Public Service Incompatibility: Legal Analysis of the Domenech Case

Applicable Legislation for Incompatibility Cases

The proper development of this case requires, first, determining the applicable law. The primary legislation is the Law 53/1984 of 26 December on personal incompatibilities in the service of public administrations. Autonomous legislation on incompatibilities that may exist would also apply. However, it should be noted that in this case, both rules (state and regional) are almost identical.

Compatibility of Activities Carried Out by Mr. Domenech

The analysis of whether the activities carried out by Mr. Rafael Domenech are supported by law requires distinguishing between two scenarios:

1. The company, Comprehensive Housing Counseling Service, is publicly owned.
2. The company, Consulting Comprehensive Public Housing, is privately owned.

This distinction is very important because if the company were publicly owned, the principles governing the ability to balance two public activities are much more restrictive than those governing such a possibility when the public activity is compatible with a private one.

Scenario A: Publicly Owned Company

In this case, compatibility would only be possible through the exceptional authorization envisaged in Article 6 of the Incompatibility Law (LI). This authorization must be granted in exceptional cases to support the performance of advisory activities in specific instances which do not correspond to the functions of the personnel assigned to the respective government.

Scenario B: Privately Owned Company

In the particular case at hand, support would not be possible if the company were considered privately owned. In accordance with the requirement of Article 11 LI, staff falling within the scope of the Act may not exercise, by themselves or through substitution, private activities which relate directly to the department, agency, or entity to which they are assigned.

Potential Liability for Unauthorized Performance

What kind of liability could be required of Mr. Rafael Domenech for his performance?

Disciplinary Liability

In any case, in order to undertake a second activity, whether public or private, it is imperative that Mr. Rafael Domenech seeks authorization for compatibility. Otherwise, his action could constitute a very serious fault, specifically classified in Article 95.2, point n) of the relevant disciplinary statute.

Other Liabilities (Damages and Criminal)

Mr. Domenech could also incur liability in damages, and even criminal liability. However, in the present case, criminal liability should be ruled out, since it is not apparent that there has been malfeasance or a knowingly unjust resolution.

Financial Liability and Administration Recourse

In relation to financial liability (liability in damages), the National Court, in a quite similar case involving the issuance of a false or incorrect certificate, established the existence of financial liability for the Public Administration. This was established after testing the causal link between the reduction in property value and deficiencies in the construction process.

The Administration may require recourse against the officer, subject to receiving proof of fraud, willful default, or gross negligence (Article 146.2 LRJPAC).