Raad zonder raadgevers? (SteR nr. 42) 2018/9:9 Summary

Raad zonder raadgevers? (SteR nr. 42) 2018/9

9 Summary

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

On a summer evening in 2014, a political debate in the council of a small Dutch town was followed by a midnight e-mail from the civil servant involved in the debate, offering her resignation. The fact that she had done her job in accordance with the applicable laws and regulations caused a heated political quarrel between the opposition leader and an alderman. In the end, the municipal council was no longer discussing the political item on the agenda; the focus was on blaming the civil servant for informing them wrongly.

It was this experience that prompted me as the mayor of the municipality concerned to investigate the topic of official assistance and political group support to the municipal council after the introduction of the Local Authorities (Separation of Powers) Act (Wet dualisering gemeentebestuur) and to write this book.

Almost all council registrars (griffiers), municipality secretaries (gemeentesecretarissen), and mayors say at first that they do not encounter any problems when processing applications for official assistance (ambtelijke bijstand). The same applies to political group support (fractieondersteuning), although remarkably many municipalities do not (or no longer) provide such support, despite it being statutory. If pressed, however, these individuals are always able to mention experiences and problems concerning these topics. These are usually resolved to the satisfaction of all parties, but sometimes they get caught up in unclear and ill-thought-out local and national laws and regulations. It is then necessary to finding practical solutions, and this usually works fine. However, the ingenuity of those involved offers no guarantee of legal certainty.

Taking as its basis the historical background, extensive research performed into legislative history, an examination of the implementation and evaluation of the relevant legislation, and a survey of the application and experiences in all Dutch municipalities, this study presents an impression of the position of official assistance and political group support in current municipal practice. On the basis of the experiences and omissions found, proposals will be made for improvements in local and national legislation and regulations to ensure the provision of optimum support for municipal council and its members while continuing to respect the legally-defined relationships (dual or otherwise) and ensuring that local civil servants do not end up in a loyalty dilemma.

The legal relationship and interaction between the first and second paragraphs of Article 33 of the Local Authorities (Separation of Powers) Act, the legitimacy of the third paragraph, nor the separate parts of this article have ever been subjected to extensive scientific examination. Over the years, neither subject (official assistance and political group support) has been able to count on much empathy and/or capacity for finding solutions from the central government in The Hague. The municipal council is therefore at risk of becoming a ‘council without counsellors’.

The central questions in this study are as follows:

‘How did the right to official assistance and political group support arise and how is this right – as regulated in Article 33 of the Municipalities Act – enshrined in local regulations? What practical consequences does the inclusion of the right to official assistance and political group support in legislation and regulations have for the content-related support of the council and for the position (legal or otherwise) of the local civil servants involved?’

Survey Results

The general conclusion of the survey conducted among all Dutch municipalities could be that many of these municipalities take a rather casual attitude towards the imperative requirements of the Municipalities Act. Four out of five1 of the municipalities do set instructions for the registrar, as prescribed in the second paragraph of Article 107a of the Municipalities Act. On the other hand, more than 50%2 of the municipalities have not implemented the second paragraph of Article 103 of the Municipalities Act with regard to the prescribed instructions for the secretary. The results vary per region: in Limburg, 70% of the municipalities have instructions in place for the secretary, while in the province of Utrecht only 20% of the municipalities comply with this statutory duty. More than a sixth3 of the respondents indicate that they have included the provisions that form part of the instructions for the secretary in another regulation, such as a group regulation (concernverordening).

This is not in accordance with the letter of the Municipalities Act, but it does fulfil the purpose of the provision, provided that in this alternative arrangement the role of the secretary as a mediator between the Municipal Executive (College van Burgemeester en Wethouders) and the official organization is clearly positioned. Several municipalities also provide alternatives to the instruction for the registrar, but this concerns details such as the job description. They have no status and cannot therefore replace the prescribed instruction from the second paragraph of Article 107a of the Municipalities Act.

The political group support, as prescribed in the second paragraph of Article 33 of the Municipalities Act, does not go without saying either. In more than a fifth4 of Dutch municipalities, no support is provided for the party groups represented on the council. In addition to these municipalities, which have often removed political group support from the budget as an expenditure cut, almost all other municipalities with fewer than 100,000 inhabitants have a total budget of less than € 50,000 for the entire municipal council, making it all but impossible to ensure a real contribution to the support for the party groups in the council in substantive terms. Here too, there are significant regional differences. All municipalities in the province of Drenthe state that they have a functioning structure in place for political group support, while in the provinces of Utrecht and Friesland almost half5 of the municipalities have abolished the political group support required by law.

