Chapter 3. Instilling a culture of integrity in Nuevo León

This chapter identifies the strengths and weaknesses of Nuevo León’s current integrity framework, focusing on public ethics and management of conflicts of interest within its public administration and providing guidelines for strengthening its institutional and normative framework. The chapter finds that the current Ethics Code and integrity rules could be revisited, moving to a more balanced approach based on evidence. Additional guidelines could be adopted to assist public officials in dealing with ethical dilemmas and conflicts of interest and to identify areas of risk in public sector activities. It is also recommended that Nuevo León consider adopting a more strategic approach toward using the declarations requirement as a way of implementing integrity policies and practices. Finally, this Chapter underlines how strengthening the recruitment process and human resources management practices can help promote integrity throughout the public administration.

    

The statistical data for Israel are supplied by and under the responsibility of the relevant Israeli authorities. The use of such data by the OECD is without prejudice to the status of the Golan Heights, East Jerusalem and Israeli settlements in the West Bank under the terms of international law.

3.1. Introduction

Building an effective integrity strategy means establishing a series of rules or standards of conduct laid out in laws, regulations and codes of conduct, with enforcement mechanisms that impose sanctions if they are violated. If these are to be implemented effectively, they need to be clearly communicated to public officials, to create a shared understanding of what is expected. They also need to be incorporated into general public management policies and procedures, such as human resources and internal control (OECD, 2017[1]), and to be supported with adequate financial and human resources.

The OECD Recommendation of the Council on Public Integrity (OECD, 2017[2]) recognises the critical role of ethical principles and values within the integrity system. It offers guidance for decision makers and public officials on embedding high standards of conduct in the public administration. It also suggests that governments enshrine standards of integrity in their legal system and organisational policies that encourage an open culture that motivates learning and provides a clear basis for investigation and sanctions. This entails adopting a risk-based approach throughout the public ethics framework.

Interviews with public officials and an analysis of documentary sources suggest that Nuevo León, like many states in Mexico, faces a significant challenge in fighting corruption and rebuilding citizens’ trust in its public organisations. As a result, it has adopted various initiatives with the support of civil society organisations. Among such initiatives, Nuevo León has adopted a new Ethics Code in a participatory process. It also amended its Constitution to create new anti-corruption institutions as well as its Law of Responsibilities of Public Servants of the State and Municipalities of Nuevo León (Ley de Responsabilidades de los Servidores Públicos del Estado y Municipios de Nuevo León, or LRSPEMNL) and enacted the State Law on Anti-corruption (Ley Estatal del Sistema Local Anticorrupción, the SEANL Law). All these legal changes were supported by civil society organisations, and could be further enhanced to build a strong integrity framework that promotes public ethics throughout Nuevo León’s public administration.

3.2. Strengthening the normative framework for public ethics and conflicts of interest

3.2.1. Nuevo León could consider revising its Ethics Code using a values-based approach, with clear ethics and conflict of interest rules that are consistently enforced.

Ensuring that the integrity of the public administration is not compromised by the behaviour of public officials requires an ethics law or code that articulates ethical boundaries and the conduct expected of them. It also calls for a clear, coherent and consistent approach on managing conflicts of interest. These rules should encourage desirable behaviour over undesirable or corrupt behaviour. Various approaches can be proposed, including a compliance or rules-based approach and a values-based approach.

While a rules-based approach provides a range of enforcement mechanisms based on the severity of public officials’ misconduct, a values-based approach is often aimed at inspiring integrity through raising awareness of ethics, public sector values, and the public interest, and adherence to codes of ethics or guiding principles. International experience shows that integrity policies are most successful when these two approaches are combined and well-balanced. The relative importance of each approach will depend on the social, political and administrative context, and on the history of the organisation concerned (OECD, 2017[3]).

Ethics codes are rooted in a values-based approach and generally focus on general values rather than specific guidelines for a desired behaviour. They emphasise the organisational members’ capacity for independent moral reasoning, rather than telling them what to do. Training, assistance and support with the application of these values in their daily work are usually offered as a corollary. Conflict of interest rules are an inherent part of the Ethics Code and intrinsic to government integrity. They thus need to acknowledged as an integral part of everyday tasks. Everybody has interests, but they must be properly managed and defined (OECD, 2017[4]), with guidance offered to public officials if the need arises.

Nuevo León’s integrity framework currently consists of values, principles and rules laid out in a variety of legal provisions (see Table ‎3.1). The Ethics Code (Código de ética) adopted in August 2016 replaced the Ethics Code of 2005 and the Code of Conduct issued in June 2014.

Table ‎3.1. Key legislation regulating public officials’ standard of conduct

Legal provisions

Descriptions

Constitution of Nuevo León, published in the Official Journal on 16 December 1917

Article 105 onward lays out the pillars of the integrity system, establishes the administrative disciplinary framework and creates the institutional arrangements for the new local anti-corruption system.

SEANL Law (Ley del Sistema Local de Anticorrupción de Nuevo León), enacted 6 July 2017

In addition to creating the local anti-corruption system, this law sets out public service values and requires public sector entities to maintain structural and normative conditions that enable ethical and accountable behaviour amongst all public officials.

General Law of Administrative Responsibilities (Ley General de Responsabilidades Administrativas, or LGRA)

Articles 26 to 42 establish, among other things, the obligation to submit a declaration of conflict of interest as well as fiscal and assets declarations. These will be made available in the National Digital Platform. Articles related to aspects other than the conflict of interest declaration will not apply in Nuevo León, since they are regulated by the LRSPEMNL. This law defines what constitutes a conflict of interest. The third transitory provision notes that this law aims to guide the behaviour of public officials working at the federal level and in the states, until the Co-ordination Committee of the National Anti-corruption System (Sistema Nacional Anticorrupción, or SNAC) issues the guidelines, criteria and other resolutions for the new anti-corruption system.

Law of Responsibilities of Public Servants of the State and Municipalities of Nuevo León (Ley de Responsabilidades del Estado y Municipios de Nuevo León, or LRSPEMNL) enacted 29 January 1997 and amended on various occasions.

Article 50 sets out prohibited conflicts of interest in the context of the exercise of public officials’ duties, such as prohibited activities, recusal, acceptance of gifts and misuse of insider information, undue influence and prohibition of use of public funds for political purposes, as well as applicable sanctions for violations of integrity rules. It does not, however, include clear rules on pre- and post-employment, or define what constitutes a conflict of interest. Articles 51 onward lay out the regime for disciplinary sanctions.

Organic Law of the Public Administration of the State of Nuevo León (Ley Orgánica de la Administración del Estado de Nuevo León), whose most recent version dates to 8 April 2016

Article 33, Clause XVIII, describes one of the functions of the Office of the Comptroller and Governmental Transparency and sets out the principles that should guide officials in serving the community.

Ethics Code (Código de ética) enacted in accordance with Article 140 of the LRSPEMNL in August 2016

This Code includes three articles. Article 1 refers to seven principles and integrity rules that should guide the conduct of public servants. It also stipulates that its dissemination will be the responsibility of the Office of the Comptroller, and that an Ethics Committee will be set up to analyse and provide opinions on possible violations of its rules.

Law to Promote Reporting on Corrupt Acts of Public Officials (Ley para Incentivar la Denuncia de Actos de Corrupción de Servidores Públicos), enacted 30 June 2013

Article 2 defines what constitutes a corrupt act and refers to contraventions of Article 50 of the LRSPEMNL with the purpose of obtaining undue advantage for the public official and/or a third party. It also defines who is considered a public servant for the purpose of its application. Article 9 requires public officials to report a corrupt act to a superior or the Office of the Comptroller and provides that failure to comply with this obligation constitutes an administrative fault. It also includes a series of protection measures that could be introduced to protect public servants or citizens who report misconduct or corrupt acts.

Law to Promote Values and a Culture of Legality in Nuevo León (Ley para la Promoción de Valores y Cultura de la Legalidad), enacted in 2007, whose most recent version dates from 28 March 2017

This Law sets out a policy intended to improve citizens’ behaviour, the proper use of language by public officials and the operation of public and private institutions within the state, in accordance with the rule of law. It creates a Council to Promote Values and a Culture of Legality of the State (Consejo Estatal para la Promoción de Valores y Cultura de la Legalidad, or CEPVCL) in Nuevo León. This council, chaired by the governor of the state and made up of representatives of organisations from the public, private and social sectors, will propose and monitor the enforcement of public policies, programmes, projects and government actions to promote a culture of legality in the public service.

Source: OECD, based on information provided by Nuevo León.

The Ethics Code, adopted thanks to the participation of various stakeholders, includes a set of rules of conduct linked to seven ethics standards written in plain and easily comprehensible language (see Box ‎3.1). This has facilitated its dissemination amongst public officials. Its first ethical precept (No to corruption) states that public officials should declare any possible conflict of interest, to preserve their impartiality in seeking the public interest. However, it does not define what constitutes a conflict of interest or state how to properly manage such a situation. Although the Code includes rules on gifts and the proper use of public funds, and other situations that could lead to conflicts of interest, it does not set out procedures for its enforcement and systematic monitoring.

Box ‎3.1. The participatory process to adopt the Ethics Code of Nuevo León

The Ethics Code was adopted in August 2016, thanks to the participation of various stakeholders, in a procedure different from that adopted at the federal level and in other Mexican states. Liaison groups were created in the central ministries and parastatal entities of the public administration, which met every two weeks for a year. The effort was co-ordinated by the Executive Agency for the Co-ordination of the State’s Public Administration (Coordinación Ejecutiva de la Administración Pública del Estado de Nuevo León) to address different aspects of organisational culture. The code was drafted to replace the previous one dated 2005, as well as the 2014 Code of Conduct.

In drafting its Ethics Code, Nuevo León took into consideration the Model of the Code of Ethics and Integrity Rules (Modelo de Código de Ética y Reglas de Integridad) drawn up jointly by the Permanent Commission of State and Federal Comptrollers (Comisión Permanente de Contralores Estados-Federación) and the Ministry of Public Administration (Secretaría de la Función Pública, or SFP). Seven ethics standards were developed by each liaison group, and hypothetical scenarios were discussed to better understand its content and scope.

To draft the Ethics Code, public officials were assisted by an ethics specialist from the Superior Technological Institute of Monterrey (Instituto Tecnológico y de Estudios Superiores de Monterrey, or ITESM), who led the drafting process. The goal was to have a punctual and succinct Code, easy to communicate and understand, and inspiring behaviour based on commonly shared values.

The Code declares that its main purpose is to uphold the values of legality, honesty, loyalty, impartiality and efficiency in the exercise of the duties and functions of public officials. Public officials are required to comply with Nuevo León’s legal system, which regulates the public service as well as the seven ethics standards and integrity rules. Each ethical standard describes, in a not exclusive way, three expected modes of conduct with which public officials should comply, so as not to contravene any of the ethics standards. The seven ethics standards are: no to corruption; service; respect and empathy; austerity and sustainability; innovation and efficiency; inclusion; fair and swift decision; and transparency.

It applies to all individuals who work and are paid with public resources, for as long as they are engaged in public service activity. While the ethics rules are written in plain and clear language in the Code, it nevertheless does not include a definition of what constitutes a conflict of interest, although it says that public officials should declare any such conflict.

The Ethics Code was issued and publicly subscribed to by all public officials at a public ceremony. At this ceremony, the governor and high-ranking officials signed a wall that carried a reproduction of the content of the Code. Since then, the Ethics Code has been distributed both by the Executive Agency for the Co-ordination of the State’s Public Administration and the Office of the Comptroller.

Source: OECD, based on information provided by Nuevo León.

The Ethics Code essentially embodies a values-based approach, ensuring that public officials will act beyond simply avoiding integrity violations, but it does not have binding authority to ensure minimal ethical behaviour. It could thus be revisited to move toward a balanced approach, ensuring that it is applied to officials’ daily activities and is enforced in case of any violation. Its values and principles could also be harmonised with the other laws of Nuevo León’s integrity framework (see Table ‎3.2) and could refer to a broad number of public sector core values.

