Why is the Order Issued by the Lentekhi District Governor Illegal?
On 1th February 2013, the Lentekhi District Council elected its district governor, Zaza Liparteliani, upon the nomination of the Georgian Dream faction. An order was issued on 13st February, under which power of office was terminated for all trustees of the territorial units, due to the requisite personnel changes in the district administration. We consider this order to be illegal for a number of reasons and regard such events to be aligned with a trend of bad recruitment policies executed by public institutions (especially on the local level), in the aftermath of the October Parliamentary Elections. TI Georgia talked about this trend in the past.
According to the order, the decision has been taken based on Article 38, paragraph 8 and Article 39, part 3, subparagraph "h” of the Organic Law on Local Self-Governments, as well as Articles 93 and 95 of the law on Public Service. Subsequent to this, the order outlines the procedural measures, ensuring the execution of the order.
Under Georgian legislation, the governor’s order is an individual legal act and must meet all of the existing requirements of the law, with respect to the act. While the law allows the governor to dismiss a trustee, the dismissal must take place on legal grounds established by the law on Public Service.
In the above order, the governor refers to Article 95 of the law on Public Service, allowing the dismissal of a public official upon his/her own initiative, as grounds for dismissal (further indicated norms establish only the governor's authority to dismiss a trustee). More specifically, this norm of the law stipulates that the grounds for a person’s dismissal may be on his/her own written request, after “the request is granted by an eligible hiring servant.” It is strange that the Lentekhi governor's order does not make mention of any letter of resignation submitted by a trustee, while the justification of the act indicates “necessary changes in personnel” as the grounds for issuing the order, rather than granting the request of resignation. This means that the governor dismisses trustees by his order, basing it on an absolutely inappropriate norm. At the same time, the 3rd paragraph of the order, referring to the involvement of civil society and taking expert opinions into consideration, sounds rather strange. It is not clear of the form in which non-governmental organizations can be involved in this process.
For all the above reasons, the order of the Lentekhi district governor is wholly unjustified and, therefore, illegal. Any dismissed trustee may appeal in court against it; and because the order does not specify the appeal deadline, the statutory limitation period for filing a lawsuit is one year.
We consider that the Lentekhi governor must abolish his order or we may be witnessing the abuse of his official power. This fact is yet another testimony of the trend yielding a lot of questions regarding the personnel policy of local authorities. It is very important for the heads of public institutions to take legal, transparent and well-justified decisions vis-à-vis the recruitment policies.