The Valencian Community strengthens the protection of corruption whistleblowers with the new Law 3/2024

In the popular and cultural imagination of our society, to think about whistleblower protection is to evoke the US Administration offering a new identity and a new life, to protect those who denounce the inner workings of a criminal organization and involve their former partners in crime. This is the case of WITSEC, which emerged in 1971 to protect a New York mobster who had broken the omertà code  and cooperated with the authorities to condemn the Italian mafia. In Spain, for public employees and for the legal system, talking about whistleblower protection is synonymous with the Valencian Anti-Fraud Agency. The AVAF is a pioneer in whistleblower protection with more than seven years of experience in the prevention and fight against fraud and corruption and, in addition, it was for years the only authority in Spain that offered protection to people who reported fraud and corruption in the Public Administration. The comparison between the two systems, the American and the Valencian, denotes a deep abyss between the different ways in which protection can be offered. The protection of witnesses in North America represents a drastic act of rebirth, a flight to a new horizon, while the protection of the whistleblower in Spain seeks to maintain their immunity in their original environment, creating an invisible refuge from reprisals. Both, however, share the same ideal: the defense of individual courage in the face of adversity, demonstrating that, regardless of ideology, justice always seeks to protect those who dare to raise their voices.   Law 11/2016, of 28 November, on the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community. Currently, the protection of people who report regulatory infringements in our legal system, which was only recognised by Law 11/2016 of the Valencian Anti-Fraud Agency, has gone beyond the scope of the Valencian Community and has received a strong boost in our legal system thanks to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019,  but nevertheless, it should be highlighted the nature of the Valencian Agency as an authoritative voice, which notably anticipated both Directive (EU) 2019/1937, and State Law 2/2023, of 20 February, on the protection of whistleblowers and the fight against corruption, by means of Law 11/2016, of 28 November, on the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community,  which has turned out to be a legal instrument of the first order in the prevention and fight against fraud and corruption. The time that has elapsed since the entry into force of Law 11/2016, regulating the Agency, together with the solid and constant development of the Valencian Anti-Fraud Agency in the exercise of its functions, has allowed a series of technical-legal circumstances to emerge in the law regulating the Agency, of 2016, which advised its reform,  which has been verified by the Valencian legislator through Law 3/2024, of 27 June, of the Generalitat, amending Law 11/2016, of 28 November, of the Generalitat, of the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community.   Law 3/2024, of 27 June, of the Generalitat, amending Law 11/2016, of 28 November, of the Generalitat, of the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community. Law 3/2024 approved by the Valencian Parliament is the second amendment to Law 11/2016, which was already amended by Law 11/2018, of 27 December, on fiscal measures, administrative and financial management and organisation of the Generalitat, with regard to article 1.1, to clarify its legal nature; Article 14.3, which provides for the dismissal effects of the lack of express resolution in proceedings related to the protection of whistleblowers; Article 29.2, clarifying the regulations applicable to its civil servants; article 30.6 to incorporate the subjection of its economic and budgetary management to the Intervention of Les Corts, in addition to that corresponding to the Audit Office, and finally, section two of the first transitional provision, regarding the processing and approval of the operating regulations and internal regime of the agency. The current modification operated by Law 3/2024 responds, as the legislator expressly points out in its preamble, <<to the desire to complete the legislative task undertaken in order to provide the agency with a more clarifying law in the aforementioned aspects that enables a better functioning of the agency as a whole and its better service to citizens.>> Having made this important observation, the following comparative table of the new features of the 2024 Law is set out below, as well as some brief reflections on these changes.   Amendment of Article 1(1) of the Object and Legal Nature New wording of Law 3/2024 Previous wording of Law 11/2016 1. The purpose of this law is the creation of the Agency for the Prevention and Fight against Fraud and Corruption in the Valencian Community, which is attached to Les Corts. Coordination protocols will be created with the Audit Office and with the Intervention of the Generalitat. It is configured as an entity with its own legal personality and full capacity to act for the fulfillment of its purposes. This law regulates the legal regime, operation and sanctioning procedure of the agency. It also establishes the criteria for the provision of the agency’s management and staff. 1. The purpose of this law is the creation of the Agency for the Prevention and Fight against Fraud and Corruption in the Valencian Community, which is attached to Les Corts. It is configured as an entity with its own legal personality and full capacity to act for the fulfillment of its purposes. This law regulates the legal regime, operation and sanctioning procedure of the agency. It also establishes the criteria for the provision of the agency’s management and staff. The modification does not bring any novelty, being in any case correct the positivization of the relations of collaboration and coordination that were already carried out between the Agency and the other bodies of the…

The abuse of urban planning as a source of local funding. In the key of public integrity

