An Exploration of Civil Servants' Freedom of Expression Regarding Their Job Content

Introduction

In a free and open democratic society, everyone has the opportunity to realize self-actualization, gain recognition from others, and bravely express themselves. Practitioners in all walks of life frequently disclose the ins and outs of their work, allowing outsiders to gain a glimpse of it, thereby achieving the purpose of mutual understanding and awareness across industries. When the employer is a private entity and the business handled by employees involves trade secrets or the preservation of the company's image, employers and employees often restrict the employees' freedom of expression regarding work-related matters through confidentiality clauses. In private-sector labor-management relationships, since both parties are protected by constitutional provisions on fundamental rights, limiting the employee's freedom of expression to a limited extent through contract formation achieves the interest of protecting private enterprises under the constitutional guarantees of the right to property and freedom of business. As long as neither party's rights are unduly favored, this is generally consistent with the theory of reconciling conflicts of people's fundamental rights. However, in recent years, under the consideration of protecting urgent public interests, there have also been legislative examples amending labor confidentiality agreements to legally protect internal whistleblowing by employees.

In contrast, within the public-sector labor relationship of citizens holding public office, civil servants have traditionally been known for maintaining their official image and not readily disclosing the content of their duties to the outside world. When a civil servant uses their job content as the subject of external expression, and the affiliated agency deems it detrimental to the agency's image, can the civil servant's freedom of expression be directly prohibited, or can the civil servant be indirectly disciplined to restrict the exercise of their freedom of expression when it is disadvantageous to the agency's image? Except where the content of their duties involves secrets and may be restricted by law from public knowledge, the duties performed by civil servants fall squarely under public affairs. This emphasizes government information transparency, and the vast populace in a democratically supervised country has the right to know, discuss, and further form public opinion. Given that the public's knowledge of the actual operation of public administration is directly linked to the sound operation of democratic politics—something that modern democratic and constitutional states should make the utmost effort to protect—it is necessary to examine whether the restrictions historically placed on civil servants' freedom of expression need to be maintained, how to balance civil servants' freedom of expression with the functional operations of public agencies free from arbitrary internal disclosures of job content, at a time when public agencies still punish staff purely on the grounds of improper speech and conduct by affiliated personnel.

This article primarily explores how to balance the rights and interests of individual civil servants and their affiliated agencies in a democratic, open society that emphasizes human rights protection, drawing from aspects such as civil servants' status obligations, the nature of official statements, the modes of expression, the impact on agencies, and the possibility of checks and balances by public agencies on the speech of their personnel.

Analysis of the Nature and Effects of Civil Servants Expressing Opinions Externally Regarding Job Content

The Constitution guarantees people the freedom to take civil service examinations and hold public office, as well as the freedom of speech, publication, authorship, and teaching. Therefore, when civil servants, as citizens performing official duties, express opinions externally on matters related to their job content, they may either be speaking on behalf of their affiliated agency or expressing purely personal opinions. In any event, when civil servants express opinions on matters related to their duties, the situation should basically not exist where they are neither representing the agency nor expressing personal opinions. As for how to categorize such expression, a civil servant's status and the nature of their duties can serve as a benchmark.

1. Civil Servants as Spokespersons for Their Affiliated Agency

   When civil servants are agency heads or political appointees with decision-making authority and leadership positions, aside from expressing opinions outwardly in official settings in the capacity of agency spokespersons—which undoubtedly represents the agency entirely rather than the individual—when they express opinions in other official and unofficial settings, given that heads and political appointees represent their affiliated agencies during their tenure without variation across different settings, any form of expression regarding matters within the scope of their duties should be regarded as speech representing the agency. Although such speech is made by a civil servant, its nature is that of the agency engaging in external opinion communication through its representative, falling under government public relations work. Since all state organs are obligors of fundamental rights, agency spokespersons cannot claim a freedom of expression that state organs themselves do not possess.

   This type of opinion expression, made by civil servants holding specific positions or special statuses regarding matters within the scope of their duties, is inextricably linked to their affiliated agency and does not involve the boundary lines of freedom of expression. However, aside from being able to invoke the agency's external public relations authority, it is also subject to the essence of that public relations mission. Therefore, under the division of duties among various agencies, the content of a statement may exceed the division of authority regulations of the agency. Based on the fact that statements regarding matters outside the agency's jurisdiction produce no legal effect on that agency and cannot be categorized as speech by an agency spokesperson, regardless of whether the speech concerns matters within the agency's jurisdiction, if the outwardly expressed matters have already been legally classified as secrets, there is a possibility of violating provisions such as the crime of divulging secrets under the Criminal Code. Even if one can claim to be within the scope of the agency's external public relations mission authority, the assumption of relevant responsibility cannot be exempted.

2. Civil Servants as Holders of the Fundamental Right to Freedom of Expression

   Aside from serving as agency spokespersons speaking on official matters, civil servants, regardless of rank, in today's world that has bid farewell to the special power relationship theory and values the protection of people's fundamental rights, should be entitled to claim freedom of expression when expressing opinions on matters concerning their job content, autonomously deciding when and in what manner to express opinions outwardly to strive for recognition. Whether the expression in a specific case exceeds the boundaries of moderate speech, constituting an infringement on others' rights or a violation of obligations, does not affect the civil servant's status as a fundamental rights holder of freedom of expression, though they may not claim to be free from any restrictions either.

