Lecture 5. Foreign experience and the basics of the comparative municipal analysis (2 hous).

This lecture is dedicated to the current municipal problems in Ukraine which can be solved by the implementation of the best practices of the foreign countries. At the beginning of the lecture the students will get the brief overview of using the comparative method in the constitutional researches. It will give them the basis for the critical comparative analysis of the relevant national and foreign experience.

Learning outcome: By the end of the lecture students should be able to compare the local self-government in Ukraine with the municipal government in selected foreign countries (mostly old democracies) and to suggest changes aimed to improve the Ukrainian legislation.

Key terms of the topic:
Comparative approach	Comparative research
Comparative method	the United States of America
the United Kingdom of Great Britain and Northern Ireland	Federal Republic of Germany

It is advisable to start the comparative municipal research from the system of local self-government that is used in the country, the administrative division of the country and then move to the organizational form (forms) of the municipal government. The organizational form of the local self-government is the analog of the form of the state. The form of the state shows how the state bodies of central power are organized and interact with each other. The organizational form of the local self-government shows how the municipal bodies are organized and interact with each other.

Nowadays the municipal reform as the part of the administrative reform is being carried out in Ukraine and many efforts are being taken to increase the efficiency of the local government. To achieve this goal some researchers recommend that the doctrine of separation of powers should be applied to the local government.

It is a common knowledge that the doctrine of separation of powers is applied to the state government. But currently essential number of authors widely uses such phrases as "the legislative and the executive branches of municipal power", "the representative and the executive branches of local government" and so on. This gives reason to consider that some researchers think the doctrine of separation of powers could work when it refers the municipal power. There are scholars who show opposite points of view as well.

In fact, currently a few Ukrainian authors are investigating thoroughly this problem. But such phrases as "the legislative and the executive branches of municipal power", "the representative and the executive branches of local government" give reason to consider that some researchers think the doctrine of separation of powers could work when it refers the municipal power.

Certainly the proposition to apply the doctrine of separation of powers to the local government is very attractive. Mostly because of the fact that the concept determining that the legislative, executive, and judicial branches of power ought to be separate and distinct could help to prevent the usurpation of power. Nevertheless it appears that it's impossible to apply the doctrine of separation of powers to the local government. In order to make this doctrine work effectively, three branches must be rather independent and, which is more important, to have the same nature (for example, all of them must belong to the state power, or all of them must belong to the municipal power). And the courts are always the parts of the state (in the federal countries, for example, in the USA - of the state or federal) system. So it seems one could think that the doctrine of separation of powers can not be applied to the local government. N. Kornienko is among these authors – he thinks that "on the local government level the doctrine of separation of powers doesn't works". But he doesn't deny "the advisability of the rational separation of functions in the local government system between it's representative and executive parts, if the unity of these parts will be ensured".

I. Kozura and O. Lebedinska characterising a municipal council, describe it as a collegial, representative (in American interpretation - legislative) body. Indeed, "it is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches" (Teaching With Documents Lesson Plan: Constitutional Issues: Separation of Powers).

Likely due to this fact the doctrine of separation of powers is mentioned rather often in the acts of the US states and in the local acts concerning municipal government. "The separation of powers … applies to municipal government in the following manner: the mayor/city manager and operating departments compare to the federal executive branch (President); the city council compares to the legislative branch; and the municipal court compares to the judicial branch. Each of these branches must operate independently of each other" (The Municipal Court in Local Government).

Sometimes even four branches of power on the municipal level are distinguished. Noblesville Code of Ordinances, § 30.01, stipulating the organization of city government, sets that the government of the city shall consist of four branches, those being the following: (A) executive branch, (B) legislative branch, (C) fiscal branch, (D) judicial branch.

According to the Carmel, Indiana City Code the government of the City of Carmel shall consist of four (4) branches, those being:

- executive branch (the Mayor is the City executive and head of the executive branch);

- legislative branch (the legislative branch of the City is the Common Council);

- fiscal branch (the Clerk-Treasurer is the fiscal officer of the City and the head of the fiscal branch);

- judicial branch (City Court of Carmel).

But more often acts of this type distinguish separate three branches of power. For example, San Francisco Charter stipulates the existence of the legislative branch, the executive branch and the judicial branch; the judicial branch includes Superior and Municipal Courts.

Certainly the proposition to apply the doctrine of separation of powers to the local government is very attractive. Mostly because of the fact that the concept determining that the legislative, executive, and judicial branches of power ought to be separate and distinct, is a method of removing the amount of power in any group's hands, making it more difficult to abuse. The accumulation of all branches of power, legislative, executive, and judiciary, in the same hands whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny (D. Hatch).

