3. Strengthening the institutional arrangements for integrity in the Executive branch of Ecuador
This Chapter analyses the institutional arrangements for integrity within the Executive branch of Ecuador, highlighting the challenges in defining leadership and recognising the role of key actors in building a culture of integrity. It highlights that rather than creating a new ad-hoc Secretariat, Ecuador could leverage the co-ordination role of the General Secretariat of the Presidency of the Republic and the existing integrity-related competences of the Ministry of Labour. The Chapter also describes the composition and functions of the Ethics Committees and Anti-bribery Committees within public entities and provides an overview of integrity policies. It finds that both the Committees and policies do not embrace a preventive approach and that the units in charge of organisational change and culture could play a greater role in promoting and mainstreaming a culture of public integrity at entity-level.
The institutional changes over the last years prevented the development of institutional leadership and the consolidation of sustainable integrity policies
The fragmented institutional context illustrated in Chapter 2 has also been affecting the development of an integrity leadership within the Executive branch. Starting from 2007, Ecuador has made several attempts to create a Secretariat within the Presidency of the Republic with responsibilities on integrity and anti-corruption-related issues. This included the (first) National Anti-corruption Secretariat (Secretaría Nacional Anticorrupción) in 2007, the National Secretariat for Management Transparency (Secretaría Nacional de Transparencia de Gestión) in 2008 and the National Secretariat of Public Administration (Secretaría Nacional de la Administración Pública) in 2013, whose responsibilities where then transferred to other Secretariats in 2017 (Box 3.1).
By Executive Decree No. 122 of February 16, 2007, the government created the National Anti-Corruption Secretariat (Secretaría Nacional Anticorrupción) assigned to the Presidency of the Republic. It oversaw the government anti-corruption policy and developed strategies to investigate, determine and inform the competent authorities about acts of corruption. However, a few months later, through the Third Transitory Provision of the 2008 Constitution, the public officials of the National Anti-Corruption Secretariat, who had not been freely appointed, were transferred to the Council for Citizen Participation and Social Control.
Subsequently, through the Executive Decree No. 1511 of December 29, 2008, the government created the National Secretariat for Management Transparency (Secretaría Nacional de Transparencia de Gestión) within the Presidency. Its functions included: i) Investigate and denounce acts of corruption committed by public servants, and inform the Council for Citizen Participation and Social Control the result of the investigations, and ii) Strengthen the co-ordination and co-operation between government institutions, control bodies, judicial entities and all those involved in the investigation, prosecution and punishment of acts of corruption.
By Executive Decree No. 1522 of May 17, 2013, the National Secretariat for Management Transparency was transformed into Undersecretary's Office and merged by absorption into the National Secretariat of Public Administration (Secretaría Nacional de la Administración Pública).
Finally, by Executive Decree No. 5 of May 24, 2017, the National Secretariat of Public Administration was eliminated and its powers were transferred to the General Secretariat of the Presidency of the Republic (Secretaría General de la Presidencia de la República), the National Secretariat of Planning and Development (Secretaría Nacional de Planeación y Desarrollo), the Ministry of Telecommunications and the Information Society (Ministerio de Telecomunicaciones y de la Sociedad de la Información), and the Ministry of Labour (Ministerio del Trabajo), without making any specific mention of the powers related to the fight against corruption.
The latest institutional attempt to create an entity leading and co-ordinating integrity and anti-corruption efforts in the public administration was the creation, through Executive Decree No. 665 of February 6, 2019, of a new Anti-corruption Secretariat (Secretaría Anticorrupción), whose responsibilities included strengthening the co-operation between government institutions on anti-corruption matters. The Anti-corruption Secretariat was dissolved on 22 May 2020 through Executive Decree No. 1065 of May 21, 2020, without any formal handover of its leadership and co-ordination roles to any other institution. Currently, the General Secretariat of the Presidency of the Republic is responsible for related issues such as policies for public administration and open government and is co-ordinating some integrity and anti-corruption-related activities such as those related to this integrity report and, pursuant to Executive Decree No. 1212 of December 17, 2020, to the representation of the country in front of the Mechanism for the Implementation of the Inter-American Convention against Corruption (Mecanismo de Seguimiento de la Implementación de la Convención Interamericana contra la Corrupción, MESICIC). Nonetheless, Ecuador is yet to identify a leading entity for proposing, co-ordinating and promoting integrity policies for entities of the executive branch, which is one essential element to institutionalise integrity in the whole public administration.
The challenges in defining leadership in this area are also perceived as such by other actors as confirmed by the answers to the OECD questionnaire prepared to collect information from several public institutions and entities of the Executive branch. Indeed, most of them could not identify any mechanism to co-ordinate and implement integrity policies within the Executive branch. As for those institutions who provided an answer, reference was made to the Executive Decree No. 21 of 5 June 2017, which declared the strengthening of public policies’ transparency and the fight against corruption as a priority government policy, or to the Presidential Provision No. 1343 and No. 1419 through which the Anti-Corruption Secretariat was given the responsibility to follow up and receive reports on the entities’ progress in the implementation of the 37001 standard of the International Organization for Standardizationon (ISO) Anti-bribery management systems. This feedback was confirmed during the fact-finding mission, where institutions from the Executive branch highlighted the lack of awareness about the existence of any co-ordinating body on integrity issues after the dissolution of the Anti-corruption Secretariat.
Despite its role and responsibilities, the Ministry of Labour is not recognised as an integrity actor within the Executive branch
The lack of institutional leadership on integrity is paired with the underestimation of the role of other key integrity actors in Ecuador, both at the executive and country levels. This is especially the case of the Ministry of Labour, which is responsible for a broad range of policy areas, including many integrity-related ones such as meritocracy, professionalisation, capacity building, organisational culture, change-management, control of the public service and disciplinary enforcement.
There is a strong relationship between human resource management and public integrity and the OECD Recommendation on Public Integrity recognises the role of merit to build a culture of public integrity in organisations as one of the components of a public integrity system. It recommends that adherents “promote a merit-based, professional, public sector dedicated to public service values and good governance, in particular through:
Ensuring human resource management that consistently applies basic principles, such as merit and transparency, to support the professionalism of the public service, prevents favouritism and nepotism, protects against undue political interference and mitigates risks for abuse of position and misconduct.
