The consultation concerns the possibility of applying the disciplinary regime provided for career civil servants to contingent personnel.

The contingent personnel, according to article 12 of the consolidated text of the Law of the Basic Status of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), is the one who is appointed for the performance, on a temporary basis, of tasks of "trust and special advice".

First of all, it should be noted that, given the peculiar characteristics, the temporary nature of the relationship being 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 cannot 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 for entering it — the application of certain administrative situations, involving the reservation of a place, would allow that person to continue his stay in the Administration without having a right 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 being applicable to contingent personnel. This is stipulated by TRLEBEP, which, in articles 85 et seq., regulates administrative situations only for career officials.

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

This premise could lead to the conclusion that the disciplinary regime of public officials does not apply to contingent personnel, without prejudice to the 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 shows that both official and professional staff and senior officials are subject to a disciplinary regime, which leads us to believe that the conduct of the contingent personnel, 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 the “loss of confidence of the body that appointed him”.

A contrary interpretation would lead to leaving it solely to the discretion of the body that appointed this 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 sense, 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 of career officials shall apply to him, as far as is appropriate to the nature of his condition.”

Therefore, without prejudice to the principle of confidence that must govern the relationship between the contingent personnel and the governing body that appoints them, the contingent personnel would also be subject to disciplinary measures, applying the disciplinary measures provided for by the 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 civil servants.

In this regard, the first conclusion would be that the contingent personnel cannot be declared in the 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 lies behind the assumption 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, is unable to carry out his/her work because he/she is – it is understood – in pre-trial detention or other measure that impedes the attendance and performance of the post.

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

If this 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 according to what has been said, if it is understood that the disciplinary regime of public officials is applicable to the personnel concerned, then disciplinary proceedings should be opened, the investigation of which would be suspended until a judicial decision was taken.

Once the proceedings have been instituted, the corresponding provisional measures may be taken, among which the provisional suspension is provided for, as a material measure intended to prevent a person who is engaged in disciplinary proceedings from continuing to hold his post, in order to avoid aggravating the conduct being pursued or frustrating the final outcome of the disciplinary proceedings.

Therefore, and on the basis of the arguments presented, on the 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 above-mentioned contingent personnel are being prosecuted do not constitute a disciplinary offence, it is understood that if the measures taken by the judicial body impede the attendance and performance of the post, as has already been indicated, first of all, the competent body may consider that there has been a loss of confidence, which would entail termination as contingent personnel; or it may in any case agree, in view of the material impossibility of performing the job, that the material effects envisaged for the temporary suspension be 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 judicial proceedings, provisional detention or any other measure preventing attendance and performance of the post is agreed upon.

Finally, and in the event that criminal responsibility involving a custodial sentence is confirmed or, where appropriate, disciplinary proceedings are finally instituted that end up declaring the responsibility of the contingent personnel in question, it is understood that the declaration of the firm suspension of functions would not be appropriate in any case.

Firstly, because, as has been indicated above, administrative situations are preachable only to career civil servants; and secondly, despite the fact that the disciplinary procedure laid down for civil servants is applicable to contingent personnel, it is obvious that, by the nature of their status, which entails the performance of a post of confidence, the various sanctions provided for in the disciplinary regime cannot be applied to such personnel, but that the declaration of responsibility must, per se, entail loss of confidence and, therefore, loss of the status of contingent personnel; with the exception, perhaps, of those misdemeanours that they committed that could be described as minor.

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.