It was in March, when it became known that the former Deputy Minister of Health of the Junta de Andalucía, Miguel Ángel Guzmán, was going to sign for the insurer Asisa – to whose group he had awarded 14 contract contracts worth 44 million euros during the pandemic -, less than three months after leaving his public office, when the Government of Juan Manuel Moreno realized that there were gaps in the Law of Incompatibilities of Senior Officials of Andalusia. “It is very bad,” said the Minister of Justice, Antonio Nieto, then. Two months later, he presented a reform of the urgent and minimum standard, through a decree law, with the intention of completely modifying it later by means of a project or a preliminary bill.
“The objective is that no one can take advantage of the public service to seek a way out in the private sector, nor be harmed by having gone through the public service,” said the counselor at the press conference after the Government Council. The reforms limit, on the one hand, the cases of incompatibility for which the two-year period established by the current law should pass from the time one leaves a public position until one begins to work in the private sector; and, on the other hand, they impose the obligation to previously notify the competent Ministry and request authorization from the General Inspection of Services to be able to carry out a private activity, something that Guzmán did not do.
The current regulations do establish that an authorization is necessary, but, as the counselor has stressed, it is not determined “how to process it or to whom.” After the reform, it will be the Inspection that will have to analyze the specific case and send its proposal to both the interested party and the entity that wants to hire them, which they may argue. It will then issue its resolution and the competent department will have one month to decide on the incompatibility.
This authorization will be mandatory for any senior official who has left his position in the administration and wants to start working in the private sector if the two-year waiting period established by law has not yet been met, once this reform comes into force. Which would mean that the former Deputy Minister of Health, if he wants to join Asisa, must request permission from the Junta de Andalucía. Given the commotion caused by the announcement of Guzmán’s signing by the private insurer, the Board began an ex officio investigation into his incompatibility and ruled that he could not join the entity until July 29, because it was the date on which the two years in his position as manager of the Andalusian Health Service—a position he held just before being appointed number two of the Ministry of Health in July 2022 and during which he signed the contracts with Asisa.
Sources from the Ministry of Justice specify that this report is partial and only covers the period of time in which Guzmán was manager, but that, in accordance with the new reform, he should request authorization to analyze his time as deputy counselor. Failure to do so would mean facing very serious sanctions such as not holding another high position again for between three and 10 years, in addition to the obligation to return everything received as compensation for the loss of their high position status, in accordance with the reform approved by the Andalusian Government.
The decree law also limits the causes of incompatibility, to specify the current wording that does not specify the assumptions, generating legal uncertainty, as the director of the Office against Fraud and Corruption of Andalusia, Ricardo Puyol, acknowledged to this newspaper, who It is also investigating the alleged incompatibility of the signing of the former vice-counselor at the request of the political groups Adelante Andalucía and Por Andalucía and the consumer association Facua. In this sense, it is understood that there is a direct relationship and, therefore, incompatibility, when the senior official, in the exercise of his duties or his hierarchical superior at the proposal of the senior official or the heads of the bodies dependent on him, had signed a mandatory report, administrative resolution with a specific company or entity or when decisions that affect the powers of the senior position held in collegiate bodies related to a specific company or entity have been voted favorably.
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It is not understood that there is incompatibility when the decisions or resolutions adopted are not related to a specific entity, but rather affect a generality of companies or when the decision was adopted in a competitive competition procedure at the proposal of a collegiate body if its composition has not been proposed or decided by that public official. Nor is it considered that there is a conflict of interest if the act in question was adopted by virtue of technical reports from the regional administration in which a single solution is motivated to award a contract or grant subsidies.
Once this reform is approved through the decree-law formula, the intention of the Moreno Executive is to draft a new incompatibility law, which will replace the current one from 2015, through the bill formula, which would allow it to be approved at the end of this year or in February 2025, or through a preliminary draft, a procedure that would extend the deadlines by approximately a year and a half. Nieto has indicated that the Government is already talking with the rest of the political groups to advance the next steps to follow.
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