We present here our Communication “The abuse of urban planning as a source of local funding. In the key of public integrity“, which was selected and presented at the International Congress on Land Uses to make the city (Universitat de València), and which you have at your disposal on the AVAF website[1]. Here are the main keys:  1.- The necessary link between urban planning and sustainability. We start here from the inseparable legal definition of territorial and urban development from the perspective of sustainability. After the time of the urban boom in our Region and the devastating effects of the subsequent financial crisis, which was particularly the real estate sector, regulations have been oriented towards the prevalence of the environmental paradigm. 2.-Other aspects of special consideration when regulating land uses in cities are directly related to public integrity or, rather, to their scarce application in the urban area and the risks that this entails.[2] In effect, a local public administration or instrumental public sector entity that, with competences or participation in the process of creating cities, looks the other way and postpones the fulfillment of obligations related to public integrity frameworks will be opening the doors to practice its public policies of housing or economic activities based on private interests, clashing squarely with the constitutional principles of good administration (objectivity, impartiality, effectiveness, efficiency, legality, among others).[3] 3.- Also in the field of urban planning (given its close link to public sector contracting) there has been abuse of the figure of jurisprudential construction and of an exceptional nature of unjust enrichment[4] as a justification for commissioning services outside the current legislation.  4.- In the years of great expansions and urban developments, Urban Planning has generated significant income derived from the urban planning action of public entities, with the insufficient funds of other chapters of the budget being a fairly widespread justification. We analyse the taxes related to urban planning, as well as the Rates, Special Contributions, Urban Planning Agreements… Notwithstanding these short-term justifications, we have encountered devastating consequences of the years of expansion of urban developments; these are accompanied by an increase in population and, with it, an increase in the obligations to provide public services such as: the maintenance of infrastructures; the construction of health, cultural, sports centers, etc.  environmental services, among other mandatory services provided for in local regulations.  6.- In general, the economic activity generated by urban planning, when it derives from good leadership and good management, is positive. However, the lack of urban planning carries with it many risks that can lead to the waste of public money or the increase in social inequalities. The legal-administrative system of land management and planning has led to the implementation of an uncontrolled urban planning that is contrary to integrity, which distorts the legal system itself. The lack of justification for the urban development action leads to a possible misuse of powers, apart from incurring responsibilities of various kinds. Urban planning is, in fact, one of the main areas of practice fraught with potential risks of corruption. Throughout the country, there is no shortage of cases of urban corruption and therefore of a model of urban growth that is excessive, unsustainable, irrational, and consequently contrary to public ethics. 7.- At the regional level, the creation of the Valencian Agency for the Prevention and Fight against Fraud and Corruption (AVAF) or the Valencian Agency for the Protection of the Territory (an autonomous body of the Generalitat for the exercise of regional powers in matters of protection of urban legality) are evidence of the social rejection of urban irregularities contrary to public integrity and, ultimately, to the general interest. 8.- Our communication emphasizes that the only possible path towards the creation of cities and the organization of their uses from a perspective of serving the general interests, is in the key of public integrity, which involves urban planning coordinated with economic planning, which will avoid the improper use of urban planning as a source of financing.  minimizing the waste of public money or the perversion of such legitimate purposes as the equitable distribution of benefits and burdens. 9.- In order to achieve sustainable territorial and urban development, we must avoid conduct contrary to integrity, internalizing throughout the public sector, all the rules already provided for in the legal system that design a system of public integrity. Thus, for the implementation of integrity, a prior self-assessment of the inherent risks in urban planning should be carried out.[5]The implementation of the Whistleblowing Channels is already a legal obligation for all public administrations, in accordance with Law 2/2023, of 20 February, regulating the protection of people who report regulatory and anti-corruption infringements. 10.- The promotion of both internal and external controls, throughout the decision-making process in the field of urban planning, will contribute to minimizing behaviors contrary to integrity, and thus allow urban developments in accordance with it. And this while being demanding the transparency of urban plans. In short, the harmonious interpretation of the legal system and the implementation of a transparent public administration will depend on whether the chosen territorial model is rational, sustainable and ethical and ultimately finds the legitimacy of society as a whole, banishing practices contrary to the law, the law and public integrity. We remain at your disposal for any questions or clarifications: prevención@antifraucv.es.  Irene Bravo Rey                                                                   Director of Prevention, Training and Documentation.  Jorge Ciganda Teruel General Prevention Technician. [1] Congress Communication [2] In this regard, see also the OECD Handbook on Public Integrity, OECD Publishing, Paris. https://doi.org/10.1787/8a2fac21-es. [3] Article 103.1 of the Spanish Constitution of 1978 states: “The Public Administration serves the general interests objectively and acts in accordance with the principles of efficiency, hierarchy, decentralization, deconcentration and coordination, with full submission to the law and the law.” [4] See AVAF General Recommendation: “The Path…

U.S. Looks to Foreign Public Officials in Fight Against Corruption (FEPA Act)