On the Question of Ways to Replace the Position of the Head of a Municipality: Using a Competition or on the Recommendation of the Governor

Korsun Ksenia Ivanovna ORCID: 0000-0003-4160-7338 Lecturer, Department of Constitutional and International Law, Ural State University of Economics 620144, Russia, Sverdlovsk region, Yekaterinburg, 8 Marta str./narodnaya Volya, 62/45, office 750 korsunksenia@mail.ru Other publications by this author

Zadorina Mariya Andreevna PhD in Law Associate professor, Department of Constitutional and International Law, Ural State University of Economics 620144, Russia, Sverdlovsk region, Yekaterinburg, 8 Marta str./narodnaya Volya, 62/45, office 750 zadorina@bk.ru Other publications by this author

The question of how to elect the heads of municipalities does not lose top positions in the institute of municipal representation. Introduced in 2014 in Federal Law No. 131-FZ of October 6, 2003 "On the General principles of the Organization of Local Self-Government in the Russian Federation", the norm on the possibility of electing mayors by representative bodies of municipalities from among candidates submitted by the competition commission based on the results of the competition stirred the minds of both the ordinary urban inhabitant and the entire scientific community, researching local government.

The indignation of both was caused by the fact that the new method of electing a people's representative excluded the direct participation of the population in this process and, on the contrary, increased the participation of regional authorities in the formation of local authorities. The competition commission, half of whose members are appointed by the representative body, and the other half by the highest official of the subject, first selects candidates for the position of the head of the municipality, after which it presents the finalists of the competition to the representative body to determine the winner. The population, accustomed to independently choose their own mayors, took the legislative innovation in the most negative way.

As noted by M. Salvador and E. Pano, local authorities have traditionally been a "platform for experiments" on reforming the general institutional structure of public administration ^{[1, pp. 103-104]}. However, in the context of the growth of factors destabilizing state development, the issue of finding an optimal model for the transformation of the public power system in order to ensure public safety and balance public interests, prevent popular unrest and increase public confidence in the government is on the agenda. Mayors, as the highest officials of municipalities controlled and accountable to the population, play a significant role in the implementation of these goals. In this regard, the question of how to fill the position of the head of the municipality is becoming particularly relevant.

Within the framework of this article, using general and special methods of scientific knowledge to study the regulations on the methods of electing heads of municipalities, we will try to solve the following tasks: 1) to analyze and summarize the election of heads of municipalities "by competition" and "on the proposal of the governor"; 2) to analyze the existing problems of legitimation of these methods of electing mayors; 3) to propose an author's model of electing heads of municipalities that meets both the interests of the population and the interests of the authorities of the subjects of the Russian Federation.

It seems that the reform of the institution of municipal representation is a consequence of amendments to the Constitution of Russia in 2020 related to building a unified system of public authority in the country and establishing interaction between state authorities and local self-government ^[2-5]. 

It is important to note that the status of the competition commission itself is still not legally fixed. Now it is being created for every new election of heads of municipalities. In this regard, we fully support the point of view of S. G. Solovyov, who believes that the competition commissions should be "... independent public expert bodies acting on the basis of their own position and formed for a long time" ^{[6, p. 93]}. We believe that the term of office of the competition commission may vary from 4 to 6 years.

The position that the federal legislator granted the right of final choice of methods (or method) for electing the heads of municipalities to the subjects of the Russian Federation, who did not miss this opportunity and fixed in their regional legislations the "competitive model" as the only possible way to elect mayors for the upper level of municipalities (for example, the Republic of Bashkortostan and Tatarstan, Belgorod, Sverdlovsk, Tyumen, Chelyabinsk regions, Yamalo-Nenets Autonomous Okrug, etc.)

On the part of the scientific community, which was not inferior in its indignation to the population, a significant number of scientific works followed ^[7-11] devoted to embedding local self-government in the vertical of state power and violating the principles of democracy at the grassroots level of public power.  

Scientists specializing in municipal law unanimously declared the restriction of the right of the population to exercise local self-government ^{[12, p. 45]}, the tightening of control over municipalities by the subjects of the Russian Federation ^{[7, p. 21; 8, p. 36]}, the shift of decentralization of local self-government to administrative subordination to the regions ^{[9, p. 25; 11, p. 40]}. Nevertheless, the "competitive" model of empowering heads of municipalities has, in our opinion, an important advantage – the absence of a possible confrontation between the municipal authorities and the authorities of the subject of the Russian Federation, which took place, for example, in Yekaterinburg during the term of office of the last mayor elected by the population, E. V. Roizman.

