Two months after the former Deputy Minister of Health of the Andalusian Government signed for the private insurer Asisa – to which he had granted 44 million euros in contract contracts when he held the position of manager of the Andalusian Health Service (SAS) – , the Government Council approved this Tuesday an urgent reform of the Law on Incompatibilities of Senior Officials, which dates back to 2005.
The Board had already announced its intention to modify a “very bad” rule, said then the Minister of Justice, Local Administration and Public Function, José Antonio Nieto, since it had proven insufficient to prevent – or at least alert – of the intention of the former number two in Health to sign for a private company that he had favored while in office just three months after his resignation.
One of the aspects of the reform approved this Tuesday establishes the obligation for senior officials to previously inform the Andalusian Government before signing for a private company in the sector in which they have had responsibilities, something that has not happened until now. It is, Nieto clarified, a reform in two parts: the first modification has addressed “the most urgent thing”, that is, obliging by law the senior officials who leave the Andalusian Administration to communicate their move to the private sector – once Two years have passed – and wait for a mandatory report of incompatibilities.
A second, more ambitious reform of the law will be made as a bill or as a preliminary draft, the Ministry of Justice explains, to address broader aspects and submit them to the scrutiny of the Andalusian Parliament. This second phase would include, for example, a rethinking of the severance system, that is, the compensation that senior officials receive for a period of time – one month’s salary for each year worked on the Board – to compensate for this period of work inactivity. and the absence of unemployment benefits.
For now, the Government of Juan Manuel Moreno has chosen to promote the first modification of the Law on Incompatibilities of Senior Officials, using the formula of the decree law, which comes into force immediately without having to first go through Parliament. There, in the Legislative Chamber, another reform proposal from the left-wing coalition Por Andalucía is registered, but the Board has preferred to accelerate “the most urgent changes” to avoid repeating a case similar to that of the former Deputy Minister of Health.
Once the decree law is submitted for validation by the Chamber – in the first Plenary Session in June – the Board will decide whether this text is processed as a bill or if the Government presents a new bill. The difference between one option or another is mainly in terms of deadlines, since the first way could have a definitive text at the end of this year or the beginning of 2025, while in the second way, the law could be definitively approved around a year and a half.
Regarding the possible extension of layoffs, Nieto has admitted that the model to follow is that of the Government of Spain, which pays compensation to former senior officials for two years. “We are going to work on this matter and we have already been seeing how they are regulated in other autonomous communities and, above all, by the Government of Spain,” he said.
The Guzmán case
The popular ones are aware that this debate is predetermined by the controversial signing of Miguel Ángel Guzmán to the multinational Asisa. The man who was manager of the SAS in the last term and then deputy minister of Health resigned last December and three months later he signed for the private company, whose group of hospitals had received 44 million euros in private awards from his department. .
The Board found out from the press, its spokesperson said then, and dealt with the political storm by improvising an internal investigation that concluded that Guzmán could not sign for Asisa in March – as planned – but could in July, when the two mandatory years established by law since he stopped being manager of the SAS. The former deputy councilor decided to put his signing on hold until he met the waiting periods set by the Board, clearly upset by the situation in which he had put them.
The Andalusian Executive – following a report from the General Service Inspection (which he did not wish to make public) – concluded that there was no incompatibility between the position of vice-counselor and the managerial position that Asisa offered him, because as number two in the Department of Health (appointed in 2022) “did not sign contracts” that favored this company.
The report on Guzmán concluded, according to the version offered by the Board, that his contract with the Asisa Group “would constitute a breach of the regulations on incompatibilities for senior positions as long as it occurred before July 29 of this year.” “date on which two years would have passed since his termination from the SAS,” the statement said.
The incompatibility would be motivated by the 14 contracts that the SAS signed with the entities linked to the insurance company group between November 2019 and June 2022. At this stage, “although the contracts were not signed directly by Guzmán,” but by the General Director of Health Care and Results by delegation of signature, “this does not alter competition.”
