Reform Index Focus: New Civil Service Legislation

This law has both pros and cons. The positive moment is the ability to quickly implement reforms and policies. The risk is the slowdown in the institutionalization of the civil service.

Since the Revolution of Dignity, civil service reform has been a priority — as it is clear that only a high-quality civil service can develop and implement quality policies and regulations. At the end of 2015, a new law on civil service was adopted, which provided for open competitions for positions, changes in the structure of remuneration of civil servants, and emphasized their integrity. 

However, since the law introduced significant protection for civil servants, including from dismissal, it was detrimental to the significant renewal of civil service and the influx of new people. This can be partly explained by the lack of political will, in some part by low salaries offered by the civil service and, in general, by its questionable image in the society.

To overcome this problem, a dual track approach was adopted in 2017 with the assistance of the EU, creating new structures in parallel with existing ones. Directorates responsible for policy-making, which would eventually have to take over the functions of the departments (while functions that were not directly relevant to policy-making would be cut off) were created in 10 pilot ministries. According to a study by A. Bilous and T. Tyshchuk (2019), this model proved to be quite successful — at the end of 2018, more than 500 people were recruited into 58 directorates, and now more than 700 are using the Civil service feedback loop. Directorates have begun to develop and implement policies. The best practices of this model could be extended to other ministries.

At the end of September 2019 the law on the Civil Service has been substantially amended, namely:

• procedures for both appointment and dismissal of civil servants have been simplified (civil servants have been completely exempted from the labor legislation);
•  the possibility of civil service under a fixed-term contract was introduced;
• the influence of the political leadership on the employees of the relevant bodies has been greatly enhanced;
• the system of remuneration of civil servants was to be set by the Cabinet of Ministers (previously the minimum wage and the difference between the minimum and maximum wages were set by law). The Cabinet must do this by 01/01/2020.

This should speed up the implementation of policies in line with the vision of government heads — as the new leader will be able to replace a significant part of the team. At the same time, the role of the civil service is to support the stable work of state bodies, regardless of changes in political leadership. Therefore, and also because usually public sector wages are lower than in the private sector, in the majority of countries civil servants have higher job security.  

Currently, civil servants and experts lack an understanding of the next steps in reforming the civil service. For example, will there be any directorates in any form? How will civil servants be evaluated? It is not always possible to adequately define KPIfor everyone, and sometimes achieving individual KPIs may conflict with the effective functioning of the body as a whole or the achievement of policy goals. Finally, there is a risk that the “new” civil servants, recruiting whom to the civil service took a lot of effort, who have shown good results, will be fired. For the authors of the reform, this risk is clear and acceptable. As Alexander Starodubtsev, the head of the civil service agency, commented for iMore: «Can good people be affected by a reboot? Yes. Is this a reason to leave everything as is and not to reboot? No!»

However, another risk is that the incomprehensible public service situation is holding back potential private sector candidates from competing for positions with the government.

We hope that after the drafting of the bylaws — the terms of contracts, the conditions of remuneration of civil servants and staffing — the situation will become clearer. However, reform developers should be more active in promoting it, and, above all, to the civil servants directly affected.

Major changes introduced by the new law

Appointment

From now on, the National Civil Service Agency (NCSA) will maintain a single civil service job portal and thus civil service vacancies will be centralized. However, it will not review the vacancy announcements for posts submitted to it by other authorities. Also, the state bodies will determine the requirements for employees of categories B and C, taking into account the recommendations of the NCSA. This will make it easier to open vacancies.

The procedure for appointing civil servants has been significantly changed. Previously, the High Civil Service Commission (which selected Category A officials) or the Competition Committees (which selected Category B and C officials) had actually recommended to the authorities who they wanted to be nominated (and the authorities could agree or not), now the Commissions will recommend 5 persons with the highest rating according to the results of the competition, from which the responsible official will select one candidate. This way, government officials will be able to choose who they will be comfortable working with and vacancies will be filled faster.

The process of forming commissions is also streamlined. Commissions for the selection of candidates for categories B and C will be set up by the public authority itself (not by the body that stands above it). Commission on Higher Civil Service Corps will be reduced from 11 to 7 people. It may now include not only the Head of the National Agency for Civil Service but also his/her designated deputy; representatives of trade unions will not be included, and representatives of the Verkhovna Rada and the CMU in the Commission do not have to occupy the positions of the senior civil service corps. The Commission will also include a CMU-designated HR specialist. The number of representatives of universities and non-governmental organizations will be reduced from 4 to 2. Candidates for members of the commission, in addition to the representative of the National Service, will have to take a test for the candidates for the Category A posts. Those who fail the test will not be able to work in the Commission. The quorum of the commission will require not 2/3, but ½ members present. The work of the members of the commission will be paid.

