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Personal Liability in Local Government in Israel:
Unlawful Expenditure and Repay

Hazan Anna and Razin Eran
2008
Abstract of publication #1/67

The turn of events which brought about the enforcement of the personal liability principle on local authorities in Israel is characteristic of the way in which all public policy is fashioned here in the last two decades. It is by no means an orderly procedure initiated by central government, but rather a process in which NGO's and legislation have played a seminal role. The Ministry of the Interior, largely responsible for the issue, contented itself by merely reacting to external pressures. The principle of personal liability requires that public electives and civil servants responsible for unlawful expenditure will repay such expenses from their own pocket. The Municipalities' Ordinance includes clauses dating from the British Mandate period, which allow the regional head in the Ministry of the Interior or the Minister himself to make personally liable any elective or employee of the local authority for any unlawful expense from the public treasury. These clauses were almost defunct until a precedent Supreme Court intervention in 1991 followed by subsequent verdicts. All these were a result of legal petitions submitted by council members from various local authorities, demanding to make personally liable those heads of local authorities or council members who sanctioned unlawful expenditures, and in light of the Ministry of Interior's patent reluctance to enforce its authority in these cases. The court emphasized the importance it attached to the principle of personal liability and determined that the judicial process and the administrative procedure set in legislation were not mutually exclusive. Petitions by the Movement for Quality Government in Israel in 2000 prompted the Ministry of the Interior to formulate a personal liability regulation in local government and to appoint an advisory committee on the issue. This committee received further weight in 2006, when it was decided to appoint at its head a retired judge or a person qualified to serve as a district court judge. The enforcement of the regulation and the appointment of the committee created both a regular process of action with regard to unlawful expenditure as well as an accessible body to whom complaints could be addressed. The new Municipalities Bill from 2007, which proposes that the main mechanism for personal liability be firmly instituted by legislation, further underpins the committee for personal liability.
The personal liability precept is universal, but in respect to electives and senior civil servants in central government, government corporations and private companies it is the courts who settle these issues. A series of rulings does suggest that the personal liability regulation has been put to effect with regard to position holders in government and government corporations. However, the enforcement of an exclusive administrative mechanism for local authorities generated many protests with regard to damage to their reputation and performance. There are views that the enforcement of personal liability on local authorities is a precursor to its enforcement on the entire public sector, a regulative measure which does exist in the legal system. There are also views that an exclusive administrative procedure enforced on local authorities is an articulation of a singular need, and at least as far as government ministries are concerned, close regulation and almost total dependency on the ministry comptroller significantly reduce the potential for unlawful spending by position holders and electives. It is pertinent to point out that two Supreme Court rulings on personal liability in government corporations generated a privatization process shortly after.

An up-to-date analysis of the personal liability committee's work indicated that the number of people required to repay from their own pocket was small and that the sums in question were negligible in relation to the turnover of the local authority. However, the personal liability regulation has generated much reverberation and does act as a deterrent.

Addressing the personal liability issue by means of an administrative procedure rather then a legal process does carry some advantages with respect to enforcing good governance and personal repayment. If an indictment is perceived as flawed and the minister's judgment as defective, a defendant always has recourse to petitioning the judicial system.

It would appear that despite these limitations and forewarnings candidates are not discouraged from applying to positions which carry a personal liability clause. Problems, however, can arise in positions exposed to pressures of local political affiliation or even violence. Condoning the transgression is of course not the solution and it is fair to assume that the personal liability committee will take into consideration mitigating circumstances. The terminology and regulations adopted by the committee are both balanced and cautious and do take into account genuine errors of judgment or decisions made under extreme pressure. It is perhaps pertinent to consider comprehensive legislation which will address all position holders in local and central government, and thus remove any stigma likely to be created by exclusively regulating local government. There is also room to consider making the entire process a-political, namely, that the final decision will not be conceded to the Minister of the Interior, but to the committee. However, there is also an advantage to the current situation in which the minister, publicly elected, has a mitigating influence that can reduce any possible misgivings of over zealousness by the head of the committee.
Enforcing the principle of personal liability impedes local autonomy far less than do other measures taken by central government and can be regarded as a favorable step towards reconciling local-central government relations, removing any ambiguity and establishing clear ground rules for good governance.

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