International Society for Fair Elections and Democracy

Monitoring of Selection and Certification Process in Civil Service

Summary Report

Reporting period: October 2014 – November 2015

December 22, 2015

Tbilisi

This report is made possible by the generous support of the American people through the

United States Agency for International Development (USAID). The contents are the

responsibility of the International Society for Fair Elections and Democracy and do not

necessarily reflect the views of USAID, American people or the United States Government.

Findings of the Monitoring of Selection and Certification Process in Civil Service

Methodology

From October 2014 through November 2015, International Society for Fair Elections

and Democracy (ISFED) monitored tests and interviews1

within selection and

certification process in civil service in all self-governing cities and municipalities of

Georgia.

73 monitors of ISFED evaluated the process of tests and interviews by using a pre-

designed questionnaire2

. ISFED was actively working with Commissions for

Selection and Certification and local self-government (LSG) bodies to obtain

information about outcomes of selection process in general and in particular, names of

candidates appointed to vacant positions. Based on the information, ISFED performed

comparative analysis to determine whether these commissions evaluated candidates in

a fair manner during interviews and delivered objective decisions3.

ISFED studied the Decree of the Government of Georgia no.412 on rules of selection

process envisaged by the Law of Georgia on Civil Service, in addition to regulations

of 70 different Commissions for Selection and Certification4. ISFED also analyzed

the section of the new law on Civil Service, which deals with rules of selection

process and rights of candidates. The law was adopted by the Parliament of Georgia

on October 27, 2015.

ISFED published 3 interim reports about findings of the monitoring of the selection

and certification process5.

This report covers legal assessment of the process of selection in civil service and

presents key trends identified by the monitoring. The report also features ISFED’s

opinion about the new law on Civil Service adopted by the Georgian Parliament on

October 27, 2015.

Legal assessment of the process and key trends identified

Principles of selection process and practice of courts

1 ISFED’s monitors observed tests for over 1000 candidates and interviews with nearly 8000

candidates; in addition, tests and interviews were not held in the city of Poti. 2 Because of restrictions placed by LSG entities, ISFED was unable to attend commission meetings

were final decisions were made about candidates. Therefore, ISFED’s assessments are largely based on

observer reports about how well candidates performed during interviews, how many questions he or

she was able to answer, whether his/her answers were correct and if s/he was knowledgeable about

important issues relevant to a specific job opening. 3 ISFED was unable to perform comparative analysis for 40 self-governing entities due to restrictions

placed on monitoring and access to information. 4 ISFED examined regulations available at www.macne.gov.ge;

5 See interim reports: http://www.isfed.ge/main/808/geo/; http://www.isfed.ge/main/855/geo/;

http://www.isfed.ge/main/896/geo/.

By virtue of amendments to the Law of Georgia on Public Service6, executive

authority has been delegated with the power to design regulations for selection

process in civil service.

By its June 18, 2014 Decree no.412, the Government of Georgia adopted regulations

for selection process envisaged by the Law of Georgia on Civil Service. The Decree

regulates procedures for selection of candidates to fill vacant positions in civil service,

stages of the selection process, establishment of Commissions for Selection and

Certification and their activities.

Based on the Decree no.412 of the Government of Georgia, Sakrebulos (local

councils) elaborated regulations of Commissions for Selection and Certification,

setting out rules of selection process in further detail.

By virtue of the Government Decree no.412, selection is evaluation of candidates

based on a pre-determined criteria for a specific job (opening), as prescribed by

applicable Georgian legislation, whereas selection principles include: legality,

fairness, public access, transparency, non-discrimination, objectiveness,

impartiality, collegiality, correctness.

Decree no.412 does not elaborate any further on the above principles; neither does it

make a reference to a specific legal act that would explain their meaning. Although

individual provisions of the decree reflect the above principles, it is important for the

law to expressly define their meaning, in order to avoid any inconsistent application

of the principles.

Notably, out of the regulations of 70 different commissions examined by ISFED, 60

define key principles of the selection process, while 10 do not provide any such

principles7.

Unlike the decree no.412, regulations of 66 different commissions approved by

Sakrebulos explain the meaning of basic principles of competition8, which is very

important for promoting consistent interpretation of the principles; however,

regulations of the commissions in the following three municipalities do not provide

any definition of the principles: Dmanisi, Kaspi and Mestia.

One of the most important principles of selection process is public access Decree

no.412 does not define what “public access” means, which creates certain obstacles to

transparency and openness of the commissions. Regulations of 70 different

commissions analyzed by ISFED provide rules for accessing legal acts (about

selection procedures) and proceedings of commission meetings. However,

regulations of 66 commissions do not contain any rules for allowing third parties

to attend commission meetings to monitor work of the commission. Regulations

of commissions in the following four municipalities are the only ones that set out such

rules: Khulo, Zestaponi, Kharagauli and Chiatura.

