frsrdg · GY04JO1 · 2010-11-10 00:00:00 — was informed of his right to defence counsel and also that if the case came to trial he wanted Per Stadig. has stated that he routinely asks suspects whether they want a de- fence counsel to be present while they are questioned and that he did so in this case as well. He has also stated that P.P. agreed to be questioned without the presence of a lawyer. The enquiry discloses that on at least one occasion before the interrogation began P.P. requested to be able to contact his defence counsel. For this reason in particular I consider that, irrespective of any attitude P.P. may have ex- pressed while being questioned, the interrogation should never have been held without allowing the suspect the possibility of legal assistance. I also assume that if the had complied with P.Ps earlier request to be able to contact his defence counsel, this would have ensured that P.P. had legal advice during the interrogation. There are therefore grounds for criticising the officer in this respect as well. No other circumstances that have come to light prompt any statement from me. Finally it can be mentioned that in another adjudication today I have ex- pressed an opinion on the right to defence council of a suspect who had not yet reached the age of 18 (see reg. 3741-2008, this adjudication is avail- able on . 2 010 /1 1:JO1 B I L A G A 10 Violation of the freedom of expression of an employee (Decision of the Parliamentary Ombudsman . Axberger issued 25 Septem- ber 2009, reg. Summary of the decision: An employee of was reas- signed to a subordinate position. The measure was judged to be the result of opinions on political questions published by the employee on the Internet. The protection offered by the constitution to freedom of expressions means, among other things, that the public administration may not invoke reprisals against individuals who have availed themselves of this freedom. In this case there were no grounds for any exception from this prohibition. The reassign- ment was therefore unconstitutional. According to an article in had sacked the head of a unit, , because of a blog he had written about the conflict between and (, 8 January 2009). The article included information from a judgment in a labour market dispute between the board and the head of the unit. The Parliamentary Ombudsman asked for a copy of the judgment (issued by District Court on in case number T2187-07). Two complaints were submitted to the Parliamentary Ombudsmen, one from , the lawyer who had represented the head of the unit in the labour market dispute. He attached a number of documents. was asked to submit an opinion on what had oc- curred and its deliberations, in particular with respect to an individuals free- dom of opinion and expression. The enquiry disclosed the following. began to work for in the 1980s. In 2002 he became the head of a unit. After taking a sabbatical year he returned to his post in the autumn of 2007. A new operational manager, , had been appointed and had a number of discussions with . He then decided not to allow to return to his post as head of a unit but reassigned him. began proceedings against grounds that the reassignment should be considered a dismissal and should then be declared invalid. District Court found that the reas- signment involved such a major change in employment that it should be considered a dismissal, a view which in the opinion of the court was supported by its actual intention, which was to persuade to terminate his employment. had acknowledged that there were no objective grounds for dismissal. The conclusion of the district court was therefore that the board was in breach of the Employment Protection Act. claim for damages was granted. As did not maintain there were objective grounds for the dismissal, the circumstances that had given rise to the measures adopted by the board were not subject to review. The judgment gained legal force. B I L A G A 10 20 10 /11 :JO1 The reasons for the reassignment of have been described in various ways. In the labour market dispute in District Court cited what was described as an official written record made by . In it he presents his reasoning in the following : At the moment has the post of head of asylum application review unit 1 in . I intend to make the decision that he is no longer to occupy this post. These are my reasons: 1.Lennart has a home page in which he gives the Israeli side in the conflict his unqualified support. In view of the fact that the conflict gives rise to asylum applicants from the side, public support for the Israeli side is incompatible with a position as head of an asylum application review unit at . In spite of my comments has not removed or modified the contents of his home page. 2.In the same home page expresses his admiration of General : today best known for his actions in during the final phase of the Second World War when he disobeyed explicit orders and continued his advance northwards. admiration of an individual famous for his lack of allegiance to his superiors has a nega- tive impact on my confidence in . 3.Asylum application review in has historically never been suc- cessful. Fundamental changes have to be made in this area. capacity to implement these changes is restricted to no small extent by his need to give public expression to his private and in no way uncontroversial opinions on various issues. 4.Lennart has cited two referees in support of his managerial capacity. They have both stated spontaneously that they would never themselves, for instance, have appointed to a manage- rial position. 