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Granting civil servants leave of absence to work or mining companies can jeopardise trust in impartiality


Deputy-Ombudsman rebukes Northern Finland Regional State Administrative Agency
 
Officials belonging to the section of the Northern Finland Regional State Administrative Agency responsible for environmental permits have been granted long periods of leave of absence during which they have worked for mining companies in the region.
Deputy-Ombudsman Maija Sakslin is of the opinion that this can prompt doubts about the officials' impartiality.

The long leaves of absence that the head of the section has taken to work for two mining companies within his sphere of operation are likewise problematic, because they can cause suspicions of recusability on the part of a superior.

Several leaves of absence

The section of the Northern Finland Regional State Administrative Agency with responsibility for environmental permits has processed 18 different applications from mining companies for permits relating to environmental protection and water matters. 

The head of the section responsible for these matters has worked for one of the mining companies for four years and for another for one and a half. In between these periods of leave of absence, he has worked as the head of the section responsible for matters relating to environmental permits. 

A senior environmental inspector has likewise worked for two mining companies within the Agency's area of responsibility. One of them offered him the right to take out options on the company's shares.

Ministry of Finance issued guidelines

Deputy-Ombudsman Sakslin requested a report and statement from the Ministry of the Environment on 3.5.2012. Subsequent to this, on 4.6.2012, the Ministry of Finance issued a set of guidelines setting forth the principles to be observed when granting leave of absence.

According to the guidelines, leave of absence must not be granted for work that would cause an official to be more than temporarily recusable with respect to his or her principal tasks or that could result in trust in official actions being jeopardised.

Leaves of absence should be viewed with reservations

The relevant legislation requires a unit that handles matters relating to environmental permits to be independent and impartial.

In Deputy-Ombudsman Sakslin's view, restraint should be exercised with respect to granting leaves of absence to officials to enable them to work for companies that operate within their Agency's area of responsibility. 

"Officials working for mining companies in the Agency's area of responsibility can undermine public trust in the Agency's activities. Since, in addition, remuneration in the nature of the share options offered can be associated with this work, this is conducive to prompting justifiable doubts about the impartiality of the Agency's work in both the public and the other mining companies in the region," she points out.

Trust in the authorities must be ensured in advance

Deputy-Ombudsman Sakslin points out that the a priori requirement in the legislation concerning state civil servants and regional state administrative agencies is that the impartiality and independence of officials and of the agencies' actions are ensured and taken care of in advance.

This principle has now been confirmed also in the Ministry of Finance's guidelines, which were issued after handling of a complaint matter had been initiated.
 
Therefore, in the Deputy-Ombudsman's view, it is not sufficient or to be recommended that trust in an Agency's actions and regarding situations of recusability be taken care of after the fact through special arrangements under which an official from another Agency must complement the group that processes applications for permits. This official may lack the expertise that the nature and special circumstances of the matter demand.

Head of unit in special position

The regulations concerning power to decide on matters, rules of procedure and filling official posts in a Regional State Administrative Agency emphasise the independence of sections responsible for particular areas and the leadership role of a head of section.

For this reason, Deputy-Ombudsman Sakslin considers it especially problematic when a head of section is granted long periods of leave of absence to work for companies that operate within his sphere of responsibility.

"The four-year and one-and-a half-year leaves of absence that the head of section was granted could have jeopardised trust in the impartiality of the unit's actions".  
 
The Deputy-Ombudsman informed the Ministry of the Environment and the Northern Finland Regional State Administrative Agency of her opinion concerning the problematic nature of the leaves of absence that had been granted.
 

Additional info will be provided by Senior Legal Adviser Ulla-Maija Lindström, tel. +358 (0) 9432 3355.