Embezzlement reform will give carte blanche to impunity

The forgotten of the TREBEP

Urban legends say that the most well-known and cited norm of all the legal systems in the world is the Fifth Amendment to the North American Constitution of 1791. The legal chronicles ( Swerdlow , 1982) collect as one of the historical moments of the use of the Fifth Amends the appearance of Blanche Posner, a retired teacher member of the WSP ( Women Strike for Peace ), who invoked the Fifth up to 44 times in the same hearing before the HUAC (Un-American Activities Committee). She, along with her companions, who also followed the same line of defense, added up to 145 invocations in the same process of the norm of the North American Constitution that allows witnesses to refuse to answer when the answers could incriminate them. In the legal practice of our national legal system, the legal precepts on which there is a consensus as the most used and cited are also two articles of the 1978 Constitution, 14 and 24. The first, regulating equality, and the second, effective judicial protection and the right to defense. On the opposite side of fame, in the place where oblivion lives, are the least used and unknown articles of our legal system, which apparently from the doctrine turn out to be articles 52 to 54 of the TREBEP. THE FORGOTTEN TREBEP: Articles 52 to 54 of the Consolidated Text of the Basic Statute of Public Employees. The code of conduct for public employees is largely forgotten in our administrative legal system, and it is worth noting that such abandonment has been due to both doctrine and the selection processes carried out by Public Administrations, as well as (sometimes) training that is given to public employees once they enter the public service, as, consequently, due to its lack of application, due to the jurisprudence that emanates from Courts and Tribunals. The regulation of the code of conduct is found, to the surprise of many public employees who are unaware of this issue, included with the force of law in articles 52 to 54 of Chapter VI of Title III of Royal Legislative Decree 5/2015, of October 30, by which the consolidated text of the Law of the Basic Statute of the Public Employee is approved. The TREBEP establishes the regulation of the code of conduct for public employees (art. 52), detailing the ethical principles that must be respected (art. 53) as well as the principles of conduct to which they are subject (art. 54). Below we will analyze and justify in this text the affirmation that the regulatory articles of the code of conduct for public employees are the great forgotten of our public legal system, having to anticipate from this moment that part of the doctrine has already been pointing to this conclusion, although without detailing and extending it, a reason that drives and justifies this work, and in this sense we have to endorse the forceful conclusion that reminds us that “the TREBEP Code of Conduct, applicable to public employees, has passed without pain or glory, as a perfect stranger” (Jiménez Asensio, 2020). 1. The doctrine: late administrative ethics and doubts about ethical codes. Concerns for modernization and reform of the public function in our legal system have fundamentally revolved around bureaucratic, organizational, and control aspects (Irurzun Montoro, 2010). Thus, the concern of the legislator, and of a large part of the doctrine, was focused on the study of electronic administration, and very specifically on the integration of new technologies in the classic institutions of our administrative law, the study of ethics within the framework of the Administration. It will not be until the first decade of the 21st century when the well-known and abundant cases of corruption produced in the framework of political activity -and in a related way in the Public Administrations themselves- have given rise to doctrinal reflections that would culminate in the regulation of behaviors. ethics of public activity. From this moment, a doctrinal concern for the behavior and ethical and moral qualities of public employees will be strengthened. The doctrine has been using indistinctly, for this figure unknown up to now in our public law, the denominations of public ethics or political ethics (Villoria Medineta , 2007), seeming in our opinion more accurate the denomination of administrative ethics (Gracia Romero & Latorre Villa, 2007). The doctrinal study of administrative ethics is based on two main pillars; on the one hand, that branch of knowledge that addresses and pursues the explanation of the ethics of the public organization itself; On the other hand, the second approach to administrative ethics deals with the study of the ethics of the personnel at the service of the Administration itself. The ethics of public employees, in which the code of conduct is integrated, can also be analyzed from two conceptual prisms: the negative and the positive (Carro Fernández-Valmayor, 2010). The negative approach addresses the construction of a limiting ethic, that is, one that seeks to avoid fraudulent or corrupt behavior. Positive or extensive ethics, on the contrary, seeks, in contrast, an improvement or passion for the sense of public service, fleeing from the repression of behaviors to seek the promotion of values. 2. The legal effectiveness of the codes of conduct and their application by the Courts and Tribunals. The problem of the legal effectiveness of articles 52 to 54 of the TREBEP regulating the code of conduct, despite its undoubted inclusion in a legal norm, arises from the moment the Basic Statute of Public Employees was approved in the year 2007, and this because already in that statement of reasons the legislator, after pointing out the innovation that the configuration of “an authentic code of conduct” implied in our legal system, immediately specified immediately that it was included in the Statute with ” a pedagogical and guiding purpose”. The dogmatic difficulty that arises from the statement of reasons itself is accentuated by the literal wording of article 52 in fine, which establishes that “The principles and rules…

