COMMITTEE
OF EXPERTS OF THE FOLLOW-UP MECHANISM FOR THE IMPLEMENTATION OF THE
INTER-AMERICAN CONVENTION AGAINST CORRUPTION
QUESTIONNAIRE
ON PROVISIONS SELECTED BY THE COMMITTEE OF EXPERTS FOR ANALYSIS WITHIN THE
FRAMEWORK OF THE FIRST ROUND
May
24, 2002
INTRODUCTION
The
Report of Buenos Aires and the Rules of Procedure and Other Provisions of the
Committee of Experts on the Mechanism for Follow-up on the Implementation of
the Inter-American Convention against Corruption (hereinafter, as applicable, Report
of Buenos Aires, Rules, Committee, Mechanism, and Convention) provide that
the Committee shall adopt a questionnaire on the selected provisions to
be reviewed in each round.
At its first meeting, held in Washington D.C.
from January 14 to 18, 2002, the Committee
decided that during the first round it would review implementation by States
Parties of the following provisions of the Convention:
Article III, paragraphs 1, 2, 4, 9 and 11; Article XIV; and Article
XVIII.
In light of the above, this
document contains the questions that comprise the questionnaire adopted by the
Committee.
The
responses given to the questionnaire shall be reviewed in accordance with the
adopted methodology by the Committee,
which shall be annexed to this document, and that can also be consulted on the
OAS Internet page at the following address: http://www.oas.org/juridico/english/followup_method.htm
The
State Party must also, in complying with a Committee’s decision, prepare a
brief description of its legal-institutional system, in accordance with the
constitutional order for the introduction of the country report that is
prepared as part of the review process.
In
accordance with article 21 of the Rules,
the State Party shall forward the response to the questionnaire through their
Permanent Mission to the OAS, in an electronic format, along with the
corresponding supporting documents, within the period of time established by
the Committee.
To
this effect, the OAS General Secretariat’s e-mail to which the response to
the questionnaire must be sent and consult with any questions or doubts, is
the following: jgarciag@oas.org
The
response to the questionnaire must be forwarded to the Secretariat no later than August 31, 2002 and,
per the recommendation made by the Committee, the length of the response
should not be greater than 25 pages.
I. BRIEF DESCRIPTION OF
THE LEGAL-INSTITUTIONAL SYSTEM
Please
briefly describe the legal-institutional system in your country in accordance
with the constitutional order. (A maximum of 2 pages is suggested)
The
governmental system in the United States is a federal one, consisting of a
national (federal) government and various state and local governments. The
legal system of the United States is developed from the common law tradition
of England. The law of the land derives from the U.S. Constitution (Attachment
1), legislative enactments, and judicial decisions that interpret custom
and precedent.
The
U.S. Constitution creates the federal government and assigns limited powers to
each of three branches: executive, judicial, and legislative. The U.S.
Constitution anticipates checks and balances among the various branches of
government through shared responsibilities and oversight, so that power is not
concentrated in one person or branch. All remaining powers are reserved to the
state governments and the people.
The
President, who is chosen through a public election process, leads the federal
executive branch. The U.S. Constitution assigns the President powers over the
military and to execute the laws of the land and conduct foreign policy. The
executive is also responsible for prosecuting crimes, including those
involving the legislature or judiciary. The President delegates official
responsibility for exercising these powers to subordinate Departments,
agencies, and officers within the executive branch.
The
federal legislative branch consists of representatives elected by popular vote
to the House and Senate, known collectively as the U.S. Congress. Congress
enacts laws within its jurisdiction that are considered to be the supreme law
of the land. Congress can investigate the activities and conduct of personnel
and officials in the other branches, and, for certain causes, may impeach the
President, Vice President and members of the judiciary. Although the President
is responsible for seeing that the laws are faithfully executed, Congress
oversees their implementation and the President’s stewardship.
The
federal judicial branch is composed of judges, appointed by the President and
confirmed by the Senate, and various employees hired to support judicial
functions. Judges receive a lifetime appointment without diminution of pay and
can only be removed by the Congress after impeachment. Federal judges, located
at various U.S. district and appeals courts throughout the United States, can
check the legislature’s and executive’s actions to ensure that they do not
violate constitutional prerogatives and limits.
The
fifty states each have their own constitutions and governments, including
subordinate local and municipal governments. All states have created their own
branches of government, complete with their own judicial systems and
legislatures. The state governments hold powers not granted to the various
federal branches via the U.S. Constitution, which allows them broad control
over areas such as land use, corporate entities, and local crimes. However,
laws enacted legitimately by the federal legislative branch are considered the
“supreme law of the land” and, thus, binding on the states and their
citizens.
