DPSA: Briefing on progress with regards to the Public Administration Management Act, 2014 1 Presentation to Portfolio Committee June 2018 Presentation Outline Purpose and Background PAM Act Provisions PAM Act Regulations 2 Challenges Way forward
Purpose and Background 3 For Portfolio Committee to note the progress in the implementation of the Public Administration Management Act (PAM Act), 2014 pertaining to: ethics and anti-corruption management; and norms and standards (s16) and compliance with minimum norms and standards in public administration (s17) through an Office of Standards and Compliance (OSC). The PAM Act was signed in Dec 2014 and amongst others seeks to provide a legal framework across the three spheres of government for bringing some degree of uniformity of purpose in ethics and integrity management. No provision of the Act has been brought into effect as yet as most provisions require a state of readiness and regulations. It is envisaged that provisions of the Act will be gradually brought into effect as systems and processes are put in place supported by regulations where required.
PAM Act Provisions 4 Prohibition on Public Service employees conducting business with the State The PAM Act is extending this prohibition to Special Advisors and to all Public Administration employees. Section 8 Conducting business with State (1) In this section and in section 9, employee includes persons contemplated in section 12A of the Public Service Act and a person performing similar functions in a municipality. (2) An employee may not(a) conduct business with the State; or (b) be a director of a public or private company conducting business with the State. (3) A contravention of subsection (2)(a) is an offence, and any person found guilty of the offence is liable to a fine or imprisonment for a period not exceeding 5 years or both such fine and imprisonment; and (b) constitute(s) serious misconduct which may result in the termination of employment by the
employer. PAM Act Provisions 5 Section 9 - Financial Disclosures The Pam Act extends the obligation to disclose financial interests to all Public Administration employees, including the disclosure of the financial interests of his or her spouse. Use of the eDisclosure system. Section 9 Disclosure of financial interest (1) An employee must, in the prescribed manner, disclose to the relevant head of the institution all his or her financial interests and the financial interests of his spouse and a person living with that person as if they were married to each other, including all(a) shares and other financial interests in an entity; (b) sponsorships; (c) gifts above the prescribed value, other than gifts received from a family member; (d) benefits; and (e) immovable property. (2) Failure by an employee to comply with the obligation referred to in subsection (1) constitutes misconduct.
PAM Act Provisions 6 Section 15 - Public Administration Ethics, Integrity, and Disciplinary Technical Assistance Unit (EIDTAU) The PAM Act establishes this Unit. Section 15 Public Administration Ethics, Integrity, and Disciplinary Technical Assistance Unit (1) The Public Administration Ethics, Integrity, and Disciplinary Technical Assistance Unit is hereby established. (2) The organisational form of the Unit must be determined in terms of applicable legislation. (3) The head of the Unit and all its personnel must be appointed in terms of the Public Service Act. PAM Act Provisions
7 (4) The Unit has the following functions: (a) To provide technical assistance and support to institutions in all spheres of government regarding the management of ethics, integrity and disciplinary matters relating to misconduct in the public administration; (b) to develop the norms and standards on integrity, ethics, conduct and discipline in the public administration; (c) to build capacity within institutions to initiate and institute disciplinary proceedings into misconduct. in (d) to strengthen government oversight of ethics, integrity and discipline, and where necessary, cases where systemic weaknesses are identified, to intervene; (e) to promote and enhance good ethics and integrity within the public administration; and (f) to cooperate with other institutions and organs of state to fulfil its functions under this section.
PAM Act Provisions 8 (5)(a) When an institution discovers an act of corruption, such corruption must immediately be reported to the police for investigation in terms of any applicable law, including the Prevention and Combating of Corrupt Activities Act, 2004 (Act 12 of 2004). (b) Issues of misconduct emanating from criminal investigations must be reported to the Unit and the relevant head of institution for initiation and institution of disciplinary proceedings. (6)(a) Notwithstanding subsection (5) (b), every institution has the responsibility to ensure that it deals with matters relating to misconduct without undue delay. (b) The head of the institution must report to the Unit on steps taken in respect of subsection (5) (b). (7) The Unit may perform its functions in subsection (4) in respect of(a) a national department or national government component, in consultation with the executive authority of such department or component, or upon the request of the relevant executive authority; (b) an Office of the Premier, provincial department or provincial government component
with the concurrence of the Premier; or upon the request of the relevant Premier; and PAM Act Provisions 9 (c) a municipality with the concurrence of the Municipal Council or upon the request of the relevant Municipal Council, or upon the request of the relevant Member of the Executive Council in respect of an investigation contemplated in section 106(5) of the Municipal Systems Act, 2000) (Act 32 of 2000). (8) The Minister must report to parliament twice a year on the activities of the Unit.
