Chapter 1. Building a coherent and comprehensive public integrity system in Nuevo León

This chapter considers the framework of Nuevo León’s public integrity system and how well it is aligned with the first pillar of the OECD Recommendation of the Council on Public Integrity on building a coherent and comprehensive public integrity system. Nuevo León’s Local Anti-corruption System offers an invaluable opportunity to encourage coherence and consistency among the different policies, measures and initiatives of the relevant actors, both in Nuevo León, and in the country as a whole. The chapter notes that Nuevo León has based its integrity system on the model established at the federal level, but also suggests that further efforts are needed to engage all relevant actors in the state – including municipalities. In addition, at the level of government entities, integrity policies and practices need to be implemented and mainstreamed. Furthermore, political and managerial leadership is needed to model public integrity and reduce corruption by ensuring sustained support for the system and its mechanisms for citizen participation.

    

1.1. Introduction

Setting clear, co-ordinated responsibilities for institutions involved in preventing and curbing corruption is a fundamental prerequisite for creating a coherent, comprehensive public integrity system. This need has become all the more acute given the increasing number of actors and institutions involved in shaping and managing integrity policy within government at all levels, both in Mexico and in other countries. The effectiveness of the integrity system clearly depends on institutional co-ordination, and on how stakeholders deal with the potential gaps and overlaps that can undermine integrity policies.

This chapter assesses the current state of the integrity system in Nuevo León, examining issues related to co-ordination, implementation and high-level commitment. It takes as its model the theoretical framework provided by the OECD Recommendation of the Council on Public Integrity (OECD, 2017[1]), as well as experience and best practices from other countries. Special emphasis is placed on analysing the Local Anti-corruption System that Nuevo León established in 2017, as a consequence of the broader federal anti-corruption reform initiated in 2015 to co-ordinate all the institutions in charge of preventing, detecting and sanctioning corruption across all levels of government (Box ‎1.1).

Box ‎1.1. Mexico’s national anti-corruption reform

On 27 May 2015, Mexico’s Federal Official Gazette published a Decree under which several provisions of the Constitution were amended, added or repealed (specifically, Articles 22, 28, 41, 73, 74, 76, 79, 104, 108, 109, 113, 114, 116 and 122). This reform first enshrined the National Anti-corruption System (Sistema Nacional Anticorrupción, or SNAC) into law and set in motion the debates around and the eventual passage of the secondary legislation necessary to establish the integrity system. Just over a year later, on 18 July 2016, these secondary laws were promulgated by decree (Decreto por el que se expide la Ley General del Sistema Nacional Anticorrupción; la Ley General de Responsabilidades Administrativas, y la Ley Orgánica del Tribunal Federal de Justicia Administrativa) and included:

The General Law of the National Anti-corruption System (Ley General del Sistema Nacional Anticorrupción): This is the cornerstone legislation, which establishes the institutional and governance arrangements for the SNAC, and outlines objectives and required activities. Given its status as a General Law, it requires Mexico’s federal states to set up their own systems along similar lines. The law also requires certain information to be published and made available to the public on a newly created Digital Platform (Plataforma Digital Nacional del Sistema Nacional).

The Organic Law of the Federal Tribunal of Administrative Justice (Ley Orgánica del Tribunal Federal de Justicia Administrativa): The institution was made autonomous under the Constitutional Reform of 2015, and this new law established the organisation of the Tribunal and its courts, including regional courts. The Law also sets out rules for the selection and removal of magistrates.

The General Law of Administrative Responsibilities (Ley General de Responsabilidades Administrativas): This is a new law that replaced the Federal Law of Administrative Responsibilities when it expired in July 2017. The new law lays out the duties and responsibilities of public officials (including the disclosure of private interests) and sets out administrative disciplinary procedures for misconduct, differentiating between less serious and serious offences, which may now fall under the jurisdiction of the Federal Tribunal of Administrative Justice. Notably, it also expands liability for alleged integrity breaches to natural and legal persons.

Source: (OECD, 2017[2]).

1.2. Building an inclusive integrity system in Nuevo León

1.2.1. The governing bodies of the Anti-corruption System of Nuevo León should ensure the involvement of all institutions dealing with centre-of-government co-ordination and integrity-related topics in the executive branch.

The experience of OECD countries shows a high degree of diversity in the way countries organise their public integrity systems. In many instances, responsibilities are shared between one or more institutions. Managing public integrity is a whole-of-government responsibility involving many organisations in the public sector, as indicated by the 2016 OECD Survey on Public Sector Integrity (Table ‎1.1). This shows that a decentralised approach prevails, and that individual line ministries within the executive branch are often responsible for designing and leading the core integrity policies (that is, integrity rules and codes of conduct; policies for the management of conflict of interest; the transparency of lobbying activities; and internal control and risk management). The same applies to the design of a country’s national integrity or anti-corruption strategy; although in such instances, centres of government in the executive branch sometimes take the lead (Table ‎1.1). This situation creates the risk of duplication and overlap, threatening the effectiveness of integrity policies and the integrity system as a whole. As the OECD Recommendation (OECD, 2017[1]) makes explicit, it is essential to establish mechanisms for horizontal and vertical co-operation between all relevant actors within the executive “through formal or informal means, to support coherence and avoid overlap and gaps, and to share and build on lessons learned from good practices.”

Table ‎1.1. Institutions responsible for the design of integrity system policies

Design of integrity policies related to:

Design of the national integrity and/or anti-corruption strategy

Code of conduct /ethics for civil servants

Conflicts of interest of civil servants

Whistle-blowing

Lobbying

Financing of political parties and campaigns

Internal audit and control in the executive branch

Australia

Austria

▲♦

●▲

●▲

▲■

Belgium

●▲

▲■

▲■

Canada

●▲

●▲

●▲

●■

●■

●▲

Chile

▲■

▲■

●▲

Czech Republic

▲■

▲■

Estonia

-

▲-

-

Finland

▲♦

▲■

France

▲■

▲■-

▲■

▲■

▲■♦

Germany

▲■

Greece

●▲■

Hungary

●▲

▲■

Iceland

●▲

●■

●▲

●▲

▲■

Ireland

-

-

Italy

▲■

▲■

-

-

▲■-

Japan

●■

●▲■

●■

-

Korea

▲■

Latvia

Mexico

▲■

Netherlands

New Zealand

●▲

●▲■

●▲■

●▲■

●■

●▲■

●▲■

Norway

Poland

Portugal

Slovak Republic

●▲

●▲■

Slovenia

●▲■

●▲■

●▲■

▲■

▲■

Spain

●▲

●▲

●▲

●▲

●▲

●▲

Sweden

-

-

-

-

-

-

Switzerland

▲■♦

▲■

▲■

United Kingdom

●♦

●■

United States

●▲-

▲■

●▲■

OECD Total

● Centre of government

8

11

10

7

9

5

9

▲ Ministry or unit within a ministry

21

21

21

21

16

16

25

■ Autonomous body

9

7

9

11

7

15

15

♦Inter-institutional committee

3

1

0

0

0

0

1

□ N/A

3

0

1

1

5

0

0

Others

1

3

2

1

3

4

3

Argentina

Brazil

Colombia

●▲■

●▲■

Costa Rica

▲■

▲■

Lithuania

●■♦

■♦

▲-

Peru

●■♦

■♦

Note: Data on Argentina, Brazil and Peru were included on an ad hoc basis. The full range of policies in the US integrity system are developed and carried out by separate agencies and entities with subject- or branch-specific jurisdictions.

Source: (OECD, 2017[3]).

In Nuevo León, several institutions are responsible for preventing and detecting corruption. A key role is played by the Office of the Comptroller and Governmental Transparency (Contraloría y Transparencia Gubernamental, or Comptroller’s Office), the Superior Audit Office of the State of Nuevo León (Auditoría Superior del Estado de Nuevo León, or ASENL), the Transparency and Access to Information Commission of Nuevo León (Comisión de Transparencia y Acceso a la Información del Estado de Nuevo León, or CTAIENL), as well as the Administrative Justice Tribunal (Tribunal de Justicia Administrativa) and the Specialised Anti-corruption Prosecutor (Fiscalía Especializada en Combate a la Corrupción) (Box ‎1.2).

