Strengths and weaknesses of a new draft law on public service
On September 17, after a second hearing, the Parliament of Georgia approved the draft law “On Public Service” and accompanying package of laws, initiated by the Government of Georgia (GoG).
Transparency International Georgia considers the creation of a system for monitoring the asset declarations of officials, and significant improvements in legal protections for whistleblowers, to be steps forward. Although the version adopted after the second hearing took into consideration many remarks and observations by the parties involved, the elaborated draft law still contains certain risks, especially, in terms of proper formulation and execution of human resources policies.
We would like to express the following observations and views with regard to the draft law:
Closed Contests – Restricted Competition
Pursuant to Paragraph 3 of Article 34 of the draft law, officials are to be appointed to senior positions on the basis of internal competition, which is announced across the public service system. This means that the candidate is selected from the body of officials currently employed in the public service, reserve officials, and persons employed in the public service through labour agreements.
We think that such closed applications will severely restrict competition, limit the equal availability of public service jobs, and obstruct the search for qualified employees.
Influence of the Government on Management of Public Institutions
The draft law “On Public Service” significantly increases the influence of government policy in the management of Georgian public institutions. Pursuant to the draft law, the GoG may define all of the following: the remuneration and rewarding rules and frames for each position in the civil service; the titles of public servants; and any requirements for each rank, including knowledge, qualifications and experience, as well as the stage of professional development. In addition, the law makes public institutions accountable to the Public Service Bureau (PSB). Specifically, according to the draft law, public institutions must submit to the PSB evaluations of officials’ work and any criteria for their professional development, as per the procedure approved by the GoG.
The aforementioned rule applies to employees of the State Audit Office (SAO) as well. The determination of the scope of the law “On Public Service” must not be based only on constitutional status and role of the institution. It should also be based on the nature of the institution’s legislative mandate. The proposed legislative regulation threatens the autonomy of the SAO The draft law must, thus, be amended to specify that it does not apply to employees of this institution.
Lengthening of Probation Period is Detrimental
The draft law lengthens the probation period for public servants. While Article 24 of the current law sets the probation period for public servants at not more than 6 months, Article 45 of the draft law increases it to 12 months, and provides in certain cases for its prolongation by a further 6 months.
The six-month probation period defined by the current version of the law is in line with the normal duration of the probation period as defined by the Labour Code.
A twelve-month probation period could cause qualified candidates to lose the motivation to start work in the public service, especially in cases where the expiration of the probation period would coincide with a change in government. The dual requirements of a certificate of public servant and the probation period may become prohibitive factors in the hiring of new personnel.
Wide Range of LEPLs Exempt
The submitted draft law extends the range of Legal Entities of Public Law (LEPL) to which the law “On Public Service” does not apply.
Articles 29-32 of the current version of the law “On Public Service”, which provide for competitive recruitment in the civil service, also apply to all LEPLs, except those conducting cultural, educational and religious activities.
The draft law adopted by the first hearing extended the range of LEPLs to which the law “On Public Service” – and thus competitive recruitment practices – do not apply. According to the draft law adopted by the second hearing, the activities of LEPLs are deemed to be part of the public service except the LEPLs working on cultural, educational, scientific, research, sports and religious issues, also those LEPLs which are based on membership or specifically prescribed by the law.
The extension of the range of persons exempt from competitive recruitment procedures contradicts the principles of transparency and openness in the public service, as defined by the same draft law (Article 17). Appointment without competition must be minimized in order to reduce the risks of nepotism and political patronage.
Monitoring of Asset Declarations: Proactive Publication of Results
According to the draft law, the PBS is to monitor officials’ property declarations, and assess them positively or negatively.
According to the current version of the draft law, ‘[t]he results of the inspected declarations shall be published proactively at the end of each calendar year’, though this norm may fail to ensure the timely submission of the results of monitoring activities to the public. Consequently, it is desirable to define a reasonable term for the publication of each declaration inspected (for example, within one month after the completion of the monitoring). Moreover, in the event of an unfavorable outcome, information should be proactively published on each official affected concerning the violation or inaccuracy that served as a reason for this conclusion.
Enactment of Provisions on Monitoring of Asset Declarations
Pursuant to the draft law, the amendment on monitoring of asset declarations (and consequently, the monitoring system) will come into force on January 1, 2017. This decision is justified on the whole, as it is obvious that the PSB will need time to set up the monitoring system. In the meantime, the current information vacuum regarding the inspection of asset declarations should not be allowed to continue until 2017. A compromise must therefore be reached. For example, the PSB might be able provide on-demand inspection of officials’ asset declarations earlier – for example, from January 1, 2016 – and then begin proactive monitoring starting in 2017.
Independent Committee for Inspection of Asset Declarations
According to the draft law “On Conflict of Interest and Corruption in the Public Service”, the PSB is to put full and correct data in the asset declarations and is to comply with the legislation through an independent committee established by the head of the PSB. The draft law does not contain any information about how the committee is to be formed. In view of the committee’s important function and, accordingly, the dual requirements of objectivity and transparency in its activities, the law must stipulate a clear procedure for forming the committee.