Institut Alternative (IA) today submitted an initiative to the Minister of Interior, Mr Goran Danilović, aimed at improving Draft Law on Amendments to the Law on Civil Servants and State Employees, which keeps problematic legal solutions and prevents establishing of merit based system in state authorities.
Work on amending the Law on Civil Servants and State Employees began in September last year, and now, inter- sectoral Working Group, consisting of representatives of Ministry of Interior (MoI), Human Resources Management Authority (HRMA), Ministry of Finance (MF), Parliament of Montenegro and a representative of IA, is finalising the Draft Law.
However, despite our efforts to amend the provisions that, in previous period, have prevented establishing of merit – based system in Montenegrin state administration, Draft Law kept the most problematic solutions.
Those solutions that we pointed out in our initiative, include, among other things, discretionary right of the head of the authority not to appoint the best ranked candidate, insufficiently regulated evaluation of candidates, insufficient prevention of political influence over employees in state administration, centralized decision-making on appointment of civil servants and state employees in political figures and imprecise classification of work places.
Numerous findings of IA speak for problematic implementation of these legal solutions, but also experiences of citizens who file complaints via our website My administration. In initiative, we pointed to last complaint submitted via our website, where an ex employee of MoI claims that his rights were violated more than once.
“We remind that the Ministry you are heading is the most numerous institution of the system, with 4859 employees, according to the latest Government’s Personnel Plan. Thus, problem of violation of employees’ rights also mostly refers to MoI”, writes in the initiative.
We also reminded of our previous warnings that some of the MoI’s practices could be discriminatory, bearing in mind that the status of their fixed-term employees was solved by allowing them to apply for job based on internal announcements within Ministry.
“By doing so, a lot of others fixed-term employees in other state authorities are being discriminated, because they were not allowed to solve their working status in this manner”, states the initiative, and appeals to the Minister to investigate these media statements, but also the Government’s intention from 2013 to favor certain candidates, by prejudicing the outcome of job vacancies in this institution.
The initiative in its entirety can be read on the following link
Proposal of the Minister of Transport and Maritime Affairs for the distribution of the net profit of the company ’’Monteput’’ is unjust and irrational, which means that the Government must take into account the opinion of Ministry of Finance, reject the proposal and transfer the overall income to the Chief Treasury Account.
The proposal foresees that 17% of the profit (€ 153,141) should be distributed in the form of bonus shares to members of governing bodies, management and employees. An additional € 50,000 was planned for housing stock, 40 000 € for support to sports, health, cultural, educational and humanitarian organizations, as well as 23 000 € for “unforeseen costs” (in an election year, without detailed criteria and rules to regulate the distribution these funds).
If the proposal was adopted, established practice wouldn’t change, because every year Monteput achieves gain, where significant share is given as bonus to governing bodies and resolving housing issues of the employees.
The fact that the Monteput made profit is not a consequence of special knowledge and skills of the enterprise’s management to reach success in the market competition. Monteput is not a player in the market, but a monopoly collector of revenue, established by the Government. According to official data, in 2015 it had a staff increase of over 20% (from 86 to 112). It is singled out every year and disproportionately rewarded, which is unfair, considering that this is the consequence of the increased frequency of traffic through the tunnel Sozina and Raš, which are being managed by Monteput.
Additionally, the sum for the support to various organizations is hardly predictable, considering that Monteput does not publish records on grants and sponsorships to companies and individuals. The fact that official website of this company has been in preparation for a long period of time does not help the lack of transparency. Even though good results in state companies should be rewarded, there is great number of cases where bad results were not punished. According to data gathered by Institute alternative, from 39 state companies on national level, 13 of them haven’t had bad results.
We do not have an information whether any state company, both on national or local level, complied with the provision of the Law on Salaries in Public Sector, which requires that losing companies must “reduce the total wage bill by 10% in the first year and an additional 5% in the next calendar year.” (Art. 10 of the Act).
Regarding Monteput, we believe that any excess of revenues must be used to enhance the professional capacity in management of the project of building the highway Bar-Boljare, which was, rightly or wrongly, added to its jurisdiction.
The state cannot reward monopolist because the relentless growth in incomes, without having sanctions for poor performance. We believe that this practice should be interrupted, and that Monteput’s entire profits must be transferred to the main account of the State Treasury. The government must adopt a special act which will regulate the fair distribution of profit in the form of awards for managers and employee, which will be stimulating and just, but not excluded from the whole context of the economic situation of the state and the state of public finances.
