Public Sector Integrity Management Framework; Work-studies on Premiers' Offices: Minister's and Department s' briefings

Public Service and Administration

16 August 2011
Chairperson: Ms J Moloi-Moropa (ANC)
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Meeting Summary

The Minister and Department of Public Service and Administration (DPSA) gave a presentation on the intended Public Sector Management Framework (the Framework), and indicated that this was part of the overall objective of having a Public Sector Charter to define how public servants should interact with the public and their work. The Framework sought to promote integrity and good governance, and to build a more accountable and efficient public service. It had been identified that there was significant variance between departments in the manner they approached disciplinary matters, and the sanctions imposed, and this would try to ensure that appropriate action was taken where there was non-compliance and that, as far as possible, uniform sanctions were imposed. The Special Anti-Corruption Unit would work with Ethics Officers in departments to ensure proper investigation and sanction in disciplinary matters.

The DPSA outlined the plans for the Financial Disclosure Framework, indicating that at the moment, all public servants were prohibited from accepting or soliciting gifts, hospitality and other benefits. However, that would be extended so that not only would all public servants with business interests be restricted from doing business with government, but would have to apply if they wished to do any remunerative work outside the public service. “Cooling off” periods would also be applied, so that a former public servant would not, within a period of twelve months, be able to be employed by or contract with any third party with whom he had had dealings during the period of his public service employment. Entities who conducted business with government had to disclose information about public sector employees with business interests in those entities. It was possible that this could also be extended to Members of Parliament. National Treasury had already issued a Practice Note enforcing that requirement.

All performance agreements of employees, including Heads of Departments, would include a specific Key Performance Area binding and committing an employee to submit the necessary financial disclosure form, as well as attaching any approval for engaging in outside work. The Framework would become part of the legislation. Financial disclosures would in future be filed electronically.

Members asked how the DPSA would ensure that the Framework was uniformly implemented, whether the DPSA had the capacity and resources to enforce it, and what timeframes were allowed for consultation and implementation. They asked for an explanation of the difference between this and what was already in the Public Service Handbook, and also asked if it was intended that this be implemented as soon as it was approved, and whether it would be applied retrospectively to public servants who had already joined third party firms after leaving the public service. It was also asked how the tracking would be done, and if any compensation would be offered to those who were restricted from accepting employment. Members enquired about the role of the Ethics Officer, the role of the Ministry, and financial implications, as also whether the Framework would check on the accuracy of information submitted, or only monitor against what had been disclosed. In general, the approach was commended, but more discussion was needed.

The Minister and DPSA then briefed the Committee on the proposed adoption of a Generic Model for the Offices of the Premiers (OTPs). It was apparent that the different organisational structures in the public service, although they bore a common task of ensuring that public administration was implemented, had very different approaches. No two structures looked exactly alike, in their organisational profile and although it was accepted that geographical and logistical differences could determine the appropriate size of a structure, the same basic services and posts to provide them should apply. The DPSA had therefore drawn a Protocol for OTPs, to try to correct anomalies in responsibilities, inconsistent design and core functions. Their role in relation to the new Department of Performance Monitoring and Evaluation, and Planning Commission, was also being considered. A Directive on Organisational Structure would be placed before Cabinet and then brought to Parliament. Member asked how this would differ from the current Ministerial Handbook, and agreed with the basic principles, but asked for more details on the approach, and how this would affect current staff. It was stressed that although decentralisation was the aim, it was recognised that the structure operated under a centralised Public Service Act and reported to one Minister.

Meeting report

Chairperson’s and Minister’s opening remarks
The Chairperson referred to the joint meeting that this Committee had held with the Committee on Private Members’ Legislative Proposals and Special Petitions, to address the legislative proposal of Hon I Davidson to regulate the business interests of State employees. This matter was receiving the appropriate attention, and the Committee would give its response that it did not see a need for this Committee to proceed with the Bill, and follow the process.

The Honourable Mr Richard Baloyi, Minister of Public Service and Administration, said that he also wished to raise two important issues. Firstly, negotiations had been concluded at the Public Service Bargaining Council, leading to the signature of Resolution 2 of 2011, which had dealt with how to deal with essential services going forward in future. A policy framework was needed by political leaders. The Minister would be leading that process.

