FIRST STEPS IN IMPLEMENTATION OF CODES OF CONDUCT FOR LOCAL GOVERNMENT OFFICIALS IN SERBIA
Jelena Jerinić, LL.M.[1]
Abstract
This paper attempts to describe and evaluate the initial period of implementation of ethical codes of conduct for local government officials in Serbia. During the past year and a half, the codes have been widely adopted by local assemblies in Serbia as a result of an aggressive campaign by the local government association. The first experiences point to the fact that the future of these codes’ is futile without proper mechanisms to monitor their implementation in place. The paper analyses the process of codes’ adoption, establishment of first monitoring bodies in a number of local governments and the first experiences in the practice of these bodies. For the purposes of the paper, the author conducted a short survey among secretaries of selected local assemblies. The findings are based on the analysis of the survey results, cross referenced with other sources and materials from municipalities, as well as reports and surveys by other institutions and organisations.The data collected shows that in most of the cases the codes were adopted either unanimously or with an extremely high majority in the local assemblies. A great majority of local assemblies adopted the text of the code recommended by the local government association. The paper then presents the first examples of code monitoring councils or similar bodies established in a small number of municipalities, describing their status, structure and powers. Finally, the author tries to draw conclusions on the perception of the codes among its addressees and the wider public. Principal conclusions drawn from the facts presented are mainly determined by the fact that the ethical codes of conduct for bearers of public functions at the local level in Serbia are a complete novelty and that, therefore, expectations should not be too high. It is certain, though, that wider acceptance and results of code implementation depends, perhaps solely, on establishment or proper independent monitoring mechanisms. The conclusions of the paper even suggest possible changes to the legislative framework at national level as well as statutory framework at local level which could facilitate the status and practice of genuine monitoring mechanisms. Also, much work needs to be done on raising awareness of the codes’ existence, significance and contents of the codes – both among bearers of public functions, the media and the public at large.Finally, it is certain that, at the moment still rare examples of code monitoring bodies need to be supported and their practice promoted among other local governments as models with an aim of introducing a state wide practice.
1Background
Adoption of codes of conduct for local government officials and staff in Serbia has been initiated and encouraged by the Standing Conference of Towns and Municipalities (SCTM), the local government association[2]. Initiatives in the field of ethics and integrity at local level started in 2003 after Serbia and Montenegro entered into full membership of the Council of Europe, when the translation of the European model code of conduct for local and regional elected representatives of the Congress of Local and Regional Authorities of Europe (CLRAE) was dispatched to all local governments with a recommendation for it to be considered and adopted by local assemblies. Since this initiative resulted in only four (out of 167) local governments reacting and adopting the texts in local assemblies, it became clear that wider success can be expected only if the text of the code was adapted to the local environment and if proper ownership of the text by its addressees was achieved. The SCTM started a wide campaign of raising awareness on the necessity of establishing a set of ethical rules for the local level in the course of which model codes were drafted and finally adopted by the association’s General Assembly in December 2004[3]. During the process, a cross-sectoral working group consisting of representatives of local governments, central government ministries and international and expert organisations drafted a model code, mainly on the basis of Council of Europe’s recommendations. The model was then widely consulted upon by partners of the SCTM and presented during a series of 30 public debates organised in regional centres and attended by local politicians, media and the citizens. Collected comments were incorporated into the final text of the Model presented to the SCTM General Assembly for adoption. Two model codes were recommended for adoption to local assemblies – Model ethical code of conduct for local government officials and Model code of conduct for employees in administrations and public services in towns and municipalities.
This paper focuses on the first of the models – of the Ethical code of conduct for local government officials. “Local government officials” of “functionaries” – as they are called in the Serbian legal system – include bearers of public functions, elected or appointed by local assemblies to these functions. These include: presidents, deputy presidents, councillors and secretaries of municipal assemblies; mayors/presidents of municipalities and their deputies; members of town/municipal boards; heads of municipal/town administrations, chief architects and other chief experts and other appointed persons in local government bodies; town/municipal public defenders; local ombudspersons; managers of public enterprises, institutions and other organisations founded by towns/municipalities and members of managing boards and other persons appointed to these enterprises, institutions and organisations. The rest constitute the group of usually called “local government employees” since the proper framework for the status of civil servants on the local level is still lacking. For this group, a separate model code was drafted but it was not promoted in such an aggressive manner, mainly due the constraints in the legal framework.