Nevertheless it appears that it's impossible to apply the doctrine of separation of powers to the local government. In order to make this doctrine work effectively, three branches must be rather independent and, which is more important, to have the same nature (for example, all of them must belong to the state power, or all of them must belong to the municipal power). And the courts are always the parts of the state (in the federal countries, for example, in the USA - of the state or federal) system. Sometimes, thought, the judges are elected by the territorial community.

Although the municipal court is created by state statute, it is also a part of the city government. But also (and first of all!), as it have been mentioned above, it is the part of the corresponding state or federal system. No matter that "municipalities have wide latitude in prescribing the organizational structure of the court. Home rule cities … have been empowered to enact charter and ordinance provisions … which prescribe structural details of local court organization. The judge is appointed by the city council and is generally responsible for presiding over trials and other court proceedings, for conducting various magisterial functions of the court and for the general administration of the court. … Court clerks are usually appointed by the city council and are responsible to the judge for direction in matters pertaining to overall court policy and judicial procedures. … and performing other duties as may be outlined in the city charter or ordinances" (Municipal Court in Local Government).

So it seems one could think that the doctrine of separation of powers can not be applied to the local government. Though writing about this doctrine, Aristotle in’The Politics’ spoke about "the city", it is obvious that it was about the "city-state", or the polis of ancient Greece. Charles Montesquieu researched legislative, executive and judicial power concerning monarchical and republican government. The founding fathers mentioned "the federal judicature" (A. Hamilton), "republic, commonwealth, popular state" (J. Adams) and the doctrine of separation of powers. A. Mishyn studying the doctrine of separation of powers using the USA model wrote: "the doctrine of separation of powers in it's practical embodiment is structural and functional determinancy of every of the supreme bodies of the state power; the degree of this embodiment depends on it's formal and legal status and on actual delimitation of the functional and subject jurisdiction.

Some Ukrainian authors (A. Orlovsky, A. Muchnik, V. Kyibida) don’t include judicial branch of power while proclaiming the possibility to use of the doctrine of separation of powers on the municipal level. Among the charters, codes of the US municipalities there is also a group of acts that mention only two branches of power - legislative and executive. For example, Salt Lake City (Utah) Code sets, that the municipal government of the city is divided into separate, independent and equal branches of government:

- A. The executive branch, which consists of the elected mayor of the city, and the administrative departments of the city, together with department heads, officers and employees; and

- B. The legislative branch, which consists of a municipal council and their staff.

According to the City of Albuquerque Code of Ordinances, the legislative authority of the city shall be vested in a governing body which shall constitute the legislative branch of the city and shall be known as a Council. The Mayor shall control, direct and organize the executive branch of the city. Greenfield Code of Ordinances includes the thesis that the city government shall consist of two branches, those being the following: (A) Executive Branch, (B) Legislative Branch. All powers and duties of the city that are executive or administrative in nature shall be exercised or performed by the Mayor, another city officer, or a city department. The legislative branch of the city is the Common Council. Sometimes the executive branch is called "the administrative branch" or "the executive and administrative branch" (Wilmington Code).

Some researchers see the problem in the fact that the local government's structure "does not allow for clear separation of the legislative and executive functions and thus does not provide for clear separation of powers" (Montana Department of Justice). Among the examples they mention organizational models that allow the municipal council to elect the mayor of council's members and "the impossibility of true separation in any system where the members of the executive are drawn from the legislature" (The UK Parliament. Joint Committee on the Draft Local Government (Organisation and Standards) Bill Report).

In spite of this it appears that the principal problem is not the elimination of clear boundaries between the executive and the legislative branches (this tendency can be noticed also in the state power), but the absence of the "judicial branch". As the basic task of branches is to make the law for the legislative branch, to enforce the law for the executive branch and to interpret the law for the judicial branch, the judicial branch of power seems to be essential in the doctrine of separation of powers. If there are two branches only, it is not the doctrine of separation of powers in its modern interpretation. Besides if each of the three branches checks the other two, the efficiency of the doctrine is the highest.

But basic ideas of the system of checks and balances may be used in the local government. They can be applied to the municipal bodies that are vested with the representative or executive functions. Unfortunately without the third group of municipal bodies the efficiency of the system of checks and balances will decrease greatly.

Thus it appears that taking into account the local government nature, the doctrine of separation of powers in its contemporary interpretation can not be applied to the local government in any modern state. The main reason is the absence of the independent judicial branch of municipal power. But it is possible to discuss the borrowing of the basic principles of the system of checks and balances and their adaptation to the local government.

