Whether it's a political comment on Facebook, a like under a controversial post or a polemical remark at a meeting - the public behaviour of civil servants, especially in social media, is increasingly becoming the focus of legal assessments and social debates. This is not only about questions of political neutrality, but above all about possible breaches of civil servant duties. But where is the boundary between permissible expression of opinion and a breach of the duty of loyalty to the constitution under civil service law?

The duty of loyalty to the constitution under Section 33 (1) sentence 3 of the Act on the Regulation of the Status of Civil Servants in the Federal States (BeamtStG) requires civil servants to actively uphold the principles of the free democratic basic order and to clearly distance themselves from anti-constitutional endeavours. This raises particular questions for employers as to how they should deal with members of the civil service who are members of the AfD.

 Since the AfD was categorised as right-wing extremist by the Office for the Protection of the Constitution, it has become clear that membership of an anti-constitutional party is an indication of a lack of loyalty to the constitution. Unlike in the past, it can therefore already be an indication of an official offence. However, this must be assessed on a case-by-case basis. According to Section 17 (1) sentence 1 of the Federal Disciplinary Act (BDG), the employer is obliged to initiate disciplinary proceedings in the event of relevant indications. Prior to this, it may, within certain limits, initiate administrative investigations in order to check whether there are facts that justify the suspicion of an official offence. As part of the investigation, the employer may analyse all public posts made by civil servants - particularly on social media.

Limits of permissible statements: When does the breach of duty begin?

A breach of duty may already exist if the officer's behaviour objectively conveys the impression that he or she adheres to an anti-constitutional world view and reveals a corresponding inner attitude. It is not decisive whether a statement was only meant as a (bad) joke. Rather, it is a question of how it is to be understood objectively. This applies in particular to racist, national socialist or right-wing extremist content, even if it is expressed in (supposedly) private communication channels. Even liking, sharing or commenting on anti-constitutional content can give rise to doubts as to the person's loyalty to the constitution. It should be noted that although civil servants are protected in their freedom of expression under Article 5(1) of the Basic Law, this is in tension with their special duty of service and loyalty. The constitutionally guaranteed expression of opinion finds its limit where the behaviour raises doubts about loyalty to the constitution. It is not the subjective intention of the statement that is decisive, but its objective content and its effect on the public. For example, anyone who supports extreme right-wing positions or does not clearly distance themselves from anti-constitutional endeavours potentially leaves the protected area of permissible criticism and risks disciplinary consequences.

Taking responsibility - utilising opportunities for action

This results in a clear need for action on the part of the employer: in order to counter anti-constitutional tendencies in the public sector at an early stage, increased attention is required. Only if affected employees, superiors and HR managers know which statements can be problematic under employment law and how to proceed in suspected cases can administrative action be effectively safeguarded in accordance with the rule of law. Managers and employees must be reliably informed about which types of statements are no longer compatible with the duty of loyalty under civil service law. It is therefore incumbent on employers to provide clear guidance. This can be done, for example, through internal handouts, regularly updated information on legal developments or through fixed contact persons for queries. Such a proactive communication strategy not only promotes understanding of the scope of the duty of loyalty under civil service law, but also creates an awareness of the shared responsibility to protect the free and democratic basic order.

Against this backdrop, public authority managers and HR managers are well advised to be vigilant when dealing with anti-constitutional tendencies within their own administration. The protection of the free and democratic basic order does not begin in the courtroom, but with the consistent enforcement of duties of loyalty under civil service law in everyday public service.