Rhineland-Palatinate Higher Administrative Court, 07.03.2018, Ref.: 3 A 11721/17
§ Section 34 of the Civil Servant Status Act sets out a standard of behaviour for civil servants. According to this, civil servants must devote themselves to their profession with full personal commitment. They must fulfil the tasks assigned to them selflessly and to the best of their conscience. Their behaviour must be commensurate with the respect and trust that their profession demands. They may not cover their faces when carrying out their duties or activities directly related to their work, unless this is required for official or health reasons.
According to Section 35 of the Civil Servants Status Act, civil servants must advise and support their superiors. They are obliged to carry out their official orders and follow their general guidelines. This does not apply if the civil servants are not bound by instructions under special statutory provisions and are only subject to the law.
A civil servant's programme of duties therefore also includes the duty to be fully committed to the job. If a civil servant is addicted to alcohol, a breach of such a duty may occur if the civil servant is permanently or temporarily unfit for duty due to the relapse, misses duty due to withdrawal treatment or is otherwise impaired in his or her ability to work and perform his or her duties. The civil servant shall be accused of such behaviour if he or she is responsible for the relapse into alcohol addiction that caused it.
In the following judgement, the Rhineland-Palatinate Higher Administrative Court clarifies that the concept of culpability in Section 3 (1) sentence 1 of the Continued Remuneration Act cannot be applied to disciplinary law when determining the standard of culpability for an offence. In a new ruling, it was decided that in the event of a relapse into the wet phase of an alcohol-related illness, fault can no longer be assumed under the Continued Remuneration Act. This is only possible if a medical expert opinion confirms fault. According to the OVG, this principle is not transferable to disciplinary law, because in disciplinary law, fault is ultimately the measure of the behavioural requirements of the civil servant towards his employer, which are linked in a special reciprocal relationship of service and loyalty. If this assessment were to be transferred to disciplinary law, it would mean that alcohol-addicted civil servants would be largely released from their responsibility for the further course of the illness and thus from their duty to maintain their health, even if they had regained control over their addiction.
Facts of the court case:
The plaintiff was a chief detective inspector and was described as a critical employee who was sometimes aloof
The defendant had been employed by the plaintiff state as a chief detective inspector since 1 February 1980. After training and working for the riot police, the defendant was employed by the district administration in A from 1 August 1982. He was also employed by the B. police station. On 1 October 1986, he was assigned to the police headquarters - PP - A. until he was transferred there on 1 April 1988. The defendant was then transferred several times, including as part of a reorganisation of the police on 1 September 1993, where the defendant was transferred to the C. police station until he was transferred to the D. police station on 1 October 2016.
The defendant is divorced and has two adult children. In his last appraisal, he received an overall grade of "B"; due to the present disciplinary proceedings of 23 May 2016, the defendant was certified as having an average criminal investigation record. He had worked as a specialised teacher. He was described as a critical employee who was occasionally distant.
Disciplinary proceedings were initiated because the plaintiff had caused a road accident
A second assessment dated 12 May 2016 confirmed that the defendant had performed his duties as a case officer properly at the time of his misconduct in October 2015. Disciplinary proceedings were initiated on 22 January 2015. He was accused of being involved in a traffic accident on 16 November 2014 at around 18:05 and of attempting to discredit the police officers involved in public in order to obtain a favourable decision for himself.
The proceedings were extended on 2 November 2015, as the defendant was also accused of causing a traffic accident with the vehicle registered to him on 23 October 2015 while under the influence of alcohol and committing a hit-and-run. There was a suspicion of a relapse into the wet phase of an alcohol addiction, which had already been established in 2014.
In criminal proceedings, the plaintiff was convicted of drink-driving and hit-and-run offences
In criminal proceedings, the defendant was sentenced to a total fine of 70 daily rates of €90 each for deliberate drunkenness in traffic, endangering road traffic and unauthorised removal from the scene of an accident in a state of reduced culpability. His driving licence was revoked and his police and civil driving licences were confiscated.
In the period from 23 October 2015 to 31 May 2016, the defendant was unfit for duty, whereupon a reintegration measure took place. On 20 June 2016, the disciplinary proceedings were extended again, as the defendant was accused of driving the vehicle registered to him under the influence of alcohol on 13 June 2016 at 12:55 p.m. without being in possession of a driving licence.
