Possibility of filing disciplinary files with a civil servant who is unaccounted for.

The consultation is about the possibility of filing a disciplinary file with an official who is unaccounted for.

The consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), establishes in article 98 the following:

“1. No penalty may be imposed for the commission of very serious or serious misdemeanours but through the procedure previously established.

The imposition of sanctions for minor offences will be carried out by summary procedure with a hearing of the interested party.

2. The disciplinary procedure established in the development of this Statute shall be structured in accordance with the principles of efficiency, speed and economy of procedure, with full respect for the rights and guarantees of defence of the alleged perpetrator.

In the procedure, the due separation between the instructing and the sanctioning phase will be established, being entrusted to different bodies.

3. When this is provided for in the rules governing the sanctioning procedures, provisional measures may be adopted by means of a reasoned resolution to ensure the effectiveness of the final resolution that may fall.

The provisional suspension as a precautionary measure in the processing of a disciplinary file may not exceed 6 months, except in case of paralysis of the procedure attributable to the interested party. The provisional suspension may also be agreed during the course of judicial proceedings, and shall be maintained for the period of time during which the provisional detention or other measures ordered by the judge to determine the impossibility of performing the job are extended. In this case, if the temporary suspension exceeds six months, it will not result in job losses.

The temporary suspended official shall be entitled to receive during the suspension the basic remuneration and, where appropriate, the family allowances for dependent children.

4. When the temporary suspension is finally lifted, the staff member must return the perceived amount for the duration of the suspension. If the temporary suspension does not become a definitive sanction, the Administration must restore to the official the difference between the assets actually received and those that would have been received if he had found himself with full rights.

The time of stay in provisional suspension will be of payment for the fulfillment of the firm suspension.

When the suspension is not declared final, the duration of the suspension shall be counted as active duty, and the immediate return of the official to his/her job must be agreed, with recognition of all economic and other rights that may arise from the date of suspension.”

Likewise, the TRLEBEP establishes in paragraph 2 of the fourth final provision that: “Until the Civil Service Laws are enacted and the development regulations are in force in each Public Administration, the existing regulations on the management, planning and management of human resources shall remain in force as long as they do not conflict with the provisions of this Statute.”

In accordance with the aforementioned provision, Royal Decree 33/1986 of 10 January approving the Regulations on the Disciplinary Regime of Civil Servants of the General Administration of the State and Royal Decree 365/1995 of 10 March approving the Regulations on Administrative Situations of Civil Servants of the General Administration of the State remain in force in the area of disciplinary responsibility.

Article 26 of Royal Decree 33/1986 states that “The processing, communications and notifications shall be in full compliance with the provisions of Title IV, Chapter II, first and second sections of the Administrative Procedure Law.”

In this regard, Article 25.2 of the current Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations, establishes that “In cases in which the procedure has been stopped for reasons attributable to the interested party, the calculation of the time limit for resolving and notifying the resolution will be interrupted”.

On the other hand, Article 21 of Royal Decree 365/1995 provides that:

“1. Provisional suspension may be agreed on a preventive basis during the course of judicial or disciplinary proceedings.

2. If, during the course of judicial proceedings, a staff member is provisionally detained or otherwise prevented from performing his/her job, he/she shall be provisionally suspended for the duration of such measures.

3. The provisional suspension as a preventive measure during the processing of a disciplinary file may be agreed by the authority that ordered the opening of the file, and may not exceed this suspension of six months, except in case of paralysis of the procedure attributable to the interested party.

4. The provisional suspension shall be entitled to receive 75 per cent of his salary, three-year periods and extraordinary payments, as well as the full financial benefit for dependent children, except in the event of the paralysis of the file attributable to the person concerned, which shall entail the loss of any remuneration while the paralysis is maintained. Likewise, there will not be any proof of presence in case of nonappearance in the disciplinary procedure or criminal process.

5. When the suspension is not declared final, the duration of the suspension shall be counted as active duty, and the immediate incorporation of the official into his/her job must be agreed, with recognition of the economic and other rights that come from the date of effect of the suspension.”

In accordance with the above and given the impossibility of continuing the procedure, in accordance with article 25.2 of the current Law 39/2015 the calculation of the deadline to resolve and notify the resolution proceeds.

This must take place after carrying out all those actions that are considered appropriate for the determination of the whereabouts of the official, which should even consist in requesting the cooperation of other administrative authorities, such as the National Police, the Ministry of Foreign Affairs, European Union and Cooperation, through the Spanish consulates abroad, the Civil Registry, etc., in order to determine the situation of the subject, and the whereabouts of the same.

If, as a result of such proceedings, which must be properly documented in the file, the situation of ignorance in relation to the whereabouts of the official concerned continues and notification is impossible—bearing in mind that the imposition of administrative sanctions must be verified through a procedure in which the alleged accused has the opportunity to state what is in his right and to propose the evidence that he deems appropriate and, in this regard, two essential steps of the sanctioning procedure in disciplinary matters of public officials, that is, the interruption of the list of charges, in which the accused may not only state his case, but may request the performance of the necessary articles of defense.

Likewise, in this context, it seems possible and appropriate to adopt the provisional measure provided for in Article 98.3 of the TRLEBEP, consisting of the provisional suspension, which would mean not only that the suspension, if necessary and if notification is not possible, would be extended even beyond the 6 months provided as a general rule in the event that the sanctioning procedure is halted for reasons attributable to the interested party (Articles 98.3 of the TRLEBEP and 21.4 of the Regulations on Administrative Situations) but also the loss of any remuneration.

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.