GEORGIAN DEVELOPMENT RESEARCH INSTITUTE

Concept on Public Service Reform

Levan Izoria, Paata Turava

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TBILISI 2012Georgian Development Research Institute (GDRI) is an independent, non-profit organization, founded in 201. The objectives of the Institute are supporting democracy development and political, economic, social and other reforms through various researches and discussions.

Web-page: www.gdri.ge

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E-mail: gdri@gdri.ge

© GEORGIAN DEVELOPMENT RESEARCH INSTITUTE© Levan Izoria, Paata Turava

TABLE OF CONTENTS

1. Introduction.............................................................................................................................................5

2. Basic Guideline for Reforming Public Service in Georgia...........................................................................6

3. Foreign Experience....................................................................................................................................8

3.1. Bureaucracy............................................................................................................................................8

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3.2. Active State...........................................................................................................................................10

3.3. Flexible State........................................................................................................................................10

3.3.1. Neo-liberal criticism of the State.......................................................................................................10

3.3.2. New Public Management.................................................................................................................11

Main thesis..................................................................................................................................................11

Product Oriented.........................................................................................................................................12

Internal Process and Client Orientation.......................................................................................................13

Decentralization of responsibilities and centralized management..............................................................13

Qualification and motivation of the personnel............................................................................................14

The administration that learns....................................................................................................................15

The administration oriented on the public influence..................................................................................16

4. Main aspects of Public Service Reform................................................................................................17

4.1. Main institutions of Public Service........................................................................................................17

4.1.1. Public Law Corporation................................................................................................................18

4.1.2. Public Law Institution..................................................................................................................19

4.1.3 Public Law Fund..................................................................................................................................20

4.2. State Service System.............................................................................................................................20

4.2.1. Public Servant and Public Public Emloyee.........................................................................................22

4.2.2. The proportion of employers in Public Service..................................................................................23

4.2.3. Criteria for distinguishing between a public servant and a hired, part time employee.....................23

4.2.4. Main characteristics for professional public servant.........................................................................23

4.2.5.Classification of the public servant.....................................................................................................24

4.2.6. Legal relations between the public servant and the employer..........................................................24

4.3. Main problems of the Law on Public Service and how to settle them.............................................24

4.3.1. Appointment...............................................................................................................................24

4.3.2. Probation period................................................................................................................................25

4.3.3. Certification.......................................................................................................................................25

4.3.4. Training (Increasing qualification).....................................................................................................26

4.3.5. Human Resources Stability as a cornerstone for Public Employees institutions................................26

4.3.6. Ranking system................................................................................................................................27

4.3.7. Social Guarantees..............................................................................................................................28

4.3.8. Guarantees for Protecting Rights......................................................................................................28

4.3.9. Disciplinary Responsibities................................................................................................................29

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4.3.10. Labour disputes...............................................................................................................................29

4.3.11. Public Service Ethics........................................................................................................................30

4.3.12. Legal Frames of Labor Code............................................................................................................30

4.3.13 Public Service Council.......................................................................................................................30

About Authors.............................................................................................................................................31

1. Introduction

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The aim of the concept is supporting accomplishment of the modern model of the public service. The analysis is based on the current Law on the Public Service of Georgia. The draft law on Public Service now submitted to the Georgian Parliament was also taken into the consideration.

In accordance to the presented concept, the model of the public service is based on the institution of the professional public servant. A management mechanism, which will be free from the political influence, has to be created based on the main aspects of the New Management Model and in parallel to the traditional bureaucratic model.

The Law on Public Service has to define the legal status of the professional public servant and create the legal mechanisms for his/her protection.

The Law on Public Service has to define the system of the public service as well as its classification and appropriate ways for career. The law has to identify the regulations for the employees’ social guarantees as well as the system for their education, training and retraining. To guarantee the functioning of the public service a public service council has to be made. The council will have the actual rights for promoting the introduction of the unified standards of administration of the public service.

The current law on public service formally recognizes the concept of the public servant, as a person who is appointed on the position lifelong however the law does not identify the legal guarantees which would give solid contents to this institution.

The draft law which submitted to the parliament rejects the institution of the professional public servant and turns the public servant’s legal status into the contract based cooperation. As it is read in the draft law justification, the concept is based on the elements of the New Administration Model, which means introducing the elements of the private sector into the public service.

The Law on Public Service was adopted on October 31, 1997. It has undergone 74 different amendments. Each amendment had fragmentary nature, served to reach the current political goals and therefore was not a step forward for creating a law based on the modern concept of the public service.

While considering the complexity of the public service reform, it is important to foresee the political course in regard of the state functioning. Considering the economical crisis and budgetary deficit the topic of state property privatization becomes more important. On one hand it envisages new approach towards the state service sphere and on the other hand the formation of the effective organizational strategy. The way to achieve the above mentioned goal is privatization. During the process of the privatization of the state functions the activities should be defined which would benefit the private sector through privatization. Another big part of the process, which comes under the state functions should, divided into three parts: 1. State functions, which are implemented only by the state bodies; 2. State functions which are implemented by using private legal form; 3. State functions which are implemented by the private entities. Only the first part of this division falls within the frames of the Law on Public Service, although the rest of the points are also interesting. The private legal form should be applied while regulating the cases when the damage received while performing the functions of the public service is to be compensated.

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In the context of the new functions it is essential to ask how important is the implementation of the specific functions by the state bodies and public servants working there (for instance MIA property protection police) when private entities can implement the same function with lesser expanses maintaining the same quality. The state service system is effective when state is concentrated only on the important subject while performing state body functions. The public service and its major institution - professional public servant – are the precious resources which should be taken care of and exploited accordingly, to get the result relevant to the expanses.

The Public Service Concept is one of many spheres of the state structure and includes main elements of state service management and its successful application depends on the appropriate understanding of the overall politics.

2. Basic Guideline for Reforming Public Service in Georgia

The determination of basic guidelines of Public Administration Reform in the developing countries made it clear that each reform is based on particular adequate challenges for the development of the society. In order to establish strategic directions for Public Administration Reform in Georgia, each historic situation should be pragmatically analyzed and reform priorities should be realistically defined.