Ensuring a fair and open system for recruitment, selection and promotion, based on objective criteria and a formalised procedure, and an appraisal system that supports accountability and a public service ethos”. (OECD, 2017[6])
Indeed, meritocracy has been shown to reduce corruption (Charron et al., 2017[32]; Dahlström, Lapuente and Teorell, 2012[33]; Meyer-Sahling and Mikkelsen, 2016[34]). Furthermore, having merit systems in place reduces opportunities for patronage and nepotism, and provides the necessary foundations to develop a culture of integrity.
The Ministry of Labour has several responsibilities to promote human resource policies and a merit-based public administration as well as other aspects relevant to mainstreaming integrity throughout the public administration. According to the Organic Law of Public Service of October 6, 2010 (LOSEP), regulated by Executive Decree No. 710 of April 1, 2011, it is responsible, among others, for:
Proposing State and Government policies related to the administration of human resources in the public sector.
Carrying out control in the central and institutional administration of the Executive branch by means of inspections, verifications, supervisions or evaluation of administrative management.
Managing the National Information System and the register of all public sector servants and entities.
Establishing national policies and technical standards for training, as well as co-ordinating the implementation of training and education programmes.
Requesting from the human resources units of the public administration, information related to human resources, salary and supplementary income.
Within the Ministry of Labour, the Under-secretariat for Meritocracy and Human Resources Development (Subsecretaría de Meritocracia y Desarrollo del Talento Humano) is particularly relevant in this context because its competence includes merit, human resources development, performance evaluation, training, and organisational culture. This is also reflected in its institutional mission, which is to develop a meritocratic system in the public service through the design and application of technical tools and the promotion of good practices in the processes of recruitment, human resources development and change management in the public service, to ensure the professionalisation and continuous improvement of public management in the application of the principles of efficiency, transparency, access to information and equal opportunities. The Under-Secretariat for Evaluation and Public Service Control is also relevant for public integrity because it is responsible for internal controls concerning compliance with the provisions of the LOSEP and other relevant regulations in order to promote the improvement of the institutional management of public service entities (Ministry of Labour of Ecuador, 2018[35]).
Furthermore, the Ministry of Labour is the governing body of the human resources units as well as of the organisational change and culture units within all public entities of the executive branch (unidades de administración de talento humano and unidades de cambio y cultura organizacional), making it particularly meaningful and crucial to mainstream integrity policies in the public administration since they are, in turn, responsible or have the role at the entity level for recruitment, management of performance, organisational culture and change management, code of ethics and ethics committees, training, and conflict of interest situations.
As part of the Open Government Action Plan 2019-2022, the Ministry of Labour is also responsible for the co-creation of a strategy with the participation and contributions of various actors for improving the quality of public services in the Executive branch based on the measurement resulting from the evaluations made by citizens, both from face-to-face and virtual channels.
Despite the role that the Ministry of Labour plays for public integrity, both in terms of policy development and implementation, the answers to the OECD questionnaire and the information shared during the fact-finding interviews evidence that it has never been involved in anti-corruption initiatives and it has been hardly identified as a key anti-corruption player neither in the Executive branch nor at the national level. This can be explained in part with the strong enforcement focus of anti-corruption initiatives in Ecuador, as well as with the broad competences of the Ministry of Labour, which is often associated with policies aimed at promoting employment in both the public and private sector.
To create an integrity system within the Executive branch, Ecuador could assign the General Secretariat of the Presidency of the Republic co-ordination and advisory functions while enhancing the role of the Ministry of Labour in the promotion of integrity standards and values
The analysis of information collected through the OECD questionnaire and fact-finding interviews highlighted that the lack of institutionalisation of integrity and anti-corruption efforts observed at the national level also concerns the Executive branch. Ecuador has not defined clear institutional arrangements and responsibilities for leading the integrity agenda and co-ordinating between various entities of the public administration. Plus, it has not sufficiently leveraged the role of all relevant actors in its strategy and efforts to mainstream integrity in public entities.
Indeed, any level and branch of the public administration include different actors with integrity responsibilities. This is the case for central, subnational or ministry levels of the administration but also for other branches of the state. In each of these dimensions, integrity actors are usually divided into “core” actors, such as the institutions, units or individuals responsible for implementing integrity policies and “complementary” actors, whose primary purpose is not to directly support the integrity system, but without whom the system could not operate (including functions such as finance, human resource management and public procurement) (Maesschalck and Bertok, 2009[36]). The specific assignments of responsibility depend on the institutional and legal context of each system that is considered. However, regardless of where the responsibilities are assigned, the actors performing integrity functions should have the appropriate level of authority to carry them out (OECD, 2020[12]).
Considering the challenges in the institutionalisation of integrity within the Executive branch, the government of Ecuador could clarify and assign integrity responsibilities by leveraging the roles and strengths of the existing institutional context, especially of the General Secretariat of the Presidency of the Republic and the Ministry of Labour.
First, the General Secretariat of the Presidency could be responsible for leading and co-ordinating the integrity agenda across the entities of the Executive branch, but also for advising the President of the Republic on legal or policy initiatives that could address challenges observed in its continuous interactions with public entities. These responsibilities of the General Secretariat of the Presidency would place the strategic leadership on integrity close to the President and thus demonstrate the highest commitment to promote integrity and fight corruption. At the same time, the General Secretariat of the Presidency would have the appropriate institutional role and authority to co-ordinate the integrity agenda of the government as well as the efforts of all other public institutions and entities belonging to the Executive branch through the Cabinet of Ministers. Furthermore, given the leading role envisaged for the President of the Republic in the National Integrity and Anti-corruption System, this would allow ensuring the essential coherence between the national strategy and the laws and policies adopted for the Executive branch.
Contrary to the responsibilities that were assigned to the Anti-corruption Secretariat, the General Secretariat of the Presidency should not assume a mandate that includes investigative tasks nor the reception of reports of possible corruption cases, which in turn differs from the General Secretariat of the Presidency’s Citizens Directorate (Dirección de Atención Ciudadana) competence to hear citizens' questions and concerns. These investigative tasks should remain under the existing remit of control and enforcement authorities within the Judicial and the Transparency and Social Control branches. In this sense, the focus of responsibilities should be on advisory and co-ordinating tasks in line with the existing strategic and advisory role of the General Secretariat (Box 3.2). Given the potential synergies with other issues related to the public administration and open government, this function could be assigned to the Under-secretariat for Government Management (Subsecretaría General de Gestión Gubernamental) of the General Secretariat of the Presidency of the Republic.
