Of the antifraud plans to integrity plans

The new legal framework for public integrity following the Whistleblowers Directive and Order HFP 1030/2021. The role of Anti-Fraud Agencies  On September 29, the Ministry of Finance and Public Function approved Order 1030/2021 configuring the management of the Recovery, Transformation and Resilience Plan[1], PRTR in the future, with the aim that The Public Administrations adapt the management procedures and the control model in accordance with the standards required by the European Union both from the formal and operational point of view.  and all this is limited exclusively to the management of European funds. According to the aforementioned Ministerial Order, the procedures to which it refers must contemplate  the requirements established to achieve effective equality between men and women, territorial cohesion, respect for the environment, incentives for digitalization, the fight against fraud and corruption, and must be identified.   the ultimate beneficiaries of the aid, as well as contractors and subcontractors. The Order itself thus recognizes that  the requirements stated are not contemplated in the Spanish public administrations, immersed in their dynamics of “traditional management”, with the scope required by the European Union, and therefore  must  necessarily be introduced in order to achieve the objectives  planned for the implementation of the funds from the NextGeneration Programme (EU).[2] In other words, and as far as the fight against fraud and corruption is concerned, the Order would say: That Spanish Public Administrations lack mechanisms comparable to the minimum standards required by the EU in the fight against fraud, corruption and conflicts of interest. That the area to which the aforementioned Order is addressed is exclusively to the management of the European funds of the PRTR. That the rest of the funds and especially the own funds whose origin is the taxes of all Spaniards, being outside the scope of the Order, do not interest anti-fraud plans and can continue to be managed in the “traditional” way. The Ministry of Finance and Public Function itself recognizes as true that the Spanish State lacks a global strategy to prevent and combat fraud and corruption and it is discouraging that this opportunity to extend anti-fraud plans to all public activity regardless of the origin of the public resources that are managed is missed.  Moreover, the arrival of European funds and the demands for guarantees by the EU for an effective, efficient management free of fraud and corruption, would be a magnificent opportunity for Spain to approach European standards in terms of the fight for integrity and public ethics  and good practices in our public sector. The Ministerial Order, despite being so unambitious, has raised surprises and controversies exacerbated by the very short period granted to the administrations to present their respective anti-fraud plans: 90 days that expire at the end of this month of January. Part of this period has elapsed with the recipients wondering what an anti-fraud plan is, how it is done and who executes it.  For public administrations, the Order creates new functions that must be integrated into a terrible civil service context, of staff decimated by the limitations imposed by the postery budget laws to the great crisis of 2008 that over the years have  created a great gap in the transmission of knowledge and in the generational renewal of the institutional human factor. In this context, any new burden without solving these shortcomings implies further straining public organizations that, lacking selection processes, renewal and training of career officials have had to resort to outsourcing or the figure of interims who have become precarious.  especially the local, regional and to a lesser extent the state administrations. In this context, all those administrations or related public entities that are going to manage or execute PRTR funds must have, within the aforementioned period of 90 days, their corresponding Plan of anti-fraud measures that allows them to guarantee and declare that, in their respective field of action, the funds have been used in accordance with the applicable rules and in particular with regard to prevention,  detection and correction of fraud, corruption and conflicts of interest. For the purposes of defining the concepts of fraud, corruption and conflict of interest, the Ministerial Order refers to the EU’s own rules and in particular to its Directive 2017/1371[3] which limits corruption to the conduct of bribery or bribery of  officials in its broadest sense which includes the authorities themselves; fraud,  referring to the conduct of deception and falsehood carried out by the beneficiaries of the funds in their justifications; and the conflict of interest to the existence of a particular interest that prevails and influences the general interest by diverting the action of officials and authorities from their public objectives.  To these behaviors, we must add the others typified in our criminal code as crimes against the public administration, especially embezzlement, influence peddling, negotiations prohibited to officials or prevarication itself. The Order establishes a methodology based on a test model that starts with the declaration at the highest level of each public administration of its firm commitment to the fight against fraud and corruption; a self-assessment where the specific risks, their impact and probability of occurring in the key processes  of the development and execution of the PRTR are identified. with a follow-up of periodic review; and a structure around four elements of the so-called anti-fraud cycle: prevention, detection, correction of irregular conduct, prosecution and recovery of improperly executed funds. Likewise, it is inferred, although partially, in principles and foundations that are typical of integrity plans such as transparency, the existence of a code of ethics and conduct for the entire organization; the provision of training on public ethics to its employees and authorities;  and the existence of procedures to identify and resolve conflicts of interest.  In this sense, the Valencian Anti-Fraud Agency has prepared, published and made available to all Public Administrations basic materials such as the “Guide to develop a Public Integrity Plan: Roadmap and Facilitating Annexes“[4] that together with previous works of the Agency such as “ Reflections on conflicts of interest: their ignorance, the…

Disincentivizing the incentive: What moves us?

