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

The consultation deals with the possibility of retirement due to 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 to that Delegation formulates, through a Passive Class Permit, a request for the initiation of a disability retirement file.

Once the request has been communicated to the Work Centre where the staff member has been working, the 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 procedure of retirement due to illness, when the official is in a situation of suspension of duties.

In the present case, the Career Officer, who is serving a one-year and three-month suspension from duty, applies for permanent incapacity retirement before having served the imposed sanction.

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

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”.

At the same time, article 67 of the same regulation provides, among the different types of retirement, 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 to the condition. The suspension will determine the job loss when it exceeds six months.”.

While it is true that, in truth, 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 to such a condition, since retirement, understood as the right to extinguish a relationship, either of services, or of contract, giving rise to 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 precisely retirement, once declared, extinguishes the relationship of services and entails the loss of the status of civil servant (article 63.c).

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

However, retirement would be a right whose exercise, as pointed out, 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 limitations on applying for and, if applicable, obtaining retirement, in cases where the official 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 for 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 functions is an impediment to initiating the procedure of retirement due to disability.

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

Retirement due to permanent incapacity, in the event of being 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 requirement of disciplinary responsibility of official personnel, which indicates that “the loss of the status of civil servant does not relieve the civil or criminal liability incurred for misdemeanours committed during the time in which it was held”from which it follows, on the contrary, that disciplinary responsibility will be extinguished when the status of public official is lost.

Likewise, article 19.2 of Royal Decree 33/1986, of 10 January, regulating the procedure for demanding the disciplinary responsibility of civil servants, provides that, “If, during the course of the 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 proceedings shall be declared extinguished, without prejudice to any civil or criminal liability that may be required of him and the proceedings shall be ordered to be closed, unless the party concerned requests the continuation of the proceedings. At the same time, any provisional measures taken in respect of the accused official shall be nullified.”

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

Based on the above, it is concluded that the public official who is in the administrative situation of suspension of functions can call for the initiation of a procedure of retirement 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 that entails the loss of the status of official and, with it, definitively ceases the application of the rules that governed the relationship of services, which also entails the extinction of the administrative situation in which until that moment it was found, since administrative situations are only the application of that part of the public service regulations that regulate the rights and obligations that at each moment correspond only to those who are career officials, but not to those who, for some or other reasons, lose that status. This is confirmed by the Supreme Court in its Judgment of 18 March 2008 of the Administrative Litigation Chamber:

“Retirement, as the court ruling states, is not a situation for the civil servant but the termination of the civil service relationship. In other words, something different. This is the result of the literality of Article 2 of the Situations Regulation, which does not include retirement within its list 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 status of civil servant has not been lost".

On the basis of the foregoing, it is understood that the administrative situation of permanent suspension of duties does not constitute an impediment to the initiation of the voluntary retirement procedure.

All of the foregoing is without prejudice to recalling 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, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.