The General Secretariat of the Presidency has broad responsibilities which include the following strategic and advisory tasks in support of the President of the Republic:
dealing with the political and strategic aspects of the Presidency
analysing areas, issues, facts and actors having political and strategic interest with the objective to guide and facilitate the decision-making by the President
follow-up on areas, issues, facts and actors having political and strategic interest that have been prioritised by the President.
The General Secretary has the ranking of Minister, is member of the Presidential Cabinet and is appointed by the President. The responsibilities of the General Secretary include the co-ordination with the Presidential Cabinet, public sector authorities, and actors from private sector and civil society.
Source: Presidency of the Republic of Ecuador (2016[37]), Decree 1067 of 8 June 2016, https://www.presidencia.gob.ec/wp-content/uploads/downloads/2016/07/a1_decreto_1067.pdf (accessed on 12 April 2021).
Second, the government of Ecuador could enhance the role of the Ministry of Labour by assigning it a clear mandate to promote and support a culture of public integrity within the all the public institutions and entities of the Executive branch. As discussed, Ecuador does not currently have an entity with such responsibility, and the Ministry of Labour is best placed because it is the governing body on human resource management and policies, including the development of a merit-based civil service which is a key component to build a culture of integrity, as well as control, evaluation and institutional strengthening.
The Ministry of Labour also co-ordinates the human resources units as well as the organisational change and culture units of all public entities which already manage integrity-related policies such as the Code of Ethics, conflict of interest, organisational culture, change management, training and disciplinary enforcement. As such, the policies and initiatives promoted by the Ministry of Labour could be easily mainstreamed in the entities and processes of the public administration. Considering the current structure of the Ministry, the integrity competence could be assigned to the Under-secretariat for Meritocracy and Human Resources Development, whose name should also include a reference to integrity in order to formalise the mandate and build awareness about the role of the Ministry in integrity and anti-corruption issues.
As for the specific tasks, the Ministry of Labour could develop, promote and support policies and initiatives aimed at mainstreaming integrity values and standards through formal instruments such as codes but also training programmes and arrangements favouring a culture of integrity focused on prevention. It could also leverage its mandate on control and institutional strengthening to enhance the role and impact of related policies in the integrity systems at the entity level. The work of the Ministry of Labour should develop in coherence and co-operation with the General Secretariat of the Presidency, as well as maintain co-ordination with other entities governing other integrity-related functions or at-risk sectors both in the Executive and the Transparency and Social Control branches such as the Directorate of the National Public Procurement Service (Directorio del Servicio Nacional de Contratación Pública), the Office of the Comptroller General and the Ombudsman Office.
In designing the concrete role of the General Secretariat of the Presidency of the Republic and the Ministry of Labour, Ecuador could consider the institutional model adopted by Chile, which has similarities with the institutional and administrative set-up of Ecuador and which includes an advisory and co-ordination commission steered by the Presidency but also a civil service entity with a key role in promoting and mainstreaming integrity policies and ‘systems’ in the public sector entities (Box 3.3).
The leading institutions that generate public policies on matters related to the public integrity system of Chile are the Office of the Comptroller General of the Republic (CGR), the Ministry of Foreign Affairs (MINREL), the Public Integrity and Transparency Commission of the Ministry General Secretariat of the Presidency (MINSEGPRES), the Financial Market Commission (CMF), the State Defence Council (CDE), the Council for Transparency (CPLT), the Public Procurement and Contracting Directorate (CHILECOMPRA), the Judiciary (Poder Judicial), the Office of the Prosecutor General (Fiscalía de Chile), the Financial Analysis Unit (UAF), the Civil Service (Servicio Civil), and the Undersecretary of Regional and Administrative Development (Subsecretaría de Desarrollo Regional y Administrativo). Among those, two actors are particularly relevant in the present context:
The Ministerial Advisory Commission for Administrative Probity and Transparency in the Civil Service (Comisión Asesora Ministerial para la Probidad Administrativa y la Transparencia en la Función Pública) is an advisory body of the Ministry General Secretariat of the Presidency, which provides advice to the Ministry on matters related to integrity and transparency in the civil service, and on co-ordination between the different bodies of the State Administration in matters related to compliance with the regulations on integrity.
The National Directorate of the Civil Service (Servicio Civil) is responsible for the implementation of policies on the management and development of public officials and the senior management. As part of this mission, it provides Ministries and public entities with guidance to develop codes of ethics and to establish integrity systems at entity level. The National Directorate of the Civil Service has been supporting the development and implementation of participatory codes of ethics as well as the implementation and monitoring of integrity systems based on codes of ethics. On top of this guiding role, it also prepares an annual report on the implementation of integrity systems in the whole public sector.
The National Directorate of the Civil Service also has the mandate to build capacity and promote compliance with standards of integrity and transparency in public entities. Trainings are carried out on a regular basis for public officials, especially for those who perform co-ordination functions on integrity issues. In 2019, officials participating in these training activities amounted to around 2000. In parallel, the Civil Service has been working with UNDP and the UNCAC’s Anti-corruption Alliance on an online interactive course that includes two areas - civic training modules on integrity and training modules on integrity systems and codes of ethics. Plus, ad-hoc tailored trainings have been organised in co-operation with institutions such as Chilecompra, the Financial Analysis Unit, Comptroller's Office, and State Defence Council. Guidance and training have also been developed for entities at the subnational level, such as on the participatory development of code of ethics in municipalities.
In performing their respective roles and functions, these two actors have closely collaborated, for instance in the development and adoption of the Ordinance 2305 of 2018 on “Recommendations for the implementation and mainstreaming of the integrity system in the entities of the public administration”. Plus, they have also collaborated with other relevant actors of the public integrity system of Chile, leading to initiatives such as the Compendium of Legal Acts on Integrity and Public Ethics that has been jointly prepared by the Comptroller General Office and the National Directorate of the Civil Service.
Source: (Anticorruption Alliance of Chile, n.d.[38]); (Ministerial Advisory Commission for Administrative Probity and Transparency in the Civil Service of Chile; National Directorate of the Civil Service of Chile;, 2018[39]); (National Directorate of the Civil Service of Chile; Comptroller General Office of Chile, 2017[40]); (National Directorate of the Civil Service of Chile, n.d.[41]).
