FINANCIAL MISCONDUCT POLICY

Transcription

1 FINANCIAL MISCONDUCT POLICY POLICY NO:

2 TABLE OF CONTENT LEGISLATIVE FRAMEWORK AND BEST PRACTICES... 4 PURPOSE... 4 DEFINITIONS, ACRONYMS AND ABBREVIATIONS... 4 SCOPE... 5 INVESTIGATION OF ALLEGED FINANCIAL MISCONDUCT... 5 CRIMINAL PROCEEDINGS... 6 REPORTING REQUIREMENTS... 7 DISCIPLINARY BOARD... 8 EXAMPLES OF FINANCIAL MISCONDUCT... 9 ADOPTION OF POLICY AVAILABILITY OF FINANCIAL MISCONDUCT POLICY ANNUAL REVIEW OF POLICY

3 AMENDMENT AND APPROVAL RECORD TITLE: FINANCIAL MISCONDUCT Policy Number 0144 Effective Date From date of approval Next Revision Date 2016 Reviewed - Approved 09/10/2015 ISSUE AMENDMENT DESCRIPTION ORIGINATOR APPROVED BY DATE 01 New Policy DHET College 09/10/2015 Council Department: Responsibility: Prepared and submitted by the Accounting Officer to Council Finance Accounting Officer Authorized by Council (Signed by Chairperson of Council) Implementation Date: From date of APPROVAL Date: 09/10/2015 Date: 09/10/2015 3

4 1. LEGISLATIVE FRAMEWORK AND BEST PRACTICES Key principles contained in the following legislation were applied to develop this policy: 1.1. CET Colleges Act No.16 of 2006, as amended (the Act ) (formerly the FET Act); 1.2. Public Finance Management Act, 1999 (Act No 1 of 1999, as amended by Act 29 of 1999) (PFMA); 1.3. National Treasury Regulations, March 2005; and 1.4. National Treasury Regulations Gazetted 30 November PURPOSE The purpose of this policy is to bring to both the College employees and Council members attention the requirements of the PFMA with regard to Financial Misconduct. 3. DEFINITIONS, ACRONYMS AND ABBREVIATIONS For the purpose of this policy, unless the context indicates otherwise, the following definitions, acronyms and abbreviations are set out for the terms indicated: 3.1. Accounting Officer is the College Principal Act is the CET Colleges Act No.16 of 2006, as amended College is a Public TVET College (formerly known as a FET College) Council - is the body of persons determined by the Act as Councillors who collectively govern the College Department ; DHET is the Department of Higher Education and Training Employee is any official, employed by the College, irrespective of grade, full-time or part-time, or Council, or Departmental appointed, or paid on a salaried or an hourly/daily individual basis. The definition for the purposes of this policy includes College interns, engaged on a contractual basis Financial management - In the public sector, financial management focuses on transparency, prioritisation of scarce resources and value for money, i.e. providing the best possible services with the available resources. 4

5 3.8. Financial Misconduct this is an act by an employee, that seeks to undermine public sector financial management Minister is the Minister of the Department of Higher Education and Training PFMA the Public Finance and Management Act Relevant treasury either Provincial or National Treasury TVET is Technical and Vocational Education and Training. 4. SCOPE This policy applies to all Employees and College Council members. 5. INVESTIGATION OF ALLEGED FINANCIAL MISCONDUCT [Paragraph 7.1 of Draft National Treasury Regulations in accordance with Sections 85( 1 ) (b), (c) and (d) of the PFMA] 5.1. If an employee is alleged to have committed financial misconduct, the Accounting Officer must ensure that an investigation is conducted into the matter and if confirmed, must ensure that a disciplinary hearing is held in accordance with the relevant prescripts and agreements regulating to the employment of employees in the College The Accounting Officer must ensure that the investigation referred to in paragraph 5.1 of this policy is instituted within thirty (30) days from the date of discovery of the alleged financial misconduct If the Accounting Officer of the College, is alleged to have committed financial misconduct, the relevant Treasury, as soon as it becomes aware of the alleged misconduct, must ensure that the Minister initiates an investigation into the matter, and if the allegations are confirmed, hold a disciplinary hearing in accordance with the relevant prescripts and agreements regulating the employment of the Accounting Officer The relevant Treasury may: 5

6 direct that a person or an employee other than an employee of the College conducts the investigation; or issue any reasonable requirement regarding the way in which the investigation should be performed If the Accounting Officer fails to institute an investigation into any alleged financial misconduct, as required in terms of paragraphs 5.1 and 5.2 of this policy, the relevant Treasury must, as soon as it becomes aware of such a failure, ensure that an investigation is initiated into the matter If after the investigation the allegations in paragraph 5.5 of this policy are confirmed, the relevant Treasury must ensure that a disciplinary hearing is held in accordance with the relevant prescripts and agreements regulating the employment of employees of the College When conducting any investigations in terms of paragraph 5.5 of this policy, the College must, in terms of section 41 of the PFMA, provide the relevant Treasury with any information that may be required as part of the investigation. 6. CRIMINAL PROCEEDINGS [Paragraph 7.2 of Draft National Treasury Regulations in accordance with Section ( 1 ) (f) and 86 of the PFMA] 6.1. If the investigation referred to in paragraphs 5.2, 5.3 and 5.5 of this policy confirms that the financial misconduct is of a criminal nature, the Accounting Officer must, within 7 days after finalisation of the investigation, ensure that a criminal charge is laid with the South African Police Service against the employee concerned The Accounting Officer must, within seven (7) days after laying a criminal charge of financial misconduct against any employee(s), inform the relevant treasury and the Auditor-General of such charges The Department or relevant Treasury may direct the College Council to lay criminal charges against any employee or person should the Accounting Officer fail to take appropriate action. 6

