The internal registration procedure, which is common in supervisory and expert positions, jeopardizes the independence of officials.
Public finances there have been mentions in the news about the National Audit Office (VTV) of fearful leadership and the dismissal of officials. Without commenting on this case, reference should be made to the procedure generally used in the field of employment, which allows management to be feared and officials to be removed from office without the grounds for dismissal laid down by law.
In the field of public relations, a procedure seems to have become more common in the 2010s, where a position is not created and an administrator appointed to a specific managerial or more demanding expert position, but a person working in another position, usually of lower competence, is appointed to perform that position. The procedure has also been used in VTV.
The position in the appointment procedure is not filled by public competition in the manner provided for in the Public Service Act, but is usually filled through the Agency’s internal registration procedure. The procedure therefore does not implement the premise of the Constitution, according to which it must be possible for everyone to apply for positions and appoint the most deserving candidates.
Constitution and public service legislation are based on the principle that administrative and judicial functions are performed by officials appointed to separately created posts. An official may be dismissed only on the grounds provided by law. The purpose of the employment security of officials is to guarantee the independence of the administration.
When the appointment procedure is used, the order of an official to perform the task may be terminated at any time without the grounds for dismissal provided by law. Although the termination of an assignment does not usually mean the termination of the employment relationship, the term of office ends and the incumbent often has to return to less demanding and lower paid positions.
For the task with the exception of certain branches of government, such as special laws on foreign affairs and national defense. The procedure is based on guidelines issued by the Ministry of Finance in 2009. It argues that the assignment is a matter of the normal organization of work and the organization of tasks, which is a matter for the employer’s directive.
However, this is a much more significant exercise of power which, in practice, can disregard the key principles enshrined in law to safeguard the independence of officials. More demanding duties may be filled without a public call, and an official may be removed from his duties without grounds for dismissal.
Appointment is likely to keep officials humble and sympathetic to the agency’s management. The threshold for an individual official to raise critical views or grievances is high if he or she can be removed from office at any time by a mere managerial decision. Assignment is particularly problematic in audit work, where critical remarks are central.
Procedure seriously jeopardizes the security of employment of officials and thus the independence of the administration. Courts and legality reviewers have not seen the difficulty of the procedure when dealing with individual officials. They have, without critical appraisal, accepted the argument, based on guidance from the Ministry of Finance, that this was a normal exercise of managerial authority. The decisions did not include an assessment of the legality of the procedure and its relationship to the provisions and principles guaranteeing the independence of officials.
The legislator should clarify the legislation on employment relationships so that the principles guaranteeing the independence of officials are also put into practice. The use of assignment should be unequivocally prohibited except in cases where it is specifically provided for by law.
Leading with fear is not in working life these days. Even in the state administration, there should be no policies that make it possible to lead with fear.
Jukka Nohteri and Antti Salokoski
The authors are lawyers in the Society of Higher Education.
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