1. The Principles of Morality and Transparency in the Third Sector Rui Teixeira Santos1 We are in an especially dangerous period of the economic and social history of themost developed countries, where economic and social adjustments are being made atthe same time as we define geostrategic rebalancing at a global level, which forces usto a special reflection on the mechanisms of good government.The social thinker of the nineteenth century Saint Simon divided history into organicperiods and critical periods, which followed from the beginning of the historyexplaining the progress. The first corresponded to times of high moral profile andrespect for authority and the latter corresponded to periods of moral anxiety anddefiance of authority. We are clearly in a new "critical period" in the culture andliterature as already noticed in the 70s by Robert Nisbert2 in his critique of whathappened in universities and in Pop Art in the 60s, with regard to the nihilism andemptiness of existentialism and mediocrity culture.Also in the financial sector the entire mismatch to the order established by BrettonHoods enters this critical paradigm and the dysfunction itself, we also noticed today,in the Third Sectors crisis, the search for new means of financing, but mainly thesearch for trust and credibility. There are lots of resources for the Third Sector in a practice that it is also marking thenew philanthropists of the BRICS.The great philanthropists no longer leave their fortunes in will to build museums filledwith useless objects and of doubtful criterion. Today they give the illegitimate parts oftheir wills to charitable and social causes or deliver them to the care of foundations orNGOs dedicated to the human and scientific development.It is in times of crisis - those critical periods - like this one that we make the choicesfor the following years, but also create the great myths and great falsehoods thatfurther trigger new and bigger problems. The third sector is not the answer toeverything, nor was it the "good savage", in the ingenuity described by theRousseauvians, or the "young" with all the virtues and capacity for innovation andaccess to new technologies that in the eighties had excluded the older from any usefulproductive activity.And above all, the solidarity sector or company with a social conscience implies trustand must be under a media scandal that could demonstrate the ever-possiblemisalignment of objectives in the joint action of some entity and thus affect all.And it is not worth considering the moral superiority of the Third Sector by itsconscience and volunteering, because previous social responses proved to be false andcaused severe humanitarian disasters. 1 Prof. Rui Teixeira Santos is the Director of Escola de Administração de Lisboa, Associate Professor of the Faculty of Law of Universidade Lusófona, Lisboa and Director of the Master in Social Administration, ULHT. 2 Robert Alexander Nisbet (September 30, 1913, Los Angeles – September 9, 1996, Washington D.C.) was a conservative American sociologist, professor at the University of California, Berkeley, Vice-‐Chancellor at the University of California, Riverside and as the Albert Schweitzer Professor at Columbia University.
2. This was the case of the socialist response unmasked by Ludwig von Mises long timeago. The inevitable failure of the centralized government (planning) of the economy -despite some technological achievements - cost millions of deaths in one of thegreatest crimes against humanity that a certain youth of the mid-twentieth century didnot want to see.We realized with the crisis of 1929/1932 that the market has flaws and the Keynesiansbelieved that public initiative, albeit occasional, could be the answer 3, actually in thesame way as the economic advisers of Adolf Hitler.We realized later in the 70s of the twentieth century, that Keynesianism was purelyand simply false and that it was possible to exist both recession and inflation -whenever it had originated in the offer. Stagflation killed the interventionist dreams ofKeynesianism in the 70s in the same way that this crisis proves that there is a limit topublic investment through borrowing and that Keynes did not consider: the fact thatthe creditors do not want to lend more money to a state already indebted.We now see again as the public intervention during this crisis only increased thepublic deficits and exacerbated the problem of the sustainability of the euro and thedollar, making the financial and banking crisis in a sovereign debt crisis andeconomic recession, increasing inequality and poverty.The failure of the Social Welfare State in the seventies of the last century gave waynot only to Keynesian solutions, but also to realize that it is at the microeconomiclevel that we can conduct a Schumpeterian creative revolution4. A true revolution thatrepresents in time and space a qualitative evolution that is not comparable and of adifferent order from those that are observed in the daily economic life, which raisesnew analytical problems, but points to the greater utility of knowledge of theeconomic history and moral values in the face of economic models in theunderstanding of what we now see.The moral problem of monetarism is that everything that is not efficient must die andthus we create an underemployment equilibrium 5, which requires social and politicalresponses. 