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Legal Support Office, Legal Support Office, Bureau of Management Bureau of Management

(LSO/BOM)(LSO/BOM)

Administrative law Administrative law presentationpresentation

July 2015July 2015

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LSO/BOM

What the Administrative law or AL section does — All formal cases of misconduct and appeals against administrative decisions

— Including before the UN Dispute Tribunal

— Questions on specific issues such as personal status, benefits, recovery — Issues of privileges and immunities including visa, tax and arrest/detention— Policy and administrative issues

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LSO/BOM

Three important points: — We represent the administration— and our advice is for management — We cannot advise individual staff members on legal matters — We are the legal office for UNDP

— CO should not hire their own lawyers

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UNDP Legal Framework for Addressing Non-Compliance w/ UN Standards of

Conduct

• Replaces the 2004 Prescriptive Content on Accountability, Disciplinary Procedures and Measures

• First issued in September 2007, current version January 2010

• Main innovation: whistleblowing policy and protection against retaliation

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Reporting of allegations of wrongdoing

Internal Reporting Exceptional Disclosure outside Internal

Reporting Mechanisms Content of the Report Responsibilities of Managers Responsibilities of Whistleblowers

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Fact-Finding and Investigation

In addition to the Whistleblowers, there are three other parties involved in fact-finding and investigation, with their specific rights and responsibilities:

The Investigation Subjects The Investigation Participants The Investigators

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Due Process Rights of the Investigation Subject

To be informed of the nature of the allegations

To respond to the allegations To present countervailing evidence To have the assistance of counsel

when charged

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Protection against Retaliation

Protection against retaliation of a staff member who:

• Has reported allegations of wrongdoing in good faith

• Has cooperated with an audit or an investigation in good faith

Charge of misconduct against a staff member who retaliated against:

• A whistleblower• A person who cooperated with an audit or

an investigation

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How to file a complaint of retaliation:

Addressed to the Ethics Advisor

No later than 60 calendar days after the alleged act or threat of retaliation

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Role of the Ethics Advisor

Receive complaints of retaliation and make an initial review;

Refer the case to OAI for investigation if there is a credible case of retaliation or threat of retaliation;

If the investigation corroborates the allegations of retaliation, refer the case to LSO/BOM;

Make recommendations for appropriate measures to be taken;

Communicate with the complainants.

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Procedures Following Investigation

Three possible courses of action:1. Exoneration from allegations2. Work performance related issues3. Charges of misconduct

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Formal Grievance Resolution Staff members: - Administrative decision: - 1. Request for management evaluation; - 2. UN Dispute Tribunal (UNDT); - 3. UN Appeals Tribunal (UNAPT);

- Disciplinary decision: - 1. Response to charges; - 2. UNDT- 3. UNAPT

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UNV:

1. Request for review to the Executive Coordinator, UNV;

2. Request for review to the Administrator;

3. Arbitration

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The Informal System

Major reinforcement of the Ombudsman’s Office in terms of capacity and functions

Addition of a Mediation Division – in order to resolve disputes before litigation

Decentralized presences in all major duty stations and peacekeeping missions

The Funds and Programmes’ Ombudsman will be part of an integrated UN Ombudsman office

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The Formal System

The UNDT is a first-instance tribunal with full-time judges making binding decisions

Decentralized UNDTs in New York, Geneva and Nairobi

The UN Appeals Tribunal is a second-instance tribunal making binding decisions

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Privileges & Immunities

1) Application of privileges and immunities in general — origins — when it applies, how it applies

2) What to do in specific areas of privileges and immunities — arrest/detention by authorities — taxation — subpoena/summons and search

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Four Key Points to take-away

1) Privileges and immunities for official functions2) Privileges and immunities belong to the

organization— they are not a right of staff members

3) ONLY Secretary-General can decide if privileges and immunities apply and/or should be waived— this is NOT delegated to UNDP or the Administrator

4) Always seek an official response from the Ministry of Foreign Affairs— whatever the situation

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Privileges & Immunities

Sources of privileges and immunities — Charter Articles 100, 104 and 105— 1946 Convention on privileges and immunities — Bilateral agreements (SBAAs, exchanges of letters)— Custom or practice

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Privileges & Immunities

Privileges and immunities exist to preserve the independence and international character of the Organization and its staff members — What does that really mean?

