One of the priority directions of Georgian Development Research Institute (GDRI) is the concept on public service reform, writes Levan Izoria, lawyer at the GDRI.
The aim of the given concept is to create a guarantees for the independence of the public servant. Until recently public service is completely under political pressure which is exercised and controlled by the governing body. It is vitally important to depoliticize the public service so as to free it from political pressure and to establish it as an unbiased state institution.
Ruling authorities try their best to control public service mechanisms. They want the public servant to be even more dependent on the political processes. A vivid example of this intention is a draft law prepared by governmental officials about the public service. Essentially, it rejects the public service institution and tries to place the public servant’s legal relations with the state to one based on contractual relations. The draft law envisages hiring an employee on the basis of an agreement and his or her dismissal on the same basis as well. It also deals with salaries and other legal labor relations. According to this model, a political authority has a right to employ or fire a public servant according to his or her subjective will and personal decision.
According to the concept suggested by us it is necessary to create independent managing mechanisms free from political influences. Public service should be based on the professionalism of public service institutions. The Law on Public Service should determine the legal status of the public servant as well, and it should facilitate a strong mechanism for its protection. In this regard, the law should be strengthened in such principles of the activities of the servant as there is, for instance, appointing for lifelong terms, political neutrality, principles of professional career, special state commitments to secure state care, to protect from the subjective decision, to discharge, social guarantees and so on.
Stability of the staff (human resources) is a cornerstone of the public service institution. The legislation should precisely determine the very conditions for dismissing a public servant from his or her position, as well as it should secure legal protection and social guarantees. In this regard we should highlight the following problems in the Law on Public Service which is currently in force in the country.
Article 96 of the Georgian Law on Public Service envisages dismissal in case of the closing down of a particular state institution. This norm needs to be improved. Closing down of a certain institution should not exempt the state from responsibility of taking care of the employment of the public servant; in certain cases the state should retain its employee by granting him another job.
Paragraph two of the same article states that the reorganization of the institution should not create grounds for dismissing a public servant. However this legislative norm is avoided by two ways. Often reorganization of the institution is done through labeling it as liquidation of the organization, whereas the same type of institution is created. The second way is the possibility to dismiss the public servant when the reorganization is followed by decrees of the staff members. It is necessary to identify extra barriers (offering an adequate job, offering a training program, offering financial compensation of annual salary volume and so on); only after applying such options should it be possible to dismiss the public servant. The reorganization of the institution should not free it from the commitment to offering employment to the public servant.
According to article 97 of the above mentioned law, public servants should be dismissed in case any discharged public servant is restored back to his or her position. This norm serves for the protection of the rights of the illegally discharged person. However, it restricts the constitutional rights of another public servant who received the mentioned job. There is a need to determine more precisely some aspects of article 98 of the Law on Public Service envisaging dismissal from a position due to the irrelevance to the job. It should be clearly distinguished in case of unsatisfactory results after the trial period based on the results of the certification, from cases when the public servant has certain health problems. It is necessary to determine the commitment of the employer to provide the public servant with a job according to his or her health condition.
Article 99 of the Law on Public Service determines the possibility of dismissing a public servant for disciplinary violations and without them in case he or she violates his or her professional duties. These conditions are very general, therefore they give possibility to dismiss an employee for very subjective reasons.
According to articles 108 and 109 of the Law on Public Service, the obligation to warn or compensation mechanisms in case of dismissal from a job do not correspond to the principles of lifelong employment. It is necessary to regulate it better and attract additional mechanisms of social protection. (High standards of financial compensation, so that some parts of the social protection mechanisms for public servants can be applied to persons who are dismissed.)
The core of the public service should be a professional public servant employed without time limits. There should also be some other employees around this person, hired on a full time contractual basis, as well as part time hired employees.
This concept of public service is an essential component of state management, and implementation of these norms will facilitate the creation of democracy and rule of law institutional infrastructure.