The Model ethical code of conduct for local government officials consists of a Preamble and 29 articles. The 29 articles are separated into three main chapters – Subject and Main Principles; Standards in Performance of Function; and Relations with the Public. After setting basic principles and standards in the performance of a function[4], the Code practically guides an official from electoral campaign[5], through his/her mandate[6] all through the termination of mandate[7], with a separate title on relations with the public[8].Most of the Code’s provisions coincide with provisions of national legislation in force – e.g. Law on financing political parties, Law on prevention of conflict of interest, other anti-corruption legislation. However, it sometimes recommends stricter standards than the ones set in the legislation – e.g. it covers a wider range of officials, recommends that officials do not change political parties during their mandate etc.After the model code was recommended, municipal and town assemblies started to adopt their own codes. Until the time this text was concluded, 147 local governments[9] (out of a total of 167) adopted such codes of conduct.
The described initiative seems to be unique – at least in the region of South East Europe[10] - in several aspects. Primarily, this refers to the process of code promotion and advocating for its adoption in individual municipalities as well as the results of this process. As far as the author has been informed, Serbia is the only country in the region where the same model code has been adopted by 90% of local governments. Similarly, the Council of Europe’s documents of public ethics on the local level[11] recommendto Member States to draft model codes and recommend them to local authorities. In Serbia, this role has been fulfilled by the local government association.
Also, comparing to other examples in the region and Europe-wide, the circle of addressees to whom the code applies is much wider in the Serbian codes. The codes usually cover local elected officials (councillors and/or mayors) – local politicians - or local civil servants. The Serbian code covers a much wider circle of persons with diverse positions and tasks within the local government system. However, it is yet to be seen if this particular point is an advantage or a disadvantage to the adopted codes in view of their overall implementation, since the data available at the moment do not present enough basis for such an evaluation.
As it will be described later in this paper, most of the municipalities followed the model recommended by the SCTM, i.e. a great majority of them adopted codes in texts identical to the one recommended. Also, for most, the codes were adopted without clarification of further steps for their implementation. The Model code, in its final article[12] recommended local assemblies to establish bodies for monitoring the Code’s implementation and provide explanations on its content. However, it did not delve further into the structure and functioning of such bodies, but left that to be determined by municipalities themselves, according to the framework they already had and their local circumstance.
Nevertheless, some of the local assemblies – immediately when the codes were adopted or after a period of time – realised the necessity of monitoring the implementation of the Code and established some kind of a mechanism for these purposes. These, still isolated, examples inspired the SCTM to start a follow-up initiative in several pilot municipalities on establishment of and support to monitoring boards.
In view of all mentioned above, the author found it interesting to look further into three main sets of issues relating to processes briefly presented above – adoption of the codes by local assemblies, implementation, i.e. establishment and practice of monitoring mechanisms and perception of the codes and its implementation in local communities.
2Basis forresearch
In order to look into the three mentioned groups of issues, the author conducted a short empirical research based on questionnaires designed solely for the purpose of this paper and dispatched to targeted persons in selected municipalities.
A questionnaire was designed for secretaries of local assemblies and the second for other local functionaries. It consisted of 13 questions relating mainly to the first two sets of issues – adoption of the codes and established monitoring mechanisms – but used also in relation to the third one, i.e. perception of the code – primarily by bearers of functions themselves. It was dispatched to 17 secretaries of local assemblies – 2 town and 15 municipal assemblies – on February 16, 2006 and until mid March answers were received from 10 of them. For the purposes of this paper’s conclusions, questions and answers are grouped according to the three groups of issues identified and analysed in respective chapters on adoption (Chapter 3), implementation (Chapter 4) and perception of the codes in local environments (Chapter 5).
Since the total number of municipalities which adopted the code of conduct is now 147 and the number of those who fully responded to questionnaires is 10[13] (though supplemented by partial data from twenty other municipalities[14]) it is certain that the sample is not representative in terms of the number of municipalities targeted. However, in terms of their geographic position and political affiliation of mayors and local assembly majorities, it can be said that the sample is at least indicative of the current situation. Also, bearing in mind the diversity of individual municipalities, the uniformity of answers suggests that there is space for basic conclusions to be drawn.
Other sources used as a basis for analysis include materials received from individual municipalities – information on adoption of certain acts by relevant local government bodies, texts of acts adopted – in particular, texts of the codes and acts on establishment of code monitoring bodies, minutes from conferences and meetings etc.[15] – as well as reports and surveys issued by other institutions and organisations – such as the Republic Board for ResolvingConflict of Interest and Transparency Serbia.
