Weekly analysis for 16 — 22 September

Yet another legislative attempt to restore the civil servant status for heads of local state administrations and their deputies

Event

On September 11, draft law № 14029 “On Amendments to Certain Legislative Acts of Ukraine Regarding the Depoliticization and Professionalization of the Executive Staff of Local State Administrations” was registered in the Verkhovna Rada of Ukraine. This draft law, submitted by a group of MPs including R. Lozynskyi, Ya. Yurchyshyn, V. Viatrovych, D. Mykysha, L. Bilozir, and A. Yatsenko, aims to implement a portion of key amendments for the decentralization process by restoring the civil servant status for the heads of local state administrations and their deputies. The draft law envisions amendments to the Laws of Ukraine “On Local State Administrations” and “On Civil Service”.

 CPLR’s assessment

Experts of the CPLR generally support this legislative initiative. To effectively ensure the legality of acts adopted by local self-government bodies, heads of local state administrations and their deputies require civil servant status. However, prior attempts to restore this status through decentralization-related draft laws have failed.

It should be noted that draft law № 14029 proposes introducing a personnel reserve not only for the positions of district state administration heads but also for heads of regional state administrations. In our view, such a reserve is necessary specifically for heads of district administrations as their functions should be standardized nationwide, without significant regional variations. By contrast, the functions of heads of regional state administrations remain highly politicized in Ukraine, with significant regional differences. Therefore, until constitutional amendments are adopted to clearly separate regional self-governance from public authority, the introduction of a personnel reserve for heads of regional state administrations appears problematic.

It is important to note that the Prime Minister of Ukraine is to submit to the Cabinet of Ministers of Ukraine, for further referral to the President of Ukraine, a single candidate selected from among the competition winners.

The President of Ukraine, in turn, should have the right to request that the Cabinet of Ministers consider an alternative candidate for the position of a head of a local state administration only based on substantiated grounds. In such cases, the Cabinet of Ministers would be required, within 10 days of the rejection, to submit another candidate for the position of a head of local state administration for the President’s consideration.

Along with restoring civil servant status for the heads of local state administrations, it would be appropriate to reinstate their authority as chiefs of the civil service within local state administrations, while removing such authority from chiefs of staff (within the office of local state administrations and their structural units, except those with the status of legal entities under public law), as well as from the heads of structural units with the status of a legal entity under public law. Alternatively, the functions of a chief of civil service could be divided between these positions in order to prevent the heads of local state administrations from being overburdened with minor administrative matters.

To implement these proposals, the draft law needs to be supplemented with appropriate provisions.

Furthermore, the draft law requires additional technical and legal refinement.

Yet Another Draft Law on Oversight of the Legality of Local Self-Government Acts

Event 

On September 18, draft law № 14048 “On Amendments to Certain Legislative Acts of Ukraine to Ensure Legality and Transparency in the Activities of Local Self-Government Bodies” was registered in the Verkhovna Rada of Ukraine. The draft proposes amendments to the Laws of Ukraine “On Local Self-Governance in Ukraine”, “On Local State Administrations”, as well as to the Code of Administrative Procedure of Ukraine. This is the tenth attempt in the last five years to regulate state oversight of the legality of acts adopted by local self-government bodies. The previous nine attempts included five versions of draft law № 4298, along with draft laws №№ 13124, 13150, 13150-1, and 13150-2.

The draft law also contains provisions aimed at ensuring legality in the activities of the territorial bodies of ministries and other central executive authorities.

CPLR’s assessment

Experts of the CPLR generally support this legislative initiative, as the issue of the lack of statutory regulation for state oversight of the legality of acts adopted by local self-government bodies remains unresolved.

The draft law includes provisions that, in our view, ought to be supported: designation of the state bodies responsible for oversight, definition of their powers, the object, measures, and procedures of oversight, as well as the introduction of a personnel reserve for the positions of district state administration heads.

At the same time, we also note a number of shortcomings. The most threatening provision stipulates that, for one year after the Law enters into force, regional state administrations will be responsible for ensuring the legality of acts adopted by village, urban village, city, and district-in-city (where established) councils and their executive bodies. District state administrations will only be able to submit proposals to regional state administrations regarding the application of oversight measures related to such acts provided by the Law. In our view, this transitional provision is pointless. The Law will take effect only after the termination of martial law, which provides sufficient time to prepare district state administrations to implement the legal amendments, rather than appointing new staff to regional administrations or retraining existing employees for temporary functions.

The draft law does not reinstate the heads of local state administrations as civil servants. No corresponding amendments are proposed either to the Law of Ukraine “On Local State Administrations” or to the Law of Ukraine “On Civil Service.” Nevertheless, the article on the personnel reserve for the positions of district state administration heads does mention a competitive selection process for the personnel reserve and the Commission on Senior Civil Service. Moreover, the draft law is silent as to the sourcing of candidates for the positions of local state administration heads.

We find it inappropriate to amend Part 3 of Article 8 of the Law of Ukraine “On Local State Administrations” by replacing a single candidate for the position of district state administration head with three candidates. This proposal contradicts Part 4 of Article 118 of the Constitution of Ukraine, which provides that the heads of local state administrations are appointed to and dismissed from office by the President of Ukraine upon submission by the Cabinet of Ministers of Ukraine. In this case, a submission for appointment is an official document, the content of which must either be approved or, if there are reasonable grounds otherwise, rejected. In other words, the submission of the Cabinet of Ministers must be framed in such a way as to enable the President to take one of these two actions. Therefore, the submission must contain only one candidate for appointment.

The majority amendments proposed to the Law of Ukraine “On Local Self-Governance in Ukraine” fall outside its regulatory scope and should therefore be removed and transferred to the Law of Ukraine “On Central Executive Authorities”. Necessary amendments are missing not only in the Law of Ukraine “On Central Executive Authorities,” but also in the Laws of Ukraine “On the Cabinet of Ministers of Ukraine” and “On the Council of Ministers of the Autonomous Republic of Crimea”.

Therefore, while we support the legislative initiative, the text of draft law № 14048 requires further refinement.