Table ‎3.2. Ethical values and principles embodied in Nuevo León’s integrity framework

State Law on Anti-corruption of Nuevo León

Law of Responsibilities of Public Servants of the State and Municipalities of Nuevo León (LRSPEMNL)

General Law of Administrative Responsibilities (LGRA)

Organic Law of the Public Administration of the State of Nuevo León

Ethics Code 2016

Article 5: legality, objectivity, professionalism, honesty, loyalty, impartiality, efficiency, efficacy, equity, transparency, economy, integrity and competency based on merit

Article 50: legality, honesty, loyalty, impartiality and efficiency

Article 140: refers to the Ethics Code as an instrument for safeguarding the values cited above.

Article 7: discipline, legality, objectivity, professionalism, honesty, loyalty, impartiality, integrity, accountability, efficacy and efficiency

Article 33, Clause XVIII: legality, efficiency, honesty, transparency and impartiality

Recital 4 of the Agreement enacting the Ethics Code: legality, honesty, loyalty, impartiality and efficiency

Source: OECD, based on information provided by Nuevo León.

Nuevo León needs to link each principle laid out in the Ethics Code to core public sector values, and to issue a single coherent set of rules for public officials. Under this set of core values, which could be reduced in number, further specific standards of conduct could be specified to provide guidelines for applying values when necessary. The Ethics Code could refer to the value of loyalty, which involves promoting the public interest, and to public integrity, set out in the State Law on Anti-corruption and defined as the consistent alignment of, and adherence to, shared ethical values, principles and norms, to uphold and prioritise the public interest over private interest in the public sector (OECD, 2017[1]). Another issue that merits further discussion is how the value of competency based on merit, referred to in the State Law on Anti-corruption, could be integrated into it.

Breaches of integrity rules in Nuevo León are sanctioned under the LRSPEMNL, which could also be amended to reflect the rules set out in the General Law of Administrative Responsibilities (Ley General de Responsabilidades Administrativas, or LGRA), whose Articles 16 and 49 establish sanctions in case of ethical violations. The LRSPEMNL thus needs to link the values and principles of the Ethics Code to the appropriate sanction, since the integrity framework needs both a values reference and an enforcement mechanism. Nuevo León could consider that the LGRA has placed the onus on public officials and their managers to come forward, report and resolve conflicts of interest. To ensure clarity over the rules, Nuevo León also needs to consider that conflicts of interest involve grey zones that can provide opportunities for public officials to take advantage of their position for their own benefit, or for the benefit of a third person. If not properly managed, this can lead to corruption. Thus, the code should make clear that both apparent and potential conflicts of interest must be considered, since they may raise doubts over the integrity of public officials and their public sector organisation.

The current fragmentation of the integrity framework may also make it difficult for public officials to comply with these rules. As a medium-term objective, the Ethics Code could be revised, and the SEANL Co-ordination Committee could adopt a single policy framework addressing public ethics and the management of conflicts of interest, harmonising the existing laws and the Ethics Code into one single coherent regulation that provides public officials the standards by which they orient themselves, and by which they can be held accountable. This future Ethics Code could include a brief, explanatory definition of conflict of interest rather than refer only to the definition included in the LGRA, or to the mechanisms set out in the LRSPEMNL, until it can be enforced. In this context, Nuevo León could consider the guidelines employed by such countries as Canada, New Zealand and Portugal (Box ‎3.2). As it goes about making these changes, Nuevo León could continue to employ its participatory procedures, to ensure buy-in from different stakeholders.

Box ‎3.2. Definitions of conflict of interest in Canada, New Zealand and Portugal

In its 2003 Guidelines for Managing Conflict of Interest in the Public Service, the OECD proposes the following definition: A conflict of interest involves a conflict between the public duty and private interests of public officials, in which the public officials haves private-capacity interests which could improperly influence the performance of their official duties and responsibilities.

Canada

Canada’s Conflict of Interest Act (S.C. 2006, c.9, s.2) states “a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests” (Article 4). The Act also specifies the general duty expected of public servants in Article 5: “Every public office holder shall arrange his or her private affairs in a manner that will prevent the public office holder from being in a conflict of interest.” While the Conflict of Interest Act is primarily aimed at elected and other senior officials, the Treasury Board Code of Values and Ethics applies this definition and similar responsibilities to every public servant in government.

New Zealand

In New Zealand, the definition of conflict of interest is tailored to targeted groups, such as public servants, ministers or board members of crown companies. Nevertheless, these definitions include common features. For example, they all cover actual and perceived as well as direct and indirect conflicts. In addition to the general definitions developed for the targeted groups outlined here, supplementing documents also list possible types of conflicts of interest, and concrete practical examples.

For public servants: “Conflicts of interest are defined as, … any financial or other interest or undertaking that could directly or indirectly compromise the performance of their duties, or the standing of their department in its relationships with the public, clients, or ministers. This would include any situation where actions taken in an official capacity could be seen to influence or be influenced by an individual’s private interests (e.g. company directorships, shareholdings, offers of outside employment). […] A potential area of conflict exists for public servants who may have to deal directly with members of Parliament who have approached the department in a private capacity” (Code of Conduct).

For ministers: “Conflicts of interest can arise because of the influence and power they wield – both in the individual performance of their portfolio responsibilities and as members of Cabinet. Ministers must conduct themselves at all times in the knowledge that their role is a public one; appearances and propriety can be as important as actual conflict of interest in establishing what is acceptable behaviour.

A conflict of interest may be pecuniary (that is, arising from the Minister’s direct financial interests) or non-pecuniary (concerning, for example, a member of the Minister’s family) that may be either direct or indirect” (Cabinet Manual).

For board members of Crown companies, a conflict of interest is defined as a situation in which a board member is “party to, or will or may derive a material financial benefit from” a transaction involving his or her company (The Companies Act 1993, Part VIII, Sections 138 and 139).

Portugal has established a brief and explanatory definition of conflict of interest in the law: conflict of interest is an opposition stemming from the discharge of duties where public and personal interests converge, involving financial or patrimonial interests of a direct or indirect nature.

Sources: (OECD, 2004[5]) (Treasury Board of Canada, 2011[6]).

3.2.2. Nuevo León could also consider adopting additional guidelines to assist public officials in dealing with ethical dilemmas and conflicts of interest.

In adopting its Ethics Code in a participatory way, Nuevo León has exceeded the procedures that the federal government and other states in Mexico have employed to socialise their integrity rules. This has increased staff members’ feelings of “ownership of the code” (OECD, 2009[7]), and increased buy-in from public officials working in the central administration. Other efforts have also been made to familiarise public officials working in parastatal entities with the code, such as requiring newly recruited officials to subscribe to the Ethics Code by signing a statement of commitment, and also to ensure common understanding of the ethics rules.

Despite these efforts, Nuevo León’s integrity framework needs further work to guarantee that it is fully implemented and internalised by all public officials. Interviews with public officials indicate that some believe the Ethics Code is a formal declaration of ethical priorities rather than a guide for public officials’ behaviour, and that it has not yet been systematically integrated into public officials’ daily work.

The interviews also suggest that while the current legislative framework includes some provisions for managing conflicts of interest, public officials do not have a clear understanding of their implementation. They do not distinguish between the written declarations that will be uploaded on the future Digital Platform to be created at the federal level and the disclosure that they should submit to superiors if a conflict of interest arises. To help implement the integrity rules, Nuevo León could consider adopting further guidelines advising public officials on how to resolve ethical dilemmas and conflicts of interest in plain language. It could also develop their ethical reasoning skills in dilemma situations such as those involving conflicts of interest, as is typical in such countries as Australia and Canada (see Box ‎3.3 and Box ‎3.4).

Box ‎3.3. Australia’s guidelines for public officials facing ethical dilemmas

The Australian Government developed and implemented strategies to enhance ethics and accountability in the Australian Public Service (APS), such as the Lobbyist Code of Conduct, the register of “third parties”, the Ministerial Advisors’ Code and the work on whistle-blowing and freedom of information.

To help implement the ethics and integrity regime, the Australian Public Service Commission has enhanced its guidance on APS Values and Code of Conduct issues. This includes integrating ethics training into learning and development activities at all levels.

To help public servants in their decision-making process when facing ethical dilemmas, the Australian Public Service Commission developed a decision making model. The model follows the acronym REFLECT:

1. REcognise a potential issue or problem

Public officials should ask themselves:

  1. a. Do I have a gut feeling that something is not right or that this is a risky situation?

  2. b. Is this a right versus right or a right versus wrong issue?

  3. c. Recognise the situation as one that may involve tensions between APS values or the APS and their personal values.

2. Find relevant information

  1. a. What was the trigger, and what are the circumstances?

  2. b. Identify the relevant legislation, policies and guidance (APS-wide and agency-specific).

  3. c. Identify the rights and responsibilities of relevant stakeholders.

  4. d. Identify any precedent decisions.

3. Linger at the ‘fork in the road’

  1. a. Talk it through, use intuition (emotional intelligence and rational processes), analysis, listen and reflect with supervisors, respected colleagues, peers or support services, remember privacy.

4. Evaluate the options

  1. a. Discard unrealistic options.

  2. b. Apply the accountability test. Would the decision stand up to public scrutiny/independent review?

  3. c. Be prepared to explain the reasons for your decision.

5. Come to a decision

  1. a. Come to a decision, act on it and make a record if necessary.

6. Take time to reflect

  1. a. How did it turn out for all concerned?

  2. b. Learn from your decision.

If you had to do it all over again, what would you do differently?

Source: Office of the Merit Protection Commissioner (2009), “Ethical Decision Making”, http://www.apsc.gov.au/publications-and-media/current-publications/ethical-decision-making.

Box ‎3.4. Canada’s guidelines for ethical decision making

In Canada, the Values and Ethics Code for the Public Sector (Public Sector Code) describes for public servants at all levels the values and ethical practices that guide direction, decision making and behaviour. In 2013, Canada published an online discussion guide to ensure that this Code does not remain words on a page but becomes living principle, practised every day both among its public servants in the workplace and in the work they do for Canadians.

The purpose of this online document is to demystify the Public Sector Code, help stimulate thinking and dialogue about how best to apply its values, and provide examples that demonstrate the expected behaviour associated with those values. This guide also includes definitions of some key terms, questions and answers about the Public Sector Code, and suggestions for stimulating discussion in public servants’ workplace.

The guide intends to help public servants integrate the concepts found in each value statement into all areas of their work lives, from day-to-day decision making to policy development to regular operational work, no matter what level or position they occupy.

The Government of Canada’s online guide offers insights to guide its public servants on how to make ethical decisions:

Eight steps to ethical decision making

1. Gather the facts: Collect as much information as you can – what you know and what you do not know, and do not jump to conclusions.

2. Define the ethical issues: What is the main ethical concern in this situation? Check with the Public Sector Code and your organisational code, and identify the key organisational values that may be at stake.

3. Follow the rules: Review directives, departmental and Treasury Board policies, guidelines, laws and regulations to see what is relevant to the situation. Your decision must be legal and in line with the appropriate policies and legal authorities.

4. Determine who will be affected by your decision: Seeing a situation through another person’s eyes is an important skill. Identify the people or groups that could be affected by your decision and try to see their point of view (citizens, businesses, clients, colleagues, management, branch, department, minister, media and others). Ask yourself, “Will everyone affected by this decision be treated with fairness and equity? Is this option in line with the public interest? What would taxpayers think?”

5. Identify your responsibilities and the consequences of your choice: Think about your possible choices. What are the risks and impacts (short and long term) associated with each one? Ask yourself, “What message would I be sending or what perceptions could be created by whatever option I choose?” Consider your reaction if the choice of action affected you.

6. Consider your character and integrity: Are you comfortable with your decision, and can you be proud of it? Will your decision promote ethical behavior in the organisation? Is your decision worthy of the public interest?

7. Confirm your decision: Talk to your manager or consult the appropriate departmental advisor (i.e. from Labour Relations, Finance, Information Technology, etc.) and/or your organisation’s Ethics Directorate.

8. Commit to action: Take action and be ready to stand by your decision. When the dilemma has been resolved, it is a good idea to consider lessons learned for next time. Share your experience with colleagues, which is always a good way to begin a dialogue on ethics and values with your peers.

Source: Government of Canada, Values Alive: A Discussion Guide to the “Values and Ethics Code for the Public Sector, https://www.canada.ca/en/treasury-board-secretariat/services/values-ethics/code/values-alive-discussion-guide.html#Toc11 (accessed 22 June 2017).