   The aforementioned agency heads and political appointees who possess decision-making authority and leadership positions act in the vast majority of cases as representatives or spokespersons for their affiliated agency or government and cannot claim freedom of expression. However, because they are public officials not recruited and appointed through statutory competitive examinations—including popularly elected executive heads responsible for decision-making and leadership outside the legislative power, specially appointed agency heads, and political appointees—such public officials attain their positions directly or indirectly through electoral victory and lack statutory job security. Aside from having to take responsibility for their own policies, when they wish to retain their positions or win re-election, they frequently must publicly defend their decisions and strive for the recognition of voters.

   For this type of civil servant, their speech on matters related to their duties is more authoritative than their speech on matters unrelated to their duties, because their official speech represents their personal perspective on public affairs. Under a democratic political system where the success or failure of an election is determined by the quality of policies, this category of civil servants should be permitted to claim freedom of expression and become holders of the fundamental right to freedom of expression, unless their statements are deemed to be those of an agency spokesperson. However, in addition to bearing the legal responsibilities of exercising freedom of expression, they are also subject to direct political supervision by the legislature and voters.

   As for the majority of civil servants who do not undertake spokesperson duties and whose ranks are not equated with their affiliated agencies, when they express opinions on matters related to their job content, regardless of the impact of the expressed content on their affiliated agency, under the understanding that the protection of freedom of expression does not vary by occupational category, this does not hinder civil servants from becoming holders of the fundamental right to freedom of expression. Nevertheless, when civil servants exercise their freedom of expression, if it conflicts with their status-related obligations, it is still necessary to determine based on the circumstances of the individual case whether and to what extent their freedom of expression should be restricted.

3. The Effect of a Civil Servant's Act of Expression Is Determined by External Reactions

   When a civil servant outwardly expresses opinions regarding official matters, if the content has a negative effect on the image of their affiliated agency, because they are persons performing public duties, initial recipients of such messages are likely to believe them to be true based on the view that "there is no smoke without fire." Moreover, because it is not tolerated by the affiliated agency, when the civil servant expresses themselves under their real name, its credibility is usually even higher. Conversely, when a civil servant makes an expression beneficial to the agency's image, given the public's general perception that state organs should act in accordance with the law, it tends not to produce a favorable impact on the agency and may even be suspected of over-promotion, yielding counterproductive results.

   Although the general public tends to believe in scandals and, driven by curiosity, desires to obtain information from the inside, making it easy for a civil servant with a desire for expression to obtain external encouragement, due to group polarization, those who air dirty linen in public are usually isolated by their affiliated group, subsequently exhibiting extreme speech and conduct, which in turn diminishes the credibility of their prior words and deeds. Therefore, when internal whistleblowing occurs, unless the facts of the individual case are clear and straightforward, it constitutes a so-called "Rashomon" scenario where outsiders find it difficult to form a definitive view based on only one side's narrative.

   Furthermore, after numerous sensationalized exclusive reports claimed by the media to be true are subsequently proven to be erroneous and distorted works, individuals with even a slight understanding of local customs and practices gradually hold a skeptical attitude toward circulating rumors and do not easily swallow them whole. Therefore, he who strikes first does not necessarily have the upper hand, and he who accuses harshly is not necessarily in the right. The entangled parties, regardless of the sequence of their voices, have an equal opportunity to express themselves and strive for recognition. When a civil servant expresses content involving the reputation of their affiliated agency through expression, provided it does not constitute a tort or criminal offense under civil and criminal law, the appropriate response for the affiliated agency—consistent with the operation of speech—is to likewise clarify and explain through external expression. Any other course of action risks improperly disrupting the normal development of the expressive effect produced by the act of expression, and displays a disregard for the existence of public opinion in the marketplace of ideas. It also reveals a side where an overreacting government agency appears unconfident and faltering, making it all the more difficult to gain the recognition of the general public.

Obligations of Civil Servants' Official Conduct

After citizens exercise their fundamental right to take civil service examinations and hold public office, thereby entering into a public-law service relationship with the state, they enjoy statutory rights to status security while also bearing special obligations toward the state. In addition to complying with legal provisions applicable to all people, they must follow unique legal provisions due to their civil servant status, which typically subjects their constitutionally protected rights to considerable restrictions¹. Among these laws specifically enacted for civil servants that directly impact the exercise of freedom of expression, the foremost is the Civil Service Employment Act enacted and promulgated in the 28th year of the Republic (1939). Because this act was enacted before the implementation of the Constitution, some of its provisions must be updated and interpreted with the times to align with the legal principles of today's democratic and open society.

