Granting permission for the fulfillment of an inexcusable duty for the exercise of certain functions of Mayor.

The question raised is about permission for an inexcusable duty for an indispensable time. Specifically, if a career official of the General Administration of the State, who in turn is Mayor without partial or exclusive dedication, can avail himself of the permit “for an indispensable time for the fulfillment of an inexcusable duty of a public or personal nature” for the fulfillment of certain functions of the office of Mayor.

In the first place, the legal framework for implementation must be analysed. Article 48.j) of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees, establishes that public officials shall have the right to a permit:

“For an indispensable time for the fulfillment of an inexcusable duty of a public or personal nature and for duties related to the reconciliation of family and work life.”

In order to define this figure, it must be taken into account that the “inexcusable duty” is configured as an indeterminate legal concept that has been defined, as contemplated in the Manual of Human Resources Management Procedures, published by Resolution of December 14, 1992 of the Secretary of State for Public Administration, as that obligation incumbent on a person whose non-compliance generates a civil, criminal or administrative responsibility; and it also extends to those duties related to the reconciliation of family and working life.

On the basis of the above, the criteria maintained by the General Directorate of the Public Service on permission for the fulfilment by officials of an inexcusable duty of a public or personal nature can be systematized in the following:

a) It must be an inexcusable duty, as "an obligation incumbent on a person whose failure to comply generates a civil, criminal or administrative liability." Civic duties such as participation in electoral processes and the exercise of the right to vote can be considered included in this concept.

(b) Apart from the cases of an inexcusable duty, the granting of the permit is optional, and the Administration must weigh the circumstances of the specific case, interpreting paragraph 48 (j) of the TREBEP in an extremely restrictive manner, and the competent body for granting the permit must assess the circumstances in each case.

c) The permit must be granted for the time indispensable for the fulfillment of the inexcusable duty and cannot be granted in a general manner.

(d) With regard to the public or personal nature of the duty to be performed, it has been determined that the voluntary assumption of private activities should not take precedence over obligations of a statutory nature that oblige the official to provide the service.

e) In any case, permission for inexcusable duty and for duties related to conciliation is characterized by two basic notes: its residual character and its duration, which will be of the time indispensable for the fulfillment of the duty. For all these reasons, it must be limited to specific and unpredictable situations, which do not extend over time, and exceptional situations, which are not repeated.

Therefore, career officials of the General State Administration are entitled to a leave of absence for the indispensable time.

Based on the above, it is necessary to analyze whether the performance of the functions of mayor falls within the activities of a public duty that are caused by such permission. In this regard, article 75.6 of Law 7/1985, of 2 April, on the Basis of the Local Regime, a rule directly applicable to the official as an elective office of a Local Corporation, provides the following:

“For the purposes of the provisions of article 37.3.d) of the Workers’ Statute and article 30.2 of Law 30/1984, the time indispensable for the performance of the elective office of a local Corporation is understood to be that necessary for attendance at the sessions of the plenary of the Corporation or of the Commissions and attention to the Delegations that are part of or that the interested party performs.”

In this way, it is recognized as an inexcusable duty of a public or professional nature (article 30.2 of Law 30/1984) to attend the plenary, commissions and attention to the delegations.

In conclusion, on the basis of the regulations set forth above, attendance at plenary sessions of the Commission Corporation and the attention given to the Delegations of which the interested party is a party or which the interested party performs, is always subject to the condition of inexcusable duty and must be granted, for that purpose, the permission provided for it, with no limitation other than its concession for the indispensable time.

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.