After the Supreme Court of Justice of the Nation (SCJN) declared unconstitutional the 10 year padlock so that high-level public servants can work in the private initiative (IP), a movement known as “revolving door”Senator Ricardo Monreal Ávila (Morena) announced that the Senate will take up the issue and with it the debate will be reopened: How long should bureaucrats wait to be employed in the private sector?
As context, with the approval of the Federal Republican Austerity Act In 2019, our country became one of the economies with the strongest revolving door locks, after having one of the most lax regulations on this matter. Although in the first instance the opinion contemplated a cooling-off period of five years, in the end the Congress of the Union endorsed doubling it. The measure was applicable to secretaries of state, undersecretaries, senior officials or equivalent, heads of unit and general directors.
The Supreme Court considered that the 10-year cooling-off period contemplated in the legislation violated the right to freedom of work. Among the member countries of the Organization for Economic Co-operation and Development (OECD), the average waiting time is three years.
“Since the project came out, we proposed that the time had to be between two and four years maximum, which is the international standard. But the problem is the lack of mechanisms to ensure that this can be monitored. I think that the number of years is what is known as legislative populism, if you say 10 or 15 it sounds like the legislation is very aggressive”, Eduardo Bohórquez, executive director of the organization, explains in an interview. Mexican Transparency.
In Spain, Japan, United Kingdom and the NetherlandsFor example, the wait is two years. In the United States and Canada the revolving door is locked for five years, in the latter country there is a strict code with 20 very specific recommendations to avoid conflicts of interest. Meanwhile Transparency International recommends a period of two years before bureaucrats make the jump to IP.
From the perspective of Manuel Guadarrama, Government and Finance Coordinator of the Mexican Institute for Competitiveness (IMCO), a more suitable lock for revolving door it would be between six months and up to two years, according to international experience.
“This would be something closer to reality, more proportional and manageable, because finally we are preventing a person from working, obtaining resources and generating income from an area that is a matter of expertise,” says the specialist.
The padlocks on the revolving door, explains Eduardo Bohórquez, are intended to prevent the inside information that some bureaucrats have access to be used for commercial purposes, or that the decisions they make turn into some kind of kickback or bribery. “Imagine that you deliver permits or authorizations in your last year of functions, you leave and then the subject to whom you gave the concession or permit hires you. He is a necessary figure in every democracy.”
In addition to this, the cooling period prevents unfair competition in the private sector and helps the country’s competitiveness by strengthening public policy of integrity and the rule of law, important elements for investment.
Why the bureaucrats?
Why, if our Constitution protects the right to work, bureaucrats should have a cooling-off period unlike workers who are mobile within the same private sector? This is because the public service system has a higher level of demand.
“The responsibilities regime of public servants is greater than that of any other citizen. The government is required more in terms of responsibilities by constitutional design. It is a necessary mechanism because it is seen. There are typical cases, such as those of governors handing over notaries in the last year of government to close friends or to people who did not have the right to be public federates and, with that delivery, you are giving them a business forever”, Eduardo Bohórquez exposes.
The functions of a bureaucrat, complements Manuel Guadarrama, are different from those of any other work activity. That is to say, the public nature goes beyond the sphere of private interest and, therefore, the public servers they are entrusted with fulfilling the legal and constitutional mandates of their positions.
“Taking into account that the public interest is the reason for the officials, the regulation to which they are subject will always have special measures compared to the private initiative jobs”, he adds.
It’s not enough to change the years
The modification of the waiting time is a good step to reinforce the revolving door, but it is not the only element that the new regulation must consider, points out Eduardo Bohórquez. From the point of view of the specialist, in order to have a more adequate legislation it is important to consider the level of risk and responsibility who has the position that the public servant occupies.
“For example, a secretary of state has access to much more information than a general director or a department head, so it has to be proportional to the level of responsibility and the degree of risk in the job. information management sensitive or confidential,” he says.
However, positions such as Head of the Office of the President may have more access to inside information than some Secretaries of State. “What is a good practice is to do it according to the level of responsibility. There may be interesting things here: for example, an official from the general directorate of mines who you might think does not have sensitive information, but he has more sensitive data than a secretary”, exemplifies Eduardo Bohórquez
For Manuel Guadarrama, beyond the cooling-off period, the new regulation must consider a surveillance mechanism of the revolving door in both directions: from the public service to the IP and vice versa.
“Finally, with prohibitions we are not going to get anywhere. This is not a criminal law issue, but it is a sanctioning administrative law and, in this case, the purpose is prevention, raising standards, generating monitoring and follow-up mechanisms that allow us to comply with regulations”, he points out.
Eduardo Bohórquez agrees on the importance of accompanying the cooling-off periods with a monitoring mechanism and for this he proposes alternatives such as bureaucrats having to inform the authority about who will be your new employer. “As soon as public servants are obliged to inform the Ministry of Public Administration or its state equivalents about what the new position is, that government unit cannot say that it is not aware of the situation.”
The padlocks to the revolving dooremphasizes the specialist, they do not seek that people do not have a job, but that whoever is interested in entering the public service “thinks about it”, because one must be aware that the regime is of greater responsibility.