As mentioned earlier, the
legal system of the United States revolves around laws enacted by Congress and
the various state legislatures. The federal and state judicial branches are
responsible for resolving legal disputes and ensuring that enacted laws do not
violate the U.S. or state constitutions. Under our common law system, judges
may also interpret custom and tradition, and establish binding judicial
precedent for interpreting the application of laws. The federal and state
court systems are generally three-tiered, consisting of trial level courts,
appeal level courts, and a supreme or ultimate court of appeal.
II. CONTENT OF THE
QUESTIONNAIRE
CHAPTER
ONE
MEASURES
AND MECHANISMS REGARDING STANDARDS OF CONDUCT FOR THE CORRECT, HONORABLE, AND
PROPER FULFILLMENT OF PUBLIC FUNCTIONS (ARTICLE III, 1 AND 2 OF THE
CONVENTION)
1. General standards of
conduct and mechanisms
a.
Are there standards of conduct
in your country for the correct, honorable and adequate fulfillment of public
functions? If so, briefly describe them and list and attach a copy of the
related provisions and documents.
In
each of the three branches of the United States Federal Government (executive,
legislative, and judicial) there are standards of conduct or codes of conduct
that are enforced administratively. In addition, there are civil ethics
statutes that apply to the outside activities of senior officers and employees
of all three branches and criminal conflict of interest statutes that apply in
differing degrees to officers and employees of all three branches.
Administrative
Standards of Conduct
Executive
branch:
Part 2635 of Title 5 of the Code of Federal Regulations (5 C.F.R. Part 2635)
contains the Standards of Ethical Conduct for Employees of the Executive
Branch (Standards of Conduct; Attachment
2). Supplemental standards of conduct for certain executive branch
agencies follow in 5 C.F.R. Parts 3101-8701, and statutes that provide
additional authority for administrative gift regulations are in Sections 7351
and 7353 of Title 5 of the U.S. Code (5 U.S.C. §§ 7351 and 7353). The
Standards of Conduct cover the following subjects: gifts from outside sources;
gifts between employees; conflicting financial interests; impartiality in
performing official duties; seeking other employment; misuse of position (i.e.
use of public office for private gain, use of nonpublic information, use of
Government property, use of official time); and outside activities. Executive
Order 12674, as amended, which is entitled APrinciples
of Ethical Conduct for Government Officers and Employees, sets forth the
ethical principles upon which the Standards of Conduct are based. 5 C.F.R. ' 2635.101
contains a restatement of Executive Order 12674, as amended. The United States Office of Government Ethics (OGE) is responsible for
issuing the Standards of Conduct. However, each executive branch agency
(including the departments of the military) is responsible for training,
counseling, and disciplining its employees with regard to the Standards of
Conduct.
Legislative branch: At the beginning of each Congress, the United States
House of Representatives (House) adopts a code of conduct as a part of its
rules. In the 107th Congress, that code and related conduct
provisions are contained in Rules 23-25 (Attachment
3). These Rules cover, among other topics, the following: use of public
office for private gain; gifts; campaign funds; certain employment practices;
representational contact; limitations on the use of official and unofficial
accounts; and limitations on outside earned income. The House also publishes a
House Ethics Manual containing these provisions as well as guidance on their
interpretation.
In
1958, the House and the United States Senate (Senate) passed a concurrent
resolution containing a Code of Ethics for Government Service (Attachment
4). This Code covers such topics as: loyalty to country and to moral
principles; upholding the laws of the country; discriminatory conduct;
acceptance of certain favors or benefits; honest effort and conscientious
performance of duties; improper use of confidential information; use of public
office for private profit; and exposure of corruption. The House continues to
expect its Members and employees to adhere to this Code.
The
Senate also has a Code of Official Conduct, which is a part of the Standing
Rules of the Senate. The Code of Official Conduct is contained in Rules 34
through 43 (Attachment 5). These Rules cover, among other topics, the
following: gifts; outside earned income; conflict of interest; prohibition of
unofficial office accounts; foreign travel; franking privilege and radio and
television studios; political fund activity; employment practices; and
constituent service. The Senate publishes a Senate Ethics Manual containing
these provisions as well as guidance on their interpretation.
