Sleep off temptation

19 May 2011

Not getting enough sleep reduces our capacity for “innovative thinking, risk analysis, and strategic planning” and may increase our susceptibility to deviant and unethical behaviour. This is a finding from research soon to be published. Accidents caused by sleep deprivation are reported to cost the United States economy about US$150 billion each year. But the impact of staying up all night working to meet deadlines, and long hours on business related travel may also promote poor judgement, rudeness and greater deviance!

Can the recent rash of misconduct involving prominent people be a consequence of inadequate sleep? Will IMF head Dominique Strauss-Kahn, remanded in custody this week on a sexual assault charge, have a defence of sleeplessness from coping with the Greek financial crisis? May be the list of leaders from many parts of the world in the media for misdeeds, can justify their misfeasance on the demands of their jobs and the effects of nature.

State servants have an obligation at all times to avoid activities which may harm the reputation of their agency or the State Services. Although what we do in our private lives is not usually of concern to our employer, misconduct is likely to breach the obligation to be responsible and trustworthy. The guidance in Understanding the Code of Conduct explains that …“we must avoid being connected publicly with behaviour that is likely to bring our organisation into disrepute or diminishes the reputation of the State Services”. The prison officer who pleaded guilty this week to growing cannabis would not appear to have had that obligation upper most in his mind.

www.washingtonpost.com/blogs/post-leadership/post/why-sleep-deprivation-can-makeyou-unethical/2011/04/01/AFIIxT2G_blog.html

 www.ssc.govt.nz/display/document.asp?docid=7902&pagetype=content&pageno=5

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May 19, 2011

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Australians get more open

18 May 2011

The Australian Government’s commitment to open government will become more evident this week.  Provisions in the Freedom of Information Act which came into force on 1 May require agencies to publish a record of information released under the Act.  Details should now start appearing on agency websites.  This will avoid any exclusivity being given to a person making the request. An information request indicates that material is of public interest and should therefore be made accessible to all.

Agencies are required to publish on their websites:

  • a log of information released in response to individual FOI requests. This must be published within 10 days of releasing the material.
  • an Information Publication Scheme (IPS)  containing information in documents to which the agency routinely gives access in response to FOI requests. The purpose of proactive release is to lessen the number of information requests made to agencies.

Where information could be published on both the disclosures log and the IPS, agencies are expected to ensure the material is linked. Many agencies, including the Prime Minister’s Department, the Treasury and the Australian Public Service Commission, are using a common logo on their websites to highlight the disclosures log and the IPS.

An interesting consequence will be the effect on the media, as they will have a lead time of only 10 days to publish requested material before it is disclosed on the log. An agency could immediately disclose the request and undermine the scoop potential for an investigative journalist Information that one part of the media may have had to pay an agency to prepare for release, will be available at no charge after 10 days to anyone.

This Australian initiative has no equivalent in New Zealand.  In Nicola White’s 2007 research “Free and Frank – Making the Official Information Act Work Better”, she identified four possible courses of action to improve the availability of information, involving varying degrees of coercion on agencies. None has been taken up.  We are not taking “the next step in freedom of information…to restore trust and confidence in the political process and public administration in New Zealand”. The obligation that “we must treat information with care and use it only for proper purposes” is explained by the State Services Commissioner in “Understanding the code of conduct” with an emphasis on secure management of information rather than the earlier provision of section 4 –

“(a) to increase progressively the availability of official information to the people of new Zealand in order-

  • (i) to enable their more effective participation in the making and administration of laws and policies; and
  • ii) to promote the accountability of Ministers of the Crown and officials,—

and thereby to enhance respect for the law and to promote the good government of New Zealand..”

www.immi.gov.au/about/foi/foi-disclosures.htm

www.theaustralian.com.au/business/media/freedom-of-information-rule-change-upsets-hunt-for-scoops/story-e6frg996-1226047991068

www.ssc.govt.nz/display/document.asp?DocID=7902

http://www.oaic.gov.au/news/media_release_a-more-transparent-government.html

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May 18, 2011

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Heat put on NSW lobbyists

16 May 2011

To moderate the corrupting potential of lobbying, the OECD last year issued Principles for Transparency and Integrity in Lobbying which member states are encouraged to implement. The first principle seeks to ensure that there is a level playing field for all stakeholders to have equal access to decision makers in government. The other principles provide structures to achieve this.

Successive New Zealand Governments have shown no interest in controlling the lobbying of Ministers and officials. New Zealand politicians feel that, as we have a level playing field and a culture of integrity, further regulation is unnecessary.  Almost every other OECD country is strengthening constraints on lobbyists.

Lobbying controls are a priority for the incoming Government in New South Wales.  As one of the very first considerations of the new Parliament, legislation was introduced last week intended to restore public trust and confidence in government, allegedly lost through the misuse of influence under the previous administration.

