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§2. Legal regulation of work with personnel structure on municipal service

Article 32 of the Law about municipal service names following priority directions of formation of personnel structure of municipal service:

1) appointment to posts of municipal service of highly skilled experts taking into account their professional qualities and competence;

2) assistance to promotion of municipal employees;

3) improvement of professional skill of municipal employees;

4) creation of a personnel reserve and its effective utilisation;

5) an estimation of results of work municipal serving by means of certification carrying out;

6) application of modern technologies of selection of shots at receipt of citizens on municipal service and works with shots at its passage.

From our point of view the specified directions are realised by means of three basic administrative procedures:

· competitive selection on replacement of a vacant post of municipal service;

· certification of municipal employees;

· creation and an effective utilisation of a personnel reserve of municipal service.

Unfortunately, the Law does not contain any positions about vocational training, retraining and improvement of professional skill of municipal employees, that also would promote formation of highly professional personnel structure of municipal service.

Besides, it is necessary to notice, that from the named procedures only certification carries a binding character. Competition on replacement of a vacant post and work with a personnel reserve are provided only at level of potential possibility. So, according to item 17 of the Law on municipal service at replacement of a post of municipal service in municipal union competition can precede a conclusion of employment agreement. Thus, the Law provides only abstract possibility of carrying out of contest for vacancy of municipal service. It is necessary to agree with those authors who believe, that the similar approach quite proved with reference to labour relations, it is represented absolutely unacceptable concerning the public service which version is the service municipal [181].

The legislator has shown the similar approach and concerning formation of a personnel reserve of municipal service. Article 33 of the Law about municipal service contains only the general instructions, that in municipal unions according to municipal legal acts the personnel reserve for replacement of vacant posts of municipal service can be created. Neither about an order of its formation, nor about work with a personnel reserve the Law does not contain any positions. Thereupon some authors notice, that the similar state of affairs is quite explainable from the practical point of view as many municipal unions test some kind of «personnel hunger» [182]. It is clear, that in such conditions they not only do not presume to themselves a reserve of shots, but also frequently even carrying out of competitive selection on replacements of a vacant post of municipal service. Probably from positions of expediency with it also followed agree, however it is not necessary to forget, that both competition on replacement of a vacant post, and a personnel reserve urged not only to promote formation of professional personnel structure, but also to provide the right of equal access to municipal service.

Let's consider the named procedures separately.

Competition on replacement of a vacant post of municipal service

Procedural features of receipt on municipal service are mainly connected with possibility of carrying out of procedure of contest for vacancy of municipal service.

As we already spoke above competition carrying out not necessarily at replacement of a vacant post of municipal service. There is a question: who should make the decision on carrying out or not carrying out of competitive procedure? Article 17 of the Law about municipal service does not contain the direct answer to the given question, however it provides, that the order of carrying out of contest for vacancy of municipal service is established by the municipal legal act accepted by a representative body of municipal union. Most likely the same body also should make the decision on carrying out of competitive selection.

It is necessary to tell, that earlier the order of carrying out of competition on replacement of a vacant post of municipal service was established both regional and municipal legal acts. So, in the Samara area questions of carrying out of competition were regulated by the law «About competition on replacement of a vacant municipal post of municipal service in the Samara area» from November, 8th, 2005 № 192-GD [183]. In the Volgograd area «the law also has been passed About competition carrying out on replacement of a vacant municipal post of municipal service of the Volgograd area» from May, 26th N 267-ODES (in red. The law of the Volgograd area from 10.01.2006 N 1177-ODES) [184]. It is possible to name and the Law of Adygea from December, 1st, 2004 N 260 "About an order of carrying out of competition on replacement of a vacant municipal post of municipal service in Republic Adygea" [185], the Law Republics Sakhas (Yakutia) from December, 11th, 2002 85-Z N 511-II "About competition carrying out on replacement of a vacant municipal post of municipal service in Republic Sakha (Yakutia)" [186], etc.

On the other hand, for example, in the Moscow area the order of carrying out of competition on replacement of a vacant post of municipal service as a rule was regulated by legal acts of local governments. So, Position about an order and conditions of carrying out of competition on replacement of a vacant post of municipal service of of Klimovsk the Moscow area has been approved by the decision of the Head of a city of Klimovsk of the Moscow area from April, 20th, 2005 N 426.

Now, when the federal legislator has directly specified, whose competence includes acceptance of such certificates, most likely, the named laws come under to cancellation as an order and conditions of carrying out of competition can be defined by exclusively representative body of local government.

