What it is
Two legislative acts establish what a conflict of interest is in the public service:
- Federal Law of December 25, 2008 No. 273-FZ “On Combating Corruption”;
- Federal Law of July 27, 2004 No. 79-FZ “On State Civil Service”.
According to Article 10 of Law No. 273, a conflict of interest in the public service is understood as the presence of personal gain or interest in the performance of official duties. Personal benefit is considered:
- receiving money, property;
- obtaining property rights;
- receiving services and work.
Such benefit does not necessarily apply to the performer himself, but also to his relatives, friends, acquaintances, and organizations with which the employee is bound by obligations. The conflict of interests that has occurred in the state and municipal service is not in itself a corrupt act, but leads to it. In Law No. 25 “On Municipal Service” of March 2, 2007, the concept of conflict of interest is taken as a basis from Law No. 273, and concealing information about this is recognized as an offense.
Causes and consequences of conflict of interest
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Despite the fact that in theory the term “conflict of interest” has
clear definition, in practice it is extremely difficult to characterize, since the boundaries between state and private interests are not always clearly defined. One should also distinguish between a real potential and an imaginary conflict of interest.
A real conflict of interest.
A contradiction that has arisen between official duties and the private interests of an official, in which the private interests of the official may negatively affect the performance of his official duties.
Potential conflict of interest.
A representative of an authority has a personal interest, which in the future, if certain circumstances change, may prevent the employee from objectively performing his official duties
An imaginary conflict of interest.
A situation where citizens may have a fairly reasonable impression that there is a conflict of interest in the activities of an official. In this case, there may not be a real conflict of interest.
As a result, regulations in different countries regarding the nature and composition of conflicts of interest differ significantly from each other.
Such negative phenomena as abuse of official position, favoritism and nepotism (nepotism) and the corruption that develops on their basis are closely associated with conflicts of interest.
The negative consequences of favoritism and nepotism, respectively, tolerance of conflicts of interest, are:
— creation of one-sided advantages;
— violation of equal conditions of competition or access to public resources and services.
Tolerance for conflicts of interest contributes to the formation of clans (monopoly or dominant groups) under the state roof that provide favorable conditions for themselves to the detriment of the state, competitors and third parties.
The ability to make decisions provided for by the position (perform actions) in one’s own interests, that is, an existing conflict of interest, is a mechanism for extracting undue benefits (obtaining unjust enrichment) much more profitable and safer than a bribe for favor to outsiders: third parties.
Low (in conditions of tolerance for conflicts of interest) efficiency of public administration, expenditure of public resources,
Given the prevalence of conflicts of interest, any volumes of allocated resources will go “through the cracks”, in the direction of not the interests of the state and its citizens, but in the interests of the manager of these resources.
Causing damage to the prestige of the state and a specific government body or local government body.
It can be assumed that most of the distrust of state bodies and local governments among a significant part of Russians is generated precisely by the prevalence of conflicts of interest and tolerance towards them. It is difficult to trust bodies whose officials, without hiding existing conflicts of interest, demonstrate the priority of their own interests over public ones. Moreover, the use of official behavior for personal purposes is difficult to prove for the investigation, obvious to others.
This may not even be discussed, but it does not add trust to state bodies and local governments.
Particularly important is the fact that often only the employee himself knows about the conflict that has arisen. And here the development of his positive moral qualities plays a special role.
“Moral choice” is an important stage in human activity of any kind and at the same time a serious test for the individual and the principles he professes. It lies in the fact that an individual, by inner conviction, sometimes automatically, self-determines in relation to a system of values, an ideal and ways of realizing it in a specific action or in an entire line of behavior.” This manifests itself most clearly in a conflict situation, when opposing interests collide and various moral demands come into conflict. The process of exiting a situation of moral conflict is accompanied by a struggle of motives. For example, when deciding to carry out or not to carry out illegal orders of a manager, an employee is guided by subjective motives that prompt him to do one way or another.
The state of moral conflict in the state and municipal service has empirically registered manifestations. We can identify a number of indicators of an employee passing through a state of moral conflict. These include:
— decrease in the quality and intensity of activity, satisfaction with professional activities;
- increased psycho-emotional tension and stress;
- decreased self-esteem, disruption of the adaptation mechanism, uncertainty about the future, a feeling of instability, social instability, pessimism.
The presence of moral conflicts caused in an employee by his social role status can be judged by the degree of their satisfaction:
- work;
— wages;
— compliance of professional training with the content of job responsibilities.
Special studies have shown that every fifth of the civil servants surveyed expresses dissatisfaction with their jobs.
