Civic City of Lubartów

We informed readers about the submission of an application to examine the resolution on diets .

"The commune council may introduce changes to the agenda of the session convened under extraordinary procedure by an absolute majority of votes of the statutory composition of the council, provided that the consent of the applicant is additionally required".

As we know, Mayor Krzysztof Paśnik agreed to introduce the draft resolution on diets and the absolute majority of the Council voted in favor of changing the agenda.

We forward the received answer in full:

In response to the request of September 11, 2019. regarding the resolution No.X / 72/2019 of the Lubartów City Council of August 23, 2019. on the determination of the amount and the principles of granting per diems to the councilors of the City Council of Lubartów, I kindly explain the following.

    At the outset, it should be emphasized that the voivode supervises the activities of local government units in the context of their compliance with the currently applicable regulations and may intervene in this activity only in cases specified by statutes (Article 85 and Article 87 of the Act of 8 March 1990. about the municipal government  - Journal Of Laws of 2019, item 506, as amended). The use of other forms of supervisory interference, not regulated by the Act, constitutes an excess of supervisory powers by the supervisory authority. 
   The basic types of supervision measures that the voivode may apply are: 1) a supervisory decision declaring the invalidity of a resolution or ordinance of a commune body, 2) a substitute order issued if the commune body, contrary to the obligation resulting from the provisions, fails to adopt a resolution on the expiry of the mandate of the councilor, expiry of the mandate of the head of the commune, dismissal from the post or termination of the employment contract with the deputy commune head, commune secretary, commune treasurer, head of the commune organizational unit and the managing person or member of the managing body of the commune legal person. The grounds for invalidity are set out in Art. 91 paragraph. 1 above Act, according to which a resolution or order of a commune body that is inconsistent with the law is invalid. The basis for the invalidation of a resolution or order of a commune body may only be a significant violation of the law (Article 91 (4) of the Act on Municipal Self-Government a contrario). In order to apply the supervision measure provided for in the act, the voivode must clearly indicate the inconsistency with the law  provisions of the resolution under examination, explaining the meaning of the provisions which, in his opinion, were violated and the directives resulting from them, ie orders and prohibitions (judgment of the Supreme Administrative Court of 18 April 2000, III SA 397/00, ONSA 2001/1/77). In the opinion of the supervisory authority in the present case, such a breach did not occur. Resolution No.X / 72/2019 of the Lubartów City Council of August 23, 2019. on the determination of the amount and principles of granting per diems to the councilors of the City Council of Lubartów is in line with generally applicable provisions of law, including in particular art. 25 sec. 4 of the Act on Municipal Self-Government.
   Pursuant to this provision, on the terms established by the commune council, the councilor is entitled to a daily allowance and reimbursement of business travel costs. Therefore, the mentioned provision entitles the commune council to establish the rules on which benefits will be paid to councilors in the form of a diet and reimbursement of business travel costs. The wording "rules" used by the legislator includes the mode of settling allowances and travel costs. In the statement addressed to the supervisory authority, it was stated that: "Supervisory decision No. WNPI.4131.147.2019.DK of the Masovian Voivode indicates that the resolution on the amount of allowances is not to be" remunerative ". It is true that the judgment of the Supreme Administrative Court stipulates that the lump-sum calculation of the allowance is permissible - however, we ask for an examination in this context to what extent and whether the amount of the deductions is relevant for determining whether the resolution is not "remunerative". As far as, in the context of the non-lump sum nature of the diet, which theoretically should be compensation for lost profits due to, for example, paid work due to participation in the deliberations of the legislative body and its committees, one can consider such a solution that compensation for lost earnings and incurred costs is paid after submitting statements of expenses incurred. If we are dealing with the flat-rate nature of the diet, is it possible and permissible to change its amount in accordance with the literal meaning adopted in the applicable legislation, while the case law is based on the inviolability of the flat-rate remuneration, beyond the decision of the courts ”. Referring to the above, it should first of all be emphasized that the supervisory authority assesses the legality of resolutions adopted by local government units only in the context of compliance with generally applicable provisions of law, and not with regard to local government resolution practice. Against the background of the regulation resulting from Art. 25 sec. 4 of the Act on the Municipal Self-Government, there is a fixed position that the wording used by the legislator "on the principles established by the council" shows that it allows the commune council to act discretely. The concept of "rules" includes both the procedure for settling allowances and travel costs, as well as the method of determining their amount (cf. judgment of the Supreme Administrative Court of 17 December 1999, III SA 1580/99, LEX No. 41965). It should be noted that the legislator did not formulate a legal definition of this concept when using the term "diet". When reconstructing its meaning, it should be borne in mind that "diet" means  "Money allocated to the costs of maintaining an employee on a business trip, as well as a daily salary for people performing social functions, e.g. parliamentarians, councilors" (see "Universal dictionary of the Polish language" edited by St. Dubisz, Scientific Publishing House PWN, Warsaw 2003 , vol. 1, p. 612). On the basis of this definition, the term "diet" used by the legislator should be understood as the reimbursement of costs related to the performance of the function, which suggests its compensatory nature. As indicated by the Supreme Administrative Court, the allowance constitutes compensation for the salary lost by the councilor, and therefore is not an employee benefit (see judgment of the Supreme Administrative Court of 26 June 2014, II OSK 406/14, LEX No. 1519403). Thus, it should be assumed that the provision of Art. 25 sec. 4 of the Act on the Commune Self-Government contains an authorization for the decision-making body of the commune to specify the rules (principles) on which compensation will be entitled (compensation for expenses and losses) in connection with the performance of a councilor's mandate.
