Definition and Legal Classification of Elected Civil Servants
The Term Elected civil servants refers to office holders in the public service who do not enter into civil service by appointment through a selection procedure, but by election, usually by a parliament or a municipal body. Elected civil servants are a special, legally defined group in German public law, whose legal status and obligations differ from both appointed civil servants and other public service employees.
Historical Development of the System of Elected Civil Servants
Origins
The institution of elected civil servants has historical roots in the democratic development of public administration and originates as far back as the 19th century. In particular, municipal codes and later county constitutions first created the opportunity for certain management positions in administration to be filled by election.
Modern Structure
The current practice and legal framework for elected civil servants is found in numerous laws at both federal and state levels, as well as in municipal constitutions. The status was further developed and firmly established in the course of the democratization of public administration.
Elected Civil Servants in German Law
Legal Basis
The legal status of elected civil servants in German law is determined by various provisions, including in particular:
- das Basic Law for the Federal Republic of Germany (GG)
- das Federal Civil Servants Act (BBG)
- die State Civil Service Laws (LBG)
- the relevant municipal constitutions und electoral ordinances
The specific regulations exist separately for the federal government and for each of the federal states. The selection, term of office, and removal of elected civil servants follow the principles of democratic legitimacy and control.
Conceptual and Legal Definition
Elected civil servants hold office for a fixed term, obtaining their post by election (§ 4 BBG, corresponding provisions in the state civil service laws). They differ from civil servants appointed for life due to the limited term of office and the special procedure for acquiring and losing their civil servant status.
Typical examples of elected civil servants include:
- mayors
- district administrators
- deputy administrative officers in municipalities
- lord mayors
Distinction: Elected Civil Servants, Honorary Civil Servants, and Career Civil Servants
- Elected civil servants are expressly appointed to the civil service through election procedures, usually by an electoral body (such as municipal council, county council, or the citizens’ assembly), for a defined period of time.
- Honorary civil servants generally perform an honorary office, which is usually voluntary and not a full-time position.
- Career civil servants enter into their civil service relationship by appointment after successful selection procedures and are generally employed for an unlimited term, unless disciplinary or age-related reasons require them to leave the service.
Election and Term of Elected Civil Servants
Election Procedure
The election procedure for elected civil servants is governed by the relevant statutory provisions. In municipalities, for instance, mayors are elected directly by the citizens (direct election), while deputies are often elected by the council (indirect election).
Term of Office
The term of office for elected civil servants is legally limited. The duration varies depending on the legal area and federal state, but is most commonly five, six, or eight years. After expiration of the term, re-election is permissible unless there are legal obstacles.
Rights and Duties of Elected Civil Servants
Elected civil servants, unless otherwise provided by special laws, generally have the same rights and duties as other civil servants. These include:
- official secrecy
- duty of loyalty
- duty of neutrality
- duty of performance and good conduct
- liability according to civil service law principles
Particularities Regarding Remuneration and Pension
Elected civil servants receive remuneration during their term of office according to the respective civil service salary tables. If the service relationship ends regularly, there is generally a pension entitlement; in cases of early dismissal, transitional allowances or retirement pay may be granted. The details are set out in the relevant pension and transition regulations of the civil service laws.
Termination of Civil Service Relationship
Expiration of the Term
Upon expiration of the term of office, the civil service relationship ends by operation of law, without the need for a separate termination notice.
Dismissal or Removal from Office
An early dismissal (removal) is possible under certain statutory conditions, for example by a vote of no confidence or a citizens’ initiative. The legal consequences, particularly entitlements to pensions or transitional payments, are governed by the respective legal provisions.
Legal Protection
Elected civil servants may appeal to the administrative courts regarding the legality of the election, removal, or official actions. Corresponding legal remedies and procedures are provided for and are subject to the regulations of the Code of Administrative Court Procedure (VwGO).
Distinction from Other Employment Relationships
Elected civil servants are particularly distinct from the following groups:
- Political civil servants: These may be retired at any time, but are not necessarily elected, rather are usually appointed.
- Employees in the public service: These establish their employment relationship on the basis of a private law contract, and not within the framework of civil service law.
Significance and Functions of Elected Civil Servants
Elected civil servants assume key functions in municipal and state self-administration as well as in the associated democratic legitimization of administrative leadership. Their special status helps to structure administrative leadership both as democratically legitimated through election and, at the same time, as tied to the career civil service.
