Text file: 3628.txt
author: capi
downvotes: 0
end consideration date: 2012-10-11
id: '3628'
number comments: 3
number views: 1960
proposal type: Competent authority response
response: "Response from the Ministry of Justice and Public Administration\nThe Ministry\
  \ of Justice and Public Administration hereby submits its response to Citizen's\
  \ Proposal No 3628: Contract work for civil servants. The citizen notes that full-time\
  \ civil servants in the public administration or in a state-owned company may perform\
  \ similar work in the morning as they do in the afternoon through a sole proprietorship\
  \ and proposes to terminate one of the two contracts.\nSince the proposal defines\
  \ very broadly the subjects to which the proposed regulation should apply, i.e.\
  \ 'regular employees of the public administration or a State-owned company', the\
  \ Ministry of Justice and Public Administration explains by way of introduction\
  \ that Article 2(2) of the Civil Servants Act (Official Journal of the Republic\
  \ of Slovenia, No 63/07 - Official Consolidated Text, No 65/08, No 69/08 - ZTFI-A\
  \ and No 69/08 - ZZavr-E; hereinafter: 'the CSA') provides that the public sector\
  \ consists of the following:\n State authorities and administrations of self-governing\
  \ local communities; public agencies, public funds, public institutions and public\
  \ economic institutions; other public law entities, if they are indirect users of\
  \ the State budget or the budget of a local community.\nPublic undertakings and\
  \ companies in which the State or a local authority has a majority share or a dominant\
  \ influence are not part of the public sector under the ZJU.\nWith regard to the\
  \ possible prohibition of additional activities, the provisions of the Labour Relations\
  \ Act (Official Gazette of the RS, No. 42/02, hereinafter referred to as 'the Civil\
  \ Service Code'), which, in Article 35, provides for the prohibition of harmful\
  \ conduct and stipulates that an employee is obliged to refrain from any conduct\
  \ which, in view of the nature of the work he performs for the employer, materially\
  \ or morally harms or is liable to harm the employer's business interests. The prohibition\
  \ of harmful conduct therefore applies both to the causing of material or moral\
  \ damage and to other conduct which harms or is likely to harm the employer's business\
  \ interests. It is therefore not necessary that the damage actually occurs. The\
  \ mere likelihood that an act may cause damage to the employer is sufficient. Furthermore,\
  \ Article 32 of the Labour Code expressly provides that the employee must comply\
  \ with the employer's requests and instructions in relation to the performance of\
  \ contractual and other obligations arising out of the employment relationship,\
  \ and the provisions of the Labour Code governing non-competition are particularly\
  \ relevant to the issue at hand. The non-competition clause means that the employee\
  \ may not, without the written consent of the employer, carry out work or enter\
  \ into transactions on his own or another person's behalf which fall within the\
  \ scope of the activity actually carried on by the employer and which might constitute\
  \ competition for the employer. The point of the non-compete prohibition is to protect\
  \ the employer's business interest, and the worker will therefore be allowed to\
  \ carry out such work if the employer consents in writing.\nAs regards the prohibition\
  \ of activities and the conflict of interest for both officials and officials in\
  \ post, Article 100 of the CEOS applies. The first paragraph of this Article provides\
  \ that an official may not carry out an activity if the activity is contrary to\
  \ the competition clause under the law governing employment relationships; if the\
  \ performance of the activity is likely to prejudice the impartial performance of\
  \ the work; if, in the course of the performance of the activity, the official is\
  \ likely to misuse information to which he or she has access in the course of the\
  \ performance of his or her duties and which is not in the public domain; and if\
  \ the pursuit of the activity is detrimental to the Authority's reputation. Article\
  \ 100(2) of the Staff Regulations lays down a duty to inform if an official engages\
  \ in an activity which he considers to be, or to be likely to be, contrary to the\
  \ first paragraph. The performance of such an activity shall be prohibited by a\
  \ decision of the Head of State, which shall be governed by the third paragraph.\
  \ The exceptions to the obligation to notify and to the restrictions are, in accordance\
  \ with Article 100(4) of the Staff Regulations, scientific and teaching work, work\
  \ in cultural, artistic, sporting, humanitarian and other similar associations and\
  \ organisations, work in the field of journalism and membership of or activity in\
