Preservation of the personal degree after rehabilitation as an official.

It is consulted whether the consolidated degree prior to losing the status of civil servant, motivated by a criminal conviction of special disqualification, is to be preserved once the rehabilitation has occurred in the status of civil servant or, on the contrary, if it is to be understood that when the status of civil servant is lost, as the personal degree of the professional career is part, it would be lost at the end of that career, which occurs with the loss of the status of civil servant.

Article 63 of the consolidated text of the Law on the Basic Status of Public Employees (TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October, provides, among the causes of loss of the status of career civil servant, that “principal or accessory penalty of absolute or special disqualification for public office that has a firm character”.

For its part, Article 68(2) of the TRLEBEP regarding the possibility of rehabilitation of the status of career civil servant states:

“2. The organs of government of the Public Administrations may grant, on an exceptional basis, the rehabilitation, at the request of the interested party, of the person who has lost the status of official for having been sentenced to the main or accessory penalty of disqualification, taking into account the circumstances and entity of the crime committed. If, after the deadline for issuing the decision, it has not been expressly issued, the request shall be deemed to have been rejected.”

The rehabilitation procedure is provided for in Royal Decree 2669/1998, of 11 December, approving the procedure to be followed in the field of rehabilitation of public officials within the General Administration of the State.

Article 7, which refers to the termination of the procedure, states that in the event that the decision adopted was a sanction of the request of the person concerned for rehabilitation, the decision itself shall assign to the rehabilitated official the provisional performance of a job, task or function corresponding to his or her Corps or Scale.

For its part, article 8 establishes that in the event that there is no vacant post available at the time of the resolution, the competent body must accredit the rehabilitated official in payroll within one month, following, for the purpose of locating posts, the procedure provided for in article 50.5 of the General Regulations on the Admission of Staff to the Service of the General State Administration and on the Provision of Jobs and Professional Promotion of Civil Servants of the General State Administration, approved by Royal Decree 364/1995 of 10 March, and complementary provisions to the same, in the matter of assigning jobs to removals.

For the assignment of a job to the rehabilitated official, no mention is made of the degree he/she had recognized before the loss of his/her status. However, the rule itself refers, in the event that it is not possible to assign a post to it, to the procedure for assigning posts for staff members removed from their post obtained by competitive examination.

One of the essential elements of this procedure, contained in Article 50.5 of the General Income Regulations, is that this new post that is allocated on a provisional basis is not lower by more than two levels than that of the General Income Regulations. “personal grade” of the official in question.

Therefore, the application of this procedure must take into account the staff member ' s consolidated personal rank.

In addition, as indicated, the second paragraph of paragraph 1 of article 8 of Royal Decree 2669/1998, of 11 December, refers to the application of the procedure of article 50.5 of the General Income Regulations, without any speciality or nuance:

“(…) In the event that there is no vacant post available at the time of the resolution, the competent body must accredit the rehabilitated official in payroll within one month, following, for the purpose of locating posts, the procedure provided for in article 50.5 of the General Regulations on the Admission of Staff to the Service of the General State Administration and on the Provision of Jobs and Professional Promotion of Civil Servants of the General State Administration, approved by Royal Decree 364/1995, of 10 March, and complementary provisions to the same, in the matter of assigning jobs to the removed officials.”

In addition, paragraph 3 of the same Article 8 states:

“3. The period between the loss of the status of civil servant and the rehabilitation shall not be computable for the purpose of the recognition and calculation of a subsequent pension, whatever its cause. Nor will it be computable for the purposes of promotions, triennials and other passive rights that may correspond according to the Social Security regime that is applicable to the official.”

While the article is clear in determining that the period of time between disqualification and rehabilitation as a civil servant cannot be taken into account for any purpose, and in particular, cannot be considered for the purposes of “Promotions, triennials, and other passive rights”, which is a logical consequence for that period; what also allows us to understand the aforementioned precept is that the rights generated in the administrative career up to the moment in which the disqualification occurs are preserved.

Specifically, they would be part of the administrative career, in addition to seniority, which is reflected in triennials and passive rights, the career itself, which is observed in the positions held and, specifically, in the consolidated personal degree that this represents and that directly connects with what the article calls “ascents”.

On the other hand, it must be taken into account that, once rehabilitation is granted in the capacity of civil servant, the regulation possessed by Royal Decree 2669/1998, of 11 December, regarding the procedure for the allocation of jobs, is common and applicable to the different cases that may give rise to rehabilitation, including rehabilitation after having been sentenced to the main or accessory penalty of disqualification.

For all these reasons, it is understood that, once the rehabilitation has taken place, the civil servant recovers the career rights generated up to the moment of his disqualification, among which would be the consolidated personal degree.

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.