[PIO] Announcement of the Audit Office regarding the appointment of advisors to the President of the Republic, the Speaker of the Parliament

1. Legal Framework

(a) As is well known, the advertising of public posts is required, in general, to ensure equality and equality of opportunity but also for reasons of public interest related to the merit-based staffing of the Civil Service. The appointment, as well as promotion, of the most deserving and competent candidates is of vital importance for the public good. Excellent staffing of the Civil Service directly promotes the public interest. Unqualified criteria for staffing the Civil Service not only do not promote the public interest, but harm the public interest.

As has been repeatedly emphasised in a number of judicial decisions, the appointment of officials to the Civil Service is a purely administrative act. The President of the Republic, the President of the House of Representatives, the Council of Ministers, the Ministers or the Members of Parliament have no power to appoint officials to the Civil Service. The Constitution precludes any organ of political power from interfering with the function of staffing the Public Service. The power to appoint public officers is vested by the Constitution in the Public Service Commission (PSC).

(b) We understand, however, the need to employ competent and trustworthy persons to accompany such officers, and we have agreed to an exceptional procedure for the political appointment of such associates, but one that would be enshrined in law, and in any case applied sparingly and on the basis of strict conditions. We stress that even as an exceptional procedure and under strict conditions, only the Supreme Constitutional Court could definitively rule that legislation providing for such political appointments would be constitutional.

[C] In any case, there is a manifest violation of the above principles mandated by the Constitution (i.e. equality, egalitarianism, merit-based staffing of the Public Service and non-interference of political power in the staffing of the Public Service), if such appointments are made without criteria and conditions, and in particular if they concern persons who do not possess specialised knowledge and experience, so as to justify the exceptional appointment on the basis of political criteria rather than through open procedures through the EDA. This is why we have expressed our strong disagreement with the broadening of the cases that would fall under the above exceptions, i.e. the inclusion of secretarial or social media handling staff or other non-scientific staff. We cannot, in our view, conclude that the staffing of the Civil Service will be based on party and political identities.

(d) The importance of such positions of Advisers to the President of the Council of Europe and Ministers is also presumed by the fact that the GRECO Commission of the Council of Europe, as well as the European Commission, consider the position of Adviser to be a position of influence and therefore require that the holders of such a position make a declaration of intent.

2. Background

(a) Until February 2013, the only people who employed such Consultants were effectively the President and the Prime Minister, not the Ministers and Deputy Ministers. Gradually this institution was expanded.

(b) For the first time since 2014, our Office expressed strong concerns in relation to political appointments of persons as associates of the President of the Council of Ministers, the Prime Minister, Ministers and Members of Parliament. On 16.10.2014, the Presidency replied to us that it had proceeded with the preparation of terms of service for advisors to the President of the Council of State and Ministers, in order to ensure uniformity and to avoid different interpretations of the terms of their contracts.

Finally, in the 2016 state budget, a relevant note and a standard contract were included, but without defining the criteria and terms of employment. The Standard Contract included an explicit provision that the Consultant should conduct surveys and prepare studies. This clearly implies that the Consultant should have specialist knowledge and expertise.

(c) Unlike the Government, the House of Representatives accepted our position on the legislative regulation of the employment of parliamentary assistants and passed the Parliamentary Assistants and Allied Matters Act 2019 (No. 41(I)/2019) which provides that an associate shall:

1. Be a citizen of the Republic or a citizen of another Member State and have his/her habitual residence in the Republic;
2. Have attained the twenty-first (21st) year of age;
3. Hold a university-level degree recognized in the Republic;
4. Have a clean criminal record, a certificate of which is issued by the Chief of Police, in accordance with the provisions of Article 10 of the Police Act;
5. In the case of a male,
6. Be a citizen of the Republic or a citizen of another Member State and have his/her habitual residence in the Republic;
7. Have attained the twenty-first (21st) year of age;
8. Hold a university-level degree recognized in the Republic;
9. Have a clean criminal record, a certificate of which is issued by the Chief of Police, in accordance with the provisions of Article 10 of the Police Act, has fulfilled his/her military obligations or has been legally discharged from them,
10. is not related by blood or affinity within the first degree of consanguinity to a serving MP or representative, and
11. has not been dismissed or had his/her services terminated in the past from the Civil Service or any public service or public law body of the Republic or of the European Union or of any Member State for disciplinary misconduct.

[D]Following the enactment of the above Law, we returned to the Government on 13.3.2019 and recommended the following:

1. To establish a legal framework regarding the remuneration and other benefits of the Commissioners and Special Advisors of the President of the Republic.
2. In the Explanatory Memorandum of the Budget, the Presidency should determine its needs for Advisors, the amount of their remuneration according to the duties of the position and the necessary qualifications. It shall then proceed to purchase services to meet these needs on the basis of defined procedures.
3. For the purposes of transparency, the names, qualifications, position and remuneration of the consultants selected should be made public.

