Derets V., Tуmoshchuk V.

Derets V., Tуmoshchuk V. Features of the legal status of heads of local state administrations in the context of power decentralization in Ukraine

In accordance with Article 118 of the Constitution of Ukraine, executive power in oblasts and districts, cities of Kyiv and Sevastopol is carried out by local state administrations (hereinafter – LSA). LSA are local executive authorities that, within the scope of their authority, exercise executive power in a territory of respective administrative-territorial unit, and also exercise powers delegated to them by respective councils. LSA are chaired by the heads that are appointed and dismissed by the President of Ukraine on the Government’s submission (part four of Article 118 of the Constitution).
For the study of administrative law there is no new discussion on the following issues: which legal status (civil servants or politicians) should have LSA chairmen; whether the legal status of LSA heads have to be determined by law, or only by the Constitution; how will the respective legal status affect the organization and activities of LSA and public authorities in Ukraine as a whole.
Mentioned problematic issues have become relevant again because of the adoption of the Law of Ukraine «On Amendments to Certain Laws of Ukraine Regarding Certain Issues of Civil Service» on November 9, 2017. According to this Law the positions of LSA heads were included to the list of positions that are not covered by the Law of Ukraine «On Civil Service».
The Ukrainian Constitution contains the rules that stipulate both the legal status of politician and the legal status of civil servant for the LSA heads. Neither the political status of LSA heads nor their civil service status were clearly defined. The combination of political and civil service statuses’ characteristics remained. The selection method on these positions was not regulated as well.
Such a method was enshrined in the Law of Ukraine «On Civil Service» of December 10, 2015, by assigning the heads of LSA to the higher civil service (category «A»). Competitive selection for the LSA heads had positive results.
Recently, however, significant changes have taken place in the legal status of LSA heads. The heads of the LSA are no longer civil servants, the competitive procedure for their appointment has been canceled and restrictions on their party and political activities have been lifted. That is, the main characteristic of the legal status of heads of LSA – belonging to civil servants has changed.
The experience of certain historical periods of the national governance shows that neglecting a transparent selection of candidates for the posts of LSA heads leads to conflicts in relations between the President and the Prime Minister on resolving the issues of appointments if they are representatives of various political forces.
Another consequence of changes in the legal status of LSA heads is the threat of professionalism and stability of LSA functioning, as well as its politicization, which will negatively affect the work of local self-government authorities.
The new legislative regulation bears another risk. The LSA heads will no longer be heads of civil service. In the apparatus of LSA and its structural subdivisions, the head of civil service will be the head of the apparatus (except for the structural units with the status of public legal entities, which is a separate problem to research). Empowering the head of the LSA’s apparatus with the authority of the head of civil service actually gives him the authority to form the LSA, which is not entirely consistent with the provision of Article 118 of the Constitution of Ukraine, according to which the membership of the LSA is formed by the heads of LSA.
Since the LSA heads actually represent not a state, but a certain political force, their conflicts with local governments in the regions and districts are not excluded if they belong to different political forces. This may lead to a reduction in the chances of eliminating the gap in the state mechanism – Ukraine still has no state supervision over the legality of local self-government’s acts.
In our opinion, the elimination of the LSA heads of the civil service status may have a negative impact on the processes of decentralization of power in Ukraine. It is worth to take into account the European experience, to develop the most effective model of power in Ukraine and return to the legal status of civil servant to the LSA heads.

Key words: head of local state administration, civil servant, politician, decentralization, prefect.


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