  \ political parties. For officials in senior positions (Director-General, Secretary-General,\
  \ head of a constituent body, head of a government department, head of an administrative\
  \ unit or director of a municipal administration), Article 100(5) of the ZJU additionally\
  \ stipulates that they may not engage in gainful activities other than scientific,\
  \ research, teaching, artistic and journalistic work or cultural activities. The\
  \ sixth paragraph of the same provision further stipulates that legal persons in\
  \ which an official or his spouse, relative in the direct line or relative in the\
  \ collateral line up to the third knee has a shareholding of more than 20 % may\
  \ not deal with the authority in which the official is employed. In the above cases,\
  \ such involvement may be prohibited, but only for the civil servant in the official\
  \ position, and the civil sanction of nullity shall also be imposed on legal persons\
  \ in which the civil servant and the other persons listed in the abovementioned\
  \ provision of the law have more than a 20 % shareholding. The decision on the question\
  \ of the exercise of activities other than the performance of official duties or\
  \ the existence of a conflict of interest is a matter for the head of the authority,\
  \ since it concerns a decision on the rights and obligations of a public servant.\
  \ The Ministry of Justice and Public Administration explains to the applicant that\
  \ the assessment of the possible existence of a conflict of interest is not only\
  \ the responsibility of the line ministers (only if the civil servant is employed\
  \ by a ministry), but also of each head of a public administration body and local\
  \ authority separately, if the civil servant has an employment contract with that\
  \ body. The head of the authority must therefore assess in a specific case, on the\
  \ basis of the application of the public servant, whether there is a conflict of\
  \ interest or whether the official should be prohibited from carrying out the activity.\
  \ In making his decision, he must therefore take into account a number of circumstances\
  \ and facts which, as the head of the public authority or body governed by public\
  \ law in which the public servant is employed, he is in any event best acquainted\
  \ with.\nAs already explained above, a special restriction applies to officials\
  \ in their posts, as well as to inspectors pursuant to Article 15 of the Inspection\
  \ Act (Official Gazette of the RS, No 56/02 and 26/07), who may not carry out an\
  \ activity or work for another employer in the field in which they carry out inspection,\
  \ unless the work is scientific or teaching work.\nHowever, as the provision of\
  \ Article 100 of the ZJU applies only to civil servants in the public administration,\
  \ we would also like to draw attention to the provisions of the Integrity and Prevention\
  \ of Corruption Act (Official Journal of the RS, No. 69/2011-UPB2, hereinafter referred\
  \ to as ZIntPK-B), which, on the basis of the provision of Article 4 of this Act,\
  \ significantly broadened the circle of individuals who are bound by the provisions\
  \ on the mandatory avoidance of conflicts of interest. The public officials who\
  \ must be alert to any actual or potential conflict of interest and who must take\
  \ all possible measures to avoid it are officials, public servants, other public\
  \ officials, managers and members of management, direction and control bodies of\
  \ public sector entities. The concept of private interest, which is an essential\
  \ element of a conflict of interest, has also been extended under the provisions\
  \ of the ZIntPK-B to include non-pecuniary interest and personal contacts - thus,\
  \ a private interest of an official now means a pecuniary or non-pecuniary interest\
  \ for him, for members of his family and for other natural or legal persons with\
  \ whom he has or has had personal, business or political contacts. Conflicts of\
  \ interest, however, remain defined as circumstances in which an official's private\
  \ interest affects or appears to affect the impartial and objective performance\
  \ of his or her public duties. With regard to possible conflicts of interest, the\
  \ ZIntPKK provides in Article 38 of the Law on the Protection of the Public Interest\
  \ of Officials (which, according to Article 4(10) of this Law, also includes managers\
  \ and members of management, management and supervisory bodies of public sector\
  \ entities) that they may have a conflict of interest in their public duties. Article\
  \ 38 requires that if, upon taking up his or her office or during the performance\
  \ of his or her duties, he or she becomes aware of a conflict of interest or of\
  \ the possibility of a conflict of interest, he or she shall immediately inform\
  \ his or her superior in writing, or, if he or she does not have a superior, the\
  \ Commission for the Prevention of Corruption (the Commission). The superior or\