The above is published in our Special Report no. PM/01/2019 and dated. 17.7.2019.

(e) The Presidency of the Republic rejected our recommendations on the grounds that such a framework would add too much inflexibility, a position with which we do not agree. At the same time, however, we were informed that the Council of Ministers, by a Decision taken on 27 March 2019, approved a comprehensive framework for the employment of such Consultants. Based on this framework, the Consultants should have attained the twenty-first (21st) year of age and hold a university-level degree recognized in the Republic. Finally, in November 2019, the Council of Ministers annulled its Decision without even informing our Office.

(f) Following the assumption of the Presidency by the current Prime Minister, issues arose regarding the appointment as Councillors of persons very young, or without a university degree, who by definition could not fall within the exceptional cases that justify a derogation from the general rule that appointments to the Civil Service are made only by the NHS and who could not satisfy the requirement in the Standard Contract for the ability to conduct research and prepare studies.

(g) Regarding the recruitment of a person who is 19 years old and does not have a university degree as an Advisor to the Deputy Minister of Tourism, we issued a notice on 8.5.2023 characterizing this recruitment as manifestly illegal and abusive.

(h) On 10.5.2023 the Auditor General met with the PM. During the meeting the PM expressed the will for immediate drafting of a bill on the lines of the law that already exists for parliamentary assistants. This has already been done and the discussion of the bill has started in the relevant Parliamentary Committee on Institutions, Values and Administration Commissioner.

(i) At the same meeting, the PM expressed the will to proceed from then on, that is, before the law was passed, to a check on whether his advisers, as well as those of Ministers and Deputy Ministers, meet the criteria set out in the law on Parliamentary Associates and, if it was found that anyone did not meet those criteria, then there would be a termination of any such contract. In view of this, the Auditor General stated that the relevant audit by the Audit Office would take place in early June 2023.

(j) Indeed, in early June 2023, information was requested from the Presidency of the Republic (which expressed its intention to forward the necessary information on behalf of all members of the Government), and from the Presidency of Parliament, on the contracts in force with persons employed as consultants to the State officials in question. Assurances were also sought from the Director General of the House of Representatives that persons employed as Parliamentary Assistants meet the relevant criteria of Law No. 41(I)/2019. After the initial information was provided, it was assessed and subsequently, where necessary, clarifications and additional information were requested and provided

3. Audit findings

(a) In Annex I, data on the Advisers to the President of the Council of State, Ministers and Deputy Ministers are provided. As can be seen, the Advisors meet the conditions of employment provided for in Law No. 41(I)/2019 for Parliamentary Assistants except in the following cases:

1. Two Advisors to the President of the Republic and two Advisors to the Deputy Minister of Maritime Affairs marked with shading (a/#5, 8, 23 and 24) do not meet the requirement of holding a university-level degree recognized in the Republic. For the reasons explained in para. 1 above, we consider that the employment of these four persons is illegal.
2. Two Councillors who are also marked with shading (No. 1 and No. 5) have not provided, respectively, evidence - Statement/Confirmation of no previous dismissal/termination from the Public Service and Certificate of White Criminal Record. Our mention does not imply that with certainty they do not satisfy the specific requirements of Law 41(I)/2019, however, since they have not provided the requested evidence, we cannot express an opinion on these requirements since we do not have the necessary audit evidence.
3. In three cases which are noted in the Annex (nos. 3, 25, and 27), there is a need for examination of degrees by the KYSATS to show that the condition for a university-level degree recognized in the Republic is satisfied. This report does not imply that we question the quality of the studies provided, but it is because we did not have in our possession the necessary audit evidence to be able to establish that this condition is met. This will necessarily have to be done at the latest when the relevant bill is passed into law. Our recommendation, however, is that the affected persons should be asked now to apply to the CPSA themselves if they do not already possess such an attestation.

(b) In Appendix II [/URL], details of the PBC Advisers are set out. As can be seen, all three Councillors meet the employment requirements set out in Law No. 41(I)/2019 on Parliamentary Assistants.

(c) With respect to the 100 Parliamentary Assistants employed on 30.4.2023, the Director General of the Parliament has assured us that, according to the certificates submitted to her under Article 11 of Law No. 41(I)/2019 by the parliamentary parties, independent MPs and deputies acting as the employers of the Associates, all the conditions set out in Article 4 of the said Law have been met. Copies of the said certificates have been submitted to our Office.

4. Recommendation: That the Presidency and the Secretary of State for Maritime Affairs, after giving the one month's notice provided for in the Standard Contract, terminate without further delay the employment of the four Councillors who do not have a university degree (nos. 5, 8, 23 and 24). Note that clause 3.1 of the Model Contract allows the officer to terminate the contract whenever he decides, at his sole discretion, provided he gives one month's notice.

In addition, persons Nos. 1, 3, 25, and 27 should be required to provide the evidence necessary to establish that they meet all the relevant criteria.

(AF/SX)
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