Published On: Thu, Jan 30th, 2020

Does a Facebook-rant justify disciplinary measures?

Opinion - St Maarten NewsPHILIPSBURG – Peggy Ann Dros-Richardson, since time immemorial head of the Labor Department is in some serious trouble after she ranted about her job in a Facebook-video. The government has issued a warning letter and demands a public apology by January 31.

The contested video triggers several questions about the responsibilities of civil servants and about the tools the government has to discipline them for undesirable behavior.

The answers to these questions can be found in the LMA (Landsverordening Materiaal Ambtenarenrecht), the rulebook for civil servants.

What Dros-Richardson said in the contested video is, as far as details go, rather irrelevant for the question whether she crossed a line in such a way that it warrants a warning letter, accompanied by a demand for a public apology.

All rights and obligations of civil servants are covered by the oath of office. Article 44 of the LMA says that civil servants have to execute their duties “punctually and diligently.” They also have to behave in the way that is expected from “a good civil servant.” That’s a bit like tenants who are expected to treat their rental homes with due care – as good housefathers. Furthermore civil servants have to follow established regulations and refrain from swearing and rough and indecent language.

What may or may not apply to the Dros-Richardson-video is article 46.1. If she made her video during office hours she could be in trouble, because said article stipulates that civil servants have to devote “all the for him or her applicable working hours  to the affairs of the government.”

Furthermore, this article forbids civil servants to look after private interests of themselves or of third parties. Whether the video promotes private interests is obviously up for debate, but article 61.1 is a definite deal breaker: civil servants are obliged to keep information they obtain in the course of their work confidential.

This makes ranting in public about whatever happens in your working environment a big no-no. It is a clear violation of the LMA. Article 62 adds another layer to the confidentiality clause: it forbids civil servants to abuse the knowledge they obtain during the execution of their jobs. Again, whether this applies to the Dros-Richardson video is up for debate.

Let’s assume, for arguments sake that the video does violate the terms of the LMA. What are the tools the government has at its disposal to retaliate? Article 87 contains all the answers.

The first level of a disciplinary measure is a written reprimand – and that is exactly what Dros-Richardson got. But does the government have the right to demand a public apology? The answer to that question, based on article 87, is a definite no. Nowhere does this article give the government the authority to demand public apologies from any of its underlings. Maybe a civil servant who knows what is good for his or her career might do this all the same, but the LMA does not offer a basis for it.

Article 87 contains eight other possible disciplinary measures: from imposing extraordinary duties without payment of overtime and a fine to salary cuts, exclusion from promotion, suspension and dismissal.

Interestingly, article 87 speaks of disciplinary measures that can be imposed; it does not say that these measures are inevitable once a civil servant violates an LMA-rule. This opens the door for leniency and the arbitrarily application of the rules: nowhere does it say that the government has to impose a punishment.

How this works appears from article 92; this article gives the government the authority to suspend a civil servant if he or she becomes the subject of a criminal investigation. The head of Infrastructure Management, Claudius Buncamper, was in 2018 on appeal sentenced for tax fraud; long before that court ruling he was obviously the subject of a criminal investigation, but Buncamper was never suspended from his job.

Maybe this is due to the wording of article 92: the civil servant who becomes the subject of a criminal investigation can be suspended. And maybe it is due to other circumstances, known only to Buncamper and those who stand above him.

The wording of article 87 is similar to that of article 92 in the sense that measures can be imposed. Maybe somebody is able to explain why an admittedly controversial Facebook-video warrants a written reprimand while a conviction for tax fraud apparently warrants no reaction at all.

[PUBLISHER’S NOTE: It has been brought to our attention that certain information published in our series of articles about the Facebook-video by labor department head Peggy Ann Dros-Richardson are incorrect. The government of St. Maarten did not issue a warning letter to Dros-Richardson nor did it demand a public apology. These were solely the actions of the minister of VSA, Pamela Gordon-Carty, in a personal letter of reprimand to Peggy Ann Dros-Richardson. StMaartenNews.com apologizes for the incorrect information published as this was not an official government sanction as was indicated by our articles.]

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Some relevant links:
The right to freedom of expression for civil servants – an overview
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