Civil Appeal Authority 775/11 Avraham Flexer v. State of Israel – Israel Police - part 11

And while the Ordinance states that the state may submit a notice regarding recognition of the immunity of a civil servant, the public authority and the public authority employee may only request the court to determine that the employee is entitled to immunity.  The reason for the distinction between the types of employees, the Attorney General argues, is the absence of an independent legal body independent of the public authority that can decide on the issue of the immunity of employees of the public authority.  For example, the State Attorney's Office.  According to the Attorney General's approach, the legal advisors of the public authorities (who were authorized in Regulation 8 of the Torts Regulations to approve the submission of an application for recognition of immunity) are not completely detached from the public authority, and therefore the legislature preferred that they would not decide on the issue of recognition, but would be entitled to approve, on behalf of the public authority, the submission of a request to the court to recognize the employee's immunity.  However, according to the Attorney General, the aforementioned difference between the arrangements that apply to state employees and those that apply to employees of public authorities does not justify a material difference in the nature of the judicial review exercised by the court on the authority's decision, and its approach is that the court must examine, in accordance with the rules of administrative law, an application for recognition of an employee's immunity submitted on behalf of a public authority.  The Attorney General is further of the opinion that if the court finds that the decision of the public authority by virtue of which the request to recognize the employee's immunity was submitted is reasonable, it must grant the request and recognize the immunity, and he further argues that the rationales that justify the postponement of the other tests proposed in connection with the recognition of the immunity of state employees are also valid with respect to employees of the public authority.  As for a case such as the one before us, in which the defendant is the legal advisor of the public authority itself, the Attorney General is of the opinion that the proper course of action is for the Authority to contact the Legal Advisor of the Ministry of the Interior with a request to appoint a legal advisor of another authority in order to give his opinion on the issue.  However, the Attorney General argues that section 7c(a) of the Ordinance also allows an employee of the public authority to ask the court to determine that the conditions of immunity have been met, and therefore the way is open for a defendant who is a legal advisor of a public authority to apply to the court himself.  The state further argues that in a case where an employee of the public authority who is the defendant submitted the application for recognition of immunity, and the public authority informed the court that it joins the request and supports it, this is an administrative decision of the authority and must be examined in accordance with the rules of administrative law.