Slovenia is 30th, Estonia 34th and Slovakia at 38th).

North Korea’s lack of democracy mirrors its only allies – China 141st and Russia at 117th. (Othe similarly absolutist regimes are Myanmar at 161st=, Uzbeckistan at 164th , Turkenistan at 165th and Chad at 166th).

The advantages of democracy are evident in the Legatum Prosperity Index (published in October).  The Czech Republic ranks in 26th place; North Korea is not included among the 110 countries ranked because it has not made economic data available. (The Central African Republic which ranks in 160th place on the Democracy Index is bottom ranked (110th) on the Prosperity Index.)

New Zealand is 5th on the Democracy Index and 4th on the Prosperity Index.

Britain is 18th on the Democracy Index and 13th on the Prosperity Index.

United States is 19th on the Democracy Index and 10th on the Prosperity Index.

Norway tops both Indices!

　

www.eiu.com/public/topical_report.aspx?campaignid=DemocracyIndex2011

www.prosperity.com/rankings.aspx　

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December 20, 2011

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