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Unit 1- Concepts and Definitions.docx

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University of Guelph
Political Science
POLS 3440
Geoff Stevens

Defining Corruption John A. Gardiner Introduction  Major difficulties in defining corruption: o “Corruption” refers to several distinct but related problems o Important differences in how it is defined by official laws of nations, in how it affects the public, and how it is defined by public opinion o Important differences among nations in how these problems are defined Corruption and related public problems  Series of problems are linked in public discussion of corruption o Though govn't investigation and prosecution agencies may have the responsibility to deal with all of them together, they often have different causes and may have different solutions First problem is corruption by public officials  Definition of corruption most often used by social scientists was provided by Joseph S. Nye, who states that it is “behaviour which deviates from the normal duties of a public role because of private-regarding pecuniary or status gains; or violates rules against the exercise of certain types of private-regarding influence. Includes bribery, nepotism and misappropriation.”  Several parts of Nye‟s explanation are important: o Emphasis on pubic roles—corruption only involves the behaviour of an official in their public role (e.g. abuse of a significant other may be assault, but it is not corruption) o Requirement of personal gain—focuses on abuses for private gains but leaves out situations where the goal of the abuse is to benefit the official‟s political party, ethnic group, etc. o Requirement that behaviour deviates from normal duties or violate rules—leads to major variations in what different nations see as corruption  Depending on the country, normal duties of an official can include accepting gifts, or making a decision even if it involves a conflict of interest Abuse of office by public officials  With no precise definition possible, Kenneth Gibbons suggested a number of actions which some people may label as abuse of office: o Nepotism—e.g. civil servant gives a position in his office to a relative rather than to a better-qualified applicant o Patronage—e.g. political party wins an election and then removes all office- holders who supported the opposition party o Legislative conflict of interest—e.g. legislator owns stock in a mining company, and votes for a bill which will give tax concessions to the company o Bureaucratic of interest—e.g. govn't bureaucrats use their knowledge and contacts to establish a part-time consulting firm which gives advice to private clients  Author believes that adding awarding of govn't contracts to favored friends or political supporters, lying to the media and the public, and many forms of campaign finance  Some forms of these abuses may be prohibited by statues in some nations Business corruption, fraud, theft, abuse, error and waste  These differ from official corruption and abuse of office because they are committed by someone who is not an office-holder  Most frequent activity under this category is business corruption (kickbacks) o If a sales rep offers a prospective buyer an extra payment if their product is selected, or a buyer offers a manufacturer a payment if the shipment is expedited without a policy to do so and/or the money is kept by the individual salesman  Second form of private misconduct is fraud (known as embezzlement or corruption when being done by a govn't official): o Is when a private citizen or corporation intentionally uses deception to take excessive or unauthorized govn't benefits or contracts from the treasury  Theft is when there is no deception when unauthorized benefits are intentionally taken  Abuse occurs when benefits are obtained or used in ways which are not intended by those who design or administer programs, but which are not specifically prohibited by law or regulation  Error and waste often arise in discussion of some govn't programs: o Errors involve program decisions which violate relevant rules and may be intentional or unintentional, substantial or technical, and may be caused by the official or the client o Waste is a vague concept. Refers to either ineffective expenditures or to inefficiencies, things which cost more than is necessary Organized crime and racketeering  Crime syndicates and racketeers can corrupt public officials to nullify law enforcement  Corruption is not the same thing  Many forms of official corruption are unrelated to crime syndicates and racketeering, and crime syndicates are sometimes able to operate even where officials are completely honest Definitions of corruption: legal, public interest, and public opinion criteria  Official corruption and official abuse have many similarities  Question of what criteria we should use to establish standards of behaviour Legal definitions of corruption  One thought would be to use criteria set forth in official statutes  These criteria are very straightforward: if an official‟s act is prohibited by laws established by the govn't, it is corrupt; f it is not prohibited, it is not corrupt even if it is abusive or unethical  Advantage of this is that it is clear, and officials, govn't employees, and ordinary citizens can be expected to know the requirements and prohibitions spelled out in statutes  The fact that something is illegal as well as unethical provides something firm to focus on  Legislature can amend laws to deal with new problems  Scott stresses a major problem with this type of definition in that this conception of corruption doesn‟t cover political systems that are corrupt in that they systematically serve the interests of special groups or sectors but don‟t breach the formal norms of office  He concludes his analysis of the legalistic definition of corruption by warning of 3 problems: o Danger of implicitly giving normative value to whatever standards of official conduct happen to prevail and failing to treat corruption as an integral part of politics. I.E. danger of assuming that everything legal is always ethical o Points to the danger that an identical action in two nations will be labeled differently because of differences in laws o A nation where almost everyone is a govn't employee can‟t easily be compared with one where most people work for private corporations Public interest definitions of corruption  Illegal act can sometimes