The law on municipal service names positions which necessarily should find reflexion in the specified certificate of a representative body of municipal union about an order of carrying out of competition. In particular, the order of carrying out of competition should provide publication of its conditions, data on date, time and a place of its carrying out, and also the project of the employment contract not later than 20 days about day of carrying out of competition.

Earlier in various municipal unions different terms of giving of documents for participation in competition were established. For example, by the Law of the Samara area «About competition on replacement of a vacant municipal post of municipal service in the Samara area», and also the Decision of the Head of a city of Klimovsk of the Moscow area from April, 20th, 2005 N 426 "About the Position statement about an order and conditions of carrying out of competition on replacement of a vacant post of municipal service of of Klimovsk the Moscow area" it has been established, that the message on date, a place and conditions of carrying out of competition is published in mass-media not later than a month prior to the beginning of competition carrying out. In Position about competition on replacement of a vacant post of municipal service in the city of Troitsk of the Moscow area it was provided, that the statement and documents for participation in competition move not later than 15 calendar days from the date of publication of the information on competition carrying out.

Now, those normative acts which provide terms of publication of the announcement of competition more long than 20 days, cannot be applied.

Short story is the norm about publication in the announcement of carrying out of competition of the project of the employment contract with the municipal employee. Earlier similar rule was established only concerning the head of local administration by the Federal act from October, 6th, 2003 N 131-FZ "About the general principles of the organisation of local government in the Russian Federation".

Other conditions and order of carrying out of competition on replacement of a vacant post of municipal service concern to the discretion of a municipal union representative body. From our point of view, the corresponding certificate of local government should include following positions.

First, it is necessary to provide as the list of posts of municipal service which are displaced on a competitive basis and cases of out-of-competition appointment to the post. Carrying out of competitive selection concerning replacement of all posts of municipal service and in all cases is hardly expedient. For example, the citizen can be accepted on service for replacement of temporarily absent worker behind which according to the law the post of municipal service remains. On the other hand, it is necessary to provide out-of-competition appointment to the post for the purpose of realisation of the sociolabor guarantees given to workers by the labour legislation. So, for example, at dismissal of the worker on reduction of the staff or on a state of health according to medical evidence other work should be offered it. It is represented, that in this case competition to be spent should not. As an example it is possible to result the Law of the Samara area «About competition on replacement of a vacant municipal post of municipal service in the Samara area». In the given law the list of cases when appointment to the post of municipal service is carried out hors concours contains:

At the conclusion of the urgent employment contract;

At appointment of the municipal employee to other municipal post in the cases provided by a part of second article 72 (transfer according to medical evidence) and article 180 (at liquidation and reduction of the staff) the Labour code of the Russian Federation;

At appointment to a municipal post of the municipal serving (citizen) consisting in a personnel reserve, generated on a competitive basis;

At appointment of the municipal employee to a municipal post as official growth by results of the spent certification of municipal employees in the absence of the generated personnel reserve;

At appointment of municipal serving local governments of again formed municipal unions.

It is necessary to tell, that is traditional in positions about carrying out of contest for vacancy of municipal service restrictions at which presence to the citizen can be given up in participation in competition join. As an example it is possible to result the Law of the Volgograd area «About competition carrying out on replacement of a vacant municipal post of municipal service of the Volgograd area» from May, 26th N 267-ODES (in red. The law of the Volgograd area from 10.01.2006 N 1177-ODES), Position about carrying out of competitions on replacement of vacant posts of municipal service in to Dubna the Moscow area, approved by the decision of head MO "City of Dubna" of the Moscow area, etc. In our opinion, it is not meaningful as the specified restrictions are established by the federal act and will be applied irrespective of inclusion or not their inclusion in the corresponding normative act of municipal union. Additional restrictions cannot be established by the law of the subject of the Russian Federation, the municipal legal act.

The normative act of a representative body of local government by which the order of competitive selection in our opinion is regulated should contain positions about the form and a way of the notice of citizens about competition carrying out on replacement of a vacant post of municipal service.

