Strengthening the Framework on Pre‑ and Post‑Public Employment in Romania

3. Ensuring clear institutional arrangements for oversight and control

Abstract

This chapter provides recommendations on improving institutional arrangements for oversight and control of pre- and post-public employment. It recommends expanding the powers of the National Integrity Agency (ANI) to include monitoring former public officials’ post-public employment activities for a proportionate period of time. It also recommends granting the ANI access to relevant databases and helping the agency further develop its digital tools so that it can perform this new function effectively.

Identifying and managing actual or perceived conflict-of-interest situations, including in pre- and post-public employment, is the responsibility of all public officials. However, public bodies and government organisations are also responsible for supporting the implementation of the measures. To that end, clearly defined institutional responsibilities and co-ordination mechanisms are key components of any integrity system and help ensure effective implementation of integrity standards. Assigning clear responsibilities to the actors in the integrity system is necessary to ensure co-operation, avoid overlaps and prevent fragmentation. Responsibilities include developing, implementing, monitoring and evaluating integrity standards and tools (OECD, 2020[1]). While all institutions in the public sector bear a certain degree of responsibility for implementing integrity standards, certain core institutions often perform oversight in key areas. Determining the institution that should be responsible for implementing pre- and post-public employment measures depends on the national legal and institutional context (OECD, 2010[2]).

In Romania, the fragmented legal framework on pre- and post-public employment means that each public institution and company concerned is responsible for applying their relevant restrictions. Relevant institutions for specific regulations include the National Agency for Public Procurement (Agenția Națională pentru Achiziții Publice, ANAP) for Law no. 98/2016, the Ministry of Investments and European Projects (Ministerul Investițiilor și Proiectelor Europene, MIPE) for Government Emergency Ordinance 66/2011 and the Competition Council (Consiliul Concurenţei) for Law no. 21/1996. Control bodies within each public body are responsible for overseeing Law no. 161/2003.

As such, monitoring or enforcing compliance with the current measures is difficult. During the OECD fact‑finding mission to Romania, stakeholders noted that in the absence of any requirements for a public official to declare interests or assets following their departure from public office and any way for public authorities to access data on former officials’ employment activities, they cannot systematically monitor these former officials’ adherence to the cooling-off periods established by law. Responsible oversight bodies can only act when they receive an ad hoc tip, and even then, there are limited actions that most bodies can take because the law does not specify sanctions and enforcement measures.

Without a central institution overseeing and supporting the implementation of relevant rules, the Ministry of Justice developed a model procedure that all relevant public institutions can apply. The procedure foresees that human resource departments or ethics counsellors may provide advice on post-public employment restrictions, that officials sign a declaration at the end of their term acknowledging awareness of these restrictions, and that employers may request information regarding subsequent employment after the official has left office. However, while the take-up of this procedure has been high, it is unclear if it has had any effect on the detection or prevention of integrity risks in post-public employment.

3.1. Romanian authorities could clarify institutional responsibilities and grant the National Integrity Agency (ANI) the competence to act as a centralised oversight body

Establishing legal provisions on oversight measures can be a useful first step in overcoming the challenge of monitoring and enforcing the pre- and post-public employment system (OECD, 2020[1]). Countries including France, Greece, Norway, Spain and the United Kingdom have established a system whereby the law requires a public official who is leaving to pursue employment in the private sector to declare their activities and/or obtain approval from a dedicated body, which can help facilitate monitoring and enforcement. Moreover, OECD countries are increasingly moving toward a model where one central institution is responsible for overseeing these rules. Pre- and post-public employment systems generally benefit from mirroring the conflict-of-interest prevention system, which is also increasingly centralised in many countries (OECD, 2010[2]).

Both the Ministry of Justice (2021[3]) and external observers such as the Council of Europe’s Group of States against Corruption (GRECO) (2023[4]) have highlighted the need for improved monitoring of post‑public employment rules in Romania. GRECO’s Fifth Evaluation Round report (2023[4]) notes a potential need for an institution to approve post-employment activities and a monitoring mechanism for the post-public employment activities of persons with top executive functions (PTEFs).

Given the current institutional structure for monitoring compliance with interest and asset declaration requirements, Romanian authorities could consider amending legislation to establish a similar system for monitoring compliance with pre- and post-public employment provisions. Law no. 176/2010, together with Law no. 161/2003, assigns the ANI responsibility for collecting, monitoring and verifying interest declarations to identify conflicts of interest, incompatibilities and unjustified wealth. Given its role in verifying the content of interest and asset declarations of current public officials, the ANI would be a natural fit for monitoring pre- and post-public employment declarations.

