Term and Legal Status of District Representative
Definition
Der District representative is a member of the district council, a political body at the level of city districts in independent cities and in cities belonging to districts from a certain population size, which plays an important role in municipal self-government in the Federal Republic of Germany. The district council is a body whose establishment and structure are essentially regulated by the municipal codes of the respective federal states. District representatives represent the interests of the residents of a district (Bezirk) vis-à-vis the municipal administration and within the overall city council.
Legal Basis of the District Council and the District Representatives
Statutory Foundations
Local Government Act in North Rhine-Westphalia
One of the most significant statutory regulations is the Municipal Code for the State of North Rhine-Westphalia (GO NRW), in particular §§ 35-39 GO NRW, which regulates the establishment of district councils and the election, rights, and duties of the district representatives. Similar provisions can be found in the municipal codes of other federal states, such as in Bavaria (Municipal Code for the Free State of Bavaria – GO) or Hesse (Hessian Municipal Code – HGO).
Local Government Law Framework
The structure and competencies of district councils as well as the status of district representatives vary depending on the federal state and the municipal constitution. The relevant legal foundations determine, in addition to the number of district representatives, the electoral system, term of office, legal status, and areas of responsibility.
Election and Composition
Electoral Procedure
District representatives are generally elected in general local elections, with the procedure and number of mandates determined by the respective local election laws. The election usually takes place simultaneously with the election of the city council by eligible residents of the district. Allocation of seats is generally based on the principles of proportional representation (e.g., using the Hare/Niemeyer, d’Hondt or Sainte-Laguë/Schepers method) to ensure appropriate representation of all population groups.
Term of Office and Succession Procedure
The term of office of district representatives often corresponds to the electoral period of the council of the respective municipality (usually five years). If a district representative leaves during the election period, succession rules generally apply, whereby candidates from the reserve or replacement lists of the respective party or voter group move up.
Rights and Duties of District Representatives
Scope of Responsibilities
Within the scope of their statutory responsibilities, district representatives participate in local politics and act as intermediaries between the population and the administration. In particular, they deliberate and decide on matters affecting the city district and which are of substantial importance for the district (e.g., construction measures, planning of public facilities, design of public spaces, proposals for district development).
Involvement and Decision-Making Competencies
The district council is vested with its own decision-making, hearing, and proposal rights. The district representative has the right to attend meetings, submit motions, address questions to the administration, and vote on district matters. The exact scope of decision-making and hearing rights is stipulated in the main statutes of the municipality and the municipal code.
Rights of Individual District Representatives
Each district representative has rights to information, speech, and motions. He or she is entitled to obtain information from the administration (right to inspect files) and to participate in all meetings and consultations of the district council. Furthermore, the district representative is entitled to compensation (expense allowance) in accordance with the regulations of the respective federal state.
Duties of District Representatives
The core duties of district representatives include the proper exercise of the mandate, attendance at meetings, confidentiality regarding confidential matters, and avoidance of conflicts of interest. In official matters in which the district representative has a personal involvement, there is a duty to abstain from participation and voting (disqualification pursuant to the municipal code).
Status and Legal Position
Honorary Nature
District representatives generally exercise their mandate as an honorary office, but are obliged to perform their duties and attend meetings. As compensation for the time spent, an expense allowance is paid, the amount of which is determined by municipal statutes and state law regulations.
Protection of the Exercise of Mandate
Special protective provisions apply for district representatives to ensure the free exercise of their mandate. For example, dismissal from employment or discrimination due to the exercise of the mandate is legally prohibited (Protection Against Dismissal Act, municipal code).
Liability and Responsibility
In the course of their activities, district representatives are not personally liable for decisions of the district council, provided they act within their mandate and the scope of their legal responsibilities. Personal liability arises only in cases of gross negligence or intent, as well as in the event of a breach of statutory duties.
End of Mandate and Succession
Grounds for Departure
The mandate regularly ends with the expiration of the term of office, by resignation from office, loss of eligibility, death, or removal from office for gross breaches of duty pursuant to the provisions of the respective state law.
Provisions on Succession
In the event of a district representative leaving office, the provisions on succession regulate the further procedure. Generally, the next candidate on the same nomination list takes over; otherwise, the seat remains vacant.
Relationship with Other Municipal Bodies
Cooperation with Council and Administration
The district council is an independent municipal body that cooperates with the city council and the city administration. This cooperation is legally regulated through rights to information, consultation, and participation. District representatives have the right to early information and are involved in the city council’s decisions when district-relevant matters are affected.
Importance of the District Representative for Local Democracy
District representatives make a significant contribution to strengthening local democracy and citizen-oriented administration. They ensure the involvement of the population in political decision-making processes at the city district level and promote the principle of self-administration in German municipalities.
See also:
- Local Representation
- Municipal Code
- Local Elections
Legal Sources:
- Municipal Code North Rhine-Westphalia (GO NRW)
- Municipal Code Bavaria (BayGO)
- Hessian Municipal Code (HGO)
- Local election laws of the federal states
Recommended Literature:
- Commented Local Constitutional Law, Loose-leaf Edition
- Handbook on Local Representation and District Council
Frequently Asked Questions
How are district representatives legally appointed and what requirements must they meet?