Statutory Examples and Case Applications
- § 71 Federal Civil Servants Act (BBG): Provisions for civil servants for a fixed term
- Municipal constitutions and principal statutes of cities and municipalities in the federal states
- State civil service laws of the federal states: Detailed rules for official titles, election procedures, and retirement benefits
Summary
Elected civil servants form a distinct group of civil servants whose legal status is characterized by acquiring civil servant status by means of election and a limited term of service. Constitutional legitimacy, specific selection and termination mechanisms, as well as particular pension regulations, make elected civil servants a unique element of public service law in Germany. They embody the interplay between democratic legitimacy and the continuity of civil service law that shapes administration at the federal, state, and municipal levels.
Frequently Asked Questions
Do elected civil servants have special protection against dismissal?
Elected civil servants enjoy significantly stronger protection against dismissal compared to employed public service staff. During the ongoing fixed-term or probationary civil service relationship, ordinary termination is generally excluded. Termination of the service relationship or early dismissal is only possible under the statutory provisions applicable to elected civil servants, which are in particular laid down in the civil service laws of the federal states and the relevant municipal constitutions. Early termination generally requires serious breaches of duty and a special resolution by the competent body, often also a qualified majority. Disciplinary measures are also possible according to the applicable disciplinary law. The (re-)election decision at the end of the term of office is also not covered by dismissal protection law, since there is no entitlement to renewed appointment to the office in this respect.
What rules apply to the remuneration and pensions of elected civil servants?
The salary of elected civil servants—depending on the office and level (for example mayor, district administrator, full-time deputy)—is governed by the relevant civil service salary regulations, such as the Federal Salary Act (BBesG) or the respective state salary laws. Official remuneration often includes, in addition to base salary, official allowances and, where applicable, family allowances and other statutory components. Upon leaving office, elected civil servants—provided they have fulfilled a minimum term (e.g., five years)—often have claims to a retirement pension under civil service law or, if a pension entitlement does not exist, to a transitional allowance or survivor’s benefits under special statutory provisions. The details vary depending on federal state, status, and the reason for leaving office (e.g., expiration of term or removal).
Are elected civil servants subject to civil service law or labor law?
Elected civil servants are in a special public law service relationship equivalent to a civil service relationship, but differ fundamentally from the status of a ‘regular civil servant’ in certain respects—particularly with regard to appointment, term of office, and grounds for dismissal. Civil service regulations generally apply to elected civil servants unless special rules of the relevant municipal constitutional law or special regulations for elected civil servants exist. Labor law does not apply to elected civil servants; in particular, they do not enjoy collective bargaining coverage or labor law protection against dismissal.
What special procedural rules apply to dismissal or removal?
Procedures for early termination of the office of an elected civil servant (removal or dismissal) are strictly governed by the legal requirements of the respective municipal constitutions (e.g., municipal code, county code) and by specific laws of the federal states. Generally, removal requires a formal resolution by the competent representative body (e.g., city council, county council) with a qualified majority. In many federal states, a citizens’ decision (citizen removal) or a petition by residents is also possible. During the procedure, the affected elected civil servant must, without exception, be granted the right to be heard. The decision is further subject to administrative judicial review, so the elected civil servant may seek legal protection against possible removal or dismissal.
Are elected civil servants obliged to maintain official secrecy even after their term ends?
Elected civil servants are bound by service law—especially the provisions on official secrecy—to maintain confidentiality about official matters that became known to them during their term even after the end of their civil service relationship. The obligation of secrecy may also be reinforced under criminal law (§ 353b StGB: violation of official secrecy and special confidentiality obligation). Exceptions apply only where statutory provisions expressly allow disclosure of certain facts or where the employer issues an explicit waiver of the secrecy obligation.
What entitlement do elected civil servants have to remaining leave and compensation at the end of office?
The entitlement to annual leave for elected civil servants is based on the general civil service leave provisions. As a rule, leave must be taken during the term of office. Upon leaving due to expiration of term, removal, or death, unused annual leave, unlike under labor law, is not necessarily compensated, but may—depending on the specifics of state law—be wholly or partly forfeited. However, in several federal states, there are transitional or enabling provisions regarding this, such as in the event of unexpected removal from office due to sudden dismissal or illness. The specific entitlement situation is therefore governed by the relevant state law and the associated administrative provisions.
