Anti-corruption components of the legal status of municipal employees

Grigorev Ivan Vladimirovich PhD in Law Docent, the department of Labor Law, Ural State Law University 620137, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21 adarichi@mail.ru Other publications by this author

The problems of combating corruption are not new to the Russian state. The rhetoric of the country's top leadership focuses on the fact that the fight against corruption has been and remains a fundamental task that requires professionalism, seriousness and responsibility ^[1]. The proposed ways and mechanisms of combating corruption are reflected in the legislative acts fixing the legal status (status) of municipal employees, in the norms on rights, duties and prohibitions established both during the exercise of professional official activity and after its completion.  However, the regulation of certain anti-corruption elements of the legal status of municipal employees is ambiguous and controversial, therefore, the consolidation of the section "Improving the system of prohibitions, restrictions and duties established in order to combat corruption in certain areas of activity" in the National Anti-Corruption Plan for 2021-2024, adopted on August 16, 2021. ^[2] seems logical and reasonable.

The unified bases of the legal status of employees were first fixed in Chapter 3 of Federal Law No. 79-FZ of 27.07.2004 "On the State Civil Service of the Russian Federation" ^[3] (hereinafter referred to as Law No. 79—FZ), and later they were duplicated in the legislation on the status of military personnel, law enforcement officers and municipal employees without fundamental discrepancies. In addition, a significant part of the elements of the legal status of employees are determined by Federal Law No. 273-FZ of 25.12.2008 "On Combating Corruption" (hereinafter — Law No. 273-FZ)^[4].

The study of the basic rights of municipal employees allows us to single out only two that have an anti—corruption orientation - this is the right to perform other paid work and the right to acquire and own securities for which income can be obtained.

In accordance with Part 2 of Article 11 of Federal Law No. 25-FZ dated 02.03.2007 "On Municipal Service in the Russian Federation"^[5] (hereinafter referred to as Law No. 25—FZ), "a municipal employee has the right to perform other paid work with prior written notification to the representative of the employer (employer), if this does not entail a conflict of interests". Despite the fact that the norm establishes a notification procedure for performing other paid work, a literal interpretation allows us to conclude about the actual permissive procedure for performing additional work, since one of the requirements is the absence of a conflict of interest (a situation in which the personal interest of a municipal employee affects or may affect the proper, objective and impartial performance of their official duties (Part 1 of Article 10 of Law No. 273-FZ)). The exercise of the right in question intersects with the obligation to notify about the possible occurrence of personal interest provided for in paragraph 11 of part 1 of Article 12 of Law No. 25-FZ. The notification received from a municipal employee should be the subject of consideration by the commission on compliance with the requirements for official conduct and conflict of interest settlement ^[6]. In our opinion, this commission is the only entity in the local self—government body capable of making a decision on the presence or absence of a conflict of interests in the activities of employees. Therefore, the implementation of other paid work by municipal employees without a positive decision of the commission should be considered as a violation of anti-corruption legislation, entailing disciplinary liability.

A special procedure for performing other paid work is provided, firstly, for carrying out activities financed exclusively at the expense of foreign states, international and foreign organizations, foreign citizens and stateless persons, since its performance is possible only with the written permission of the employer's representative (employer), unless otherwise provided by an international treaty of the Russian Federation or federal legislation (paragraph 16 of part 1 of Article 14 of Law No. 25-FZ). Secondly, municipal employees who fill the positions of heads of local administrations under a contract may additionally engage exclusively in teaching, scientific and other creative activities (part 2 of Article 16 of Law No. 25-FZ).

