Civil Service Bureau. February 2009 Study on the Control Regimes Governing Postservice Employment of Senior Civil Servants in Overseas Jurisdictions

Transcription

1 February 2009 Study on the Control Regimes Governing Postservice Employment of Senior Civil Servants in Overseas Jurisdictions Civil Service Bureau West Wing, Central Government Offices, 11 Ice House Street, HK Copyright

2 Final report on the Study on the Control Regimes Governing Post-service Employment of Senior Civil Servants in Overseas Jurisdictions Introduction Executive Summary An independent Committee on Review of Post-service Outside Work for Directorate Civil Servants (the Review Committee ) was appointed by the Chief Executive on 30 th September 2008 to review the existing policy and arrangements governing post-service outside work for directorate civil servants. The Review Committee is serviced by the Civil Service Bureau (CSB). The Review Committee would like to study the policy and arrangements adopted by selected countries regarding post-service outside work of senior civil servants in the course of the review. To provide the Review Committee members with a more in-depth understanding of the overseas control regimes governing postservice employment, CSB has commissioned an outside consultant (Hay Group Hong Kong) to carry out a fact-finding study on overseas control regimes on post-service employment of senior civil servants. The Review Committee has decided that the consultancy study should cover Australia, Canada, France, New Zealand, Singapore, the United Kingdom (UK) and the United States (USA). The Review Committee considers that these seven jurisdictions are all developed and advanced economies which could provide comparable reference. They also represent a good mix of jurisdictions from different parts of the world. Most important of all, these seven jurisdictions were among the top twenty jurisdictions in the Transparency International Corruption Perceptions Index and/or the Ranking by Freedom from Corruption compiled by the Heritage Foundation as part of the Index of Economic Freedom for 2007 and New Zealand, in particular, came top in both rankings in Copyright P.2

3 The objectives of the study are: 1. To find out the control systems and practices on the post-service employment of senior civil servants (at the federal level where applicable) in the seven selected countries; and 2. To compare and analyse the control regimes of these countries with that in Hong Kong. The Study was conducted in 3 phases, as explained below. Phase 1: Collection and Compilation of Prevailing Policies Commenced in November 2008, Hay Group Hong Kong, assisted by its Singapore office, conducted the desk research, mainly through Internet and other public domain resources. The research was also supplemented by Hay Group offices in the seven countries through local verification of the information collected, such as country-specific legislation and local statistics. Some gaps of information or general practices not readily covered by the desk research were also captured locally. The results were sent back to Hay Group Hong Kong for consolidation. Phase 2: Review and In-Depth Understanding of the Control Policies through Interviews of Relevant Government Officials and Ex-Civil Servants For six weeks in November through December 2008, Hay Group consultants in seven countries contacted and interviewed representatives of their Government departments responsible for the post-service employment control regimes. These interviews were conducted in a standard format for all seven countries. These interviews were intended to collect information regarding the control regimes, their actual implementation and related concerns and difficulties. In addition, Hay Group also invited for interview up to two ex-civil servants of senior ranks from each country who had the experience of the post-service employment control regime procedures. Their experience and views were gathered as general reference of the control regimes implementation. The number of interviews conducted in the different jurisdictions is as follows: Copyright P.3

4 Officials responsible for the control regime Ex-officials with experience of the control regime Australia Canada France New Zealand UK USA Singapore Not applicable Not applicable Phase 3: Analysis and Comparison of the Control Regimes Based on the research and interviews completed in the first two phases, an analysis and comparison of the control regimes among the seven countries and Hong Kong was made and presented in this final report. 1 None of the officials and ex-civil servants we approached consented to be interviewed. All information on Singapore in this report was collected from the public domain. Copyright P.4

