Managing Conflicts of Interest in the
A Comparative Review
Eric Raile [1]
(
INTRODUCTION
This paper
provides a primarily descriptive overview of approaches to managing
public-sector conflicts of interest throughout the
The second section of the paper uses seven
brief case studies of countries in the
I.
COMMONALITIES
Conceptual Framework
This
paper principally employs the OECD’s generic definition of a conflict of
interest.[4]
That definition is as follows: “A
‘conflict of interest’ involves a conflict between the public duty and private
interests of a public official, in which the public official has
private-capacity interests which could improperly influence the performance of
their official duties and responsibilities.” Worth noting is that particular
definitions and term usage differ throughout the
The
concept of conflict of interest characteristically flows from broader
principles of sound public service. Examples of such principles are: (1) public
servants should not misuse or abuse public office for the private gain of
themselves or others; (2) public servants must place the public good above
private interests; and (3) public servants should carry out their duties
impartially and without prejudice to any individual or group. In countries in
which the legal framework does not provide an explicit definition of the term “conflict
of interest,” the body of laws and regulations that operationalize the underlying
principles of sound public service compose the definition.
Finally, the
term “patrimonial statement” enjoys widespread use in the
Legal Framework
Many
of the countries examined, particularly in
Multiple bodies of law govern
situations that constitute conflicts of interest in the
In addition, multiple countries
examined regulate conflicts of interest arising from previous employment or
professional service relationships. Public servants are usually further
required to report crimes or other violations of probity in the performance of
public functions of which they become aware. In several countries of the
Conflict-of-interest restrictions also often appear in laws governing processes in which government entities frequently engage and/or processes that frequently give rise to the potential for conflicts of interest. Government processes that attract added scrutiny and special conflict-of-interest regulation include, among others:
Such laws supplement broader restrictions applicable to public servants in general. Public sector agencies with special conflict-of-interest concerns also may have separate, supplemental standards to augment government-wide standards. The degree of centralized coordination (i.e. creation, approval, implementation, and enforcement) of such specialized conflict-of-interest standards varies across the countries examined.
In addition, restrictions often exist concerning public servants’ outside employment activities and positions with nongovernmental entities. In countries with such restrictions, exceptions frequently exist for teaching activities. In some cases, the existence of a conflict of interest may constitute grounds for disqualifying an individual from a government position. Some countries go so far as to prohibit certain high-level public officials from holding any outside position. Such restrictions on outside activities are particularly common for judicial officials and legislators.[6] A smaller number of countries have created restrictions on the activities of certain former public servants after they have left their government positions. These post-employment restrictions aim to prevent the misuse of professional connections and influence over former colleagues and subordinates.[7]
Conflict-of-interest
situations for judges and legislators are commonly covered by separate laws,
rules, and procedures than those covering public servants in executive or
administrative positions. Restrictions for judges often appear in criminal
and/or civil procedure codes due to the respective roles performed by judges in
government and the inability of most judicial branches to promulgate binding
regulations. Laws may prohibit judges from hearing cases when the outcome could
affect their private interests or the interests of relatives. In many countries
of the
Finally,
countries in the
Implementation
Implementation
of conflict-of-interest policies falls to an assortment of governmental bodies
in the countries examined. In countries in which a centralized authority for
coordinating conflict-of-interest standards and policies exists, this authority
often exercises many of the functions necessary for the effective
implementation of the relevant standards and policies. Some countries utilize
much more decentralized systems. Regardless of the degree of centralization,
supervisors and officials in leadership positions within their respective
organizations play an important part in administering conflict-of-interest
policies, in addition to their role of serving as positive examples. The
section of this paper entitled “Ethics Offices in the
Systems
for the revelation of potential and actual conflicts of interest include (1) statements
of interests, (2) disclosures of assets and other financial interests, (3) sworn
declarations, and (4) declarations to supervisors or other appropriate
authorities concerning specific conflicts of interest. These various terms,
some of which refer to procedures that are quite similar in practice, all refer
to written and/or verbal reports of some type. Some of these reporting
requirements are ongoing while others are periodic or situation driven.
Compliance with the filing requirements of these systems often is enforced
through such means as criminal penalties for failure to file and/or the
withholding of salaries. In some cases, these financial disclosure systems are
designed to help prevent and detect potential conflicts of interest before they
adversely affect government decisions or processes. However, using financial
disclosure and declarations in the
Globally the
issue of illicit enrichment has been subject to debate due to beliefs on the
part of some governments that illicit enrichment as a concept violates certain
constitutional and other legal principles, such as presumed innocence. Other
governments contend that this is not the case. Additionally, the potential
costs of monitoring and investigating public servants for illicit enrichment
are disincentives for using such a system. Given the debate, it will be
interesting to see how the use of illicit enrichment prohibitions and detection
systems plays out in the
The
use of training programs to make public servants aware of the
conflict-of-interest requirements to which they must adhere is also growing in
the
A smaller number of countries have established mechanisms by which public officials may consult and receive advice on conflict-of-interest and other ethics standards.[11] These counseling programs aim to answer questions that public servants have about possible conflicts of interest, to clarify the meaning and application of specific restrictions, and to provide guidance to officials on how they can comply with the relevant laws and regulations. Counseling systems help protect both public servants and government decisions and processes.
Evaluation
An
emerging area of interest in the
Enforcement
Enforcement mechanisms for violations of conflict-of-interest standards include an assortment of legal and administrative actions that can be taken against those responsible for violations. In no country examined does the imposition of an administrative penalty prejudice the pursuit of further penalties for corresponding civil or criminal violations. Authorities responsible for pursuing investigations of violations, pursuing administrative actions, and pursuing prosecutions include: internal audit or control offices in government entities, comptroller general offices, attorney general offices, and specialized public corruption control agencies, among other entities.