Box ‎1.2. Key actors in Nuevo León’s integrity system

The Office of the Comptroller and Governmental Transparency (Contraloría y Transparencia Gubernamental) is the ministry responsible for promoting the best practices of internal control. It guides the government in how to ensure the legality, honesty, responsibility and efficiency of public officials as they exercise their duties, as well as on the transparency and quality of services offered by government entities. Its legal framework under the Organic Law of the Public Administration of Nuevo León (Ley Orgánica de la Administración Pública para el Estado de Nuevo León) and the Internal Regulation of the Office of the Comptroller and Governmental Transparency (Reglamento Interior de la Contraloría y Transparencia Gubernamental) gives the Comptroller-General authority over the executive and the entities of the state public administration, but not over municipalities. However, it is permitted to intervene at the municipal level on state public expenditure and federal public expenditure transfers.

As illustrated in the table below, the Office of the Comptroller and Governmental Transparency has different Directorates that draft and implement integrity policies in public sector activities: the Anti-corruption Unit (Unidad Anticorrupción), the Legal Directorate (Dirección Juridica), the Directorate of Internal Control Bodies and Supervision (Dirección de Organos de Control Interno y Vigilancia), the Directorate of Control and Audit of the Executive (Dirección de Control y Auditoria del Sector Central), the Directorate of Control and Audit of the Parastatal Sector (Dirección de Control y Auditoria del Sector Paraestatal), the Directorate of Public-works Control and Audit (Dirección de Control y de Auditoria de Obra Pública) and the Directorate of Government Transparency (Dirección de Transparencia Gubernamental).

Table ‎1.2. Integrity policy design and implementation by the Office of the Comptroller and Governmental Transparency

Designing policy

Carrying out policy

Directorate of Control and Audit of the Central Sector

Legal Directorate

Directorate of Control and Audit of the Parastatal Sector

Anti-corruption Unit

Directorate of Public-works Control and Audit

Directorate of Internal Control Bodies and Supervision

Directorate of Government Transparency and Quality

 

The Superior Audit Office of the State of Nuevo León (Auditoría Superior del Estado de Nuevo León, ASENL) is a technical government oversight and control agency. It is auxiliary to the State Congress in reviewing the public accounts presented by audited subjects, and has technical and management autonomy. It can also determine its internal organisation, operation, budgetary exercise and issue resolutions, in accordance with the provisions of the Law of Superior Audit of the State of Nuevo León (Ley de Fiscalización Superior del Estado de Nuevo León).

The Transparency and Access to Information Commission of Nuevo León (Comisión de Transparencia y Acceso a la Información del Estado de Nuevo León, CTAIENL) is responsible for promoting transparency and accountability in the state government. It is bound by rules that set the criteria to be used by institutions to determine whether the information they have is classified or confidential. It declassifies and creates public versions of files or documents, parts of which may be classified, as applicable.

The Administrative Justice Tribunal (Tribunal de Justicia Administrativa) and the Specialised Anti-corruption Prosecutor (Fiscalía Especializada en Combate a la Corrupción) are responsible for imposing penalties for breaches of the integrity rules. The Tribunal has jurisdiction over serious administrative offences and acts of corruption, and the Prosecutor is responsible for investigating and prosecuting corruption cases involving public servants and individuals. It also supervises and organises the work of prosecutors, investigators and experts in the Public Prosecutor’s Office (Ministerio Público). The Specialised Anti-corruption Prosecutor will also investigate ex officio, and if required, prosecute potential acts of corruption.

Source: Answers to questionnaire by the government of Nuevo León (2017).

After the Constitutional reform of 2015 and the secondary laws adopted in July 2016 (Box ‎1.1), all Mexican states were required to establish their own Local Anti-corruption System (Sistema Local Anticorrupción, or SLAC), on the model established at the federal level. The goal was to improve horizontal co-ordination among state-level institutions, as well as to encourage vertical co-ordination with federal and municipal authorities. Nuevo León first introduced the necessary constitutional changes in December 2016, and then adopted the Local Anti-corruption System Law (Ley del Sistema Estatal Anticorrupción para el Estado de Nuevo León, or SEANL Law) in July 2017, detailing the composition, roles and process governing Nuevo León’s Anti-corruption System (Sistema Estatal Anticorrupción para el Estado de Nuevo León, or SEANL) (Table ‎1.3).

Table ‎1.3. Governance and responsibilities of the SEANL

Entities

Members

Main tasks

Co-ordination Committee

President: member of Citizen Participation Committee

Members: Three members of the Citizen Participation Committee (one of whom is president), Comptroller- General, Auditor of Superior Audit Office of the State of Nuevo León, President of Transparency and Access to Information Commission of Nuevo León, Specialised Anti-corruption Prosecutor, Magistrate of Nuevo León’s Administrative Justice Tribunal and a representative of Nuevo León’s Judicial Council

Establishes basis, policies, principles and procedures for effective co-ordination among members

Executive Secretariat to the Co-ordination Committee, which includes:

- Technical Secretary

- Executive Commission

Technical support body to the Co-ordination Committee led by the President of the Citizen Committee. Its governing body is made up of members of the Co-ordination Committee.

Elected by the Governing Board members of the Executive Secretariat by qualified majority (five votes), among people with profiles similar to members of the Citizen Participation Committee

Technical Secretary and Citizen Participation Committee (with the exception of its president)

Provides technical support to the Co-ordination Committee, and input for the performance of its tasks. Manages the Executive Secretariat. Provides technical input to support the Co-ordination Committee activities and responsibilities, including proposals to be approved

Citizen Participation Committee

Five reputable representatives of civil society who have made outstanding contributions to transparency, accountability or the fight against corruption. They are chosen by a Selection Commission of nine experts chosen by the Congress of Nuevo León for a period of three years.

Supports the objectives of the Co-ordination Committee and creates a link with relevant groups from civil society and academic entities

State entities taking part in the National Auditing System

ASENL, Comptroller-General, internal and external auditing entities and units of municipalities

Establishes actions and co-ordination mechanisms among members to support the exchange of information, ideas and experiences, to improve the development of the audit of public resources

Representatives of public entities

State-level public entities

Undefined

Source: Nuevo León Constitution (Constitución Política del Estado Libre y Soberano de Nuevo León) and Nuevo León Anti-corruption System Law (Ley del Sistema Estatal Anticorrupción para el Estado de Nuevo León).

From a formal perspective, Nuevo León has satisfactorily instituted the anti-corruption system at the local level. This has been confirmed by a project monitoring the process in all federal states known as “Anti-corruption Traffic Light”. This acknowledged the satisfactory level of implementation in Nuevo León both under the 2016 Constitutional reform and under the 2017 Anti-corruption System Law (IMCO, n.d.[4]). This is also reflected in the first round of appointments under the Law, including the nomination of the Selection Committee in November 2017 and the Special Anti-corruption Prosecutor in March 2018. However, as of June 2018, most of the governing bodies of the SEANL (i.e. the Citizen Participation Committee, the Co-ordination Committee and the Executive Secretariat) have not yet begun to operate. The “Anti-corruption Traffic Light” also notes a few areas that have not yet been addressed by the Constitutional reform. These include, in particular, the role and tasks of the Superior Audit Office, as well as the degree of independence of the Specialised Anti-corruption Prosecutor from the executive branch. Interviews with representatives of civil society confirmed that the system was implemented satisfactorily, in some cases exceeding the national model, for example in providing for the participation of three members of the Citizen Participation Committee (rather than one) in the Co-ordination Committee. These interviews suggest that the legislative process benefited from the work of a coalition of civil society organisations, which positively reflects the openness of the legislative branch to discuss and include its contribution into the final texts.

More generally, the institutional arrangements in the SEANL – which reflects the model established at the federal level and much of the input proposed by civil society – ensures that most of the institutions involved in the prevention, detection and enforcement of corruption take part in the system, and that civil society is granted a prominent role in its functioning and monitoring. The composition of the Co-ordination Committee reflects such effort by including three members of the Citizen Participation Committee, the Comptroller’s Office, the Auditor of Superior Audit Office of the State of Nuevo León, the President of Transparency and Access to Information Commission of Nuevo León, the Specialised Anti-corruption Prosecutor, the Magistrate of Nuevo León’s Administrative Justice Tribunal and a representative from Nuevo León’s Judicial Council.