5 Summary Findings Policy Objectives of the Control Regime on Post-service Employment The policy objectives (where known) 2 of the control regime on post-service employment of senior civil servants in the jurisdictions under study are based on the recognition that public concerns and suspicions of impropriety in post-service employment should be addressed. Some jurisdictions specifically mention the forms of impropriety that should be addressed in their policy objectives. These include real or potential conflict of interest with the ex-civil servant s former government duties (Hong Kong), the taking of personal advantage of information obtained in the course of official duties (Canada), and a serving officer s advice and decisions being influenced by the hope or expectation of future employment with a particular firm or organization (UK). In addition to addressing public concern over impropriety in post-service employment, France states the protection of the integrity of the senior civil servants and the political neutrality of the public service as its policy objectives. For the USA, the policy objective is to prevent conflict of interest, with emphasis on restricting working for foreign entities in matters where the USA has an interest, and professional lobbying. Some jurisdictions also state or underscore in their policy objectives the need to ensure that former senior civil servants right to pursue employment after ceasing government service or the flow of skills between the public and other sectors are not unduly restricted. These include Hong Kong, Australia and New Zealand. The Categories of Senior Civil Servants Subject to the Control Regime Although the top level of those senior civil servants covered by the control regime tends to be common across the jurisdictions (which is set right below the political appointments), there is no common cut-off level for senior civil servants to be covered in the control regimes. The senior civil servants covered are typically involved in job functions of high level policy development and advisory work, senior level managerial work and highly classified and sensitive work, such as Defence and Information System. The common rank titles are: Senior Executive, Chief Executive Officer, Senior Officer or Senior Staff, whereas in Hong Kong they are the Directorate ranks. 2 No public domain information has been found on the policy objectives of the control regime of post-service employment in Singapore. Copyright P.5

6 Four jurisdictions (Canada, Hong Kong, UK and USA) apply the control regime to senior civil servants 5 to 7 levels down from the top level in their grading structure. Hong Kong, UK and USA also apply control to other levels of civil servants. Three other jurisdictions (Australia, France and New Zealand) apply control broadly to all civil service levels with a defined set of job functions. Given the limited information available in the public domain on the details of the control regime in Singapore, an objective comparison cannot be made between the Singapore system and that of other jurisdictions. No obvious distinctions in the control regime are made between the career civil servants promoted through the ranks and experienced hires joining the civil service. However in the UK, separate categories of senior civil servants are required to use different sets of application procedures of the same control regime. The Grounds of Control In all the jurisdictions studied, the primary ground of control is the employment contract signed between the civil servants and the Government. Typically the employment contract (called letter of appointment, letter of offer, employment contract and employment agreement ) will have a companion condition of service ( Memorandum on Condition of Service, Code of Conduct, Value and Ethics Code ) which directly refers to post-service employment or indirectly refer to it through clauses pertaining to conflict of interest. Technically speaking, civil servants who break the post-service employment rules in the employment contract could be sued or be subjected to an injunction taken out in court. These are theoretical penalties that have rarely been deployed. Overall it can be concluded that the employment contract remains the primary ground of control. In terms of legislative control, most jurisdictions have legislations restricting the disposal and disclosure of official information gained during employment even after a civil service leaves the government. Violation of these laws may make the ex-civil servants concerned liable to criminal offence. In the US, restrictions on post-service activities are stipulated in the statues, the violations of which may be liable to criminal offence. In terms of administrative control, while civil servants are still in employment, typically governments issue administrative guideline or executive directives that require employees to declare conflict of interests relating to current and future employment. Code of Conduct is also enforced to ensure ethical behaviour. Copyright P.6

7 Some jurisdictions (Australia and Canada) supplement the usual ground of control through putting in place restrictions and conditions for contracts and tenders from companies employing ex-civil servants. Arrangement of the Control Regime A study of the detailed arrangement of the control regime of the jurisdictions shows a wide diversity in terms of: how the control regime is administered (centralised versus de-centralised), what are the controls (seek permission versus voluntary disclosure of intent), what are the levels of details (structured processes versus general procedures), whether external advisory bodies are involved as check-and-balance, and whether control is put on professional lobbying activities of ex-civil servants. Of the jurisdictions under study, the control regimes of Hong Kong and the UK require senior civil servants to seek permission before taking up post-service employment during a control period. Stringent application and approval procedure are in place for the effective execution of the system. An external body in the form of an Advisory Committee represented by external parties further adds to the transparency and credibility of the system. In France, an Ethics Commission vets the applications of post-service employment to ensure the postservice employment of ex-civil servants would not create conflict of interests with their previous responsibilities. In Hong Kong, the typical control period during which departed senior civil servants must seek permission for outside work varies from 2 to 3 years according to rank or length of government service prior to departure. In the UK, the control period is 2 years. In France, the restriction period is set at 3 years after departing the civil service but the restrictions are made in relation to the activities that the civil servants undertook 3 years before his departure from the civil service. It is noteworthy that France shortened the restriction period from 5 years to 3 years in 2007 to be in line with the practice of other countries. In comparison to Hong Kong, the control regime in Australia does not impose official requirements to apply or seek permission for post-service employment. The control approach places more emphasis on mutual agreement with departing civil servants on the desirable behaviour to be exercised beyond government employment, and the approach is largely built on mutual trust. The robustness of Copyright P.7