Practically all regulatory legal acts about carrying out of contest for vacancy of municipal service establish a rule about the publication of the announcement of competition carrying out in the periodical. For example, according to item 3 of the Law of the Samara area «About competition on replacement of a vacant municipal post of municipal service in the Samara area» the local government publishes the announcement of a documents acceptance for participation in competition not less than in one periodic printing edition. According to position about an order and conditions of carrying out of competition on replacement of a vacant post of municipal service of Zarajsky area of the Moscow area, approved by the decision of head MO «Zarajsky area» of the Moscow area from August, 3rd, 2004 N 399/8 message on date, a place and conditions of carrying out of competition is published in mass-media not later than a month prior to the beginning of competition carrying out. From our point of view, those authors who specify are right, that in the similar normative act of municipal union it is necessary to define the concrete printing edition in which such publication [187] should be carried out. So, for example, according to Position about carrying out of competitions on replacement of vacant posts of municipal service in Losino-Petrovsky the announcement of competition carrying out should be placed in the newspaper "City messages". It would be besides, expedient to provide placing of the given message on an official site of municipal union.

Besides it, it is necessary to define accurately the maintenance of such announcement of competition carrying out. First of all, in it should be specified not only the post on which replacement is held competition, but also qualifying requirements with which the citizen applying for its replacement should satisfy.

The operating regulatory legal acts regulating conditions and order of carrying out of competition at receipt on municipal service, as a rule, fix the list of documents which the citizen should present for participation in competition. Thereupon we would like to notice, that the part of 3 articles 16 of the Law on municipal service provides the list of documents which the citizen represents at receipt on municipal service:

1) the statement with the request for receipt on municipal service and replacement of a post of municipal service;

2) with own hand filled and signed questionnaire under the form established by the Government of the Russian Federation;

3) the passport;

4) the work record card, except for cases when the employment contract (contract) consists for the first time;

5) the document on formation;

6) the certificate of insurance of obligatory pension insurance, except for cases when the employment contract (contract) consists for the first time;

7) the certificate on statement of the physical person on the account in the tax organ on a residence in territory of the Russian Federation;

8) documents of the military account - for persons liable for call-up and the persons who are coming under to an appeal on military service;

9) the medical institution conclusion about absence of the disease interfering receipt on municipal service;

10) data on incomes for a year previous year of receipt on municipal service, about property and obligations of property character.

The given list on express indication of the named law can be expanded exclusively by federal acts, decrees of the President of the Russian Federation and the governmental orders of the Russian Federation. Accordingly neither the legislation of subjects of the Russian Federation, nor municipal normative acts cannot provide granting any others (besides listed) documents at receipt on municipal service. It is necessary to tell, that the given norm is often broken in practice. So, for example, Position about carrying out of competitions on replacement of vacant posts of municipal service in to Dubna the Moscow area provides granting of the characteristic from last place of work. From our point of view, in the certificate of a representative body of municipal union there is no sense to reproduce the specified list of documents as last is approved by the federal act. However it is represented expedient to specify the given list of documents in the announcement of competition carrying out.

Except all aforesaid in the announcement of competition carrying out it is necessary to specify time and a documents acceptance place, and also necessary data on competition carrying out. It is expedient to specify also contact phone or the address for reception of the help information on competition carrying out.

On sense of article 17 of the Law on municipal service the municipal legal act about conditions and an order of carrying out of competition should contain positions about structure and an order of formation of the competitive commission.

By such certificate the general number of members of the competitive commission should be established. Besides, from our point of view, it is necessary to provide a circle of officials and citizens which should be without fail included in commission structure. For example, it is expedient to include in the commission of the head (or the representative authorised by it) that structural division in which the corresponding post is displaced, representatives of personnel and legal divisions of municipal body, etc. should not be forgotten also, that competition not only pursues the aim of formation of the qualified personnel structure of municipal service, but also it urged to provide the right of equal access of citizens to municipal service. Thereupon it is necessary to include the representative of trade-union body in commission structure. As to independent experts (which without fail join in structure of the competitive commission at carrying out of contest for vacancy of civil service), the legislator carries the decision of this question to the discretion of a local government representative body. As it is marked in the special literature, it is far not all municipal unions presume to invite to itself independent experts for participation in work of the competitive commission [188]. In this case this question should dare individually taking into account possibilities (financial, organizational, etc.) each concrete municipal union.

At last, position about an order of carrying out of contest for vacancy of municipal service should include the mechanism of carrying out of competition. Carrying out of competition in the form of competition of documents or competition-test is traditionally provided.

Competition of documents consists in an estimation of participants on the basis of documents on formation, on passage of the state, municipal service and other labour activity, and also on the basis of the recommendation, results of testing, other documents represented under the decision of corresponding bodies concerning municipal service.

Competition-test includes test passage on a corresponding municipal post and comes to the end with examination.

