Terms of Reference

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Terms of Reference

Post by michelmanen »

I am now working on drafting the Terms of Reference for this Commission... As Jamie Pallisades said here when he was attempting to do so, more than 6 years ago, this is a task to be approached "with much humility".

I post here a copy of Jamie's Draft Bill and Pat's reply to it, which can both inform us in our task, as they articulate some of the issues which have been considered to be included under this topic in CDS on previous occasions when draft legislation on this matter was attempted.

Jamie's Conflict of Interests Bill

Postby Patroklus Murakami » Sat May 03, 2008 1:10 am
Jamie posted the following bill in 'RA Discussion'. I'm reposting it here so we can discuss it more widely.
1. No person who is holding a position as a member or officer of a branch of CDS government may simultaneously hold a position as a member or officer in a different branch of CDS government.

2. All persons holding a position as a member or officer of a branch of CDS government must make a public 'declaration of interest' statement to the CDS Forums (or appropriate substititute medium), if they act to approve or reject any action, in their official government role, that they reasonably can conclude would benefit themselves uniquely, as opposed to the general case of benefits that accrue generally to all CDS citizens.
The CSDF is inclined to support this but there are couple of issues to consider. There is already text in the Constitution which covers the first point.
Article II, Section 5 on Chancellor Selection Process states "The Chancellor may not be elected to or serve on the Representative Assembly, nor serve on the Scientific Council. The Chancellor may hold a position in the Artisanal Collective but may not vote therein." In addition, Article V, Section 2 on Exclusivity states "Citizens may not serve simultaneously in the Representative and Philosophic branch." The SC has previously interpreted this latter point to mean that citizens may hold office in the RA and SC at the same time but may not vote in both branches i.e. if an SC member is elected to the RA (or an RA member selected to join the SC) they must give up one of their votes. If the RA wishes to change this I think you would need a constitutional amendment to make it clear that holding office in both branches is forbidden. You could do that by amending the Constitution to read "Citizens may not hold office simultaneously in more than one branch of the CDS Government (Executive, Representative or Philosophic branches)."

I think you also need to clarify what's meant by 'member or officer' if you wish to keep it in part 1. Does this only cover the positions with popular authority? I.e. the SC members, RA members and Chancellor? Or does this include civil service positions such as the PIO, Estate Owner and Treasurer? There are other passages in the Constitution and laws which regulate these positions so you would need to check that any new law does not conflict with these. The reference to 'member or officer' in part 2 is fine if it relates to everyone including civil servants. It's right that people should declare their interests when taking decisions they could personally benefit from. There's a forum thread where people can declare their interests. It's one I started almost two years ago now."
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Re: Terms of Reference

Post by michelmanen »

As part of the same, wider debate on conflcit of interests going on at the same time in CDS, a Bill was proposed by Beathan here: viewtopic.php?f=24&t=1827. It covered Term Limits and moblility between offices. Again, this bill was also unsuccessful, but the discussion illustrates the topics under consideration and wording used in draft bills presented.

Term Limits Redraft

Postby Beathan » Tue Apr 29, 2008 8:32 pm
Per amendments and debate in the RA:

Limitation of Terms Act

1. No citizen shall serve uninterrupted longer than two consecutive terms in any of the following offices: Member of the RA, Chancellorship, or Marshall of the Peace.

2. Members of the RA, SC, Chancellorship, or Marshalls of the Peace may not stand for another office enumerated in Paragraph 1 while sitting in one such office.

3. All terms referred in this Act, other than terms of the SC, shall run concurrently with the terms of the Representative Assembly.

4. This Act shall enter into force following the current term; however, the current term shall count towards term limits of government officials
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Re: Terms of Reference

Post by michelmanen »

I also repost here the Draft Working Paper I submitted for consideration at our first meeting, last week.

Conflicts of Interests Commission - Draft Working Paper #1

Postby michelmanen » Fri Sep 12, 2014 7:54 am
CDS Conflicts of Interests Commission
Draft Working Paper No. 1

1. Definition

Conflict of interest is a situation in which a public official has a private or other interest which is such as to influence, or appear to influence, the impartial and objective performance of his or her official duties.

2. Corruption

Conflict of interest is properly understood as a situation, not an action, and it is clear that a public official may find him or herself in a conflict of interest situation without actually behaving corruptly. The concept of conflict of interest does not refer to actual wrongdoing, but rather to the potential to engage in wrongdoing. Indeed, it is all but inevitable that a public official will face situations where the public interest s/he has been elected or appointed to serve will conflict with other interests to which s/he is subject.

Being in a conflict of interest situation itself is not the same thing as using one’s public office for private benefit. A public official who finds him or herself in one of the situations described above may or may not allow the interest that conflicts with the public interest wrongly affect his or her conduct.

