CONSIDERATIONS CONCERNING THE INTEGRITY OF THE SECRETARY OF THE

ADMINISTRATIVE-TERRITORIAL UNIT
Key Words: Secretary of the territorial-administrative unit, integrity, wealth control,
incompatibilities, conflict of interest
Abstract: Given that, in the course of time, instances of conflict of interest or incompatibilities
have been signaled in practice regarding the public office of secretary of the territorial-
administrative unit, in this paper we propose to analyze the current legal framework governing
the integrity monitoring tools, the control exercised by the National Integrity Agency, and the
applicable sanction in the field.
1.Introduction .In the conditions of a growing globalization, a growing competition that
has surpassed the national or regional level, reaching the global level, the human resources of the
public administration, as a main factor of this competition, and the issue of their integrity, Is the
foundation of heated discussions around the world. A public authority, a state and, implicitly, a
community is as powerful as the civil servants that make up it are capable and integrity, not
surprising the many theories on this already established theme that invade the public space in this
daily.
In this context, the present paper deals with the analysis of the aspects regarding the
integrity of the administrative-territorial unit secretary, a public civil servant within the
mayoralties or county councils. Under the transposition of EU directives on integrity into
national legislation, it is necessary to trace its educational and professional development, to
conduct a SWOT analysis: strengths, weaknesses, opportunities and threats needed to implement
risk prevention and control measures corruption, as well as a critical reflection on the incidents
of integrity and the causes of the occurrence of ethical slough, identifying the factors leading to
the violation of the legal norms regulating the integrity of civil servants and the occurrence of
corruption, the obstacles to the implementation of anti-corruption measures, corruption facts and
the possibility of anticipating behavior in the sphere of corruption. However, our study does not
aim at exhausting the complex ensemble of issues related to the integrity of the local public
administration, but it desires a useful work in the theoretical and applicative training of
practitioners in the field.
An important place in the list of civil servants in the local public administration is the
public function of secretary of the administrative-territorial unit, which is the basic link of the
activity of the local public administration, especially with regard to the countersignals and the
approval of the lawfulness of the administrative acts , although the interface of the activity of the
mayoralties or county councils is ensured by the local public authorities: the mayor / the
president of the county council as executive activity and the local / county council as a
deliberative authority. We cannot begin this without underlining that a quality public
administration implies major quality content changes that are relatively permanent and
irreversible and that are centered on transparent public services that are beneficial to citizens,
local elected officials and civil servants. We are not talking here about a pure behaviorist
approach, but about the observable behavior of the secretary of administrative-territorial unit,
which is based on violations of the legal framework in force, as well as on scientific evidence
based on evidence.
2. Legislative references, European policies, guidelines and perspectives of
international integrity policies. The efficiency of the local public administration is reflected
especially in the activity carried out by the secretary of the commune, city, city or county, and the
importance of this function derives from the requirements expressly provided by the legislator,
which must be met by a person to participate in the recruiting competition for such a public
office. Thus, besides the general conditions established by art. 54 of the Law no. 188/1999
regarding the Statute of civil servants, in order to occupy the public office of secretary of
administrative-territorial unit, the candidate must meet the minimum conditions of seniority in
the specialty of the studies necessary for the participation in the organized recruitment contest,
namely: To have 2 years in the specialty of studies necessary for the exercise of the public
management function, according to art. 57, par. (6) letter a, have graduated from master's or post-
graduate studies in the field of public administration, management or in the specialty of the
studies necessary for the exercise of public office, according to art. 57, par. (7), while,
paradoxically, in the case of local elected representatives, the law provides only conditions of age
and domicile.
The activity of this public civil servant, which is the object of our study in terms of
integrity analysis, is twofold: the first parameter is to ensure the legality of administrative acts
and the second involves the provision of effective secretariat of local / county council meetings.
Since between the two parameters, one dealing mainly with the activity of endorsement of the
lawfulness of the administrative acts and the other with the secretariat activity, establishes a
univocal relationship due to the possibility of full connection of the two categories of qualitative-
special attributions, we consider that the analysis of the integrity concept referring to this public
function provides the possibility of capturing the specificity of the relationship between these
parameters and the register of incompatibilities, conflict of interest or asset valuation, governed
by special laws in the field.
Starting from the etymology of the word integrity, it derives from the Latin adjective
"integer," meaning whole. The meanings assigned over time to the integrity or integrity concept
are varied and multiple according to the time and the associated internationality, namely: feeling
of dignity, justice and conscientiousness, reporting to morality, serving as a guide in human
conduct, honesty, honesty, fairness, incorruptibility. The concept of integrity insists on consistent
actions according to the values, methods and elements of fairness measurement and refers to
principles and expectations that can be verified by results but at the same time represents a
reconstruction of the experience of the public administration, thus increasing the capacity of
directing the evolution of the civil servant from the point of view of moral probity.
On the other hand, the notion of administration derives its etymological origin from the
Latin "ad ministry" which signifies a servant subject, consequently, the local public
administration acts in the public interest through the administrative apparatus, in this case
through the civil servants.
 As far as the term corruption is concerned, it is defined as a state of deviation from
morality, from honor, from debt.
As a natural consequence, the question that arises is the following: what is the
relationship between integrity and corruption and the answer is that the integrity factor has an
overwhelming role in preventing corruption and the staff evaluation of the integrity involving the
three Types of control of civil servants in terms of valuation of assets, incompatibilities and
conflicts of interest is the ultimate goal pursued by the National Integrity Agency.