Integrity and Public Ethics: implementation and control

Public integrity: Prioritizing public interests over private interests. Align with the values, principles, and norms shared by the community. Public ethics: governing and managing the public by doing things right. Corruption is quite the opposite. It is the degradation of ethics and integrity. It protects the rule of law and impedes its normal functioning by threatening the constitutional principles which inspire it, in particular that of the submission of all public powers to the legal order, that of the equality of all before the law or the obligation of the public administration to objectively safeguard the general interests in accordance with Art. 103 EC. In a conference within the training activities of the Valencian Anti-Fraud Agency, the professor of history of philosophy of the Complutense University, José Luis Villacañas, affirmed that corruption not onlydoes not steal money but also dignity, in equal parts, and its systemic entrenchment It opens the way to tyranny and arbitrariness. Theill-fated and also professor José Vidal-Beneyto always maintained that the fight against corruption is the fundamental challenge of our democracy and called for a general movement of condemnation against corrupt practices in which citizens were involved. The first anti-corruption prosecutor that Spain had, Carlos Jiménez Villarejo, also in a conference given in Valencia on the occasion of the International Anti-Corruption Day, argued that the phenomenon of corruption in democratic States has structural causes that are related to the organization of the State, its Public Administrations. and the organization of public authorities. Among others, because of the inadequacy of controls when they abdicate their functions either out of passivity or because of more or less covert complicity. And we could continue with quotes from other scholars of integrity and public ethics, Victoria Camps, Manuel Villoria or Adela Cortina who converge in placing in the fundamental axis of any political and governance system the duty to do what is right from the exemplarity of its rulers. It is useless to demand ethical behavior and regulatory compliance from citizens if those at the top of power do not set an example. Integrity is built from above and its cascading effect permeates the set of institutions. The framework of public integrity in a State of law, projectable to any territorial or institutional public administration, is a legal system that is built on the firm intention of the respective highest representatives to comply with the law and consequently combat corruption. Legal norms followed by exemplary conduct in their solid compliance are necessary. Without rules and without a culture of compliance, it is impossible to put an end to the inertia that comes from centuries of abuses and diversions of power and appropriation of the public for the benefit of private interests. With rules, but without a culture of compliance, we open the doors to social cynicism. Nor is it good that the compliance systems that are gradually being incorporated remain mere formalities aimed solely at saving responsibilities. The citizen feels the Public Administration as the superstructurefrom which the needs of society must be served by solving the problems that affect the general interest. Good governance is the way to fight against one of the scourges that does the most damage to democracy and the economy. Corruption diverts public resources to be given to technostructures or criminal organizations that can be embedded in our administrations and governments. According to the OECD, between 10% and 30% of major construction projects are lost due to ineffective controls and poor management. According to the IMF, up to 60,000 million euros Spain loses for corrupt or irregular behavior. Only, in bad practices in public procurement, the National Commission of Markets and Competition (CNMC) figures these losses at 40,000 million euros. And if that were not enough, the European Court of Auditors detected in 2013 that the construction of 1000 m2 of motorway costs in Spain under the same orographic conditions twice as much as in Germany. A few months ago, the CNMC sanctioned the six largest Spanish construction companies because for 25 years they have been concerting to share the awards of large public contracts… The list of indicators is endless. Wecan argue that in our public ecosystem the general interest and the common welfare has too often been marginalized in favor of personal, corporate or interest group interests that, with strategies of revolving doors, bribes, influence peddling, illegal party financing, etc. They have taken decisions outside democraticchannels and general interests, thinking only of their own benefits. Predatory and speculative urbanism, for example, left in my land, Valencia, a trail of concrete skeletons and territory turned into wastelands, destroyed the financial system of an entire community by sinking its two large savings banks and a bank, the three centenarians. And it was all done thanks to the fact that many autonomous, municipal or state institutions irresponsibly succumbed to the immense power ofquick profit and the speculative economy. We are still paying for that sandcastle that collapsed in 2008 when the State had to assume the private debt generated by so much greed and irresponsibility. Likewise, a good part of the services that the public administration must guarantee to citizens, have been losing over time their nature of public services to become private concessions of opaque management and appetizing objective for large companies whose capacity for influence and power are often superior to the own capacity of the administrations to control them or puta stop to them. . This imbalance has resulted in the capture of the public by corporations that are not accountable to anyone and that extract rents from citizens through rates and prices with little or deficient public control. As a result of recent actionsby the agency I direct, after the corresponding investigation, it was determined that a concessionaire of the water service of a municipality must return more than one million euros to the municipality. In another municipality, a developer must compensate the municipality in more than 21 million euros. The examples would be endless and you can know them through…