Cities, Towns and Rural Municipalities
Chapter 14 of the Constitution guarantees the autonomy of local government, i.e. the right of local authorities to resolve and manage local matters independently. Naturally, rural municipalities, towns and cities must observe the Constitution and other laws in their activities. A local authority must respect people’s fundamental rights and freedoms, save taxpayers’ money and be honest in its dealings.
Local authorities are not a local extension of the arm of the national Government or ministries. The idea of local government is that local matters are resolved by the community itself in a manner most suitable for the particular city, town or rural municipality. The state should provide support in this process: matters should be arranged so that local authorities have enough money to promote local life. The state may also impose functions of the state on local authorities by law, but in that case sufficient funds should be provided from the state budget to fulfil these functions. Local and state budgets are separate.
During the reporting year, the Chancellor of Justice had to resolve several legal issues related to the working arrangements of municipal councils and rural municipal, town and city governments, including those arising from the emergency situation imposed because of the spread of the coronavirus. For example, the Chancellor recommended using flexible solutions for organising the work of municipal councils in the emergency situation (see Municipal council sessions in the emergency situation). The Chancellor also verified that rural municipalities, towns and cities perform public functions lawfully and do not violate fundamental rights and freedoms of people and legal persons.
Working arrangements of local authorities
A municipal council is a body laid down by § 156 of the Constitution. Thus, it enjoys the right of self-organisation, including the right to establish its working arrangements and procedural rules. The right of self-organisation, i.e. the right of discretion, cannot justify arbitrary acts. When exercising its right of self-organisation a municipal council must observe the rules and principles enshrined in the Constitution and the European Charter of Local Self-Government as well as laws. A municipal council also establishes more precise rules of procedure for the rural municipal, town or city government, the bases and procedure for formation of committees as well as the bases for their operation. Several issues related to working arrangements of a municipal council and government are regulated by the Local Government Organisation Act.
Deliberation by a municipal council of draft legislation initiated by a municipal council member
Based on a petition received by the Chancellor, she reviewed the legality of § 20(5) of the statutes of Jõgeva Rural Municipality. According to that provision, a draft legal act is not included on the agenda of a municipal council session unless it receives approval from the relevant municipal council committee, or ‒ in the case of a draft referred to several committees ‒ the approval of the lead committee. If the committee rejects the same draft act for the second time, the municipal council chair shall decide on inclusion of the draft on the session agenda.
The Chancellor found that the provision could be interpreted so that it does not result in violation of a municipal council member’s right to initiate draft legislation: that is, the municipal council chair decides on inclusion on the agenda of a draft legal act submitted for the second time in line with the requirements (i.e. conforming to the requirements laid down by the municipal council) but not receiving support in the committee.
If a municipal council member has initiated draft legislation meeting all the requirements but the majority of a council committee (or, e.g., the committee or municipal council chair) rules out deliberation of the draft at a session within a reasonable time, this excessively restricts exercise of a free mandate. Municipal council opposition member(s) enjoy(s) the right to participate in law-making in the municipal council within the limits of their mandate. Protection of the rights of a political minority is an inseparable part of the principle of democracy (§ 1(1); § 10; § 156 of the Constitution). Also, arising from the principle of political responsibility, a situation should be avoided where ‒ even before any deliberation ‒ draft legislation meeting all the requirements is excluded from municipal council proceedings. This applies all the more if achieved by votes of committee members who are not municipal council members (see the opinion on “§ 20(5) of the statutes of Jõgeva Rural Municipality”).
Session invitation and notification of materials
Based on a petition, the Chancellor verified whether Haljala Rural Municipal Council had lawfully handled the drafts of the municipality’s development plan 2019−2030, budget strategy 2020−2030, and 2019 supplementary budget No 1.
Although procedural errors in handling this draft legislation did not require annulment of the legislation, yet as the principle of good administration (§ 14 Constitution) had been breached the Chancellor made to the municipal council and municipal government a proposal to ensure compliance with the principles of good administration. Inter alia, this means that the municipal council must approve the budget strategy and the development plan by 15 October at the latest (§ 372(7) and (3) Local Government Organisation Act), comply with the requirements for budget proceedings established by itself, and make the session invitation and materials available to municipal council members in time.
