What’s the Use of Appealing?!

News | Good Governance | Publications | Article 28 December 2015

The article was writen in the framework of the project "Strategic Plan Georgia 2020 - Strengthening Public Involvement" and was published on the blog "Georgia 2020".

 

Author: Tamar Charkviani

Analysis of Appellate Commissions of the Civil Service

 

According to Government of Georgia (GoG), civil service reform is one of the most important priorities. According to strategic plan ‘Georgia 2020’ ‘facilitate the development of a human resources management system as part of efforts to ensure the stability of public service provision and the recruitment of qualified staff through relevant material and career motivation’ [1]. In order to implement the reform, GoG has taken several successful steps during 2013-2014 [2]. Non-governmental sector points to the improvement of legal acts regulating the civil service. However, they also point to numerous violations and irregularities in terms of competitions and certification (attestation) [3].

 

After 2012 parliamentary elections, reorganization in civil service came under public scrutiny and has not lost its attraction ever since. Transparent and fair recruitment procedure in public institutions is the bulk of proper functioning of civil service. Such principles are the necessary tools to convince the citizens that civil service recruits not relatives, friends or political affiliates, but professionals.

 

On 20th of July, 2014, with the entry into force of the he Government decree of 20 July 2014, the procedure of recruitment in civil service improved significantly – ensuring impartial and fair procedure was more guaranteed [4]. Mechanisms of the recruiting process and appealing results were established [5]. If the candidate considers that the commission has inadequately assessed the compatibility of his or her professional habits, qualification, capabilities and personal characteristics with the requirements of the proposed vacancy – the candidate has the right to appeal to the appellate commission and later to the court, or not use the mechanism of appeals and address the court immediately, as set out in the Georgian legislation [6].

 

The existence and effective use of the legal mechanisms of appealing against the results of the recruitment competition is an important instrument of ensuring transparency and fairness of the recruitment process, as well as a mechanism by which the candidate can defend his or her rights. Every decision of the selection commission, as well as of the appellate commission must be substantiated and justified. In my regard, the above-mentioned mechanism has another function as well, as the possibility of da candidate defending his or her rights is an effective indicator of the commissions’ functionality.

 

The aim of the article – to focus on the appellate commission, describe the institution and its mechanisms/strategies, as one of the latest components of the civil service reform.

 

Based on the principle aim of the work, the main question – is to what extent is the commission performing the tasks and carries out its duties, which implies instrumentalizing fair and just recruitment in the civil service.

 

Methodology – is based on the description of a specific practice, its review and analysis – identifying general tendencies regarding the appeals and reaction to them by the appellate commission – which methods the candidates use to defend their rights, what kind of barriers and obstacles they face and what results do their appeals yield. What is the situation in terms of appealing against a decision in court? Which strategy is more effective in terms of defending one’s rights?

 

Civil service is one of the most prestigious and competitive areas of the Georgian labor market. After the amendment of 29 June 2012 to the ‘Law of Georgia on Civil Service’, it is mandatory to announce a call on all positions. This is the reason why at the end of 2013 numerous vacancies were announced on the civil service website.

 

According to the administration of http://www.hr.gov.ge, 686 new vacancies were announced on average in a month by the civil service sector. By that time 130813 users were registered on the website. As the data explicitly shows, the number of people involved in the process has increased significantly over the last years.

 

Dissatisfaction towards the recruitment process among people interested in civil service has been increasing both in the capital and the municipalities. The primary reason for discontent is the lack of trust in the fairness of the process. Candidates voice their concerns in different ways: media briefings, articles, via the social network, open letters to senior members of the executive government, as well as NGOs and the court.

 

The article generally discusses the lack of trust towards the commission. The reasons for mistrust are various. The principal protest from the candidates refers to certain infringements during the interview process: Questions regarding impartiality of the commission, lack of professionalism, incompetence, irrelevant questions, and interview held without set criteria, incongruent practice, members of the commission being the persons who also take part in the competition, as they are persons acting officials etc. [1][7].

 

We shall not dwell into details on this matter, as the appellate commissions include representatives of the selection commission as well, thus the criticism applies to both. As the major protest is caused by the interview process, the main bulk of infringements also appear to be present during this stage of the recruitment process. Therefore, the appeals to the commission and the court mostly contain the above-mentioned flaws.

 

The appellate commission is obliged by law to react to appeals. The commission is also obliged to inform the appellant about its decision in written form and must justify it. Unfortunately, a single practice has been established, which involves sending one type of response to all appellants; ‘Each and every one of us got an identical response, not a single phrase was different’ [8].

 

We can refer to the first strategy as the ‘the easy way of dismissing the appellant’, whereas the second – ‘the hard way of dismissing the appellant’.

  • The appellant provides the proof of relevance of his/her education and narrow specialization to the announced vacancy (based on the documents confirming relevant education and qualification). Indicates that the candidate preferred by the committee does not meet the requirements.
  • The appellant proves his/her relevance in the education, qualification section of the announced vacancy (providing the documents confirming relevant education, qualification). Indicates that the candidate preferred by the committee does not meet the qualification requirements.
    The abovementioned two factors on the part of appellants are considered to be objective preconditions to schedule the second tour, interview anew. What is interesting is what kind of response strategies are institutionalized in the work of the appellate commission in such cases.

 

In such cases, the complaints and appeals made by the appellants are so reasonable that the commission cannot react via the first strategy. In other words, the standard response will not suffice, therefore the appellate commission is obliged to address the selection commission with a recommendation to take the appellant’s claim into account and set another interview. Creating an appellate commission is a discretionary power of the executive head of the civil service.

