Approving commentary to the verdict of the Provincial Administrative Court in Białystok of December 21, 2021, file ref. II SA/Bk 743/21, Lex no. 3287148, concerning the issue of the debate on the report on the state of the commune and the obligatory justification of the resolution on the failure to grant a vote of confidence to the mayor

Stanisław Bułajewski

Uniwersystet Warmińsko-Mazurski w Olsztynie

Abstract

Provincial Administrative Court in Białystok has both correctly analyzed both the legal provisions that are the basis for the decision and thoroughly carried out an analysis of the extensive court jurisprudence. In this commentary, I not only presented the judgment under review (along with the reasoning) but also contrasted it with selected (often contradictory) other judgments of administrative courts. Of course, my goal was not to provide a comprehensive presentation of the content, form, and mode of adoption
of a resolution on a vote of confidence for a commune executive body in juxta position with the jurisprudence of administrative courts (although the commentary does provide such a presentation), but only to draw attention to the
problem, which is important from the point of view of not only local legislators,but also supervisory bodies. This is because the problem involves an important issue: recognizing when a resolution of a commune council on a vote of confidence for the commune head (after meeting what conditions as to content, form, and procedure) is a legal act and when this act is illegal (in the opinion of the supervisory authority or an administrative court). In the commentary,
I paid particular attention to two issues: the requirement to prepare a statement of reasons for a resolution not to pass a vote of confidence and the require-
ment (or lack thereof) to hold a debate before passing the resolution.
The above-mentioned issue was presented in its verdict by the Regional
Administrative Court in Białystok, which had no doubts (regardless of the
inconsistent jurisprudence) as to its final decision, with which I fully agree.
As we can easily see (not only based on the verdict under review), but also
based on the examples of judgments of administrative courts cited in the com-
mentary, resolutions with the same content passed on the subject of no con-
fidence in the commune head were qualified as legal or illegal acts. What
makes the situation particularly dangerous is that the verdicts of administra-
tive courts are not always taken into account by local governments, but inste-
ad are exploited only in an opportunistic manner. When submitting their le-
gislative initiatives, local lawmakers often refer to court verdicts that confirm
their way of thinking while omitting those that would contradict it.
To some extent, the solution to this may be a law on the rules and proce-
dure for issuing local laws, which not only should but must be enacted to en-
sure that, at least in this area, the supervisory decisions of province governors,
as well as the rulings of administrative courts throughout Poland, are uniform.
After all, it cannot be tolerated (although it currently is) that in one province
a resolution of a council on a vote of confidence for a commune head (following
a debate on the state of the commune) must obligatorily contain the reasoning,
while in another province the supervisory authority (most often the provincial
governor) considers not only the reasoning but also the debate before the pas-
sing of the resolution, to be unnecessary.

Keywords:

prawo administracyjne, wotum zaufania, sądy administracyjne, uchwała, kontrola, nadzór