(a) Senior managerial positions of heads of large systems in the civil service;
(b) Senior managerial-professional positions in which the independence and independence of the officer are of particular importance, such as: positions in which the subjects are in charge of law enforcement, integrity and regulation."
Later, in the framework of the supplementary resolution - Resolution 4470 - the government detailed the list of positions included in each of the aforementioned categories, with the position of civil service commissioner assigned to the first category.
- From the combination of resolutions 4062 and 4470, the respondents wish to learn about strengthening the independent and independent nature of the position of the Commissioner. However, as can be seen, the first category, to which the position of Commissioner was assigned, is a category that includes two types of jobs: managerial-professional positions in which independence and independence are of particular importance, as well as senior managerial positions of heads of large systems in the civil service. And what is the position of the Civil Service Commissioner if not the senior position of the head of the Civil Service Commission? The respondents' argument completely ignores the fact that the first category also includes another type of job that is highly relevant to the position of civil service commissioner. It should be clarified in this context as well - the aforesaid does not express a position on which of the categories the position of the Civil Service Commissioner belongs, and the aforesaid does not imply, G-d forbid, that the civil service position is not an independent and state position. This is intended only to show the difficulty inherent in the selective reading of government decisions, where it is sought to create an obligation imposed on it by virtue of them.
- I would like to emphasize that the above does not prejudice the basic assumption that in the series of aforementioned government decisions, guarantees were required to establish guarantees for the preservation of the independence of various senior officers. I do not dispute this. But from here until we conclude that from those decisions it appears that the government has taken upon itself a duty to appoint the commissioner in a competitive appointment process, the distance is great.
- I will add that even in the criteria document I did not find that it is possible to change the conclusion I reached. First of all, let me say the obvious - the criteria document is not a government decision, but a document prepared by the Commission and the Ministry of Justice. In these circumstances, there is certainly no reason to view it as a binding document towards the government, as my colleague Vice-President Sohlberg also noted in the judgment that is the subject of further discussion. Moreover, the criteria document was born against the background of the State Comptroller's criticism regarding the excessive use made by the government of the search committee, especially in relation to positions that were previously filled through a tender, in which the need arose to determine detailed criteria for the type of positions determined in Resolution 345 that they should be staffed in this way (State Comptroller, Annual Report 61B for 2010 and Accounts for the Fiscal Year 2009 - Summary 25 (2011)). It is therefore clear that this document did not relate at all to the position of the Civil Service Commissioner, for which it was determined in Resolution 345 that it would be filled by way of an appointments committee, and in any event, it does not indicate a duty that the government assumed to appoint a civil service commissioner by way of a search committee or some other competitive process.
- The same is true of government decisions in which it was decided to appoint other senior positions through a search committee. As noted above, the fact that a competitive procedure has been established for other positions, even if it is hardly sufficient to express a certain position regarding the efficiency of the use of such a procedure, does not constitute an obligation on the government to do the same with regard to the position of Civil Service Commissioner.
- In conclusion of this chapter, I do not believe that there is any truth to the position that there is a "consistent chain" of decisions and positions of administrative bodies from which it appears that the Civil Service Commissioner should be appointed in a competitive process, certainly not one from which it can be learned that Resolution 2344 contradicts previous government decisions.
- Another argument raised by the respondents in terms of the relationship between Resolution 2344 and previous government decisions relates to Resolution 3793. The Respondents' argument in this context is that Resolution 2344 is inconsistent with Resolution 3793, in which it was determined that the method of appointing the Civil Service Commissioner should be re-examined on the basis of a procedure to be conducted by the legal advisory bodies. According to the respondents, there were no weighty reasons for deviating from this decision, and the government is not entitled to deviate from it since it was made following a legal proceeding that was conducted before this court in the Netz-Zangot
- I cannot accept this argument either. I do not believe that Resolution 2344 should be seen as closing the door on the creation of a permanent mechanism, even if in view of the fact that an ad hoc mechanism was established this time as well. To this, it should be added that the government was indeed required to propose the procedure formulated by the legal advisors in the framework of the Cabinet meeting of June 30, 2024, during which the Deputy Advisor was also heard. Admittedly, a permanent procedure has not yet been formulated, but in view of the timetable that was created in view of the date of the formulation of the procedure near the end of Commissioner Hershkovitz's term, a decision to use a temporary mechanism does not contradict the need to create a permanent mechanism, and does not constitute a change in a previous decision on the matter. Specific solutions on the one hand and the creation of permanent mechanisms separately.