6 Amendments to the Law of Georgia in Civil Service, dated September 20, 2013, available at:

https://matsne.gov.ge/ka/document/view/2030263#DOCUMENT:1. 7 Kobuleti, Shuakhevi, Batumi City Hall, Batumi Sakrebulo, Kharagauli, Chiatura, Mestia, city of

Telavi, Gardabani Sakrebulo, Tbilisi Sakrebulo. 8

For instance, regulations of commissions for selection and certification in the following

municipalities: Abasha, Adigeni, Ambrolauri, Aspindza, Akhalkalaki, Akhaltsikhe, Akhmeta,

Baghdati, Bolnisi, Gardabani, Gori, Gurjaani, Dedoplistskaro, Vani, Zestaponi, Zugdidi.

During the monitoring, ISFED identified instances of violation of the principles of

public access. In particular, ISFED’s representatives faced obstacles to accessing

public information and implementing monitoring.

ISFED filed 850 formal requests for public information with select self-governing

entities and Commissions for Selection and Certification. Over 300 requests were

responded in violation of applicable laws by 61 LSG entities and 52 commissions. In

particular, 43% of LSG entities and 68% of Commissions for Selection and

Certification responded to ISFED’s requests for public information deficiently, in

violation of important legal requirements9. In addition, 26 commissions

10 declined

ISFED’s requests for information about final results of selection and certification

process. 19 of those 26 commissions declined the requests stating that the information

requested by ISFED was categorized as personal data, while others were reluctant to

clarify the cause of their refusal or did not respond to ISFED’s requests at all.

ISFED believes that the above commissions and LSG entities acted illegally by

refusing to provide access to the public information requested. Because the process of

selection and certification in civil service at the local level is an area of public

interest, any documents must be publicly accessible. This will allow determining

whether commissions evaluated candidates fairly and delivered objective and legal

decisions. To this end, cooperation with organizations that monitor and evaluate the

process of selection and certification, and inform the public is especially important.

In addition to obstacles to accessing public information, ISFED faced difficulties in

monitoring. In particular, ISFED’s right to monitor the process of interviews was

restricted completely or to a certain extent in 15 self-governing entities11

, which

suggests lack of uniformity in matters related to public access to commission

activities. Furthermore, ISFED was not allowed to attend any of the commission

meetings where final decisions were made.

ISFED filed 7 complaints in court over violations of principles of selection12

. Court’s

decisions were made based on a broad and fair interpretation of individual

principles, including public access, legality, equality and objectiveness.

ISFED filed two complaints in Gurjaani and Akhtaltsikhe District Courts over

problems with access to public information, requesting access to information about

selection process in self-governing entities13

. Notably, Gamgeobas of Gurjaani and

9 Total of 142 self-govenring entities (including 59 Gamgeobas, 71 Sakrebulos, 12 City Halls); 77

commissions for selection and certification.

11

ISFED was allowed to monitor the process of interviews in the following 5 self-governing entities

but with certain limitations: Tbilisi City Hall, Kutaisi City Hall, Gori City Hall, Telavi City Hall,

Lanchkhuti Municipality. The following 10 self-govenring entities refused to allow monitoring of

interviews: Ozurgeti City Hall, Rustavi City Hall, and municipalities of Akhaltsikhe, Ozurgeti,

Aspindza, Kareli, Telavi, Terjola, Sagarejo, Tetritskaro. 12

District courts of Zestaponi, Tsageri, Akhaltsikhe, Gurjaani, Tetritskaro, and Kutaisi Appellate

Court. 13

ISFED requested access to the following information: number of vacant positions for which

candidates were competing in selection process and number of positions filled as a result of selection

process; number of positions filled by temporary appointees who were working in the position

concerned before announcement of selection process; total number of individuals who failed

tests/interviews but were temporarily appointed to the position for which they were competing.

Akhtaltsikhe municipalities granted ISFED’s request and provided public information

after the complaints were filed and before court hearings were scheduled.

District courts of Tetritskaro and Akhaltsikhe made important decisions following

ISFED’s complaint and interpreted the issue of public access to work of commissions

for selection and certification. The complaint was filed in reaction to decisions of a

commission, denying ISFED the right to attend interviews, stating that because the

commission was already manned by members of labor unions, independent

specialists, it was unreasonable to allow representatives of any other NGOs to attend

the process.

The court clarified that commission for selection and certification of municipal

employees is a public entity and therefore, its activities must be in compliance with

requirements of the Law of Georgia on Civil Service and the principles reinforced by

this law.

In its activities the commission must abide by key principles of public service,

including openness. The court explained: “openness is one of the most important

grounds that determines trust of citizens and public in general towards all agencies

and especially towards public agencies. Clearly, monitoring does not mean any

interference in the process of interviews. Objective monitoring rules out any bias.”

Further, the court believes that public access should not be narrowly defined as

access of interested individuals to results of selection process. Rather, interested

individuals should have access to meetings of commissions and be able to

monitor their activities.

