Considerations Regarding the Judicial Institution of Mobility and the Engaging of the Disciplinary Responsibility of Public Servants

Author:Alina Livia Nicu, PhD
Position:Associate Professor. The University of Craiova

The present paper aims at emphasizing the need to improve certain regulations regarding public service. Starting from the principle of stability in one's position and from the judicial institution of mobility as two of the means by which the Romanian legislator tries to ensure "a stable, professional, transparent, effective and unbiased public service, in the citizens' interest, as well as in the ... (see full summary)


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According to Article 75 of Law no. 188/1999, republished, regarding the Status of Public Servants, "The guilty breach of duties at one's workplace attracts disciplinary, contravention, civil or criminal liability, according to each case". Disciplinary breach is defined by the legislator as follows: "The guilty breach by public servants of the duties corresponding to their public office and of professional and civil behaviour norms that are stipulated by laws represents a disciplinary breach and triggers disciplinary liability."1

The public servant is an important element of any collectivity in an administrative and territorial unit. He is the one who must put legislation into practice, and the importance of his social role comes precisely from the fact that legislation establishes the fundamental values of the collectivity2, sets the necessary instruments to recognize and respect these values and legitimates the use of coercive force of the state or of the local collectivity, if need be, in order for each citizen to have, related to the established values in legislation, a behaviour that corresponds to judicial norms. Consequently, during this historic stage in Romania, for the ordinary citizen, without much judicial culture, the one who is too little interested in the accuracy of the terms competence, attributions, public interest, public welfare, social scope, and who is mainly interested in his family's living standard, the public servant is synonymous with a man who has the right to order and to control, a "representative of the party in power", the one from whom the citizen expects solutions for every problem. Such representation of the idea of public servant is important because it has had consequences at a judicial level. It regards the fact that social discontent triggered an attitude of hostility, from the part of the citizen towards the members of public service in general, and towards the public servant in particular, as all the social and professional failures are reproached to these people under the label of "bureaucracy" or "corruption". Social psychosis has been reached, regarding the bad quality behavior of the public servant. The representatives of the civil society acted so that terms such as "decisional transparency in public administration", "free access to the information of public interest" become judicial reality throughPage 2the adoption by Parliament of Law no. 544/2001 regarding the free access to the information of public interest, and Law no. 52/2003 regarding decisional transparency in public administration. It has been militated in favor of the assurance of a minimum of protection of the public servant both in his relationship with the citizen, and in relation with the law itself, towards the settlement of their professional and staff rights and obligations, in order to settle, in detail, the stages in the evolution of their career, aspects regarding the responsibility of the public servant and the engagement of his responsibility. At the same time, public servants frequently sustained the need for their activity to be rightly appreciated, from the point of view of both the social importance of their work, and its quality, and for the stability of their function to be assured, so that the political colour of one government shouldn't be a decisive factor in the loss of one's job. Thus, in 1999, the first form of Law no. 188/1999 was adopted, regarding the Statute of Public Servants, a law that once put into practice, generated situations that determined successive modifications. So, regarding the concept of public service and the image of the public servant, two tendencies have been noticed. On the one hand, civil society asked for the creation of a legislative frame which should direct as strictly as possible the behavior of public servants, in order for them to act best for the simultaneous and correlated realization of the individual and public welfare. On the other hand, public servants and other members of the staff in public administration, required regulations that should determine the public to treat them with due consistency and respect, considering that, although sometimes the results of their work are not at the level of their efforts, nevertheless, their results and the efforts that were made towards those results should be equally appreciated. One can establish that, next to the requirement regarding proper payment, the most important requirement of public servants was the regulation of the principle of stability in one's office, as a means of protection against the action of political agents that could remove them from their office just for political reasons.

This was accomplished through the introduction in Article 3 Letter f of Law no. 188/1999 among the principles at the basis of the public office exercise of the principle "stability in the exercise of public office." As a reply, civil society considered that these principles generate the development of the spirit of routine, immobility, and they favor the phenomenon of corruption.

The Romanian legislator considered as necessary the counterbalancing of the principle of stability in office, with the judicial institution of mobility3, and decreed as motives of mobility: the effectiveness of the activity of public authorities and institutions, the public interest, and the public servant's interest in the development of his career. According to the provisions in article 87 Paragraph 3 of Law no. 188/1999, if the mobility of executive public servants and of management public servants is decided in the public interest, public servants cannot refuse the transfer or movement to another unincorporated department or structure of the public authority or institution, except the following situations: "a) pregnancy; b) that person raises his/her minor child by himself/herself; c) his state of health, proved by a medical certificate, will be worsened by a transfer; d)the transfer is made to a location where proper accommodation conditions are not provided; e) that person is the only provider for his family; f) strong family reasons justify the refusal to accept the transfer". The sanction for the refusal expressed by the public servant regarding the measure of transfer and movement in any other situation is dismissal from office. This regulation triggers certain questions. In order to understand the determinations of these questions, we start from the fact that, in Article 56 of Law no. 188/1999, republished, it is specified that: "The occupancy of public...

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