PA - Lecture 2&3

Features of public administration

1) acting on behalf of and for the account of the state or another public authority separate from the state, to which the state has transferred part of its power (imperium);

2) the ability to act in authoritative forms, secured by the possibility of applying state coercion (nowadays, the sphere of coercion-free administration activities is expanding);

3) acting in the public interest (in the name of the “common good,” “public good,” social interest);

4) political nature – the objectives of its activities and their results are assessed in political terms, and they influence the formation of citizens' attitudes towards administrative entities;

5) acting on the basis of laws and within the limits specified therein (for this reason, the principle of “what is not prohibited is permitted” does not apply to public administration);

6) future-oriented activity, the ability to take action on its own initiative;

7) continuous and stable operation;

8) reliance (as a rule) on professional staff;

9) monopolistic nature (the administration, acting within the scope of its powers, acts as the sole host in a specific category of matters) and impersonal nature – various entities operate within its structures, but decisions are made not by someone acting as a provincial governor, but by the body bearing that name.

• Administration is a legal, social, and political phenomenon.

The classic and most characteristic function of an authoritative nature (władczym charakterze) is the so-called regulatory and order administration (administracja reglamentacyjna). It used to be called “police administration,” and several specific terms (such as building police) have survived in legal language from the Enlightenment to the present day, in which ‘police’ refers to the subject and form of activity, rather than a specific “uniformed” formation.

However, tasks of a registration and record-keeping nature, in which, as a rule, no administrative decisions are issued, but rather so-called material and technical activities are performed, may also have an authoritative character, including in “external” relations. As a rule, these are auxiliary in nature in relation to other functions of public administration, but there are often situations in which not only is there an obligation to undergo registration activities, but without fulfilling this obligation, certain activities cannot be performed, including activities of everyday life (e.g., driving a motor vehicle – driver registration, vehicle registration).

The non-authoritative sphere (o niewładczym charakterze) of administrative activity, apart from the exercise of ownership functions (dominium), includes primarily the so-called service administration (administracja świadcząca), which organizes the provision or directly provides various types of increasingly complex public services.

The authoritative and non-authoritative functions of public administration overlap and may jointly occur in various types of matters falling within the scope of administrative tasks.

Features of bureaucracy according to Max Weber

• based on legal regulations,

• hierarchical administrative structures,

• specialization and professionalization of officials,

• stable employment,

• political neutrality

Max Weber

• German sociologist who lived at the turn of the 19th and 20th centuries,

• created the most widely used set of principles in administrative science that underlie the bureaucratic administrative apparatus

• believed that bureaucracy was the best possible way to organize a state, unlike the 18th-century system of administration based on clientelism, patronage, and bribery

• Bureaucracy is the most effective tool for managing a state because it is based on law.

Principles of centralization and decentralization

The principles of centralization and decentralization as principles of public administration are:

• relative in nature, coexist, and are implemented to varying degrees, i.e., if one of them is implemented to a greater extent, the other is, in a sense, “automatically” implemented to a lesser extent, depending on the system and nature of the state.

A centralized system involves binding lower-level authorities to the directives of higher-level authorities, interfering in the sphere of activity of lower-level authorities in the form of orders and official instructions. This system of dependence is based on managerial ties (the relationship between management and subordination). The scope and nature of management are not uniform, but are specified in each case by legal provisions. The most extreme managerial relationship takes the form of hierarchical subordination, which consists of: a) organizational and official dependence (the right of a superior authority to issue general acts binding on a subordinate authority – orders and individual instructions, the right of substitution, i.e., taking over a case and making a decision instead of the subordinate body), b) personal dependence (the right to fill positions in the subordinate body, the right to apply measures of official and disciplinary action, the right to decide on promotion, remuneration, etc.).

A decentralized system involves the legal establishment of a certain degree of autonomy in the performance of specific tasks by a decentralized entity. This autonomy is relative, as the limits of the autonomy of bodies performing tasks on the basis of decentralized administration are set by supervisory measures. Supervision differs from management in that supervisory measures may only be applied in situations specified by law and only those measures whose use is permitted by law.

Decentralisation is a mean of putting a certain entity and/or a certain public activity out of fully centralised control, and therefore out of the state adminidtration (but not out of the system of public powers), and giving such public entity (or creating a specific public-law entity for that purpose) a competence of autonomous carring out such activity on its own behalf and on its own reponsability.

The principle of concentration and deconcentration

Concentration means focusing decision-making powers in the hands of a small group of bodies. Deconcentration involves dispersing powers, distributing them among a larger group of bodies at the same level (functional deconcentration) or among bodies at a lower level (territorial deconcentration).