Nieto recognized this Tuesday that there was “a gap” in the “incompatibilities control system” as a result of the Guzmán case, and presented the approved reform as the “most restrictive in Spain.”
The decree law will not have retroactive application, but it will affect senior officials who are still within the two-year period since they ceased, as is the case of Guzmán, as explained by the counselor. “It applies to all people who request now or in the future a request for compatibility and a guarantee that there is no conflict of interest,” added Nieto, pointing out that if Guzmán took the step of signing for the private company (something which, however, he resigned when the situation arose), he would have to request that report, because “non-request immediately places him in that situation of conflict of interest.”
When the controversy broke out over the signing of the former Deputy Minister of Health by the company that had received 44 million euros at the hands of his department, the Andalusian head of Justice complained of the “manipulation” and “demagogy” that had accompanied the public debate. Nieto called it “injustice” that we compensate a person “who we tell that for two years he cannot return to the activity to which he was already dedicated when he joined the Andalusian Government” with three months. “And the rest of the time? How do you support his family? How do you pay your mortgage, or how do you cover your expenses? ”He asked himself rhetorically.
Political decisions supported by technical reports
The approved decree law provides that, during the two years following their dismissal, senior officials will not be able to carry out activities or provide services in private entities (including those that belong to the same corporate group) related to files on which they have issued a resolution in the exercise of office. Furthermore, during the two years after the cessation they will not be able to sign, either by themselves or through entities in which they have a direct or indirect stake of more than 10%, administrative or private contracts of any nature with the Board and its dependent entities, in those that have provided services, as long as they are directly related to the functions performed.
In this way, the decree law understands that there is a direct relationship when the senior official in the exercise of his functions, or his hierarchical superior at the proposal of the senior official or those who are holders of bodies that were dependent on him (whether by delegation or substitution ) had signed a mandatory report, an administrative resolution or an equivalent act in relation to the company or entity. Also when they have voted favorably on decisions that affect the powers of the position held in collegiate bodies related to the company or entity in question.
On the other hand, it will not be understood that there is a direct relationship with the functions performed when the decision adopted as a senior official was not referred to a particular company or entity, but rather to a group of these on a general basis and not forming part of a procedure of a general nature. competitive among the different concurrent subjects. Nor when the decision was issued in a competitive competition procedure at the proposal of a collegiate technical body, provided that the composition of said body has not been decided or proposed by the public official.
Likewise, it will not be considered a cause of incompatibility to have carried out a regulated action basing the decision on technical reports from the staff at the service of the Board or from bodies established for this purpose by legislation that have motivatedly proposed a single solution to award a contract, grant subsidies or other performances.
The decree law obliges dismissed senior officials who intend to carry out a private activity in the same sector in which they have carried out their functions in the two years following their dismissal, to communicate this in advance to the department responsible for public administration and to obtain a authorization.
Likewise, it establishes that the General Inspection of Services will be competent for the instruction of the procedure in which it will collect, within a period of five days, a report from the department, agency or entity where the interested person has held a senior position so that it can assess the origin of the authorization.
After studying the documentation provided, if the Inspection considers that the private activity that it intends to carry out does not comply with the standard, it will send its proposal to the interested party and the entity in which it intends to provide its services and they will have a period of ten days to make allegations. Once the allegations have been analyzed, the Inspection will send a proposed resolution to the department responsible for Public Administration, determining whether the authorization is appropriate or not, and said department will have one month to issue and notify the final decision.
In the case of senior officials who, after their dismissal, re-enter the public service within two years and have been granted compatibility to provide paid services to private individuals or legal entities, they must also obtain the aforementioned authorization. The approved Decree Law also establishes that carrying out private activities that require authorization without it will constitute a very serious violation of the Incompatibilities Law.
The text also modifies the Transparency Law, as it expands the mandatory declaration of activities, assets, interests and remuneration for senior officials so that they must not only present and update it while they perform the position, but also after leaving office.