A penalty order was issued against the defendant for deliberate drink-driving and driving without a licence. A fine of 120 daily rates of € 80 each was imposed. The defendant was not to be issued with a new driving licence before a further 18 months had elapsed.
After falling ill again, he was reintegrated from 3 October 2016 to 21 November 2016. He suffered a cycling accident and was again unable to work from 16 November 2016 until April 2017, after which he fell ill from 26 September 2017.
The state prevailed with a disciplinary action that resulted in the plaintiff's removal from the service
The official disciplinary proceedings were concluded and the state brought a disciplinary action against the defendant for removal from the service, which was upheld in the judgement of 29 August 2017. The defendant was to be removed from the service as he was guilty of misconduct through the traffic offences committed under the influence of alcohol and through his conduct on the occasion of the traffic accident on 16 November 2014.
Plaintiff appeals to the Rhineland-Palatinate Higher Administrative Court and denies alcohol dependency
In the appeal, the defendant denied alcohol dependency, stating that a doctor had not yet made such a finding. The court's findings on addiction were not comprehensible. Even in the presence of an alcohol dependency, no official offence based on a relapse could be proven. In addition, alcoholism is incurable, so that the risk of relapse is part of the clinical picture even after years of abstinence. A relapse into the wet phase of an alcohol addiction is generally not the result of a culpable, wilful decision by the alcohol addict. Therefore, a specialist medical assessment must be carried out to determine fault.
Even an alcohol addiction had not been proven. Any stays in a private clinic were not due to an alcohol addiction. This was due to depression caused by relationship conflicts. This would have caused him to consume alcohol, but there was no relapse.
With regard to the information in the health authority's file, the defendant argued that although drinking behaviour was mentioned, it was not clear what criteria were used to assess whether this was pathological.
Other expert reports certifying an alcohol dependency would also not specify on which findings this was based. It was therefore not possible to conclude that there had been a relapse. The defendant denied a successful therapy treatment. The trial treatment had obviously not achieved its rehabilitation goal.
He and his immediate superior had agreed after the accident in 2015 that irregular breath alcohol tests would be carried out. These had yielded no results. The expert opinion regarding his liver values could not indicate a relapse either.
The defendant applied for a more lenient disciplinary measure to be imposed, setting aside the judgement of the Trier Administrative Court - 3 K 3674/17.TR - issued on the basis of the hearing on 29 August 2017.
The plaintiff requested that the appeal be dismissed because the administrative court was right to assume that the defendant had an alcohol-related illness and that a classic relapse had occurred in 2015. The defendant's assertion to the contrary was refuted.
In 2004, the health authorities diagnosed an alcohol addiction. The illness was the reason for the withdrawal therapy. The defendant would massively suppress his alcoholism and not deal with it. The VG was therefore right to assume an unfavourable prognosis. Due to the total number of breaches of duty and the negative prognosis, the relationship of trust had been permanently destroyed.
Judgement of the Rhineland-Palatinate Higher Administrative Court:
OVG Rhineland-Palatinate follows the Administrative Court - removal of the civil servant from the service is lawful
The OVG Rhineland-Palatinate has now ruled that the defendant's appeal was unsuccessful. The judgement of the administrative court was lawful because, taking into account all the circumstances, the removal of the defendant from his position was necessary.
The defendant was guilty of an official offence due to the traffic offences, which were attributable to the relapse into the wet phase of addiction.
He had been involved in a traffic accident in which he had put on a neon yellow rain jacket without a national emblem with a reflective "Polizei" (police) print on the chest over his civilian clothes. When the police officers arrived to investigate, the other person involved in the accident stated that he had caused the accident. After taking extensive evidence, it was clear to the police officers that the defendant had caused the accident. Attempts by the police officers to instruct the defendant failed. When the accusation was presented to him and he was instructed again, the defendant tried to interrupt them again and said: "You definitely won't do that, I was a traffic law lecturer." The defendant then provoked the officers. In doing so, he behaved disrespectfully by disregarding the legal assessment and evaluation of the traffic accident by a police inspector with a smug expression, a mocking grin, a visible rolling of the eyes and a contemptuous snort.