Judicial
branch: There are three codes of conduct within the judicial
branch of the U.S. Federal Government: the Code of Conduct for United States
Judges; the Code of Conduct for Judicial Employees; and the Code of Conduct
for Federal Public Defender Employees (Attachment
6). The Code of Conduct for United States Judges covers, among other
topics, the following: judicial integrity and independence; the avoidance of
impropriety and the appearance of impropriety; impartiality; adjudicative and
administrative responsibilities; disqualification; extrajudicial activities
and compensation related to extrajudicial activities; conflicts of interest;
gifts; and refraining from political activity. The Code of Conduct for
Judicial Employees covers, among other topics, the following: judicial
integrity and independence; the avoidance of impropriety and the appearance of
impropriety; performance of duties; conduct toward the public; use of
confidential and other types of information; conflicts of interest; personal
prejudice; outside activities; gifts; practice of law; and inappropriate
political activity. The Code of Conduct for Federal Public Defender Employees
covers, among other topics, the following: the avoidance of impropriety and
the appearance of impropriety; performance of duties; behavior toward persons
with whom one deals; nondiscrimination; gifts; conflicts of interest;
engagement in law-related activities; the regulation of and compensation for
extra-official activities; and inappropriate political activity. Published
advisory opinions issued by a national committee of Federal judges provide
further guidance concerning the subjects addressed in the Codes of Conduct.
Civil
Ethics Statutes
Limitations
on the outside earned income and employment activities of the highest-level
officials of all three branches are found in Sections 501 and 502 of the
appendix of Title 5 of the United States Code (5 U.S.C. app. ' 501 et seq.; Attachment
7).
Criminal
Conflict of Interest Statutes
See
the answer to Question 2.a of Chapter 1.
b.
Are there mechanisms to enforce compliance with the above standards of
conduct? If so, briefly describe them and list and attach a copy of the
related provisions and documents.
Executive
branch: The Government official responsible for an employee’s
appointment (or that official’s delegate) may impose administrative
sanctions for violation of the administrative Standards of Conduct.
Appropriate corrective or disciplinary actions must follow applicable
Government-wide regulations or agency procedures. Such actions may be in
addition to any action or penalty prescribed by law. For an example of
authority under which an agency may take adverse personnel action against
certain employees, see 5 U.S.C. § 7501 et seq. (Attachment
8). The President may remove Presidential appointees either at will or for
cause, depending upon the type of appointment.
Legislative
branch: Section 5 of Article I of the U.S. Constitution (Attachment
9) provides that each House of Congress (the Senate and the House) is
responsible for determining the qualifications of its Members; for determining
its rules of proceedings; for punishing its Members; and, with the concurrence
of two-thirds of the Members, for expelling a Member. Each House of Congress
has a committee that addresses the conduct of Members and staff and that
provides advisory services and education regarding the standards to which
Members and staff are to adhere. The responsible committee in the Senate is
the Senate Select Committee on Ethics. The responsible committee in the House
is the House Committee on Standards of Official Conduct.
Judicial
branch: The President, pursuant to the U.S. Constitution,
appoints Justices and judges within the Federal courts system by and with the
advice and consent of the Senate. Justices and judges receive a lifetime
appointment without diminution of pay and can only be removed by Congress
after impeachment by the House and trial in the Senate. The Federal courts
system governs itself at the national level through the Judicial Conference of
the United States. The Judicial Conference is a body of 27 Federal judges,
composed of the following: the Chief Justice of the United States, who serves
as the presiding officer; the chief judges of the 13 courts of appeals; the
chief judge of the Court of International Trade; and 12 district judges from
the regional circuits who are chosen by the judges of their circuits to serve
terms of three years. The Judicial Conference has a Committee on Codes of
Conduct that renders advisory opinions concerning the application and
interpretation of the Codes of Conduct for United States Judges, for Judicial
Employees, and for Federal Public Defender Employees. The procedures for
filing and responding to complaints against judges are prescribed by statute,
28 U.S.C. ' 372(c) (Attachment
10). Actions the courts system may take against a judge include private or
public reprimand or censure, request for voluntary retirement, suspension of
case assignments, and certification of disability of a judge to hold office.
If appropriate, the Judicial Conference may transmit to the House a
determination that consideration of impeachment may be warranted. Employees of
the judicial branch are subject to disciplinary action, including removal.
Federal Government-wide:
See the answer to Question (a) in Chapter 3 for
information regarding organizations responsible for investigations.
The United States Department of Justice (DOJ) is
responsible for prosecuting violations of civil and criminal statutes
committed by officers and employees of all three branches. See the answers to
Questions 1.a and 2.a of Chapter 1 for a list of statutes that are generally
considered core ethics and conflict of interest statutes for the Federal
Government. Reinforcement (as opposed to enforcement) of the standards and
codes of conduct is a part of the ethics programs administered by all three
branches. The three branches accomplish reinforcement through periodic
training, the ready availability of counseling services for officers and
employees who have questions on the application of the codes, and the review
of financial disclosure reports.
c.
Briefly state the results that have been obtained in implementing the
above standards and mechanisms, attaching the pertinent statistical
information, if available.