Since the collapse of the Soviet Union up to “Rose Revolution” (2003) state and its administrative bodies mainly functioned in the same style and form as during the USSR. The Soviet administration was known by the fact of regulating all spheres of public relations. Those comprehensive regulatory requirements satisfied huge number of personnel of the state administrative bodies. Considerable amount of money was spent to maintain personnel in the public service. Before “Rose Revolution”, in the post-soviet Georgia the number of personnel in the state institutions remained, however with very low salaries, which made it impossible to satisfy elementary household demands. This was the reason of high scale corruption for public servants during that period. The basis for functioning the state and its administration was informal institutions, corruption and patronage. The state looked very much like a type of feudal country, where state structures functioned through private relations. Under such circumstances, reform of state and public administration has not become significant topic at all.

Nowadays, the main task of the state policy in Georgia is to build up appropriate statehood in conformity with principles of democracy and rule of law; among others, the development of the independent public administration. Georgia should begin state and administration reforms with basic institutional grounds, as it has been the case in the developed countries; in particular, this means creation of democratic state based on the rule of law.

The main guideline of the State and Public Administration reform in Georgia is defined by the Action Plan in frames of the EU Neighborhood Policy. According to this document, the European Commission provides financial support in different spheres. In the first place, principles of

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democracy, rule of law and “good governance” are supported. It is essential for Georgia to build up strong institutional grounds for democracy and rule of law. Only after this, it would be possible to consider modern trends of State and Public Administration of the leading countries.

Without providing those preconditions, blindly implementing certain concepts and models of developed countries into Georgia will not lead to positive result. Attempts to introduce those concepts and models would be rather difficult without preliminary analyzing and preparing the ground.

It is true that after “Rose Revolution” important steps have been taken in terms of reforming State and Public Administration: cancelation of unnecessary and extra staff, combating corruption, increase of salaries, development of infrastructure etc. However, it was essential to form of a united strategy to develop public service, which would be oriented on institutional reform development.

The political-administrative system of Georgia is not solid yet. Particularly striking is the low level of independence of state institutions, limits of citizens’ participation in state activities, failures in the system of democracy control. The working style of state servants is characterized by strict centralism, with deficit of effective control and plan. It is clear that personnel have low level of qualification, political party patronage.

Unconditional introduction of modern concepts and experience of state and public administration of the leading countries will be counter-productive. A new concept of public management in Georgia will help to illustrate the prospects of reform development just today.

The above-mentioned concept can be developed only in well-functioning market economy oriented country, where private property and contract autonomy principles are protected, especially under the conditions of independent court system. For Georgia – as for a state in transition, it is typical that economy is not completely free from state regulation. Instead of formal relations, patronage is quite strong. Such reality does not create attractive grounds for complete development of a new public management. The main principle of such management is transferring public tasks to private structures.

Essential precondition for developing a new public management concept is to establish solid, confident state with independent legislative and court systems with existence of competent, politically independent, neutral public administration. Parliament, in particular, as independent political institute should provide balance of public administration power. In fact, the cornerstone of a new public administration concept is a flexible state- which does not mean to weaken a state at all; On the contrary, it means – strong institutions, which correspond to the principles of democratic state and rule of law.

However, some elements of a new public administration concept being in a process of establishing (whatever attractive they might look) can be dangerous for current political administration system. At first glance, decentralization of responsibilities in frames of public administration can be evaluated positively; on the other hand, under the conditions of weak state bodies- it can encourage corruption and de-coordination. Even implemented decentralization

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practice in the developed countries clearly reflects that corruption and de-coordination problems have been occurring in particular state bodies.

Less dangerous are those elements of reform, which include participation of citizens through round tables, polling and other forms of communication. However, for this, it is essential to have high level of democracy within the state, independent civil society institutions and a public culture of sharing more responsibilities. Otherwise, there is a danger of manipulation on citizen’s participation and their subordination to the interests of the ruling majority. Without having strong democratic institutions, in the condition of weak civil society, elements of the above-mentioned reform lose their purpose.

Considering all this, it is important to define and develop strategic priorities for the state and public administration reform in Georgia. This is prerogative of politics. First of all, reform of public administration should be oriented on developing and establishing institutional infrastructure of democratic state and rule of law. Particular situations should be analyzed thoroughly and only after that certain parameters of reform should be implemented.

3. Foreign Experience

The reform of the public service is a dynamic process, which according to the society challenges aims to raise effectiveness and responsibility of the administration.

The reforms of the public service mostly are concentrated on its classical functions such as planning, organizing, staff hiring, decision making, financing and controlling. Each reform of the public service is a specific plan for optimizing the above-mentioned functions and it is determined by the guideline orientations. These main orientations of the reform supervene from the main understanding of the state.

In this regard, it is important to study the experience of developed countries. It makes clear that the public service reform is always conditioned by a new state concept. This experience also gives us an idea about what the tendencies of modern public administration development are in the world and provides a theoretical basis for their implementation in Georgia.

Although in terms of access to the public service reform in the leading countries and considering Georgia’s European orientation, special attention should be paid to the development of the Classical European Model; however, this development reflects general picture of the main elements of developed countries’ public administration reforms worldwide.

3.1. Bureaucracy

In the Weberian bureaucratic model can clearly be seen the rule of law and strict definition of the competencies in the public administration. Unlike the arbitrary form of administration, where the

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public servant subjectively manages public resources and where acquiring a given position is based on patronage, nepotism, corruption and everything is out of control, within the margins of classical bureaucratic model of public administration the work is identified, distributed and controlled according to the legal framework.

Weberian bureaucratic organization is based on the one hand- on pyramid-like hierarchical structure and on the other hand, standardization of the internal organizational procedures. The hierarchical structure in terms of bureaucratic administration is characterized by strict distribution of labor and its specialization. Therefore, it is necessary to employ a public servant in the specific field according to his/her competence (knowledge and experience). In addition, each unit of bureaucratic organization is subordinated to the superior body.

While describing the internal procedures of the administrative bureaucratic organization, it is essential to mention the strict standardization of the administrative activities and dependence on specific regulations. Above-mentioned activities are carried out only in a written form. The latter secures its transparency and control. Together with the hierarchy and specialization of this type of internal organization, it gives a solid base to manage and control the public administration in accordance with the principles of democratic state and rule of law.

One of the key features of the bureaucratic administration is the professionalism and competence of its personnel. The professionals are hired “lifelong”. This principle is not motivated by the personal interests of public servants, but rather serves as a tool to strengthen their professional independence. Overall, it is aiming to reinforce the public administration institution. The professional career promotion of public servant is based on career principles. Therefore, their qualification tends to constantly improve. The financial compensation is provided by the preliminary determined salary rating. The public servant is obliged to carry out his/her professional activities unbiased. This responsibility should be performed not as the loyalty towards the supervising person, but rather as the attitude towards the institution, which will finally secure the independence of the bureaucratic organization from politics.

