Second, the government has decided to classify all the positions exempt from a tender - whether by virtue of an explicit exemption provision in the law or by virtue of the authority granted to it In the section 21 The law has two categories: first, positions whose appointment will be made after an examination of the candidate's qualifications and suitability for the position is conducted by Appointments Committee; Second, jobs that will be filled by Search Committee. As far as the position of Commissioner is concerned, it was classified under Resolution 345 as a position that requires examination of the Appointments Committee, along with the other jobs Exemptions from a Tender by Virtue of an Explicit Provision of the Law and in addition to the jobs classified by the government in its decision As Policy Execution Jobs. On the other hand, for jobs classified by the government As Professional and Regulatory Jobs, it was determined that the staffing would be done by means of Search Committee.
- For the sake of completeness, it should be noted that more than a decade after Resolution 345, and against the background of the State Comptroller's criticism, the Civil Service Commission, in cooperation with the Ministry of Justice, formulated a document of criteria for the implementation of the said decision (the Civil Service Commission, "Criteria for Examining the Suitability of Future Jobs to the Procedures and Principles Established in Government Decision No. 345 of September 14, 1999" (April 1, 2012) (hereinafter: the Criteria Document)). This document specifies, inter alia, the characteristics of the policy execution positions in respect of which it is possible to determine that their filling will be done with an exemption from a tender, subject to the examination of an appointments committee; as well as the characteristics of the professional and regulatory positions in respect of which an exemption from a tender can be ordered, subject to the filling of the position by way of a search committee.
- And back to our point. As noted, according to Resolution 345, the position of Commissioner requires examination by the Appointments Committee. However, the Appointments Committee of the Civil Service Commission normally operates in a composition of three: the incumbent Civil Service Commissioner and two public figures selected from the list of public figures of the Commission's Appointments Committee. However, the fact that the Commissioner is part of the composition of the Appointments Committee has made it difficult for the implementation of Resolution 345 as written and worded with regard to the appointment of his successor in the position. Against this background, in the framework of the appointments to the position of Civil Service Commissioner that were made after Resolution 345, government decisions were made that applied the logic inherent in it, while making adjustments intended to bring about the incumbent commissioner not sitting on the committee that discusses his replacement.
- Thus, in 2010, in order to elect a permanent replacement for Adv. Hollander, the government decided to appoint a special committee to give its opinion on the suitability and suitability of the prime minister's candidate to replace him in the position (Resolution 2466 of the 32nd Government, "Appointment of a Special Committee to Advise the Candidate for the Position of Civil Service Commissioner" (November 21, 2010)). In that decision, it was determined that the committee would include Judge Ret. Dan Arbel as the committee's chairman, and two representatives of the public who are members of the Commission's Appointments Committee. Later, the candidate chosen by the Prime Minister announced that his candidacy had been withdrawn, and therefore another candidate was transferred to the committee for examination - Adv. Moshe Dayan. Accordingly, the committee convened and following its recommendations on May 29, 2011, he was appointed to the position of Adv. Dayan.
It should be noted that prior to the appointment, a petition was submitted to this court in which it was argued that the appointment of a civil service commissioner should be made in a manner that Search Committee (High Court of Justice 2699/11 The Movement for Quality Government v. The Government of Israel [Nevo] (May 17, 2011) (hereinafter: High Court of Justice 2699/11)). This petition, which will be discussed at length later, was rejected unanimously, stating that there is no legal obligation to appoint the Civil Service Commissioner specifically through a search committee.
- In 2017, towards the end of Adv. Dayan's term as commissioner, a government decision was also made to appoint a special committee to give its opinion on the candidate's suitability and suitability to replace him in the position (Decision 2651 of the 34th Government, "Appointment of a Special Committee to Advise the Candidate for the Position of Civil Service Commissioner" (May 14, 2017)). Accordingly, Judge Ret. Hanan Efrati was appointed chairman of the committee, and two public representatives were elected alongside him. On that occasion as well, the appointment process gave rise to a petition to this court, in which the manner in which the selection of public representatives was attacked (High Court of Justice 7455/17 Netz-Tzangut v. Prime Minister [Nevo] (May 7, 2018) (hereinafter: the Netz-Tzangut case)). Following the state's position in that petition, according to which for practical reasons and although it is not obligatory, it will act to reappoint so that public representatives will be elected to the special committee according to the customary round for the appointment of the appointments committees in the Commission (a fixed round in alphabetical order), the petition was deleted and the outline announced by the state was anchored in another government decision (Decision 3793 of the 34th Government, "Manner of Appointing the Special Appointments Committee to Advise the Candidate for the Position of Civil Service Commissioner and Amending a Government Decision" (May 13, 2018) (hereinafter: Resolution 3793). As part of this decision, the government reiterated that for the purpose of appointing the Civil Service Commissioner, a special appointments committee would be established to give its opinion on the candidate for the position; that its chairman will be appointed by the government, and that two public representatives will serve alongside him according to the round of election of public representatives to the appointments committees of the Civil Service Commission; and that accordingly, two public representatives will be appointed to the committee headed by Justice Efrati, who will be selected according to the aforementioned round. At the same time, it was clarified that:
"The decision is valid for the election of the next Civil Service Commissioner, and that the Government will be required in the future to follow a procedure to be formulated by the Legal Advisor of the Prime Minister's Office, in consultation with the Attorney General regarding the methods of appointing the Civil Service Commissioner."