Secondly, he announced that Public Service Week and a Conference were due to run in September, and a Round Table, at which the Ethics and Integrity Management Framework would be tabled, would take place on 23 September.

The Public Sector Integrity Management Framework: Briefing by Minister and Department of Public Service and Administration
Minister Baloyi explained that it was the intention to have a Public Sector Charter. There were currently two Codes of Conduct, one for local government and the other for public servants. He said that, in some instances, public servants tended to behave as if they were doing the public a favour by doing their jobs, and it was necessary to compile behavioural standards. He noted that he had expanded on the idea of the framework during the joint meeting with the Committee on Private Members’ Legislative Proposals and Special Petitions.

Mr Kenny Govender, Acting Director General, Department of Public Service and Administration, said the presentation on the Public Sector Integrity Management Framework (the Framework) would highlight the issues that the Minister had raised. The Department of Public Service and Administration (DPSA or the Department) was in the final stages of consolidating it, and then this document would go to Cabinet and then to Parliament.

Ms Vanessa Phala, Acting Chief Director: Anti-Corruption, DPSA, noted that the broader Framework tried to manage a number of issues, such as conflict of interests and issues affecting integrity within the public service. The purpose of the Framework was to strengthen the current measures in the public service around integrity where gaps had been identified.

She noted that the objectives of the Framework were to promote integrity and good governance, to strive to build a more accountable and efficient public service, and to ensure that appropriate action was taken in the event of non-compliance. This would include disciplinary action, recovery of losses, and prosecution. The Framework would help to protect the integrity of government and foster public confidence in institutions of the State.

All public servants were prohibited from accepting or soliciting gifts, hospitality and other benefits. The Financial Disclosure Framework would be gradually extended to all public servants. All public servants with business interests would be restricted from doing business with government. Public servants would also be restricted from doing remunerative work outside the Public Service, to ensure that service delivery would not suffer. Cooling-off restrictions would be applied to all officials participating in procurement activities and there would be codification of the Minimum Anti-corruption Capacity Requirements, to improve compliance.

The Special Anti-Corruption Unit would work collaboratively with Ethics Officers in departments to ensure that corruption cases were investigated and disciplinary processes were instituted. Sanctions imposed would be linked to the Senior Management Service (SMS) Handbook, Regulations and Disciplinary Code. Proposed sanctions for corruption cases included dismissal.

The Ethics Officers would promote integrity and ethical behaviour in departments, advise employees on ethical matters, ensure organisational integrity of policies, procedures and practices, identify and report unethical behaviour and corrupt activities to the head of the department, administer and manage the implementation of the Framework in departments, and liaise with the Special Anti-Corruption Unit.

The draft Framework proposed that all public servants with business interests should be restricted from doing business with government. Entities who conducted business with government had to disclose information about public sector employees who held business interests in those entities. National Treasury had already issued a Practice Note enforcing that requirement.

With regard to the post public employment cooling off period, the DPSA proposed a control regime aimed at ensuring that senior public officials did not, after leaving public office, act in any manner that could take improper advantage of their previous public office. The cooling-off period was twelve months. One control related to contracts concluded with a third party to provide services or goods, for which the remuneration exceeded a set amount. Any public service employee who had been involved in setting any criteria for the award of that work, or who had been involved in evaluation or adjudication of service providers, was prohibited from accepting employment with that third party for 12 months after conclusion of the contract, or from providing any paid service to that third party, or accepting any gratification from the third party.

Another measure prohibited the third party, for his part, from employing a former public service employee, or appointing him/her to the Board, or engaging the employee to provide any service against payment in money or kind, or granting any other gratification to the employee.

In order to improve enforcement of the Framework, all performance agreements of employees, including Heads of Departments, would include a specific Key Performance Area binding and committing an employee to submit the necessary financial disclosure form. If the employee was performing remunerative work outside the public service, s/he must attach the necessary approval.

The Framework would become part of public service legislation and any employee who failed to comply with any of the provisions of the Act, regulations, determination or directive would be guilty of misconduct, and disciplinary action must be instituted. The Framework must, as previously stated, firstly be approved by Cabinet, after which the necessary provisions would be included in the Public Service Act and Regulations for implementation and enforcement.