This took place directly in front of the other party involved in the accident and witnesses. In the absence of the defendant, the other party to the accident stated that the defendant had driven into his car, but that he had been unsure.
Police officer has violated the Civil Servant Status Act and the State Civil Servants Act
This behaviour constituted an intentional breach of his duty to behave in a respectful and trustworthy manner under Section 34 sentence 3 of the Civil Servant Status Act. 3 of the Civil Service Status Act and against his duty to uphold the reputation of the police under § 115 of the State Civil Service Act. This had been set out without objection in the challenged judgement.
This assessment was not called into question by the appeal. Rather, he only insisted that the officers had completely misjudged the facts of the case and had overlooked the fact that it was a provoked accident.
Even the assumption of this assessment does not justify his behaviour. Of course he could have drawn the officers' attention to an alleged mistake in order to protect his rights. However, by wearing a rain jacket with a police print, it was contrary to duty to claim the special authority of the police for private purposes and to discredit colleagues on duty through improper, presumptuous behaviour in public.
On 23 October 2015, the defendant intentionally drove a vehicle in traffic through two independent actions, although he was not in a position to drive the vehicle safely due to the consumption of alcoholic beverages. In addition, in one case he negligently endangered third-party property of significant value and, as a party to an accident, left the scene of the accident without authorisation after a road traffic accident.
This was punished with a penalty order and was based on the following findings: On 23 October 2015, the defendant drove his car although he was completely unfit to drive due to previous alcohol consumption. His alcohol-induced inability to drive was obvious to him. After the defendant had refuelled the car and paid at the cash desk of the petrol station, he got back into the car knowing that he was completely unfit to drive due to the previous consumption of alcohol. As a result of the alcohol-induced reduced ability to react and concentrate, the defendant grazed the car of a witness in the rear area of the driver's side and nevertheless left the scene of the accident. The witness's car was damaged to the tune of 2,381.07 euros. The blood alcohol concentration determined was 3.12 per mille.
These factual findings are binding in the present disciplinary proceedings, which are identical in this respect, pursuant to Section 16 (1) sentence 1 of the State Disciplinary Act (Landesdisziplinargesetz - LDG).
Through this behaviour, the defendant had culpably breached his duty of respectful and trustworthy conduct under Section 34 (3) of the Civil Service Status Act in a manner that was relevant under disciplinary law. This is also related to the defendant's office as a police officer. Therefore, they were suitable within the meaning of § 47 para. 1 sentence 2 BeamtStG to impair trust in a manner significant to his office. The defendant did not raise any objections to this assessment.
Police officer has already consumed alcohol on duty and then operated a vehicle
On 13 June 2016, the defendant had already consumed alcohol on duty and had driven a vehicle in traffic after the end of his duty, although he was not in a position to drive the vehicle safely due to the consumption of alcoholic beverages and did not have the necessary driving licence. This was evident from the further penalty order issued by the local court. The defendant had taken part in public road traffic after consuming large quantities of alcohol without having the required driving licence. The alcohol-induced inability to drive was unmistakable. There had been a blood alcohol concentration of 1.52 per mille.
These findings should also form the basis of the disciplinary proceedings pursuant to Section 16 (2) LDG.
This again constituted an off-duty breach of his duty of respectful and trustworthy behaviour under Section 34 sentence 3 BeamtStG and, in addition, of his official duty under Section 35 sentence 2 BeamtStG in conjunction with Police Service Regulation 986 RP regarding the handling of service weapons and ammunition in the Rhineland-Palatinate police force of 10 April 2006 and the service agreement "Addiction Prevention, Substance Abuse and Addiction Treatment" of the PP X. of 8 July 2014, according to which, pursuant to Section 3, the consumption of alcohol and the consumption of other substances of which he is aware is prohibited. April 2006 and the service agreement "Addiction Prevention, Substance Abuse, Addiction Treatment" of the PP X. of 8 July 2014, according to which, pursuant to Section 3, the consumption of alcohol and other substances that impair consciousness are prohibited while on duty and the 0.0 per mille limit applies.
The defendant objects to the assumption that by relapsing into the wet phase of his alcoholism, he violated his duty to maintain his health as an expression of the duty of full commitment to the profession under § 34 sentence 1 BeamtStG. The Court of Appeal did not recognise any errors here either.