It is helpful to set out clear, realistic descriptions of the kind of circumstances and relationships that can lead to a conflict of interest, noting a range of examples of private interest at risk, unacceptable conduct and relationships. Without pretending to cover all situations, this can help public officials better identify relevant situations. This guidance should also include descriptions of situations and activities that can lead to actual, apparent and potential conflicts of interest and be aligned with the overarching principles of public sector values (see Box ‎3.5).

Box ‎3.5. Resolving an apparent conflict of interest issue in Canada

Integrity in action: An example of an ethical dilemma

Situation

Hélène is a public servant in an agency that provides counselling and federal government financial assistance to senior citizens. She has been in her position for many years, and, in addition to her expertise, Hélène loves her job. She takes pride in providing her clients the best service possible, and she is always careful to be impartial in her dealings. As a result, Hélène has developed a solid professional reputation and excellent relationships with her clients. Hélène was saddened to hear of the death of one of her clients, Mr. Beaulieu, but was very surprised several months later when she was informed that Mr. Beaulieu had left her his retired racehorse in his will. They had often discussed their mutual love of horses, but she had no idea that Mr. Beaulieu was going to do this, and she would have never asked him for anything. Not knowing what else to do, Hélène immediately reported the matter to her agency’s conflict of interest office to seek advice.

Possible steps for resolution

Seeking help from her organisation on this decision was certainly a helpful first step. The analysis to follow could include questions around the nature of the gift and whether it could be considered “minor.” Also, if Hélène accepted the gift, would it compromise her integrity or the integrity of her agency? Would it appear to do so? Any appropriate solution should take the answers to these questions into consideration.

Things to think about

This is an example of how sometimes, by doing no more than being excellent at their jobs, public servants can find themselves in a conflict of interest. A conflict of interest does not imply that there was any wrongdoing, but simply that the situation presents competing interests, or in this case, the appearance of competing interests. Under the Public Sector Code, it is as important to avoid apparent conflicts of interest as it is to avoid real or potential conflicts of interest.

In the actual case upon which this scenario is based, the Federal Court of Appeal upheld the department’s instruction to the employee to return the legacy. It was not because the employee had committed misconduct, but rather, that accepting the legacy and the appearance of a conflict of interest could erode the public’s confidence and trust that the decisions made by public servants in such sensitive areas are based on the highest standards of impartiality and integrity.

Source: Government of Canada, Values Alive: A Discussion Guide to the “Values and Ethics Code for the Public Sector”, https://www.canada.ca/en/treasury-board-secretariat/services/values-ethics/code/values-alive-discussion-guide.html#Toc11 (accessed 22 June 2017).

These proposed guidelines could be considered a complementary measure to the initiatives already in effect. To ensure their implementation, the SEANL Co-ordination Committee could ask the Office of the Comptroller to conduct surveys amongst all public officials, to assess which kind of recurrent scenarios and ethical dilemmas arise when applying the integrity framework. The dissemination of these new proposed rules will require co-ordination between the Executive Agency for the Co-ordination of the State’s Public Administration (Coordinación Ejecutiva de la Administración Pública del Estado) and the directorates in the Office of the Comptroller in charge of the prevention function.

3.2.3. Nuevo León could identify areas of risk to make sure its integrity policy prevents conflict of interests from arising and deters corruption.

Ensuring clear normative guidance also requires considering the specific risks associated with sensitive processes (e.g. procurement, selection of methods for tendering or modifying of rewarded contract promotion of staff members, inspection, etc.) and sensitive functions (typically staff members responsible for sensitive processes or decision making in general) (OECD, 2009[7]). Most OECD countries have defined the areas most at risk and provided specific guidance to prevent and resolve conflicts of interest. These areas are related to sensitive activities where citizens have reported high levels of corruption, such as the administration of justice, tax and customs administrations and officials working at the political/administrative interface (see Figure ‎3.1).

Figure ‎3.1. Conflict of interest policy/rules for categories of public officials in OECD countries
In percentage
picture

Source: (OECD, 2014[8]).

Nuevo León’s integrity framework does not include clear rules to guide public officials working in areas most at risk. These might include public safety and public procurement, as well as sensitive positions, for instance those of high-ranking decision makers where specific ethics codes have not been adopted. Integrity rules for public procurement officials are dispersed through various other laws, such as for instance, the Law on Procurement, Leases and Contracting Services of the State of Nuevo León (Ley de Adquisiciones, Arrendamientos y Contratación de Servicios del Estado de Nuevo León, or LAACS) and the Law on Procurement, Leasing and Services in the Public Sector (Ley de Adquisiciones, Arrendamientos y Servicios del Sector Público, or LAASSP).

In setting up its new integrity framework, the SEANL Co-ordination Committee could therefore ask the Office of the Comptroller to identify the most risky areas and provide a manual on ethics and conflicts of interest specific to, for instance, officials participating in public procurement activities or other government activities. This would help them identify these situations and make the appropriate decisions. In addition, as a complementary measure, the Co-ordination Committee could encourage the development of codes at organisational levels, recognising that public sector organisations face different contexts and kinds of work and distinct ethical dilemmas and conflicts of interest. The challenges public officials face differ significantly if they work in the Ministry of Public Administration (Secretaría de Administración), the Ministry of Finance (Secretaría de Finanzas y Tesorería General del Estado), the Ministry of Health (Secretaría de Salud) and other entities with regulatory and supervisory functions. The suggested specific risk-based guidelines could complement the proposed organisational codes. However, both should apply to all public officials and employees independently of their contractual status, since they need to have the same level of knowledge and receive the same basic guidance and training.

3.2.4. In revisiting its Ethics Code and conflict of interest policy, Nuevo León could include sanctions to ensure the credibility of its public sector values and consistency with the disciplinary system.

Establishing clear integrity rules requires provisions clearly specifying the sanctions for violations, which should be effectively communicated to all public officials. These enforcement measures, applied timely and fairly, can lend credibility and legitimacy to the integrity framework and help instil integrity values in public sector organisations. This will help restore citizens’ trust, as the government sends a message that it is serious about upholding the public interest in public decision-making. In OECD countries, the sanctions usually applied for violating conflict of interest policies are disciplinary and criminal prosecution and the cancellation of affected decisions and contracts (see Box ‎3.6).

Box ‎3.6. Setting proportional sanctions for violating conflict of interest policies

The nature of the position is taken into consideration when countries determine appropriate personal consequences for breaching conflict of interest policy. The following list of personal consequences indicates the variety of severe sanctions applied to different categories of officials in Portugal:

  • loss of mandate for political and senior public office holders, advisers or technical consultants;

  • immediate removal from office and return of all sums that have been received for ministerial advisors;

  • three-year suspension of senior political duties and senior public duties for senior civil servants;

  • loss of office, for managerial staff;

  • fines and inactivity or suspension for civil servants and contractual staff.

Source: (OECD, 2004[9]).

The LRSPEMNL does not establish the appropriate sanction in case of breaches of ethical standards. It is not properly linked to the Ethics Code, which is also silent in this respect. In addition, although certain conflicts of interest are sanctioned under this law, it is not clear what the applicable sanctions would be, since its determination is discretionary and could generate inconsistencies. The applicable sanctions might be disciplinary, administrative or economic. Disciplinary sanctions might consist of warnings and reprimands that could be private, in which case they are communicated in writing or verbally to the public officials, or public, in which case they will be part of the human resources file and registered in the Registry of Public Servants who have been sanctioned and disqualified. Possible administrative sanctions could result in suspension, removal or disqualification of public officials from their positions. Economic sanctions can also be imposed in addition to these sanctions and range from fines to restitution for damages caused. If any of the breaches to these integrity rules entails illicit enrichment, the contravention is prosecuted under the Criminal Code of Nuevo León, which imposes sanctions that range from three months to 14 years of imprisonment and fines.

This lack of clarity on the appropriate sanction in cases of conflict of interest was confirmed in interviews with public officials, who are apparently not always aware that a conflict of interest policy is in effect and that any breach of the existing rules is subject to sanctions. They appear to believe that it will not be implemented until submitting a declaration form in the context of the SEANL becomes an obligation. Some expressed concern that this might constitute a challenge for managers, because they will not have access to their subordinates’ declarations of interest. In their view, this will make it difficult to manage conflicts of interest appropriately.

To clarify and lend credibility to its new integrity system, Nuevo León could thus consider two options in revisiting the Ethics Code and the LRSPEMNL:

  • Clearly link the integrity rules with accountability mechanisms, to make public officials aware of the responsibilities of their conduct, as provided in Italy (Article 53 of Legislative Decree 165/2001) and Jordan’s Code of Conduct, whose Article 3 stipulates: “Any violation of the provisions of the Code requires accountability and to take disciplinary action and penalties in accordance with the rules of the system” (OECD, 2010[10]).

  • Ensure that the duty or obligation mentioned in the Ethics Code is linked to the disciplinary framework that stipulates the appropriate sanction in line with the principles and conditions governing the disciplinary action in Nuevo León (e.g. due process, legality and proportionality).

Data published by the Anti-corruption Unit shows that sanctions for contravening the LRSPEMNL have been imposed but do not provide information on whether they were imposed for a breach of ethical principles and values of the public service or for not properly disclosing and managing a conflict of interest (see Table ‎3.3). This data does not show whether the sanctions imposed qualified as administrative serious offences, since the current integrity framework does not make a clear distinction between serious and non-serious offences, stating only that contraventions committed with malice are to be considered serious. Fines imposed are apparently related to breaches of the obligation to submit the assets declaration within the specified deadlines. Nuevo León could benefit from disclosing the reasons for imposing sanctions because this will send a clear message to public officials and citizens that the government is taking steps to deter misbehaviour in the public sector.

Table ‎3.3. Administrative and disciplinary sanctions imposed in Nuevo León

October 2015 – January 2017

Warnings

11

Reprimands

5

Fines

3

Compensatory sanctions

14

Suspensions

1

Disqualifications

17

Total

51

Source: (Office of the Comptroller and Governmental Transparency, n.d.[11]).

In revisiting its integrity framework, Nuevo León could consider the distinction made in the LGRA, which differentiates between serious and non-serious offences (see Box ‎3.7).

Box ‎3.7. Classification of serious and non-serious offences under Mexico’s General Law of Administrative Responsibilities (which took effect in July 2017)

Articles 49 and 50 of the LGRA define non-serious offences as acts and/or omissions that concern:

  • fulfillment of an official’s functions, powers and entrusted duties while observing performance, discipline and respect, both to other public servants, as well as to individuals with whom they come in contact, under the terms of the Ethics Code;

  • reporting acts or omissions they may come across in the course of their duties, which could constitute administrative offences;

  • following the instructions of their superiors, as long as they are consistent with the provisions related to public service and do not constitute administrative offences;

  • submitting timely asset, interest and tax declarations, as required by law;

  • registering, integrating, storing and caring for documentation and information that is their responsibility, and preventing or avoiding its use, disclosure, theft, destruction, concealment or improper irreparable damage to it;

  • supervising and ensuring that public servants under their direction comply with the provisions of the LGRA;

  • being able to account for and report on the exercise of their functions, as defined by relevant policies and laws;

  • collaborating in judicial and administrative proceedings to which they may be party;

  • ensuring, before the conclusion of procurement contracts, disposal of all kinds of goods, provision of services of any nature or hiring public services or related to work, that the individual in question is not already under employment, office or commission in the public service. Or, in the case that they are, that this does not impose a conflict of interest as defined by Law;

  • damaging or neglecting, without incurring any of the serious administrative offenses outlined as serious offences, the Treasury or the capital of a public entity.

Alternatively, serious offences are defined by Articles 52-64 as those concerning:

  • accepting, obtaining or seeking to obtain, by themselves or through third parties, a bribe, including any benefits not included in their remuneration as a public servant, which could consist of money; assets; real or personal property, including through disposal for a markedly lower than market price; donations; services; jobs and other improper benefits for themselves or their spouse, blood relatives, civil relatives or others with whom the official has professional, labour or business partners or partnerships or relationships;

  • embezzlement through which a public official requests or performs acts for the use or ownership for themselves or for those referred to in the preceding article of public resources, whether material, human or financial;

  • authorising or requesting the diversion of public resources from their intended purpose, whether material, human or financial;

  • misuse of information by the official in office (or by the persons specified in Article 52) to purchase real estate, moveable property and other assets, or, more generally, to improve their conditions and obtain any advantage or private gain. This restriction applies for up to one year after the official has left his/her position.

