Proceso de Contratación del Personal

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Este artículo está tomado del ICT Regulation Toolkit Módulo 6-6-2-1


ICT Regulation Toolkit

└► Módulo 6: Aspectos Legales e Institucionales
└► Aspectos Organizativos e Institucionales de la Regulación
└► Estucturas Administrativas: Personal y Remuneración
└► Proceso de Contratación del Personal



6.6.2.1 Proceso de Contratación del Personal

6.6.2.1.1. Qualification Requirements for Heads of Regulatory Authorities

Most regulatory authorities are empowered by laws or regulations that provide some guidance as to the qualifications of the single regulator or collegial body members. Such qualifications vary, ranging from specific disciplines for collegial body members from various backgrounds to general requirements for relevant expertise. For example, members of the five-member Bulgarian Communications Regulation Commission (CRC) may be “only Bulgarian citizens with higher education and at least 5 years of service, of whom at least one is a qualified lawyer and one economist.”[1]

In India, by comparison, members of the TRAI must have special knowledge of or professional experience in telecommunications, industry, finance, accountancy, law, management or consumer affairs.[2] However, Indian law also requires that members appointed from within the Government previously must have held a high position in the Government.[3]

By requiring regulators or collegial body members to have experience in certain professional sectors, an effort is being made to ensure that the regulatory authority is led by individuals with expertise beyond simply telecommunications. Regulators face issues involving questions of law, finance, economics, trade, consumer affairs and security, in addition to telecommunications; thus, it is important that such expertise be reflected not only among the regulatory staff, but also among the regulator ’s leadership.

The difference between, for example, the Bulgarian and Indian approaches is that Bulgaria’s CRC will always (under current law) include at least one lawyer and one economist. One potential downside to this approach is that some countries may find it difficult to find appropriately qualified candidates for the specifically mandated positions. If, for example, the authorizing law requires the presence of an economist and a qualified economist is not available, there would be a vacancy among the regulatory authority leadership. This vacancy might not only manifest itself in a lack of economic expertise, but could also complicate decision-making by a collegial body that is a member short of its intended size and/or which lacks a tie-breaking vote. On the other hand, while the balance of areas of expertise among the members of India’s TRAI may fluctuate over time and lack certain areas of expertise depending on the composition of the regulatory authority leadership, it also provides for the flexibility to emphasize differing areas of expertise among the TRAI leadership as the Indian Government, as well as market conditions and other factors, influence regulatory priorities.

In addition to mandating specific areas of expertise that the regulator must reflect and setting general expertise qualifications, a third approach to determining regulatory authority or collegial body qualifications is to avoid specifying any requirements regarding expertise (e.g., Cameroon, Ecuador, Malaysia, and the United States)[4]. This approach provides greater flexibility than the Indian approach, by allowing the regulatory authority to be led by anyone appointed to the task. While this approach certainly provides the most flexibility to appoint regulators, it also opens the door to the possibility of appointing unqualified regulatory authority leaders. However, in practice, it is unlikely that a completely unqualified individual would be appointed to lead a regulatory authority. In cases where appointees are selected by – or at least recommended by – multiple branches of government, such as Ecuador and the United States, it is improbable that multiple stakeholders would approve of an unqualified appointee. Even in countries such as Cameroon and Malaysia, where the regulatory authority leadership is appointed by a single branch of government, the appointing authority runs the risk of not only negatively impacting the telecommunications sector, but also the political risk of being seen as having made an unwise appointment.

Table 6-5 provides an overview of the advantages and disadvantages of the different approaches discussed above.


Cuadro 6-5: Advantages and Disadvantages of Different Staffing Approaches
Approach Advantages Disadvantages
Require regulatory authority to have specific areas of expertise (e.g., one attorney and one economist). Ensures that certain areas of expertise will always be represented among the regulatory authority leadership. Because the requirement is written into law or regulation, regulatory authority has less flexibility to adjust its composition in response to changing regulatory needs or market structure.