In addition, commissions for selection and certification in civil service at the

municipal level is a corporate public agency, whereas drafting and adoption of

decisions by corporate public agencies are subject to a special legal regime because

their decisions fall under the area of a special public interest. Under Article 32 of the

General Administrative Code of Georgia, sessions conducted by any corporate public

agency must be open and public, except when information concerned constitutes state,

commercial or personal secret. By virtue of Article 34 of the Code, a corporate public

agency must a week ahead publicly announce about forthcoming meeting, including

its place, time and agenda, as well as about its decision to close such meeting, if

applicable. If some issues on the meeting agenda contain secret information, the

public agency should close part of the meeting that discusses secret information.

Zestaponi District Court granted the claim of 21 plaintiffs represented by ISFED.

The court invalidated decision of selection committee announcing that the plaintiffs’

employment applications were unsuccessful, and ordered the commission to hold

repeat interviews.

The plaintiffs participated in a competition for employment at Terjola Municipality

Sakrebulo and Gamgeoba. The candidates succeeded the first and the second stages of

the selection process but after the third stage the commission refused to hire them.

The candidates claim that in its work the commission violated the principle of

openness by refusing to allow interested parties, including ISFED’s representatives to

observe the process of interviews. The commission did not use any evaluation

checklist, as mandated by the regulations for evaluating candidate’s skills. Its

assessments about work experience of candidates were biased; in particular,

candidates with less experience received higher scores.

Zestaponi District Court invalidated interviews held without using a pre-determined

evaluation checklist. The interviews should have been conducted in abidance by the

Regulations of the commission for selection and certification, adopted under the

Resolution no.37 of Terjola Municipality Sakrebulo. The regulations mandate that the

commission evaluate candidates based on a pre-determined scheme and criteria but

the commission failed to follow these regulations.

The court also explained that as a corporate public agency the commission is

obligated to hold open meetings that are accessible to public. It may deny access

only when the meeting room is full and it may not hold any more people. The court

explained: “public has the right to know whether the issue concerned was discussed

during the meeting in a comprehensive manner, views that each member of the

commission expressed and deliberations that led to the final decision. Otherwise, it

would be impossible to evaluate work of a public institution and its individual

members.”

Tsageri District Court granted claim of Tamila Gabidzashvili, represented by

ISFED. The court granted her claim in full by invalidating the results and ordering

Tsageri Municipality Gamgeoba and the commission for selection and certification to

repeat the interview process.

Ms. Gabidzashvili participated in a competition for the position of Representative of

Tsageri Municipality Gamgebeli in Tvishi Administrative Unit. She succeeded in first

and second stages of the selection process and was invited to interview but she did not

win the competition. The interview questions were inappropriate, with no relevance to

candidates’ professional credentials and competencies; instead, they were motivated

by political bias, in violation of applicable regulations of Georgian law. Based on

regulations of the commission for selection and certification, each candidate should

answer a set of identical questions, prepared beforehand; however, the commission

did not use any such questionnaire during the interviews.

The court explained that without using identical questions and pre-determined

criteria, candidates and interested persons would always question fairness of the

selection process. In addition, the court is unable to evaluate disputed acts adopted

following the selection process, because they have been adopted without any

deliberations and discussions by the commission. This way, the court concluded that

the commission violated the principles of legality, equality, fairness and

objectivness.

Kutaisi Appellate Court partially granted the appeal of Darejan Talakhadze, who

was represented by ISFED in court.

ISFED filed in Sachkhere District Court for invalidation of results of selection and

requested repeat of the selection process but the claim was rejected. ISFED filed

subsequent appeal in higher court.

Darejan Talakhadze participated in selection process for the opening of a specialist at

the Department of Coordination of Representatives of Sachkhere Municipality

Gamgebeli. Ms. Talakhadze believed that the commission for selection and

certification of employees of Sachkhere Municipality held interviews in violation of

legal regulations and favored a candidate with fewer scores and less experience in

civil service.

Kutaisi Appellate Court partially granted ISFED’s appeal by invalidating decision of

the commission to select a candidate other than Darejan Talakhadze as a winner, but it

rejected the appellant’s request to repeat the process of interviews.

ISFED believes that invalidation of the decision means that results of the competition

no longer have a legal foundation and therefore, are illegitimate. Consequently, the

local self-government must hold a new competition to fill the vacant position in

abidance by applicable legal requirements.

Access of third parties to all stages of selection process, which will ensure

transparency and openness of commission meetings, must be elaborated and regulated

by the Decree no.412 of the Government of Georgia and commission regulations. In

addition, to facilitate objective and fair process of selection, commission must treat all

candidates equally. In particular, in evaluation and selection of candidates, it should

use identical questionnaire and selection criteria.

Rules of formation of commissions for selection and certification

A standing commission for selection and certification is established under the Decree

no.412 of the Government of Georgia, for recruitment of civil servants. For LSG

entities commission chair is appointed by a representative body of self-government –

Sakrebulo, while for public agencies commission chair is nominated by head of the

agency and appointed by head of the Civil service Bureau.

