Circumvention of the guiding principles applicable to the processes of selection and provision of public employees

Anonymous Reporting Deniers

For the deniers of anonymous reporting, it does not matter what is reported, however serious it may be. It matters who denounces, because knowing who the complainant  has been, the facts are covered.  They want to know who is reporting because in this way the complainant is pressured, discredited and re-apprehended, or accused of falsehood.  The message is: find a  lawyer to defend you, you will find out.  This is what we comment on too many occasions in the Valencian Anti-Fraud Agency. The whistleblower is denounced for breaking the law of silence, for safeguarding the interest of all, for defending ourselves against fraud, irregularities and  corruption. The deniers reject the anonymous complaint, although  it is provided for in the special legislation and is applied by the jurisprudence that expresses the evolution in the application of the laws adapting the right to the demands and social realities. The Tributaria Agency  and the Labour and Social Security Inspectorate, to give two examples, recognize anonymous reporting in Spain, as this is, for obvious reasons, very useful. The tax law does not specify who can file a tax complaint with the Administration, so the complaint can be anonymous;  that is, the complainant may not disclose his or her identity. The fact that the identity of the complainant is not recorded does not represent any obstacle to taking into account the complaint and examining the documentation provided and, if appropriate, initiating the corresponding verification and investigation actions by the competent authorities. The Labor and Social Security Inspectorate has a complaints box, to which to go to notify all behaviors that imply job insecurity in employment and to inform any unfair situation that a worker may suffer, offering the possibility of communicating from anonymity the situations of labor abuse and non-compliance. The National Commission on Markets and Competition (CNMC)  also has its own complaints box, which allows anonymity, in order to detect and, where appropriate, prosecute and sanction infringements of competition law. With regard to the prevention of money laundering, the obliged subjects (financial and credit institutions, insurers, investment services and reciprocal guarantee companies, among others) must establish an internal complaints channel so that employees, agents or managers can communicate, even anonymously, any relevant information about possible infringements. in this field. Since 2015, the Ministry of the Interior itself has set up an anonymous complaints box for terrorism cases. Similarly, in terms of data protection,  anonymous complaints are allowed, which contributes to better protection of whistleblowers and facilitates the reporting of more cases.  This is a good opportunity for companies  to address their problems internally before they move abroad. For its part, the Criminal Chamber of the Supreme Court, in an important judgment whose rapporteur was Judge Vicente Magro, Judgment No. 35/2020 of February 6, 2020, validates an anonymous complaint as the origin of an internal investigation in a company to  uncover a fraud, referring to Directive (EU) 2019/1937 and the channels of complaint,  to which it qualifies as highly effective in the start of the notitia criminis, because they promote- says the sentence, the due police investigation and the discovery of illicit or criminal practices. It adds that an anonymous complaint does not preclude a criminal investigation, but requires only a reinforced analysis for its taking into account, which weighs the coherence and plausibility of the data.  This Judgment includes a doctrine that is a continuation of others, also issued by the Criminal Chamber of the Supreme Court, such as Judgment No. 54/2019 of February 6, 2019 and Judgment No.  318/2013 of 11 April. Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law, commonly referred to as the Whistleblower Directive, warns, in its first lines, that persons working for or in contact with a public or private organisation in the context of their work activities,  they are often the first to be aware of threats or harm to the public interest that arise in that context. When reporting breaches, such persons act as whistleblowers and therefore play a key role in uncovering and preventing irregularities and protecting the well-being of society. However, potential whistleblowers often give up reporting their concerns or suspicions for fear of retaliation. In this environment, there is a growing need to recognize the importance of providing effective protection to whistleblowers. This Directive entered into force in Spain on December 17, 2019 and its deadline for transposition into Spanish law expired on December 17, 2021, with the European Commission reprimanding Spain for that reason. Both the aforementioned Directive and the United Nations Convention against Corruption, both directly applicable throughout Spain, that since December 17, 2021 and this since its ratification by the Congress of Deputies according to publication in the BOE of July 19, 2006, make anonymous reporting possible. In development of this United Nations Convention and in anticipation of the aforementioned Directive, the Valencian Anti-Fraud Agency is created by law approved in the Valencian Parliament on November 28, 2016, as an independent public institution with functions of prevention and promotion of integrity and public ethics, investigation of complaints, protection of whistleblowers and sanctioning capacity. The Anti-Fraud Agency, in accordance with its regulatory law and its implementing regulations, which is available in the Code for the Fight against Fraud and Corruption that publishes and periodically updates the BOE, admits complaints and communications made by any person, both nominal and anonymous, in the latter case with full guarantees through the electronic complaints mailbox of  its website. This complaints channel also operates  as a virtual office for public employees who inform the Agency of irregularities that it is aware of or to which it has had access. It is a secure and confidential telematic channel, which allows intercommunication, because for each communication that is made, an alphanumeric code is automatically assigned through which the complainant, anonymous or not, can access the system and interact with the official staff of the Agency, which also has the status of…

