Discretion without explanation: The appeal to establish guidelines for heads of authorities’ decisions

The number of the complaints filed by the candidates for employment in state organs who did not get the job has increased which imposes the need to stipulate in details the discretion of the elders when deciding.

Twenty six candidates, of at least 130 who have filed complaints against the decisions on the selection of the civil servants and state employees, have filed complaints to the Appeals Commission because the selection of the top-ranking candidates has not been done, according to the research of the Institute Alternative, conducted within the project “State administration in Montenegro – Equal for All”, funded by the U.S. Embassy in Podgorica.

Seventeen of these complaints have been adopted.

Last year, according to the findings of the IA, there have not been any complaints related to the non-selection of the top-ranking candidates.

We remind that one of the key innovation that can be found in the Law on Civil servants and State Employees, whose application has started in January 2013, was the duty to employ top-ranked candidate. Only exceptionally and with the explanation, the Elder can, after the interview has been conducted, decide to employ other than top-ranked candidate.

However, the decisions on complaints indicate that the elders have not given sufficiently convincing arguments for their decision not to employ the first-ranked candidate.

It happens very often that the elder indicate that they have brought the decision after the interview, without specifying further the reasons why such decision has been brought.

Analyzed complaints and decisions on complaints also point to the lack of understanding of the legal provisions which provide that, while employing in the civil service, the proportional representation of minorities and of gender-balanced representation should be taken into account.

Namely, in five cases, although they were not top-ranked, the candidates of minority ethnic origin have been employed, with the argument that the proportional representation of minorities has been taken into account while making the decision.

However, three complaints against these decisions on selection have been adopted with the explanation that the Law on civil servants and state employees does not stipulate giving priority to the candidates solely on basis of their ethnic origin.

Moreover, one candidate has filed a complaint because he was better ranked than other, but the decision has not been complied with the regulation on the gender balance, since the “all chosen candidate were female.”

In several cases, top-ranked candidate have filed the complaint because the elders have estimated that the candidate would not be able to occupy that position for a longer period of time, due to their ambitions for professional development, which is in direct contradiction with the principle of recruitment and promotion based on merit.

In order to limit the elders’ abuse of the discretion right during the selection of civil servants and state employees, IA urges the Government to comply with the recommendation, which we have formulated in the first monitoring report on employment and promotion in state bodies, and to use specific guidelines which would clearly define the reasons when the top-ranked candidate may not be appointed to the position in the state administration.

Milena Milošević
Public Policy Researcher

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