If we look at the concept of integrity from the perspective of managerial internal control
standards, they define a minimum of management rules, which all public entities have to follow,
and ethics and integrity, is found in the I standard, according to which the management and
employees of the public entity have to know and support the ethical values and values of the
public authority, the personal and professional integrity of the employees, to observe and apply
the regulations on ethics, integrity, to avoid conflicts of interest, to prevent the production of
frauds, corruption acts and to encourage the reporting of irregularities. It is also necessary to
create an appropriate environment for the local public authorities, which facilitates the
employees' open communication about their ethical and integrity concerns, and the irregularity
reporting must have a character Transparent to eliminate suspicion of delinquency and should be
regarded as exercising a professional duty. (4)
In ethics, integrity is considered to be similar to honesty and fairness and is assessed by
the accuracy of the actions of the National Integrity Agency set up by Law no. 144/2007 on the
establishment, organization and functioning of the National Integrity Agency as a
recommendation of the Council of Europe Group of States Against Corruption, GRECO (second
round of evaluation, 2005) regarding the elaboration of a unitary verification system in the field
of wealth control, conflicts of interest and incompatibilities aimed at combating corruption
through administrative means. The National Integrity Agency shall exercise its powers in
accordance with the principles of legality, confidentiality, impartiality, operational independence,
celerity, good administration, and the right to defense. (6)
The National Integrity Agency is primarily responsible for assessing the fortunes of
potential incompatibility and conflict of interest situations and, as a fundamental way of
working, for finding incompatibility cases or finding violations of legal provisions on conflicts of
interest, it becomes indispensable, not only as regards the preparation of the reports but also
regarding the monitoring of the state of implementation of the civil servants' incompatibilities,
which involves the verification of the declarations of assets and interests, the exercise of the
control over the submission of these statements by the persons stipulated by law, respectively:
dignitaries, local elected officials, civil servants, the finding that between the wealth acquired
during the job and the income realized during the same period there is a manifest difference that
cannot be justified, the court referral in order to establish the unjustified acquitted property
whose confiscation it requests, as well as the notification of the criminal prosecution body if
there are good evidence or indications of criminal deeds.
 In order to remedy issues that favored integrity incidents, a series of professional conduct
rules for civil servants in the public administration were enacted and the legal content of these
norms is reflected at the level of local public administration and is essentially a set of ethical
rules , the non-compliance of which engages the civil servants' liability as the main instrument by
which the public administration acts, synthesized according to the principle governing moral
integrity, according to which civil servants are forbidden to seek or to accept, directly or
indirectly for themselves or for others, any benefit or benefit in view of the public office they
hold or abuse in any way. (8)
Also, the Civil Servants' Statute was adopted by organic law and regulates the basic
principles of the public administration system: legality, impartiality and objectivity, transparency,
efficiency and effectiveness, accountability according to legal provisions, orientation towards the
citizen, stability in the exercise of the function Public, hierarchical subordination, the general
regime of legal relations between civil servants and the public administration. Thus, as other civil
servants, the secretary has the obligation to perform professionally, impartially and in accordance
with the law the service duties and refrain from any deeds which could harm the natural or legal
persons or the prestige of the body of civil servants, to comply strictly with the legal regime of
the conflict of interests and incompatibilities established according to the law. (9)
In this context, the public administration reform aims at reforming the public function by:
increasing the professionalism of the human resources occupied within the civil service, the
stability of the institutional and legal framework, eliminating the exceptions and strengthening
the anticorruption policy.
At the same time, the adaptation of the European model to the conditions and regulations
in Romania in order to strengthen the capacity of the local public authorities to self-assess how
the ethical standards are observed have been synthesized in the responsibilities assigned to the
National Agency of Civil Servants. Civil servants are provided by art. 20 of the Law no. 7/2004,
for the purpose of coordination, monitoring, control and enforcement of the rules laid down in
the Code of Conduct, exercising attributions aimed at applying and observing the rules of ethical
conduct in the public authorities, elaborating studies and analyzes regarding the observance of
these norms, cooperating with the non-governmental organizations that you publish.
In the present socio-economic-political context, Romania as a member of the European
Union has the obligation to reform and improve the efficiency of the public administration
apparatus, and this reform includes a series of steps, including: National Anticorruption Strategy
for 2016-2020, sets of performance indicators, risks associated with the objectives and measures
of the strategy and verification sources, inventory of institutional transparency and corruption
prevention measures, evaluation indicators, and standards for the publication of public interest
information.
The National Anticorruption Strategy, in conjunction with the Cooperation and
Verification Mechanism (MCV), the county integrity policies and anti-corruption measures taken
both by the National Anticorruption Directorate and the National Integrity Agency have gained
sustainability and predictability, confirmations before the courts. The results obtained through the
anti-corruption measures exert considerable pressure on local public authorities to carry on the
achieved performances and this primarily means a necessity of rethinking priorities, more
prevention, action on profound causes and not only on the easy to identify, more educational,
including legal, and, last but not least, the reparation of the damages caused by committing
offenses.
Romania accepted MCV in the mid-2000s as a prerequisite for joining the European
Union on 1 January 2007 and, according to the MCV reports, presented annually by the
European Commission, it monitors the progress made in Romania as a Member State of the
European Union. Most recently Report, presented in January 2017, within the MCV on the
progress made by Romania considers that the national anticorruption strategy is the basic tool
that encourages the prioritization of the preventive measures adopted by the public
administration, at both national and local level. The concrete corruption prevention Ministries,
some funded by EU funds and non-governmental organizations, will continue to make a useful
contribution to the fight against corruption within the administration. Such considerations have
been expressed by GRECO and OECD - Organization for Economic Co-operation and
Development regarding bribing civil servants in international commercial transactions, all in the
same MCV report. It is underlined that in recent years Romania has made progress in judicial
reforms and in the fight against corruption, but it does not miss the recommendations. It is also
hoped that this mechanism will be lifted until the end of the mandate of the President of the
European Commission in October 2019. The prospect of social progress, it goes without saying
that the field of integrity of the civil servant puts a stronger emphasis on society, so we
appreciate that this issue is an extremely important territory, which the European Union
constantly explores.
Facilitating access to quality public services or public office is part of the priority
objectives of integrity, being closely linked to the principle of legality and non-discrimination.
The European Union promotes fundamental rights, non-discrimination and equal opportunities
for all, as well as ensuring full participation of citizens in decision-making in the local public
administration, the right to legislative initiative, under Law no. 215/2001, the public debate, free
access to information of public interest.
In this field, a series of European strategic objectives emerged following the synthesis of
the main European documents specializing in the field, the Civil Convention on Corruption,
adopted in Strasbourg on 4 November 1999, the United Nations Convention Against Corruption,
adopted in New York on 31 October 2003 which aims to promote and strengthen measures to
prevent and combat corruption in the most effective way, to promote, facilitate and support
international cooperation and technical assistance to prevent and combat corruption, including
the recovery of goods, the promotion of integrity, responsibility and good governance of public
affairs and public goods.
