THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS IN ISRAEL: 1995 REPORT

THE OMBUDSMAN AS A MEANS OF PUBLIC SECTOR CORRUPTION CONTROL

Introduction

The State Comptroller (Ombudsman) Basic Law of 1988 and the State Comptroller Law (Consolidated Version) of 1958 together mention the term "integrity" or "ethical conduct" five times but without defining that crucial term. Whatever scholars, researchers and previous comptrollers have said about the term only goes to emphasize its vagueness and the difficulty of pinning it down to a working definition.

In the light of this, generations of comptrollers have seen it their duty to lay down an ad hoc operational definition of the term for each single field of public affairs, to specify what constitutes an offense against integrity in that specific field and what are the criteria by which ethical conduct may be recognized. In other words, one of the tasks of all comptrollers is to give retroactive content to this elusive term, usually after some questionable behavior has required investigation.

The Response of Comptrollers to Prevalent Unethical Conduct

It is noteworthy that despite the centrality of a comptroller’s duty to report instances of unethical behavior, this undefined ‘grey’ area has received rather ‘grey’ treatment by comptrollers. They do not enlighten the public sufficiently to grey the effectiveness of their monitoring and the results of their responses to incidents of improper conduct, and this when such information would build up the supportive public opinion that is essential to reinforce the official response to such behavior.

On the credit side of the balance, the comptrollers and their public statements have exercised considerable influence on a number of laws, regulations and rulings intended to build up a normative basis for integrity in public service, especially insofar as concerns conflicts of interest, civil servants receiving favors, favoritism, restrictions on supplementary employment and business, restrictions on the use of information, etc.

As the the social, public and political climate changes with time so will the boundaries of the comptrollers’ sphere of interest have to shift to follow the changes. It is vital that comptrollers be alert to such shifts in practice and norms. It is no coincidence that the 1989 Comptroller’s Annual Report dealt extensively with a practice that had not appeared in any previous Report, namely making politically inspired appointments to the Civil Service. This practice, which the Comptroller disqualified as ‘unethical’ had mushroomed in the immediately preceding period.

In organizations situated more towards the fringes of public and political affairs, the concept of ethical behavior is defined much more ‘flexibly’ than in central institutions of government, so flexibly as to verge on criminality. These bodies encompass a goodly part of public administration local government authorities, public corporations, organizations supported from government funds in one way or another, the General Federation of Trade Unions, the Jewish Agency, universities, etc. The danger is clear of allowing what is forbidden in one sector of public administration to remain ‘normal’ and permitted in another sector. Bad habits are not so easily confined within theoretical boundaries.

The issue of ethical public behavior has not remained the exclusive concern of Comptrollers-General. There is barely a piece of legislation or regulation or directive concerned with internal control and audit that does not mention the term. The most obvious example is the 1992 Internal Audit Law that requires an internal auditor, responsible, inter alia, to the Comptroller-General, to be appointed in every public agency. (See the article by U. Berlinski in this report.) The State Comptroller Law was the inspiration and source for this law and for all other attempts in Israel to impose external and internal controls on the conduct of civil and public servants.

Conclusions

* The Comptroller-General is the universally accepted arbiter of ethical and unethical conduct iii Israeli public affairs and fits/her role is vital to the conduct of government an(i administration.

* The improbity and venality regularly discovered and condemned by a series of Comptrollers demonstrates that certain unacceptable practices are normative among large sub-groups of Israeli society, to the extent that such groups seem to have been informally accorded special rights in certain public agencies and institutions. The norm in such groups is to assume that what is good for the group is good for the State. This in itself is dangerous, but a further danger is that the habit of ignoring the laws and rights of the State on behalf of the group spills over into ignoring the laws of the State for one’s own personal benefit.

* Most improper and unethical behavior is found not in central government institutions but in the public administration network and flourishes there because of the absence of strict control by the highest central authorities.

* The chief contributions of Comptrollers to ethical public conduct is in their very definition of what constitutes an offense to such a norm and in the consensual acceptability of those pronouncements.

* Their advancement of legislation and regulation on the subject is also of great importance. That said, however, it is beyond cavil that norms of organizational behavior are chiefly the result of the authority and personal example of those who head the organization.

* Many factors the absence of forceful authority, decrees that are too hard for civil and public servants to sustain, "blurred" norms or an absence of norms, low pay, short-term solutions that ignore long-term basic goals all these have combined to generate an unwritten, informal code of behavior that operates alongside the formal code. The State and its governing institutions have not paid sufficient attention, and in sufficient time, to these negative norms. Untreated, these weeds will choke off ethical behavior in public administration. The medium- and long-term damage to Israeli public affairs and society is not worth the short-term savings or profits real or imagined, monetary or other.

* It is very difficult to maintain proper norms of conduct in daily public life when such pernicious practices go on and the statutory authorities either turn a blind eye to them or even give their tacit approval. This is one of the most urgent threats to the conduct of public administration in Israel. Without doubt it will not be at all easy to pull up these ‘weeds’, but it is vital that we begin to do so. The very pronouncements of the Comptroller-General that such practices are intolerable and an offense to ethical administration is a vital first act in the battle against them, and in that lies much of the importance of Comptrollers- General to our society.

This article is abstracted from one published in: A. Friedberg, The Ombudsman in Israel: Theory and Practice. Academon, Jerusalem, 1994.