3The process of adoption
3.1Decisions of local assemblies
The Model code was approved by the SCTM General Assembly on December 5, 2004 and recommended for adoption to local assemblies. The first code was adopted less than a month later, on December 23 and the process is still on-going. The 10 municipalities covered by questionnaire adopted their codes during the first three months of 2005. Overall, the time elapsed from adoption to date is, in most of the cases, less than one year.
In terms of form most of the codes – meaning all of the codes adopted in all 147 municipalities - were adopted by local assemblies in the form of a “decision” (odluka). In the Serbian legal system, this is the most common act of a general nature passed by local assemblies. This means that the legal situation introduced by a “decision” is permanent and can be amended or abolished only by way of a subsequent decision or an act of higher legal force – e.g. the municipal statute or a national law.
In most cases (7 out of 10) the text of the code was publicised though the official gazette – a usual channel for official publicising of decisions by state authorities on all levels. In one case, the channels of publication were the municipal message board and the local media and in two cases, answers to questionnaires stated that the code was not publicised at all, i.e. not even in the official gazette. As for the Internet, only two of the interviewed stated that the text of the code is available at the official web site of the municipality. A simple visit to Google provides a similar image–only a small number of municipalities used theInternet to communicate the adoption of the code to the general public, even though a majority of Serbian municipalities now have official web presentations.
In all of the ten interviewed municipalities, the proposal to adopt the Code came from the mayor/president of the municipality – in one instance accompanied by presidents of all assembly caucuses, and in one by the municipal board[16]. This fact is easily explained by the fact that some of these mayors/presidents of municipalities actively participated in SCTM’s activities relating to drafting and promotion of the Code – some of them, even as promoters of the Model code during the public debate in regional centres all around Serbia. In addition, the promotional campaign coincided with the electoral campaign for the 2004 local elections during which many of the candidates took over the Model code as part of their election programmes. Finally, in majority of the cases, mayors/presidents of municipalities sit as representatives of towns and municipalities in SCTM General Assembly which recommended the Model code.
Secretaries of the assemblies were also asked to outline the main features of debate on the text of the Code – i.e. was their any debate on the text, how many councillors participated in the debate and to summarise the flow of the debate.In most of the cases five to eleven councillors took part in debate[17], but most of them supported the idea of the Code and the proposed text, i.e. none of them expressed opposition to it. The fact is also visible through answers to following questions on amendments to the proposed text and analysis of the texts finally adopted[18].
Finally, when asked about the majority by which the texts were adopted in the assemblies, most of the secretaries stated that the text of the Code was adopted unanimously. Only one of the ten interviewed, it was stated that there was 11 votes against the Code and in a few cases one or two councillors sustained from voting.
3.2Texts of Codes adopted by local assemblies
The secretaries were also asked to describe the amendments submitted on the proposed text of the Code and their adoption or refusal by the assembly. In total, amendments were submitted in four or the ten covered assemblies. In three cases, the amendments were adopted. However, in most of the cases, the amendments did not lead to more substantial changes of the proposed text, except in one when it led to a provision establishing a body for Code monitoring purposes.
The interviewees were also asked to compare the adopted text to the one recommended by the SCTM. In only two cases, they reported slight differences between the texts. In addition to this, the author herself conducted a comparison of the texts adopted in all 147 towns and municipalities and the Model code.
The analysis showed that only 18 municipal assemblies adopted codes which differ from recommended text. However, it also showed that only 13 of the texts contain substantial changes, while in others these are only changes in the preamble or “grammatical changes”, not changing the meaning and consequences of the proposed provisions.
Only two texts are completely different from the model recommended by SCTM and both from 2003, before SCTM started its activities on promotion of the present Model. One of them is actually a recommendation on rules of conduct for elected, appointed and employed persons in municipal bodies, while the other covers only elected representatives and is apparently a result of the SCTM’s prior effort to promote the CLRAE model[19].
As stated above, the Model states that the local assembly can - a possibility, not an obligation –establish a body to monitor the Code’s implementation and provide explanations relating to its content and application to officials, citizens and the media.Five of the analysed texts contain additional provisions concerning Code monitoring. Two of them just provide a general obligation on the part of the municipal assembly to establish a body to monitor the implementation of the Code, while the two others contain more detailed provisions on the structure of the body, its mandate, procedure for determination of a breach of the Code, types of measures, informing the public and reporting to the municipal assembly. Finally, the last in this group differs from the model and designates the president of the municipality – and not the municipal assembly as recommended– as the body which can establish such a monitoring body.