Thereupon we would like to notice, that competition-test is inherently closer to actually test which also can be established for the municipal employee, but already after its appointment to a post. It is characteristic, that concerning civil employees the legislator has refused carrying out of competitive procedure in the form of competition-test.

As a rule competition is spent to two stages. At the first stage the competitive commission on the basis of the submitted documents makes the decision on definition of structure of participants of competition. So, an obstacle for participation in competition is presence of the restrictions established by item 13 of the Law on municipal service. We will notice, that presence of the specified restrictions is the unconditional basis for refusal in the admission to participation in competition. Meanwhile, in some municipal positions about an order of carrying out of competition this rule is not observed. As an example it is possible to result Position about an order of carrying out of competition on replacement of a vacant post of municipal service in administration of of Bratsk which is developed already according to the Federal act from 02.03.2007 № 25-FZ «About municipal service in the Russian Federation» (!) [189].

By the named Position it is established, that under the decision of the competitive commission the citizen is not supposed to participation in competition in a case:

· recognitions its incapacitated decree which has become effective;

· deprivations of its right to occupy posts municipal or public service during certain term with the decree which has become effective;

· presence of the medical institution of the disease interfering execution by it of official duties confirmed with the conclusion;

· close relationship or property (parents, spouses, brothers, sisters, sons, daughters, and also brothers, sisters, parents and children of spouses) the citizen with the municipal employee if its forthcoming municipal service is connected with direct subordination or the liability for control of one of them to another;

· losses of citizenship of the Russian Federation, presence of citizenship of the foreign state, except for cases when access to municipal service is settled on a mutual basis by interstate agreements;

· refusal of representation or representation of false data on a property status and incomes;

· refusal of passage at receipt registration on municipal service of procedure of registration of the admission to the data constituting state and other secret protected by the law if execution of official duties on a municipal post for which the citizen applies, is connected with use of such data.

It is obvious, that the given position reproduces far not all restrictions established by item 13 FZ «About municipal service in the Russian Federation». For example, in this list there is no special disability of the citizen, representation of false documents or false data, etc.

In our opinion the list of restrictions at which presence to the citizen refuses in participation in competition in general is not present necessity to include in the municipal legal act regulating conditions and an order of carrying out of competition as their standard fastening is a prerogative of the federal legislator.

Also the citizen (the municipal employee) is not supposed to participation in competition in connection with its discrepancy to qualifying requirements to a vacant municipal post. Thus check of the documents presented by the applicant can be spent and at detection of false documents or falsehoods to it should be given up in the admission to participation in competition. We will notice, however, that at the given stage carrying out what or a tentative estimation konkursantov except for conformity or discrepancy to their qualifying requirements is inadmissible.

As has shown experience of reforming of the state civil service special complexities at carrying out of procedure of competitive selection are connected with working out of adequate techniques of an estimation of professional and personal qualities konkursantov. In spite of the fact that the Federal act «About the state civil service of the Russian Federation» has been accepted for a long time similar techniques just start to be developed, and, as a rule, at regional level. The problem in this case has two parties: with one procedure of an estimation should be objective, that assumes participation of the qualified experts (for example, for an estimation of personal qualities - experts in the field of psychology). On the other hand participation of such experts and their role in carrying out of competitive selection, should be provided by corresponding normative acts. Here it is necessary to notice, that according to the item 16 Laws on municipal service, at receipt on municipal service, and also at its passage are not supposed an establishment of any direct or indirect restrictions or advantages depending on a floor, races, nationalities, origins, property and official position, a residence, the relation to religion, belief, an accessory to public associations, and also from other circumstances which have been not connected with professional and business qualities of the municipal employee. The labour code which extends on municipal employees, also forbids refusal in employment for the reasons, not connected with business qualities of the person. Competition procedure urged to provide the right of equal access of citizens to municipal service. Accordingly the citizen to whom by results of competition it will be given up in reception on municipal service, can appeal against the decision of the competitive commission judicially. In this situation, it will be necessary to prove, that the decision of the competitive commission has been based on an objective and all-round estimation of professional qualities of the applicant.

Considering, that an order and conditions of carrying out of competition are established by the certificate of a representative body of local government, the statement of a similar sort of techniques of carrying out of competition most likely also should be carried out by the specified body.

Thereupon Position about an order of carrying out of competition on replacement of vacant municipal posts of municipal service of Administration of Vjazemsky city settlement of Vjazemsky area of Smolensk area is of interest, kotoorooe has been approved by the decision of Council of deputies of Vjazemsky city settlement of Vjazemsky area of Smolensk area from 16.05.2007 № 24 [190]. Besides traditional for such documents, general provisions on an order of the organisation and carrying out of competitive selection, in it criteria of an estimation of professional level of candidates contain. These criteria are presented in the tabular form.