On the other hand, corruption is seen by the United Nations, according to the
International Code of Conduct for Public Agents, a problem that affects the stability and security
of citizens, damaging democracy and morality, and impeding economic, social and political
development. The Code is an instrument in the struggle of states against corruption and includes
the general principles for the conduct of public officials, as well as the principles of conflict
prevention, wealth assurance, gift acceptance, confidential information management and
involvement in political activities.
Talking about the register of incompatibilities, conflicts of interest and wealth control in
domestic legislation, we emphasize that this is a complex system, the result of the
interdependence between the European values system and principles, with a well-defined
purpose, that of putting into practice the ideology of ethics of the public function which
characterizes an integral person and its opposite, defined by the violation of these values, namely
the committing of acts that effectively cancel the moral probity of the secretary of the
administrative-territorial unit.
Any development process is based on change, but the specific nature of changes in the
process needs to be studied, and several local anticorruption changes are under discussion in the
local public administration, most of which relate to the integrity issues of civil servants and local
elected officials.
It is imperative, therefore, that in the exercise of the public office, the secretary of the
territorial-administrative unit should observe the observance of the legal framework in force
regarding integrity, to assert his professional competence, to enforce the laws and the other
normative acts and the activity to reflect the full and accurate character of the operations and
documentation he manages, the professional way of approaching specific tasks, capitalizing on
competence, transparency and fairness.
At the local public administration level, employees reporting irregularities, acts of
violation of civil servants prescribed by law as disciplinary offenses, contraventions or offenses,
which are directly or indirectly aware of, are protected against any discrimination and the
directors have the obligation to undertake the appropriate investigations in order to elucidate the
ones signaled and to take, if necessary, the necessary measures in compliance with the principle
of the supremacy of the public interest, according to which the rule of law, integrity, impartiality
and efficiency of the public authorities are protected and promoted by law .Because of this, we
emphasize that the secretary of the administrative-territorial unit can have both the integrity or
the witness status and the status of civil servant on which violations of the law lie, in which case
the disciplinary commission or other similar body will provide protection to the whistleblower,
hiding his identity. (17)
3. Manifestations of valuation of wealth, conflict of interest and incompatibility
regime in the exercise of public functions as secretary of the territorial-administrative unit.
An important objective of the domestic legislation is to ensure the integrity of the secretary of the
territorial-administrative unit, which is a standard in the field of ethics, aiming at developing a
body of elite public servants, whose vital activity for the local public administration and for the
community, among other things, education, honesty and respect for the law, without reducing it.
In our opinion, we consider three important directions from the perspective of theory and the
concept of integrity: the importance of its preparation as a vector of stability and of ensuring the
legality of both administrative and individual administrative acts, the importance of the external
impulse role of its activity, with the resonance of the efficiency of the activity of the other public
servants with which it relates but also of the subordinated ones, of the local public authority and
implicitly of the local elected representatives and of the importance of integrating the objectives
of the National Anticorruption Strategy into the local public administration at the level of some
strategic models Specific to the objectives of the European Union and the programs in the field.
In other words, between the quality and efficiency of services in the local public
administration and integrity there is an inter-causality relationship that can also be pursued in the
area of activity of the secretary. At the level of European policies, both the EU member states
and Romania, identify the access to an efficient and transparent public administration as a
fundamental right. This is both an essential way of preventing the risk of permanent corruption
and an important way to make local public administration more efficient through civil servants.
For this reason, the activity of this senior civil servant is subject to special laws of appreciation,
namely to achieve the most efficient results and to match the goals and objectives anticipated.
Firstly, observing the rigors of integrity as a civil servant seeks to stabilize optimal
relationships between integrity monitoring tools: wealth declarations and declarations of interest
and the exercise of activity by the National Integrity Agency, which seeks to trigger sanctions
that impose those three levels: property valuation for illicit or unjustified wealth,
incompatibilities, conflicts of administrative or criminal interests.
It is worth noting that all national and international anti-corruption normative acts
promote practically principles that encourage correct understanding of the law, assuming the
risks and taking over the initiative by civil servants in order to respect the integrity of other civil
servants and public authorities.
Then, also through the special laws, it is still desired to allocate the necessary capital of
trust to the secretary of administrative-territorial unit, since the law poses him in the person who
designates the person to which the local people's declarations of wealth, which denotes the fact
that this official undoubtedly has an essential role to play in ensuring the integrity, the
correctness of the administrative acts that he advocates for legality, and also in identifying cases
where local elected representatives abstain from voting for the adoption of board decisions local.
(19)
Speaking about special laws on integrity, we note that both the Anti-Corruption Law no.
161/2003 which has been elaborated in accordance with the integrity of the exercise of the
powers of the public power, with the fundamental right to good administration, the respect due
by all citizens, and Law no.176 / 2010, impose an ascendant sense of the interventions of the
National Integrity Agency, Having the principle of legality required.
First of all, the importance of the Secretary's work must be emphasized,
In the opinion of the legislator, other civil servants or contract agents, are inappropriate to
assume the "risk" of engaging in such an activity, and this public office may be considered a
sensitive function in terms of asserting the legality of apparent administrative acts, but which in
reality hide incompatibility or conflicts of interest, which is why we believe that due attention
needs to be given to issues of "risk of activity" and, in this respect, to increase the number of
management implementation measures risk and money-giving incentives to this official but also
to those who carry out the operational procedures related to the managerial internal control of
public entities.
Although the pervasive legal framework fits as a glove to the complex structure that the
National Integrity Agency demonstrates locally through the implementation of modern
technologies that have as major objectives the increase of efficiency, the reduction of corruption,
the attraction of the population's trust in System and raising the level of citizens' satisfaction, it
would be best if the National Integrity Agency provide the secretary of the administrative-
territorial unit, but also other civil servants, training courses in the field, including a full package
of assistance, starting with the initial training but also compulsory counseling, continuing with
the permanent counseling stage and then with the verification of its activity and implicitly of the
declarations of assets and interests within a reasonable time established by law and, ultimately,
the application of the fines. Thus, we believe that an effective mechanism for prevention of
incidents of integrity would be created, implicitly in the area of local elections when the
secretary also exercises the capacity of polling station chairman.
