High office, for the purposes of the application of article 87.3 of the TRLEBEP, of higher and managerial bodies of the municipalities. Special reference to the City of Madrid.

The issue raised concerns the consideration of high office for the purposes of the application of article 87.3 of the Consolidated Text of the Law on the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP, from now on) to the superior and executive bodies of the municipalities, in particular, in the case of the Madrid City Council.

To this end, it is necessary to analyze the provisions of TRLEBEP, Law 3/2015, of March 30, regulating the exercise of the high office of the General Administration of the State (Law 3/2015), Law 7/1985, of April 2, Regulating the Bases of the Local Regime (LBRL, from now on), Law 22/2006, of July 4, of Capitality and Special Regime of Madrid (Law 22/2006, from now on), Law 40/2015, of October 1, of Legal Regime of the Public Sector (LRSP).

In particular, to resolve the consultation formulated, reference should be made to the regulations applicable to the situation of special services and the recognition of the situation of special services by the performance of responsibilities of superior bodies and municipal directors, to end by concretizing the regulation applicable to the Madrid City Council.

First.- Regulations applicable to the situation of special services.

Article 87.1.f) TRLEBEP establishes, as a basic rule and therefore directly applicable to the Public Administrations identified in art. 2 of the Act, that career officials shall be declared in special service status “when they hold paid and full-time elective positions in the Assemblies of the Cities of Ceuta and Melilla and in the Local Entities, when responsibilities of higher bodies and municipal directors are fulfilled and when responsibilities of members of local bodies are fulfilled for the knowledge and resolution of economic-administrative claims.”

This assumption is a novelty that has already been introduced by Law 7/2007 regarding those mentioned in article 29.2 of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service, a precept that was expressly repealed by that rule.

Article 87 of the TRLEBEP is a precept of direct effectiveness in the field of Public Administrations identified in article 2, from the moment when the Law came into force, in accordance with the provisions of paragraph 1 of the Fourth Final Provision of the Law.

In the field of the General State Administration, the Instruction of the State Secretariat for the Public Administration for the application of the Basic Statute of the Public Employee, of June 5, 2007 (B.O.E. 26 June), specified in what terms the regulation of administrative situations contained in the Regulation on Administrative Situations of Civil Servants of the General State Administration (Royal Decree 365/1995 of 10 March) remains in force, understood as modified by the new cases of special services included in Article 87 of the EBEP, including the addition of Article 87(f).

For its part, the art. 87.3 TRLEBEP establishes the following guarantees:

“3. Those who are in a situation of special services will have the right, at least, to re-enter the active service in the same locality, under the conditions and with the remuneration corresponding to the category, level or step of the consolidated career, according to the system of administrative career in the Public Administration to which they belong. They will also have the rights that each Public Administration can establish depending on the position that has caused the transition to the aforementioned situation. In this regard, the Public Administrations shall ensure that there is no impairment of the right to a professional career of public officials who have been appointed as senior officials, members of the judiciary or other constitutional or statutory bodies or who have been elected mayors, remunerated and full-time, presidents of deputies or island councils, Deputies or Senators of the General Courts and members of the legislative assemblies of the autonomous communities. At a minimum, these officials shall receive the same treatment in the consolidation of the degree and set of supplements as that established for those who have been Directors-General and other senior positions of the corresponding Public Administration.”

Second.- Recognition of the situation of special services for the performance of responsibilities of superior bodies and municipal directors.

As the Constitutional Court has already pointed out, among others in Judgment 99/1987 of 11 July, the administrative situation of special services constitutes a situation of privilege and, like any privilege, must always merit a restrictive interpretation.

In the same vein, the Commission for the study and preparation of the Basic Statute for Public Employees in its report of 25 April 2005 considered that the situation of special services should remain exceptional, since it is still a privileged situation, as jurisprudence highlights, and that the benefits derived from it should be restricted to elective positions, to those of a political nature or trust in the strict sense.

Therefore, in order to determine whether or not so-called superior and managerial bodies of the municipalities and, in particular, of the Madrid City Council, have a place within the scope of application of article 87.3 of the TRLEBEP, the provisions of the LBRL must be applied.

In this regard, it should be noted that the LBRL contemplates, for these purposes, two different regimes, distinguishing between municipalities that could be called “ordinary”, and municipalities with a large population.