3. Types

The types of interest that may come into conflict with the public interest are varied. The focus – and especially in conflict of interest laws - is usually upon personal interest, and is moreover usually understood as a personal financial interest. However, personal interests may be non-financial. The most obvious example of this is family interest – for example, the recruitment officer may have an interest in influencing hiring procedures to secure a position for his brother or cousin, without ever benefiting financially.

In addition to personal interests, there are also other interests to which an official may be subject which are not directly personal yet may come into conflict with the public interest. This is especially the case for elected officials. Members of parliament for example are or may be subject to the interests of their constituents and of their party, either of which may subject them to pressure to take decisions which are against the public interest. An obvious example is pressure to use their position for the electoral benefit of the political party of which they are a member.

It is not possible to simply prevent or prohibit all conflicts of interest.

4. Objectives

The objectives of conflict of interest regulation are therefore wider and in practice include the following:
• To prevent conflict of interest situations arising, to the extent that this is possible and practical.
• To establish rules that address conflict of interest situations where they do arise.
• To provide guidance to public officials and enable them to protect themselves more easily.

5. Mechanisms

The mechanisms to achieve these objectives are:
• prohibitions on holding certain functions or interests,
• duties to declare personal interests, and
• duties to be excluded from specific decision-making processes where a conflict of interest arises.

Codes of ethics/conduct are an essential mechanism due to the need for rules to be tailored to individual institutions. In addition, codes are more likely to encourage the internalisation of public service values – if they are formulated and approved in a consultative way.

6. Categories

The points made in previous sections apply to all three categories of officials :
• civil servants,
• members of the government, and
• elected officials.

The implications for regulation are different however for different types of official. It is important to stress the importance not only of distinguishing conflict of interest from corruption, but also of realising that different types of official need to be regulated differently.

7. Process

Conflict of interest regulation – and any other regulations of official ethics – may be imposed from the top or developed in consultation with the officials who are to be subject to the regulations. Experience and common sense suggest strongly that the latter approach is preferable.

In order to function effectively, codes of conduct and other ethical rules need to be owned and internalised by those who are subject to them. A top-down approach which simply imposes rules and enforces compliance may encourage an instrumental attitude to the rules themselves on the part of civil servants (“I will ignore or circumvent this regulation unless the risk of getting caught is too high”).

8. Privacy

For both civil servants and elected officials, a very important issue to be resolved is the extent to which declarations of interests should be public. While the benefits of transparency are clear, they need to be balanced against the right to privacy, which is a principle of value in its own right.

Public disclosure is important as a mechanism for detecting conflicts of interest. The inherent difficulties of enforcement mean that the role of the media and public in scrutinising declarations can be crucial. However, it is a good idea to split the information contained in declarations into a public and non-public parts.

9. Enforcement

Effective and fair enforcement is critical in cases where violations of conflict of interest regulations occur or such violations are alleged or suspected. The most important issue concerning enforcement in general is to ensure that sanctions are commensurate with the scale of the violation.

10. Guidelines

The main lessons/recommendations for regulating conflict of interest contained in this paper so far may be summarised as follows:

• It is vital to be realistic when designing regulations. Public officials (or persons close to them) will have external interests that can potentially come into conflict with the public interest they are appointed to pursue. This is the case especially for elected representatives. The aim of regulation should not therefore to be to prohibit any interest that might give rise to a conflict of interests.

• Regulations should be introduced in such a way that those who are subject to them – be they civil servants or elected officials – regard them as their own. Regulations that are internalised will require less monitoring and enforcement than those that are imposed from above.

• Reasonable prohibitions on external activities are important for civil servants. However, for elected officials the emphasis in regulation should be placed on duties to disclose personal interests, both as a condition of holding office and ad hoc where they are subject to an interest that may influence or appear to influence their conduct.

• Duties to declare interests – especially financial ones – are of central importance in tackling conflict of interest, and should be in place for all the categories of official discussed above. However, it is vital to define such duties in such a way that they focus on relevant interests and relevant officials, and to ensure that the procedure for declaration is user-friendly. Duties to declare interests should also be balanced fairly with the right to privacy.

• Regulations should also be designed to ensure that elected officials may not participate in matters in which they are subject to an obvious and specific conflict of interest, although it is very important to design the regulations such that MPs can perform their representative function.

• In order to implement conflict of interest regulations (and more broadly, a code of conduct and ethics rules in general) within the legislature it is advisable to establish a permanent official (commissioner) responsible for overseeing the register of members’ interests, providing advice and guidance, dealing with complaints and reporting to the relevant parliamentary committee or parliament.

• It is very important to take account of the pitfalls of implementation and enforcement in the civil service – in particular determining the right level of official to whom civil servants should report and be responsible, and ensuring that any central body responsible for oversight has sufficient capacity to do so.

Source: Sitting on the fence: Conflicts of interest and how to regulate them, by Quentin Reed, Governance and Anti-Corruption Consultant, U4 Anti-Corruption Resource Centre, 2008

http://www.cmi.no/publications/file/316 ... -fence.pdf

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