The conflict situation in the system of state and municipal service should be regulated to a large extent by moral means and methods, through the formation of appropriate codes and the creation of real mechanisms for their implementation in the daily activities of state and municipal employees. The latter must make truly moral decisions.
It should be emphasized that managers practically do not use moral regulators in the practice of personnel management in the state and municipal services.
Thus, the situation of “conflict of interest” has, in addition to other factors, a moral component, because it largely depends on the level of moral culture of employees, on their ability to make proper moral decisions. The moral efforts of an employee must be supported by clear legal regulation of his activities, a set of measures to prevent such situations, identify them, prevent or minimize consequences harmful to the individual, society and the state.
A conflict of interest manifests itself in causing property damage to third parties, including as a result of violation of equal conditions of competition or access to government resources or services. Causing property damage to the state (including in the form of lost profits).
In the system of state and municipal service, a situation of conflict of interest can arise not only at the individual/personal level (with an individual), but also at the level of the organization as a whole. In this regard, conflicts of interest can be clearly divided into “personal” and “corporate”. These types of conflicts of interest differ both in the prerequisites for their occurrence and in their manifestations.
Among the prerequisites for the emergence of a “personal” conflict of interest are:
• low moral level of a particular state or municipal employee;
• the presence in official activities (job functions) of areas involving decision-making based on subjective assessments;
• imperfection of the system of reporting, control and audit of activities;
• lack of norms and rules for resolving the “personal” conflict of interest that has arisen.
In turn, the prerequisites for the emergence of a “corporate” conflict of interest are:
• differences in the goals of the department and the state as a whole, due to misunderstanding of departmental tasks or their inaccurate/fuzzy formulation;
• the prevalence of short-term plans of the organization over long-term ones;
• imperfection of legislation and the system of control and audit of activities.
Examples of manifestations of “personal” conflicts of interest in state and municipal service:
• use of official position to lobby someone's interests;
• use of confidential information;
• part-time work;
• using the organization's resources for personal interests;
• use of official position for the purpose of developing personal business;
• activities after dismissal from service (retirement);
• conflicts of interest related to gifts and bribery.
Manifestations of a “corporate” conflict of interest may include:
• ineffective and wasteful spending of funds allocated by the state;
• lobbying of specific suppliers or their groups.
In international practice, the issue of managing or preventing conflicts of interest is considered one of the key elements of the anti-corruption strategy in the public service.
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Types of conflicts
The exact definition is given in Article 10 of Federal Law No. 273-FZ dated December 25, 2008. In accordance with it, the general concept of conflict of interest in the public service is not divided into any types, but if theorized, the following classification can be conventionally distinguished:
- real - the situation has already arisen and needs to be prevented;
- potential - a situation may arise and must be prevented;
- imaginary - the situation has not arisen, but in the public consciousness the person’s behavior is assessed as receiving personal gain.
Since we are talking about situations related to personal gain, most often a conflict of interest in the public service occurs when carrying out the following activities:
- privatization;
- entrepreneurship;
- conducting tenders, government procurement;
- admission and dismissal from office.
Examples will help you understand what a conflict of interest is in municipal service:
- a civil servant hires or appoints a relative to a position, is a member of a competition or certification commission that conducts an audit of an acquaintance, friend, or family member;
- the citizen himself, his family and friends intend to perform work for the organization where the civil servant works, and he participates in making decisions about involving them in work;
- a citizen or his relatives participate in the performance of paid work for a branch of an organization in respect of which the civil servant makes decisions, collects and processes information, or performs other government functions;
- ownership of deposits and securities in an organization whose activities the civil servant influences due to his official position;
- participation in court proceedings as a judge, if the conflict involves relatives and friends, organizations owned by relatives or in which they hold positions;
- performance of official duties in relation to the organization where the employee worked before joining the service or where he is going to find a job;
- using information obtained during work to obtain money, property rights, and benefits.
Resolution methods
If suspicions arise or the obvious existence of a risk, the employee is obliged to notify the manager or his deputy in writing. According to Art. 11 of Law No. 273, there are the following ways to resolve conflicts of interest in the state civil service:
- change in the official status of a person;
- self-recusal of an employee from performing duties;
- employee recusal;
- refusal of benefit;
- transfer securities to trust management.
For failure to report information about a possible or actual conflict of interest in the public service, the law prescribes disciplinary punishment:
- dismissal;
- warning;
- rebuke;
- comment.
Commission
A special commission, which is organized according to Art. 19 of Law No. 79 “On the Civil Service...” to comply with the requirements for official conduct. The activities of the commission are regulated by the regulations on conflict resolution commissions, approved by Decree of the President of the Russian Federation dated July 1, 2010 No. 821. In accordance with the document, the commissions have 2 tasks:
- control over employees’ compliance with restrictions, requirements and prohibitions imposed in accordance with their position (for more details, see Presidential Decree No. 1065 dated September 21, 2009);
- prevention of corruption.