  • abuse of their position to generate a profit for themselves or for the persons specified in Article 52;

  • causing injury to any person or public service;

  • intervening in any decision or duty in which the official has a conflict of interest;

  • improperly recruiting, selecting, appointing or designating another official who, under law, is not eligible to be employed in the public service (i.e. those prohibited under the sanctions registry);

  • inaccurately declaring assets or concealing a conflict of interest;

  • profiting from their position and the responsibilities conferred upon them to delay or omit an act, to generate any profit, or seek any private gain for themselves or those specified in Article 52;

  • failing to report, or covering up, acts or omissions considered to be administrative offences;

  • providing false or unjustified delayed information in the case of judicial, electoral, internal control or other requests;

  • obstructing justice by not initiating the corresponding administrative disciplinary proceedings before the competent authority within 30 calendar days of discovering any conduct that would constitute a serious administrative offence; or revealing the identity of an anonymous whistle-blower protected under the principles established in this Law.

Source: General Law of Administrative Responsibilities, cited in the (OECD, 2017[3]).

To ensure the effective enforcement of these integrity rules, Nuevo León could seek a balance between extrinsic and intrinsic motivation in encouraging public servants to comply with ethics guidelines and principles. These amendments could be accompanied by efforts to encourage an open organisational culture (see Chapter 4) and also, by an analysis of the disciplinary actions and trends observed, compiling statistics on the number of administrative sanctions imposed and of criminal prosecutions initiated (Figure ‎3.2). This will facilitate continuous learning by public officials on how to detect challenges and problems in implementing the integrity policy, and also prevent recidivism, as public officials see that sanctions and redress are being enforced.

Figure ‎3.2. Complaints and actions undertaken to fight corruption in Nuevo León from October 2015 to June 2017
picture

Source: Author, based on information published by the Office of the Comptroller.

3.3. Ensuring the appropriate use of tax, assets and interest declarations to strengthen the effective implementation of integrity policies

3.3.1. Nuevo León could consider narrowing the scope of those obliged to submit asset declarations, based on a strategic approach.

Since 2012, Nuevo León has required its public officials to submit an electronic declaration of assets using the Declaranet system, which can be accessed through the website www.oecnl.gob.mx/declaranet/ (Articles 112 to 116 of the LRSPEMNL). However, not all public officials have yet filled out their initial declaration, and the volume of those who are not in compliance is still high. According to Nuevo León, public officials did not submit their initial declaration in time because they were not aware of this obligation. So far, 1 107 public officials have submitted their declaration of assets after the deadline or with errors, which confirms that compliance with this requirement is an ongoing process.

The scope of this obligation (in terms of who should submit this declaration) is very broad. It covers all public officials working in the executive, legislative and judiciary branches and those working at the municipal level, in line with the requirement set out at the federal level. The exact number of those obliged to submit the assets declaration is not known, but, to some extent, its scope exceeds the requirements in the majority of the OECD member countries (Figure ‎3.3 and Figure ‎3.4). In the central administration alone, 40 000 public officials are expected to submit the assets declaration, a volume that makes effective monitoring difficult. In principle, the large number of officials required to declare their assets could enhance public trust in government. However, monitoring so much data is difficult without a well-trained group of officials with the appropriate resources to monitor and evaluate the information.

Figure ‎3.3. Disclosure and public availability of private interests in the three branches of government in OECD countries, 2014
picture

Source: (OECD, 2015[12]).

Figure ‎3.4. Level of disclosure and public availability of private interests, by level of public officials in the executive branch, 2014
picture

Source: (OECD, 2015[12]).

The current disclosure requirement could be revisited by the SEANL Co-ordination Committee. It could be considered overly burdensome by public officials or could give the impression that the organisational culture of public organisations presumes that public officials are corrupt. The Co-ordination Committee could then follow a strategically based approach and study the possibility of narrowing down the categories of public officials obliged to submit the asset declaration, based, for instance, on the level of influence or the risk of policy capture or corruption of the position they occupy. This would help avoid disclosure of false information or failure to submit information and the difficulty of recruiting the most qualified candidates. Nuevo León needs to move in this direction, given the global trend toward transparency and toward disclosing, at least to some degree, data about political officials, such as Cabinet members, because politicians are expected to be held accountable for their decisions. They thus need to be ready to provide explanations about the information disclosed, if any serious concerns are raised in the media or by civil society. In the case of lower-level public officials, the appropriate degree of public disclosure should be determined after carefully weighing such considerations as perceptions of corruption, possible safety concerns and other risks (OECD, 2011[13]). Adopting this proposed strategy could ensure appropriate management of all information submitted, considering the budgetary and capacity limitations.

3.3.2. Nuevo León could consider amending the current assets declaration format, to align it with the format that will be required under the National Anti-corruption System.

Nuevo León does not use the same form or require the same level of disclosure as is required at the federal level. The obligation for public officials to provide financial information about themselves and their family (spouses or common-law partners, as well as the dependents of public officials) is not comparable. At the federal level, public officials are required to provide financial and non-financial information to a degree comparable to that in other various OECD countries (see Box ‎3.8). Nuevo León thus needs to review the content of its declaration form and use the form that has been approved since July 2017 at the federal level for those who have not yet completed the asset declaration. It could also monitor the final version of the three declarations forms (assets, fiscal and interest declarations) when they are issued by the SNAC Co-ordination Committee and could make it public, to some extent, on the SNAC Digital Platform, in accordance with the national transparency and privacy laws.

Box ‎3.8. Common financial and non-financial disclosures in OECD countries

Generally, the following types of information are required to be disclosed in OECD member and partner countries:

Financial interests

Reporting of financial interests can allow for the monitoring of wealth accumulation over time and the detection of illicit enrichment. Financial information can also help to identify conflicts of interest.

Income: Officials in OECD countries are commonly asked to report income amounts as well as the source and type (i.e. salaries, fees, interest, dividends, revenue from sale or lease of property, inheritance, hospitalities, travel paid, etc.). The exact requirements of income reporting may vary, and moreover, public officials may only be required to report income above a certain threshold. The rationale for disclosing income is to indicate potential sources of undue influence (i.e. such as from outside employment) as well as to monitor increases in income that could stem from illicit enrichment. In countries where public officials’ salaries are low, this is of particular concern.

Gifts: Gifts can be considered a type of income or assets; however, since they are generally minor in value, many countries only require reporting gifts above a certain threshold.

Assets: A wide variety of assets are subject to declaration across OECD countries including savings, shareholdings and other securities, property, real estate, savings, vehicles/vessels, valuable antiques and art, etc. Reporting of assets permits for comparison with income data, to assess whether changes in wealth are due to be declared legitimate income. However, accurately reporting on the value of assets can be a challenge in some circumstances and can prove difficult to validate. Furthermore, some countries make the distinction between owned assets and those in use (i.e. such as a house or lodging that has been lent but is not owned).

Other financial interests: In addition to income, gifts and assets, additional financial interests to declare often include: debts, loans, guarantees, insurances, agreements that may result in future income, and pension schemes. When such interests have significant value, they can potentially lead to conflicts of interest.

Non-financial interests

Non-financial interests may not contribute to monitoring for illicit enrichment, but can also lead to conflicts of interest. Many countries request disclosure of:

Previous employment: Relationships or information acquired in past employment could unduly influence public officials in their current position. If an official’s previous firm applies for a public procurement tender in which the public official has a say in the process, this past position could create a conflict of interest.

Current non-remunerated positions: Board or foundation membership or active membership in political party activities could similarly affect public officials’ duties. Even voluntary work could be considered to influence duties in certain situations.

Source: (OECD, 2011[13]).

The current level of transparency restricts public disclosure of the assets declaration; as at the federal level, it is only available with the consent of the public official or with a judicial order (Article 118 of the LRSPEMNL). No declarations of assets are available online on Declaranet, i.e. no public servants have given their authorisation to make them publicly available. This could be perceived by citizens as a lack of transparency, considering the high perception of corruption reported in the state. It should be noted that the format approved by the SNAC Co-ordination Committee still allows public officials to make a choice between declining to make their declaration of assets available to the public, or authorising its partial publication. The SEANL Co-ordination Committee could consider this and grant access to a summary of the disclosed information, giving access to the full content but placing certain conditions on access. Alternatively, it could provide online access to all or part of the information in the submitted disclosures, or even different combinations of these and other options, as is current international practice (OECD and The World Bank, 2017[14]).

Nuevo León also needs to ensure that the digital platform used to store public information be updated and compatible with the one that will be used at the federal level, by seeking authorisation from the licence providers of this digital platform. In studying the accessibility of this information, Nuevo León could consider a user-friendly access to these declarations.

3.3.3. Management of declarations could be entrusted to a well-staffed team in the proposed Ethics Unit that ensures the implementation and monitoring of the declarations’ system.

The Legal Directorate in the Office of the Comptroller manages declarations and is actively working to ensure compliance of all public officials in spite of the limited capacity to fulfil this task. Only two public officials provide guidance in filling out the asset declaration. Instructions are available online, but ensuring full compliance with relevant obligations requires training and information sessions.

International experience shows that management of assets declaration systems does not always require a large staff, depending on the tasks assigned, the volume of declarations and the technology used. Nuevo León, given the current budgetary restrictions, could consider involving the “Agents of Change” for support (see section 3.5), especially when public declarations increase. They could also make public officials aware of their disclosure obligations and the potential sanction in case of non-compliance. In the long term, however, professionals with specialised skill sets (e.g. forensic accounting, legal and investigative training) would need to be hired to work in the proposed Ethics Unit office, on a full-time basis. Their tasks will include monitoring public officials’ declarations, as well as resolving current, apparent and potential conflicts of interest.

Under the Constitution of Nuevo León (Article 105) and the LGRA, in addition to the assets declaration, public officials are expected to submit interest and tax declarations. This will increase the volume of disclosures handled every year. Although this new requirement is not yet fully in effect at the federal level, Nuevo León will benefit from working closely with the SFP in elaborating its strategy on declarations.

The management of the assets declaration and the two additional declarations could be the responsibility of the new proposed Ethics Unit. This will require that the Organic Law of the Public Administration be amended to transfer this responsibility from the Legal Directorate to the new proposed Ethics Unit. The two public officials currently working on the assets declaration could be transferred to this Ethics Unit, given the expertise they have acquired.

At present, the obligation to submit the assets declaration has not been fulfilled in a timely fashion. This has increased the current workload of the Legal Directorate, which also ensures compliance with the obligation to submit the two other declarations. In October 2016, in order to communicate to public officials the enforceability of the two other obligations, the Legal Directorate conducted a drill amongst public officials who had submitted their assets declaration during this period. The goal was to lay out a strategy to implement the new requirement throughout the public organisations. According to this office, this exercise had a positive response. However, because it was voluntary, no data was collected on the number of respondents or the challenges encountered.

To successfully manage the three declarations, Nuevo León needs to redesign its communication strategy, and ensure not only that officials are aware of this obligation but clearly distinguish between the requirement to fill out declarations and the conflict of interest policies. Public officials need to understand that the declarations on assets and interests are simply tools that can prevent and manage conflict of interests’ situations when they arise. It could be made clear that there is a distinction between the declaration of financial and non-financial information that could constitute a conflict of interest (real or apparent). Such situations could lead to a potential conflict of interest in the future, and it must be emphasised that information disclosed will only be useful if it is truthful and accurate.

Nuevo León also needs to insist that inaccuracies be avoided to permit effective monitoring of assets fluctuation, to ensure that no concerns about their integrity or the integrity of their organisations can arise. Campaigns to raise awareness amongst public officials must convey a shared understanding of what constitutes a conflict of interest, and how to manage this situation when it arises. They could also offer instructions showing how to fill out the declarations, issuing detailed guidelines, with frequently asked questions, as well as provide blank forms examples online, in the media, and over telephone hotlines, etc.

