The political integrity of local and regional elected representatives - CG (6) 8 rev. Part II

Rapporteur: Viorel COIFAN (Romania)

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EXPLANATORY MEMORANDUM

INTRODUCTORY REMARKS

1. On 2 July 1996, wishing to reaffirm that “the achievement of a high degree of local autonomy goes hand in hand with deep commitment to the public interest and incorruptible political integrity”, and acknowledging that “failure to respect such principles can cause damage not only to the credibility of local and regional elected representatives but also to democracy in general”, the Congress of Local and Regional Authorities of Europe adopted a resolution on the integrity of local and regional authorities.

2. The resolution proposed setting up a working group “to prepare a European code of ethics (or a European charter on rights and duties) for local and regional elected representatives”. The terms of reference issued to the Working Group on the Political Integrity of Local and Regional Elected Representatives instruct it to draw up a European code of ethics (or a European charter on rights and duties) for local and regional elected representatives which will be a draft Council of Europe legal instrument. The Congress also instructed the group to keep under review relevant work in other Council of Europe sectors, in particular work by the Multidisciplinary Group on Corruption (GMC), and the European Union.

3. In 1998 and 1999 the group considered the draft code of conduct for local and regional elected representatives. The meeting on 28 January 1998 included a hearing of representatives of the Multidisciplinary Group on Corruption (GMC), Steering Committee on Local and Regional Democracy (CDLR), Organisation for Economic Co-operation and Development (OECD) and European Parliament secretariats so that group members could acquaint themselves with anti-corruption and ethics work by the Council of Europe and other international organisations. The group declared its support for close co-operation and co-ordinated action on the part of all the Council of Europe bodies in combating corruption. It also welcomed the Ministers’ Deputies’ decision to allow a CLRAE representative to take part in the activities of the GMC and its working groups in fields relating to the Congress’s drawing up of the draft European Code of Conduct for local and regional elected representatives.

4. To take stock the group decided, at its meeting on 28 January 1998, to send member states a questionnaire about provision at local and regional level on political integrity, in particular the rules on election campaigns, elected representatives’ assets, conflict of interest, holding more than one post at once, immunity, elected representatives’ pay, political practices, discretionary powers, and corruption prevention at local level. The group’s concern here was to clearly identify the areas in which there was a high risk of conduct contrary to ethical and anti-corruption rules.

5. The group’s work is very much in line with the noticeable trend towards modernising the political sphere in a number of Council of Europe member states. The group felt that this trend should be spread to local level by setting down principles which were applicable to all local and regional elected representatives. The principles set out in the draft code of conduct are intended to increase the trust between local politicians and citizens by setting standards for politicians to adhere to in their conduct and providing citizens with information on what they are entitled to expect from local and regional elected representatives. The code also aims, to a certain extent, to improve relations between the public authorities and citizens.

POLITICAL INTEGRITY

6. Prosecutions of national or local public figures and government anti-sleaze campaigns in various countries are front-page news in Europe. As an inevitable result of the growing number of scandals, people are increasingly distrustful of politicians as a class. The principles of sound public financial management are often flouted to the detriment of the general interest, for personal or factional gain. Corruption has become a social phenomenon preventing democratic institutions from functioning properly.

7. Political integrity is extremely difficult to define. Generally - like related concepts such as political “moralisation” or political ethics - it refers to standards of conduct in office that uphold a number of ethical values such as honesty, probity and objectivity. Determination to promote these standards of conduct is part of a general trend, observed at both national and international levels, towards measures which impose new or stricter constraints on politicians in an attempt to discourage or punish behaviour in the course of their duties which is judged unacceptable. Depending on the seriousness attributed to the behaviour targeted, the type of rule thought to have been contravened will change (ethical, professional or criminal), as will the penalty (moral, disciplinary or criminal).

8. Internationally, a widespread trend towards cleaning up and modernising public life began in the 1980s. Several countries and international organisations have concerned themselves with the question and the working group has carefully considered all aspects of their activities. As rapporteur, I take the view that what the Congress must do is relay the message of that movement to local and regional elected representatives in Greater Europe so as to disseminate the results of this work.

9. The working group did not want to confine itself to an enquiry into conduct by holders of political office which has been made a criminal offence, or in particular to prevention and punishment of corruption as such, of which special studies have been made1. Rather it set itself the objective of drawing up an instrument that would give local and regional elected representatives a common minimum set of ethical conduct guidelines. It felt that eradicating the “grey areas” of conduct which does not come under the criminal law but which is no less reprehensible was just as important as uncovering and punishing corruption in the narrow sense of the term. The group’s approach consists in offering elected representatives an instrument that will give them guidance in specific situations before a dishonest act takes place or in cases where there may be doubt about what attitude or action to take.

10. The code includes general prohibitions on giving inducements to particular sections of the electorate, relinquishing elected office to take up lucrative private-sector appointments, misappropriation of public funds, selling favours, creating networks, and corruption in the strict sense of the term2. These are ills which breach the rules of democracy.

11. The working group has adopted a broad approach in its analysis, taking in these different practices, and particularly all the duties or constraints placed on politicians to ensure that political activity is primarily conducted for the public good and not in the exclusive and direct personal interest (occupational, electoral, financial or family) of the politician concerned or in the personal interest of individuals (or a group of individuals) in return for professional, electoral, pecuniary or family advantage to the politician (indirect personal interest).

Political integrity at local and regional authority level

12. Local and regional elected representatives sometimes have significant powers in various fields, whether as regards management of public funds, dealings with the citizen or local and regional policy-making. I take the view that ethical guidelines are a necessary counterweight to arbitrary use of such powers. They are also crucial to the quality of local authority management by elected representatives. Experience in various countries, together with objective factors common to local and regional authority levels, shows the relevance of a study of political ethics at these levels of power.

13. At the moment, local and regional elected representatives are increasingly being given new responsibilities and functions, in particular in the context of economic change. Decentralisation and greater local self-government, growing involvement with the private sector, and having to provide quality services with more limited resources than previously are all factors that create a risk of corruption or dishonesty in office. The group noted that such dishonesty or unethical conduct could result from elected representatives abusing their extensive discretionary powers in areas such as allocation of housing, privatisation or award of public contracts. In the United Kingdom, for instance, cases of council housing allocated in exchange for promises to vote for the political group in charge of allocation have been brought to light3 and triggered the start of the so-called Nolan reforms. This type of behaviour is liable to persist in a context of economic change, with the additional factors of lack of appropriate criminal legislation and poorly paid local and regional elected representatives. The same is true of “departmental powers where the cost of an adverse decision is high”4 (numerous instances of corruption have occurred in the context of power to allocate public housing and to grant planning permission or welfare benefits).

