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…

The fine line between administrative irregularity and crime in public procurement

For several years now, numerous procedures for demanding criminal liability from authorities and officials in the matter of public procurement have been resolved. The most common crime is prevarication in administrative contracting. And it is that, Juan Bravo Murillo already warned in the exhibition he made to Queen Elizabeth II, in 1852, of the danger of public contracting: “Madam: Competently authorized by VM, with the prior agreement of the Council of Ministers, the Treasury presented to the Cortes on December 29, 1850, a bill of contracts on public services, in order to establish certain healthy obstacles, avoiding abuses. easy to commit in a matter of dangerous stimuli, and to guarantee the Administration against the shots of slander … “. But when are we in the presence of criminal behavior and when are we not? Fortunately, not every administrative offense, not every irregularity in the processing of a file, not every omission of a legally required procedure can be classified as constituting a crime of prevarication. But the line between an administrative irregularity and a crime is somewhat blurred. The crime of administrative prevarication, according to the provisions of art. 404 of the Penal Code, refers to “the authority or public official who, knowing its injustice, dictates an arbitrary resolution in an administrative matter, will be punished with the penalty of special disqualification for employment or public office and for the exercise of the right of passive suffrage for a period of nine to fifteen years ”. The injustice contemplated in the Penal Code supposes a “plus” of contradiction with the legal norm that is what justifies the intervention of the criminal law. The jurisprudence has maintained that for an administrative resolution to be classified as a crime of prevarication, it is necessary that its illegality be “evident, patent, flagrant and clamorous”, drawing attention to the question of the easy knowability of the contradiction of the act with the right. To assess the existence of a crime of prevarication, a reiterated jurisprudence (see SSTS 1021/2013, November 26) has indicated that it will be necessary: a) a resolution issued by an authority or official in an administrative matter;b) that it is objectively contrary to the law, that is, illegal;c) that this contradiction with the law or illegality, which may manifest itself in the absolute lack of competence, in the omission of essential steps in the procedure or in the substantial content of the resolution itself, is of such an entity that it cannot be explained with a minimally reasonable technical-legal argumentation;d) that causes a materially unfair result;e) that the resolution be issued in order to enforce the particular will of the authority or official and with the knowledge of acting against the law by arbitrarily eliminating free competition in an unjustified exercise of abuse of power. In this sense, it is not mere illegality but arbitrariness that is sanctioned. As we can see, administrative prevarication involves “knowing arbitrariness”. Mere illegality is not enough, since the administrative regulations already foresee cases of nullity controllable by the contentious-administrative jurisdiction without the application of Criminal Law being necessary in any case, which will thus be restricted to the most serious cases (STS 359/2019 , of June 15). And, although not every absence of procedure leads to the criminal type, it will have criminal relevance if in this way what is sought is to eliminate the mechanisms that are established precisely to ensure that its decision is subject to the purposes that the law establishes for the specific administrative action in which it adopts its resolution. They are, in this sense, essential procedures (STS nº 331/2003, of March 5). To appreciate the contradiction of the administrative act with the law, the courts have stated that: – it must be a blatant and gross contradiction (STS of April 1, 1996),– or resolutions that go beyond the legality in an evident, flagrant and resounding way (SSTS of May 16, 1992 and April 20, 1994),– or of a deviation or distortion of the law in such a rude, clear and evident way that the extra unlawfulness required by the criminal offense is appreciated (STS of May 10, 1993),– Or the arbitrary exercise of power, when the authority or the official issue a resolution that is not an effect of the Constitution and the rest of the legal system but, purely and simply, a product of their will, unreasonably converted into an apparent source of regulations, and the result is an injustice, that is, an injury to a right or the collective interest, and when the arbitrariness consists in the mere production of the resolution -because its author does not have legal competence to dictate it- or in the non-observance of the essential procedure to which its genesis must conform (STS of October 23, 2000). The existence of an arbitrary resolution may be appreciated when omitting the procedural requirements mainly involves the circumvention of the controls that the procedure itself establishes on the merits of the matter (STS 743/2013, of October 11 and STS 152/2015, of October 24, February, among others). Regarding the concept of “administrative resolution”, the Supreme Court, in its judgment of February 24, 2015, establishes that said concept “is not subject to a rigid formal scheme, even admitting the existence of verbal acts, without prejudice to its constancy written when necessary. A resolution is understood to be any administrative act that involves a declaration of will of decisive content, which affects the rights of the administered or the community in general, either expressly or tacitly, in writing or orally, excluding political acts. or government as well as the so-called procedural acts (eg reports, consultations, opinions or proceedings) that implement and order the procedure to make the final resolution viable. Is it possible to maintain that there is a criminalization of administrative law? The doctrine on some occasions has maintained that currently the cases previously dealt with with legal-administrative techniques have been criminalized or, in other words, the use of the penalty at the service of the…