Chair of the commission determines size of the commission and its members.

Members of a commission may include representatives of trade unions, independent

experts (who are not working for public agency or LSG entity concerned) and HR

personnel.

Article 11 of Decree no.412 of the Government of Georgia delegates commission

chair with the power to select members of the commission but it does not contain any

imperative stipulation about participation of trade union representatives and

independent members in the work of the commission, which means that the said

provision may be abused to select members based on their political affiliation.

The concept of civil service reform approved under Decree no.627 of the Government

of Georgia aims to create and improve operation of commissions for selection and

certification. According to the concept, members of each commission should include

independent experts to ensure fairness and transparency14

. As noted above, existing

regulations do not include any such obligation.

ISFED believes that in order to promote fair, neutral and transparent work of

commissions for selection and certification, commission chairs should be required to

include individuals who are not working for public agencies concerned among

members of commission. Such formation of commissions for selection and

certification will increase trust towards their work and promote recruitment of

members based on their professional qualifications.

Mechanisms for protecting rights of candidates

14

See the concept of civil service reform: http://csb.gov.ge/uploads/matsne-2582972.pdf;

By virtue of Decree no.412 of the Government of Georgia, candidates who are

competing in selection process have the right to appeal in complaints commission and

then in court, or they may waive their right to apply to complaints commission and

instead, file in court as prescribed by Georgian legislation. By virtue of Article 15 of

the Decree, establishment of a complaints commission falls under discretionary

powers of head of an agency concerned, i.e. s/he makes a decision on creating or not

creating a complaints commission during selection process.

Similar to the Decree of the Government of Georgia, regulations of commissions for

selection and certification elaborated by LSG entities allow candidates who are

competing in selection process to appeal decision in complaints commission and then

in court or to file straight in court over competition results or violation of competition

procedures.

Regulations of 63 commissions contain rules about establishment and composition of

complaints commissions, and regulations of 7 commissions15

do not contain any such

rules.

In ISFED’s view law should provide obligation to establish a complaints commission.

This will ensure resolution of disputes without court’s involvement, within reasonable

timeframe and at low cost. In addition, although regulations of most commissions

contain rules for establishing complaints commissions, regulations of all commissions

should envisage establishment of complaints commission as one of the means to

protect rights of candidates.

Different stages of selection process

Testing

ISFED monitored the process of testing in all LSG territories. Tests were organized

by the National Examination and Assessment Center.

ISFED’s observers reported that on the most part the process of testing was well-

organized; certain technical deficiencies were observed but because these deficiencies

were limited in scale and most of them were resolved in a timely manner, they did not

impact the testing process.

Most of the complaints were filed in complaints commission test contents or test

results. Majority of complaints were rejected as ill-founded. Notably, candidates

did not receive any detailed instructions on how to draft and file complaints, which

later created certain problems.

As some participants stated, their actual test scores were different from those

published on official website; however, they could not prove it because at the end of

testing process they did not receive any document that would allow them to check and

verify their answers, which they would use as evidence.

ISFED believes that passing score for tests (as high as 75% in some municipal

territories) is unreasonably high for selection of employees of LSG bodies. The

15

Baghdati, Tskaltubo, Kharagauli, Mtskheta, Adigeni, Kareli, Gori

minimum score should not vary according to LSG bodies; instead, a normative act

should set a uniform threshold for all self-governing territories. In addition, threshold

scores should differ depending on positions and the level of hierarchy involved.

Threshold for mid and lower-level offices should be no more than 50% and no more

than 60% for high-level offices.

In the process of recruitment it is important to take into account candidate’s

specialization. Some local government employees successfully handle their day-to-

day responsibilities without utilizing in-depth knowledge of legal issues that make up

significant part of tests. We believe that the key criterion for recruiting highly

qualified employees is their level of professionalism, while legal issues and skills

should account for only a small part of testing.

Interviews

One of the most important stages of selection process is interviewing candidates.

ISFED monitored interviews in all self-governing cities and territories. According to

observers, on the most part interviews monitored ran smoothly, equal time was

allocated to all candidates and questions were similar in terms of their content and

difficulty. Commission members were mostly positive towards candidates. However,

in 12 self-governing territories (Kareli, Batumi, Zestaponi, Terjola, Khulo,

Tsageri, Gardabani, Kaspi, Keda, Gori, Akhmeta, Tbilisi) commission members

and other officials demonstrated bias towards certain candidates, asked

irrelevant questions and harassed interviewees.

ISFED believes that equal conditions must be created for all candidates during

interviews; commission members should treat all candidates equally, notwithstanding

their political affiliation or sex. In addition, such acts should be examined

comprehensively and immediate further actions must be taken by relevant authorities.

Evaluation of candidates and forms of evaluation

Evaluation forms are one of the most important instruments for evaluation of

candidates, allowing whether a commission selected and evaluated candidates in a fair

and objective manner. Therefore, ISFED’s monitoring focused on analysis of

evaluation forms. ISFED examined 43 evaluation forms envisaged by commission

regulations16

.