Secondly, if we look at the function in terms of its attributions, we emphasize that this
involves combining respect for the law and the actual exercise of service duties, which is why
the role of the secretary can move from the pole where he is a source of information that has as a
result of the examination of the legislation in force and its correct application, concretized in the
approval of the lawfulness of the administrative acts, key competency of the secretary, at the pole
where it performs a simple reproduction of the law which consists in the effective fulfillment of
the attributions related to the securing of the secretariat Local / county council.
In practice, the secretary's application to the current legal framework takes on different
shades depending on the personality of the person in charge of such a function. We deduce from
all this that integrity occupies a central place within the legal norms and regarding the role of the
secretary in this respect, we think that there are quite large oscillations in his activity. Thus, as we
have shown, in some situations, an activity that is the source of the knowledge predominates,
while in others its role is to coordinate the secretariat activity, the results being different from one
plan to another. However, in abstract terms, the differentiation of the powers seems to us
arbitrary, because even if it is the activity related to the declarations of assets and interests of the
local elected representatives, being in itself directed and coordinated by the secretary, from our
point of view this operation as much effort as if the secretary exercises control of the legality of
the acts, therefore integrity must prevail regardless of the activity he carries out.
Thirdly, we would like to point out that each secretary of the territorial-administrative
unit: common, city, municipality, county, acts in a field of political factors, consequently, its
purpose includes a certain degree of probability, each the service ratio does not have a stochastic
or probabilistic character, the weight and role of incident factors differ from one situation to
another. Practically, the law provides for the civil servant to observe a package of prohibitions,
incompatibilities and conflicts of interest that have the same integrity as respect to internal
structure, professional training, motivation or mentality. The correct application of the laws is
thus done by the secretary, each adopting his own path, a process in which the logic interferes
with logical, psychological, behavioral and individual elements, such as pre-existing practices
inherited, impinging on the outcome of the administration's activity Local public.
By Law no. 161/2003, developed as a result of avoiding incidents of integrity, being the
result of all the actors involved, the monitoring tools are identified and showing the ways to find
out the truth. All these peculiarities were theorized by the delimitation of five fundamental
registers, briefly and strictly delineated, in the activity of the secretary of the administrative-
territorial unit.
a) In the first register, the incompatibility consists in the simultaneous exercise of the
office of secretary of administrative-territorial unit with another function, provided that the
accumulation of functions is expressly prohibited by law. According toart. 80 of the Law no.
161/2003, the incompatibilities regarding the public dignities and public functions are those
regulated by the Constitution, by the law applicable to the public authority or institution in which
the persons exercising a public dignity or public office carry out their activity.
Exercise of incompatibility control is performed by the National Integrity Agency, and
there are a number of monitoring tools for incompatibilities, such as completing the declaration
of wealth and the declaration of interests. Regarding the regime of incompatibilities, which was
applicable to the secretary of the territorial-administrative unit, it was not synthesized in a single
normative act, with several disparate laws providing for cases of incompatibility.
The local public administration law provides that the secretary of the territorial-
administrative unit cannot be a member of a political party under the sanction of dismissal, a
relevant aspect of his apolitical position as a natural requirement of the need for impartiality and
objectivity in the activity of verification of the legality of administrative acts. Beyond this case of
incompatibility, under the right of opinion, regulated by the Constitution, at art. 30 and
established by the Code of Conduct for Civil Servants, this public official is limited in the
expression or public manifestation of his political beliefs only during the performance of his
duties and outside the exercise of public office he has the possibility of expressing political
convictions. (25)
Thus, unlike the other categories of public servants who, according to Article 98,
paragraph (1) of the Civil Servants' Statute, may be members of legally constituted political
parties, the secretary of the territorial administrative unit cannot have this capacity.
Another case of incompatibility derives from the situation provided by art. 29, paragraph
(3) and par.(3 ^ 1) of the Civil Servants Statute in conjunction with Art. 117 of Law no.
215/2001, respectively the situation in which the secretary of the administrative-territorial unit as
authorizing officer, in the situation provided by art. 55, par. (8 ^ 1), is elected by the governing
bodies of the trade union organizations. In this case, the secretary has to choose one of the two
functions and if he chooses to conduct the activity according to the leadership of the trade union
organizations, his service relations shall be suspended for a period equal to that of the term of
office of the trade union leadership.
 Under Article 32 (1) of the Government Decision no. 611/2008 for the approval of the
norms regarding the organization and development of the civil servants' career, a civil servant
who has been disciplined cannot be appointed member of the contest committee or of the appeal
committee, and the sanction applied has not been canceled, according to the law.
In accordance to art. 32 par. (2) from H.G. no. 611/2008, the membership in the
competition commission, the secretary of the administrative-territorial unit, for the recruitment of
civil servants or even of another secretary of administrative-territorial unit, is incompatible with
the membership in the appeal committee. art. 34, this situation of incompatibility shall be
reported to the person concerned by any of the candidates, the leader of the local public authority
or the National Integrity Agency or by any other interested person at any time during the
organization or performance of the contest.
According to art. 94, paragraph (1) of the Law no. 161/2003, the capacity of civil servant
and implicitly of secretary of the administrative-territorial unit is incompatible with any public
office, as well as with the public dignity functions.
Under Art. 94, paragraph (2) of Law no. 161/2003, he / she cannot hold any other
functions or perform other remunerated or unpaid activities: within the public authorities or
institutions within the dignitary cabinet, unless the secretary is suspended from the respective
public office, under the law, during the appointment and at the end of the mandate of the official,
the civil servant is reinstated in the public office, as well as in the autonomous companies,
commercial companies or in other public sector profit units or as a member of a group of
economic interest.
Exceptions to incompatibility do the cases listed in art. 94, par. (2 ^ 1) and (2 ^ 2) of Law
no. 161/2003, when the secretary: is appointed by an administrative act, issued under the law, to
participate as a representative of the local public authority within the bodies or collective bodies
constituted under the normative acts in force, exercises a Mandate of representation, based on the
designation by a public authority, under the express conditions stipulated by the normative acts
in force.
Also by virtue of the same article, he is not in a situation of incompatibility, the secretary
who is appointed by administrative act to be part of the project team financed by post-accession
non-reimbursable Community funds, unless the work carried out within that team generates a
situation of conflict of interest with the public office he occupies.

