Public Ethics Law: Regime for presents made to Public Officers

On November 18, 2016 the Executive Branch issued Decree No. 1179/2017 (the “Decree”) (published on the Official Gazette on November 21, 2016), which implements article 18 of the Public Ethics Law – Law No. 25,188 (the “Law”). This article establishes that “Public Officers cannot receive presents, gifts or donations, assets or services as a result of their work or in the performance of their public duties…”, and adds that “in the case that the presents are courtesy or diplomatic custom, the applicable authority will regulate its registration and establish in which cases said assets will be incorporated into the State’s assets, either to be destined to health, social action and education, or to historical and cultural heritage.”

In the first place, the Decree creates a “Register of Presents made to Public Officers” and a “Register of Trips financed by third parties” which will operate under the scope of the Anti-Corruption Office, the applicable authority, of the Argentine Ministry of Justice and Human Rights. Information from these registers is found on the Secretary’s Office website.

The Decree establishes as a general principle that any individual who performs governmental functions is forbidden from receiving presents, gifts or donations of assets or services, including the free use of them, as a result of their work or in the performance of their public duties. Under the Decree, a gift given as a result of work or in the performance of public duties means a gift which would not have been given if the individual was not a public officer. However, there are a few exceptions to this prohibition:

• Presents made by way of diplomatic custom, that is, recognitions received by governments.
• Presents received for courtesy, provided they are commonly made.

These presents must be registered in the “Register of Presents made to Public Officers” and cannot come from individuals or entities that:

• perform activities regulated or audited by the agency where the public officer performs his/her duties
• manage or exploit concessions, authorizations, privileges or exemptions granted by the agency or body in which the public officer performs his/her duties
• are contractors or suppliers of works, goods or services for the agency or body in which the public officer performs his/her duties
• make decisions or actions on behalf of the agency where the officer performs his/her duties
• have interests that may be significantly affected by a decision, action, delay or omission from the agency where the officer performs his/her duties.

In addition, presents must be incorporated into the State’s assets in the event that, at the moment of the delivery, (i) the assets´ market value is greater than $4.000, as established by the Decree; or  (ii) the asset´s institutional value represents the relation with the State or organism who gave it and is received as diplomatic custom.

With regard to payments of travel expenses financed by third parties, the Decree establishes that public officers may accept them only under certain circumstances:

• For the organization of conferences, courses or academic or cultural activities
• When payment does not arise from governments, entities, individuals or agencies who are forbidden from giving gifts to public officers
• When their acceptance is neither incompatible with public officers’ functions nor forbidden by special rules.

The public officers that receive these benefits must register them in the “Register of Trip financed by third parties”.

Finally, the Decree entered into force 60 days after the publication in the Official Gazette.