In its judgement of 14 January 2011 (12 Bf 263/10.F), the Higher Administrative Court of Hamburg reduced the remuneration of a teacher who had stored child pornography files on his private computer by 20% for a period of three years in disciplinary proceedings. This means that the civil servant can continue to work for the Free and Hanseatic City of Hamburg.
The defendant civil servant is employed as a teacher by the plaintiff, the Free and Hanseatic City of Hamburg, and most recently worked at a comprehensive school. In 2004, the Elmshorn Local Court had sentenced him to a fine of 60 daily rates because child pornography files had been found on his private computer in 2002. The plaintiff then filed a complaint with the Hamburg Administrative Court with the aim of dismissing the civil servant from his position as a civil servant. The Administrative Court dismissed the civil servant in 2007. The Higher Administrative Court confirmed this decision in 2008 (Case No. 12 Bf 42/08). In response to the civil servant's appeal, the Federal Administrative Court overturned the decision of the Higher Administrative Court in August 2010 and referred the case back to the Higher Administrative Court for a new decision. The court has now overturned the dismissal decision and imposed the next possible disciplinary measure, a reduction in salary.
In its reasoning, the Higher Administrative Court stated that according to the judgement of the Local Court, the defendant had committed a criminal offence for possessing child pornography. He had thus culpably violated his obligation as a civil servant to do justice to the respect and trust required by his profession by his conduct both within and outside the service (§ 59 sentence 3 HmbBG old version). The possession of child pornographic images seriously impaired the trust placed in teachers and the public image of teachers who were civil servants.
The type and extent of the disciplinary measure required depended on the seriousness of the official's misconduct as well as on his or her overall conduct on and off duty. At the time of the official's offence, the possession of child pornography - in contrast to later offences - was only punishable by imprisonment for up to one year (§ 184.5 of the Criminal Code, old version). Therefore, according to the Federal Administrative Court, the disciplinary measure to be imposed on teachers as a rule was to be demotion to a lower-paid post. This was appropriate here. It was true that the disciplinary proceedings had lasted a long time and that the civil servant had not previously been guilty of anything. However, he had not acknowledged his misconduct and the files stored contained images, some of which depicted particularly serious abuse of children. The plaintiff could no longer use the defendant as a teacher in class.
Since demotion is excluded for reasons of career law, only a reduction in remuneration can be considered. A reduction of 20 % for three years was the maximum permissible measure.
Judgement of the OVG Hamburg of 14 January 2011 (12 Bf 263/10.F)
Source: Press release of the OVG Hamburg
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