14. As well as the nature of the powers, there are specific factors which account for the local level’s being particularly exposed to corruption and to personal or electoral “networks” that introduce corruption in a broad, systemic sense rather than as isolated, one-off cases. Electoral campaigns and moving from political office to lucrative appointments can also give rise to situations which undermine trust in politicians generally.

15. There are also factors at work, linked mainly to the very localness of local government powers and to their being exercised within a small geographical area.

16. Concentration of powers (political, economic and intellectual) facilitates corruption in that it leads to conflict of interests and reduces opportunities for countervailing scrutiny. At local level there is often a perceptible overlapping of elites.

17. Further concentration of political power in the same hand increases the likelihood of corruption. At local level, holders of executive office sometimes have precisely this kind of power.

18. The scale of checks and balances is often a key factor in preventing or punishing corruption, whether sporadic or systematic. Inevitably there is a marked tendency at the local level for events to revolve in a “microcosm” where, on account of all the factors referred to, the scope for operation of checks and balances may be slight. It should be noted that, where there is no central authority, or where it is so disorganised as to exercise no supervisory control, local authority operations can become “feudal”, boosting the growth of corruption.

19. Finally, two specific objective factors connected with the status of local representatives may also explain the development of corrupt practices. Firstly, the fact that the voters are the people who benefit from the local services or the local elected representative’s exercise of discretionary powers may increase the temptation to act for party-political advantage5. Secondly the importance of local electoral roots also increases the likelihood that elected representatives will want to create a firm electoral base, and this might be done by establishing networks offering inducements to potential voters.

20. A number of existing practices and regulations need to be completely reviewed: party funding, election campaigns and the concurrent holding of two or more offices. Some countries have either started work on legislative reforms or have looked into ways of making election expenditure more transparent and of preventing elected representatives from holding more than one political office unless this is essential to their functions. Although elected representatives may be provided with a thorough knowledge of their field if they concurrently hold positions at local, regional, national or European level, their capacity for action may be affected since holding an elective mandate requires a certain amount of time. Elected representatives may often be hindered in discharging their principal duties by holding other posts at the same time. Limiting or regulating this practice to enable elected representatives to have sufficient time to discharge their main duties would be a suitable means of solving the problem. As regards transparency in party funding, changes have been urgently needed for years and the clamour for greater transparency should be encouraged and supported by all elected representatives.

Codes of conduct

21. At the meeting on 28 January 1998, the majority of the working group favoured drawing up a code of conduct for use by local and regional elected representatives rather than a charter of rights and duties. A series of guarantees on the status of local and regional elected representatives are set down in other legal instruments.

22. If ethical principles are to be observed, they should not be treated as separate from but as integral to political practice and the local management system. In the process of incorporating the ethical dimension into political practice and local and regional management, the prime role falls to politicians, who in my view need to show a high degree of political commitment, stressing the importance of the ethical aspect and setting an example of conduct that observes ethical standards.

23. From this standpoint, codes of conduct are tools which, taking the form of statements of shared values to which all local and regional politicians subscribe, provide guidance on good practice.

24. The purpose of drawing up a code of conduct is always to lay down a set of abstract rules or standards of behaviour for a specific target group. Members of the group are expected to undertake to comply with those rules and standards.

25. The rules imposed by a code of conduct go beyond a mere reminder of the criminal laws or rules of professional conduct that are mandatory on the individual. The code can target the “grey areas” of uncertainty about the acceptability of this or that line of behaviour6. In general the rules are either simply worded and limited to specific types of behaviour or are laid out in terms of goals, major principles and “objective ethical standards”. Codes of conduct are frequently recommended as a preventive means of fighting corruption in the broad sense. It will be recalled that the Council of Europe Committee of Ministers identified preparation of a code of ethics for local and national elected representatives and members of government as a key priority in its Programme of Action against Corruption7. Drawing up a model code of conduct, to be made available to local and regional authorities in Council of Europe member states, will make it possible to lay down a precise framework for honest behaviour by elected representatives.

26. There is currently a profusion of codes of conduct covering the political, administrative and business spheres. Several countries already have codes of conduct at local level8.

27. In the United Kingdom the Nolan report suggests that town councils should be obliged to adopt a local code of conduct, in keeping with the Code of Local Government Conduct and the general principles laid down in the report. Councils can create ad hoc committees to monitor observance of such codes, and local tribunals are to be created at regional level with powers to require that any measures necessary for implementing the code be taken.

28. In Bulgaria councils adopt ethical rules under the Regulations on the Organisation of Local Council Activities and Municipal Administration. The rules vary widely.

29. Likewise in Iceland each council draws up its own code of conduct, which results in enormous diversity.

30. In Malta, a Code of Ethics governing the conduct of local councillors in performing their functions has been drawn up and implemented.

31. The working group’s survey shows that most countries do not have codes of conduct for local and regional elected representatives. Clearly the European code of conduct for local and regional elected representatives should provide a model for central governments and local and regional authorities anxious to promote ethical values. Plainly, therefore, it must not be too detailed, so as to leave code drafters in the member states some latitude for taking into account the diversity of geographical, human, cultural, institutional and legal features of local and regional authorities. In my view that diversity would be an obstacle if too detailed a code of conduct were put forward and might mean the code’s being ignored. Ultimately the impetus for codes of conduct must come from local and regional authorities themselves and their commitment to preserving their special closeness to the people and to building up public confidence in politicians.

32. A model code of this kind is a minimum set of rules which all elected representatives should comply with. It will be for local and regional authorities to set the minimum and amend it as appropriate by further provisions as their particular circumstances require.

33. The exact nature of a code of conduct, and especially the penalties that breaches would incur, often raise problems. The penalties will also influence how effectively the code is observed. In my view, the penalties should not be criminal-law ones. If a representative breaks the law, then judicial proceedings need to be taken. If, on the other hand, a representative contravenes a code of ethics, the breach of ethics needs looking at by his or her fellow representatives. For that reason I urge national associations of local and regional authorities to set up bodies to deal with this type of case. They could be assisted in their work by local or regional ombudsmen, where these exist.

