Facts
On 25 July 2018, the Council of State of the canton of Geneva adopted a decree setting the election of the staff committee of the cantonal detention office (OCD) for 22 October 2018. A detailed notice was published in the Official Gazette (FAO) on 28 August 2018.
On 3 September 2018, the president of the staff union [A.] asked the Department of Security (DSES) to cancel the publication in the FAO, arguing that the committee had no legal basis and that OCD staff had not given their consent. By letter of 10 September 2018, the head of the department indicated that the publication would not be cancelled and that the organisation of the election would continue, the legal conformity of the creation of the committee being established.
[B.] , detention officer and president of the prison section of the Union, stood for election. The appellants brought an appeal before the Administrative Chamber of the Geneva Court of Justice against the decision of 10 September 2018, seeking in particular the annulment of the election and a finding that the creation of the committee was unlawful. By judgment of 15 October 2019, the Administrative Chamber declared the appeal inadmissible: the letter of 3 September 2018 was not a request calling for a decision, and the letter of 10 September 2018 was not a decision; moreover, the appellants lacked standing to appeal.
The appellants lodged a public law appeal with the Federal Supreme Court, seeking the annulment of the cantonal judgment and the remittal of the case to the cantonal authority for consideration of the merits. The department contends that the appeal is inadmissible and, in the alternative, that it should be dismissed. The Administrative Chamber defers to the court as to admissibility.
Main question: was the letter of 3 September 2018 a request within the meaning of art. 4A AniWA/GE, and was the letter of 10 September 2018 a decision subject to appeal?
Considerations
The Federal Supreme Court notes that the public law appeal is inadmissible under art. 83 let. g FSCA, as this concerns a non-pecuniary dispute in public-law employment relations. However, an error in the designation of the appeal does not prejudice its author where the formal requirements of the appropriate remedy are met and conversion is possible (ATF 138 I 367; 134 III 379). The appeal is therefore converted into a subsidiary constitutional appeal, and the complaints of violation of constitutional rights are examined from that angle (arts. 113 to 118 FSCA). The Federal Supreme Court recalls that, against a judgment of inadmissibility, only conclusions for annulment and remittal are admissible (ATF 138 III 46).
The appellants retain a current and practical interest in the appeal despite the judgment of 19 November 2019 (ATA/1682/2019) rendered in a related case, as they may still have the unlawfulness of the committee established in the operative part. As to the facts, the appellants complain of incomplete findings but do not explain how the omitted facts would be relevant; the Federal Supreme Court therefore relies on the facts as established (art. 118 para. 1 FSCA). Where a decision rests on several independent grounds, the appellant must demonstrate that each of them is contrary to law; that is not the case here.
On the merits, art. 4A AniWA/GE implements the right of access to a judge (art. 29a Cst.) and allows any person with a legitimate interest to require the authority to rule by decision on acts affecting their rights or obligations (abstention, cessation, revocation, elimination of consequences or a finding of unlawfulness). The mechanism requires a prior referral to the authority, which must issue a decision subject to appeal. The administered party must clearly formulate its claims.
The Administrative Chamber did not arbitrarily consider that the letter of 3 September 2018 was not a…