Some countries may face difficulty finding qualified individuals to fill the mandated areas of expertise.

Require all regulatory authority leaders to demonstrate expertise in at least one of several fields. Ensures that all regulatory authority leaders are well-versed in at least one of several relevant fields.

By not mandating which fields must always be represented, regulatory authority retains some flexibility to emphasize certain areas of expertise as necessary.

Greater likelihood that regulatory authority leadership posts will not remain vacant due to absence of qualified individuals.

Creates potential for regulatory authority leadership to lack expertise in certain fields.
No specific expertise requirements for regulatory authority leadership. Provides the most flexibility to appoint regulatory authority leaders. Potential for appointment of unqualified regulatory authority leaders.


6.6.2.1.2. Appointment Process

The manner in which the head of the regulatory authority is appointed provides important insight into the independence of the regulator. Generally, if the head of a regulatory authority is appointed by a single branch of government it is less likely to exhibit independence than those who have the support of multiple branches of government. For example, a collegial body may feature members selected by different branches of the government, ensuring that no single branch has excessive influence over the regulatory authority. In Bulgaria, for example, the chair of the Commission for the Regulation of Communications is appointed by the Council of Ministers, the deputy chair and two other members are appointed by the National Assembly, and one member is appointed by the President of Bulgaria.[5]

In a 2000 report, the Organisation for Economic Cooperation and Development (OECD) found that the majority of its members were characterized by independent regulators that are led by an individual or individuals appointed by the president or minister upon the recommendation of the cabinet or minister.[6] In addition, the legislature may be involved in approving the members of the collegial body. For example, a nomination or appointment may be made by the head of government or a minister and then confirmed or approved by another government body (e.g., council of ministers, cabinet, or Senate). In the United States[7] and Nigeria,<[8] the commissioners are appointed by the president of the country, but require confirmation by the country’s Senate. In Portugal, the governing ministry (currently the Ministry of Public Works, Transportation and Communication) proposes board member candidates for the Autoridade Nacional de Comunicações (ICP-ANACOM) and their appointments are made official through a resolution issued by the Council of Ministers.[9]

An interesting example of the appointment process is Colombia, which has a rotating leadership. The Comisión de Regulación de Telecomunicaciones (CRT) is officially headed by the Minister of Communications, who serves as the President of the CRT. However, the CRT is also advised by a Committee of Commissioned Experts (Comité de Expertos Comisionados) selected by the President of Colombia. Each year, this panel of three experts elects one of its members to serve as the Executive Director of the CRT for a one-year term. As such, the President of the CRT (the Minister of Communications) is a member of the Government, and the Executive Director is an expert who serves at the will of the President of Colombia.[10]

In addition to appointments recommended by a cabinet or minister, regulatory authority leaders may be nominated by other industry stakeholders. In Turkey, for example, the Telecommunications Authority collegial body includes members who represent the telecommunications sector and consumers. The member representing the sector is selected from among candidates put forward by each operator who claims at least 10 per cent market share. The member representing consumers is selected from among candidates nominated by the Ministry of Industry and Commerce and the Turkish Association of Chambers and Exchanges.[11]

In the Dominican Republic, the head of the five member board is appointed by the central government (i.e., the president), but three members are nominated by various industry groups – one by the telecommunications service providers, two by the broadcasting service community (one nominated by the television networks and the other by the radio and cable television networks), and the last member is selected, based on their professional qualifications, to represent consumer interest groups. However, the central government ratifies all nominations.[12] In Uganda, seven commission members are appointed by the Minister with the approval of the cabinet. However, five of the board members are appointed based on a recommendation from each of the following institutions: the Institution of Professional Engineers, the Uganda Law Society, the Broadcasting Council (nominee must be a member of the council), and the remaining two members are well-respected professionals chosen from the public. Similarly, the legislation establishing the regulatory authority may require that the members of the board represent the different regions of the country (e.g., Nigeria[13]).

