Possibility to record in the CPR the appointment of an interim officer when he/she is already a career officer of the same Corps.

The consultation deals with the possibility of registering in the Central Personnel Register (CPR) the appointment of an interim official when he is already a career official of the same Corps.

Although the consultation refers to an official of a University Teaching Corps, it is understood that the argument could be extended to any other Body or Scale.

The Organic Law 2/2023, of 22 March, on the University System, provides in its article 68, dedicated to the University Teaching Bodies, the following:

“Article 68. University teaching bodies.

1. The official university teaching staff will belong to the following teaching bodies:

a) University Professors and Professors.

b) Professors and Tenured Professors of University.

The teachers belonging to these bodies will have full teaching and research capacity.

2. The official teaching staff shall be governed by the bases established in this organic law and in its development regulations, by the provisions that, by virtue of their competences, the Autonomous Communities dictate, by the general public service legislation applicable to them and by the Statutes of their university.”

In accordance with the legislation of Universities, the public teaching function is constituted through Bodies of national eremu, without prejudice to the competences attributed to the Universities for the convocation and development of the access contests, as well as for the appointment as career officials of the University Teaching Corps of those candidates who have obtained a place after the completion of the indicated contest.

Article 5 of Royal Decree 898/1985, of 30 April, on the regime of university teachers, concerning the administrative situations of public officials of university teaching bodies, states that:

“1. Officials of university teaching bodies shall be on active duty when, by virtue of appointment, they occupy a position on the staff of the University.

2. The other administrative situations provided for in the general legislation on civil servants shall also apply equally to university teachers. (…)”.

When consulted, the Central Personnel Register (RCP) states that the teacher career officer referred to is in the administrative situation of leave to provide services in the public sector.

In addition, the SPC indicates that the above-mentioned official held a position as a career officer of the Corps of Tenured Professors at a University other than the University where he now intends to be appointed as an interim officer of the Corps of Tenured Professors.

The declaration of the administrative situation of voluntary surplus for the provision of services in the public sector, or the “surplus due to incompatibility”, as described in other regulations, proceeds when services are provided with the status of official or with the status of working personnel in public sector bodies or entities and it is not appropriate for them to remain in situations of active service or special services.

Therefore, it must be concluded that, if the official under consultation is in the administrative situation of surplus for the provision of services in the public sector, and understanding that the situation stated is correct, it is because he is performing a post in the Public Administration as an official or as a staff member.

Based on the fact that the surplus official in the Teaching University Corps is currently serving as civil servants of another body or scale or as labour staff in the Public Administration, it is appropriate to analyze whether it is possible to appoint him as an interim official of the Corps to which he already belongs as a career official – even if he is in the same in the situation of voluntary surplus for the provision of services in the public sector.

To do this, first of all, we must refer to Law 53/1984, of 26 December, on Incompatibilities of Personnel in the Service of Public Administrations, which regulates the cases of compatibility between two jobs in the public sector.

Article 3 of Act No. 53/1984 of 26 December provides that it may be performed only “a second job or activity in the public sector in the cases provided for therein for the teaching and health functions, in the cases referred to in Articles 5 and 6 and in which, for reasons of public interest, they are determined by the Council of Ministers, by Royal Decree, or body of Government of the Autonomous Community, within the scope of their respective competences; in the latter case the activity may only be provided on a working basis, part-time and for a certain duration, under the conditions established by Labour Law.”

Specifically, with regard to compatibility with university education, article 4.2 of Act 53/1984 of 26 December states that:

“2. University professors and tenured professors and professors of university schools may be authorized, in compliance with the other requirements of this Law, compatibility for the performance of a second job in the public health sector or exclusively research in public research centers, within the area of specialization of their university department and provided that the two positions are legally authorized as part time.

Conversely, for those who hold one of the positions defined as second in the previous paragraph, compatibility may be authorized to hold one of the university teaching positions referred to. (…)”

In the present case, it is not known which job the official in question has been performing, under which he has been granted leave to perform services in the public sector.

In any case, in order for it to be compatible with the post of professor or professor holding university, in accordance with the provisions of article 4.2 of Law 53/1984, of 26 December, it would have to be a job in the public health sector, or of a research nature exclusively in public research centers, within the area of specialization of its university department and that, by regulation, the two posts were authorized as part-time service.

In the case presented, according to the information provided in the CPR, the official in question is a Doctor of Medicine and Surgery.

Therefore, starting from the hypothesis that he has been performing a job included in the scope of article 4.2 of Law 53/1984, of 26 December – public health or research – it is necessary to examine whether it is possible to appoint as an interim official of the Corps of Professors Holding University someone who is already a career official of the same Corps and who is in the administrative situation of voluntary leave for the provision of services in the public sector.

In this regard, it should be recalled that the fact that makes it possible to declare the administrative situation of voluntary surplus for the provision of services in the public sector – also referred to by other legislations, surplus for incompatibility – consists in the fact that services are no longer provided in a certain body or scale as a result of providing services in another body or scale, or of performing a position as labour staff in the Public Administration.

On the basis of this, it is understood that it is not possible to appoint an interim official in a given body or scale to someone who already holds the status of a career official in that same body or scale; since if this were to happen, it would mean that this person again provides services in the body to which he belongs and, therefore, there would be an inconsistency that cannot be saved, consisting of the fact that, while the official is in the administrative situation of voluntary surplus for the provision of services in the public sector in that body, in turn, and by virtue of another title, again provides services in that same body. This is one Contradictio in Terminis.

In addition, if such a situation were allowed, an abuse of rights would be protected, which would consist of using the route of appointment as an interim official of the same body to change locations or posts, thus circumventing the procedures for the provision of legally provided jobs.

Finally, and as already indicated, it should not be forgotten that university teaching officers are integrated into bodies at national level, in the present case, the Corps of University Tenured Professors, without prejudice to the University in which each official belonging to this Corps provides services.

For all the foregoing reasons, it is concluded that it is not possible to appoint an interim officer of the Corps of Professors Holding University a person who already holds the status of a career officer of the same Corps, regardless of whether he is a career officer of the said Corps in the administrative situation of surplus for the provision of services in the public sector.

It is also understood that the argument could be extended to any other Corps or Scale, so that an interim official of a particular Corps or Scale cannot be named to a person who already holds the status of a career official of that same Corps or Scale.

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.