Public Officials Law
Wolfenson Lawyers focuses on the rights of public officials, and respect for their guarantees of due process.
Our firm provides defense to officials in the processes that are involved, which implies in various cases avoiding dismissal, the maximum applicable sanction. Likewise, we represent our clients before the superior courts of justice to try to annul the anticipated term of their contract, as well as the non-renewal of it.
The exercise of the public function requires different legal standards of probity and efficiency, without prejudice to this, each official must have as a guarantee the protection and respect of the State before its fundamental rights guaranteed by the Political Constitution of the Republic.
Wolfenson Lawyers provides legal advice and legal representation to administration officials.
Here is a legal guide to provide you with guidance on the right of public officials:
What is an administrative summary?
To understand what the administrative summary consists of , first of all it is necessary to point out that the officials of the State Administration are subject to certain duties and obligations that derive directly from their public office. It is in this way that the administrative summary is used as a tool to investigate and establish the facts that could constitute an infraction or lack of said duties and obligations , applying disciplinary measures in the event that the facts investigated actually constitute an infraction. or missing.
What is the procedure for an administrative summary?
There are different types of administrative summaries in Chile , each one regulated in special sectoral regulations . Notwithstanding this, in all of them the presence of a common structure that must be analyzed together with our specialist lawyers , which is characterized by the following:
1.- Investigate the occurrence or not, of certain specific events.
2.- Compare them with the official regulations and qualify them.
3.- Establish and apply a disciplinary measure , if they constitute an infraction or fault.
What are the main administrative summaries?
Among the main administrative summaries are those provided by Law No. 18,834 of the Administrative Statute , in its articles 119 and following; then that of Law No. 18,833 on Administrative Statute for Municipal Officials , in articles 118 and following; in the regulations contained in other special statutes, such as the Chilean Police, the Chilean Gendarmerie, the Chilean Investigative Police and the Civil Registry , among several others. On the other hand, Law No. 10,336 , on Organization and Powers of the General Comptroller of the Republic , establishes in its articles 131 and following, a summary by the Comptroller, and which concludes with a proposal that the Regional or General Comptroller, makes the head of the respective service. The Comptroller can develop these summaries in all the public services subject to its control, including the municipalities.
What are the stages of the administrative summary in Chile?
There are a large number of kinds of administrative summaries , however there are common rules that apply to the vast majority of them. These common stages are shown below:
a) Beginning of the summary:
He is the head of the service that initiates the investigation of the summary , with the power to do so (depending on the type of summary and official involved), when there is a history of the occurrence of certain serious events, which are likely to constitute an infraction or administrative offense .
In said resolution, a prosecutor is appointed , who is the official who must carry out the investigation. Once the position is accepted by the prosecutor, a minister of faith (secretary or actuary) is appointed who will certify the actions that take place.
b) Summary investigation:
It is of a determined duration, which varies according to the type of summary in question. At this stage, the prosecutor has broad powers to carry out the investigation, having the prerogative to review documents and summon other officials or third parties to testify. This stage concludes with the formulation of charges, at which time the defense of the accused can be assumed.
c) Formulation of charges:
The prosecutor can file charges once the investigative stage is over, that is, consider an infringement or a certain administrative offense to be configured based on the facts investigated. Otherwise, it may propose the dismissal , when for various reasons the imposition of any sanction is inappropriate; This will occur when the facts that are the subject of the summary can not be proven, when having been proven they do not constitute an administrative offense or offense , or the participation of the official is not proven, or responsibility is prescribed , etc.
d) Disclaimers and defense:
Once the charges have been formulated, the accused ( public official ) can defend himself against the accusations, presenting his defense, defense and evidence, all intended to distort or lessen the administrative responsibility derived from the charges made. At the end of the term, the prosecutor issues an opinion in which he proposes the dismissal or the sanction that in his judgment corresponds to apply.
e) The resolution of the head of the service
Once the opinion has been issued, the prosecutor sends the summary record to the head of the service , who must decide on the application of a specific disciplinary measure , or on the dismissal of the accused. The head of the service can order the execution of new procedures or correct procedural defects , to later resolve.
f) Resources:
It is possible to appeal the resolution adopted by the head of service, a period counted from the notification of the resolution, the accused may challenge the decision by means of the corresponding resources.
What is the trial of accounts?
The trial of accounts is that contentious procedure initiated by the Office of the Comptroller General of the Republic , the body in which the Court of Accounts is located , both first and second instance.
What is the purpose of the trial of accounts?
The objective is to enforce the pecuniary responsibility (in money) of officials, former public officials or people who are in charge of public assets or resources, and that by their negligence or intention, cause damage to public assets .
How is the procedure of the trial of accounts?
This procedure begins with the objection made by the head of the division or the respective Regional Comptroller , after which the judge grants the defendant a period of 15 working days from the notification of the demand to exercise his defense, now if the defendant is notified outside of Santiago, an extension of that period can be requested before its expiration.
Reply?
It refers to that procedural opportunity that the defendant has to exercise his right of defense . It is possible to defend yourself in the following way:
1.- Formulating exceptions: It is related to the correction of defects in the procedure or distort the merits of the objection. These exceptions are resolved prior to trial or in the final judgment.
2.- Making allegations: These seek to repel the responsibility or damage to be indemnified that is charged to the defendant.
3.- Presenting documents or requesting proceedings: It is related to obtaining background information for your defense. If the defendant does nothing at this stage, his rebellion is declared, that is, he will continue with the trial without waiting for his answer, without prejudice to the fact that he can defend himself in other stages of the process. If the facts of the objection are acquiesced or not discussed, the Judge of Accounts may issue a sentence without opening an evidentiary term.
Probationary term?
It is the resolution that orders the points to be proved, and this begins with the resolution that orders the beginning of a probative term , at the same time fixing the points in which the evidence must fall. Once this resolution has been notified to all the parties, a period of 15 working days is given for the parties to prove their allegations or defenses through, among others, the following means:
1.- Presentation of documents.
2.- Witness statement.
3.- Request trades to collect records.
The term elapses from the last notification to the parties and admits an extension (requested as long as it is made before the expiration of the term) for reasonable reasons. For the testimonial evidence , a list (list) of the witnesses must be presented, indicating their name, identity card and address, within the first five days from the notification of the resolution of opening or beginning of the evidentiary term, and may accompany a minute of questions. The witnesses will be summoned to the hearing to be held in the Court of Accounts or in the respective Regional Comptroller , to which the parties and / or their lawyers may attend. Once the evidentiary term has concluded and all the measures ordered have been completed, the judge must examine the case and may order measures to better resolve if he deems it necessary to clarify doubtful aspects of the trial.
Wolfenson Abogados provides excellent legal advice with lawyers specialized in public servants law.
Links of interest on legal advice to Public Officials :
1.- Political Constitution of the Republic of Chile
3.- Transparency and Probity of the State Administration
4.- Requirements, disabilities and incompatibilities for Public Officials
Wolfenson Lawyers. Chile Law Firm.
If you need more information and legal advice regarding the right of public officials, we invite you to contact our lawyers in Santiago. We are located at Avenida Apoquindo 2930 in the commune of Las Condes, Santiago de Chile.