RELEVANT WORK BY INTERNATIONAL ORGANISATIONS

34. Keeping relevant anti-corruption work under review reflects the wish to make the code of conduct for local and regional elected representatives a distinctive document. At the moment various international bodies are working on international anti-corruption safeguards and standards. The amount of work being done by European and international organisations is indicative of the extent of corruption. The work was undertaken not only because national provisions are no longer effective and need an overhaul to bring them up to international standard but also because corruption is no longer something which can be tackled at the purely national level. Its spread beyond national borders necessitates consultation and solidarity between countries.

Work by the Council of Europe

35. Without a doubt the anti-corruption work by the Council of Europe is the most interdisciplinary for purposes of bringing together different types of agency. The working group has adopted an approach of that kind and has set out to supplement the work by the GMC. A brief survey of those activities will give a better idea of where work by the Congress fits in.

Criminal Law Convention on Corruption

36. On 6 November 1997, at its 101st session, the Committee of Ministers adopted Resolution (97) 24 laying down twenty guiding principles for combating corruption and asking in particular that national authorities of the member states apply those principles in their domestic law and practice. The resolution was adopted in response to implementation of the Programme of Action against Corruption, adopted by the Committee of Ministers at its 578th meeting (18-21 November 1996) and the Action Plan drawn up at the 2nd Summit of Council of Europe Heads of State and Government.

37. As a matter of priority the GMC then drew up the Criminal Convention, whose main aim is to harmonise national law on certain corruption offences, although it does not provide a general definition of corruption. It will also help improve international co-operation in this field. Supervision of implementation of the convention was judged to be crucial to the convention’s success, and Article 24 of the convention assigns that responsibility to the Group of States against Corruption (GRECO). As stated in Article 1 of the agreement on setting up the GRECO, the aim of the Group of States against Corruption is, through a dynamic process of mutual evaluation and peer pressure, to fight corruption by monitoring compliance with their undertakings in this field.

38. It should be noted that the Council of Europe’s convention has broader aims than other existing conventions in this field, such as the OECD convention. Its purpose is to safeguard human rights, particularly rights to equality, to the rule of law, to stable democratic institutions and to economic and social development. It endeavours to prevent the most dangerous types of corruption, wherever they occur, and hence to protect integrity, transparency and honesty. It is designed to be applicable to various types of person who may in some way abuse their function or position (the convention uses the term “public official”). It therefore covers corruption of national public officials, national elected representatives, foreign public officials and foreign elected representatives, corruption in the private sector (national and international), corruption of officials and representatives of international organisations and trading in influence.

39. The authors of the explanatory report on the convention see it as taking in a very wide range of public officials, including mayors - whom many countries treat as public officials - for purposes of dealing with criminal offences committed in the performance of their duties. I consider of great importance the express reference to mayors in Article 1 (a) so as not to leave any gap which might place leading local public figures outside the convention’s scope.

40. As regards application of the convention to elected representatives, I would observe that, according to its authors, the provisions on active and passive corruption offences in Articles 2 and 3 apply to members of public assemblies not only at the national level but also at the local and regional levels, whether they are elected or appointed.

41. This Council of Europe convention, opened for signature by member states at the January 1999 Parliamentary Assembly session, is an important step forward in anti-corruption action, whether the offenders are at the national, regional or local levels. For that reason I call on states to sign and ratify it speedily.

42. Furthermore, as is specified by its terms of reference, the GMC is responsible for drawing up another anti-corruption instrument, the European Convention on civil remedies for compensation for damage resulting from acts of corruption. The convention’s aim will be to use civil law procedures to combat all forms of corruption.

Model code of conduct for public officials

43. Under the terms of reference issued by the Committee of Ministers to the GMC, the Working Group on Administrative Law Aspects of Corruption (GMCA) was set up to prepare a draft European code of conduct for public officials. The code will shortly be adopted by the GMC. The third European Conference of Specialist Anti-Corruption Services, on trading in influence and illegal funding of political parties (Madrid, 28-30 November 1998), called for the speedy adoption of a model code for elected representatives.

European Union

44. The European Union has been reinforcing its anti-corruption policy for some time. The impetus behind the European Union’s activities was provided by the European Parliament, which, in its resolution on corruption of 15 December 1995 (rapporteur Ms Salisch), called on the Commission and the member states to take action against corruption in a wide variety of areas. That report, which was not confined to corruption affecting the European Commission’s financial interests, emphasised the threat posed by corruption, its links with organised crime and the need for a European Union policy on corruption.

45. In May 1997 the European Commission adopted a Communication to the European Union Council of Ministers and the European Parliament concerning a Union policy on corruption. This describes in detail a comprehensive EU policy on corruption within the Community and in its relations with non-member states. In deals with a wide range of action, including ratification of conventions under which, among other things, corruption of officials of the EU and its member states is treated as a criminal offence, tax deduction of bribes is abolished, and public procurement procedures and accounting/auditing systems are to be reformed.

46. Two criminal-law conventions have been drawn up in connection with implementing the anti-corruption policy. These are the convention on protection of the European Communities’ financial interests, adopted by the European Council on 27 September 1996, and the convention on action to combat corruption involving officials of the European Communities or of European Union member states, adopted by the European Council on 26 May 1997.

47. The second of these conventions was drawn up on a proposal from Italy to make all corruption of or by officials of the European institutions or of EU member states a criminal offence, even if the EU’s financial interests were not involved. The content of this convention was agreed fairly quickly.

48. In its Communication the Commission proposes that the member states agree to ratify speedily the convention on action to combat corruption.

Organisation for Economic Co-operation and Development

49. OECD’s experience in promoting ethical conduct in the public and private sectors is of particular interest.

50. OECD has been looking at corruption in international business transactions since the late 1980s. The focus is on protecting commercial interests in international business transactions with the aim of preventing practices amounting to unfair competition. The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed in December 1997, sets out to guarantee conditions of fair competition in which international trade relations, particularly in the public procurement sphere, are based on sound principles rather than on illegal payments and other improper advantages offered by private commercial operators. In the conduct of international business the convention tackles a specific form of corruption - bribery aimed at obtaining or retaining markets or obtaining improper advantage. The convention came into force on 15 February 1999.