The existing integrity policies in Nuevo León include fines in case of failure to submit the assets declaration by the deadlines (Article 57 of the LRSPEMNL). Nuevo León needs to rethink its strategy, since the LGRA stipulates that failure to submit these declarations will constitute a non-serious offense, which will be investigated by the internal control bodies. Since 2015, Nuevo León has imposed a total of 47 fines for not submitting the assets declaration in a timely fashion, but these were waived, as provided for in Article 74 of the LRSPEMNL. Only 50% of the fines imposed were paid to the Directorate of Tax Collection of the Ministry of Finance (Dirección de Recaudación de la Secretaría de Finanzas), which is responsible for collecting revenues. Analysis of the waiver is the responsibility of the Legal Directorate. While fines have proved their effectiveness in countries like Canada and France, where they have been imposed on senior officials for failure to submit their declarations, Nuevo León does not appear to consider fines an effective mechanism; neither does it have in place effective monitoring of deadlines.

3.3.4. Nuevo León needs to establish an effective strategy to comply with the requirement of cross-checking information through agreements with tax and financial units set out in the SNAC.

International experience has shown that if filers know that someone will take a look at the content of a declaration, they are more likely to comply with disclosure requirements and to make sure to include the relevant information (OECD and The World Bank, 2017[14]). Moreover, if declarations are used to monitor unexplained fluctuations in wealth rather than conflicts of interest, as is the case with the SNAC and the SEANL, the screening may detect unintended filing mistakes, and deter filers from intentionally skipping information or including false statements. However, checking the content of all the declarations filed is not always a feasible approach. Countries opt for various strategies and use technology to verify and audit the assets declaration (see Table ‎3.4). This also allows for automatic validation of the declarations receipt, triangulation with other databases and automatic notification of red flags identifying errors, missing information, and changes to assets, income and personal situation, etc.

Table ‎3.4. Types of verification checks on asset and interest declarations

Type of verification check

Description

Basic/preliminary verification

Ensures whether declarations are complete, or whether there are obvious mistakes (i.e. numerical values entered, valid addresses, etc.)

Simple verification

Ensures the logical consistency of the information provided on the declaration forms (i.e. arithmetical checks, checks on past years or modifications, and checks that assets are accounted for by declared income). Simple verifications can spot potential or real conflicts of interest and can lead to audits.

Audit verification

This most advanced stage of verification may not only cross-check information from past declarations but also compare them with “external” data sources from financial or other public institutions. An auditor may validate the existence/value of assets; assess lifestyle, and request proof and testimony from public officials and others.

Source: (OECD, 2017[3]).

Nuevo León has begun to verify the content and thoughtfulness of information submitted by officials in their assets declaration on a random basis. According to the Office of the Comptroller, this exercise has so far demonstrated that information submitted by public officials is generally accurate. As the volume of declarations received will increase in the coming months, the Office of the Comptroller could determine the appropriate mechanisms to randomly review the content and accuracy of the declarations submitted and effectively detect enrichment and conflicts of interest. It could also decide that declarations filed by public officials occupying high-risk positions in the government will be systematically subject to verifications and audits. This might also be applied to those who work in public sector organisations where numerous breaches of integrity rules have been reported. The expectations they have on the disclosure mechanism might also be evaluated. This risk-based approach to verifications and audits of declarations could also consider using other means. These might include scrutinising red flags associated with variations of income, assets, etc., monitoring complaints or information submitted in the media, and ensuring strong, effective co-operation agreements with financial institutions and other integrity entities (Article 9, Clause XV of the State Law on Anti-corruption). To be effective, the results of these regular verifications and audits need to be accompanied by a credible threat of sanctions. This could provide a deterrent against illicit enrichment and conflicts of interest (OECD, 2017[4]).

3.3.5. To reinforce the implementation of integrity policies, Nuevo León could consider addressing areas of risk, working closely with the SFP to adopt clear policies to communicate the new rules to public officials.

In addition to identifying high-risk positions and situations that could generate conflicts of interest attributable to holding assets or family, business and personal issues, countries have considered including in their integrity framework other situations that can lead to conflicts of interest, such as gifts and post-employment.

Gifts are a sensitive issue that can lead to conflicts of interest regardless of their value. They may affect public officials’ objectivity and the integrity of their organisation. It has thus been considered important to establish rules on how to deal appropriately with an actual or presumed relationship between the giver and receiver. Most ethics codes or laws include a reference to this issue. In Nuevo León, this is regulated in Articles 131 to 135 of the LRSPEMNL, which includes rules on acceptability of gifts, disclosure and subsequent forfeiture and need to be amended to reflect the current rules in force in the LGRA (Box ‎3.9).

Box ‎3.9. Nuevo León’s current legal provisions on gifts

Public officials are prohibited from receiving from the same source over a year gifts whose value exceeds by 200 times the minimal wage salary at the time of their receipt (Article 50, Clause XV, LRSPEMNL). Gifts not exceeding this value should be declared in the annual assets declaration that public officials must complete (Article 131). Gifts exceeding the threshold are required to be transferred to the internal control bodies within five days of their receipt. Internal control bodies are then expected to transfer gifts to ministries, entities and other organisations, based on their nature, and to maintain a registry of gifts forfeited and transferred. Failure to comply with these two rules could be considered bribery and can be prosecuted under the criminal code (Article 133).

The current gift policy in Nuevo León complies in some degree with the proposed guidelines issued by the OECD on gifts. It includes more transparent rules, but it should be revisited now that Article 7, Clause II, 40, 52 and 66 of the LGRA is in effect, as of July 2017. The LRSPEMNL includes specific rules on gifts received at the municipal level and mechanisms for forfeiting gifts received, based on their nature.

Although the LRSPEMNL provides that accumulative gifts received from the same source need to be publicly disclosed in the annual assets declarations, this provision needs to be amended to reflect the rules stipulated in the LGRA, since accepting or intending to accept a gift from an individual qualifies as bribery.

Source: Author, based on the LRSPEMNL.

Interviews with public officials suggest that gifts are considered a normal practice and, in some cases, are offered secretly or sent to public officials directly to their offices. This appears to be typical, for instance, in the public procurement process. Questioned about the propriety of this practice, public officials replied that they consider these gifts were given to them because of a private relationship they have with the giver, rather than because they occupy a position in the public service and are called upon to exercise a duty or function that could advance the giver’s private interest. Public officials are therefore not able to determine whether accepting gifts could place them in a conflict of interest. Their analysis focuses more on the value of the gift than on the influence that accepting it may have on their daily work, or a decision they might be called upon to make, or even on the damage that receipt of the gift might cause to their organisation. Moreover, even though the LRSPEMNL includes detailed mechanisms for reporting and forfeiting gifts exceeding a certain threshold, the rules are not yet operational. Interviews with public officials also revealed that they are not discouraged directly by superiors to avoid this practice. Instead, they are instructed to give gifts received at Christmas, at a time when the number rises, to a non-profit organisation. Public officials also indicated that they were not aware of what happens for the rest of the year and whether the receipt of gifts are or are not reported. However, the LRSPEMNL notes that failure to report these gifts in the annual assets declaration could be considered bribery.

Considering that the LGRA strictly prohibits accepting benefits, a very broad definition, Nuevo León could adopt a clear strategy, including a pro-active campaign using internal guidelines and social media to communicate the new rules to public officials, the private sector and citizens. Nuevo León could seek advice from the SFP on properly managing this issue, since it is a major challenge for Nuevo León and for other Mexican states to establish a threshold for acceptance.

A second area of risk in Nuevo León are pre- and post-employment rules. The current government is composed of individuals from the private sector and civil society organisations, rather than from a political party. Such officials may decide to leave their position before their term to seek other opportunities, after serving briefly in the public service. This was the case with certain high-ranking officials who occupied positions after the election but have now moved on. Changes introduced in the LGRA now include offers of employment, in addition to the strict provisions governing the acceptance of benefits not included in public officials’ remuneration, and offered because of their government function.

Post-public employment conflicts of interest concern two major risk areas: one involving interactions between the public and the private sector and the other related to top-level public officials, including decision makers such as ministers and members of the legislature. Political advisers, senior public servants and chief executives and managers of state-owned enterprises are also subject of post-public employment prohibitions and restrictions (OECD, 2010[10]). OECD countries have adopted cooling-off periods of one to two years that would apply in these circumstances, although such strict prohibition may have a negative impact on the government’s capacity to attract experienced people from the private sector.

In Nuevo León, pre-employment is not covered by the current integrity policies. This could also be reviewed, given the impact that this may have on whether public officials can exercise their duties in an unbiased fashion. The Co-ordination Committee could consider this in determining the integrity rules to apply in the context of the SEANL. Pre- and post-employment conflict of interest is itself a risk area of increasing importance in the broad field of conflict of interest, which must be managed based on its own risks (OECD, 2010[10]). Guidelines on whether it is appropriate to accept an offer and indicating where public officials could seek out confidential advice could be also helpful in ensuring the enforcement of this rule.

3.4. Scaling-up initiatives to create a culture of integrity in the public administration and promote change in behaviour

3.4.1. Nuevo León could scale up its raising awareness and training activities to instil a culture of integrity and transparency in public decision-making.

In addition to ethics codes, laws and manuals, OECD member countries have adopted complementary strategies to build consensus and ownership over integrity rules amongst public officials. These include:

  • dissemination of rules or guidelines when the public official takes office;

  • pro-active updates concerning changes to the public integrity framework;

  • publication of the public ethics policies online or on the organisation’s intranet;

  • regular reminders about public integrity policies;

  • training;

  • regular guidance and assistance;

  • an advice line or help desk where officials can receive guidance on filing requirements or the identification or management of conflicts of interest (OECD, 2014[8]).

Nuevo León has initiated an awareness-raising strategy to promote the Ethics Code in the central public administration and government entities. Liaisons from each ministry who contributed drafting the Ethics Code have supported this strategy by sharing experiences and using lessons learned in sessions to raise awareness amongst public officials in their ministries. They are also working on a competition between ministries on exemplary practices for each of the seven principles of the Ethics Code. This can help disseminate the rules and encourage public officials to be active in the learning process. Meanwhile, the Executive Agency for the Co-ordination of the State’s Public Administration (Coordinación Ejecutiva de la Administración Pública del Estado de Nuevo León) has designed Facebook postings and posters explaining the content of the Ethics Code.

While Nuevo León has made significant efforts to raise awareness amongst its public officials, further measures could be considered, given the risks associated with the positions of certain public officials and the nature of their organisations. Nuevo León could consider starting to use these activities as an opportunity to understand the challenges faced by these organisations and to encourage public officials to discuss and share their views.

In addition to these public information initiatives, the Office of the Comptroller has also signed an agreement with the SFP, the “Agreement to co-ordinate the execution of a co-ordination special programme identified as strengthening the state system of control and the evaluation of the public management and co-operation on transparency and fighting corruption” (Acuerdo de coordinación para la realización de un Programa de coordinación especial denominado “Fortalecimiento del sistema estatal de control y evaluación de la gestión pública y colaboración en materia de transparencia y combate a la corrupción”). This agreement sets out two main objectives for fighting corruption:

  • professionalise public officials overseeing public sector activities, assessing and modernising training programmes, projects and actions executed with federal resources, to ensure induction, enhancement and strengthening of ethics principles, vocation and quality in the public service;

  • establish key objective indicators to determine progress and identify effective action to combat corruption in the public administration, engaging organisations, professional institutions and civil society organisations in evaluating the effectiveness of the measures and actions to fight corruption.

To achieve the first objective, a three-stage strategy was set up to raise the public officials’ awareness of the integrity framework, to reinforce their knowledge and help implementation throughout the central administration.

The goal of the first stage of this strategy (sensibilización) was to train 500 public officials in the 83 government entities in Nuevo León. These officials were identified as “Agents of Change” (instructors), whose chief responsibility was to replicate what they learned in the training sessions on “The Culture of Legality and Fighting Corruption”. Their task is to train public officials in their organisations in a half-day workshop. From October 2016 to December 2017, they have already trained 13 000 of the 40 000 public officials in 35 government entities. Nuevo León could bear in mind that ethics training should encourage public officials to raise ethics questions, and for managers to see this as an integral part of their day-to-day work (Gilman, 2005[15]). Such ethics training needs to be tailored to individual public organisations, or a target group of officials. It should be interactive, be led by management, address legal requirements/rules and values; be based on real scenarios related to the activities of the institution or group of public officials and be relevant for the public organisation or group of officials to which they are addressed.