Points

Criteria of an estimation

0 1 2 3 4 5
The work experience There is no experience Till 1 year From 1 year till 3 years From 3 till 5 years From 5 till 7 years Over 7 years
Work place for last 7 years Did not work The individual businessman The noncommercial organisation The commercial organisation State or munitsi-palnoe pre-acceptance or establishment State or munitsipaln th service

Post No Attendants The ordinary employee Deputy head of the enterprise, the chief of structural division The chief of structural division

The director

Educational institution No Not the state The state
Presence of encouragements No Is

As a whole working out of the specified criteria of an estimation and their standard fastening certainly it is necessary to regard positively. However in essence the given criteria of an estimation are represented to us rather disputable. In particular it is possible to note following lacks.

First, the specified criteria assume an estimation konkursanta exclusively on the basis of the presented documents and are accordingly applicable only to competition of documents. At use of other methods of an estimation (the abstract, testing, examination, etc.) it is necessary to develop other criteria of an estimation.

In the second, serious doubts are caused by validity of some criteria. For example, why work in the commercial organisation is estimated above than in the noncommercial? In this connection the priority before not state is given to the state educational institution?

Thirdly, it is not proved sootnosimost various indicators. For example, why the maximum quantity of points for formation presence constitutes two, and for a displaced post – five?

Besides (fourthly), there is an uncertainty of separate indicators. For example, how to understand the used term "attendants" or «the ordinary employee»? In tarifno-qualifying directories there are no such specialities.

At last (fifthly), many criteria of an estimation are represented too by the general. For example, requirements to formation are expressed exclusively in an estimation of a kind of educational institution. Meanwhile followed consider an educational level (the higher, average), and also is possible also the training form (day, evening, correspondence). The Same it is possible to tell and concerning such indicator as encouragements. For example, there is a big difference between encouragement which is applied by the employer and the state awards.

It is necessary to tell, that noted remarks in case of judicial contest of the decision of the competitive commission quite can affect the decree in favour of the person to whom it has been given up in reception on service.

Told above shows gravity and complexity of a problem on working out of techniques of carrying out of competition.

At last, it is necessary to note absolutely new and, it is necessary to tell, rather disputable position of the Law on municipal service according to which the representative of the employer (employer) concludes the employment contract and appoints to the post municipal service of one of the candidates selected by the competitive commission by results of contest for vacancy of municipal service. As it is marked in the special literature, from the maintenance of the given norm follows, that as a result of carrying out of competitive procedures the commission should define not one, and at least two winners of competition [191]. The decision of the competitive commission is traditional was definitive. Practically all normative acts fixing conditions and an order of carrying out of contest for vacancy of municipal service, included position that the decision of the competitive commission is the basis for its appointment to a vacant municipal post or refusal in such appointment. The overwhelming majority of these certificates includes mechanisms of a choice of one candidate at equality of voices of members of the commission. As a rule, solving the voice of the chairman of the commission in this case is. Now, the commission should select two (or more) candidates even at an actual inequality of their results. The similar norm (it is necessary to tell in more successful formulation) has been provided earlier only by the Federal act "About the general principles of the organisation of local government in the Russian Federation" and only concerning contest for vacancy of the head of local administration.

It is necessary to agree with those authors who believe, that the similar state of affairs substantially subektiviruet procedure of selection of shots on municipal service and unfairly expands the discretion of the representative of the employer [192]. Moreover, it can cause serious complications in practice regarding judicial contest of decisions on refusal in reception on municipal service.

It is necessary to tell, that the developed situation is not realised yet sufficiently in separate municipal unions. So, in already mentioned Position about an order of carrying out of competition on replacement of a vacant post of municipal service in administration of of Bratsk the norm according to which contains at equality of voices of members of the competitive commission solving the opinion of its chairman is. Certification of municipal employees

Unlike competition on replacement of a vacant post of municipal service certification is a compulsory procedure. According to item 18 of the Law on municipal service certification of the municipal employee is spent once in three years. It is interesting, that the named Law does not contain positions about extraordinary certification. So, for example, the Law on the state civil service establishes, that extraordinary certification of the civil employee can be passed after acceptance when due hereunder decisions:

1) about reduction of posts of civil service in the state body;

2) about change of conditions of a payment of civil employees.