The design of the SEANL represents progress toward building a co-ordinated integrity system among the relevant actors in Nuevo León, and it is also set to promote alignment and synergies with other areas essential to integrity, such as audit and transparency. First, the SEANL lists among its members the “State entities taking part in the National Auditing System”. Nuevo León’s Anti-corruption System Law dedicates a whole section to setting up mechanisms to ensure participation of the SEANL in the National Auditing System (Sistema Nacional de Fiscalización), and to ensure coherence between those two systems. Second, the presence of the CTAIENL in the Co-ordination Committee will help to ensure that the SEANL addresses issues and priorities in the realm of transparency. Lastly, the participation of the Specialised Anti-corruption Prosecutor and the Magistrate of the Administrative Tribunal ensures co-ordination and consistency in enforcing the new integrity rules and criminal provisions.

Despite these developments, one of the challenges of Nuevo León’s integrity system is taking a whole-of-government approach to integrity and ensuring that other entities in the government contribute to and benefit from integrity policies drafted under the SEANL. The governing bodies of the SEANL could introduce mechanisms to include entities in the executive branch with key responsibilities for building a coherent, comprehensive integrity system, namely:

  • The Executive Agency for Co-ordination of the State’s Public Administration (Coordinación Ejecutiva de la Administración Pública del Estado): Co-ordinates the implementation and assessment of the state’s strategic goals and objectives (see Chapter 2), oversees the organisation of government, co-ordinates the fiscal package, organises Cabinet meetings, promotes mechanisms for citizen participation and serves as a liaison between government and civil society.

  • The Ministry of Administration (Secretaría de Administración): helps manage the human, material, technological and communication resources of the public administration, according to the principles of transparency, accountability, efficacy and effectiveness.

  • The General Government Ministry (Secretaría General de Gobierno): carries out internal political issues, co-ordinating with the federal government, the other states’ administrations and the municipalities.

  • The Ministry of Education (Secretaría de Educación): manages education services and the human, financial and material resources dedicated to education in Nuevo León (see Chapter 5).

  • The State Institute for Youth (Instituto Estatal de la Juventud): analyses, plans, designs and implements public policy, co-ordinating and creating programmes and actions targeting young people, identifying and enhancing their social development and productivity, as well as collaborating with public, private and social entities to promote the development of young people in Nuevo León (see Chapter 5).

Nuevo León’s Anti-corruption System Law does not provide for the participation of such Ministries in the Co-ordination Committee. There are valid reasons not to include them on a permanent basis in the SEANL, since too many participants could compromise its effectiveness. However, their participation in the SEANL discussion would be extremely beneficial in topics or areas where these ministries have a relevant role (e.g. co-ordination) or competence (e.g. human resources and education). To help engage these institutions in the effort, Nuevo León could leverage the reference to “representatives of public entities” among the constituting entities of the SEANL (Article 7 of the Nuevo León Anti-corruption System Law and Table ‎1.1) and establish formal mechanisms to involve them in the work of the Co-ordination Committee, as well as in other relevant bodies, whenever an area of interest is to be addressed. For example, the institutions in question could be invited to the relevant meetings of the Committee – at least when discussing the state’s anti-corruption policy – following the procedure laid out in Article 13 of the Nuevo León Anti-corruption System Law.

A specific mechanism for participation and co-ordination could be designed for the Executive Agency for Co-ordination of the state’s Public Administration, not only because of its key responsibility for ensuring the coherence of action taken by the executive branch, but also thanks to its role in co-ordinating and monitoring the Strategic and Development Plans (Nuevo Leon Council, 2016[5]; Nuevo Leon Council, 2016[6]). This is crucial, given that the Development Plan 2016-2021 describes the fight against corruption as one of the priority areas for the government in the years to come, and calls for the creation of a robust State Anti-corruption System (Table ‎1.4). The Executive Agency for Co-ordination is a pivotal institution for consistency and coherence between the strategic efforts of the state and the work of the SEANL. It should always be involved in issues of policy and co-ordination, as well as monitoring and evaluation, particularly at the technical level, in the SEANL’s Executive Secretariat (see Chapter 2).

Table ‎1.4. Strategic action for consolidation of the SEANL laid out in the State Development Plan 2016-2021

Prevent, identify and combat illicit conduct and administrative misconduct of public servants.

Ensure effective co-ordination with specialised courts and state and national anti-corruption systems.

Carry out targeted audits of the strategic areas of the state’s public administration, ensure that the auditors’ resolutions are binding, and establish an integrated internal control framework.

Promote citizens’ complaints through witness protection, anonymity, confidentiality and the integrity of evidence in anti-corruption investigations.

Source: (Nuevo Leon Council, 2016[6]).

1.2.2. To secure support from each member of the Co-ordination Committee and to benefit from their expertise, the SEANL’s Executive Secretariat could create two consultative sub-commissions.

The Executive Secretariat of the SEANL is in charge of providing technical support to the Co-ordination Committee, both in terms of technical assistance and in deciding on the inputs to be discussed. The quality of its work will thus influence the measures taken by the Co-ordination Committee and the effectiveness of the SEANL as a whole. The Executive Secretariat is composed of a Technical Secretary, an Executive Commission and the governing body, made up of the members of the Co-ordination Committee and led by the President of the Citizen Participation Committee.

One of the most significant aspects of a co-ordination mechanism that brings together the principal integrity actors is its diverse composition. The various perspectives, experiences and good practices of the participating institutions should therefore be given the opportunity to contribute their knowledge and expertise. To offer the Co-ordination Committee the widest technical experience, so that it can take informed decisions, the SEANL could stress and take full advantage of the key technical role of the Executive Secretariat’s members. Two sub-commissions could be established within the Executive Commission, to consult relevant institutions on drafts and proposals before submitting them to the Co-ordination Committee. These two consultative sub-commissions – one focusing on prevention and the other on enforcement – would deal with two areas that, although they share certain common objectives, usually involve two different sets of actors. On the enforcement side, drafts and proposals on disciplinary issues would benefit from exchanges and consultation with the Comptroller-General, the Supreme Audit Office and the Special Anti-corruption Prosecutor. Furthermore, a sub-commission could help create mutual confidence, encourage the exchange of information and stimulate discussion, on such subjects as measures to overcome common challenges. This organisational arrangement could be first tested informally and eventually established formally, pursuant to Article 36 of the Nuevo León Anti-corruption System Law. This would not only improve the overall quality of the proposals and drafts, but reduce the risk that the decisions of the Co-ordination Committee do not involve technical discussions and remain at the theoretical level, without connecting to practical issues necessitating ownership by all institutions. Furthermore, the consultative sub-commissions could help address other gaps that often emerge in the work of the anti-corruption co-ordination bodies, such as:

  • focusing on legislative and normative reforms with insufficient emphasis on actual implementation;

  • favouring politically attractive high-level prosecution cases instead of deeper structural reforms that target the root causes of corruption;

  • setting overly ambitious objectives with limited institutional capacity, and formulating technocratic solutions without acknowledging the problem of vested political or economic interests;

  • favouring holistic and broad approaches without acknowledging the necessity to set priorities and consider the timing of interventions (Hussmann, 2007[7]).

1.2.3. Members of the SEANL, with participating institutions, could nominate a contact point or unit to liaise with governing bodies and mainstream integrity policies in the whole of government.

The effectiveness of the SEANL depends not only on the architecture of the system, but on how active its members are in providing the information necessary and carrying out measures and policies agreed on by the Co-ordination Committee. The structural arrangement of the system is crucial to ensure that all relevant actors are part of the system, and the engagement of its members can ensure that the SEANL is not simply a formal mechanism with little or no impact on government bodies and citizens. Both these aspects are recognised in the OECD Recommendation of the Council on Public Integrity (OECD, 2017[1]), which stresses the need to establish responsibilities at every level (organisational, subnational or national), not only for designing and leading the integrity system, but for carrying out its elements and policies.

