Critical Analysis of the Amendments in the Law of Georgia on Public Service

Introduction

In December 2024, the Georgian Dream party introduced and approved the amendments to the Law of Georgia on Public Service expeditiously, in five days. The amendments massively weakened any guarantees of legal protection for public servants, created the legislative basis for the probability of the politically motivated purge in public service, and resulted in the termination of employment for tens of public servants, which continues to the day.

The initiation of legislative changes was preceded by the protest of public servants in response to the government pausing accession to the EU. The prime minister of Georgia, Irakli Kobakhidze, called this protest a “self-cleaning process.” He then stipulated a relevant response from the government in the framework of “the constitution and legislation.” The mayor of Tbilisi, Kakha Kaladze, denounced pro-European declarations of public servants as “an attempt to sabotage and dismantle public sector”, and like the prime minister, he forewarned about expected countermeasures. In the end, the ruling party's executive secretary and the leader of the parliamentary majority, Mamuka Mdinaradze, specified the party’s reaction mechanism to the protest of public servants. According to Mdinaradze, to meet the need for rehabilitation of the public sector, amendments will be made to the Law on Public Sector, simplifying reorganization matters. On that very day, December 9, 2024, the Georgian Dream party initiated the official discussion of a bill to amend the Law on Public Service in the parliament, concluding the debate on December 13.

The sequence of events, the announcements of Georgian Dream party officials, the contents of the initiated changes, and the practice of firing public servants after the bill of amendments was enacted show that the purpose of the amendments to the Law on Public Service was to punish public servants, simplify the process of layoffs, and assert total party-based control. 

The Analysis of Legislative Changes

During the first term of the Georgian Dream’s rule, according to principles declared in legislation, the 2015 public service reform aimed to form a stable and unified public service focused on career growth, good faith, decency, political neutrality, impartiality, and accountability.

The Law on Public Service differentiated between the state and public service. Therefore, the terms state official and public servant were separated. They formed positional ranks and classes of public servant positions directly linked to responsibility, competence, qualification, and work experience. In addition, the law specified the procedure of hiring in public service through competition and adapted the term of the individual contracted under an administrative contract; other than that, they set up the periodic evaluation system for public servants by their direct superiors, based on the compatibility of their professional skills and personal traits with their respective positions; they also defined the salary range, professional development possibilities and the obligation of public institutions to guarantee these terms. More importantly, public servants were given certain legal guarantees in case of disciplinary proceedings or dismissal from service. Despite the apparent deficiencies, these guarantees ultimately created an important foundation in the judicial practice of common courts and resulted in rulings in favor of public employees unlawfully dismissed from their positions.

Clearly, despite the above-mentioned legal regulations, there were significant deficiencies. Public service never became entirely free from politicization and susceptibility to political control. The rising tendency of authoritarian dominance in the country during recent years obviously increased these risks. Today, at the culminating stage of authoritarian consolidation, which limits public servants’ legal guarantees to an alarming degree, we have a definite legal basis for a politically motivated purge in the public sector, for placing them under party control and punishing critical public employees.

December 13 legislative changes as the source of diminishing public servants’ legal guarantees and politicizing the sector apply to three significant issues:

• Politicization of the status of the head and the deputy head of a primary structural unit at a public institution and the weakening of their legal guarantees
• The new evaluation system and punishment mechanisms for public servants
• Striping public employees of legal guarantees for defending their rights during a reorganization in a public institution.

Such reform is not only a step backward in terms of the current legal order but also contradicts the basic standards of fundamental rights and is unconstitutional.

1.    Deterioration of the status of the head and deputy head of a primary structural unit at a public institution and weakening of their legal guarantees 

As mentioned above, the Law of Georgia on Public Service differentiates state and public services; therefore, the terms “public servant” and “state servant” are also separated. Namely, serving as a state servant essentially means working at an elective/appointed position in state institutions.

Public servants are persons employed permanently or contracted for a specific time period who implement the following:

• Civil service as their professional duty (public servant);
• Assist state institutions in completing certain tasks (persons employed under a labor contract); and
• Support state-political officials in the exercise of their powers in different ways (e.g., persons employed under administrative contracts).

