We expect mayors, councillors and other office holders to act with integrity and autonomy: indeed, several rules to this end are laid down by law. But how do we assess integrity, and how much protection does the law offer? According to Max Theunisse, integrity law is a pillar of the democratic rule of law, although his research shows that there is still room for improvement, including in its application and explanation. Theunisse will receive his PhD at Radboud University on 28 February.
There are several laws aimed at ensuring the integrity of government decisions at the municipal level. And yet, in recent years, we have seen a lot of ambiguity and hassle in cases against the likes of Jos van Rey and Richard de Mos. Because when you look closely at the rules, you see that they sometimes fail to provide sufficient guidance, Theunisse explains. An unexpected decision by a municipality need not necessarily lack in integrity.
Vagueness of bias
"Article 2:4 of the General Administrative Law Act states that the administrative body shall perform its task ’without bias’. And Article 28 of the Municipalities Act stipulates that an office holder may not take part in a vote on a matter that concerns them personally," says Theunisse. "But bias and personal matters cannot always be established. Is a councillor with school-age children not allowed to have any opinion about primary schools within their municipality? And should a BBB parliamentarian with a background in agriculture not be allowed to vote on nitrogen measures?"
If a judge decides that an office holder has failed to act with integrity, the vote must be redone. Whereas in the past, courts often sided with the administrative body, Theunisse’s research shows that this has shifted in recent years. "And this change can happen fast. In 2007, the court issued a ruling about the Municipality of Putten. The Mayor and councillors of Putten had paid a working visit to a mink pelt auction in Copenhagen at the expense of the mink industry. Shortly afterwards, a company from this sector was granted a license. According to the Council of State, the ban on bias had not been violated in this case. But in 2021, a vote in Veere did have to be redone because an alderman had a business relationship with the permit applicant. And that while on paper this case looked far less problematic than the 2007 case."
Non-democratic
Conflicts of interest are not always easy to identify, explains Theunisse in his PhD thesis. "A register of ancillary activities makes sense, but you cannot, for example, expect an alderman to publish a list of all their friends." And yet, it is important to closely examine any potential violation of integrity. "As an office holder, you represent the will of the people. But if in the process you give yourself or a friend preferential treatment, you are not taking the people into account and are therefore acting non-democratically."
Theunisse warns that law cannot solve everything. "Integrity violations are difficult to trace. Therefore, we cannot help but also rely on the good will of office holders. And with insufficient political and public support, integrity law is also toothless." According to Theunisse, though, integrity law can play an important role in protecting integrity. "That is why I think it is good that the government still regularly takes steps to tighten integrity law. For example, a bill was recently published that seeks to prevent some forms of financial conflicts of interest by mayors and aldermen. Integrity law will remain in flux for some time to come."