3 J. M. Keynes, Teoria geral do emprego, do juro e da Moeda, Relógio de Agua, Lisboa 2010 4 According to Schumpeter, in the economy of the circular flow, the economic life passes monotonously, each good produced finds its market, period after period. This, however, does not mean that economic growth does not exist. We admit productivity increases resulting from improvements in the work process and continuous technological changes in the production function. However, this technological base is already known, which was built over time in the economys productive matrix. Economic agents cling to the established and the adjustments to the changes occur in familiar surroundings of predictable trajectory. In these circumstances, according to Schumpeter, substantial economic changes cannot come from the circular flow, because the reproduction of the system is linked to business made in previous periods. The question for Schumpeter is that the transformative innovations cannot be predicted ex ante. However, these types of innovations that originate in the system itself, when introduced in the economic activity, produce changes that are qualitatively different from everyday changes, leading to the disruption of the balance achieved in the circular flow. Thus, the economic evolution is characterized by ruptures and discontinuities with the present situation and is due to the introduction of novelties in the way the system works. (http://www.ihu.unisinos.br/uploads/publicacoes/edicoes/1158329722.22pdf.pdf, p. 4. Accessed on 15 August de 2011) 5 Underemployment Equilibrium Mean a condition where underemployment in an economy is persistently above the norm and has entered an equilibrium state. This, in turn, is a result of the unemployment rate being consistently above the natural rate of unemployment or non-‐accelerating inflation rate of unemployment (NAIRU) due to sustained economic weakness. Underemployment in an economy implies that workers have to settle for jobs that require less skill than they possess, or that offer lower wages or fewer hours than they would like. The degree of underemployment is dictated by the strength (or lack thereof) of the job market, and tends to rise when the economy and employment are weak. Advocates of Keynesian economics suggest that a solution to an underemployment equilibrium state is through deficit spending and monetary policy to stimulate the
3. The State is not the answer to underemployment and there are political limits tostructural reforms and further consolidation. To intend to adopt the model of Chinesebusiness in Europe to prevent the relocation of a company, as it is already starting tohappen in Italy or in Galicia, in the fashion sector6, puts at risk the legal framework oflabor and the tax models that support the post-welfare state welfare state - that manystill advocate in Europe – but it opens the way for what I have called the GuaranteeSocial State or Guarantee State7, in which the economic model is more liberal and lessregulated, while the State, which is no longer producer and dealer, is committed to itsessential economic function of fighting poverty, guaranteeing everyone access tobasic social rights.The problem is that before this underemployment and especially in the face ofunequal situations in the market - which hampers competition - societys response wassometimes the one from the Social and Solidarity Sector, to secure employment oreven to respond to solidarity imperatives that States cannot perform efficiently. Andthis is the Third Sector we are now talking about with its centrality in man8.The great moral advantage of capitalism is that all economic players are on an equalfooting, so there is the possibility of competition in the price formation. Somehow thebalance of the market has the moral premise of equality and freedom of the economicplayers.But when the State tries to intervene, unbalancing the market or correcting its faults,what always happens is that it improves the condition of the wealthier, increasingpoverty and