Section 43(3) of the Local Government Organisation Act stipulates as follows: “When convening a municipal council session, issues to be discussed shall be indicated in the notice of the session which shall be forwarded to the municipal council members not less than four days prior to the municipal council session. Together with the notice, the session materials shall be made available to the municipal council members.” That four-day deadline should be calculated in line with the general procedure for calculating deadlines (§ 135(1) and § 137(1) General Part of the Civil Code Act). Compliance with the requirement of the four-day deadline is not a mere formality; its purpose is timely notification to municipal council members of an upcoming session so that they could prepare sufficiently thoroughly for deliberation of the issues on the agenda (see point 1 of the proposal).
Participation in an e-session
Mustvee Rural Municipal Government asked the Chancellor about electronic sessions since some municipal council members wanted the council statutes to stipulate the possibility of participation in a council session by electronic means.
In her reply, the Chancellor noted that the Local Government Organisation Act did not regulate virtual participation in municipal council sessions. However, this does not rule out stipulating that possibility in a rural municipality’s statutes. It is important to bear in mind that all municipal council members should have equal rights in exercising their mandate. This also includes possibilities for participation in council sessions. Although virtual communication is somewhat different from face-to-face communication, limitations on the exercise of a free mandate by a municipal council member participating at a session virtually are not so serious as to legally preclude the possibility of virtual participation at a municipal council session.
A municipal council may restrict the exercise of a free mandate by a council member. However, those restrictions may not be arbitrary or restrict the free mandate excessively. For example, it would be difficult to find a legitimate purpose for a restriction according to which a municipal council member may not participate virtually in a municipal council session more than twice consecutively. Also, a restriction which is legitimate in substance may not be applied arbitrarily. As to the basis on which a municipal council member may, for example, request interruption of voting in connection with an interruption in transmission of the session, this would be determined by the municipal council.
As a rule, oral agreements on municipal council session arrangements do not replace written law. If legal problems arise, a solution is found, first and foremost, based on legal norms and principles.
Although virtual participation is used at municipal council sessions, this still remains only an additional possibility for participation in the work of the council. The traditional session (i.e. with physical presence of municipal council members) has proved itself in practice and, in view of the substantive quality of local democracy (§ 156 Constitution), this should remain the prevalent form for participation at a municipal council session.
The Chancellor was asked about holding electronic municipal council meetings mostly during the emergency situation (in more detail, see the chapter on “Rule of law in an emergency situation”).
Refusal to give information to municipal council members
At the request of a member of Rae Rural Municipal Council, the Chancellor assessed the lawfulness of the rural municipal government in replying to their written question, and made the municipal government a proposal to comply with the principle of good administration.
The Local Government Organisation Act (LGOA) does not explicitly stipulate that a person or body replying to a written question by a municipal council member may refuse to provide information unless this is precluded by law. However, this does not allow for the conclusion that if a municipal council member asks for information in such a large amount that analysis of the information impedes the municipal government’s performance of public functions and does not enable replying to the question by the deadline, the government could not refuse to reply (§ 26(2) (first sentence); § 30(1) clause 3 LGOA). Sufficient reasoning must also be given for refusal to provide information since this is a discretionary decision. Thus, § 5(10) of the Response to Memoranda and Requests for Explanations and Submission of Collective Addresses Act is also applicable: in the event of refusal to reply, the municipal council member must immediately be informed what deficiencies they should eliminate in order to receive a response to their written question. Under that provision, a municipal council member and the addressee of their question should look for a compromise and refrain from misusing their right. At the same time, this helps to ensure that the principle of good administration (§ 14 Constitution) is observed.
Connected persons and procedural restrictions
The Chancellor drew the attention of Maardu Town Council to the fact that a municipal council in its rules of procedure or other legal acts may not limit concepts defined by law or the bases for applying a procedural restriction (see the opinion on “Rules of procedure of Maardu Town Council”, point II).
