ETHIC AND DECISIONAL TRANSPARENCY IN THE ROMANIAN PUBLIC ADMNISTRATION

Abstract

The following article underlines the importance in identifying and adopting a new ethic and decisional transparency in the current especially corrupt Romanian public administration, updating the ethical law and the formation of civil servants at the European ethical standards. The administrative reform cannot be done without issuing new professional and morality standards. Our research starts from a clear and realistic analysis of the corruption phenomenon in the Romanian administration reality, which has outgrown social rationality. The existence of a system corruption in administration is an extremely serious fact, but not inevitable as long as they constantly act to sanction and diminish the phenomenon. The transparency of the processes in the public administration, especially those of decision making are crucial for keeping the corruption at acceptable limits.

Headnote

Abstract: The following article underlines the importance in identifying and adopting a new ethic and decisional transparency in the current especially corrupt Romanian public administration, updating the ethical law and the formation of civil servants at the European ethical standards. The administrative reform cannot be done without issuing new professional and morality standards. Our research starts from a clear and realistic analysis of the corruption phenomenon in the Romanian administration reality, which has outgrown social rationality. The existence of a system corruption in administration is an extremely serious fact, but not inevitable as long as they constantly act to sanction and diminish the phenomenon. The transparency of the processes in the public administration, especially those of decision making are crucial for keeping the corruption at acceptable limits.

Keywords: corruption, transparency, ethical law, code of ethics for public servants.

All democratic countries have adopted a specific legislation that is meant to make the decisional process in the public administration more transparent.

Corruption is a constant phenomenon present in all countries, regimes or political systems, while being a characteristic for all historical eras. Still it has been observed that the corruption practices are different from country to country and, as a general consensus, in the western countries the corruption is less present. Corruption has multiple and diverse causes, this in turn determines specific strategies and measures to counter and diminish this phenomenon, especially in the public administration.

In one of the simplest definition, Peter Singer states that ethics is something that teaches us how to live. Sometimes, through ethics, we understand a "set of rules, principles or ways of thinking which tries to guide the activity of one group"1. In other words "it is the systematic and rational attempts of how we must act".

The morality of a society, a political system or of a public organization is represented by what it is considered positive or negative inside that group. It reflects the values that are important for the members and it is expressed through laws, rules, policies or procedures, and also by informal norms.2 Singer does not embrace this opinion, he believes that by looking at the etymology of both notions (ethos gr. for ethics and mores lat. for morals) we observe that their meaning is identical or at least sufficiently close to be considered synonyms. However, we can say that in spite of the academic debate, in common language, both words are mostly used as synonyms.

Ethics and the Romanian public administration

The first theories regarding ethics were formulated in antiquity. This field of knowledge has been a pursuit for many philosophers, but the ones who created the first models are the two great Greek thinkers, Plato and especially Aristotle. The latter wrote three treaties on morals that are still under controversy regarding the authorship; however there is a consensus over one of them, Nicomachean Ethics.3

According to the American author Rosalind Hursthouse, this view of ethics shows the individuals virtue, more precisely his moral code. Thus, virtue ethics is considered to be an approach which: "1. Is preoccupied rather with the individual quality than the actions that he must do; 2.raises the question: what type of person must I become instead of what actions should I perform??; 3. Is using concepts of good or virtue rather than just, duty, responsibilities; 4. Rejects the idea that ethics is coded to serve as guide for certain actions.4

Returning to Aristotle's view, man is by nature driven to find well-being. Meanwhile, "the well-being is not something concrete as money, honour or pleasure". Aristotle uses a difficult word to translate, eudaimonia, which may mean blessing, happiness or prosperity, a mood in which you feel good and you do good, while feeling good. Virtues are exactly those qualities that help the individual reach eudaimonia.5 Mankind does not possess these virtues by nature, only the innate ability to learn them while practicing them: "...none of the ethical virtues are inoculated in us by nature, because nothing that is innate could be changed by experience: for example, the rock, which nature gave a downward movement, could not learn an invert movement, so our virtues are not natural and also not against nature, but we are born with the skill to receive them and perfect them through experience".6