1. Duty of Loyalty

   Article 1 of the Civil Service Employment Act provides: "Civil servants shall abide by their oaths, be loyal and diligent, and execute their duties in accordance with laws and orders." Article 4 of the Civil Service Appointment Act also provides: "When agencies appoint civil servants, attention shall be paid to their moral character and loyalty to the state." This serves as the primary legal basis for civil servants' duty of loyalty. Because the scope of loyalty is difficult to grasp, it is not easy to define what actions or omissions by a civil servant will meet the requirements of this provision. However, viewed conversely, determining which circumstances constitute a lack of loyalty should be easier to grasp. In this regard, Judicial Yuan Interpretation No. 618, which addressed the restriction that people from the Mainland China area must have obtained a national ID card for 10 years before becoming civil servants, elaborates on the relationship between individuals and the state when taking civil service examinations and holding public office, which may serve as a reference: "Once appointed by the state, civil servants enter into a public-law service relationship and a duty of loyalty with the state. The exercise of their duties involves the state's public power; not only must they comply with laws and regulations, but they must also actively consider the overall interests of the state, adopting all actions and decisions favorable to the state." In other words, when individuals fall into a conflict of interests due to issues of nationality attribution, if they are objectively deemed incapable of making actions or decisions favorable to their current state of allegiance, they fail to meet this requirement of devotion and loyalty.

   For civil servants born and raised within the territory whose national identity is beyond question, what kind of behavior constitutes a violation of the duty of loyalty depends on how one understands the word "loyalty": in a closed society, any behavior deemed disrespectful to the state may be regarded as a violation of a civil servant's duty of loyalty, let alone engaging in any criticism that affects the agency's reputation. However, in a democratic and open society, the principle of "spare the rod and spoil the child" also applies to people's criticism of government agencies. Therefore, civil servants capable of self-reflection and examining shortcomings in the execution of their duties, even if not encouraged, should not be prohibited; rather, self-criticism directed internally by civil servants should be treated with tolerance, unless there are concrete signs showing that a civil servant's conduct is indeed "biting the hand that feeds them" and has exceeded the permissible scope of rational review, upon which their responsibility may be pursued for violating the duty of loyalty to their duties, agency, and state².

   Therefore, although the duty of loyalty is the most basic requirement placed on civil servants³, it can only be used as a ground to pursue legal liability for a civil servant's breach of duty under special circumstances. This avoids the infinite expansion of the duty of loyalty, which would lead civil servants to form cliques, persecute political opponents, exclude dissenters, replace substantive action with formalistic loyalty, and even treat "blind loyalty" as a guiding principle. As for civil servants' freedom of expression, if breach of the duty of loyalty is to be used as a ground for restriction, unless there is clear evidence in the individual case of a breach of other legal obligations, it is basically unjustified because freedom of expression involves personal freedom of thought and ideas, the meaning of speech possesses multiple possible interpretations, and the effects produced by speech cannot be determined solely by the speaker.

2. Duty of Obedience

   Unless they are judges with guaranteed independent exercise of judicial power or members of independent commissions, civil servants generally are subject to the principle of subordination of subordinates to superiors. Regarding this duty of obedience, the foremost provisions are found in the amended Civil Service Employment Act and the Civil Service Protection Act. Article 2 of the Civil Service Employment Act provides: "Subordinates have a duty to obey commands issued by superiors within the scope of their supervision. However, if subordinates have opinions regarding commands issued by superiors, they may state them at any time." Article 17 of the Civil Service Protection Act provides: "Civil servants have a duty to obey commands issued by superiors within the scope of supervision. If they consider such commands to be illegal, they have a duty to report this. If the competent superior considers their command not to be illegal and issues it in writing, the civil servant shall obey; the responsibility arising therefrom shall be borne by that superior. However, if the command violates criminal law, civil servants have no duty to obey. In the circumstances of the preceding paragraph, if the competent superior does not issue the command in writing, the civil servant may request it to be in writing; if the competent superior refuses, the command shall be deemed withdrawn."

   Synthesizing the provisions of the two preceding articles, a civil servant's duty of obedience targets commands issued by superiors within the scope of their supervision, and is limited to conditions where the superior's commands do not conflict with criminal law provisions. Imposing a duty of obedience on civil servants undoubtedly facilitates the exercise of superiors' command and supervision functions as well as the smooth execution of civil servants' duties. However, whether a superior's scope of supervision extends to all words and deeds of a civil servant remains open to further exploration.

   Serving in the public sector as a career choice for citizens, obeying superiors' instructions regarding the execution of duties—thereby enabling the core work of this profession to be smoothly completed—is a fundamental duty. As for instructions issued by superiors unrelated to the execution of duties, they are presumably not covered simply by the duty of obedience and must be grounded in other provisions concerning obligations that civil servants must observe. Therefore, relying on the rule that civil servants must not breach the duty of obedience as a basis for restricting civil servants from speaking out externally on matters related to their job content is insufficient.