it becomes indebted, it increases taxes and causes unequal competition infundraising. But above all, as we explained in our communication of last year inBarcelona, at the Workshop of the International Year for Combating Poverty9, itincreases poverty and misaligns the initial objectives of its intervention due to the lackof transparency and probity.On the other hand, the lack of market economy and so many times of minimumconditions of competition, safety or stability 10, a situation which is far more obviousnow in the economic crisis in the developed world, because of the lack of certainproduction factors (including capital or legal reinforcement of work contract), createsnot only opportunities but demands to solidarity economy as the only possibleresponse. For example, in supporting the elderly or in combating exclusion andpoverty, where the SSPI are the best and sometimes the only stable solution in manymarkets where the market economy is unable to survive and for example wherevolunteering is necessary.And now if the Solidarity Economy gains a new dimension in the crisis - while it isalso in crisis because of the reduction of its financial resources – it is important to paygreater attention to the mechanisms of formation of the solidarity decision and itsgood government.Why? economy. (http://www.investopedia.com/terms/u/underemployment-‐equilibrium.asp#ixzz1V6oQVr89, accessed on 15 August 2011) 6 It may be the case of the alleged slavery in a factory working for Zara in Brazil is just that: the prevalence of the Chinese model, in the case with Pakistani manpower installed in S. Paulo, Brazil. 7 September 2009, Post Graduation Public Administration and Economic Public Law, ULHT, Lisboa. 8 "Economy does not just work as a commercial self-‐regulation, but requires an ethical reason to work for man” (Benedict XVI, Madrid, 18 August 2011, in the World Youth Conference) or Pope John Paul II, quoted by Pope Benedict XIV: "Man must be the centre of economy”. 9 Santos, Rui Teixeira, Poverty and Corruption, Barcelona 2010 10 As it also happens in Africa, where there is no market due to the lack of competitive conditions, where the response of the social economy may be the only possible response, in particular by seeking to obtain results without the requirement of efficiency or profit, as in the capitalist economy or market economy.
4. - Due to a question of trust without which the sector does not have the resources. Andhere it is important to strengthen the behavioral mechanisms so that the social andsolidarity ethics is not just a vague principle without content.The Solidarity Economy does not have the natural controls of capitalism - where nosingle company controls the price - or the regulatory mechanisms to correct marketfailures. And so, today more than ever, it is important to take on ethical imperatives inthe social administration.We are in the year zero of Solidarity Ethics the same way we had to go through theneo-monetarist sweep of the eighties of the last century to introduce in the universityfirst cycle in Management the course " Ethics in Business " and realize that there arepolitical and social values besides the economic efficiency and that these values implya cost of inefficiency in the economy, either in taxes or in natural unemployment, butthey meet the higher economic goal of the State to combat poverty and inequality thatis, they perform the purpose of the "common good".But above all, in the social response to the development of the poorest regions of theplanet, as an economic sector that adapts to the lack of competitive market, throughthe participatory and egalitarian government between the members and that canreplace profit by the most efficient achievement of the social purpose that is intended,therefore addressing failures of the Welfare State or, failing that, responding to thefailures of the society itself in terms of growth and human development, the Socialand Solidarity Sector must abide its performance by the rules and values, which stemfrom the nature of the social and solidarity intervention, but also from the law andpublic order. It is the old quarrel of positivism.The philosophical question is not new: when Antigone defies King Creon, her uncle,to go and bury her brother, she knew that she was challenging the law, but that wouldhonor the son of her mother and her family name. It was the Natural Law prior to thePositive Law itself.Thus we have a moral imperative of transparency resulting from the Law and PublicOrder and, on the other hand, a requirement of the very nature of things and that in thecurrent economic and financial framework is an assumption of the Third Sector(pragmatism).The content of the principle