PAM Act Provisions 10 Compliance with Minimum Norms and Standards (Section 17) The Office of Standards and Compliance (OSC) is established in terms of Section 17(1) of the PAMA. Functions of the OSC: The functions of the Offi ce are to [s17(4)] (a) evaluate the appropriateness of norms and standards and their basis of measurement as determined by institutions in relatio n to public administration and management; (b) promote and monitor compliance with minimum norms and standards determined by the Minister in relation to public administration management;
(c) advise the Minister on the execution of his or her duties with regard to (i) the determination of minimum norms and standards contemplated in section 16; and (ii) enforcing compliance with the minimum norms and standards; (d) conduct capacity and functionality audits of skills, systems, processes and advise on capacity building initiatives; PAM Act Provisions Functions of the OSC (continued): (e) develop and implement an early warning system to detect public administration non-compliance; and (f) report in writing (i) at least once every quarter to the Minister on the performance of the Offices functions; and (ii) as directed by the Minister on the progress made in the investigation and finalisation of matters brought before the Office.
11 PAM Act Provisions 12 Public Administration Norms and Standards (Section 16) MPSA has the legal responsibility to establish Public Administration Norms and Standards (PANS) in terms of the : Public Service Act 103 of 1994 (PSA); Public Administration Management Act No11 of 2014 (PAMA) Section 16 of PAMA
Section 3 (1) PSA The Minister may prescribe minimum norms and standards regarding eight functional areas. (a) the promotion of values and principles referred to in section 195 (1) of the Constitution; (b) capacity development and training; (c) information and communication technologies in the public administration; (d) integrity, ethics and discipline; (e) the disclosure of financial interests; (f) measures to improve the effectiveness and efficiency of institutions; (g) disclosure of information relating to pending disciplinary action and concluded disciplinary proceedings where the employee was found guilty; and (h) any other matter necessary to give effect to the administration or implementation of this Act.
The Minister is responsible for establishing specific norms and standards relating to nine functional areas referenced in Section 3 of PSA on: (a) the functions of the public service; (b) the organizational structures and establishments of departments and other organizational and governance arrangements in the public service; (c) the conditions of service and other employment practices for employees; (d) labour relations in the public service; (e) health and wellness of employees; (f) information management in the public service; (g) electronic government; (h) integrity, ethics, conduct and anticorruption in the public service; and (i) transformation, reform, innovation and any other matter to improve the effectiveness and efficiency of the public service and its service delivery to the public. PAM Act Regulations 13
Public Administration Management Regulations on Conducting Business with the State and Disclosure of Financial Interests in the Public Service, 2017 was gazetted in 2017. Part 2: Conducting Business with the State: The following was proposed: Heads of Institutions must develop, maintain and communicate a policy on conducting business with the institution. Institutions must keep a register of: entities that conduct business with institution (publicly available, also known to employees), persons engaged in Supply Chain Management, employees dismissed for conducting business. Executive Authorities and heads of institutions have a duty to report contraventions of Section 8(2) of the Act, as well as to investigate. Executive Authority has to submit a composite report to MPSA 1 Oct each year on all alleged contraventions of Section 8(2) of the Act. PAM Act Regulations 14
Part 3: Disclosure of Financial Interests: The following are required: A register of specified employees financial interests:1)DG OPSC: financial interests of SMS, Special Advisers and spouses 2) Head of institution: all others. Electronic disclosure is required. Periods are to be prescribed by MPSA. Obligation on employees to make a full disclosure and to immediately notify the Executive Authority or head of institution of any possible conflict of interest. Confidentiality of forms and registers - the regulations identify those who should have access to the forms. Conflict of interest must be managed - the regulations outline the process to be followed when a conflict of interest is identified. Challenges 15
Extension of the eDisclosure system requires configuration to accommodate different HR systems in municipalities and additional funding. Deeds data is expensive (currently R12.00 per record). For public service employees R12.00 x 1.3m employees = almost R16m. The extension of the financial disclosure to other categories of employees should follow a phased in approach. Way forward 16 The PAM regulations regarding employees doing business with the State and financial disclosures will be combined to deal with both the public service and municipalities; While the regulations to effect sections 8 and 9 of the PAM Act are processed, the following interventions will be undertaken to create an easier path to implementation of the PAM Act: a) Aligning of Public Service Regulations, 2016 with the intended PAM Act and its Regulations. b) Reviewing and amending of the Public Service Regulations, 2016 to include regulations on life-style audits.
c) consideration to financial disclosures being done once and thereafter resubmitted when changes occur. The proclamation to bring sections 15 and 17 of the PAM Act into operation will be finalised in this financial year which will see the establishment of the Ethics, Integrity and Disciplinary Technical Assistance Unit and the Office of Standards and Compliance being operationalised by March 2019. The Strategic Framework for Public Administration Norms and Standards will be finalised. 17 END
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