8 the system relies on the senior public servants personal behaviour during and after government employment and hence there is a strong and systemic need to emphasise the importance of ethics and integrity of the public sector. USA and Canada place more emphasis on restricting specific activities that a civil servant takes up after leaving the civil service than on seeking permission for employment per se. The system in the USA is different from that of Hong Kong in its imposing varying periods of restriction according to the post-service activities in relation to the responsibilities undertaken by the ex-civil servants before departure. Professional lobbying activities are subject to stringent control. However, since the restrictions on post-service activities as stipulated in the statues are precise and narrowly defined, while violations may be liable to criminal offence, the threshold of proof for successful prosecution of such offence is high. USA and Australia have restrictions on ex-civil servants taking up lobbying activities. Given the limited information available in the public domain on the details of the control regime in Singapore, an objective comparison cannot be made between the Singapore system and that of Hong Kong. Sanction in Breach of Control Regime Of the jurisdictions under study, Hong Kong has explicit sanctions regarding breaching of the control regime under the Civil Service Regulations and pensions ordinances. In France the penalty of breaching the control regime is also specified in law. In Singapore, pensions may be suspended if the pensionable civil servants become gainfully employed without seeking prior permission. 3 In the USA, since the regulation of the post-service activities is promulgated through criminal statute, penalties for violation are clearly stipulated. Sanctions for breaching the control regime in the other jurisdictions are not as well defined. Legal sanctions may result through civil action under employment contract law or prosecution under criminal law relating to post-service activities in those 3 The Singapore Government moved away from the pension scheme for the majority of civil servants since Most civil servants in Singapore are now on Central Provident Fund rather than on pensionable service. The provisions of the Pensions Act are only applicable to officers who are appointed to such schemes of service as may be designated by the President. Only those officers appointed to the designated services are subject to post-employment control under the Pensions Act. Copyright P.8

9 jurisdictions where these laws apply. These criminal laws mainly pertain to the unauthorized disclosure of official information obtained in the course of public service after departure from government. Supplementary Information on Retirement Benefits On whether post-service employment has bearing on retirement benefits, in Hong Kong, pensions may be suspended for those pensionable ex-civil servants who are re-appointed to the public service or 16 gazetted subvented organisations. In Australia, New Zealand and the USA, post-service employment of ex-civil servants, whether in or outside the government, has no impact on their retirement benefits. In Canada and the UK, pension will not be affected if the approved post-service employment is outside the government. But reappointment into the civil service will have a bearing on the pension. For Singapore, there is no information on whether the taking up of permitted postservice employment in certain areas or with certain types of employers will have a bearing on retirement benefits of the ex-civil servants concerned. Copyright P.9

10 Study on the Control Regimes Governing Post-service Employment of Senior Civil Servants in Overseas Jurisdictions Chapter 1: Introduction Table of Content Chapter 2: Policy Objectives of the Control Regime on Post-Service Employment Chapter 3: The Categories of Senior Civil Servants Subject to the Control Regime Chapter 4: The Grounds of Control Chapter 5: Arrangement of the Control Regime Chapter 6: The Sanctions to be Applied to Breach of the Control Regime Chapter 7: Supplementary Information on Retirement Benefits Copyright P.10

11 Chapter 1: Introduction 1.1 Background An independent Committee on Review of Post-service Outside Work for Directorate Civil Servants (the Review Committee ) was appointed by the Chief Executive on 30 th September 2008 to review the existing policy and arrangements governing post-service outside work for directorate civil servants. The Review Committee is serviced by the Civil Service Bureau (CSB). In the course of the review, the Review Committee will study the policy and arrangements adopted by selected countries regarding post-service outside work of senior civil servants. To provide the Review Committee members with a more in-depth understanding of the overseas control regimes governing post-service employment, CSB has commissioned a study on the subject. To facilitate the work of the Review Committee, CSB has commissioned an outside consultant to carry out a fact-finding study on overseas control regimes on post-service employment of senior civil servants. The Review Committee has decided that the consultancy study should cover Australia, Canada, France, New Zealand, Singapore, the United Kingdom (UK) and the United States (USA). The Review Committee considers that these seven jurisdictions are all developed and advanced economies which could provide comparable reference. They also represent a good mix of jurisdictions from different parts of the world. Most important of all, these seven jurisdictions were among the top twenty jurisdictions in the Transparency International Corruption Perceptions Index and/or the Ranking by Freedom from Corruption compiled by the Heritage Foundation as part of the Index of Economic Freedom for 2007 and New Zealand, in particular, came top in both rankings in Copyright P.11