Besides, under the agreement of parties the office contract taking into account results of the annual report on professional office activity of the civil employee extraordinary certification of the civil employee also can be spent. As some authors mark, on sense of this norm the initiative of its carrying out can proceed both from the civil employee, and from the representative of the employer (for example, at unsatisfactory results of professional office activity of the civil employee by results of the annual report) [193].

It is represented expedient to provide similar norms and concerning municipal employees.

Traditionally some categories of persons are released from certification. Municipal employees concern them:

1) displacing posts of municipal service less than one year;

2) 60 years which have reached age;

3) pregnant women;

4) being in maternity leave or in holiday on care of the child before achievement of age of three years by it. Certification of the specified municipal employees is possible not earlier than in one year after an exit from holiday;

5) displacing posts of municipal service on the basis of the urgent employment contract (contract).

As a whole the given norm is directed on granting of the state guarantees to the persons requiring special social protection. At the same time causes bewilderment clearing of certification of those municipal employees which displace corresponding posts on the basis of the urgent employment contract. Concerning civil employees the similar norm provides clearing of certification only the persons displacing posts of civil service of categories "heads" and "assistants (advisers)" with whom the urgent office contract is concluded.

Communication between the conclusion of the urgent employment contract and certification procedure is represented to us a little clear. Probably it is defensible, when the employment contract for the period of replacement of temporarily absent worker behind which according to the current legislation the post remains consists. However item 59 of the Labour code contains 20 (!) bases of the conclusion of the urgent employment contract. Among them, for example, the conclusion of the urgent employment contract with the persons selected on competition on replacement of corresponding post, spent to an order established by the legislation. It means, that all municipal employees which are accepted on service on competition do not pass certification. Hardly presence of similar norm promotes the purpose and problems of municipal service. It is represented, that the federal legislator should exclude item 5 from the maintenance of item 18 of the Law on municipal service.

The order of carrying out of certification according to the Law affirms the municipal legal act according to typical position about carrying out of certification of municipal employees which is accepted by the law of the subject of the Russian Federation. There is a question on distribution of powers between the subject of the Russian Federation and municipal union at acceptance of corresponding positions. It is represented, that in practice substantive provisions about an order of carrying out of certification of municipal employees will affirm typical positions of subjects of the Russian Federation. On the other hand local governments should constitute lists of the municipal employees who are coming under to certification, schedules of carrying out of certification; to create certifying commissions. Lists of the municipal employees who are coming under to certification, and schedules of carrying out of certification are constituted and affirm as an order defined by municipal legal acts. Schedules of carrying out of certification are brought to the notice of the municipal employees who are coming under to certification, in target dates.

At federal level the legislator has settled decision-making by certifying commissions and the representative of the employer by results of certification.

Regarding decisions of certifying commissions by results of certification of the municipal employee the legislator has shown it is essential other approach than in the Law on the state civil service. So concerning the civil employee by results of certification by a certifying commission one of following decisions is accepted:

1) corresponds to a displaced post of civil service;

2) corresponds to a displaced post of civil service and it is recommended to inclusion when due hereunder in a personnel reserve for replacement of a vacant post of civil service as official growth;

3) corresponds to a displaced post of civil service under condition of successful passage of professional retraining or improvement of professional skill;

4) mismatches a displaced post of civil service.

In the law on municipal service decisions which are accepted by the commission and recommendations by results of certification are separately named.

The certifying commission decision can consist only in that there corresponds the municipal employee of a displaced post of municipal service or mismatches.

Recommendations concern encouragements of separate municipal employees for the successes reached by them in work, including about their increases in a post, and in case of need to the recommendation about improvement of activity of certified municipal employees. Thereupon some authors believe, that the certifying commission can (but is not obliged) to give recommendations about encouragement, including about increase possibility in a post, or in necessary cases of the recommendation about improvement of activity of certified municipal employees (for example, about a direction on retraining) [194]. It, in turn, means, that in the absence of such recommendations the given question will dare exclusively at the discretion of the representative of the employer. Hardly from a position of the purposes and problems of municipal service as versions of service public expediently such expansion of discretionary powers of the representative of the employer.

Further the Law fixes, that by results of certification the representative of the employer (employer) makes the decision on encouragement of separate municipal employees for the successes reached by them in work or in time no more than one month from the date of certification on fall municipal serving in a post from its consent. As it is possible to notice not clear there is a question on that how much obligatory for the representative of the employer decisions and certifying commission recommendations are. From our point of view certifying commission decisions anyway are obligatory for the representative of the employer. As to recommendations semantics of this word suggests that the representative of the employer is not connected by such recommendations. However the formulation resulted above norm does not give the unequivocal answer to this question.