Throughout the learning process, what we accumulate from those around us, is affecting the way we are behaving in the future. Classic organizational theories started from the premise of "dehumanizing" the organizations, public or private. Max Webber, in his model of ideal bureaucracy, and Frederick Taylor, in his "Principles of Scientific Management", imagined structures in which the human factor was reduced a simple "cog" in a "gear". Peoples could be replaced without affecting the functioning of the system. Behaviouristic theories have amended this approach, proving that there is a mutual influence between the organization and those who are part of it. Thus, the working conditions in an organization influence the performance of its members, but in equal measure the results of the organization are affected by the behaviour of those composing it.7

Similar approaches have appeared in the field of ethics, just that the succession was reversed. Human nature was considered for a long period of time the only or at least the most important element responsible for unethical behaviour. In other words, corruption or other forms of breaching the moral conduct appear when people prone to wrongdoing are in places of power. In the last 10 years the specialists' opinion has changed because of the latest findings from studies on corruption, also from the act of fighting corruption.

A serious discussion about ethics in the Romanian public administration has never taken place. Following the Revolution in 1989, ethics has been mentioned only because of the forms corruption has taken in the public sector, and this only limited to the political speech. Of course, we can't deny the existence of legal stipulations8, which can be considered true ethical norms through the prescribed conduct. Starting with the year 2000, the Romanian legislation has improved with stipulations meant to regulate the fight against corruption in the public administration and to stimulate ethical behaviour9. However, this is the biggest deficiency with which the majority of the modern administrations are confronting: the lack of regulation in the field of ethics, a theoretical framework to highlight the objectives, definitions and reference point for the research and practice in administrative ethics. Simply issuing legislation is a good start, but not enough to assure an ethical public administration. In Romania, at the moment we don't have an official text that clarifies the concept of "ethics" and especially when it is applied in the public administration10.

As mentioned before, the current legislation has improved after the year 2000, one could say that Romania is a state with anti-corruption laws at European level. Still, even if the legislative framework is competent, the mere regulation is not capable to assure the fact the Romanian administration is ethical. Fortifying rules doesn't guarantee ethical results.

Nevertheless, we need to highlight that today unethical behaviour is mostly considered a consequence of the context, lacking legislation or poor organization from the public institutions. To correctly understand the causes that lead to unethical behaviour leads to identifying the most efficient ways in battling it.

The importance of beating corruption results from analysing the effect that it has inside the public institutions and on the whole community.

First of all unethical behaviour and mostly the deeds that fall under the generic name of corruption have as a result inefficiency, a waste of all resources that are available for the organizations in the public administrations. This leads the organization not fulfilling all of its attributes, not to provide its services to the population and, if so, to provide bad quality service.

Another consequence of breaching ethical norms is the decrease in citizen satisfaction and trust towards public institutions. This mistrust could cause problems in implementing public policies or forms of public disobedience as the refusal to pay taxes or tolls, protest which could turn violently.

Administrative corruption

It is an undeniable fact that corruption in Romania's public administration has increased in the last period at alarming rates to an all high level, and this effect is not exclusive to public administration.

By conceptualizing corruption we consider analysing the report between corruption and law. Thus, moral norms could become official and be represented through applicable laws by the government authority. In this sense corruption is first and foremost a deviation from the law. Legal regulations forbid certain actions that label an individual as corrupt. The mandatory nature of law makes a person's action to be legal or illegal. However, if the regulations are scarce it can permit some individuals to act morally incorrect or unethical, but still legal.

Analysing the administrative corruption claims the approach of the phenomenon from the general to the particular, be it by taking into account the level at which it manifests or just from the perspective of highlighting a great variety of definitions. The simplest and most general definition is the following: corruption is the use of official public power for personal gains. Transparency International defines corruption as: "the incorrect use of competency entrusted by the state for personal gains".11 Corruption understood as public power abuse for private gain may be of financial, material or immaterial order, influencing political ambitions or professional. Thus, the notion of corruption encompasses also the influencing the impartial process of decision making executed by any actor of the administrative system.