be the ethical one (letting Jew family go though it was illegal in Nazi Germany) and vice versa (US selling poor people lands to developers)  Things like this have caused some scholars to focus on the effects of an act rather than on its legal status using this definition: if it is beneficial to the public, it is not corrupt even if it violates the law  Attempting to analyze a concept as broad as „the public interest‟ involves both very serious measurement problems and conflicts over the values which should be considered  Effects of corruption on the public interest cannot be analyzed without considering the many views people have about public goals Public opinion definitions of corruption  If there are significant differences between what a nation‟s laws say and how most citizens define corruption, it is likely that officials and govn't employees will be guided more by local culture than by the words of a law, and thus will be more likely to violate the law  Effective action against corruption will be difficult if public opinion doesn‟t correspond to the statute‟s definitions  As voters, citizens who are more sensitive to corruption may be more likely to elect officials with similar views  Citizen‟s values about corruption are likely to affect how they behave themselves  Heidenheimer advises us to focus on differences between black, grey, and white corruption o Black corruption—action that is one which a majority consensus of both elite and mass opinion would condemn and would want to see punished as a matter of principle o Grey corruption—some elements, usually elites, may want to see the action punished, others not, and the majority may be ambivalent o White corruption—majority of both elite and mass opinion probably would not vigorously support an attempt to punish a form of corruption that they regard as tolerable. Implies that they attach less value to the maintenance of the values involved than they do the costs that might be generated as the result of a change in rule enforcement  Johnston warns that there are a number of problems involved in trying to measure these differences in public opinion: o Public attitudes fluctuate, especially at times of scandal which increase the public awareness of corruption issues o Problem of deciding who the public is—is it adults, voters, those who are knowledgeable about the events?  Level of corruption can be dependent on many factors related to the action in question Variations among nations  These variations can be found whether definitions are based on statutory criteria, the impact of corruption on the public interest, or on public opinion  Different nations have different legal definitions of corruption  Difficult to compare socialist and capitalist nations as many activities that are performed by govn't employees in socialist nations are performed by employees of private corporations in capitalist societies, and different standards often apply in the 2 situations  Second variation can be seen in the scope of corruption laws: o Some nations, laws deal only with the most blatant bribery; while others have added laws to regulate nepotism, conflicts of interest, election campaign contributions, etc.  Looking at different nations can also show a different conclusion about the effects of similar acts o Are some nations where corruption is relatively harmless or even healthy  There are also variations in public opinion about corruption issues o Nations in which official corruption has been widespread for many years with no visible signs of public outrage o Also nations where the smallest violation leads to scandals, investigations, and swift punishment  There are also conflicting attitudes within nations, most often depending on geographic location  Doesn‟t necessarily mean there is no consistency in attitudes about corruption among nations o E.g. Mancuso found that Canadian members of parliament ranked hypothetical corruption incidents in about the same order of corruptness as Peters and Welch found in their survey of American state legislators Conclusion Implications of the definitions for the attack on corruption  corruption has many definitions and these variations affect the work of enforcement agencies  Many legal systems are very limited, and don‟t address important problems  Laws may include definitions of corruption or procedures which make prosecution and conviction very difficult  Discussion about the public interest suggests that under certain circumstances, citizens may reasonably feel that an act which is legally defined as corruption is nevertheless a necessary tool to survive o Especially likely to occur in nations with extreme poverty, discriminatory access to advancement, or repressive laws Improper Use of Public Office Aline Baroud, Andrew Gibbs Introduction  Sanctions for those who use public office for private advantage are provided in the Standing Orders of the House of Commons (SOHC), the Criminal Code and the Parliament of Canada Act (PCA) o E.g. acceptance of bribes is covered under the Criminal Code, Parliament of Canada Act and the Standing Orders of the House of Commons which means that the matter can be raised either before Parliament or before the courts  Courts are responsible for hearing all criminal matters  Parliament has the right to determine the applicable administrative sanctions under the PCA  There has been no reported cases involving improper use of office decided under the PCA but this may be due to the ability of the courts to impose harsher sanctions or because the thought of a public trial is thought to be a better deterrence  Parliamentarians must answer fully for any illegal acts they commit while outside Parliament, under the Criminal Code  Discussion focuses on the forms of behaviour dealt with in the Criminal Code that are directly related to the role of the Parliamentarian as a public trustee Bribery  One of the clearest forms of unethical behaviour that can occur in exercising public functions  Defined as the dishonest inducement of a public official to act in someone‟s favour by a payment or other inducement  Covered primarily by the Criminal Code, which states that when Parliamentarians obtain or attempt to obtain any valuable consideration for themselves, or another person, in respect of anything done or omitted by them in their official capacity, they are guilty of bribery  CC also punishes the person who offers the bribe, under the same offence  Maximum sentence of 14 years for both the