From our point of view, followed directly to provide what decisions the representative of the employer is obliged to accept, and what have the right to accept by results of certification. So, on sense considered above norms the representative of the employer is obliged to make the decision on fall municipal serving in a post from its consent in that case if the certifying commission makes the decision that the municipal employee mismatches a displaced post. At the same time if the certifying commission gives the recommendation about a direction of the municipal employee on improvement of professional skill the representative of the employer can make the decision on its direction on improvement of professional skill instead of fall in a post.

If the municipal employee by results of certification corresponds to a displaced post on sense of a part of 4 articles 18 of the Law on municipal service the representative of the employer should make in this case the decision on its encouragement. At presence of the corresponding recommendation of a certifying commission the representative of the employer has the right (but is not obliged) to make the decision on increase as the municipal employee.

Most likely, the similar regulation of decisions of the representative of the employer by results of certification should find expression in the typical positions approved by the law of the subject of the Russian Federation and in municipal legal acts which are accepted on the basis of the given typical positions. Now in a number of subjects of the Russian Federation typical positions about certification carrying out are already accepted. As an example it is possible to result the Law of Primorye Territory from 04.06.2007 № 84-KZ «About the statement of typical position about carrying out of certification of municipal employees» [195], the Law of the Chelyabinsk area from May, 30th, 2007 № 142-ZO «About the statement of Typical position about carrying out of certification municipal serving in the Chelyabinsk area» [196], etc. Needs to be noticed, that the specified Positions literally reproduce corresponding norms of item 18 of the Law on municipal service.

The similar state of affairs is characteristic and for municipal legal acts with which positions about certification affirm. For example, the Chelyabinsk municipal duma the Decision from 26.06.2007 № 23/23 «About the Position statement about carrying out of certification of municipal employees of a city of Chelyabinsk» [197] was accepted. The given position also does not contain explanations regarding decision-making by the representative of the employer by results of certification.

At last, we would like to pay attention to one more nestykovku of the current legislation. So, article 81 of the Labour code (item 3) which to the full extends on municipal employees, provides cancellation of the employment contract at the initiative of the employer owing to discrepancy of the worker of a post or carried out work owing to the insufficient qualification confirmed with results of certification. Meanwhile, the Law on municipal service of such possibility does not contain. As we already mentioned above, the representative of the employer in case of discrepancy of the municipal employee of a displaced post can make only the decision on its transfer (fall in a post). And only at refusal of the municipal employee of fall in a post or impossibility of transfer from its consent to other post of municipal service the representative of the employer (employer) can in time no more than one month from the date of certification dismiss it from municipal service in connection with discrepancy of a displaced post owing to the insufficient qualification confirmed with results of certification. And, after the specified term dismissal of the municipal employee or its fall in a post by results of the given certification is not supposed. Not so clearly for what by the legislator it is established presekatelnyj term concerning dismissal of the municipal employee. The labour code also fixes similar terms, however they concern imposings of summary punishments (including in the form of dismissal). As such hard line of the legislator and courts of justice is marked in the special literature is caused by necessity of protection of interests of the parties of the employment contract [198]. First, efficiency of any punishment depends on its efficiency and inevitability. Secondly, the worker should not be found long time under the threat of application to it of disciplinary sanctions. However in a considered case speech does not go about infringement of labour duties. Here the municipal employee objectively is not capable to fulfil properly official duties owing to insufficient qualification. In our opinion with reference to the given basis of dismissal the establishment similar presekatelnogo term is inappropriate. A personnel reserve of municipal service

The law on municipal service actually does not regulate questions of formation and work with a personnel reserve. However for today many municipal unions have accepted own positions about a personnel reserve of municipal service.

Earlier the order of formation of a personnel reserve and work with it was sometimes provided by laws of subjects of the Russian Federation. As an example it is possible to result the Law of the Volgograd area from April, 11th, 2001 N 530-ODES «About an order of formation of a reserve of shots of municipal employees of municipal service of the Volgograd area». Considering, that the Law on municipal service directly carries questions of creation of a personnel reserve to municipal union conducting, it is necessary to agree with those authors who believe, that public authorities of the subject of the Russian Federation have not the right to accept a similar sort normative acts [199].

