Application of the disciplinary regime to contingent personnel.

The consultation concerns the possibility of applying the disciplinary regime envisaged for career staff to prospective staff.

The temporary staff, according to article 12 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), is the one who is appointed to carry out, on a temporary basis, tasks of “trust and special advice”.

First, it should be noted that, given the peculiar characteristics, the temporary nature of the relationship that is established, as well as the strict role that may be played by the contingent personnel — in relation to functions qualified as trust or special advice — it seems reasonable to assert that this type of personnel may not have administrative situations.

Otherwise, if it were understood that administrative situations were applicable to contingent personnel, it would be a clear breach of the legal system, since it could be assumed that having entered the Administration strictly temporarily without proving his merit and capacity —constitutionally required requirements to enter it—, the application of certain administrative situations, which would entail the reservation of a place, would allow that person to perpetuate his stay in the Administration without having a fair degree to do so.

In this sense, administrative situations would only be preachable for those personnel who have a permanent statutory relationship governed by administrative law, without applying them to contingent personnel. The TRLEBEP provides for this by regulating, in its articles 85 et seq., administrative situations for career officials only.

Secondly, with regard to whether the disciplinary regime for civil servants applies to contingent personnel, as already indicated, contingent personnel are an exception to the principles of merit and ability, and their appointment and dismissal are based solely on criteria of confidence.

This premise could lead to the conclusion that the disciplinary regime of public officials does not apply to contingent personnel, without prejudice to understanding that an action that could imply a “disciplinary infraction” of a certain entity should entail the “loss of confidence” and, therefore, the cessation of contingent personnel who have committed such infraction.

However, an examination of the current legal system reveals that both civil and labour personnel and senior officials are subject to a disciplinary regime, which leads us to believe that the conduct performed by temporary staff, who also hold the status of Public Administration personnel, even if on a temporary basis, must also be subject to disciplinary correction, without such reparation being restricted only to the possibility of “loss of confidence of the body that appointed that body”.

A contrary interpretation would lead to leaving it to the sole discretion of the body that appointed these contingent personnel to decide whether or not they have committed an offence, which would mean a parcel of impunity that cannot be admitted within the Public Administration; in such a way that all personnel in their service, including contingent personnel, must be subject to a disciplinary regime.

In this regard, and given the lack of specific disciplinary regulations dedicated to contingent personnel, it is understood that it is necessary to refer to article 12.5 of the TRLEBEP, which provides that contingent personnel “The general regime for career officials shall apply to him, as far as is appropriate to the nature of his status.”

Therefore, without prejudice to the principle of trust that must govern the relationship between contingent personnel and the governing body that appoints them, contingent personnel would also be subject to a disciplinary regime, applying the disciplinary regime envisaged for official personnel.

Thirdly, with regard to the possibility of declaring the suspension of duties, provisional and final, to contingent personnel in the course of judicial proceedings, it should be noted, as stated above, that contingent personnel do not have administrative situations, being preachable only to career staff.

In this regard, the first conclusion would be that the contingent personnel cannot be declared in the situation of suspension of duties, either provisional or firm.

However, and without prejudice to the understanding that administrative situations do not apply to these personnel, it must be borne in mind that what underlies the case raised is the question of how to act in the event that a person who has the status of temporary staff, as a result of a judicial process, cannot carry out his or her work because he or she is - it is understood - in pre-trial detention or another measure that prevents the attendance and performance of the post.

Obviously, a first solution is to assess whether such a situation entails, in itself, the loss of confidence of the body that appointed such temporary staff, and, therefore, the cessation of such status.

If such a situation does not lead to a loss of confidence, then a first solution is to assess whether the conduct imputed to him in the judicial process is, in turn, a disciplinary offence, in which case, and in accordance with the above, if it is understood that the disciplinary regime of public officials applies to the personnel concerned, then the disciplinary proceedings would be opened, the investigation of which would be suspended until it was resolved by judicial means.

Once the procedure has been initiated, the corresponding provisional measures may be adopted, which include provisional suspension, as a material measure intended to prevent the person who is engaged in a disciplinary procedure from continuing to perform his/her position, in order to avoid aggravating the conduct sought or frustrating the final outcome of the disciplinary procedure.

Therefore, and based on the arguments presented, understanding that the disciplinary procedure is applicable to contingent personnel, then the provisional measure presented could be adopted, with the same material effects as the administrative situation of suspension of functions.

On the other hand, in the event that the acts for which the said contingent personnel are being prosecuted do not constitute a disciplinary offence, it is understood that if the measures adopted by the judicial body impede the attendance and performance of the post, as has already been indicated, first of all, the competent body can understand that there has been a loss of confidence, which would entail the cessation as contingent personnel; or it can agree in any case, given the material impossibility of performing the job, that the material effects foreseen for the provisional suspension have been adopted.

In this regard, TRLEBEP provides for the application of the provisional suspension, both as a provisional measure during the conduct of disciplinary proceedings, and in the event that, in the course of a judicial proceeding, provisional detention or another measure that prevents the attendance and performance of the post is agreed upon.

Finally, and in the event that criminal liability involving a custodial sentence is confirmed or, where appropriate, a disciplinary procedure is finally carried out that ends up declaring the responsibility of the contingent personnel in question, it is understood that the declaration of the firm suspension of duties would not be appropriate in any case.

And this, firstly, because, as indicated above, administrative situations are only preachable for professional staff; and secondly, despite the fact that the disciplinary procedure provided for professional staff is applicable to prospective staff, it is obvious that, due to the nature of their status, which entails the performance of a position of trust, the various sanctions provided for in the disciplinary regime cannot be applied to these staff, but that the declaration of responsibility must entail, per se, the loss of confidence and, therefore, the loss of the status of prospective staff; with the exception, perhaps, of those misdemeanours that could be qualified as minor.

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.