12 1.2 Study Objectives The objectives of the study are: 1. To find out the control systems and practices on the post-service employment of senior civil servants (at the federal level where applicable) in seven selected countries; and 2. To compare and analyse the control regimes of these countries with that in Hong Kong. 1.3 Project Scope The study covered the control regimes of Australia, Canada, France, New Zealand, Singapore, UK and USA. Post-service employment refers to the employment of senior civil servants who leave the government services through retirement, termination of contract, expiry of agreement/contract and resignation. 1.4 Methodology In order to complete the research and analysis of proprietary and sensitive information from seven countries within a short period of six weeks, the Study was conducted in 3 phases, as explained below: Phase 1: Collection and Compilation of Prevailing Policies Commenced in November 2008, Hay Group Hong Kong, assisted by our Singapore office, conducted the desk research, mainly through Internet and other public domain resources. The research was also supplemented by Hay Group offices in the seven countries through local verification of the information collected, such as country-specific legislation and local statistics. Some gaps of information or general practices not readily covered by the desk research were also captured locally. The results were sent back to Hay Group Hong Kong for consolidation. An interim report was submitted to CSB in December Copyright P.12

13 Phase 2: Review and In-Depth Understanding of the Control Policies through Interviews with Relevant Government Officials and Ex-Civil Servants For six weeks in November through December 2008, Hay Group consultants in seven countries contacted and interviewed representatives of their Government departments responsible for the post-service employment control regimes. These interviews were conducted in a standard format for all seven countries. These interviews were intended to collect information regarding the control regimes, their actual implementation and related concerns and difficulties. In addition, Hay Group also invited for interview up to two ex-civil servants of senior ranks from each country who had the experience of the post-service employment control regime procedures. Their experience and views were gathered as general reference of the control regimes implementation. The number of interviews conducted in the different jurisdictions is as follows: Officials responsible for the control regime Ex-officials with experience of the control regime Australia Canada France New Zealand UK USA Singapore Not applicable Not applicable Phase 3: Analysis and Comparison of the Control Regimes Based on the research and interviews completed in the first two phases, an analysis and comparison of the control regimes among the seven countries and Hong Kong was made and presented in this final report. 4 None of the officials and ex-civil servants we approached consented to be interviewed. All information on Singapore in this report was collected from the public domain. Copyright P.13

14 1.5 About this Final Report This report starts with an introduction section in Chapter 1 recapturing the background, objectives, scope and methodology of this project. The purposes of having these control regimes in the eight jurisdictions (seven countries and Hong Kong), both social and political, are explored in Chapter 2 Policy Objectives. As different countries/jurisdictions have different categorisation of senior civil servants under their control regimes, their similarities and differences are examined in Chapter 3. Then the research results on the basis of control of the regimes: legal, contractual and administrative, are presented in Chapter 4. Control implementation details such as application and approval procedures are covered in Chapter 5 Arrangements of the Control Regime. Breach of the control procedures and its consequences such as sanctions are the subjects of Chapter 6. Finally, supplementary information on the civil service retirement benefit schemes adopted in different countries/jurisdictions is covered in the last Chapter 7. Due to the abundance of information from eight jurisdictions (seven countries and Hong Kong), each Chapter starts with an overall analysis of the subject, followed by highlights of key similarities and/or variations of the jurisdictions. For an accurate comparison, the highlights are mostly abridged text from the jurisdictions official documentations. Copyright P.14

15 Chapter 2: Policy Objectives of the Control Regime on Post- Service Employment 2.1 Definitions Post-service employment (also known as post-office employment, postemployment and post-separation employment in some jurisdictions) refers to the employment civil servants take up upon leaving the civil service. The control regime on post-service employment of senior civil servants refers to the control and restriction, on legal, contractual or administrative grounds, that are imposed on the employment and any related activities that senior civil servants take up after leaving the civil service. This could be applicable to them during their final leave period when they are not in active service but still retain their civil servant status, and could also be within a specified period after their departure from the civil service. Our study shows that among the eight jurisdictions under study, seven 5 have stated their purposes of having control procedures on post-service employment. 2.2 Perceived Merits and Demerits of Post-Service Employment The objectives of imposing post-service employment control on senior civil servants largely depend on how post-service employment itself is viewed both by the public and the Government. In spite of their differences in social, political and cultural environment, the seven 6 jurisdictions show the following common perceived merits and demerits (pros and cons) of allowing ex-civil servants to take up post-service employment. 5 No public domain information has been found on the policy objectives of Singapore s control regime. 6 No public domain information has been found on the policy objectives of Singapore s control regime. Copyright P.15

