Can a municipality withdraw from administrative proceedings in which it participates

In cases concerning changes in water conditions on land that adversely affect neighboring properties, the municipality often appears as a party to such proceedings. This is not accidental, as municipalities frequently own numerous properties.

Article 234(3) of the Water Law states: If changes in water conditions on land caused by a landowner adversely affect neighboring properties, the mayor, city mayor, or president, ex officio or upon request, shall, by decision, order the landowner to restore the previous condition or to construct facilities to prevent damages, setting a deadline for these actions. Therefore, the municipality may be both a party to the proceedings and the entity that concludes them with a decision issued by the executive body—either the mayor, city mayor, or president.

It seems logical that the mayor, city mayor, or president should not conduct proceedings in which the municipality is a party. This situation raises legitimate concerns, as other parties to the proceedings may primarily question the impartiality and fairness of conducting such a case. What do legal regulations say about this situation? Do they allow the executive body of a municipality to withdraw from such proceedings so that they may be conducted by the executive body of another, neighboring municipality, for example?

Amendment to the Code of Administrative Procedure from 1990

On May 24, 1990, with the entry into force of a law three days later (published in Dz.U. No. 34, item 201), a provision was added to the Code of Administrative Procedure, which stated:

Article 27a § 1: Municipal authorities are also excluded from handling cases in which the municipality is a party.

§ 2: In cases defined in § 1, the case shall be handled by the authority of another municipality designated by:

1. The appeals board at the voivodeship council—in matters concerning the municipality’s own tasks,
2. The voivode—in matters concerning delegated tasks of government administration.

This provision, as its literal wording indicated, allowed for the exclusion of a municipality’s authority (including its executive body) from handling cases in which the municipality was a party.

However, this provision was removed from the Code of Administrative Procedure by the Act of October 12, 1994 (Dz.U. No. 122, item 593), which came into force on December 6, 1994. After this date, there was no general provision (in the Code of Administrative Procedure) that allowed for the exclusion of a municipality’s authority from handling cases in which the municipality was a party. Appropriate exclusions could therefore only be found in specific laws, including the Water Law discussed in this article.

Lack of relevant exclusions in the Water Law

From December 6, 1994, onward, the following Water Laws have been in force in Poland:

• The Act of October 24, 1974,
• The Act of July 18, 2001,
• The currently applicable Act of July 20, 2017.

None of these laws have included provisions stipulating that a mayor, city mayor, or president must be excluded from handling cases concerning changes in water conditions on land that adversely affect neighboring properties, in which the municipality is a party, and the executive body (mayor, city mayor, or president) conducts the proceedings. It seems clear, therefore, that there is currently no legal basis for such exclusion, making it legally impossible.

Court rulings on this issue

The issue of the lack of grounds for excluding mayors, city mayors, or presidents from handling cases concerning changes in water conditions on land that adversely affect neighboring properties—where the municipality is a party and the executive body conducts the proceedings—also appears definitively and unequivocally resolved in court rulings.

The Provincial Administrative Court in Warsaw, in its judgment of May 25, 2012 (case no. IV SA/Wa 507/12), stated:
In the Court’s opinion, there is no clear legal provision supporting the position of the authority presented in the challenged decision of (…) January 2012. In other words, the Mayor of the Municipality of S., as a public administration authority, is not excluded from ruling in a case in which the Municipality of S. is a party.

The obligation to exclude the authority in the case at hand cannot be derived from Article 24 of the Code of Administrative Procedure, as this provision concerns the exclusion of an authority’s employee rather than the authority itself. The exclusion of an administrative authority is the subject of a separate regulation under Article 25 § 1 of the Code of Administrative Procedure, which also cannot apply to this case.

This position is also supported by rulings from the Supreme Administrative Court in Warsaw, including the judgment of April 1, 2009 (case no. II OSK 460/08)—
There is no clear legal provision, similar to the repealed Article 27a of the Code of Administrative Procedure, excluding the mayor, city mayor, or president from ruling in cases where their municipality is a party—and the judgment of May 24, 2012 (case no. II OSK 2657/11):
It should also be noted that the procedural regulations in force do not include a general provision requiring the exclusion of a local government authority when the case subject to administrative proceedings is connected to the legal interest of the given local government entity […].

Likewise, the Water Law does not provide for the exclusion of mayors, city mayors, or presidents in cases where the municipality is a party to the substantive legal relationship. However, such situations are provided for in other substantive legal provisions, where the legislator, recognizing the conflict of legal interests between the local government community and individuals, introduced the institution of authority exclusion. An example is the amendment to the Act on Real Estate Management introduced by the Act of August 24, 2007 […].

Similar rulings have been made by other provincial administrative courts, such as in Lublin (judgment of December 20, 2016, case no. II SA/Lu 729/16) and Białystok (judgment of September 13, 2016, case no. II SA/Bk 341/16).

Faulty practice of appeals boards

Due to the aforementioned administrative court rulings, it is extremely rare for cases concerning changes in water conditions on land that adversely affect neighboring properties to be handled by the executive body of a municipality other than the one with local jurisdiction. Nevertheless, such cases do occur. They mainly result from erroneous rulings by local appeals boards, often issued at the request of a mayor, city mayor, or president who does not wish to rule in a case in which the municipality is a party and the executive body. Since such rulings are improper (being issued without legal basis) and cannot be appealed, they can only be challenged in an appeal against the issued decision by the unauthorized authority or subsequently in a complaint to the provincial administrative court.