Not all top government jobs need revolving door ban, says public service chief

New revolving door rules for the Maltese civil service do not include all top jobs because not all CEOs have a supervisory or inspectorate’s role, the Principal Permanent Secretary has said.

The new rules set out that, for two years after leaving or retiring from the public service, employees who held public positions in regulatory or inspectorate functions are prohibited from joining a private company or NGO which they had dealt with during the last five years in their public job.

The rules were issued by the Office of the Principal Permanent Secretary in a directive on 18 June.

But certain posts, such as the Transport Malta CEO, the Film Commissioner, and any position at Infrastructure Malta, are not included in the list of roles from which it is now prohibited to transition directly into the private sector.

This is despite the fact that such positions have lucrative trade-offs in the private sector.

In comments to MaltaToday, Principal Permanent Secretary Mario Cutajar, however, emphasised that the directive specifically applied to public posts having functions of a regulatory and inspectorate nature.

“The Transport Malta CEO does not have a regulatory function. Nor does the Film Commissioner, or roles with Infrastructure Malta,” he said.

Cutajar highlighted that similar laws in other EU countries all qualified to which positions revolving door rules applied.

“The law – which is the first time that revolving door rules are being applied in Malta – is very clear, and one cannot go beyond its parameters. Ultimately, the new rules will continue boosting the public sector’s credibility,” Cutajar added.

Employment and industrial relations law expert lawyer Ian Spiteri Bailey said that he could not immediately see anything in the new rules which is contrary to law.

“There is nothing illegal in the fact that the new law includes some posts and positions and not others,” Spiteri Bailey said. “I see nothing out of the ordinary in the fact that some roles are covered by the rules, and some aren’t.”

Spiteri Bailey said that he could understand that one might ask why some roles from particular sectors – such as the Film Commissioner – are excluded, while other roles are included.

“But, in this regard, I should also point out that, in its case law, the court has said that the more restrictive the type of post, the more careful the legislator has to be in terms of the provisions which apply to that role.”

In areas of the public sector where the role occupied is broad in nature, it is easier to apply revolving door rules, he said, since those occupying such a public sector role could feasibly find an alternative role within the private sector which is not directly related to their past public job.

However, in the case of other posts which are more specific in nature, Spiteri Bailey said it would be difficult to require that someone who worked in such a position not be able to leave their public sector role and enter a similar position in private industry.

“To give a very simple example to illustrate this point, if a person had spent their life working specifically making bread, it would not make sense to prohibit that individual from joining a bakery,” he said.