Defying attorney general, the government enables the PM to choose the next civil service czar

The government on Sunday approved the appointment procedure for the next civil service commissioner (CSC), despite the attorney-general’s office deeming it “not legally viable,” a move likely to increase the already high tension between the government and Attorney-General Gali Baharav-Miara.

The CSC is the official supervisor of the state’s tens of thousands of civil servants and is responsible for ensuring the professional and apolitical character of the civil service. The commissioner has broad powers, including approving the allotment of positions and authorities between and within administrative units; establishing administrative regulations for government institutions; and chairing an appointment committee for senior civil service positions.

The current commissioner, Prof. Daniel Hershkovitz, is set to retire in September.

The law simply says the government appoints the commissioner, without laying out the relevant process. In 2018, prior to Hershkovitz’s appointment via an ad-hoc committee, the government at the time, also led by current Prime Minister Benjamin Netanyahu, decided that it would formulate a regular procedure ahead of the next CSC appointment, after consulting with the attorney-general and other legal bodies.

The attorney-general’s office presented its recommendation in June, but the government on Sunday rejected it and decided instead for another ad-hoc, one-time solution: Netanyahu will choose the commissioner, and then have the choice ratified by the Senior Appointments Advisory Committee (SAAC), which is responsible for senior appointments – five security-related (IDF chief of staff, Mossad head, Shin Bet (Israel Security Agency) head, Israel Police commissioner, and Israel Prison Service chief), and two economic-related (Bank of Israel governor and his or her deputy).

The SAAC includes four members: A retired High Court judge, the civil service commissioner, and two public representatives chosen by the government. For Hershkovitz not to be involved in appointing his successor, Netanyahu’s proposal is to replace him with a former civil service commissioner, or a former PMO director-general, on the condition that neither are currently civil servants.

In a letter to Baharav-Miara on Sunday, with copies to the legal advisers of the Prime Minister’s Office and the Civil Service Commission, Deputy A-G Gil Limon reiterated his opinion that the decision the government was about to take was “not legally viable,” and lobbied the government to accept his June proposal.

Limon said the (SAAC) was an inappropriate venue for appointing the CSC, since it only looked into candidates’ integrity but not into their professional qualifications. While the SAAC usually approves candidates from a small pool of candidates who are assumed to be appropriate to their high-ranking position, the civil service commissioner can come from a wide variety of fields, and the pool of candidates is enormous. A nominating committee must therefore look into qualifications and not just integrity, Limon argued.

He added that the fact that Hershkowitz would be replaced on the SAAC by a person of the prime minister’s choice, tilted the four-member committee in the prime minister’s favor, as it would join the two public representatives appointed by his government. This would essentially enable Netanyahu to appoint anyone he wants, Limon said.

Limon said the proper procedure for appointing the CSC is a search committee, whereby an independent committee actively searches for and approves candidates, and then recommends one or a number of them for the government to choose.

Limon in June proposed a five-member search committee, comprised of a retired High Court judge; a representative of the attorney-general; a former civil service commissioner or director-general of a major ministry, chosen by the PMO’s director-general with the A-G’s consent; an academic who is an expert in public law, chosen by the deans of all of Israel’s law schools; and a public representative with significant relevant experience, also chosen by the PMO’s director-general with the A-G’s consent.

High Court ruling stresses independence of civil service 

Limon also linked the issue to the judicial reforms. He quoted a High Court of Justice ruling that stressed the importance of an independent civil service and argued that Sunday’s proposal would pave the way to the politicization of the entire civil service. Limon said that could enable the government to weaken and control the civil service and that a non-political civil service commissioner was essential to prevent this.

Government ministers criticized the makeup of the search committee in Limon’s proposal, arguing that it was a power grab by the A-G himself, as it gave the A-G a spot on the committee and veto power over two other spots. Limon accepted the criticism and proposed to negotiate for a different makeup, with the important factor being the committee’s independence as a search committee. In his letter on Sunday, he criticized the government for ignoring his proposal to negotiate.

According to the Prime Minister’s Office, Government-Secretary Yossi Fuchs responded during Sunday’s government meeting that the current government was not bound by the previous government’s decisions; that the letter of the law merely said that the government appoints the CSC, and that previous attempts to force the government to form a search committee were struck down by the High Court; and that the attorney-general’s ruling that the government’s proposal was not legally viable was thus an encroachment of the government’s authority, which joined what Fuchs argued was a series of attempts by the attorney-general to wrest power away from the government.

Netanyahu’s office later put out quotes of his own from the government meeting, in which he argued that the issue was a “clash of two views – a decision by the clerks or a decision by the people.” According to Netanyahu, just like in senior defense appointments reviewed by the SAAC, if the people believe that the appointment was flawed, they can replace the government, which can then make new appointments.

“There is no rule of the clerks who are above the people, who know better than the government, there is no such thing!” the prime minister said.

“If we do not let clerks decide what the necessary qualities are for the heads of our security agencies, why should the CSC’s appointment be excluded, and given to them [the clerks]? Furthermore, why should clerks not decide what the necessary qualifications are for a prime minister?” Netanyahu said.

“There is no relevant reason to exclude the method of appointing the civil service commissioner, and subjugate it to the rule of the clerks,” the prime minister concluded.

Opposition leader MK Yair Lapid criticized the government’s actions and called on whoever the government chooses as CSC to refuse the appointment.

“We will not have a choice when we return to govern to fire you [future CSC], because whoever is elected against the law may not continue serving in his position,” Lapid said in a video statement.

National Unity chairman MK Benny Gantz wrote on X that “there has never been a government that has demolished the civil service as much as this one, [and] there has never been a government that has dealt with jobs, flights, and coalition funds during wartime, as much as this one.”

The Movement for Quality Government in Israel said in response to the government decision, “This is a serious violation of the principles of good governance and threatens the independence and professionalism of the civil service. Transferring the power of appointment directly to the prime minister opens a dangerous door to political appointments and government corruption while trampling on the rule of law and the values of democracy. We call on the government to walk back this harmful decision and pledge to fight with all the means at our disposal to protect standards in public life and the independence of the civil service.”