The activities of the bureaucratic organization are determined beforehand as they are based only on law. Each administrative action could be controlled by the court. Conducting bureaucratic activities in a written form provides a substantial basis for this. In addition to the court control, for the hierarchical organization, it is essential to have the principle of the parliamentary control. Every Minister must ensure that his orders are carried out in accordance to the Constitution and the Law within margins of the institution subordinated to him. Otherwise, issue of Minister’s political accountability will appear.

According to the above-mentioned elements of the bureaucratic organization we can summarize the features which distinguish between a modern bureaucratic model (based on the principles of democracy and rule of law) from the underdeveloped administrative one. The underdeveloped administration is identical to the personal power, while in the modern bureaucratic model the administration is presented as a state institution. An arbitrariness of public servants is characterized to the underdeveloped administration, whereas the developed bureaucratic system is distinguished by strictly formal work: professionalism of public servants, independence of the institutions and systemic hierarchical and court control.

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Thus, the bureaucratic model of public administration was appropriate answer to the social challenges in Europe after the Second World War, when the main goal was implementation of democracy and rule of law. This model still has not lost its importance. Although it has undergone reformations and optimizations in the agenda of the administrative policy for many times, there was impossible to completely substitute it with alternative model. After all, such a success of the bureaucratic model can be explained by the fact that it is a result of the highly developed legal and institutional culture and not just an organizational category.

3.2. Active StateFrom the middle of 60s of the 20th century the general orientation of the state and public

administration reform has changed in Europe. In the German administrative legal studies this stage is known as an "active state" or an "active policy". A new state concept in Europe was preconditioned by the first major economic crisis of that period.

According to the new vision, only an “Active State” could create conditions to avoid economic crisis. On one hand, this envisaged improving a mode of protection from the state towards every citizen and on the other hand, it aimed to increase the system of economic planning. The opportunities of the state were linked to great optimism. According to this, the state had to put more efforts to interfere in public relations. Using more intense planning policy it had to improve the shortcomings of the market economy through introducing significant amendments.

Historical development has displayed limited abilities of the “Active State”. The model ceased its existence in the late seventies of the 20th century. The following economic crisis has made it clear that the state has taken heavier burden than it actually could have taken.

3.3. Flexible StateFrom the seventies of the 20th century an idea of the Flexible State became the main focus of

state and public administration reforms. Its development can be divided into two stages. The first phase includes the neo-liberal criticism of a state, while the second stage includes creation of a New Public Management (NPM).

3.3.1. Neo-liberal criticism of the State By the end of the 20th century, neo-liberal criticism of the state has been spread in the developed countries. According to this criticism, the main deterrent factor of social-economic progress was state bureaucratic system. In special literature, it has been linked with economic programs of Thatcherism since 1978 and Reagonomics since 1980. According to this concept, particular criticism has been regarded to the fact that, state has been taken more and more responsibility on itself, expenditure of state budget has been increased, bureaucratic apparatus was growing and those factors leaded to the abundances of law and tendency of a detailed regulation. As a result, citizens and private business were damaged. The independence of entrepreneurs got dramatically limited, while they became much dependent on state bureaucracy. In contrary to this tendency, priority was given to those initiatives which were aimed to simplify public administration and legislation. After the implementation of neo-liberal reforms, state and its public administration should have become more flexible and simple. State should have been less interfering in economic processes, it should save more money, and it should have started staff

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reduction process and the simplification of legislative communication. Implementation of the above-mentioned, in the first stage of “Flexible State” development, essentially was maintained by the traditional internal organizational management mechanisms and structures. During that stage, they have not become objects of criticism.

3.3.2. New Public Management

By the end of 80s of the last century, the main target of state and public administration reform in developed states still remained an idea of a flexible state and its tasks (simplification of public administration, privatization process and opposing bureaucracy), with the demand of changing traditional forms of management. For this purpose, a new public management concept emphasizes the issues of private sector management and proceeding from its experience acquires appropriate knowledge for public administration reforms. It has become so popular that it has created certain euphoria in the countries which needed public administrations reforms. Even nowadays Public Administration reform is quite attractive topic for scholars. Therefore, we will discuss it in details.

Main thesis

A New Public Management calls into the question the effectiveness of traditional bureaucracy and gives preference to a totally new structure and working style for administration.

According to the New Public Management, politics should govern public administration not by the precise legal norms and by the particular articles of the budget, but it should be limited by the general objectives of administration, strategy or by the highlighting the certain standards; on the other hand, by establishing such budget, which will not be defined in details; Therefore, to empower the administration to manage the budget according to its responsibility. In fact, responsibilities between politics and public administration were innovatively defined: politics is authorized to define main goals of public administration and control the results. As for implementing above-mentioned goals, it is a prerogative of public administration itself.

Within the rules of a new public administration each organizational unit gains more autonomy. Comparing with bureaucratic model, where public servant is an executor of hierarchical orders, according to the new model of public management, he/she takes personal responsibility to conduct public duties.

It is true that public administration should be conducted within the legal frames; however, the assessment of its performance in conformity with the legislation has become a consideration of customers’ requirements. Thus, formal criteria of administration’s legal actions have been filled with criteria of quality assessment contents. The priority was given to it.

Services conducted by public administration have been defined by the product name. Creation of the product –a result of service has been defined by the superior unit of public administration;

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however, subordinated unit of public administration may independently choose its way of implementation.

Within the margins of public administration, governing process is mainly implemented by the mechanisms of goal definition, stimulation, quality control and competitiveness.

Defining the objectives by superior bodies gives a wide coverage area for each adminstration unit compared with hierarchial orders. Additionally, transfering budget to them, increases and stimulates the quality of activities. Activity control of each administration unit is conducted according to the particular quality criterias. Special attention is paid to the creation of the mode of competitiviness between different public administrations (including public administration of particular region or state, or between public administrations of different countries). Comparisons of the performances should result in the increase of motivation for administration personnel, trasparency of results and achieving of good practice.

Product Oriented The ssignificant element of a new public management is to be a product oriented- or to be oriented on the particular result of administration activity.