American authors, William L. Richter, Frances Burke and Jameson W. Doig compile possible approaches and definitions of administrative corruption. A first approach is defined in relation to the public interest: "We talk about corruption every time a person that holds a public office acts in favour on one after receiving from them a reward of financial or of any other nature that is not mentioned by law and thereby harming the public interest".12 The second type of definitions has at its core the concept of "public duty" or the "duty of the civil servant", "a type behaviour that deviates from the official duty with the objective of personal gain". As long as there are no confusions regarding to what "public duty" means, the acts of corruption can be identified with great precision.

A different category starts from placing the public sector activities in a market context. "Corruption implies the transfer from criteria established by laws and regulation to criteria that based their model on the free market". Thus, the "price" which is established by laws or other regulation, the conditions a citizen need to fulfil to benefit from a service are abandoned for a request and demand principle, which implies the appearance of corruption. This definition is probably the most useful, since it permits the identification of both causes of unethical behavioural and efficient remedies. A first interpretation of this definition may affirm that the norms that are at the basis of the public institution activity and also of its personal are mostly constrictive and are creating blockages and delays which may be avoided by corrupt practices. Some specialists talk about innocent corruption. To better understand this approach we can think about a park envisioned by an architect with a number of alleys. After a time, other alleys are appearing on the green space, the reason is simple: citizens are finding quicker ways to cross the park. That is way some architects may leave the parks initially without alleys, so that the users choose the paths, which in turn will be made permanent. The same may be said about laws and regulation, wouldn't it be better to wait and see how law may be created naturally and then formalize it. This way of defining corruption permits the identification of another possible cause of it, the lack of goods and services. In other words, if a good or a service is scarce, restricted supply, and the demand is high, the "price" would grow through acts of corruption.

Another cause of breaching public integrity norms, which in turn has economic connotations, is the monopoly some persons or institutions have on supply of goods or services. This position may be used to gain unlawful gains.

The biggest advantage in approaching corruption from an economical point of view is the possibility to identify and eliminate its causes, maintaining a more efficient prevention.

The current extent of the systemic corruption in the Romanian administration reality puts in question the functionality of a democratic state based on the rule of law.

Evaluating the phenomenon of corruption in the current Romanian administration as a reason for the plea for ethics has its basis in researching the European Commission reports on the MCV from 2014, 2015 and 2016. We have selected several relevant elements about diagnosing this phenomenon in Romania by the EC.

As it is shown in the country report of the European Commission for 2015, the public administration's inefficiency and corruption are an additional burden for the Romanian companies, also, according to the World Bank, Romania is second to last in the EU at government efficiency13. In the EC report it is also shown that based on the World Bank indicators, Romania is second to last in the EU at government transparency and in the last 3 countries regarding legislation quality and corruption control. Also, the World Economic Forum identified corruption and bureaucratic inefficiency as the main obstacles for a competitive Romania. Big or small, corruption is a systemic issue in Romania, says Cecilia Malmström, the European Commissary for Internal Affairs, when presenting the EC report14. "Efforts are being done to fight corruption, as shown by the MCV report for the two countries (Bulgaria and Romania - n.red.), efforts recognized by us. As I said at the beginning, many countries are making efforts to combat this phenomenon, but not enough." According to the document, Romania made anticorruption reforms in the last years, but the results are fragile. A quarter of those surveyed admit that they could be asked to pay a bribe, whether this was expected from them. The European average is only 4% and the Romania is the second largest of the 28 countries surveyed.