Under the Nuevo León Anti-corruption System Law, no institutional mechanism is provided to ensure that its members actively and continuously participate in the SEANL and follow up requests for inputs or formal decisions. A key role is played by the Technical Secretary, whose tasks include planning and carrying out technical activity, but also asking for information from the members of the Executive Commission. To facilitate the work of the Secretary and ensure that the SEANL’s members fulfill the responsibilities incumbent on their participation in the SEANL, the Regulation governing the functioning of the system could provide for the nomination – in each participating institution – of a person or unit in charge of co-ordinating with the Technical Secretary and other members. More generally, these persons or units could ensure the continuous support and active participation of each institution in any activity or initiative related to the SEANL. This would include preparing the high-level discussions in the Co-ordination Committee. Contact points (or units) would thus create a network supporting the achievements of high-level objectives set by the Co-ordination Committee. Among their tasks would be to provide all necessary information, to follow up on commitments undertaken and to ensure that actions and policies agreed upon were carried out.

The SEANL could consider replicating the model of the National Anti-corruption System (Sistema Nacional Anticorrupción, or SNAC). This calls for each member of the Governing Body to nominate a permanent contact point with the Executive Secretariat (Article 12 of the SNAC Executive Secretariat Statute, Estatuto Orgánico de la Secretaría Ejecutiva del Sistema Nacional Anticorrupción). They must also recommend the creation of a unit in each participating entity, along the lines set by the Ministry of Public Administration at the federal level, which created an ad hoc unit (Unidad de Vinculación con el Sistema Nacional Anticorrupción) to co-ordinate the necessary follow-up within the Ministry on policies, plans, programmes and actions related to the SNAC. These also solicit information from the entities in the public administration to draft assessments and proposals to comply with the national anti-corruption policy (Acuerdo por el que se reforma el diverso por el que se adscriben orgánicamente las unidades administrativas de la Secretaría de la Función Pública y se establece la subordinación jerárquica de los servidores públicos previstos en su Reglamento Interior, 20 April 2017). Another example in this context is the model used by the Anti-corruption Commission of Piura (Peru), where every institution participating in subnational anti-corruption bodies appoints a unit or office to comply with the objectives, plans and activities of the co-ordinating committee (Box ‎1.3).

Box ‎1.3. Regional Anti-corruption Commission in Piura (Peru)

Peru established regional anti-corruption commissions (CRAs) under Law No. 29 976, which also created the High-level Anti-corruption Commission (Comisión Alto-nivel de Anti-corrupción, or the CAN), the national body promoting horizontal co-ordination and guaranteeing the coherence of Peru’s anti-corruption policy framework.

The tasks of the CRAs include drawing up a regional anti-corruption plan to reflect the region’s specific issues and challenges. However, only six regions have so far developed such a plan (San Martín, Pasco, Amazonas, Cusco, Piura and Huancavelica), and it is not clear how far these plans have been implemented.

The region of Piura set up its regional anti-corruption commission under Regional Ordinance No. 263 of 2013, which brings together representatives from the executive and the judicial branches, as well as from municipalities, the private sector and professional associations. Piura’s Commission is supported by an Executive Committee responsible for carrying out the policies identified by the Commission. Co-ordination between the Commission and the Executive Committee is the responsibility of the Commission’s Technical Secretariat. Finally, the governance of the system is completed by the anti-corruption units in each public entity, which are also in charge of implementing the policies approved by the Commission; providing support for compliance with the Code of Ethics in the public service; co-ordinating the drafting and approval of the Anti-corruption Plans of the entity; preparing a report of anti-corruption activities, and presenting it at public hearings.

Source: (OECD, 2017[8]) and PowerPoint presentation prepared by Piura’s Regional Anti-corruption Commission. http://anticorrupcion.regionpiura.gob.pe/detalle.php?idpag=3&pagina=uni_lucha&verper=0&tit=2.

Integrity policies should be mainstreamed through the whole of government and not just the institutions participating in the Co-ordination Committee. So the appointment of contact points/units to ensure co-ordination, follow-up and implementation of SEANL-related initiatives could also be provided for all other ministries from the executive, or, as a start, those called to participate regularly in the discussion because of their relevant roles or competence. Such an approach would be consistent with the approach followed by half of OECD countries, which require line ministries to set up their own integrity units as a focal point that can be held accountable for results (Table ‎1.5). As noted in (OECD, 2017[3]), countries like Austria, Canada and Germany have ethics officers and contact points in line ministries, which have also established networks for exchanging good practices and seeking advice to resolve common challenges (see Chapter 3).

Table ‎1.5. Types of mechanisms used to mainstream integrity policies in line ministries

Normative requirements (i.e. policies and guidance)

Guidance by a central government body (or unit)

Line ministries with dedicated integrity officials or units

Head of central government body participates in meetings of the Council of Ministers

Australia

Austria

Belgium

Canada

Chile

Czech Republic

Estonia

Finland

France

Germany

Greece

Hungary

Iceland

Ireland

Italy

Japan

Korea

Latvia

Mexico

Netherlands

New Zealand

Norway

Poland

Portugal

Slovak Republic

Slovenia

Spain

Sweden

Switzerland

United Kingdom

United States

OECD Total

29

22

17

8

Argentina

Brazil

Colombia

Costa Rica

Lithuania

Peru

Note: Data on Argentina, Brazil and Peru were included on an ad hoc basis.

Source: (OECD, 2017[3]).

1.2.4. The Government of Nuevo León should counteract the strong public perception of corruption at the municipal level by using the SEANL and existing agreements to promote co-ordination and support municipalities in actively participating in the integrity system.

Both in Mexico and Nuevo León, corruption is a multi-level issue at every levels of the administration, and in particular, municipalities, whose activities are perceived as significantly corrupt throughout Mexico. Table ‎1.6, for instance, shows that Mexicans consider most corrupt public activities and services that are either under multi-level or municipal responsibility.

Table ‎1.6. Administrative procedures perceived as most corrupt and the corresponding level of administrative competence in Mexico

Administrative procedure

Corruption perception (%)

Level of government responsibility

Administrative offence (Faltas administrativas)

37

Multi-level

Traffic violation (Infracción por incidente de tránsito)

35

Multi-level

Parking violations (Infracciones al estacionarse)

28

Municipal

Land use permits (Permiso de uso de suelo)

19

Municipal

Request for cleaning service (Solicitud de servicio de limpia)

18

Municipal

Proof of vehicular polluting substances (Verificación vehicular de contaminantes)

16

State

Request for a water tanker (Solicitud de una pipa de agua)

12

Multi-level

Procedures in the Office of the Attorney (Trámites ante el ministerio público)

11

Multi-level

Permit for street-selling (Permisos para vender en vía pública)

8

Municipal

Border procedures (Trámites de aduana)

5

Federal

Source: (IMCO, 2015[9]).

The high degree of perceived corruption at various levels of government also concerns Nuevo León, where a large majority of citizens consider corruption to be a frequent or very frequent practice both at the state and municipal levels, according to a 2016 survey. The results of the survey, conducted by the civil society group Cómo Vamos Nuevo León, confirm those of a previous study by Mexico’s National Institute for Statistics and Geography (Table ‎1.7). This can be explained, in part, by the fact that sub-national governments are responsible for providing a wide range of public services, such as education, health, security/justice, waste management, utilities, granting of licences and permits, increasing the frequency and directness of interactions between public officials and citizens and firms, all of which create potential opportunities for corruption (OECD, 2017[10]). They also often suffer from significant lack of capacity in human, financial and technical resources, which impedes their ability to combat corruption effectively.