Deconcentration expresses the way tasks are divided and refers to a system in which the handling of most day-to-day matters is shifted from central units to lower ones. Handling these matters at the central level would mean concentration.

Prof. Jan Zimmermann:

“Every decentralization involves deconcentration, but not vice versa. Deconcentration can also exist in a centralized system.” Concentration can only occur in a centralized system.

The principle of departmentalism (zasada resortowości)

developed in France during the reigns of Louis XIV and Louis XV. Initially, departments were headed by collegial bodies, and from the 19th century onwards, by single individuals. The most important departments were: the Ministry of Foreign Affairs, the Ministry of Finance, the Ministry of Defense, and the Ministry of the Interior. The expansion of the administration causes problems with the coordination of its activities. A division emerges between the integrated administration (at the central level, subordinate to the Council of Ministers) and the non-integrated administration (separate administrative divisions, hierarchically subordinate to the relevant ministers).

The principle of hierarchy

(personal subordination and functional subordination) (zasada hierarchiczności – podległość osobowa i służbowa)

The principle of collegiality and single-person management

zasada kolegialności i jednoosobowego kierownictwa)

The principle of good administration

The Council of Europe has taken steps to establish the fundamental right of individuals to good administration, which was ultimately expressed in Recommendation Rec (2007)7 of the Committee of Ministers of the Council of Europe of July 20, 2007 – Right to Good Administration. On September 6, 2001, the European Parliament recommended in a resolution that the European Code of Good Administrative Behavior be applied in contacts between EU institutions and officials and natural and legal persons. The code was developed by the EU Ombudsman Jacob Söderman, former Ombudsman of Finland.

The right to good administration includes:

– the right of every person to be heard before individual measures that may adversely affect their situation are taken;

– the right of every person to have access to their case file, while respecting the legitimate interests of confidentiality and professional and commercial secrecy;– the obligation of the administration to justify its decisions.

The European Code of Good Administrative Behavior contains a set of standards setting out the obligations and conduct of the administration, which are considered useful not only within EU institutions, but also worthy of dissemination in the activities of the administrative bodies of individual Member States. Although the European Code of Good Administrative Behavior is not binding, its provisions constitute “valuable guidance in the progressive interpretation of applicable law, especially since the Code's guidelines are consistent in many respects with the provisions of Polish administrative proceedings.”

The English and American Enlightenment was based on empiricism and pragmatism

The French and German Enlightenment – rationalism dominated

English model

noncentralisation (devolution – a specific type of decentralisation – a transfer of a part of previous competences of the central power to macro-regional institutions fot the time being, of Scotland, Wales Northern Ireland , regionalization);

parliamentary-cabinet system established after the Glorious Revolution of 1688;

separation of government and cabinet, joint political responsibility of the entire government before the House of Commons;

strong position of the prime minister and civil service in government development of territorial administration – civil society (rural and urban municipalities, counties, justices of the peace);

rule of law – subjection of public administration to the control of common courts

rejection of the concept of “administrative law” in 19th-century England – lawyer Albert Venn Dicey – administrative law only on the European continent

French model

It took shape during the era of absolute monarchy – Louis XIV (1661-1715), Napoleon Bonaparte after the revolution in 1799;

centralization and bureaucratization – “governments and parliaments disappear, but the administration remains”;

Council of Ministers, Council of State (the beginning of administrative justice, after World War II the establishment of administrative tribunals and administrative courts of appeal), Court of Auditors (financial control body)

gradual introduction of local government (Act of March 2, 1982 – municipalities, departments, regions)

status of civil servants – civil service corps (korpusy urzędnicze) approximately 1,600 civil service corps after World War II – National School of Administration (ENA), established in 1945)

role of arbitration in political decision-making

German model

mainly the Prussian evolutionary path,

absolute enlightened monarchy,

public administration subject to the law, rational system of central administration – division into ministries,

chancellor system – strong support apparatus for the chancellor and government,

professional and permanent public administration apparatus (qualifications);

introduction of administrative courts to review the legality of administrative decisions;

introduction of a system of local government institutions;

the author of the concept of administrative courts and local government was Heinrich Rudolf Gneist (1816-1895);

enumerative competence clause for administrative courts;

local government – dualistic structure (coexistence of state administration and local government).

Swedish model

originality of institutions (e.g., ombudsman, or advocate);

separation of government and central administration (approx. 100 central offices);

treatment of appointed officials on an equal footing with judges – stability of employment and independence; collegial decision-making;

late development of administrative justice;

citizens' access to administrative documents since 1809 (guaranteed by the constitution and legislation)welfare state (macro-corporatism);

local government in the English sense (municipalities and counties) but operating under the supervision of central authorities.