implies that the social agent and the institution of theThird Sector as a human being or a legal person respectively, endowed with the legalcapacity to act, must necessarily distinguish Good from Evil, the honest from thedishonest.And when acting, they cannot disregard the ethical element in their behavior. So notonly they will have to decide between legal and illegal, just and unjust, profitable andnot profitable, sustainable and unsustainable, inefficient and efficient, convenient andinconvenient, opportune and inopportune, but also between honest and dishonest.Due to considerations of law and morality, the actions of the solidarity sector will notonly have to obey the law but also the ethics of the institution itself, because noteverything that is legal is honest, as the Romans said - non omne quod licet honestumest. The common morality is imposed on man for his outward conduct; the moralsolidarity is imposed on the agent of the Third Sector and its institutions for itsinternal conduct, as required by each institution and the purpose of its action: thecommon good.Let us start by the law.First, we must establish the autonomy itself of the sector: the Third Sector is the onethat is not public and it not private, in the conventional sense of those expressions; butkeeps a relationship with both; in that it derives its own identity from the combination
5. between the latter’s method and the former’s purpose. That is, the Third Sector iscomposed of organizations of "private" nature (without the goal of profit) dedicated toachieving social or public purposes, although not a member of the government (Publicadministration). From the legal point of view, we have not chosen the thesis of a thirdlaw that is not justified here either by the definition of Social Law as a law withscientific autonomy alongside the classic divisions between public and private. TheSocial Law with autonomy, undoubtedly assumed, for example, in Portugal or inBrazil since the end of the last century, but learning from the constitutionalrecognition of self-management, co-management and cooperative and social law,concepts that we get from the utopian socialism and the Catholic Churchs socialdoctrine that assumes them since the nineteenth century, does not mean it has anautonomous body of distinctive principles of Public Law and Private but we believethat with regard to the purposes the principles of Public Law apply and that for theinternal organization additionally predominate the principles of Private Law.Secondly, there are general principles of law applicable to all the families of PublicLaw and Private Law.In the economy of our communication it is important to note that they are namely inany State principles of Economic Public Law applicable to any of the economicsectors that coexist in a legal system, the Principle of Legality and Social Equality.The principles of Legality and Social Equality include the Principle of SocialMorality. There are even constitutional laws, like the German 11 or the Brazilian 12that expressly include the very Principle of Morality for the Public Administration asan autonomous principle of constitutional law at the head of the conception of statelaw. And in this way the Principle of Morality cannot be absent from the regulatoryright of the social economy, a fortiori, by the Economic Public Law.As a principle of the Economic Public Law, the Principle of Morality is present inthe regulatory law as a general principle of law and in particular in the RegulatoryLaw of the Social and Solidarity Sector, as expressly happens with the recent Spanishlegislation of the sector as the one that is being prepared in Portugal.On the other hand, the very idea of the third sector or solidarity sector often implies inthe face of the creativity of private solutions, the absence of the regulator and themarket with its limits, implying therefore a greater demand for public accountability,common sense in resource management and above all a clear moral distinctionbetween good and evil as necessary limit.They are located in the Third Sector, private organizations with public objectives,occupying an intermediate position, enabling them to provide services of socialinterest without the limitations of the State, not always preventable, and the ambitionsof the market, often unacceptable13. And in this aspect, the Social Law cannot be 11 The German Basic Law (Federal Constitution) is the legal and political basis of the Federal Republic of Germany. After being approved by the Parliamentary Council, the Basic Law came into force on 23 May, 1949. It was designed originally as a temporary solution until a single Constitution for all of Germany was prepared. When the German