51. Importantly, OECD has carried out various activities under the Public Management Service (PUMA) in connection with promoting ethical standards in the public sector. This work led to the adoption of recommendations in April 1998.

52. On the basis of surveys conducted in the member countries, PUMA has identified a set of instruments needed by the public authorities to promote integrity and prevent corruption. These have been termed the “ethics infrastructure”. The main aim is to help people in positions of public responsibility to meet the highest standards of integrity and ethics without reducing the efficiency and the effectiveness of their work.

53. The infrastructure is intended to provide a public service framework that promotes certain standards of conduct. Each part of the infrastructure is an important element in itself but all the aspects complement and reinforce one another. They must influence each other in order to achieve the effectiveness necessary to become a coherent, integrated infrastructure. The different components of the infrastructure are classified according to the main functions they serve - guidance, management and control - while some components may fulfil several functions.

54. Guidance is provided by the strong commitment of political leaders and a statement of values in the form of codes of conduct. Adoption of a model code of conduct for local and regional elected representatives could mark a similar level of commitment on the part of local and regional elected representatives throughout Europe.

55. Management can be exercised through co-ordination by a special organ or by an existing management body as well as through conditions of public-service employment and management policy and practice.

56. Control is mainly exercised through a legal framework which makes provision for independent investigations and proceedings, through effective control mechanisms and by means of public scrutiny.

57. On 23 April 1998 the Council of the OECD adopted a set of 12 ethical principles and recommended that member states take action to ensure properly functioning institutions and systems to promote ethical conduct in the public service. The principles identify the functions of guidance, management and control, against which public-ethics management systems may be checked. It is important to note that OECD recommends that the principles be used at sub-national (i.e. regional or local) as well as national levels. Political leaders may use them to review ethics management regimes and evaluate the extent to which ethical standards are operationalised throughout government.

58. The principles state that ethical standards for public service should be clear and that it should be possible to present and disseminate them concisely in the form of codes of conduct designed to promote a shared understanding of common ethical values.

59. Political leaders are urged to maintain a high standard of propriety in the discharge of their official duties. The OECD recommends that decision making by public institutions be made more transparent and more democratic, that relations between the public and private sectors be clarified and that mechanisms for public scrutiny of public-authority action be reformed.

CONCLUSIONS

60. In conclusion, I take the view that:

- the code of conduct for local and regional elected representatives is not only in line with the visible trend towards modernising the political scene at national level and with international anti-corruption initiatives, but will also aim to improve relations between local politicians and citizens. Elected representatives need the citizens’ trust in order to perform their duties effectively. This trust is based, inter alia, on the representative’s integrity;

- the adoption of codes of conduct should help increase the transparency of public life and improve public access to information;

- the CLRAE should disseminate the results of Council of Europe anti-corruption work to local and regional authorities in Greater Europe;

- it should endorse the Criminal Law Convention on Corruption as a device for combating the evil of corruption at European level;

- associations of local and regional authorities, by virtue of their institutional role in the Council of Europe member countries, should promote integrity and honesty by adopting codes of conduct for municipal and regional councillors. Such codes, based on the European model code, should be aimed at providing guidance to elected representatives faced with tricky choices or situations where there is a danger of confusing private interests with the general interest;

- to regain public trust, which has been damaged by numerous scandals, elected representatives should abide by ethical principles in order to send a clear signal of their commitment to ethical values and respect for the public interest.

Appendix 1

European Code of conduct
for the political integrity of local and regional elected representatives

Preamble

The Congress of Local and Regional Authorities of the Council of Europe,

Stressing that local and regional elected representatives carry out their duties within the framework of the law and in accordance with the mandate given to them by the electorate and that they are accountable to the whole of the local or regional population, including those electors who did not vote for them;

Considering that respect for the electorate’s mandate goes hand in hand with respect for ethical standards;

Deeply concerned by the increase in the number of judicial scandals involving political representatives who have committed offences while in office and noting that local and regional elected representatives are not above such offences;

Convinced that the promotion of codes of conduct for local and regional elected representatives will allow trust to be built up between local and regional politicians and citizens;

Convinced that a relationship of trust is indispensable for elected representatives to be able to perform their role effectively;

Noting that legislation is more and more frequently supplemented by codes of conduct in various areas such as commercial relations, banking relations and administration;

Believing that it is the duty of local and regional elected representatives to take similar steps in their various areas of responsibility;

Convinced that a definition, in the form of a code of conduct, of the ethical obligations of local and regional elected representatives will clarify their role and duties and reaffirm the importance of those duties;

Convinced that such a code must encompass as fully as possible all the work done by elected representatives;

Stressing that rules of conduct imply that ethical imperatives must be respected;

Pointing out that the whole of civil society must be involved in restoring a climate of confidence and stressing the role of the citizens themselves and the media in this respect;

Reasserting that obligations cannot be imposed without guarantees being granted to enable local and regional elected representatives to fulfil their duties and recalling in this respect the relevant provisions of the European Charter of Local Self-Government and the Draft European Charter of Regional Self-Government;

Taking into consideration the legislation currently in force in member countries and the relevant work being done at international level, proposes the following Code of Conduct for the Political Integrity of Local and Regional Elected Representatives:

I – SCOPE

Article 1 – Definition of an elected representative

For the purposes of this Code, the term “elected representative” means any politician holding a local or regional authority mandate conferred through a principal election (election by direct suffrage) or secondary election (election to executive office by the local or regional council).

Article 2 – Definition of functions

For the purposes of this Code, the term “functions” means a principal or secondary elective mandate and all functions performed by an elected representative under that mandate.

Article 3 - Object of the code

The object of this Code is to specify the standards of behaviour expected of elected representatives in the performance of their duties and to inform citizens of the standards of behaviour that they have a right to expect of their elected representatives.

II – GENERAL PRINCIPLES

Article 4 - Primacy of law and the public interest

Elected representatives hold office under the law and must at all times act in accordance with the law.

In performing their functions, elected representatives shall serve the public interest and not exclusively their direct or indirect personal interest or the private interest of individuals or groups of individuals with the aim of deriving direct or indirect personal benefit therefrom.