After several attempts, we were obstructed in getting basic information about the work of the Protector of Property and Legal interests of Montenegro in the last six years
From the state organ which protects legal and property interest of the state, and indirectly citizens’ interests, it is impossible to gain information on some of key activities, which the Protector should perform. By interpreting the Law on Free Access to Information, this institution deprives the citizens of access to information about its work.
Institute Alternative has requested the legal opinions issued by the Protector in the period from 2010 until today, through FOI. Requested legal opinions refer to conclusion of contracts and opinions on other property and legal interests, which Protector shall issue, according to the Law on State Property, upon the requests of bodies whose property rights and interests it represents.
Interpreting the Law on Free Access to Information restrictively, the Protector has hidden its documents requesting from us to cite give mark of documents we want to access. However, we cannot know exact marks, since the documents are unpublished. Therefore, this request is putting us in a paradoxical situation, which would look like this if simplified: we need to know in advance the answer to the question we asked.
In addition to the appeal which IA will file to this decision, we have an obligation to publicly react to such a lack of transparency of work of which should protect property and legal interests of Montenegro.
The fact that the only contact data of the Protector is the phone number on the website of the Ministry of Finance additionally contributes to the lack of transparency and the unavailability of this institution. E-mail address is not available, nor is the Guide to Free Access to Information, which is an obligation of the Law on Free Access to Information.
Since the poor legal solution of the Law on State Property does not stipulate a deadline for the annual report on the work of this institution, we are not yet able to see what has the Protector been working on during the previous year.
We call on the Protector to promptly informs the public on its work and to make the requested legal opinions accessible and, thus, performs its role in protecting the budget of Montenegro proactively.
The Law on State Property is clear – oversight over this institution shall be performed by the Ministry of Finance, which we invite to use its competences and requires an annual report on the work of the Protector.
If the practice of lack of transparency and misuse of the Law on Free Access to Information, we will continue to ask: Who is actually protected by the Protector?
Only a limited number of non-governmental organizations uses mechanisms for citizens’ participation in creating public policies in Montenegro, said Stevo Muk, president of the Managing Board of the Institute Alternative (IA), at a regional conference on public administration reform, held in Pristina.
Conference “Role of Civil Society in Public Administration Reform – EU Standards and Practice” was organized by Technical Assistance for Civil Society Organisations (TACSO).
Speaking about mechanisms of participation of citizens and civil society in creating public policies, he reminded that they involve participation in advisory bodies of the governments and ministries, obligation of publishing a public call for CSO representatives to participate in working groups and obligation of organising public debate on key draft laws.
However, in practice, these mechanisms show numerous deficiencies.
“For example, working groups for drafting laws and strategies are inter-sectoral groups with numerous tasks, because, simultaneously, they analyse existing laws, discuss and evaluate achieved results, define different options and translate them into legal norms”, explained Muk.
When it comes to public administration reform, Muk reminded that IA already warned that Draft Strategy that directs this comprehensive reform is missing human figure: “Two main consumers of public services – citizens and business community were not consulted”.
Stevo spoke at the panel on pre-conditions and challenges of “participatory governance”, which includes participation of citizens in decision – making process.
However, he stressed that civil society without citizens is one of the key challenges in the region, and includes a large number of highly professional NGOs that fail to gain attention of a significant number of citizens.
Our public policy researcher Milena Milošević also participates at the conference that brings together about 80 participants from the region.
Centre for Civic Education (CCE), Institute Alternative (IA) and Network for Affirmation of Non-governmental sector (MANS) defined the set of information which every public sector body should post proactively on 15 every days at their websites.
The objective of this precisely focused initiative is to reduce the space for potential misuse of public sector bodies for electoral purposes, which was previously demonstrated through the affair “Recording”, as well as through numerous other cases of misuse which NGO sector and independent media highlighted. Furthermore, this would facilitate the investigation of these misuses for the interested part of the public, but also increase the overall level of transparency of institutions.
Three non-governmental organisations defined more than 90 categories of information which institutions should post regularly on their websites. These information were divided in two groups – general information on finances and work which contain 27 different categories of information and nearly 60 categories of additional information which were defined particularly for every institution which could be used to influence the process of elections or for other related corruption actions.
Information which every institution should proactively post on its website includes: analytical cards with the information on every payment and receipt; travel warrant for country and abroad; every decision and every type of contract on employment or engagement on indefinite or definite period of time; every information on paid severance pay; every relevant information on public procurement; every information on the allocation of all forms of aid to legal and natural persons; every contract on loans, cessions, mortgages, fiduciaries, sponsorships, donations and financial leasing; every international project with the accompanying documentation; every protocol, agreement, contract and memorandum signed with local self-governments, NGOs, commercial subjects and other bodies; plans of work and financial reports; list of officials and employees with the amount of salaries; every financial payment, donation and assistance to media; as well as many other information which can determine the attempt of direct or indirect influence on the free will of citizens to choose.