Public Administration itself defines products of its activities. In this process, it is guided by politics and particular priorities of the administration rather than by the legislative powers. It is also guided by citizens and their demands as they are clients of this administration. The quantity of products should be realistic in order to offer them. From a systemic point of view, products are divided into certain groups whereas the latter are divided into certain segments.

In certain cases, it is impossible to determine the results of all the public administration services. The definition of products becomes particularly complicated when it is linked with such services, which are established by an active relationship between consumers and providers. In this case, production and consumption are practically simultaneous. The provider becomes a kind of a part of the product itself and therefore, his/her role could be decisive (for instance: rendering consultations).

The product, as a basis of a new organizational principle, changes a working style of public administration in various ways. Budget becomes more new product oriented and the latter contains important source of the value and information. This ensures more transparency of administration activities and its specific values.

The distributed parts of the product in various units of public administration are united under the particular service. This influences on organizational changes of administration. Therefore, product oriented approach gives the administration personnel ability to document their own activities. The latter is a solid ground to compare it with other public administration products, their expenses and quality criteria. The process itself facilitates competitiveness between different public administrations.

In conclusion, identifying the products by public administration will correspond to the main demands of citizens, that they will have complete and comprehensive information on following:

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what is the cost of particular services, what qualification degree public administration has. Those exist and function by taxes.

Internal Process and Client Orientation A new Public Management, likewise private sector, is oriented on the optimization of internal processes of public administration. It focuses on rapid and flexible proceedings, where standardization of processes is minimized where labor is less divided in different departments and the length of proceedings is shortened.

Every participant of internal processes of public administration becomes an internal client. Employees treat themselves as clients and the latter leads to the optimization of internal process, which should result an optimization of “chain” process within organization itself. This increases the mode of cooperation in the organization and the sense of joint inclusion. This is supported by client/citizen orientation of the public administration internal processes, which means that process optimization (considering citizens’ interests) mainly should be guaranteed within the organization.

Traditionally, public administration is structurally represented by various units and departments and their work is usually characterized by bureaucratic style. Often the clients/citizens problems cannot be divided. Therefore, proceedings from the client’s interest, public administration should serve clients with quick, flexible and efficient way. “One Stop Agency” principle is aimed to implement above-mentioned purposes.

It is also important to secure the participation of citizens in the work process of administration together with creating unified service centers for them. Organizational forms of cooperation between public administration and citizens (for instance: round tables, polling, and written criticism of public administration) are well-known in practice and serve above-mentioned purpose. In terms of such cooperation, a matter of the discussion should be topics like the cost and quality of administration service (or product). Each form of cooperation provides the involvement of citizens in modernization process of public administration and practice improvement.

For Public administration, client orientation aims to improve its service and innovation. Client satisfaction should become a measure for service quality. Public administration should create such conditions for service, which will provide the necessary service in a shortest period possible with low expenses. For instance, the practice of issuing ID card: when administration is notifying a citizen in advance when ID card expires and what documents one will need to receive a new ID card.

Important role plays the effective use of new technological achievements for simplifying and improving service and relations between public administration and citizens. Providing service through internet is a significant element of administration.

Decentralization of responsibilities and centralized management

In a new concept of the public administration the decentralization of the responsibility takes a special place. This considers politics and public administration as well as the relations between the supervising unit and the subordinate unit in the frames of the public administration.

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In the above-mentioned relations the contractual management becomes important. Political leadership and the public administration agree on what portion of the budget should be allotted for a specific kind of product (type of service, its cost, quality). The administration takes its independence while identifying the tasks. The goals set and the results achieved are the aim of the politics.

The principle of contractual management operates even within the frames of the public administration itself. Each subordinate unite of the organizational chain receives the specific instruction from the management and the relevant budget. The subordinate unite has great autonomy while performing the task. And each of its employees has high level of independence while performing certain duties.

Thus, in the new concept of the public administration management the responsibilities are decentralized. According to this, management is not conducted by the detailed instructions and orders from the higher unit, but by setting the common goals and outcomes among the supervising and subordinate units. The decentralization of the management needs establishing of new communication and consent culture within the frames of the administration.

The effective decentralized management generates the need to coordinate the activities of the subordinate units. On the one hand, the coordination of autonomous units is achieved through the general orientation and specific objectives set according to the agreement, while, on the other hand, the so-called controlling system and the periodic report should be provided. These elements form a unified command and control process and ensure unity of decentralized administration.

Qualification and motivation of the personnel New public management focuses on the issues of improving the training and motivation for the organization personnel. Initially, the concept of the new public management highlighted the technical side of new managing model as its priority, but soon it became clear that the successful implementation of the new public management model would largely depend on how much it could win the hearts and minds of the persons employed.

Full-scale implementation of the new model could be possible in case of relevant qualification and motivation of employees. According to this model, the administration should free itself from its passive role, and it must be transformed into a creative agency. This requirement is a challenge for the personnel of the administration as it must have the appropriate knowledge and skills for the new management model. Rising the service level and quality of the results depends precisely on this knowledge. It also provides the high competitiveness of the organization.

The creative and innovative approach increases the staff motivation. By introducing framework of the decentralized public administration as well as giving each employee broader arena for actions, satisfaction of the staff increases. The periodic meetings with the management and discussing the objectives contribute to the fact that each employee can better understand and absorb the essence of his work as an integral part of the process. Excellent customer orientation and competition with other administrations increases the creative potential and the quality of services provided by personnel.

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New Public Administration Concept sets in the agenda the necessity of introducing a new style for the management. Hierarchical management, which is limited with formal orders, and does not consider the discussions with colleges, will not respond the demands of a new model. With the style based on interactive relationship management it is required that the bosses inform the staff periodically about what the objectives are, how do they assesses their performance as well as the prospects for development and their vision of the future plans. For this purpose, it is necessary to establish the constructive relationship between the bosses and the employees and not only general instructions written on a paper.

According to new management model standardization, strict control and distrust is substituted by trust and cultural responsibilities. This cultural shift must take place in the consciousness of each employee. In this regard, in particular the leadership of the organization depends on creating an atmosphere where every employee takes the success of the administration’s performance as his/her own responsibility and importance.

The administration that learnsShifting to the New Administration model from the bureaucratic model requires competence

(knowledge, experience and skills). Mainly the new management should include economic thinking and a strong customer-oriented attitude. The goal oriented and contractual management style should correspond to a management style based on cooperation. To solve complex factual elements the employees of the organization should have strong skills of teamwork and systemic thinking. The innovative approaches are absolutely necessary for constant dynamic development of the administration.