While it appears that Nuevo Leon has integrated several of these features in the training programme for the “Agents of Change” initiative, it could be beneficial to revise the strategy to focus on equipping these public officials with the ability to think things through from an ethical perspective and apply integrity rules in their daily work. To ensure real change in behaviour, the ethics training must encourage public officials to become partners in creating an integrity culture throughout government. Studies have shown that ethics training cannot be considered a one-time exercise. Such training needs to be repeated, since people forget what they have learned, circumstances may change, responsibilities can increase or change and regulations may be amended or new ones could be enacted. For these reasons, the most rigorous ethics regimes embarked on a strategy that emphasises regular training exposure (Gilman, 2005[15]) of public officials. Canada, for example, has even instituted continuous training sessions of its public officials, from when they are hired until they leave their posts (Box ‎3.10).

Box ‎3.10. Canada’s ‘integrity induction’ training for public servants

The Government of Canada conducts integrity training for public sector employees at the Canada School of Public Service. The Treasury Board Secretariat works closely with the institution to develop employee training on values and ethics. The orientation course for public servants on values and ethics, part of the mandatory curriculum for new employees, was recently updated. The course is also used by federal departments as a refresher for existing employees, to help them understand their responsibilities under the Values and Ethics Code for the Public Sector. To ensure that it is accessible to all public servants, the course is available online.

The course focuses on familiarising public servants with the relevant acts and policies, such as the Values and Ethics Code for the Public Sector, the Public Servants Disclosure Protection Act and the Policy on Conflict of Interest and Post-Employment. The training includes five modules on ethical dilemmas, workplace well-being and harassment prevention. Public servants not only increase their awareness of the relevant policy and legislative frameworks but develop the skills to apply this knowledge as a foundation for their daily activities.

The course includes a dedicated module on the Values and Ethics Code for the Public Sector. This highlights the importance of understanding the core values of the federal public sector as a framework for effective decision making, legitimate governance and preserving public confidence in the integrity of the public sector. The module includes a section on duties and obligations, laying out in detail the responsibilities of employees, managers/supervisors, and deputy heads/chief executives. It also discusses the Duty of Loyalty to the Government of Canada, stating that there should be a balance between freedom of expression and objectiveness in fulfilling responsibilities, illustrated with an example from social media. The module ends with two questions intended to make sure participants have understood the purpose of the Values and Ethics Code for the Public Sector and the foundation for fulfilling one’s responsibilities in the public sector.

One innovative component of the integrity training course is the module on ethical dilemmas. It is intended to ensure familiarity with the Values and Ethics Code for the Public Sector and includes a range of tools to cultivate ethical decision making amongst public servants. The module also lays out the five core values for the Canadian public service: respect for democracy, respect for people, integrity, stewardship and excellence, to prompt public servants to think about how to apply these values in their daily duties. Key risk areas for unethical conduct, such as bribery, improper use of government property, conflict of interest and mismanagement of public funds are identified, explained in practical, easy to understand language. By posing questions on three different scenarios and asking participants to select competing public sector values, the module also encourages public servants to think about how conflicts between these values may be resolved.

Source: Treasury Board Secretariat, Canada.

The training strategy entered its second stage (profundización) in June 2017. A continuing education process was established after the conclusion of an agreement with the University of Monterrey (Universidad de Monterrey, or UDEM). This agreement seeks to update the content of the training courses to be offered by “Agents of Change” and to introduce and implement virtual mode (online) capacity-building sessions. This latter focus, however, more on managerial aspects such as efficiency in the public service and public officials’ learning process based on their style of learning, all of which are important features in building a strong integrity system in the public service.

The Office of the Comptroller could take advantage of the use of e-learning sessions to redesign its awareness-raising strategy and propose to the SEANL Co-ordination Committee that this feature be used as a new way of enhancing public officials’ ethical knowledge and to instil a culture of integrity in decision-making processes, as Canada does (see Box ‎3.10).

The last and third stage of the training strategy (aplicación) was started in February 2018. It consists of ensuring implementation of integrity rules in the day-to-day operation of government activities through pilot programmes. These train public officials to identify possible risk areas in their work environment that could entail corrupt acts, to propose deterrent actions and also to formulate indicators reflecting the impact of preventive and corrective actions. This last stage goes beyond the traditional objectives of integrity training initiatives in public sector organisations by the SFP at the federal level. As of June 2018, 5 000 public officials have been trained, and the aim is to reach 40 000 officials by June 2019. Starting in September 2018, 50 000 more teachers in the education sector are to be trained.

To reach all public organisations, including territorial municipalities, Nuevo León could initiate an awareness-raising campaign co-ordinated by the proposed Ethics Unit, the Integrity Contact Points (or persons), the SFP and the Executive Agency for the Co-ordination of the State’s Public Administration, intensifying its outreach activities to engage the private sector, civil society organisations and citizens. Awareness-raising campaigns could be supported with banners showing the principles and values of the new proposed Code and changes to the LRSPEMNL in a visible place at the entrance of government buildings. Other measures could include sending a reminder of each value per month on the intranet system. Officials could be surveyed for feedback on implementing the integrity policies, and practical tools could be introduced, such as workplace calendars with anti-corruption information, including the deadline for submission of asset declarations, reminders of principles to guide public officials’ behaviour, etc.

3.4.2. Nuevo León could consider improving the second and third stages of its awareness-raising and training strategy by drawing on the latest research in the behavioural sciences.

The third and final stage of Nuevo León’s strategy is to implement integrity rules and values in government. It includes pilot programmes to train officials in detecting risks of corruption, proposing actions to fight corruption and formulate indicators reflecting the impact of preventives and corrective action. However, these efforts may not sufficient to promote ethical behaviour and protect the integrity of their organisations.

The conventional approach toward fighting corruption is based on a traditional rational choice model, in which individuals maximise their interest in a decision-making process based on a cost-benefit analysis of alternatives, typically using a principal-agent-client approach and excluding psychological aspects (OECD, 2017[1]). However, studies suggest this is not always effective. Some research even questions whether the costs of controls and sanctions, training and other mechanisms outweigh the supposed benefits (Anechiarico and Jacobs, 1996[16]). In recent years, experimental evidence, both from the laboratory and in the field, has yielded a more comprehensive picture of human behaviour in the face of corrupt incentives and innovative and more effective approaches to integrity and anti-corruption have been developed (Serra and Wantchekon, 2012[17]); (Lambsdorff, 2012[18]); (Lambsdorff, 2015[19]); (Boehm, Isaza E and Villalba Díaz, 2015[20]). Some countries and international organisations, like the OECD, have incorporated behavioural science in their public policy approaches. Preventive measures could be more effective if they also consider less tangible factors such as expectations, social norms, communicating praise, sentiments and non-monetary incentives, in addition to sanctions, to prevent corrupt behaviour.

Nuevo León might consider incorporating into its integrity strategy insights from research in behavioural sciences and test measures in such areas as public procurement or regulatory activities. These could include addressing social dynamics in a specific directorate or office in one of the ministries or entities of the central administration, to observe whether integrity is understood in the selected group and how the group reacts to an undesirable behaviour. Leading by example is important in an organisation and such exercises could show how the example of other people behaving dishonestly can influence the behaviour of others.

Such experiments in Nuevo León should not only mention organisations with greater integrity challenges but highlight ethical success stories to encourage positive dynamics in the organisation. The “good” should be more visible than the “bad” (OECD, 2017[2]). Moreover, as in the second stage of its training strategy some managerial aspects and the impact on the integrity of public organisations will be introduced, Nuevo León could also consider implementing pilot programmes to improve the working environment. Experimental research shows that creating environments that are clean and bright can, at least to some extent, inhibit corrupt behaviour, since they increase prosocial behaviour (Liljenquist, et al, 2010[21])

Nuevo León could also implement other initiatives to communicate integrity rules in its public organisations. So-called “moral reminders” could be built into key decision-making processes, reminding public servants of the correct behaviour in a specific context. It has been observed that small reminders of appropriate behaviour have a measurable impact on the probability of cheating behaviour ( (Ariely, 2012[22]), Box ‎3.11 and Box ‎3.12). For example, just before procurement officials or human resource managers take critical decisions, a procedure asking them to agree to sign a declaration reading: “I will take the following decision according to the highest professional and ethical standards” can implicitly link an official’s name to an ethical conduct (OECD, 2017[3]).

Box ‎3.11. Ethical reminders

Behavioural research shows that more ethical choices can be triggered by reminding people of moral norms. This might be an inconspicuous message, such as “Thank you for your honesty”. Contextual clues in the immediate situation function as references to an underlying norm (cf. Mazar and Ariely, 2006). Such a moral appeal has in some cases been shown to be even more effective than a reminder of the threat of a punishment. In field experiments, subjects paid a higher price for a newspaper (Pruckner and Sausgruber, 2013) and were more likely to pay back a debt (Bursztyn et al., 2016) when exposed to a moral reminder.

These findings correspond to the understanding that most people view themselves as moral individuals (Aquino and Reed, 2002). When they are reminded of moral standards, they adjust their actions accordingly, to reduce the dissonance between self-concept and behaviour. Many small acts of cheating are in fact also acts of self-cheating. Reducing such behaviour can be accomplished not by an increase in external punishment, but by increasing the salience of intrinsic morality.

Source: (Aquino and Reed, 2002[23]); (Bursztyn et al., 2016[24]); (Mazar and Ariely, 2006[25]); (Pruckner and Sausgruber, 2013[26]).

Box ‎3.12. How to measure cheating

Cheating can be measured through experimental designs (e.g. Ariely, 2012, or Fischbacher and Föllmi-Heusi, 2012). Before implementing or reforming innovative integrity policies aimed to reduce dishonest behaviour, a country could apply such experimental designs to measure the “cheating baseline” in an organisation or group.

On the one hand, the experiments could inform the country if there are areas where cheating is more common than in others, and consequently focus policies on these areas. On the other hand, the baseline would offer a concrete indicator measuring whether the piloted policies had the desired impact before considering an up-scaling.

Source: (Ariely, 2012[22]); (Fischbacher, U. and F. Föllmi-Heusi, 2012[27]).

Finally, to pilot, evaluate and fine-tune such mechanisms, it is recommended to use rigorous design and impact evaluation that follows a procedure carefully designed from the beginning, providing guidance for the random assignment and identification of adequate indicators as needed. These impact evaluations need not be expensive and can be implemented easily. Nuevo León could consider the work of the UK Behavioural Insights Team (Box ‎3.13), which outlines the steps required to set out randomised controlled trials.

Box ‎3.13. The Behavioural Insights Team Methodology for randomised controlled trials

Randomised Controlled Trials (RCTs), now widely used in medicine, international development and internet-based businesses, should be used much more extensively in public policy to enable policy makers to test which interventions are most effective. According to the UK Behavioural Insight Team methodology, nine steps are required to understand better which policies work and to improve policy interventions to reflect what organisations have learnt.

These nine steps are:

Step 1: Identify two or more policy interventions to compare.

Step 2: Define the outcome the policy is intended to influence.

Step 3: Decide on the randomisation unit.

Step 4: Determine how many units are required for robust results.

Step 5: Assign each unit to one of the policy interventions using a robust random method.

Step 6: Introduce the policy interventions to the assigned groups.

Step 7: Measure the results and determine the impact of the policy interventions.

Step 8: Adapt the policy intervention to reflect the findings.

Step 9: Return to Step 1.

Many of these steps will be familiar to anyone putting in place a well-designed policy evaluation – for example, deciding in advance the outcome that we are seeking to achieve. Others are less familiar – for example, randomly allocating the intervention to control or intervention groups.

Behavioural Insight Methodology considers that the “Test, learn, adapt” approach has the potential to be used in almost all aspects of public policy. According to this methodology, testing an intervention means ensuring that you have put in place robust measures that enable you to evaluate the effectiveness or otherwise of the intervention. Learning is about analysing the outcome of the intervention, so that you can identify what works and whether the effect is sufficient to offer good value for money.

Finally, adapting means using these results to modify the intervention (if necessary), so that we are continually refining the way in which the policy is designed and implemented.

Source: (Behavioural Insights Team, 2013[28]).

3.5. Building capacity to promote integrity in public entities and organisations

3.5.1. Nuevo León could consider strengthening the recruitment process and human resource management practices to promote integrity in its public service.