Table ‎1.7. Perception of corruption at state and municipal level in Nuevo León

Civil society survey (2016)

INEGI (2015)

State

Municipality

State

Municipality

Very frequent

54.7 %

49.9 %

53.8%

46.1%

Frequent

31.6 %

32.5 %

30.5%

33.8%

Not frequent

13.2 %

17.0 %

9.9%

12.8%

Not happening

0.5 %

0.6 %

2.3%

3.2%

Does not know

0.0 %

0.0 %

N/A

N/A

Source: (Cómo Vamos Nuevo León, 2016[11]); (INEGI, 2015[12])

In Nuevo León, the significance of this phenomenon is particularly evident, at municipal level, in García, Monterrey and Escobedo, where the percentage of people who perceive corruption as a common practice rises to 90% of the interviewed sample (Figure ‎1.1). This suggests a need to focus preventing efforts on those institutions and to promote mechanisms for vertical co-operation between levels of government: This would not only allow Nuevo León to align with the OECD Recommendation (OECD, 2017[1]) and strengthen the effectiveness of its integrity system, but capitalise on the opportunity to forge trust between citizens and municipalities, potentially increasing trust in government in general (OECD, 2017[10]).

Figure ‎1.1. Frequency of acts of corruption at municipal level in Nuevo León
picture

Source: (Cómo Vamos Nuevo León, 2016[11]).

The SNAC recognises the role of municipalities and the need to strengthen co-ordination within levels of Mexico’s government. The primary objective of the SNAC is to co-ordinate all the institutions in charge of preventing, detecting and punishing corruption at all levels of government (Article 113 of the Constitution and Article 1 of the SNAC Law). As in the case of the national framework, the objective of the Local Anti-corruption System Law of Nuevo León is to establish the basis for co-ordination among the state, the Federation, and the municipalities, which should be adopted by the Co-ordination Committee pursuant to Article 9. In practice, however, the Law does not explicitly recognise municipalities as members within the SEANL (Article 7) and they are only mentioned as potential invitees of the Co-ordination Committee. Furthermore, no specific role or responsibility is attributed to municipalities in Article 43, which deals with their role. This law establishes that they should adopt the principles of the SNAC and SEANL through the Law on Municipal Government (Ley de Gobierno Municipal del Estado de Nuevo León) as well as a Municipal Anti-corruption Regulation and Codes of Ethics and Conduct for dissemination to all officials as part of regular anti-corruption training. On the other hand, agreements (convenios) are in place between the state and some municipalities dealing with commitments related to internal control, transparency, the culture of legality and the fight against corruption (Table ‎1.8). Such collaboration is described as having a “voluntary nature” and as being “based on good faith”, and corresponding agreements do not provide any mechanisms for monitoring municipalities’ compliance with the law and related actions.

Table ‎1.8. Content of State-municipality agreements related to internal control, transparency, a culture of legality and the fight against corruption

Mutual obligations

State’s obligations

Municipalities

Promote the creation of the Commission of Comptrollers of Nuevo León

Provide advice in relation to internal control

Carry out necessary reforms to improve internal control

Strengthen co-ordination of internal control bodies

Support municipalities in designing initiative to improve areas of opportunities emerging from national and international indexes

Create awareness among internal control and audit bodies of the relevant legal framework, methodology and processes

Promote programmes, projects and actions to prevent and fight corruption

Submitting to municipality complaints and reports under its competence

Promote the development of systems of programmatic and budget information

Draft joint work plans to audit the use of federal and state resources

Advice municipality in relation to the importance of a culture of transparency and legality

Open dedicated bank accounts for federal and state resources

Generate preventive measures to tackle corruption and promote a culture of legality

Provide facilities for the state to carry out audits, assessments and evaluations

Establish co-ordination mechanisms to guide citizens in filing a complaint or report for acts of corruption

Support the implementation of instruments related to transparency, a culture of legality, prevention and the fight against corruption

Exchange information in relation to complaints or reports of acts of corruption

Carry out administrative proceedings related to acts of corruption by public officials within their respective competences

Source: State-municipality collaboration agreement between the State of Nuevo León and Municipality of General Bravo on internal control, transparency, culture of legality and fight against corruption (Acuerdo de colaboración Estado-Municipios para el control de gestión interna, transparencia, cultura de la legalidad y combate a la corrupción entre el Estado de Nuevo León y el Municipio de General Bravo).

An effective public integrity system requires mechanisms for vertical co-operation with local governments to “support coherence and avoid overlap and gaps, and to share and build on lessons learned from good practices” (OECD, 2017[1]). This is particularly relevant in Nuevo León, where the perception is that corruption in municipalities is high, and where not all municipalities have been actively involved in the development of the SEANL, according to interviews carried out during the fact-finding mission. To improve the degree of participation of municipalities in Nuevo León’s public integrity system, the SEANL could create a mechanism to formally involve them. They could be invited to participate in the activities of both the Co-ordination Committee and the Executive Secretariat, when they are discussing proposals for designing integrity policies and co-ordination mechanisms. Municipalities could actively participate in these discussions and make substantive contributions by describing challenges and best practices relevant in developing drafts or proposals. In the technical discussions, it could also be useful to invite experts and those already working on co-ordination between the government and municipalities, such as the 23 officials of the Comptroller-General identified in the OECD Survey, as well as other relevant actors with competence on vertical co-ordination, such as the General Government Secretary. Involving all of the state’s 51 municipalities would be cumbersome and impair the effectiveness of the system, but the municipalities could be represented by three representatives from municipalities of similar size, structure and needs, who would rotate each year. As for content, municipalities should leverage the co-ordination agreements signed so far and promote most successful practices. They could also introduce a mechanism to assess their impact and effectiveness periodically. They would account for progress made and for challenges they had encountered to the SEANL’s governing bodies, which could be considered in drawing up integrity policies, establishing co-ordination mechanisms, identifying priorities and allocating resources. One aim of co-ordination should also be to promote horizontal dialogue and mutual learning among municipalities. At present, they have no forum for exchanging views and experiences on issues related to integrity, accountability and transparency. Special consideration should be devoted to certain key issues of multi-level regulatory governance that are relevant in the present context, namely:

  • Regulatory policies in a multi-level context can only be effective if they reflect the full diversity of needs and interests and encourage co-ordination (horizontal and vertical) and co-operation mechanisms across levels of government.

  • Setting up regulatory institutions at lower levels of governments should take into account the strengthening of capacities (resources, training, capacity-building).

  • Bottom-up solutions can provide valuable insights into this process. Innovations that emerge at lower levels of government may deserve to be adopted more widely (Rodrigo, Allio and Andres-Amo, 2009[13]).

1.3. Building a coherent institutional framework to mainstream integrity policies

1.3.1. The Government of Nuevo León could create a new unit in the Office of the Comptroller to centralise conflict of interest and ethics policies in the executive branch.

In the majority of OECD countries, developing and maintaining conflict of interest and ethics policies has been delegated to a central body responsible for this question throughout the government (OECD, 2014[14]). This helps to create a common understanding of integrity rules, provide clear guidance, ensure coherence in the development and implementation of the integrity strategy and avoid overlaps or even contradictions in dealing with integrity issues.

Nuevo León does not have a single entity responsible for ensuring consistency in applying all integrity rules across government. The Office of the Comptroller could create a unit with the authority to harmonise the public ethics and conflict of interest framework, to provide guidance and promote a common understanding of the values, principles, and practices among public servants. Indeed, based on the information provided by Nuevo León, the government studied the possibility of creating a public office to resolve ethics and conflict of interest issues as support for the Citizen Comptroller Office (Contraloría Ciudadana).

Ethics and conflict of interest issues can arise at any time in the daily work of public officials. Since they require a prompt response, to protect the public interest, it is a priority to create a permanent office within the government structure in charge of mainstreaming integrity across the government. This proposed unit requires that the Organic Law of the Public Administration be amended, so that it can be included within the structure of the Office of the Comptroller. Like the existing unit specialised in ethics and prevention of conflicts of interest (Unidad de Ética, Integridad Pública y Prevención de Conflictos de Interés, or UEEPCI) of the Ministry of Public Administration (Secretaría de la Función Pública, or SFP) at the federal level, this proposed unit should lead the development of integrity policies within the Co-ordination Committee, ensuring its implementation and providing the inputs for monitoring. This unit could also help government entities develop an open culture of integrity where ethical dilemmas, public integrity concerns and errors can be discussed freely. It could also develop and update the organisational ethics codes across government entities, providing policy guidance and support to other ministries in implementing integrity policies, and mainstreaming integrity measures in internal control.