We identified the following important trends:

- Out of 70 commission regulations, evaluation forms are envisaged by 43,

meaning that evaluation form is not approved as a legal document and it

may not be used as evidence when needed;

16

Evaluation forms envisaged by commission regulations, accessible at: www.macne.gov.ge.

- 40 out of 43 evaluation forms are almost identical and they don’t allow

objective and fair evaluation of candidates. In particular, evaluation forms

are not individual; rather, there is one general evaluation document, which

makes it impossible to record comprehensive information about each

candidate and evaluate each individual in a thorough manner;

- Evaluation form lacks necessary criteria. It entails a single criterion -

evaluation of professional skills - which should be split into sub-criteria.

- Evaluation scale (weak: 0-50 points, medium: 50-57 points; strong: 75-100

points) has unrealistic range of points. There is a very big difference between

the three subsets of points. It is unclear how the scale measures skills of

candidates or how points are assigned. In addition, the scale allows of several

different interpretations and abuse.

Below is an example of evaluation form:

N

o Name of candidate Evaluation of professional skills

Evaluator's

comments

1

Weak

0-50 pt

Medium

50-57 pt

Strong

75-100 pt

2

3

4

5

Evaluation forms of commissions for selection and certification in Terjola, Rustavi

and Kharagauli municipalities are better:

Evaluation form of Terjola Commission is individual for each candidate and unlike

other questionnaires, it entails three different criteria. However, scale of evaluation

and definitions of each criterion is problematic, similar to other evaluation forms.

Evaluation form of Rustavi Commission is also individual, scale of evaluation is more

realistic and definitions for each criterion are provided. However, there is still room

for improvement of the definitions.

Evaluation form envisaged by regulations of Kharagauli Commission is one of the

most comprehensive forms examined by ISFED. It contains most realistic sale of

evaluation and provides a set of questions, their purpose, criteria and their definitions.

In addition, comments field in the questionnaire allows for detailed evaluation of each

candidate. The field of general evaluation allows commission members to see the

overall picture of a candidate and whether s/he is an appropriate candidate for a

specific position.

ISFED believes that evaluation forms must be defined by commission regulations as

an official legal document. In addition, existing evaluation forms should be further

worked on and improved, in order to allow comprehensive, fair and objective

evaluation of candidates.

Identification of winning candidates

ISFED was actively working with Commissions for Selection and Certification and

LSG bodies to obtain information about outcomes of selection process in general and

in particular, names of candidates appointed to vacant positions, to perform

comparative analysis. ISFED was unable to perform comparative analysis for 40 LSG

bodies because of challenges and restrictions in accessing information.

In other LSG bodies where ISFED was able to analyze the process of selection of

candidates, it found that on the most part commissions evaluated interviews and

identified winning candidates in an objective manner; however, ISFED believes that

commissions could have made a better choice for 100 vacant positions17

.

ISFED did not agree with decisions of selection commissions and LSG bodies for 100

vacant positions because of the following important trends identified during the

monitoring:

During selection process some commissions and LSG bodies did not select

winning candidates for certain positions. They did it on purpose, to appoint

temporary or acting employees. Repeat selection was scheduled in order to

allow temporary appointees who failed tests to participate in the new selection

process in hopes that they would be able to succeed the next time

(Gamgeobas of Adigeni and Khobi);

Selection process was considered ruined despite the fact that respective

commissions could have chosen winning candidates (Gamgeobas of

Ambrolauri, Tkibuli, Chiatura, Khobi, Chkhorotsku, Kobuleti and

Khulo; City Halls of Batumi and Ambrolauri);

Candidates with lower qualifications were favored over highly qualified

candidates in Gamgeobas of Ambrolauri, Baghdati, Tskaltubo, Khobi,

Zugdidi, Chkhorotsku, Kobuleti, Dusheti, Khulo, Keda and Chokhatauri,

Sakrebulo of Batumi and City Hall of Batumi. In addition, in some

instances temporary appointees were favored over other more qualified

candidates (Batumi City Hall, Kaspi Gamgeoba and Keda Gamgeoba);

Poorly qualified candidates were chosen because respective commissions had

no other choice. ISFED believes that the commissions should have scheduled

a new selection process to recruit more qualified employees (Gamgeobas of

Baghdati, Zugdidi, Kobuleti, Khulo and Kaspi, and Batumi City Hall).

ISFED believes that in selection process commission should use pre-determined

criteria for all candidates and treat individuals who do not currently work for LSG

body but have applied for vacant positions on equal basis with existing municipal

employees. In addition, when there is no choice of suitable candidates for especially

important and high-level positions, repeat selection process should be scheduled.

New Law of Georgia on Civil Service

17

Out of nearly 3200 positions.