Ms Phala concluded that all submissions on financial disclosures would be placed on the database in an electronic disclosure form. Currently they were done manually.

Discussion
Mr A Williams (ANC) asked how the Department would ensure that the Framework was implemented uniformly across all the departments within the public service, and how it could ensure that the Directors General (DGs) put the same emphasis on it across the whole public service.

Mr Govender responded that the purpose of appointing and training Ethics Officers was to try to ensure that there was uniformity in the first place, and they would also be responsible for maintaining contact between the DPSA and their own department to ensure that uniformity was maintained. Reporting mechanisms were also built in. He added that an electronic system was introduced, which would be centralised and would form part of the implementation of the Framework. In addition to that, section 16(a) of the Public Service Act obliged a Head of Department to report on cases. The Auditor-General would start doing staff performance audits next year, and he too would have an obligation to report on and ensure compliance through general compliance reports.

Mr Williams asked if the Department had the resources and capacity to actually enforce the Framework, considering the scale of the work. He asked how many people were likely to be appointed to do so.

Minister Baloyi responded that the Department would not necessarily have to look for extra capacity as people would be assigned to do the work. The DPSA was introducing standard requirements that each and every other department had to have an Ethics Officer. The coordination of the Ethics Officers would be done by the Ethics Officer in the DPSA. The Ethics Officers would undergo training.

Mr L Ramatlakane (COPE) asked what the timeframes were for the consultations and the implementation. He pointed out that the actions by Ethics Officers would depend on the level of the people appointed to do the work. The Executive authority had to ensure that enforcement actually took place. He pointed out that there was provision for enforcement in the current Public Service Handbook, and enquired whether there was a difference between the enforcement of the Framework, and the current existing enforcement that the Executive should also be overseeing.

Minister Baloyi responded, on the question of timeframes, that certain policies would have to be reviewed and that it would be necessary to allow for this. He was hoping that this proposal would reach Parliament for its approval before the end of the financial year. Insofar as enforcement was concerned, he noted that the DPSA was empowered and bound by the Public Service Act and Regulations, but that all departments were in fact guided by one Constitution and the unitary principles applied.

Mr L Suka (ANC) said that the objectives of the Framework were very clear, but he was concerned about the timeframes.

Mr Govender explained that DPSA had completed the document, which was currently under discussion within the Public Service, aimed at trying to achieve uniformity around sanctions. It was agreed that severe penalties should attach to those found guilty of serious transgressions, including corruption. The DPSA was also considering the drafting of a further document that would deal with management of suspensions and periods of disciplinary action. The intention was to finalise these within a maximum period of 90 days. Those who were suspended should be suspended for 30 days in the first instance, with a further possible extension of 30 days. The Public Sector Integrity Management Framework could not be seen in isolation.

Mr Suka asked whether the DPSA would apply the Framework immediately, or whether there would be any retrospective application, when dealing with serious matters.

The Minister responded that the Department had already started facilitating speedy resolution of matters, and it was training presiding officers for disciplinary matters.

Mr Suka asked whether the Department had the capacity to track those who left the public service, and to give them permission to take up contracts after the 12-month “cooling off” period, or whether it would act only if they actually attempted to take up contracts within that period.

Mr Govender added that disciplinary cases in relation to retrospective administration would be very difficult. It would also be difficult to deal with the “cooling off” periods. In the past, no such periods had applied, so it was not possible to take up this issue with people who had already entered into contracts of this nature. The general principle of “cooling-off” periods would, however, apply in future.

He added that it would be the responsibility of the Ethics Officers to track those leaving the public service. National Treasury had already issued a Practice Note in May 2011 to the effect that any entity wishing to do business with the Department must indicate if there was any relationship with any employee or former employee.

Mr Suka was interested to know more about the roles of the Officers and the Ministry.

Ms H van Schalkwyk (DA) asked whether Ethics Officers would be appointed for each and every department, and what the financial implications would be.