  \ the Commission must decide on the existence of a conflict of interest within 15\
  \ days and inform the official person thereof. Also, pursuant to Article 39 of the\
  \ CPC Act, if there is a likelihood that a conflict of interest has existed in the\
  \ official acts of an official, the Commission may, within two years of the official\
  \ acts, initiate a procedure to establish the actual existence of a conflict of\
  \ interest and its consequences.\nIn the light of the above clarifications, therefore,\
  \ if an official considers that a situation has arisen in which his personal interest\
  \ might interfere with the impartial and objective performance of his duties, he\
  \ will be required to inform his superior immediately and to act in accordance with\
  \ his superior's instructions. Similarly, the Ministry of Justice and Public Administration\
  \ suggests to the petitioner that if it detects a breach of the rules on the prevention\
  \ of conflicts of interest, it should inform the head of the body where the civil\
  \ servant is employed, who is responsible for the lawful, impartial and objective\
  \ performance of his/her duties within the body, and may also inform the Inspectorate\
  \ for Public Administration, the Labour Inspectorate or the Commission for the Prevention\
  \ of Corruption.\nWith regard to the citizens' proposal, which also partly concerns\
  \ the conclusion of contracts, the Ministry of Justice and Public Administration\
  \ would like to clarify that the Act on Balancing Public Finances (Official Journal\
  \ of the Republic of Slovenia, No 40/12, hereinafter ZUJF) was adopted this year\
  \ with the aim of reducing the use of budgetary resources. To this end, in order\
  \ to increase control over public spending in the public sector, the conclusion\
  \ of author and subcontracting contracts was temporarily prohibited, except in the\
  \ exceptional cases provided for in Article 184. Budget users may therefore not\
  \ conclude authoring and subcontracting agreements except on the basis of an expressly\
  \ laid down basis in specific legislation or where the authoring and subcontracting\
  \ agreement is concluded for:\n for the performance of professional training, professional\
  \ examinations and tests of knowledge carried out in organisational units set up\
  \ for that purpose, for the performance of scientific research work for the smooth\
  \ operation of public higher education and research institutions, for the performance\
  \ of special projects, provided that additional financial resources are made available\
  \ for these projects, for the performance of institution-building projects, financed\
  \ by the European Union or other foreign funds, for translation and interpretation\
  \ services in international protection proceedings and police proceedings involving\
  \ foreign nationals, for the performance of professional work in the field of arbitration,\
  \ for the performance of translation or interpretation services for the needs of\
  \ the Ministry responsible for foreign affairs, and for the implementation of bilateral\
  \ technical assistance programmes. \nHowever, budget users may also conclude other\
  \ authoring and subcontracting agreements on the basis of the consent provided for\
  \ in Article 186 of the MFFA. The purpose of the provision is to ensure accountability\
  \ for the use of public funds.\nWith regard to the citizen's suggestion to prepare\
  \ a review of all concluded contracts, we would like to clarify that the Government\
  \ of the Republic of Slovenia, in the framework of austerity measures, on the basis\
  \ of Decision No 41003-5/2012/5 of 29.2.2012, adopted the following decision. 2012,\
  \ ordered the heads of the direct budget users, in accordance with the principles\
  \ of efficient and economical management of budgetary resources, to immediately\
  \ proceed to the review of all contracts and agreements already concluded which\
  \ have financial implications for the State budget and other public funding coffers\
  \ and, if they identify practices which are not in line with these principles, to\
  \ immediately proceed to the procedures for termination of these contracts or to\
  \ the negotiations for the modification of the contractually agreed obligations.\n\
  In the light of the legal basis for the monitoring of contracts, as explained above,\
  \ as well as the fact that the Government has already carried out a review of the\
  \ author and subcontracting contracts concluded, and taking into account the provisions\
  \ of the ZUJF on the rationalisation of operations in this area, the Ministry of\
  \ Justice and Public Administration concludes that the citizen's initiative has\
  \ already been implemented.\n "
response date: 2012-10-30
response due date: null
sent date: 2012-09-12
title: Contract work for public administration employees
upvotes: 11
url: https://predlagam.vladi.si/predlog/3628