With regard to the official assistance, perceptions differ. Although the majority6 of municipalities have actually implemented the regulation prescribed in the third paragraph of Article 33 of the Municipalities Act, many of the respondents actually consider the provision of official assistance a non-item that rarely or never leads to problems. Municipalities see a distinction between private questions (informal, not based on the Municipalities Act and often one-to-one between a councillor and an executive committee chair), written and oral questions in accordance with the first paragraph of Article 155 of the Municipalities Act7 (connected with the right to information as set out in the third paragraph of Article 169 of the Municipalities Act8), technical assistance provided by the registrar in accordance with the provisions of the first paragraph of Article 107a of the Municipalities Act,9 and actual official assistance in accordance with the first paragraph of Article 33 of the Municipalities Act;10 however, this distinction is often very vague.

It is this confusion of rights, duties, and responsibilities of and by all actors within the municipal organization (council members, executive members, registrars, and civil servants) that in practice regularly leads to ambiguities and thus less good support for the municipal council in terms of substance than is intended by the legislator. It also puts the civil servant who is approached to provide the requested assistance in a difficult position.

Recommendations

On the basis of the identified shortcomings in the substantive support of the municipal council and its members, three categories of recommended changes in legislation and regulations can be distinguished: ‘must do’, ‘important to do’, and ‘nice to do’.

1. Must do

The ‘Must do’ category contains recommendations on changes to current legislation and regulations, involving obvious errors in the current provisions. Such adjustments are necessary due to consistent and congruent legislation and regulations.

1a. Adapt the third paragraph of Article 33 of the Municipalities Act

The regulatory power given to the municipal council in the third paragraph of Article 33 of the Municipalities Act appears to be a mere formality. Ultimately, control over the deployment of municipal civil servants lies with the Municipal Executive. The third paragraph should therefore only apply to political group support (see also ‘Important to do’ 2a). In a new fourth paragraph, the Municipal Executive could be obliged to set rules in consultation with the council11 regarding the official assistance to the municipal council (and its members).

1b. Adapt the Model Regulation on Official Assistance and Political Group Support

As the municipal council no longer has control over the organization of the municipal civil service nor over the local civil servants, the provisions on official assistance – by analogy with the proposed amendments to Article 33 of the Municipalities Act – should be removed from the model regulation of the Association of Dutch Municipalities (Vereniging van Nederlandse Gemeenten (VNG)), leaving a Model Regulation on political group support.

1c. Adapt the Model instruction for the municipal secretary

The update of the model instruction from the VNG published in 2005 (three years after the introduction of the separation of powers) still contains some obsolete provisions on the role of the municipal secretary vis-à-vis the municipal council or its chair. Since the Local Authorities (Separation of Powers) Act of 2002, however, the secretary no longer has any formal connection with the municipal council. This model instruction will have to be adapted to these components12.

2. Important to do

The ‘Important to do’ category contains recommendations on changes to current legislation and regulations, although there are no errors in the current provisions, but adjustments are desirable at local and national level in the interests of transparency and the equal treatment of municipal councils and council members.

2a. Reconsider the right to political group support

Despite the right to political group support obtained pursuant to the second paragraph of Article 33 of the Municipalities Act, more than one in five Dutch municipalities has disregarded this right and the regulation prescribed in the third paragraph of the same Article on this subject.13 That is a highly unusual and certainly undesirable situation. It cannot and should not be the case that local authorities make their own judgements on whether or not national legislation should be applied. The national politicians will therefore have to make a choice: to force municipalities to apply the law or to amend the law.

2b. Reconsider the obligation to set out instructions for the municipal secretary

Less than forty per cent of the municipalities comply with the provisions of the second paragraph of Article 103 of the Municipalities Act (the obligation to prepare an instruction for the municipal secretary). This requires a clear choice on the part of the legislator. The non-observance of an imperative legal provision by more than 60% of local authorities is not acceptable. The law therefore need to be adjusted, or compliance should be monitored.