Minister Baloyi responded in general about coordination. He said that in terms of the existing arrangements, the DPSA occupied a central position when it came to policies, and it had monitoring and oversight responsibilities already. Without over-centralising and without running the risk of again introducing mechanisms that had fallen away, there was a need to decide how to deal more effectively with enforcement across all departments. If the Auditor-General found that public servants had interests in other organisations and businesses, who were contracting with government, then the Minister of Public Service and Administration would have to notify the relevant Ministers so that they could then take this matter up with their own employees.

Minister Baloyi also stressed that currently there was no uniformity in sanctions. A person who committed the same actions worthy of disciplinary sanction might be merely warned in one department but dismissed in another. Clearly the handbook was not serving its purpose, and it was necessary to revisit this issue. He added that the President had noted that if some pieces of legislation were actually found to inhibit departments, then they must be identified and amended. It would be necessary to allow for full enforcement of the Framework.

The Chairperson asked if the Ethics Officers’ reports would go to the Auditor General.

Mr Govender replied that this was correct, as part of the process.

The Chairperson referred to the “cooling off” period, but noted that the relevant (government) authority could allow for a period shorter than 12 months. She asked whether it was intended that any financial compensation could be given during that cooling off period, pointing out that enforcement of this may result in financial loss to the former employee.

Minister Baloyi responded that the “cooling off” period was an important intervention, and the DPSA still had to apply its mind fully to how this might work. There was also debate, although this was not yet concluded, about a similar period for Members of Parliament. He had looked at the international best practice, and the DPSA was still consulting on this issue. Some countries did apply an allowance. If this was not regulated, then he suggested that government would be abdicating its responsibilities. If it was regulated, then care would have to be taken not to infringe on rights. Certainly there would be a need for communication campaigns to explain this. Executive authority and Members of Parliament would have to decide whether any post-appointment restrictions should also apply to politicians.

Mr Suka asked about the capacity of the Executive authority for oversight, and monitoring and evaluation, to ensure that it played an effective role.

Mr Williams asked at what level the Ethics Officers would be appointed. He pointed out that the Senior Managers had to emphasise questions of safety and wondered if the Executive Officers would have a similar role in respect of the Framework.

Minister Baloyi noted that the necessary capacity would ensure full enforcement. He was not sure whether the perceived deficiencies in Executive authorities’ capacity to implement were in fact present. Each situation had to be looked at according to its merits. The Framework was an instrument for uniform interpretation, but cases within that would be decided on their merits, on the balance of probabilities, and it would be necessary to decide where the “probability line” lay. The Framework would assist in reaching uniformity.  

Mr Williams again drew the corollary with occupational health and safety, pointing out that the Accounting Officer was ultimately responsible for this. He wondered if the Accounting Officer would similarly be ultimately responsible to ensure that there was no corruption in their department.

A Member asked whether the Framework would provide a mechanism to check the accuracy of disclosure forms, or whether it would proceed only on the basis of the matters disclosed.

Mr Ramatlakane supported the “one-stop” eradication of corruption. He noted that it would be easier to enforce the cooling off period when a person left the public service for a good reason, but wondered how this would apply to someone who was dismissed. He was worried about the constitutionality of restricting a person’s right to economic participation.

Minister Baloyi agreed that that would depend on the nature of exit from the public service. Someone who had left on a positive note may well be entitled to the “gardening allowance” or compensation. However, other principles may apply to post-employment packages for those who were fired. It was necessary to consult further on this point and to raise specific questions to try to get specific answers.

Mr Ramatlakane also asked what the sanction might be for entities who were under an obligation to declare their directors, but failed to do so.

Minister Baloyi responded that the DPSA was launching a register for declaring interests electronically. This was an interesting debate. The restriction on a person holding an interest also was a limitation of that person’s rights but this must be balance against the obligation to create a non-corrupt public service environment.

The Chairperson thanked the Department and Minister, saying that ideally more time was needed for discussion. She pointed out that section 22 of the Constitution dealt with freedom of trade, occupation and professions, and the right to choose the trade, occupation or profession freely, but did say that the practice of any trade, occupation or profession may be regulated by law. The move towards such regulation by the DPSA would, however, go a long way to strengthening good governance in the public sector.

