Term and Legal Status of the 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 a district above a certain population size, which plays an important role in local self-government in the Federal Republic of Germany. The district council is a body whose establishment and organization are essentially governed by the municipal codes of the respective federal states. District representatives represent the interests of the residents of a city district (district) vis-à-vis the local administration and within the overall municipal council.
Legal Basis of the District Council and District Representatives
Statutory Basis
Municipal Constitution in North Rhine-Westphalia
Among 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 formation of district councils as well as the election, rights, and duties of district representatives. Similar provisions can also 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).
Municipal Constitutional Framework
The structure and competencies of the district councils as well as the status of the district representatives vary depending on the federal state and municipal constitution. The relevant legal bases stipulate, in addition to the number of district representatives, the electoral system, term of office, legal status, and areas of responsibility.
Election and Composition
Electoral System
District representatives are elected in general local elections, with the procedure and number of mandates subject to the respective local electoral law. The election usually takes place concurrently with the city council election by the eligible voters of the district. The allocation of seats is generally carried out according to the principles of proportional representation (e.g. via the Hare/Niemeyer, d’Hondt, or Sainte-Laguë/Schepers methods) to ensure adequate representation of all population groups.
Term of Office and Substitution Procedure
The term of office of district representatives often corresponds to the election period of the council of the respective municipality (usually five years). If a district representative leaves during the election period, substitution regulations generally come into force, whereby candidates from the reserve or substitute lists of the respective party or voters’ association succeed to the position.
Rights and Duties of District Representatives
Area of Responsibility
District representatives participate in local politics within the scope of their statutory responsibilities and act as intermediaries between the citizenry and the administration. They advise on and decide particularly on matters affecting the city district and which are of significant importance for the district (e.g. construction measures, planning of public facilities, design of public spaces, proposals for district development).
Participation and Decision-Making Powers
The district council is endowed with its own decision-making, consultative, and proposal rights. The district representative has the right to attend meetings, submit motions, direct queries to the administration, and vote on matters concerning the district. The exact design of decision-making powers and consultation rights is set out in the respective municipality’s main statutes and the municipal code.
Rights of Individual District Representatives
Each district representative has the right to information, to speak, and to submit motions. They are entitled to obtain information from the administration (rights of file inspection) and to participate in all meetings and deliberations of the district council. The district representative is also entitled to compensation for expenses (allowance for expenses) in accordance with the regulations of the compensation ordinance of the respective federal state.
Duties of District Representatives
The main duties of district representatives include the proper exercise of the mandate, participation in meetings, the obligation of confidentiality regarding confidential matters, and the avoidance of conflicts of interest. In official proceedings in which the district representative is personally involved, there is a duty to abstain from participation and voting (conflict of interest pursuant to the municipal code).
Status and Legal Position
Voluntarism
District representatives generally exercise their mandate on an honorary basis, but are obliged to perform their duties and participate in meetings. As compensation for their time, an expense allowance is paid, the amount of which is determined by local bylaws and state regulations.
Protection of the Exercise of the Mandate
Special protective provisions apply to district representatives to ensure the free exercise of their mandate. For example, termination of employment or discrimination due to the performance of the mandate is prohibited by law (Protection Against Dismissal Act, municipal code).
Liability and Responsibility
In the course of their activities, district representatives are not personally liable for resolutions of the district council, provided they act within the scope of their mandate and legal responsibilities. Personal liability arises only in cases of gross negligence or intent, as well as in the event of violation of legal duties.
End of the Mandate and Succession
Reasons for Retirement
The mandate regularly ends with the expiry of the election period, by resignation from office, loss of eligibility, death, or removal from office for gross breach of duty according to the provisions of the respective state law.
Regulations on Succession
In the event that a district representative leaves office, the rules on substitution govern the further procedure. As a rule, the next candidate from the same list of candidates takes the seat; otherwise, the seat remains vacant.
Relationship with Other Local Political Bodies
Collaboration with Council and Administration
The district council is an independent local political body that collaborates with the city council and city administration. The cooperation is legally governed by rights to information, consultation, and participation. District representatives have the right to be informed at an early stage and are involved in the decisions of the city council when district-related matters are concerned.
