Compatibility during the firm suspension situation.

The consultation is about the application of Law 53/1984, of December 26, on Incompatibilities of Personnel in the service of Public Administrations, to an official of the City of XXX in a situation of firm suspension.

As indicated, an official of the City Council of XXX, with the rank of Legal Officer, in a situation of firm suspension of duties, has assumed the legal direction of the claimant party in a contentious-administrative proceeding brought against the aforementioned City Council.

In the information provided, in particular, in the report prepared by the General Directorate of Human Resources of the City Council of XXX that is accompanied by the consultation, the following considerations are made, in view of this situation:

- That the personnel in the service of the Public Administrations who are not in active service, but continue to maintain the special relationship of subjection, regardless of the administrative situations in which they are, must request authorization of compatibility.

- That even if the situation of firm suspension of functions is declared, it is not possible to authorize the compatibility to carry out private activities contrary to the interests of the Entity in which the employee continues to maintain his status as an official, especially given the special knowledge he may have of the matters motivated by the dependence he has had on the service in which he has carried out his activities.

In this regard, it should be noted that the regulation of the various administrative situations makes no mention of the link or not to the regime of incompatibilities provided for in Law 53/1984, of 26 December, on incompatibilities of personnel in the service of Public Administrations.

In general, not all administrative situations involve the application of Law 53/1984, of 26 December. In fact, the opinion of this Directorate-General regarding the administrative situation of voluntary leave for private interest is that it does not entail the application of this rule.

With regard to the situation of suspension of duties, article 90 of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, establishes that:

“1. The official declared in the situation of suspension shall be deprived during the time of stay in the same of the exercise of his functions and of all the rights inherent in the condition. The suspension will determine the loss of the job when it exceeds six months. (…).

3. The official declared in the situation of suspension of functions may not provide services in any Public Administration or in public bodies, agencies, or entities of public law dependent or linked to them during the time of execution of the penalty or sanction.”

Two aspects must be highlighted, the first being that, while the administrative situation lasts, the official is deprived of the exercise of his or her functions and of all the rights inherent in his or her status as an official; and the second, that, although activities cannot be carried out in the public sector, there is no prohibition on activities to be carried out in the private sector.

That is to say, the official during the administrative situation of firm suspension of functions lacks the rights inherent to it and, in addition, his own obligations as an official, a situation, in material terms, very similar to that which occurs in the voluntary surrender due to particular interest, so it is understood that, in such a situation, Law 53/1984 of 26 December on Incompatibilities of Personnel in the Service of Public Administrations would not apply, and, therefore, the corresponding compatibility for the exercise of private activities would not be required.

Another issue is the possibility of imposing sanctions by the corresponding Professional Association if the participation in certain matters could imply a breach of the deontological duties of the lawyers according to Royal Decree 135/2021, of 2 March, which approves the General Statute of the Spanish Legal Profession or, where appropriate, the opening of a disciplinary file by said Local Entity if once it reenters active service it does not abstain from those matters that it had dealt with in private activity.

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.