Democratic Republic (GDR) became part of the area of validity of the Basic Law on 3 October 1990, this became the Constitution of all Germany. It establishes expressed rules of equal treatment of citizens by the Public Administration in Art. 33 °, and the responsibility of workers is provided for in Art. 34 º. 12 The principle of morality, with the advent of the Constitutional Charter of 1988 ascended for the first time in our positive law to a constitutional principle, under Article 37, caput, which establishes guidelines for the public administration. Also Article 5, paragraph LXXIII of the Federal Constitution provides for the possibility of annulment of acts that may harm the administrative morality. 13Maria das Graças Rodrigues de Paula, TERCEIRO SETOR: AS FUNDAÇÕES EDUCACIONAIS COMO SECTOR SOLIDÁRIO, Econ. Pesqui., Araçatuba, v.S, n.S, p107-‐127, ago. 2006
6. restrictive in the sense that the only thing that is allowed is what is not forbidden, butis based on the creativity and innovation in the social sector. In its origin there is theprinciple enshrined in our Constitutional Law of the Free Initiative of the PrivateSector and the Solidarity Sector14.In general since the end of the last century that the tax reforms have openedpossibilities for the third sector to build from their own initiatives and taking intoaccount their diversity, more agile efficient and creative mechanisms for obtainingfunding (public and private social funds, for example).If the third sector remained always dependent only on the State (it would be what wecall the Fourth Sector that fulfills public functions or provides public goods, withpublic resources and private management) it would never acquire the politicalmajority recognized by the constitutional legitimacy in the nineteenth century. Andtherefore, it could never fulfill its strategic or ideological role of space for theemergence of social control mechanisms of the State and social orientation of themarket.In addition to the tax reforms in some states and the construction of a new financingsystem for the third sector, there will be, for example in Portugal, people who thinkabout the change of the regime of the work contract obligations and mainly thepayments for the Social Security.These civil society organizations are not companies and they cannot be treated assuch, especially in less developed countries, since international donors do notrecognize such obligations and are unwilling to afford them.But in all these cases we create special rights, exceptions that involve a clearaccountability and public scrutiny of the destiny of resources and above all - what hasbeen worrying us lately - the criteria for measuring the efficiency of the sector.We all know stories of NGOs or even Cooperatives and Foundations whosemisappropriation of funds and the lack of transparency in the procurement of suppliesand social services of third parties or the nepotism in hiring or appointing leadersaffect competition and damage the image of the Third Sector.The Principle of Social Morality expressed or not expressed in the architecture ofConstitutional Law of any State shapes the entire solidarity economic activity,including the Principle of Fairness - that is the principle of ensuring transparency ofactions and activities of the social economy institutions.In Portugal this principle is guaranteed by the jurisdictional tutelage of the Court ofAuditors concerning the legality, purpose and efficiency of public resources given tothe Third Sector, and the Penal Code through the criminalization of immoral andillegal acts such as economic participation in business, crimes against property (such http://www.feata.edu.br/downloads/revistas/economiaepesquisa/v8_artigo07_terceiro.pdf (accessed on 15 August 2011) 14In Portuguese law, Private and Cooperative initiative includes the right to create companies (having as its basic content the fundamental right to property), while self-‐management is fundamentally a management (not ownership) right. On the other hand: The private initiative may be excluded from certain basic sectors (Article 86., Paragraph 3 of the CRP), the Cooperative has a general scope, although it can legally be limited, and the Self-‐managed only exists in the situations described in the law, i.e., it is subject to law. It is important to mention that as all these rights are guaranteed, while negative rights or defense rights, they are of a similar nature to the DLG and because of that, they benefit from the mentioned scheme, under Art. 17. º. It follows that CRP considers the Private and Social Economic Initiative as a Fundamental Right and not as a mere objective principle of the economic organization (No. 1).