Public entities in the Executive branch have adopted different institutional arrangements on integrity, but their function is mostly focused on assessing and sanctioning misconducts
One of the most significant challenges that countries face in developing a culture of public integrity is to effectively implement national regulations and policies at the level of public entities, where the organisational culture takes form and public integrity becomes part of behaviour of public officials. Although they play a different role and function, public sector entities also have a responsibility in mainstreaming existing integrity policies in their organisation by establishing and institutionalising an internal integrity system featuring key functions, regardless of the mandate. Table 3.1 provides an overview of these essential functions along with the position or unit that is responsible for their implementation in the experience of OECD countries.
Ecuador has taken steps to institutionalise integrity through the establishment of Ethics Committees and the adoption of the international standard ISO 37001 on the Anti-Bribery Management System.
Ethics Committees and Code
The obligation to establish an Ethics Committee in each public entity has been introduced by Resolution 2 of May 7, 2013 (published in Official Supplement Register 960 of May 23, 2013). They have the responsibility of receiving, knowing, investigating and resolving any possible violation of the Code of Ethics for Good Living of the Executive branch (Código de Ética para el Buen Vivir de la Función Ejecutiva, or Code of Ethics), as well as implementing and disseminating the Code within the entity. The Code is mandatory for all public officials of the Executive branch since 2013 and its purpose is to establish and promote ethical principles, values, responsibilities and commitments to achieve institutional objectives and contribute to the efficient use of public resources. The Code establishes a list of ethical principles and values such as integrity, transparency, quality, solidarity, collaboration, effectiveness, respect, responsibility, and loyalty. In addition, it defines the responsibilities related to the Code (Table 3.2) for members of the Ethics Committee, who are:
Entities such as the Presidency of the Republic (Presidencia de la Republica), the Ministry of Transportation and Public Works (Ministerio de Transporte y Obras Públicas), the Ministry of Environment (Ministerio de Ambiente y Agua) and the Ministry of Labour issued ministerial agreements (No. SGPR-2014-0002, No. 067 of 30 July 2013, No. 079 of April 23, 2014, and No. 0133 MRL-2013, respectively) for the conformation of their Institutional Ethics Committees, and the definition of their own values and principles along with the ones of the national Code of Ethics. In addition, these agreements provide a list of concrete actions that the public officials are required to observe for the application of the principles and values of their respective Codes. For instance, the National Public Procurement Service (Servicio Nacional de Contratación Pública), updated its Ethics Committee through Internal Resolution No. RI-SERCOP-2019-00004 and its Code of Ethics, through Internal Resolutions No. R.I.-SERCOP-2019-00005 and R.I.-SERCOP-2019-00008, establishing expected behaviours and specific prohibitions for the daily exercise of the functions of its officials. Some decentralised autonomous governments have also established Ethics Committees, for example in the Province of Pichincha, which established one consisting of the Provincial Prefect, the Director of Human Resources Management and Administration as well as two representatives of the public officials.
Although several institutions have an Ethics Committee in place, the requirement has been modified in 2016 through Ministerial Agreement No. 0001606 of 17 May 2016, which decided to simplify such Committees by assigning the responsibility to monitor and ensure the implementation and enforcement of the Code of Ethics to the human resources units of each public entity.
The Anti-corruption and Transparency Management Committees pursuant to standard ISO 37001
Following the 2019 Presidential Annual Address to the Nation (Presidency of the Republic of Ecuador, 2019[43]), public entities have also been required to implement the Anti-bribery 37001 standard of the International Organization for Standardization (ISO), which includes, among others, the creation of an Anti-corruption body in each entity. (Box 3.4) For this purpose, the former Anti-Corruption Secretariat entered into inter-institutional agreements with seven public companies (the Co-ordinating Company of Public Companies, the National Electricity Corporation, the Electric Corporation of Ecuador, the National Telecommunications Corporation, the Ecuadorian Oil Fleet, Petroamazonas and Petroecuador) as well as with municipal entities to support the implementation of this standard. Other public entities of the Executive such SERCOP, the Ministry of Economy and Finance, the Ministry of Production, Foreign Trade, Investment and Fisheries (Ministerio de Producción, Comercio Exterior, Inversiones y Pesca) have adopted the ISO 37001 standard and others are in the process of doing so. To adopt the ISO standard, public entities seek support from specialised consulting companies and must be certified by one of the two authorised companies in Ecuador every 3 years. Public entities can choose to certify the organisation as a whole or specific areas or procedures. Both the adoption and the certification process comes along with a cost for the public entities. In addition to the certification process, some interviews during the fact-finding mission mentioned that public entities report on activities and results related to the implementation of the standards to the Presidency of the Republic. However, it not clear whether this is an obligation for all public entities having adopted the standard and whether this information is analysed or used to monitor its implementation or any other purpose.
The ISO 37001 standard of 2016 specifies requirements and provides guidance for establishing, implementing, maintaining, reviewing and improving an anti-bribery management system. In addition, it refers to several measures to help organisations prevent and detect bribery. It applies to all organisations, irrespective of their type, size and nature of business or activity, whether in the public, private or not-for-profit sectors.
The standard aims to support entities in the implementation of reasonable and proportionate measures to prevent bribery. These measures include management leadership, training, risk assessment, due process, financial and business controls, reporting, auditing and investigation.
The Ecuadorian Standardization Service, the public technical body of the National Quality System and member of ISO (International Organization for Standardization) for Ecuador, was designated as co-ordinator and participated in its drafting within the "Mirror Committee of the ISO 37001 Standard". Together with other Spanish-speaking countries such as Colombia, Argentina or Mexico, it also contributed to the official translation.
Source: Ecuadorian Standardization Service (n.d.[44]), The adoption of the ISO 37001 will help define anti-corruption strategies, https://www.normalizacion.gob.ec/la-adopcion-de-la-norma-iso-37001-permitira-definir-estrategias-contra-la-corrupcion/ (accessed on 12 April 2021)
Taking as example the Anti-corruption Committee created by the Ministry of Economy and Finance pursuant to standard ISO 37001, its mission is to steer and monitor the Institutional Anti-bribery Management System of the entity. The body is composed of the following members:
The General Financial Administrative Co-ordinator (or delegate), who chairs the Committee.
