COMBINING OF COMMUNES AND ITS EFFECTS – NEW LEGAL SOLUTIONS IN THE COMMUNE SELF-GOVERNMENT ACT - Наукові конференції
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COMBINING OF COMMUNES AND ITS EFFECTS – NEW LEGAL SOLUTIONS IN THE COMMUNE SELF-GOVERNMENT ACT

22.09.2015 13:50

[Секція 1. Економіка, організація і управління підприємствами, галузями, комплексами]

Автор: Marek Stych, PhD, Institute of Administration, Faculty of Social Sciences, Jan Dlugosz University, Czestochowa


Introduction

 The paper discusses selected issues concerning new provisions enabling communes to combine, and its legal and organizational effects. The new regulations amending a number of provisions of the Commune Self-government Act will become effective on 1 January 2016.




Objectives of the amendment

 The possibility of combining communes is provided in the Act of 25 June 2015 amending the Commune Self-government Act and other acts [1]. The amendment that will become effective on 1 January 2016 involves a whole set of regulations. Its main objective is to protect the inhabitants of communes in case a given commune does not fulfill the tasks devolved on it by the legislator properly. As the basic local government unit, the commune  is obliged to provide public services continuously and continually. Those services include: public transport, education, water and sewage management, waste disposal, etc. The analyzed statutory provisions that will become effective on 1 January 2016 will affect mainly small rural communes, for it is they that struggle with problems such as:

– high prices of services,

– manpower shortage in commune offices and other organizational units,

– incompetent management,

– unfavorable demographic structure along with internal migration between particular local government units.

Therefore, the moment the amendment becomes effective, communes:

– will be encouraged to combine with each other,

– will be more independent and flexible in action,

– will be given an opportunity to cooperate with other communes.




Scope of the amendment

 As of 1 January 2016, the changes as regards the combining of communes will consist in:

1. introduction of a new body, “plenipotentiary for establishing a commune [2]. Unfortunately, the amended provisions do not specify who can act as a “plenipotentiary”. As provided in the amended  Article 4e, “The Prime Minister, upon the request of a voivode filed via the minister competent for public administration, appoints a plenipotentiary for combining communes or establishing a new one from among the employees subordinate to the voivode, or the employees of the commune office”. This procedure seems to be too complex as regards formalities. Simultaneously, there are no requirements regarding the candidates for plenipotentiaries. It would be sufficient if a plenipotentiary was appointed by the voivode after certain statutory requirements have been fulfilled by a candidate, which the legislator seems to have forgotten about. Another problem concerns the group of individuals who can be considered the candidates. The provision refers to “the employees subordinate to the voivode, or the employees of the commune office”. Such a regulation allows too much freedom as regards “appointing a plenipotentiary”, for it does not stipulate any requirements concerning the candidate's knowledge of how the commune functions and what its organizational structure looks like. Under the provisions of Article 4e Paragraph 2 (as amended), it is a duty of the plenipotentiary “to legally and organizationally prepare the commune to perform public tasks”. Thus the basic task of that entity will be to determine which communes should be organizationally combined with the date of establishing a new local government unit, which should function without changes, and which should be liquidated. As soon as those communes have been determined, “the plenipotentiary” has to prepare the new commune's office. Under the amended provisions of Article 4e Paragraph 2, “the plenipotentiary” is also obliged to “prepare a draft of the commune budget act”. Thus as it can be seen, “the plenipotentiary” has to possess proper qualifications. Otherwise it might turn out to be merely a political function.

2. the new commune is a legal successor of the combined communes [3], which reflects the principle of citizens' trust towards the organs of the state. This regulation is of a crucial importance to the inhabitants of combined communes. It means that:

- the new commune enters into the rights and obligations resulting from the contracts and agreements hitherto entered by the combined communes. It also becomes a competent entity or a party in all administrative and court proceedings that are in progress;

- the new commune takes over the property of the combined communes – the acquisition of property by a new commune will be based on the agreement entered by the combining units;

- the rights and obligations resulting from the local law acts issued by the combined communes have to be exercised and fulfilled. A relevant part of that procedure is to determine the time they are effective – those acts will be binding in a given area until the organs of the newly established commune pass the new ones and repeal the previous ones.

3. implementation of common service [4] – those provisions guarantee common administrative, financial, and organizational service. Article 10a contains the expression “in particular”, which should be interpreted as the right of communes and commune legal persons to decide about the form of service on their own. The statutory provisions will be extended by means of commune council resolutions which will stipulate the following issues:

- units responsible for service,

- units that receive service [5],

- objective scope, that is an exhaustive list of issues which are dealt with by means of common service.

At the same time, in Article 10c of the amended  Act the legislator excludes certain units. Therefore, common service cannot include the responsibilities reserved for the managers of units of public finance sector, that is:

- public resources management,

- contracting obligations,

- preparing and approving financial plans,

- transferring expenditures within the plan.

Such a solution seems apt, especially if one considers that leaving those competences with the aforementioned managers complies with the right distribution of responsibility in public finance sector units. Those rights are reserved for those who bear responsibility for financial economy and they cannot by any means be devolved to other entities, e.g. the managers of units that provide common service. Under the above regulation, it is not possible to devolve competence and tasks belonging to those units in the form of an agreement or commune council resolution.

When it comes to the units receiving common service, it is justifiable to allow their managers to have access to documents and to file information and clarification requests as regards the activities covered by the service.

4. simplification of the procedures concerning inter-commune unions  [6] – a proposition for secondary legislation on the part of the minister competent for public administration concerning the right of communes which are willing to enter a union to prepare a draft statute. As a result, “an authorized representative of communes” would be obliged to submit a draft to the voivode for approval. If the voivode did not oppose to that within 30 days, the draft would be considered approved. Then the councils of particular communes could pass resolutions establishing unions and their statutes. All those documents would then be passed to the voivode who, making use of his controlling authorization, would carry out a legality audit. It is justifiable therefore that the voivode should retain those documents. The only document that the registering authority would receive would be a completed form enabling a union to receive a number and to be registered.

 The implementation of the discussed issues should guarantee the stability of legal transactions and undisturbed functioning of the new local government unit, especially if the suggestions presented in the paper are taken into account.




Conclusions

 The analysis of the selected issues concerning the new regulations on combining of communes allows one to draw a number of conclusions. First of all, some of the discussed provisions is imprecise which might result in numerous interpretations. In the outcome of combining communes, a number of administrative posts and employees will have to be reduced in newly established communes. On the one hand, it might bring some savings as regards the functioning of administration on the condition that, however, the newly established commune does not intend to expand its administration. The redundancy in commune administration will entail a higher unemployment rate and the necessity of paying out severance pays. Consultation with the inhabitants of the communes to be combined will undoubtedly raise controversy as the fact of having “their own commune” or “their own wójt (commune head)” is relevant to them.  

 It seems that the interests of particular communes will prevail over possible benefits stemming from the combining of those local government units.




Works Cited

1. Journal of Laws from 2015, item 1045

2. amendment of Article 4e of the Commune Self-government Act

3. the added Article 4ea Paragraph 1

4. added articles 10a to 10d

5. commune organizational unit, commune legal person

6. added Article 68 Paragraph 1a




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