Article 5 – Objectives of fulfilling a mandate

Elected representatives shall undertake to perform their functions with diligence, openness and a willingness to account for their decisions.

Article 6 – Constraints of fulfilling a mandate

In performing their functions, elected representatives shall respect the powers and prerogatives of all other political appointees and all public employees.

They shall not encourage or help any other political appointee or any public employee to breach the principles set forth herein when performing their functions.

III - SPECIFIC OBLIGATIONS

1. Taking of office

Article 7 – Rules governing election campaigns

Candidates’ election campaigns shall aim to provide information and explanations on their political programmes.

Candidates shall not seek to secure votes by any means other than persuasive argumentation and debate.

In particular, they shall not attempt to obtain votes by slandering other candidates, by the use of violence and/or threats, by tampering with electoral rolls and/or the results of the ballot or by granting or promising favours.

2. Holding of office

Article 8 – Ban on favouring

Elected representatives shall not perform their functions or use the prerogatives of their office in the private interest of individuals or groups of individuals, with the aim of deriving a direct or indirect personal benefit therefrom.

Article 9 – Ban on exercising authority to one’s own advantage

Elected representatives shall not perform their functions or use the prerogatives of their office to further their own direct or indirect private or personal interests.

Article 10 – Conflict of interests

When elected representatives have a direct or indirect personal interest in matters being examined by local or regional councils or by executive bodies, they shall undertake to make those interests known before deliberations are held or a vote is taken.

Elected representatives shall abstain from any discussion, deliberation or vote on a question in which they have a direct or indirect personal interest.

Article 11 – Limit on concurrent holding of two or more appointments

Elected representatives shall comply with any regulations in force aimed at limiting the concurrent holding of two or more political appointments.

Elected representatives shall not hold other political appointments where this prevents them from performing their functions as an elected representative.

Nor shall they have or hold functions, elective mandates, occupations or official appointments which entail supervision of their own functions as an elected representative or which they themselves are supposed to supervise in their capacity as an elected representative.

Article 12 – Exercise of discretionary powers

In exercising their discretionary powers, elected representatives shall not grant themselves any direct or indirect personal advantage, or grant any individual or group of individuals an advantage with the aim of deriving a direct or indirect personal benefit therefrom.

Detailed grounds shall be given for any decision, specifying all the factors on which the decision is based, in particular the applicable rules and regulations, and showing how the decision complies with those rules and regulations.

Failing any rules and regulations, the grounds for the decision shall include elements such as to show its proportionality, fairness and conformity with the public interest.

Article 13 – Ban on corruption

In performing their functions, elected representatives shall refrain from any conduct qualifying, under the national or international criminal law in force, as bribery or acceptance or soliciting of bribes.

Article 14 - Observation of budgetary and financial discipline

Elected representatives shall undertake to observe budgetary and financial discipline, which guarantees the proper management of public money, as defined by the relevant national legislation.

In fulfilling their duties, elected representatives shall not do anything to misappropriate public funds and/or grants. They shall not do anything that might lead to public funds and/or grants being used for direct or indirect personal purposes.

3. Relinquishing of office

Article 15 – Ban on securing certain appointments

In performing their functions, elected representatives shall not take any measure such as to grant themselves a future personal professional advantage once they have relinquished their functions:

- in public or private bodies over which they exercised supervision while performing those functions;

- in public or private bodies with which they established a contractual relationship while performing those functions;

- in public or private bodies which were set up during their term of office and by virtue of the powers entrusted to them.

IV – MEANS OF SUPERVISION

1. Taking of office

Article 16 – Limitation and declaration of campaign expenses

Candidates shall keep their spending on election campaigns in proportion and within reasonable limits.

They shall diligently comply with any measure under the regulations in force requiring the source and amount of the income which they devote to campaign financing and the nature and amount of their spending to be made public.

Failing regulations in force on the subject, they shall provide this information simply on request.

2. Holding of office

Article 17 – Declaration of interests

Elected representatives shall diligently comply with any measure under the regulations in force requiring their direct or indirect personal interests, their other mandates, functions or occupations, or changes in their assets to be made public or monitored.

Failing regulations on the subject, they shall provide this information simply on request.

Article 18 – Compliance with internal and external supervisory measures

In performing their functions, elected representatives shall not hinder the implementation of any supervisory measure which the relevant internal or external authorities may, with due justification and openness, choose to take.

They shall diligently comply with any immediately enforceable or final decision by those authorities.

When giving grounds for their acts or decisions subject to such supervision, they shall expressly mention the existence of the supervisory measures and specify the authorities competent for implementing them.

V – RELATIONS WITH THE PUBLIC

Article 19 – Publishing and giving grounds for decisions

Elected representatives shall be accountable to the whole of the local population throughout their mandate.

Elected representatives shall give detailed grounds for any decision which they take, specifying all the factors on which the decision is based, in particular the applicable rules and regulations, and showing how the decision complies with those rules and regulations.

Where that information is confidential, the reasons for such confidentiality shall be explained.

Elected representatives shall diligently respond to any request from the public concerning the performance of their functions, the grounds for their action, or the functioning of the services and departments coming under their responsibility.

They shall encourage and promote any measure which fosters openness concerning their powers, the exercise of those powers and the functioning of the services and departments coming under their responsibility.

VI – RELATIONS WITH LOCAL GOVERNMENT STAFF

Article 20 - Appointments

Elected representatives shall undertake to prevent any appointment of administrative staff based on principles other than recognition of merit and professional abilities and/or for purposes other than the needs of the department.

In matters of staff appointments or promotions, elected representatives shall take an objective, reasoned decision, showing due diligence.

Article 21 – Respect for the role of local government staff

In performing their functions, elected representatives shall show respect for the role of the local government staff reporting to them, without prejudice to the legitimate exercise of their hierarchical authority.

They shall not ask or require a public employee to take or omit to take any measure such as to give themselves a direct or indirect personal advantage or give an advantage to individuals or groups of individuals with the aim of deriving direct or indirect personal benefit therefrom.

Article 22 – Promotion of the role of local government staff

In performing their functions, elected representatives shall ensure that the role and tasks of the local government employees reporting to them are promoted to the full.

They shall encourage and promote any measure which fosters improvements in the operating performance of the services or departments coming under their responsibility and the motivation of the staff concerned.