Common administrative punishments include suspension or dismissal from one’s public position. Such punishments normally follow established procedures for taking administrative actions against employees. Other administrative punishments include:
Compulsory loss of position is frequently imposed in response to violations of certain conflict-of-interest standards. Dismissal from public office may affect a person’s ability to obtain future government employment. In some cases, dismissal results in automatic disqualification from holding public office for a specified period of time.
In addition, many countries provide recourse for the government in cases in which government decisions, processes, or functions have been compromised by the existence of prohibited conflicts of interests. Laws specifically related to government contracting often contain provisions allowing for the nullification or termination of contracts entered into in violation of the applicable standards and procedures. This does not mean, however, that actions taken in violation of conflict-of-interest standards are necessarily or automatically made invalid; nullification sometimes requires a separate determination. Violation of contracting standards may also result in an inability to participate in future government contracts or to provide other services to the government.
Programmatic Changes
Perhaps the most
impressive development in the
II.
BRIEF CASE STUDIES: POINTS OF INTEREST
Moving from a
generalized view of regional commonalities to more specific country studies, we
note that many countries of the
As
mentioned, the OAS Committee of Experts has issued recommendations to the
Argentine government. In implementing those recommendations, the Anticorruption
Office has developed an outreach program for coordination with provincial and
municipal governments. Conflicts of interest are not just a problem at the
national level, and this coordination represents an effort to systematize and
standardize the efforts in
In
terms of dealing with conflicts of interest through the disclosure of
interests, a few years ago
Finally,
the Argentine government, and the Anticorruption Office in particular, have
been quite active in signing both formal and informal agreements with other
countries to facilitate technical assistance and cooperation activities in this
area of conflict-of-interest management. They have placed great emphasis on the
gains that a conflict-of-interest program can reap from the free flow of
information with other entities responsible for similar programs.
Though
many of the countries of the
Another interesting feature of the Canadian program for managing conflicts of interest is the new degree of independence for the Ethics Counsellor, who is responsible for administering many aspects of the program.[13] The Canadian Prime Minister recently announced that appointment of the Ethics Counsellor will require consultation with leaders of the opposition parties and that dismissal will require the concurrence of Parliament. The Ethics Counsellor’s term of office is fixed at five years.
Finally,
The
program for managing conflicts of interest in
All persons seeking government positions or seeking to contract with or provide services to the Colombian government must submit complete background information in the uniform format. The background information includes work experience and circumstances that could create disqualification or ineligibility. The system for statements of assets and income (i.e. the personal financial disclosure system) also ties into the SUIP. The Information System for Sworn Statements (SIDEC) is an electronic system for the handling, oversight, and monitoring of information in the statements. The bodies responsible for compiling and processing the SUIP have access to the system for statements of assets and income. Such bodies include oversight bodies, the Public Prosecutor of the Republic, the National Registry of Vital Records, and other divisions of the national executive branch. Personnel heads in government offices may verify the submission of the statements and the accuracy of their contents through sampling methods.
The magnitude of penalties for non-action is another element of the Colombian system for managing conflicts of interest that stands out. A public official’s failure to act, delay of action, or refusal or neglect to perform duties subjects the public official to 2-5 years in prison, a fine of 10-50 monthly minimum wages, and disqualification from exercising public rights or functions for a period of 5 years. Though similar provisions certainly exist in other countries, the punishment here seems a bit more severe than is typical. Additionally, a public official who fails to report punishable conduct of which he or she has knowledge is subject to a fine and expulsion from the public service. If the conduct the official failed to report is of a certain type, a prison sentence of 2-4 years can also be imposed. Again, this type of provision does not stand out as much as the extent of the sanctions.
The
Colombian government has also undertaken numerous initiatives to involve the
citizenry in the management of conflicts of interest and in public
administration more broadly. One such initiative is COLOMBIEMOS, a project of
the Presidential Program to Combat Corruption. The purpose of the initiative is
to establish a network of citizens who are committed to protection of the
public good. COLOMBIEMOS involves a webpage for communication and information,
a bulletin concerning anticorruption efforts, the creation of citizen groups
for oversight of public functions, and public hearings. Additionally, Law 489
of 1998 created opportunities for the organization of civil society with the
purpose of exercising social control over the administration of public matters.
The Colombian government recognizes this law as the most significant of its
kind in
Colombian civil
society has developed a series of other tools to ensure integrity and
transparency in governance, such as: (1) “integrity pacts” for monitoring
government activities concerning certain large contracts; (2) the Code of Ethics for Businesspeople
Negotiating with the State, signature of which is a prerequisite for
signing honesty pacts; (3) “honesty pacts” for signature by all parties
involved in smaller government contracts; and (4) “transparency pacts” designed
to strengthen the commitment of elective office candidates to transparency and
accountability. The Colombian government has acknowledged that general public
knowledge of and participation in these civil control mechanisms has been less
than desirable thus far, but the government has seemingly expended significant
effort in attempting to provide civil society with the necessary tools to fight
conflicts of interest and other corruption.
A noteworthy feature of the Ecuadorian anticorruption system is the nongovernmental or quasi-governmental status of the primary entity responsible for fighting conflicts of interest and other corruption in the government. The Commission for the Civic Control of Corruption (CCCC) is a representative of the citizenry with relative economic, administrative, and political autonomy. The CCCC is composed of seven members, each of whom is chosen by an electoral college that represents a certain sector of the society. The CCCC has responsibilities for the prevention, investigation, and identification of corrupt acts, as well as responsibilities for dissemination of the principles of transparency and management in public matters. The latter responsibility includes formulating programs and public awareness campaigns against corruption, and promoting the organization and participation of the citizenry in the fight against conflicts of interest and other corruption. The CCCC has rather strong subpoena powers for the purpose of investigation; it has the authority to solicit reports or information from any public institution, private institution, or natural person for the purpose of investigation or ruling on a case concerning a conflict of interest. The law provides for sanctions when an institution or person fails to submit the requested information.