None of the three branches of the United
States Federal Government has in place a method by which to measure the
preventive role of the standards and codes of conduct to which officers and
employees are expected to adhere. However, each of the three branches has used
administrative standards of conduct to discipline successfully and
appropriately employees including Presidential appointees, regular civil
servants, judges, judicial branch employees, Members of Congress, and
congressional employees. Though the United States Government could provide
individual examples of all such disciplinary measures, generally complete data
is not kept with regard to the measures. However, the House Committee on
Standards of Official Conduct does at the end of each Congress (every two
years) publish a Summary of Activities for that Congress that includes
information with regard to individual cases. In the executive branch, agencies
maintain evidence of administrative disciplinary actions in individual
employee personnel files kept by the employing agency rather than in a more
centralized system. Each year OGE surveys executive branch agencies with
regard to disciplinary actions (including removals, demotions, suspensions,
and written reprimands) based wholly or in part upon violations of the
Standards of Conduct. The agencies make good-faith efforts at supplying this
information, but OGE considers the data to be approximate. With that caveat,
agencies reported taking over 4,500 disciplinary actions during 2001 based on
the Standards of Conduct.
In
2000, OGE conducted a survey of executive branch employees with a two-fold
purpose. One purpose was to assess the effectiveness of the executive branch
ethics program from an employee perspective and the other purpose was to
assess executive branch ethical culture. (See Attachment
11 for the survey results.) Approximately
2,700 employees from 22 different executive branch agencies responded to the
survey. Since the ethics program involves not only the Standards of Conduct
but also ethics training and counseling and the review of financial disclosure
reports, it is important to note the survey showed that employees who file
financial disclosure reports, and therefore receive annual training on the
Standards of Conduct, are familiar with the Standards of Conduct and find them
useful in guiding decisions and conduct in connection with their work. These
employees are also willing to seek ethics-related advice in connection with
their work.
See
the answer to Question 3.c in Chapter 1 for general investigation information
that would incorporate statistics concerning the investigation of violations
of these standards.
d.
If no standards and mechanisms, above stated, exist, briefly indicate
how your State has considered the applicability of measures within your own
institutional systems to create, maintain and strengthen the standards of
conduct for the correct, honorable and proper fulfillment of public functions,
and mechanisms to enforce compliance, in accordance with article III (1) and
(2) of the Convention.
Not
applicable
2. Conflicts of interests
a. Are there standards of conduct in your
country regarding the prevention of conflicts of interest in the performance
of public functions? If yes, briefly describe them, indicating aspects like to
whom they apply and the concept on which they are based, and list and attach a
copy of the related provisions and documents.
The
various standards and codes of conduct and the civil ethics statutes listed in
the answer to Question 1.a of Chapter 1 contain provisions (such as
prohibitions on using public office for private gain) aimed at preventing and
addressing conflicts of interest. Additionally, Chapter 11 of Title 18 of the
U.S. Code is entitled “Bribery, Graft, and Conflicts of Interest” (Attachment 12). A brief description of relevant provisions and an
indication of to whom the provisions apply follows.
Title
18 of the United States Code
·
Sec. 201 -
Bribery of public officials and witnesses
Þ
prohibition against bribes and criminal
gratuities applies to public officials; individuals who have been selected to
be public officials; and to those who directly or indirectly give, offer, or
promise the bribe or criminal gratuity;
Þ
provisions
governing witnesses apply to witnesses in trials, hearings, or other
proceedings or with regard to a witness absenting himself from such
proceedings and apply to those who directly or indirectly corruptly give,
offer, or promise anything of value to a witness with the intent of
influencing testimony under oath
.
·
Sec.
203 - Compensation to Members of Congress, officers, and others in matters
affecting the Government
Þ
applies to Members of Congress, Federal
judges, and officers and employees of the Federal Government and to those who
knowingly give, promise, or offer any compensation prohibited by this
provision.
·
Sec.
204 - Practice in United States Court of Federal Claims or the United States
Court of Appeals for the Federal Circuit by Members of Congress
Þ
applies to Members of Congress and Members of
Congress Elect.
·
Sec.
205 - Activities of officers and employees in claims against and other matters
affecting the Government
Þ
applies to officers and employees of the
Federal Government.
·
Sec.
206 - Exemption of retired officers of the uniformed services
Þ
available to retired officers of the
uniformed services while not on active duty or to any person specially
excepted by Act of Congress.
·
Sec.
207 - Restrictions on former officers, employees, and elected officials of the
executive and legislative branches
Þ
applies to former officers and employees of
the executive branch, to former senior officers and employees of the
legislative branch, to former Members of Congress, and to former Vice
Presidents.
