Possibility of ending the extension in the active service of the official who is instructed in disciplinary proceedings

The question raised concerns the possibility of ending the extension of the active service of a staff member who is instructed in disciplinary proceedings.

In the first place, the legal framework for implementation must be analysed. Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (TREBEP) regulates as an individual right of public employees to retire according to the terms and conditions established by the applicable regulations.

The pension regime in the TREBEP is included in Chapter II of Title IV, relating to the loss of the service relationship. Article 67.3 of the TREBEP establishes in relation to retirement that:

“Compulsory retirement shall be declared ex officio when the official reaches the age of sixty-five.

However, in the terms of the Civil Service Laws that are issued in the development of this Statute, it may be requested to extend the stay in active service at most until the age of seventy is reached. The competent Administration must resolve in a reasoned manner the acceptance or refusal of the prolongation.”

In view of the above, the question raised focuses on whether a Correctional Institution official who is in a situation of prolongation in active service and who is being instructed in a disciplinary file has the possibility of requesting the completion of the prolongation in active service.

In accordance with articles 8 and 9 of the TREBEP, the inherent status of civil servants is directly related to the exercise of paid functions in public administrations which, in the case of career civil servants, begins by virtue of legal appointment, is regulated by administrative law, is permanent in nature and, in any case, includes the exercise of public powers or the safeguarding of the general interests of the State and Public Administrations.

From the above it is inferred that “the rights inherent in your status“, to which Article 90 of the TREBEP refers, are directly linked to the functions exercised by them and that the deprivation of rights is understood to include the rights proper to such a condition and not to others.

In this sense, the right to retirement of Article 14.1.n of the TREBEP cannot be understood as one of the rights inherent to such a condition because such condition, as has been pointed out, is directly linked to the exercise of certain functions, while retirement is not linked to the exercise of public functions, but on the contrary, implies the definitive cessation of the exercise thereof, since the loss of the condition implies the cessation of functions in any case, in accordance with Article 63.a of the EBEP which states: “There are causes of loss of the status of career civil servant: Full retirement of the staff member.”

On the other hand, Article 67.3 of the TREBEP and Article 28.2 of Royal Legislative Decree 670/1987, establish a mandate to proceed to retirement when the requirements established in the aforementioned precepts are met, and it cannot be interpreted in this sense that the legislator has wanted to condition this mandate to circumstances other than those assessed in the aforementioned articles and that are to have reached 60 years of age, to have at least 30 years of effective services to the State.

Finally, it follows that the legislator did not want to prevent the possibility that during the processing of a disciplinary file an official could have access to retirement, since if he had wanted to, he would have stipulated a similar provision to the one established for the case of voluntary leave for private interest, for which he taxatively provides the impossibility of granting it in the event that the public official is being instructed in disciplinary file.

Therefore, and for the reasons stated, there is no legal impediment for an official who is being instructed in a disciplinary procedure to request the completion of the extension in active service.

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.