Duty to Maintain Decorum

Article 5 of the Civil Service Employment Act provides: "Civil servants shall be honest, clean, prudent, and diligent, and shall not engage in arrogant, greedy, lazy, extravagant, dissipated, wandering, gambling, or drug-taking behaviors, or any other behaviors sufficient to damage their reputation." This is the civil servant's duty to maintain decorum. This obligation requires civil servants' speech and conduct to meet societal expectations. When violated, it can become grounds for personnel disciplinary action. Relevant provisions include Article 12, Paragraph 3, Subparagraph 5 of the Civil Service Performance Evaluation Act concerning cases of two major demerits at once: "plotting unlawful benefits, or having improper speech and conduct that seriously damages the reputation of the government or civil servants, with concrete evidence"; and Article 13, Paragraph 1, Subparagraph 2, Item 2 of the Enforcement Rules of the Civil Service Performance Evaluation Act concerning cases of one major demerit in regular evaluations under Article 12, Paragraph 1, Subparagraph 1 of the Act: "violating discipline or having improper speech and conduct that damages the reputation of civil servants, or falsely accusing or insulting colleagues, with concrete evidence."

So-called improper speech and conduct generally refer to speech and behaviors that do not yet reach the level of violating criminal law provisions but are already intolerable to common social perceptions. The rationale for requiring civil servants' speech and conduct to be proper and upright is none other than the fact that they are citizens selected through competitive examinations and entrusted by the state to exercise public power. Therefore, they should pay greater attention to preserving their reputation than ordinary people and serve as role models for the public. Such a view carries remnants of the paternalistic mindset of the imperial era. From today's standards, the reason for imposing a duty on civil servants not to have improper speech and conduct can be based on whether their character is suitable for executing public power and whether there is a lower probability of abusing official authority for personal gain.

When using a civil servant's decorum as an indicator to nip evils in the bud, if their speech and conduct cross the line of what is demanded of citizens holding public office at that time, they should be corrected. Because an individual's externalized speech and conduct are deeply influenced by the morals and customs of the time and place, there is no uniform standard to follow. Although using concrete evidence proving that the government's or civil servant's reputation has been seriously damaged, or that colleagues have been falsely accused or insulted, as criteria for performance evaluation and discipline provides relatively clear guidance, it is still swayed by questions of how to determine whether reputation has been impaired. Among these, whether colleagues have been falsely accused or insulted can still be judged from the perspective of the specific targeted individual; however, for abstract government reputation and collective civil servant reputation, it must first be confirmed whether agencies and groups possess the right to reputation⁴, and if so, how to determine whether the reputation of the abstract agency and the concrete group has been impaired, and to what extent.

Duty of Confidentiality

Compared to the aforementioned obligations which do not directly regulate civil servants' acts of expression, the duty of confidentiality directly implicates civil servants' freedom of expression. According to Article 4 of the Civil Service Employment Act: "Civil servants have an absolute duty to maintain the confidentiality of government agencies. Confidential matters, regardless of whether they are within one's jurisdiction, shall not be leaked, and this duty continues even after leaving office." Furthermore, "Civil servants shall not arbitrarily express remarks concerning their duties, in a private capacity or in the name of representing the agency, without the permission of their superior." Thus, civil servants not only have an absolute duty to keep government agency secrets—whether during their tenure or after leaving office—and must not leak them externally, but they also have a duty to obtain permission from a superior before expressing remarks concerning their duties.

Once official matters are legally designated as secrets that must be kept confidential, everyone is subject to restriction and prohibited from unlawfully leaking them. Therefore, civil servants must absolutely maintain confidentiality regarding matters within and outside their jurisdiction, in public and private settings, and in the capacity of an agency spokesperson or in a private capacity; this is beyond doubt. Even today, when government information transparency is vigorously promoted, government secrets designated in accordance with the law likewise serve as grounds for restricting government information transparency, though this is limited to information that truly needs to be kept confidential and has been designated as a secret through statutory procedures⁵. By comparison, whether the rule that civil servants may not express remarks regarding their duties externally without permission remains applicable today requires further analysis.

When the rule requiring a superior's permission before expressing remarks on official duties fails to distinguish between the subjects being regulated—applying identically to political appointees and career civil servants alike—it conflicts with the operating principles and realities of democratic politics. After all, lacking a superior's permission would become an excuse to obstruct news media from obtaining information from government agencies, causing the function of public opinion in supervising the government to be stifled. Meanwhile, political appointees who dare not actively voice support for government policies would be seen as timid and unable to win voter recognition to win elections. In this regard, the Examination Yuan passed a legislative amendment draft at its 287th meeting of the 9th term on June 27, 2002, adding the provision: "However, administrative heads who hold the status of political appointees shall not be subject to this restriction." Nevertheless, this amendment has yet to be finalized⁶.

Moreover, the rule prohibiting external remarks on duties without permission also fails to distinguish the nature of the remarks concerning duties, which can be roughly categorized into three major types: processes of official duty execution, content promoting the agency's reputation, and scandals occurring within the agency. In a democratic era, processes of official duty execution that do not involve government secrets, as well as information on events both positive and negative to the agency's reputation, are necessary information for citizens to receive government services and supervise the government. Why must they be disclosed externally only with a superior's permission? Does such a restrictive rule merely provide government agencies with an opportunity to cover up scandals?

Finally, the statutory term used in this provision is "remarks" (談話). It remains doubtful whether acts of expression other than remarks—such as writing books in text format or making explicit satires and implicit metaphors through drawings—are also included. Overall, the requirement to obtain a superior's permission before expressing duty-related remarks undoubtedly constitutes a rule restricting civil servants' freedom of expression.

