Freedom of Expression and Duty of Loyalty in Public Service

by Dr. David Hofstetter

1. facts

On November 30, 2022 (WKL.2021.19), the Administrative Court of the Canton of Aargau handed down an interesting ruling dealing with the tension between the duty of loyalty and the freedom of expression of employees under public law.

In dispute was the termination of the employment of a teacher with simultaneous leave of absence at a cantonal school. The reason for the termination was that the teacher in question had behaved unprofessionally in connection with the regulations and measures surrounding the Corona pandemic. In essence, the teacher was accused of having made public appearances at events organized by opponents of the measures and of having made disparaging remarks about democratically elected members of the authorities. In addition, she had described lawbreakers as role models. Furthermore, the teacher had accepted a mixture of her professional function and her private life during her public appearances. The employment relationship was duly terminated due to deficiencies in conduct.

In its ruling of November 30, 2022, the Administrative Court had to decide whether the termination of the employment relationship was lawful. It concluded that the cantonal school had acted lawfully.

2. considerations of the administrative court

On the one hand, the Administrative Court dealt with the nature and function of the warning. According to § 11 para. 1 lit. c of the Law on the Employment of Teachers (GAL), which is applicable in the case, a dismissal due to deficiencies in conduct must be preceded by a written warning with an appointment of a probationary period. According to the Administrative Court, it follows from the principle of good faith that the employee must be able to see from the warning to what extent his or her previous performance was deficient and which behaviors will no longer be tolerated. This in turn must indicate what performance is expected of him and how he must behave in the future so that he can avert the risk of termination (so-called warning and reprimand function of the reminder). This requires that concrete complaints are raised by means of a reminder, that the employee is required to behave in a concrete manner and that the consequences of any future deficiencies in behavior - which contradict what is required - are pointed out to the employee. The reminder fulfills its reprimand function only if the employer not only summarily points out the deficiencies in the conduct of the employed person, but communicates them in detail and can substantiate the deficiencies by referring to specific incidents. In order to realize the reminder function, the principle of good faith requires, in addition to clear instructions as to how the employed person must behave in the future, at least an implied threat of ordinary termination in the event of non-compliance with the reminder (E. 2.5.1).

The Administrative Court concluded in its judgment that the warning given to the teacher did not meet all the requirements developed by doctrine and jurisprudence. Overall, however, it was to be judged as legally sufficient, whereby the Administrative Court also took into account that the teacher had been "aware of the annoyance" that she had caused with her behavior, and also that there had been no will to improve. Under these circumstances, the issued warning was not objectionable as a whole.

The school justified the termination on the grounds of breaches of the duty of loyalty by the teacher in question. The duty of loyalty of employees in public service contains various aspects and means in particular to refrain from anything that could harm the employer. This includes, for example, not defaming the employer in public. The employed person's own legitimate interests represent the limits of the duty of loyalty (E. 3.1).

The duty of loyalty may in particular be in tension with the freedom of expression of the employee concerned. In relation to employees under public law, the freedom of expression may be restricted by the duty of loyalty, which also extends to off-duty conduct. In this respect, the duty of loyalty means that the person employed under public law protects the interests of the community in the performance of his or her duties beyond the actual work performance. The purpose of the duty of loyalty is to ensure the proper functioning of the public administration by not undermining the public's trust in the state. Restrictions on freedom of expression based on the duty of loyalty are only permissible if they are objectively justified and are in reasonable proportion to their purpose. Public criticism is not excluded in principle, but the duty of loyalty of the employed person requires that a certain restraint be imposed, in particular in the manner (E. 3.2).

The Administrative Tribunal examines the allegations made against the teacher individually and concludes that the majority of the incidents cited by the school do not allow the conclusion that the teacher has breached the duty of loyalty in a way that justifies termination. However, with respect to the main allegation made against the teacher, the Administrative Tribunal concludes that it is well-founded and justifies the dismissal that has been pronounced.

The main accusation is that the teacher took part in a rally surrounded by opponents of the measures and appeared as a speaker, whereby the event was advertised in advance with flyers, and the teacher was listed on them by name in his function as a teacher at the cantonal school. During his speech, he had called Federal Councillor Berset arrogant and sick. In addition, he had made remarks to the effect that he had praised people who did not comply with the measures. He described the participants and himself as "the true and only task force". In addition, he had asked the participants of the event to hug each other. The Administrative Court concludes that the expression and content of the plaintiff's speech lacked the required objectivity and restraint. His remarks were not aimed at an objectively conducted discourse. He also did not shy away from denigrating a sitting member of the Federal Council and presenting persons who violated the regulations in force at the time as role models. According to the Administrative Court, in view of the teacher's statements, it had to be seriously doubted whether he was able to teach the students respect for the applicable legal order, which, however, is one of the indispensable educational tasks of every teacher. The administrative court considers the teacher's objection that he participated in the event as a private person to be implausible, because he himself played with the role as a teacher in public.

In its assessment of the teacher's participation in the event in question, the Administrative Court concludes that this constitutes a breach of the duty of loyalty. In contrast, there is no violation of the freedom of expression. The corresponding restriction of the freedom of expression proves to be lawful.

3. conclusion

In its ruling, the Administrative Court shows the limits of the freedom of expression of persons in the public service. Employees in the public service have to accept a stronger restriction of their freedom of expression than other citizens, even in the off-duty area. In particular, they are expected to engage in public discourse objectively and with due restraint. Furthermore, they must avoid the appearance that they are expressing themselves in their capacity as public employees. They must generally refrain from events at which there are calls for violence or other violations of the law.

Teachers are sometimes subject to the highest demands in terms of fiduciary duty, because they have an educational mandate and a role model function to perform. They must teach students to respect the applicable legal system. The school authorities have to pay attention to this also and especially with regard to actions of pupils in connection with the "climate strike".