Adopted Generic Model for the Offices of Premiers: Minister’s and DPSA briefing
Minister Baloyi briefed the Committee on the Generic Model that had been adopted for the offices of Premiers. He noted that the Committee had already observed certain anomalies in the determination or growth of organisational structures. Chapter 10 of the Constitution said that there must be a system of public administration, which could also be a programme of action that complied with the values of public administration. The public service was an institutional arrangement, and it had to ensure that any programmes of public administration were implemented. The public service had to operate in terms of the pre-determined norms and standards, as well as norms, standards and legislation determined nationally.

The Minister of Public Service and Administration occupied a central position, particularly in relation to issues of organisational design. The reference to “executive authority” could include a President, Minister, Premier, or MEC. Each of these bore responsibilities in relation to the organisational structure of their departments, after consultation with the Minister of Public Service and Administration. There were no generic structures, and there were no two structures that looked exactly alike. For instance, the organisational profile of the Western Cape Provincial Department of Education may not be exactly comparable with the similar department in Gauteng or Limpopo. Because MECs were executive authorities, the relevant legislation allowed them to decide for themselves on what would be appropriate for their departments, after consultation with the Minister of Public Service and Administration.

He noted that in the different departments, different levels at which staff were placed, and different job titles sometimes could lead to abuse, because then emphasis was placed on the individual. In addition, in practice, consultants tended to develop those structures, and the consultation with the Minister had become a formality, despite the fact that it was specifically included so that the Minister of Public Service and Administration should be made aware of issues in order to monitor properly against national norms and standards. For this reason, the DPSA had now started a process to draw up a Protocol in which the imperatives and undesirable aspects of organisational structure were outlined, to tell the executive authorities what should or should not be done in relation to organisational structure, job evaluation and job titles.

DPSA was consulting with the national departments and Cabinet. There had also been consultation at provincial level but this still had to happen in KwaZulu-Natal (KZN) and Limpopo. This consultation exercise had isolated some problems. It was noted that the Minister, in terms of the new model, must be made aware of issues, but would not necessarily have to concur. Information must be uploaded, and certain norms and standards, and internal controls, must be applied. The Protocol document would outline quality issues.

Mr Siyabonga Msimang, Acting Chief Director: Organisational Development, DPSA, continued the presentation. He noted that the Minister, in terms of the organisational design, would be reviewing compliance with the directives, strengthening the capacity within the departments, and developing generic structures for sectors of Education, Health, Social Development, and Offices of the Premiers (OTPs) and Offices of executive authorities. One of the problems currently was that no responsibilities were prescribed for OTPs. There was inconsistency in how these Offices were designed and configured, and what their core functions were. The rationale for the development of generic organisational structures was to provide a framework or blueprint for the Offices of the Premier, with the aim of achieving consistency in mandate, and documented guidelines, as well as a common understanding around the core and support functions. It was most important to ensure that the OTPs were created as centres of excellence and partners in implementing Government Outcome 12 to have an efficient, effective and development oriented public service. This should also do away with duplications and overlaps that created confusion and inefficiencies.

The assumption was that services at the Office of the Premiers were similar and required similar processes, technology and resources. Regardless of geographical dynamics, there should be one policy statement for the sector. For these reasons, the programming and top structure should look the same for all nine provinces. It was accepted that one province might, because of the geographic dynamics, adopt a smaller structure than others, and it was accepted that it was not possible to prescribe rigidly for a ‘one size fits all’ approach. However, functions of planning, programme management, performance monitoring and evaluation, provincial planning, policy development, monitoring and coordination, and policy and governance were common to all nine provinces.

The DPSA also had looked at the role of provinces in relation to the new Department of Performance Monitoring and Evaluation, as well as planning in the context of one Planning Commission, although there were plans to develop Provincial Planning Commissions.

An analysis had been done into the current organisational structures for provincial leadership, anti-corruption, and there still needed to be a consistent configuration for these (see attached presentation for details of structures in provinces).

In summary, the guiding questions used for the design had looked at the discrete role and mandate of the OTPs, their distinct product or service and the beneficiaries or end users. The strategic focus, core functions, support and enabling functions, special projects and transformation programmes were also examined. The Chief Operations Officer functions, and whether it was necessary to have this post in OTPs, was looked at. The role of OTPs in communication and security, and consideration of whether these were core functions, was also examined.