7. as theft, robbery, extortion, damage, etc.) crimes against the Public Administration oragainst the Public Finances, etc..Most legal frameworks must proceed to the criminalization of the corruption in theThird Sector organizations, particularly the Cooperative and foundations sector andobviously the NGOs where cases of illicit enrichment are often well known and evencause social alarm.We should note that, for example, in the Portuguese legal framework, whichincorporates all the recommendations of GRECO / OECD, there is only a crime in theactive and passive corruption in the Public Administration, in private or ininternational organizations and in sports, and as it is a principle of Criminal Law, theabsence of analogy, one cannot extend the crime to the Social Sector.The architecture of a strong protection of honesty and integrity in socialadministration will only be guaranteed if we proceed with, besides the criminalizationof corruption, the criminalization of illicit enrichment, which can have civilconsequences, but incomprehensibly, not in Portugal, Spain or Brazil has criminalconsequences regarding the guarantee of transparency in the social sector we are stillvery backward concerning the Public Administration and the Private Sector, or eveninternational organizations.Therefore, I propose to legislate to: a) The criminalization of active and passive corruption and embezzlement in a Third Sector entity or by agent or officer of the Third Sector; b) Obligation to publish on the official website of the entity the budgets of the revenues and expenditure of the Social Sector entities duly approved before the start of the fiscal year; The budgets should include the economic classification of the revenues and the functional economic and organizational classification of the expenses and must be approved by the assembly of cooperative members or by the General Council of the solidarity organization or its trustees in the case of a Foundation. c) Obligation to publish the profit and loss account and the balance sheet and social balance on the official online site of the entity until the third month of the year following the fiscal year, including the following elements: a) Total number of people supported or cases of intervention (with characterization) b) Total number of paid workers (number of people or full-time equivalent) c) Total number of volunteer workers (number of workers and its full-time equivalent) d) Total value of remunerations distributed e) Total values of other operating expenses f) Total economic value of volunteer work g) Total value of gross operating surplus h) Total gross value added i) Structure of income a. Sales of goods and services b. Contributions of members c. Donations and patronage d. Public financing d) Strengthening of the supervision of revenue and expenditure in the Social Sector, including the requirement of certification of accounts by Chartered Accountants or Chartered Auditors. In the case of very small organizations or those that are civil or even informal companies the supervision actions should
8. be self-regulating and aim at the good practices and improvement of management instead of punishment. e) All organizations should justify in an online report all the expenses made and to be made in the previous year before approving the new budget for the following year. f) All the Social Sector entities should be identified in a national record published online and all the fund-raising operations should be registered, whenever possible with the issuance of invoice. g) To identify in the same public record all public donations and all the donations registered with tax purposes (patronage and other tax benefits) by companies or individuals. h) The same for all public-social partnerships, in particular in the areas of health, education, sports, child support and social solidarity. i) Identification in a central online record of the employees of one or more organizations of the Third Sector and that are thereby paid by one or more solidarity entity. j) Code of conduct or law of incompatibilities that expressly prohibits that those who collaborate in the solidarity sector cannot be at the same time an officer or director in private companies or Public Direct, Indirect or Independent Administration bodies that compete or relate directly or indirectly in the economic and social sector in which the solidarity entity acts. k) The creation of the obligation of all board members and directors of solidarity entities to publish in the solidarity entity’s official website their assets and their tax return every year. (Some people advocate the accountability at the end of the mandates, but that is close to the legal concept of Intrusion that existed in the Philippine Ordinations and that was terminated by modern law l) The monitoring and study of new forms of social intervention whenever there is public funding in the Solidarity Sector and in public-social partnerships, namely the new corporate forms of public foundations with private social revenue (and with the corresponding administrative and financial autonomy), the private foundations with the appointment of public managers, public and municipal cooperatives etc. (These institutions came to greatly extend the dependence of the Social Sector on political clienteles and they are creating a true promiscuity between the political agents and the traditional social agents). m) The obligation of public tenders - with early publication of the contract and following the requirements of public procurement - to contract in the social sector above a certain amount, the direct adjudication must be justified, with publication of the adjudication and the justification in the official website of the social entity, under penalty of nullity. n) Create a self-regulatory entity of the Third Sector to monitor the application of good practices and good governance and monitor the efficiency of the various entities of the Third Sector through, for example, a barometer of the management efficiency of the Third Sector and a rating of the effectiveness of the Social Economy entities that allow donors to have a quick and certified assessment / information of the entities to which they will make funds available. (And right information in real time is essential to the trust that the sector needs to maintain its ability to finance with private funds). o) Establishment of a Code of Social Practice with the good practices of the sector and that includes the requirement for a complaints book.All this has to be done - obviously without involving bureaucracy or unnecessary
9. complexity the public controllers like so much - under penalty of the sector losing itscredibility and Social Economy is just a propaganda tool and not a trust certificate.But also for reasons of pragmatism and sustainability: without this the SolidaritySector will fall into discredit that characterizes nowadays the State or the Bankingsector.Lisbon, 18 August 2011
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