30 January 2017

Are you allowed as a governm¬ent official to say that the municipal chief executive's "core competence may not be the truth"?   

According to the Ombudsman, it was in accordance with the rules of government employees' freedom of speech when a municipal employee was given a warning for writing on his Facebook profile that the municipal chief executive was "a person whose core competence may not be the truth". The Ombudsman did however ask the municipality to reconsider the matter as the municipality's handling of the matter questioned whether the municipality had construed current legislation correctly.

The case concerned a "senior employee", who had made several comments on Facebook describing the municipal chief executive of the municipality with which he was employed negatively. In a comment to the article: "No more trust: Langeland dismisses the municipal chief executive", the employee stated on 1 February 2016:

"UPS - maybe replacements are needed in many other companies. Recently, Guldborgsund also got the possibility of replacement - and then there is Slagelse, which also just fired the municipal chief executive. The idea is free to use if anyone can use it."

In connection with another article with the headline: "Is paid a fortune and keeps the job", the employee stated the following in relation to the municipal chief executive on 16 February 2016:

"Now stupidity must end. DKK 547,481 to a person, whose core competence may not be the truth .... And then to re-employ him... What is going on..." and "I think it is chocking reading concerning the municipal chief executive on Folketidende.dk", "This is only the tip of the iceberg", "DKK 547,000 is the smallest amount. All the other things he is doing or not doing cost millions...".

NOT A QUESTION REGARDING DISLOYAL CONDUCT

The municipality took special notice of the use of the word "stupidity" and the description of the municipal chief executive as "a person whose core competence may not be the truth", and on this basis, the municipality decided to give the employee a warning.

The municipality stated in the warning that it finds that "the comments' rhetoric is unacceptable and is considered disloyal conduct on your part", and that the municipality "expects that you will act loyally in the future and be appreciative in relation to your collaborators in and outside the municipality, including citizens, colleagues and the management."

Subsequently, the municipality stated the following in a letter to the employee:

"When assessing whether an employee's specific conduct may be considered disloyal, the requirements that an employer may make to its employees should also be considered in addition to the duty of loyalty. The concept propriety or dignity, which originates from the legislation governing civil servants, applies to all employees and relates to the employee's conduct, which should not imply a risk of adverse inference to the employer's reputation etc."

The Ombudsman stated that the municipality "only seemed to have considered the matter as a question whether the employee's statements were "loyal" to the municipality, and not whether the statements exceeded the explicit restrictions applying to government employees' freedom of speech."

This guideline considers the question as to whether authorities should include the duty of loyalty when considering government employees' freedom of speech, and the Ministry of Justice answers this question in the negative:

"It is important to emphasise that the management cannot impose other restrictions in government employees' freedom of speech than the restrictions described in the guidelines. For example, an employee cannot be imposed additional restrictions by referring to the duty of loyalty between an employee and the employer.

This was also confirmed by a recent response from the Minister stating that an employee cannot be imposed additional restrictions by referring to the duty of loyalty between an employee and the employer."

WERE THE STATEMENTS "UNREASONABLY GROSS"?

On the contrary, the Ombudsman found that the statements were to be considered based on the Ministry's guidelines on statement that are "unreasonably gross".

"You are also not allowed to make unreasonably gross statements about your employer. This means that an employee may grossly criticise the conditions at the work place if warranted by the circumstances. But the employee may not make unreasonably gross statements."

The question was then whether the employee's statements were "unreasonably gross" and not whether the had violated his duty of loyalty.

When assessing this, the Ombudsman referred to a case from 2016, where a teacher had been dismissed because he called the school, where he worked, "a sinking ship" The teacher further wrote to the Finance Committee of the Danish Parliament that he hoped that the committee - if the school was granted funds for the construction of additional buildings - would dismiss the management. In this case, the Ombudsman found that the teacher's language usage did not have such content or grossness that the framework of government employees' freedom of speech had been violated.

When assessing whether a statement is "unreasonably gross", the Ombudsman attached importance to the fact whether the statement scolds, mocks or ridicules the employer to an unreasonable extent, or whether it insults or expresses contempt for the employer to an unreasonable extent.

The Ombudsman made an overall assessment of the employee's statements and concluded that the statements "are naturally understood as an accusation against the municipal chief executive for having lied to a significant extent." The Ombudsman therefore found that the nature of the accusation was "very gross", see the Ministry of Justice's guidelines, as the accusations could not be proved or rendered probable.

DELICATE BALANCE

With reference to the Ombudsman's previous case law, it is emphasised in relation to the above statements that government employees - like other citizens - must be free to express themselves in "sharp or polemic phrases, as long as these are not clearly incorrect or unreasonably gross." This also applies "even if the employees express their views at a time which may be considered inconvenient to the authority's management, or in a way which may influence political decision-making of importance to the authority's future."

But the Ombudsman draws a line at "very gross" accusations, which are not proved or rendered probable. This kind of accusation must be proved by  some kind of justification.

THE OMBUDSMAN KEEPS THE COURSE

The Ombudsman therefore agrees with the municipality's decision, but not the municipality's reasons. The Ombudsman therefore found that it was most correct if the municipality reconsidered the matter based on the correct legal basis, including whether to uphold the warning and in that case how to word it.

The Ombudsman's statement is thereby in line with the above case from 2016, when a teacher was dismissed also for having violated the duty of loyalty. At that time, the Ombudsman stated that the school's reference to the duty of loyalty in the reason for the dismissal was "misleading compared to the rules applying to government employees' freedom of speech."

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