By virtue of par. (4) from the same article, the secretary of the administrative-territorial unit may
not be the person's representative in respect of the performance of acts in connection with the
public office he performs.
As a derogation from these provisions, Article 96, 1 of the Law no. 161/2003 establishes
the possibility of the secretary to carry out functions or activities in didactic field, scientific
research, literary-artistic creation.
 With regard to the case provided by art. 96, par. (1), according to which civil servants
may perform duties in other areas of activity in the private sector which are not directly or
indirectly connected with the duties exercised according to the job description, in the case of the
secretary of the administrative-territorial unit, this cannot materialize, for the reasons outlined
below.
According to art.117 of the Law no. 215/2001, the secretary of the territorial-
administrative unit fulfills, according to the law, the following attributions: approves, for legality,
the provisions of the mayor and the president of the county council, the decisions of the local
council, respectively of the county council, participate in the meetings of the local council,
respectively of the county council , ensures the administration of the administrative procedures
regarding the relationship between the local council and the mayor, respectively the county
council and its president, as well as between them and the prefect, organizes the archive and
statistical records of the decisions of the local council and of the mayor's orders, respectively of
the decisions of the county council and of the provisions of the president of the county council,
ensures the transparency and communication to the authorities, public institutions and interested
persons of the documents referred to in letter a), under the conditions of Law no. 544/2001 on
the free access to information of public interest, with the subsequent amendments and
completions, ensures the procedures for convening the local council, respectively the county
council, and carrying out the secretarial works, communicates the agenda, prepares the minutes
of the meetings of the local council , respectively the county council, and draws up the decisions
of the local council, respectively of the county council, prepares the papers submitted to the local
council, respectively the county council, and its specialized commissions, other tasks provided
by law or commissions given by the local council, the mayor , by the county council or by the
president of the county council, as the case may be. Also, by way of derogation from the
provisions of art. 21, par. (2) of the Law no. 273/2006 on local public finances, as subsequently
amended and supplemented, in the situations provided by art. 55, par. (8 ^ 1) or, as the case may
be, in Article 99, paragraph (9), the secretary of the administrative-territorial unit shall be the
main authorizing officer for the current activities.
In addressing the above cited texts, regarding the problem in the sense that the special
law does not impose on the secretary of territorial-administrative unit duties attributable to the
representation of the local public authority in court, although some of these civil servants have
legal studies, unlike others who have only administrative studies, and the legislator's intention is
to make a connection between the civil servant's professional training and the function he
performs, taking into account the provisions of Law no. 514 of November 28, 2003, regarding
the organization and the exercise of the legal adviser profession, according to which the legal
counselor in his activity approves and counters the legal acts similar to the secretary's basic
attribution, the only difference being that the latter countersigns and endorses administrative
matters, an important point is the fact that the secretary cannot legally represent another entity in
the private sector before the courts, although, according to art. 116, par. (1 ^ 1) of Law no.
215/2001, the period in which the person with higher legal education holds the position of
secretary, as well as leading positions in the specialized unit of the administrative-territorial unit /
administrative-territorial subdivision, constitute seniority in the specialty.
 Another case of incompatibility of the secretary of the administrative-territorial unit
derives from the provisions of art. 97 of the Law no.161 / 2003, according to which the
secretary's service report is suspended during the electoral campaign until the day after the
elections, if it is not elected or until the end of the eligible position or of the public dignity
function, which civil servant was elected or appointed. Also, according to art. 34 of Law no.
188/1999, the secretary may be appointed in a position of public dignity, according to the law,
only after termination of the service relations.
The incompatibility regarding the membership of the secretary who has the capacity of
authorizing officer, of the governing bodies of the unions is provided by art. 29, par. (3) of the
Law no. 188/1999.
The provisions of art. 44 of the Law no. 115/2015, exposes a case of incompatibility in
which the secretary may be present when he is the chairman of the commune, township,
municipal or electoral district electoral bureau because he cannot be a member of the electoral
bureaus Constituency or election bureaus, election candidates, spouses, relatives and their
affiliates up to the second degree included.
Granting the preventive financial control visa is another incompatibility with the
secretary of the administrative-territorial unit. According to Annex 2, lit. F) of the Specific Code
of professional norms for persons exercising the activity of own preventive financial control,
Chapter II of the Order of the Ministry of Finance no. 923 of 2014 stipulates the conditions to be
fulfilled by the persons called in the activity of own preventive financial control and the
principles underlying the exercise of this activity. According to this law, the person designated to
carry out his own preventive financial control activity cannot be involved in the approval and
execution of the operations subject to his own preventive financial control through his duties, in
conclusion, the secretary of the administrative-territorial unit cannot grant a visa of financial
accounting control, as it countersign and endorse the administrative acts that concern the
approval and the rectification of the local budget.
In addition to the previously mentioned integrity cases, we would like to highlight the
Secretary's attributions with regard to instruments for monitoring incompatibilities, although I
have recalled them above, according to Art. 5, lit. G Law no. 176/2010: the county councilors
and the local councilors, the mayors, as well as the presidents of the county council, submit the
declarations of wealth and interests to the person appointed by the secretaries of the respective
administrative-territorial units.
In practice, however, there are many cases where, due to lack of personnel, the number of
civil servants in some mayoralties is restricted, the secretary performs the tasks related to the
implementation of the provisions regarding the wealth declarations and the declarations of
interests provided by art. 6 of the Law no. 176/2010.
Art. 7 of the Law no. 161/2003, state the procedure for reporting the deficiencies in
completing the declarations as well as the rectification thereof. Until the expiration of the
deadline for submission of the declaration of assets and / or the rectified declaration of interests,
the National Integrity Agency may not initiate the procedures provided by the special law.
 At the legislative level we point out the lack of correlation of the provisions of the ar. 5,
let. G of Law no. 176/2010 and the provisions of art. 80 of Law no. 393 of 2004, according to
which the secretary of the territorial-administrative unit shall send to the secretary general of the
prefecture, by March 1 of each year, a copy of the updated statements of the local elected
representatives, who are obliged to update the statement of personal interests at the beginning of
each year, but no later than February 1 st, if significant changes were made to the previous
statement. The lack of correlation consists, on the one hand, in the fact that the two legal texts
nominate different persons with tasks related to the implementation of the provisions regarding
the declarations of wealth and declarations of interest and on the other hand that such statements
are transmitted directly to the National Integrity Agency for the purpose of carrying out the
evaluation tasks as well as certified copies of the two types of declarations submitted and a
certified copy of the special registers , not later than 10 days after receiving them, and not to the
secretary general of the prefecture, which is no longer present in the organization chart of the
prefect's institutions.