Therefore, public employees differ in terms of the essence of their duties and their professional obligations, which is reflected in differing legal guarantees defined by the law. If public servants are appointed to a post through competition and indefinitely, the law is very concrete in regulating their obligations, mobility, transfer, vacation, remuneration, imposition of disciplinary responsibility, and grounds for dismissal from duty. 

The persons employed under (labor or administrative) contracts work in the public sector to perform specific tasks or support certain people in their duties; therefore, their work-related rights and responsibilities are more flexible.

Before enacting the December 13 amendments, the head and deputy head of a primary structural unit at a public institution officially qualified as public servants; therefore, they benefited from legal guarantees designated for public servants. However, these amendments changed their status to employees under an administrative contract. According to the legislative explanation of this term, such individuals are essentially connected to the exercise of their powers by the head of the agency or a state-political figure. Changing the legal status of these individuals results in not just diminishing their legal guarantees but also changing the preconditions and criteria of their employment. What is exceedingly alarming is the risks of politicizing individuals holding these positions. Specifically, the December 13 legislative changes:

• Made it possible to appoint the head of the primary structural unit and their deputy without competition[1]. Therefore, they are not required to meet the qualification requirements[2] established for public servants;
• The term of service for the head of the primary structural unit and their deputy depends on the term of the head of the institution and cannot exceed that of the latter[3];
• Since the head of the primary structural unit and their deputy do not have a public servant status, grounds for public servant dismissal and legal guarantees do not apply to them. Their dismissal from the positions has been made possible based on the decision of the head of the institution. They will be given a one-month notice. Additionally, in such cases, the head of the primary structural unit and their deputy will receive compensation equal to only one month’s salary. [4]

2.    Evaluation of a Public Servant and its Results

According to the Law on Public Service, a public servant is assigned to a vacant position through competition, without term (indefinitely). Therefore, if necessary, a relevant competition commission will be created in a public institution if there is a competition. The head of the same institution doesn’t have a right to be the head of the commission, but they appoint one. Under the old version of the law, the head of the institution would appoint a first or second-rank public servant from the same institution as the head of the commission. However, as a result of the amendments:

• The head of the public institution appoints the head of the primary structural unit, their deputy, or a second-rank public servant as the head of the commission.[5]

Therefore, if the commission selecting an individual to be a public servant was previously composed of professional public servants, now the amendments allow the head of the institution to appoint an individual that they hired without competition, under an administrative contract, as the head of the commission. This individual’s term of service is tied to the institution’s head’s term of authority. Therefore, it is evident that there is an increased risk of expediency and political influence in this narrowly professional process.

Another alarming amendment related to a public servant's professional career concerns their periodic evaluation. Under the old version of the law, public servants were evaluated once a year in accordance with the procedure approved by the Government of Georgia's resolution on ‘The Rules and Conditions for the Evaluation of Professional Public Servants’. The evaluation should be transparent, carried out by the immediate supervisor, based on documented data, and include an interview[6] with the public servant. Additionally, based on the evaluation of a public servant, not only are their professional capabilities assessed and their periodic alignment with the position reviewed, but this evaluation also helps assess the necessity of their further Professional development and plan it. Moreover, positive evaluations are the legislative basis[7] for encouraging an employee, while a negative evaluation could become grounds for their dismissal from service.[8] Therefore, the periodic evaluation of the public servant should be a key factor not just in their career but also in the development of the entire institution.

Based on the legislative amendments of December 13:

• The periodicity of public servant evaluations changed from one year to six months;
• The head of the public institution was granted the authority to amend the results of a public servant's evaluation within one month from the date of assessment;
• In the event of an unsatisfactory evaluation of a public servant's performance, 20% of their wages will be withheld until the beginning of the next evaluation period.[9]

As noted above, a public servant's direct supervisor periodically evaluates them based on specific criteria, the work they have performed, and an interview with them. Furthermore, the direct supervisor is the person best informed to evaluate the quality of their work, their professional growth, and their future capabilities. Contrary to the above-mentioned, the legislative amendments grant the head of the public institution the authority to disregard the direct supervisor's evaluation within one month. Moreover, the law does not specify what could justify such a short-term change in the evaluation, especially since the evaluation process has a significant impact on a public servant's career.