·
Sec.
208 - Acts affecting a personal financial interest
Þ
applies to officers and employees of the
executive branch and of independent agencies.
·
Sec. 209 -
Salary of Government officials and employees payable only by United States
Þ
applies to compensated officers and employees
of the executive branch and of independent agencies (other than special
Government employees) and applies to those who provide the salary or
supplementation of salary in violation of this provision.
·
Sec.
210 - Offer to procure appointive public office
Þ
applies to any person.
·
Sec.
211- Acceptance of solicitation to obtain appointive public office
Þ
applies to
any person.
·
Sec.
219 - Officers and employees acting as agents of foreign principals
Þ
applies to a Member of Congress, Delegate, or
Resident Commissioner, either before or after he has qualified; or an officer
or employee or person acting for or on behalf of the United States, or any
department, agency, or branch of Government thereof in any official function,
under or by authority of any such department, agency, or branch of Government.
b.
Are there mechanisms to enforce compliance with the above standards of
conduct? If so, briefly describe them and list and attach a copy of the
related provisions and documents.
The provisions listed above are all part of the criminal code. DOJ
is responsible for prosecuting violations of these statutes in the Federal
courts system. DOJ may bring a civil or a criminal case charging a violation
of Sections 203, 205, 207, 208 and 209 or may seek an injunction. Other cited
sections may only be charged criminally. An officer or employee who has
violated one or more of the above statutes is also subject to the disciplinary
actions mentioned in the answer to Question 1.b of Chapter 1. See
the answer to Question (a) in Chapter 3 for general information regarding
organizations responsible for investigations.
c.
Briefly state the results that have been obtained in implementing the above
standards and mechanisms, attaching the pertinent statistical information, if
available.
OGE
has for a number of years surveyed DOJ and the 94 U.S. Attorney’s Offices
asking for information about the cases they have prosecuted citing Sections
203-209 of Title 18. Response to the surveys has been voluntary, so while OGE
has compiled and published the results each year, that compilation may not
reflect all such cases for that year. The compilations for 1990 onward are
available on OGE’s Web site (for the most recent, see Attachment 13). In addition, commercial reporting services such as
the United States Code Annotated list significant published cases that
interpret sections of the code important to each case. This is true for the
above-referenced statutes as well as all other statutes of the United States
Code.
See
the answer to Question 3.c in Chapter 1 for general investigation information
that would incorporate statistics concerning the investigation of violations
of these standards.
d.
If no standards and mechanisms, above stated, exist, briefly indicate how your
State has considered the applicability of measures within your own
institutional systems to create, maintain and strengthen the standards of
conduct intended to prevent conflicts of interests, and mechanisms to enforce
compliance, in accordance with article III (1) and (2) of the Convention.
Not
applicable
3.
Conservation and proper use of resources entrusted to public officials in the
performance of their functions
a.
Are there standards of conduct in your country that govern the
conservation and proper use of resources entrusted to public officials in the
performance of their functions? If yes, briefly describe them, indicating
aspects like to whom they apply and whether there are exceptions, and list and
attach a copy of the related provisions and documents.
The provisions
within the standards and codes of conduct applicable in the different branches
of the Federal Government that address the conservation and proper use of
resources are noted immediately below. However, these code of conduct
provisions are not the primary source of authority controlling the
conservation and proper use of resources, in part because the provisions are
merely administrative and in part because the provisions were never intended
to contain the specific details of a financial or property control system. The
U.S. Federal Government has an extensive network of laws and regulations
designed to minimize the potential for waste, fraud, and mismanagement and to
ensure that Government resources are used efficiently and effectively to
achieve intended program results. A brief description of that network follows
the references from the various codes of conduct.
Executive branch: 5 C.F.R. ' 2635.704(a) says, an employee has a duty to
protect and conserve Government property and shall not use such property, or
allow its use, for other than authorized purposes. 5 C.F.R. Part 2635.705(a)
states that an employee shall use official time in an honest effort to perform
official duties.
Legislative
branch: House Rule 24 addresses limitations on the
use of official and unofficial accounts. Clause 8 of House Rule 23, the Code
of Official Conduct, addresses the proper compensation of employees.
Additionally, the House Administration Committee has issued sets of
regulations applicable to Members and to House committees that set out the
permissible and impermissible use of House funds. The 1958 Code of Ethics for
Government Service has two related provisions. Principle 3 calls upon each
employee to Give a full day’s labor for a full day’s pay; giving to the
performance of his duties his earnest effort and best thought. Principle 4
calls upon each employee to ASeek to find and employ more efficient and
economical ways of getting tasks accomplished. The Senate Code of Official
Conduct includes the following: Rule 38, which prohibits unofficial office
accounts; Rule 39, which addresses foreign travel; and Rule 40, which
addresses the use of prepaid postage and radio and television studios.