The permanent delegate of the Minister of Economy and Finance.
The General Legal Co-ordinator (or delegate), who shall act as Secretary.
The General Co-ordinator of Planning and Strategic Management (or delegate).
The implementing regulation defines the responsibilities of the body, as well as of the Chair and Secretary. It also establishes the functions and responsibilities of the Committee, which include:
Approving the internal regulations for the operation of the Anti-Bribery Management System and, in general, those related to the fight against corruption in the entity.
Resolving the reports that the Chairman of the Committee presents in the plenary of the Committee.
Reviewing the monthly report on the status of the reports received and issuing directives and guidelines for administrative investigation on them, without prejudice to the judicial enforcement.
Periodically reviewing the risks determined by the Anti-Bribery Management System as well as approving updates to the risk management methodology.
Ensuring compliance with all requirements set out in the processes of the Anti-Bribery Management System.
Ensure the communication of the institutional Anti-Bribery Policy through the institution's communication media as well as the regulations and procedures generated within the System.
Take the necessary actions to prevent retaliation, discrimination, disciplinary action, reporting or any other administrative action against any member of the institution or third party(ies) who has made submitted a report.
Periodically reporting to the head of the institution on Anti-Bribery Management System and of bribery reports that have identified as serious or systematic.
Lastly, the regulation also adopts a programme on integrity (Box 3.5) and another one on anti-bribery, which are also the responsibility of the Anti-corruption Committee.
The Integrity Programme of the Ministry of Economy and Finances aims to support the implementation of a series of measures and actions aimed at preventing, controlling and managing any possible risk of committing corrupt conducts to which the institution is exposed in its operations. The responsibility of its implementation is with the Anti-corruption Committee, in co-ordination, when relevant, with the Institutional Transparency Committee.
The programme foresees a “management system” monitoring and evaluation the Plan as well as the implementation of a risk-management system and of a conflict of interest management system as well as the promotion of institutional capacity for prevention together with communication and capacity-building activities. The plan refers to the review of the Code of Ethics, sets certain prohibitions in relation to facilitation payments and gifts, and affirms the principle of transparency. Lastly, it provides for the development of protocols allowing public officials and private actors to file complaints in the event of fraudulent or corrupt acts, clearly specifying how to file a complaint, the requirements, the channels for filing complaints, the protection measures for those submit the complaints and those responsible for their reception.
Source: Ministry of Economy and Finance of Ecuador (2019[45]), (2019), Standards on the Fight against Corruption and the Anti-bribery Management System in the Ministry of Economy and Finance, https://www.finanzas.gob.ec/wp-content/uploads/downloads/2019/07/Acuerdo-Lucha-Contra-la-Corrupci%C3%B3n.pdf (accessed on 12 April 2021).
Ecuador could give the mandate to promote and co-ordinate integrity and other preventive initiatives to the organisational change and culture units within public entities
Next to these institutional and co-ordination efforts, several laws and policies in Ecuador are supporting public integrity. While each of these laws and policies calls for an in-depth review in terms of their scope and implementation, also to identify potential overlaps or gaps, the fact-finding interviews provided the general indication that few of them embrace a preventive approach and contribute to building an organisational culture of integrity.
Considering the focus of the present report and following the structure of the OECD Recommendation (OECD, 2017[6]), the analysis made in the present section focuses on assessing the institutional grounding of key integrity laws and policies at the level of public entities. Indeed, to be effective integrity laws and policies need to be institutionalised and implemented at the entity level and thereby mainstreamed throughout the public administration (OECD, 2019[1]).
Managing conflict of interests and asset declarations
The OECD Recommendation calls for “…setting clear and proportionate procedures (…) to manage actual or potential conflicts of interest” and to provide “easily accessible formal and informal guidance and consultation mechanisms to help public officials apply public integrity standards in their daily work as well as to manage conflict-of-interest situations”. (OECD, 2017[6])
In Ecuador, the Organic Law of the Public Service (Ley Orgánica del Servicio Público) No. 294 of 6 October 2010, which is complemented by the Executive Decree No. 710 of April 1, 2011, includes some relevant prohibitions on designation, appointment and contracting in public entities. It also establishes the responsibilities and penalties in case of non-compliance, special prohibitions for the performance of a position in the public sector and others in the case of multi-employment.
With regards to declarations, two of the requirements for entering a public position are the presentation of a sworn statement (declaración juramentada) stating that the candidate it is not found incurred on legal grounds of impediment, disability or prohibition for the exercise of a public office, as well as the presentation of the corresponding sworn asset declaration (declaración patrimonial juramentada). As established in article 3 of the Organic Law of the Public Service, public officials are required to present the asset declaration at the beginning and at the end of their working period and to update it every two years. The Law established that the information contained in the declarations is public and that the lack of presentation of the declaration at the beginning of the working period will result in the immediate cancellation of the appointment or contract and the termination of duties, in addition to the removal of the head of the human resources management unit who has recruited the public official without that requirement. Furthermore, according to the Organic Law for the Application of the Popular Consultation of February 19, 2017, it is prohibited for citizens to enter the public service while owning assets in countries which are considered as tax havens.
The Office of the Comptroller General of the State (Contraloría General del Estado, CGE) defines the format and procedures for the asset declarations of public officials. In the public entities, the human resources management units in each institution are responsible for verifying that the declarations have been submitted to the CGE, which carries out the review of the declarations and the processes of verification of the information to identify possible cases of illicit enrichment.
Capacity building
The OECD Recommendation calls for providing “sufficient information, training, guidance and timely advice for public officials to apply public integrity standards in the workplace”, in particular by “offering induction and on-the-job integrity training to public officials throughout their careers in order to raise awareness and develop essential skills for the analysis of ethical dilemmas, and to make public integrity standards applicable and meaningful in their own personal contexts”. (OECD, 2017[6])
In Ecuador, training and capacity building activities on integrity-related issues are managed by each single entity and are usually linked to the Code of Ethics. Examples include:
The Ministry of Health (Ministerio de Salud Pública) has been organising various virtual courses and workshops on the Code of Ethics in the last five years and it is planned to develop new training methodologies in 2021.
