Origin of special services when an official is appointed Subdelegate of the Government or Island Director.

The question raised concerns the administrative situation in which those officials who were appointed Sub-Delegates of the Government or Island Directors of the General Administration of the State would remain, and, on the other hand, in the case of moving to the situation of special services, what effects the move to that situation has in relation to the position to be occupied.

In advance, it is essential to specify that, if it is an official of other Public Administrations, the implementing regulations may differ.

With regard to the implementing regulations, article 87 of the consolidated text of the Law on the Basic Status of Public Employees (TREBEP), approved by Royal Legislative Decree 5/2015, of 30 October, regulates the situation of special services and provides, in its fourth paragraph, that “the declaration of this situation shall proceed in any case, in the cases determined in this Statute and in the Public Service Laws that are issued in its development.”

For its part, the fourth, second, final Provision of the TRLEBEP provides that, until the Civil Service Laws and the development regulations are enacted, the current rules on the management, planning and management of human resources shall remain in force in each Public Administration as long as they do not conflict with the provisions of this Statute.

In the case of the General Administration of the State, there has been no legislative development, so that the provisions of Law 30/1984 of 2 August on Measures for the Reform of the Public Service and the Regulations on Administrative Situations, approved by Royal Decree 365/1995 of 10 March, which remain in force in what does not contravene the provisions of the TRLEBEP, as established by the Instructions of 5 June 2007 of the General Secretariat of the Public Administration, for the application of the Basic Statute of the Public Administration and its Employees.

Thus, article 29, paragraph 2, letter n), of Law 30/1984, of 2 August, provides that public officials shall move to the situation of special services “when they are appointed Subdelegates of the Government in the Provinces or Island Directors of the General Administration of the State and do not choose to remain in the situation of active service in their Administration of origin”, a power of option that was introduced through Law 24/2001, of 27 December, on Fiscal, Administrative and Social Order Measures.

Therefore, it is understood that the career officials of the General Administration of the State who are appointed Subdelegates of the Government or Island Directors of the General Administration of the State, will be declared in the situation of special services unless they choose to remain in active service, while the provisions of article 29.2.n) of Law 30/1984, of 2 August, do not contradict the provisions of the TRLEBEP and therefore remain fully applicable in the field of AGE.

On the other hand, it should be recalled that, as stipulated in article 87.3 of the TRLEBEP, career civil servants who move to that situation shall have the right to re-enter active service in the same locality, under the conditions and with the remuneration corresponding to the category, level or step of the consolidated career, in accordance with the system of the administrative career in force in the Administration to which they belong, without provision being made in that provision for the right to reserve the same position that they were performing before moving to that administrative situation.

Furthermore, although article 29 of Act No. 30/1984 of 2 August 1984 provided that officials in special service situations would be entitled to the reserve of their place and destination, the regulatory development of that provision, carried out through article 7 of the Regulations on Administrative Situations, has been to give effect to that legal provision by providing that such reserve is understood to refer to a position in the same locality, of equal level and similar remuneration, a regulatory provision that, as has been stated, would continue in force.

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.