In 2007, a young consultant was enjoying his job promotions thanks to his great computer skills. In May 2013, he decided to leave his own country to alert what would later become one of the biggest irregularities committed by one of the world’s leading economic and military powers: the United States was illegally monitoring many citizens and authorities of other countries. countries, under the guarantee of State secrecy. His action, denouncing publicly and facing accusations and persecution, was carried out solely on “principles” [1], without any incentives. To increase the probability that these complaints will occur, a series of incentives are used that can facilitate the perception that, through this action, the individual will receive something in return. “Incentives must be used to favor or facilitate particular actions” [2]. Under this motto, the intervened economies have delegated to the incentives the function that they can hardly reach due to a lack of resources in certain environments. If the State cannot, the citizens that make it up can be in charge of bringing those who have broken the rules to justice. On this basis, bounty hunters were born, mostly American private agents who roamed the territory recovering fugitives or executing finances, without the same guarantees and responsibilities as the official authorities. Dr. King Schultz accompanied by Django, touring the territory of Texas in search of the most wanted criminals in the southern United States, reminds us how for a time it was the most “effective” method of dispensing justice. It seems like a matter of procedural streamlining, but it has become a psychological and social issue: our social design has been transformed by our political and economic system, so incentives have a greater or lesser effect depending on where we are. Can these economic incentives be a persuasion to the citizens?: they could be. The danger of prizes has materialized throughout our history: from the tips during the Third Reich, to our own history, in which wealth arose over landowners and thousands of citizens lost their farms due to anonymous complaints about the contrary political ideology. of others. Along these lines, what was initially conceived as an element of persuasion to attract information ended up becoming an element of State coercion, through which the State exerted violence on a few, with the collaboration of as many others. However, a reasonable amount of time has passed over which the incentives have evolved and have ceased to have that meaning (at least for now). For what concerns us, the incentive that provides efficiency to the detection and correction of administrative irregularities or criminal offenses is confused with economic rewards for ethical work. In an ideal world, all citizens motu proprio denounce irregularities they witness: a national police officer tries to bribe me to remove a fine, a mayor hires his sister-in-law, or my neighbor on the sixth floor does not register his assistant. This seems to be the example that they try to transmit to us from the Nordic region, which sweeps well their trench of immoral attitudes about their own territory. However, on the other side of the scale, the northern region of the American continent tells us that the best method to try to reach an ideal world is to grant economic amounts to citizens, because, and following Ruth W. Grant, these incentives “they are the threads that move us”. Observing the numbers, in the United States exorbitant amounts are granted for denouncing corrupt plots, making many denouncers of corruption multimillionaires. Are those the threads that move them? In our territory, taking into account that we lack a strict regulation at the national level on these points that we have discussed, the whistleblowers of corruption declare that there is no prize that makes up for their shortcomings: the problem is not in the prize, it is in the justice system. Our incentives are not similar to those of our neighbors, because our society is not the same as American society, we are separated by the Atlantic Ocean and various historical processes that have influenced our evolution as a society. For this reason and many others, part of the current doctrine rejects economic incentives as a way of motivating society, but without providing an answer to the problem. It is rejected “just because”, without contributing with possible recommendations to grant incentives to complainants, when reality demands elements that encourage these complaints. Several studies not only focus on justice, but also on the social difference that affects this conception: in territories where the cost of reporting is much higher, economic rewards are the key to developing an adequate criminal policy against corruption. That citizen’s “civic” obligation to report corruption becomes something that hinders the citizen himself, because he does not know the repercussion that corruption has on his day to day life, and it supposes a difficult burden for him to face, mitigating that negative aspect with economic rewards. attractive to the lower classes. This is how Soares and Tenshin [3] explain it when they justify the importance of economic incentives in countries with a wide class border, but their uselessness in those societies where there is no marked inequality. Greater protection, guarantee of the anonymity of complaints, third-party facilitators of information, protection of the family environment, free legal advice, psychological assistance and guarantee that the process will not entail any cost for the complainant. These could be the logical measures to take into account – especially considering that many of them are requests from those who denounce corruption – but today they are not considered because their figure is not under debate, but rather what is expected of their complaints, beyond the inclusion of complaint channels. But, in order for these complaint channels to be used effectively and not be left over to what Concepción Campos properly identifies as “blah blah blah”, we must give certain incentives to their potential users, giving them greater confidence in their usefulness and a perception of protection.  María Cristina Fernández González Researcher at the Global…