Judicial branch: Though the judicial branch’s three Codes
of Conduct contain no provisions as specific as those of the other two
branches in this regard, the misuse of public resources would be a type of
misconduct that could fall under more general provisions of the Codes.
General finance
and property control network: Section 9 of Article I of the U.S.
Constitution provides that No money shall be drawn from the Treasury, but in
consequence of appropriations made by law; and a regular statement and account
of the receipts and expenditures of all public money shall be published from
time to time. Every Federal agency has the responsibility of assuring that its
use of public funds adheres to the terms of all pertinent authorization and
appropriation acts, as well as to all other relevant statutory and regulatory
provisions. Specific financial management laws, all of which stress the
importance of appropriate accounting and internal controls such as an
independent audit program, enhance this responsibility.
Title 31 of the
U.S. Code, Money and Finance, establishes the basic framework for the
control of funds. The various statutes contained in that title govern the
budget process; the appropriations process; accounting; auditing of accounts;
settlement of disputes; payment of claims; collection of debt; recovery of
erroneous payments; and other miscellaneous financial activities involving
public finances. Title 40, Public Buildings, Property, and Works,
contains various statutes governing the management and disposal of public
property. Title 41, Public Contracts, contains statutes applying to
procurement procedures.
In addition,
Federal regulations contain mechanisms for the prevention of waste, fraud, and
abuse. The budget process is controlled by the Office of Management and Budget
(OMB) Circulars, particularly OMB Circular A-11, Preparation, Submission,
and Execution of the Budget (Attachment
14). Title 31 of
the Code of Federal Regulations, Money and Finance: Treasury, contains
rules for the management of Federal receipts and disbursements. Title 4 of the
Code of Federal Regulations controls auditing and settlement of accounts,
Title 41 contains information regarding the management of public property and
similar topics, and Title 48 contains the Federal Acquisition Regulations.
Generally,
management accountability requirements mean that managers are responsible for
ensuring the quality and timeliness of program performance; for increasing
productivity; for controlling costs; for mitigating adverse aspects of agency
operations; and for assuring that programs are managed with integrity and in
compliance with applicable law. Management controls, organization, policies,
and procedures are tools to help program and financial managers achieve
results and safeguard the integrity of their programs. Many statutes and
documents address, both explicitly and implicitly, the importance of
management controls.
At the lowest
level, that is the point at which actual disbursements of funds occur, all
Federal entities are required to have in place checks and balances (consisting
of systems and internal controls) that effectively limit and control the
obligation and disbursal of public funds. Title 18 of the U.S. Code contains
criminal sanctions that apply to the misuse of public funds (for example,
Section 371, Conspiracy to commit offense or to defraud United States; Section
641 et seq., concerning embezzlement and theft; Section 872,
Extortion by officers or employees of the United States; and Section 1001,
concerning false statements; Attachment
15).
Particularly
significant and fundamental statutory components of the mechanisms designed to
prevent the unlawful use of public funds include: the Anti-Deficiency Act
(Public Law 97-258); the Federal Managers= Financial Integrity Act (P.L. 97-255); the
Chief Financial Officers Act (P. L. 101-576); and the Inspector General Act
(P.L. 95-452).
b.
Are there mechanisms to enforce compliance with the above standards of
conduct? If so, briefly describe them and list and attach a copy of the
related provisions and documents.
The answer to
Question 1.b in Chapter 1 describes the enforcement mechanisms for each of the
standards and codes of conduct. The U.S. Federal Government ensures the
conservation and proper use of resources through a system of financial record
crosschecks and through active management reviews and investigations, followed
by prosecution if necessary. For example, each of the largest agencies of the
executive branch has a statutorily mandated Inspector General (IG). (See the
Inspector General Act of 1978, Attachment
16.) Many smaller agencies have IGs appointed by their agency heads. The
mission of all IGs is to independently review the programs and operations of
their agencies; to detect and prevent fraud, waste, and abuse; and to promote
economy, efficiency, and effectiveness so that their agencies can best serve
the public. One goal of IG investigations is to have those investigations
result in the narrowing of opportunities for misconduct and corruption in the
Federal Government. IGs and agency managers attempt to find ways to leverage
criminal and administrative investigations to effect procedural and systemic
reforms that will make future misconduct less likely. While OIG investigations may focus on individual
mismanagement, OIG audits may identify systemic vulnerabilities or failures to
adhere to regulations and standards. OIGs may make recommendations to correct
deficiencies based on such audits. Executive branch departments and agencies
are required by the Inspector General Act to respond within six months to OIG
recommendations, and an OIG may report to Congress any instances in which an
executive branch agency has not taken action in response to an OIG
recommendation.
