Legal Issues Concerning Local Governments
| Author | Vallo Olle |
| Pages | 58-70 |
Vallo Olle
Legal Issues Concerning Local Governments
Legal issues concerning local governments in Estonia are addressed in this article and an attempt is made to assess state and local government legislation. Different problem areas are dealt with in turn in the article and the presented examples are primarily based on legal decisions adopted or planned to be adopted by the City of Tartu.
Based on dynamic changes in legislation and as a result of the last local government elections, local governments have undertaken to amend the by-laws of rural municipalities and cities. This process is examined from two aspects during the period of 1 January 1994 until the present (the previous versions of the City of Tallinn By-laws and the City of Tartu By-laws were approved on 17 June 1993 and on 17 February 1994, respectively). First, new legislation that entered into force and amendments to legislation already in force during this period which should be considered in the amendment of by-laws of rural municipalities or cities will be examined. Second, the areas which should be subject to regulation by by-laws of rural municipalities or cities in accordance with the legislation in force will be analysed.
A legal problem in this field is the fact that at present there is no law to regulate the concordance, approval, registration and use of the coat of arms and flags of local governments. In view of the first aspect, the following Acts are relevant: the Local Government Organisation Act and the Education Act Amendment Act, General Principles of the Civil Code Act, County Administration Act and Local Government Organisation Act Amendment Act, Anti-Corruption Act, Public Service Act, Rural Municipality and City Budgets Act Amendment Act, Local Government Organisation Act Amendment Act, Commercial Code, Territory of Estonia Administrative Division Act, Planning and Building Act, Local Government Council Election Act, and Section 22 of the Local Government Organisation Act Amendment Act.
With regard to the second aspect, the legislation in force prescribes regulation of the following issues by local government by-laws:
1) the procedure for establishment, the rights and duties, and the procedures of local government bodies and their committees, and agencies of rural municipalities or cities (section 8 and subsection 28 (2) of the Local Government Organisation Act (hereinafter "LGOA"));
2) the bases for representation of rural municipalities or cities as persons in public law by councils, chairs of councils, rural municipality governments or city governments and mayors (subsection 10 (1), clauses 42 2) and 50 2) of the LGOA);
3) the procedure for use of the coats of arms and flags of rural municipalities or cities (subsection 14 (2) of the LGOA);
4) the procedures for making council regulations public and for making council regulations, resolutions and minutes of sessions available to the public (subsections 23 (1) and (7) and 37 (2) of the LGOA);
5) the procedure for the exercise of supervision by councils and governments over the implementation of council regulations and resolutions, and the regulations and orders of rural municipality governments or city governments (section 24 and subsection 36 (6) of the LGOA);
6) the conditions and procedure for election of mayors (section 27 of the LGOA);
7) the procedure for making regulations and orders of rural municipality or city governments public (subsection 31 (1) of the LGOA);
8) the procedures for possession, use and disposal of municipal property (subsection 34 (2) of the LGOA);
9) the duties of chairs of councils (clause 42 4) of the LGOA);
10) the bases and procedure for the activities of council committees (including auditing committees) (subsections 47 (2) and 48 (3) of the LGOA);
11) the procedure for substitution of mayors (subsection 49 (5) of the LGOA);
12) the procedures of rural municipality governments or city governments, and the bases and procedure for establishment and bases for the activities of committees (subsection 49 (11) of the LGOA);
13) the duties of mayors (clause 50 8) of the LGOA);
14) the procedure for making the minutes of sessions of rural municipality governments or city governments and meetings of councils and government committees available to the public (subsection 51 (7) of the LGOA);
15) the duties of rural municipality or city secretaries (clause 55 (4) 5) of the LGOA);
16) the procedure for exercising supervision over orders of rural municipality or city district managers (subsection 57 (7) of the LGOA); and
17) the procedure for passage of budgets (subsection 12 (1) of the Rural Municipality and City Budgets Act).
In practice, a need may arise for the regulation of a broader range of issues than set out above by by-laws of rural municipalities or cities. The principle of legality should be observed.
The way in which the regulation of issues which by law are within the competence of the City of Tartu under its By-laws (as listed above) is envisioned, will be examined below, each in turn. This analysis is based on the third draft version of the By-laws (hereinafter the "Draft By-laws") which by the time this article was written had undergone first reading in the Tartu City Council. This version is compared with the two earlier versions where necessary.
1) The Procedure for Establishment, the Rights and Duties, and the Procedures of Local Government Bodies and their Committees, and Agencies of Rural Municipalities or Cities (section 8 of the LGOA)
The purpose of the Draft By-laws (section 1) is to provide the procedure for establishment, the rights and duties, and the procedures of the local government bodies and their committees, and of the administrative agencies of the City of Tartu. The earlier versions of the By-laws also concerned local government agencies (municipal agencies) but the section concerning the sole competence of the Tartu City Council provided that municipal agencies were to be regulated pursuant to a specific procedure established by the Council (clause 19 1.6)). Such solution was contrary to the requirement of a logical structure for legislation.
The establishment of a city government (subsection 28 (2) of the LGOA) is based on the principle that council members vote separately with regard to every government member candidate entered on a list presented by the mayor. A different possible solution permitted under the LGOA is to vote in favour or against the list as a whole.
Under the Public Service Act (subsection 5 (1) and section 18), local government officials are either elected or appointed to office. The provisions of the Draft By-laws concerning approval of the Tartu City Government (clauses 30 2) and 3), 31 1) - 3) and 38 1)) also include appointment. An amendment is unnecessary since approval of local government officials by the Tartu City Council should be regarded in this case as election to office as provided by the Public Service Act.
The LGOA does not provide a quorum requirement for voting in a council. Pursuant to subsection 45 (5) of the LGOA, council resolutions are adopted by a majority of votes in favour, except with the issues specified in clauses 22 2), 4), 6) - 10), 14), 15), 17) and 23) in which the majority of the council membership is necessary in voting. However, the first and second versions of the By-laws (clauses 28 1) and 27 1), respectively) provided that the City Council has a quorum if at least one half of the City Council members participate in the session.
Clause 27 4) of the Draft By-laws establishes that the agenda of a meeting may, after its approval, be amended by a majority of the City Council voting in favour. The agenda may only be amended with respect to the order of the approved items on the agenda or by omission of an item from the agenda. Voting on inclusion of new items in the agenda is contrary to subsections 43 (3) and 44 (5) of the LGOA.
Issues concerning committees of the Tartu City Government are not directly regulated by the Draft By-laws.
2) The Bases for Representation of Rural Municipalities or Cities as Persons in Public Law by Councils, Chairs of Councils, Rural Municipality Governments or City Governments and Mayors (subsection 10 (1), clauses 42 2) and 50 2) of the LGOA)
The competence of a local government as a person in public law is exercised by its bodies. Pursuant to section 4 of the LGOA, the council and government are the bodies of a local government. They are collegial bodies headed by the chair of the council and mayor, respectively. In addition to the members of these bodies, a rural municipality or city as a person in public law may also be represented by other officials; for example, in a court on the basis of an authorisation or in the preparation of records in the particular matters of administrative offences. However, representation of a local government body also involves representation of the rural municipality or city as a person in public law1. Thus, the position that the chair of a council represents the rural municipality council but may also represent the rural municipality on the basis of a single authorisation of the council or government2 cannot be considered justified.
This matter is regulated by Tartu City Council Regulation No. 25 The Procedure for Representation of the City of Tartu as a Person in Public Law (26 May 1994) in more detail than by the Draft By-laws.
3) The Procedure for Use of the Coats of Arms and Flags of Rural Municipalities or Cities (subsection 14 (2) of...
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