As for the possibility of acquiring securities, the legislation on municipal service does not contain a corresponding prohibition, however, according to paragraph 4 of part 1 of Article 17 of Law No. 79-FZ — "a civil servant is prohibited from acquiring securities in cases established by law, for which income can be obtained" (this norm fully applies to municipal employees, since according to paragraph 2 of Part 1 of Article 5 of Law No. 25-FZ "the relationship between the municipal service and the state civil service of the Russian Federation is ensured through the unity of restrictions and obligations during the passage of municipal service and state civil service"). A comprehensive interpretation of the norms makes it possible to identify the only prohibition on the possession of securities (participation shares, shares in the authorized (stock) capitals of organizations) is the occurrence or potential possibility of a conflict of interest (part 7 of Article 11 of Law No. 273—FZ). Thus, municipal employees are granted the right to purchase securities, but the possibility of owning them is made dependent on the absence of a conflict of interest, therefore, when a municipal employee has securities, he must apply with a notification of a possible conflict of interest to the representative of the employer (employer), who must initiate consideration of the issue by the commission on compliance with the requirements for official conduct and settlement of the conflict of interests and only after the decision of the commission will there be clarity about the possibility of the employee's ownership of securities. If it is established that there is a conflict of interest or the possibility of its occurrence, the commission's decision should contain specific actions that must be performed by a municipal employee to resolve or prevent the conflict (transfer of securities to trust management, the need to change official position, etc.).

The legal regulation of the obligation of municipal employees to provide information on income, expenses, property and property obligations deserves serious attention. It is difficult to agree with the authors who assess this obligation as a "successfully implemented anti-corruption procedure" ^[7], since its execution has significant legal problems and "the obligation to declare property gives rise to a large number of disputes"^[8]. In accordance with Article 15 of Law No. 25-FZ, citizens applying for positions of municipal service included in a special list and municipal employees filling these positions are required to annually submit to the employer's representative (employer) not only information about their income, property and property obligations, but also information about income, about property and property obligations of their spouse (spouse) and minor children. Federal laws do not contain exceptions to this obligation, however, paragraph 16 of the Regulation on Commissions for Compliance with the Requirements for the Official Conduct of Federal Civil Servants and Conflict of Interest Resolution, approved by Presidential Decree No. 821 of 01.07.2010 (according to paragraph 8 of the Decree "local self-government bodies are obliged to be guided by this act to develop their own regulations on commissions for compliance with the requirements for official behavior of municipal employees and settlement of conflicts of interest") establishes the possibility of failure to provide information about the income and property of spouses of employees and their minor children in the presence of "objective and valid reasons". It is necessary to agree with the authors who claim that "the fact of non-submission of information for objective reasons does not contribute to combating corruption, since this information remains unrepresented"^[9], however, it must be borne in mind that non-fulfillment of duties often does not depend on the will and desire of a municipal employee.

Methodological recommendations on the organization of the work of commissions on compliance with the requirements for the official conduct of federal civil servants and the settlement of conflicts of interest (attestation commissions) in federal state bodies approved by the Presidium of the Presidential Council on Combating Corruption (Protocol No. 24 of April 13, 2011) explained what should be understood by "objective and valid reasons" for non-submission information about the income and property of family members of employees. It is proposed to consider an objective reason that exists independently of the will of the employee (for example, an employee does not have information about the whereabouts of his spouse for a long time and he has no opportunity to obtain such information); a valid reason is a reason that justifiably prevents the employee from providing the necessary information (illness, business trip, etc.) ^[10]. The list of objective and valid reasons is supplemented in the letter of the Ministry of Labor of Russia dated 18.07.2013 No. 18-2/10/2-4038 "Clarifications on the Application of Federal Law No. 230-FZ of December 3, 2012 "On Control over the Compliance of Expenses of Persons holding Public Positions and Other Persons with Their Incomes" and other regulatory legal acts in the field of anti-corruption" (together with "Explanations on the application of Federal Law No. 230-FZ of December 3, 2012 "On control over the Compliance of Expenses of Persons holding Public Positions and other Persons with their Incomes" and other regulatory legal acts in the field of combating corruption" (legislation as of July 17, 2013)" ^[11]), in which the following are named: a) the spouse (spouse) is recognized as missing, b) the spouse (spouse) is wanted; c) the spouses in a legally registered marriage do not actually live with each other and (or); d) there are personal hostile relations between them; etc. The first the two reasons for the list can be fully considered objective and respectful, but the last two are highly questionable, since they cannot be documented.