Therefore, in conjunction with expanding declaration requirements to cover a limited period of time after a public official leaves office, Romanian authorities could consider granting the ANI the competence to verify the content of post-public employment declarations as it is already doing with asset and interest declarations of current public officials. The appropriate human, financial and technical resources should be assigned to enable the ANI to carry out this additional responsibility. Additionally, granting access to the necessary public databases and investing in information technology (IT) systems and tools could help limit the additional resources required.

The ANI could also assume responsibilities related to enforcement. Under the current conflict-of-interest prevention system, the agency refers irregularities that it detects to the competent authorities so that they can impose sanctions (OECD, 2023[5]). The competent authorities for each category of official are outlined in Law no. 176/2010 regarding integrity in the exercise of public functions and dignities, for the amendment and completion of Law no. 144/2007 regarding the establishment, organisation and operation of the ANI, as well as for the modification and completion of other normative acts. Romanian authorities could therefore consider mirroring this system when it comes to irregularities detected in the monitoring of post‑public employment. Which authorities are competent will depend on whether Romania opts to introduce administrative sanctions, criminal sanctions or a mixture of the two.

3.2. The Romanian authorities could introduce a requirement for public officials covered by post-public employment regulations to inform the ANI of their post‑public employment activities before leaving and for a proportionate period of time after leaving

To enable the ANI to monitor post-public employment activities effectively, the Romanian authorities could consider introducing a requirement for former public officials to declare information on their post-public employment activities before leaving and for a proportionate period of time (e.g. one to two years) after leaving the public sector. Such a system exists in several countries, such as Croatia under Law 143/2021 and Spain under Law 3/2015 (Box 3.1). The information in this declaration would form a baseline that responsible authorities could then compare to information obtained through other sources, such as data from tax and labour authorities.

If a post-public employment plan appears to or would result in a conflict-of-interest situation, the ANI could also be granted the competence to investigate and issue formal prohibitions, following the French High Authority for Transparency in Public Life (HATVP) model (Box 3.2). While the ANI should retain the right to decide how to act to avoid the perception of issuing “certificates of good behaviour”, such an approach would help strengthen compliance with the rules and prevent high-risk movements. Other public officials covered by the law who are high-risk but not high-level could be required to inform the relevant ethics adviser in their respective ministry (see below). If the proposed post-public employment plans constitute an actual or perceived conflict of interest with the official’s duty, the ANI could be granted competence to investigate and prohibit the move. Romanian authorities could also assign additional human and financial resources to ANI to implement the investigation function.

Box 3.1. Provisions requiring the declaration of post-public employment activities in Spain and Croatia

Spain

In Spain, public officials must seek approval for their post-public employment activities. Article 15 of Law 3/2015 regulating the exercise of the high office of the General Administration of the State prohibits high-level officials from providing services to private entities affected by decisions in which they have participated for two years after leaving office. Paragraph 6 of this article requires senior officials to declare their planned post-public employment activities to the Conflict of Interest Office before starting them. Within one month of receiving the declaration, the office must issue a ruling on the compatibility of the planned activities with the law and notify both the former official and the relevant private entity of their ruling. Under Article 16, the official must then declare these activities to the Registry of Activities of Senior Officials and this obligation extends to any new activities taken up for two years after leaving office. While the Conflict of Interest Office only verifies information in the registry at the end of officials’ mandates (Article 23), the sanctions outlined in Title IV and other sanctions apply to legal entities hiring these officials, as discussed in Box 2.8.

Croatia

The Law on the Prevention of Conflict of Interest (143/2021) also applies only to high-level officials, as outlined in Article 3. Article 23 prohibits these high-level officials from accepting a management function in a legal entity with which they conducted business while in office. To facilitate monitoring of this provision, Article 10(6) requires that high-level officials submit an asset declaration one year after leaving public office, and Article 11(2) subsequently requires former high-level officials to declare information on professional and non-professional duties carried out in the 12 months since leaving public office. These former officials are also required to declare information on their assets that would be required of current public officials under this article. The Commission for Deciding on Conflicts of Interest receives the declarations and verifies the content of the declaration via the procedure outlined in Chapter IV, which includes checks against records of the Tax Administration and other public bodies. Article 22 specifies which legal provisions apply to former public officials and for how long. For example, former employees receiving compensation are also bound by the ban on serving on administrative and supervisory boards outlined in Article 18. If the commission has credible evidence of a violation of the law, it may initiate proceedings against an official as outlined in Chapter VI and sanction them under Chapter VII. The commission can impose fines for violations, including of post-public employment restrictions and may enforce these fines by seizing property. Fines can also be imposed on legal entities hiring a former high-level official in violation of the law under Article 54.

