Moderation requirement

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The moderation requirement is a term from the civil service law . It is regulated for federal civil servants in Section 60 (2) of the Federal Civil Service Act (BBG) and for state and municipal civil servants in Section 33 (2) of the Civil Service Status Act (BeamtStG) and is one of the basic duties of civil servants. For soldiers there is an analogous requirement from Section 15 of the Soldiers Act (SG) and for judges from Section 39 of the German Judges Act (DRiG).

Obligations of officials and judges

The commandment obliges civil servants to “maintain the moderation and restraint that result from their position vis-à-vis the general public and from consideration of the duties of their office” when engaging in political activity inside and outside the service. It is closely related to their duty of neutrality, but does not mean a general ban on political activity outside of the administration.

For judges, there is an analogous obligation from Section 39 DRiG. They have to behave “inside and outside of [their] office, even when they are politically active, that trust in [their] independence is not endangered”. The aim is to protect trust in the judiciary as an institution. A judge must therefore behave in such a way that there is no serious public doubt that he is judging fairly and independently.

Duties of Soldiers

According to § 15 SG, soldiers of the Bundeswehr are not allowed to work in favor of or against a certain political direction. Superiors must not influence their subordinates for or against a political opinion. Soldiers are free to express their own opinions in conversations with comrades, but must observe the basic rules of comradeship ( Section 12 SG) during their free time within official accommodations and facilities . Soldiers are not allowed to wear uniform at political events.

In addition, the behavior of a soldier must do justice to the reputation of the Bundeswehr as well as the respect and trust that his service as a soldier requires ( Section 17 (2) sentence 1 SG). This applies to all soldiers. When not on duty, the soldier must behave outside of the official accommodation and facilities in such a way that he does not seriously impair the reputation of the Bundeswehr or the respect and trust required by his official position ( Section 17 (2) sentence 3 SG). The requirements of sentence 3 are to be measured by the official position, i.e. H. for a commander z. B. apply a stricter standard than with a group leader .

Soldiers have to respect the official position of the superior in his person also outside of the duty ( § 17 Abs. 1 SG).

An officer or non-commissioned officer has to meet even after retiring from the military service, the respect and confidence, for its reuse (. Eg as a reservist in the case of defense ) in his rank are (required § 17 para. 3 SG).

Jurisprudence

Since the requirement that civil servants must maintain “the moderation and restraint that result from their position towards the general public and from consideration for the duties of their office” is characterized by vague legal terms, the practical understanding of the moderation requirement regularly requires a look at the existing case law . In the past, the higher levels of administrative jurisdiction, i.e. the Higher Administrative Court and the Federal Administrative Court , have dealt with individual cases , paying particular attention to the teaching profession :

An anti-nuclear badge is worn by a teacher in class

The wearing of an anti-nuclear sticker by a teacher during school work violates the requirement of restraint in political activity, according to a ruling by the Federal Administrative Court from 1990 (BVerwG 2 C 50.88). In connection with the discussion about the use of nuclear energy at the beginning of 1977, some teachers had worn a “ smiling sun ”. On the basis of a general instruction from the school authorities, a Hamburg headmistress forbade a teacher in November 1977 from wearing this badge in class for the pupils to see. The teacher objected to the prohibition because he saw it as a serious interference with his right to freedom of expression .

According to the judgment of the Federal Administrative Court, the teacher did not maintain the measure and the restraint to which the moderation requirement obliges him. By wearing the badge on duty, he was said to have used his office inadmissibly to advertise his political views towards the students, which contradicted the school's legal education and training mandate. The judges agreed with the lower court, which had pointed out that “the acceptance of the public school system by parents, whose trust in the objectivity and political neutrality of the school, would be shaken if they had to be prepared for teachers to bring political disputes into the school and thereby indoctrinate the children entrusted to them ”.

The teacher could also not invoke the educational freedom to justify wearing the anti-nuclear power badge on duty. This is not a legitimate means of structuring lessons, but an illegal means of expressing political opinion during school service.