7 7. REPORTING REQUIREMENTS [Paragraph 7.3 of Draft National Treasury Regulations in accordance with Section 85( 1 ) (a) and (e) of the PFMA] 7.1. The Accounting Officer of the College must, within 30 days after finalisation of disciplinary proceedings, provide a report to the Council, the Department, the Department of Public Service and Administration and the Public Service Commission on the outcome of such proceedings, including: the name and rank of the employee against whom the proceedings were instituted; the charges, indicating the financial misconduct the employee is alleged to have committed; information on the amounts involved for each case; the findings; information on the amounts recovered for each case; any sanction imposed on the employee; and any further action to be taken against the employee, including criminal charges or civil proceedings The Accounting Officer of the College must report the information required in terms of paragraphs 7.1, to of this policy to the Department within the same time period prescribed in paragraph If the relevant Treasury institutes disciplinary proceedings, the Treasury must provide a report on the outcome of such proceedings to the Department, the Department of Public Service and Administration, and the Public Service Commission. The report must include the information as prescribed in paragraphs 7.1, to of this policy within the same time period as prescribed in paragraph Within thirty (30) days after the finalisation of any criminal proceedings, the Accounting Officer of the College must inform the Department of the outcome of such proceedings, including the sanction(s) as imposed by a court of law in respect of financial misconduct charges instituted against any employee in terms of section 86 of the PFMA. Information related to the outcome of the criminal proceedings and the related sanctions must also be provided to the following: relevant Treasury; Department of Public Service and Administration; and Public Service Commission. 7

8 7.3. If the relevant Treasury laid a criminal charge against an employee in terms of paragraph 6.1 of this policy, the treasury must provide the information as required in terms of paragraph 7.1 to the Department, the Department of Public Service and Administration, and the Public Service Commission By 28 February of each year, the Accounting Officer of the College must, in relation to the previous financial year, submit a schedule of information as listed in paragraphs to to the Department, the relevant Treasury, the Public Service Commission, and the Auditor-General: the outcome of any disciplinary proceedings and/or criminal charges taken against employees; the names and ranks of employees involved; information on the amounts involved for each case; information on the amounts recovered for each case; and sanctions and any further actions taken against these employees If an investigation into financial misconduct was conducted in terms of paragraph 5.5 of this policy, the relevant Treasury must provide the information required in paragraphs to of this policy to the Department, the Public Service Commission, and the Auditor General within the same time period provided for in paragraph The schedule referred to in paragraph 7.6 of this policy must be accompanied by a report which refers to any changes that the College has made to its systems of financial and risk management and internal control as a result of any investigation The report and schedule referred to in paragraphs and 7.6 of this policy respectively must be prepared in accordance with formats as prescribed by the National Treasury. 8. DISCIPLINARY BOARD [Paragraph 7.4 of Draft National Treasury Regulations in accordance with Section 85(1) (d) of the PFMA] The National Treasury will, by way of a Treasury Instruction, establish a list of persons with expertise in state finances or public accounting which will also describe the circumstances when such persons must form 8

9 part of a disciplinary board that hears a charge of financial misconduct. 9. EXAMPLES OF FINANCIAL MISCONDUCT (Source: Guide to AO s on PFMA) 9.1. As people rarely pay amounts unless a claim is made, an invoice or statement must be issued to request payment as soon as possible. This will facilitate the timely collection of revenue. Failure to do so may constitute financial misconduct Fiscal dumping (the transfer of funds late in the financial year) to conceal underspending may constitute financial misconduct. Being party to receiving such funds is also considered financial misconduct The Accounting Officer must ensure that all suspense accounts are cleared and correctly allocated to the relevant cost centres each month. Any uncleared items should be reported to the Deputy Principal Finance. A failure to clear suspense accounts each month will open the Accounting Officer to charges of financial misconduct The Accounting Officer must note that the Auditor-General will not complete poor quality financial statements submitted by the College. These will not only be referred back to the College, but will also constitute strong grounds for charges of financial misconduct A failure to make any progress, for example not attempting addressing qualifications in the audit report, will constitute grounds for financial misconduct Delays in submitting financial reports required by the Act or the Department which has strong sanctions for delays, are deemed financial misconduct The Accounting Officer delaying payment for whatever reason (deliberate or cash management) may not only open themselves to financial misconduct charges, but also may undermine government objectives such as promoting small, medium and microenterprises An Accounting Officer commits an act of financial misconduct by willfully or negligently failing to comply 9

10 with his/her general responsibilities, as well as specific responsibilities related to: Budgetary control; Reporting; The submission of information; The transfer of assets and liabilities; Unauthorised bank accounts; and Prevention of unauthorised, irregular or fruitless and wasteful expenditure An official commits financial misconduct by willfully or negligently failing to exercise a power or perform duties assigned to him or her by the Accounting Officer Where a trading entity suffers a deficit in trading, the Accounting Officer must investigate whether: The head of the trading entity mentioned any foreseeable potential over expenditure in the monthly reports and adopted appropriate measures to address the deficit and if so; Financial misconduct and criminal sanctions should be instituted. 10. ADOPTION OF POLICY This policy is effective from the date on which it is adopted by the Council. 11. AVAILABILITY OF FINANCIAL MISCONDUCT POLICY A copy of this policy and other relevant documentation should be made available on the College website. 12. ANNUAL REVIEW OF POLICY This policy will be subject to an annual review by College management to ensure its relevance. Colleges should forward any inputs and recommendations to the TVET Branch of DHET for possible consideration during the annual review process. Any recommended changes to the Financial Misconduct policy should be presented to the College Council for adoption. 10