5.I had no preconceived ideas when I initiated my discussions with . The dialogue that has resulted from our talks has been remark- able. During my years as manager I have been called on to cooperate and conduct discussions with at least two hundred senior employees. Never before have I encountered such unreasonableness and lack of to reach a solution to a problem that can be acceptable to both parties. This impression inspires in me grave concerns about abil- ity to deal with conflicts of interest among those subordinate to him. These reasons have led me to the conclusion that I lack confidence in capacity to lead a unit involved in asylum application review and it is therefore unthinkable for me to have him as a subordinate manager. During the Migration Boards enquiry in preparation for its response to the Parliamentary Ombudsmen made the following statement. The actual events and the grounds for my standpoint are made clear in the judgment of District Court. In addition I would like to submit the following: During the period was head of the unit in , asy- lum review in developed in a very negative direction. Productivity was extremely low and the working climate insalubrious. When I took over as head of asylum application review operations in the summer of 2007 things 2 010 /1 1:JO1 B I L A G A 10 had come to such a pass that I was recommended to close down operations in . personal qualities make him unsuitable as a manager. This is a fact that nobody during these proceedings has called into question. For the head of one of the Migration Boards asylum application review units to actively and publicly profess a one-sided and forceful opinion on a conflict that generates flows of refugees to seriously jeopardises the confidence of the general public and of applicants in the capacity of the board to review their applications impartially. Failure to realise this is proof of poor judgement. It is not possible to discharge the duties of a manager in an ac- ceptable with this degree of poor judgement. With my managerial responsibilities, I cannot accept actions by one of my subordinate managers that directly damage our employer and the work we undertake. has, of course, the right to whatever opinions he likes. Naturally he is also entitled to propound these opinions without restraint. This applies to just as it does to anyone else. But when ones opinions injure ones employer and the confidence of those around us in the employers ability to operate, as an individual one is faced with a choice. I believe that nearly everybody experiences this conflict to some extent and that everybody realises that a choice has to be made between ones own and ones employers interests and then take responsibility for ones actions. As can be seen, it was not blog that led me to adopt my standpoint. His lack of judgement and his negative managerial qualities were the decisive factors. But there is naturally a link. I believe the link can be illustrated with the following example. During the first discussion I had with he asked me if he could retain his position as head of the unit if he removed his blog. If my intention had been merely to get rid of the blog it would have been simple for me to respond to his question by saying yes. But I did not. On the other hand the lack of insight into the inappropriateness of his own behaviour startled me. claimed, judging from its submission to Dis- trict Court, that the reassignment of was based on the lack of mutual trust that had developed between and after their discussions. The written record kept by discloses, according to the board, that the measure was due to lack of confidence in as head of the unit. In its judgment the court quotes the board as stating that no other grounds for the reassignment decision than those con- tained in these official records, such as political affiliation, have existed (District Court judgment, p. In its submission to the Parliamentary Ombudsmen , referring to description, states that the reassignment of Len- nart was the result of lack of managing qualities. At the same time the board claims that in his written record should have expressed this more explicitly and that there has been an unfortunate confusion of opinions and his managing shortcomings. The board's submission also makes it clear that em- ployment was terminated after the district court had issued its judgment. This decision was made by . received standardised dam- ages, as laid down in the Act. The documents reveal that altogether, as a result of the various decisions made by , the Mi- B I L A G A 10 20 10 /11 :JO1 gration Board paid out almost million to in the form of damages, including interest, and compensation for trial costs. Certain premises for the Parliamentary Ombudsmans adjudication The Parliamentary Ombudsmans decision focuses on deci- sion that was no longer to be head of a unit but would be reassigned to a less senior post. There are indications that the discussions to which summoned before this decision were prompted by publications on the Internet. These initial discussions are, how- ever, of subordinate interest in relation to the measure later adopted by . They give rise to no opinion from me other than the obvious state- ment that a public agency is not entitled to try to prevent employees from making use of their freedom of expression. The decision of after District Court had is- sued its judgment to terminate employment is currently the subject of court proceedings as brought a case against the board asking for the decision to be declared invalid. A parallel review by the Parliamentary Ombudsmen would be inappropriate and therefore I will not express an opin- ion on this issue. The other aspects of the complaint such as the arguments circulated by representatives of the Board through the mass media and in internal information take second place to the main issue and therefore will not be included in my judgement. No more detailed information about the contents of home page has been offered in the presentation of the background. There is no reason to do so as this case deals with a question of principle, an em- ployees freedom of expression. In this connection it should be noted that the opinions to which attention was drawn did not involve disclosure of circum- stances regarded by as confidential or in any way inter- nal. does the issue touch on the relationship between obligations of loy- alty and the right to criticise. What has to be appraised concerns the right of an employee to express an opinion on general political issues vis-à-vis the restraint that a public agency may require from a member of its staff in this respect. My judgement begins with an account of the protection offered by the con- stitution for freedom of expression and the prohibition of reprisals against anyone who avails themselves of this protection. On account of the arguments referred to by representatives of , I discuss in particular the scope open to an agency for intervention against an employee whose opin- ions, in the view of the agencys representatives, impair confidence in its operations. It is against this background that the measures invoked against are considered. 