"Swear Words" by a teacher in a letter to the editor

In a letter to the editor, a teacher may underpin his criticism of specifically named politicians with “strong expressions”, in the present case with terms such as “Spaltpilz”, “Popular Front”, “Kraftmeier” and “boisterous (accusations)”, “maliciously ignorant”, “bad-mouthedness and defamation "," perfidious (goal orientation) "and" vassals ", according to a judgment of the Higher Administrative Court of North Rhine-Westphalia in 2011. With the terms listed, a grammar school teacher from Rheine had his displeasure with certain local politicians in two letters to the editor at the city party convention of the CDU in November 2009 expressed. The Münster district government and the Münster administrative court, which was the first instance to deal with this case, saw this as a violation of the moderation requirement.

LGBT activism by a teacher

More recent published judgments concern a high school teacher in connection with classroom and extra-class activism in favor of LGBT interests:

In May 2014, the Münster Administrative Court granted a teacher the right to speak out in public against homophobia in Islamism , to expressly identify themselves as a teacher and to claim that Islamist parents wanted to influence school lessons. The fact that he made these statements at the event of a party monitored by the Office for the Protection of the Constitution did not constitute a breach of official duties, since the teacher had expressly distanced himself from anti-constitutional elements of that party and had declared himself to be a voter of the Greens . The statement made by the teacher at this event, "As an avowed homosexual, I am more afraid of Islamists than of Nazis!", Was not objectionable under official law, according to the court. The judges did not follow the employer’s opinion that this is a relativization of right-wing extremism. The freedom of expression covered it, as was done by the teacher, to portray Islamism as "a danger that is underestimated compared to right-wing extremism" (13 K 3135 / 13.O, VG Münster). In the previous year, the Administrative Court of Gelsenkirchen and the Higher Administrative Court of North Rhine-Westphalia had found the teacher's suspension to be unlawful (1 K 3328/12, VG ​​Gelsenkirchen; 6 A 1789/13, OVG NRW). In addition, the Administrative Court of Gelsenkirchen made it clear in November 2015 that the political commitment of this teacher did not stand in the way of a lifelong civil service (1 K 3816/13, VG Gelsenkirchen).

In addition, the Münster Administrative Court gave the teacher the right to take drastic formulations against homophobic tendencies in schoolchildren from the 5th grade onwards and, under certain circumstances, to threaten legal guardians. The teacher had threatened the mother of a fifth grader in a letter with criminal and civil law consequences and wrote to her verbatim: “Parents who torpedo school efforts against homophobia are to be sanctioned with similar consequence as parents who are, for example, school efforts against racism and anti-Semitism torpedo. ” The employer had seen this escalation as a violation of official duties, in particular due to an alleged exploitation of the teaching post for private interests. The court, however, considered the teacher's approach to be justified, especially since the student actually described homosexuals in class as “perverts” and the mother had massively attacked the teacher on the parents' day (13 K 3135 / 13.O, VG Münster).

Individual evidence

  1. ↑ Thorsten Franz: Introduction to Administrative Science. , Springer VS, 2013, ISBN 978-3-531-19493-6 , p. 270.
  2. ^ Andreas Mosbacher : Judicial moderation and modern media: Facebook "Sheriff" and online columnist: modern judges , Legal Tribune Online , July 25, 2016.
  3. ↑ BVerwG, January 25, 1990 - BVerwG 2 C 50.88 - Teachers; School service; Plaque; Command of restraint in political activity. Retrieved August 21, 2017 .
  4. ↑ VG Münster, October 16, 2009 - 4 K 1765/08 - initiation of disciplinary proceedings due to disapproving external expressions of opinion by an official; Degrading statements made by an official against a person; Removal of a disapproval disapproval from the personnel file. Retrieved August 21, 2017 .
  5. ↑ Teacher Werner Friedrich did not violate any official duties. (No longer available online.) Archived from the original on August 21, 2017 ; accessed on August 21, 2017 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.ruhrnachrichten.de
  6. ↑ VG Münster, judgment of May 13, 2014, Az. 3 K3135 May 13, 2014, accessed on August 21, 2017 . Paragraphs 94-96
  7. ^ Higher Administrative Court of North Rhine-Westphalia, decision of September 12, 2013, Az. 6 A 1789/13. September 12, 2013, accessed November 25, 2016 .
  8. ↑ Administrative Court Gelsenkirchen, judgment of November 4, 2015, Az. 1 K 3816/13. November 4, 2015, accessed August 21, 2017 .
  9. ↑ VG Münster, judgment of May 13, 2014, Az. 3 K3135 May 13, 2014, accessed on August 21, 2017 . Paragraphs 94-96