probity is a pool with no shallow end

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NATIONAL CONFERENCE & EXHIBITION

2014

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Probity – a swimming pool with no deep end…..

You can get quickly out of your depth Jim Box

www.roomtorun.com.au [email protected]

2

Definitions and terminology

“Probity”: integrity, uprightness;

honesty; uncompromising

adherence to highest ideals.

“Integrity”: unbroken completeness

or totality with nothing wanting;

soundness, honesty, sincerity.

‘Probity is just common sense?’

…..WRONG

National Conference & Exhibition 2014

3

Why it isn’t Common Sense – individual values:

Ideology Approach to probity but unpredictable

Situationists Defer rules or values; ask if the action

yielded the best possible outcome in the

given situation

Subjectivists Reject rules or values; base integrity on

personal feelings about the action and

settings

Absolutists Feel actions are right provided they yield

positive consequences through

conformity to rules/ values

Exceptionists Feel conformity to the rules/ values is

desirable, but exceptions are often

permissible

Ref: Jepson School of Leadership Studies, Ethics and Moral Judgment,17/6/2008


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Probity, and the law

Societies/cultures have

differing positions on

morals, ethics,

accountability and

corrupt behaviour.

There is no homogeny,

leaving ethics open to

perception and

judgement

‘Black-letter’ law, case

law, interpretive law,

and policies establish

some basic rules/values

for ethical behaviour


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Summary of the Process Contract

Confirmed in Aust since Hughes Aviation v

CAA (HCA) - a paradigm case

Further key confirmation in Ipex vs State of

Vic (Treasury) (VSC), and Dockpride v

Subiaco Redevelopment Auth’y (WASC)

Several related judgements in Aust & O’seas

Imposes an implied ‘Process Contract’

obligation on any public entity to:

act consistently,

act in good faith, and

deal fairly.

Unlikely that a ‘no contract’ clause will

succeed.


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The ‘constructs’ of probity within Integrity

Probity principles to achieve integrity:

Fairness and impartiality

Accountability, & transparency of process

Managing interests & influence

Security and confidentiality

Acting with fiduciary duty.

Embodies core ethics values of honesty,

loyalty, objectivity, and ‘virtuosity’National Conference & Exhibition 2014

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Probity assurance is about:

Identifying and Planning for

the Probity Risks


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Probity Planning

Should be concurrent with procurement

planning & tender/grant preparation

Should address Probity Risks: Risk identification and reason

Risk analysis and effect

Strategies for dealing with the risks

Action assignment/designation


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Probity Risk areas include ...

Accountability and compliance

Failure to account for and comply with all

relevant policies, statutes, directives, codes,

standards, and instructions.

Adequate Transparency

Poor evidence of compliance;

Lack of justification or defensibility for

decisions or processes

Communications issues

Inconsistent communications,

Inadequate communication protocols

and.....


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Selecting the appropriate supply approach Lacking competition,

Lacking information on the market or

requirements,

Expediency.

Ineffective evaluation Inconsistent or unfair or bad faith dealing,

Can’t differentiate with defensibility,

Can’t evidence value for money.

Consistency in all documents and dealings Inconsistent information across tender,

evaluation, contract, and communications

and.....


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Confidentiality Breach of confidentiality

Privileged information

Misuse of intellectual property

Security of information Inappropriate, uncontrolled, or unapproved

access

Information mishandling

Undue Influences of all sorts Stakeholder interests – internal & external

Untimely demands for information

Unsolicited proposals

and.....


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cont.... Probity Risk areas include

Conflicts of interests – real, perceived,

potential Most misunderstood issue

Gifts, benefits, corrupt payments, secret

commissions

Incl. Family, associates, relationships

Confused fiduciary duty (moral or legal)

Due diligence Financial viability

Related parties

Reputability

Supply chain sustainability

Environmental, industrial,& social

responsibility

and.....National Conference & Exhibition 2014

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Contract issues Selection fair and defensible

Consistency with requirements and

evaluation

Control of costs

Performance measures

Realistic, measurable, and managed

Potential for discrimination or limiting

competition

Cross-agency & Cross- Gov’t issues Failure to consult on related issues

Hidden agendas & agency power-play

and.....


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Possibly issues of user or community

consultation Inadequate appreciation if the essential

outcomes

Imbalanced or misinterpreted community

interests

Issues with technical advisers Not contemporaneous

Undue influence & bias

Not an ‘expert’

Unclear fiduciary duty

Over-reliance


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Probity risk assessment

The likelihood/ severity profiling often

doesn’t fit, due to: unpredictability

Human element

No common understanding of integrity

The risk consequence may not occur, due

to: Lack of transparency

Risk of retribution

Cost of redress

Lack of satisfying remedy

Ignorance of redress options

etc


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Questions ?

Next session we’ll examine a

classic Case Study


17 Chinese Walls or Trust George Sparks is the Head of the Information Technology Systems Branch of a

Government Department. The department has large and complex IT and

telecommunications systems and requirements. His responsibilities include the

tactical development and strategic planning of the department’s IT and

Telecoms systems state-wide; and cross-jurisdictional liaison on related

technologies. George knows the immediate and future requirements of the

department for information and communications technology requirements; and

also with Government’s IT strategies.

In his responsibilities, George meets regularly with industry and discusses

technology. He is well known by industry. George also is well respected in the

Agency.

One particular requirement of George’s department is to replace the outdated

security monitoring and alarm technology across some 4000 facilities across the

state. It is old technology, and creates problems with new facilities. As well, the

telecommunications carrier will no longer support connectivity to the old

system. George is well versed with the available technologies, products, solution

providers and options, and has his staff working on the development of a tender.

A major supplier in the market who is a strong contender for the new system

offers George a job with a package good enough to lure George from the Public

Service. George accepts the deal and submits his resignation on 4 week’s notice,

telling the Department of the company for which he intends to work.

What are the risks?National Conference & Exhibition 2014

18

Questions ?

Probity guides are available on:

www.roomtorun.com.au

[email protected]


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Thank you.

NATIONAL CONFERENCE &

EXHIBITION 2014

Platinum Sponsor

Silver

SponsorBronze Sponsor

Risk Manager of the Year Award Sponsor

Conference and Exhibition

Partners

probity is a pool with no shallow end

Leadership & Management