The consultation deals with the possibility of filing a disciplinary file with a staff member 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 except through the procedure previously established.

The imposition of penalties for minor misdemeanours 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 procedural economy, with full respect for the rights and guarantees of defence of the alleged offender.

The procedure shall provide for the appropriate separation between the instructing and the sanctioning phases, and shall be entrusted to different bodies.

3. When this is provided for in the rules governing sanctioning procedures, measures of a provisional nature may be adopted by means of a reasoned decision that will ensure the effectiveness of the final decision 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 temporary suspension may also be agreed during the course of a judicial procedure, and shall be maintained for the duration of the extension of provisional detention or other measures ordered by the judge to determine the impossibility of performing the job. In this case, if the temporary suspension exceeds six months, it will not result in a loss of employment.

The temporary suspended official shall be entitled to receive during the suspension the basic remuneration and, where applicable, 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 staff member the difference between the assets actually received and those which he would have had to receive if he had found himself with full rights.

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

When the suspension is not declared final, the duration of the suspension shall be calculated as active service, and it shall be agreed that the staff member shall be immediately reinstated in his/her place of work, with recognition of all economic and other rights deriving from the date of suspension.”

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

In accordance with the above-mentioned provision, Royal Decree 33/1986 of 10 January approves the Regulations on the Disciplinary Regime of Civil Servants of the General Administration of the State and Royal Decree 365/1995 of 10 March approves the Regulations on Administrative Situations of Civil Servants of the General Administration of the State.

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

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 proceedings have been brought to a halt for reasons attributable to the interested party, the calculation of the time limit for resolving and notifying the decision shall be interrupted”.

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

“1. Provisional suspension may be pre-emptively agreed during the course of judicial or disciplinary proceedings.

2. If, during the course of judicial proceedings, an official or other measures determining the impossibility of performing his/her job are provisionally detained, he/she shall be declared 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 six-month suspension, except in case of paralysis of the procedure attributable to the interested party.

4. The temporary suspension shall be entitled to receive 75 per cent of his salary, three-year periods and extraordinary payments, as well as the full amount of the financial benefit for a dependent child, 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 shall be no evidence of any of them in the event of non-appearance in disciplinary proceedings or criminal proceedings.

5. When the suspension is not declared final, the duration of the suspension shall be calculated as active service, and it shall be agreed that the staff member shall be immediately incorporated into his/her job, with recognition of the economic and other rights arising from the date of effect of the suspension.”

In accordance with the above and given the impossibility of continuing with the procedure, according to article 25.2 of the current Law 39/2015 it is appropriate to interrupt the calculation of the deadline to resolve and notify the resolution.

This must take place after carrying out all those actions deemed appropriate for the determination of the whereabouts of the official, which should even consist of requesting the cooperation of other administrative authorities, such as the National Police, the Ministry of Foreign Affairs, the 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 subject.

If, as a result of such proceedings, which must be properly documented in the file, the situation of lack of knowledge regarding the whereabouts of the official concerned continues and notification becomes impossible — bearing in mind that the imposition of administrative sanctions must be verified through a procedure in which the alleged offender has the opportunity to plead what is in his right and to propose the evidence which he deems appropriate and, in this regard, two essential procedures of the sanctioning procedure in disciplinary matters of public officials, namely, the transfer of the statement of objections, in which the accused may not only plead, but may request the practice of the provisional proceedings which appear to be necessary.

Also, 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 imply, not only that the latter, if appropriate and if notification is not possible, would be prolonged even beyond the 6 months provided for 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 above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.