Post to be assigned to an official of another Administration in case of termination in a position of free appointment

Consultations are held on how to proceed in the event of the termination of posts occupied under the procedure of free appointment when the official who performs it belongs to another Public Administration, and there has been no legislation to implement the Basic Status of Public Employees Act.

Article 84.3 of the Consolidated Text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), has the same verbatim diction that already contained the repealed Law 7/2007, of 12 April.

In short, the precept establishes with respect to the posts that are occupied through the procedure of free appointment that, in the event of termination, if the official who performed it belongs to another Public Administration, he must re-enter it, unless he obtains another post in the Administration in which he has just ceased.

This provision, included in the then article 84.3 of Law 7/2007, of April 12, by Law 15/2014, of September 16, on the rationalization of the Public Sector and other administrative reform measures, although it meant a material change of the content of the precept, did not entail a modification, in turn, of the entry into force regime that originally owned said precept, by virtue of which the provisions contained in said article require a development law so that they can be applicable.

For its part, the TRLEBEP has not only not altered the regime of entry into force of this provision, but its eighth transitional provision confirms the opinion indicated, that is, the content of the provisions of Article 84.3 will only be applicable when the corresponding legislative development has taken place.

Therefore, in application of the provisions of the fourth final provision, paragraph 2, in connection with the eighth transitional provision, both of the TRLEBEP, it is understood that in the field of those Public Administrations for which the aforementioned legislative development has not taken place, the same rules that have been applied so far, that is, the corresponding applicable development legislation and, failing that, State legislation, should continue to be used for the cases in which there is a cessation in a position of free appointment of an official belonging to another Public Administration.

Without prejudice to the provisions of article 84.3 of TRLEBEP, and to the cases in which, by virtue of the existence of development legislation, the provisions contained therein may be applied, in general, the opinion of this management centre has been that when the cessation occurs in a position of free appointment, the retired career official must be seconded, by that same Administration, to another job, applying for this purpose the same rules established in its regulations for officials belonging to Bodies or Scales belonging to the corresponding Administration.

And this, for two reasons.

Firstly, because of the inter-administrative mobility that had been generated since Law 30/1984, of 2 August, and which has definitely been enshrined in Law 7/2007, of 12 April; both individual mobility, through the corresponding procedures for the provision of jobs in which civil servants from other Public Administrations could participate; and mobility covered by an Agreement signed by the Administrations for this purpose.

And secondly, and derived from this mobility, by virtue of the principle of “equal treatment”, which would be enshrined in article 88 of the TRLEBEP, which regulates the administrative situation of services in other Public Administrations, providing in the same that “career civil servants in the situation of service in other Public Administrations who are in such a situation because they have obtained a job through the provision systems provided for in this Statute, are governed by the legislation of the Administration in which they are effectively assigned”.

In this regard, the application of the provisions of article 88, in conjunction with article 80.4, both of TRLEBEP, would make it possible to conclude that in the event of termination of a post of free appointment, in general, it must be the Administration in which he/she has been providing services that assigns him/her to a job in accordance with the rules that his/her own regulations provide; all this, without prejudice to the fact that the official requested re-entry into his/her Administration of origin.

This opinion is confirmed by, among others, the judgment handed down on 29 October 2014 by the Administrative Litigation Division of the High Court of Justice of Castilla y León, which reads as follows:

“ (…) But the respondent administration forgets that the cessation agreed in the regional administration of destination does not mean that the official ceases to be in the service of that regional administration, since the cessation does not necessarily entail re-entry to the administration of origin, so it must be understood that it retains the aforementioned guarantee, having to be at the disposal of the Secretary General of the respective Council, which will arrange its provisional secondment (…).

(…) Therefore, the situation is one of active service in the Administration of the Autonomous Community, which does not lose until it requests its re-entry to the so-called administration of origin, not even because of the cessation of its job.”

To all of the above, it should be added that even in the cases in which Article 84.3 of the TRLEBEP is applicable because there is development legislation, the will of the legislator embodied in the precept must be taken into account, which provides, first of all, for secondment to the Administration itself, and only in the absence of such secondment, then it is appropriate that it be re-admitted by the Administration of origin when so requested by the official.

Finally, it should be recalled that the provisions contained in the Ninth Transitional Provision of Law 15/2014, of 16 September, remain fully 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.