Appeal Petition/Administrative Claim 7000/19 Anonymous v. Israel Prison Service

Judgment

Justice D.  Mintz:

Appeal against the judgment of the Central-Lod District Court sitting as the Court for Administrative Affairs (Judge V.  Meroz, Lieutenant Colonel BAdministrative Petition 34252-10-18 [Posted inNevo] From September 3, 2019, in which the Appellant's petition against the Respondent's decision was rejected (hereinafter: Respondent or The Prison Service) not to extend his service in the IPS.

Background to the Appeal

1. The appellant served in the IPS as a prison guard since 2003. In accordance with Section 85(a) of the Prisons Ordinance [New Version], 5732-1971 (hereinafter: the Ordinance) and Procedure 02-1040 "Periods of Service in the IPS" (hereinafter: the Procedure for Periods of Service in the IPS or the Procedure), his employment was extended twice by 5 years, until it was decided on September 13, 2018 not to accept his request for an additional extension of service.  In the background of the aforesaid decision, the National Unit for the Investigation of Prison Guards opened a criminal investigation against the appellant on suspicion that he had committed offenses of sexual harassment, indecent act, obstruction of investigation proceedings and impeachment by threats against a prisoner (hereinafter: the complainant) who was at the time in the detention center in the Russian Compound in Jerusalem (hereinafter: the Jerusalem District Attorney).  Below we will describe the sequence of events.
2. In his last position, the appellant served in the Respondent's service as a security guard in the Jerusalem District Attorney's Office. The investigation against him was opened on March 27.2018 and he denied the suspicions attributed to him and claimed that the complainant lied andthat the events described did not occur at all.  The investigation file was transferred to the Jerusalem District Attorney's Office, which decided to file an indictment against the appellant, subject to a hearing.  Against this background, a suspension or dismissal proceeding was opened against the appellant, in accordance with section 80(c)(2) of the Ordinance and section 10A of the Prisons Commissioner's Ordinance of 02.07.00 "Taking administrative measures against prison guards" (hereinafter: the Ordinance).  Notice of the commencement of the proceeding was given to the appellant on May 24.2018 and a date for the hearing was set for June 7, 2018 before the imprisonment of Adv. Elinor Malka, head of the Administrative Proceedings Team at the Respondent's Service (hereinafter: Malka).  Following the hearing, on July 3, 2018, the Prisons Commissioner (hereinafter: the IPS Commissioner) decided to suspend the appellant from his position.
3. Parallel to the hearing proceeding, on June 13, 2018, the appellant filed a motion to extend his service with the respondent in accordance with section 85(a) of the Ordinance, in view of the fact that his period of service was to end on October 26, 2018.
4. On July 3, 2018, the appellant was interviewed before the District Extensions Committee regarding his request for an extension of the term "Ruth", after receiving recommendations and opinions from the relevant parties. At the end of the interview, he recommended that the Commander of the Central District of the IPS (hereinafter: the Prison Service) not to extend the appellant's service due to the suspicions pending against him inconnection with the commission of serious criminal offenses.
5. Subsequently, on September 5, 2018, another proceeding was held called "Completion of the Hearing" before Adv. Malka. The appellant and his counsel appeared for the hearing, who denied most of the suspicions attributed to the appellant and claimed difficulties in raising arguments on the merits of the matter due to the failure to transfer the investigation material to him.
6. On September 13, 2018, a final decision was made by the Head of the Human Resources Staff in the Respondent's Service, Brigadier Frumit Cohen (hereinafter: Brigadier Gender Cohen), not to extend the Appellant's service with the Respondent.