2 010 /1 1:JO1 B I L A G A 10 The basic legal provisions The constitution lays down in the first section of Article 1 of Chapter 2 of the Instrument of Government that all citizens are guaranteed freedom of expression in their relations with the public administration. This individual freedom, as is also laid down in the constitution, cannot be restricted other than under certain specified conditions and then in accordance with legisla- tion enacted by the Riksdag. Those who avail themselves of their freedom of expression in any of the forms specifically provided for in the Freedom of the Press Act (FPA) and the Fundamental on Freedom of Expression (FLFE) may not be subject to any sanctions by the public administration other than those explicitly permit- ted in these constitutional enactments. What is known as the prohibition of reprisals, which has a long tradition, has found expression in judicial praxis and in a number of decisions by the Parliamentary Ombudsmen and the Chancellor of . Offences against the prohibition of reprisals laid down by the FPA and the FLFE can be penalised as misuse of office. (The prohibi- tion of reprisals has recently been subject to review in the legislative context, see SOU 2009:14. For a general description see , Offentligt anställdas yttrandefrihet och repressalieförbudets räckvidd [The scope of the freedom of expression of employees and the prohibition of reprisals], in JO lagarnas väktare [the Parliamentary Ombudsmen guardians of the law], 2009.) The provision in the first section of Article 1 of Chapter 2 of the Instru- ment of Government means that a comparable approach must be adopted when viewing the way in which individuals have availed themselves of their freedom of expression in ways other than those laid down in the FPA and FLFE. Protection against reprisals is therefore offered within the framework of the Instrument of Government even when the FPA and FLFE cannot be applied. What is prohibited is made reasonably clear by the very wording of the re- prisals concept. Not every measure adopted by a public agency that is linked to what has been expressed by an individual need be unlawful. The measure must be one which can be seen as a punishment or reprimand of the individ- ual who used this freedom of expression. A negative change in a civil ser- vants employment conditions offers a typical example of a measure of this kind. Measures taken by public authorities as a result of the public expression of opinions by an employee One of the implications of the provision of freedom of opinion and expression is that the public administration may not intervene on the issue of what opin- ions employees hold and how they avail themselves of their freedom to ex- press them. A public employer may not, therefore, demand that members of its staff refrain from expressing values of any kind. This applies even when they may seem to deviate entirely from the values upheld by the employer. requirement from a public authority that its employees should embrace B I L A G A 10 20 10 /11 :JO1 certain values is in conflict with the constitutional provision on an individ- uals freedom of opinion and expression. Confidence in an authority is not maintained by superintendence of its employees opinions but through the exercise of its undertakings in compliance with the law and ensuring that this is the case. In principle, therefore, the opinions of a public employee even those ex- pressed publicly are a private concern. Public officials are expected to have the capacity to be objective and not to allow themselves to be influenced by irrelevant considerations, such as personal opinions, irrespective of the nature of these opinions. This is a requirement that ultimately derives from Article 9 of Chapter 1 of the Instrument of Government, which lays down that those performing functions in the public administration shall observe in their work the equality of all persons before the law and shall maintain objectivity and impartiality. If it transpires in any individual case that a public official has failed to comply with this requirement the employer may, naturally, invoke measures. But they are then based in this context on the autonomous circum- stance that the employee has failed to discharge his duties correctly. This means that the measure is not the result of the employees opinions or their expression, which should be excluded from any appraisal, but intended to remedy the wrongful use of office. It is probably impossible to maintain the principle that the publicly ex- pressed opinions of a public official are a private concern with no exceptions whatsoever. One must expect that for instance a decision maker, whose per- sonal opinions have attracted attention, may in the eyes of the public appear less suitable to deal with issues of a certain kind and that this may sometimes entitle a public authority to adopt measures. This is a matter of preventing any impairment of confidence of the kind that it would risk through accusations of partiality. As is well known, questions regarding impartiality can arise when anyone