To accomplish its mandate, this unit would need to have an appropriate budget and human resources capacity, working on a full-time basis. It should be made clear that its role is to prevent breaches of the integrity rules and, therefore, differentiated from the investigatory and sentencing institutions such as the Anti-corruption Unit, the Tribunal of Administrative Justice, the Specialised Anti-corruption Prosecutor and internal control bodies. This will remove the repressive archetype typical of a legalistic approach that focuses mainly on enforcement of integrity and anti-corruption rules rather than defining integrity in organisations.

1.3.2. The Government of Nuevo León could establish Integrity Contact Points to mainstream integrity policies and practices in government entities

To instil a culture of integrity in the public sector, policies for managing ethics and conflict of interest issues should be mainstreamed in its organisations. International best practices show that organisations need not only well-drafted rules but also dedicated and well-trained professionals or units that are responsible and accountable for promoting these policies (see Box ‎1.4).

Box ‎1.4. Germany's contact persons for corruption prevention

Germany, at the federal level, has institutionalised units for corruption prevention as well as a responsible person dedicated to promoting corruption prevention measures in a public entity. The contact person and a deputy must be formally nominated. The “Federal Government Directive concerning the Prevention of Corruption in the Federal Administration” defines these contact persons and their tasks as follows:

  1. 1. A contact person for corruption prevention shall be appointed based on the tasks and size of the agency.

One contact person may be responsible for more than one agency. Contact persons may be charged with the following tasks:

  • serving as a contact person for agency staff and management, if necessary without having to go through official channels, along with private persons;

  • advising agency management;

  • keeping staff members informed (e.g. through regularly scheduled seminars and presentations);

  • assisting with training;

  • monitoring and assessing any indications of corruption;

  • helping to keep the public informed of penalties under public service law and criminal law (preventive effect) while respecting the privacy rights of those concerned.

  1. 2. If the contact person becomes aware of facts leading to a reasonable suspicion that an act of corruption has been committed, he or she shall inform the agency management and make recommendations for conducting an internal investigation, taking measures to prevent concealment, and informing the law enforcement authorities. The agency management shall take the necessary steps to deal with the matter.

  2. 3. Contact persons shall not be granted any authority to carry out disciplinary measures. They shall not lead investigations in disciplinary proceedings for corruption cases.

  3. 4. Agencies shall provide contact persons promptly and comprehensively with the information needed to perform their duties, particularly concerning incidents of suspected corruption.

  4. 5. In carrying out their duties of corruption prevention, contact persons shall be independent of instruction. They shall have the right to report directly to the head of the agency and may not be subject to discrimination as a consequence of performing their duties.

  5. 6. Even after their term of office, contact persons shall not disclose any information they have obtained about staff members’ personal circumstances; they may, however, provide this information to agency management or personnel management if they have a reasonable suspicion that an act of corruption has been committed. Personal data shall be treated in accordance with the principles of personnel records management.

Source: German Federal Ministry of the Interior “Rules on Integrity”, https://www.bmi.bund.de/SharedDocs/Downloads/EN/Broschueren/2014/rules-on-integrity.pdf?__blob=publicationFile.

Nuevo León does not have public servants accomplishing these functions on a full-time basis but could designate the current ethics liaisons (enlances de ética) within their ministries who were trained as “Agents of change” (see Chapter 3) to act as Integrity Contact Points. To ensure the effective promotion and implementation of the ethics rules, these designated public servants should exercise their mandate autonomously from internal pressure, report directly to the head of the public entity who has designated them, as well as to the proposed Ethics Unit. They should be appropriately trained and their mandate should focus exclusively on providing guidance on integrity matters rather than processing complaints or pursuing disciplinary cases.

To ensure coherence of this institutional mechanism, the proposed Ethics Unit within Office of the Comptroller should co-ordinate and liaise with all Integrity Contact Points (or persons) across the public administration, monitor their work, provide tools and materials, and support them with ad hoc guidance, and provide up-to-date training focusing on integrity management. A network of Integrity Contact Points could also be established to ensure consistency in implementing integrity policies across organisations in Nuevo León, and to offer opportunities for mutual learning.

1.4. Demonstrating high-level commitment to public integrity

1.4.1. Institutions responsible for setting up the SEANL, especially the legislative branch and the SEANL’s members, should display high-level commitment to the system and help support it with pending laws and regulation.

Political leadership and senior management have key responsibilities for creating a public integrity system, which concern both the way they discharge their duties and also how active they are in taking determined action to enhance public integrity and reduce corruption. This is reflected in the OECD Recommendation of the Council on Public Integrity, whose first principle calls on states to demonstrate commitment at the highest political and management level, through the following actions:

  • ensuring that the public integrity system defines, supports, controls and enforces public integrity, and is integrated into the wider public management and governance framework;

  • ensuring that the appropriate legislative and institutional frameworks are in place to enable public sector organisations to take responsibility for managing the integrity of their activities, as well as of the public officials who carry out the activities;

  • establishing clear expectations for the highest political and management levels to support the public integrity system, through exemplary personal behaviour, including demonstration of a high standard of propriety in the discharge of their official duties. (OECD, 2017[1])

Although the Law on the Local Anti-corruption System of Nuevo León went through a complex approval process that confronted different attitudes from the legislative and executive branches, the creation of the SEANL – which satisfactorily implements the national reform – is a clear sign of the leadership role Nuevo León is playing in creating a public integrity system. Even though its creation was mandatory under the SNAC Law, its implementation has not been complied with and has even been subject to abuse in some states (Box ‎1.5). However, civil society organisations have judged the final text agreed in Nuevo León (IMCO, n.d.[4]) to be satisfactory. Positive indications of support for the SEANL are also suggested by the strong participation allowed under the system for civil society. The Citizen Participation Committee will be granted the presidency of the Co-ordination Committee and Executive Commission of the Secretariat, as well as three representatives in the Co-ordination Committee (whereas the SNAC has only one). One should also note that, unlike the SNAC, the SEANL, and in particular, the Co-ordination Committee, has been given the mandate to adopt binding resolutions and follow them up in annual reports.

Box ‎1.5. Ensuring local integrity systems comply with national legislation

In the spring of 2016, the outgoing governors of Veracruz, Chihuahua, and Quintana Roo introduced bills to establish their respective states’ anti-corruption systems, establishing the offices of the Anti-Corruption Prosecutor and judges for the administrative tribunals.

These bills were criticised by opposition parties and other organisations as containing provisions that would shield them from future prosecution for corruption. After the passage of these bills, the incoming governor-elect of Quintana Roo filed a constitutional challenge against all three of the proposed bills, arguing that the bills were not consistent with the principles of Mexico’s proposed National Anti-Corruption System.

In September 2016, the Supreme Court of Justice (Suprema Corte de Justicia de la Nación, or SCJN) declared the respective anti-corruption laws of the states of Chihuahua and Veracruz unconstitutional, on the grounds that the regulations for the local anti-corruption systems had been issued and approved before the federal laws of the National Anti-corruption System had been adopted.

The SCJN also declared that while the laws passed by the states of Chihuahua and Veracruz for the Anti-Corruption Prosecutors were unconstitutional, they could not remove the appointed prosecutors from their posts or invalidate their appointments. Nevertheless, since these laws have been deemed unconstitutional, all acts derived from that law (such as their appointment) are void.

Chihuahua and Veracruz are the only two states that did not comply with the obligation to adopt the law creating the Local Anti-corruption System by the deadline set by the SNAC Law (18 July 2017). These states eventually adopted the necessary laws for this purpose in October 2017 (Chihuahua) and November 2017 (Veracruz).

Source: (OECD, 2017[2]; IMCO, n.d.[4]).