The premier had “… bad news for people in this House and outside this House, for businesses in this State, and anyone else who believes that by employing a lobbyist they are going to get better access to my Government or get an inside run on a decision, a tender or anything else, that they are wasting their money. Those days are over.”

NSW already has a lobbying code, a register of lobbyists and disclosure requirements. A prohibition on success fees will now be added to those controls.

http://acts.oecd.org/Instruments/ShowInstrumentView.aspx?InstrumentID=256&InstrumentPID=250&Lang=en&Book=False

http://news.ninemsn.com.au/national/8244399/nsw-to-ban-lobbyist-success-fees

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May 17, 2011

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“Bribery is not a victimless crime…”

16 May 2011

Last week, a Californian company together with its CEO and CFO were the first to be convicted under the (US) Foreign Corrupt Practices Act.  The company had used an agent to get information from an official in a Mexican power supplier with which it hoped to do business.  The official had been rewarded for the information with a US$1.8m yacht, a Ferrari Spyder costing US$297,500  and had more than US$170,000 paid off his credit card.

The jury in a five week trial heard how more than US$19 m of business flowed from the arrangement with about US$5m being paid straight back to the agent. The company officers, who could be sentenced to 30 years imprisonment, claim they didn’t know their agent was passing his remuneration to the official. The jury accepted that the payments were intended as bribes. The agent, who has been in custody for nine months, was convicted of money laundering which carries a penalty of 20 years. Her spouse wanted also for money laundering and other charges, did not appear for the trial

A US Assistant Attorney General said the guilty verdicts were an important milestone. “Foreign corruption undermines the rule of law” … “we are fiercely committed to bringing to justice all the players in these bribery schemes – the executives who conceive of the criminal plans, the people they use to pay the bribes, and the companies that knowingly allow these schemes to flourish.

“Bribery is not a victimless crime,” It has real consequences.  “Not only does it damage citizens’ confidence in their own government, it also damages the integrity of the global marketplace.” … “Bribery, wherever it occurs, will carry the potential cost of criminal prosecution, hefty fines and prison terms.”

Under the New Zealand Crimes Act s105C  Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give a bribe to a person with intent to influence a foreign public official in respect of any act or omission by that official in his or her official capacity (whether or not the act or omission is within the scope of the official’s authority) in order to—

  •  obtain or retain business; or
  •  obtain any improper advantage in the conduct of business.

www.justice.gov/opa/pr/2011/May/11-crm-596.html

www.legislation.govt.nz/act/public/1961/0043/latest/DLM328761.html

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May 16, 2011

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“I have nothing to offer but blood, toil, tears and sweat”.

13 May 2011

Today is the anniversary of Winston Churchill’s first speech in Parliament as British Prime Minister in 1940.

Yesterday, somewhat less dramatically, was the triennial publication of the State Services Commissioner’s general election guidance -“State Servants, Political Parties, and Elections: Guidance for the 2011 Election Period”.

The content is a refinement of material published before the 2008 general election which in turn evolved from previous guidance. It includes five very important appendices-

-the standards of integrity and conduct for the State Services

-government advertising guidelines in the election period

-guidance on costing political party policies

-Ombudsmen’s expectations on releasing politically sensitive official information

-preparing post-election briefings for incoming Ministers.

A familiarity with political neutrality obligations, often tested in an election period, is core to public service professionalism.

A consequence of evolving government structures and the changing responsibilities of agencies, is that definitions in statute can become distorted. The election guidance faces this problem in explaining the application of the Electoral Act section 52.  This is the provision requiring public servants to take leave from nomination day until election day.

What is a public servant? The guidance indicates that it includes kindergarten teachers and Samoan public servants. The later being an extraordinary claim to extraterritoriality as Samoa has been an independent state since 1962.  But the term excludes officials working in agencies of major constitutional significance where impartiality is paramount, such as the Office of the Clerk of the House of Representatives, the Remuneration Authority, the Representation Commission and the Office of the Auditor General (among many others).

The law requires employees in the education service to take leave if they wish to stand for election to Parliament, but these same academics and teachers are not subject to the State Services code of conduct. Ironically, the code does apply to people working in about 100 Crown entities, but they are not  public servants who must to take leave if contesting the election.

The overriding guidance of course is the Cabinet Manual. That requires all employees in the State sector – a very broad definition – to act with a spirit of service to the community and meet high standards of integrity and conduct in everything they do.  “In particular, they must be fair, impartial, responsible and trustworthy”.

www.ssc.govt.nz/display/document.asp?docid=8093

www.ssc.govt.nz/display/document.asp?navid=273

www.cabinetmanual.cabinetoffice.govt.nz/3.50

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May 13, 2011

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What part can we play in elections?