A special role in our study, although not in itself a case of incompatibility but related to
the integrity of civil servants within the specialized apparatus of the mayor or the county council,
is the endorsement of the legality of the mayor / president of the county council regarding the
approval of the Ethics Code of the specialized apparatus and the appointment of a public officer
for ethical advice on compliance with the rules of conduct and the monitoring of conduct rules,
the drawing up of quarterly reports on compliance by the civil servants within the public
authority or institution in compliance with the rules of conduct, according to art. 21 of Law no.
7/2004.
Another administrative act on integrity, which is implicitly countersigned and legalized
by the secretary, is the provision of the mayor / president of the county council for the
implementation of the internal managerial control rules, as well as the designation of the risk
managers.
The last two cases exemplified by administrative acts related to the integrity of civil
servants and may employ, according to art. 128 of the Law no. 215/2001, the administrative, civil
or criminal liability of the secretary of territorial-administrative unit that countersigns and
endorses the legality of these acts.
b) Specific for the second registry, is the state of conflict of interest that mean according
to art. 70 of the Law no. 161/2003, the situation in which the person exercising a public office
has a personal interest of a patrimonial nature, which could influence the objectively fulfilling of
the attributions according to the Constitution and other normative acts and according to art. 71 of
the same law, the principles underlying the prevention of conflict of interest in the exercise of
public dignities and public functions are: impartiality, integrity, transparency of the decision and
the supremacy of the public interest.
In the sense of art. 4, let. E of the Code of Conduct for Civil Servants, the term conflict of
interest is the situation or circumstance in which the personal interest, directly or indirectly, of a
civil servant is contrary to the public interest, such that it affects or might affect its independence
and impartiality in making decisions or fulfilling in a timely and objective manner, of the duties
incumbent upon him in the exercise of his public office.
The control over the conflict of interests is also exercised by the National Agency of Civil
Servants as in the case of incompatibilities, which is also competent on this level of integrity.
However, of the three cases of conflict of interest presented by Law no. 161/2003, two
concerning the dignitaries and the local elected ones, one represents the cases of conflict of
interests of public servants, section where the secretary of the administrative-territorial unit is
registered.
Taking into account the provisions of art. 79 of Law no. 161 of 2003, the secretary of the
territorial-administrative unit is in conflict of interest if he / she is in one of the following
situations: he / she is called upon to resolve requests, to make decisions or to participate in
decision-making regarding natural and legal persons with whom he has heritage interests,
participate in the same commission, constituted under the law, with civil servants who have the
status of a first degree spouse or relative, her patrimonial interests, her spouse or relatives of
grade I can influence the decisions she has to take in the exercise in the event of a conflict of
interest, the civil servant is obliged to refrain from solving the request, taking the decision or
taking part in making a decision and immediately informing the hierarchical chief directly to his
or her subordinate. The violation of the provisions of the legal provisions in the field may, as the
case may be, imply disciplinary, administrative, civil or criminal liability, according to the law.
In interpreting the provisions of art. 19 of Law no. 7/2004, the compulsory conditions for
the secretary of the territorial-administrative unit to acquire a private property belonging to the
state or the administrative-territorial units, subject to sale under the law, are circumscribed to the
legal conditions provided for the other civil servants, except for in the course of or as a result of
the performance of his duties, of the value or quality of the goods to be sold when he participated
in the organization of the sale of the good in question, And the endorsement of the lawfulness of
a decision taken by local councils, when it can influence sales operations or when it obtained
information that the persons interested in the purchase of the property did not have access to.
These provisions apply accordingly also in the case of concessions renting or hiring a property in
the public or private property of the state or administrative-territorial units. The Secretary is also
prohibited from providing information on the public or private property of the state or of the
administrative-territorial units subject to sale, concession or lease, under conditions other than
those provided for by law.
Also in the sphere of conflict of interest are the cases described by art. 95 of Law no.
161/2003, which result from the direct hierarchical report between the mayor / chairman of the
county council and the secretary, in correlation with art. 116, par. (3) of the Law no. 215/2001,
according to which the secretary cannot be a spouse or a first-degree relative of the mayor under
the sanction of dismissal, which implies the same requirements of impartiality and objectivity.
One aspect to be emphasized is that the latter is more a prohibition than a proper incompatibility,
not an accumulation of functions, but rather a quality that could lead to deficiencies in respecting
the conflict of interest regime in terms of personal interest. A similar situation in practice
advocates respect for the legal framework, within 60 days, the local elected mayors choose to
renounce the local elected, although they should assess their possible risks before being elected.
A particularly interesting aspect to be considered is the case when one of the local
councilors is a spouse or relative of the first degree with the secretary and they have a
patrimonial interest related to the subject of a decision to be adopted by the local council,
Applicable provisions of art. 79, paragraph (2) of the Law no. 161/2003, according to which the
Secretary is obliged to abstain from the countersigning and endorsement of the respective
decision, in conjunction with Art. 46, par. (1) of Law no. 215/2001 stipulating that the local
councilor who, either personally or through husband, wife, affinity or relatives up to the fourth
degree inclusive, cannot take part in the deliberations and the adoption of the decisions, has a
personal interest in the matter subject to the debates of the council Local and with the provisions
of art. 46, par. 2 of the Law no. 215/2001 according to which, the decisions taken by the local
council in violation of the provisions of para. (1) are null and void. Referring to this example,
corroborated with art. 47 of the Law no. 393/2004, in which local elected representatives are
obliged to expressly state the situations in which their personal interests are contrary to the
general interests, if both the secretary and the local councilor concerned do not comply with the
above mentioned legal provisions and are due to either the decision of the council or the legality
decision is adopted, with the consequence that the personal interest is at the expense of the public
interest, placing the two protagonists in a situation of conflict of interest, the warning in the
public interest signaled by other civil servants or the notification of other local elected
representatives or any interested person who is aware of this situation may be an extremely
useful one. In order to monitor conflicts of interest, it is possible to use efficient methods / tools
in the documentation of possible cases of conflicts of interest, such as: Information from the
Trade Register, requests for information of public interest on the basis of Law no. 554/2001 on
free access to information, documents on the data of the local elected representatives'
declarations, information published in the press. (32)
In conclusion, the secretary who approves of administrative acts legality may also have
the role of a whistleblower in this case if he / she identifies other situations of conflict of interest
than the one cited, in which local / county councilors can be found, in order to avoid the
annulment of the administrative act. The same role of the secretary is found in the case provided
by art. 76 of the Law no. 161 of 2003, according to which: the mayors and deputy mayors, the
mayor and the deputy mayors of the municipality of Bucharest are obliged not to issue an
administrative act or to conclude a legal act or to not issue a provision in the exercise of the
function, which produces a material benefit for itself, for her husband or his relatives of degree I.
