frsrdg · GT04JO1 · 2005-12-01 00:00:00 — I consider that in this case the Security officers should have aborted the enforcement. Had they done so, it could then have taken place with the aircraft that was ready to depart on the morning of the following day. Finally, I find reason to comment on the contents of the statements submitted by officers X and Y to the Parliamentary Ombudsman. In important respects they fail to express self-critical reflection. In their opinion, for instance, the Security had control of the enforcement. In addition, Security officer states that the enforcement of A. and E.Z. did not go so far that the two concerned were subject to any more discomfort that can be considered necessary given the order that was being enforced. I am disturbed by the lack of self-criticism in this attitude, particularly in an operational area that is characterized by secrecy and closed to public control. At the same time, I note with satisfaction K.B.s assertion that it would be alien for him to use a foreign aircraft with foreign security personnel in the way this occurred in this case. I take it for granted that the Security will adopt cogent measures to avoid any repetition of what occurred. As can be seen from its official response, work has already started on reorganizing its operations, enhancing its internal controls and training. In addition, recently issued regulations and general guidelines in this area. With the extremely grave criticism of the Security that I have found reason to express, I conclude this case. 2.2 Criticism of a local authority that took measures against and criticized an official who had availed himself of his constitutional right to freedom of expression had for some time been acting head of the Office for Environmental and Health Care in the local authority of . On January 27, 2004, the local authoritys Environmental and decided among other things that was to be appointed head of the Office for Environmental and Health Care from February 1, 2004, and that was to return to his previous post as and Health Care Inspector. As this decision had been announced before codetermination discussions had been completed, it was revoked in a decision made on February 10, 2004. Subsequently the Board reached a second decision identical to the one revoked. In a complaint against the local authority of submitted to the Parliamentary Ombudsmen on 24, 2004, alleged that because of information published in the mass media the local authority had, among other things, twice reprimanded him in writing and also claimed in a written document that he was disloyal to his employer. The attachments to the complaint included copies of one of the written reprimands and the written document referred to, both dated 1, 2004. The written reprimand, which was signed by the Chairman of the Environmental and , , and by contained the following. (A written reprimand is not to be considered to constitute notice under the terms of your contract (AB, Section 13, point 1) but as an admonition which, if it does not have the intended effect, may be followed by written notice as laid down in the contract.) You have summoned and chaired a meeting (February 11, 2004) about suspected legionnaires disease in the local authority, without contacting the Officer for Infectious Diseases. The Officer considers that your identification of a specific individual in a television interview is tantamount to contravention of the Secrecy Act. This written reprimand is therefore being issued. Your trade union, SAC, will be told that this reprimand has been issued. The document on disloyalty, which was signed by and , the local authoritys Chief Executive, began with an account of the regulations governing the freedom of expression of an employee and the loyalty required of an employee towards the employer. The remainder of the document basically comprised the following. Disloyalty may thus involve an action by an employee that has a negative impact on the employer. We therefore react strongly to actions up to now in the following respects: He has stated (in the press) that the local authority issues bogus invoices. He has claimed that other senior officials dare not say anything for fear of losing their jobs. He has tape recorded meetings. (Without notifying the chair.) In newspaper articles has expressed himself in a that could be considered detrimental to his employer. He has used words that could be considered threatening. He has called the Chief Executive an old social inspector. He has asked to be a member of recruitment groups even though the chairman has asked him to give priority to other matters. He has written to other bodies alleging wrongdoings in the local authority (In what capacity? He has been rude to the Chief Executive. In view of all this, we feel that is disloyal to his employer, the chairman and the board. The executive board of local authority was requested to conduct an investigation as laid down in Sections 1.1 and 12 of Chapter 2 of the Instrument of Government, Section 1.3 of Chapter 1 of the Freedom of the Press Act and Section 2 of Chapter 1 of the Freedom of Expression Act and submit a response to Per allegations that he had been criticized for the statements he had made. On 24, 2004, the executive board decided to submit a report on the case drawn up by its Head of Personnel, U.B., as its rejoinder. This document contained the following statements (no reference is made to the attachments here). Has the local authority imposed any restrictions on right to freedom of expression? Measures adopted by the employer and the investigation into them A reprimand is not a disciplinary measure but one of the alternatives open to an employer to express a or opinion on the way in which a member of the staff discharges his or her duties. Reprimands are issued in order to ensure that members of the staff understand that they have acted in a way that borders on or constitutes transgression of the