Maintainer Control
As in previous years most of the petitions lodged with regard to the issue of maintainer control were related to the reorganization and closing of institutions this year as well. It was not only students and parent, but also teachers and heads of institutions as well who sought our opinion on the matter. Part of the questions of complainants were related to whether the decisions made by maintainers to close or restructure certain institutions were lawful, and another part was concerned with what those concerned can do, if they are notified of a decision of this sort. Our position on the issue is the following.
The right to education is part of the group of rights known as the second generation of fundamental rights provided for in the Constitution; it is a value based on social agreement that is an objective of the state . The state realises the fulfilment of its tasks undertaken in acts partly through the local authorities. The local authority as maintainer, within the limits imposed by legal regulations, possesses a high degree of independence with regard to the formation and organisation of institutional structure. Its decisions to provide public service can be reviewed only with respect to their compliance with the law; no organisation has the right to review them on grounds of expedience . The reorganisation, merging or closure of educational institutions that can be experienced countrywide are natural consequences of economic and demographic reasons. The reorganisation, merging or closure of an institution cannot be regarded as unlawful in itself, if the founder complies with the relevant regulations, guarantee rules. Review of the legal compliance of an act to close an institution may consist of the investigation of whether these guarantee rules were respected.
The conditions of education are of the outmost importance to the inhabitants of any town/city, but at the same time the changing or streamlining of the institutional system due to the changing circumstances and the continuity of service are sometimes inevitable. These, in turn, always result in some form of infringement on the part of those concerned (employees, students of the institution, students' parent). The rights of the parties concerned in the case are protected partly by a compulsory procedural rule, the request for their opinion, and partly by the legal requirement that education should be maintained at a satisfactory level.
Paragraph (2), Article 102 of the Public Education Act states that the maintainer shall have the right to make a decision on the establishment, restructuring, or dissolution of an institution of public education. The fact that the statute delegates decisions on the establishment, restructuring, or dissolution of schools, means that it is the exclusive right and responsibility of the municipality to make decisions of this sort. Its freedom of decision, however, is restricted by the fact it can only decide to dissolve an institution of public education, if it is able to continue to ensure that the same quality of activity/service is available, ensuring at the same time that the use thereof by the students and their parents does disproportionately burden them. For this decision, the professional opinion of the local authority of the capital or county-based on the development plan-should be acquired. Pursuant to a provision of the Public Education Act effective as of September 1, 2003 the municipality should also obtain the opinion of an expert registered in the National Experts Register in order to provide an expert opinion on its planned measures. An opinion of such an expert is a condition of validity for the decisions on closing schools, passed after September 1, 2003 when the amendment of the act entered into force. The expert should establish a position as to whether the proposed solution ensures that the given activity/service will continue to be provided at the appropriate level of quality. The expert opinion shall be sent to the metropolitan or county municipality, together with the request for an expert opinion. The National Public Education Evaluation and Examination Centre shall recommend an independent expert, upon the request of the municipality concerned. Therefore, the ensuring that the given activity/service is continued and an appropriate quality is maintained are important validity factors of the decision. We, however, cannot establish whether the solution recommended by the municipality complies with the guarantee laid down by the relevant statute, as that is a task to be performed by the expert. Paragraph (3), Article 102 of the Public Education Act provides additional guarantees for the participants of education. According to this, the maintainer must request the opinion of, among others, the community of the employees of the institution, the school board, the parental body (community) in the school, and of the student body of the school prior to making a decision to establish, reorganise or dissolve an institution of public education. If the maintainer violates the above provisions of the Public Education Act, i.e., does not seek the opinion of those concerned, the decision made this way may be contested. Under Paragraph (12) of Article 84 of the Public Education Act, when a legal regulation requires a preliminary opinion, agreement or professional opinion for passing a decision falling under the competence of the maintainer, a decision passed in the absence thereof can be contested. The successfully contested decision becomes void, starting from the date of decision. The parties entitled to contest the decision are the offended party and those who have a legal interest therein. The contest must be indicated in writing within three months, and then enforced within fifteen days if such disclosure was inconclusive. The maintainer shall be informed on the contest; on the other hand, invalidity can be established in this case with a petition addressed to the chief county notary. The three-month deadline starts on the day of the disclosure of the decision to the parties concerned. If this day cannot be established, the day of disclosure shall be the fifteenth working day following the passing of the decision. The deadline provided for the contest shall be forfeit, justifications shall be precluded. (K-OJOG-308/2006, K-OJOG-242/2006)
A school principal requested information in writing about whether a maintainer's planned decision to merge all of its educational institutions as of January 1, 2007 was lawful or not. In addition to the above, we also informed him that according to Paragraph (9), Article 102 of Act LXXIX of 1993 on Public Education, during the academic year (term time) and during the academic year, except for the months of July and August, the maintainer may not start a new school, restructure or dissolve a school, residence hall or kindergarten, or transfer its rights of maintenance, order a school class, residence hall group or kindergarten group to be reorganized or dissolved, or modify the tasks of a school, residence hall or kindergarten. All maintainer decisions that result in an amendment to the articles of association of the institution shall be regarded as a restructuring of the institution as per Point 15 of the Preamble of the Public Education Act. The planned merging of the institutions would, in fact, constitute an amendment of this sort. (K-OJOGB-417/2006.) |
Ensuring basic education is a task of town/city municipalities. This obligation to fulfil the task in this context means that the municipality is an extraordinary stakeholder performing a public service task that must satisfy arising demands. In addition to their mandatory tasks, town/city municipalities may undertake to provide other services as well. They are, however, not required to provide these services, if their financial standing does not make it possible.