As for the withholding of 20% of the salary in case of unsatisfactory evaluation over the next 6 months (until the next evaluation begins), we should note that such a restriction is analogical to one of the measures of disciplinary responsibility. Specifically, the law considers the withholding of a salary ranging from 10% to 50% for a period of one to six months a measure of responsibility.[10]  This is one of the serious forms of responsibility and directly follows the dismissal from service in terms of severity. Additionally, we must explicitly note that if the head of the institution can exercise such a restriction unilaterally and without any prior criteria, withholding salary as a measure of disciplinary responsibility requires the determination of such responsibility through a procedure established by law and safeguarding the employee's legal guarantees. Therefore, it is evident that in this part, the labor legal guarantees of public servants are especially restricted, and this is done through a procedure that doesn’t even meet the minimal standards of transparency and justification, thus increasing the possibility of the head of the institution’s arbitrary action. 

3.    Reorganization of Public Sector

The revised regulation of staff reductions during the reorganization of public institutions significantly violates the legal guarantees of public servants.

Reorganization of a public institution entails changing the institutional structure, resulting in either a partial or complete new public institution structure. Reorganization also entails the relocation and/or reduction of staff in a public institution. According to the law, it is not considered a reorganization if they merely change the subordination or the name of the public institution or its structural unit and/or assign a new function to the structural unit of a public institution.[11]

According to the old version of the law, when a public institution was reorganized, the Public Service Bureau was obligated to gather information about vacant positions in the public sector and, during staff reductions, facilitate the mobility of the relevant employees. Mobility itself refers to the transfer of an employee, with their consent, to a position of equivalent rank in the same or another public institution and, in case of unavailability, to a lower position based on their competence. Additionally, mobility requires the consent of both the employee and the 'receiving' public institution. Moreover, under the previous version of the law, the employee retained their class supplement in case of mobility. Thus, during staff reductions in the reorganization process, the legislation prioritized the retention of existing staff members, their accumulated experience and qualifications, and institutional memory in the public sector, which is absolutely logical and necessary for ensuring the stability of public service. Therefore, during staff reductions in reorganization, an employee could only be dismissed from their position if mobility was impossible.

Contrary to the above-noted, with the legislative amendments of December 13:

• During staff reductions in the reorganization process of a public institution, it has become allowed to dismiss a public servant from their position, whether mobility is possible or not;[12]
• The appeal of a decision regarding the reorganization, liquidation, and/or merger of one public institution with another, and/or any decision related to this process, does not suspend its implementation;[13]
• If a decision to dismiss a public servant as a result of reorganization is overturned by a higher authority or the court, the public institution is no longer required to reinstate the employee to the same position, and if such a position no longer exists, it is not mandatory to place the employee in an equivalent position in the same or another public institution;[14]
• Even in cases where a public servant is dismissed through reorganization and has their appeal or lawsuit partially or fully satisfied, they will not be reinstated to their position. Instead, they will only receive severance pay and compensation equivalent to three months' wages and, with their consent, will be enlisted in the reserve of public servants.[15]

Lastly, we should note that under the old version of the Law of Georgia on Public Service, the law did not apply to the legal entities of public law, except for certain exceptions primarily related to internships and the rules for conducting competitions. In such entities, matters related to employment were ruled by labor legislation. Unlike this, with the legislative changes of December 13:

• The rules in force by the reorganization law now also apply to the legal entities of public law.[16]

Legal Assessment

The analysis of the amendments made to The Law of Georgia on Public Sector on December 13, 2024, taken together, makes it apparent that the subordination of middle management directly to the heads of the public institutions and modification of their professional servant status, as well as direct participation of middle management in competition for hiring public servants, increases the risks of state and political officials’ involvement in the process. Clearly, in the given context, these circumstances create risks of politicization of the public sector and its subjugation by political control.

On the other hand, such a limitation of the legal guarantees for professional public servants, which in one case directly gives heads of public institutions power to change their evaluation and impose financial “punishment” unjustifiably and in the second case significantly simplifies the process of dismissing employees from service during reorganization, entirely contradicts the idea of forming public service based on conscientiousness, impartiality, and accountability.  