On October 27, 2015, the Parliament of Georgia adopted the new law on Civil

Service. The new law is important for implementing civil service reform to help

facilitate creation of professional, transparent, effective and unbiased civil service.

Successful implementation of the reform is one of the preconditions for having

democratic and effective governance in the country. We welcome the fact that the

law was drafted and adopted with participation of different stakeholders.

However, we believe that certain regulations need to be revised in order to

ensure formation of transparent and stable civil service.

Selection

Fair, competitive and objective selection process is important for creating a

professional and transparent civil service. Selection process should aim to attract

qualified personnel to civil service. Selection process in civil service in Georgia has

always been a problematic issue, often criticized by public.

We believe that the new law fails to address challenges that exist in the area. Article

34 of the draft law regulates filling of vacant positions in civil service on the basis of

competition.

The draft law differentiates between the following two types of selection: open and

internal selection. Based on the proposed changes, lower (fourth category) vacant

positions will be filled on the basis of open selection, while higher (third, second and

first category) vacant positions will be filled on the basis of internal selection,

meaning that candidates will be selected from existing civil servants. The law allows

holding of an open selection process for filling higher vacant positions only in cases

of internal selection process is unsuccessful.

Filling of almost all categories of vacant positions by means of internal selection

process will prevent ordinary citizens from finding employment in public service. In

addition, the existing regulation is in conflict with the principle of equal access to

civil service. The principle is guaranteed by Article 13 of the draft law stipulating that

all citizens of Georgia must be provided with equal opportunity to access civil

service, based on their skills, qualification and professional readiness.

On the one hand, it is important for the state to create the system of civil service in

which civil servants will be rewarded for their professionalism, while on the other

hand all citizens must be provided with equal opportunity for finding employment in

civil service. Announcing open selection process only to fill fourth category vacant

positions will reduce the possibility of ordinary citizens to find employment in civil

service and will thus curtail their constitutional right. Some argue that the aim of

internal selection process is to give an opportunity of promotion to existing

employees but we believe that the argument is invalid, because existing employees

would be free to participate in open selection process to prove that they are more

worthy of a particular position, on equal basis with other candidates. In addition,

while promotion is important to incentivize employees, we believe that competitive

recruitment of qualified civil servants is far more important of a cause.

Article 42 of the draft law does not specify the deadline for the selection commission

to make its final decision after all stages of selection process are complete, posing the

risk of artificially delaying the process; neither does it determine the nature of

decision made by the commission – whether it is binding or not for management of

the public institution concerned.

Article 117 establishes legal remedies for candidates participating in selection

process.

By virtue of para.1 of Article 117, a candidate that fell short of the basic formal

requirements of the application can file with the Civil Service Bureau demanding

verification of lawfulness of the decision made by selection commission. The Bureau

should make its decision within two days, and inform the applicant as well as the

selection commission of the decision.

The law does not provide for any legal consequences of the Bureau’s decision about

candidate’s complaint – in particular, it does not state whether the decision is binding

for selection commissions or not.

Probationary period

By virtue of Article 45 of the law, probationary period for a civil servant is 12

months. Probationary period is important to evaluate whether a person concerned is fit

for the position; however, the 12-month long period is unreasonably lengthy and does

not help create a stable environment in civil service. It is quite possible to evaluate an

individual based on his/her qualification and experience within a shorter period of

time – for instance, in six months.

Protection of rights

Article 118 protects rights of a civil servant. Protection of rights of civil servants,

including from violation by managers of public institutions or other officials with

their arbitrary and unfair decisions is important for democratic governance. Therefore,

the law must provide for clear and explicit guarantees for the protection of rights of

civil servants.

Para.3 of the Article stipulates that a civil servant must be immediately reinstated

based on court’s decision; however, it also stipulates that a civil servant will not be

reinstated if it is impossible to do so. Such an ambiguous exception to the law is

unacceptable, because it leaves room for its broad interpretation and abuse for unfair

refusals for reinstatement. If court’s decision finds that a person was illegally

dismissed from work, it is imperative that his/her rights are restored by reinstatement.

The law must provide an exhaustive list of cases when reinstatement is impossible,

including reorganization of a public institution, its liquidation and/or merging, in

which the rule of mobility must apply to the person concerned. When it is impossible

to provide employment based on the rule of mobility, in addition to corresponding

compensation, the person concerned must also be provided with remuneration for the

time s/he was forced to miss at work.

Key Findings

Principles of selection process and practice of courts

- During monitoring ISFED faced obstacles to accessing information. In

particular, 43% of LSG entities and 68% of Commissions for Selection and

Certification responded to ISFED’s requests for public information

deficiently, in violation of important legal requirements. 26 commissions

declined ISFED’s requests for information about final results of selection

and certification process. 19 of those 26 commissions declined the requests

stating that the information requested by ISFED was categorized as personal

data.