The administration would only be able to elaborate the above-mentioned skills, when its employees are educated through these demands - how to perform their functions optimally. The process of education should be adequate to the dynamics of social development and should meet the increasing demand of people.

Parallel to programs for appropriate training of the employees in the administration which is constantly in the process of education much importance is attributed to the performance surveys among the consumers and the personnel. It should facilitate the process of self-assessment for the administration and that should allow analyzing the strengths and weaknesses of the performance and identifying future targets. As a result of these processes concert projects and action plans are formed and this should be done with the participation of ordinary citizens.

While the process of the reform each administration accumulates certain experience. Sharing the reform experience is an important precondition for the success of the reform. The administration that learns, should teach the others as well. With participation of qualified specialists and scholars this process receives systemic character. This facilitates scholarly evaluation of the administrative reforms and creates a good foundation for sharing the successful public administration experience as on the national as well as on the international level.

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The administration oriented on the public influence New public management reform process has made it clear that orientation only on managing the private sector elements, such as product, customer, etc. or internal organizational autonomy, contains a threat that the activities of the public administration, would mainly be dependent on the financial and economic factors. Unlike the private sector, the goal of the public administration is not gaining profit. Therefore, the financial - economic categories of the new public management reform does not fully respond the purpose of the public administration.

All public administration reform initiatives, including implementation of the new public management elements, will be successful only in the case if the major idea of the public administration activities (the public service for every citizen) is not lost. It is essential for the reform of any type of the public administration to know the impact the planned changes will have on the social development as well as on each individual.

In a democratic state the major task for the public administration is the common welfare of the society. This task is fulfilled in accordance with the basic principles defined in the Constitution. It receives a specific meaning while implementing the goals and programs which are reveled in different fields (social, environmental, education, culture, etc). The ultimate measure of success depends on how deeply the reform policy improved the standard of living of every citizen.

A new concept for public management means that during the process of reforming the public administration, it becomes important to regulate the aspects of the internal organization as an entity, which is the main purpose of the public administration. The purpose of the reform should always be focused on the final result which is improvement of the life conditions for people. Ignoring a matter of improvement of public administration activities bears threat of isolation.

The new public management concept in Switzerland and Austria was appropriate to these requirements from the very beginning. In the above-mentioned countries it was established under the name of the impact-oriented administrative concept. This name reflects the conceptual view, according to which the significance of the administrative reform is determined by the value of the impact it has on each citizen and society. In the developed countries, the further development of the new public management emphasizes exactly this trend.

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4. Main aspects of Public Service Reform

4.1. Main institutions of Public Service One of the problems of Law on Public Service is that its main notions and subjects are vague. First of all, scope of the law should be defined. It requires clearly identifying the statuses of a state public service, public service, public servant and public employee.

According to the concept, state public service is an elected or appointed activity position in those institutions, which implement legislative, executive and court powers, state supervision and control as well as state protection.

State public service is also performed by private persons. They are granted to implement public legal duties through the delegation of powers.

According to the concept, state public service consists from 4 groups:

1. State Political Service. State Political Service is conducted by :- President of Georgia;- Members of the Parliament of Georgia;- Head of the Government and its Members;- Members of the High Representative Body of Adjara and Abkhazeti Autonomious

Republics;- Heads and Members of the Executive Body;- Members of local self-governance (without administrative fuction).

2. Public Service;3. Compulsory Military and Alternative Civil Service;4. Implementation of public legal duties by private persons.

The subject of the concept is a public service, which is included in the Law on Public Service. Public Service is conducted by public employee and public servant.Public Service is a form of state public service. The notion of public service can be made by substraction method: State Service – X = Public Service

According to the Law on Public Service, public service is not implemented (in above-mentioned formula X equals) by:

- Persons employeed in State Political Service;- Persons employeed in compulsory military or alternative civil service;- Private persons, who conduct public legal duties (functional understanding of

administrative body);

Public Service can be understood as a public duty carried out on a salary basis either being elected or appointed in a budgetary organization. Public service consists of following elements:

-Treasury department;

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- Public authority implementation goal;- Act of being elected or appointed;- Staff hiring scheme;- Salaries.Considering the above-mentioned Law on Public Service totally governs:- The activities of the representatives of the public sector of executive power;- Activities of legislative body and the High representative bodies of Abkhazeti and

Adjara Autonomious Republics and self-governance, which implements its administrative functions;

Mainly, under the scope of additional and special frames of the Law on Public Service falls: law enforcements bodies; hired military service; the Diplomatic Corps; the Chamber of Control; Election Administration; Revenue and Customs services.

Working within the court system, in the independent regulatory bodies or in the Office of Public Defender/Ombudsman is regulated by the Special Laws and also by additional regulations of the Law on Public Service.

Conclusion: State Public Service is carried out by the regulations stipulated in the Law on Public Service or within the frames of special regulations.

Often state, in order to carry out its functions uses Private Law forms of organizational arrangements. In order to formulate the notion of public service, it is not essential the nature of the activities (whether he/she serves for the implementation of public service), but rather that the activities are conducted in the service of public law legal entity.

Law on Public Service is a law of employees who work within state bodies and other public law legal entities.

It does not cover those subjects, who are employed in the private law legal entities. Even in such case, when state uses organizational structure of private law form in order to carry out its own objectives.

The essential element of public service concept is a reform of the Law on Public Service. A new notion of public law legal entity should be developed. Public law legal entity can be developed by using various forms of organizational structure:

1. Public Law Corporations;2. Public Law Institutions;3. Public Law Funds.

4.1.1. Public Law Corporation Public Law Corporation is a membership-based and independently functioning organizational union not depending on the rotation of its members. It is a legal entity based not on private autonomy, but on a governmental legal act.

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Public Law Corporation is distinguished from the private law corporation by its organizational structure and public legal form. Territorial corporation is a unity of persons residing on a precise territory for a long period of time. The main example of the formation of Public Law Territorial Corporations is creation of self-government units.

Non-territorial corporations embraces those persons, who are united by professional/or other features, rather than by territorial location.

Public Law Corporations, which are not created by territorial location, are mainly professional unions: for instance: bar association -as Public Law Corporation.

The purpose of creating public law corporations is that organizationally public law corporations are separated from state and represents a self-governance unit. It conducts public legal duties. On the other hand, subordination to the law as well as state supervision is guaranteed.