Work with a personnel reserve should be based on following principles:

· equal conditions of access of citizens in a reserve of shots of municipal service according to their level of competence;

· objectivity of an estimation of business qualities, results of office activity of persons for transfer in a reserve;

· voluntariness of transfer in a reserve;

· conformity of qualification of the candidate to requirements provided in a reserve on replacement of a municipal post.

· creation of conditions for professional growth of candidates on promotion, creative execution of official duties by them;

· planned character in work with a personnel reserve, etc.

Some municipal unions by analogy to the legislation on the state civil service provide a competitive order of formation of a personnel reserve. So, for example, about a personnel reserve of municipal service in the Sampursky area, the approved Decision of regional council of People's Deputies № 12 from 25.01.2007 it is provided by Position, that the personnel reserve is formed on a competitive basis. By position about a personnel reserve on municipal service in Dalnerechensky municipal area [200] it is provided, that the personnel reserve on municipal service is formed of the municipal employees displacing posts of municipal service, and the citizens, successfully passed competition on replacement of a vacant post of municipal service for inclusion in a personnel reserve on municipal service of Dalnerechensky municipal area. Inclusion of municipal serving (citizen) in a personnel reserve on municipal service of local government for replacement of a post of municipal service is carried out by results of competition.

However it not a unique way of formation of a personnel reserve. So, the Position specified above establishes, that the decision of a certifying commission of local government of the Dalnerechensky municipal area, containing the recommendation about inclusion of municipal local government serving in a personnel reserve following the results of certification, is the basis for its inclusion when due hereunder in a personnel reserve on municipal service of Dalnerechensky municipal area. Moreover under the decision of the head of local government of Dalnerechensky municipal area the municipal employee anyway can join in a personnel reserve of local government without competition.

As a whole similar positions are provided by Order of formation of a reserve on promotion on higher municipal posts of municipal service in the Okulovsky city settlement approved by the Decision of Council of deputies of Okulovsky city settlement of the Novgorod area from September, 28th, 2006 № 48 [201]. According to this Order municipal employees can join in a personnel reserve on the basis:

· decisions of a certifying commission following the results of planned certification of municipal employees;

· by results of a promotion examination spent at the initiative of the municipal employee or the Head of Okulovsky city settlement;

· at the initiative of the Head of Okulovsky city settlement or the assistant to the Head of administration of Okulovsky city settlement by results of preparation, retraining, improvement of professional skill of the municipal employee or by the results reached in office activity.

In the municipal certificates fixing an order of formation of a personnel reserve, frequently there are positions which raise the doubts from the point of view of their conformity to the federal legislation. So, according to the Position mentioned above about a personnel reserve on municipal service in Dalnerechensky municipal area the municipal employee at its clearing of a displaced post of municipal service in connection with summary punishment joins in a personnel reserve of local government without competition for replacement of other post of municipal service with a competitive basis.

It is the obvious legal error: clearing of a displaced post as a summary punishment kind is applied only to civil employees. On municipal serving in the given relation the Labour code extends. Article 192 of the Labour code establishes the exhaustive list of summary punishments:

1) the remark;

2) reprimand;

3) dismissal on corresponding bases.

Other summary punishments to municipal employees cannot be applied.

As a rule, municipal positions about a personnel reserve contain also the bases for an exception of the citizen of a reserve. For example, by Position about a personnel reserve on municipal service in Dalnerechensky municipal area it is established, that municipal serving (citizen) is excluded from a personnel reserve in a case:

- Appointments to the post of municipal service as official growth;

- Minor offence fulfilment for which to the municipal employee summary punishment is applied;

- Repeated refusal of the offer on replacement of a vacant post of the municipal service offered it as official growth;

- The personal statement;

- The disease interfering receipt on municipal service or its passage, the medical institution confirmed with the conclusion;

As we see, from all restrictions connected with municipal service, only presence of the disease interfering receipt on municipal service or its passage, the medical institution confirmed with the conclusion here is called. However abundantly clear, that in the presence of other restrictions provided by item 13 of the Federal act about municipal service, the person cannot apply for replacement of any post of municipal service. Hence presence (occurrence) of the specified restrictions should be the basis for an exception of the citizen of a reserve.

Proceeding from all told above, it is represented to us, that to the federal legislator followed fix at least the general principles of formation of a personnel reserve and work with it as it for example, is made concerning competition on replacement of a vacant post of municipal service.

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A source: Glejkin Vyacheslav Aleksandrovich . Problem of perfection of municipal service on the basis of the Federal act «About municipal service in the Russian Federation». The dissertation on competition of a scientific degree of the master of laws. Saratov. 2007

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