In addition to
the OIGs, many of the investigatory organizations mentioned in the answer to
Question (a) in Chapter 3 can also investigate such matters. When probable
violations of law are found, DOJ is responsible for prosecuting statutory
violations, including violations of the statutes mentioned in the answer to
(a) of the present question.
c.
Briefly state the results that have been obtained in implementing the
above standards and mechanisms, attaching the pertinent statistical
information, if available.
Results
from OGE’s 2001 survey of executive branch agencies (which, again, one
should consider a compilation of good-faith estimates provided by agencies)
indicated that agencies took over 1,500 disciplinary actions (including
removal, demotion, suspension, and written reprimand) in response to employee
misuse of position, Government resources, or information. However, one should
view this number carefully since the survey would count a written reprimand
for misusing a Government telephone the same way as an employee dismissal for
theft of a Government automobile.
The following
statistics (which also include cases beyond this scope of this questionnaire)
are combined statistics from the Offices of Inspector General (OIGs) that come
from the Fiscal Year 2000 Progress Report to the President (Attachment
17) created by the OIGs and provide some context as to the activities of
the OIGs:
·
OIGs
collectively issued more than 8,500 reports, closed more than 20,000
investigations, and processed almost 200,000 complaints;
·
OIGs
recommended ways that approximately $15.6 billion could be put to better use,
and management agreed with recommendations regarding approximately $9.5
billion of that total;
·
OIGs
questioned approximately $5.2 billion in costs, and management agreed with
recommendations regarding approximately $2.2 billion of that total;
·
OIG
investigations resulted in the recovery of approximately $3.3 billion;
·
OIGs
contributed to investigations that led to over 5,500 successful criminal
prosecutions and nearly 1,300 civil actions;
·
OIG
investigations contributed to nearly 7,700 suspensions and debarments of
contractors, grantees, and other entities or individuals doing business with
the Government; and
·
OIG
actions contributed to over 1,300 personnel actions (reprimands, suspensions,
demotions, or terminations) taken against Federal, state, and local (and
Federal contractor/grantee) employees.
d.
If
no standards and mechanisms, above stated, exist, briefly indicate how your
State has considered the applicability of measures within your own
institutional systems to create, maintain and strengthen the standards of
conduct intended to ensure the proper conservation and use of resources
entrusted to public officials in the performance of their functions, and
mechanisms to enforce compliance, in accordance with article III (1) and (2)
of the Convention.
Not applicable
4. Measures and systems
requiring public officials to report to appropriate authorities acts of
corruption in the performance of public functions of which they are aware
a.
Are there standards of conduct in your country that
establish measures and systems governing the requirement that public officials
report to appropriate authorities acts of corruption in public office of which
they are aware? If yes, briefly describe them, indicating aspects like to whom
they apply and to what resources they refer, and list and attach a copy of the
related provisions and documents.
Executive branch: The Standards of Conduct state at 5 C.F.R. ' 2635.101(b)(11) that AEmployees shall disclose waste, fraud, abuse,
and corruption to appropriate authorities. Appropriate authorities for
employees can include supervisors or appropriate investigative authorities
such as an agency’s Inspector General. Additionally, all executive branch
agency heads are required, pursuant to 28 U.S.C. ' 535 (Attachment
18), to report to the U.S. Attorney General or his delegates any
information, allegation, or complaint received in their respective agency
regarding a violation of the U.S. criminal code by an executive branch officer
or employee.
Legislative
branch: The Code of Official Conduct for the House
(House Rule 23) says that a Member, officer, or employee of the House “shall
conduct himself at all times in a manner that shall reflect creditably on the
House.” In addition, Members, officers, and employees are expected to adhere
to the 1958 Code of Ethics for Government Service, which requires them to
“Expose corruption wherever discovered.” Senate Resolution 338 of the 2nd
Session of the 88th Congress, as amended, says the Senate Select
Committee on Ethics shall “receive complaints and investigate allegations of
improper conduct which may reflect upon the Senate, violations of law,
violations of the Senate Code of Official Conduct and violations of rules and
regulations of the Senate…”(Sec. 2.a.1.; see the appendixes of Attachment
21). The expectation in the Senate of good-faith compliance with the Senate
Code of Official Conduct could also encompass the expectation that a Member,
officer, or employee would report acts of corruption of which he was aware.