The European Commission, in the intermediary report of the Mechanism of Cooperation and Verification (MCV), is criticizing15the fact the Romanian Parliament has cumbered the fight against high-level corruption by refusing a third of the DNA (Anti-Corruption National Division) request for removing the immunity of some members of the Parliament in 2015, but also for keeping in function MPs and Ministers after they have been prosecuted or definitively convicted. The European Commission shows, in its recommendations for the judicial system for 2016, that in this year it is important through the appointments to be done and to the best transparency possible. In the recommendations we have also the appointment of a strong leadership at the newly founded Agency for seized assets and also to establish clear objectives and criteria for monitoring the refusal to lift the MPs immunity under investigation. European Commission's harshest critic in the MCV report for 2016 to the Romanian Parliament is about the fact that it cumbered the fight against high-level corruption by arbitrary lifting without transparency the immunity of MPs under investigation form the DNA. Regarding the fight against corruption, one of the report recommendations is to "adopt objective criteria for supporting and taking decision which concerns lifting the MPs immunity and to assure the fact that immunity is not being used to avoid enquiry and prosecution for acts for corruption".

Instead of conclusions

Morality and integrity must be long-term objectives for the new public management and the moral quality of the decisional process must represent in itself a condition for its sustainable achievement. Ethical codes and management measures focused on the involvement of administrators in the decisional process represents real levers to impose morality and integrity in the administrative system. The Ethical code represents a basic component in the educational system, in terms of ethics in public administration it is needed to validate the imperatives: honesty, competency, protect the public interest and to express the ideals of public service so as to control the behaviour of civil servants. Legislation ethics is able to show civil servants what they mustn't do, however, this is not a true guide for them, only indirectly, not helping them discover which is the right attitude in different situations, but penalizing those behaviours that deviate the rule. The civil servants status offers him safety, keeping him outside of political interference. To do this we don't need only regulations on ethics but also responsible and competent managers to be able to stimulate public administrators to involve in the decisional process so that, by practicing, to know fully well which are the objectives and targets and which are the methods through which these may be reached, to refocus the organizational culture of the public institutions, to push on the creation of internal goods and to keep in the background the creation of external goods16, to identify adequate ethical principles for creating these goods, which are the virtues associated with them 17and with the support and participation of the citizens. The most important methods in fighting corruption are managerial, implicitly the existence of an authentic decisional transparency in the administration, the respect for ethical conduct codes by each civil servant. Probably the first and foremost efficient tool in removing the elements that could lead to unethical behaviour is the most efficient way in limiting the phenomenon. Thus, removing useless documents, redundant procedures, and unnecessary intermediaries limits the possibilities of those wanting to act unethical. A thorough selection and promotion of personal may assure good staff quality. We can't talk about administrative reform with corrupt people, dignitaries that mistake the purpose with the way in administering a community, respectively a country. We need a new education based on axiology, mandatory education in the higher learning administrative institutions for a course of ethics and decisional transparency, through which future European civil servants to know and to learn ethical legislation in the public administration, to acquire legality and morality skills at European standards. From public sector perspective we need to highlight the importance of organizational culture, the medium with which the youth that are acceding in public office come into contact. The institutional construct, as well as managerial decision must have in focus the limitation of elements that could present the risk of negatively influencing the ethical activity of the institutions. As important is also the education of those working in the public sector before and during their career. Specialists are insisting on the benefits of recurring courses in ethics for a healthy climate inside of institutions. Also periodical discussions are necessary about associated risks to unethical behaviour, about the institutional aspects that are vulnerable to corruption.

Youth integration in the group must be treated with great attention to avoid their exposure to examples or temptation for corruption. The new vision of public management needs a different understanding of management. This is not just reducible to an organizational process, but requires accountability system performance. It is certain that this can be achieved with European civil servants and professionals capable of morality.