VII – RELATIONS WITH THE MEDIA

Article 23

Elected representatives shall respond diligently, honestly and fully to any request from the media for information concerning the performance of their functions but shall not provide any confidential information or information concerning the private lives of elected representatives or third parties.

They shall encourage and promote any measure which fosters media coverage of their powers, the performance of their functions and the functioning of the services and departments coming under their responsibility.

VIII – INFORMATION, DISSEMINATION AND AWARENESS-RAISING

Article 24 – Dissemination of the code to elected representatives

Elected representatives shall undertake to ensure that they have read and understood all of the provisions of this code and the regulations referred to herein, and shall declare that they are willing to be guided by the provisions of the code.

Article 25 – Dissemination of the code to the public, local government staff and the media

Elected representatives shall encourage and promote any measure which fosters dissemination of this code to the staff reporting to them, the public and the media, and which heightens those persons’ awareness of the principles contained herein.

Appendix II

EXPLANATORY REPORT

The purpose of this code is to set out at European level a number of ethical principles approved by the delegates of Europe’s local and regional elected representatives. It will be for the national governments and/or national associations of local and regional authorities of the member states to detail the standards and principles established by the code in their national legislation or other relevant prescriptive or ethical texts.

A model code cannot claim to cover the entire range of widely differing situations affecting local and regional authorities and elected representatives. This code, while stating the ethical principles that should be observed by all Europe’s local and regional elected representatives, therefore leaves local and regional authorities substantial scope for expanding and applying it. This subsequent development process should, among other points, allow for new problems and situations that may one day arise: it is consequently for local and regional authorities themselves to take the initiative of expanding on the principles laid down by the code.

Each local or regional authority or its representatives should be able either to adopt this code without amendment or to draw up its own code of conduct on the basis of this code. In other words, the European code sets minimum standards. The provisions of the code do not adversely affect the legal provisions of Council of Europe member states on combating corruption or on setting a number of rules of conduct for elected representatives.

The code performs a triple function:

    1. informing local and regional councillors (and candidates) on the conduct to adopt in the day-to-day performance of their tasks (including during election campaigns);

    2. informing the public (local community, voters, press) about the conduct they are entitled to expect from elected representatives and candidates for election;

    3. helping to boost the public’s confidence in local and regional elected representatives and thus consolidating the relationship between the public and local and regional policy-makers.

The draft code attempts to cover the broadest possible time-span, encompassing different stages in an elected representative’s political career: election campaign, fulfilment of a mandate, relinquishing of a mandate.

Section I, Article 1 provides that the code shall apply to all local and regional elected representatives.

To make the code consistent in scope, it is specified that the principles laid down in it apply whether the mandate is conferred in a principal election (election by direct suffrage) or in a secondary election (election to executive office by the local or regional council).

With the same aim in mind, Article 2 provides that elected representatives shall respect by those principles both when fulfilling their elective mandate (principal or secondary) and when performing functions which ensue directly from that mandate. This is intended to apply, in particular, to functions which they perform in local or regional associations or local or regional public bodies where they sit in their capacity as local or regional elected representatives.

Article 3 defines the purpose of the code, specifying that elected representatives must fully abide by the principles set forth in the code. As indicated above, the code will aim to inform elected representatives about the conduct they should adopt in the performance of their functions and to inform the public about the line of conduct it is entitled to expect from local and regional elected representatives.

Section II aims to define the general principles which should govern elected representatives’ conduct when fulfilling their mandate. These are couched in general terms and engender a duty to use one’s best endeavours but not to produce a specific result. They must be read simultaneously with the specific obligations set forth in Section III, which constitute a non-restrictive list of measures to be complied with pursuant to these general principles.

Article 4 aims to establish the primacy of the legal framework in which elected representatives take office and perform their functions and to preclude the promotion of personal interests which might override the public interest. Such personal interests may be pecuniary, professional or electoral in nature. They are direct or indirect depending on whether the interest concerns the elected representative in person or someone close to him or her (family, friends, political group). Such interests may derive in particular from the fact that elected representatives or members of their families belong to clubs or associations. Elected representatives are also banned from exclusively favouring the interests of individuals who are not close to them, with the ultimate aim of deriving personal benefit therefrom.

Article 5 defines the objectives to be pursued in fulfilling an elective mandate. Openness and efficiency in fulfilling a mandate allow effective monitoring thereof9.

The purpose of Article 6 is to avoid interaction and confusion of powers in order to prevent widespread, routine breaches of the principles established by Section I. It should be read concurrently with Sections III and V. Mandate-holders must respect the role and powers of other mandate-holders and public servants, thereby allowing supervisory machinery to operate fully. They must also refrain from encouraging other persons to adopt a line of conduct contrary to Section I and from accepting such encouragement from other persons. They shall oppose such conduct, for example by ensuring compliance with these principles in the departments under their authority.

Section III imposes certain specific obligations on elected representatives. These obligations further the general objectives described in Chapter 2. Defining both general principles and specific obligations makes it possible to avoid the pitfalls of wording which is either too general or too specific. Elected representatives should naturally observe the general principles set forth in Section II in all their activities, over and above these specific obligations.

Article 7 lays down the principles applicable to election campaigns. Because of the sums of money which they require, election campaigns involve a high risk of corruption. They may also be the occasion of electioneering practices seeking to curry favour with voters. The article aims to define a campaign in positive terms (communication of a message), by specifying what is proscribed conduct for candidates (vote buying in direct exchange for advantages or promises thereof serving the direct or indirect personal or private interests of given voters, violence, libel/slander or manipulating electoral rolls or election results).

Article 8 aims to help elected representatives avoid “clientélisme”, or using favouritism as an inducement to a particular section of the electorate. This concept is difficult to define, and the code addresses it in terms of the interests being served. Elected representatives are banned from behaving in such a way as to bestow gifts, benefits, advantages or dispensations on certain people, both in performing their functions and in exercising their prerogatives (appointments, use of goods and services relating to their functions).