The National Human Resources Directorate of the Internal Revenue Service (Servicio de Rentas Internas) offers courses related to integrity and ethics in its annual institutional training plan. In the last three years they offered activities on control pursuant to the Organic Law of Public Service, ethics, professional ethics in public administration, public ethics, as well as institutional reputation and identity.
The National Public Procurement Service has an internal workshop course on the ISO 37001 standard, which has been running since 2019 and has so far had four editions and the participation of 688 civil servants.
The Ministry of Economy and Finance developed a training programme linked to its anti-bribery management system. It should be approved by all the Ministry's civil servants, including the highest authority. As of October 2020, 537 civil servants have been trained.
Answers from the OECD questionnaire also mentioned that issues of transparency, ethics and integrity are addressed as part of the induction training for new public officials. Indeed, according to the Technical Standard of the Training and Capacity Building Sub-System (Norma Técnica del Subsistema de Formación y Capacitación) these trainings are delivered by the Human Talent Management Unit (Unidad de Administración de Talento Humano, UATH) of each institution and are meant to raise awareness on principles and values in accordance with the specific vision, mission and goals of each institution. Furthermore, the Ministry of Labour has established the “Executives of Excellence” programme, a merit-based initiative that promotes the selection of candidates with managerial skills to fill executive positions (Nivel Jerárquico Superior, NJS) following the principles of suitability, transparency, and equitability (OECD, forthcoming[4]). Moreover, the Office of the Comptroller General organises a relevant training programme on “public ethics, citizen participation and social control” which includes courses for citizens and public officials. This programme addresses conceptual, normative and methodological aspects on public management control, social control and citizen participation, the social role of the Office of the Comptroller General and issues related to public ethics. According to the Annual Institutional Training Plan 2019, 55 training courses have been organised on those topics, involving 3 372 public officials in both in-person and virtual format (UNDOC, 2020[20]).
Answers to the OECD questionnaire also mentioned the role that the Anti-Corruption Secretariat had in supporting capacity building initiatives and that no other institution has succeeded in that after its dissolution. Indeed, the follow-up interviews during fact-finding mission confirmed the existence of capacity building activities offered by some institutions, but also that the lack of an entity promoting a uniform and harmonised approach on capacity building results in a fragmented and uneven activities thorough the public entities of the executive branch.
Open culture and whistle-blower protection
The OECD Recommendation calls for encouraging “an open culture where ethical dilemmas, public integrity concerns, and errors can be discussed freely”, to provide “clear rules and procedures for reporting suspected violations of integrity standards, and ensure (…) protection in law and practice against all types of unjustified treatments as a result of reporting in good faith and on reasonable grounds” and to provide “alternative channels for reporting suspected violations of integrity standards, including when appropriate the possibility of confidentially reporting to a body with the mandate and capacity to conduct an independent investigation.” (OECD, 2017[6])
The answers to the OECD questionnaire in Ecuador provided different views regarding institutional space where public officials can turn to openly discuss doubts and concerns related to integrity such as ethical dilemmas situation or conflict of interest situations. Most institutions pointed out to the human resources and legal units, but also to the immediate superior or the Ethics Committee. With regards to initiatives promoting an open organisational culture, those that have been mentioned include:
Focus groups for the discussion of doubts and concerns about the work environment in reference to institution’s strategy and the results obtained in the work climate survey.
Virtual tools such as the one called "Buzón Cuéntame", through which public officials can make contributions, suggestions, comments, acknowledgements regarding the work environment of the institution and other issues.
Annual performance evaluations that include questions on the participation of employees in the management and decision-making of their administrative unit and the entity in general.
Work climate and organisational culture surveys with room for comments and suggestions.
Although these are useful initiatives to improve organisational culture and well-being, the interviews during the fact-finding mission confirmed there is no specific unit or area with mandate for promoting an open organisational culture, as understood in OECD Recommendation on Public Integrity (OECD, 2017[6]). They also highlighted that the indicated channels are not commonly used by public officials to seek for ethical advice. This is due in part to the fact that most of those areas have a competence on investigative or disciplinary issues, which does not create the right environment to have open discussion.
In turn, regulations and guidelines for the submission of complaints are in place in Ecuador, but for all citizens in general. The Regulation for the Presentation, Reception and Processing of Complaints for Administrative Investigation in the Office of the Comptroller General was adopted through Agreement 045-CG-2018 of 27 July 2018 along with the following key points:
Simplification of requirements for the submission of complaints.
Setting up a wider variety of channels to submit complaints: in writing, verbally, by telephone, by e-mail, and via the institutional website.
Ensuring confidentiality of information to bona fide complainants in order to guarantee the protection of their personal data.
The Council for Citizen Participation and Social Control also established a regulation for the management of requests and complaints about acts or omissions that affect participation or generate corruption (Resolution No. PLE-CPCCS-022-26-11-2015).
Some public entities such as the Ministry of Economy and Finance and the Ministry of Production, Foreign Trade, Investment and Fisheries, the Internal Revenue Service and SERCOP have set up their own internal whistleblowing policies and protocols in the framework of the ISO 37001. Outside the executive branch, the Office of the Prosecutor General has also set up an on-line tool called Transparency Inbox (Buzón Transparencia) where citizens can report alleged acts of corruption and irregularities committed by its public officials.
The different but related mechanism of protection of witnesses and victims in criminal proceedings is provided by the Office of the Prosecutor General through the National System for Victim and Witness Protection (Sistema Nacional de Protección de Víctimas y Testigos). Protection may be afforded to the families of participants in criminal proceedings, but not to other persons close to witnesses or experts; only the prosecutor, not the persons seeking protection, may apply for protective measures.
While efforts have been taken, especially in some public entities, Ecuador lacks a national whistleblowing policy and mechanism which is tailored to public officials and that also includes effective protection against reprisals. This a crucial feature to promote the use of whistleblowing, as also stressed by the OECD Recommendation on Public Integrity (OECD, 2017[6]).
Risk management and audit
The OECD Recommendation call for applying “an internal control and risk management framework to safeguard integrity in public sector organisations” as well to “reinforce the role of external oversight and control within the public integrity system.” (OECD, 2017[6])
The Office of the Comptroller General of the State (Contraloría General del Estado, CGE) is the Supreme Audit Institution of Ecuador and has the Constitutional mandate to control the use of State resources and the achievement of the goals of State institutions and private-law legal entities that dispose of government resources (Art. 211). The responsibilities of the CGE include the direction of the administrative control system, comprised of internal auditing, external auditing and internal control of public sector institutions (as defined in Art. 225 and 315 of the Constitution) and those private-sector entities that dispose of government resources.
