Restriction of the right of civil servants to perform other paid work: the experience of the CIS member states

Semin Aleksei Postgraduate Student, Department of Legal Support of State and Municipal Service, Institute of Public Administration and Civil Service, Russian Presidential Academy of National Economy and Public Administration 82 Vernadsky Ave., Moscow, 119571, Russia AlexSemin1403@yandex.ru Other publications by this author

Citizens of the Russian Federation, voluntarily choosing such an activity as public service, not only acquire a special legal status, but also agree to the accompanying conditions, including restrictions on certain constitutional rights and freedoms of man and citizen. At the same time, the system of restricting the constitutional rights and freedoms of civil servants needs to be balanced and must ensure not only the protection of public interests, but also the consideration of the private interests of civil servants as citizens of the Russian Federation. Let's pay attention to some features of the realization of the right to work by civil servants of the Russian Federation.

In accordance with article 37 of the Constitution of the Russian Federation, everyone has the right to freely dispose of their abilities to work, choose their occupation and profession. Chapter 44 of the Labor Code of the Russian Federation establishes the right of an employee to perform other paid part-time work, i.e. in his spare time from his main job. Despite the fact that the provisions of labor legislation apply to state and municipal employees with the specifics established by relevant laws, and do not apply at all to military personnel in the performance of their military service duties, state (and municipal) employees in general have the right to carry out other paid part-time activities.

At the same time, the legislation introduces a number of restrictions on this right of civil servants, and also establishes the obligation to notify the employer's representative of the intention to carry out other paid activities. The need to establish certain restrictions on the rights and freedoms of civil servants in general and in this case in particular is due to the domineering nature of the activities of persons in public service. According to the position of the Constitutional Court of the Russian Federation, special rules governing the official relations of persons holding public service positions may differ from general rules governing relations arising in the process of exercising the right to freely dispose of work abilities in other forms (for example, by concluding an employment contract) (See, for example, the Ruling of the Constitutional Court of the Russian Federation Of the Russian Federation "In the case of checking the constitutionality of the provisions of paragraph 10 of Part 1 of Article 17 of the Federal Law "On the State Civil Service of the Russian Federation" and Article 20.1 of the Law of the Russian Federation "On Militia" in connection with the complaints of citizens L.N. Kondratieva and A.N. Mumolin" dated 30.06.2011 No. 14-P). This approach does not contradict the principle of equality due to objectively justified and constitutionally justified goals to prevent violations of the rights and legitimate interests of citizens by persons with authority.

Issues of the implementation of labor rights by civil servants (including issues of other paid work) are reflected in the research of such lawyers as A.V. Artemov ^[1], Yu.G. Belyaeva ^[2], E.R. Bryukhina ^[3], I.V. Grigoriev ^[4], T.A. Zanko ^[5], A.V. Olshevskaya ^[6]. Despite the differences in the assessment of the essential content of the considered restriction of the right of a civil servant to perform other paid work: from permission to an outright ban (and a quasi-advisory procedure allowing the employer's representative to actually prohibit the performance of other paid work through the interpretation of the concept of "conflict of interest"), researchers agree that this restriction of the labor rights of civil servants is an element of the anti-corruption system. prohibitions ^[7]. Taking into account a comprehensive approach to combating corruption, expressed, inter alia, through the universal application of the category of "conflict of interest" to all state and municipal employees, as well as the specifics of the responsibility of civil servants for corruption offenses ^[8], it seems logical to systematically and universally regulate the issue of restricting the rights of civil servants to perform other paid part-time work. To confirm this assumption, we turn first of all to the Institute of State Civil Service of the Russian Federation – according to Federal Law No. 79-FZ dated 07/27/2004 "On State Civil Service of the Russian Federation", a civil servant has the right to perform other paid work, provided that the employer's representative is notified in advance of the relevant intention and, if this does not entail a conflict of interests. If the activity is paid exclusively at the expense of foreign states, international and foreign organizations, foreign citizens and stateless persons, the civil servant will need written permission from the employer's representative.