A parent contacted our Office with the question as to what kind of tasks the municipality has in a town, where despite recent increases in demand, none of the conditions of local education have changed. We informed the parent that pursuant to Paragraph (1), Article 8 of Act LXV of 1990 on Local municipalities, the tasks of the local municipality include with regard to public services, in particular: ensuring kindergarten, basic education, education, healthcare and social services, as well as ensuring that child and youth related tasks are also performed. Therefore, according to Paragraph (2) of the same section, the municipality may decide with reference to the tasks detailed under Paragraph (1) the extent and manner in which it wishes to fulfil them, based on the demands of the population, and its financial situation. Pursuant to Paragraph (4), Article 8 of the same act, the local municipality shall be obliged to ensure kindergarten and primary school education, and basic healthcare and social services. (K-OJOG-274/2006.) |
Naturally, educational institutions may not only be maintained by local municipalities. That is because according to Paragraph (2), Article 3 of the Public Education Act, institutions of public education may be established and maintained by the state, the municipality, the minority local government, the national minority local government, churches, registered as legal entities in the Republic of Hungary, and business organizations, foundations, associations, which are established and seated within the territory of the Republic of Hungary, and natural private individuals, provided that the above entities have obtained rights to pursue such activities based on the provisions of the relevant statute. Private individuals may establish and maintain institutions of public education as private entrepreneurs. The question as to what one needs to do, if he or she wants to establish a school or a kindergarten is asked every year. We provide those enquiring about what it takes to found an institution of public education with the following information. Pursuant to Paragraph (1), Article 37 of the Public Education Act, an institution of public education is an institution established for the purpose fulfilling public education tasks defined by in the same act. The institution of public education is a legal entity. Pursuant Paragraph (2) of the same section the establishment of the institution of public education shall be reported for registration within thirty days of the singing of its Articles of Association by sending said Articles in-if the maintainer does not perform the activity pursuant to a statutory mandate-together with the deed authorizing the institution to provide public education services. In case of budgetary bodies the report shall be made by the registering body, in other cases by the notary or the chief notary as follows: In the case of kindergartens and primary schools by the competent Notary competent according to residence, if the kindergarten, or primary school is located within the territory of a micro region, then by the Notary competent at the seat of the micro region, in the case of institutions of basic art education, secondary schools, vocational schools, residence halls, educational institutions participating in special education, multipurpose institutions and other public education institutions by the chief notary competent according to residence. The costs of the procedure related to the registration are borne by the petitioner. According to Paragraph (3) registration may be refused in the case of violation of the law. Pursuant to Paragraph (4), the public education institution is established-retroactively to the day of the signing of its Articles of Association-with the registration. Pursuant to Paragraph (5) the Articles of Association of the public education institution shall contain the type, name, core activities, national or ethnic minority or other tasks and member institutions of the institution, the funds to be used to fulfil its tasks, the right of use regarding the funds, licenses related to the management of the institution, the name and address of the founder or the maintainer, the address of the seat and all the sites of the institution, in the case of education institutions the name of the specialization of the school, the maximum number of students that can be admitted to the institution, in the case of schools the number of grades, in the case of basic arts education the branches of art, and within that the names of the departments.
According to Paragraph (1), Article 38 of the Public Education Act, institutions of public education must be able to ensure the conditions necessary for the fulfilment of its tasks. An institution of public education is deemed able to ensure the conditions required for its operation, if it has a permanent seat, permanent staff, and the equipment, regulations and funds necessary for its operation as required by the relevant statutes. An institution of public education shall be deemed to have a permanent seat, if it has exclusive permanent right of use on the premises necessary for the fulfilment of its tasks, as required by the relevant statutes, unless the Public Education Act contains provisions to the contrary effect. An institution of public education shall be deemed to have a permanent staff, if it employs at least seventy percent of the staff required for the performance of its core activities within the framework of a permanent employment relationship, or employs them in civil servant status. The institution of public education shall ensure that its tasks are carried out from the funds provided by the founder or the maintainer, or from other revenue sources. The public education institution shall appropriate its costs of maintenance and operation in the budget drawn up and determined by the maintainer annually. (K-OJOG-198/2006, K-OJOG-331/2006, K-OJOG-111/2006)
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