As for the perspectives of the further researches, it would be advisable to study how exactly the ideas of the system of checks and balances are used in the local government of the foreign countries. It will give the possibility to use proper experience in the creation of "the distinctive system of checks and balances on the local level" (O. Baimuratov) in Ukraine.

In Ukraine these discussions led to the existence of only one organizational form of local government for all centres of the population, which is not very effective (the huge city needs different management approach than a tiny village). Here the experience of the foreign countries is useful. In some of them the organizational forms (models) of local government are various and the territorial community has the right to select (or to change) it.

Some of the countries that use that approach are:

– the USA: organizational models of the municipal government: council –mayor, council – manager, commission form;

– the UK: organizational models of the municipal government: mayor –cabinet, leader – mayor, mayor – manager);

– Germany: organizational models of the communal government: South-German, North-German, council – bourgomistr, council – magistrature.

After defining the system of local self-government that is used in the country, the organizational form (forms) of the municipal government, the attention of the researcher is usually moved to the types of the local direct democracy that are available for the members of the territorial community – local elections, local referendum, local initiatives, local hearings.

The foreign experience is especially useful when it comes about the forms of the local direct democracy that are practically never used in Ukraine – for example, the local referendums. The main reason is the rather old referendum legislation. So the researches of how the referendums are regulated in the foreign countries are fruitful for modernizing the national legislation.

Nowadays the most popular type in Ukraine are the local elections, so the biggest part of currently discussed problems is concerning them. The basis and principles of local electoral process is described in the Constitution and in the Law of Ukraine of 10.07.2010 ‘On Elections of Deputies of the Supreme Council of Autonomous Republic of Crimea, Local Councils and Village, Settlement and City Heads’. There are a lot of possible perspectives how the foreign experience could be helpful. For example, according to the Ukrainian legislation active and passive electoral right in the local elections belongs only to the citizens of Ukraine. But in many other European countries foreigners as well can obtain the active electoral right in the local elections.

Then the researcher can move to the comparative analysis of the jurisdiction of the local self-government. The brief overview of local self-government’s functions shows two fields of their possible activity. Municipal authorities could perform both their own functions or functions which were delegated to them by the state bodies (delegated powers).

Power of local authorities lies in social, cultural, ecological and other spheres. As a rule, they introduce and perform social, ecological, housing programmes. Besides they are responsible for the economical development of the territory (including planning, zoning, managing communal property, capital building, creation of the new working places, developing the tourists), for the accomplishment of the territory, for managing leisure, cultural and sportive facilities, communal transport, highways, streets, fire security, for organizing the leisure of the population, for the educational services and so on.

In Ukraine the competence of the power of village councils, urban settlement councils, city councils in Ukraine, and at the power of rayon councils and oblast councils and of the head of the village councils, urban settlement councils, city councils is settled by the Law of Ukraine of 21.05.1997 ‘On Local Self-Government in Ukraine’. But still the national legislation is weak when it comes about the principle of subsidiarity. Here the foreign experience can be helpful, for example, experience of the United Kingdom and its municipal programme “Best Value”. “Best value” provides a framework for the planning, delivery and continuous improvement of local authority services. The overriding purpose is to establish a culture of good management in local government for the delivery of efficient, effective and economic services that meet the users’ needs. Under best value, each local authority has a duty to "make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness". This improvement involves consideration of costs, making the most of money spent, and making sure that services meet the needs of communities and authorities' priorities.

After defining the jurisdiction of the municipal bodies it is logical to research how their expenses are covered, to research the material and financial basis of the local self-government. Local self-government is not only guaranteed, but also supported by the state in different ways – organizational, legal and also financial. In all the states with the municipal government constitutions or civil codes proclaim that one of the forms of property is communal (municipal) property. The lecture starts with the comparison of the approaches to the communal property in different countries, including Ukraine.

The subjects of the communal ownership in Ukraine are territorial communities. Among the objects there are real estate and movable property; revenues of local budgets; other funds; land and natural resources; enterprises, institutions and organizations, including banks, insurance associations, as well as pension funds, and a share in company assets; housing fund and non-residential premises; institutions of culture, education, sports, healthcare, science, and social servicing; other property and property rights; movable and real estate objects defined as objects of the communal ownership right; funds received from alienation thereof.

Material and financial basis for local self-government is not only the communal ownership right, but also local budgets. In Ukraine, according to the Budget Code, the budget system consists of state and local budgets. To budgets of local self-government refer budgets of village, settlement city territorial communities, as well as their associations. Local budgets are budget of the Autonomous Republic of Crimea, oblast, district budgets, and budgets of districts in cities and budgets of local self-government.