- As for the Netz-Tsangut case, the discussion in that proceeding, as stated above, revolved around the manner in which the representatives of the public participating in the special appointments committee were elected, and the agreements formulated at the end of that proceeding related only to this. Therefore, they do not apply to other elements of Resolution 3793 that were not discussed at all in the Netz-Tzangut case. It should also be noted that on the face of it, even a decision ordering the appointment of a search committee for the purpose of examining the commissioner is not necessarily consistent with the Netz-Tzangut case, and it is highly doubtful that the respondents would have raised a similar argument.
- Thus, the respondents' arguments regarding deviation from previous government decisions should be rejected.
Defect in the factual and legal infrastructure
- Another argument that arises from the respondents' arguments is that Resolution 2344 was made on the basis of an inappropriate factual and legal basis. In this context, it was argued that during the government meetings that dealt with the appointment process, no professional and factual basis was presented that could explain why the appointment process should be promoted through an appointments committee and not a search committee. In addition, the decision was made without requiring up-to-date data regarding the state of the civil service in recent years, which require that the appointment be made through a search committee whose composition will be independent. These arguments should also be rejected.
- It is very difficult for me to argue that no legal basis has been presented that explains why an appointment process should be advanced through an appointments committee and not through a search committee. What is a more adequate legal basis than a judgment of this Court - which is indisputably at the heart of the government's decision-making - which explicitly and unequivocally states that "there is no legal obligation to appoint the Civil Service Commissioner specifically through a search committee" and that "it cannot be said that an appointment by way of an appointments committee exceeds the realm of reasonableness"? Even if I assume that there are reasons that justify changing the conclusion reached in the High Court of Justice case 2699/11 [Nevo] (and I do not think so, as will be detailed below) - it certainly cannot be said that such a judgment that underlies the decision does not formulate a sufficient legal basis for its acceptance.
- Nor do I believe that the fact that the government was not required to provide "up-to-date data regarding the state of the civil service" constitutes a flaw in the infrastructure on which the decision was made. I am correct to assume that data regarding the state of the civil service are relevant data in the framework of examining the candidate's suitability for the position, taking into account the challenges that he has to deal with in his position and the skills required to deal with these challenges. However, these considerations are relevant in my opinion to the matter of filling the position and not to determining the mechanism for its election. Needless to say, the determination of an appointment mechanism that is affected by the challenges currently facing the civil service is inconsistent with the respondents' own argument that the determination of the mechanism should be done as much as possible "behind a veil of ignorance". It is not for nothing that these figures have no trace of any of the written positions of the legal counsel - neither before the adoption of Resolution 2129 nor before the adoption of Resolution 2344.
- The respondents' arguments in this context are therefore also to be rejected.
Extraneous Considerations and Conflict of Interest
- Another argument heard by the respondents is that Resolution 2344 was made for extraneous considerations. In the proceeding that is the subject of the judgment, the argument was raised in a particularly marginal manner, and it focused on the fact that the considerations that the government considered when making its decision were not what was the most permanent and appropriate appointment procedure, but rather what procedure would allow them maximum control over the candidate to be elected.
- There is no dispute that the administrative authority must exercise its authority on the basis of relevant considerations, and it must not take extraneous considerations into account. As it is said:
"The action of a governmental authority, which is based on extraneous considerations, that is, considerations that the decision-making body should not take into account prior to its decision, severely harms administrative activity. In doing so, the holder of authority abuses an important tool that is vested in him - administrative discretion, which is intended to enable the government to deal with issues that are complex to decide, as well as to promote a managerial worldview whose sole purpose is to realize the public interest. [...] The consideration of extraneous considerations stands in contrast to everything that a proper manager speaks of - accountability, establishing and reasoning, intelligent use of public resources, and entrusting the power of office to those who are worthy of it. Its damage is very bad due to the constant erosion it carries with it in the public trust in the systems of government, when the little trust that remains is exploited, in turn, to achieve its lost goals" (High Court of Justice 1637/06 Armon v. Minister of Finance, paragraph 4 of the opinion of Justice A. E. Levy, who remained in the minority regarding the result [Nevo] (January 3, 2010) (hereinafter: the Armon case); and see also: United Torah Judaism, paragraphs 49-50).