Preparations were announced last week for a new law on the Czech civil service, which according to Prime Minister Petr Nečas (Civic Democrat, ODS) will result in the state, regional, and local government administration being depoliticized. However, the PM failed to spell out the planned law's role in the government’s wider anti-corruption strategy.
The fact is reform of the civil service should do more to combat corruption in the state sphere than even the recently passed amendment to the law on public tenders. For example, when damages are incurred within a private organization, typically the cost of the financial damage is calculated and the perpetrator somehow bought to account. If, for example, a member of the company’s board is responsible, typically that person will be obliged to compensate the company’s owners for the damages and could be sued.
Within the Czech state administration, however, judging from numerous cases over recent years, no one is held responsible. The reason for this is a different approach to responsibility. The new legislation which the Minister of Interior has begun to draft could change this and make civil servants more accountable.
In theory
The government last week approved concepts and provisions which should form the foundations of the new civil service law, which include new, clearer, definitions of civil servants’ powers, responsibilities and rights, and which among other points should protect them against dismissal when a new minister takes command of the ministry or organ in which they work.
“As long as a civil servant does not fail to fulfill his or her responsibilities defined by this law, it will not be possible to dismiss them on the grounds of organizational changes,” the concept approved by the government for the drafting of the law states.
The law should also provide for clear distinctions between political representatives working in state organs, and career civil servants. “Depoliticizing the state administration will no longer be left to the heads of ministries, but by the creation of a clear barrier and a publically-known definition between posts occupied by career civil servants, and posts occupied on the basis of political appointments,” PM Nečas said last week.
Nevertheless the prime minister didn’t mention anything about making civil servants more accountable.
Czech Position has obtained a copy of the Analysis of the Current State of the State Administration produced by the Ministry of Interior, the findings of which should serve as a basis for the new law. The report deals with three fundamental areas: improving the efficiency of the state administration, financing and modernization. However the document contains only brief mention of what should be a key provision of the new law – precise definition of responsibilities of civil servants when dealing with public funds.
“At present the official who orders a [financial] operation must sign that they have checked the operation for economic viability and effectiveness, but this is essentially a formality,” chairman of the parliamentary sub-committee for the control of economic management in the state administration Roman Sklenák (ČSSD) told Czech Position. “Budget administrators often don’t even know the financial details of every operation, even if they observe the formal procedures,” he adds.
An exemplary case
A recent case which serves to illustrate this shortcoming was the cancelled public –private partnership (PPP) project to build a new ward and private accommodation at the Central Military Hospital (ÚVN) in Prague 6. The project was cancelled before any construction work began, nevertheless it cost the taxpayer Kč 187 million, which was paid for project planning and to compensate the private partner for the cancellation of the project.
The PPP project was proposed by the Ministry of Defense when headed by Martin Barták (ODS) and was approved by Jan Fischer’s (unaffiliated) caretaker government in May 2010, just before parliamentary elections. The bid put forward by the consortium Prague Military Hospital Concession, was judged to be the only qualifying offer and the consortium sealed a contract worth a total of Kč 6.4 billion over 25 years, although originally the cost of the project was estimated at Kč 1.3 billion.
At the end of November, 2011, Minister of Defense Alexandr Vondra (ODS) presented the parliamentary committee for controls and audits with a report mapping the development of the ÚVN project including the names of those responsible for given areas and stages of the project planning. But was anyone brought to account? No chance! The reason is that in Czech conditions, those responsible heap blame on each other, hide behind expert assessments and the opinions of advisors, or argue that the decisions in question were taken collectively and therefore an individual cannot be punished.
But there’s also another dimension to responsibility in this area – corruption. Under current conditions, civil servants blindly adhere to the will and fulfill the orders of their superiors and lobbyists. “Someone should always be appointed with responsibility for guaranteeing that public funds are spent effectively for the purpose intended and economically. If it is then discovered that this was not the case, that person should be held responsible. I’m not against such conduct being made a criminal offence,” Sklenák says.
Lack of punishment
Deputy prime minister responsible for overseeing the coalition government’s anti-corruption drive initiatives, Karolína Peake (Public Affairs, VV), also does not consider the current legal provisions defining civil servants’ responsibilities to be satisfactory.
“Even now according to the paragraph on management of third party property, civil servants can be held criminally responsible. But, it’s true that in recent years we haven’t seen any criminal proceedings. We have started seeing some success though in ascertaining specific errors and dubious practices which have continued or which happened in the past. This was done through audits, for example those carried out in the Interior Ministry when Radek John (VV) was minister,” Peake told Czech Position.
“But it’s true that that we need those responsible [for waste or embezzlement] to be forced to compensate for the damages they cause and be punished accordingly,” Peake added.
The vice-president of the Supreme Audit Office (NKÚ) Miloslav Kala proposed in an interview with Czech Position at the end of 2010 that every civil servant should be obliged to decide on the allocation of public funds with expertise, according to their conscience and be criminally accountable for their decisions. He suggested the responsibility should be similar to the legally defined code of conduct for insolvency administrators. And the new law on the Civil Service is precisely where such a remedy should be applied.
Kala also says civil servants should approach their tasks with the same care as a financial officer, or board member in a private company and bear a similar degree of responsibility. The valid legal provisions dictating the responsibilities of managers of private companies are strict. If they cause damage to a firm they must pay appropriate compensation and face punishment.
At present the practice in the public administration is altogether different. “Civil servants, faced with the threat of losing their jobs, are often forced into not behaving like responsible financial managers. On the contrary, they get bonuses and their decisions are covered by collective bodies or ‘expert’ reports. If they prove to be ‘unsuitable’ and don’t obey, they’re thrown out of work. If civil servants were held criminally responsible, they could not carry out dubious orders,” Kala says.
Businessman Radim Jančura, the founder and owner of transport company Student Agency, who recently joined the board of the Anti-Corruption Endowment (NFPK), is in favor not only of making high-ranking civil servants more responsible, he says politicians should also be criminally accountable. “It should be clear: if you sign something, you bear the responsibility,” Jančura told Czech Position.
Three years at the earliest
Deputy PM Peake appears to agree that civil servants should carry a similar level of criminal accountability as insolvency administrators. “It depends on an expert debate, for which I initiated the platform for the law on civil servants, similar to that which proved a success in formulating the amended law on public tenders,” Peake says, adding that she intends to introduce greater responsibilities and accountability for civil servants in the new law. Nevertheless, whether or not such provisions will gain the backing of the whole cabinet remains to be seen.
Because of the lengthy legislative process expected, the new civil service law should come into effect in three years time at the earliest. And three years is a very long time in politics within which the current alignment of political forces could change. That would further delay the new law.
Those who call for more responsibility and accountability for civil servants say the proposals outlined above could to a certain degree be introduced in the planned amendments to the law on financial controls and audits, which were approved by the government in mid-January. If such an amendment proved effective in the new audit law, similar provisions could then later be expanded upon in the law on civil servants.
Which civil servants should be made criminally accountable remains open to discussion. Some say it’s only necessary for budget administrators who are the only ones in state organs responsible for ensuring the required funds are available and debts paid, while others say all those who order operations, i.e those responsible for releasing funds should also be held criminally accountable.
What’s obvious is that those who bear the threat of criminal punishment in the event of irregularities should be given sufficient incentive to take on that responsibility. There will likely be concerns that the creation of an “elite rank” within the civil service would place a burden on the state budget. However, if we count how many cases there are annually where civil servants cause financial damages but nobody is punished, to pay for such an elite would undoubtedly be cost effective.