The idea of forming a stable and politically neutral public sector that would be focused on the growth and retention of qualified and honest professional public servants; on the formation and fortification of the institutions and institutional memory; the institutions which would function efficiently, impartially and with a high level of accountability, despite any political changes, was the primary reason for the reform of public sector and to the day remains as such formally, at the legislative level itself.

This understanding of the idea and objectives of public service is also confirmed by the practice of the Constitutional Court, stating that: “Given the crucial role of public service in both the formation and implementation of governance, it is essential that the citizens who carry out public service duties are the citizens capable of performing their functions best, based on their knowledge, qualifications, and other attributes, will effectively carry out the functions assigned to them, which, ultimately, will be reflected in the efficient functioning of a specific state institution”. [17] As indicated by the Court: “Achieving the effective functioning of the state institution, ensuring stable and firm administration, relies precisely on professional staff members who carry out their functions with high responsibility, professionalism, appropriate conscientiousness, and dedication to the law“. [18]

Since the literal meaning of ‘Democracy’ is ‘power of the people’, it by nature means the citizens’ right to participate in the formation of the government and in the implementation of governance.[19] The December 13 amendments diminish the legal guarantees that are constitutionally guaranteed to the citizens of Georgia, including the right to hold any public position (provided they meet the requirements set by law and the legislation itself is in accordance with the Constitution). Specifically, based on the accepted practice by the Constitutional Court of Georgia, the 25^th article of the Constitution of Georgia “obliges the government to determine the reasonable conditions for working in the public sector and not to wrongfully limit the citizen’s right to participate in governance and perform a function of public importance.” [20]

Additionally, the mentioned degree of the constitution entails not just holding a certain public office but also an uninterrupted practice of the positional authorities and defense guarantees against unjustified dismissal from the position.[21] According to the Constitutional Court, the right to exercise public authority ceaselessly: “is primarily about protecting labor rights, which ensures proper working conditions, the possibility to receive positional salary, protection against unjustified termination of authority, and other labor guarantees. According to the Constitution of Georgia, the necessity of the protection of labor rights is mainly intended for securing the interests of people holding the office positions. In this instance, the key factor is a person’s individual right to practice labor in the public sector, to receive adequate remuneration, to have the opportunity for career advancement, and for his dismissal not to be dependent on subjective viewpoints of one or the other individual.” [22]  

Furthermore, dismissing a public servant from their position without the possibility of reinstatement and providing them solely with financial compensation contradicts the principle of fair and full compensation for individuals unjustly dismissed from public service, as established by the Constitutional Court standards in this regard. The Constitutional Court has already reviewed and declared unconstitutional a norm with similar content, according to which an unjustly dismissed public servant could receive compensation for the suspension period up to a maximum of three months' worth of their positional salary.[23]  

Conclusion

In conclusion, it should be once again stated that the legislative changes hastily adopted by the Georgian Dream Party at the end of 2024, amid the mass public protests and the subsequent purge in the public sector aimed at silencing public servants critical of suspending the accession to the EU, showcase yet another alarming step towards the political subjugation of the public sector, total disregard of the fundamental human rights, and ultimately towards the consolidation of authoritarianism.

The subjugation of governmental institutions to the public service and the bureaucratic ruling political party renders them political instruments. It adjusts its operation to meet party, individual, and corrupt interests. The appointment, promotion, or any other staff matters in such a system depend on loyalty towards the ruling party, concluding in the replacement of professionals in public authority using individual and political connections and the implementation of patron-client practices.

Politicized public service also promotes corruption and ineffectiveness, which affect the quality of life of all citizens. Additionally, in our reality, public institutions are often exploited as weapons for propaganda to strengthen the positions of the ruling party and shape public opinion in its favor.  

Finally, such politicization of the public sector undermines the rule of law and harms citizens’ rights and interests since public services are not fair and equally accessible. Policy tailored in favor of the ruling party causes public trust in state institutions to wane, and harms the country's development since a politicized bureaucracy impedes the implementation of actual and long-term reforms. In this instance, it is becoming clear that the public interest is replaced by the interest in consolidating the authority of the ruling party, leading to a complete erosion of state institutions. This situation makes governance based on the rule of law and democratic principles an impossible option in the long term.

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