EVOLUTION OF LEGISLATION ON EXPERTS ‘INDICATIONS. IN JURISDICTIONS OF THE UNITED KINGDOM AND THE USA

In the US, government employees include all employees in state or local government agencies, including technical staff. There is a complex political and legal terminology that determines the status of employees. The term “government service” is used, which includes the heads of departments (political “appointees”), and “civil service”, which include professional officials.
The Federation and State laws also have laws on public service. The federal service is headed by a president who appoints senior political officials, while the rest are virtually irremovable. In state governors, influence over employees is even weaker.

In general, the process of centralizing US state administration looks different than centralizing in authoritarian states. Broad economic autonomy and the serious political rights of states are an attribute of real federalism in this country.

Until the Reconstruction period (that is, the reintegration policies of the southern slave states after the Civil War, Reconstruction lasted from 1865 to 1877), state and county governments were government bodies that had a direct impact on the life of society, sometimes more significant than federal authorities. States and local governments have accumulated and disposed of the bulk of public money. These and similar phenomena became the norm of the public life of the United States, since the American political system was formed initially from the time of the colonial era and the founding fathers as an association of constitutionally independent state-states that are predecessors of the union (federation). Therefore, the federal government is a phenomenon created by the states. Hence, the decentralization of the US government, the strong traditions of local self-government in this country.

Initially, it was all about the fact that federations transfer only those powers that are not so important for state authorities (defense, foreign policy, regulation of the economy on a national scale). Since the founding of the United States, traditions have been established that have supplemented the Constitution, restraining the processes of centralization and are the unwritten rules for the center in relation to states in practice.

States have long been considered as government units. Thus, the inhabitants of the state of Maryland were called the “nation”, and the Massachusetts MPs in Congress were called the “embassy” of that state.

Only in the period of Reconstruction (1865–1877) with the adoption of the Fourteenth Amendment to the US Constitution (established measures against state authorities by the federal authorities for violating the principle of equality of citizens), a clear separation of rights and powers between the center and the states was recorded.

A large territory of the country, economic features of the development of the states also contributed to the decentralization of management in the United States.

The “Great Depression” intensified the level of centralization when the role of the federal center in dealing with the crisis became apparent due to the possibilities of state regulation. After the presidency of F. D. Roosevelt (1933-1945), the level of centralization of budgetary and managerial resources began to correspond to the level of centralization of capital. And the Americans began to view this not as a reduction of democracy, but as a necessary expansion of state regulation in the economy and the concentration of necessary resources by the federal government to solve social and economic problems in conditions of the states’ inability to cope with problems of national scale.

After the First World War, the Sixteenth Amendment to the US Constitution was adopted, which allowed the federation to collect income tax, the proceeds of which were sent entirely to the federal budget. And by the beginning of the Second World War, the federation budget exceeded the total expenditures of states and local authorities (1940). Social programs, economic regulation, civil law became the prerogatives of Washington.

Federal subsidies grew steadily, federal programs led to an increase in the influence of the federal administration and an increase in state dependence on subsidies.

On the other hand, in the USA they note the tendency of “balkanization of power in a federation”, when many authorities coexist. In 2009, they numbered about 80,000 – state executive and legislative bodies, 3,042 counties, 18,862 municipalities. All these bodies not only interact, but, according to experts, and face each other on jurisdictional issues [1. S. 247].

But the search for a balance between the center and the state authorities in a federal state continues to this day. Therefore, the question of the balance of power between the levels of the federation, between branches of government, the impact on government service of branches of government, federation, states, has always been and remains fundamental to American society, which led to the search for the interaction model that would comply with the principles of democracy and federalism.

In pursuance of the principle of separation of powers in this country into the civil service, parliament has a great influence. Chambers through laws and budget regulate the service. According to the Constitution, the Senate influences the appointments of top political officials (for example, it may or may not approve the candidature of the Secretary of State, etc.).

After the creation of the American state for a long time there was no law on public service. Political experience, practice, precedents of the first presidents of the country played a big role. D. Washington (1789-1797) believed that the president, as the head of the executive branch, could influence the appointments of all employees, taking an interest in the opinion of the Senate only on the candidature of senior officials. But this president believed that officials who work effectively may be irremovable. D. Washington, when appointed, took into account the loyalty of the candidate to him, his contribution to the struggle for US independence, competence, reputation, and focus on the interests of all states. For the first president, this was more important than political bias and ideological attitudes when appointing members of the administration.

