The battle against political nominations

The courts – along with the legislature and public authorities and figures – have, for years, been attempting to combat the widespread phenomenon.

By SHOSHANA GAVISH
August 21, 2010 23:58
4 minute read.
Tzahi Hanegbi

Hanegbi 311. (photo credit: Ariel Jerozolimski)

The courts – along with the legislature and public authorities and figures – have, for years, been attempting to combat the widespread phenomenon of political nominations and dismissals in the public service, i.e., nominations and dismissals in which the political affinity of the candidate or employee is a material (or dominant) consideration.

The public service in Israel is based on the principle of a professional apolitical civil service. For most positions in the civil service, subject to public tender or not, political considerations in nomination and dismissal are extraneous. Public positions are regarded as a public resource, to be occupied solely on basis of a high professional standard and personal integrity.

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Political nominations and dismissals are regarded as an abuse of power and a breach of fiduciary duty, undermining the civil service in many ways: they lower its professional standard, unlawfully discriminate and breach the principle of equality, subvert the hierarchical order, undermine the public faith in the civil service, inflate the civil service with unnecessary nominations of favorites, infect the decision- making process with conflict of interests and extraneous considerations, destabilize the civil service as a result of frequent changeover of civil servants whenever a political changeover occurs, damage the morale of other civil servants whose candidacy is thwarted, deplete the civil service of professional employees, and exploit public funds for extraneous purposes.

VARIOUS LEGISLATION and directives contain prohibitions and restrictions intended to deflect pressure of political electorate members on nominations to the civil service.

The courts have joined the battle by ruling that political nominations which do not fulfill essential requirements for professional qualifications and personal integrity are unlawful and void. On this principle, even nominations to positions of special trust such as General Managers of Ministries, have been revoked. The court has stressed that such nominations and dismissals may involve personal liability on the civil, disciplinary and criminal levels. Prohibited conduct includes various types and degrees of direct and indirect actions (even manifestation of ministerial support by the transfer of CVs).

The court has also eased up on the onus of proof in civil actions, ruling that the injured person need only raise a reasonable suspicion that political considerations played a part and for the onus of proof to be transferred to the employer to rebut such suspicion and prove that the nomination or dismissal was lawful.

In one case, the Supreme Court took an additional step by ruling that the principle remedy of the employee who is politically dismissed is reinstatement to the position he was unlawfully deprived of.

As a further deterrent, it called for perpetrators to pay the price, by reimbursing the public, out of their own pockets, for the expense involved in the damages payable to the injured employee.

SHORTLY AFTER this ruling, the Jerusalem magistrate’s court ruled on the indictment of former Minister of Environment Protection, Tzahi Hanegbi, on charges of criminal bribery and breach of faith in connection with his involvement in political nominations and dismissals for the purpose of enhancing his political position. It was proven that political nominations and dismissals began decades before Hanegbi and became a feature of the political culture in Israel.

Indeed, the pressures exerted upon Hanegbi by the electorate members to make political nominations and dismissals reflected also their frustration at having themselves been previously discriminated against on political grounds by ministers, elected by other political parties.

The court was faced with the difficult task of delineating between conduct which crosses the line into the criminal and conduct which would better be dealt with by other disciplines and forums (such as disciplinary, public, moral, civil) since despite their pervasiveness and despite public denunciation, never before had political nominations and dismissals been treated as constituting a criminal offense.

At the end of the day, the said charges against Hanegbi were revoked, on grounds of abuse of process, since the indictment against Hanegbi reflects a change of policy which the court ruled should apply prospectively and also because of the inconcrete nature of the criminal offense of breach of faith. However, the ruling contains a statement of principle: That political nominations, due to their quantity, systematic nature, type and intensity, fundamentally injure the values protected by the criminal offense of breach of faith – the integrity of civil servants, the public faith in the civil service, and the public interest which the perpetrator has a duty to serve – and constitute a criminal offense.

Hopefully, the Supreme Court ruling, which underscores the personal liability of the perpetrators on the civil, disciplinary and criminal levels, will assist civil servants and elected officers alike to deflect pressures – such as were blatantly exerted upon Hanegbi – to make or support political nominations and dismissals in return for the political support.

It may also, in the long run, act as a deterrent on other actors in the political scene from exerting such pressures.

The writer is a partner at S-Horowitz & Co.


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