An Examination of Internal Whistleblowing as a Civil Servant's Duty

The relevant provisions of the current Civil Service Employment Act basically maintain the core framework established during the tutelage period prior to the implementation of the Constitution, which prioritized upholding administrative ethics, office order, and discipline within agencies, without considering civil servants' freedom of expression in a democratic and open society. Although such legislation, formulated in the absence of human rights protection concepts, still holds necessity today for the major public interest of ensuring the functional operation of government agencies, it must also be moderately adjusted so as not to cause citizens who choose public service as a career and government agencies to become symbols of conservatism and backwardness. As public-sector employees, civil servants must comply with the special obligations arising from their service relationship with the state, yet they cannot stand outside the new developments in overall labor laws.

Recently, advocacy has suggested work ethics, calling upon practitioners in all industries to be guided by the preservation of the public interest, thereby exerting the functions of exposing internal malpractice and upholding justice alongside traditional organizational ethics⁷. Although there is as yet no similar legislation in laws concerning civil servants, thanks to the frequent occurrence of food hygiene and safety scandals and heavy media promotion, Taiwan's first legislative example of its kind appeared in the Act Governing Food Safety and Sanitation amended in 2013. According to Article 50 of the Act: "I. Employers shall not dismiss, transfer, or take other adverse personnel actions against workers for disclosing violations of this Act to competent authorities or judicial agencies, acting as a witness in legal proceedings, or refusing to participate in behaviors violating this Act. II. Dismissal, demotion, or wage reduction carried out by employers or persons exercising managerial authority on behalf of employers in violation of the preceding paragraph shall be null and void. III. Persons other than employers who have participated in behaviors violating this Act that entail criminal liability, yet disclose this to competent authorities or judicial agencies and thereby assist in cracking the employer's violation of this Act, shall have their sentences mitigated or exempted." The legislative reasoning for this article states that the newly added provision "references foreign legislative examples concerning whistleblowers and state's evidence"⁸.

This is a case in private-law labor relationships where, based on the maintenance of food hygiene and safety as a major public interest, special legislation is enacted to protect practitioners who exercise moral courage by placing work ethics ahead of organizational ethics to expose illegal employer conduct. Such provisions have already exerted a corrective effect on the principle of freedom of contract in the private-law sphere. Compared to private-law labor relationships which primarily involve the private-law rights of employers and employees, when a major public interest arises therein, employers can be compelled to yield their private-law rights. By contrast, the public-law service relationship established between civil servants and the state primarily involves unadulterated public interest. When a civil servant's words and deeds aim to expose official malpractice and thus violate obligations to maintain agency ethics and discipline, if such situations cannot be handled akin to internal whistleblowing in the private sphere, does this not imply that public agencies are more conservative, backward, and set in their ways than private enterprises? Therefore, legislation concerning civil servants ought indeed to be amended to keep pace with the times.

Conflicts Between Civil Servants' Freedom of Expression and the Power of Their Affiliated Agencies

Civil servants' freedom of expression is a fundamental human right protected by the Constitution, while the smooth operation of government agency functions is a prerequisite for the exercise of state functions and a value that constitutional order must protect⁹. Both possess constitutional status, yet neither alone can claim absoluteness. Therefore, how to seek appropriate solutions when the two conflict becomes the ultimate goal for relief agencies in recognizing facts and applying the law in contentious cases.

1. Potential Reasons for Civil Servants Expressing Themselves in Violation of Agency Ethics

   As frontline executors of duties, civil servants have without exception passed national competitive examination procedures and subsequently been appointed according to law; theoretically, they are among the more competent individuals. When they adapt to their duties, move past the initial unfamiliarity stage, and accumulate a period of work experience regarding matters within the scope of their jobs, they either continue execution using familiar methods consistent with established practices, or hope to innovate by integrating personal subjective will into their work. However, because the execution of public duties invariably affects people's rights and interests, bound by principles such as equality and predictability in a state governed by the rule of law, the methods of executing public duties can hardly undergo sudden and drastic reforms in a short period of time. Consequently, when civil servants follow methods of expression that meet agency ethical requirements—such as reporting to superiors and stating opinions—to submit constructive proposals concerning their duties, it is usually very difficult, save for rare exceptions, to shake the massive government machine. Therefore, after multiple mild attempts fail to yield expected outcomes, subsequent actions depend entirely on the individual's personality. Among these, one cannot rule out that civil servants who originally harbored reformist ideals, were bold in proposing new execution methods, and possessed the initial intention of enhancing the agency's reputation, upon considering themselves unrecognized talents unable to bring about prospective changes through positive methods, turn instead to severe criticism of the status quo in various ways to demonstrate that they do not go along with the crowd, thereby being categorized by superiors as headache-inducing elements who violate agency ethics and disrupt team harmony.