Hence, the Ministry of Finances and local secretariats dealing with finances should post the excerpts from state or local treasury and analytical cards of budgetary reserve. Additionally, the Ministry of Finances should have to post complete documentation on the write-off or the exemption from tax and customs duties or postponement of their payment; every information on payments on the basis of restitution; every information on state aid; issued guarantees and short-term aid to local self-government units; information on internal redirections of budget, and similar.
Apart from the information posted by the institutions, they defined additional categories of information which must be posted for additional 17 groups or individual institutions, which are of special importance for free and fair elections.
Apart from that, Ministry of Labour and Social Welfare should have to post analytical cards containing the information on the amount and number of users of every form of social aid, as well as the information on type and recipients of social aid; requests and decisions on the allocation of one-off social compensations; contracts for the construction of housing objects for social cases, as well as for the objects of social and health care with the accompanying documentation.
Ministry of Interior should post every information on the award of Montenegrin citizenship with special conditions with the complete accompanying documentation, including the explanations of decisions, while the Ministry of Agricultureshould post the information on the allocation of subventions and agricultural loans, information on the provision of aid to municipalities and municipal communities for the construction of water pipes, roads and other, as well as the contracts on loans signed by the Ministry including the IPARD like and Abu Dhabi Fund.
Additional categories of information which should be posted were also defined for the Government of Montenegro, Commission for the allocation of part of budgetary reserve funds, Ministry of Education, Labour Fund, Employment Agency of Montenegro, Investment and Development Fund, Directorate for the development of small and medium-sized enterprises, Directorate of Public Works and Directorate for Traffic, Ministry of Justice, University of Montenegro and state or locally-owned companies.
These requests are not in conflict with the Law on the Protection of Personal Information. In line with the undisputed interest of public to know, it is necessary to publish the information by observing the provisions of this and Law on Free Access to Information. These laws envisage the procedures of adequate manner of protection of personal information which are of significance for privacy, as well as the information marked with a degree of confidentiality, with the disclosure of basic information.
We urge every institution, bodies and other legal entities in the possession of state or local self-governments unit to adopt special bylaws and thus to norm the obligation to proactively post every information which can determine the presence and the extent of influence of public funds and authorisations on the process of elections and related corruption actions.
Also, we urge the institutions to publish the information related to flows of money in a machine-readable format, so that their processing would be possible. Current practice where bodies posted bulky budgetary database in “locked” scanned documents in PDF format, presented the obstacle for any analytical work with data, which is unacceptable in a situation where one tries to prevent misuse of state money for the needs of party interests and election campaigns.
Centre for Civic Education (CCE)
Institute Alternative (IA)
Network for Affirmation of Non-governmental sector (MANS)
Even though it is difficult to determine in practice whether a person was employed based on their party affiliation, citizens most often complain of the Head of authorities’ arbitrariness during election of candidates for a certain government job position.
The President of the Managing Board of Institute Alternative (IA) Stevo Muk said in an interview with the Centre for Investigative Journalism (CIN-CG), that political figures on both national and local level have the legislative possibility not to chose the best candidate for the job.
˝There are clear principles for depoliticisation of public administration that are not difficult to follow, among which one of the most important stipulates that the level of separation of political and professional must be clear-cut, which is not the case in Montenegro˝, Muk warns.
CIN-CG: What is your comment on the Draft Law on Local Self-Government? What are its biggest flaws?
MUK: Unfortunately, the Draft Law issued by the Government last December does not promise an efficient battle against current bad practice. IA has warned earlier that there are two key reasons why the foreseen Draft Law on Local Self-Government does not imply a core change of multiannual bad practices. One of the reasons is that a multitude of new procedures has been literally copied from the Law on Public Servants and State Officials which, according to IA’s findings, did not have the best results in practice. The other reason is the fact that the key stage of employment procedure, the evaluation of candidates, still remains unregulated. In other words, a proper implementation of regulation is foreseen from the state level in organising and conducting the evaluation for most of local official positions. There is too much centralisation on the state level, even when it comes to human resources decision-making, delegated to politicians – ministers, who have the possibility not to choose the candidate that got the best evaluation.
CIN-CG: IA receives concrete complaints regarding employment on state and local level. Could you explain the ways citizens can ask you for advice?