The Mexican government has been a leader in developing electronic technology for the management of conflicts of interest and other public administration matters. Among such electronic initiatives have been DECLARANET, COMPRANET, and TRAMITANET. The TRAMITANET is a network that permits citizens to monitor public actions, to submit complaints, and to conduct certain government-related business. Citizens can also lodge complaints through “Sactel”, which is a telephonic system that is in continual operation, and through the National System for Citizen Complaints, Whistle-blowing, and Attention. The COMPRANET is an electronic system for transparent government contracting that has existed since 1996. The system permits citizens to know what the government buys, from whom, at what prices, and below what conditions. The DECLARANET is the electronic system through which all public servants subject to financial disclosure requirements must submit information concerning their patrimonial situations.
A
major Mexican law in terms of managing conflicts of interest is the Federal Law
of Administrative Responsibilities of Public Servants (LFRASP). This law
requires public servants to be continuously aware of the potential for
conflicts of interest. A public servant must inform his or her supervisor
immediately in writing of any official matter in which the public servant has a
personal, familial, or business interest. The law further requires that public
servants report in writing any corrupt act of which they have knowledge. The
explicit requirement that the public servant make the report in writing is less
common in the
The
Mexican system for managing conflicts of interest utilizes a two-layered
approach for codes of ethical conduct. In addition to a general code of ethical
conduct for the government, each entity of the Public Federal Administration
must create a specific code of conduct that outlines the conduct expected in
concrete situations that occur commonly within that particular entity.
Additionally, the Mexican system for managing conflicts of interest has placed great emphasis on the value of civic education and advertising. The government has created books and an Internet site for children. The Internet site has the purpose of fostering ethical values among the population, particularly with regard to transparency and probity. The approach has also included televised conferences concerning conflicts of interest and anticorruption advertisements shown prior to motion pictures.
The OAS Committee of Experts was unable to discern precisely which legal provisions and government positions were covered by the injunction and thus was unable to be extremely specific in its treatment of the issue. The Supreme Court’s injunction could be broad enough to effectively eviscerate all conflict-of-interest regulations but those established elsewhere concerning only special cases of conflicts of interest. The OAS Committee of Experts made specific recommendations concerning elements of Paraguay’s program for managing conflicts of interest, but many of the recommendations were underscored by the general recommendation that Paraguay “Develop and implement new standards and systems for the appropriate treatment of the topics analyzed throughout [the] report if the standards and systems, as regulated in the current Civil Service Law, are declared unconstitutional.”
An
executive decree in December 2000 charged the Public Service Secretariat with
enforcing the Civil Service Law and establishing technical standards. Given the
status of the Civil Service Law, the status of the Public Service Secretariat
is also rather uncertain. The Civil Service Law further provided for a system
of sworn declarations of property and income, which would apply to all public
servants. The law established sanctions for failure to comply with requirements
related to the sworn declarations. The uncertainty of these provisions is
particularly problematic because
Though
other countries in the
The U.S. Office of Government Ethics and certain ethics officials at individual agencies of the executive branch have created electronic means of training public servants on conflict-of-interest standards. The public servants can complete computer training modules on their own schedules, and the agency’s ethics official receives an electronic certificate showing completion of the training. As part of its regular oversight and review of executive branch agencies' ethics programs, the U.S. Office of Government Ethics has also implemented an employee survey designed to help evaluate the effectiveness of these programs. The survey assesses employee knowledge of executive branch rules of ethical conduct, employee awareness of agency ethics program resources, effectiveness of agency ethics education and training, and general agency ethical culture. On the basis of these surveys, the U.S. Office of Government Ethics may make recommendations on improving individual agency programs for managing conflicts of interest.
III.
ETHICS OFFICES IN THE
A recent survey
of “ethics” offices located within the national executive branch of several
countries in the
The institutions
participating in the survey were: Argentina’s Anticorruption Office; Brazil’s
Commission on Public Ethics; Canada’s Office of the Ethics Counsellor; Chile’s
Council of General Internal Audit of the Government; Mexico’s Secretariat of
the Public Function; the Office of Governmental Ethics of Puerto Rico;
Uruguay’s Advisory Board for Financial Economic Matters of the State; and the
United States Office of Government Ethics. These organizations are member
institutions of the Network of Government Institutions of Public Ethics in the
As mentioned,
these organizations essentially all fall within the executive branch, though
All the offices surveyed have jurisdiction over conflicts of interest that arise from financial interests and jurisdiction over standards of conduct. Additionally, nearly all have jurisdiction over conflicts of interest that result from divided loyalties. One substantial difference among these offices is the number of employees in each. The numbers range from a handful of employees to hundreds or even thousands of employees. The differences in size (and budget) are due to the span of responsibilities of the organizations, the respective size of each government, the emphasis placed on anticorruption issues by political leadership, and political-historical factors.
Some of the
offices, most notably
One can view the efforts against conflicts of interest as having multiple components: (1) prevention; (2) detection; (3) investigation; (4) prosecution and/or administrative proceedings; and (5) penalization. These components certainly overlap and interlock. For example, aggressive prosecution can serve as a preventive deterrent and warning for would-be offenders. Governments may approach the first component, preventing conflicts of interest, in numerous ways. A list of possible preventive measures includes: a clear, fair, and enforceable code of conduct; advisory and counseling services; education and training programs; and systems for declaring or registering financial and other interests that could create a conflict of interest.
As mentioned,
all the offices surveyed have responsibilities associated with standards for
appropriate conduct. Except for one, all the offices also provide advisory and
counseling services and provide education and training services. All eight
organizations may issue advisory opinions, though the extent to which these
opinions bind public servants to a course of action varies. The advisory
opinions are always binding in
For the sake of
brevity, this paper will refer to systems for declaring or registering
financial and other interests that could create a conflict of interest simply
as “financial disclosure systems.” All the offices surveyed have financial
disclosure systems, and most have some type of public financial disclosure.[15]
“Public” financial disclosure means that information regarding the interests disclosed
by certain public servants is available (usually with some restrictions) to the
general public. In
Among the countries surveyed, the number of financial disclosure reports filed confidentially in a country generally is significantly higher than the number of reports that are publicly available. Nearly all the countries have confidential financial disclosure systems. Typically in such systems public servants submit financial disclosure reports that are maintained in confidence by the public servant’s employing agency or the governmental ethics office. The public does not have access to these reports.