    According to  art. 25 sec. 6 of the Act on the Commune Self-Government, the amount of the allowances due to the councilor may not exceed, within a month, a total of 1.5 times the base amount specified in the Budget Act for persons holding state managerial positions pursuant to the provisions of the Act on shaping remuneration in the state budgetary sphere (with Article 25 (7))  of the Act on the Commune Self-Government is a delegation for the Council of Ministers to determine, by way of an ordinance, the maximum amount of allowances due to a councilor within a month). Moreover, Art. 26 sec. 8 above the law  determines that the commune council, when determining the amount of councilors' allowances, takes into account the functions performed by the councilor. The above-mentioned provisions define the limits of freedom in adopting a resolution on the allowances due to the councilors of the commune council. Within these limits, shaping the diet falls within the competence of the commune's legislative body. In particular, the rules established by the commune council also include the regulation making the amount of the allowance dependent on the scope of duties and limiting the amount due to non-participation in the work of the council (see judgment of the Supreme Administrative Court of 7 November 2017, II OSK 2794/16, CBOSA). In practice used by the commune councils it has been accepted that the allowances can be paid to the councilor in two ways: in the form of a specified amount for his participation in each meeting of the council or committee or in the form of a lump sum, payable at certain specified periods (see the judgment of the Supreme Administrative Court of 24 October 1990, II SA 694/90). In the latter case, it is required that when establishing this form of diet, the council should clearly define the rules of deducting the allowances for the councilor's absence at council sessions and at council committee meetings and possibly in other works (see judgments of the Voivodship Administrative Court in Poznań with on August 14, 2019, file reference number IV SA / Po 401/19, WSA in Warsaw of December 3, 2015, file reference number VIII SA / Wa 175/15). In the opinion of the supervisory authority, the resolution No.X / 72/2019 of the City Council of Lubartów of August 23, 2019. in the matter of determining the amount and principles of granting allowances for the councilors of the City Council of Lubartów, are fulfilled  defined  legal requirements. By the resolution in question, the City Council defined the diets for councilors in the form of a flat-rate amount depending on the function performed (§ 2 of the resolution). At the same time, in § 3, the Council established the rules of deducting allowances for the absence of councilors, stating that in the case of absence from the Council session, the due allowance is reduced by 30% (section 1). In the event of absence from the committee meeting, the allowance due to the councilor is reduced by 10% (section 2). The basis for reducing the monthly flat-rate diet referred to in § 1 section 1 are lists of councilors' attendance at sessions confirmed by the Chairman of the Council or, in his absence, the Vice-chairman of the commission (§ 4 of the resolution). Thus, the regulation of the resolution indicates that it is established by the City Council of Lubartów  diets for councilors are of a compensation nature, not a salary, which is in accordance with Art. 25 sec. 4 in connection with Art. 24 of the Act on Municipal Self-Government. It should be emphasized that the determination of the amount of deductions for the absence of councilors is within the competence of the Council and cannot be questioned in the supervision criteria. The analysis of the content of the resolution of the decision-making body of the commune, carried out by the supervisory body, is aimed at checking the compliance of this resolution with the applicable provisions of law. Therefore, the aspect of equity, purposefulness or economy of actions undertaken by a local government unit is not subject to supervision.
    In the speech, it was also raised that: As of today, i.e. 09/11/2019. we were refused a copy of the legal opinion issued to the draft resolution, and because during the session many amendments were submitted in connection with this opinion, we are not able to state whether all comments were taken into account. By letter of September 20, 2019, reference number AO.000  The chairman of the Lubartów City Council provided appropriate explanations and referred to the above allegation, indicating that: "With regard to providing a copy of the legal opinion, I would like to inform you that the Lubartów City Council received on September 26, 2019. application for disclosure of public information in the indicated scope. In the opinion of the Office, the requested document is not public information ”. Assessment of whether the legal opinion on the draft resolution indicated by you constitutes public information within the meaning of  the law  of September 6, 2001 on access to public information (Journal of Laws of 2019, item 1429), goes beyond the competences of the supervisory authority.  The aforementioned act  regulates the issue of access to public information in a comprehensive manner, defines both the subjective and objective scope of the application of the Act as well as the procedure and procedure for making public information available. In the event that the authority obliged to disclose the information refuses to disclose it to the person submitting the request for information, they have the right to specific means of appeal. Pursuant to Art. 16 sec. 1 of the Act on access to public information, the refusal to provide the requested information by a public authority should take the form of a decision. The issued negative decision may be appealed against to a higher level authority in accordance with the general rules provided for in the Code of Administrative Procedure (Article 16 (2) of the Act on Access to Public Information).  For the bodies of local government units, the higher level body is the locally competent local government appeal college, unless specific laws provide otherwise - Art. 17 point 1 of the Code of Administrative Procedure.  In the event of an unfavorable examination of the appeal, a complaint may be lodged with the voivodeship administrative court in accordance with the general principles provided for in the Act  of August 30, 2002 - Law on proceedings before administrative courts (Journal of Laws of 2018, item 1302, as amended) - Art. 21 of the Act on Access to Public Information.