A Directive on Organisational Structuring would be presented to Cabinet for approval, and it was intended that the generic structures would form an addendum to that. OTPs and other departments would, after adoption of this, have to align their structures with the Directive and approved generic structure. The Directive would be posted on the DPSA website and the OTPs would be alerted to it. There would be a periodic review. At the moment, the implementation challenges that had been identified included the lack of detailed information on processes to inform the functions, lack of detailed information on the service delivery model and business processes and non-compliance. Deviations or inconsistencies might continue owing to decentralised decision making on organisational issues. Lack of post-provisioning norms and standards; and political decisions with regard to centralisation were further challenges. However, it was stressed again that the purpose of this configuration for OTPs was to provide coherent leadership, ensure integrated planning, coordination and monitoring of the implementation of service delivery programmes in support of national and provincial priorities and developmental processes.

Mr Msimang noted that Anti-corruption and Integrity Management functions included Ethics and Integrity Management, investigation and case management, and monitoring and reporting. It would be necessary to identify clearly what constituted “executive and administrative support”. There had been a tendency to include everything under the OTPs, including functions that were actually supposed to reside elsewhere.

Mr Msimang then highlighted the proposals to move forward. Nine provincial representatives had adopted the generic structure as a working model. They would present those proposals to their provinces and the final inputs would be coordinated through the DPSA.

Discussion
Mr Ramatlakane asked whether the Directive was the same as what was currently contained in the Ministerial Handbook, or whether it related to what was held currently at Vryburg.

Mr Govender explained the relationship between this and the Ministerial Handbook. The Ministerial Handbook contained guidelines for private offices of the executive authorities. This would be intended for the OTPs. There was further work still to be done and that would influence how the Handbook would finally look.

Mr Msimang added that in 2006 the Minister had mandated the DPSA to look into strengthening compliance, so the Directive was essentially the result of the analysis of those structures. It would be referred to as the Minister of Public Service and Administration Directive on Organisational Structure.

Mr Ramatlakane agreed that it was important to have uniformity in OTPs, because where there was none, then there were other implications, including commitment of personnel. He asked for more detail on the approach, and asked if there was any suggestion to achieve integration of any positions in departments.

Mr Govender explained that the Department was trying, in this study, to define the core functions of the OTP, and how best to capacitate those Offices. The extent to which those core functions were covered, and the number of people needed to provide those core functions, would vary from province to province, but the actual functions remained the same. It was accepted that any change would have implications for current staff and their functions. They may have to be reassigned and work reallocated as part of the change management exercise. However, this was not currently expected to lead to retrenchments. Many people were things that were not clearly defined. Existing skills could be used, and the intention was to accommodate all existing staff within new structures.

Ms Mohale suggested that the proposal should be adopted and taken to other structures so that there could be coordinated work on it.

Ms H van Schalkwyk (DA) acknowledged that differences between provinces were in many cases positive

The Chairperson agreed that recapitalisation should be decentralised, but power should be centralised. She said that this work would be part of implementing organisational design. The Committee could also perhaps contribute to that discussion and aims.

Minister Baloyi said that the issue of centralisation or decentralisation was very important. Even if it was desired to achieve decentralisation wherever possible, it was a reality that a centralised environment generally pertained. This resulted from there being one Public Service Act and one Minister of Public Service and Administration, who had the task of coordination of other structures. He highlighted the position also of the Department of Cooperative Governance and Traditional Affairs (COGTA), which was a national department, yet had a number of provincial structures, who went under various names and sometimes combined with other functions. These anomalies would persist, but the NCOP, at provincial level, would tend to pick up on these issues.

The Chairperson thanked the Minister and Department for their good input.

Other business
The Chairperson outlined the programme for the following week, noting that the Committee had been looking into implementation of good governance by clusters, and the Cluster approach had also been used for presentation of the Millennium Development Goals.  She had been liaising with Ms B Dambuza, Chairperson of the Social Development Cluster, on the issues that this Cluster would address.

The meeting was adjourned.



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