November 12, 2019
New political realia of contemporary Ukraine call for revising a number of novelties introduced during several previous years in the public administration sphere. One of them is the parliament’s decision adopted in November 2017 to amend legislation, specifically to exclude heads and deputy heads of local state administrations from the list of civil servants.
In order to justify this opinion, let us look back at the history of this issue.
At different stages of development of civil service in Ukraine, matters pertaining to the status of heads of local (oblast and raion) state administrations underwent significant transformations and have become subject to controversial approaches.
After Ukraine declared independence, the need to create executive bodies at the regional and sub-regional levels arose. In 1992, the status of the highest executive official – head of local state administration in a respective administrative and territorial unit was legislatively granted to a representative of the head of state in the oblast. At that time, legislation on civil service was non-existent.
After a year, this definition of the status was reduced to the head of local state administration, and six months later a representative of the President of Ukraine received a legislatively granted status of a civil servant which meant identifying his/her professional duties as practical implementation of tasks and functions of the state. Since then, the oblast-level heads belonged to the highest first category of civil servants, and the raion-level heads belonged to the third one out of seven available categories.
In the Constitution of Ukraine adopted in 1996, the title of a representative of the President of Ukraine (head of administration) was replaced with a head of local state administration responsible for appointing members of a local state administration. Pursuant to the provisions of the Constitution, a head of local state administration was appointed to and dismissed from office by the President of Ukraine following the nomination by the Cabinet of Ministers of Ukraine.
The Law of Ukraine On Local State Administrations adopted in 1999 placed a special emphasis on the status of heads as managers of executive bodies who act as heads of respective local state administrations, manage their activities, and are responsible for performing the tasks vested in local state administrations. The Law provided for granting these officials the category of civil servants and the status of the principal employers in the state administration.
Adoption of the Law of Ukraine On Civil Service in 2015 introduced the most significant changes concerning the status of heads of local state administrations. In the first place, a mandatory competition was introduced. From that time on, a person was appointed to the position of an oblast or raion head not on the basis of selection “from the top”, but on the basis of candidates’ own expression of the desire to take part in the competition following an open announcement. The right to select a winner was granted to the Senior Civil Service Commission. This happened because the heads of oblast and rayon state administrations were granted the highest Category A (senior civil service ranks).
In December of the same year of 2015, an attempt was made to transfer appointment of the heads of administrations so to say to the back rooms of the Administration of the President of Ukraine by “shifting” these officials to Category B. In July 2017, the respective draft law was adopted in the first reading.
Yet, in autumn 2017, the direction of movement was changed towards creating a special group of officials formed by the heads of local state administrations outside the scope of civil service. Such approach received criticism of the Main Scientific and Expert Department of the Verkhovna Rada of Ukraine, which mentioned in its conclusion that such actions will make the legal status of these officials unclear. Despite this, the aforementioned decision was adopted by the parliament on November 9, 2017, and four days later it was signed by President Petro Poroshenko. Among other things, it led to the situation when the heads of state administrations retained the right to appoint other civil servants have gone beyond the scope of civil service.
Bringing heads of local state administrations out of the group of civil servants was criticised by many experts. For instance, the Chair of the Board of the Center of Policy and Legal Reform, Ihor Koliushko, drew attention to the fact that one procedure of selecting candidates for positions of heads of local state administrations was cancelled without substituting it with a new one. Furthermore, he added, “In fact, the Presidential Administration receives a free of charge army of campaigners for elections. Why would they spend money and effort if they can create campaign headquarters just in the state premises, and appoint their campaigners as heads of administrations?”.
Therefore, heads of local state administrations were deprived of the status of civil servants contrary to the general course of development of the public administration system as a result of inconsistent steps aimed at turning representatives of the public policy sphere into activists of a certain political party.
In my opinion, in order to rectify this situation, the status of Category A civil servants should be returned to heads of local state administrations so that the institute of prefects could be introduced on the basis of the wording of the Law of Ukraine On Civil Service, which was not affected by the election race. Moreover, amendments to the Constitution of Ukraine that were preliminarily approved by the Parliament on August 31, 2015, concerning decentralisation of power suggest that prefects should be defined as civil servants.
However, there is another possible scenario which is based on recognising heads of oblast state administrations and later prefects as political officials. For instance, Ihor Koliushko, who was quoted above, said back in 2017, “One of the alternative options that I offered was that we should turn positions of the heads of oblast state administrations into political offices (they would be appointed similarly to members of government), and heads of raion state administrations would be Category B civil servants. Then everything would be perfect”.
Availability of alternative options offers a legal possibility to solve the current problem with defining the status of heads of local state administrations which results from the fact that they were removed from the group of civil servants without being assigned to political offices. Now the choice has to be made by legislators: either returning them to the group of civil servants or granting the status of political figures to them. The third option is not possible according to the normal logic but, most regretfully, it exists in practice. Let’s hope that this will be noticed by those who initiate and adopt changes to the legislation.
Author: Yevhenii Borodin, Doctor of Historical Sciences, Professor of the Department of Public Administration and Local Self-Government of Dnipropetrovsk Regional Institute of Public Administration, National Academy of Public Administration under the President of Ukraine, Expert of Ukrainian Public Law and Administration Network.Author : Ukrainian Liaison Office in Brussels