The administrative acts issued or the legal acts concluded or the provisions issued in violation of
the obligations stipulated by the law, are affected by absolute nullity. Per a contrario, any
interested person, implicitly local elected, in our opinion the obligation to highlight the conflict
of interest between the secretary and the local / county councilors.
The special law does not clearly distinguish the conflict of administrative interests from
the criminal one, but in the communiqus made public by the National Integrity Agency a
number of cases of conflicts of interest appeared in the public law relations regarding the public
office of secretary of unity Administrative-territorial conflict, conflict of interests presented in a
different way, which takes two forms: conflict of administrative interests and conflict of penal
interests.
b1).Conflict of administrative interests means violation of the legal regime regarding the
conflict of interest in administrative matters, provided by art. 79, par. (1), lit. A), b) and c) of the
Law no. 161/2003. Conflict of administrative interests also aims at producing a material benefit
for himself, his spouse or his first-degree relatives as regards civil servants.
Also, the conflict of administrative interests differs from the conflict of penal interests
and under the responsibility of the secretary or civil servants according to the provisions of art.
25, par. (3) of the Law no. 176/2010 stating that the deed of a person who has been found to be in
breach of legal obligations regarding conflict of interest or incompatibility constitutes a
disciplinary offense and is sanctioned according to the regulations applicable to the dignity,
function or activity concerned. "
b2). According to the Law on Penal Code no. 286/2009, the conflict of interests as a
criminal offense, taken from Law no. 278/2006 for amending and completing the Criminal Code,
as well as for amending and completing other laws, is defined of art. 301 as the act of a civil
servant who, in the exercise of his professional duties, has performed an act or participated in a
decision which directly or indirectly obtained a patrimonial benefit for himself or for his spouse
for a relative or for a birch up to the 2nd degree inclusive or for another person who has been in
commercial or employment relations for the past 5 years or from which he has benefited or
benefits from any kind, is punished by imprisonment from one to five nor the ban on exercising
the right to hold a public office.
Therefore, we can speak of a conflict of criminal interests, when the deed has a higher
degree of gravity than in the case of incompatibilities and the conflict of administrative interests,
it is provided by the criminal law, so it constitutes a crime and the subject of the offense is the
civil servant in the meaning of art. 2 of the Law no. 188/1999, in this case the secretary of the
administrative-territorial unit. Also, the sanction consists of one to five years imprisonment and a
ban on exercising the right to hold a public office.
c) The third register concerns the verification of the assets, this control being regulated by
the Law no. 115/1996 for the declaration and control of the property of the dignitaries,
magistrates, of persons with management and control positions and civil servants. The legal
framework which presents the algorithmic prescription by which the control of the fortunes is
carried out and circumscribes precisely the suite of operations to be the parties involved in the
process, the procedures to be followed, the limits within which the courts can act and their legal
obligations.
After the administrative procedure for valuation of wealth by the National Integrity
Agency, the State Property Research is undergoing the administrative procedure of wealth
research, according to the law above, having a filtering role between the National Integrity
Agency's assessment and the control activity of the property of the courts. (36)
 In the materialization of its competence, the National Integrity Agency, in accordance
with the provisions of art. 10 of the Law no. 115/1996, which regulates the practical way of
carrying out the control of the wealth, the research commission notifies, only on the basis of the
report of the property valuation, prepared according to the law.
According to art. 10 par. (1) of the Act, in addition to each Court of Appeal, there is a
commission for the research of the assets that can conduct local investigations or may order the
carrying out of an expertise for the clarification of the case. The decisions that this committee
may issue, according to art. 10 ^ 4 of the Law no. 115/1996 may be: referral of the case to a court
of appeal within the jurisdiction of the person whose wealth is controlled, if it is established, on
the basis of the administered evidence, that the acquisition of a share of this or of certain
specified goods does not have justification by the classification of the case by an ordinance when
it finds that the provenance of the goods is justified, the suspension of the control and the referral
of the case to the competent Prosecutor's Office, if the offense is committed in connection with
the goods whose origin is unjustified.
Concerning the objection of unconstitutionality of the draft law for amending Law no.
286/2009, for the decriminalization of the conflict of interests, in the sense of its existence only if
the employment of relatives or persons with whom the civil servant was in the employment
relationship constitutes an offense and only if the public interest was damaged, the Constitutional
Court Recently decided that eliminating the notion of conflict of interest in the criminal code and
replacing it with the use of the function of favoring certain persons is constitutional.
d). The fourth Registry has as its object the administrative litigation regarding the control
of the assets, incompatibilities and conflicts of interest and the legal nature of the reports of the
National Integrity Agency. Regarding the legal nature of the reports prepared by the National
Integrity Agency, these are true Administrative acts and may be attacked by the interested
persons at the administrative contentious court under the terms of the Law on administrative
contentious no. 554/2004(37). A necessary observation is the question of the possibility of
challenging the classification order issued by the commission of property research, which,
according to Art. 10 ^ 4, lit. C) of the special law, is not subject to any appeal, therefore the
actions brought by the National Integrity Agency in similar cases are inadmissible. In this
respect, by Decision no. 415/2010(38), the Constitutional Court of Romania declared
unconstitutional the notification of the administrative litigation by the National Integrity Agency
in order to control the wealth.
e) The legal consequences are the fifth registry and concern both the administrative or
criminal liability of the civil servant and the sanctions applicable to the valuation of assets,
incompatibilities and conflicts of interest, as well as the legal regime of administrative acts
adopted in breach of the legal norms integrity.