On the other hand, the Law on the Local Anti-corruption System only represents the first step toward creating the SEANL, and sustained high-level commitment from all relevant institutions is required to ensure its functioning and effectiveness. Appointing a technical delegate from each institution participating in the Executive Secretariat could favour the continuous support of high-level representatives. However, a key issue that would demonstrate the political will of ruling institutions in Nuevo León is guaranteeing that civil society becomes a pillar of the SEANL. The appointment of the Citizen Participation Committee, but also of the commission selecting the members of this key body, should comply with the highest standards of inclusiveness, openness and transparency. Although the Law establishes the publication of some information related to such procedures (methodologies, documents, list of candidates, planning, hearings), Nuevo León could consider developing an ad hoc online portal to increase public awareness, participation and scrutiny over the selection process led by the legislative branch. It could also ensure that candidates demonstrate the highest standards of integrity from the beginning and publish their most recent asset declaration, as well as a declaration on their potential conflicts of interest. The final evaluation of the selected members should be published and provide an assessment of the candidate’s technical experience, profile and political independence.

Lastly, since further laws, regulation and appointments are needed to ensure the functioning and effectiveness of the SEANL (Table ‎1.9), the political leadership in Nuevo León should continue to demonstrate the commitment it has shown so far. This would mean swiftly adopting the legislation needed to complete the system and set it in motion. This phase has proved to be particularly challenging at the federal level. As of June 2018, the Special Anti-corruption Prosecutor has not yet been appointed, after more than two years of delay. Nuevo León appears not to have reached such an impasse. The Selection Commission was nominated in November 2017 and the Special Anti-corruption Prosecutor in March 2018. However, as of June 2018, some of the bodies of the SEANL have not been yet created (i.e. the Citizen Participation Committee, the Co-ordination Committee and the Executive Secretariat) and full functioning of the system still depends on several reforms and appointments. These, should be conducted in an open, participatory manner, involving all relevant institutions and providing for the crucial contribution of civil society. In addition, all relevant institutions should comply with the deadlines outlined in the Transitory Articles of the Law establishing the first steps of the SEANL, namely:

  • Within 180 days after the entry into force of the Law:

    • Adopting all regulation and normative changes as provided for by the Law (Executive and Judicial power, constitutionally autonomous bodies and municipalities);

    • Adapt the Law on Municipal Government;

  • Within 90 days of the entry into force of the Law, the State Congress shall release the open call for the appointment of the Selection Commission.

  • Within 60 days of the creation of the Citizen Participation Committee the Co-ordination Committee shall hold the first meeting,

  • Within 60 days of the definition of the Co-ordination Committee the Executive Secretariat shall start its operations.

Table ‎1.9. Legal instruments to reform or adopt to implement the SNAC in Nuevo León

Legal instruments adopted or reformed

Legal instruments to reform or to adopt

SEANL Law

Administrative Responsibilities Law for state and municipal public officials

Attorney General’s Office Organic Law

Accountability and Audit Law

 Administrative Justice Law

Criminal Code

Municipal Code

Public Administration Organic Law

Note: A draft Law of Nuevo León’s Administrative Responsibilities of Public Officials Law was presented in February 2018.

Source: OECD elaboration, with data provided by the Government of Nuevo León and from the National Anti-corruption System’s website, http://sna.org.mx/wp-content/uploads/2018/07/NL.pdf (accessed 5 July 2018).

1.4.2. Key elements needed are allocating adequate resources and tapping into potential synergies by all the institutions represented by the SEANL’s members.

The commitment of political leadership to setting up an effective public integrity system should not only be displayed by adopting laws and regulation, but also by allocating sufficient capacity and resources. At the same time, the system should be equipped with mechanisms that help make sure that resources are efficiently spent in achieving its mission, rather than creating additional administrative layers that only slow down the fight against corruption.

The SEANL, just like the SNAC at the federal level, is largely supported by existing staff and institutions, which would devote some of their capacity to participate and support the system. On the other hand, several new bodies, processes and mechanisms provided for under the reform require resources that political leaders need to invest in if the system is to yield tangible results. These might include:

  • increasing and training staff to face new competences in the Comptroller Office, the State Tribunal for Administrative Justice, and Specialised Anti-corruption Prosecutor Office;

  • new horizontal activities, such as the State Digital Platform;

  • hiring and training staff supporting the administrative and technical work of the SEANL;

  • costs involved in the daily functioning of the SEANL (e.g. office spaces, IT tools);

  • strengthening co-ordination mechanisms, especially with municipalities.

According to the Transitory Articles 6-8 of the Law on the Local Anti-corruption System, the Executive Branch has the responsibility to provide the human, financial and material resources to underwrite the operations of the Executive Secretariat. Furthermore, the Law stipulates that the budget resources allocated in the Budget Law for 2017 should be used to start the operation of the SEANL, while the draft Budget Law for 2018 should provide for the resources to comply with the Law. Allocating adequate resources to the SEANL and its bodies is not only an obligation under the law, but a way to indicate to citizens and other institutions a commitment to setting up an effective system to prevent and fight corruption. To this end, the Government of Nuevo León should guarantee sustained support for the SEANL, and in particular to the bodies and mechanisms of civic participation, without endangering the independence of their work and decisions. In this context, it is encouraging that the Budget Law for 2017 provides for MXN 6 million (around EUR 280 000) to be allocated to the SEANL, and MXN 25 million (around EUR 1.2 million) to the Anti-corruption Prosecution Office. However, additional efforts would seem to be needed in the years to come, given the amounts estimated for other states and the SNAC at the federal level. On the one hand, the Inter-institutional Preparatory Council for the Implementation of the Anti-corruption System in Mexico City (Consejo Interinstitucional Preparatorio para la Implementación del Sistema Anticorrupción de la Ciudad de México – Coipisa) calculated an overall cost of MXN 131 million (around EUR 5.6 million) for the local anti-corruption system in 2017 (Proceso, 2016[15]). On the other hand, the Finance Research Center of the Chamber of Deputies estimated that the national framework of the SNAC, i.e. not including the single Local Anti-corruption System (Sistema Local Anticorrupción, or LACSs) would cost around MXN 1.5 billion (around EUR 65 million) (Cámara de Diputados, 2016[16]).

1.4.3. To set clear expectations and encourage senior managers to commit to creating a public integrity system, the SEANL could introduce mechanisms to ensure that its members are accountable for its implementation and for informing public officials.

Managerial commitment to public integrity is also an essential ingredient to ensure reforms and the mainstreaming of policies in individual government entities. Without the co-operation and engagement of senior managers in instituting rules, guidelines and manuals at the organisational level, no institutional framework – including the SEANL – could create a robust public integrity system. Appropriate mechanisms should be instituted to help organisations “take responsibility for effectively managing the integrity of their activities, as well as that of the public officials who carry out those activities” (OECD, 2017[1]).

It is a positive sign that in the SEANL, high expectations of commitment and ethical behaviour by those who are to participate in the system are suggested by the list of requirements for becoming a member of the Citizen Participation Committee or Technical Secretariat. This is also true of the system of accountability in the Executive Secretariat, in the establishment of an internal control body in charge of overseeing the budget, contracts, administrative responsibilities and issues of transparency. On the other hand, no mechanisms are in place to ensure that those in charge of single entities are accountable for the reform process and the implementation of the decisions or policies adopted in the SEANL. To address this issue, the SEANL could consider developing an online visualisation tool to allow citizens and other entities to monitor the actions agreed on by ministries and government entities, as well as to acknowledge and incentivise high-level commitment in the system. Furthermore, Nuevo León could consider the experience of the Treasury Board of Canada Secretariat (TBS) Management Accountability Framework (MAF), which provides a model for including public sector values within the framework of performance assessments, beyond managerial results (Figure ‎1.2).

Figure ‎1.2. The Management Accountability Framework in Canada
picture

Source: (Government of Canada, n.d.[17]).

As illustrated in Chapter 3, Nuevo León does not have a general employment framework in the civil service and, to date, is currently building a performance management programme. In parallel with the development of this programme, the SEANL could design a mechanism to hold senior managers accountable for implementing integrity policies at the organisational level as well as displaying exemplary behaviour (see Chapter 4), for instance by duly and timely complying with the obligations related to conflict of interest and asset disclosure declarations. While specific measures to ensure compliance should be tailored to the labour regime pertaining to each relevant category of public officials, the SEANL could, at a minimum, consider proposing the introduction of a disciplinary sanction in case of persistent and deliberate failure to meet a set of minimum requirements related to the implementation of the system at the organisational level. Similarly, they should be held accountable if they do not demonstrate a high standard of propriety and commitment in integrity values and practices.