 

The number and composition of the commission is determined by the director of the institution/entity. The appellate commission includes the chairman, deputy chairman and the rest of the members, most of whom are senior employees of the institution. Considering the impartial and transparent character of the commission, representatives of CSOs and independent experts should be invited as members of both the appellate commission and the selection commission. The research affirms that external actors often complain about the neglect of this article by senior executives of the public institutions.

 

The court rulings and decisions reinforce the claim. Even though the legislation rules that in order to ensure the impartiality of the appellate commission, the members of the commission must not take part in any other process of the competition or the recruitment process, the research has not been able to identify the execution of this requirement. However, if external actors are exempt from participation in the commission, this creates doubts about the composition of the commissions, as well as their decisions.

 

A question arises, whether these measures by the appellate commission are enough to satisfy the appeal of the candidate. The established practice indicates that it is not! What are the reasons? In fact, this form of reaction does not have an imperative character, however the flaws of the selection commission are pointed out and it is up to the selection commission to react. How does the selection commission react to the recommendations of the appellate commission? Form of reaction and strategy are as follows: The selection commission takes the decision of the appellate commission into account and does not appoint any of the candidate on the position. Therefore, the call for the position is annulled. This happens despite the fact that the appellant asks for another interview and not annulment of the competition. What happens next? After receiving a recommendation letter from the appellate commission, the executives of the public service institution changes the requirements of the vacancy, the title of the position and the candidate requirements, which is completely tailored for the CV of the temporary officiate. This means that the appellant will not be able to participate in the new call for position [9].

 

As a result of a justified appeal from the candidate to the appellate commission, the vacancy was annulled and the appellant was denied the possibility to participate in the new call for position. It is evident that the appellate commission shared the comparative advantage of the appellant and tailored the requirements for the position not according to the law on civil service, but to the informal practices, such as – nepotism, patronage, protectionism etc.

 

As the practice indicates, appeal to court is more effective in such cases. NGOs assist the appellants with preparation of the complaints and during the trial. There are several examples:

 

  • The Court of First Instance in Zestafoni satisfied the appeal of 21 appellants, whose interests were protected by the representative of “Fair Elections”. The court repealed the decision by the selection commission, according to which the applicants were denied the vacant positions and the commission was ordered to schedule the interview stage anew.
  • On 13 November 2015, the Court of First Instance of Tsageri satisfied the appeal of the appellant, whose interests were represented by the representative of “Fair Elections” [11].


The court proves the unjust decisions based on the following arguments:

  • The activities of the selection commission was in breach of the principle of publicity, which was manifested in the denial of observation of the interview process to the interested parties.
  • According to the charter of the selection commission, identical questionnaire is used in case of every candidate. However, the selection commission was not in possession of such a questionnaire. The commission should have also used the assessment form, which according to the charter was supposed to assess the skills of the candidate.
  • During the interview process, the commission made a biased assessment regarding the criteria, such as ‘work experience’. More specifically, applicants with less working experience received significantly higher evaluation.
  • During the interview, there were cases of inadequate questions to the candidates, which were not relevant to the professional experience of the candidate and were politically biased, which constitutes a breach of the Georgian legislation.

 

We can conclude that the mechanisms of functioning of the appellate commission, especially the process of forming the commission, requires strict control. The mechanisms of such control is the basis of functioning of any institution. Examples indicate that there are doubts about the process of forming the appellate commissions.

 

The decision of the appellate commission serves as a recommendation, meaning that it is not imperative and does not imply that the initial requirements of the competition should be revised, as it is not within the competence of the appellate commission.

 

It is true that the law gives the applicant a choice to address appellate commission, or the court primarily. However, on the one hand, the costs of establishing the appellate commission, time and human resources are problematic and on the other hand applicants’ appeals to the court due to the inefficiency of appellate commission, which also relates to ineffective loss of financial, time and human resources.

 

The ideas expressed in the article belong to the author only and do not represent the position of IDFI, the University of Bremen or the Federal Foreign Office of Germany. Therefore, these organisations are not responsible for the content of the article.

 

Bibliography:

[1] “Georgia’s socio-economic development strategy – Georgia 2020”, Government of Georgia, p. 48.

[2] Civil Service Bureau, 2013, http://www.csb.gov.ge/ge/publications.

[3] Transparency International – Georgia, 27 July 2015, http://www.transparency.ge/node/5412.

[4] Institute for Development of Freedom of Information, 2014, Nino Merebashvili, https://idfi.ge.

[5] Decree of the Government of Georgia №412 ,18 June 2014, Tbilisi.

[6] Practical Manual for Competitions and Attestation in Civil Service, Tbilisi, 2014, p. 37.

[7] Natia Rukhadze, “Selection Commission is accused of Incompetence and Bias”, 02 February 2015, , http://www.bpn.ge.

[8] Natia Khutsishvili, “37 show up on the first stage of attestation for employees of the Mayor’s Office”, 01 November 2014, http://reportiori.ge/index.php?menuid=3&id=43565.

[9] Lela Nemsadze, “Open Letter to the Prime Minister”, 17 Match 2014, http://netgazeti.ge/2014/03/17/29288/.

[10]„International Society for Fair Elections and Democracy (ISFED)“, won 21 cases in favor of the candidates, http://www.isfed.ge/main/971/geo/.

[11„International Society for Fair Elections and Democracy (ISFED)“, ISFED won yet another case, http://www.isfed.ge/main/967/geo/.

Notes:

[1] NOTE: Under Article 2 of the Law of Georgia on the Conflict of Interests and Corruption in Civil Service, acting officials can be appointed to a vacant position that shall be filled through a competitive process for no longer than one year, and to other positions for no longer than three months. The same person may not be reappointed as an acting official to the same position. This amendment will be enforced from 1 July, 2013. – See more at: http://www.csb.gov.ge/en/faq#sthash.QgK6uTRZ.dpuf

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