Compared to private law corporations, public law corporations are authorized to have public employees, issue normative acts and establish fees and charges of services.

State may grant the status of Public Law Corporation to such organization, which does not conduct public legal duties; however it represents the interests of a whole society. The purpose of the above-mentioned is to acknowledge the merit and achievements for granting honorable legal status of public law legal entity. We can observe such examples in case of Red Cross Organization, Religious unions and political parties. Several public legal rights and duties are connected to this status. Those organizations despite their public legal status have no public employees.

In terms of the Law on Public Service, while defining the status of religious unions it can be separated Georgian Orthodox Church and other religious unions. The status of Georgian Orthodox Church and its relation with the state and other subjects are defined by the constitutional agreement (Concordat) concluded between the Church and the state.

4.1.2. Public Law Institution

Public Law Institution is an institution which is granted public legal authority. It manages those material or human resources, which are essential to implement its authorities. Public legal institution is based on its voluntary approach rather than compulsory membership. It is established for the reason to service its clients. The state or local self-government body, which makes a decision to found public law institution, is liable to take care to create material and financial grounds for sustainable functioning of the entity. It is also obliged to establish mechanisms for compensation in case of damage.Public law institution can establish a public broadcaster, universities, vocational and high schools, service agencies etc.One of the features of public law institution is following: it uses private labour law as well as public law mechanisms while conducting its activities.

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In the educational and cultural public institutions a reservation can be made- which stipulates that persons working in such institutions are not public employees.

4.1.3 Public Law FundPublic Law Fund is an institution, which with its property, serves for achieving the objectives

designed by the founders. Creation of Public Law Fund by the state or self-government serves for only one purpose: to protect particular social and cultural spheres and the interests of certain groups of society. These are the spheres of public interests: libraries, cultural monuments etc.; also persons with physical and mental disabilities or chronicle diseases, which need a special attention. The fund accumulates certain material property and it is managed to achieve the goals.

The law should define organizational structure of the public law fund, its management bodies and the competencies.

4.2. State Service System State service as well as public service systems and their legislative regulation can be presented

by those schemes (schemes 1 and 2).Scheme 1

State Political Service

Public State Service

Compulsory Military or Alternative Civil Service

Private Persons, who carry out public legal duties

President of Georgia; Members of the Parliament of Georgia; Head of the Government and its Members; Members of the High Representative Body of Adjara and Abkhazeti Autonomous Republics; Members of the Executive Body of Adjara and Abkhazeti Autonomous Republics; Heads and Members of the Executive

Public Servant Public Employee

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State Public Service

Body; Members of representative body of local self-governance.

Judge; Public Defender; Chairman of the Chamber of Control; Member of the Council of National Bank of Georgia; Members of the Independent Regulatory Bodies.

Professional Servant; Political Servant; Servant on Civil Basis

Scheme 2

Public Service

Public Service which is regulated by Law on Public Service

Service, which mainly is regulated by Law on Public Service and also by other law

Service, which mainly is regulated by other laws and by some articles of Law on Public Service

The representatives of the Executive Body; Representatives of Legislative Body, Subjects of High Representative Body Abkhazeti and Adjara Autonomous Republics, legislative body and local self-governance representative bodies, who carry administrative functions.

The Chamber of Control; Law Enforcement Bodies; Hired Military Personnel; Diplomatic Corps; Election Administration; Tax and Customs Service.

Court system; Public Defender’s Office; Independent Regulatory Bodies.

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Public Service is carried out by

Public Servants Public Employees

4.2.1. Public Servant and Public Employee

Public Service is carried out by public servant and public employee. Public servant is for instance: Chairman of the Chamber of Control, member of the Council of National Bank, Judge, Public Defender, member of Independent Regulatory Body, Ambassador etc. Below the institute of public servant will be discussed. The main element of the concept is an institute of the professional servant.

Public service is conducted in the framework of the status of public servant:1. Professional servant- who conducts main and professional activities and receives

appropriate salary and guarantees; 2. Political servant-who has such duties, which are conduted according to the political

goals and views of the government (for example, chief deputy of state political official, assistant, Head of Administration).

3. Servant on voluntary basis- who carries out public duties not as his/her main professional activities, but together with his/her professional activities, without additional compensation.

Public Service on a contractual basis is conducted by:Supporting assistant- who is hired on a full-time staff position and performs public legal duties in order to achieve objectives and goals of the institution; Hired worker- ( part-time) who carries out particular duties without having public legal authorities being delegated to him/her.

Accordingly, public service performing model can be presented by the following scheme (see scheme 3):

Public Service is carried out

Public Servant

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Professional servant Political servant Volunteer servant Hired servants (part-time)

4.2.2. The proportion of employers in Public Service Professional Servant 40% Supporting Servant 40% Hired employee (part-time)

20%

4.2.3. Criteria for distinguishing between a public servant and a hired, part time employee

Distinguishing criteria

Public servant a hired, part time employee

Legal Nature Public (administrative) law Private labor law

Basis for the relations

Individual administrative act Labor contract

Legal grounds Legal grounds Individual and collective contracts

Promotion Principle of career Individually

Financial Compensation

Principle of alimentation In compliance with his/her performance

Social guarantees Special social protection Private-legal means

Results from not accomplishing the responsibility

Disciplinary responsibility Legal contract

Rights Ban on strikes The right for strike

Protecting rights Administrative dispute Private law dispute

4.2.4. Main characteristics for professional public servant

Legal relations between the public servant and the employer Lifelong appointment The loyalty commitment

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Employers’ commitments for appropriate protection Neutrality from the political parties Principles of the career The right to hold appropriate rank Right for appropriate social protection (alimentation) Right to receive appropriate legal assistance Protection against being dismissed illegally Right to apply to the court

4.2.5. Classification of the public servant public servant in state service public servant in the local self-governance service public servant in the service of other public legal entity

4.2.6. Legal relations between the public servant and the employer Lifelong appointment: The life long appointment is an important element for

professional public servant institution. Lifelong appointment serves for the professional independence.

Appointment for specific term: This type of legal relations is an exception, mainly used in local government field for elective positions.

On probation: The period of probation should be the necessary precondition for lifelong appointment. It serves to determine the compliance of the public servant. The regulations of the Law on Public Service do not meet the minimum requirements for the terms of probation.