With regard to sanctions, according to art. 25, paragraph (2) of the Law no. 176/2010, the
sanction of violation of the regime of incompatibilities or the conflict of administrative interests
consists in the disqualification from the right to exercise a public position, with the exception of
the electoral ones, for a period of 3 years from the date of issue, dismissal from the respective
public office. In this respect, by Decision no. 418/2014, the Constitutional Court found that the
provisions of art. 25, par. (2) second sentence of Law no. 176/2010 are constitutional, to the
extent that the phrase of the same function refers to all the eligible functions provided by art. (1)
of the same law and no authority can ignore the constitutional meaning thus established.
Under the same law, if the person no longer holds a public office at the time of finding
the incompatibility or conflict of interest, the three-year ban operates according to the law, from
the date of the final assessment report, or the remaining Final and irrevocable of the court's
decision confirming the existence of a conflict of interest or a state of incompatibility. The
legislator also establishes the administrative liability of the civil servant according to the nature
of the act committed, thus the deed of the person who has been declared incompatible or of a
conflict of interest constitutes a ground for dismissal or, as the case may be, constitutes a
disciplinary offense and is sanctioned according to the regulations applicable to the dignity,
function or activity concerned. Referring to the criminal liability of the civil servant for the
offense of Conflict of interest, the sanction is punished by Article 301, Criminal Code.
Regarding the sanction applicable to the liability of the secretary of the territorial
administrative unit, related to the situation of illegally acquired assets, according to art. 18 of
Law no. 115/1996, it is the seizure of unjustified goods or the obligation to pay amounts equal to
the value of the goods, sanctions ordered by the court by a final and irrevocable court decision.
According to art. 26 par. (3) of the Law no. 176/2010, by way of derogation from the
provisions of the special law regulating disciplinary liability, the sanction can be applied within 6
months at the latest from the date of the final evaluation report, according to the legal provisions.
If the cause of incompatibility ceased before the notification of the Agency, the disciplinary
sanction may be applied within 3 years after the cessation of the cause of incompatibility, unless
the law provides otherwise. Therefore, in practice, due to the delay in the application of the
sanction, there may be a challenge to the evaluation report and implicitly the initiation of an
administrative litigation process, resulting in the actual non-application of that sanction, as a
result of the exceeding of the special term from the date of the final evaluation of the National
Integrity Agency's evaluation report.
The sanction imposed by art. 101 of the Civil Servants' Statute refers to dismissal from
the public office ordered by administrative act of the person having the legal competence to
appoint in the public position as a disciplinary sanction applied for reasons attributable to the
civil servant if a legal reason for incompatibility, and the civil servant does not act to terminate it
within 10 calendar days from the date of the incompatibility case. The administrative act shall be
communicated to the civil servant within 5 working days from the date of issue. Also, the
communication of the administrative act must be made prior to the date of dismissal from the
public office.
In the case of committing crimes by the civil servant, the National Integrity Agency shall
notify the competent prosecutor's office for verifying the indications of the possible offense of
conflict of interest and shall take all necessary steps to annul the issued acts, adopted or drawn up
in violation of the legal provisions.
 Regarding the administrative acts adopted in violation of the provisions of art. 46, par. 1
of the Law no. 215/2001, these are null, according to art. 46, paragraph (2) of Law no. 215 /
2001. The nullity is established by the court of administrative contentious. The action may be
brought by any interested person, under the applicable law.
Also, in practice, a number of deficiencies have been identified in practice: the deliberate
submission of declarations of assets or interests that do not reflect the reality, which constitutes
the offense of false declarations, the inappropriate lack of knowledge of the relevant legislation,
The legal provisions of the persons who are aware of incidents of integrity, the non-observance
of the operational procedures regarding the implementation of the internal managerial control,
the failure to submit in due time the declarations of assets or interests or the non-transmission of
the declarations to the National Integrity Agency in due time, or misinterpretation of the notion
of integrity, failure to publish the declaration of assets / interests on the website of the local
public authority, failure to observe the obligations stipulated by law by the person designated to
carry out the legal provisions regarding the declaration of assets and interests and non-
prosecution of this offense with a fine, non-dredging of civil servants in integrity training and
monitoring activities, delay in the application of legal sanctions, non-observance of the rules
deriving from the laws, the Constitution, European standards in the field, etc.
Beyond the still unbridled flame of controversy, the main idea that is being distilled is
that the efficiency of anti-corruption measures, at least locally, is incomplete. Given that there are
risks materialized through incidents of integrity and the results of these strategies are used to
form prototypes of action which, once elaborated, become the easiest means to achieve goals, we
conclude that they are in contradiction with moral and legal norms, which is why, of law ferenda,
we propose: the presence of integrity inspectors in the mayoralties / county councils, by carrying
out unannounced checks, the establishment of integrity competencies under the control body of
prefectures, the obligation to complete an integrity test on employment the secretaries of the
administrative-territorial units, the creation of a differentiated framework of incompatibilities and
conflicts of interest for the secretaries of administrative-territorial unit, the publication of all
judgments pronounced by the courts on the integrity of public servants and, implicitly,
secretaries of administrative-territorial units, increasing the level of knowledge and
understanding of integrity standards by employees and beneficiaries of public services,
increasing the degree of implementation of anti-corruption measures by approving the integrity
plan and periodic self-evaluation at the level of public authorities, ensuring the necessary
conditions for participation of the ethics counselor in vocational training programs having topics
such as ethics, conduct and integrity, implementation of anti-corruption measures at local level
and communication with all civil servants from the local public authority concerned.
In addressing the needs of local public administration reform, an important role is played
by the process of reforming the field of integrity, which should be articulated in particular around
the principles for the implementation of anti-corruption measures, in accordance with the needs
circumscribed to the public interest. In this regard, the legislator has the freedom to use examples
of lender ferenda so that the completion of specific laws facilitates an appropriate approach to
resolving the concrete situations that have arisen over time in terms of integrity, thus ensuring the
premises of the contextualized application of the rules legal and moral aspects, and the design of
paths to comply with principles adapted to the current needs of civil servants and, in particular,
of the secretary of the administrative-territorial unit.

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