Articles 9 and 10 deal chiefly with resolving conflicts of interest. Resolving conflicts of interest lies at the very heart of integrity in public affairs. The basic principle to be observed is clear: public officials should not in any way allow their direct or indirect personal interests, mentioned in Article 4, to interfere with the public interest, in this case that of the municipality or region. No public decision should be taken under pressure from the personal interest of one or more decision-makers. As a general principle, all interests should be declared. Declaring such interests provides elected representatives with an opportunity to express their views on the matter during the initial discussions. However, when local or regional councils or executive bodies subsequently proceed with the deliberations and the vote, the representatives concerned should withdraw. Here, a clear distinction should be drawn between the three stages whereby councils take decisions: initial discussions, deliberations, vote. This distinction makes it possible to reconcile the fundamental requirement of impartiality in decision-making and the right of all councillors to speak. In declaring their interests, elected representatives are entitled to take part in an initial discussion, during which they may justify their viewpoint, which may be of assistance in the decision-making process. However, at a later stage, councillors should be allowed to take the decision unimpeded, without being subject to the pressure potentially caused by the presence of a member who has declared an interest. Nevertheless, the legislation in force in some countries may expressly prohibit elected representatives who have declared an interest from participating in deliberations or a vote. The provisions of the code should not adversely effect these legal provisions in this case.

Practice regarding the declaration of interests at local and regional government level is particularly complex. Anyone fulfilling public functions may have personal interests in various capacities. Local or regional councillors, who sometimes perform their functions only on a part-time or voluntary basis, are bound to have quite substantial personal interests and perhaps even more so than other members of the community. A priori it is difficult to exclude all persons with personal interests in a given geographical area from the discussion of an issue and the vote on that issue. This would amount to penalising competent people and at the end of the day would adversely affect the decision.

Article 9 aims to preclude elected representatives committing any act that might lead to abuses of authority to their direct or indirect personal benefit (giving appointments to family or friends, use of goods and services for one’s own private purposes, granting personal advantages, personal enrichment).

In this connection, as specified in Article 9, whenever elected representatives’ personal interests are at stake, they should abstain from any form of participation in the relevant decision10.

Local and regional authorities perform a wide range of functions and are involved in a variety of activities in a limited geographical area. They are managed by mandate-holders whose task is to uphold the local community’s interests and implement the terms of the mandate given to them by the local community. But local and regional councillors themselves are part of the local or regional community and, as such, have been or will be involved (before or after the elections) in commercial or other activities in their municipality or region. That is why there is a clear risk of conflicts of interest and it is not always easy to strike a balance between a mandate-holder’s interests and the functions he or she was elected to fulfil.

To avoid a conflict of interests, mandate-holders should therefore, when taking up elective office, declare those of their direct or indirect personal interests that the public may reasonably consider likely to influence their acts, statements or votes on the local or regional council or on executive bodies. In some cases, especially at local level, a council or an executive body decision can affect an organisation (for example an association pursuing aims that benefit the whole community) in which an elected representative has or had a direct or indirect personal interest. The decision may have beneficial effects on the organisation (such as the award of a grant or the provision of premises). A decision of this kind is in the public interest, not in a personal interest, and an elected representative’s participation in the preliminary discussions would in this case serve to enlighten his or her colleagues in their decision-making process. The main requirement for the community (elected representatives, population, press) is to know that the elected representative declared this interest in advance or during the initial discussions. Where necessary, that will allow the public to assess the position stated by the mandate-holder on the basis of his or her previous activities.

In addition, many other issues dealt with by a local or regional authority may affect the interests of mandate-holders who live in the community where they hold office and engage in other private activities; examples include decisions on town planning, roads and traffic. This is especially true of small municipalities. A reasonable approach designed to defuse real or potential conflicts would therefore be to propose that newly elected representatives declare at the outset, in a special register, those of their interests which are connected with the territory where they fulfil their elective functions This will ensure openness in the management of local affairs.

Article 11 sets forth the principles applicable as regards restrictions on concurrently holding two or more appointments. While some elective mandates may justifiably be held concurrently, this is liable in other cases to be detrimental to the conduct of a political mandate by a local or regional elected representative, particularly where executive duties are concerned. Both situations where this affects a mandate-holder’s availability (paragraph 2) and those where it leads to a conflict of interests (paragraph 3) must be avoided. Functions that involve mandate-holders in conflict of interests or prevent them from fulfilling their elective functions will thus be regarded as “preventing them from performing their functions as an elected representative”. Self-supervision must likewise be ruled out (paragraph 4). Article 11 covers both the concurrent holding of several political functions and the concurrent holding of political functions and private occupations. These rules are without prejudice to any more stringent general regulations which may apply (paragraph 1)11.

Article 12 governs the exercise of discretionary powers, the abuse of which may afford opportunities for corruption in the broad sense. The exercise of such powers must go hand in hand with an obligation to give precise grounds for any decision, so as to permit a review thereof. Failing existing rules or regulations on such matters12, Article 12 requires that detailed grounds be given for any decision taken by an elected representative pursuant to discretionary powers.

Article 13 prohibits corrupt behaviour per se. Given the variety of definitions of the offence of corruption13, reference is made to the criminal law in force in an elected representative’s own country and to the relevant international legal instruments.

Article 14 imposes budgetary and financial discipline on elected representatives. Their tasks may include managing substantial amounts of public money (such as grants). The misappropriation of public funds for other purposes can damage the local or regional economy and thus undermine the citizens’ confidence in local politicians. Strict and open management of public funds in line with the legislation in force therefore reduces the likelihood of corruption and boosts the electorate’s confidence in policy-makers.

The cases of misconduct which may arise after elected representatives have relinquished their functions are dealt with under Chapter 3. The practice of securing lucrative appointments after relinquishing elected office is growing, particularly in a context of economic change.

Article 15 seeks to ban all practices enabling elected representatives to use their elective office to guarantee themselves a post after relinquishing their functions. The aim is to prevent elected representatives from using the powers conferred on them by their functions to further their own future professional interests. Article 15 therefore deals with any professional advantage (employment, position, remuneration, titles or responsibilities) that local elected representatives may secure themselves within public or private bodies in relation to which they exercised powers while in office (these powers may have been exercised in connection with supervision, a contractual relationship or the setting up of the body during the representative’s time in office and by virtue of his or her functions).

Section IV lists the means of supervision imposed on mandate-holders in order to verify their compliance with the general principles set forth in Section II and the specific obligations described in Section III.