Until 2005, in accordance with Federal Law No. 119-FZ dated 07/31/1995 "On the Fundamentals of the Civil Service of the Russian Federation", civil servants had the right to engage exclusively in pedagogical, scientific and creative activities. The corresponding approach has been retained for other types of public service, so Federal Law No. 76-FZ dated 05/27/1998 "On the Status of military personnel" establishes that military personnel are not entitled to engage in other paid activities, with the exception of pedagogical, scientific and other creative activities, if it does not interfere with the performance of military service duties. At the same time, pedagogical, scientific and other creative activities cannot be financed exclusively from the funds of foreign states, international and foreign organizations, foreign citizens and stateless persons.

Federal Law No. 342-FZ dated 11/30/2011 "On Service in the Internal Affairs Bodies of the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation" established that part-time work of employees of the internal affairs bodies is not allowed, except for pedagogical, scientific and other creative activities that do not lead to a conflict of interest and do not entail This leads to a deterioration in the employee's performance of duties for a position in the internal affairs bodies. At the same time, these activities should not be financed exclusively from the funds of foreign States, international and foreign organizations, foreign citizens and stateless persons. The same approach is proposed by Federal Law No. 197-FZ dated 07/19/2018 "On Service in the Penal Enforcement System of the Russian Federation and on Amendments to the Law of the Russian Federation "On Institutions and Bodies Executing Criminal Penalties in the Form of Imprisonment".

The above examples offer 3 possible options for carrying out other paid activities by civil servants with prior notification of the employer's representative:

1. It is allowed to perform any other paid work, if its performance does not entail a conflict of interest – government civil servants;
2. Only pedagogical, scientific and other creative activities are allowed, if they do not interfere with the performance of duties – military personnel;
3. Pedagogical, scientific and other creative activities are allowed, if it does not lead to a conflict of interest and does not entail a deterioration in the performance of duties by an employee in a position – employees of internal affairs bodies.

In addition, only State civil servants have the right, with the written permission of the employer's representative, to engage in activities paid exclusively at the expense of foreign States, international and foreign organizations, foreign citizens and stateless persons.

Taking into account the above, let us draw attention to one of the principles of the construction and functioning of the civil service system, established by Federal Law No. 58-FZ dated 05/27/2003 "On the Civil Service System of the Russian Federation" – the unity of the legal and organizational foundations of the civil service, which presupposes the legislative consolidation of a unified approach to the organization of the civil service. In fact, the establishment of different approaches to the implementation of the constitutional right of civil servants to work is considered by a number of researchers as contrary to the declared principle of unity of legal and organizational foundations ^[9]. Difficulties also arise with defining the essential content of the terms "pedagogical activity", "scientific activity" and "other creative activity", for example, the actual prohibition of civil servants to engage in tutoring follows only from the totality of the prohibition to engage in entrepreneurial activity personally or through proxies, established by the Federal Law "On the State Civil Service of the Russian Federation", and the prohibition to consider the income of state and municipal employees, with the exception of income from renting (hiring) residential premises, as an object of taxation on professional income (in accordance with Federal Law No. 422-FZ of 11/27/2018 "On conducting an experiment to establish a special tax regime "Tax on professional income"). Such an approach only translates the tutoring activities of civil servants into the sphere of the shadow economy. At the same time, there is no evidence that tutoring as a subspecies of pedagogical activity carries increased corruption risks or may increase the likelihood of a conflict of interest, thus, such a ban looks unjustified.

In addition, the establishment of even the theoretical possibility of a state civil servant to engage in activities paid exclusively at the expense of foreign States, international and foreign organizations, foreign citizens and stateless persons contradicts the general direction of development of legislation in this area. In this context, it should be noted that the ban on the implementation of teaching, scientific and other creative activities funded exclusively from the funds of the above-mentioned persons is valid even for municipal employees who fill the position of head of the local administration under a contract.

In order to improve the consistency of the regulatory legal regulation of the right of civil servants to perform other paid work, it seems possible to turn to the experience of regulating this issue in a number of CIS member states. A comparison of approaches to the normative legal regulation of the institution of public service in general and this aspect in particular in states with a common historical base in the form of the USSR public service system is of considerable scientific and practical interest.