Importance of District Representatives for Local Democracy
District representatives make a significant contribution to strengthening local democracy and citizen-focused administration. They ensure public participation in political decision-making processes at the district level and promote the principle of self-government 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
References:
- Municipal Constitutional Law, Annotated Edition, Loose-leaf Collection
- Handbook of 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 districts, provided this is stipulated by the main statutes of the respective municipality. The district representatives, also called members of the district council, are elected in the context of local elections. The election is conducted according to the principles of proportional representation, meaning the seats are distributed in accordance with the proportion of votes won by the respective electoral proposals. Eligible to vote and to be elected are, in principle, persons who are German within the meaning of Article 116 of the Basic Law or EU citizens, have reached the age of 16, and have been registered as having their main residence in the district for at least three months (§ 12 and § 17 GO NRW). In addition, no grounds for exclusion may exist, such as the loss of the right to vote. The legal requirements for appointment explicitly include that there must be no criminal hindrances or conflicts of interest, for example due to full-time employment in the city or district administration.
What legal powers and competencies do district representatives have?
As elected members of the district council, district representatives exercise the tasks assigned to them by the municipal code and the main statutes within their city district. Legally, district councils are bodies with limited decision-making powers, whose competencies are strictly regulated by law (§ 36 GO NRW). They participate in matters that affect the respective district and are of fundamental importance, with the specific responsibilities further defined in the main statutes. For example, district representatives can decide on certain issues concerning the infrastructure, cultural or social affairs of their district, but they cannot enact independent sovereign administrative acts. They have the right to submit motions and queries to the administration, as well as consultation and recommendation rights in matters affecting the entire municipality. Their decisions only have legal effect to the extent prescribed by the relevant legal regulations and the municipality’s order of responsibilities; for instance, district councils may not make budget-related decisions that affect the entire municipal budget.
What legal obligations and responsibilities do district representatives have during their term of office?
Service as a district representative involves various legal obligations. Central duties include the obligation to maintain official secrecy (§ 43 (2) GO NRW), which continues even after leaving office. In addition, district representatives have a duty of loyalty to the municipality, must participate in meetings, and must declare conflicts of interest, for example in cases of personal involvement with matters under discussion, and must, if necessary, withdraw from discussions and decision-making (§ 31 GO NRW). They are also required to exercise their mandate to the best of their knowledge and belief and have a duty of protection and care toward the interests of the municipality while holding office. Breaches of these duties can have legal consequences such as disciplinary measures, loss of mandate, or in exceptional cases even criminal liability, for example in cases of accepting advantages or disclosing confidential information.
Are district representatives afforded special legal protections during their term of office?
Yes, district representatives are subject to special statutory protection during their term of office. According to § 33 GO NRW, district representatives enjoy a status comparable to that of members of other local bodies. This includes regulations to protect against disadvantage in the workplace, for example through employers’ obligation to grant leave for participation in meetings. In addition, protection is afforded against civil, criminal, or disciplinary consequences arising from voting behavior or statements made in the course of their work as a district representative, provided these occur within the scope of their mandate and not unlawfully. Members also benefit from limited immunity from liability, provided they do not intentionally or through gross negligence violate their duties while in office.
How can district representatives be legally recalled or excluded?
The legal possibility of removing district representatives from office is strictly limited by law. The mandate generally ends by expiry of the term, resignation, loss of eligibility, or death. Furthermore, a mandate may be revoked due to loss of eligibility (§ 13 GO NRW), by a successful legal challenge to the legality of the election, or due to justified incompatibility (e.g., appointment to an office incompatible with the mandate). Mandatory removal is only possible in clearly defined exceptional cases, usually following a formal exclusion procedure. Such a procedure may be initiated if a district representative culpably and seriously violates legal duties, for example through persistent and gross breaches of duty, breach of trust, or serious criminal offenses in connection with the exercise of the mandate. The decision on exclusion is legally contestable and subject to supervisory review by the local government authority.
What legal framework applies to the 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, where applicable, rules of procedure. In principle, district councils hold public meetings, unless non-public deliberation is required under data protection provisions or special confidentiality obligations (§ 48 GO NRW). Specific form and time requirements for convening meetings must be observed. A quorum exists if more than half of the statutory members are present; resolutions usually require a simple majority, unless a qualified majority is required by law. Regardless, violations of form or procedural requirements can render resolutions null and void or subject to challenge. Minute-taking requirements and other procedural rules, such as possibilities for public hearings, are also legally regulated.
What legal regulations exist for compensation and expense allowances for district representatives?
District representatives exercise their mandate on an honorary basis, but are entitled to reimbursement of expenses and appropriate compensation for expenses (§ 45 GO NRW in conjunction with the respective applicable compensation regulation of the federal state, e.g., EntschVO NRW). The amount and arrangement are governed by state law or municipal bylaws. Compensation includes, among other things, attendance fees, travel expenses, or loss of earnings incurred in connection with official duties. Payments are legally structured as compensation for expenses and must not become a main or secondary source of income, thereby ensuring the voluntary nature of the mandate. Unauthorized double reimbursements or fraudulent claims can lead to civil and criminal prosecution.