norms and guidelines laid down in their terms of employment. A reprimand may be followed by written notice if it has no effect. In this case the reprimand contained two sections. You have summoned and chaired a meeting (February 11, 2004) about suspected legionnaires disease in the local authority, without contacting the Officer for Infectious Diseases. local authority considers that should have contacted the Officer for Infectious Diseases when what the local authority considers to be a fatal infection is found in one of its facilities. This is something that the local authority has reacted to. Officer for Infectious Diseases said when I (U.B.) interviewed him that he was surprised that the first information he received about the outbreak of legionnaires disease came to him through the media. He should have been contacted as soon as the infection was suspected. He also says that local authority has for some years failed to attend the meetings at which he has provided information on issues such as these. says that when the meeting was called he was acting head of the Office for Environmental and Health Care but that when the meeting took place a new head had been appointed, who signed the infectious diseases control order and who should have informed the Officer. The Officer considers that your identification of a specific individual in a television interview is tantamount to contravention of the Secrecy Act. During my meeting with the Officer for Infectious Diseases, G.H., he made the following remark about the television interview: I learnt more about the patient than can be expected according to the current regulations on secrecy. asserts that he did not claim that had divulged this kind of information but that it possibly came from one of the documents released by the local authority in which information subject to secrecy had not been deleted to the extent required. It has not been possible to determine which documents were released in addition to those accounted for in 1. On the other hand it is more than likely that took the television news team into the old peoples home where pictures were taken of one of the residents and of the door of the accommodation where samples had been collected on which the number was clearly visible. The journalist also described the infected patient in terms that made it possible to identify him, when he had fallen ill and that he was now recovering. himself considers that it was impossible to conceal the source of the legionella infection as the local authority had put up signs about the risk of infection and forbidden residents to take showers in the (1). The local authority has not accused of any infringement of the secrecy regulations but has rather conveyed the opinion of the Officer for Infectious Diseases that his actions were tantamount to violation of the Secrecy Act, which was pointed out in the reprimand. The employer considers that the reprimand was directed at the way in which discharged his duties and not his constitutional right to freedom of expression. 2.2 The more general document The other document referred to is not linked to the reprimand that was issued. It was intended to present a reaction to a number of actions and statements. The points in this document related to freedom of expression are: He has stated (in the press) that the local authority issues bogus invoices (4. p. The employer considers that in one article made it appear as if the local authority issues bogus invoices even though these were not the exact words used. He did however use this expression when talking to the Chief Executive, who came to the conclusion that he had said the same thing to the media. He is also quoted in the article where he claims that the local authority is breaking the law. On a later occasion his direct response to a question was the local authority is not breaking the law, or at least it has not been taken to court. In newspaper articles has expressed himself in a that could be considered detrimental to his employer (Annexes 2, 3, 5 and 6). He claims that the Office for Environmental and Health Care is facing a burnout situation (2, p. 1, 5, p. His response to a question about burnout among the staff of the Office for Environmental and Health Care was as follows: At times the work load is very high. Inadequate organisation and lack of planning contributed to the stress. It is difficult to say anything about the risk of burnout. (8). The work load is in itself great and it is difficult to do all that is demanded. The degree of overtime at the office is not at all remarkably large (7). does the amount of sick leave give cause to consider that there is a burnout situation (10). The local authority does not consider that the situation has been as catastrophic as suggested by in the article. Here the employers opinion is endorsed by other members of the staff. The inadequate organization according to the responses of the staff can mainly be ascribed to as acting head. He claims that the reorganization that is taking place is mainly intended to silence (3, p. 2; 5, p. The reorganization is mainly being undertaken to allow more time to be devoted to inspections and similar activities. This is part of the plan to improve the quality of the operations of the Office for Environmental and Health Care. This is not made clear in statement. Reorganizing the work of the office would not silence as his work would still provide him with insight into the workings of the office and he is still free to express his opinions, even though the employer makes certain demands of its officials. has it ever been the local authoritys intention to make head of the office on a permanent basis. He claims that local authority is failing to comply with the Work Environment Act in not undertaking an impact analysis of the reorganization (3, p. 2; 6, p. The reorganization is in itself a measure based on own statements about the work environment. One can also observe