1 Foundations and Organization, Public Charges » 14 Authorities and Administration » 140 General Provisions (STHG)

### Scope of Application

1. For the purposes of this Act, public entities are understood to be the Canton, the Districts, the Municipalities, and other legal persons under cantonal public law. Land associations (Flurgenossenschaften) within the meaning of Art. 703 ZGB (Swiss Civil Code) are subject to this Act, whereas Allmend corporations (Allmeindkorporationen) are not.

2. The following are subject to this Act as officials of a public entity, unless otherwise stipulated

a) members of authorities and commissions;

b) civil servants who are in a public-law service relationship with the public entity;

c) employees who are in a public-law or private-law employment relationship with the public entity;

d) other persons entrusted with a public task by virtue of a public-law act.

3. Holders of the Schwyz attorney's license and the Schwyz certificate of eligibility for notaries are not officials within the meaning of § 1 para. 2 with regard to their freelance certification activities. They are liable according to the rules of Art. 41 et seq. OR (Swiss Code of Obligations).

Reservations of Federal and Cantonal Law

1 Mandatory provisions of federal law remain reserved.

2 The provisions of this Act apply only to the extent that cantonal enactments do not provide for a different regulation.

**II. Liability under Property Law**

Liability of the Public Entity for Unlawful Damages

a) Damages

The public entity is liable for the damage unlawfully caused by an official to a third party while performing sovereign acts.

b) Satisfaction

The commune is only obliged to provide satisfaction if the conditions of Articles 47 and 49 of the Code of Obligations are met.

c) Limitation of Liability

1 If an order or a decision is amended in appeal proceedings,

the public entity is liable only if an official of the lower authority acted with intent

or gross negligence.

2 For damage arising from incorrect information provided by an official, the public

entity is liable only in cases of intent or gross negligence on the part of the official.

d) Exclusion of Liability for the Official

The injured party has no claim for damages or satisfaction against the official.

Liability of the Public Authority for Lawful Damages

If an official, through lawful conduct, causes damage to a third party, the public authority is liable only if the law so provides.

Liability of Public Entities in Joint Task Fulfillment

When several public entities fulfill a task jointly, they are jointly and severally liable to the injured party.

Liability of the Official

a) Extent

The official is liable for damage caused to the public body through intentional or grossly negligent violation of his service or official duties.

b) Recourse

If the public entity has compensated the third party for the damage or provided satisfaction, it may take recourse against the functionary if the latter caused the damage intentionally or through gross negligence in violation of their service or official duties.

c) Liability of Multiple Officials

1 If several officials have caused the damage, they shall be liable to the

community (sections 8 and 9) proportionally according to the degree of their fault.

2 If several officials have caused the damage jointly and intentionally, they shall be jointly and severally liable.

Limitation Period

1 The claim for damages by the public body against the official and the claim of the injured party for damages or moral satisfaction against the public body shall become time-barred one year from the day on which the claimant acquired knowledge of the damage, but in any event upon the expiry of ten years from the day of the official's damaging conduct.

2 If the claim for damages or moral satisfaction arises from criminal conduct for which criminal law prescribes a longer limitation period, then that period shall also apply to it.

3 The right of recourse of the public body against the official shall become time-barred upon the expiry of one year from the recognition or judicial determination of the claim for damages or moral satisfaction.

Subsidiary Law

For the liability of the public entity, the provisions of Art. 42, 44 para. 1, 45, 46, 52 para. 1 and 2, and 53 CO, and for the liability of the official towards the public entity also the provisions of Art. 43, 44 para. 2, and 54 para. 2 CO, are subsidiarily applicable as public law.

Procedure

a) Assertion

Pecuniary claims are asserted

a) against members of the Cantonal Council and the commissions elected by it, of the Government Council, of the Cantonal, Administrative, and Cantonal Criminal Courts by the Cantonal Council;

b) against other cantonal officials, members of the District Council and the Municipal Council, as well as the administrative bodies of other legal entities under cantonal public law by the Government Council;

c) against other officials of the district by the District Council, of the municipality by the Municipal Council, of other legal entities under cantonal public law by the administrative body of the corporation or institution.

b) Subject-matter Jurisdiction

1. Claims based on entitlements under this Act shall be decided by the Administrative Court.

2. Claims based on unlawful conduct by members of the Administrative Court shall be decided by the Cantonal Court.

c) Authority to Review

The legality of formally legally binding decrees and decisions may not be reviewed in a liability procedure.

III. Criminal Liability

Reference to Other Enactments

1 Crimes, misdemeanors, or minor offenses committed by officials in the exercise

of their official duties shall be punished according to the provisions of the Swiss

Criminal Code and cantonal implementing law.

2 Section 104 of the Judiciary Act remains reserved.

IV. Disciplinary Accountability

Principle

1 Officials may be held disciplinarily accountable if they violate their official or service duties. Employees according to § 1 para. 2 letter c are excepted.

2 Disciplinary proceedings shall be conducted independently of civil liability and criminal liability. If a criminal investigation has been initiated against the official, the disciplinary proceedings may be suspended.

Disciplinary Measures

a) against Authorities and Commissions

1 Authorities are empowered to penalize disorderly conduct by their members or

by authorities or commissions subordinate to them and their members

with a reprimand or a fine of up to CHF 200.