The commission is formed by a regulatory legal act of the department and is formed in such a way as to exclude any possibility of a conflict of interests arising when they make decisions. The department determines both the composition of the commission and the procedure for its work.
Composition of the commission:
- deputy head of a government agency, manager or other employee of the personnel service;
- representative of the Russian Presidential Anti-Corruption Department;
- a representative of a scientific or educational organization that is associated with the state civil service;
- representative of a public organization or trade union.
At least a quarter of the commission consists of citizens who do not hold positions in the public service. To hold a meeting of the commission, the following grounds are required:
- provision by the manager of the results of an internal audit about non-compliance by a civil servant with prohibitions and requirements or about the provision of incomplete, incorrect information to them;
- a message received by the personnel department from a former employee about the intention to find employment in a commercial or non-profit organization or about the intention to perform paid work;
- statement by a civil servant about the inability to provide the necessary information or fulfill the requirements and observe the prohibitions;
- notice of personal interest from an employee.
Regulations on the commission are developed by each government agency separately.
Personal factors in the emergence of conflicts.
Socio-psychological causes of conflicts
Organizational and managerial causes of conflicts
Objective factors of conflicts.
Conflicting interests as a fundamental cause of conflicts.
A cause is a phenomenon whose action causes or produces some other phenomenon, which is usually called an effect. There are reasons:
- external and internal;
- universal and individual;
- material and ideal;
- objective and subjective, etc.
Their classification can be carried out on various grounds and should not be considered complete.
It should also be noted that it is extremely important to distinguish the cause of the conflict from its cause. The cause of the conflict is a phenomenon that contributes to its occurrence, but does not necessarily determine the appearance of the conflict. Unlike a reason, a reason arises by chance and can be created completely artificially, as they say, “from scratch.” The reason reflects the natural connection of things.
In a general sense, the cause of a conflict is that phenomenon that predetermines its occurrence; this or that phenomenon is only the cause of a conflict when it acts as a need for its subjects.
A need is a need or lack of something extremely important for maintaining the life of an organism, an individual, a social group or an entire society.
The cause of the conflict is only a conscious need, which acts as interest.
The ultimate cause of any social conflict is the contradiction of interests between its subjects: individuals, social groups, communities and societies.
Any conflict is a form of expression of this conflict of interests.
Classification of contradictions
No less diverse are the contradictions of interests that cause conflict.
In a general sense, contradiction is the interaction of oppositely directed tendencies, aspirations and actions, which at the same time are in unity. By their nature they are:
1. internal and external;
2. antagonistic and non-antagonistic;
3. basic and non-core;
4. objective and subjective, etc.
The internal contradictions of a social conflict are expressed in a clash of interests within a group, organization, community or society as a whole. These, for example, include contradictions that arise between a boss and a subordinate within an organization.
External contradictions arise between two or more relatively independent social systems. It should be borne in mind that external and internal contradictions influence each other.
Antagonistic contradictions are expressed in a conflict in which the participants have irreconcilably hostile interests.
Non-antagonistic contradictions between the interests of the parties to the conflict - ᴛ.ᴇ. , which allow for coordination, “reconciliation” of the interests of opponents. The main feature is the possibility of compromise.
The main contradictions play a decisive role in the emergence and development of the conflict and characterize the interaction between its main participants.
Minor contradictions only accompany the conflict.
Objective contradictions are caused by objective factors, that is, such phenomena and processes that do not depend on the will and consciousness of people. For this reason, objective contradictions cannot be avoided. Οʜᴎ will arise until the very cause of such a contradiction, which is also objective in nature, is not eliminated.
Subjective contradictions are caused by factors that, on the contrary, depend on the will and consciousness of people. These are contradictions caused by the incompatibility of characters, differences in behavior patterns, worldviews, and value orientations.
In addition to those mentioned, we can distinguish: 1) main and secondary; 2) permanent and temporary; 3) general, special and individual; 4) fundamental and non-radical contradictions.
Conflicting interests as a fundamental cause of conflicts do not arise out of nowhere. Οʜᴎ develop regarding a variety of factors, which can be divided into: 1) objective and 2) interpersonal.
The emergence and development of conflicts is determined by the action of four groups of factors and causes:
1. actually objective;
2. organizational and managerial;
3. socio-psychological;
4. personal.
The first two groups are mainly objective in nature, the third and fourth are subjective in nature.