16 2.2.1 Merits From the Government s perspective, allowing post-service employment is viewed as helpful in both retaining senior civil service staff, as well as attracting outside talents to join the civil service. From the private sectors perspective, allowing post-service employment will improve their understanding of Government policies and organisation culture, thereby become more responsive in working with Government. For the society as a whole, allowing post-service employment will allow the gainful use of human resources Demerits Notwithstanding the merits, in most jurisdictions, concerns and issues are raised in relation to how the civil servants will use the information and contacts obtained during their employment with the government in post-service employment. During employment, civil servants may have access to confidential or sensitive information and establish contacts within the government and with outside agencies. In the post-service employment, civil servants may use the information obtained and contacts established during their employment with the government to the benefit of their employer but unfairly disadvantaging other organisations in competition with their employer. Civil servants who are self-employed after leaving the civil service might take personal advantage of information obtained in the course of official duties and responsibilities before such information becomes available to the general public. There might also be suspicions that the post-service employment is a reward for past favours granted to the civil servant concerned by his employer. It is a demerit in some jurisdictions that post-service employment could arouse the public s concern of conflict of interest and gaining of improper advantages and generate a negative impression of the civil service. Copyright P.16

17 2.3 Summary Findings on Policy Objectives The policy objectives (where known) of the control regime on post-service employment of senior civil servants in the jurisdictions under study are based on the recognition that: While there are merits in allowing civil servants with experience of public administration to move into business or other bodies, public concerns and suspicions of conflict of interest giving rise to unfair competition and creating opportunities for civil servants to be rewarded for past favours they gave, should be addressed. It is therefore important to establish control procedures that will mitigate the public s concerns and suspicions. It is obvious that the objectives are more preventive in nature, seeking to avoid any potential demerits of post-service employment. Therefore the control regimes are designed primarily to counter any suspicion that an appointment might be a reward for past favors, or a gain of unfair advantage for the future through access to confidential information. Interviews with officials and ex-officials In the interviews Hay Group conducted with officials and ex-officials in the six 7 countries, the above objectives of the control regime are well understood and articulated. The major theme cited in the interviews pertains to maintaining public confidence with the civil service through: preventing civil servants from developing inappropriate relationships with their prospective employers or using information that they have acquired during their Government career to the advantage of their new employers; and avoiding conflict of interests perception when ex-civil servants deal with Government departments they had served before. 7 Singapore is not covered in this section as none of the officials and ex-civil servants we approached consented to be interviewed. Copyright P.17

18 2.4 By-Jurisdiction Analysis Hong Kong The policy objective on post-service outside work control is to ensure that directorate civil servants on final leave or who have left the service will not take up any work outside the Government which may constitute a real or potential conflict of interest with their former government duties or cause negative public perception embarrassing the Government and undermining the image of the civil service, without at the same time unduly restricting the said individuals right to pursue employment or other work after ceasing government service Australia The primary purpose of this policy, as stated in official documents, is not to restrict the flow of skills, experience and information between the Australian Public Service (APS) and other sectors but to manage conflicts of interest when APS employees, including those about to take up appointments with the private sector, deal with outside organisations and individuals. 9 Based on the interview with the officials, it appears that the policy objectives of the Australian control regime can be further expanded as follows: Ensure probity/integrity in government expenditure/decisions Protect organisational and individual reputation from perceived conflict of interests Ensure fair and equitable government procurement processes Ensure ongoing strength of employment market o Mobility of employees o Transfer of skills o Long-term development of employee skills Ensure that confidential government information is not compromised. 8 Legislative Council Paper No. CB(1)84/08-09(01) 9 Circular no. 2007/3: Post Separation Employment: Policy Guideline in Chapter 12 of the APS Values and Code of Conduct. Copyright P.18

19 2.4.3 Canada According to Chapter 3 of the Values and Ethics Code for the Public Service 10 the objective of the post-employment measures is to establish rules of conduct respecting post-employment. The control regime is implemented to ensure that public office holders shall not act, after they leave public office, in such a manner as to take improper advantage of their previous public office and to minimise the possibilities of: (a) allowing prospects of outside employment to create a real, potential or apparent conflict of interest for public office; (b) obtaining preferential treatment or privileged access to government after leaving public office; (c) taking personal advantage of information obtained in the course of official duties until it has become generally available to the public; and (d) using public office to unfair advantage in obtaining opportunities for outside employment. 11 Based on the interviews with the officials and ex-officials, one additional policy objectives mentioned was the avoidance of paying double benefits to prevent former civil servants from receiving both a pension and a salary from the public sector at the same time. (Details on the avoidance of double benefits are contained in Chapter 7 of this report.) France The main policy objective of governing employment of senior civil servants after they leave the civil service is to protect both the integrity of the senior civil servants and the political neutrality of the public service. 10 Values and Ethics Code for the Public Service issued by the Treasury Board of Canada Secretariat in Conflict of Interests and Post-office Employment Code of Public Office Holders issued by the Prime Minister of Canada in code/code-conflict-eng.htm#message Copyright P.19