The LBRL refers to the municipal organization in Chapter II of Title II (arts. 19 et seq.), establishing general rules and a basic municipal organization. Pointing to the art. 20 in its paragraphs 2 and 3 the following:

“2. The laws of the autonomous communities on the local regime may establish a municipal organization complementary to that foreseen in the previous number.

3. The municipalities themselves, in the organic regulations, may establish and regulate other complementary bodies, in accordance with the provisions of this article and the laws of the autonomous communities to which the previous number refers.”

This general regulation does not refer to superior and managerial bodies. Therefore, in order to analyze how all the bodies (superior and managerial, where appropriate) are configured in each municipality, it will be necessary to comply with the corresponding autonomous regulation in the field of local administration and the corresponding organic regulation. To determine, therefore, the applicability to the same of the arts. 87.1.f) and 87.3 TRLEBEP.

Only in the case of municipalities with a large population does the LBRL expressly refer to superior and managerial bodies.

In this sense, Title X of Law 7/1985, of April 2, establishes an organizational structure for these municipalities similar to that existing in the Autonomous Communities or the General Administration of the State.

Thus, Article 130 of the LBRL states the following:

1. The following are superior bodies and municipal directors:

A) Superior organs:

a) The Mayor.

(b) Members of the Local Government Board.

B) Governing bodies:

a) The general coordinators of each area or department.

b) The directors-general or similar bodies that complete the administrative organization within each of the large areas or departments.

(c) The head of the body supporting the Local Government Board and its councillor/secretary.

d) The holder of legal advice.

(e) The Secretary-General of the Plenary.

(f) The general municipal comptroller.

g) Where applicable, the holder of the tax management body.

2. They shall also be regarded as the governing bodies, the heads of the highest management bodies of the autonomous bodies and the local public business bodies, in accordance with the provisions of Article 85 bis, paragraph (b).

Specifically, for the appointment of Directors-General, Article 130.3 LBRL provides that “The appointment of general coordinators and directors-general, in accordance with criteria of professional competence and experience, shall be made between career officials of the State, of the Autonomous Communities, of the Local Entities or with national qualification who belong to bodies or scales classified in subgroup A1, unless the Municipal Organic Regulations allow that, in view of the specific characteristics of the functions of such governing bodies, their holder does not meet such status as an official”, as provided for in Article 66.2 LRJSP for the appointment of Director-General.

But, as can be seen, this regulation does not expressly qualify any of its bodies, whether superior or managerial, as a high office.

So, both in the case of municipalities of “ordinary” municipalities (in which the LBRL does not refer to superior or managerial bodies) and large population (in which the LBRL that does mention such bodies, but without making a qualification as a high office of them), it will be necessary to be in the current regulation to determine the applicability of the aforementioned provisions of the TRLEBEP. In particular, both the regional regulations of local administration and the corresponding organic regulations.

Third.- Special reference to the City of Madrid

a) Law 22/2006

In the case of the City of Madrid, in addition to being a municipality with a large population, given its status as the capital of the State, and the peculiarities that derive from it, it is necessary to take into account Law 22/2006, which regulates the special regime of the City of Madrid as well as the peculiarities of the same as the capital of the State and headquarters of the general institutions, without prejudice to the competences of the Community of Madrid, the remaining local legislation being applicable, only in those matters not regulated in the aforementioned law.

Law 22/2006 distinguishes between municipal government bodies – deliberative, such as the Plenum; or political and administrative executives, such as the Mayor, the Board of Government, the Deputy Mayor, the Councilors with government responsibilities, the non-elected members of the Board of Government and those determined in the corresponding organic regulation – and governing bodies belonging to the municipal administration.

Thus, article 21 of Law 22/2006, of July 4, dedicated to management personnel, establishes the following:

“1. The Governing Board, within the framework of what is provided in the corresponding Organic Regulation, may create governing bodies within the scope of the Administration of the Madrid City Council.

2. The heads of the governing bodies shall be appointed on the basis of criteria of professional competence and experience, without prejudice to the provisions of this Law and in accordance with what is determined, where appropriate, in the corresponding Organic Regulations.

3. It is up to the governing bodies to develop and implement the action plans and decisions adopted by the competent executive bodies of political and administrative direction. In particular, they are responsible for promoting the implementation of the decisions taken by the political bodies, planning and coordinating activities, evaluating and proposing innovation and improvement in relation to the services and activities within their area of competence, without prejudice to the specific functions delegated to them or attributed to them as their own.