By comparison, regulatory authority heads that serve at the pleasure of the government – or the pleasure of one particular branch of the government – may be viewed as less independent because their job security is closely linked to one particular actor. Cases in which regulatory authority heads are appointed by a single or limited group of actors include Barbados[14] and Indonesia.[15] In Botswana, the Minister for Science, Communications and Technology appoints all five members of the Board of Directors, including the Chairperson of the Board.[16]

A variation of the view of such appointees as less independent is when they are appointed by a figure outside the government, such as a monarch. For example, the head of Morocco’s ANRT is appointed by a royal decree and can only be removed from office by another royal decree.[17] In the case of Morocco, this arrangement theoretically confers a greater degree of independence upon the ANRT’s director general with respect to the government, because the director general serves at the pleasure of the king, rather than the government or the prime minister. However, while the director general enjoys a degree of independence from the government, he may still be removed from office by the king at any time.


6.6.2.1.3. Fixed Terms

A large majority of countries mandate fixed terms for the heads or members of the board of the regulatory authority. Of the 85 countries that responded to the 2005 ITU Telecommunication Regulatory Survey, 75 indicated that their regulators had fixed terms, with the majority ranging between two and five years. The remaining 10 countries indicated that no fixed term of office was specified in their laws or regulations.[18] Similarly, a 2000 OECD report noted that most member states had fixed terms for their regulatory authority heads.[19] In some countries, like Bahrain, Panama and South Africa, the term can vary depending on the position the person holds within the authority.[20] In most countries, collegial body members can serve no more than two consecutive terms of office.

Individuals with fixed terms of office, particularly those that do not coincide with changes in government, are likely to feel more secure in their position and exhibit more independence than those individuals who serve at the pleasure of the government. Often the applicable law or regulation indicates whether individuals can be reappointed to a position after their term has expired. Much like term limits for legislators and heads of state, it is debatable whether limiting an individual’s tenure in a regulatory leadership position permits them more freedom to act without regard for reappointment or forces qualified individuals to give up their position due to an arbitrary regulatory or legislative provision.


6.2.1.4. Removal from Office

Just as important as the appointment process and criteria in establishing regulatory independence is the power of removal of regulatory heads from office. Legislation or regulation often specifies the cases in which a regulatory authority head or collegial body member may be removed from office (such as conflict of interest or failure to perform official duties). For example, in Canada, members of the Canadian Radio-television and Telecommunications Commission (CRTC) must be a Canadian citizen ordinarily resident in Canada and must not have any direct or indirect role in a telecommunications undertaking or business.[21] Similar conflict of interest prohibitions are common among telecommunications regulators, sometimes extending to cover the immediate family of the regulatory body official, as is the case in Hungary[22] and Jordan.[23] In India, members of the collegial regulatory body (the TRAI) can also be removed from office for conflict of interest reasons or for abuse of their position, although the Supreme Court must support such a dismissal.[24]

In addition, it is not uncommon for laws or regulations to specify that regulatory authority heads or collegial body members can be removed from office for failure to commit appropriate time to their duties. In Hungary, members of the Communications Regulatory Commission’s collegial body are to be removed from office if they are unable to carry out their duties continuously for more than 90 days.[25] In Jordan,[26] Sudan,[27] and Tanzania,[28] members of the collegial bodies can be removed from office for failure to attend a minimum number of meetings. Similar to conflict of interest or abuse of power rules, minimum attendance or participation rules increases the likelihood that regulatory authority leaders are carrying out the job to which they were appointed.

Some regulators also hold their agency leaders to a high moral standard. In India, for example, members of the TRAI can be removed from office as a result of offenses which are judged to involve “moral turpitude” or as a result of a loss of mental or physical function that prevents the member from fulfilling their duties.[29] Similar moral qualifications are found in the laws and regulations governing membership in the collegial bodies of telecommunications regulators in countries including Brazil,[30] Jordan,[31] and Sudan.[32]


6.6.2.1.5. Legal Status of Staff

In the majority of cases, the staff members of regulatory authorities are considered public employees (or other similar terms, such as civil servant or public servant), making their employment subject to the same rules applied to public employees throughout the government.