making a decision may be seen to have the kind of link to what is being determined that is likely to give rise to doubts about their objectivity in the parties involved or the general public. Measures may therefore be justifi- able even when there exist no actual grounds in themselves for believing that the official concerned lacks the ability to disregard his own private convic- tions. The impartiality of the public authorities is, like the protection for freedom of expression, enshrined in the constitution. These are, therefore, two equally important constitutional provisions that have to be balanced against each other if they are in conflict. If the outcome of such an appraisal is that an officials public statements should lead to any action by the authority, this action must, of course, be limited to what is absolutely necessary to deal with the conflict of interest that has arisen. It should be observed that in the rare cases when such conflicts arise there probably exists scope for their resolution through agreement between the official and his or her managers within the framework of their conditions of employment and without this solution ap- pearing to be a reprisal. To the best of my knowledge there are no precedents that show that the adoption of measures against an employees freedom of expression have been 2 010 /1 1:JO1 B I L A G A 10 accepted through reference to an authoritys obligation to uphold confidence in the impartiality of its operations. On the other hand, there are examples in which measures comparable with those adopted in this case were not consid- ered justifiable. In a judgment of the Swedish Labour Court, AD 1991 no. 106, in a case that was in principle very like this one, arguments similar to those advanced here were rejected. The case concerned an officer in a deten- tion centre who had publicly declared support for xenophobic opinions. Prison and , which wanted to reassign the officer, considered that confidence in the correct treatment of those incarcer- ated at the centre at which he worked could be impaired by the opinions he had expressed. The Labour Court rejected the grounds adduced by the Na- tional Prison and and found that there were no legal grounds for the reassignment of the officer. A later case, AD 2007 no. 20, concerned a inspector who had sent private e-mails with xenophobic contents to a local councillor and others. The contents of these messages became public and the inspector was dismissed. In the opinion of the Labour Court the grounds adduced by the employer for this dismissal were the state- ments and the impairment of confidence in the force they gave rise to. The Labour Court did not accept these grounds and did not find any objective grounds for dismissal. There is also a decision from the Chancellor of issued on 7 2008, reg. 7068-06-21 etc., which dealt with a trainee at an embassy who belonged to an extreme-right organisation. The common factor in the cases cited is that the impairment of confidence that the authorities believed they risked were of a general nature and could not be related to concrete operational problems. They provide support for the initial claim, i.e. that any an authority may have for its staff to desist as private individuals from expressing certain types of values for the sake of the authoritys reputation is in conflict with freedom of opinion and expression. The measures adopted against The document in which accounts for his considerations lead- ing to the decision to reassign lists five reasons. The fourth point presents laconic, generally worded and not easily interpreted assess- ments from anonymous referees; I consider that in this context I may disre- gard its contents. The fifth point contains the conclusions came to after his discussion with . Taken together with what is noted in the three initial points, the fifth point can only be understood as a reference to willingness to cooperate on a solution to the problem that considered statements to pose. The statement later submitted by in the context of the en- quiry by , refers to the extremely negative development of unit. The way in which this was due to , who had then been absent from its operations during his sabbatical, is not made clear other than in the general assessment that personal qualities made him unsuitable as a manager. This view is linked in its turn directly to and public profession of a one-sided and forceful opinion B I L A G A 10 20 10 /11 :JO1 on a conflict that generates flows of refugees to . Because, according to , this seriously damaged the confidence of the public and of appli- cants in the capacity of to assess applications for asylum impartially, expression of these opinions testified to bad judgement. has not, therefore, adduced any other concrete grounds for his measures than those based on the adoption by , while at the same time head of a unit at , of a particular standpoint on what were considered to be politically controversial issues. seems to claim that it was not the opinions or their expression he objected to but the lack of judgement that given his position at revealed through failing to bridle his personal freedom of expression. The one cannot, however, be kept separate from the other. To say that an employee is entitled to express an opinion but not to display the lack of judgement that one considers this expression to involve is merely another way of describing a prohibition against expression of the opinion. The measures adopted and the reasons given for doing so clearly show, therefore, that through took action against that stemmed from what he had expressed in a con- text unrelated to his post. labelled its removal of Eriks- son as a reassignment. Subsequently, in a judgment that has gained legal force, this was considered to be a dismissal and an unlawful one as well. As has been demonstrated above a negative change in the terms of employment of a public employee is a typical example of a reprisal.