Legal Eye: Interpretation Frustration

"You wouldn't want these questions to be so easily answerable that people wouldn't pay you to do it," he said. Perhaps we lawyers should be thanking our lucky stars that the Polish government continues to implement legislation that keeps us scratching our heads in wonder. However, as I watch the unfolding of the Warsaw mayoral melodrama, I wish that the Polish legislators applied more practical thinking in drafting legislation.

A warning for anyone reading this article in the hope that I will say who is right: no such luck. The final resolution is in the hands of the politicians and the courts. However, I will attempt to shed a little light on the backdrop of this political theater.

Mandate expiration

The battle focuses on two laws. The first is the Act of June 20, 2002, on Direct Elections of Village Mayors, Mayors and City Presidents. This law contains the dastardly clause on the expiration of a mayoral mandate. Actually, this expiration clause has been around since the law was enacted, but previously it addressed extreme circumstances, such as death, refusal to take the oath of office, resignation, and violation of the law prohibiting simultaneously serving as mayor and doing business.

In July 2005, just before the elections that brought the Law and Justice party and their fearless twin leaders to power, the expiration rules were amended to take their present form. Under the current wording, which did not come into effect until September 2006, a mayor's mandate expires if he or she fails to timely file personal-asset statements or those required of a spouse.  The law leaves no wiggle room on punctuality. If you miss the deadline, your mandate expires.

But specific procedures must be followed to confirm the expiration of the mandate. The city council (rada gminy) is supposed to adopt a resolution within a month after the missed deadline, but after having given the mayor a chance to defend herself. If the city council does not adopt the resolution acknowledging the expiration, the matter goes to the Voivod. First, the Voivod will demand that the city council issue the resolution and if they still refuse to do so, will issue a substitute resolution. At this point, the resolution may be appealed to the administrative court.

Spousal filings

The other law that has been tossed about is that of the requirement for a spouse to file a statement about business activities. The Act of March 8, 1990, on Local Councils, specifies that mayoral spouses must file a statement about their business activities if the activities are conducted in the territory of the township (gmina).

In what appears to be a legislative oversight, spouses must file statements before the mayors.

The spousal filing is due within 30 days after the election, whereas the mayoral personal-asset statement is due within 30 days after taking oath of office. This oversight has been law since 2003.

Constitutionality

The loss of a popularly-elected post, interim paralysis, and new elections at an enormous cost to taxpayers seems a harsh penalty for being, in the worst case scenario, two days late. Many respected legal experts have raised a cry that the punishment does not fit the crime. If the politicians are not able to come to a compromise that would encourage timely filings, but without catastrophic penalties for failure, it appears that the Constitutional Tribunal may be called upon to sort it out.

Judith Gliniecki is a partner with Rymar and Partners j.gliniecki@rymar.pl