Maintaining authority's governance

The provisions of the Public Education Act clearly distinguish between the decision-making rights of a public educational institution and the maintaining authority. It can be decided on this basis whether a given case falls under the competence of the public educational institution or the authority. This is not only a division of tasks between the institution and the maintaining authority but in several aspects also functional as a guarantee. These provisions also prevent the maintaining authority from removing areas of competence from the institution.

Under the Public Education Act, in the case of legitimacy requests submitted in the interest of a child or pupil, and in cases of supervision requests concerning the establishment and discontinuation of pupil status, or pupil's disciplinary cases, the representative of the maintaining authority acts on and passes a decision of second instance. According to the regulation, legitimacy requests concerning violation of the rights of the school board, the pupils' council and the parents' association are also judged by the maintaining authority. Therefore, in several cases the decisions of first instance passed by the school are reviewed by the authority, as a forum of second instance. This rule functions as a guarantee for those who might be subjects of the decisions of the school.

The manager of a private school asked whether he could be appointed as the director of the school. In our opinion this could lead to grave violation of the law, if the same person acted as maintaining authority and the head of institution in a public educational institute, because then, in making decisions, the forum that should act at second instance would be identical with the organ acting at first instance. In view of this, our point of view is that the strict and clear separation of the competences of the maintaining authority and the head of the institution cannot be regarded as a pure formality, even in the case of private schools. (KOJOG-200/2002.)

The Public Education Act provides a high level of professional autonomy for the institutions. As part of this, the maintaining authority is not entitled to exercise professional control regarding the pedagogical work of the training or educational institution. Based on Paragraph (1) of Article 54 of the Act, the head of an educational institution is responsible for the pedagogical work in the institution. Article 106 of the Act also states that maintainer's control cannot damage the professional independence of the institution and its scope of professional decisions.

The maintainer's rights of the local authority do not include issues that involve the parents' or the children's or the pupils' property.

The leader of a parents' association asked whether it is an offence of any regulation if a kindergarten teacher fulfils a request from the parents by settling the price of certain goods or service directly through monies transferred to him or her. The maintaining authority of the kindergarten regarded this as unjustifiable and claimed that parents fulfil the payment towards the maintainer. The second question was whether it is contrary to the regulations if the parents' voluntary donations in kind (for example handkerchiefs, toothpaste, napkins) are stored in the rooms of the kindergarten and distributed among the children evenly, as seen as needed by the kindergarten teacher.

Concerning the first question it can be stated that public educational regulations do not deal with the highlighted case, therefore the question should not be investigated in an educational legal context, but as if the educational institution had no role in the case. In agreement with the general regulations of civil law, the transferred monies remain in the parents' or children's possession. The parents commission the kindergarten teacher, for example, to pay for the entrances at the ticket office of the zoo. Based on the kindergarten teacher's voluntary and free undertaking, a civil relationship is formed between him and the parents, and this relationship is completely independent from the institution. The formation of this relationship is not prohibited by regulations, either for the parents or the teacher.

Concerning the second question, we informed the inquirer of the following: donations made by parents (handkerchiefs, napkins, etc.) are not transferred into the possession of the institution; they remain in the parents' common property in accordance with the intention of the donation. The primary purpose of the rooms of the institution is not to store parents' properties but in our opinion, if the storage does not endanger the operation of the kindergarten, then there is nothing to prevent the storage of the above mentioned objects in the rooms of the kindergarten. (K-OJOG-603/2002.)

A group of complaints submitted to the Office contained grievances against decisions passed by the maintaining authorities involving organisational issues connected to the control of public educational institutions. The allowed maximum number of pupils in classes is defined in Annex 3 to the Public Education Act. The regulation determines the average number and the maximum number of pupils according to year groups. The regulations of the organisation of classes indicate that the average number can be disregarded, or the classes of the school should be organised in such a way that the number of pupils enrolled in the class does not exceed the maximum number. As an exception, the maximum number determined for school classes can be exceeded by twenty per cent at the beginning of the school year, if in the given year only one class starts in the school, or also in the course of the school year, if it is justified by the reception of a new pupil. The management can therefore merge classes with a small number of pupils until the maximum number of pupils is reached; within a year, the creation of a merged class is not illegal at the beginning of the school year.

This information was given to a teacher who wished to obtain information about the rules governing the merging of classes, because the two seventh-year classes of their school were to be merged in the following school year. (K-OJOG-400/2002.)

According to Paragraph (2) of Article 102 of the Public Education Act, the decisions concerning the reorganisation and closure of public educational institutions belong to the competence of the maintaining authority. On the other hand, according to Paragraph (9), the authority cannot reorganise or close a pupils' dormitory, cannot hand over the maintenance rights, cannot reorganise or dissolve pupils' dormitory groups and cannot alter the tasks of the pupils' dormitory during the school year.

Our office received a complaint connected to the closure of a pupils' dormitory. The pupils were informed in writing in summer, that the pupils' dormitory of a secondary vocational school was being closed due to "technical reasons", and in the future they would be accommodated in the pupils' dormitory of a secondary grammar school. The head of the secondary vocational school informed us that he and the head of the secondary grammar school reached an agreement about the pupils' accommodation in August. In a decision passed during their meeting on 24th September, the board of the representatives of the municipal council maintaining the secondary vocational school requested the county municipal authority to allow the temporary accommodation of the pupils in the pupils' dormitory of the secondary grammar school maintained by the county municipal council.

We established that the board of the representatives of the maintaining municipal authority offended the quoted regulation of the Public Education Act in passing a decision about the closure of the pupils' dormitory during the school year. Regarding the above, we initiated the restoration of the legal conditions at the board of the representatives of the municipal council. The board of the representatives of the municipal council informed our Office without due justification that they rejected the initiative. Because of this, we turned to the leader of the public administration office exercising the legal supervision of the municipal council and requested the performance of the necessary supervision measures. The leader of the public administration office disagreed with the proposal, because the municipal council did not close the pupils' dormitory, did not dispose of maintenance rights, did not pass a decision about the alteration of its tasks and the redirection of pupils enrolled in the pupils' dormitory to another one, and the issue could not be regarded as reorganisation either. In his point of view, reorganisation is a decision or measure affecting the operation of a given institute and causing structural change. Furthermore, no pupils' dormitory group can be mentioned because its prerequisite, pupils' dormitory membership state, was not established, given that the enrolment of pupils had not been implemented.

We disagreed with the point of view of the public administration office because we regard the fact that a pupils' dormitory is not operational and has no pupils as closure. On the other hand, if we accepted that this is not closure, then the decision redirecting the pupils to another pupils' dormitory would be illegal. (K-OJOG-90/2002.)

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