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Publication date: 08.05.2024
Legal opinion (Analysis, consultation, evaluation. legal analysis of the situation, lawyer's consultation, lawyer's consultation, analysis of documents,)
regarding the joint work of close persons, the existence and settlement of a conflict of interests in a higher educational institution (university)
By joint letter of the Department of Education and Science of the Odesa Regional State Administration No. 2847/01-32 dated September 1, 2022 and the Odesa Regional Organization of the Trade Union of Education and Science Workers of Ukraine No. 01-12-134 dated September 9, 2022 (hereinafter - Joint Letter), to higher educational institutions (hereinafter referred to as higher education institutions) proven information on issues related to work under the rector, vice-rectors, deans of faculties and other heads of structural subdivisions of persons close to them.
Briefly, the information that is set out in the Joint Letter.
The rector is an official of the university, equated to persons authorized to perform the functions of the state or local self-government, is a subject in accordance with p. "a" p. 2, part 1, art. From the Law of Ukraine dated October 14, 2014 No. 1700-VII "On Prevention of Corruption" (hereinafter - Law No. 1700), and Notes to Art. 172-7 of the Labor Code of Ukraine.
The rector is subject to Law No. 1700, and he is obliged to comply with its requirements.
According to para. 1 h. 1 tbsp. 27 of Law No. 1700 may not directly subordinate persons close to them or be directly subordinated in connection with the performance of powers to persons close to them, persons specified in subparagraphs "a", "c" - "z" of clause 1 of the first part of the article From this of the law
A legal analysis of the situation suggests that they include managers and other officials of educational institutions, namely:
- Rector;
- Vice-rectors;
- Deans of faculties;
- Directors of institutes;
- Heads of departments;
- Heads of departments and services.Therefore, the prescriptions of the legislation regarding the settlement of the conflict of interests apply not only to officials, but also to the above-mentioned officials of the university (hereinafter referred to as the University's PO).
If a person has doubts about the existence of a conflict of interests, the university's PO is obliged to seek clarification from the territorial body of the NAKC.
If a person has received confirmation of the absence of a conflict of interest, he is released from responsibility if a conflict of interest is later revealed in the actions for which he sought clarification (parts 5, 6 of Article 28 of Law No. 1700).
The Ministry of Education and Culture believes that conflict of interests is a broader concept and includes, but is not limited to, restrictions on relationships of direct subordination. Therefore, the absence of relationships of direct subordination, as well as the absence of a ban on the direct subordination of close persons, does not negate the possibility of a potential or real conflict of interests in the performance of official duties by the University.Article 1 of Law No. 1700 defines that close persons are family members of the subject specified in Part 1 of Article 3 of this Law, as well as husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter , relatives and cousins, relatives and cousins, wife's brother and sister (husband), nephew, niece, uncle, aunt, grandfather, grandmother, great-grandfather, great-grandmother, grandson, granddaughter, great-grandson, great-granddaughter, son-in-law, daughter-in-law, father-in-law, mother-in-law, father-in-law, mother-in-law, father and mother of the wife (husband) of the son (daughter), adopter or adopted, guardian or custodian, person who is under the guardianship or care of the specified subject.
According to the Methodological recommendations approved by the National Agency for the Prevention and Detection of Corruption (decision dated 14.07.2016 No. 2), "conflict of interest" is a situation in which an official, performing his duties, has a private interest (personal interest), which, although it does not necessarily lead to the adoption of an illegal decision or the commission of an illegal act, but is capable of leading to it.
Law No. 1700 distinguishes between two types of conflict of interest: potential and real:
1. Potential conflict of interests - the presence of a person's private interest in the field in which he performs his official or representative powers, which may affect the objectivity or impartiality of his decision-making, or the performance or non-performance of actions during the performance of these powers ( Article 1 of Law No. 1700).For example, if the principal of a school has the authority to make decisions regarding the awarding of his daughter, who works at the same institution, this is a potential conflict of interest. That is, a potential conflict of interest arises when an official has official powers related to the execution/inaction of actions, decision-making in relation to a close person.
2. Real conflict of interests - a contradiction between a person's private interest and his official or representative powers, which affects the objectivity or impartiality of decision-making, or the performance or non-performance of actions during the exercise of said powers (Article 1 of Law No. 1700). For example, if the rector exercises his official powers in relation to a close person, this is a real conflict of interest. That is, if the director of the institution makes a decision (issues an order) about rewarding his daughter, then this is a real conflict of interests. And then similar actions of the manager are an offense.
Similarly, if the director issues an order to reward himself without the approval of the higher management body, he will violate the requirements of Law No. 1700. Such a situation is also a real conflict of interest.
Lawyer's conclusion: A conflict of interests will always arise in a situation when a person is in an organizational or legal dependency on a close person, when a person has the authority to decide (participate in the decision) of hiring, firing, applying incentives, disciplinary sanctions, giving instructions , errands, etc., control over their execution in relation to a close person.
Algorithm of the employee's actions in connection with establishing the presence of a conflict of interests in his work (analysis of the situation by a lawyer:)
1. Make sure that he really has a conflict of interest
For this, it is necessary to apply to NAKC for clarification.In the case of receiving an explanation about the absence of a conflict of interest, the employee is released from responsibility if a conflict of interest is later revealed in the actions for which the employee sought clarification.
If the NAKC confirms the existence of a conflict of interests, the employee acts in accordance with the requirements provided for in Section V of Law No. 1700.
2. Notify your supervisor that there is an actual or potential conflict of interest by the end of the next business day after you became aware of the conflict.
Obligations in connection with the existence of a conflict of interests
To prevent and resolve a conflict of interest, a person under whose authority there are employees with a conflict of interest must take 4 main actions:
1. Take measures to prevent real and potential conflicts of interest.
2. To report the presence of a real or potential conflict of interest.
3. Not to take actions and not to make decisions in conditions of a real conflict of interests.
4. Take measures to resolve real or potential conflicts of interest.
Measures for external settlement of conflicts of interest:
1) removal of a person from performing a task, taking actions, making a decision or participating in its making in conditions of real or potential conflict of interests;
2) limiting a person's access to certain information;
3) revision of the scope of official powers of a person;
4) application of external control over the person's performance of the relevant task, the performance of certain actions or decision-making;
5) transfer of a person to another position;
6) dismissal of the person.Any measure of settlement of the conflict of interest is applied exclusively to the person who has a conflict of interest. Such measures cannot be applied to other persons with whom joint work causes a conflict of interests, i.e. subordinates.
Current legislation regulating relations in the field of corruption prevention does not provide for relevant exceptions to the application of conflict of interest settlement measures that would apply to all education and science workers.
In its letter dated 07.10.2016 No. 1/11-13074, the Ministry of Education, Culture and Sports recommends to refrain from actions or decisions that lead to a conflict of interest, and in the event of a conflict of interest, in order to implement Law No. 1700 and to prevent corruption in educational institutions measures of independent and external conflict of interest settlement determined by the Law.
For violation of the requirements for the prevention and settlement of conflicts of interest and other restrictions on the prevention of corruption, a person may be brought to administrative and disciplinary responsibility, in particular.
Article 1727 of the Code of Ukraine on Administrative Offenses provides for administrative liability for failure to notify a person in the cases and procedures established by law of the presence of a real conflict of interest, which entails the imposition of a fine from one hundred to two hundred tax-free minimum incomes of citizens.
Taking actions or making decisions in conditions of a real conflict of interests entails the imposition of a fine from two hundred to four hundred tax-free minimum incomes of citizens.