There are opinions among scientists that the competitive method of electing mayors fundamentally does not correspond to the constitutional provisions. For example, A. A. Zhamboroev believes that the "competitive model" of electing heads of municipalities does not fully comply with either the Constitution of the Russian Federation or the essence of the institution of local self-government ^{[13, p. 9]}. Nevertheless, we tend to think that the election of mayors through a competition embodies the institution of indirect democracy. Therefore, we cannot support V. V. Viskulova, who believes that the "competitive" method completely excludes the function of the people's representative from the elected head ^{[14, p. 29]}.  

Nevertheless, the Constitutional Court of the Russian Federation added fuel to the ignited fire of legitimation of municipal representation, recognizing the legality of the establishment by the legislation of subjects for the upper level of municipalities of an unelected method of electing heads of municipalities, including as the only possible one (Resolution of the Constitutional Court of the Russian Federation No. 30-P of December 1, 2015).

The consequence of this constitutional legalization was the almost universal establishment by the regions of an exclusively competitive method of electing heads of municipalities for urban and municipal districts, whereas election at municipal elections is the preferred method for urban and rural settlements.

A. N. Kokotov, in his reflections on the justification of fixing in regional legislation a non-elective method of electing heads of municipalities, including as the only possible one, points to the unacceptability in individual cases ^{[15, p. 120]}. At the same time, he believes that it would be reasonable for the federal legislator to allow the subjects of the Russian Federation to introduce additional options for organizing municipal government, taking into account cultural, historical and other features of the regions ^{[15, p. 122]}. This proposal seems to us not only acceptable, but also necessary in a number of subjects.

At the same time, the opinion of the local community on the return of direct elections of heads of municipalities by the subjects of the Russian Federation is still completely ignored. For example, in the fall of 2020, an initiative group collected 15,000 signatures in support of the return of direct elections for the mayor of Yekaterinburg ^[16], but deputies of the Legislative Assembly of the Sverdlovsk Region rejected the bill by a majority vote, citing the fact that the draft law does not specify the place of the head of the municipality in the local government system ^[17]. However, in our opinion, this argument lacks logic. Activists introduced a bill to change the method of empowering the mayor of Yekaterinburg, but did not dispute his place in the structure of local self-government, which is fixed by the Charter of the municipality.

A similar situation is observed in a number of regions of Russia (the Republics of Bashkortostan and Tatarstan, the Belgorod, Tyumen, Chelyabinsk, Yamalo-Nenets Autonomous Okrug, etc.), in which the local community supports the return of direct elections of heads of municipalities.

And so, in December 2021, the State Duma of the Federal Assembly of the Russian Federation introduced Bill No. 40361-8 "On the general principles of the organization of local self-government in the system of unified public authority", containing a new method of electing the heads of municipalities. The notorious "competitive model", so widely discussed by Russian scientists in the field of municipal law ^[18-22], can be replaced by the "governor's" model ^{[23, p. 66]}, the essence of which is that the head of a municipality can be elected by a representative body from among candidates represented by the highest official of a subject of the Russian Federation.

In this aspect, the election of heads by a representative body from among the candidates submitted by the competition commission according to the results of the competition does not seem so bad, at least due to the fact that the competition commission has the right to impose professional requirements on candidates for the position of head of a municipality. Of course, we do not exclude that the highest officials of the subjects will take into account the professional skills of applicants, however, the analyzed Bill does not provide for such a competition and the representative body will have to choose only from those candidates whom the governors consider "worthy" to head municipalities.

At the same time, the legislator leaves two classic ways of electing the head of a municipality – at municipal elections and by a representative body from its composition. The establishment of the final method (or methods) of electing heads also remains within the competence of the subject of the Russian Federation.

Taking into account another novelty of Bill No. 40361-8 – the abolition of the settlement level of the organization of local self-government, we believe that in the near future the "governor's" model of electing heads of municipalities will be the leading one among the rest. This innovation is a direct consequence of the removal from the construction of Part 1 of Article 131 of the Constitution of Russia of urban and rural settlements as territories where local self-government is carried out.