2 In cases of repeated or serious misconduct, particularly when a criminal investigation

for dereliction of duty is initiated, members of

authorities and commissions may be suspended from office for a period of 6 months or until

the conclusion of the criminal proceedings.

3 Removal from office may only be ordered by the criminal judge.

b) Against other Officials

1 The supervisory authority may order the following disciplinary measures against officials within the meaning of Article 1, paragraph 2, letters b and d

a) reprimand;

b) a fine up to CHF 200.--;

c) transfer to another salary class or assignment to a different activity;

d) suspension or reduction of salary increase;

e) temporary suspension from office with withdrawal of remuneration.

2 If the official has committed serious or repeated breaches of official duties or service obligations, they may be dismissed without notice.

### Proceedings

1 Before ordering a disciplinary measure, the accused must be heard.

2 The disciplinary decision must be communicated in writing to the offender. He may appeal against it in accordance with the Administrative Justice Act.

V. Final Provisions

Amendments to Earlier Law

Upon the entry into force of this Act, the following provisions shall be amended

**1. Introductory Act to the Swiss Civil Code:**

§ 37 para. 2

For damages unlawfully caused by the civil registrar, the involved municipality shall be liable first, and only thereafter the canton. The canton shall be liable for the supervisory authority.

§ 106

1 For damages unlawfully caused by the guardian or by members of the orphanage administration (Waisenamt) or the municipal council, the involved municipality shall be liable first, and only thereafter the canton.

2 For damages unlawfully caused by members of the Government Council (Regierungsrat), the canton shall be liable.

§§ 234-239 shall be repealed.

**2. Act on Administrative Justice in the Canton of Schwyz:**

§§ 43-47 shall be repealed and replaced by the following § 43

1 The competent authority may issue a reprimand to parties and their representatives or impose a disciplinary fine from CHF 20.- to CHF 200.- on them if they behave indecently in the proceedings or maliciously initiate the proceedings.

2 Disciplinary penalties may be challenged by appeal.

**3. Introductory Act to the Swiss Penal Code:**

§ 49

Members of an authority, officials, or other persons with a public-law task who intentionally or grossly negligently violate their official or service duties shall be punished with detention or a fine, unless an offense under Art. 312 et seq. of the Swiss Penal Code (StGB) is present.

Repeal of Earlier Law

Sections 13 and 14 of the Ordinance of November 20, 1968, concerning the remuneration of authorities and the employment relationship of state personnel, are hereby repealed.

Approval

Section 14 (3) requires approval by the Federal Assembly.

Referendum, Publication, Entry into Force

1 This Act is subject to a referendum in accordance with Sections 34 or 35 of the Cantonal

Constitution.

2 It shall be published in the Official Gazette and, after its entry into force, shall be included in the Collection of Laws.

3 The Government Council shall be charged with its implementation. It shall determine the date

of its entry into force.

1 GS 15-733 with amendments of June 6, 1974 (GS 16-474), of October 26, 1994 (GS 18-

538), of March 22, 2000 (PBV, GS 19-567), of October 24, 2007 (VRP, GS 21-148a), of

November 18, 2009 (Justice Ordinance, GS 22-82l), of December 17, 2013 (GC Decision adapting to

new Cantonal Constitution, GS 23-97), of October 25, 2017 (KC Decision updating justice legislation

and optimizing the organization of criminal prosecution authorities, GS 25-9d) and of March 14,

2018 (KC Decision concerning the cooperation of judicial authorities of municipalities and districts, GS

25-25b).

2 Adopted in the popular vote of May 24, 1970 with 6194 "Yes" votes against 3825 "No" votes (Official Gazette

1970 486).

3 Para. 3 newly inserted on October 26, 1994 and Para. 2 lit. c in the version of March 22,

2000.

4 Newly inserted on March 14, 2018.

5 Heading in the version of March 14, 2018.

6 Letter a in the version of June 6, 1974.

7 Para. 1 in the version of June 6, 1974 and Para. 2 in the version of October 24, 2007.

8 Repealed on October 25, 2017.

9 Heading in the version of October 25, 2017.

10 Paras. 1 and 2 in the version of November 18, 2009.

11 Para. 1 in the version of March 22, 2000.

12 GS 7-16.

13 GS 13-422.

14 GS 12-204.

15 GS 15-737.

16 Approved by the Federal Assembly on June 8, 1971 (Official Gazette 1971 616).

17 Heading, Paras. 1 and 2 in the version of, Para. 3 newly inserted on December 17, 2013.

18 Entered into force on August 1, 1971 (Official Gazette 1971 615); amendments of October 26, 1994 on

January 1, 1996 (GS 18-538), of March 22, 2000 on July 1, 2000 (Official Gazette 2000 819), of October 24,

2007 on January 1, 2009 (Official Gazette 2008 2697), of November 18, 2009 on January 1, 2011

(Official Gazette 2010 1508), of December 17, 2013 on January 1, 2014 (Official Gazette 2013 2974), of October 25,

2017 on February 1, 2018 (Official Gazette 2018 83) and of March 14, 2018 on January 1, 2019

(Official Gazette 2018 2836) entered into force.