The documents revealed the defendant's alcohol-related offences, such as excessive alcohol consumption at an official party in November 2003, followed by a conflict with his wife. After this incident, the defendant's service weapon was withdrawn and he underwent treatment in the K. Specialist Clinic with the aim of building up and stabilising his awareness of the problem, his understanding of his illness and his motivation for treatment with regard to his alcohol dependency.
Police officer had shown a lack of willingness to cooperate and motivation for treatment
In the expert opinion, he was shown to lack the willingness to co-operate and motivation for treatment. The employer was informed that the therapeutic goal of treating the alcohol addiction had not been optimally achieved, but it could nevertheless be assumed that he was fully fit for police duty. He was abstinent from alcohol.
Further therapy methods were recommended to the defendant and he was advised of his official duties and instructed about the consequences of a relapse into alcohol addiction. The defendant confirmed these instructions, whereupon he was certified fit for duty.
After the drunk driving incident on 23 October 2015 with an alcohol content of over three per mille, the defendant was examined by a public health officer on 28 October 2015. This revealed the existence of alcohol abuse with a known history of dependency syndrome and a current relapse. However, he was fit for duty, but without carrying a service weapon and without shift work. In addition, inpatient therapy was required.
This was also suggested to the defendant. In the period from 12 January 2016 to 24 May 2016, the defendant underwent therapy at the I. private clinic. He was certified that "there have been no relapses of alcohol abuse to date. It can therefore be assumed that he is permanently abstinent." The clinic's discharge report of 9 June 2016 shows that the defendant was treated there for a severe depressive episode.
On 13 June 2016, the defendant again drove under the influence of alcohol at 1.52 per mille and drove without a licence. The defendant was hospitalised again, this time for a severe depressive disorder.
Based on these findings, the court concludes that the defendant violated his duty to maintain his health as an expression of his duty to fully commit to his profession under § 34 sentence 1 BeamtStG by "relapsing into the wet phase of an alcohol-related illness".
Although a relapse of an alcohol-dependent civil servant into alcohol addiction does not in itself constitute a breach of official duty, it does constitute a breach of the duty of full commitment to the profession under Section 34 sentence 1 BeamtStG, as the relapse has consequences for the service.
A breach of duty could be considered, for example, if the civil servant is permanently or temporarily unfit for duty due to the relapse, misses duty due to a rehab programme or is otherwise impaired in his or her ability to work and be deployed.
The official could be accused of this behaviour if he was responsible for the relapse into alcohol addiction that caused it, which would be the case if the official was able to keep his alcohol addiction under control before the relapse, i.e. if he was permanently abstinent from alcohol. However, this requires the prognosis that the civil servant is so stable that he can permanently resist alcohol consumption. This would require a case-by-case assessment.
The report by the treating doctors on the behaviour and development of the civil servant during treatment is particularly important. However, prognoses are always fraught with uncertainty. The success of a rehab programme should also be subject to an ex-post assessment
If a civil servant who is considered to be stable commits alcohol-related offences, he can only be charged with intent if he has previously been clearly and unambiguously informed of the consequences of a relapse.
By relapsing into alcoholism, the civil servant has breached his duty of full commitment to his profession
On this basis, the defendant had wilfully breached his duty of full commitment to his profession under § 34 sentence 1 BeamtStG by "relapsing into the wet phase of his alcoholism".
The court is convinced of a long-standing alcohol addiction. The evidence is clear. The specialist clinic also certified a (psychological) alcohol addiction, with the expert opinion showing that the defendant had drunk two litres of wine almost daily over the last ten years, sometimes secretly.
Based on the evidence, the Senate had no doubt that the defendant had been suffering from an alcohol addiction since 2003.
There was also a relapse. The circumstances of his traffic offences committed under the influence of alcohol, namely the high blood alcohol concentrations measured on these occasions and his alcohol consumption on duty, would show that he had lost control of his drinking behaviour and thus of his alcohol addiction again at this time.
As a result, his ability to perform his duties was also restricted. On the one hand, it had to be taken into account that he was also involved in driving motor vehicles on official business. In addition, the defendant was also unable to carry a service weapon.
The irregular breathalyser tests also indicated a breakdown in the relationship of trust and would impair service operations.
