In a unanimous ruling, the Court of Appeals of Santiago ordered the Municipality of Lo Barnechea to respond under the Transparency Law and to disclose in detail the expenditure of public resources used by the community organization Lo Barnechea Servicios. Opinion that sets a precedent, since since they are private entities created with the legal figure, for example, of a neighborhood association, the execution of these resources escapes the supervision of the Comptroller’s Office and the requirements of the Public Procurement Law . Likewise, they do not submit to the opinions of the Council for Transparency.
The ruling comes after a judicial process initiated in 2022 by the América Transparente Foundation, so that these functional organizations in Lo Barnechea could be subject to the Transparency Law, and would be obliged to provide information on how and in what they spend the money that the municipality transfers to them each year. These are organizations that were created as private entities in 2009, during the administration of former mayor Felipe Guevara (RN).
For the executive director of América Transparente, Juan José Lyon, “it is a key case of having won, not because of the amount of money, because there are corporations with which we are litigating where the amounts are greater, but because of the type of entity that now It will be subject to transparency if this ruling becomes final. “It’s the first time we won a lawsuit over an entity that is not a corporation,” he said.
“We are talking about a phenomenon that started in Vitacura with the Vita entities, which was copied in Lo Barnechea, in both cases an ordinary person participated: the former mayor Felipe Guevara. And it is the first time that we have achieved transparency, something that has never been achieved in Vitacura, with these entities that were created with the legal figure of a neighborhood council, and that are finally now recognized as a municipal arm and that, therefore “They must be subject to the Transparency Law,” he said.
For their part, the Municipality of Lo Barnechea has insisted that they ascribe to the importance of transparency for the exercise of the work of the communal government, which is why from the beginning they provided all the required background information. And that the partiality of the information was subject to the criteria of the Council for Transparency, as well as rulings of the Supreme Court in previous cases.
The recent ruling of the Court of Appeals of Santiago established that “the functional community organization Lo Barnechea Servicios, in fact, is constituted solely and exclusively to serve as an arm or extension of the Municipality of Lo Barnechea, since without the Municipality of Lo Barnechea, and more importantly, without the contributions of that municipality, Lo Barnechea Servicios would not have been born or operated. In other words, Lo Barnechea Servicios was born to fit or join the organization and functions of the Municipality of Lo Barnechea.”
In that sense, Lyon added that a door opens in terms of transparency to know the expenditure of resources in other organizations functional to the municipality. “Just as in Vitacura there was Vita Salud, Vita Deporte, in this case there is Lo Barnechea Servicios, Lo Barnechea Deporte, Lo Barnechea Seguridad, and we want to open that type of entities. And although those in Vitacura have been closed, the idea is to be able to request information backwards, and the same is also what happens in Las Condes with the Communal Union, which is the one that manages much of the security in Las Condes.
A bulging appendage of the municipality
It is worth remembering that the different functional community organizations that Lo Barnechea has created to outsource its municipal departments have together received more than 50 billion pesos. And despite having been established as private entities, they have become in practice a parallel administration to the municipality, which executes budgets for communal services such as security, sports and cultural activities, without public record of the hired officials and their salaries. Background that was considered by the Court to refute the argument that these are private entities external to the municipality.
The ruling indicates that “it is not reasonable to postulate that an organization that is born in these conditions of dependency, subordination or subordination, does so independently of the public administration body on which it will necessarily be dependent, subordinate or to which it will be subject. (…) Lo Barnechea Servicios is an instrumental organization of the Municipality of Lo Barnechea, an appendix – today very large – in the field of community organizations, which was created to provide services to the community instead of that municipality or as a complement to the that it provides, always with the public funds provided by the Municipality of Lo Barnechea.”
Along these lines, the representative of América Transparente recalled that Lo Barnechea Servicios was chaired from the beginning by Sebastián Torrealba (RN), when he was Felipe Guevara’s chief of staff. “Falsely posing as neighbors, they created these entities, and then a significant amount of millions were transferred to them every year. Sometimes 2 billion, 3 billion, 4 billion every year, to operate as if it were a municipal department.”
“Everything that happened in there is not known and escapes the control mechanisms. (…) That is why this is key, because it is the first time that one of these entities, created by municipal staff and financed almost entirely by the municipality, has recognized this principle of reality and decreed that it has to join to the Transparency Law,” Lyon added.
According to América Transparente, once the sentence is final, they will begin to request more information, in order to also pressure so that the Transparency portals fully comply with the law.
“One of the arguments that Lo Barnechea used in the trial – and this happened to us with all the corporations that we have sent to trial – is that they do not consider it necessary because they already have transparency mechanisms. And it is true, some entities have opened transparency pages, but they are pages that do not meet the minimum standard required by law. They make transparent what they want and do not make it transparent backwards. These entities were created in 2009 and what we also want to know is how these 50 billion have been distributed since that date. That doesn’t happen today,” Lyon said.
