Possibility of retirement due to incapacity or voluntary retirement of a public official when he is in a situation of suspension of duties.

The consultation deals with the possibility of pensioning for incapacity or voluntary retirement of a public official when he is in a situation of suspension of duties.

According to the information provided by the Delegation of the Consulting Government, a career official assigned within the scope of that Delegation formulates, through a Passive Class Permit, a request for the initiation of a retirement file for disability.

Once the request has been communicated to the Work Centre where the staff member has been serving, the said Centre informs that the requesting staff member is in an administrative situation of suspension of duties for one year and three months, with effect from 1 January 2009 and until 31 March 2010.

On the basis of these facts, a report is requested on the appropriateness of initiating the sickness retirement procedure, when the staff member is in a situation of suspension of duties.

In the present case, the career official, who is serving a one-year and three-month suspension of duties, requests retirement on the grounds of permanent incapacity before having served the imposed penalty.

In order to be able to decide whether or not the option requested is appropriate, it is necessary, first of all, to examine the current regulation on the retirement of civil servants.

Article 14.1, paragraph n), of the consolidated text of the Law on the Basic Status of Public Employees (TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October, provides as one of the rights of civil servants the right to “Retirement according to the terms and conditions established in the applicable rules”.

In turn, Article 67 of the same regulation provides, among the various types of retirement, for retirement due to permanent disability, whether absolute or total.

On the other hand, article 90.1 of the TRLEBEP provides that: “The official declared in the situation of suspension shall be deprived during the time of stay in the same of the exercise of his functions and of all the rights inherent in the condition. The suspension will determine the loss of the job when it exceeds six months”.

While it is true that, in security, retirement is presented as one of the rights of civil servants, two extremes must be taken into account: on the one hand, the right to retirement is not a right that corresponds exclusively to civil servants or that is inherent in such a condition, since retirement, understood as the right to terminate a relationship, either of services or of contract, resulting in the receipt of the corresponding benefit, is a right that is also possessed by any other employee, whether public or private; and on the other hand, that it is precisely retirement, once declared, that extinguishes the relationship of services and entails the loss of the status of civil servant (art. 63.c).

The rights of which the official is deprived in the situation of suspension of functions are those rights that are intimately and indissolubly linked to the professional exercise, and which, either are necessary for the proper performance of his functions, or are generated precisely as a result of the exercise of his functions.

However, retirement would be a right whose exercise, as mentioned, would mean losing the status of civil servant, so that it would not detract from the effects that such an administrative situation entails.

On the other hand, TRLEBEP does not establish any restrictions on applying for and, where appropriate, obtaining retirement, in cases where the staff member is in a situation of suspension of duties, which is the case in other cases, such as the provision contained in article 89.2, third paragraph, which states that voluntary leave in the private interest may not be declared when the public official is instructed in disciplinary proceedings.

For its part, Royal Decree 172/1988, of 22 February, establishing the procedure for the retirement and granting of retirement pensions to civil servants of the State, also does not provide that the administrative situation of suspension of duties is an impediment to the initiation of the procedure for retirement due to incapacity.

According to the above, it is concluded that the suspension of functions does not impede the initiation of the disability retirement procedure.

Permanent incapacity retirement, if recognized, entails the loss of the status of official and, therefore, the impossibility of being able to continue executing the penalty of suspension of functions imposed on the official, as deduced from the provisions of article 11.2 of Royal Decree 33/1986, of 10 January, regulating the procedure for the demand of disciplinary responsibility of official personnel, which indicates that “the loss of official status does not relieve the civil or criminal responsibility incurred for misdemeanours committed during the time in which it was held”, from which it follows, to the contrary, that disciplinary responsibility will be extinguished when the status of public official is lost.

In addition, article 19.2 of Royal Decree 33/1986 of 10 January, which regulates the procedure for the disciplinary liability of civil servants, provides that: “If, during the course of the sanctioning proceedings, there is a loss of the official status of the accused, a decision shall be made in which, on the basis of the case, the sanctioning proceedings shall be declared extinguished, without prejudice to the civil or criminal responsibility that may be required of them and the proceedings shall be ordered to be closed, unless the interested party requests the continuation of the file. At the same time, any interim measures taken with respect to the accused official shall be nullified.”

This confirms the impossibility of requiring disciplinary responsibility when the status of public official is lost.

For all the above reasons, it is concluded that the public official who is in the administrative situation of suspension of functions can call for the initiation of a retirement procedure for permanent disability.

Voluntary retirement case:

The legal regime set out above is valid in the case of voluntary retirement. This type of retirement is a type of total retirement of the official, which entails the loss of the status of official and, with it, the application of the rules governing the service relationship is definitively ceased, which also entails the extinction of the administrative situation in which he was previously, since the administrative situations are nothing but the application of that part of the public service regulations that regulate the rights and obligations that at all times correspond only to those who are career officials, but not to those who, for one reason or another, lose that status. This is confirmed by the Supreme Court in its judgement of 18 March 2008 of the Administrative Litigation Chamber:

‘Retirement, as the sentence of appeal states, is not a situation of the civil servant but the termination of the civil service relationship. I mean, something different. This follows from the literality of Article 2 of the Situations Regulation, which does not include retirement within its relationship of "administrative situations". But also if you delve a little into the meaning of these "administrative situations" you discover the reason why retirement does not appear as one of them: these "administrative situations" are expressive of the different content of rights and obligations that the civil service relationship can have while it exists, that is, while the loss of the status of civil servant has not occurred".

In view of the above, it is understood that the administrative situation of firm suspension of duties does not constitute an impediment to the initiation of the voluntary retirement procedure.

All of the above is without prejudice to remember that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.