The right to freedom of expression for civil servants – an overview
PHILIPSBURG – Where does the right to freedom of expression of civil servants begin and where does it stop? That question becomes relevant in the wake of the Facebook-rant by the head of the labor department, Peggy Ann Dros-Richardson. Fortunately there is some literature available from people who have examined this question.
The first one of those experts is Anja Hoffman, who wrote in May 2010 in the magazine Binnenlands Bestuur about this issue. The Dutch constitution guarantees freedom of expression, but it contains limitations for civil servants, Hoffmans noted almost ten years ago. “Civil servants must refrain from publicly expressing thoughts or feelings if they put the proper execution of their own function or the proper functioning of the public administration at risk.”
Hoffman furthermore notes that civil servants are not free – at least not without risking disciplinary measures – to reveal what they consider wrongdoing in the workplace, especially if it has already been established that such perceived wrongdoings lack factual basis.
More recent is the thesis Semra Yalçin published in May 2016 at the completion of her studies at Tilburg University. Entitled The freedom of expression of civil servants; an investigation into the freedom to express oneself Yalçin examined the matter thoroughly. She notes that the right to freedom of expression is anchored not only in the Dutch Constitution (article 7), but also in article 19 of the IVBPR (International treaty for civil and political rights), in article 10 of the European Human Rights Treaty (EVRM) and in article 11 of the EU charter for basic rights.
The European Human Rights court has established that expressions that are offensive, insulting and disturbing also fall under the right to freedom of expression. This right carries even more weight if expressions contribute to the political or the social debate. The court does not discriminate between civil servants and citizens.
The basic right to freedom of expression has not always been obvious. Between 1848 and 1922 there was consensus that basic rights apply to the relationship between the public administration and its civil servants. That changed completely in 1922 when the Dutch government ruled that these rights do not apply to civil servants, a situation that continued until 1955 and that was confirmed by the Central Council of Appeal on April 6, 1939. However, in 1955 the government changed its tune again, deciding that civil servants are entitled to their basic rights but that limitations to those rights are permitted.
In 1974 the Second Chamber accepted that article 7 of the Constitution (the right to freedom of expression) also applies to civil servants. Limiting those rights was only allowed if this had been regulated by law. This vision was confirmed in the review of the constitution in 1983.
The general regulation for state civil servants (ARAR) stipulates in article 50.1 that civil servants are obliged to execute the obligation related to their function “scrupulously and diligently” and to behave in a way that becomes a good civil servant. Article 44 of the LMA, the rulebook for civil servants in St. Maarten, is identical to this rule.
Another piece of legislation that regulates the freedom of expression for civil servants is the General Civil Servants Law; article 125a says that limitations to the freedom of expression are only permitted if (public statements) have the potential to put the proper functioning of the civil servant or the public administration at risk.
Personal expressions of civil servants fall outside the responsibility of their minister. A generally accepted guideline for the use of social media says that when a topic is close to a civil servant’s field of policy, the social impact of his statements can be quite serious. Therefore, that’s something civil servants have to realize before they enter the public arena.
Article 125.3 of the General Civil Servants Law states that civil servants must refrain from making confidential government-information public. They should also stay away from expressing negative information.
Yalçin notes however in her thesis that the authorities cannot limit a civil servant’s right to freedom of expression by imposing mandatory confidentiality. “All they can do is point out the duties of a civil servant. The constitutional option to impose confidentiality does not exist.”
Imposing mandatory confidentially is impossible, the author notes: the government can only review statements after the fact.
The court in The Hague ruled in June 1996 that it goes too far “that one would never be allowed to make critical statements about the employer or about labor conditions.”
The AGFA, an advisory committee that deals with basic rights and the functioning of civil servants is of the opinion that in a constitutional society civil servants “should not feel unnecessarily hindered to give their opinion about issues related to government policy.”
Mr. K.D.P. Vermeulen, an attorney with GMW attorneys in The Hague, refers in an article about the limits to the freedom of expression for civil servants to the European Human Rights Treaty. “It says that limitations must be necessary in a democratic society for the purposes of public order, national security and the protection of others.”
In the Netherlands, civil servants can only be disciplined for breaking the rules after an advice from AGFA. In St. Maarten such a procedure, designed to prevent that the competent authorities violate basic rights lightly, does not exist.
The Central Council of Appeal in the Netherlands has one last warning for civil servants with an axe to grind: behavior during time outside working hours can also qualify as neglect of duty and therefore result in disciplinary measures.
A fine example of this rule is the tweet an ICT-recruiter at the Ministry of Safety and Justice sent during her vacation in 2014: “Isis has nothing to do with Islam – (this) is a preconceived plan of Zionist who consciously want to badmouth Islam.”
The civil servant – Yasmina Haifi – was held accountable and disciplined with conditional dismissal under two years of probation.
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Some relevant links:
Does a Facebook-rant justify disciplinary measures?
https://www.binnenlandsbestuur.nl/ambtenaar-en-carriere/opinie/redacteuren/ambtenaren-en-de-vrijheid-van-meningsuiting.159630.lynkx
Scriptie: Vrijheid van meningsuiting van ambtenaren
https://www.gmw.nl/wp-content/uploads/2018/02/Grenzen-aan-de-meningsuiting-van-ambtenaren-op-social-media.pdf