A discussion about the right not only to approve candidates for top positions, but also to overthrow them, opened up in the Congress of D. Washington in Congress. The position of those who believed that only the president can have the right to shift won out. But congressmen had the right to inform deputies about the work of ministers, create commissions to investigate their activities, and could advise the president on appointments to federal posts (the right to recommend, and after D. Washington – the mandatory, called the “rule of Senate politeness”).

As the formation at the beginning of the XIX century. political parties began to influence party affiliation. It came to the point that the federal president D. Adams (1797–1801) appointed some judges from his supporters in the last hours of his presidency (1801), because his political opponent, Democratic Republican T. Jefferson (1801–1809), won the election. . It went down in history as “midnight appointments.” (True, many of these appointees were still retired). But under T. Jefferson and D. Madison (1809–1817) the formula of the first president continued to exist, that the official remains in office “while he behaves well,” that is, loyal to the head of the country and his administration. Dismissals have not been practiced since the days of D. Washington. True, there was an attempt to limit the term of office as a 4-year term under President J. Monroe (1817–1825) in 1820, but this attempt was not supported, and D. Washington’s rule remained.

The political factor, not professionalism, became central to the presidency of E. Jackson (1829-1837). A so-called “mining system” emerged, which was based on the idea of ​​the party loyalty of an official, and not his reputation and membership in the elite. It became the practice of complete renewal of government posts after the change of the president and only by his order. Former general and then president

E. Jackson did not belong to the ruling elite, making a bet on people from the “hinterland”, so it was logical for him to clean up the old apparatus and appoint his supporters. But this is a subjective factor. More important, however, was the fact that the role of mass political parties and the desire for renewal and democratization of the system increased due to the removal from power of representatives of the “aristocratic” families of Boston and the northeast as a whole. In addition, the elections and the party struggle became costly and the supporters, the activists of the winning party had to get their “booty” in the form of posts.

The policy of E. Jackson has become a form of renewal of the elite, preventing the administration from turning into a closed clan for immigrants from the South.

The “minus” of the new system was corruption, which the US government did not really know until the 1830s. The “mining system” contradicted the interests of society and the state, since the main thing for officials was the opportunity to solve their material affairs during their tenure. The main interests of the party were, and for the ruling party – the preservation of power.

On the one hand, democratization according to E. Jackson led to the dismissal of the southerners clan from the state apparatus, on the other – to the decline of the authority of public servants in the eyes of the average American, which was dangerous under a democratic system.

Congress intervened. Again, the question arose about the right of deputies to suspend ministers. The President was reminded of the duty to consult with lawmakers when appointing to top positions. E. Jackson did not consider it necessary to explain his appointments before the Chambers, which led to a reduction in the financing of the administration by the deputies. As a result, President E. Jackson and his successors began to conduct such consultations informally.

More and more voices sounded that the “mining” should be replaced by a “merit system”, that is, an account of the qualifications of the applicants. In 1853, an “examination for the rank” was introduced. Ranks were established, the salary depended on hierarchy of ranks. However, the reform remained largely formal. Too many were interested in the “mining system.”

The Northcote-Trevellana reform in the UK inspired supporters of civil service reform. Congressman T. Jenkes in 1865 proposed a bill on the creation of the Commission of State Employees (CSC), which was supposed to examine applicants other than those approved by the Senate. But President E. Johnson (1865–1869) was in conflict with Congress because of the forms of conducting the Reconstruction of the South after the civil war, and it was not up to Bill T. Jenkes. But soon, due to the aggravation of disagreements with the head of the US administration, Congress adopted the Act on officials, increasing the influence of the Senate on the personnel powers of the president. The case almost reached impeachment of the president, especially since many administration members were in favor of the Senate, and E. Johnson’s attempts to dismiss them caused a new round of conflict with the legislators.

In the wake of the critics of the executive branch, social forces that opposed the “production system” became more active. However, as before, many in the government and in the Chambers did not decide on a fundamental reform of the US civil service.