American model

GENERAL NOTE: public administration is mainly based on the English model, which is liberal and democratic;

presidential system (President-White House Cabinet – Executive Office of the President, established in 1921, secretaries);

spoils system – introduced by President Andrew Jackson (1829-1837); it was abolished in 1883 after the assassination of President Garfield; currently approx. 10% of positions in the federal administration;

widespread use of electoral mechanisms (elections of officials, primaries);independent agencies (established since 1887) as inter-state and independent of departments structures, established by separate normative acts and loosely connected with the president (e.g. Interstate Commerce Commission);

the system of city managers, introduced since World War I;

the opening of the American administration to the private sector.

Polish model

disrupted model of public administration (partitions, loss of independence in 1795 for 123 years);

from the 16th century onwards, the development of a model of noble democracy;

the Polish model of public administration - a model of civic power – specifically democratic, modernised during the reign of Stanisław August Poniatowski (1764-1795) – until 1791, it allowed only one estate – the nobility – to hold power;

extensive electoral mechanisms: election by the Sejm of an increasing number of central bodies, including the government, and election by regional assemblies of territorial administration bodies (civil and military order commissions);

eighteenth-century Polish solutions were similar to Swedish ones at the central level and English ones at the local government level.

institutions of the Duchy of Warsaw – French institutions;

until World War I, administrative institutions in Polish territories developed within the systems of the individual partitioning powers 19th century – influence of partitioning solutions.

Polish model – Second Republic (1918-1939)

The Second Republic adopted the Austrian model of administrative procedure and administrative justice, the Prussian model of local government and Russian models of financial institutions, including the concept of the Supreme Audit Office (NIK).

Four government commissions were established to oversee the comprehensive reform of the administration.

Polish model

The first Administrative Reform Commission was established in 1920 under the chairmanship of Stanisław Wojciechowski. Its task was to present proposals for simplifying public administration, reducing the number of civil servants and offices, and ensuring the uniformity and efficiency of public administration. However, it only managed to simplify the functioning of ministerial structures.

The second Commission operated in 1923 under the chairmanship of Władysław Sikorski. The Commission developed many proposals, in particular concerning local government, the functioning of government administration (increasing the coordination powers of provincial governors and district administrators), and the reform of the provincial division.

The Third Commission – popularly known as the ‘Commission of Three’ – was established in 1926. Its members were Michał Bobrzański, Stanisław Kaszyca and Stefan Smulski. Its objectives were similar to those of the previous commission, with the addition of the issue of integrating public administration.

The Fourth Commission – the Commission for the Improvement of Public Administration, chaired by Maurycy Jaroszyński, operated between 1928 and 1933:

it prepared a plan for the rationalisation of public administration and dealt with all issues related to the organisation and functioning of public administration. ‘Its proposals were comprehensive in nature, constituting an attempt to develop a comprehensive Polish model of public administration’ (H. Izdebski, M. Kulesza); theoretical assumptions of decentralisation, regionalism, separation of political functions and active administrative functions (research and design, executive and support tasks) in central administration;

the draft organisation of the central administrative authorities assumed, among other things, the adaptation of the central administration to the requirements of the modern world by separating political and administrative functions: political tasks were to be entrusted to a political undersecretary and the minister's office, and administrative management tasks to a professional deputy minister and the management office reform of the Presidium of the Council of Ministers: an auxiliary body of the Prime Minister and the government with an extensive structure, which was to consist of: the office of the Prime Minister, headed by a political undersecretary or director, an economic cabinet headed by a political undersecretary or director, a management office headed by a professional deputy minister, and a secretariat subordinate to the deputy minister;

developing a draft constitution for Warsaw;

shaping modern public accounting and budgetary law, organising a control system within the administration;

initiative to publish a Collection of Laws as an official compendium of applicable legal provisions in a subject-based format, which would be a significant aid in the work of public offices;

decentralisation as a principle, according to which ministries should not deal with individual citizens' cases, but rather with matters of a general nature.

Although the main assumptions of the Jaroszyński Commission were not implemented during the Second Republic, they influenced the development of a sustainable model of Polish public administration. Some of the proposals were introduced after 1989 (the government reform of 1992-1993, the 1995-1996 reforms of the government's economic centre, the 1994 reorganisation of the Ministry of Foreign Affairs – the 1996 reform of the ‘government centre’ was the result of the implementation of some of the Jaroszyński Commission's proposals.The 4th International Congress of Administrative Sciences in Madrid in 1930 adopted a resolution recommending that all governments establish the advisory and legislative structures proposed by the Jaroszyński Commission. The Finnish government immediately implemented these recommendations.