The Proceedings in the District Court

7. On the decision not to extend his service, the appellant filed a petition with the Court for Administrative Affairs, in which he claimed that failure to extend his service in the IPS after 15 years of service, during which his service was extended twice, amounted to dismissal. After the IPS commissioner decided that there was no reason to dismiss him following the opening of the investigation against him, but to make do with a suspension only, there was no basis for the decision not to extend his service by a lower echelon, before whom an identical factual mask was placed.  According to him, this is sufficient to obligate the cancellation of the decision not to extend his service.  It was further argued that the decision was illegal, tainted by extreme unreasonableness and discrimination, since the norm in the civil service is that an employee should not be fired for opening a criminal investigation against him, but only after a conviction.  The appellant also raised arguments in relation to the hearing process that was held for him, and argued that even because of the flaws in this proceeding, the decision was null and void.  The Respondent, on the other hand, argued that the petition should be dismissed and that the decision not to extend the appellant's service was lawfully made, by virtue of the authority granted to the IPS Commissioner in section 85 of the Ordinance.  The decision is within the realm of reasonableness and there is no reason to intervene in it.
8. The Court for Administrative Affairs rejected the petition. It was determined that the provision of section 85 of the Ordinance indicates that the IPS commissioner or a person authorized by him may extend the period of service of a prison guard, at his request, for additional periods, each of which shall not exceed a period of five years.  The extension of service is done according to criteria set by the IPS, and the authority not to extend a contract with a prison guard is not contingent on the existence of a criminal or disciplinary proceeding against him.  The existence of an investigation on suspicion of committing an offense - i.e., the existence of administrative evidence of a deviation from the norms of conduct expected of a prison guard - is sufficient for the purpose of making a decision not to extend service.  The decision made in the appellant's case is an administrative decision.  As with any administrative decision, the intervention of the court in it is limited to cases in which it is unreasonable, is based on improper considerations, or was made without authority.  Individually, with regard to decisions on dismissal or extension of service in law enforcement authorities, the discretion given to those with authority is even broader and the scope of intervention in them is reduced accordingly .
9. After examining the arguments, the court reached the conclusion that there was no reason to intervene in the decision not to extend the appellant's service in the IPS. The pending suspicions against the appellant are serious and the investigation that was opened against him was sufficient to establish grounds for not extending his service.  All the more so, there was no flaw in the decision not to extend his service in light of the State Attorney's Office's decision to indict him subject to a hearing, which indicates the existence of a prima facie evidentiary basis that substantiates the suspicions.  The conduct attributed to the appellant concerning the commission of an indecent act against a prisoner, the holding of intimate conversations with him, the receipt of an alleged sexual offer from the prisoner, including failure to report any of the above, is not acceptable behavior of a prison guard and amounts to harm to the values of the organization, the organizational discipline that prevails in it and its image.  The administrative evidence in the appellant's case establishes a solid basis for the decision not to extend his service.  As to the appellant's arguments regarding the merits of the evidence collected against him in the framework of the criminal investigation, it is appropriate to clarify in the appropriate forum, in the framework of the criminal hearing that will be held for him or during the criminal proceedings that will take place against him, if an indictment is filed.
10. The court also rejected the appellant's argument that there was room to suffice with the suspension sentence imposed on him by the IPS Commissioner until the criminal proceeding was decided. The decision to suspend him was an interim decision intended to provide an immediate response to the situation that had arisen, and it did not provide a response for a long period of time.  The fact that the Commissioner noted in her decision that the suspension is until another decision is made also indicates that it is temporary.  The appellant's argument that defects in the hearing process that was held for him justified the cancellation of the decision was also rejected.  The court noted that the appellant's claim regarding a defect in the conduct of the interview between him and the Intelligence Officer in the framework of the Extensions Committee, without allowing him to be represented by an attorney, is not baseless.  However, it was held that this defect does not amount to a material infringement of the appellant's rights, in view of the fact that he was given a hearing in two stages, and in both of them he was represented by his counsel.  In the course of the hearing proceeding, counsel for the appellant raised every possible argument in his favor, including his objections against the interview conducted by the OMC and against its recommendation, arguments that were examined on their merits before a decision was made in the appellant's case.  In light of the aforesaid, and despite the flaw in the conduct of the interview, one should not intervene in the decision that was made because it was reasonable and well-founded.
11. Finally, the appellant's claim that he did not receive investigative materials was also rejected. The court ruled that the core of the investigation material was given to the appellant prior to the hearing.  In view of the fact that this is a pending investigation, the respondent is not obligated to allow the appellant's counsel to review all the investigation material.  In addition, the severity of the pending suspicions against the appellant did not allow the hearing to be postponed until after the conclusion of the investigation into his case and his prosecution, and the administrative evidence, some of which was brought to his attention, was sufficient to decide the matter.

Hence the appeal before us.