    In the speech, it was also alleged that: “The draft resolution was introduced at an extraordinary session with the consent of the mayor at whose request it was convened. It was by no means a sudden event requiring extraordinary procedure. The explanations of the Chairman of the Lubartów City Council and the recording of the 10th session of the Lubartów City Council show that the session was convened at the request of the Mayor of the City of Lubartów. Pursuant to Art. 20 paragraph 3 of the act on the commune self-government, at the request of the commune head or at least 1/4 of the statutory composition of the commune council, the chairman is obliged to convene a session on a day within 7 days from the date of submission of the request. The request to convene a session should meet the requirements specified in para. 1 in the second sentence. This provision constitutes an exception to that resulting from Art. 20 paragraph 1 of the act on municipal self-government as a general rule  as regards the initiative to convene a session of the commune council by its chairman. This is because it enables the submission of such an initiative also by other entities (commune head and groups of councilors) in the manner specified in this provision.
     The provisions of the Act do not require a justification for the motion to convene an extraordinary session, because  joke. 20 paragraph 3 of the Act it follows only that the application meets the requirements specified in Art. 20 paragraph 1 of the Act - the application should include: the proposed agenda and draft resolutions to be presented at the session. The provision of art. 20 paragraph 3 of the Act on the Municipal Self-Government is a complete regulation in the scope concerning the method of convening a session commonly referred to as an "extraordinary session". Therefore, the legislator does not formulate any additional premises which will determine the convening of an extraordinary session. The act on the commune self-government does not indicate in particular that the subject of the extraordinary session may be only urgent, urgent matters which cannot be settled under the procedure of an ordinary session (see the judgment of the Supreme Administrative Court of February 16, 2016, file ref.no. II OSK 2940/16) ). The request of the Mayor of the City of Lubartów to convene the session met the requirements for convening the session, i.e. it was submitted by an authorized entity, the notification was accompanied by an agenda with draft resolutions. The session was convened by the chairman of the council within the time limit specified in Art. 20 paragraph 3 of the act on municipal self-government. The recording of the 10th session of the Lubartów City Council and the draft protocol shows that  the agenda delivered to the councilors before the session did not contain a point regarding the adoption of a resolution on the matter  determining the amount and rules for granting diets to the councilors of the City Council of Lubartów. At the beginning of the session, one of the councilors submitted a motion to introduce to the agenda an item concerning the adoption of a resolution on the determination of the amount and principles of granting per diems to the councilors of the City Council of Lubartów. According to Art. 20 paragraph 1a and sec. 4 of the act on the commune self-government, the commune council may introduce changes to the agenda of the session convened under extraordinary procedure  by an absolute majority of votes of the statutory composition of the council, however, the consent of the applicant is additionally required. From the documents submitted to the supervisory authority  it follows that the Mayor of the City of Lubartów consented to the extension of the agenda by a point relating to the resolution in question. Then, the motion to change the agenda was put to a vote by the Chairman of the Lubartów City Council pursuant to Art. 20 section 1a  the act on municipal self-government. 16 councilors voted for the motion, 2 against the motion, and 0 abstained from voting. The statutory composition of the Lubartów City Council is  21  councilors. Therefore, it should be stated that the requirements set out in Art. 20 paragraph 1a of the act on commune self-government regarding the introduction by the City Council of Lubartów to change the agenda  during the session they were met in this case. The draft protocol also shows that the Budget Committee for Economic Initiatives of the City Council of Lubartów met during the break, which gave a positive opinion  draft resolution with proposed amendments. Then, as a result of voting (16 votes - for,  2 votes - against, 1 abstention) a resolution on the determination of the amount and the principles of granting per diems to the councilors of the Lubartów City Council with amendments  was accepted.
    The legality of Resolution No. X / 72/2019 is also assessed by the supervision authority without affecting the provisions of § 50 para. 2 point 4 of the Statute of the City of Lubartów adopted by resolution No. VIII / 47/2015 of June 23, 2015. (Journal of Laws of the Lubelskie Voivodeship of 2015, item 2593) shows that the draft resolution should contain, if necessary, the sources of financing the implementation of the resolution. By using  return "as needed"  the legislator did not impose the obligation to include this element in each resolution adopted by the decision-making body, leaving  the same recognition decision  this authority.
In light of the above, there is none  therefore  scratch  legal  down  usage  any  supervisory activities in the matter presented by the State.
On behalf of the Lublin Voivode
Cezary Widomski Deputy Director of the Legal, Supervision and Control Department
/ signed electronic /
 

So much for the formal side. Our doubts remained, because what criteria should we use to treat the amount of the diet we are supposed to  be compensation for  lost earnings by the councilor. There is also a way to obtain a legal opinion prepared for  this resolution.