Ethical organizations

“The first step in the evolution of ethics is a sense of solidarity with other human beings.” (Albert Schweitzer) An ethical organization is one that is designed so that its structure and operation fully correspond to the general interest, as well as to the principles of legality, objectivity, transparency, effectiveness and efficiency. In addition to the above, and also consequently, in an ethical organization, ethical public performance, the culture of public integrity and the development of the values that are its own are encouraged, projecting those values abroad. We highlight ten elements of ethical organizations: 1.- Well-formed electronic procedures.  That the inner workings of an organization should be electronic is something that no longer offers any debate  at the present time.  This type of operation would cover both the procedures and the rest of the functional processes of the entity.  The previous work of cataloguing, simplification and procedural reengineering  is key. Debureaucratization is essential. From there, the electronic files are composed of electronic documents signed and / or sealed electronically, formed through electronic actions carried out within a reliable, traceable and traceable system that prevents or hinders to the extreme the possibility of cheating. All this finally ends in an electronic link that must comply with the legal requirements, and on which in turn the transparency and historical memory of the institution will be supported. 2.- Quality electronic services. This point refers to the external part of the electronic administration, referring mainly to the adequate configuration of the platforms for public use, although other instruments such  as social networks or telematic attention  could also be included. These platforms must allow an effective, intuitive, simple, effective and accessible use.  Documents that are already in the possession of the Administration should not be requested, nor should data verifiable by it. In general, bureaucracy should be reduced as much as possible by incorporating responsible statements as far as possible. Excessive bureaucracy is a form of corruption. Priority should also be given to the use of identification systems, unless signature was legally essential.  In addition, the various services must ensure compliance with national  safety and  interoperability schemes. 3.- Automation of simple processes.  At this time, a certain degree of automation of certain actions would already be desirable, thus generating an improvement in agility and efficiency. Regulated procedures and acts allow for greater incorporation of this type of mechanism, given that they do not involve a value judgement. The main tool of automation is the electronic seal, especially the organ seal that is automatically stamped in place of the electronic signature of the employee or authority. The procedures, actions and documents to which it will apply must be identified in advance. Beyond the seals (entity, organ, time, etc …), the extraprocedimental operation  of the entity must progressively incorporate algorithms, as an advanced programming tool and instrument of help in management, guaranteeing in its case the adequate human supervision especially in cases in which the weighting of the circumstances is necessary. 4.- Measures for the legalization of public procurement.  Public procurement has been and still is one of the main focuses of corruption.  Before going to any type of tender, the need report must be made.  Unless otherwise justified in a specific case, a service that already corresponds to an internal department may not be contracted externally. Competition should be promoted, even in minor contracts, and  at least a reliable record of all actions should remain in these  contracts. Such information shall be published in accordance with the provisions of the Act.  Greater planning will in any case avoid the proliferation of certain minor contracts that correspond to periodic and repetitive needs, and therefore foreseeable.  It is also advisable   to use so-called rationalization systems, such as purchasing centers or dynamic purchasing systems.  The specifications of administrative clauses will contemplate the vicissitudes related to the execution of the contract, thereby reducing the conflict and judicialization, especially in large concessions and long-term contracts. Splitting and, as far as possible, modified splitting should be avoided. All phases of the life of a contract must be carried out through electronic means, especially the tender through an approved public or private platform that allows the encrypted presentation of the offers, but also the preparation, formalization, the administrative part of the execution and the invoicing.  In a more advanced stage, the archiving and recording of all performances can be done through the use of blockchain technology. 5.- Active safeguarding of the rights of citizens.  The legal system recognizes individuals, as such, rights of different kinds. After the seamless assurance of the free exercise of fundamental rights and, after these, those of democratic and social participation, the degree of development of the so-called administrative rights is relevant as a thermometer of an advanced society. The right of access to information is particularly important in our area. The Administration works for and for citizens. Users should not be left unattended in any way.  The offices of citizen attention are currently called “assistance”, nomenclature that must be applied in its literal sense.  Ex officio actions should not only be reserved for sanctioning procedures, but also for the recognition or authorization of pre-existing rights of persons who do not request them.  Without prejudice to what is already indicated in the point dedicated to the tender, in general  the legal  procedures that correspond in each case  must be adequately articulated  and that ensure the concurrence and selection in conditions of publicity and equality (subsidies, selective processes, contracts, authorizations …) .  Finally, the most modern dimension of people’s rights must be focused on social justice and sustainability (economic and environmental). 6.- Second generation transparency: open data.  Publishing the information established by the Law is no longer enough. In any case, an organization is not transparent only because it has a portal, and much less if it is not fully electronic, accessible, interoperable and if the information it contains is not reusable.  At this point we must mention again the right of access to information, the safeguarding of…