Electronic
resources have played an important role in facilitating government
transparency, even in this area of financial disclosure by public servants. All
the organizations surveyed maintain websites on the Internet. Half the
organizations permit public servants to submit
their completed financial disclosure reports electronically. In
An independent
review or audit of the financial disclosure reports occurs in most of the
countries. Generally the central ethics office conducts this review, though
some variations exist. In addition to the ethics office review, in
The next
component in the effort against conflicts of interest is investigation. The level of investigative authority varies
considerably across the ethics offices surveyed. In some cases the ability to
investigate a conflict-of-interest situation depends upon whether the ethics
office has received an appropriate complaint of wrongdoing or request for an
investigation.
Often,
multiple government organizations in a particular country have the authority to
investigate potential violations of conflict-of-interest and ethics
requirements. Entities such as legislative committees, inspectors general, the
comptroller general, the ministry of justice, and police commonly hold such
authority. In
The final two components in the efforts against conflicts of interest are prosecution (and/or administrative proceedings) and penalization. The Puerto Rican office has prosecutorial powers; the other ethics offices surveyed principally yield prosecutorial responsibilities to the department or ministry of justice or to the judicial branch. The Argentine office, however, can present cases to court and act as a co-prosecutor. The Puerto Rican system also permits a Special Prosecutor to try public ethics cases. Following conviction, none of the organizations can apply penalties to offenders for violations of criminal or other legal norms. Half the offices can sometimes or always apply administrative or other penalties, however.
The subject
matter jurisdictions and persons over whom the ethics offices have authority
are two topics meriting further discussion, particularly since many of the
significant differences among the offices emerge in these areas. As mentioned
earlier, all the offices have jurisdiction over financial conflicts of interest.
Topics falling within the jurisdiction of nearly all these offices are misuse
of position, and impartiality and fairness. Five of the eight offices manage
post-employment restrictions. A slight majority of the offices have oversight
responsibilities for nepotism and for public contracts and purchases. The
particular combination of subject matter areas an office oversees depends on
each country’s legislation and its governmental structure. Other areas of
responsibility of certain offices surveyed are: whistle-blowing; access to
information; campaign finance; lobbying; and public administrative procedures.
An important point here is that even specialized offices charged with
addressing conflicts of interest carry out duties in other areas (though typically
in areas with ties to conflicts of interest). Finally, all the offices have
authority over general bureaucrats and appointed bureaucrats at the national
level. Half the offices have authority over certain or all elected officials at
the national level. Only the offices in
Though the
particular responsibilities and authorities of these national ethics offices in
the
IV. OPPORTUNITIES FOR IMPROVEMENT
The final
portion of each country report from the OAS Committee of Experts is a listing of
recommendations for improvement in that country. A number of the
recommendations have been common to some or all of the countries reviewed. A
few of these recommendations are rather general in nature. Overall, the
Committee of Experts has called on countries to strengthen existing systems for
dealing with conflicts of interest. One suggestion for such strengthening has
been to fully implement the laws and regulations already on the books, whether
by creating or fortifying institutions or by creating mechanisms to ensure
compliance with these norms. Appropriate sanctions for those who violate
conflict-of-interest norms are also lacking in some areas. Though the sample of
completed country reports is rather small, these reports as a group are helpful
in showing general areas in which countries of the
The Committee of Experts has called for countries appropriately to cover all public officials and employees with conflict-of-interest requirements and has noted that different levels of coverage may be necessary for different types of positions. The Committee of Experts also has suggested that countries establish appropriate training and education programs to make sure that public servants are cognizant of the conflict-of-interest requirements that apply to them. Additionally, training programs should alert public servants to their duty to report acts of corruption of which they are aware. The Committee of Experts has even recommended that countries provide appropriate training to civil society so that civil society organizations have the tools necessary to monitor and participate in anticorruption programs. Conflict-of-interest watchdog organizations must understand the programs and norms for conflicts of interest to effectively carry out their missions.
While respecting the constitutional order of each country, the Committee of Experts has commented on the implementation of anticorruption programs at the regional and municipal levels. In particular, the Committee of Experts has asked countries to explore the extension of national anticorruption norms and systems down to the regional and municipal governments. Coordination among oversight bodies at the national level also has been an issue. Since multiple governmental agencies must work together in an effective anticorruption policy framework, these oversight agencies must be capable of sharing information and coordinating their actions. The Committee of Experts has called attention to a shortage of resources and support for anticorruption oversight bodies in certain countries. Battling corruption (including conflicts of interest) is a difficult task that can be much more difficult if the sufficient resources and support are not available.
Public access to government information has been another area carefully scrutinized by the Committee of Experts. Though the Committee of Experts has not examined this issue as it directly relates to conflicts of interest, the ability of the public to access government information certainly contributes to the prevention and detection of conflicts of interest. The Committee of Experts has recommended that countries create and effectively implement provisions for access to government information. The Committee of Experts has also called for countries to permit public comment on regulatory matters and to provide public access to government meetings. Public comment provisions would extend to draft regulations for conflicts of interest. The first round of review undertaken by the Committee of Experts also encompasses financial disclosure systems. The first step, of course, is to establish a financial disclosure system. Beyond that, the Committee of Experts has stated that countries should improve systems for analyzing and evaluating the financial disclosure reports. Proficient evaluation is necessary if the financial disclosure reports are to fulfill the goals of preventing and detecting conflicts of interest.