It was prompted by the assassination of President D. Garfield (1881). It was rumored that the assassination attempt was made by a supporter of the murdered president who was bypassed during the distribution of the “booty”. In 1883, the Law on the Public Service was adopted (the law of Senator Pendenton). The mining system has been abolished. A “merit system” was introduced, that is, an open competition (exam) was introduced; it was forbidden to dismiss for political views, but it required political neutrality; the establishment of a public service commission to monitor the implementation of the law; probationary period for job seekers in government; the principle of state representation in the state apparatus of the federation was maintained in proportion to the population of the states.

In 1887, the professor and future president of the United States, W. Wilson (1913–1921), laid the foundations for the theoretical development of questions of administrative and state administration in his work “The Study of Administration”. He believed that the change of political leadership should not affect the activities of the non-replaceable administrative apparatus [2]. Thus, the tasks of the officials were to promptly and competently implement the decisions of any group of elected political leaders.

V. Wilson suggested using methods of organizing and managing corporations in state administration. He also substantiated the need for high professionalism in the public administration system, i.e., the selection of civil servants according to their professional competence. Thus, the bureaucracy was supposed to become a tool of professional management with its principles of “hierarchy and separation of functions.”

The ideas of W. Wilson were in many ways close to the American political scientist F. J. Goodnow (1859-1939). At the turn of the XIX — XX centuries. he, like W. Wilson, investigated the American system of state administration to develop a model of bureaucracy that would “work” within a democratic society. The theoretical concept of W. Wilson and F. J. Goodnow made it possible to combine the ideals of democracy together with the activities of professional bureaucracy.

V. Wilson believed that the relationship between the administration, which implements the laws, and the government that creates the laws, “constitute the very essence of the government system” [2]. At the same time, F.Gudnau and V.Wilson made a clear distinction between politicians and administrators. In their opinion, in order to ensure the development of democracy, politicians need to control the activities of administrators. Such subordination must be defined at the individual and collective levels. Then administrators will never be able to “intervene” in politics: they will simply follow the indicated directions given to them by political leaders [2].

Under the influence of the ideas of Wilson and Gudnau, the issues of scientific management or management, independent of political ideology, occupied a leading place in the theory of public administration.
The law on public service was spread gradually: at first, only 20% of employees were transferred to the new system (1890), 84% – in 1971. From the middle of the XX century. the course begins to increase the efficiency of officials, the “management” of the apparatus [2].

Further steps to develop the US civil service was the 1939 Law on Political Activity (Hatch Law), which regulated political behavior and was aimed at implementing the principle of political neutrality of employee loyalty, and imposed a ban on officials calling for the overthrow of the system.

In subsequent years, the legislation on public service, has been repeatedly amended and supplemented.

In the second half of the last century, the public and CGS criticized the pressing problems in the civil service system: red tape, staff turnover, conflicts (usually hidden) between political and professional officials and others.

In 1970, the practice of annual certification was introduced by the heads of their subordinates by filling in questionnaire characteristics and grading their work. But the estimates turned out to be formal (99% received “satisfactory”). Therefore, certification began to carry out in the form of interviews with employees. For this, special commissions were created.

President D. Carter (1977–1981) and Congress passed the Law on Civil Service Reform (1978). KGS was liquidated. The practice of certification was perfected. The results of certification have become more accounted for in the promotion of civil servants. Improved system of motivation of officials. The centralized leadership was exercised by the Bureau of Personnel Management, control over the implementation of the merit principle was carried out by the Council for the Protection of the System of Merit; the Commission on Equal Employment Opportunities oversaw the non-discrimination.

The Bureau of Personnel Management was entrusted with the task of centralizing and coordinating personnel work in the administrative and state administration: appointment to positions, advanced training, certification of employees, censures and awards, career growth, recommendations for reforming the personnel policy of the state apparatus.

The Council on the Defense of the Merit System ensures compliance with civil service laws in the areas of recruitment, service, and dismissal. The basic principles of the US civil service, if we summarize the essence, proclaim the following attitudes: the idea of ​​equality, consideration of professionalism and competition; justice and non-discrimination on any grounds; remuneration depending on the quality of work and regardless of the level of government; standards of ethical behavior; efficient use of resources; preservation and promotion of personnel who work well, the dismissal of those who can not or do not want to meet the standards; training and professional development; protection of employees against unfair treatment and favoritism and political coercion; not harassment of employees for “alarms” (denunciations).