Let us turn to the experience of the Republic of Uzbekistan, where in 2022, for the first time in 30 years of independence, the law on state civil service was adopted – the Law of the Republic of Uzbekistan dated 08.08.2022 No. ZRU-788 "On State Civil service", according to which civil servants are not entitled to engage in entrepreneurial activities, as well as other paid activities, except pedagogical, scientific and creative ^[10]. The same approach is reflected in the Law of the Republic of Uzbekistan dated 08/29/2001 No. 257-II "On Amendments and additions to the Law of the Republic of Uzbekistan "On the Prosecutor's Office" and the Decree of the President of the Republic of Uzbekistan dated 09/12/2019 No. PP-4447 "On approval of the Regulations on the procedure for military service by citizens of the Republic of Uzbekistan" (provided that this activity does not interfere with the performance of military service duties), while the Law of the Republic of Uzbekistan dated 09/16/2016 No. ZRU-407 "On Internal Affairs bodies" prohibits employees from engaging in other types of paid activities other than scientific and pedagogical – excluding the right of employees of internal affairs bodies to engage in creative activities in this context looks like an arbitrary reduction in the scope of their rights.

The Law of the Republic of Belarus dated 06/01/2022 No.175-Z "On Civil Service", which regulates the issues of civil service, military service and service in paramilitary organizations, establishes a ban for civil servants to perform other paid work not related to the performance of official duties at the place of primary service, except for pedagogical (in terms of implementing the content of educational programs) scientific, cultural, creative activities and medical practice. Such an approach, on the one hand, more clearly regulates the issue of teaching activities, and on the other hand, additionally allows civil servants to practice medicine. A similar approach is established by the Law of the Republic of Belarus dated 07/17/2007 No. 263-Z "On Internal Affairs Bodies of the Republic of Belarus".

The Law of the Republic of Kazakhstan dated 11/23/2015 No. 416-V "On the Civil Service of the Republic of Kazakhstan" and the Law of the Republic of Kazakhstan dated 01/6/2011 No. 380-IV "On Law Enforcement service" prohibit employees from engaging in other paid activities, except for pedagogical, scientific and other creative activities. At the same time, this prohibition is considered as one of the key elements of combating corruption and preventing conflicts of interest ^[11].

The Law of the Republic of Azerbaijan dated 07/21/2000 No. 926-IQ "On Civil Service" differentiates the restrictions under consideration, a civil servant can only engage in scientific and creative activities, and with the consent of the head of the state body in which he serves, pedagogical and, in general, other paid activities. At the same time, in accordance with the Law of the Republic of Azerbaijan dated 10/28/1999 No. 727-IQ "On Police", a police officer can only engage in scientific, pedagogical and creative activities (without obtaining consent from the head of a state body). Similar restrictions are also established by the Law of the Republic of Azerbaijan dated 07.12.1999 No. 767-IQ "On the Prosecutor's Office", which separately stipulates a ban on prosecutors, investigators and operatives of the prosecutor's office to engage in political activities and to belong to political parties; in the absence of a normative consolidation of the concept of "political activity", such an approach is seen as potentially narrowing the scope of political rights and freedoms of relevant citizens without sufficient grounds.

A different approach is presented in the Law of the Kyrgyz Republic dated 10/27/2021 No. 125 "On State Civil Service and Municipal Service", according to which state and municipal employees have the right, in agreement with the head, to engage in educational, expert, scientific and other creative activities in the relevant professional field, as well as self-employment (according to the list of activities determined by By the Cabinet of Ministers of the Kyrgyz Republic), additionally paid from funds not prohibited by law. At the same time, the implementation of these activities should not affect the quantity and quality of work performed at the employee's place of work. In this case, a significant expansion of the permissible types of other paid activities is compensated by a conciliation procedure. At the same time, the Law of the Kyrgyz Republic No. 102 dated 07/25/2019 "On service in law enforcement agencies of the Kyrgyz Republic" prohibits employees from engaging in any paid activity with the exception of expert, scientific, teaching, physical culture, sports and creative activities. The Law of the Kyrgyz Republic dated 07/01/1992 No. 930-XII "On the status of military personnel" contains much less clearly defined conditions, firstly, the act guarantees the freedom of scientific, technical and artistic creativity of military personnel (without prejudice to the performance of military service duties), and secondly, establishes the right of the commander of a military unit to personally allow military personnel (with the exception of persons undergoing military service) part-time work related to scientific, pedagogical, inventive, expert activities at state, public and private enterprises, institutions and organizations. Such an approach creates legal uncertainty, promotes the spread of corruption and can lead to unjustified restriction of citizens' rights.