- ISFED’s right to monitor the process of interviews was restricted

completely or to a certain extent in 15 self-governing entities, which

suggests lack of uniformity in matters related to public access to commission

activities;

- ISFED was not allowed to attend any of the commission meetings where

final decisions were made, in violation of the requirement of transparency of

a commission as a corporate public agency. This called objectivity of

decisions made by commissions into question;

- Regulations of 70 different commissions analyzed by ISFED provide rules for

accessing legal acts (about selection procedures) and proceedings of

commission meetings. However, regulations of 66 commissions do not

contain any rules for allowing third parties to attend commission

meetings to monitor work of the commission. Regulations of commissions

in the following four municipalities are the only ones that set out such rules:

Khulo, Zestaponi, Kharagauli and Chiatura. Neither commission regulations

nor Decree no.412 of the Government of Georgia does not regulate access of

third parties to the process of making final decisions, which somewhat limited

ISFED’s monitoring;

- Commissions of Terjola, Tsageri and Sachkhere violated principles of

legality, equality, fairness and objectivity by not treating all candidates on

equal basis and failing to use identical questionnaires and relevant criteria in

some cases;

- ISFED filed 7 complaints in court over violation of principles of selection

process18

. In two cases municipalities of Gurjaani and Akhaltsikhe

municipalities granted ISFED’s request before court hearing was held. As to

five complaints filed in Tetritskaro, Akhaltsikhe, Zestaponi, Tsageri and

Kutaisi appellate courts, 4 were satisfied in full and 1 was satisfied in part. We

welcome the fact that courts made their decisions based on a broad and

fair interpretation of individual principles, including public access,

legality, equality and objectiveness.

- Court explained that as a corporate public agency the commission is obligated

to hold open meetings that are accessible to public. Court believes that public

18

Zestaponi, Tsageri, Akhaltsikhe, Gurjaani, Tetritskaro district courts and Kutaisi Appellate Court

access should not be narrowly defined as access of interested individuals to

results of selection process. Rather, interested individuals should have access

to meetings of commissions and be able to monitor their activities. Court also

explained that without using identical questions and pre-determined criteria,

candidates and interested persons will always question fairness of the selection

process. In addition, the court is unable to evaluate disputed acts adopted

following the selection process, because they have been adopted without any

deliberations and discussions by the commission.

Rules of commission formation

- Article 11 of Decree no.412 of the Government of Georgia delegates

commission chair with the power to select members of the commission but it

does not contain any imperative stipulation about participation of trade union

representatives and independent members in the work of the commission,

which means that the said provision may be abused to select members

based on their political affiliation.

Means for protecting rights of candidates

- Decree no.412 and regulations of 63 commissions contain rules for

establishing and staffing complaints commission, and regulations of 7

commissions (Baghdati, Tskaltubo, Kharagauli, Mtskheta, Adigeni,

Kareli, Gori) do not contain any such rules.

Tests

- On the most part the process of testing was well-organized; certain technical

deficiencies were observed but they did not impact the testing process.

- Passing score for tests in some municipal territories (75%) was

unreasonably high;

- Most of the complaints were filed in complaints commission test contents or

test results. Majority of complaints were rejected as ill-founded.

- Some participants stated, their actual test scores were different from

those published on official website; however, they could not prove it because

at the end of testing process they did not receive any document that would

allow them to verify their answers, which they would use as evidence.

Interviews

- According to observers, on the most part interviews monitored ran smoothly,

equal time was allocated to all candidates and questions were similar in terms

of their content and difficulty. Commission members were mostly positive

towards candidates.

- In 12 self-governing territories (Kareli, Batumi, Zestaponi, Terjola,

Khulo, Tsageri, Gardabani, Kaspi, Keda, Gori, Akhmeta, Tbilisi)

commission members and other officials demonstrated bias towards certain

candidates, asked irrelevant questions and harassed interviewees.

Evaluation of candidates and forms of evaluation

- Out of 70 commission regulations, evaluation forms are envisaged by 43,

meaning that evaluation form is not approved as a legal document and it

may not be used as evidence when needed;

- 40 out of 43 evaluation forms are almost identical and they don’t allow

objective and fair evaluation of candidates. Evaluation forms of

commissions for selection and certification in Terjola, Rustavi and

Kharagauli municipalities are better.

Identification of winning candidates

- ISFED did not agree with decisions of selection commissions and LSG bodies

for 100 vacant positions because of the following important trends identified

during the monitoring:

- During selection process some commissions and LSG bodies did not

select winning candidates for certain positions. They did it on purpose,

to appoint temporary or acting employees. Repeat selection was

scheduled in order to allow temporary appointees who failed tests to

participate in the new selection process in hopes that they would be able

to succeed the next time (Gamgeobas of Adigeni and Khobi);

- Selection process was considered ruined despite the fact that respective

commissions could have chosen winning candidates (Gamgeobas of

Ambrolauri, Tkibuli, Chiatura, Khobi, Chkhorotsku, Kobuleti and

Khulo; City Halls of Batumi and Ambrolauri);

- Candidates with lower qualifications were favored over highly qualified

candidates in Gamgeobas of Ambrolauri, Baghdati, Tskaltubo,

Khobi, Zugdidi, Chkhorotsku, Kobuleti, Dusheti, Khulo, Keda and

Chokhatauri, Sakrebulo of Batumi and City Hall of Batumi. In

addition, in some instances temporary appointees were favored over

other more qualified candidates (Batumi City Hall, Kaspi Gamgeoba

and Keda Gamgeoba);

- Poorly qualified candidates were chosen because respective

commissions had no other choice. ISFED believes that the commissions

should have scheduled a new selection process to recruit more qualified

employees (Gamgeobas of Baghdati, Zugdidi, Kobuleti, Khulo and

Kaspi, and Batumi City Hall).