4.3. Main problems of the Law on Public Service and how to settle them

4.3.1. AppointmentThe fault of the Law on Public Service is that the regulations about the appointment of public

servant are vague and incomplete.

One of the preconditions for entering the public service is age – for a public servant the age minimum is 21 and for a local self-governance employee it is 18.

According to the concept, the age 18 should be minimum for entering the public service, regardless of the category applying:

public servant in state service public servant in the local self governance service public servant in the service of other public legal entity

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Reaching the age of 18 years does not mean to have right to serve on any level in the public service. The current law has additional requirement - careful and precise determination of the appropriate knowledge and experience. Specific educational requirements should be established as well as the experience necessary for the particular public service.

The principle of career shall be the basis for public service, which means promotion from one position to another in the public service system while the level of education and experience taken into account. This model solves the age-related questions and excludes the possibility to start a career at the age of 18 from the upper position.

This system does not apply to hired part time employs. This category will be hired as public servants according to their professional experience and interests of the service.

The Law on Public Service should establish the basic requirements necessary to hire a person. The head of the office should determine additional requirements in compliance with the law.

Current law stipulates within the range of competence and authority the following public service ranks:

a) Main public position;b) Leading public position;c) Senior public position;d) Junior public position.

Specific qualification requirements should be defined. This means relevant education, practical experience, successfully passed certification exam.

Applicant should be appointed to public service only through the competition. Above-mentioned should be applied not only to the professional public servant, but to the supporting servant and hired, part time employee. This rule is applied only during the initial appointment of professional public servant, whereas the further promotion is based on the career principal.

Competition can have 3 formats: external, internal, and mixed. The terms of application of each format should be selected. It is important that the rules of creation of competition commission should be in compliance with the legislation.

4.3.2. Probation periodThe Law on Public Service provides probation period for a public servant, which shall not

exceed 6 months. It is necessary that the practice of the probation period is not formal but a necessary step for service career. This term may be different for various services according to their specifics, but it should not be less than 1 year and more than 3 years.

4.3.3. CertificationThe certification institute holds an important role for career in public service system. Its aim is to identify whether the public servant fits his/her position or needs training, as well as determining grounds for his/her promotion or dismissal.

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In Georgian reality Institute of Certification does not function. It is necessary to establish the appropriate organizational and procedural basis to activate it. Legal basis for certification should be defined as well as strict rules and regulations for its operation and evaluation should be set.

Certification should have strictly regulated and systemic nature. The frequency should be determined by the experience of foreign countries and the Georgian reality. In a country like Georgia, where the legal system and institutional arrangement is in the process of formation, it is possible to make it obligatory to carry out certification on annual basis.

4.3.4. Training (Increasing qualification) Current Law on Public Service formally provides training, (courses for increasing qualification) for public employees. Public employee once in 5 years is given up to 3 months for studies and training preserving his salary (a kind of sabbatical). It is also envisaged obligations of the Human Resources Department to organize training of public service employees. One of the functions of public service was determined coordination of system for professional training and increasing qualification level. These activities have not been done whatsoever.

It is essential for state to develop concept of effectively organizing the process of training and re-training of public employees. It is important to create special programs for public employees and public management high qualification courses. As considerable work is to be done, it is necessary to involve other players as well. It is possible to involve in this process, state and private schools and training centers for re-training public servants. The appropriate institution should be accredited by the public service bodies.

4.3.5. Human Resources Stability as a cornerstone for Public Employees institutions Staff stability is one of the essential elements for a proper functioning of public service. The latter can be achieved by the establishing lifetime employment institutions. Staff stability does not mean that new employees should not be hired. Career principle provides the process of staff renewing. According to this principle, law should precisely determine legal and factual circumstances. Public employee should cope with the regular performance assessment and appropriate training. Professional promotion should be based on professional training and skills. The principle of staff stability requires that law should precisely determine legal grounds for dismissal of public employees. The law should also stipulate legal and social guarantees for their protection.

According to the analysis of the Law on Public Service, several problems can be identified:

1. Article 96 of Law on Public Service determines grounds for dismissal of the employee in case the institution is liquidated. The regulation needs further improvement. The liquidation

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of the institution should not lift the responsibility of the state from taking care of employing current staff members. If needed, government should retrain them;

2. According to the paragraph 2 of the abovementioned article, reorganization does not create a ground to dismiss public employee. However, those regulations are avoided in two ways. Often reorganization is performed under the cover of liquidation and a new institution with the same functions is established. On the other hand, regulation permits to dismiss public employees, when reorganization leads to staff reduction. In this case, it is necessary to determine following barriers: offering the similar job, offering training programs, offering compensation equal to the annual income etc. Only by applying this approach, it would become possible to discharge the public employees. Reorganization should not mean lifting responsibility from the state to further provide a job for public employees;

3. According to the article 97 of the above mentioned law, public servants should be dismissed in case if any discharged public servant is restored back to his/her position. This norm serves for the protection of the rights of the illegally discharged person. However it restricts the constitutional rights of another public servant who received the mentioned job. There is a need to determine more precisely some aspects of the article 98 of the Law on Public Service envisaging dismissal from the position due to the irrelevance to the job. It should be clearly distinguished in case of unsatisfactory results after the trial period based on the results of the certification, from the cases when the public servant has certain health problems. It is necessary to determine the commitment of the employer to provide the public servant with the job according to his/her health condition.

4. The article 99 of the Law on the Public Service determines possibility of dismissing public servant for the disciplinary violations and without them in case if he/she violates his/her professional duties. This conditions are very general, therefore they give possibility to dismiss an employ with very subjective reasons.

5. According to the articles 108 and 109 of the Law on Public Service the commitments of warning or the compensation mechanisms in case of dismissal from the job do not correspond to the principles of lifelong employment. It is necessary to regulate it better and attract additional mechanisms of social protection. (High standards of financial compensation, so that some parts of the social protection mechanisms for public servants could be applied to the persons dismissed.)

4.3.6. Ranking system Common approach should be established in the Ranking Roster for public employees. The list of positions should be unified within the ministries, sub-departments, local self-governance bodies and among other public law legal entities. This will simplify mobility process of public employment. According to the list of classifications, a person should not be the head of certain department of a ministry and simultaneously be employed as a leading public servant in different ministry. The current law stipulates that acccording to the competencies and rights public service jobs are divided into the following ranks:

a) Main Public servant positionb) Leading public servant positionc) Senior Public servant positiond) Junior Public servant position

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It is posible to maintain the existing system of ranking. The issue of ranking unification is important. The requirements and procedures should be defined, according to which every single rank should be granted. Ranking is connected with the professional skills of a person, his/her qualification level, official duties and the amount of salary. First of all, it is important to unify names of the structures and positions within the public service system; Only in such a case it would be possible to activate a unified system of ranking. Nowadays, in various ministries, the same functions are performed by different services and as a result employees with the same ranks receive different salaries.