Sources: Spain: Law 3/2015 regulating the exercise of the high office of the General Administration of the State; Croatia: Law on the Prevention of Conflict of Interest (143/2021).

Box 3.2. The procedure for reviewing planned post-public employment restrictions in France

The High Authority for Transparency in Public Life (HATVP) is responsible for pre- and post-public employment, monitoring asset and interest declarations and supervising lobbying activities. Various checks have been established within the French system to ensure adherence to ethical standards after individuals hold public office. In line with Article 23 of Law 907/2013 relating to transparency in public life, the HATVP scrutinises high-level public officials’ (ministers, mayors of large cities, heads of regulatory agencies, high-level civil servants) post-public employment activities for potential ethical risks. The scope of activities subject to approval includes self-employment and paid activities within a company or public or private interest group engaged in commercial or industrial relations with the state.

The HATVP begins its investigation either after being notified by the person pursuing the activity or discovering that a given individual is carrying out an unauthorised activity and must give an opinion within two months. The individual under investigation can present evidence during the inquiry. The investigation may result in individuals receiving a compatibility opinion, a compatibility opinion with restrictions applicable for three years or an incompatibility opinion that prohibits them from performing the activity for three years. The investigation can also yield an incompatibility opinion if the HATVP has not received sufficient information from the individual subject to investigation. Upon conclusion of the investigation, the HATVP notifies both the concerned individual and the company where they are employed in the event that this employment is subject to an incompatibility opinion.

In the event of an incompatibility opinion, the individual concerned must cease the activity at once and any contracts concluded in violation of this opinion are rendered null and void. If a former public official continues to perform an activity in violation of an incompatibility opinion, they are subject to criminal sanctions. These can include imprisonment for one year and a fine of EUR 15 000.

Source: Law no. 2013-907 of 11 October 2013, relating to transparency in public life.

3.3. The ANI could co-operate with other institutions to improve its access to data and could strengthen its capacity to monitor pre- and post-public employment integrity by investing further in technical capacity improvements

Authorities responsible for monitoring post-public employment require access to other data sources in order to verify the accuracy of information submitted to them. Relevant data sources include data from the tax agency, as it contains information on sources of income for all residents, as well as the commercial registry or registries and social security databases (where separate from tax databases).

The ANI could therefore consider exercising its power under Article 8 of Law no. 176/2010 to conclude co‑operation protocols with relevant authorities so that it has access to the necessary data for verifying the content of post-public employment declarations. At a minimum, this should include tax, social security and business registration databases. Romania is already building an environment that enables institutional data sharing1 that would facilitate effective monitoring of post-public employment activities. To enable effective monitoring of post-public employment activities, the Authority for the Digitisation of Romania (Autoritatea pentru Digitalizarea României, ADR), ANI, Ministry of Labour and Social Solidarity and the National Agency for Fiscal Administration (Agenția Națională de Administrare Fiscală, ANAF) could co‑operate to improve data interoperability so that the ANI could cross-check information from public officials’ post-public employment declarations with tax and labour databases. This would allow it to identify discrepancies in declared information, which it could investigate in more detail. However, there are a number of preconditions for database interoperability. Once Romania identifies relevant databases that the ANI should have access to, steps should be taken to ensure that data are of sufficiently high quality and recorded in a standardised manner and that databases are structured in a similar way.

The ANI could also further invest in data literacy initiatives and digital tools that could increase productivity without significant increases in staff. The ADR is already overseeing the implementation of a project entitled “Strategic framework for the adoption and use of innovative technologies in the public administration 2021‑2027 - Solutions for the efficiency of the activity”, which foresees the rollout of blockchain technology and artificial intelligence (AI) in public sector bodies (ADR, 2023[6]). In a similar vein, the ANI could explore digital tools that enable staff to process data and perform tasks more efficiently. For example, several integrity bodies in OECD countries are exploring how generative AI tools can be used to streamline operational tasks by allowing staff to query large numbers of documents and support anti-corruption activities by identifying patterns in data. Such tools could enable ANI staff to spend less time on time‑consuming operational tasks and more time on analytical tasks (Ugale and Hall, 2024[7]). However, effective deployment of such tools requires several preconditions, including sufficient IT infrastructure and data literacy among staff and clearly defined processes for how these tools will be incorporated into decision making.