- In accordance with this decision, the special committee convened under the chairmanship of Justice D. Before the committee met with the candidate who was brought in for its examination, its members held meetings with the directors general of government ministries and past and present civil service commissioners, senior civil servants and representatives of various organizations, and based on the information they gathered in the meetings, they formulated a list of criteria for suitability for the position of commissioner. This list included two prerequisites (regarding education and senior managerial experience), as well as reference to special skills, the absence of failures in previous jobs, and the candidate's vision of public service. On the basis of these criteria, the committee examined the candidate who was brought to its examination by the Prime Minister, and ultimately found that she should not be recommended because she did not meet most of the criteria. As a result, Prof. Daniel Hershkovitz was brought to the committee's examination, and when it found no impediment to his appointment, he was appointed to the position.
The government's decision is the subject of our discussion
- Close to the end of Prof. Hershkovitz's term (which was expected to end in September 2024), on May 29, 2024, the Legal Advisor to the Prime Minister's Office (hereinafter: the Prime Minister's Office) submitted an opinion to the Attorney General (hereinafter: the Attorney General) regarding the manner in which the Civil Service Commissioner was The opinion reviewed the position of the legal counsel to the Prime Minister's Office regarding the suitability of each of the familiar ways of filling senior positions in the civil service - the Appointments Committee, the Search Committee, and the Advisory Committee for the appointment of the Civil Service Commissioner. The opinion's conclusion was that "the option that best realizes the purposes of appointing an independent civil service commissioner with appropriate qualifications for the position" is a search committee composed of five members as follows: a retired judge of the Supreme Court, who will be appointed by the President of the Supreme Court with the consent of the Prime Minister; the Attorney General or her representative; someone who previously served as a Civil Service Commissioner or a former Director General of a Government Staff Office (the Prime Minister's Office, the Ministry of Finance, the Ministry of Justice), to be appointed by the Director General of the Prime Minister's Office with the consent of the Advisor; an academic skilled in the field of public law, who will be selected by the deans of the law faculties of universities and colleges in Israel; and a public representative, with significant professional experience in areas related to the core of the position's practice, who will be appointed by the Director General of the Prime Minister's Office with the consent of the Advisor.
- Shortly afterwards, on June 13, 2024, the Cabinet Secretary for Legal Counsel contacted the Prime Minister's Office, requesting a proposal to appoint the Civil Service Commissioner through the Advisory Committee. When it was received that the Legal Advisor to the Prime Minister's Office was working to formulate a procedural proposal in accordance with Resolution 3793, the Cabinet Secretary contacted the Deputy Attorney General (Public-Administrative) (hereinafter: the Deputy Attorney General) and noted that in view of the short timeframe, and in view of the importance of the appointment to the position, the Government is proposing an appointment procedure that will apply only to the next Civil Service Commissioner. In the proposed resolution attached to the letter, it was proposed to establish that the position of Civil Service Commissioner would be added to the seven positions examined by the Advisory Committee on a one-time basis, while replacing the incumbent commissioner, a member of this committee, with someone who served as a former civil service commissioner or as a director general of a ministry in the past and who does not currently serve in the civil service.
- On June 18, 2024, the Attorney General's opinion was forwarded to the Deputy Attorney General, both with regard to the opinion of the Legal Advisor to the Prime Minister's Office, with regard to the establishment of a one-time appointment procedure, and with regard to the content of the proposed resolution submitted by the Cabinet Secretary.
With regard to the opinion of the legal counsel to the Prime Minister's Office, it was noted that the implementation of the existing rules regarding the methods of appointment of senior officials in the civil service, with the unique characteristics of the Office of the Commissioner, leads to the conclusion that the Civil Service Commissioner should be appointed by way of Search Committee. It was noted that such an appointment is in accordance with the rules relating to the methods of appointing senior positions in the civil service, enables the optimal realization of the purposes underlying the appointment to this position, and ensures that someone who possesses the appropriate qualifications and experience and is able to fill it independently and impartially will be appointed to the position. It was also noted that the composition of the committee proposed by the legal advisor to the Prime Minister's Office provides a proper and balanced response to the aforementioned considerations, along with the determination of eligibility requirements and prerequisites for the position. In addition, it was noted that the importance of establishing a search committee in the proposed composition is reinforced against the background of developments in recent years, including events that have recently sharpened the great importance of the regime in the independence of the institution of the Civil Service Commission.