Article 16 requires them to comply diligently with the regulations on election campaigns (at whatever level). Even where there are no such regulations14, candidates are asked to provide information enabling citizens to monitor the situation in any case.

Article 17 requires elected representatives to comply diligently with the regulations on disclosure and supervision of their interests, their other appointments and changes in their assets. Regulating conflicts of interest by imposing disclosure and supervision measures is of key importance as a means of combating corruption15. Failing legislation along these lines16 any citizen may simply request the information needed to monitor the situation.

Article 18 regulates relations between the elected representative and the relevant supervisory authorities (internal or external). Observation of corruption phenomena in the broad sense shows the importance of having effective supervisory measures (internal or external). Elected representatives must not take steps to prevent the authorities from exercising supervision, nor must they subsequently fail to act upon the authorities’ decisions. To enhance the effectiveness of such supervision, those for whose benefit it is exercised must be informed of its existence by the elected representatives themselves.

Section V governs relations between elected representatives and the public. A relationship of trust between the public and politicians is one of the keys to the legitimacy of the mandate conferred by the elections. The voters give the elected representative a mandate whose terms he or she must faithfully implement. The elected representative is answerable to the entire local community, i.e. even to the electors who did not vote for him or her. Openness in decision-making and public supervision of the functioning of public services and departments have been identified as one of the most effective means of preventing and suppressing the abuses of power which mandate-holders may commit in performing their functions. Precise obligations are imposed on elected representatives to justify and explain their action and supply information.

Section VI governs relations between elected representatives and local government staff. Confusion of the respective roles of local government employees and holders of elective mandates is a factor in the spread of corruption in the broad sense. Such confusion arises either where public employees are used for corrupt purposes or where elected representatives infiltrate local government departments with their own supporters by making biased appointments. An atmosphere in which the role and performance of local government employees are devalued and undermined is both a cause and a consequence of a climate of corruption in the broad sense. Articles 20-22 impose obligations on elected representatives regarding their conduct towards local government staff in several areas: depoliticising appointments and promotions, refraining from bestowing favours as an inducement to certain persons, and enhancing the role of local government staff. This article also aims to reduce the risk of creating fictitious jobs for friends or relatives of elected representatives and/or for representatives of the political groupings to which they belong.

The press plays an important role in preventing and suppressing corruption. Section VII places obligations on elected representatives designed to enable the press to play its investigatory role in this connection. However, elected representatives’ obligation to co-operate is confined to information concerning the performance of their functions alone, and excludes information on their private or confidential lives.

Section VIII governs dissemination of the code to the persons actively involved and to the public, and heightening of their awareness of the principles set forth in it. Article 24 urges elected representatives to state their intention of complying with the provisions of the code, which is an active means of endorsing the ethical principles set out in it. This undertaking could be given at the first session of a newly-formed municipal or regional council.

 

1 In particular by the Council of Europe Multidisciplinary Group on Corruption. See below.

2 Yves Mény defines corruption as “a secret transaction between ‘markets’, the political and/or administrative market and the economic and social market. This transaction is hidden because it violates public, judicial and ethical standards and sacrifices the common good to private interests (personal, sectional, party, etc). Finally, this transaction, which enables private individuals to have access to public resources (contracts, funding, decisions etc) in a privileged and biased way (lack of transparency or competition), secures present or future pecuniary advantages for corrupt public figures themselves or for the organisation to which they belong”. Despite the range of European experience, Mény identifies the following characteristics as constant factors in corruption as defined above: - private interests are substituted for the public good; - the practices undermine the rule of law; - they negate the principle of equality and transparency by furthering privileged and secret access by certain individuals to public resources (Y. Mény, Introduction in Mény Y. and Della Porta D. (eds), Démocratie et corruption en Europe, Paris, La Découverte, 1995, pp 13 and 14). Articles 2 and 3 of the European Criminal Convention give the following definition of corruption: Active bribery of domestic public officials: “… the promising, offering or giving by any person, directly or indirectly, of any undue advantage to any of [a party’s] public officials, for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions”; Passive bribery of domestic public officials: “…the request of receipt by any of its public officials, directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions”.

3 C. Game, “Public service ethics and British local government: will the Nolan Committee turn from Xestminster to Westminster”, IASIA seminar “Professionnalism and ethical conduct for the public servant: challenges for the 21st century”, Durban, 30 June to 5 July 1996, 4.

4 Mény , op. cit., 17. In the United Kingdom, Game (op. cit., 38) observes that local councillors have more opportunities for corruption because, unlike members of parliament, they have “executive powers” with regard to planning permission, allocation of local authority housing, concessions and grants to local voluntary organisations, etc.

5 It is worth noting that this identification of the two categories does not necessarily occur with other mandates. In the case of a national electoral mandate with a large number of constituencies, the elected representatives’ powers will also affect citizens who are not his or her direct electors.

6 Programme of Action against Corruption adopted by the Committee of Ministers, op. cit., p. 44.

7 Ibid, pp. 46 and 47.

8 See table, CG (6) 8 Part II, Addendum 1.

9 On the fundamental importance of these requirements, see Sections V and VI of the draft code.

10 The survey of the regulations in force in the member countries conducted by the Congress Working Group on the Political Integrity of Local and Regional Elected Representatives shows that most national regulations require an elected representative to abstain in such circumstances.

11 The Congress working group found, on the basis of a sample of 15 countries, that the domestic law of the member countries contains few general restrictions on concurrent holding of appointments (except in Belgium, France and Malta). Preference goes to giving a precise list of incompatible functions.

12 The working group’s survey shows that many powers involving contractual relations with the private sector (privatisations, public supply contracts) or the provision of services (town planning, social housing) are not subject to general rules and are therefore discretionary.

13 It is apparent that all countries have an arsenal of criminal law instruments for use in fighting corruption (although, as a general rule, no specific instruments exist at local government level).

14 Five countries report the existence of regulations on campaign spending and income at local government level (Belgium, Bulgaria, France, Spain and Portugal).

15 The Nolan Report proposes to introduce a requirement that local mandate-holders declare their pecuniary interests and that this information be disclosed in a public register kept by the local council (Recommendation No.8).

16 Six countries (Austria, Belgium, Malta, Portugal, Romania and the United Kingdom) have passed regulations requiring holders of elective office to declare their pecuniary assets and/or interests. Such declarations are not always made public.



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