So far, IA mostly received complaints regarding employment in state institutions, given that we monitoring most intensely the implementation of the Law on Public Servants and State Officials. However, the public should be aware of the fact that this Law regulates only a fifth of overall Montenegrin public sector, that the biggest employer in the country given that it employs around 56 000 people. A total of 20% of employees in the public sector actually works in municipalities and their status is vaguely regulated. In addition to that, for around 30 000 employees in the public sector that work in numerous regulatory bodies, public institutions and enterprises, only general work regulations are implemented which are very ‘’slim’’ when it comes to acceptance conditions – evaluation of qualities that the job candidates should possess.
We mostly receive complaints on irregularities in employment procedures in state institutions through our page Moja uprava which we piloted last year. The citizens’ complaints confirmed the key issues in filling ‘’state job positions’’ which are: arbitrariness of heads of authorities during the election procedure, irregularities during evaluation of candidate and the dissatisfaction of fixed term employees, who found themselves in a legal vacuum upon beginning of the implementation of the new Law on Public Servants and State Officials.
During this year we will be working on upgrading Moja uprava within our project ‘’Civil Society for Good Governance: To Act and Account’’, supported by the European Union, so the array of topics of citizens’ interests will be widened.
CIN-CG: How present is the employment according to party affiliation and on which level is it most dominant – how do we depoliticise public administration?
MUK: Employment according to party affiliation has been discovered where it had its roots – in party sessions. The Snimak affair additionally increased the level of mistrust of public in impartiality of administration and employment procedures. It is difficult to definitely determine whether the employment is based on party affiliation. However, legal loopholes which we regularly point out as well as the significant leeway to discretionary decision-making of political figures result in a system vulnerable to various political misuses. Political influence is more than obvious at the level of managerial staff, general directors, head assistants and heads of authorities – you merely need to visit internet presentations of the ruling party and recognize familiar faces, who should be serving us impartially, smiling in front of party symbols.
On the other hand, there are clear principles of depoliticisation of the public administration that are not difficult to follow, among which one of the most important stipulates that the level of separation of political and professional must be clear-cut, which is not the case in Montenegro. Unfortunately, the current Draft Strategy for Public Administration Reform 2016 – 2020 does not acknowledge this principle in its entirety.
CIN-CG: How do we put to stop the misuse of public resource on both local and state levels?
MUK: Legal security, clear rules with the least discretionary authority and transparency of institutions are the key obstacles for misuse of public resource in transition societies such as Montenegrin. Even though the freedom of decision-making in developed countries could also imply necessary flexibility, we are still at the development level where we have to keep our decision-makers under greater control and have precise legal formulation that will restrain our servants and employees from misuse of public resources. Unfortunately, bylaws in our system are often making basic intentions of laws pointless even when these are truthful; therefore putting to stop the misuse of public resources is a demanding job that requires undertaking on all levels.
CIN-CG: What is your comment regarding postponement of implementation of the Law on General Administrative Procedure for next year?
MUK: The new postponement of implementation of the Law on General Administrative Procedure is putting citizens a step backwards from the service-oriented administration, while they are still exposed to lengthy procedures that are not helpful in fulfilling their rights. This Law was supposed to be implemented in January this year, but that was postponed for 6 months, in order to be further postponed at the Government session for January 1st 2017. We have warned that this postponement points out the inertia of Montenegrin institutions which have not managed to secure enough preconditions for its implementation and conduct mutual alignment of legal provisions since December 2014 when the Law was adopted. Unfortunately, this syndrome of our administration is reflected in many fields, given that time is a cheap category when it comes to key reform steps.
CIN-CG: Do you consider it to be inappropriate to adopt a Law on Public Sector Salaries during election year?
MUK: IA considers that the pre-election atmosphere should be nurtured during the entire electoral cycle, meaning during four long years, and that the pre-election period is merely a culmination of well thought-out engineering that surpasses periods of electoral campaigns.
That would also be our opinion on the Law on Public Sector Salaries, the draft of which was prepared already in 2013, having same systemic flaws during its adoption this year, with final adjustments made upon entering the parliamentary procedure. I would also add that this Law merely ‘’institutionalised’’ earlier salaries for most positions in the public sector, particularly heads of authorities’, given that the salaries of many were above the number publicly available having in mind numerous bonuses for participation in working groups.
Conversation conducted by Ana Komatina
Interview was originally published on Center for Investigative Journalism website
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Centre for Civic Education (CCE), Institute Alternative (IA) and Network for Affirmation of Non-governmental sector (MANS) defined the set of information which every public sector body should post proactively on 15 every days at their websites.