In science and practice, there is no unity regarding the objectivity and respectfulness of such a reason as the "unwillingness" of a spouse to report information about their income and property. Methodological recommendations on the organization of the work of commissions on compliance with the requirements for the official behavior of employees and the settlement of conflicts of interest (attestation commissions) in federal government agencies consider this reason as objective, but disrespectful. We consider the approach of law enforcement officers to be unreasonable, which consists in the fact that "employees should independently settle this issue with their spouses" ^[12], unfortunately, judicial authorities also take a similar position, justifying their decisions by the fact that "interpersonal relations of spouses do not exempt an employee from performing the duties assigned to him" ^[13], while the real impossibility of fulfilling the assigned duty is completely ignored. In our opinion, the unwillingness of spouses to submit their data should be qualified as an objective and valid reason for not providing employees with information about income and property until the legislative level is established: 1) the obligation of the spouses to provide relevant information and 2) responsibility for its non-fulfillment.

It is obvious that a significant part of the issues related to combating corruption in local self-government bodies are solved by commissions for compliance with the requirements for official conduct and conflict of interest resolution, therefore, it is necessary to point out the problem associated with the regulation of their education. In our opinion, the current wording of part 4 of Article 14.1 of Law No. 25-FZ, which provides for the possible creation of commissions on compliance with the requirements for official conduct and settlement of conflicts of interest in local self-government bodies, deserves a negative assessment, we consider it necessary to consolidate the obligation of mandatory formation of relevant commissions. The relevant norms are enshrined in the legislation of some subjects of the Russian Federation, for example, under Article 4-1 of the Law of the Sverdlovsk Region of October 29, 2007 No. 136-OZ "On the peculiarities of municipal service in the territory of the Sverdlovsk Region" "in order to ensure compliance by municipal employees with the general principles of official conduct and settlement of conflicts of interest in accordance with federal law, compliance commissions are formed requirements for the official behavior of municipal employees and the settlement of conflicts of interest"^[14].

In 2013, municipal employees were obliged to provide information on their expenses, as well as on the expenses of their spouse and minor children for each transaction for the acquisition of a land plot, another real estate object, a vehicle, securities, shares (participation shares, shares in the authorized (stock) capitals of organizations), digital financial assets, digital currency committed by him, his spouse and (or) minor children during the calendar year preceding the year of submission of information, if the total amount of such transactions exceeds the total income of this person and his spouse for the last three years preceding the reporting period, and about the sources of receipt the funds at the expense of which these transactions were made. It is also difficult to recognize this obligation as an effective anti-corruption measure, since municipal employees can provide any documents, including those certifying imaginary and fake transactions (for example, copies of receipts for any amount can be submitted to confirm the loan agreement, while its original can be destroyed). The Supreme Court of the Russian Federation orders the lower courts to accept any evidence of the legality of the acquisition of property, in particular the receipt of funds under civil law gift or loan agreements ^[15]. It is necessary to support the position of scientists who believe that "an employee with corrupt incomes will find a way to legalize them through close persons who are not required to provide information about income and property (parents, adult children, brothers and sisters, etc.)" ^[16].

Indignation is also aroused by judicial practice in cases on the statements of prosecutors about the appeal to the income of the Russian Federation of property in respect of which evidence of its acquisition for legitimate income is not provided ^[15]. Firstly, the position of the courts that the current legislation does not provide for the possibility of taking into account among the expenses of the person in respect of whom expenses are monitored, and members of his family, the subsistence minimum, the cost of utilities, alimony payments and others not related to the costs of acquiring property contradicts common sense, because it demonstrates that the employee and his family members allegedly do not eat, do not need to purchase clothes and hygiene products, do not incur mandatory expenses for the maintenance of property, etc., which in turn leads to a significant overestimation of income for the purchase of property (in 2022, a similar approach was applied to the legal regulation of control over the legality of receiving funds (article 8.2 Law No. 273-FZ)). We share the opinion of scientists who propose to take into account at least a living wage in the structure of expenses ^[17]. Secondly, the possibility for the courts to detect a "slight discrepancy" between the income, the legality of the origin of which has been confirmed, and the amount of expenses for the acquisition of property, which allows to recover only that part of it that was acquired with income, the legality of the origin of which has not been proven, leads to a significant reduction in compensation from a corruption offense. Moreover, the evaluation category "minor discrepancy" needs to be fixed in a clear legislative framework, even for judicial discretion, since only "the correct establishment of the limits of discretion ensures its legality" ^[18].