Rank of public employee should correspond to the system of ranking of the positions. Preconditions of granting a rank should be clearly defined. The flexible system of ranking classification should provide protection of the interests of the public servants. In case of moving him/her to the lower ranking position their interests should be protected by preserving appropriate salary benefits.

It is possible to apply to the internal ranking system for assistant servants/ hired workers.

Rank Position Salary group Education

Junior Public OfficialHigh School education, 6 months special training

Senior Public OfficialHigh School education, 18 months special practical training, qualification exam

Leading Public Official

Special education, 36 months special practical training, qualification exam

Main Public OfficialGraduate, 24 months special practical training, qualification exam

4.3.7. Social Guarantees An important element for social guarantees is labor remuneration, which covers salary, bonus and other fees (depends on specific job and ranks, duration of service etc). The rules of salary payments should be strictly regulated. The system of salary scale should be defined for the whole public service and for supporting staff/hired workers. Considering unified scheme as well as those legislative frames which give the possibility to the employers to take discrete decisions, qualification and labor effectiveness of the employees. Apart from the wages, mechanisms for receiving certain social assistance should be defined; more precisely, special insurance and pension schemes; (for public servant in case of his/her death as well as for family members).Corrupt practice of bonuses should be eliminated. The legislation should strictly govern the amount of bonuses as well as the rules of issuing them.

4.3.8. Guarantees for Protecting Rights The Law on Public Service should secure material and in kind rights of public employees:

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Intangible TangibleProtection of public employees and their family: securing their honor and dignity

Right to receive bonuses

Rights related to the job:Appropriate to the status; right to hold a rank

Right to receive financial guarantees

Right to have holidays Damage compensation Right to perform part-time jobAssessment rightRight to carry IDRight to join trade unions

4.3.9. Disciplinary Responsibities A particular chapter into the Law on Public Service should be dedicated to the disciplinary proceedings as a special form of administrative proceedings. Subjects and procedures of disciplinary misconduct and forms of accountability as well as mechanisms of protection of rights should be determined.

It is desirable to solve disciplinary disputes outside the institution of public service by the disciplinary commission established within the Public Service Council. The decision may be appealed to the administrative court in accordance to the general rules.

4.3.10. Labor disputes Law on Public Service should regulate mechanisms to settle labor disputes. Internal mechanisms should be defined. Internal Dispute Resolution Commission should be created. It will be composed by the equal number of the represantatives of employers and employees. The permanent Commission should function according to the established reglament. The decision of the Commission can be appealed to the court.

The law should define those categories of dispute, which can be discussed and solved only by the court appeal.

Especially problematic is the issue of dismissing public employee from public service. It requires more precise definition. Stability of public service should be guaranteed, which means that it should not depend on the government and public management changes.

Dismissing from job should be clearly defined by the procedures and items of the law. Corrupt mechanisms of liquidation and reorganization should be eliminated. Transparent, legal and social protection mechanisms for dismissing public employees should be established. Restoration of public employee back at his/her position should not result the release of the other person. It is prohibited to protect the rights of one person at the expanse of violating the rights of another.

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Hearings of labour disputes within the court should be divided in two parts: In case of professional employees, dispute is administrative and the court considers according to the administrative litigation. The disputes in case of supporting emloyees/hired workers- a relation is commercial and disputes are considered by civil litigation rules.

4.3.11. Public Service Ethics The Law on Public Servive should include public service ethic norms, which should be applied to all public service institutions. Considering specifics of different institutions particular ethic codes should be ellaborated. Special service for protecting, controlling and administrating norms of ethics should be granted to the special Public Service Council and supervisor should be assigned for this in all institutions.

4.3.12. Legal Frames of Labor Code The Law on Public Service regulates labor rights in autonomous regime, which excludes parallel usage of the Labour Code of Georgia. Labor relations are regulated through the Labor Code between public servant and hired employees. Considering above-mentioned, it becomes necessary to reform the Labor code and define minimal guarantees which should facilitate protection of the employees. The additional guarantees should be defined through the collective agreement, which could be concluded between employer and employees’ union.

4.3.13 Public Service Council

Public Service Council as an independent body guarantees ellaboration of the main policy of the public serbice shpere and its implementation. The Council should be accountable to the parliament of Georgia. It creates the unified standards for hiring public servants. The Council coordinates training and re-training of the public servants and create dispute and ethic protection services.

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About Authors Levan Izoria

Full Professor, Faculty of Law, Grigol Robakidze University

2002 Juris Doctor (magna cum laude), Faculty of Law, Georg-August University, Gottingen,

Germany

1999 Master of Laws LL.M (magna cum laude),Georg-August University, Gottingen, Germany

2003-2004 Representative-Konrad Adenauer Political Foundation in South Caucasus, Georgia

2004-2006 Rector, Police Academy, Ministry of Internal Affairs of Georgia

2006-2007 Dean, Faculty of Law, University of Georgia

2007-2009 Researcher, Visiting Scholar, Humboldt Foundation Scholarship, German Research

Institute for Public Administration Speyer, Germany

July, August 2010-2011 Researcher, Visiting Scholar, Max Planck Institute for Comparative Public

Law and International Law, Germany

Paata Turava

Associate Professor, Faculty of Law, Director of Public Management Institute, Grigol Robakidze University

1996 Bachelor of Laws (magna cum laude) Faculty of Law, Ivane Javakhishvili Tbilisi State

University

1997-98 Main Course of Administrative Law, Faculty of Law, Potsdam University

2002 Master of Laws (LL.M.) (magna cum laude), Faculty of Law, Potsdam University

2006 Juris Doctor, Faculty of Law, Potsdam University

2003 -2007 Researcher, State Institute of Governance and Law, Academy of Science of Georgia

2004 -2006 Senior Teacher, Police Academy, Ministry of Internal Affairs of Georgia

2006 -to present Lecturer, Ivane Javakhishvili Tbilisi State University

Paata Turava is author of several law textbooks and monographs.

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