ASK: The amendments undermine the public interest

The Agency for the Prevention of Corruption (ASK) assessed that the proposed amendments of a group of deputies to the Local Self-Government Act exclude the right to a legal remedy, which cannot be limited, thus eliminating the two-tier system and, as they assessed, ultimately undermines the public interest.

KAS today published its opinion on the Proposal for Amendments to the Law on Local Self-Government, which is on the agenda of the Assembly, and, when it comes to amendments, called on the legislator to bear in mind that the key word in both proposed amendments is "final election results", and which is defined, worked out and determined through the articles of the Law on the Election of Councilors and Members of Parliament, where the protection of voting rights is provided by electoral commissions, the Constitutional Court and the competent courts, and where the competent authorities and the mechanisms of action by the competent authorities are elaborated and determined, both in response to objections and appeals .

"Due to all of the above, the Agency is of the opinion that the proposed amendments exclude the right to a legal remedy, which cannot be limited, thus eliminating the two-tier system, which ultimately undermines the public interest," the opinion stated.

The amendments were submitted yesterday by the vice-president of the Assembly and the official of the Movement for Change (PzP) Branka Bošnjak and the deputies of the Democrats Danilo Šaranović and the Civic Movement URA Miloš Konatar.

The amendments provide that, if the competent election commission does not announce the final results of the elections within 60 days of their holding, the mandate of the current convocation of the local parliament will end by force of law.

Šaranović said at the press conference yesterday that the 60-day deadline in Podgorica expires today.

The Agency appeals to the Parliament of Montenegro, as the legislative branch of government, to ensure that the adopted legal solutions are good and fair, because this is the only way the legal system can be made independent and strong.

ASK states in its opinion that, bearing in mind the importance of the Law on Local Self-Government, as a law that systematically regulates the way of management and decision-making by citizens in the local community who decide directly or indirectly through elected representatives, it is desirable and necessary that all changes to the aforementioned regulation be made with consultation interested and professional public, with special provision for the participation of the Ministry of Public Administration, local self-government units and the Community of Municipalities of Montenegro in all phases of this legislative procedure.

"Additionally, bearing in mind the key values ​​of public administration reform, which are recognized by the Public Administration Reform Strategy 2022-2026, with the Action Plan 2022-2024, and especially the activities planned through Operational Goal 1.3 (Strengthening of functional and financially independent municipalities to ensure more even development of all units of local self-government), it should be ensured that normative solutions in this area correspond to the aforementioned strategic documents", said KAS.

When it comes to articles 2 and 3 of the Proposal for Amendments to the Law on Local Self-Government, which propose that the secretary of the assembly be appointed for a period of four years without a public competition, compared to the current decision according to which his term of office lasts five years and is elected on the basis of a public competition, as well as to delete 2, 3 and 4 of Article 51 of the Law, which concern the methods and procedures for announcing a public competition for the position of Secretary of the Assembly, ASK believes that proposing such modification.

They explain that the absence of criteria and procedures for the selection of public office holders is one of the reasons for the emergence of corruption risks in the norm, which ultimately does not contribute to the transparency of the selection process itself, the selection of the best and highest quality candidates, and thus leaves room for various types of abuse and trading in influence as one of the corrupt forms of behavior, which the Agency has repeatedly appealed to in all its opinions.

"Due to all of the above, the Agency invites the proponents to keep the existing solutions from the Law on Local Self-Government, which refer to the method of electing the secretary of the assembly, in the manner provided for in Article 51, paragraph 2, 3 and 4, in order to satisfy the basic conditions for the election of this persons to public office should be transparent, and in order to meet the conditions for the best candidate to be elected in a procedure that is free from any illegal influences".

KAS states that when it comes to the length of the mandate for which the secretary is appointed, the aforementioned norm needs to be considered, in order to maintain the existing solution from the Law on Local Self-Government and to provide a kind of "institutional memory", and how this the mandate would not be related to the mandate provided for the president, i.e. the assembly, especially bearing in mind that the secretary of the assembly organizes and takes care of the performance of professional, administrative and other tasks for the assembly and its working bodies and performs other tasks determined by the statute and other acts assembly, as provided for in Article 52 of the Law on Local Self-Government.

"Although the explanation of the Bill states that the intention of the proponent is to align the conditions related to work experience for certain positions with the conditions provided for in the Law on Civil Servants and State Employees, and as the proponent states that the conditions in the Law on Local Self-Government are stricter for acquiring a title, i.e. performing functions at the local level, the Agency appeals to the proposer to "weigh the conditions" for the performance of certain jobs at the local self-government level, especially those intended for high-management staff and expert-management staff, with special caution, which is indicated the same way in the opinion adopted on the Proposal for Amendments to the Law on Civil Servants and State Employees".

ASK, in relation to the changes related to the reduction of years of work experience as a condition for establishing an employment relationship, and especially in relation to high-management staff and expert-management staff, believes that they are in direct opposition to the requirement to create a strong administration made up of highly professional personnel.

"The agency is of the opinion that the determination of the length of work experience for the respective positions should be the result of specially designed criteria, which will be significant when it comes to grading the positions themselves within the existing categories and levels, and therefore one of the elements necessary for promotion merits, which represents a clear stimulus and incentive for the commitment of employees within the local administration, and affects the improvement of the quality of work of the entire system, at this level".

When it comes to the proposed amendment that refers to the opening of the possibility that a person outside that authority, that is, the service that meets the conditions prescribed for the chief administrator, that is, for the post of high management staff for which he is appointed, can be appointed as the acting official, as a rule, and not as an exception, the Agency is of the opinion that it should be taken into account that the acting person is a person who is temporarily appointed for the position in question. For this reason, they believe, it is a natural solution that these persons come primarily from among the employees of that body, as a kind of "transitional solution", and only exceptionally, if the employees of that body do not meet the conditions, a certain person from outside that body, that is, the service, who meets the prescribed conditions.

When it comes to the solutions given through the amendments of Genci Nimanbegu (Forca), the Agency invites the competent parliamentary committees, as well as deputies, to consider the need and justification of introducing special titles, specifically the title of adviser to the President of the Assembly and the title of adviser to the President of the Municipality, bearing in mind that the Law already introduced several positions that directly contribute to the work of municipal bodies, as well as that the proposed legal solutions lack criteria based on which the justification for introducing this category of employees in specific municipalities and their number would be assessed.