Anti-Fraud Plans Blah, blah, blah? AVAF

“Blah, blah, blah”…, with this onomatopoeia the activist Greta Thunberg summarized the outcome of the Glasgow climate summit, at COP 26, in relation to the agreements reached and the real impact it will have on the objectives pursued, in summary, pure facade and empty speech. This same feeling is what I am having with the requirement of Anti-Fraud Plans established by Order HFP / 1030/2021, of September 29, which configures the management system of the Recovery, Transformation and Resilience Plan, with the It is intended to provide a framework of integrity to the entities responsible for the management of the Recovery Plan. A preliminary reflection. The non-existent general culture of integrity or Compliance (compliance) plans / programs / systems, and not only as a desirable objective from the perspective of the institutional culture of good governance and good administration, but also when there is a specific legal obligation and enforceable, as it happens in the matter of contracting. As we have repeatedly pointed out, Law 9/2017, of November 8, on Public Sector Contracts (LCSP) includes a clear commitment to integrity and, specifically, in art. 64 imposes on the contracting authorities the duty to take the appropriate measures to fight against fraud, favoritism and corruption, and to prevent, detect and effectively solve conflicts of interest that may arise in bidding procedures in order to to avoid any distortion of competition and to guarantee transparency in the procedure and equal treatment of all candidates and tenderers. Obligation that, apart from some exceptional examples, such as the Integrity Plan in Public Procurement of the Vigo City Council (whose consultation I recommend) has not been fulfilled in general, so it is still necessary to have a robust system of incentives for compliance, and it seems that in this case, access to the financing contemplated by the Recovery, Transformation and Resilience Plan Funds (PRTR) may be sufficient. Or not.   Before entering the matter, the obligatory criticism that deserves how selective this obligation is. As it is framed exclusively as a duty for the projects and subprojects in which the measures (reforms / investments) provided for in the components of the PRTR are broken down, and not for the public management as a whole. As if the destination of the other public funds, which are largely paid for with citizens’ taxes, were not worthy of guaranteeing their correct use, for the defense of the general interest and the improvement of public services. In this way, the technique used in its day by Royal Decree-Law 36/2020, of December 30, which approves urgent measures for the modernization of the Public Administration and for the execution of the Plan of Recovery, Transformation and Resilience. This rule was intended to establish an execution framework with which to avoid the administrative obstacles and bottlenecks detected and that only deserve to be eliminated for this purpose, not for ordinary public management.   Anti-fraud plans, mandatory? The Ministerial Order establishes in its article 6 the obligation that every entity, decision-maker or executor, that participates in the execution of the PRTR measures must have a “Plan of anti-fraud measures”. The purpose of this imposition is to allow you to guarantee and declare that, in your respective scope of action, the corresponding funds have been used in accordance with the applicable regulations, in particular, with regard to the prevention, detection and correction of fraud, corruption and conflicts of interest, as a reinforcement of these mechanisms and thus complying with the obligations that article 22 of Regulation (EU) 241/2021 of the European Parliament and of the Council, of February 12, 2021, imposes on Spain in relation to the protection of the financial interests of the Union as a beneficiary of the MRR funds.   Mistrust in public management? We must not see it that way, it is not a veiled accusation, it is well known that integrity constitutes one of the pillars that backbone the management of the European Union, which it transfers and imposes on the Member States in the execution of funds. There is a clear precedent, the management of the EDUSI Funds, which had already been a step forward in relation to ethical standards in management, by imposing different obligations, such as the declaration of conflicts of interest, having ethical codes, commissions and other issues. But now, with the requirement of what are known as anti-fraud plans, a further step is taken and we hope that it will be extended with greater scope than the PRTR.   Although in reality, non-compliance is part of the DNA of our model. As a sample, a button. The deadline to carry out the transposition work of Directive (EU) 2019/1937 Of the European Parliament and of the Council of October 23, 2019 on the protection of people who report infringements of Union law, despite the time has elapsed and its inclusion in the Annual Regulatory Plan, the transposition law is neither expected nor expected, within the established deadline, December 17, 2021.   Some interesting observations From the reading of the Ministerial Order, the mechanism of operation of the Anti-Fraud Plans can be deduced, but there are a couple of observations that we must highlight. The first, the term. 90 days, how daring, how is it possible to develop an Anti-Fraud Plan in such a short time. I turn the question around, how is it possible that in September 2021 we do not have an integrity system in public administrations, how with a regulatory framework on transparency and good governance, with a multitude of regional and local bodies, specialized in the prevention and fight against fraud and corruption, the first reaction of the majority of public entities, their managers and employees, has been to criticize the shortness of the deadline, the impossibility of complying in just 90 days, with this legal obligation. Two points, the first the one already mentioned, neither in the regulatory framework nor in the configuration of the public management of the XXI century there is room for an administration that has not…