February 21, 2023

Complaint against an official and other proceedings against improper government actions

Category: Administrative law

This blog focuses on the possibility of taking action against officials or the municipality for the unlawful actions of officials and alderman (s). An official sometimes goes too far and can be called upon to do so. Officials are bound by integrity rules. A complaint can be filed against the improper actions of an official, where a lawyer can help you. If the government causes damage, your lawyer can claim compensation.

Civil liability of an official

A public servant's personal liability is rare. Art. 9:1 Awb states that the conduct of a person working under the responsibility of an administrative body is regarded as the conduct of that governing body. This means that the most obvious thing to do is hold the municipality liable or hold it accountable for the unlawful actions of aldermen and/or officials. After all, the unlawful actions of officials are regarded as the actions of the municipality as an administrative body itself. Civil proceedings can be initiated in court to do so.

Other “complaint procedures” and alternatives for improper action by officials

A complaint can be filed with any municipality about the behavior of officials and aldermen. The municipality then has the duty to properly address the complaint made. The municipality has two weeks to deal with and resolve the complaint informally. If this does not lead to satisfaction or if the informal treatment is not agreed, the municipality will deal with the complaint formally. This means that an interview will take place and the complaint will be dealt with within six weeks. If you are not satisfied with the handling by the municipality, he can contact the national ombudsman.The Public Officials Act 2017 sets out the rights and obligations of, among others, officials who work for municipalities. The government employer must have an integrity policy that is aimed at promoting good administrative action, paying attention to abuse of powers, conflicts of interest and discrimination. Civil service law and/or “regulation of the administrative integrity of the municipality” only offers the municipality (as employer) the opportunity to punish in a disciplinary manner. However, a report from the ombudsman can contribute to this.

Integrity rules for civil servants

An official should act like a good official, whose basic values are: active, open and honest. As mentioned above, each municipality has an integrity policy. Examples of integrity violations that occur in an integrity policy include: conflict of interest, manipulation of or misuse of information, abuse of powers or position, incompatible functions. An example of an integrity provision in municipalities is; the concept of integrity: the extent to which employees, in contacts, behave sincerely, irreproachably and lawfully. In addition, the office must never be discredited and the employee concerned must not enter into any obligations towards any citizen, organization or institution other than in a purely functional sense. When integrity has been violated, this means a breach of duty and can be punished in a disciplinary manner (reprimand to dismissal). The other articles cover ancillary activities, reporting financial interests and accepting gifts. Many of the integrity cases are therefore about (the appearance of) a conflict of interest.

Biased action by an official

The ban on bias (2:4 Awb) is sometimes difficult to prove without showing that a personal interest plays a role in any way. It's about “acting fairly”, “dealing with an open mind” and “without regard to the person”. Unfortunately, the case law has not found anything that does not involve a conflict of interest or the appearance of a conflict of interest. The city council controls the implementation by the College of Mayor and Aldermen of the policy they have adopted. In this controlling task, the city council can make use of a council survey. After the majority of the city council agrees to the council survey, a committee of inquiry is set up, after which they investigate the functioning of the municipal administration. A proposal for a council survey is made by the council. So this is only a useful tool if the council wants to denounce this. When there is a 'friendly' co-official, the question is whether they will propose a council survey. (155a to 155f municipal law) There is an independent integrity office: BING — Office of Integrity for Dutch Municipalities — but it must also be called in by the municipality itself. They can investigate the whole goings-on, but they can also do person-centered research. As a result of the report, disciplinary punishment can be resumed.

Ombudsman — external right to complain against an official

External complaint law concerns the handling of complaints against the government by an independent external party. This is usually an ombudsman or ombudsman committee. Citizens can complain to the ombudsman/committee about government behavior. It is a so-called second-line facility. Before filing a complaint, the complaint must first be submitted to the governing body itself. If the outcome is negative, the complaint can be sent to the Ombudsman. A municipality can set up its own independent ombudsman or ombudsman committee itself or together with other municipalities. A municipality can also choose to join the National Ombudsman. As of 1 January 2006, this external complaint right was regulated in the External Complaint Law Act.The ombudsman goes one step further than a committee of inquiry by the municipality itself. As their own website states: “no power, but authority”.

Internal right to complain about official behavior

The internal complaint law regulation in chapter 9 of the Awb does not define the term complaint. The External Complaint Law Act also does not describe what a complaint is. According to the legislator, a definition is undesirable, because a description can also restrict the right to complain. The starting point is a broad concept of complaint. It is clear that it involves any expression of dissatisfaction with government actions against which someone wants to file a complaint. A complaint procedure is intended to obtain a legally non-binding opinion about government action. When dealing with complaints, it is tested whether the governing body concerned has behaved correctly towards the complainant. Under chapter 9 Awb (article 9:12 in particular), the municipality must point out that a petition can be filed with the ombudsman (and which, and within what period) .Criminal law: an official who is guilty of a criminal offence can be reported. The government itself almost does not press charges against officials if they are guilty of serious integrity violations, such as fraud, theft and corruption.

Media attention about complainant behavior of officials

When nothing works, media attention can be sought, see for example: LJN ruling: BD2201 on civil liability of an official. Civil law conflict with a citizen who is also an alderman. Media attention wanted.Seeking media attention is not unlawful, especially because he had taken many other steps to do so. Reporting it to the police was (and could) not be done with it, the mayor and city council were contacted without response, he also found no input from the ombudsman, after which he only went to the press. After press publication, the municipality called in BING. A citizen brings his civil law conflict with a municipality councilor into the public eye and points out aspects of the alderman's actions that are not honest. The citizen believes that such a person should not be an alderman. This comes into the public eye a week before the municipal elections; the alderman will not be re-elected. The alderman is asking for a declaration of law that the citizen acted unlawfully against him, and he also claims compensation, including loss of income as an alderman. The court considers that, in the given circumstances of the case, the citizen acted with sufficient care towards the alderman and rejects the claim. Partly because parts of the citizen's complaints appear to be correct, partly because the citizen first wanted to draw attention to what he believes to be reprehensible behavior in other, not so public ways. Only when none of the registered authorities wanted to comment on that did he seek the public eye of the press.

Administrative law lawyer helps you file a complaint

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