Finally,
the Committee of Experts feels that countries need programs in place to
evaluate the effectiveness of their anticorruption programs. A country should
constantly be assessing its conflict-of-interest programs to facilitate
appropriate programmatic changes, eliminations, and additions. The number and
extent of recommendations certainly vary from one country report to another,
and that variety can only increase as the Committee of Experts continues its
reviews. Commonalities among the more general recommendations provide insight
into areas about which states in the
CONCLUSIONS
The struggle
against conflicts of interest in public life is a universal one that is ever
changing and that is continuously assuming different dimensions. Reflecting
variation in political, historical, and legal circumstances, the countries of
the
Putting laws and
regulations on paper, however, does not mark the end of the fight against
conflicts of interest in the public service. More appropriately, one must view
this step as a beginning. Effective implementation and execution are absolutely
crucial if these laws and regulations are to be meaningful. This paper has
discussed the reasons for optimism in the region, but many of the countries of
the
This paper has attempted to present comparative information in a manner that will assist countries as they improve their systems for managing conflicts of interest in the public sector. Though the administrative and legal details can be tedious and forbidding, the weight of these issues surely is not lost on many of the peoples of the Americas. In many ways, the road ahead is a difficult one, but the contract between the governors and the governed in a modern democratic form of government unquestionably requires a good-faith effort to prevent abuse of the public welfare. If the goal is government for the people, conflicts of interest clearly do not fit with that vision.
APPENDIX
A:
THE
NETWORK OF GOVERNMENT INSTITUTIONS OF PUBLIC ETHICS IN THE
Summary of
Background Information
(Prepared July 2003)
NOTE: The original tables
have been altered to achieve Section 508 compliance.
1. ANTICORRUPTION
OFFICE; MINISTRY OF JUSTICE, SECURITY, AND HUMAN RIGHTS;
General
Administrative Information
·
Website address: http://www.anticorrupcion.jus.gov.ar/
·
Type of
office: Executive office/agency
·
Number of
employees: 51-100
·
Selection of
organization head(s): Appointed by head
of government (who is also chief of state)
·
Source(s) of
authority: Laws/statutes
·
Organizational
independence: Not independent; reports to the head of a higher department
Topical
Jurisdiction
·
Conflicting
financial interests; misuse of position; impartiality and fairness; standards
of conduct; lobbying; public contracts and purchases; public meetings; public
administrative procedures; nepotism; access to information; whistleblower
protections
Other
Authority and Jurisdiction Issues
·
Responsibilities
related to: Criminal laws; other laws;
administrative regulations
·
Authority
over: National bureaucrats; appointed
national bureaucrats; elected national bureaucrats
Training,
Legal Guidance, Investigation, and Prosecution
·
Provides
training: Yes
·
Others provide
training: No
·
Training
mandatory: No
·
Provides advice
and counseling: Yes
·
Issues advisory
opinions: Yes
·
Advisory opinions
are binding: Always
·
Can investigate
on own initiative: Always
·
Can investigate
in response to complaints: Always
·
(Other)
investigative organizations: Police;
military; comptroller general; legislative committees; Public Ministry
·
Can prosecute
supposed offenders: Never
·
(Other)
prosecutorial organizations: Judicial
branch
·
Can penalize
offenders: Never
Financial
Disclosure
·
Financial
disclosure system: Yes
·
Persons who file publicly
available reports: Certain bureaucratic
employees; bureaucratic agency heads; elected bureaucrats; appointed
bureaucrats; judges; certain judicial employees; legislators; certain
legislative employees (Note: this
neither signifies necessarily that all the officials indicated file reports
with the organization named nor that the organization named has authority over
all such officials—it simply signifies that these categories of officials have
to file)
·
Persons who file
confidential reports: None
·
Public reports
filed per year: 15,001 < 50,000
·
Confidential
reports filed per year: None
·
Possible to file
reports electronically: Yes
·
Possible to
obtain completed reports electronically:
No
·
Independent
review or audit of reports: Yes (by this
office)
2. COMMISSION
ON PUBLIC ETHICS, FEDERATIVE
General
Administrative Information
·
Website address: http://www.presidencia.gov.br/etica/
·
Type of
office: Commission
·
Number of
employees: 0-10
·
Selection of
organization head(s): Appointed by head
of government (who is also chief of state)
·
Source(s) of
authority: Head of government (chief of
state) orders/decrees
·
Organizational
independence: Members, performance, and
decision-making processes of the Commission do not depend on the Government;
however, the Commission is dependent with regard to budgetary resources and the
fact that its mandate is not guaranteed by another power
Topical
Jurisdiction
·
Conflicting
financial interests; conflicting loyalties; post-employment restrictions;
standards of conduct
Other
Authority and Jurisdiction Issues
·
Responsibilities
related to: Administrative regulations
·
Authority
over: National bureaucrats; appointed
national bureaucrats
Training,
Legal Guidance, Investigation, and Prosecution
·
Provides
training: Yes
·
Others provide
training: Yes
·
Training
mandatory: No
·
Provides advice
and counseling: Yes
·
Issues advisory
opinions: Yes
·
Advisory opinions
are binding: Sometimes
·
Can investigate
on own initiative: Sometimes
·
Can investigate
in response to complaints: Always (for
infra-legal ethical questions)
·
(Other)
investigative organizations:
Inspector(s) general; police; comptroller general; justice ministry or
department; employee’s office/agency; legislative committees; Commission of
Investigation (for administrative investigations); Commission of Inquiry (for
administrative investigations); Ministry of Public Prosecution (for possible
violations of law); Attorney General’s Office (for possible violations of law)
·
Can prosecute
supposed offenders: Never
·
(Other)
prosecutorial organizations: Ministry of
Public Prosecution; Attorney General’s Office
·
Can penalize
offenders: Sometimes (for infra-legal
ethical violations, punishable by curricular sanction)
Financial
Disclosure
·
Financial
disclosure system: Yes
·
Persons who file
publicly available reports: Elected
bureaucrats; legislators (Note: this