In the future, only urban and municipal districts, as well as the inner-city territory of federal cities, may remain in Russia. The exclusion of the settlement level may negatively affect the already acute problem of the population's remoteness from local self-government bodies and the unwillingness of the former to participate in the life of their municipalities.

Currently, the number of urban and rural settlements in Russia is decreasing every year, in relation to which the electability of the heads of municipalities should be preserved. It turns out to be a kind of vicious circle, when elections of heads of municipalities should be held in urban and rural settlements, but there are practically none left, and for the upper level of municipalities, the competitive method of election is constitutional, including the only possible one. In the face of the deepest crisis of local self-government as a form of organization by the people of their power.

The refusal to create urban and rural settlements is not a new phenomenon, but has already become a kind of tradition of consolidation of municipalities by combining all settlements of municipal districts into municipal districts. In this case, the discussion and ambiguity is caused by the fact that mega-territories are often united and it is difficult for citizens to travel long distances to exercise their right to local self-government.

Returning to the question of the methods of electing the heads of municipalities, we believe that the "competitive model" of election quite exists, but requires legislative reformation by including the population in the process of forming competitive commissions. As I. Nuwagaba and M.T. Lukamba correctly note, the participation of citizens always has a positive impact on the quality of implemented electoral projects ^{[24, pp. 111-112]}. D. A. Zalyaletdinova, E. F. Nigmatullina ^[25], S. G. Soloviev and E. V. Titova insist on strengthening the role of the population in the implementation of local self-government ^[26]. In particular, the population can participate both by electing members of the competition commission and by including their representatives in the commissions, for example, from among honorary citizens. Such a scheme would allow taking into account the needs of the population to participate in the selection of heads of municipalities and the undeniable advantages of competitive commissions to impose professional requirements on candidates for the position.

If the State Duma adopts the analyzed draft law, the heads of municipalities will finally become completely dependent on the subjects of the Russian Federation, which will be greatly facilitated not only by the new method of their election, but also by the ability of senior officials of the subjects to apply disciplinary measures to the heads in the form of reprimands (paragraph 12 of Article 25 of the Federal Law of December 21, 2021 No. 414-FZ "On the general principles of the Organization of Public Power in the Subjects of the Russian Federation").

Considering that disciplinary measures are applied to subordinate entities, it is possible to state with confidence the current transition to an administrative model of interaction between state power and local self-government, which is characterized by elements of decentralization. Recall that in the mid-2000s, the well-known Russian constitutionalist N. L. Peshin came to the conclusion that the existing state-municipal interaction at that time corresponds to a mixed model ^{[27, p. 3]}, which is characterized by both elements of administratization and decentralization, and with the prevalence of the latter. However, the municipal reforms of the last decade have gradually integrated local self-government into the system of unified public authority, placing it in complete dependence on state authorities and thereby marking a return to the administrative subordination of municipalities. As V. I. Vasiliev rightly notes, "... an escalated conflict leads to a change in the constitutional essence of local self-government" ^{[28, pp. 8-9]}. To what extent this correlates with the provisions of Article 12 of the Constitution of the Russian Federation is a very debatable question today.

Based on the conducted research, a number of conclusions should be drawn.

1. Having analyzed the provisions of the current and project legislation on the methods of electing heads of municipalities, it can be concluded that the regional influence on the institution of municipal representation is increasing, however, the so-called "competitive model" has a number of advantages than the "governor's" one.

2. From the point of view of the legitimacy of the "competitive" and "gubernatorial" methods of electing heads of municipalities, neither fully meets the interests of the local community, however, the "competitive model" can be reformed through the participation of citizens in the formation of competition commissions or the inclusion of their representatives in their composition. Such a scheme will allow taking into account both the interests of the population and the interests of the regions.

3. In this regard, it is proposed to introduce in paragraph 3 of Part 2 of Article 19 of Draft Law No. 40361-8 "On the general principles of the organization of local self-government in the system of unified public authority" the wording: "by a representative body from among the candidates submitted by the competition commission based on the results of the competition. At the same time, at least half of the members of the competition commission must be citizens of the relevant municipality."