   Faced with such personnel—who harbor high expectations for the affairs under their charge, endure disillusionment, disappointment, and finally despair, leading their reaction methods to progress from mild suggestions and passive non-cooperation to stubborn resistance—the traditional practice of government agencies has been to invoke the statutory service obligation provisions mentioned above, imposing personnel disciplinary action on grounds such as improper speech and conduct and damaging the agency's reputation as a warning. Although most of these sanctions are minor and do not impair citizens' fundamental right to hold public office, their efficacy merely suppresses the rebellious actions of such civil servants on the surface. Barring extreme cases resulting in dismissal, such administrative disputes—where personnel disciplinary actions imposed by affiliated agencies for damaging agency reputation through improper speech and conduct are ultimately upheld upon administrative relief—yield only short-lived and superficial calm. Before retirement, the individuals still run the risk of repeating the same or other methods, and there is no guarantee that after retirement they will not utilize their status as retired citizens to continue whistleblowing, nor that other civil servants with similar personalities will not emulate them. Fundamentally, this is not an effective, root-and-branch way to handle disputes.

2. Analysis of Methods of Expression by Civil Servants Violating Agency Ethics

   • Primary Types

     When civil servants do not use the peaceful and rational methods approved by their affiliated agency to state opinions to superiors regarding job content matters, the most common method is drafting and sending anonymous whistleblower letters. Because they are typically unsigned or use false names, the receiving agency is unable to directly reply to them with the handling results. However, since the writers of such whistleblowing letters are civil servants executing duties, they can always pinpoint concrete allegations to some extent regarding job-related matters. Therefore, if the affiliated agency fails to take satisfactory actions within the whistleblower's self-imposed expected timeframe, they usually repeat the submissions again and again, and may simultaneously or subsequently forward them to higher-level agencies, legislative bodies, the Control Yuan, or even the Office of the President and other bodies that value public opinion feedback. Consequently, under the routine handling model where superior agencies order subordinate agencies to investigate and report back within a strict deadline, the accused agencies are constantly running around exhausted just to provide an account. Although the superior agencies handling these directly generally do not delve deeply into the written responses, anonymous whistleblowers do not need to give a complete account in their letters, nor do they need to supplement deficiencies within deadlines, appear in person to make statements and explanations, or suffer personnel disciplinary action from their affiliated agency if they carefully conceal their identity. Yet a single submission can throw the relevant agencies and handling personnel into disarray. Although this is not an upright approach, because its costs and risks are both extremely low, it has become the preferred method of expression for virtually the vast majority of those who do not follow "peaceful and rational" methods.

     The second method involves proactively publishing opinions in newspapers and media through readers' letters, or speaking out in mass media through passive interviews. Due to spatial limitations and editorial screening mechanisms in the media, mainstream media outlets rarely permit the publication of readers' letters whose phrasing is overly aggressive or whose content fails to spark public discussion. Furthermore, whether a reporter interviews a civil servant is decided by the media, not the civil servant. Generally speaking, opportunities for individual civil servants to actively or passively discuss job-related matters in the media are infrequent. A method akin to readers' letters is the publication of specialized books; although the threshold for publishing in Taiwan is not high, books still require a certain volume of text and, aside for well-known figures, generally require paying upfront fees for typesetting and printing, representing a definite financial barrier. Therefore, when readers' letters cannot satisfy the need for immediate expression, accepting interviews cannot be proactively initiated by individual civil servants, and publishing a book presupposes a certain financial capacity, utilizing dissemination or publication methods is generally not a primary option for civil servants intending to use job content as a subject of expression.

     The third method is voicing opinions through personal communication channels. With the development of personal communication software and the universal opportunity for anyone to register and set up dedicated communication platforms for free, civil servants, like other groups, race to use dedicated web pages or other methods to vent emotions and communicate with the outside world. In a democratic state governed by the rule of law where personal communication methods are regarded as a fundamental freedom of expression and no special regulatory measures are enforced, the presentation of a civil servant's personal website content is entirely determined by the user themselves. Consequently, all tendencies of speech flood the virtual world of the internet. Recently, with the continuous advancement of transmission technologies in personal communication devices, users can easily transmit a massive amount of text and images to friends in the virtual world. Therefore, unless it is a stagnant and rarely used webpage, even if users appear anonymously or under pseudonyms, they are easily identifiable. On such dedicated webpages or other exclusive platforms, users can autonomously decide all matters including content and receiving objects. Unless used in the workplace utilizing employer-provided equipment or application software unrelated to business execution—where use and usage time may be restricted by work rules—due to characteristics such as being free, immediate, and autonomous, personal communication has become an important option for civil servants to engage in acts of expression concerning job content.

   • Analysis

     All three major types of civil servant expression regarding job content easily constitute violations of the prohibitive rule against "arbitrarily expressing remarks concerning duties in a private capacity without the permission of a superior" and are subject to discipline. However, whether the actors are actually discovered and punished carries varying probabilities. Among them, anonymous whistleblowing letters can be said to have the highest security, while internet sharing can hardly escape the fate of being discovered. As for readers' letters and published books, if anonymous or pseudonymous, they are likewise not easily discovered; but if published under real names, they are fully exposed just like accepting interviews.