The behaviour of a public organisation’s human resources can change directly or indirectly based on the public ethics and management of conflict of interests policies adopted. Indeed, human resources policies could help or prevent promoting integrity in the public administration depending on whether there is loyalty to the public interest rather than to the patron or the party in government, contract security, a culture of performance orientation, good rewards or salaries, guidance and a tone from the top that allows for an open organisational culture.

In Nuevo León, the Law for the Civil Service of Nuevo León (Ley del Servicio Civil del Estado de Nuevo León) of 1948, and a Decree of 2007 adopting the Statute to professionalise the public service in Nuevo León (Decreto que establece el Estatuto de profesionalización para el servicio público del Estado de Nuevo León), tried unsuccessfully to professionalise the public service by instituting merit-based management of its workforce. This legislative framework, which was not fully implemented, classified personnel working in the public service of the State into two categories: unionised affiliation (de base) and free appointment (de confianza). Unionised affiliation was usually reserved for administrative and technical personnel and involved a significant level of stability, but interviews with public officials suggest that this category of personnel was appointed by former governments even in the case of the highest-ranking positions.

The new government faced a challenging situation after its election, as it inherited a budgetary deficit and an outdated and bloated public administration with personnel without the skills to perform their functions with efficiency and integrity. In addition, the government was composed of many entities that had just been merged or whose functions had been assumed by other entities. In this context, the new government recruited new personnel, using the free appointment mechanism to fill managerial positions. The selected candidates for hiring or promotion are sent to the Ministry of Administration which administers psychological tests using a web-based evaluation system known as AMITAI, to measure the candidate’s level of honesty, and a psychometric test which consists of selections made by the candidate to detect any risk of potential lack of ethics or honesty (Box ‎3.14).

Box ‎3.14. The AMITAI Integrity Test that Nuevo León uses to recruit candidates for public service positions

AMITAI (HRD Global Solutions, Ltd.) is a business specialised in developing a web-based evaluation integrity test. It is designed to be the first step in the screening process, prior to a more costly background investigation. The tool is qualified by its clients as a powerful aid to hiring decisions when used with other screening and selection methods; résumés, reference checks, interviews, etc. They have set standards for recruitment in the private sector since 2000, distributed its software from Canada to Argentina and administered more than 2 million tests. AMITAI offers its clients a test lasting an average of 20 minutes, depending on the dimensions to be assessed for a particular position, which is adapted to the candidates based on their ability to read and understand the questions.

AMITAI is based on solid psychological theory and statistical validation, which makes it an excellent tool for personnel screening. It is a tool to reduce employee theft and misbehaviour, as well as turnover, to prevent negligent hiring suits, reduce terminations for cause and related costs, sick leaves and workers’ compensation losses. In general, it is conceived as an aid to improve the overall work environment. It differs from polygraph testing and other similar investigatory techniques or tools of potential behaviour that involve lengthy, expensive processes and are extremely subjective.

Nuevo León’s former government signed an agreement with AMITAI, and as of late 2016, the current administration decided to use this test for hiring new staff.

Source: Based on the information available at http://www.amitai.com/en/.

Under current human resources policies in Nuevo León, selected candidates are obliged to submit to the Ministry of Administration’s Human Resources Office (Dirección de Recursos Humanos) a letter confirming that they have never been sanctioned or disqualified and a certificate proving that they do not have criminal records. They must also sign a declaration confirming that they will adhere to the Ethics Code. Hiring somebody who has been disqualified is subject to disciplinary sanction under the Responsibility Law. For senior positions in the Cabinet, appointments are made by the head of the executive branch and must comply with the specific requirement set out in the ad hoc legislation or in the Constitution. After their recruitment, all public officials receive an induction training offered by the Professionalisation Institute (Instituto de Profesionalisación).

Nuevo León is making efforts to develop a recruitment process selecting candidates who will adhere to its new ethics standards. However, it is still facing challenges in properly guaranteeing equal opportunities for access to employment and ensuring that those hired are loyal not to the person who hired them but to the organisation where they are to work. Public organisations in Nuevo León require professional and qualified people with a deep commitment to public service to disseminate core public values and ensure good governance.

The AMITAI is a novel mechanism for screening candidates for public sector posts, but Nuevo León could add filters to check potential candidates’ references and criminal/civil records and to ensure they understand and adhere to ethical principles and values, as Australia does (Box ‎3.15).

Box ‎3.15. Australia’s recruitment processes to ensure the integrity of public servants

Filters can be built into to a recruitment process to ensure that applicants abide by an organisation’s ethical requirements. In Australia, one agency analysed disciplinary issues amongst new recruits after 12 months on the job, and identified the need to better manage indicators of integrity earlier in the selection process.

As a result, interventions were instituted at important stages:

  • A question and answer survey was included as part of the general information for potential applicants. It asked questions about how people felt about certain working conditions and interactions. Based on an indicative score, potential applicants were encouraged to proceed to the next stage or encouraged to discuss the role with people who knew them well before proceeding to the next stage.

  • As part of the online application, candidates were asked targeted integrity questions about their background and experience, on such issues as authority, diverse cultures, financial management, etc. This provided base data for comparative purposes.

  • Successful applicants in the technical assessment phase were required to answer the integrity questions again. Experts were asked to identify discrepancies or anomalies between the data sets and followed up on them with applicants. The delay between administering the questions increased the validity of the data.

  • Only applicants who passed both the technical and the integrity phases successfully were invited to face-to-face interviews, which included a practical role play.

The outcome was a notable decrease in both disciplinary issues and increased retention rates for new recruits.

Source: Input provided by the Australian Merit Commissioner, June 2016.

Nuevo León could also consider drafting a new Public Service Law to build the required capacity for personnel to work in its various organisations. This could help ensure that well-qualified, professional candidates committed to working in the public interest are hired. This proposed law could help implement the Strategic Plan for Nuevo León 2015-2030, which describes the seven pillars of a talented management of human resources in the state, and could ensure the implementation of the merit-based principle, one of the core public service values provided for in Article 5 of the Nuevo León Anti-corruption System Law. This legislative reform could be accompanied by a review of responsibilities and salaries, particularly of those who occupy sensitive positions. This review would include those whose mandate is to mainstream integrity rules in public organisations, investigating potential breaches and punishing violations of public integrity rules. Public officials working on such matters should have the expertise to carry out the mandate and duties associated with integrity initiatives, with excellent job conditions such as job security and salaries commensurate with the responsibility of their work. International experience suggests they should also be shielded from undue political interference in exercising their functions, to ensure continuity, coherence and the consistency and objectivity of decisions taken.

This proposed law could also be accompanied by other policies (see Table ‎3.5) to integrate specific integrity measures in HRM. It is worth noting that HRM policies are unlikely to be effective if an administration is highly politicised and public servants are primarily loyal to the patron or the party rather than the public interest. Other impediments include a low culture of performance orientation, poor rewards and salaries, a low level of contract security, a lack of training and professionalism, high staff turnover, and a lack of guidance when conflict of interest or ethical problems arise.

Table ‎3.5. Mainstreaming integrity in human resources management

HRM practices

Mainstreaming integrity

Human resources planning

Assessing integrity risks of different positions and planning accordingly

Entry

Background checks, ethical tests, managing potential conflicts of interest arising from previous employment (“the revolving door”); developing job descriptions with ethical considerations in mind

Professional development, training and skills certification

Customised training on integrity policies

Performance evaluation

For managers: assessing their management of employees’ conflict of interest or ethical dilemmas

For employees: assessing their adherence to and compliance with integrity policies

Severance

Monitoring potential conflicts of interest arising out of employees’ next post (e.g. the revolving door).

Source: (OECD, 2017[3]).

Finally, to enhance integrity in its public organisations, Nuevo León could designate the Ministry of Administration to coordinate the implementation of these policies and practices across the government.

3.5.2. Nuevo León could consider establishing a specific policy for recruiting senior officials and middle managers.

In adopting its recruitment policy, Nuevo León could also benefit from a new mechanism for hiring senior officials and middle managers committed to upholding integrity in their organisations. Nuevo León needs to recognise the positive impact these officials have in the performance, motivation and satisfaction of their teams (Orazi, Turrini and Valotti, 2013[29]). Establishing a recruitment policy for these officials should be made a priority and the ethics component in the assessment of their candidacy should be included, given that they have a strong influence on organisational culture and values.

International experience confirms that senior civil officials should be equipped to develop and support their teams to achieve their organisational mission and objectives (Van Wart, 2013[30]). To succeed, integrity strategies require not only tools but leadership qualities, in a context of growing complexity and new governance challenges. These managers should also have a sound understanding of how to manage conflicts of interest and ethics in a work environment (see Figure ‎3.5), to mainstream integrity policies and practices.

Figure ‎3.5. Competencies prioritised in the recruitment and development of senior managers in the public service in OECD countries
picture

Source: (OECD, 2016[31]).

Middle managers in Nuevo León receive in-person training to review each of the seven principles of the Ethics Code and discuss exemplary behaviour and positive results in selected ministries. E-mails are also sent to this category of public officials, so they can internalise the principles and values embodied in the Ethics Code. Middle managers and supervisors are also required to behave according to the pre-identified conduct related to the competencies they must have to occupy the position and supervise their teams. This behaviour is assessed in the performance evaluation of the members of their teams.

Although Nuevo León’s policies and practices are aligned with the HRM practices detailed in Table ‎3.5, they could be improved. They do not mention that recruitment of these officials is based on the analysis of the integrity risks related to their position or their previous employment, as there are no pre-employment rules in place, on their experience dealing with potential conflicts of interest that may arise in their work environment. As currently structured, their performance evaluations do not seem to refer to the appropriate management of conflicts of interest and ethical dilemmas of the public officials under their supervision, even though they are jointly liable with their subordinates in cases of corruption.

3.5.3. Nuevo León could leverage its current model to professionalise its workforce to ensure that managers and internal comptrollers have the skills to promote a culture of integrity.

Nuevo León’s training model for professionalising its public officials and instilling a culture of integrity focuses on acquiring four competencies, related to the culture of legality, leadership for services, result-oriented skills and innovation for transformation. This targets general and specific behaviour officials should abide by, depending on their position in the public administration and the level of responsibility associated with their position (Box ‎3.16).

Box ‎3.16. Classification of positions and competencies in Nuevo León’s public service to instil a culture of integrity

To professionalise and develop specific training for public officials, and instil a culture of integrity in its public sector, Nuevo León has designed a strategy for training public servants. Public servants are sorted into three groups by position and level of authority.

picture

Each of these groups is to be trained in four competencies: culture of legality, leadership for services, result-oriented skills and innovation for transformation. The content of the training is determined by the level of the position the public servant occupies. The training strategy to ensure the full understanding of the ethics rules set out in the Ethics Code is based on the group of public servants and officials.

Example of a training strategy on the Ethics Code by group of public servants:

Level A: A principle in the Ethics Code is sent monthly by e-mail to reinforce the training received and the expected behaviour in the given ministry, after which an evaluation is conducted.

Level B: In-person training, where each public servant reviews each principle of the code on a monthly basis

Level C: In-person training

Source: Information provided by Nuevo León in questionnaires and during interviews.

The main strength of this training model is that it is tailored to the positions, duties and functions of public officials. This ensures both that public officials occupying senior positions are held accountable for their behaviour and should help uphold integrity in the public sector, and that lower-ranking public officials have a common understanding of the integrity rules. Nuevo León needs, however, to develop more specific training in such issues as risk management, to give public servants the tools to identify potential risks of corruption or integrity breaches in their work environment (see Chapter 6). Specific training is also required for those dealing with integrity issues, so they have the skills to detect, manage and resolve ethical dilemmas and conflicts of interest that arise in their work, as well as specific knowledge to provide clarification to those in charge of investigating integrity breaches.

This training and continuing education, and an effective performance evaluation mechanism, can help orient the organisational culture in the public sector to uphold public officials’ standards of conduct and instil a culture of integrity.