In some cases, the head(s) of the regulatory authority are also considered to be public employees for some or all purposes. For example, the Canadian Radio-Television and Telecommunications Commission Act specifically states that Commission members are public employees for purposes of superannuation.[33] All collegial body members and other employees of the TRAI in India are considered public employees.[34] Similarly, all members, officers, and employees of Singapore’s Infocomm Development Authority (IDA) are considered public servants for the purposes of Singapore’s penal code.[35] The Singapore penal code includes statutes relating to crimes carried out by public servants, as well as punishments for crimes carried out against public servants and contempt for the authority of public servants.[36] In cases such as Singapore, the explicit application of the penal code to all IDA personnel is in line with the conflict of interest and abuse of power rules previously discussed, stating that IDA members and staff are not immune to the laws of conduct applicable to other citizens.

However, not all regulatory authorities classify their employees as public employees. In Botswana, employees of the BTA are considered parastatal staff and are subject to the BTA Conditions of Service. No other civil service rules apply to BTA staff. In addition, as will be discussed below, the fact that BTA employees are not classified as public employees provides the regulatory authority with greater flexibility to offer competitive salaries and benefits. Although not subject to civil service regulations, BTA staff is protected from liability for actions taken in their professional capacities by principles of common law.[37] Similarly, Singapore IDA personnel (including collegial body members, officers and staff) are also protected from personal liability for actions taken in good faith or to carry out the provisions of the IDA Act.[38]

In some jurisdictions, such as India, the law specifically protects not only the personnel authority, but also extends protection to the federal government and the authority itself from liability for any actions carried out in good faith under the law or relevant regulations.[39] Despite the freedom conferred by such protections, some countries do permit the assignment of liability to regulatory authority personnel. For example, all personnel of Venezuela’s Comisión Nacional de Telecomunicaciones (National Telecommunications Commission - CONATEL) are jointly and severally liable under civil, penal and administrative law for the decisions undertaken by the regulator.[40] While such laws are likely intended to impress upon all regulatory personnel the importance of taking the appropriate regulatory actions, they are more likely to result in an overly conservative regulatory approach due to fear of personal liability among authority personnel.

Protection from individual liability is important to the functioning of a regulator, as it empowers regulatory personnel to make their best efforts in support of the regulator’s goals, or the duties assigned to the regulatory authority by applicable laws and regulations, without fear of being held personally liable for adverse consequences. This freedom is an important protection for employees (and incentive for potential employees) who have an interest in contributing to the effective regulation of the telecommunications sector, but who cannot afford the risk of personal liability for regulatory actions. Protection from liability for actions carried out on behalf of the regulatory authority is a specific protection afforded to regulatory personnel; however, in certain countries, such as Singapore, that protection does not confer immunity from all criminal laws and rules of conduct upon all regulatory authority personnel.