These entities are required to follow the internal control standards defined by the Comptroller General Office in 2009 (Normas de control interno para las entidades, organismos del sector público y de las personas jurídicas de derecho privado que dispongan de recursos públicos). They define internal control objectives and responsibilities, and set standards that guide entities, among other issues, on the control environment, control activities, and risk management. The Organic Law of the State Comptroller General (Ley Orgánica de la Contraloría General del Estado), in its Art. 14, requires that each public entity, where justified, shall have an organised, independent and well-resourced Internal Audit Unit (Unidad de Auditoría Interna) to carry out ex post internal audits and provide timely and professional advice in the field of its competence, adding value to institutional management and reasonable assurance that the management of the highest authority and other public officials is carried out in accordance with the rules. The Internal Audit Units depend technically and administratively on the CGE and their organisation, structure, functions and attributions are further regulated in Agreement No. 59-CG-2018 of the CGE.
Although the risk management and internal control standards are comprehensive and aligned with international standards, in practice, the level of implementation seems to be limited. Interviews during the fact-finding mission highlighted that in particular the risk-management approach is limited within public entities, especially, but not only, in relation to integrity and corruption risks. Furthermore, the Internal Audit Units, when they exist, tend to focus on their audit function aimed at compliance with Laws and regulations, rather than providing independent, objective assurance and advice to the entity’s management. In addition, similar to the case of Peru (OECD, 2017[46]), given that the Internal Audit Units depend technically and administratively on the CGE, there is a risk of generating confusion amongst public servants with respect to internal and external audit and control, and therefore their own role in guaranteeing an effective implementation of internal controls (OECD, 2019[1]).
Disciplinary enforcement
The OECD Recommendation calls to “ensure that enforcement mechanisms provide appropriate responses to all suspected violations of public integrity standards by public officials and all others involved in the violations.”
In Ecuador, the disciplinary regime is regulated by the Public Service Organic Law, whose Article 41 establishes that any public official who fails to comply with his or her obligations or who contravenes the provisions of this Law, incurs administrative liability and can lead to a disciplinary sanction. Disciplinary offences are divided into minor ones – such as failure to comply with working hours during a working day, inappropriate performance of activities during working hours – and serious ones, which are actions or omissions that seriously contravene the legal system or seriously alter the institutional order. Minor offences give rise to the imposition of verbal or written warning, an administrative pecuniary sanction or a fine. Sanctions for serious misconduct include the suspension or dismissal of the public official.
The administrative summary procedure (sumario administrativo) to ascertain disciplinary liability and eventually impose the corresponding sanctions is carried out by the Ministry of Labour through the human resources management unit of the public entity. The procedure should respect the due process guarantees, ensure the participation of the parties involved, respect for the right to defence and the in dubio pro reo principle.
Based on this preliminary review of some key laws and policies in Ecuador with relevance for public integrity, the following shortcomings emerge both in terms of scope and implementation at entity levels:
The integrity system of public entities in the executive branch of Ecuador consists of institutional arrangements and policies which are mostly designed to discover and sanction corruption breaches. In the case of the Ethics Committees, their main function is to review possible breaches of the Code of Ethics, while for the ISO 37001 the focus is on bribery cases, which is narrower and closer to the criminal domain.
Although differences exist among entities, a similar approach emerges from the analysis of the integrity policies applicable in entities and their implementation. In this sense, codes and rules on conflict of interest situations are conceived as legal tools to detect misconducts and the corresponding training offer is not homogenous and continuous for all public officials across the public institutions and public entities.
Spaces for integrity advice and open discussions are limited and not used in practice, while the lack of protection for whistleblowers limits the submission of reports from those who experience a breach of integrity but fear reprisals at the workplace.
Standards for risk management and internal control exist but their implementation in practice seems to be limited and do not target corruption and integrity risks. Internal audit formally depends on the CGE, and focuses more on ex post control rather than on providing assurance and support to management on the internal control and risk management environment. As the Internal Audit Units belong formally to the CGE, there is also a risk of creating confusion between internal and external audit and control.
The disciplinary framework is in place, but challenges seem to exist in relation to its perceived effectiveness among public officials. Furthermore, the competence of the human resource management unit on disciplinary enforcement prevents public officials to turn to it for integrity-related questions such as ethical doubts or dilemmas.
The model proposed by the ISO 37001 standard covers relevant areas and issues, with some reference to the preventive perspective, and it may represent a tool to define and implement anti-corruption responsibilities and processes in public entities, as it has been the case in some of the public institutions and entities which that took part in the data-collection exercise. However, its sustainability and impact on institutionalising integrity at entity level seem to be limited by several factors and similar views on the strengths and weaknesses of the ISO 37001 standard have been raised in relation to its use in the private sector (Murphy, 2019[47]).
First, the scope focuses on bribery, which is a criminally relevant offence whose scope is much narrower and conceptually different to public integrity, which refers to the “consistent alignment of, and adherence to, shared ethical values, principles and norms for upholding and prioritising the public interest over private interests in the public sector”. (OECD, 2017[6])
Second, as mentioned above, the ISO 37001 standard requires an external certification process that may create a positive incentive for the entity to comply with it, but cannot be intended as a guarantee that the entity is immune from integrity and corruption risks. Concerns have been raised in this sense during various interviews of the fact-finding mission, where it was pointed out that there is a risk that the certification is used by entities as an end in itself for mere communication and reputation purposes. This may impair the development of a sustainable integrity system, which requires continued commitment and substantial efforts aiming at building a culture of integrity. A highly-publicised certification that is not backed by changes or continued scandals can even backfire and further fuel mistrust in government’s anti-corruption efforts.
Similarly, it was pointed out that the certification implies costs that need to be covered with public funds, has to be renewed on a recurrent basis and can only be carried out by two external companies, which may create the perception of limited competition for such delicate role requiring the highest degree of independence and the perception thereof.
Considering these limits and uneven results of existing institutional models in creating cultures of integrity throughout the public administration, Ecuador could decide to focus the function of both the Ethics Committees and the Anti-bribery Committee on enforcement-related matters, including the review of possible breaches of the Code of Ethics. This is one of the main responsibilities of these Committees, and the one they are most known for by public officials.