     Regarding the impact on affiliated government agencies, when anonymous whistleblower letters are transmitted via superior agencies, subordinate agencies are bound to reply with investigation findings. Since this outcome is generally well-known to the sender, it inevitably impacts the agency. Unsigned readers' letters and published books exert almost no impact as long as the agency does not take them personally. Only real-name publications or accepted interviews directly impact the affiliated agency. As for internet speech, in a free and open society, a single remark among countless statements must generate echoes from recipients before it can potentially become the focus of public attention and start causing trouble for government agencies.

     Synthesizing the characteristics of different types of expressive behavior, it can basically be confirmed that civil servants who refrain from choosing anonymous whistleblower letters must possess a certain degree of courage. They must not only endure the risk of potential discipline and forfeit possible promotions, but also suffer isolation and disdain. However, this also demonstrates a certain level of persistence, especially when choosing expressive methods with zero economic gain, which approaches the externalization of inner beliefs. When conducting competing interest balancing in individual cases, this must not be lightly overlooked.

3. Analysis of Government Agencies' Handling Possibilities Toward Expressive Behaviors Violating Agency Ethics

   • (1) High-Pressure Personnel Discipline

     Historically, agencies at all levels have rushed to find relevant provisions in the Civil Service Employment Act and the Civil Service Performance Evaluation Act when facing expressive behaviors by affiliated civil servants that violate agency ethics. They seek to impose personnel disciplinary sanctions to forcefully compel affiliated civil servants to halt further external expression, hoping to achieve a deterrent effect, maintain agency discipline and order, and preserve an appearance of harmony¹⁰. Such practices can be said to represent typical products of thinking under special power relationships. After all, the state may impose heavier demands—differing from the relationship between the state and ordinary citizens—upon individuals who voluntarily become civil servants in order to ensure they faithfully perform their duties while providing them with thorough care¹¹.

     Regarding personnel discipline against civil servants, in cases of severe breaches of agency ethics where the speech has exceeded the linguistic scale acceptable in ordinary social communication and caused damage to others' personal rights and interests—regardless of whether the target is an ordinary citizen or an agency superior—the speaker must bear general civil and criminal liability. Furthermore, given their status as civil servants who utilize their positions as instruments to infringe upon others' rights and interests, imposing additional personnel administrative responsibility on civil servants for improper speech and conduct is unquestionably justified. Civil servants are selected through rigorous competitive procedures, recruited based on merit, and endowed with the authority to execute public power; hence, they must bear heavier legal liability for violations than ordinary citizens. However, if a civil servant's expressive behavior in a specific case does not cause damage to anyone's personal rights and interests, may the affiliated agency impose personnel discipline on the grounds of violating agency ethics and adversely affecting the agency's reputation? Under Article 140, Paragraph 2 of our Criminal Code, public defamation of an official office (公署) is punished in the same manner as public defamation of a public official under Paragraph 1 of that article. Thus, just like harming someone's personal rights, when a civil servant's expression constitutes the crime of public defamation of an official office under the Criminal Code, the affiliated agency may unquestionably impose personnel discipline. However, if no criminal offense is constituted and discipline is imposed purely on the ground of preserving agency reputation, abstract agency reputation overrides the civil servant's concrete freedom of expression. Whether this aligns with the trend of respecting freedom of expression and encouraging citizen participation in public affairs discussions in a democratic and open society is certainly open to debate.

   • (2) Fair and Free Competition in the Marketplace of Ideas

     When civil servants independently publish remarks or other expressive acts concerning job content without permission, provided they do not involve divulging secrets, insulting others' personal dignity, or constituting public defamation of an official office, even if government agencies are deemed entitled to claim protection of their right to personality, reputation is an assessment of a party by others in communal life and constitutes a personality right in the social sphere (Sozialsphäre). Whether it is impaired is not judged by the party's subjective feelings, unlike the intimate sphere (Intimsphäre) which absolutely brooks no infringement or the individual sphere (Individuelle Sphäre) which individuals may autonomously determine; rather, it should be judged based on the perception of the general public¹². Therefore, when a government agency deems a civil servant's improper speech and conduct to have damaged agency reputation and independently imposes discipline, unless a disposition altering the civil servant's status—such as suspension—is imposed and the civil servant seeks judicial relief in an administrative court where a neutral judge makes an objective determination from a third-party standpoint, general appeal and re-appeal cases are concluded by administrative agencies making their own decisions. This creates a phenomenon where government agencies self-determine whether their social sphere personality rights have been impaired, seriously leaning toward the interests of conservative agencies—a state of affairs that cannot be allowed to persist after bidding farewell to special power relationships.

     Since government agencies inherently possess the authority and responsibility to engage in external public relations work and enhance public understanding of agency missions and image, in a society where public wisdom has advanced and various expressions of opinion are respected, when an agency believes its reputation has been impaired—whether the wrongdoer is an external or internal person—it is entirely free to exercise its public relations authority to make public statements and clarifications, allowing all sectors of society to listen to different accounts before public opinion ultimately determines and forms views on the government agency's image. Whether public opinion forms favorable or unfavorable views on the image of the targeted agency is something members of a communal society must accept. Moreover, in a democratic state governed by the rule of law, citizens inherently have the right to monitor the actions of government agencies established according to law. The provision of actual working conditions by internal personnel for discussion helps truly realize democratic oversight. Although detrimental to the preservation of the government agency's image, citizens overseeing government administration and government agencies transforming from bad images to good images both constitute public interests that deserve priority protection.

