4.

FORMAL RELATIONS, CONSTITUTIONAL AND LEGAL NORMS, GUIDING RELATIONS BETWEEN ELECTED POLITICIANS AND APPOINTED OFFICIALS The purpose of this section is to provide an overview of the formal relations between civil servants and politicians by outlining the constitutional and legal norms and attempting to conceptualise the Bulgarian situation in terms of the theoretical models developed by Guy Peters. The analysis of the estimated configuration will be further extended and consequently applied in section 7. First, the basic provisions stipulated in the Constitution will be briefly presented. Secondly, the Draft Civil Service Act (CSA), currently discussed in Parliament will be described in detail as it is the basic element of the legal framework regulating the relations between politicians and civil servants and setting up the status of the civil servants and the administrative framework together with the Administration Act discussed in Section 2 above. In the Constitution of the Republic of Bulgaria from 1991 there are regulations regarding the state power interrelations originating from the set up, the organisation and activity of the national representative bodies, the range and execution of the Presidents and VicePresidents prerogatives, the definition of the fundamental principles of the executive power, including the Council of Ministers, the Ministers and the central administration institutions, as well as the judicial power, local self-government and the Constitutional court. Article 116, paragraph 1 of the Constitution states that the state employees should fulfil the will and the interests of the nation and when performing their duties they should observe the law and be politically neutral. These are the basic principles on which the legal norms regarding the civil servants should be based (Mruchkov 59). The above principles are observed in the CSA - the basic legal norm that specifies the relations between the civil servant and the state with regard to their state service. It is a logical follow up and an indispensable part of the strategy for the establishment of a modern administrative system in Bulgaria. The definition of a civil servant according to the draft law is a person who has a permanent position within the administration and has legal labour relations with the state, represented by the respective state body. The rules and regulations of the different administrations define the designations and positions of the civil servants according to the unified classification of the administrative positions. The draft CSA makes the following employment distinctions: - political versus administrative positions, and - differentiation between the different types of positions. A further distinction is present in the Administrative Act (see Section 2) between the civil servants and the other public employment positions. The following public employees are excluded from the coverage of the CSA because they are considered to be political appointments: - members of the Constitutional Court - Members of Parliament - the President and the Vice President - the Prime Minister and the Ministers - the Chairman of the Supreme Court of Cassation - the Chairman of the Supreme Administrative Court - the Chief Prosecutor - the Director of the National Investigation Office

- the persons at leadership positions elected directly by the people or by the National Assembly - the persons appointed by the President excluding the ambassadors - the members of the political cabinets, as well as the expert and technical personnel in the political cabinets. It appears from the above that political appointments would be limited to the highest administrative officials which, according to Gary Reid, Task Manager from the World Bank, represents an important improvement over the current situation in Bulgaria, in which political appointments extend quite deeply into each administration (Reid 1). This will also facilitate the ensuring of continuity and professionalism in the management of the states administrations. According to Article 5 of the CSA the civil servants are divided into two groups civil servants at managing positions and at expert positions. The civil servant at a managing position has certain authority according to his powers while the experts assist the managing officials to accomplish their authority. The other type of distinction specified in the Administration Act is between the civil servants and the other public employment positions, as the employment relations of the latter are covered not by the CSA but by the Labour Code. The main requirement towards the civil servant is stipulated in Article 4 of the Draft Act. It states that the civil servant should fulfil the will and the interests of the nation. They should observe the constitutional and legal norms and defend the rights, the legal interests and the freedoms of the citizens while fulfilling their duties and should be politically neutral. The civil servant should observe the law and the legal acts of the higher bodies. He/she should be dedicated to work according to the principles of lawfulness, loyalty, openness, accessibility, responsibility and coordination (Article 20). Regarding appointment, Article 9 envisages a competition announced in the national media. The selection is made by a state administrative commission. Yet, it is not clear if this provision requires or simply permits a competition procedure at the discretion of the Council of Ministers or the appointing body. At the recommendation of the World Bank Task Manager, Gary Reid, it would be wise to revise this article to require competitive procedures for recruitment and selection to civil service positions in all circumstances, rather than leaving such broad discretion in the hands of some unit, as is in this case, the Council of Ministers. This would enhance transparency, as well as accountability, both of which are objectives of the CSA and the Government Administrative Reform Programme. According to the Draft Act, some of the functions that are incompatible with the civil servant status include: trader, procurator or trade representative, Members of Parliament or municipal councillors, publishers or editors of political party newspapers and magazines, holders of leading positions in political parties, persons working on labour contracts with the exception of academics, persons performing the legal profession, etc. The CSA regulates the conditions for occupation of a civil service position, e.g. age, citizenship, education requirements, etc.; the duties of the civil servant - working time, subordination, confidentiality, prohibition for making statements, keeping the civil service prestige in their professional and personal lives; their rights - of salary, according to position and rank, as defined by the Council of Ministers (the basic salary should not be lower than the average salary for the country), right to holidays, promotion, welfare benefits, opinion, trade unions, etc.; responsibility and discipline (awards and sanctions); settling of disputes;

