According to participants, at a hearing in the Bundestag’s Economic and Energy Committee, Graichen also admitted to having proposed the name of his best man as a member of the selection committee of the personnel consulting firm commissioned with the search for candidates.
The fact that the State Secretary had concerns about bias was made clear by his statement in the committee that he had held back on the selection committee. In the official candidate interview, Graichen even used his friend’s polite. The opposition sees this as deliberate misconduct and a “cover-up”.
What specific offense is it?
Specifically, it is about a possible violation of the bias rules under the Administrative Procedures Act. The Berlin constitutional lawyer Ulrich Battis considers it “negligent and also reproachable” when an “obviously biased official” enters a selection process and then also has a significant say in it. “That can be seen as a misdemeanor,” explains the civil service law expert.
“No matter how much an official can claim to have approached something neutral,” says Battis. It depends on how his behavior affects third parties involved in the process. “With regard to a best man, the concern about bias is palpable.” Bonn legal scholar Klaus Ferdinand Gärditz also agrees: “Failing to report obvious bias is undisputedly a misdemeanor.”
What are the legal bases for a prosecution?
Since this is about a state secretary with civil servant status, the civil service law of the federal government applies quite normally.
Law professor Gärditz explains: Graichen is a professional civil servant with the highest salary level (B11 with a monthly basic salary of 15,074.80 euros) and fulfills official tasks “for the legality of which he, like all other civil servants, is also personally responsible”.
The opposition is demanding disciplinary proceedings. Is this possible?
“Disciplinary proceedings can only be considered if a state secretary has culpably violated his official duties,” says Speyer constitutional lawyer Joachim Wieland. This could be done intentionally or negligently. “If a state secretary has only acted negligently, the disciplinary sanctions will usually be milder than in the case of intentional action,” explains Wieland.
Whether Graichen may have acted intentionally because he “could have planned to have concealed the close relationship by playing distance” is at best a question of the extent of the sanction, agrees the Bonn civil service law expert Garditz.
Union calls for disciplinary proceedings against Patrick Graichen
Accordingly, thoughtlessness is at least gross negligence, if not conditional intent, i.e. also “culpable”. A breach of duty would also be sufficient for a misdemeanor.
According to the Federal Disciplinary Act (BDG), a reprimand can then be imposed, i.e. a written reprimand of the behavior, or a fine. However, removal from the civil service is also possible.
How do you rate Minister of Economics Habeck’s actions?
The Bonn civil service law expert Gärditz makes it clear: If there are sufficient indications to justify the suspicion of a misdemeanor, the supervisor has the duty to initiate disciplinary proceedings. However, the Berlin constitutional lawyer Battis thinks that in the end the state secretary would probably only get a reprimand.
For Philipp Byers, specialist lawyer for labor law and partner at the commercial law firm Dentons, the impression arises that the political discussion is being conducted “from all sides” around civil service law. That also applies to the minister.
The Federal Minister of Economics has backed his State Secretary.
(Photo: dpa)
Byers explains: “As Patrick Graichen’s superior, Robert Habeck must conduct the disciplinary proceedings himself, in a neutral manner and with an open outcome.” However, Habeck has already publicly announced his decision that his state secretary does not have to go despite his mistake.
“That’s questionable,” says the labor lawyer. “Other standards then obviously apply here than for ordinary civil servants.” This includes examining all possible civil service measures, including removal from the civil service.
What does it mean when a Secretary of State is “dismissed”?
As a political official, Graichen can be dismissed at any time by the Federal President at the request of his minister on the grounds that trust has been broken. State lawyer Battis explains: “State secretaries have already been fired for much simpler things.” The decisive factor is not the seriousness of the offense, but how it is dealt with politically. “If the opposition shoots a lot, then that’s definitely the best reason not to fire the state secretary,” emphasizes Battis.
In concrete terms, “dismissal” means that 70 percent of the salary will be taken into temporary retirement. “In Berlin, it’s definitely possible to meet state secretaries who were dismissed in this way, who now use their brilliant networks and work carefree as lobbyists,” reports civil service law expert Battis.
The opposition demands Graichen’s resignation. Does that even exist with official state secretaries?
There are no resignations under civil service law. “That’s political scene jargon,” says law professor Gärditz. An officer would have to apply to be fired. That would then also correspond. “But nobody can force Graichen to do so,” emphasizes the Bonn civil service lawyer. If he doesn’t “go” voluntarily, he’ll remain a civil servant.
State lawyer Wieland explains that it would be cheaper for Graichen to put himself on temporary retirement than to apply for dismissal. A civil servant who would like to be dismissed would be insured in the statutory pension insurance, but would lose his entitlement to a pension.
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