4. The holders of the governing bodies are subject to the incompatibilities regime established in Law 53/1984, of December 26, on Incompatibilities of Personnel in the Service of Public Administrations, and in other state or regional regulations that may be applicable.”

With regard to the latter paragraph, concerning the regime of incompatibilities, the provisions of the Fifteenth Additional Provision of the LBRL must be taken into account, which provides as follows:

“1. The holders of the governing bodies are subject to the incompatibilities regime established in Law 53/1984, of December 26, on Incompatibilities of Personnel in the Service of Public Administrations, and in other state or regional regulations that may be applicable.

However, the limitations on the exercise of private activities established in article 15 of Law 3/2015, of March 30, regulating the exercise of the high office of the General Administration of the State, in the terms established by article 75.8 of this Law, shall apply to them.

To this end, members of bodies exercising management or execution functions of a superior nature shall be considered as managers, in accordance with the general guidelines established by the governing body of the Corporation, making the appropriate decisions and having for this purpose a margin of autonomy, within these general guidelines.

2. The regime provided for in Article 75.7 of this Law shall apply to local managers and officials of Local Corporations with State authorization who, in accordance with the provisions of Article 5.2 of the second additional provision of Law 7/2007, of April 12, of the Basic Statute of the Public Employee, perform in the local entities positions that have been provided by means of a free designation in view of the managerial nature of their functions or the special responsibility they assume..”

Article 21(4) of Law 22/2006 is to be understood as modified by the provisions of Additional Provision Fifteenth of Law 7/1985, of 2 April, because, although the Capital Law is applied in the extremes regulated by it in preference to Law 7/1985, of 2 April, it has to be followed in the application and interpretation of the rules, as stipulated in article 3 of the Civil Code “The norms shall be interpreted in the proper sense of their words, in relation to the context, the historical and legislative background, and the social reality of the time in which they are to be applied, fundamentally attending to the spirit and purpose of those”. In this case, with the introduction of this additional Provision in the LBRL, the purpose of the legislator is none other than to increase the controls on this type of personnel, so it cannot be understood that it is not applicable also to the directors-general of the Madrid City Council by the criterion of special law.

(a) RO 2004

On the other hand, Title X of the LBRL calls for the municipal organic norms through which the plenary will be able to express the municipal will with respect to the particular model of organization of its administration, thus gaining strength one of the elements that make up the essential content of local autonomy: the power of self-organization.

In the case of the Madrid City Council, it must comply with the RO 2004, which indicates the following in its explanatory statement:

“(…) together with the higher organs of government, the Regulation defines the organizational model of the Municipal Administration, which is based on the consolidated departmental model both in the State and in the Autonomous Communities.

In fact, the organizational model by which it is chosen uses as essential elements of the administrative structure the departments or areas that, as specialized bodies in the subjects they manage, combine competences of a homogeneous nature, and thus become the essential levels of the municipal organization referred to in article 123.1 (c) of the LRBRL. These departments or areas are in turn structured in governing bodies, coordinators and directorates-general, and in other administrative bodies and units ordered in accordance with the principle of hierarchy.”

Likewise, Article 7 of the aforementioned Organic Regulation, provides the following in its first four paragraphs:

“1. According to the functions performed by the bodies of the Madrid City Council, they are classified into superior bodies and governing bodies.

2. The highest governing and administrative bodies of the Madrid City Council are the Mayor and the members of the Local Government Board.

For the purposes of these Rules, they are also considered to be superior bodies, the Local Government Board and the other councillors with governmental responsibilities, as well as at the district level, their councillors/presidents.

3. The governing bodies are the general coordinators, the directors-general or similar bodies, the holder of the Legal Advice, the holder of the body supporting the Local Government Board, the municipal comptroller general and the holder of the tax management body.

At the district level, district coordinators are the governing bodies.

In the autonomous bodies and in the public corporate bodies are management bodies.

4. The higher bodies are responsible for political direction, planning and coordination, and the governing bodies for the execution of the decisions adopted by them, without prejudice to the powers delegated to them and to the provisions of this Regulation for Coordinating Councillors and Councillors.”

For its part, the specific regulation that establishes the superior and governing bodies specifically in RO 2004 is as follows:

The Mayor, regulated in his article 9, “It has the maximum representation of the municipality” and “(…) directs the policy, the government and the Municipal Administration, without prejudice to the collegiate action of collaboration in the political direction that, through the exercise of executive and administrative functions, the Local Government Board performs”.

