Possibility of incompatibility of university teaching staff in case of being hired by a Norwegian university.

The consultation deals with the possibility of incompatibility of a university teaching officer in case of being hired by a Norwegian University. In this regard, it should be noted that Act No. 53/1984 of 26 December 1984 on the incompatibility of personnel in the service of public administrations states in article 1.3 that:

“In any event, the performance of a job by personnel falling within the scope of this Act shall be incompatible with the exercise of any public or private office, profession or activity which may impede or impair the strict performance of their duties or compromise their impartiality or independence.”

In this regard, article 1.1 of Law 53/1984 provides that: “Personnel falling within the scope of this Law may not make their activities compatible with the performance, by themselves or through substitution, of a second job, position or activity in the public sector, except in the cases provided for therein.”

On the other hand, Law 53/1984 states in its art. 11.1 that:

“In accordance with the provisions of article 1.3 of this Law, personnel within the scope of this Law may not exercise, by themselves or through substitution, private activities, including those of a professional nature, either on their own account or under the dependency or in the service of entities or individuals that are directly related to those developed by the Department, Agency or Entity where it is destined.

Exemptions from this prohibition are granted to private activities which, in the exercise of a legally recognized right, are carried out for themselves by those directly concerned.”

Law 53/1984, in its article 1.3, establishes a general principle of incompatibility for the performance of a job by the personnel included in the scope of application of this Law with the exercise of any position, profession or activity, public or private, that may prevent or impair the strict performance of their duties or compromise their impartiality or independence.

In this regard, it is noted that, regardless of the different cases specifically contemplated by the aforementioned law, the rule itself enables the Administration to assess whether the performance of a second activity may prevent or impair the strict performance of duties or compromise the impartiality or independence of the personnel included in the scope of application of this law.

In this sense, within the duties of any public position, there is strict compliance with the schedules and the working day, and always depending on the service needs of the Administration.

According to the reference letter, it is observed that it would be difficult to complete the working day and hours (especially tutoring) at the University, if another activity is carried out in Norway at the same time.

In greater abundance, it is noted that the use of the expression “may prevent or impair” by the law itself, allows to introduce in its interpretation a notion of risk or probability of an injury to the correct performance of public activity that would enable the Administration to deny the requested compatibility.

Under this interpretation, and without prejudice to the above, it is noted that the simple change of residence to Norway on the part of the teacher who would be obliged as stated in the letter sent, allows us to appreciate such a component of risk or probability of impairment to the public service that would be directly linked to the remoteness of his new residence and to the dependence, almost exclusively, on a single means of transport, the air, which does not allow us to ensure the presence of the teacher in his workplace at the University for the fulfillment of his duties in the not unlikely event that said means of transport could be affected by various circumstances (technical, climatological, labor conflicts, etc. ), and it wasn’t operational.

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.