The legal appointment of district representatives is regulated in the municipal code of the respective federal state, for example in the Municipal Code for the State of North Rhine-Westphalia (GO NRW). According to § 35 (1) GO NRW, district councils are established in independent cities and counties, provided this is stipulated by the main statutes of the respective municipality. District representatives, also called members of the district council, are elected during the local elections. The election follows the principles of proportional representation, i.e., the seats are distributed according to the share of votes obtained by each nomination. Persons entitled to vote and to stand as candidates are generally those who are German under Article 116 of the Basic Law or EU citizens, who have reached the age of 16, and who have been registered with their main residence in the district for at least three months (§ 12 and § 17 GO NRW). In addition, no grounds for exclusion may apply, such as the loss of the right to vote. The legal requirements for appointment explicitly include the absence of criminal obstacles or conflicts of interest, for example, due to full-time positions in the city or district administration.
What legal powers and competencies do district representatives have?
District representatives, as elected members of the district council, perform the duties assigned to them under the municipal code and the main statutes in their respective city district. Legally, district councils are organs with limited decision-making authority, whose competencies are strictly regulated by law (§ 36 GO NRW). They are particularly involved in matters affecting their respective district and of fundamental importance, whereby the specific competence is further specified in the main statutes. District representatives, for example, may decide on certain issues relating to the infrastructure, culture, or social affairs of their district, but cannot independently enact sovereign administrative acts. They have the right to submit motions and inquiries to the administration, as well as hearing and recommendation rights on matters extending beyond the district. Their decisions have legal effect only to the extent permitted by the relevant legal provisions and the municipality’s jurisdictional rules; for instance, district councils are not permitted to make budget-relevant decisions affecting the municipal budget as a whole.
What legal obligations and responsibilities do district representatives have during their term of office?
The activities of district representatives are associated with various legal obligations. The key obligations include a duty of confidentiality (§ 43 (2) GO NRW), which continues after leaving office. In addition, district representatives owe a duty of loyalty to the municipality, are obliged to attend meetings, and must report conflicts of interest, for example, in cases of personal involvement in items under discussion, and if necessary, withdraw from the discussion and decision-making (§ 31 GO NRW). They are also obliged to exercise their mandate to the best of their knowledge and belief and, as part of their mandate, have a duty to protect and care for the interests of the municipality. Violations of these duties can result in legal consequences such as disciplinary measures, loss of mandate, or in exceptional cases even criminal liability, for example, for accepting benefits or disclosing confidential information.
Are district representatives subject to special legal protection during their term of office?
Yes, district representatives enjoy special legal protection during their term of office. According to § 33 GO NRW, district representatives have a status comparable to that of members of other municipal bodies. This includes, in particular, provisions protecting against disadvantage in employment, such as obligations for employers to release them for meetings. In addition, there is protection against civil, criminal, or disciplinary consequences arising from voting behavior or statements made as part of the district representative’s activity, provided these occur within the scope of the office and are not unlawful. Members also enjoy limited immunity from liability as long as they do not intentionally or by gross negligence breach their duties while exercising their office.
How can district representatives be legally dismissed or excluded?
The legal possibility of removing district representatives from office is narrowly regulated by law. The mandate generally ends through expiry of the term, resignation, loss of eligibility, or death. In addition, a mandate may be lost as a result of the loss of eligibility (§ 13 GO NRW), a successful objection to the validity of the election, or proven incompatibility (e.g., appointment to an office incompatible with the mandate). Forced removal is only possible in clearly defined exceptional cases, usually following a formal exclusion procedure. Such a procedure can be initiated if a district representative culpably and seriously breaches statutory duties, for example, through persistent serious breaches of duty, breach of trust, or serious crimes in connection with the exercise of the mandate. The decision to exclude is legally challengeable and subject to municipal supervision.
What legal framework applies to meetings and resolutions of the district council?
The legal framework for meetings and resolutions is derived from the municipal code, the main statutes of the respective municipality, and, if applicable, rules of procedure. District councils generally hold public meetings, except where, under data protection provisions or special confidentiality requirements, private consultation is necessary (§ 48 GO NRW). Certain formal and timing regulations must be observed when convening meetings. A quorum is present when more than half of the statutory members are present; decisions typically require a simple majority unless a qualified majority is legally required. Notwithstanding this, breaches of formal or procedural requirements may lead to nullity or contestability of resolutions. Minute-keeping obligations and further procedural rules, such as rights of the public to attend hearings, are also legally regulated.
What legal provisions exist regarding compensation and expense allowances for district representatives?
District representatives exercise their office as an honorary position, but are entitled to reimbursement of expenses and appropriate compensation for expenses (§ 45 GO NRW in conjunction with the currently valid compensation regulation of the federal state, e.g., EntschVO NRW). The amount and form are regulated by state law or municipal statutes. Compensation includes, among other things, attendance fees, travel expenses, or loss of earnings, insofar as these arise in connection with the performance of office. The payments are legally classified as expense allowances and must not become a main or side occupation in order to maintain the honorary character of the mandate. Unauthorized double reimbursements or fraudulent claims may be subject to civil and criminal prosecution.