2c. Re-introduce obligation of confidentiality when providing official assistance

With the ‘secondment’ of the local civil servant providing official assistance at the registry (see also ‘Nice to do’ 3b), he only has to report to the municipal council during as well as after his period of work within the framework of official assistance. The registrar and the employers’ committee hereby assume the role of the regular manager and employer. The municipal council can of course impose a duty of confidentiality on its own employees regarding the work carried out for it.

2d. Provide clarity about the right to ask ‘private questions’

The third paragraph of Article 169 of the Municipalities Act stipulates that all information from the Municipal Executive must be shared with all members of the council. In practice, however, this does not happen in all cases. After all, there are sometimes private questions (ondershandse vragen). It is advisable to limit the possibility of asking such questions as much as possible. This can be done by tightening the provisions of the law and/or by including a clearly defined distinction between non-political technical questions and politically sensitive policy questions in the municipal council’s rules of procedure. For the first category, it is possible to inform an individual council member directly. Questions that could have a political impact in any way – in practice, almost all questions that a councillor could ask about the ins and outs of the work of the municipality – must always be asked in accordance with the rules, based on the third paragraph of Article 169 of the Municipalities Act.

3. Nice to do

The ‘Nice to do’ category contains recommendations on adjustments to the current regulations, which could make the application of these rules more transparent and which could also benefit the integrity of directors, members of parliament, and civil servants.

3a. Exclude political group support of the provisions in title 4.2 of the General Administrative Law Act

In view of the major implications that all conditions from the category of aid of the General Administrative Law Act (Algemene wet bestuursrecht) would have for the recipient and provider of this support for political groups on the one hand and the relatively small amounts paid on average on the other hand, an extra provision in Article 33 of the Municipalities Act can be considered to state that the provision of financial resources for the groups represented on the council is not subject to title 4.2 of the General Administrative Law Act.

3b. Adapt the instructions for the registrar and the municipal secretary

In the instructions for the municipal secretary, the secretary can be granted powers to make decisions on whether or not to grant a request for official assistance and about making local civil servants available to the registry to provide the requested official assistance. Ideally, the secretary should second the civil servant to be provided as part of the official assistance to the registry. This would bring the civil servant under the jurisdiction of the registrar, and the civil servant in question would then report to the registrar and not to the secretary and the Municipal Executive. This also solves the loyalty dilemma of the civil servant14. This will have to be anchored in the instructions for the registrar and the regulation on the employers’ committee, which takes on the role of employer at the municipal council.

3c. Adapt the Rules of Order for the municipal council

The five-stage provision of information to the municipal council has not been elaborated clearly in the rules of procedure for most municipal councils. As a result, these trajectories often cross paths or overlap, leading to a great lack of clarity. It is therefore advisable to name, describe, and guarantee these different information flows in the municipal council’s rules of procedure.

3d. Modify the code of ethics for council members

A local councillor must be aware of his special position and not embarrass a local civil servant by asking him questions that should be asked via a different route (in the form of written or oral questions, official assistance, registrars’ support, etc.). It is therefore advisable to include a corresponding passage in the code of ethics for council members about the relationship between council members and local civil servants.

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Conclusion

In layman’s terms, the questions around which this study is based ask whether the various amendments – which were aimed at strengthening the content-related support for the municipal council, the political groups in this council, and the members of the council (including the introduction of a registry15 and the introduction16 and subsequent reinforcement17 of the right to official assistance), and the establishment of a right to political group support18) – achieved their intended impact. Are these rights adequately embedded in legislation and regulations? Or are we left with a ‘council without counsellors’?

All in all, these three questions can be answered with a ‘no’. No, the legislative changes have not – or not fully – achieved the intended effect. This is due to the lack of legally-sound anchoring in legislation and regulations. However, talking about a ‘council without counsellors’ is overly negative. In practice, it has been demonstrated that despite the poor legal foundation, the municipal council can, as a rule, build and rely on solid support from the registry and – on request – from the regular local civil servants.

Now we have to take the final step, securing the rights of the council and the civil servants in such a way that on the one hand the council is stronger in enforcing the support to which it is entitled and on the other hand it is clear to the local civil servants what may be expected of them in the provision of official assistance and to whom they are accountable for this.

Deze functie is alleen te gebruiken als je bent ingelogd.