It’s time to start enforcing state policy on civil servants

It ought to be obvious that in a state formally committed to equal rights for all its citizens (however short of this ideal it may fall in practice), rabbis who openly preach the most blatant form of discrimination should not be on the state’s payroll. Whether anything will in fact be done about them remains to be seen; the attorney general is currently studying the issue.

But it should also be obvious that, in a state formally committed to justice for all, a judge who publicly terms the ultra-Orthodox “lice” and “parasites,” or tells a disabled lawyer he should find another job if he can’t climb stairs, has no place on the bench. After all, ultra-Orthodox and disabled litigants are liable to appear in his courtroom; how can they expect a fair hearing from someone whose prejudices are so blatant? Yet in fact, not only did Judge Oded Alyagon keep his seat, but then-Supreme Court President Aharon Barak tried repeatedly to promote him – an effort foiled only because then-Justice Minister Yossi Beilin had the rare courage to stand up to Barak and insist that nobody with such views would be promoted on his watch.

It should also be obvious that, in a state formally committed to preventing police brutality, a senior officer caught on camera urging his men to viciously assault peaceful demonstrators (“Crap, let them burn! Don’t hesitate, use water cannon and nightsticks, hit them in the lower body”) has no business in the police force. Yet not only was Negev District Commander Niso Shaham not fired over his behavior at the anti-disengagement rally in Kfar Maimon in 2005, he was even subsequently promoted – twice.

Finally, it should be obvious that any state employee who refuses to honor the authorized decisions of another state agency should lose his job. Yet far from firing state-funded rabbis who refuse to honor conversions performed by the army rabbinate or the state’s conversion administration, the government chose to punish the citizenry for the rabbis’ misbehavior: Converts whose local rabbis refuse to register their marriages will be forced to travel to another city to find a rabbi who will.

The problem, in all these cases, is that it’s very hard to impose any substantive punishment on a civil servant without indicting him. That’s why so many people – not just from the knee-jerk left, but also hard-core rightists like Knesset Speaker Reuven Rivlin (Likud) – called last week for criminal proceedings against the rabbis who signed the “don’t rent to Arabs” letter: Without an indictment, it’s unlikely that any action at all will be taken against them.

But indictments are no solution. Even if these particular rabbis did violate the law against incitement to racism (which is far from clear, since in deference to freedom of speech, both the attorney general and the courts have traditionally interpreted it narrowly), the other cases cited above clearly don’t lend themselves to prosecution. Nor would it be desirable to broadly criminalize speech.

Theoretically, there is a mechanism short of indictment for handling such cases: disciplinary proceedings. But disciplinary proceedings are usually in-house affairs, and it is the nature of organizations to protect their members.

Shaham’s punishment, for instance, was left to the police commissioner, who made do with a reprimand. Judges can be punished only by the judicial ombudsman, who is always a retired judge, or the Judicial Appointments Committee, which is dominated by sitting judges. In the rabbis’ case, since all the rabbis in question are municipal rabbis, the venue would be the relevant municipal religious councils – i.e., the rabbis’ friends and cronies.

Sometimes, disciplinary charges can be filed in an independent Civil Service Commission tribunal. But many state employees – like the municipal rabbis – are outside the commission’s purview. And even with employees who are subject to the commission, disciplinary trials have traditionally been reserved for “serious” issues like sexual harassment. Under Shmuel Hollander, who was civil service commissioner for 14 years until stepping down in October, the commission tended to view “mere words” as unimportant – even when the consequences were potentially grave, such as encouraging police brutality.

To some extent, this situation is the Knesset’s fault. Legislation could and should be passed to subject everyone on the state payroll to the Civil Service Commission, and to make it clear that some types of behavior are unacceptable for a civil servant.

For instance, legislation is urgently needed to mandate the dismissal of any rabbi on the state’s payroll who refuses to marry someone converted by a recognized state authority. Otherwise, this would probably be impossible even if municipal rabbis were subject to the commission, given their broad authority to interpret Jewish law as they see fit. It must be made clear that while every rabbi is entitled to follow his own halakhic views, he isn’t necessarily entitled to a state salary while doing so.

But legislation by itself cannot create the will to apply it. That requires a civil service commissioner deeply committed to the idea that civil servants should not be allowed to violate government policy, even if the victims – as was true in all the cases cited above (Arabs, the ultra-Orthodox, the disabled, settlers, converts) – are unpopular or politically powerless.

The government is now seeking a permanent replacement for Hollander. Finding someone willing to reverse this sorry state of affairs should be a top priority.