20 High-level civil service positions are typically paid less than the equivalent positions in private industries. When a civil servant takes permanent departure from the Government, there is always a chance that he goes into an industry he used to regulate or monitor while he was a civil servant. This may raise the suspicion that the appointment may be a reward of past favour, a form of delayed bribery. The perceived close relationship between some industrial, political and administrative circles is often denounced by the public. Hence the major objective for the control regime is to mitigate public concerns with impropriety in post-service appointment New Zealand The policy objective of the control regime is to balance the perceived merits and demerits of post-service employment. It is recognised that the advantages that ex-civil servants could bring to their new employers are considerable. They include knowledge of research results and administrative processes. Constraints on post-service employment are thus not recommended unless it amounts to conflict of interest or breach of confidentiality. The responsibility is on departmental staff to ensure that their processes and decisions do not unduly accommodate the advantages that ex-employees may have. The interests advocated by ex-employees must be properly balanced within the wider public interest. Current staff needs to be alert to the risk that a perception of favouritism could develop if those staff do not deal with ex-employees and their interests in ways which are seen to be totally even handed Singapore No public domain information has been found on the policy objectives of the control regime of post-service employment UK The aim of the rules is to maintain public trust in the Crown services and in the people who work in them, and in particular: a. to avoid any suspicion that the advice and decisions of a serving officer might be influenced by the hope or expectation of future employment with a particular firm or organisation; or 12 Report by New Zealand State Services Commissioner undertaken by one of the Deputies and a Queens Counsel. Copyright P.20

21 b. to avoid the risk that a particular firm might gain an improper advantage over its competitors by employing someone who, in the course of his official duties, has had access to technical or other information which those competitors might legitimately regard as their own trade secrets or to information relating to proposed developments in Government policy which may affect that firm or its competitors. 13 Based on the interview with the official responsible for the control regime, the main consideration behind the control regime is the maintenance of public confidence in relation to the ethics and integrity of the civil service USA Post-employment conflict of interest is a primary concern. Laws are enacted under Section 207 of Title 18 of the United States Code (18 U.S.C. 207) to deal with the issue of conflict of interest, and to prohibit certain acts by former employees which involve, or may appear to involve, the unfair use of information and contacts obtained during Government employment. Preventing professional lobbying activities by ex-civil servants who may have insider information through their prior activities within the Government is also an important policy objective. 13 Rules on the Acceptance of Outside Appointments by Crown Servants, issued by the U.K. Government. Copyright P.21

22 Chapter 3: The Categories of Senior Civil Servants Subject to the Control Regime 3.1 Summary Findings Of all the jurisdictions studied, senior civil servants cover the top levels of civil service, excluding the political appointee level (typically Minister/ Deputy Minister, Secretary, Deputy Secretary, Head, Deputy Head). Although the top level of those senior civil servants covered by the control regime is common across the jurisdictions (which is set right below the political appointments), there is no common cut-off level for senior civil servants to be covered in the control regimes. The senior civil servants covered are typically involved in job functions of high level policy development and advisory work, senior level managerial work and highly classified and sensitive work, such as Defence and Information System. The common rank titles are: Senior Executive, Chief Executive Officer, Senior Officer or Senior Staff, whereas in Hong Kong they are the Directorate ranks. Four jurisdictions (Canada, Hong Kong, UK and USA) apply the control regime to senior civil servants 5 to 7 levels down from the top level in their grading structure. Hong Kong, UK and USA also apply control to other levels of civil servants. (Please see the respective sections for more details). Three other jurisdictions (Australia, France and New Zealand) apply control broadly to all civil service levels with a defined set of job functions (as described above). Given the limited information available in the public domain on the details of the control regime in Singapore, an objective comparison cannot be made between the Singapore system and that of other jurisdictions. No obvious distinctions in the control regime are made between the career civil servants promoted through the ranks and experienced hires joining the civil service. However in the UK, separate categories of senior civil servants are required to use different sets of application procedures of the same control regime. There are adequate common characteristics of senior civil servants defined in all jurisdictions (except Singapore, see paragraph above) to analyse and compare the control regimes and their implementation in a meaningful way. A general summary of senior civil servant categorisation in each jurisdiction is described in the following Section 3.2. Copyright P.22