neither signifies necessarily that all the officials indicated file reports
with the organization named nor that the organization named has authority over
all such officials—it simply signifies that these categories of officials have
to file)
·
Persons who file
confidential reports: Certain
bureaucratic employees; bureaucratic agency heads; appointed bureaucrats;
judges; certain judicial employees; certain legislative employees (Note: this neither signifies necessarily
that all the officials indicated file reports with the organization named nor
that the organization named has authority over all such officials—it simply
signifies that these categories of officials have to file)
·
Public reports
filed per year: 100,001+
·
Confidential
reports filed per year: 100,001+
·
Possible to file
reports electronically: Yes
·
Possible to
obtain completed reports electronically:
Yes
·
Independent
review or audit of reports: Yes (by this office; the Tribunal of Accounts and
Internal Control reviews for conduct purposes, and the Tax Administration
reviews for tax purposes, as well)
3. OFFICE OF
THE ETHICS
General
Administrative Information
·
Website address: http://www.strategis.gc.ca/ethics
·
Type of
office: Executive office/agency
·
Number of
employees: 11-25
·
Selection of
organization head(s): Appointed by head
of government
·
Source(s) of
authority: Laws/statutes; head of
government orders/decrees; regulations
·
Organizational
independence: Not independent; reports to the head of a larger department or to
the head of government, depending on the issue
Topical
Jurisdiction
·
Conflicting
financial interests; conflicting loyalties; misuse of position; impartiality
and fairness; post-employment restrictions; standards of conduct; lobbying;
nepotism; Ministers’ dealings with quasi-judicial tribunals; Ministers’
dealings with state corporations
Other
Authority and Jurisdiction Issues
·
Responsibilities
related to: Criminal laws (in reference
to the Lobbyists Code of Conduct); other laws; administrative regulations
·
Authority
over: National bureaucrats (staff
working in Ministers’ offices); appointed national bureaucrats (government
appointees such as the heads of government departments, boards, tribunals,
agencies, and state corporations); national legislators (only legislators that
are also Cabinet Ministers and Parliamentary Secretaries); lobbyists
Training,
Legal Guidance, Investigation, and Prosecution
·
Provides
training: Yes
·
Others provide
training: No
·
Training
mandatory: No
·
Provides advice
and counseling: Yes
·
Issues advisory
opinions: Yes
·
Advisory opinions
are binding: Always
·
Can investigate
on own initiative: Always (under the
Lobbyists Registration Act for breaches of the Lobbyists’ Code of Conduct)
·
Can investigate
in response to complaints: Sometimes (at
the Prime Minister’s request for alleged breaches by Ministers of the Conflict
of Interest and Post-Employment Code for Public Office Holders—also on own
initiative or at the request of Members of Parliament or Public Office Holders
for alleged breaches by Public Office Holders)
·
(Other)
investigative organizations: Inspector(s)
general; police
·
Can prosecute
supposed offenders: Never
·
(Other)
prosecutorial organizations: Justice
ministry or department
·
Can penalize
offenders: Never
Financial
Disclosure
·
Financial
disclosure system: Yes
·
Persons who file
publicly available reports: None
·
Persons who file
confidential reports: Certain
bureaucratic employees (staff working in Ministers’ offices); bureaucratic agency heads; elected
bureaucrats (Cabinet Ministers, who are also legislators); appointed
bureaucrats (including heads of tribunals and state corporations); legislators
(limited to Cabinet Ministers); board/council members (Note: this neither signifies necessarily
that all the officials indicated file reports with the organization named nor
that the organization named has authority over all such officials—it simply
signifies that these categories of officials have to file)
·
Public reports
filed per year: None
·
Confidential
reports filed per year: 1,001 < 5,000
·
Possible to file
reports electronically: No
·
Possible to
obtain completed reports electronically:
No
·
Independent
review or audit of reports: Yes (by this
office)
4. COUNCIL OF
GENERAL INTERNAL AUDIT OF THE GOVERNMENT, REPUBLIC OF
General
Administrative Information
·
Website address: http://www.caigg.cl/
·
Type of
office: Executive office/agency
·
Number of
employees: 501+
·
Selection of
organization head(s): Appointed by head
of government (who is also chief of state)
·
Source(s) of
authority: Head of government (chief of
state) orders/decrees
·
Organizational
independence: Not independent; reports
to the head of government (chief of state)
Topical
Jurisdiction
·
Conflicting
financial interests; misuse of position; impartiality and fairness; standards
of conduct; campaign financing; lobbying; public contracts and purchases;
public administrative procedures
Other
Authority and Jurisdiction Issues
·
Responsibilities
related to: Administrative regulations
·
Authority
over: National bureaucrats; appointed
national bureaucrats; regional bureaucrats/administrators
Training,
Legal Guidance, Investigation, and Prosecution
·
Provides
training: Yes
·
Others provide
training: Yes
·
Training
mandatory: Yes
·
Provides advice
and counseling: Yes
·
Issues advisory
opinions: Yes
·
Advisory opinions
are binding: Unknown
·
Can investigate
on own initiative: Unknown
·
Can investigate
in response to complaints: Unknown
·
(Other)
investigative organizations:
Inspector(s) general; police; legislative committees
·
Can prosecute
supposed offenders: Never
·
(Other)
prosecutorial organizations: Identity
unknown
·
Can penalize
offenders: Never
Financial
Disclosure
·
Financial
disclosure system: No information
·
Persons who file
publicly available reports: No
information
·
Persons who file
confidential reports: No information
·
Public reports
filed per year: No information
·
Confidential
reports filed per year: No information
·
Possible to file
reports electronically: No information
·
Possible to
obtain completed reports electronically:
No information
·
Independent
review or audit of reports: Yes (by the
inspector general)
5. UNITED
STATES OFFICE OF GOVERNMENT
General
Administrative Information
·
Website address: http://www.usoge.gov/
·
Type of
office: Executive office/agency
·
Number of
employees: 51-100
·
Selection of
organization head(s): Appointed by head
of government (who is also chief of state), with agreement of the Senate
·
Source(s) of
authority: Laws/statutes; regulations;
head of government (chief of state) orders/decrees
·