Proposals for action

Many actors in Nuevo León are involved in preventing and tackling corruption, and the Local Anti-corruption System creates an invaluable opportunity to build a coherent integrity system involving all relevant institutions, as well representatives from civil society. In developing the system and creating the related bodies, processes and mechanisms, Nuevo León could consider the following actions:

Building an inclusive integrity system in Nuevo León

  • Establish mechanisms to involve entities, within the executive, with integrity-related responsibilities in the work of the SEANL Co-ordination Committee.

  • Introduce a mechanism in the SEANL to involve the Executive Agency for Co-ordination of the State’s Public Administration in addressing issues related to policy and co-ordination of the law, as well as of monitoring and evaluation mechanisms, especially at the technical level within the SEANL’s Executive Secretariat.

  • Create two sub-commissions in the Executive Secretariat of the SEANL – one on prevention issues, and the other to focus on investigation and enforcement issues – to consult relevant institutions on drafts and proposals before submitting them to the Co-ordination Committee.

  • Nominate – in each institution participating in the SEANL – a person or unit in charge of co-ordinating with the SEANL Technical Secretary and other SEANL members, as well as ensuring continuous support and active participation of each institution in any activity or initiative related to the SEANL.

  • Create a network of SEANL’s members as contact points (or units) supporting the effective achievements of high-level objectives set by the Co-ordination Committee.

  • Nominate contact points/units in other institutions collaborating with the SEANL, to ensure co-ordination, follow up and implementation of SEANL-related initiatives.

  • Create a mechanism to formally involve municipalities in both the SEANL’s Co-ordination Committee and Executive Secretariat when discussing proposals for the design and implementation of integrity policies and co-ordination mechanisms among municipalities. Municipalities could be represented by three representatives of municipalities of similar size, structure and needs, who would rotate each year.

  • Create a mechanism in the SEANL to periodically assess the effectiveness and impact of co-ordination agreements with municipalities.

Setting a coherent institutional framework to implement and mainstream integrity policies

  • Create a unit within the Office of the Comptroller responsible for harmonising the public ethics and conflict of interest framework, to provide guidance for public officials and ensure common understanding of the values, principles and practices.

  • Task the unit with co-ordinating and liaising with all Integrity Contact Points across the public administration, monitoring their work and providing them tools and materials. Support them with ad hoc guidance, and provide up-to-date trainings focusing on integrity management.

  • Give the unit an appropriate budget and human resources capacity, working on a full-time basis.

  • Designate the current ethics liaisons (enlances de ética) within their ministries, who were trained as “Agents of change”, to act as Integrity Contact Points.

  • Grant the Integrity Contact Points an autonomous mandate, reporting directly to the head of the public entity that has designated them, as well as to the proposed Ethics Unit.

  • Create a network of Integrity Contact Points, to ensure consistency in implementing integrity policies, as well as to offer opportunities for mutual learning.

Demonstrating high-level commitment to enhance public integrity

  • Adopt laws and regulations needed to complete the SEANL.

  • Comply with the steps set out in the Transitory Articles of the SEANL Law to put the SEANL into motion.

  • Ensure that the appointment of the Citizen Participation Committee, and also of the Commission that selects its members, complies with the highest standards of inclusiveness, openness and transparency. An ad hoc online portal could increase public awareness and participation.

  • Make sure all candidates to the Citizen Participation Committee, and also the Commission selecting its members, present the last asset declaration as well as a declaration on potential conflict of interest, and publish them.

  • Publish an extensive evaluation of the selected members of the Citizen Participation Committee, addressing the candidate’s technical experience, profile and independence.

  • Allocate adequate resources to the SEANL and its bodies, to demonstrate commitment towards citizens and other institutions, to setting up an effective system to prevent and fight corruption.

  • Develop an online visualisation tool that enables citizens and other entities to monitor the implementation of actions agreed upon by the SEANL and Ministries and government entities, as well as to acknowledge and incentivise high-level commitment to the system.

  • Design a mechanism to hold senior managers accountable for implementing integrity policies at the organisational level, as well as demonstrating exemplary behaviour, for instance by duly and timely complying with the obligations related to conflict of interest and asset disclosure declarations.

References

[16] Cámara de Diputados (2016), Comisión de Transparencia analiza requerimientos presupuestales para el Sistema Nacional Anticorrupción / 12 / Octubre / 2016 / Boletines / Comunicación / Inicio - Camara de Diputados, Boletin N°. 2305, http://www5.diputados.gob.mx/index.php/esl/Comunicacion/Boletines/2016/Octubre/12/2305-Comision-de-Transparencia-analiza-requerimientos-presupuestales-para-el-Sistema-Nacional-Anticorrupcion.

[11] Cómo Vamos Nuevo León (2016), Así Vamos 2016. Encuesta de Percepción Ciudadana, http://como-vamos-nl-production.s3.amazonaws.com/uploads/uploader/url_image/31/Resultados_Encuesta_2016_final.pdf.

[17] Government of Canada (n.d.), Management Accountability Framework, https://www.canada.ca/en/treasury-board-secretariat/services/management-accountability-framework.html (accessed on 01 August 2018).

[7] Hussmann, K. (2007), Anti-corruption policy making in practice: What can be learned for implementing Article 5 of UNCAC? Synthesis report of six country case studies: Georgia, Indonesia, Nicaragua, Pakistan, Tanzania, and Zambia » U4, Chr. Michelsen Institute (U4 Report 2007:2) , Bergen, http://www.u4.no/publications/anti-corruption-policy-making-in-practice-what-can-be-learned-for-implementing-article-5-of-uncac/.

[9] IMCO (2015), Índice de herramientas electrónicas de gobiernos locales, https://imco.org.mx/politica_buen_gobierno/presentacion-del-ranking-de-gobierno-electronico-local/.

[4] IMCO (n.d.), Semaforo Anticorrupción, http://www.semaforoanticorrupcion.mx/ (accessed on 01 August 2018).

[12] INEGI (2015), Encuesta Nacional de Calidad e Impacto Gubernamental, http://www.beta.inegi.org.mx/proyectos/enchogares/regulares/encig/2015/.

[6] Nuevo Leon Council (2016), State Development Plan 2016-2021, http://www.nl.gob.mx/publicaciones/plan-estatal-de-desarrollo-2016-2021.

[5] Nuevo Leon Council (2016), Strategic Plan of Nuevo Leon 2015-2030, http://www.nl.gob.mx/publicaciones/plan-estrategico-para-el-estado-de-nuevo-leon-2015-2030.

[3] OECD (2017), Government at a Glance 2017, OECD Publishing, Paris, http://dx.doi.org/10.1787/gov_glance-2017-en.

[2] OECD (2017), OECD Integrity Review of Mexico: Taking a Stronger Stance Against Corruption, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264273207-en.

[8] OECD (2017), OECD Integrity Review of Peru: Enhancing Public Sector Integrity for Inclusive Growth, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264271029-en.

[1] OECD (2017), OECD Recommendation of the Council on Public Integrity, http://www.oecd.org/gov/ethics/Recommendation-Public-Integrity.pdf.

[10] OECD (2017), Trust and Public Policy: How Better Governance Can Help Rebuild Public Trust, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264268920-en.

[14] OECD (2014), Survey on management of conflict of interest, unpublished.

[15] Proceso (2016), Sistema Anticorrupción en la CDMX costaría al menos 131 mdp - Proceso, http://www.proceso.com.mx/447513/sistema-anticorrupcion-en-la-capital-costaria-al-menos-131-mdp.

[18] Rodrigo, D., L. Allio and P. Andres-Amo (2009), Multi-Level Regulatory Governance, http://dx.doi.org/10.1787/224074617147.

[13] Rodrigo, D., L. Allio and P. Andres-Amo (2009), “Multi-Level Regulatory Governance: Policies, Institutions and Tools for Regulatory Quality and Policy Coherence”, OECD Working Papers on Public Governance, No. 13, OECD Publishing, Paris, http://dx.doi.org/10.1787/224074617147.

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