The obligation of the participation of the secretary of the administrative-territorial unit in the meetings of the local council and the sanction applicable in case of non-compliance with the provisions of Article 42 paragraph (3) and (4) of Law no. 215

DREPTUL AFACERILOR/ASPECTE DE DREPT PROCESUAL

Abstract

The participation of the secretary of the administrative-territorial unit in the meetings of the local council, regulated by the provisions of Article 117 paragraph (1) letter b) of Law no. 215/2001, is mandatory in relation to the provisions of Article 42 paragraph (3) and (4) of Law no. 215/2001, in the form in force on 30 October 2018, which stipulates the signing of the minutes of the meeting and assumption, by signature, of the responsibility for the veracity of the facts recorded. The requirement of participation is also imperative in relation to the obligation incumbent on the secretary of the administrative-territorial unit to countersign, for legality, the decisions adopted by the local council [Article 47 paragraph (2) of Law no. 215/2001] or, on the contrary, if he/she considers that a decision is illegal, to submit in writing and to present to the local council his/her reasoned opinion, recorded in the minutes of the meeting and to communicate any objections regarding to legality to the mayor and prefect (Article 48 of Law no. 215/2001).

It is illegal to replace the secretary of the administrative-territorial unit, a managing civil servant with higher legal or administrative education according to the provisions of Article 116 of Law no. 215/2001, with a civil servant of execution (employed in the Local Police department), in the conditions in which the position is not vacant or temporarily vacant, as provided by the norm established by Article III of the O.U.G. no. 90/2009.

If the draft decision has been submitted for debate, and the local councilors have expressed their vote, the issuance of the decision of the local council is mandatory, in relation to the provisions of Article 45 paragraph (1) and Article 115 paragraph (1) letter b) of Law no. 215/2001, being necessary that the manifestation of will of the local councilors be included in a document containing the motivation of rejecting the plaintiffs' request, all the more so as some of the endorsements and approvals from the town planning documentation, favorable to the plaintiffs, belong even to the structures within local public authorities.

The lack of the act reflecting the reasons for which the plaintiffs' request was denied makes it impossible to censor such a refusal and turn it into an unjustified refusal, expressed with excess of power, within the meaning of Article 2 letter h) of Law no. 554/2004. The motivation for rejecting the request cannot consist in the partial transcript of the audio recording of the hearing or by the explanations given in writing in the procedural acts submitted to the case file, after the trial commenced.