12 May 2011

The State Services Commission will shortly be publishing its General Election Guidance for State Servants.  Material has been released in anticipation of elections for almost 20 years, reminding officials of the meaning of political neutrality in the sensitive period when parties are campaigning and aspirants are promoting their candidacy. The scope of the guidance has remained similar although the trend is to increasing specificity.

An interesting comparison is with the advice published by the Scottish Government in the lead up to their Parliamentary election last week. The Scots make it clear that the obligations of political neutrality – of carrying out official duties impartially – applies to all types of civil servants.  As in the UK civil service, there is a “politically restricted” class who may not take part in any political campaign, a “politically free” class who may take part in campaigning, and the intermediate class entitled to take part provided they have no part in policy development in their jobs, they campaign as individuals with no reference to their employment, and they have official permission to do so.

Obligations are different in New Zealand.  State Services Commissioner’s guidance has made it clear that as all State Servants have a right to be politically involved, it is inappropriate for any agency to require that their employees obtain formal permission before supporting a political campaign.

However consultation is encouraged to minimise any conflicts which may impact on the confidence of current or future Ministers in that agency.  The British practice of prohibiting a class of State servants from participating in campaigning seems unacceptably discriminatory.  (Yet in New Zealand, there was a period in the 1920s when public servants were disqualified from political party involvement.)

An area where New Zealand has always shown an ambivalence is the expectation of Ministerial advisers.  Ministerial staff are employees of the Department of Internal Affairs, making them State servants, and subject to the Cabinet Manual requirements to be “fair, impartial, responsible and trustworthy”, in the same way as all employees in the State Sector.  But their “day job” is to support the political activities of Ministers and despite being paid to do the work of government, they probably undertake party work in the run up to an election.  In Scotland there is a prohibition.

Special Advisers, the equivalent of Ministerial Advisers in New Zealand, who remain in post during an election campaign “may continue to advise Ministers on Scottish Government policy, but must take particular care not to take any active part in the campaign.”

A  related issue gaining attention in the United States at present is the type of photograph featuring the President, or the Vice President, permitted in federal workplaces.  With President Obama now officially a candidate for reelection, displaying his picture can breach the Hatch Act.  The law prohibits federal buildings, vehicles and uniforms being part of a partisan campaign. Anything other than a formal photo as the Head of State is likely to be unacceptable.

www.scotland.gov.uk/Resource/Doc/923/0113838.pdf

www.cabinetmanual.cabinetoffice.govt.nz/3.50

www.iecjournal.org/iec/2011/05/osc-additional-guidance-on-photos-of-the-president-vice-president.html


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May 12, 2011

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Perhaps a case of “scotts wha hae”?

11 May 2011

Blog entries yesterday and the day before, have characteristics in common.  One is how systematic evaluation can debunk political rhetoric and another is the intellectual alignment of the New Zealand report on the 2011 OECD Sustainable Governance Indicators, and the Government’s Review of Expenditure on Policy Advice.

New Zealand’s economic performance can be a football, frequently kicked about by opposition parties when criticising policies being implemented by governments.  The SGI indices gather qualitative and quantitative data in a fully transparent way that shows New Zealand is a world leader in its capacity for “dynamic and adaptable policy making…”

Commentators anticipated that the Policy expenditure review would disclose  poorly managed services including waste and overstaffing.  The findings, possibly because they lack such drama, have received minimal media coverage. Excluding support for foreign policy, expenditure on policy advice fell by 0 .6% in real terms since 2005/2006.  Some areas of government are exceptionally busy and significant investment is urgently needed to avoid dysfunction. Justified concerns were in areas of policy leadership, coordination across government, and policy thinking that was not being done because of a focus on delivering government priorities.

Dr Graham Scott chaired the Policy expenditure review.   In what appears to be a contemporaneous assignment for the Scott household, Professor Claudia Scott was one of the experts who supported an international board of policy experts and academics review the New Zealand data and its evaluation for the SGIs.

www.stuff.co.nz/national/politics/3987813/Job-cuts-likely-with-consultancy-review

www.treasury.govt.nz/statesector/policyexpenditurereview

www.treasury.govt.nz/statesector/policyexpenditurereview/summ-repa-apr11.pdf

www.sgi-network.org/pdf/SGI11_NewZealand.pdf

en.wikipedia.org/wiki/Scots_Wha_Hae

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May 11, 2011

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Providing efficient and effective policy advice

10 May 2011

The State Sector Act prescribes that Public Service chief executives must ensure the management of their department is “efficient,  effective and economical…”- a requirement to achieve outputs (efficient) and intended outcomes (effective) from proper use of inputs (economical). Current Ministers expressed concern before coming into government which they have periodically repeated , that agencies are not delivering the expected returns on investment. They expect all agencies, whether departments, Crown entities or State Owned Enterprises, to “lift their game” with a focus on delivering more for less.

