As much as other local government executives, the executive secretary is likely to be sanctioned in certain situations.
With the promulgation of Law 2021-14 of 20 December 2021 on the Territorial Administration Code, the Executive Secretary takes his full place within the administration of local
authorities. Despite the benefits of the law, the Executive Secretary may be subject to sanctions for non-compliance.
According to the Code, the Executive Secretary, although he is primarily responsible for the administration of town halls, may be subject to several sanctions, depending on the case, in accordance with the regime of his responsibilities.
‘The Executive Secretary shall, in his capacity as an official or member of the contract staff, be punishable on the ground of acts constituting disciplinary misconduct by virtue of and in accordance with the statutory rules or contractual incentives to which he is subject. However, the Executive Secretary may be dismissed from office for gross negligence… “,
states article 143 of the Code of Territorial Administration. Speaking of gross negligence, it is any fact punishable by criminal law and constituting an attack on honour or probity, any violation of the rules of administrative ethics representing a serious breach or abuse of power, or which induces a serious malfunction in the performance or functioning of the public service. It is also any violation of the rules of administrative ethics that seriously harms the interests of the municipality.
In either of these cases, it is the mayor who finds the offence, but he alone cannot decide the fate of the executive secretary. Article 144 requires him to refer the matter to the supervisory board, which is responsible for deciding “whether it is appropriate to deliberate on the dismissal and refers the matter to the prefect for this purpose”.
Further, the same article specifies that “the dismissal of the executive secretary is decided by favorable deliberations of the prefect on the one hand and the supervisory board on the other hand, taken in joint meeting. The date and place of the meeting shall be notified to the Prefect, by the Chairman of the Supervisory Board, at least eight (08) days before it is held”. In the further proceedings, the executive secretary in question has the right to present his defences to the supervisory board before the latter decides and deliberates. But ultimately, it is up to the mayor to take the act of dismissal of the executive secretary.
And that’s not all. “The executive secretary may also be dismissed for gross negligence by decree adopted in the Council of Ministers, after a detailed report by the prefect … ” adds Article 145.
As soon as he is ousted, the Executive Secretary has only one
remedy. Not on the revocation itself but on the financial implications. According to Article 146, the decision to dismiss the Executive Secretary is subject only to an action for damages before the competent court. This appeal shall be exercised in the form and within the time limits of ordinary law. But before that, he may submit his claim for compensation to the municipal administration or the Minister of Finance, as the case may be.
Moreover, gross negligence is not the only reason for the revocation of the number 1 of the administration of the town halls. Although having a wide area of competence, the Executive Secretary has an obligation to achieve results. Otherwise, he exposes himself to a sanction from his hierarchy. “The disciplinary procedure in case of gross negligence is also applicable in case of insufficient results of the executive secretary reproached by the mayor,” states article 147 of the Code of Territorial Administration. In doing so, the new legislation that puts the executive secretary at the heart of local development requires concrete actions that really impact the daily lives of populations. This is a step forward in the decentralization process since apart from the reporting sessions, the mayors did not have an obligation of results.
As soon as the dismissal is pronounced, the Executive Secretary shall be replaced by a Director of the Executive Secretariat for a maximum period of fifteen days.
Original story on acotonou