Section 7 of the Anti-corruption Act lays down the concept of a connected person, which also includes legal persons. Section 11(1) of the Act requires refraining from making a decision if at least one of the following circumstances exists: the decision is made or the act is performed with respect to an official or a person connected to them; the official is aware of their own economic or other interest or an economic or other interest of a person connected to them and which may have an impact on the act or decision; the official is aware of a risk of corruption. A municipal council member may not participate in the preparation, deliberation and resolution of legislation of specific application in the municipal council with regard to which a procedural restriction extends to the member under the provisions of the Anti-corruption Act (§ 17(5) LGOA). In that case, the municipal council member is required to make a statement prior to deliberation of the issue that they will not participate in that deliberation. Depending on circumstances, violation of a procedural restriction is punishable as a misdemeanour (see § 19 Anti-corruption Act) or as a criminal offence (§ 3001 Penal Code).
Official travel of a municipal council chair
The Chancellor was asked to assess whether the procedure laid down in the Valga Town Council regulation for secondment of the chair of the municipal council to official travel was lawful. The regulation authorised the municipal council deputy chair to approve and draw up papers concerning official travel of the municipal council chair.
The Chancellor found that the part of the regulation regulating secondment of the municipal council chair was lawful.
Under § 11(2) of the Anti-corruption Act, in the case of a procedural restriction, an official is prohibited from assigning to subordinates the task of performing an act or making a decision instead of the official. If due to a procedural restriction an official cannot make a decision or perform an act, they must immediately inform their immediate superior or the person or body that has the right to appoint the official. The immediate superior or the person or body with the right to appoint the official shall themselves perform the act or make the decision or assign this task to another official.
A municipal council shall elect its chair and deputy chair from among its members (§ 22(1) clause 14 LGOA). A deputy chair of a municipal council is not a subordinate of the chair of a municipal council, so the requirements of the Anti-corruption Act have not been violated.
Subordination of the chair of the municipal council audit committee
A municipal council member enquired whether the chair of a rural municipality’s audit committee as head of an agency administered by the municipality may be directly subordinated to the rural municipal mayor. Currently, no such ban exists in the law, but it will be introduced as of autumn 2021. As of the day of announcement of the 2021 municipal council elections, a provision in the Local Government Organisation Act enters into force stating that a member of the audit committee may not perform the functions of a chief executive, head, or member of the board of a company, foundation or non-profit association under the dominant influence of the same rural municipality, town or city, or the functions of a head or deputy head of an agency administered by an administrative agency of the same rural municipality, town or city.
However, members of an audit committee must already comply with the rules of the Anti-corruption Act concerning avoiding conflict of interest, restrictions on activities or procedural restrictions, and refraining from decision-making. If the chair of an audit committee is simultaneously the head of an agency administered by an administrative agency of the rural municipality, their work in the audit committee is rendered difficult because, with a view to avoiding conflict of interest, they should withdraw from a large part of their work. In supervision over activities of a rural municipal, town or city government, the audit committee plays a central role, so that the independence of members of the audit committee is extremely important.
Access to local authority premises
The Chancellor was asked to assess whether it was lawful that people with special mobility needs have no access to the premises of Valga Rural Municipal Council and Rural Municipal Government.
It is not lawful if the offices of local authority bodies are partially inaccessible to people with special mobility needs. The Chancellor asked the rural municipal government to inform her regularly about the steps that have been taken to change the situation (see the opinion “Access of people with special mobility needs to rural municipal council and municipal government premises”).
The municipal government and council must arrange their work so that municipal council members with special mobility needs, as well as people with special mobility needs wishing to observe a municipal council session on site, could access the council session room without impediment. The work of a rural municipal, town or city government must also be arranged so that people with special mobility needs are ensured access to working premises.
It is understandable that renovating buildings may prove to be expensive, technically complicated and time-consuming, but reconstruction of buildings is not the only way to ensure access to municipal council and government working premises. The municipal council and government are also entitled to change their working arrangements and relocate to premises accessible to people with special mobility needs.
Article 7(1) of the European Charter of Local Self-Government also stipulates that the conditions of office of local elected representatives shall provide for free exercise of their functions. Under Article 2(1) of the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority, the parties shall take all such measures as are necessary to give effect to the right to participate in the affairs of a local authority.