and control for keeping the status of the civil servant (by the State Administrative Commission). Overall, the Draft CSA is an attempt to create a core set of key public employees whose employment relation is designed to ensure that they are insulated from arbitrary personnel actions and determined to enhanced professional performance, citizen-orientation, openness and transparency. Nevertheless, since it is not yet adopted and applied, it is not possible to address the CSAs implications as regards the legal order issue. However, this section will try to analyse the existing situation and the potential of the administrative system to implement the governments agenda for reform by using the results from a comprehensive empirical survey conducted in 1997 by Strategma, a local consultancy advising the Minister of State Administration. The research was conducted by means of a survey on the basis of questionnaire distributed among the 93 existing administrative units. The overall objectives of the survey were to overview, among others, the current state of the systems human resources, their potential, and the conditions under which they could meet the new requirements for civil servants. The general conclusion derived from the results is that the current administration system is characterised by a high degree of uncertainty and improvisation (Report 4). There is no common rule for definition of the hierarchical subordination amongst the different institutional units. The objective of the administration is the preservation of the status quo. The civil servants are in a constant fear of changes, there is an absence of cohesion and teamwork spirit and lack of joint objectives (Report 4). In many administrative units there is no clear distribution of the tasks and responsibilities which causes a lack of co-ordination and overlap of activities. This generally leads to a situation where most civil servants prefer to take a defensive position and attempt to perform their work by taking minimum risks thus avoiding responsibility for any conceivable errors (Report 4). These characteristics place the Bulgarian civil servants in the definition of the classical Weberian type, i.e. politicians/regime responsive. The administrative staff is generally involved in the process of administering policies and implementing decisions, rather than in the actual policy-making. Although some officials at expert level participate in the preparation and drafting of policy documents (e.g. in ministerial working groups, at parliamentary committee meetings to discuss draft legislation prepared by their respective ministry, etc.), it cannot be said that they are politically responsible or have a decisive say in the process of policy making. This is due mainly to the lack of professional tradition and continuity in this field. The need for modernisation of the administrative apparatus is widely recognised by the President and the Government. The manifestation of this is the Strategy for the Establishment of a Modern Administrative System in the Republic of Bulgaria and the two acts - the Administration Act and the Draft Civil Service Act discussed above. The aim is to create an efficient bureaucracy functioning according to professional standards and having sufficient expertise that would provide for its development and continuity. Attempts are also made to attract young people by providing for stages in the administrations of the different ministries. There they could get involved in the daily work of the civil servants and fulfil practical assignments under the supervision of ministry officials. As the analytical configurations will be developed later in the paper (see section 7 below), here it will be just briefly mentioned how the above review of the envisaged legal norms and the current situation can provide a basis for conceptualisation of the administrative system in

Bulgaria according to Guy Peters models of politico-administrative interaction. Although it proves difficult to classify the existing situation in Bulgaria within any of the existing models, because of its inconsistency and uncertainty to date, it could be said that it is closest to the formal-legal model. of politico-administrative relations. Based on the situation at present and despite the envisaged reforms, the relationship between the politicians and civil servants does not go further than this formal model where a clear separation exists between the administration and the political appointees. There are still many improvements to be made in the currently ratified legislation and many by-laws to be drafted and adopted in order to provide clear definitions for the civil servants status and their relations with the political appointees.