The defendant also acted wilfully with regard to his relapse. He knew exactly what he was doing when he resorted to alcohol again in October 2015 at the latest. He had been made aware several times that he had to remain completely abstinent from alcohol for the rest of his life and had been informed about the medical and legal consequences of drinking alcohol again.
The defendant was generally able to keep his alcohol addiction under control and the treatment was therefore temporarily successful. Although the discharge report refers to the achievement of a "rehabilitation goal", it does not mean the defendant's ability to control his alcohol addiction.
The expert opinion also only states that the therapeutic goal of treating the defendant's alcohol addiction was "not optimally" achieved. At the same time, however, it is stated that the defendant is currently credibly abstinent from alcohol. The other expert reports would also justify this assessment.
This shows that the defendant had his alcohol addiction under control from 2004 to 2015 and had lived largely abstinent. The withdrawal treatment at the K. Specialist Clinic was therefore successful in the sense that it enabled the defendant to permanently control his alcohol addiction.
It could not be assumed that the person was not guilty. Alcohol addiction in itself does not result in a significant reduction in culpability or even an incapacity of the person concerned. This would require the most severe personality changes, for which there is no evidence whatsoever.
Fault could also not be ruled out because of the depression
Fault could not be ruled out because of the defendant's depression. There were no indications of the defendant's lack of insight or ability to control himself at the time of the relapse into the wet phase of his alcohol addiction.
At the time of his admission to the clinic, an expert opinion showed the defendant to be "alert, conscious, orientated on all sides and formally organised".
Nor does anything else arise with regard to his private relationship problems. It would have been expected that the defendant would either seek treatment again for such problems or reveal himself to his employer. In any case, it was necessary for the defendant to consume alcohol only at appropriate intervals from his work.
The concept of culpability in Section 3 (1) sentence 1 of the Continued Remuneration Act is not transferable to disciplinary law. In a new decision, it was recognised that fault can no longer be assumed as a rule in the event of a relapse into the wet phase of an alcohol-related illness. This is only possible if a medical expert opinion confirms fault.
The concept of culpability in Section 3 (1) sentence 1 EFZG differs significantly from that of disciplinary law. While § 3 para. 1 sentence 1 EFZG regulates a case of "fault against oneself" and essentially serves to relieve the statutory health insurance funds, fault in disciplinary law ultimately forms the measure of the civil servant's behavioural requirements towards his employer, which are linked in a special reciprocal relationship of service and loyalty.
If this assessment were applied to disciplinary law, it would mean that alcohol-addicted civil servants would be largely released from their responsibility for the further course of the disease and thus from their duty to maintain health, even if they had regained control over their addiction.
The more recent medical findings on alcoholism cited by the Federal Labour Court also speak against completely releasing alcohol-addicted civil servants from their responsibility for the further development of the disease. This is because both the onset and the relapse are volitional actions and can therefore be influenced. The only thing that cannot be inferred from current medical knowledge is that the volitional part is so prominent that it can be assessed as wilful or particularly reckless behaviour within the meaning of Section 3 (1) sentence 1 EFZG.
The part of the autonomous decision-making power forms the starting point for the accusation of fault under disciplinary law.
A multi-causality of the alcoholism should only be taken into account when determining the extent of the fault in the context of the assessment of the measure.
The defendant was therefore guilty of an official offence. The focus of his misconduct lies in the traffic offences committed under the influence of alcohol in connection with his misconduct on the occasion of the accident on 16 November 2
Due to the personality of the defendant, removal from the service is unavoidable
Taking into account the personality of the defendant, removal was unavoidable. The criterion for determining the disciplinary measure is the severity of the misconduct, which is measured according to the nature and significance of the breached official duties, the duration and frequency of the breaches of duty and the circumstances of the offence (objective characteristics of the act).
The form and weight of the fault and the motives of the civil servant (subjective behavioural characteristics) as well as the direct consequences of the breach of duty for the official area and for third parties, in particular the amount of the damage incurred, are also decisive.
Even when considering the assessment criterion "personality profile" of the civil servant, taking into account active remorse, as expressed by the voluntary reparation of the damage or the disclosure of the misconduct in each case before the threat of discovery, no other assessment results.
The assessment criterion "extent of the damage to the trust of the employer or the general public" requires an assessment of the misconduct of the civil servant with regard to his general status, his area of activity within the administration and his specific function.
