Question 10724 — territorial civil service

Summary

Mr. Julien Limongi questions the Minister Delegate to the Minister of Action and Public Accounts, responsible for the public service and State reform, on a contradiction of interpretation between the law and an instruction from the General Directorate of Local Authorities (DGCL) concerning the appointment of town hall secretaries within the framework of the exceptional internal promotion system established by the law of December 30, 2023. Article L. 2122-19-1 of the general code of local authorities (CGCT) specifies that “the mayor appoints an agent to the functions of secretary general of the town hall”, thus reserving this competence to the municipal authority. Decree No. 2024-826 of July 16, 2024 completes this system by requiring four years of effective service in a municipality of less than 2,000 inhabitants, confirming the direct employment link between the mayor and the agent, in the within the framework of permanent municipal employment. However, the DGCL instruction of October 18, 2024 (PTDB2427351J) maintains that exceptional internal promotion could also benefit agents of a public intermunicipal cooperation establishment (EPCI), including an intermunicipal union, when they provide agents exercising the functions of town hall secretary general as part of a shared service. This interpretation, which has no explicit basis in the law or in parliamentary debates, raises several practical and legal inconsistencies: firstly, if an intermunicipal union created a shared position of town hall secretary, nothing would then prevent the member municipalities from creating in turn an identical permanent job, leading to duplication contrary to the spirit of the law which is based on a single appointment by the mayor. Secondly, the question of payment of the new index bonus (NBI) linked to the function of town hall secretary would be a source of insecurity, because the NBI is attached to permanent municipal employment and to a precise demographic threshold. However, an intermunicipal agent made available does not meet these criteria, especially since the NBI cannot be “shared” between several communities according to case law. Moreover, the Regulations currently do not allow this NBI to be paid to a union agent. Thirdly, the seniority bonuses provided for by the management guidelines would pose a similar problem: we do not know whether it is the president of the union, the mayors of the member municipalities or another authority who would be competent to apply them. The law does not provide for any articulation of this type, which confirms that it did not provide for the shared agents. There is no legal framework comparable to that of part-time intermunicipal civil servants which would allow the various municipal councils to reach agreement through concordant deliberations on the management of the career of the said town hall secretary. On a legal level, it should be remembered that a ministerial instruction has no normative value and cannot modify the scope of a text. legislative or regulatory. The Council of State has also confirmed that circulars and instructions can be canceled if they produce legal effects contrary to the law (CE, June 12, 2020, no. 418142; CE, February 3, 2023, no. 451052). In this context, management centers in particular are wondering how to examine internal promotion files submitted by an intermunicipal union without a solid legal basis, considering that the interpretation adopted by the DGCL exceeds the framework of the law. He therefore asks if the Government can clarify whether a president of an intermunicipal union is really competent to appoint a town hall secretary within the meaning of the exceptional internal promotion system and whether a clarification or revision of the DGCL instruction of October 18, 2024 is envisaged in order to ensure the legal security of communities and agents. concerned. Finally, he asks whether the Government intends to modify the law and the implementing decrees in order to remove any ambiguity, by restoring consistency between the legislative and regulatory framework and by guaranteeing respect for the hierarchy of standards, a fundamental principle of French public law, in particular by ensuring consistency in the modification of the texts on the NBI, the management guidelines, article L. 2122-19-1 of CGCT to include intercommunal unions, including by reference or texts establishing the skills of mixed unions (in particular).

Machine translation from French. The official text remains authoritative.

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