Judicial branch: Canon 3 of the Code of Conduct for Judicial
Employees includes the following language: “A judicial employee should
report to the appropriate supervising authority any attempt to induce the
judicial employee to violate these canons.” Canon 3 of the Code of Conduct
for Federal Public Defender Employees includes the following language: “A
defender employee should report to the appropriate supervising authority any
attempt to induce the defender employee to violate these canons.” Canon 3 of
the Code of Conduct for United States Judges includes the following language:
“A judge should initiate appropriate action when the judge becomes aware of
reliable evidence indicating the likelihood of unprofessional conduct by a
judge or lawyer.” Canon 3 also says a judge should hold court officials,
staff, and others subject to the judge’s direction and control to the same
standards applicable to the judge.
b.
Are there mechanisms to enforce compliance with the above standards of
conduct? If so, briefly describe them and list and attach a copy of the
related provisions and documents.
An executive branch employee who is fully
aware of fraud, waste, abuse, or corruption and fails to report the misconduct
is subject to administrative discipline. The
answer to Question 1.b in Chapter 1 discusses administrative sanctions
available for a violation of the standards and codes of conduct in each of the
three branches. Generally, these administrative sanctions would be available
for knowing violation of the code provisions discussed in part (a) of the
present question. Offices of Inspector General have created telephone hotlines
that allow employees to report fraud, waste, abuse, and corruption either
anonymously or otherwise. These hotlines are tools that facilitate and improve
enforcement.
c.
Briefly
state the results that have been obtained in implementing the above standards
and mechanisms, attaching the pertinent statistical information, if available.
See
the answer to Question 3.c in Chapter 1 for general information
that would incorporate statistics regarding the reporting of acts of
corruption.
d.
If no standards and mechanisms, above stated, exist, briefly indicate
how your State has considered the applicability of measures within your own
institutional systems to create, maintain and strengthen the standards of
conduct that establish measures and systems governing the requirement that
public officials report to appropriate authorities acts of corruption in
public office of which they are aware, and mechanisms to enforce compliance,
in accordance with article III (1) and (2) of the Convention.
Not
applicable
CHAPTER
TWO
SYSTEMS
FOR REGISTERING INCOME, ASSETS AND LIABILITIES
(ARTICLE
III, 4)
a.
Are there
regulations in your country establishing methods for registering the income,
assets and liabilities of those who perform public functions in certain posts
as specified by law and, where appropriate, for making such disclosures
public? If yes, briefly describe them, indicating aspects like to whom they
apply and when the declaration must be presented, the content of the
declaration, and how the information given is verified, accessed, and used.
List and attach a copy of the related provisions and documents.
The Ethics in
Government Act of 1978, as amended, (5 U.S.C. app. ' 101 et seq.; Attachment 19) requires
public financial disclosure on the part of the most senior elected and
appointed officials of all three branches of the U.S. Federal Government. It
is important to note at the outset that the purposes for collecting financial
disclosure reports and for making reports public at the Federal Government
level in the United States are to detect and prevent conflicts of interest and
to support public confidence in government, not to detect illicit enrichment.
The reports can be useful in the latter regard under certain circumstances,
however. An outline of the system follows.
Who must file:
Executive branch: President; Vice President; officers and
employees of the executive branch (including, but not limited to, those
appointed by the President with confirmation of the Senate) whose basic rate
of pay meets a certain threshold amount (including Generals and Admirals of
the uniformed services); administrative law judges; certain employees in the
executive branch occupying positions that are exempt from the competitive
service by reason of being of a confidential or policymaking character,
regardless of level of pay (generally political appointees at or below Level
15 of the General Schedule pay system); certain officers and employees of the
Postal Service and the Postal Rate Commission; the Director of the U.S. Office
of Government Ethics; each designated agency ethics official; and certain
high-level appointees within the Executive Office of the President (civilian
commissioned officers).
Legislative
branch: Members of Congress and certain senior
officers and employees within the legislative branch (generally determined by
basic level of pay).
Judicial branch: Chief Justice of the United States;
Associate Justices of the Supreme Court; judges of the United States courts of
appeals, United States district courts, Court of Appeals for the Federal
Circuit, Court of International Trade, Tax Court, Court of Federal Claims,
Court of Appeals for Veterans Claims, United States Court of Appeals for the
Armed Forces, and any court created by Act of Congress, the judges of which
are entitled to hold office during good behavior; and judicial officers and
employees whose basic rate of pay is at or above a specified threshold amount.
Candidates for
elected office and nominees for appointed office: Candidates for election to the House or Senate;
candidates for election to the Offices of President and Vice President; and
most nominees to positions in all three branches that require nomination by
the President and confirmation by the Senate (though in some instances a
public report is not required for part-time positions).
When they must
file:
Candidates: Within 30 days of becoming a candidate, or by May 15 of
that calendar year, whichever i