The Office of the Comptroller General of the Republic was asked to evaluate the relevance of initiating an investigation regarding an alleged embezzlement of fiscal funds that would have affected the Municipality of Longaví.
The petitioner indicates that he sent an official letter to the aforementioned entity, consulting, on the one hand, about the number of lawyers who work in said municipality, their names, and their salaries. On the other hand, if within the aforementioned personnel, the lawyer indicated is performing functions, in order that, in case of being effective, the municipality indicates whether he has represented its mayor, in the causes that it individualizes.
When requested information, the Municipality of Longaví provided a list that identifies the three lawyers who work in that building entity in the function of legal advice. As for the lawyer who was specifically consulted, he refers that he is linked to the municipality under the modality of fees, without an established working day and that, in the particular exercise of his profession, he has represented the mayor in legal cases for the that is consulted, which are not related to matters of municipal interference, insofar as they affect matters of an economic nature, due to obligations contracted prior to his election as mayor. At the same time, he affirmed that he has never used public money to pay his financial debts, nor the municipal patrimony to hire legal advice for personal purposes.
In this regard, the comptroller indicates that, after reviewing the institutional transparency portal as of November 2020, it is verified that in the Department of Health there is an appointment to contract to carry out legal work, and the hiring of attorney’s fees by the that is particularly consulted, to perform the same functions.
In this context, it warns that the municipality has successively signed annual agreements with the lawyer in question, which have remained in force from January 1, 2017 to December 31, 2021, in order to provide “ legal advice in the exercise of actions or in the judicial defense of those causes rooted in administrative or judicial headquarters determined by the direction of the service ”. In addition to “informing and providing legal advice to the residents of the Longaví commune on the different government programs, institutional linkage; control and monitoring of the processes initiated before the Public Ministry, as well as providing legal functions in different units of the municipality ”.
It adds that, from the payment decrees in view, it is possible to verify that the aforementioned professional has been paid the fees corresponding to the months during which he has been contractually bound. Likewise, a monthly certificate of receipt of the services provided has been attached to each administrative act that authorizes the corresponding expenditure, the fee slip, a monthly certificate of receipt of the services provided, a context in which a possible misuse of fiscal funds is not noticed.
Having cleared the foregoing, it indicates that it is necessary to analyze the rules on administrative probity applicable to the case, in order to elucidate whether the exercise of the profession in the private sphere by the lawyer in question is reconcilable with the position that corresponds to him in the Municipality, and if it disturbs the fulfillment of its duties.
In this context, it stands out that article 8 of the Constitution makes the principle of probity applicable by reason of the performance of a public function, regardless of the legal status of whoever performs it and the nature of the entity in which it is carried out, therefore , It is applicable to those who are hired for fees. In addition, article 40 of Law No. 18,695 expressly applies the rules of probity to the mayor and councilors, and article 63, letter d), of the latter body of law, charges the mayor to ensure their observance.
In accordance with the provisions of Law No. 18,575, it expresses that the principle of administrative probity consists in observing an irreproachable official conduct and an honest and loyal performance of the function or position, with preeminence of the general interest over the individual; expressing the general interest in the correct and correct exercise of public power by the administrative authorities, in the reasonableness and impartiality of their decisions and in the expedition in the fulfillment of their legal functions. In addition, it allows all officials to freely exercise any profession, industry, trade or trade that is reconcilable with their position in the State Administration, provided that this does not disturb the faithful and timely fulfillment of their official duties, without prejudice to the prohibitions or limitations established by law.
In this case, it considers that the lawyer in question must look after the particular interests of the mayor in the free exercise of his profession, which could affect the decisions that he must adopt regarding him and the hierarchical control over him, therefore the simultaneity of both hires can potentially detract from its impartiality.
In this way, considering that the mayor’s intervention in the personnel hiring processes must be verified with full observance of the principle of administrative probity, he argues that this would not be fulfilled if the hiring of a person with whom he has a remaining link is accepted. impartiality in making such a decision, as it could eventually translate to an advantage for the latter.
Consequently, it concludes that the hiring of the lawyer in question to perform tasks as legal advisor to the municipality and the professional services that he provides in a particular way to the mayor, are not reconcilable with each other, so that it is appropriate that this building corporation adopt the measures that correspond tending to correct said situation, reporting it within 30 business days from receipt of this letter.
Regarding an alleged misappropriation of fiscal funds, it clarifies that the power to hear civil and criminal cases, to resolve them and to enforce what is judged, belongs exclusively to the courts established by law, for which it will forward the antecedents to the Public Ministry for the purposes that corresponds in law.
Finally, it specifies that those who perform services for fees in the Administration, do not have the quality of public officials and the agreement itself constitutes the regulatory norm of their relations with it, so that they do not have other benefits than those expressly contemplated in the pertinent agreement of wills, which cannot go beyond those established by law for state employees. Consequently, the authority must supervise compliance with the working hours that the respective agreement imposes on them, having to establish for this purpose a compulsory attendance control mechanism, which could perfectly be the same as it has adopted as permanent and regular to control attendance. of all officials.
However, in the species, the lawyer in question has not complied with the marking on the clock control his entry and exit, as provided in all the agreements signed since 2017. For this reason, he orders the municipality to instruct a disciplinary procedure with The purpose of establishing the administrative responsibilities that may have arisen as a result of the aforementioned omission, sending a copy of the administrative act that begins it to the Maule Regional Comptroller’s Office, within a period of 30 business days, counted from the receipt of the official letter.
See Opinion No. 2,661.
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