The state can be held vicariously liable for the wrongs committed by its servants or employees

“The state can be held vicariously liable for the wrongs committed by its servants or employees”. Discuss.

INTRODUCTION

The State is commonly referred to either the present condition of a system or entity, or to a governed entity such as a country or sub-entity such as an autonomous territory of a country. The State links individuals to groups and organizations, and establishes balance and reconciliation between individuals and groups. It provides security to individuals and safeguards their rights.

Along the course of time the role of the state has gone undergone some changes. It is said that it is one of the basic instincts of man to lead a disciplined life and in this respect the state is of help to the individual. The laws and rules of state help in establishing order and discipline in the society. As man’s nature forces him to live in a state, the state has been viewed as a natural institution. The state is regarded as a neutral, necessary and universal institution. In common, the word, ‘state’ is used in different ways. At times, it has been used as a synonym of ‘nation’, ‘government’, or society. The constituent units of a federation, in some cases, are also called states.

Now let us firstly know who actually are the servants or employees of the state. State government public servants are government employees who work in any of the departments of a state or territory government. The main fields of employment are administrative and clerical, and professional and paraprofessional. These occupations exist across all departments and agencies, and include positions from entry level to senior management. Besides this the state public service may also employ trade and technical people. In other words the servants or employees of the state refer to all the staff, except employees doing what amounts to blue-collar jobs, working in state administrative organs who implement state administrative power and conduct public services according to law. They also include staff in other units which also have state administrative functions and conduct administrative activities.

Now we are going to discuss whether the state can be held vicariously liable for the wrongs committed by its employees or not.

Why the state can be held vicariously liable for the wrongdoings of its employees?

Here firstly we are going to see the responsibilities of the state towards its employees so that its employees act or perform their actions within the ethical boundaries. It is said that it is half the responsibility of the state to make their employees act ethically. The responsibilities are discussed as follows:

· The state should provide clear ethical standards for public service: Public servants need to know the basic principles and standards they are expected to apply to their work and where the boundaries of acceptable behavior lie. A brief, well-publicized statement of core ethical standards and principles such as in the form of a code of conduct should be developed which can guide the public service holders. So here if the state is not providing a clear ethical standard to the public employees then the state is liable for the wrongs committed by a public employee.

· The ethical standards should be reflected in the legal framework: The state only does not have the responsibility to develop the ethical standards but also maintain the ethical standards in a legal framework. The legal framework is the basis for communicating the minimum obligatory standards and principles of behavior for every public servant. The laws and regulations should state the fundamental values of public service and should provide the framework for guidance, investigation, disciplinary action and prosecution.

· Ethical guidance should be available to public employees: The state should provide ethical guidance to the public servants. This guidance should be provided so that it enables the public servants to use their actual judgments and skills of ethical principles in times of concrete circumstances. The guidance can be in the form of training the public employees or generating ethical awareness among them. Such guidance can enable the employees to solve ethical problems and tensions among themselves. Overall we can say that guidance and internal consultation mechanisms should be developed so that it can help the public employees to apply the basic ethical standards in workplace.

· The public servants should know about their rights and obligations when exposing wrongdoings: Public servants need to know what their rights and obligations are in terms of exposing actual or suspected wrongdoing within the public service. These should include clear rules and procedures for officials to follow, and a formal chain of responsibility. Public servants also need to know what protection will be available to them in cases of exposing the wrongdoings. Here we can say that in most of the public services there is no strict rights and obligations when exposing the wrongdoings for the employees for which the unethical acts are being carried out on a continuous basis by the public servants as they know that there is no one who can stop them from doing so. Therefore here the state should strictly develop rules against the wrongdoings of the public servants.

· The political commitment to ethics should reinforce the ethical conduct of public servants: Political leaders are responsible for maintaining a high standard of propriety in the discharge of their official duties. Their commitment is demonstrated by example and by taking action that is only available at the political level, for instance by creating legislative and institutional arrangements that reinforce ethical behavior and create sanctions against wrongdoing, by providing adequate support and resources for ethics-related activities throughout government and by avoiding the exploitation of ethics rules and laws for political purposes.

· The decision making process should be transparent and should be open for evaluation: Here the decision making process in the public sector should be made transparent and open to scrutiny by the state. This is firstly because public has every right to access the public information and on the other hand the transparent process will enhance the efficiency and activeness amongst the public employees and will also refrain them from participating in the wrongdoings.

· Adequate accountability mechanisms should be placed by the state within the public service: Public servants should be accountable for their actions to their superiors and, more broadly, to the public. Accountability should focus on compliance with rules, ethical principles and on achievement of results. Accountability mechanisms can be internal to an agency as well as government-wide, or can be provided by civil society. Mechanisms promoting accountability can be designed to provide adequate controls while allowing for appropriately flexible management.