3.4. Summary of recommendations

The following table provides a detailed summary of the recommendations to the government of Romania and the ANI for defining and implementing institutional responsibilities for oversight and control of pre- and post-public employment. The recommendations contained herein mirror those contained in the analysis above.

 

Issue	Recommendations
Currently, only one post-public employment regime includes a monitoring mechanism, making it impossible to check whether post-public employment rules are adhered to, potentially disincentivising compliance with these rules.	Romanian authorities could define institutional responsibilities for monitoring in the new provisions on pre- and post-public employment. Specifically, it could grant the ANI competence in this area since it is already responsible for monitoring compliance with conflict-of-interest prevention measures.
There is a lack of information available on former public officials’ post-public employment activities that would facilitate monitoring.	Romanian authorities could introduce a requirement for former public officials to declare their post-public employment activities for a limited period of time after leaving office. This would give the ANI the necessary information to cross-reference against other data sources in order to monitor compliance and investigate in case of potential conflicts of interest.
Several of the databases that are central to monitoring pre- and post-public employment integrity are held and maintained by public bodies other than the ANI.	The Romanian authorities could work with the ANI, the Ministry of Labour and Social Solidarity (MLSS), the Authority for Digitisation of Romania (ADR) and the National Agency for Fiscal Administration (ANAF) to grant the ANI legal access to tax, social security and business registration databases to monitor integrity in pre- and post-public employment. These institutions could then conclude agreements to ensure access to these databases in practice.
The ANI possesses limited resources and adding monitoring of post-public employment measures to its portfolio could undermine its ability to function effectively.	Romanian authorities could grant the ANI sufficient human, financial and technical resources to perform its additional duties effectively.
	The ANI could further invest in digital tools to increase efficiency and ensure economical use of its finite human and financial resources.

References

[6] ADR (2023), Strategic Framework for the Adoption and Use of Innovative Technologies in the Public Administration 2021-2027 – Solutions to Make the Activity More Efficient, SIPOCA code 704, MySMIS code 2014+ 129878, Authority for the Digitisation of Romania, https://www.adr.gov.ro/cadru-strategic-pentru-adoptarea-si-utilizarea-de-tehnologii-inovative-in-administratia-publica-2021-2027-solutii-pentru-eficientizarea-activitatii-cod-sipoca-704/ (accessed on 13 March 2024).

[4] GRECO (2023), Fifth Evaluation Round: Preventing Corruption and Promoting Integrity in Central Governments (Top Executive Functions) and Law Enforcement Agencies: Romania, Council of Europe’s Group of States against Corruption, https://rm.coe.int/grecoeval5rep-2022-4-final-eng-evaluation-report-romania-public/1680ac7782.

[3] Ministry of Justice of Romania (2021), Evaluation of Legislation on the Institution of Public Interest Whistleblower and Post-employment Prohibitions (Pantouflage), Ministry of Justice of Romania, Bucharest.

[5] OECD (2023), Strengthening Romania’s Integrity and Anti-corruption Measures, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/ff88cfa4-en.

[1] OECD (2020), OECD Public Integrity Handbook, OECD Publishing, Paris, https://doi.org/10.1787/ac8ed8e8-en.

[2] OECD (2010), Post-Public Employment: Good Practices for Preventing Conflict of Interest, OECD Publishing, Paris, https://doi.org/10.1787/9789264056701-en.

[7] Ugale, G. and C. Hall (2024), “Generative AI for anti-corruption and integrity in government: Taking stock of promise, perils and practice”, OECD Artificial Intelligence Papers, No. 12, OECD Publishing, Paris, https://doi.org/10.1787/657a185a-en.

Note

← 1.  Romania has established the Authority for the Digitisation of Romania (Autoritatea pentru Digitalizarea României, ADR), which is responsible for co-ordinating digital initiatives across the public administration, including ensuring the interoperability of public data. For its part, the ANI has also invested in developing its digital capacity, notably with the PREVENT system for identifying conflicts of interest in public procurement, which cross-checks data between the Electronic System for Public Procurement, the National Trade Register and the personal identity database.