Under President L. Johnson (1963-1969), a system of titles or appointments of administrators was introduced. Top managers have a special legal status. They could be moved by political leadership from one institution to another in order to bring the top officials closer to top political posts. Under the Civil Service Reform Act of 1978, this system of L. Johnson was approved as a legal institution.

This implies high incentives for top administrators: high salaries, bonuses, wide career opportunities. Today they are a fairly closed corps of officials, close to the political elite, sometimes therefore oriented towards the interests of political leadership.

In the 1980s there was a reduction in the state apparatus. Under R. Reagan (1981-1989), the tendency to politicize the service was manifested, and the role of political appointees of the president increased.

It should be noted that the 1978 Law on the Reform of the Civil Service permits with regard to the political activities of public servants the following: to vote in any election; to express their private or public opinion about political issues or candidates, if the official does not take part in political management or a political company as a supporter of one of the candidates; use political symbolism anywhere except in the working environment; make voluntary contributions to the party’s campaign; to participate in public organizations, if there is no conflict of interests; show political activity of a citizen on matters of federal or municipal significance that are not related to any party; to be a member of the party, to participate in its meetings, congresses, events, but not to participate in their organization and conduct; express their position to the congressman or senator on voting in the Congress on a particular issue.

If an employee violates the law, he may be suspended for a month without payment from work, or fired in the event of active political activity. Exceptions are made only for the inner circle of the president.

The Civil Service Reform Act of 1978 also includes the United States Code of Ethics. Code is pretty standard. It is based on the principles of morality, humanism. Of course, corruption and protectionism exist in the United States, contrary to the principles of the code of ethics, and the government, of course, takes measures and carries out administrative reforms to overcome these negative phenomena.

According to the code of ethics, a public servant must: adhere to the priority of moral values ​​in the interests of the state or party or individual; to protect the Constitution and laws, never to evade them and not to participate in their violation; make every possible effort to fulfill their duties; to be efficient and economical in work; show no discrimination, protectionism, nepotism; not to make personal promises related to work; not to use work information for personal gain; not to get involved in business with the government; expose corruption in all its forms; remember that the public service is based on public trust.

In the United States there is no system of administrative courts, as in Germany. In the USA, their functions are performed by the Council for the Protection of the System of Merit, designed to protect officials from unjustified personnel actions.

These are complaints of employees. The Board issues orders that correct disciplinary action against employees. The Special Advisory Board for Investigating Violations of the Law on Personnel Policy interacts with the Council. The service is engaged in cases involving political pressure on a federal employee, engaging employees in prohibited political activities, and harassment in their political activities; responding to the “alarm” from the employee about violations of the law, abuse of power, corruption, etc .; with the investigation of manifestations of violations of personnel policy in federal institutions.

In the USA, “alarms” from an employee who are protected in this case are encouraged, except if the employee has disclosed information relating to state secrets. An official to obtain such protection may contact the Chief Inspector of the Council for the Defense of the System of Merit.

The Civil Service Reform Act of 1978 dwells on disciplinary measures against managers who violate the principles of public service.

He prescribes disciplinary action against managers who discriminate; use power to compel political action; interfere with the right to participate in the competition for entry into the service; they deceive a person in this matter; put pressure on the applicant to facilitate someone else’s participation in the competition; give preference to the candidate, give him advantages not provided for by the law; show nepotism; persecute those employees who did not submit to one or another pressure on them by the head, revealed violations of the law or other abuses of power by the head; violate or attempt to violate laws and regulations related to the implementation of the merit system.

Positions in the United States may take a non-competitive way. For example, in the event that it was foreseen in advance that the person undergoing the internship would successfully fulfill their duties. The competition is not provided for temporary positions (no more than 120 days) and for those employees who have lost their position due to staff reductions and transferred to another institution.

Of course, in modern conditions, more than 90% of employees are appointed on the basis of competitive exams. And there is an exceptional civil service whose employees are excluded from the action of the Civil Service Law (employees of the National Security Agency, the CIA, the State Department, the US representative in international organizations). The activities of these services, which play an important role in ensuring the national security of the country, are governed by the principles of political expediency. Representatives of these structures objectively occupy a more privileged position and are more highly paid.