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Refresher

4 Points to take away

1) privileges and immunities belong to the Organization— not rights or entitlements of staff members 2) Only the Secretary-General decides if privileges and immunities apply and if they should be waived— not delegated to UNDP3) Privileges and immunities apply for official acts/functions— not personal or private matters4) Privileges and immunities requires getting an official MFA response— protocol is important

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Arrest & Detention

Step by step guide

Step 1

— Establish the safety and condition of the staff member

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Arrest & Detention

Security and/or senior manager goes to place of detention and

a) requests accessb) requests copy of the charges and any police or incident report

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Arrest & Detention

If access to detained staff member is granteda) assess physical condition of the staff member

— if in need of medical attention, request to bring a doctorb) establish if staff member needs legal assistancec) establish if staff member has contacted spouse/familyd) confirm if staff member understands what he/she is arrested for

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Arrest & Detention

If access is denied, obtain charges or other information and request to return soon for access

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Arrest & Detention

Step 2— Resident Representative sends a Note Verbale (NV) to the Ministry of Foreign Affairs (MFA)

— “to obtain information to enable the Secretary-General to determine if

privileges and immunities are applicable”

— if access was denied, access should be requested

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Arrest & Detention

Step 3— Notify LSO/BOM with:

—any documents received from authorities

—NFR of visit to place of detention—physical condition of staff member—access to lawyer or spouse/family—if spouse/family has been notified—copy of the NV to the MFA and date

sent —other relevant circumstances

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Arrest & Detention

Step 4 — LSO/BOM will contact the Office of Legal Counsel

— we may revert to you if they have other questions/requests based on the information provided

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Arrest & Detention

From there....If privileges and immunities are applicable

— Legal Counsel will draft or advise on a NV asserting privileges and immunities

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Arrest & Detention

IMPORTANTIf privileges and immunities are NOT applicable

— details of the proceedings should be requested from the MFA— a representative from the Country

Office should witness the court proceedings

—facilitate legal representation or communication with spouse/family

— consider administrative status of staff member while trial is underway

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Some general principles1) All UNDP staff members are immune from taxation on their UN earnings

— this includes salary AND other payments (“emoluments”) such as DSA, hazard, dependency and education grant2) staff members are responsible for taxes on all non-UN earnings3) the staff assessment is NOT a tax

— the UN will not qualify the staff assessment as a tax for offset

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What to do when the Country Office or a staff member receives a demand for taxes on UN earnings?

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Step 1— Identify if other staff members have received the demand for taxes

IMPORTANT—staff members should NOT assume the Organization will resolve the matter

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Step 2— Contact other UN Organizations to ascertain if they or their staff have also received the demand

NOTE — If tax demand involves an imminent deadline, a NV should be sent to the taxing authority requesting an extension while the situation is clarified

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Step 3 — Contact LSO/BOM Provide the following:— summary of the issue— scan of the original tax demand letter— rough translation of the letter— indication which other UN organizations or staff members have received the letter and whether their legal offices have been alerted

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SUMMARY— UNDP staff members are immune from tax on their UN earnings and emoluments— they are NOT immune from tax on other sources of income— staff assessment is not considered a tax for purposes of offset against taxable income

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RULE 1• The premises of UNDP and its

documents are inviolable and immune from search, requisition or confiscation.

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Convention on privileges and immunities

Article II• SECTION 3. The premises of the United Nations

shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.

• SECTION 4. The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located.

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RULE 2 • Staff members are immune from legal

process for any words spoken or written on official acts

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What to do when receiving a summons or subpoena?

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Step 1• Do NOT sign anything confirming

receipt— any reception staff members should act similarly

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Step 2Send a copy to the Ministry of Foreign Affairs

witha NV

— indicating the document was received— recalling privileges and immunities provisions — requesting information

— this is especially important if there is subpoena to question a staff member we want to know what this is about

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Step 3• Inform LSO/BOM

Provide— copy of the summons or subpoena — a rough translation of the document— a summary if the surrounding facts are known— a copy of any NVs sent or received

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Step 4• If information is sought by a court that

can be disclosed (identification of staff members for example) or that it has been decided will be disclosed, disclosure should be ONLY to the MFA

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Step 5• For a subpoena of a staff member to

testify or police request to question— the following applies (upon consultation with LSO/BOM )a) clarification on the nature and scope of the questionsb) can the questions and the answers be given in written form ?

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Step 5 (cont’d)c) if not, can the question and answers occur on the UN premises in the presence of officials?d) if not, can the question and answers be given not under oathe) at the least the questioning should occur in the presence of a representative of the office (a senior manager or security)