3.5.4. Nuevo León could build its performance evaluation programme and include ethics indicators.

Regular performance evaluations carried out between public officials and their managers offer an opportunity to mainstream integrity policies. A culture of integrity requires not only setting the tone at the top but officials committed to advancing the public interest as they exercise their duties. Performance evaluations can be used as an important anchor for transmitting values and expectations in discussing past objectives and future goals (OECD, 2017[3]). Meetings between managers and their personnel can raise ethics issues even before assessing past performance, determining future goals and discussing distribution of the workload in their teams. This opportunity can be transformed into something more than a formal exercise, opening channels of communication amongst senior officials, managers and employees in the public service, as in Canada (Box ‎3.17).

Box ‎3.17. Canada’s performance management as a tool for productivity and performance in the Public Service

In 2015, the Treasury Board Secretariat of Canada issued a new Performance Management strategy, to improve the work performance and productivity of individuals, teams and organisations. The Canadian public sector was responding to budgetary and fiscal pressures, increasing demands for public services, and the need for more transparency in reporting on the use of government funds. Under the guidelines issued, its proper implementation can help build and maintain trust between employer and employee, and create conditions to allow all employees to maximise their contributions and provide world-class service to Canadians.

This Performance Management strategy is the responsibility of deputy heads, or their delegates, who are to ensure its consistent, equitable and rigorous implementation in the core public administration. The focal point of performance management is the performance agreement, which spells out the work expectations for each employee.

The annual cycle of performance management:

picture

Performance management is an ongoing process that involves planning, developing, coaching, providing feedback and evaluating employee performance. Some performance management requirements are time-specific:

  • at the beginning of the fiscal year, when performance expectations are established;

  • at midyear, when performance is reviewed;

  • by year’s end, when performance is assessed.

Other requirements are ongoing and apply to activities throughout the year and for employees on probation. These include review panels.

Source: Treasury Board Secretariat, “Performance management programme for employees”, available at https://www.canada.ca/en/treasury-board-secretariat/services/performance-talent-management/performance-management-program-employees.html.

Performance assessment can also present an opportunity for discussion between managers and their employees on conflicts of interest and ethical dilemmas. They can be integrated in the assessment of employees’ skills or qualifications, and used to help develop a professional plan for public servants.

Nuevo León is building a performance management programme that, if properly structured, could help instil a culture of integrity in its public organisations. Managers and personnel can be encouraged to discuss openly how to exercise judgement when confronted with situations that are brought to their attention that could constitute a conflict of interest, how to resolve them and how to learn from past experiences. As an initial exercise, Nuevo León built a training model to ensure that the four competencies oriented to ethical behaviour are clearly defined; that all public officials have the same knowledge and that they are aware of the standards of conduct expected of them as part of the public administration (see Box ‎3.18). This tool could be used to build a strong performance assessment programme linking employees’ skills and competencies with their organisations’ strategic priorities, the work required to achieve them and the way employees should behave within the ethics framework.

Box ‎3.18. How training programmes are used in Nuevo León to assess the ethical performance of public officials

The Directorate of Human Resources of the Ministry of Administration (Dirección de Recursos Humanos de la Secretaría de Administración) is working to build a performance assessment programme to evaluate the expected skills and behaviour for every Nuevo León public official. This work is ongoing, and no specific competency profile has been developed to describe the set of skills particular to a position, job, occupational group or functional community. It has also not been linked directly to the overall strategic priorities and the work required to achieve them.

For its performance assessment programme, Nuevo León has drafted a strategic plan to assess public officials’ knowledge of ethics. The goal was to obtain a view of the discrepancy between how they act and what they were expected to do. A specific format has been elaborated for each of the four ethical behaviours expected. This evaluation form will be used to evaluate the conduct expected of all public officials, without reference to the position they occupy and specific conduct required of a particular level or position. The current format assessing the level of knowledge of the legal framework and institutional culture (culture of legality) requires Level A public officials as a general behaviour that they report violations of the legal framework and the organisation culture. However, this requirement is not mentioned for the other two categories of officials.

Based on this assessment, the Ministry of Administration will build an appropriate training programme for each public official. Nuevo León has included a comprehensive evaluation of both general and specific conduct. This consists of a self-assessment by the public servant, the assessment of their superiors’ behaviour and/or colleagues at their level. An example of the skills, behaviour assessed and indicators used for the assessment is described below for a Level A public official.

Competency: Culture of legality

Behaviour assessed: Capacity to understand, comply with and promote the legal framework and institutional culture of the state, to create trust between public officials and citizens.

Level A

Always

Frequently

Occasionally

Never

GENERAL BEHAVIOUR

Say no to corruption: Behaves in accordance with the legal framework for the public service and knows the procedure for reporting misconduct.

Ethics: Behaves in accordance with the organisational culture of the state government system.

Report: Know the whistle-blower procedure and how to apply its rules.

Openness: He or she is willing to receive feedback and / or accept consequences in the event of errors and / or negligence committed in relation to the legal framework and organizational culture, and make corrections in a timely manner.

TOTAL

SPECIFIC BEHAVIOUR

Generates change: Encourages and/or recognises the legal framework and institutional culture.

Agent of change: Motivates and sets an example for complying with the legal framework and institutional culture.

Feedback: Applies procedure related to the official’s authority to sanction and/or correct employees in a timely fashion for actions that violate the legal framework and institutional culture.

TOTAL

ASSESSMENT

GENERAL

SPECIFIC

AVERAGE

Source: Author, based on information provided by the Office of the Comptroller-General and Governmental Transparency.

Nuevo León could build on this performance evaluation, establishing key objective indicators, enumerating them and linking the assessment to the mission and goals of its organisations. It could also align organisations with their environment and the whole government objectives, as is done in Canada’s performance assessment of public officials.

To instil a culture of integrity in its public organisations, Nuevo León might consider using the core public sector values set out in the Ethics Code as a foundation for leadership skills required of managers and senior managers in managing their teams. Properly used, these performance evaluations are invaluable tools for transmitting values and expectations, evaluating past and future objectives, identifying talented employees, detecting issues that may affect the organisational culture and are helpful for upholding standards of conduct in the workplace. The key role of the performance evaluations is only possible with managers who are well trained not only in how to deal with their teams but on how to resolve any ethical dilemmas and conflicts of interest that may arise.

Proposals for action

In October 2016, Nuevo León embarked on an ambitious campaign to raise public awareness of integrity, consisting of three phases (sensibilización, profundización and aplicación). It aims to raise awareness among all public officials of the Ethics Code and Nuevo León’s integrity framework, advancing their knowledge and helping to carry out the strategy in the central administration. Progress has been made through the adoption of new instruments and engaging new actors. However, more will have to be done to instil a culture of integrity throughout the government. The following actions might be considered:

Strengthen the normative framework for public ethics and conflicts of interest

  • In the medium term, the SEANL Co-ordination Committee could review the Ethics Code, allowing for wide stakeholder participation. The aim should be to adopt a single coherent regulation that addresses public ethics and conflicts of interest, and offers standards and guidance to public officials. After reviewing the Ethics Code, the Co-ordination Committee could ensure that the core ethics values are consistent with public sector values outlined in the normative framework.

  • Develop public officials’ ethical reasoning skills for resolving ethical dilemmas and conflicts of interest by mainstreaming public integrity measures in human resources management.

  • To ensure accountability, link the values and principles included in the amended Ethics Code with appropriate sanctions. A brief explanatory definition of conflict of interest could be added, making a distinction between real, apparent and potential conflicts of interest and imposing appropriate sanctions in case of any infractions.

  • Suggest that the Office of the Comptroller conduct surveys of public servants to help implement the integrity framework and ascertain the types of scenarios and ethical dilemmas that tend to recur.

  • Identify areas at highest risk in the Government of the State of Nuevo León, to draft a risk-based guidance manual on ethics and conflicts of interest for officials who participate in high-risk activities, such as public procurement.

  • Encourage each ministry to develop organisational codes, bearing in mind the specific context, responsibilities as well as the typical ethical dilemmas and conflicts of interest they face.

  • Create a mechanism for publicly disclosing and communicating the results of the disciplinary system to lend credibility to the integrity system as a whole. This will facilitate continuous learning by public officials and help prevent corrupt behaviour or breaches of integrity. It could also help promote understanding of prohibited practices and conduct among public officials.

  • Analyse trends in the number of administrative sanctions imposed and criminal prosecutions, to identify any challenges in implementing integrity policies.

Ensuring the appropriate use of tax, assets and interest declarations to strengthen the effective implementation of integrity policies

  • Create a comprehensive, dynamic, updated and harmonised information management system for public servants’ declarations (tax, assets and interest declarations). Management of integrity information and monitoring public officials’ wealth should aim to detect irregularities in acquisition or divestment of assets and resolve actual, perceived and potential conflicts of interest.

  • Reduce the number of officials required to submit declarations required, following a risk-based approach, and make sure that those in positions of particular risk comply with this obligation by the appropriate deadlines.

  • Make available and grant access to information submitted by senior officials in their asset declarations, in accordance with access to information regulations.

  • Consider giving the responsibility to manage asset declarations and the two additional declarations to the proposed Ethics Unit, which would require amendment to the Organic Law of the Public Administration in order to transfer this responsibility from the Legal Directorate to the new unit.

  • In the medium term, additional staff could join the Ethics Unit to manage the integrity framework, monitor public officials’ wealth and detect irregularities in the acquisition or divestment of assets or in managing conflicts of interest.

  • Redesign the communication strategy for integrity policies, particularly in relation to the obligations on tax, assets and interest declarations, to ensure that officials are aware of their obligations and understand that asset and interest declarations are tools that can help manage conflicts of interest when they arise.

  • Design a verification and audit strategy with different checks on asset and interest declarations, allowing automatic validation of submitted declarations, linking with other databases (i.e. property registry, tax, etc.), with automatic notification of red flags that identify errors, missing information, and changes in assets, income and personal situation.

  • Adopt a risk-based strategy with the support of the SFP to identify high-risk areas such as gifts and post-public employment.

Scaling-up initiatives to create a culture of integrity in the public administration and promote change in behaviour

  • Evaluate the existing integrity awareness-raising strategy to identify weaknesses and opportunity areas in its three stages.

  • In light of the results of the evaluation, review the existing integrity awareness-raising strategy by:

    • considering the specificities of the individual public organisations (missions, objectives, strategic plans, etc.) and the risks associated with their activities;

    • improving the second and third stages of the strategy by considering insights from behavioural science and scaling up effective practices;

    • designing ethics training targeted to specific groups of officials;

    • preparing real-world scenarios of conflicts of interest and ethical dilemmas, so that public officials can discuss them openly and freely;

    • co-ordinating a communications strategy for all public sector stakeholders, citizens and the private sector;

  • Include ethical or moral reminders to reduce corrupt behaviour in the work environment, especially when public officials are part of a decision-making process.

  • Develop a set of indicators to monitor awareness-raising initiatives, adapting them to new challenges and redefining the objectives where necessary.

  • make sure that awareness-raising campaigns reach all public organisations and municipalities, with the participation and co-ordination of the proposed Ethics Unit (Chapter 1), the Integrity Contact Points (Chapter 1), the Ministry of Administration and the Executive Agency for the Co-ordination of the State’s Public Administration.

  • Organise and test projects based on insights from the behavioural sciences, to observe integrity dynamics in a selected office. The aim should be to better understand how the group reacts to undesirable ethical behaviour and to highlight ethical success stories.

Building capacity to promote integrity in public entities and organisations

  • Propose adopting a new, coherent and integrated Public Service Law that includes the updated policies established in the Statute to Professionalise the Public Service in Nuevo León. The revised Law could also provide for recruitment policies based on the analysis of the integrity risks related to the position, ethical skills, and pre- and post-employment rules, to ensure that those hired are loyal to the organisation and respectful of the public interest.

  • Use additional integrity filters in recruitment policies and procedures, including an ethics component in the assessment of potential public servants, linking competencies with the strategic priorities of public sector organisations and with ethical behaviour. Additional integrity measures to implement in the recruitment process, especially for senior officials and middle managers, could include checking references, analysing criminal records, and conducting interactive hiring interviews testing adherence to ethical principles and values.

  • Carry out capacity-building training for senior officials and middle managers on risk management, to give them the tools to identify potential risks of corruption or integrity breaches in their work environment and organisations.

  • Develop a performance evaluation programme for middle and senior officials by establishing objective ethics indicators. This programme could also link the assessment to the mission and organisational objectives, as well as to whether conflicts of interest and ethical dilemmas are properly managed.

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