     If a government agency fails to actively and proactively clarify the core of the dispute through fair competition in speech and correct errors in the civil servant's allegations, and instead immediately adopts high-pressure measures that violate speech fair competition—bringing down the axe on affiliated civil servants on the grounds of breaching civil servant obligations—it merely invites suspicion that it wishes to divert attention and cover up agency shortcomings. Such counterproductive behavior damages the government agency's image rather than constituting a rational decision, nor is it acceptable in today's democratic and open society that emphasizes freedom of expression.

   • (3) Case-by-Case Dispositions Complying with the Principle of Proportionality

     The special power relationship theory, which lacked written statutory grounds, has undergone successive interpretations by Grand Justices of the Judicial Yuan. Among them, public-law service relationships can no longer serve as a legitimate reason to shackle civil servants' fundamental rights. Any personnel disciplinary measure against a civil servant, even if mild in intensity and leaving the civil servant's status unaltered, constitutes an infringement upon their freedom of expression. Nevertheless, based on the requirement that the operation of public affairs must not be interrupted, the relationship between civil servants and the state should not be identical to ordinary labor-management relationships; rather, heightened obligations must be demanded of civil servants. Balancing the two, decisions should be made based on the contemporary societal understanding of fundamental rights protection to impose the minimal restriction on civil servants' freedom in individual cases. In other words, the principle of proportionality proclaimed in Article 23 of the Constitution is fundamentally sufficient to serve as a benchmark for government agencies to judge unauthorized acts of expression by their affiliated civil servants.

     In the current environment of upholding human rights principles, where civil servants also enjoy freedom of expression and government agency functions must both be performed and accept public supervision, neither absolute secrecy nor total openness regarding job-content information in public agencies is appropriate. Instead, information should be bifurcated into parts requiring confidentiality and parts that should be publicly disclosed to accept public opinion oversight, and the method of distinction should rest on objective benchmarks and comply with statutory procedural requirements. Therefore, whether a civil servant may express remarks concerning job content should not be determined solely by whether a superior grants permission.

     Following the rise and fall of the special power relationship theory, not all existing statutory provisions regarding civil servants' service obligations meet the requirement of specific clarity. Therefore, provisions concerning civil servants' obligations should not be broadly interpreted to impose legal liability on all violators, otherwise resulting in overly harsh outcomes in individual cases. On the other hand, requirements for civil servants to observe obligations should not be canceled either, so as to avoid destroying the positive image historically established by civil servants, altering citizens' attitudes toward holding public office, and causing obstacles to the operation of the civil service system. Therefore, the heightened obligations that civil servants must bear should be established on a foundation where ordinary individuals would similarly constitute legal violations. The interpretation of current civil servant service obligation provisions should be benchmarked against the average person's understanding, and concepts such as loyalty and improper speech and conduct should be interpreted according to contemporary social consensus.

     Judging whether a civil servant's expressive behavior concerning job content conflicts with their service obligations should give special consideration to their method of expression. Diverse modes of expression existing in the marketplace of ideas, unless overly extreme and vulgar, should also be permitted for civil servants to adopt, and they should not be disciplined simply because they choose exaggerated, teasing, or satirical styles. As for discretionary decisions made by affiliated agencies regarding personnel promotions and rewards within their discretionary authority as a result of civil servants' job-content disclosure behaviors, these constitute the risks and costs that active speakers must bear.

Conclusion

In a society where multiculturalism coexists, exaggerations, distortions of speech, and missing the point occur frequently. Whether the speaker's legal liability should be pursued, whether they should engage in fair and free competition in the marketplace of ideas, or whether such speech and conduct should be treated as lighthearted jokes and allowed to exist should be judged based on the social ethos of the contemporary era. Government agencies' handling of civil servants' expressive behaviors concerning job content should likewise follow this approach. The interpretation and application of civil servant service obligation provisions—enacted before the implementation of the Constitution and carried forward to this day—must conform to the trends of the times.

If a civil servant's expressive behavior concerning job content exceeds the appropriate boundaries of speech expression and violates legal provisions that everyone must observe, they should naturally bear heightened adverse personnel penalties. Prior to that, however, the civil servant's affiliated agency should act like all participants in the marketplace of ideas, actively adopting expressive methods that vie for recognition, allowing truth to become clearer through bilateral argumentation, rather than exaggerating and overestimating the destructive power and impact of the civil servant's expression and immediately resorting to personnel discipline to force the speaker to shut up, endure adverse dispositions, or turn instead to anonymous whistleblower letters to continue a pointless and endless war of words.

While striving to engage in external communication with the public, government agencies should also value internal communication channels and respect the freedom of expression of their affiliated civil servants. All disputes that can be resolved through the fair competition of ideas—whether external or internal—should be faced with the confidence to accept challenges. High-pressure regulatory means can only temporarily quell disputes. When civil servants express themselves regarding job content, they should prioritize internal communication channels; when choosing to freely express opinions externally, they must have the awareness and readiness to bear the relevant responsibilities and risks.