Supervisory functions of school maintainers
Pursuant to the provisions of the Act on Public Education, operators
have various authorisations in connection with the control of public educational
institutions. However, when exercising these authorisations, operators
must comply with the content and procedural constraints set forth in legislation.
Article 102 of the Act on Public Education determines that the operator
appoints the head of the public educational institution after requesting
the opinion of the staff community of the institution, the school board,
the parents' organisation, and of the student government, prior to this
decision. Failing to ask for this opinion is regarded as an infringement
of rights, however, without prejudice to the validity of the decision,
just as in the instances of institution reorganisation described below.
(K-OJOG-139/2001)
| We received several complaints
from teachers protesting that the operator did not consult them,
the employed staff of the institution, when selecting the principal.
The teachers argued in their applications that it was not easy for
them to establish a joint position since they had been striving
to decide in a responsible way and by considering all aspects which
candidate to support. If after all this, the operator appoints a
person other than the one they found the most suitable, then in
their opinion, it becomes questionable why the act resolves the
requesting of opinions as an obligation for the operators. The operator
is obliged to obtain the opinions set forth in the act, but they
are not binding in the decision-making. The operator may adopt a
decision that is against the opinions brought forward since the
operator bears responsibility for this decision at all times. This
decision may be in conflict with the interests of teachers, but
it does not infringe the rights of the teaching staff provided for
in the act. (K-OJOG-276/2001, K-OJOG-282/2001, K-OJOG-288/2001,
K-OJOG-301/2001, K-OJOG-328/2001) |
Pursuant to Paragraph (2) of Article 102 of the Act on Public Education,
the establishment, re-organisation and termination of public educational
institutions falls within the decision-making powers of the operator.
However, Paragraph (6) of Article 88 of the Act states that the local
government may terminate a public educational institution or the provision
of a service if the activity or service concerned will be provided for
in the future to appropriate standards while its utilisation may not represent
a disproportionate burden to the child, the student and the parent. A
disproportionate burden is when the child, or the student is able to take
advantage of nursery school education or elementary school education and
teaching under substantially more difficult circumstances or at significantly
increased costs with a view to the age and any disability of the child,
or the student (e.g. the time needed to reach the educational institution
increases substantially, the educational institution may only be accessed
by the use of public transport or transfers as a result of the change).
The provision of appropriate standards and the prohibition of disproportionate
burden is a major content constraint to the decision of an operator on
terminating public educational institutions.
| Parents protested that
an operator terminated two elementary schools. They claimed that
the decision puts their children in a more disadvantageous position
since, in the alternative institutions, not all children can be
accommodated, the regular physical exercise of students ceases and
the specialisation in mathematics could not be continued either.
The mayor informed our Office that they reviewed their original
ideas and were able to find an appropriate place for every student;
they took the necessary measures to continue regular physical exercises
and the programme of specialisation in mathematics. Thus the operator
remedied the threat of the infringement of rights within its own
scope of control. (K-OJOG-168/2001) |
Pursuant to Paragraph (3) of Article 102 of the Act on Public Education,
the operator must request the opinion of, among others, the employed community
of the institution, the school board, the parents' organisation (community)
in the school, and of the student government of the school prior to making
a decision to establish, reorganise or terminate a public educational
institution. Our experiences show that the failure to request these opinions
causes a number of problems, which leads to the infringement of rights
in every instance. Complainants contacting our Office protested on several
occasions that operators terminated or reorganised a public educational
institution without requesting the opinion of stakeholders beforehand.
| As a result of a complaint
submitted by a parents' organisation, we established that the operator
failed to obtain the preliminary opinion of the eligible parties
prior to making a decision on the reorganisation of the school and
on drafting an action plan. Our position, in line with Position
31 of the Public Administration Collegium of the Supreme Court,
is that the procedural default of the representative body was without
prejudice to the validity of the decision since the omission of
requesting opinion is classified as an infringement of procedural
laws of lesser weight, which does not affect the essence of the
decision since a decision may be adopted even against the contents
of those opinions. With a view to the above, we approached the mayor
with an initiative for the future. The mayor accepted this initiative.
(K-OJOG-231/2001) |
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