23 3.2 By-jurisdiction analysis Hong Kong The control regime covers directorate civil servants, who have been appointed substantively to civil service posts pitched at the rank of Directorate Pay Scale 1 (D1) to Directorate Pay Scale 8 (D8) (or equivalent), with D8 being the highest rank, including civil servants on agreement terms. 14 Non-directorate civil servants who retire on pensionable terms are also subject to post-service outside work control. For the purpose of this study, details of the control regime for nondirectorate civil servants are not covered in this report Australia The control regime applies to all civil servants in the Australian Public Service (APS). Based on the interview with the officials, specific populations within the civil service are seen as more concerned by post-service employment issues: Senior Executive Service (SES) employees refer to those staff established under S.34 and S.35 of the Public Service Act 1999, who o may undertake higher level policy advice, managerial and professional responsibilities in departments and o may be deployed by Secretaries within departments and by the Public Service Commission between departments so as to promote the efficiency of the APS Staff in sensitive positions usually commercial sensitivity e.g. contracting and procurement Program / project managers in Defence Staff with knowledge of Information System infrastructure requirement and practices 14 Civil servants on agreement term are appointed for a fixed-term normally up to three years, and subject to renewal as necessary on a case-by-case basis. Copyright P.23

24 SES employees are graded from Band 1 to 3, Band 3 being the highest grade. Band 1 covers such positions as General Manager, Executive Director or Assistant Secretary; Band 2 titles include First Assistant Secretary and Chief Information Officer; Band 3 includes such titles as Deputy Advisor Canada The post-service employment compliance measures described here apply specifically to those public servants staffed in Executive Group (EX) positions and their equivalent, as well as EX minus 1 and EX minus 2 positions and their equivalent. Typical job titles would be Assistant Deputy Minister, Director General, Director, or the equivalent. These positions are three levels down the hierarchical level of a Deputy Head of a department or agency, who is a political appointee. The Deputy Head may designate other positions as being subject to these measures (where the position involves official duties that raise post-employment concerns), or exclude positions from the application of the post-employment measures (when the official duties of these positions do not raise concerns for post-employment). Before doing this, the Deputy Head must consult the Treasury Board of Canada (TB) Secretariat when applicable. 15 There are approximately 30 ministries (departments) in the federal government with the TB as the general manager and employer of all the civil servants. 16 As the employer, TB delegates authorities to the Deputy Heads of departments to manage their departments in accordance with TB policies and directives. TB also monitors the actions of Deputy Heads. The role of the Deputy Head is to be the senior advisor to the Minister and the senior executive managing a department. For example, the Department of Agriculture and Agri-Food Act contains a clause that states that The Governor in Council may appoint an officer called the Deputy Minister of Agriculture and Agri- Food to be the Deputy Head of the Department. Deputy Heads are subject to an entirely different appointment and human resource management regime from the civil servants. For the purposes of this study, they would generally not be considered to be civil servants but rather public office holders. 15 Canada: Values and Ethics Code for the Public Service issued by the Treasury Board of Canada Secretariat in Financial Administration Act Copyright P.24

25 3.2.4 France All civil servants are covered under the control regime, in particular all those senior civil servants who had been involved in making decisions on or giving advice to companies in the private sector while they were in public service and/ or their post-service job in the private sector could subject them to the possibility of gaining access to confidential information from their former colleagues in the civil service. The structure of the French Civil Service ranks staff from grade A++ (senior civil servants) to A+, A, B and C. The A++ grade is equivalent to Hong Kong s Directorate ranks and covers positions such as Director of the Central Administration, Service Regional Director, Audit Office Advisor, Ambassador, Prefect etc. As a reference to understand the relative positions of A++ grade versus the other grades, the A+ grade includes titles such as Administrator, Police Superintendent, State Architect and Urban Planner, Hospital Director, University Researcher, High Level Engineer and Specialist Doctor New Zealand The control regime is applied to all civil servants regardless of ranks. The heads of the government departments and Crown Entities (known as Chief Executive Officers or CEOs ) have typically risen up through the ranks of the public service and represent the highest level of civil servants under the appointed ministers. They are comparable to HK's directorate grade civil servants by rank and job function and therefore are the main interest of this study. They are recruited via an open recruitment process and are employed under time limited contract terms (normally 5 years), while the next level down, the Senior Executives, are employed on permanent terms Singapore The Pensions Act (Chapter 225) contains provisions that govern the post-service employment of pensioners. According to section 3(4)(a), the provisions of the Pensions Act are only applicable to officers who are appointed to such schemes of service as may be designated by the President Until December 1972, almost all civil servants in Singapore were on pensionable service. Two conversion exercises were conducted in 1973 and 1986 to phase out the pension scheme. Serving pensionable officers (except for those in the Copyright P.25