From now on, the Commission will not include a NAPC representative. Instead, upon completion of the competition, the candidate will undergo special screening in accordance with the Law on  Corruption Prevention. If he/she does not pass the examination, the next ranked candidate will be able to apply for the position.

The contest procedure for all posts will be appealed to the court (earlier complaints concerning the posts of categories B and C were considered by the National Agency for Civil Service). Appeal does not stop the appointment of the person who passed the competition (previously contesting the results of the competition significantly delayed the appointment procedure).

Only persons who participate in the category A competition will have to submit the e-declaration (previously all candidates had to submit the e-declaration, which stopped many people from competing for civil service posts).

The rule also excludes from the law that a person who failed to pay alimony for 6 months cannot take  a position of category A or B.

The rule that a minister cannot have more than 2 deputies was abolished. The number will now be determined by the Minister.

Heads of civil service of the State security service, the intelligence unit, national police and other law enforcement agencies including the military will be appointed by the heads of the relevant agencies (previously only the prosecutor’s office had such a privilege).

Service and remuneration

From now on, sub-categories of civil service positions will be determined by the Cabinet, not the law. Salaries will be determined on the basis of levels of government, not on the basis of categories and jurisdictions. In general, the remuneration scheme will be established by the CMU at the request of the National Civil Service. Previously, it was determined annually by the state budget law. In addition, the Civil Service Law defined the differences between salaries of Group 1 and Group 9 employees (minimum 7 times) and the minimum wage for Group 9 employees – 2 subsistence wages.

The general law of state bodies is excluded from the civil service law.

Civil service will be contracted. The contract must be no more than 3 years with the possibility of extension for the same period. The contract must have a civil servant’s KPI. The procedure for concluding contracts should be elaborated by the Cabinet of Ministers by January 1, 2020.

At the same time, term assignment (that is, for a fixed term) can be accomplished by no more than 7% of positions of a state body. The appointment is applied to the Secretary of State (for 5 years), workers who replace the absent employees, and employees who work under contract to perform temporary tasks.

Civil servants will have to pursue an individual professional development program (the National Civil Service will no longer develop and approve training programs for civil servants) and an annual assessment. In case of negative assessment (and not two negative assessments in a row, as before), the civil servant is fired. Such a rule greatly enhances the role of KPIs for civil servants and the procedures for developing such indicators.

The new law expanded the powers of the minister: from now on he/she (and not the chief of staff) appoints and dismisses heads of enterprises, institutions, organizations managed by a ministry, and decides on their promotion and disciplinary action.

In addition, the law made it possible to bring documents to the attention of civil servants in electronic form (e-mail). The document is considered to be communicated on the 5th day after it is sent.

Dismissal

The Commission on the Higher Civil Service Corps is excluded from the process of dismissal of Category A employees. The posts of category A include, in addition, the head of the parliamentary support office, the head of the president’s office, the deputy heads of the offices of all-Ukrainian state bodies.

Within 4 months of the appointment of a new minister, he may dismiss Category A officials and transfer them to ‘out of office staff’ positions. They can stay in these positions for 6 months. During this time, they will be offered new positions not lower than category B, if there are vacancies. If there are no vacancies, they will be fired with a six-month salary. If during that period an employee refuses three job offers, he or she will be dismissed without this payment.

The dismissal of chiefs of staff and their deputies will be made by the Cabinet upon the submission of the head of the state body, the minister coordinating the state body, or the prime minister, without the participation of the Commission on Higher Civil Service Corps.

The head of the National corruption prevention agency can be dismissed on the grounds stipulated by the Law on Civil Service.

It will also be possible to dismiss civil servants while on sick leave (they often used this option to avoid dismissal previously ).

No more than two civil servants may be transferred between the positions they hold.

Protection of civil servants

Complaint procedure is changed. Previously, a civil servant could complain to the head of the civil service of his body about violations of the law on civil service and demand the creation of a commission to investigate his complaint. If the result of the decision of the commission did not satisfy the employee, he could apply to the National Civil Service Agency. Now the employee can complain to the head of the civil service of the relevant body, and in case he is not satisfied with the consideration of the complaint by the head, to a court. The National Civil Service Agency will not consider complaints of the category B and C civil servants.

The Minister is allowed to initiate disciplinary proceedings against his chief of staff (previously only the NCSA could do so). This procedure will be considered by a disciplinary commission, the procedure of which will be determined by the Cabinet (earlier this procedure was prescribed by law). The minimum size of the disciplinary committee was reduced from 6 to 3 members. Who they are – the law does not define (previously it did).

The Head of the National Civil Service Agency is subject to general civil service legislation.

The staff of the support offices of parliamentary factions (groups) becomes a patronage service (they used to be civil servants). Patronage workers are subject to labor law, however, they are dismissed when the relevant minister is dismissed, a parliamentary faction (group) is dissolved or the parliament is re-elected.