Footnote

**Translator Ionut Tatu, graduate of the Master's Degree in Public Policies, University of Bucharest.

1 P. Singer, Ethics , Oxford University Press, Oxford, 1994, pp.3-4.

2 De George, in Denhardt, R.B., Public Administration. An Action Orientation, Belmont: Wadsworth, 1999, p.116-117.

3 Some of the Aristotelian works are atributed fully or partialy to some of his disciples.

4 R. Hursthouse, On Virtue Ethics, Oxford: Oxford University Press, 1999, p.17.

5 A. MacIntyre., After Virtue. A Study in Moral Theory, Notre Dame, Indiana: University of Notre Dame Press, 2007, p.147

6 Aristotle, Nicomachean Ethics, Bucharest, The Scientific and Encyclopaedic Publishing House, 1988, p.32.

7 Ethics in Public Administration, fspac. L. Radu, ubbcluj.ro/modle/...php/.../ Etica%20in%20ap...20i3-2014.

8 Law no. 115 of 6 October 1996 for declaration and control of assets of officials, magistrates, some people with management and control of civil servants, Law no. 188 of 9 December 1999 on the status of civil servants, and Law no. 215 of 23 April 2001 local government.

9 We mention among them: Law no. 78 of 8 May 2000 for preventing, detecting and sanctioning corruption; Law no. 544 of 12 October 2001 on free access to public information; Emergency Ordinance no. 43 dated 4 April 2002 the National Anticorruption Directorate; Law no. 161 of 19 April 2003 on measures to ensure transparency in the exercise of public dignities, public functions and in business, prevent and punish corruption, as amended by GEO no. 40/2003; Law no. 52 of 21 January 2003 on transparency in public decision; Law no. 571 of 14 December 2004 on the protection of staff in public authorities, public institutions and other units who report violations; Law no. 7 out of 8 February 2004 on the Code of Conduct for civil servants; Law no. 144 of 21 May 2007 on the establishment, organization and functioning of the National Integrity Agency.

10 O. Matei, Etical Law in the Romanian Public Administration, Journal of Public Administration and Social, "Vasile Goldiç" University, Arad, , no.4-5, 2010.

11 Definition given by Transparency International Romania, http://www.transparency.org.ro/servicii/consnltanta_iuridica/index.html.

12 Richter, W.L., Burke, F. and Doig, J.W., Combating Corruption, Encouraging Ethics, Washington D.C.: ASPA Publications, 1990, pp.62-63.

13 _www.mediafax.ro.../ce-ineficienta-adm.-si-co, 29 Jan.2016. SATI Statistics

14 www.digi24/...Raport+CE+Coruptie+România, Feb.2014

15 www.gandul.info/...raport-mcv-2016, Andrei Luca Pop, The Parliament critized by the EC for blocking the investigation of criminal politicians, 27 Jan 2016.

16 MacIntyre, cited works

17 Richter, Burke, Doing, cited works

References

REFERENCES

Aristotle, (1988), Nicomachean Ethics, Bucharest, Publishing House.

Denhardt, R.B., (1999), Public Administration. An Action Orientation, Belmont: Wadsworth.

The Fundation Partners for Local Development, (2006), Organizational Health. A practical guide for the treatment and prevention of corruption in the local communities and administration. Concepts and Strategies, vol. I, Bucharest.

Hursthouse, (1999), R., On Virtue Ethics, Oxford: Oxford University Press.

Johnston, M., (2007), Corruption and its Manifestations, Iasi: Polirom.

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MacIntyre, A., (2006), Ethics and Politics, Cambridge: Cambridge University Press.

Matei, O., (2010), Etical Law in the Romanian Public Administration, Journal of Public Administration and Social, nr.4-5, "Vasile Goldi§" University, Arad.

Richter, W.L., Burke, F. §i Doig, J.W., (1990), Combating Corruption, Encouraging Ethics, Washington D.C.: ASPA Publications.

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http://www.transparency.org.ro/servicii/consultanta_juridica/index.html

www.mediafax.ro.../ce-ineficienta-adm.-si-co, 29 Jan 2016SATI Statistics

www.digi24/...Raport+CE+Corupt:ie+România, febr.2014

www.gandul.info/...raport-mcv-2016, Andrei Luca Pop, The Parliament critized by the EC for blocking the investigation of criminal politicians, 27 Jan 2016.

Ethics in Public Administration, fspac. L. Radu, ubbcluj.ro/modle/...php/.../ Etica%20in%20ap...2013-2014.