Ministers feel there can be better service provided with fewer resources, a commitment to results not advocacy, and a fundamental shift to providing value for money. Different approaches  are being developed across government to meet these expectations. The Minister of Finance has forecast that the Budget next week will be structured around achieving value in a time of economic restraint – essential with Christchurch earthquake effects dramatically aggravating difficulties the global financial crisis was already causing for New Zealand.

Last year the Government set up a Review of Expenditure on Policy Advice. The Minister of Finance and the Minister of State Services were looking to the committee chaired by Dr Graham Scott to identify where improvements could be made in what was suspected to be a bloated and inefficient policy advice sector.  Dr Scott, with ACT party credentials could be seen as an advocate for a reduced public sector, where Ministers exercise their discretion to purchase advice from preferred sources without reliance on officials schooled in the “free and frank” tradition. It seemed likely that he would recommend substantial change.

The review committee report and the Government’s response were published concurrently in late April..  The report found a range of concerns, but indicated that these could be “improved easily”. The Government response acknowledged the review committee’s observations that the policy sector struggled with exception demands,  inadequate resources and unhelpful leadership.  The response directs changes to be set out in a plan to be published by 30 June  that will be led by the Treasury, Department of Prime Minister and Cabinet, and State Services Commission.

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10663342

http://www.beehive.govt.nz/release/government-act-policy-advice-spending-review

http://legislation.govt.nz/act/public/1988/0020/latest/DLM129548.html#DLM129548

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May 10, 2011

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Should New Zealand blow its own trumpet?

9 May 2011

There has been no coverage in New Zealand media of the OECD Sustainable Governance Indicators 2011.    The indicators answer the question “How sustainable are the highly industrialised nations of the OECD?”  The report evaluates the governance capacity of the 31 OECD members.

The 2011 report published in April,  follows the initial evaluation in 2009, providing  detailed comparison of capability and performance.

New Zealand is ranked 4th (after the “usual suspects from Scandinavia) on the SGI Status Index. This index measures the quality of democracy and the  rule of law.  “The quality of democracy and political participation …are crucial to…long term stability and capacity to perform.  Indeed, this viability depends to a large extent on the levels of trust between citizens and politics.”

New Zealand is ranked 5th on the SGI Management Index (again after the Scandinavians) in the assessment of actual capacity to take action and implement reform in terms of developing, agreeing and implementing policy.

The report gives voice to the pillars of good government, which have always been championed by the State Services Commission;  the rule of law, respect for the democratic process, and the spirit of service to the community. The SGI findings validate the emphasis placed on the Trust Goal for the State Services –  the commitment to strengthening trust in government and reinforcing the spirit of service – and the statutory duties of agencies to imbue staff with the spirit of service and to maintain high standards of integrity.

The New Zealand  report is a very readable précis of government arrangements – with a few errors, inevitable in such a tight summary.

http://www.sgi-network.org/index.php

http://www.sgi-network.org/index.php?page=scores_countries&country=NZL

http://www.ssc.govt.nz/display/document.asp?docid=7902&pageno=1#P9_0

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May 9, 2011

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Free speech sparks US Supreme Court appeal

6 May 2011

Good government is based on regulating conflicts of interest. Personal interests are not to be championed at the expense of community wellbeing.  Those in government must be committed to transparency and do nothing to create personal advantage from their official position.

But is that correct?  Is free speech less important than managing conflicts of interest?

That is an issue now being considered by the US Supreme Court. Do States violate free speech if they prohibit politicians voting on legislative matters when they have an apparent conflict of interest. The case has been described by Justice Scalia as enormously important because it “opens the door to future litigation challenging ethical rules”.

Like many Supreme Court cases this one has humble origins. A friend of a councillor in Sparks, a town of 90,000 in Nevada, began working for a casino development company.  The friend had helped in the councillor’s election campaign.  When a matter relating to the friend’s employer was being considered by the council, the councillor obtained advice from the city attorney that he was entitled to vote. The State ethics commission disagreed;  he should have abstained. In due course the Nevada Supreme Court ruled that the councillor’s First Amendment right of free political speech had been unlawfully restricted.

Can a politician with no financial or family ties to an issue be precluded from representing his constituents?

Will  the Court take steam out of the international movement for open and integrity-rich government by deciding that conflict management rules and freedom of speech are incompatible?

Is it conceivable that the Cabinet Manual guidance for New Zealand Ministers about avoiding conflicts of interest, and the State Service Commissioners standards about trustworthiness,  will be undermined by small town politics in the United States?

It will be several months before we know.

www.washingtonpost.com/politics/supreme-court-confronts-whether-conflict-of-interest-laws-violate-officials-free-speech/2011/04/23/AF9hsTdE_story.html

cabinetmanual.cabinetoffice.govt.nz/2.50

www.ssc.govt.nz/display/document.asp?docid=7902&pageno=5#P277_25160

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May 6, 2011

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