Organising local life
Under § 154(1) of the Constitution, all local matters are determined and administered by local authorities, who discharge their duties autonomously in accordance with the law. That constitutional provision entitles rural municipalities, towns and cities to resolve all local matters without needing special authorisation for this. This right precludes laying down an exhaustive list of local matters in laws. However, the right of self-organisation, i.e. autonomy, is not unlimited: the words “discharge their duties ... in accordance with the law” in § 154(1) should be understood as the requirement of legality (see the opinion “On the right of self-organisation and interpretation of law”). When organising local life, rural municipalities, towns and cities must observe persons’ fundamental rights and freedoms.
Encumbrances imposed under property maintenance rules
The Chancellor was contacted by a resident of Pärnu city who wrote that, due to various circumstances, they were unable to maintain the municipal land (200 m2) adjacent to their immovable. They asked the city to relieve them of the encumbrance but the city refused and suggested that the petitioner should pay 1080 euros a year to the public maintenance company.
The Chancellor asked Pärnu City Council to consider amending the regulation on “Establishing property maintenance rules and imposing an encumbrance” so as to avoid the risk of excessive restriction of fundamental rights in discharging the encumbrance (see the opinion on “Encumbrance imposed under property maintenance rules”).
Section 157(2) of the Constitution stipulates that local authorities have the right, on the basis of the law, to establish and levy taxes, and to impose encumbrances. More specifically, local authority encumbrances are regulated in § 36 subsections (2)−(9) and § 22(1) clause 4 of the Local Government Organisation Act. It does not follow from these provisions that a rural municipality, town or city should impose an encumbrance to ensure property maintenance on their public territory. A local authority may choose between several solutions. Fundamental rights may not be excessively restricted when imposing an encumbrance.
Excessive restriction of a person’s fundamental rights in discharging an encumbrance can be prevented by flexibility in regulations established by a municipal council. In a regulation on an encumbrance, a municipal council may allow advantages to a person in discharging an encumbrance or relieve them of discharging an encumbrance.
Pärnu property maintenance rules only see the municipal council’s role in setting the cost of the encumbrance based on materials submitted by the economic department. Under the law, such a solution is possible but, in the specific case, this may prove to be insufficient and result in excessive restriction of a person’s fundamental rights. It is important to avoid a solution where, in order to discharge an encumbrance, a person is forced to apply for social assistance or support from public authorities.
In its reply to the Chancellor, Pärnu City Council announced that the city was preparing new property maintenance regulations and that the Chancellor’s proposals would be considered.
The Chancellor was asked to verify the lawfulness of a provision in the regulation on “Establishing property maintenance rules and imposing an encumbrance”. Under that provision, with a view to property maintenance, a natural and a legal person must carry out necessary work on an immovable in their ownership or possession, or on other territory in their use, and on immediately adjacent public territory between their immovable and the road. The petitioner asserted that maintenance of an area which is part of a cadastral unit with designated use as transport land, or an area within the road protection zone with no pavement, should be ensured by the owner of the road. In support of their opinion, the petitioner cited the provisions of the Building Code (§ 97(6), § 71(1) and (3)) and the Minister of Economic Affairs and Infrastructure Regulation on the “Requirements for the condition of roads”.
The Chancellor concluded that the Building Code and the regulation on the “Requirements for the condition of roads” do not deprive a municipal council of the right to set the extent of an encumbrance for property maintenance purposes under § 22(1) clause 4 of the Local Government Organisation Act in the manner done by Pärnu City Council. The Building Code and its implementing legislation do not impose on a road owner a general duty of property maintenance within the road protection zone or on the road area. The purpose and substance of the encumbrance imposed under § 22(1) clause 4 of the LGOA and the duties extended to a road owner under the Building Code and its implementing legislation are different.
Regulations on keeping dogs and cats
Based on a petition, the Chancellor reviewed § 6 of the Rakvere rural municipality regulation on keeping cats and dogs and found that several provisions under this section were incompatible with the laws and the Constitution.