New Law of Georgia on Civil Service

- A number of regulations in the new law of Georgia on Civil Service about

selection process, probationary appointments and protection of rights of civil

servants fail to create transparent and stable civil service.

Results of ISFED’s monitoring suggest that lack of legal regulations about the process

of selection and certification in general and in particular, about selection criteria and

access to public information had a negative impact on overall process and created

obstacles to monitoring and accessing of public information by ISFED.

ISFED believes that the above problems in LSG bodies engendered suspicions about

objectiveness of evaluation of candidates and final decisions made, and resulted in

complaints and concerns expressed by many candidates. Considering that ISFED was

refused access to the process of final decision-making, comprehensive evaluation of

fairness and transparency of the process of selection and certification, and

objectiveness of final decisions made by commissions is impossible.

Recommendations

Principles of selection and public access to commission activities

1. Public agencies must provide access to public information in a timely manner

and in full. Further, uniform approach to releasing public information must be

established across all self-governing agencies, and access to personal

information must be provided in consideration of issues of public concern. In

particular, list of candidates (indicating their names and surnames) selected by

commissions and competition results must be accessible to public;

2. Local self-government bodies should give all interested candidates an

opportunity to monitor the process of certification and competition in a

comprehensive manner, and provide their access to all stages of the process

testing, interviews and final decision-making, in order to prevent any

questions about fairness of the process;

3. Access of third parties to all stages of selection process, which will ensure

openness and transparency of commission’s work, shall be defined and

regulated by Decree no.412 of the Government of Georgia;

4. Commissions must evaluate candidates according to pre-determined criteria,

in order to ensure credibility and fairness of final decisions as much as

possible;

Rules of commission formation

5. In order to promote fair, neutral and transparent work of commissions for

selection and certification, commission chairs should be required to include

individuals who are not working for public agencies concerned among

members of commission. Such formation of commissions for selection and

certification will increase trust towards their work and promote recruitment of

members based on their professional qualifications;

Means for protecting rights of candidates

6. Law should provide obligation to establish a complaints commission. This will

ensure resolution of disputes without court’s involvement, within reasonable

timeframe and at low cost;

Testing

7. Passing score for tests (75% in some municipal territories) is unreasonably

high for selection of employees of LSG bodies:

- The minimum score should not vary according to LSG bodies; instead, a

normative act should set a uniform threshold for all self-governing

territories.

- In addition, threshold scores should differ depending on positions and the

level of hierarchy involved. Threshold for mid and lower-level offices

should be no more than 50% and no more than 60% for high-level offices.

8. After taking a test, candidate should be given a document that can be used for

checking answers and results;

9. Civil service employees should be evaluated comprehensively, in view of their

experience and specialization:

- In the process of recruitment it is important to take into account

candidate’s work experience in order to prevent dismissal of

candidates with an in-depth knowledge of specifics of the work, who

have been successfully fulfilling their responsibilities throughout a

long period of time based solely on test results.

- In the process of recruitment it is important to take into account

candidate’s specialization. Some local government employees

successfully handle their day-to-day responsibilities without utilizing

in-depth knowledge of legal issues that make up significant part of

tests. We believe that the key criterion for recruiting highly qualified

employees is their level of professionalism, while legal issues and

skills should account for only a small part of testing.

Interviews

10. Equal conditions must be created for all candidates during interviews;

commission members should treat all candidates equally, notwithstanding

their political affiliation or sex. Further, commission members should not

discriminate against candidates who are already employed but are looking for

new employment opportunities

Evaluation of candidates

11. Evaluation forms should be defined by commission regulations as an official

legal document. Existing forms should be further worked on and improved, in

order to allow comprehensive, fair and objective evaluation of candidates.

Identification of winning candidates

12. Commission should use pre-determined criteria for all candidates and treat

individuals who do not currently work for LSG body but have applied for

vacant positions on equal basis with existing municipal employees.

13. In addition, when there is no choice of suitable candidates for especially

important and high-level positions, repeat selection process should be

scheduled.

New Law of Georgia on Civil Service

14. Because a number of regulations in the new law of Georgia on Civil Service

about selection process, probationary appointments and protection of rights of

civil servants fail to create transparent and stable civil service, the said

regulations should be revised.