In addition, it could assign the integrity mandate with a clear preventive approach to another unit within public entities that is not associated with investigations or enforcement functions. Considering the current institutional environment of public entities in the Executive branch and the importance of linking the concept of public integrity to already defined units and responsibilities, Ecuador could assign it to the organisational change and culture units (unidades de cambio y cultura organizacional) or whoever perform their functions. These are generally in charge of proposing, implementing, leading and managing transformation and change management processes of organisational culture and institutional reform, which can also be leveraged to promote and develop a culture of integrity. (Box 3.6) These units could support in the participatory development of standards, provide clarifications and confidential advice on integrity issues - also from questions or results of the organisational culture surveys -, organise participative debate and discussions on ethical topics emerging from the advice function and surveys, as well as promote and contribute to the capacity building activities on integrity.
The organisational change and culture units usually belong to the area that in public entities is responsible for strategic management and their main objective is to lead change management processes inside the organisations in view of achieving continuous development of organisational culture and institutional maturity.
The specific tasks attributed to these units vary depending on the entity. However, taking as an example those established in the Ministry of Health and the Ministry of Education, they are commonly responsible to develop, among others, the following products:
Proposals for change management and innovation projects and programmes.
Action plans for improvement of the organisational climate and culture.
Awareness raising and communication plans on change management and resilience as well as on innovation issues to generate a sense of belonging in the institution.
Change management policies and tools to establish and maintain institutional communication.
Communication and change management training plans to ensure an adequate flow of information to all staff.
Reports on the implementation of organisational culture change management plans and programmes in the institution, to translate organisational strategies into concrete plans, monitor their execution and provide a complete overview of the management and performance of operation.
Progress reports on the implementation of the Institutional Public Management Model.
Source: (Ministry of Health of Ecuador, n.d.[48]); (Ministry of Education of Ecuador, 2014[49]).
Mandating the organisational change and culture units, or whoever perform their functions, with an integrity mandate would be coherent with the recommended enhanced role of the Ministry of Labour in the integrity system at level of the executive function. Its Undersecretariat for Meritocracy and Human Resources Development (Subsecretaría de Meritocracia y Desarrollo del Talento Humano) also includes the Directorate for Change Management and Organisational Culture (Dirección de Gestión del Cambio y Cultura Organizacional), whose responsibilities include co-ordinating with the relevant units at the entity level the implementation of policies, methodological guidelines and tools necessary to manage actions focused on change management, climate, organisational culture and development of human resources management.
A crucial aspect that the OECD has been highlighting is to avoid that those units in public entities with an integrity mandate also receive and process report on possible corruption breaches, as it would create confusion and duplication with those units which already have such responsibility (OECD, 2019[50]). Indeed, adding an integrity mandate to the organisational change and culture units would give them a key role in the integrity system of the entity, but not the responsibility for all integrity-related areas. Its main function would be to promote and articulate relevant initiatives across the entity with the essential support of the highest authority and in close co-ordination with the ethics and anti-bribery committees but also the transparency and open data committees and all the other actors or areas that have relevant responsibilities in relation to human resources, training, transparency, open government, internal control and audit, risk management, investigations, and sanctions. In this context, Ecuador could consider the institutional models for institutional integrity adopted in Peru and Chile, which also feature an integrity function whose main responsibilities include the facilitation, co-ordination and promotion of integrity efforts and initiatives within the entity (Box 3.7).
The integrity system in Chile has been strengthened through the agendas of the different governments in office from 1994, developing more than 200 administrative and legal measures in matters of probity. Furthermore, a behavioural and participatory approach has also been introduced from 2015 onwards.
The guidance of the Presidential Advisory Council against conflicts of interest, influence peddling and corruption was considered in the 2016 "Agenda for Transparency and Probity in Business and Politics", and the dimensions of integrity and transparency have been constantly included in the subsequent presidential agendas. Some of the objectives of the Agenda include:
Having an institutional code of ethics and ensuring compliance with it.
Ensuring integrity strategies that count with the leadership of the senior head of service.
Developing information channels, channels for consultation and channels for reporting of ethical breaches.
In order to achieve these objectives a formal structure is also recommended for the design and implementation of the integrity system. It includes the head of the entity, technical advisor(s), an integrity co-ordinator, an integrity committee and an integrity management platform. As of October 2020, 87% of public entities at the central level had established such structure, and 284 public institutions have built participatory codes of ethics.
In this context, it is relevant to highlight the role of the integrity co-ordinator, which is responsible for the development of strategies, actions and tools to strengthen the organisational culture with high ethical standards and to embrace a risk-based approach preventing reputational damage and the sanctioning of its officials. The integrity co-ordinator is trained by the National Directorate for Civil Service and its functions include:
Implementing actions that promote best practices and update the code of ethics, encouraging ethical thinking in the institution's officials.
Co-ordinating the implementation of the necessary programmes to disseminate and instruct public officials on the integrity.
Reporting to the head of the entity and to the integrity committee on the activities, identifying progress in view of generating institutional credibility and trust.
Disseminating the code of ethics and related material on the entity’s webpage and other means used to communicate with its officials.
A key element of the integrity ecosystem in Peru is the so-called ‘integrity model and integrity function’ that every public entity must implement, regardless of the level of government. Legislative Decree No. 1327 of January 6, 2017, first established the creation of ‘Offices of Institutional Integrity’ (Oficinas de integridad institutional, or OII), whose role was further enhanced by the National Plan of Integrity and Fight Against Corruption and detailed in Resolution No. 1-2019-PCM/SIP. This Resolution from the Secretariat for Public Integrity makes it mandatory for all the entities to establish an integrity function – to be performed by the OII, the highest administrative authority or the human resources unit department – with the following responsibilities:
The implementation of the integrity model established in the National Plan and consisting of 9 components (commitment of the senior leadership; risk management; integrity policies; transparency, open data and accountability; internal and external control and audit; communication and training; complaint channels; oversight and monitoring of the integrity model; an official in charge of the integrity model.
The development of mechanisms and instruments for the promotion of integrity.
The observance and internalisation of the values and principles linked with the proper use of funds, resources, assets and public responsibilities.
Source: (National Directorate of the Civil Service of Chile, n.d.[41]); (OECD, 2019[50]).