In the United States, the patronage system (the “mining system”) still plays an important role when political leaders are appointed to senior administrative positions that belong to the winning party or team of the winning contender for the White House (Senator William L. Marcy declared: “ Winners own the loot! ”, Meaning the party that came to power under the winner, and loot – the state and administrative posts). In the event of a change in the political situation, following the results of the elections, when the party composition of parliament changes or the president changes, these officials, as a rule, are replaced. This way is replaced by up to 5% of the country’s posts. These are heads of agencies, departments, ambassadors, consuls. They are appointed with the consent of the Senate (this may manifest “senatorial politeness” if, in its majority, members of the party to which the president belongs). Advisers, heads of government programs, assistants, personal secretaries of the president may appoint without approval.

In most cases, the system of merit plays a role in the public service: selection on the basis of examinations for promotion, an annual assessment of the official performance of an official. Although the competitive exam is used mainly for ordinary employees, and more important is the periodic evaluation of the results of service activities. After the Law of 1978, the value of such an annual assessment of labor rose sharply. Each department has its own rating system, employees are involved in the development of evaluation criteria. On their basis, decisions are made on retraining, training, awarding, leaving the previous position, demotion or removal from office of an employee.

The head is obliged to inform the subordinate about the assessment of his work, to acquaint with the criteria, to warn him in writing about the actions as a result of the low assessment of the quality of the official.

The proposal for demotion is valid for a year, and if an employee has demonstrated more effective work, he remains in his previous position, and the manager’s proposal for demotion is withdrawn.

Each institution has a career plan. If there are not enough candidates for the position, then an open competition is announced. The selection and promotion criteria are similar.

Standards are developed by each agency and formulate the minimum requirements for the post. Offices are not recommended to use written and oral tests for selection and promotion. Everyone who meets the qualification standards and requirements of the law, have the right to apply for the position. As a rule, out of these applicants, the most qualified 3-5 candidates are selected, and then a special official selects a candidate, naturally, without allowing discrimination or favoritism.

With regard to the structure of the administrative and state administration of the United States, the basis of this structure are government departments (they employ up to 90% of federal officials). The department is headed by a secretary approved by the Senate at the suggestion of the president. The deputies and assistants to the head of the department are also political appointees. In Great Britain, on the contrary, deputy heads of department are professional personnel officials with the political appointment of the prime minister.

Any department in the United States is not just an executive body. He is obliged to conduct a course prescribed by the administration of the country’s parliament. Moreover, if in Congress, an unstable majority, which is forced to reckon with the opposition, often formulates the problem in neutral phrases. And then the bureaucracy has the opportunity for maneuver and freedom of action, following the general direction of the Congress. Thus, officials can pursue their policies and be guided by their own interests – the interests of not the Congress, but the executive power, more precisely, its top.

Government departments are divided into: 1) a bureau; 2) independent agencies; 3) federal corporations.

At the head of the “Bureau” is a professional official (or political appointee). Bureau leaders (for example, the Bureau of Statistics at the United States Department of Labor) have a broad right to make decisions within the framework of authority and administrative policy. Independent federal government agencies are created outside federal agencies and belong to the executive branch. Agencies receive, with Congress permission, grants issued for the purposes of this agency for solving tasks that are outside of normal US law. Their main purpose is to ensure the stability of the work of the federal government and the economy.

For example, there are the Environmental Protection Agency, the Social Protection Administration, the International Trade Agency, the National Aeronautics and Space Administration and others. Federal corporations are owned by the government. They are mixed departments because private companies are involved in their activities. The head of the corporation is appointed by the president with the consent of the Senate. The corporation and its head have a certain independence in the distribution of financial resources, financial resources allocated by the parliament. Corporations finance public facilities that are difficult to finance private firms because of the scale of the projects. That is why federal corporations are rarely profitable, so they need annual subsidies. The corporations are guided by the main guidelines that the Congress formulates. The leading US federal corporations include the Tennessee Valley Administration, Legal Services Corporation, Commodity Credit Corporation, Private Overseas Investment Corporation, Federal Deposit Insurance Corporation, and others.

Bibliography

1. Vasilenko, I. А. Administrative state administration in Western countries: USA, UK, France, Germany: studies. manual / I. A. Vasilenko. – 2nd ed., Pererab. and additional – Moscow: Logos, 2001. – 200 p.
2. Vasilenko, I. A. State and Municipal Management: studies. manual / I. A. Vasilenko. – M.: Yurayt, 2013. – 495 p.

Hits: 8

No votes yet.
Please wait...

Leave a Reply

Your email address will not be published.

*

code