The Law of the Republic of Moldova dated 07/04/2008 No. 158-XVI "On Public Office and the Status of a Civil servant", which regulates the legal status of all persons engaged in activities in the public interest, with the exception of those who can be called persons holding public office, i.e. the President, deputies, ministers and others, establishes a more comprehensive approach – state employees do not have the right to carry out other paid activities in any organizations whose activities are somehow related to the competence of the body in which they perform public service. This prohibition does not apply to scientific, teaching and creative activities. In fact, such a rule is aimed at preventing a conflict of interest, but due to the established exceptions, it does not prevent its occurrence.

The Law of the Republic of Tajikistan dated 05.03.2007 No. 233 "On Civil Service" establishes the right of civil servants to engage in scientific, creative and teaching activities. The Law of the Republic of Armenia dated 03/29/2018 No. ZR-205 "On Civil Service", the Law of the Republic of Armenia dated 11/29/2017 No. ZR-195 "On Military Service and the status of a Serviceman" and the Law of the Republic of Armenia dated 12/01/2017 No. ZR-198 "On the Prosecutor's Office" prohibit civil servants from performing other paid work, except scientific, pedagogical and creative. The same restrictions are established by the Law of Turkmenistan dated 03/26/2016 No. 363-V "On Public Service".

Having considered the legislative regulation of the issue of performing other paid work by civil servants in the CIS member states, several conclusions can be drawn:

1. The restriction of the right of civil servants to perform other paid work is enshrined in the legislation of all CIS member States;
2. In most cases, the ban on performing other paid work does not apply to pedagogical, scientific and creative activities (with a number of additional exceptions or assumptions, so employees of the internal affairs bodies of the Republic of Uzbekistan do not have the right to engage in creative activities, and civil servants of the Republic of Belarus have the right to conduct medical practice);
3. As a rule, the legislation of the CIS member states establishes a uniform ban on performing other paid work with the same exceptions, which in some cases is due only to the regulation of the rights and obligations of all civil servants by one regulatory legal act (for example, the Republic of Moldova, the Republic of Turkmenistan).

With some assumptions, all CIS member states can be divided according to the following models of restricting the right of civil servants to perform other paid work:

1. The conservative model prohibits all civil servants, regardless of the type of service, from engaging in any other paid activity except for pedagogical, scientific, creative, etc.: the Republic of Uzbekistan, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Tajikistan, the Republic of Armenia, Turkmenistan.
2. The variable model allows for the performance of other paid work by all or some civil servants under certain conditions (permission from the employer's representative, absence of a conflict of interest, etc.): the Russian Federation, the Kyrgyz Republic, the Republic of Azerbaijan, the Republic of Moldova.

Regarding the further development of the regulatory legal regulation of the right of civil servants to perform other paid work in the Russian Federation, it seems possible to use the experience of the Republic of Belarus in terms of establishing the possibility for civil servants to conduct paid medical practice in their spare time. In terms of its content and the presence of corruption-causing factors, medical practice is similar to pedagogical, scientific and other creative activities, and in conditions of personnel shortage of both doctors and paramedical personnel (according to data from the speech of the Minister of Health of the Russian Federation M.A. Murashko (Transcript of the meeting of the State Duma of the Federal Assembly of the Russian Federation on November 23, 2022)) liberalization this prohibition is socially justified. Also, in order to ensure the unity of the legal and organizational foundations of public service and taking into account the considered foreign experience, it is possible to further mitigate the prohibition of military personnel and persons undergoing other types of public service to perform other paid work, with the exception of pedagogical, scientific and other creative activities. The liberalization of the relevant prohibition, following the example of the civil service, will not only contribute to improving the consistency of the regulatory legal regulation of the institution of public service, but also expand the limits of the exercise of the labor rights of civil servants.