that he himself has made no officially correct impact analysis of the work environment during the period in which he was responsible for the management of the office. It goes without saying that the work environment endeavours of the local authority can be improved and development work is constantly under way in this area. This was not made clear by statements. The employer does not consider that this reaction was directed at constitutional freedom of expression. On the contrary this is indicated at the beginning of the document. The employer considers that these statements were made in his capacity as an employee and public official. While carrying out his duties he has opposed operations and operational decisions and acted in ways that have made it difficult to cooperate with him. Comments on document Silence is golden (9) I asked for his comments on the different events referred to in the papers from the Parliamentary Ombudsmen. chose to comment in writing and wanted the whole of his response to be submitted as an attachment. This attachment offers a description of a sequence of events that is on the whole correct but the conclusions that draws from them differ from those of the employer. The work load at the office is high, but has not in recent time given rise to any burnout. The case referred to took place some time in 1999. criticizes the solution offered by the reorganisation but has no other proposal. The employer is making the changes in order to enable expert resources, as represented by , to be made available for inspection procedures by transferring administrative responsibilities to the new manager. The paid as damages has nothing to do with the substance of this case. It was paid as the result of a formal mistake by the employer with regard to codetermination procedures as laid down in the Employment (Codetermination in the Workplace) Act. Where the reprimand issued to is concerned, it is impossible to determine what confidential information was divulged to the public or how. However, if had requested the attendance of the Officer for Infectious Diseases at the meeting he summoned or had informed him of the meeting, the local authority would have been given the advice needed concerning secrecy. When the meeting was called, was acting head. Even though a new head had been appointed shortly before the meeting, should have offered his advice in his expert capacity. has attended the meetings to which he has been invited by the Officer for Infectious Diseases at which he could have acquired information about cases like these. The statement about bogus invoices cannot be attributed to , but the statement made by him later in the article about the local authority breaking the law, a statement later retracted by , may make the impression that bogus invoices have occurred. Where other statements in the media are concerned, it can be determined from the quotations in the articles that has not provided complete information and that he has expressed himself in a way that can impair the confidence of the general public in the local authority as a public authority and employer. In one case at least, with regard to the burnout situation, it can be shown that the statement was totally erroneous. It is important for the local authoritys officials to provide the general public with correct and comprehensive information even if this information is then circulated by the mass media. The lack of guidelines on information issues and lack of expertise in dealing with secrecy in cases involving infectious diseases may also have played a contributory role in this sequence of events. In connection with its decision to adopt this report as its response, also decided to ask the Chief Executive to draw up guidelines for its officials on how to deal with contacts with the media. submitted his comments on this response. The adjudication issued by the Parliamentary Ombudsman, , on 21, 2005, contained the following observations. The Parliamentary Ombudsmen do not as a rule look into complaints that concern the relationships between employers and employees. This is because there are special channels for the resolution of such disputes. These are to be dealt with through negotiations with the trade unions or, as a last resort, a judicial hearing as laid down in The Labour Disputes (Judicial Procedures) Act (1974:371). Moreover, in certain areas, the local authorities enjoy extensive autonomy. According to the regulations governing the work of the Parliamentary Ombudsmen, they are to exercise restraint in expressing opinions on issues relating to these areas. The Parliamentary Ombudsmen have no powers at all to scrutinize the actions of elected members of local councils. In view of what is said here, I have restricted my appraisal to the allegations by that he has been criticized for statements he has made. Article 1 of Chapter 2 of the Instrument of Government lays down that all citizens shall be guaranteed freedom of expression in their relations with the public administration, i.e. freedom to communicate information or express ideas, opinions and emotions orally, in writing, in pictorial representations or in any other way. Freedom of expression may only be restricted to the extent and in the laid down in Articles 12 and 13. Significant restrictions of freedom of expression stem from the various provisions in the Secrecy Act (1980:100) on confidentiality in public services. The provisions on the communication of information in the Freedom of the Press Act and the Freedom of Expression Act provide some further degree of special protection for freedom of expression. Article 1 of Chapter 1 of the Freedom of the Press Act stipulates that freedom to communicate information means that each and every individual is entitled, subject to certain exceptions listed in the Act, to make statements and communicate information on any subject whatsoever for the purpose of publication in print to the author or to any