The existence of a ban on certain categories of municipal employees and their family members to open and have accounts (deposits), store cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments is reprehensible. According to the Constitution of the Russian Federation , " human and civil rights and freedoms may be restricted ... only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state." Municipal employees and their family members have the right to independently and at their discretion dispose of the funds that they have already earned honestly. It seems that the relevant prohibition does not correspond to the provisions of Article 55 of the Constitution of the Russian Federation to a certain extent, despite the fact that the Constitutional Court of the Russian Federation has repeatedly noted that "official activity is carried out in the public interest and is associated with the implementation of special, public-legal functions by employees, which predetermines their special status, including both the rights and obligations, as well as the restrictions and prohibitions imposed on them related to the service, the presence of which is compensated, among other things, by the guarantees and advantages provided to them" ^[19].

The imperfection of legal regulation is also revealed in relation to the restriction of donation to employees.  According to Article 575 of the Civil Code of the Russian Federation, it is prohibited to give, with the exception of ordinary gifts (the cost of which does not exceed three thousand rubles) to municipal employees... in connection with their official position or in connection with the performance of their official duties. This prohibition does not apply to cases of donation in connection with protocol events, business trips and other official events. Article 14 of Law No. 25-FZ refers to two types of gifts: a) gifts from individuals or legal entities, which are prohibited to receive regardless of their value, and b) gifts received by a municipal employee in connection with protocol events, business trips and other official events that are recognized as municipal property and transferred to employees according to the act to the local self-government body, the election commission of the municipality in which he replaces the position of municipal service, except in cases established by the Civil Code of the Russian Federation. We believe that subparagraph 3 of paragraph 1 of Article 575 of the Civil Code of the Russian Federation, which allows for the possibility of receiving "ordinary" gifts by employees, should be recognized as invalid (this approach has been successfully implemented in a number of foreign countries ^[20]).

The procedure for evaluating, handing over and redeeming gifts received by federal employees at protocol and official events is regulated by Government Decree No. 10 of January 9, 2014 "On the Procedure for Certain Categories of Persons to Receive a Gift in Connection with Protocol Events, Business Trips and Other Official Events, Participation in which is associated with the Performance of their Official (Official) duties duties, delivery and evaluation of the gift, sale (redemption) and crediting of funds received from its sale" (together with the "Model Regulation on the notification of certain categories of persons about receiving a gift in connection with protocol events, business trips and other official events, participation in which is associated with the performance of their official (official) duties, delivery and evaluation of the gift, sale (redemption) and crediting of funds received from its sale") ^[21] (this act is recommended to local governments for use as a basis for developing their own procedures). The procedures provided for by the above-mentioned Standard Procedure are difficult to implement, since they involve a large number of actions from representatives of the local government, who need to: form a commission on the receipt and disposal of assets; determine the value of the gift based on the market price effective on the date of acceptance for accounting, for which it is necessary to make an examination; provide an opportunity for the employee to redeem the gift; to decide on the expediency of using the gift to ensure the activities of the municipal body; if necessary, take measures to implement the gift, its gratuitous transfer to the balance of a charitable organization, or to destroy it. It seems that the Standard Procedure should be made, firstly, universal and extend its effect to all employees without unnecessary duplication by each subject of the Russian Federation and each municipality, and secondly, it should be simplified by obliging employees to hand over gifts to the bodies in which they serve, regardless of their cost, and in the absence of expediency of their use the latter must transfer them to museums in order to determine the historical, cultural, artistic, scientific or other value, taking into account which gifts will form museum funds or be destroyed.

Summing up the study, it should be noted with regret that the problems of corruption have not been solved in any country. A possible tightening of responsibility will not lead to its disappearance, as evidenced by the practice of countries that have the death penalty for corruption crimes. It remains to be hoped that the improvement of the Russian anti-corruption legislation will be implemented taking into account the opinion of scientists and in the foreseeable future it will be possible to eliminate the existing gaps and conflicts of the legal status (status) of municipal employees.