The above section in the regulation changed the scope of regulation of the Animal Protection Act and imposed public financial obligations without a legal basis. A municipal council may not change the rules contained in laws (either to restrict or expand the scope of a law) by its regulation. A municipal council may also not impose on people duties related to stray animals, which the law has imposed on local authorities. Section 663 of the Local Government Organisation Act is a penal norm whose more specific elements defining the offence are set in a regulation on keeping dogs and cats. Thus, when establishing the regulation it is particularly important to observe the purpose of the statutory delegating norm so as to avoid making punishable something that was not deemed punishable by the Riigikogu. A municipal council may impose a public financial obligation only on the basis of a law (see the opinion on “§ 6 of Rakvere rural municipality regulation on keeping cats and dogs”).
Rakvere Rural Municipal Council brought § 6 of the regulation into line with the laws and the Constitution.
Setting kindergarten expenses
The Chancellor was asked to check the provision in the Narva City Council Regulation on (“Setting the rate for part of other expenses to be covered by parents in Narva city preschool municipal childcare institutions”) by which the municipal council authorised Narva City Government to decide on the duty of parents in covering expenses of municipal childcare institutions during the emergency situation.
The provision was introduced in the emergency situation and the reason given for this was that, since during the emergency situation it had been strongly recommended not to take children to the kindergarten it “was not reasonable or fair that parents should pay the parental contribution for the time when a child was forced to be away from the kindergarten due to the emergency situation. Once an emergency situation is declared, as a rule, it is necessary to decide quickly and, therefore, it is appropriate and reasonable to delegate such decision-making to the city government”.
The Chancellor found that this provision in the regulation contravened § 27(3) and (4) of the Preschool Childcare Institutions Act and thus also the principle of legality laid down by § 154(1) and § 3(1) (first sentence) of the Constitution.
Making concessions to parents of preschool municipal childcare institutions in an emergency situation or relieving them of payment of other expenses (maintenance costs, staff wages, social tax, costs of teaching aids) of childcare institutions corresponds to the principle of the social state (§ 10 Constitution). In doing so, a local authority must act lawfully. A decision on whether parents must cover part of the other expenses of a childcare institution, and the amount of the parents’ own contribution, must be made by the municipal council. A municipal council cannot delegate this decision to the city government. The fact that the delegating provision in the regulation contravenes the law does not mean that the city should retroactively reclaim from parents other expenses incurred during the emergency situation.
Narva City Council replied to the Chancellor that it did not intend to amend the relevant provision in the regulation.
Local opinion poll
The Chancellor was asked to assess a poll organised by Narva City Government on building a care home for people with special mental needs. The question was worded as follows: “Should it be allowed to build a care home for people with mental disorders in the vicinity of residential buildings, healthcare and cultural institutions, shops and other public places? If your answer is YES then what location would you choose?” Four options were then offered. In the VOLIS online environment, a brief explanatory text had been inserted before the question along with a call on people to actively participate in the poll.
The Chancellor emphasised that a local authority must be particularly careful with wording a question of a poll so as not to reinforce prejudices against people in a vulnerable situation. The wording of the poll was not neutral but leading. A poll using a question with such wording may reinforce prejudices and fears as well as the opinion that fellow city residents with mental disorders should live apart from others even when they go to work and no constitutional basis exists to restrict their freedom as they pose no danger to themselves or others. By analysing the question from this angle, the wording of the question also contravenes the principle that people with special needs may not be treated less favourably than others (§ 12 Constitution).
People may move around freely where no basis exists for restricting that freedom. The same right is also enjoyed by people with special mental needs who pose no danger to themselves or others while still in need of assistance for coping. A child with special mental needs may be born to any family, and anyone may develop a special mental need during their lifetime due to illness or trauma.
The poll was also unnecessary from the aspect of spatial planning: proper inclusion, collection of opinions and weighing of interests is still necessary in the process of making decisions concerning spatial plans and building law. A local authority must always word a poll question with an honest mind and tell people well in advance and clearly what may be at stake depending on the result of the poll (see the opinion “Poll on building a care home for people with special mental needs”).