The Local Government Board, according to article 16 of the Organic Regulations, “is the body that, under the presidency of the Mayor, collaborates in a collegial way in the function of political direction that corresponds to him and exercises the executive and administrative functions attributed to him by the Laws.”

Articles 35 to 38 of the Rules of Procedure refer, respectively, to councillors with governmental responsibilities, to councillors, to councillors for coordination and to councillors for delegation.

Councillors of Government and councillors/delegates of Government are the superior heads of the corresponding Area of Government, constitute the essential levels of the municipal organization and comprise, each of them, one or several functionally homogeneous sectors of the municipal administrative activity.

All of them, subject to the provisions contained in chapter V of title III of RO 2004 regarding the political responsibility of the Governing Board and its members.

Likewise, the Councilors of Coordination and the councilors/delegates are the direct heads of their Area, without prejudice to the superior direction that corresponds to the head of the Area of Government on which they depend.

For their part, the governing bodies depend on the councillors with government responsibilities and councillors/government delegates, and are hierarchically ordered as follows: general coordinator, director-general or assimilated body.

According to article 49 of RO 2004, the general coordinators, technical secretaries-general and directors-general shall be appointed and dismissed by the Governing Board.

E indicates that article that “his appointment must be made, in accordance with the provisions of article 130.3 of the Law Regulating the Bases of the Local Regime, between career officials of the State, of the Autonomous Communities, of the Local Entities or officials of Local Administration with national qualification, who are required for their admission the title of doctor, graduate, engineer, architect or equivalent, unless the decree of structure of the corresponding Area provides that, in view of the specific characteristics of the managerial position, its holder does not meet the status of official. In the latter case, appointments must be made in a motivated manner and in accordance with criteria of professional competence and experience in the performance of positions of responsibility in public or private management.”.

It should be noted, on the other hand, that the Subdirectorates-General do not have the status of governing bodies. So the art. 8.1 RO 2004 begins by talking about “lthe governing bodies and the Directorates-General …” and in the art. 41.2 It is noted that “The Technical Secretariats and Directorates-General or similar bodies may in turn be organized into Subdirectorates-General, Services, Departments, Sections, and other lower or similar units. These administrative units will also be able to rely directly on the general coordinators.”

According to the examination carried out of the Organic Regulations of the Madrid City Council, the organic model established by the Madrid City Council is, roughly, a reproduction of the model of the General Administration of the State, established in the LRJSP. Although the bodies qualified as Subdirectorates-General in their RO 2004 do not have the status of governing bodies, in the State the Subdirectorates-General, although they are governing bodies, do not have the status of high office (art. 55.6 LRJSP), nor, as a couple, give rise to the declaration of the owner in special service.

In addition, its governing bodies, similar to what happens in the General State Administration, must be appointed among officials of the current Subgroup A1, unless the Decree on the structure of the corresponding area provides that the holder does not meet such a requirement, which can also happen in the case of the Directorates-General in the General State Administration (in the terms provided in the LRJSP) and are appointed by the Governing Board (which is equivalent to the Council of Ministers in the field of the AGE).

(a) Conclusion:

The regulation applicable to the Madrid City Council, in particular, its Organic Regulations, does not expressly qualify any of its bodies, whether superior or managerial; however, in order to understand whether or not they are included in the high office provided for in Article 87.3 of the TRLEBEP, these bodies must be taken into account and, by way of synthesis, they would be the following:

- The City of Madrid has the character of a municipality with a large population, provided for in Title X of Law 7/1985, of 2 April, Regulating the Bases of Local Regime, with the specific specialties attributed to it by Law 22/2006, of 4 July, of Capital and Special Regime of Madrid.

- The limitations on the exercise of private activities established in article 15 of Law 3/2015 apply to the holders of local governing bodies.

- The organic model existing in the City of Madrid, resembles the model of the General Administration of the State foreseen in the LRJSP.

- The requirements required of its governing bodies, as well as their appointment and termination, are equivalent to those in the General Administration of the State.

- The Deputy General Directors in the Madrid City Council are not governing bodies.

According to the above, it is concluded that the superior and managerial organs of the Madrid City Council would be assimilable to the status of high office in the General Administration of the State for the purposes of article 87.3 of the TRLEBEP.

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.