According to Section 11 (1) LDG, an overall prognostic assessment is required, taking into account all incriminating and exonerating factors in the individual case, as to whether the civil servant will continue to significantly violate official duties in the future.
If the overall prognostic assessment shows that a definitive loss of trust has not yet occurred, the administrative courts must impose the disciplinary measure that is necessary to encourage the civil servant to comply with their official duties and to counteract the damage to their reputation. If this is no longer possible, the civil servant must be removed from the service.
When assessing the loss of trust in disciplinary proceedings, the legislator has expressed its assessment of the unworthiness of a behaviour in a binding manner.
If an offence is sufficiently related to the civil servant's office, the framework for possible disciplinary measures also extends to removal from the civil servant's position for such moderately serious offences. If the statutory penalty range extends up to three years, the guideline range for the disciplinary measure for this reason alone extends up to removal from office.
The defendant was convicted of drunk driving (§ 316 StGB), endangering road traffic (§ 315c StGB), hit-and-run (§ 142 Para. 1 No. 1 StGB) and driving without a licence (§ 21 Para. 1 StVG). Drunk driving and driving without a driving licence are punishable by up to one year's imprisonment, negligent endangerment of road traffic is punishable by up to two years' imprisonment and unauthorised removal from the scene of an accident is punishable by up to three years' imprisonment.
Due to the defendant's traffic offences, an orientation framework was therefore opened up until his removal from the service.
A milder disciplinary measure than the removal of the defendant from the service could not be considered. Through his behaviour, the defendant had completely and irretrievably lost the trust of the employer and the general public.
The offences committed by the defendant are very serious. In particular, the defendant was aware of the ongoing disciplinary proceedings and had been instructed several times. He was also aware of his alcohol problem.
Nevertheless, he had driven his car while highly intoxicated and committed a hit-and-run offence. Just four months after the criminal proceedings, he was again caught driving under the influence of alcohol.
The defendant lacked an appropriate awareness of wrongdoing. He had also shown no remorse. On the occasion of the accident on 16 November 2014, the defendant had unjustifiably claimed the authority of the police for his private, selfish purposes by wearing the rain jacket with the word "police" printed on it and discredited the much younger colleagues involved in the accident in public through his inappropriate, presumptuous, foul-mouthed behaviour, which went far beyond an appropriate defence of his rights in the given situation.
Here too, there is a lack of awareness of wrongdoing and genuine remorse, which is why the defendant's personality speaks in favour of his removal from the service. Furthermore, he lacked adequate insight into his misconduct, both with regard to his offences committed under the influence of alcohol and with regard to his conduct on the occasion of the accident on 16 November 2014.
Similar misbehaviour by the defendant was therefore to be expected at any time, especially as his personal circumstances continued to be difficult. Such an insensible, derelict in duty and unstable officer without any prospect of improvement is absolutely unacceptable, especially in the police service.
His performance in the past does not outweigh the seriousness of his misconduct. Nor did they go beyond the level expected of a conscientious civil servant.
There was also no diminished culpability on the part of the police officer
There was no diminished culpability. There is no evidence to conclude that he could have been significantly impaired in his ability to understand or control.
Even if these were present, the overall view of the breaches of duty committed by the defendant and the weighting of the individual misdemeanours would not allow the imposition of the maximum measure to be dispensed with.
In view of the lack of insight into his alcohol-related illness and his misconduct, it was also to be expected that he would commit comparable breaches of official duty again in the future.
The removal of the defendant was also not disproportionate. If the employer's trust had been definitively and irretrievably lost and the basis for a continuation of the civil servant relationship was therefore lacking, his removal from the service was the only way to unilaterally terminate the civil servant relationship, which could not otherwise be terminated by the employer. The person concerned had brought this about himself through his attributable behaviour and violated the maintenance of the integrity and functioning of the civil service in the public interest.
The relapse also constituted a serious breach of official duty. The relapse is an expression of a lack of stability and a weakness of will and character which is incompatible with the duties of a civil servant, in particular a police officer.
The defendant should have resisted the demand for alcohol to the limit of his personal capacity, regardless of his personal circumstances.
Source: Rhineland-Palatinate Higher Administrative Court
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