Notas

  1. Law of the Telecommunications, Prom. SG. 88/7 Oct 2003, amend. SG. 19/1, Chap. 3, Sect. I, Art. 20 (2), March 2005.
  2. The Telecom Regulatory Authority of India Act, 1997 (No. 24 of 1997), Chap. II, Section 4(b), as amended in 2000.
  3. The Telecom Regulatory Authority of India Act, 1997 (No. 24 of 1997), Chap. II, Section 4(b), as amended in 2000.
  4. International Telecommunication Union, Trends in Telecommunication Reform: Effective Regulation, 2002, at 124.
  5. Law of the Telecommunications, Prom. SG. 88/7 Oct 2003, amend. SG. 19/1, Chap. 3, Sect. I, Art. 20 (2), March 2005.
  6. Organisation for Economic Co-operation and Development, Working Party on Telecommunication and Information Services Policies, Telecommunications Regulations: Institutional Structures and Responsibilities, May 2000, at 18.
  7. U.S. Federal Communications Commission, About the FCC: A Consumer Guide to Our Organization, Functions and Procedures, at 2, available at http://www.fcc.gov/aboutus.html
  8. Nigerian Communications Act, 2003, Part 2, Section 8.
  9. Statutes of ICP (Autoridade Nacional de Comunicações) Decree-Law 3009, December 2001.
  10. Comisión de Regulación de Telecomunicaciones, Resolution 274 of 2000, available at http://www.crt.gov.co/Documentos/Normatividad/ResolucionesCRT/.pdf
  11. Turkey, Amending Law No. 4502, Article 17.
  12. Dominican Republic Ley General de Telecomunicaciones, No. 153-98 Capitulo XII, Titulo II.
  13. Nigerian Communications Act, 2003, Part 2, Section 8.
  14. International Telecommunication Union, Telecommunication Regulatory Survey: Barbados, 2004.
  15. International Telecommunication Union, Telecommunication Regulatory Survey: Barbados, 2004.
  16. Botswana Telecommunications (Amendment) Act, 2004, available at http://www.bta.org.bw/publications.html
  17. ITU Effective Regulation Case Study: Morocco (2001), at 22.
  18. ITU World Telecommunication Regulatory Survey Database, 2005.
  19. Organisation for Economic Co-operation and Development, Working Party on Telecommunication and Information Services Policies, Telecommunications Regulations: Institutional Structures and Responsibilities, May 2000, at 18.
  20. Bahrain Telecommunications Law, 2002; Panama Ley 26 creating the Panamanian Regulatory Authority for Public Services, 1996; and ICASA Act (2000).
  21. Canadian Radio-Television and Telecommunications Commission Act, R.S. 1985, c. C-22, 5(1).
  22. Hungary, Act C of 2003, Article 14 (7).
  23. Jordan Telecommunications Law No. 13 of 1995, as amended, Article 9 (a) (1).
  24. The Telecom Regulatory Authority of India Act, 1997 (No. 24 of 1997), Chap. II, Section 7, as amended by The Telecom Regulatory Authority of India (Amendment) Ordinance, 2000 (No. 2 of 2000).
  25. Hungary, Act C of 2003, Article 15 (4) (a).
  26. Hungary, Act C of 2003, Article 15 (4) (a).
  27. Hungary, Act C of 2003, Article 15 (4) (a).
  28. Tanzania Communications Regulatory Authority Act No. 12 of 2003, Section 12 (1) (e).
  29. The Telecom Regulatory Authority of India Act, 1997 (No. 24 of 1997), Chap. II, Section 7.
  30. Brazil Telecommunications Law No. 9.472, Title III, Chapter I, 16 July 1997.
  31. Jordan Telecommunications Law No. 13 of 1995, as amended, Article 10 (a) (6).
  32. Sudan National Telecommunications Council Act 1994, as amended, Chap. III (11) (b).
  33. Canadian Radio-Television and Telecommunications Commission Act, R.S. 1985, c. C-22, 5.
  34. The Telecom Regulatory Authority of India Act, 1997 (No. 24 of 1997), Chap. VI, Section 26.
  35. Infocomm Development Authority of Singapore Act (Cap. 137A), Act 41 of 1999, Sec. 12.
  36. Singapore Penal Code (Cap. 224), Chapter V, Chapter VI and Chapter VIII, Sections 116, 119, 128, 129, 152.
  37. Singapore Penal Code (Cap. 224), Chapter V, Chapter VI and Chapter VIII, Sections 116, 119, 128, 129, 152.
  38. Infocomm Development Authority of Singapore Act (Cap. 137A), Act. 41 of 1999, Sec. 11.
  39. The Telecom Regulatory Authority of India Act, 1997 (No. 24 of 1997), Chap. VI, Section 28.
  40. Ley Orgánica de Telecomunicaciones, Gaceta Oficial N° 36,970 (General Telecommunications Law) (2000) (Venezuela).