· Appropriate procedures and sanctions should be included by the state to deal with misconduct: Mechanisms for the detection and independent investigation of wrongdoing such as corruption are a necessary part of an ethics infrastructure. Therefore it is the responsibility of the state to develop reliable procedures and resources for monitoring, reporting and investigating breaches of public service rules as well as take necessary actions in order to discourage or reduce misconduct.

What can be stated seeing the responsibilities of the state?

So these were the responsibilities of a state towards its employees. If such duties are properly fulfilled by the state then it can be said that the state cannot be held vicariously liable for the wrongdoings of its servants or employees. But in most of the times it has been seen that the state does not properly perform their duties which actually makes them vicariously liable for the wrongdoings of its employees. This happens mainly because there is a particular system under which the public servants work and if such system or organizational structure is not properly built by the state then there is a high likelihood that the public servants will attempt to commit activities that goes against the ethical boundaries. So here the primary aspect that we have learnt is that the state should first fulfill their responsibility and build up the organizational structure properly in order to expect its employees to act within ethical boundaries.

Why the public servants should be held solely liable for their own wrongdoings?

Secondly there are also certain responsibilities or duties from the perspective of the employees which if not properly fulfilled then it makes only the public servants liable for their own wrongdoings. So let us see the responsibilities that are to be fulfilled by the public servants which are discussed as follows.

· Respect for democracy: The first responsibility of the public servants is to show respect towards the democracy of its nation. They can uphold their nations’ democracy and institutions by respecting the rule of law and carrying out their duties in accordance with legislation, policies and directives in an unbiased and impartial manner. The public servants should also loyally carry out the lawful decisions of their leaders and supporting ministers in their accountability to Parliament and the general public of the nation. Here the public servants are also responsible for providing the decision makers with accurate information, analysis and advice the decision makers require for creating an unbiased and impartial good decision.

· Respect for people: The public servants do have a duty of respecting human dignity and the value of each and every individual being. They can do this by treating every person with equal respect and fairness. Secondly they should value the diversity and the benefit of combining the unique qualities and strengths inherent in a diverse workforce. They should also help to create and maintain safe and healthy workplaces that are free from harassment and discrimination. Lastly they should work together in the spirit of openness, honesty and transparency that encourages engagement, collaboration and respectful communication.

· Integrity: In the public sector it is highly required that the public servants act in accordance to the public interests. They may do it by acting at all times with integrity and in a manner that will bear the closest public scrutiny. Secondly they should never use their power to gain unethical advantage for themselves or give unethical advantage or disadvantage to others. They should take all possible steps to prevent themselves from the conflict of their official responsibility with their private affairs and lastly they should act in such a way that maintains their employer’s trust.

· Stewardship: The public servants shall use all resources responsibly by effectively and efficiently using the public money, property and resources managed by them. Secondly they should consider the present and long-term effects that their actions have on people and the environment. Lastly they should acquire, preserve and share appropriate information.

What can be stated seeing the responsibilities of the public employees?

So these are the responsibilities of a public servant which if not performed as discussed above then it can be said the public servants are fully liable for the wrongdoings of themselves. It has been seen that in most of the cases in the public sector, the public employees lack most of the responsibilities as discussed above. This is what makes the public employees attempt to do the unethical activities. Therefore it can be said that due to the lack of the sense of responsibility within the public servants towards their job in the public sector, they themselves can be held responsible for their own wrongdoings.

CONCLUSION

It has been seen that the state as well as the public employees have different sets of responsibilities. The responsibility of the state requires the state to develop a structural organization that facilitates its employees to work within ethical boundaries. It is the state that has the responsibility to provide ethical guidance to its employees so that they do not get diversified from their basic objective. A legal framework of ethical standards should be provided by the state to its employees so that the employees perform as due to the standard provided by the state. Overall we can say that the state has a full responsibility of developing the actual system in an organization and if here if the state fails to develop a good structural rules and regulations which are to be abided by the employees, the employees take an attempt to perform the wrongdoings. Besides the responsibilities of the state, there are also certain duties that are to be performed by the public employees without which they themselves can be held solely liable for their own wrongdoings. Overall we can say that the state as well as the public employees are together responsible for the unethical or wrong activities as because the public employees perform the wrong activities both for their own lacking as well as due the lacking of the state.

BIBLIOGRAPHY

1) [1] Kumar, A. (n.d.). What is the meaning and definition of state? Retrieved from http://www.preservearticles.com/2011100414554/what-is-the-meaning-and-definition-of-state.html

2) [1] Public servant – state government. (n.d.). Retrieved from http://jobguide.thegoodguides.com.au/occupation/Public-Servant-State-Government

3) [1] Bertok, J. (1998, 05 28). Principles for managing ethics in the public service. Retrieved from http://www.oecd.org/governance/ethics/1899138.pdf

4) [1] Values and ethics code for the public sector. (n.d.). Retrieved from http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?section=text&id=25049

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