giving and receiving of a bribe  Notorious e.g. occurred in 1950s in BC o Minister of Lands and Forests of British Columbia was charged with receiving bribes in connection with the issuance of forestry management licenses o Number of forestry companies were charged with giving bribes o Minister was eventually convicted on 5 of 7 accusations of receiving bribes and became the first person in the Commonwealth found guilty of conspiring to accept bribes while serving as minister  Bribe must relate to their capacity as a Parliamentarian, though the courts have found that a member‟s official capacity has a much broader interpretation  Bribery is also dealt with in both the PCA and SOHC o PCA disqualifies a member found guilty of bribery from being a member of the HoC and from holding any office in the public service of Canada for 5 years after conviction  Another form of bribery occurs when someone contributes to the electoral fund of a member in return for a contract or other benefit  When contributions are made with the expectation of future advantage, the behaviour is dealt with in the Criminal Code  The CC‟s provision against this sort of bribery is aimed at govn't contractors who contribute to election funds for the purpose of obtaining govn't contracts  Seems like this provision has never been applied, which may suggest that its mere presence has been enough to deter people from committing this crime Influence Peddling  Paying a 3 party to exert influence on the decision maker with the buyer hoping that the influence will be sufficient to convince the decision maker to decide a matter in their favour  CC prohibits officials from demanding, accepting or offering or agreeing to accept a loan, reward, advantage or benefit of any kind for cooperation, assistance or exercise of influence in connection with any matter or business relating to the govn't  Parliamentarians may not be in a position to make a particular decision but they may be able to influence the decision making process  It is the job of the MP to represent the interests of their constituents and to participate in the development of public policies but this activity becomes a crime when done in exchange for a benefit  Test applied by the courts is: o Whether the individual is aware that they are an official o Whether the official intentionally demands or accepts the benefit in question, for themselves or another person o Whether the official knows that the reward is in consideration for their influence in connection with the transaction of business with the govn't  These grounds were outlined in a case involving a member of the Senate of Canada, a lawyer who continued to represent his clients after he was appointed to the Senate o As a lawyer he represented clients before various govn't committees in relation to grants and other govn't business o After he was appointed to the senate, he continued to lobby on behalf of his clients and received compensation for his activities, even though his clients didn‟t receive a single grant o As part of his defence he pointed out that he had represented his clients openly and invoiced them for his services o Lack of corrupt intent led the courts to acquit the senate member but the Supreme Court overruled the lower courts and stated that govn't officials mustn‟t accept compensation for exercising their influence within govn't, with or without corrupt intentions o After the Supreme Court ordered a new trial based on the correct interpretation of the law he was convicted of influence peddling. He appealed and was given an absolute discharge (sentence by which the accused is discharged although the accusation is proven or a plea of guilty entered)  CC prohibits influence peddling not only by govn't officials but anyone who has or pretends to have influence with the govn't or with a Minister o The application of this law is limited to those who have, or pretend to have, a significant enough connection to govn't so that they can affect a govn't decision  Key factor is that the official offering their influence does so in exchange for a benefit, either for himself of another person, as consideration for the exercise of influence  Anyone convicted of influence peddling is liable to imprisonment for up to 5 years  In addition to possible imprisonment, anyone convicted of influence peddling under the CC also faces administrative sanctions o Are subsequently prohibited from contracting with the govn't or receiving any benefit under a contract between the govn't and any other person o Permanently banned from holding office in govn't  Sanctions can only be lifted if the individual obtains a pardon or is the restoration of his or her contractual rights is found to be in the best interests of the public Accepting Benefits From Persons Dealing with Government  Section 121(1)(c) of the Criminal Code prohibits public officials from demanding, accepting or offering or agreeing to accept a commission, reward, advantage or benefit of any kind from a person having dealings with the govn't m unless the public official obtains the consent of the senior official in their department  Supreme Court acknowledged the broad wording of this provision in one particular decision o Accused was employed as an engineer in the provincial govn't and was responsible for awarding contracts and generally overseeing road construction projects in his area o One of the contractors placed the employee‟s wife on his payroll, as a traffic controller. She never once reported for work and only remained on the payroll long enough to qualify for govn't assistance o Employee was eventually convicted for accepting a benefit from a person having dealings with the govn't, without the consent of his supervisor o Due to legal technicalities, the conviction was set aside by the SC and a new trial was ordered  Though this case involved a relatively clear-cut example of inappropriate conduct the SC took the opportunity to clarify the issue of conferring benefits upon govn't employees  Court changed part of the section 121 in order to protect and preserve the appearance of the govn'ts integrity  Since this gave the section a virtually unlimited range of covered conduct, the Court next examined each element of the section and provided conclusions with regard to the proper interpretation o First, expression “dealings with the govn't” is to be interpreted narrowly, as referring only to business deal
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