Organizational
independence: Not independent; reports
to head of government (chief of state)
Topical
Jurisdiction
·
Conflicting
financial interests; conflicting loyalties; misuse of position; impartiality
and fairness; post-employment restrictions; standards of conduct
Other
Authority and Jurisdiction Issues
·
Responsibilities
related to: Criminal laws; other laws;
administrative regulations
·
Authority
over: National bureaucrats; appointed
national bureaucrats; elected national bureaucrats; military officers; military
soldiers (regulations apply to this category of personnel only through a
military regulation called the Joint Ethics Regulation); administrative law
judges
Training,
Legal Guidance, Investigation, and Prosecution
·
Provides
training: Yes
·
Others provide
training: Yes
·
Training
mandatory: Yes
·
Provides advice
and counseling: Yes
·
Issues advisory
opinions: Yes
·
Advisory opinions
are binding: Usually
·
Can investigate
on own initiative: Sometimes
·
Can investigate
in response to complaints: Sometimes
·
(Other)
investigative organizations: Inspector(s) general; comptroller general; justice
ministry or department; employee’s office/agency; legislative committees;
internal military investigative commands
·
Can prosecute
supposed offenders: Never
·
(Other)
prosecutorial organizations: Justice
ministry or department
·
Can penalize
offenders: Sometimes (for administrative
or regulatory offenses)
Financial
Disclosure
·
Financial
disclosure system: Yes
·
Persons who file
publicly available reports: Certain
bureaucratic employees; bureaucratic agency heads; elected bureaucrats;
appointed bureaucrats; judges; certain judicial employees; legislators; certain
legislative employees; certain candidates for public office; board/council
members; commission/committee members; certain nominees for appointment;
certain military officers (Note: this
neither signifies necessarily that all the officials indicated file reports
with the organization named nor that the organization named has authority over
all such officials—it simply signifies that these categories of officials have
to file)
·
Persons who file
confidential reports: Certain
bureaucratic employees; board/council members; commission/committee members;
certain nominees for appointment
(Note: this neither signifies necessarily that all the officials
indicated file reports with the organization named nor that the organization
named has authority over all such officials—it simply signifies that these
categories of officials have to file)
·
Public reports
filed per year: 15,001 < 50,000
·
Confidential
reports filed per year: 100,001+
·
Possible to file
reports electronically: No
·
Possible to
obtain completed reports electronically:
No
·
Independent
review or audit of reports: Yes (by this
office for the reports of officials the President appoints with the agreement
of the Senate and the reports chosen during ethics program audits at agencies
of the executive branch; all reports are reviewed by the individual’s employing
agency)
6. SECRETARIAT
OF PUBLIC FUNCTION, UNITED MEXICAN STATES
General
Administrative Information
·
Website address: http://www.funcionpublica.gob.mx/
·
Type of
office: Executive office/agency
·
Number of
employees: 501+
·
Selection of
organization head(s): Appointed by head
of government (who is also chief of state)
·
Source(s) of
authority: Constitution; laws/statutes
·
Organizational
independence: Not independent; depends
on the federal executive
Topical
Jurisdiction
·
Conflicting
financial interests; conflicting loyalties; misuse of position; impartiality
and fairness; post-employment restrictions; standards of conduct; campaign
financing; public contracts and purchases; public administrative procedures;
nepotism; access to information; whistleblower protections; anticorruption
education programs
Other
Authority and Jurisdiction Issues
·
Responsibilities
related to: Criminal laws; other laws;
administrative regulations
·
Authority
over: National bureaucrats; appointed
national bureaucrats
Training,
Legal Guidance, Investigation, and Prosecution
·
Provides
training: Yes
·
Others provide
training: Yes
·
Training
mandatory: No
·
Provides advice
and counseling: Yes
·
Issues advisory
opinions: Yes
·
Advisory opinions
are binding: Never
·
Can investigate
on own initiative: Usually
·
Can investigate
in response to complaints: Usually
·
(Other)
investigative organizations: Comptroller
general; justice ministry or department
·
Can prosecute
supposed offenders: Never
·
(Other)
prosecutorial organizations: Justice
ministry or department
·
Can penalize
offenders: Usually (for administrative
or regulatory offenses)
Financial
Disclosure
·
Financial
disclosure system: Yes
·
Persons who file
publicly available reports: The Federal
Law of Administrative Responsibilities of Public Servants requires
authorization of public servants
·
Persons who file
confidential reports: Certain
bureaucratic employees; bureaucratic agency heads; elected bureaucrats;
appointed bureaucrats; judges; certain judicial employees; legislators; certain
legislative employees; board/council members; commission/committee members (Note: this neither signifies necessarily
that all the officials indicated file reports with the organization named nor
that the organization named has authority over all such officials—it simply
signifies that these categories of officials have to file)
·
Public reports
filed per year: 100,001+ (the Federal
Law of Administrative Responsibilities of Public Servants requires
authorization of public servants)
·
Confidential
reports filed per year: 50,001 <
100,000
·
Possible to file
reports electronically: Yes
·
Possible to
obtain completed reports electronically:
Yes
·
Independent
review or audit of reports: No
7. OFFICE OF
GOVERNMENTAL ETHICS OF
General
Administrative Information
·
Website address: http://www.oegpr.net/
·
Type of
office: Executive office/agency
·
Number of
employees: 101-200
·
Selection of
organization head(s): Appointed by head
of government
·
Source(s) of
authority: Laws/statutes
·
Organizational
independence: Yes
Topical
Jurisdiction
·
Conflicting
financial interests; conflicting loyalties; misuse of position; impartiality
and fairness; post-employment restrictions; standards of conduct; public
contracts and purchases; public administrative procedures; nepotism
Other
Authority and Jurisdiction Issues
·
Responsibilities
related to: Criminal laws; other laws;
administrative regulations
·
Authority
over: National bureaucrats; appointed
national bureaucrats; elected national bureaucrats; national legislators;
national judges; regional bureaucrats/administrators; municipal