The studies of the foreign experience may show the differences in the main sources of income of the local self-government authorities. Besides of the various local taxes and loans there are also other ways of getting money. As usual, these ways require entrepreneurship approach – local loans, local bonds, and local (communal) enterprises. One of the most widely discussed problems when it comes about the revenues of the local budgets is about the state help – subventions, subsidies and so on. Does this financial support narrow the independence of the local self-government?

During the comparative municipal research it makes a sense to start from the system of local self-government that is used in the country, the administrative division of the country and then move to the organizational form (forms) of the municipal government, forms of the local democracy, jurisdiction of the municipal government and, at last, to the material and financial basis of the local self-government.

Recommended reading:

1. Constitution of Ukraine.

2. Law of Ukraine of 21.05.1997 ‘On Local Self-Government in Ukraine’.

3. Blair T. Leading the Way: A New Vision for Local Government. - Institute for Public Policy Research, 1998. – 28p. Available at: http://books.google.com/books?id=RfSXiZz7VdoC&printsec=frontcover&hl=ru

4. Faces of Local Democracy. Comparative Papers from Central and Eastern Europe/. Edited by Gabor Soos and Violetta Zentai. – Budapest, 2005. – 338p. Available at: http://lgi.osi.hu/publications/2005/265/Soos_Local_Democracy_final_full_text.pdf#page=278

5. Fenenko Y.V. (Фененко Ю.В.) Municipal Systems of Foreign Countries: Legal Issues of Social Security / Y. V. Fenenko ; Moscow State Institute of International Relations (University) MFA of Russia ; International Institute of Management ; transl. into English A.A. Rodicheva. - Moscow, 2007. - 446 p.

6. Gosciniak G., Stevens A. Local government in Germany shaped by regional differences. Available at: http://www.citymayors.com/government/germany_government.html

7. Haschke D. Local Government Administration in Germany. Available at: http://www.iuscomp.org/gla/literature/localgov.htm

8. Hellmut Wollmann (2000) Local Government Modernization in Germany: Between Incrementalism and Reform Waves // Public Administration 78 (4) - P.915–936. Available at: http://www.blackwell-synergy.com/doi/abs/10.1111/1467-9299.00237

9. Howard Elcock H., Elcock H.J., Wheaton M. Local Government: Politicians, Professionals and the Public in Local Authorities. -Routledge, 1986. - 338p. Available at: http://books.google.com/books?id=ErgNAAAAQAAJ&printsec=frontcover&hl=ru

10. Mishyna N.V. Local Government and the Doctrine of Separation of Powers // Юридический вестник. - 2004. - № 4. – С.100-103.

11. Morgan D.R., Watson S.S. Policy Leadership in Council-Manager Cities: Comparing Mayor and Manager // Public Administration Review, Vol. 52, No. 5 (Sep. - Oct., 1992). - P. 438-446. Available at: http://www.jstor.org/pss/976803

12. Rallings C., Thrasher M. Local Elections in Britain. – Routledge, 1997. – 232p. Available at: http://books.google.com/books?id=CWpcJfLGm6wC&printsec=frontcover&dq=local+elections&lr=&hl=ru .

13. Rhodes R.A.W. The National World of Local Government // Allen & Unwin, 1986. – 441p. Available at: http://books.google.com/books?hl=en&lr=&id=DlQVAAAAIAAJ&oi=fnd&pg=PP21&dq=local+government++frANCE&ots=OPDtAt_T2V&sig=co5snEsvwC6iNCKjUclT1dNAtG0

14. Staunton, Virginia: Birthplace Of The Council Manager Form Of Government. Available at: http://www.staunton.va.us/default.asp?pageID=B94197C5-F4F9-427D-938A-4CFCCF4929DF

15. Tilkorn E. Local Self-Government in Germany. An Outline. Available at: http://www.fes.hr/E-books/pdf/Reforming%20Local%20Public%20Administration/02.pdf

16. Wollmann H. Local Government Reforms in Great Britain, Sweden, Germany and France: Between Multi-Function and Single-Purpose Organisations // Local Government Studies, Volume 30, Issue 4 December 2004. – P. 639 – 665. Available at: http://www.informaworld.com/smpp/content~content=a714004206~db=all

17. Wollmann H. Local government systems: from historic divergence towards convergence? Great Britain, France, and Germany as comparative cases in point. Available at: http://www.envplan.com/abstract.cgi?id=c9867