26 designated services) were allowed to opt for the Central Provident Fund (CPF) scheme or remain on the pension scheme. Since then, new officers in the nondesignated services are appointed only on the CPF scheme. As such, most civil servants in Singapore are now on CPF rather than on pensionable service. As at November 2003, pensionable officers account for just 16% of all civil servants UK The control regime applies to all civil servants at the end of their employment with the civil service, including final leave. The senior civil service (SCS) is classified according to pay bands based on Job Evaluation for Senior Posts (JESP) which provides a consistent basis for comparing the relative value of jobs within and across departments. Most departments use the following three core SCS pay bands: Pay Band 1 with title such as Deputy Director; Pay Band 2 with title such as Director; and Pay Band 3 with title such as Director General Permanent Secretaries of the departments usually come into Pay Band 4 or above. All civil servants above pay band 4 (e.g. the Permanent Secretaries) must seek approval from an independent Advisory Committee on Business Appointment (ACOBA) before taking up a post-service employment, although the approving authority is the Head of the Department. Other senior civil servants in pay bands 1 3 and all other civil servants must seek approval from their department before taking up any form of full or part time or fee paid employment in the UK or overseas in a public or private company, or in the service of a foreign government or its agencies if: They have had official dealings with their prospective employer during the last two years of public service. They have official dealings with a continued or repeated nature with their prospective employer at any time during their period in Crown employment HR Practitioners Guide to SCS Rewards Copyright P.26

27 They have access to commercially sensitive information of competitors of their prospective employer in the course of their official duties. Their official duties in their last two years of Crown employment involved advice or decisions benefiting their prospective employer for which the offer of employment could be interpreted as a reward or have been involved in developing policies or knowledge which might be of benefit to their prospective employer. They are to be employed on a consultancy basis, either for a firm of consultants or as an independent or self-employed consultant and they have had any dealings of a commercial nature with outside bodies or organisations in their last two years of Crown employment USA The Senior Executive Service (SES), established by the Civil Service Reform Act of 1978, serve in key positions just below the top Presidential appointees. They are a corps of executives selected for their leadership qualifications. These leaders possess executive skills and are the major link between the political appointees and the rest of the Federal work force. They operate and oversee nearly every government activity in approximately 75 Federal agencies. The post-service employment control arrangements apply to all former employees of the executive branch of the Federal Government or independent agencies. Senior employees and very senior employees are subject to more restrictions. Typical titles of senior employees and very senior employees are Director and Chief Officer respectively. A senior employee includes SES and any individual who are paid at a rate of basic pay equal to or greater than 86.5% of the rate for Level II of the Executive Schedule, which is US$148,953 as of January A very senior employee includes SES and any individual who is paid at Level I of the Executive Schedule, which is US$191,300 as of January Copyright P.27

28 Chapter 4: The Grounds of Control 4.1 Summary Findings In all the jurisdictions studied, the primary ground of control is the employment contract signed between the civil servants and the Government. Typically the employment contract (called letter of appointment, letter of offer, employment contract and employment agreement ) will have a companion condition of service ( Memorandum on Condition of Service, Code of Conduct, Value and Ethics Code ) which directly refers to post-service employment or indirectly refer to it through clauses pertaining to conflict of interest. Technically speaking, civil servants who break the post-service employment rules in the employment contract could be sued or be subjected to an injunction taken out in court. These are theoretical penalties that have rarely been deployed. Overall it can be concluded that employment contract remains the primary ground of control. Most jurisdictions have legislations restricting the disposal and disclosure of official information gained during employment even after a civil servant leaves the government. Violation of these laws may make the ex-civil servants concerned liable to criminal offence. In the US, restrictions on post-service activities as stipulated in the statues are precise and of a narrow application. While violations may be liable to criminal offence, the threshold of proof for successful prosecution of such offence is high. While civil servants are still in employment, typically governments issue administrative guideline or executive directives that require employees to declare conflict of interests relating to current and future employment. Code of Conduct is also enforced to ensure ethical behaviour. In spite of standard questions asked, most officials and ex-officials interviewed did not provide definitive information or their views on the ground of control other than stating the facts on the stipulations of post-service employment in the employment contracts. Finally it is worth mentioning that some jurisdictions (Australia and Canada) supplement the usual ground of control through putting restrictions and conditions for contracts and tenders from companies employing ex-civil servants. Copyright P.28