bureaucrats/administrators; regional or municipal legislators; police
Training,
Legal Guidance, Investigation, and Prosecution
·
Provides
training: Yes
·
Others provide
training: Yes
·
Training
mandatory: Yes
·
Provides advice
and counseling: Yes
·
Issues advisory
opinions: Yes
·
Advisory opinions
are binding: Always
·
Can investigate
on own initiative: Always
·
Can investigate
in response to complaints: Always
·
(Other)
investigative organizations: Justice
ministry or department; legislative committees; special independent comptroller
and prosecutor
·
Can prosecute
supposed offenders: Always
·
(Other)
prosecutorial organizations: Justice
ministry or department; special prosecutor
·
Can penalize
offenders: Always (for administrative or
regulatory offenses)
Financial
Disclosure
·
Financial
disclosure system: Yes
·
Persons who file
publicly available reports: None
·
Persons who file
confidential reports: Certain
bureaucratic employees; bureaucratic agency heads; elected bureaucrats;
appointed bureaucrats; judges; legislators; board/council members;
commission/committee members; certain nominees for appointment (Note: this neither signifies necessarily
that all the officials indicated file reports with the organization named nor
that the organization named has authority over all such officials—it simply
signifies that these categories of officials have to file)
·
Public reports
filed per year: None
·
Confidential
reports filed per year: 5,001 <
15,000
·
Possible to file
reports electronically: Yes
·
Possible to
obtain completed reports electronically:
Yes
·
Independent
review or audit of reports: Yes (by this
office)
8. ADVISORY
BOARD FOR FINANCIAL ECONOMIC MATTERS OF THE STATE, EASTERN
General
Administrative Information
·
Website address: http://www.jasesora.gub.uy/
·
Type of
office: Executive office/agency
·
Number of
employees: 11-25
·
Selection of
organization head(s): Members of the
Board are named by the Executive Branch with prior permission of the House of
Senators; the Board presidency rotates annually among the three Board members
·
Source(s) of
authority: Laws/statutes; regulations
·
Organizational independence: Members, performance, and decision-making
processes of the Advisory Board do not depend on the Government; however, the
Board is dependent with respect to financial resources
Topical
Jurisdiction
·
Conflicting
financial interests; conflicting loyalties; misuse of position; impartiality
and fairness; standards of conduct; public contracts and purchases; nepotism;
access to information
Other
Authority and Jurisdiction Issues
·
Responsibilities
related to: Criminal laws; other laws;
administrative regulations
·
Authority
over: National bureaucrats; appointed
national bureaucrats; elected national bureaucrats; national legislators;
national legislative employees; national judges; national judicial employees;
regional bureaucrats/administrators; municipal bureaucrats/administrators;
regional or municipal legislators; regional or municipal judicial officials;
military officers; police (Note: the
authority of the Advisory Board refers exclusively to control of financial
disclosure reports)
Training,
Legal Guidance, Investigation, and Prosecution
·
Provides
training: No
·
Others provide
training: Yes
·
Training
mandatory: Yes
·
Provides advice
and counseling: No
·
Issues advisory
opinions: Yes
·
Advisory opinions
are binding: Never
·
Can investigate
on own initiative: Never
·
Can investigate
in response to complaints: Never
·
(Other)
investigative organizations:
Inspector(s) general; police; comptroller general; employee’s
office/agency; legislative committees; judicial branch
·
Can prosecute
supposed offenders: Never
·
(Other)
prosecutorial organizations: Judicial
branch
·
Can penalize
offenders: Never
Financial
Disclosure
·
Financial
disclosure system: Yes
·
Persons who file
publicly available reports: Elected
bureaucrats (exclusively the President and Vice President of the Republic)
·
Persons who file
confidential reports: Certain
bureaucratic employees; bureaucratic agency heads; elected bureaucrats;
appointed bureaucrats; judges; certain judicial employees; legislators; certain
legislative employees; board/council members; commission/committee members;
certain nominees for appointment
(Note: this neither signifies necessarily that all the officials
indicated file reports with the organization named nor that the organization
named has authority over all such officials—it simply signifies that these
categories of officials have to file)
·
Public reports
filed per year: 1 < 100
·
Confidential
reports filed per year: 5,001 <
15,000
·
Possible to file
reports electronically: No
·
Possible to
obtain completed reports electronically:
No
·
Independent
review or audit of reports: No
[1]
Eric Raile is Intergovernmental Program Advisor to
the U.S. Office of Government Ethics and a Ph.D. candidate in Political Science
at
[2] The countries included in some form in this analysis are: Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Mexico, Nicaragua, Panama, Peru, Paraguay, the United States of America (and Puerto Rico), and Uruguay.
[3] In some cases this information may be outdated by one or two years.
[4] The definition appears in Managing Conflict of Interest in the Public Service: OECD Guidelines and Country Experiences, p. 24. This book was published by the OECD in February 2004. The OECD Code for the book is 422004021P1. The ISBN is 9264104895.
[5]
For example,
[6]
Examples of countries with outside activity restrictions for judicial officials
and/or legislators are
[7] Examples of countries with post-employment restrictions are Brazil, Canada, Mexico, the USA, and Uruguay.
[8] Examples of countries with such standards for public prosecutors and/or public defenders are the Dominican Republic and Uruguay.
[9] Colombia is an example of a country that so regulates acts of omission.
[10] Examples of countries with illicit enrichment provisions are Argentina, Colombia, Costa Rica, Mexico, and Nicaragua.
[11] Examples of countries with advice and counseling programs for conflicts of interest are Argentina, Brazil, Canada, Chile, Mexico, and the USA.
[12] The country responses to the first-round questionnaire and the country reports issued by the Committee of Experts are available on the Organization of American States website at http://www.oas.org/juridico/english/followup.htm . The main website for the OAS is http://www.oas.org .
[13]
Very recent legislation in
[14]
The comparative compilation of information is available on the website of the
Network of Government Institutions of Public Ethics in the
[15]
The countries with public disclosure provisions are