person who shall be considered the originator of the material in such a publication, to the responsible publisher or editorial office, if any, of any publication or to an enterprise which professionally purveys news or other information for periodical publication. Corresponding regulations concerning the provision of information for radio and television broadcasts, for instance, can be found in Article 2 of Chapter 1 of the Freedom of Expression Act. These statutes provide the same guarantees to public officials as to anyone else. Therefore public officials may express their opinions freely, even those concerning the operations of their own agencies, provided that this information is not subject to confidentiality. The freedom of expression enshrined constitutionally in the Instrument of Government together with the Freedom of the Press Act and the Freedom of Expression Act provides guarantees in relations with the public administration. The public administration comprises, for example, the elected councils of the local authorities and their administrative departments. This guarantee means that no public authority may invoke measures against individuals because they have taken advantage of their constitutional right to express themselves in the mass media or express their opinion in any other way. may a public authority attempt to hinder employees from exercising their rights, either by making general statements or criticizing individuals, or attempt to influence the way in which employees make use of their freedom of expression. This also applies in cases where the public authority considers that the employee has provided erroneous information. Instead, the public authority is required to challenge and correct this information in some appropriate way. The employees of public authorities are therefore entitled to express their opinions about the operations of the authority in public without reprisal by the authority. The provisions guaranteeing freedom of expression do not exonerate employees from the obligation to comply loyally with the decisions of their employers and operational directives. As has been made clear, however, this in no way prevents employees from freely expressing their private opinions about such decisions and directives. Moreover there is nothing to stop an authority from deciding what standpoint to adopt officially on various issues or to appoint a specific individual to speak on its behalf. However, this does not of course limit the possibility open to such individuals or any other employees of expressing their private opinions. Against the background of the regulations described above, the information that has come to light in this case gives me cause to express the following opinion. In a written reprimand and a specific document on disloyalty the local authority has criticized , among other things for statements he has made about certain circumstances in the local authority. Some of these statements were made to the press and on television. In this connection, and in my opinion in obvious breach of the regulations, the local authority has taken the measure of criticizing for the way in which he has exercised his constitutional freedom of expression. What is remarkable is also that where the events of February 11, 2004, are concerned the local authority has not even claimed that has committed any offence with regards to secrecy on this occasion. These actions and the contents of the local authoritys response disclose a remarkable lack of awareness of the legal regulations in this field. This is made clear not least by the local authoritys repetition of its criticism in the response and the amount of space devoted to attempts to dispute the personal opinions on circumstances in the local authority ascribed to . To sum up, I am highly critical of the actions of the local authority towards . I presume that the executive board will immediately ensure that it and the relevant members of its staff are informed about the regulations. Other matters that have come to light in this case do not give me any cause to express an opinion or invoke any other measure. This concludes the case. 2.3 The question of whether a local authority is entitled to make savings by deciding, for instance, that implementation of specific decisions on support as laid down in the Act are to be suspended for a period In it came to the attention of the Parliamentary Ombudsmen that in the local authority of had decided at a meeting on 8, 2004, on budget cuts for 2004. Item 125 in the minutes of this meeting, under the heading of Cases, contained the following. At the meeting of on 26, 2004, the question of the budget for the current year was raised. Earlier forecasts had indicated a significant deficit. In the forecast made on April 30, 2004, this amounted to ,500,000. At its suggestion, the board requested the executive to draw up plans for savings and an analysis of their impact in relation to the current budgetary limits. (§ 88/04). decided at its meeting on 17, 2004, (item 107) to apply for an additional million as supplementary funding from the Council, corresponding to the Boards budget deficit according to the budget forecast made on 31, 2004. At its session on 30, 2004, the Council rejected the application by for additional funding and stated that the Board itself was responsible for the decisions that would enable it to tailor its operations to the budget allocated by the Council. At the meeting of the board a memorandum was circulated dated 4, 2004, drawn up by the local authoritys Chief Executive, . This indicated areas in which the board of social welfare could make savings in its expenditure. Where services for the elderly and the disabled were concerned it stated that No decisions on personal assistants will be implemented. It also contained the following remarks about psychiatric units and the Act concerning Support and Service for Persons with Certain Functional Impairments.