Public Administration in Chile: Principles and Regulations
Public Administration in Chile
Recruitment and Functions
Can Public Bodies Recruit for the Exercise of Their Functions?
Yes, the execution of functions within public bodies is carried out by individuals who provide the necessary workforce. These individuals receive remuneration for their services.
Importance of Article 38 of the Constitution
Article 38 is crucial as it provides for the regulation of the civil service legal reserve, establishing the foundational principles of public service within a constitutional framework (Law No. 18.575).
Meanings of “Public Service”
The term “public service” encompasses both the work performed by a public entity and the tasks carried out by individuals employed within public agencies.
Creation and Principles of Public Office
How is a Public Office Created?
The creation of new public services or positions is outlined in Article 38 of the Chilean Constitution. The President of the Republic holds the sole initiative to create, eliminate, and define the functions of these roles.
Principles Established by Law No. 18,575
- Public officials are subject to a hierarchical and disciplined regime (Art. 7).
- They must fulfill their obligations faithfully and diligently, obeying orders from superiors (Art. 7).
- Authorities maintain hierarchical control over the performance of their subordinates (Art. 7).
- The State Administration staff is governed by statutory rules outlined in law, regulating entry, duties, rights, responsibilities, and cessation of duties (Art. 12).
- Admission to the State Administration requires meeting general and position-specific requirements (Art. 13).
- Public officials must uphold dignity and maintain professionalism (Art. 14).
- They are subject to administrative responsibility (Art. 15).
- Disciplinary authority must ensure a fair and rational procedure (Art. 15).
- Political activity within the government and misuse of authority are prohibited (Art. 16).
- Training and development are ensured for staff (Art. 17).
- Authorities and officials must adhere to the principle of administrative probity.
- Staff can exercise professions outside of work hours, provided there are no conflicts of interest (Art. 56).
Public Servants and Legal Charges
Definition of a Public Servant
In Chile, a public servant is an individual holding a public office, either within established organizational structures or as contract employees, performing administrative functions.
Difference in the Concept of Public Official for Criminal and Administrative Purposes
Yes, the concept of a public official differs. For criminal purposes, the definition is broader, encompassing individuals exercising public functions in various government entities, regardless of appointment method or salary source.
Fundamental Principles of the Public Regulatory System
- Legal office system
- Statutory scheme
- Official career
- Equal income opportunities
- Training and development of members
Definition of a Legal Charge
The principle of legal charge dictates that permanent positions within each agency are assigned by law.
Understanding the Statutory Scheme
The statutory scheme refers to the legal framework that outlines the rights, obligations, prohibitions, and responsibilities of public officials, established through a legal system.
Career Path and Equal Opportunities
What is the Career Path?
The career path is a system where individuals progress through a specialized scale with various grades or categories. It begins with entry-level positions and extends to higher roles, excluding those requiring exclusive reliance.
Entry into the Career Path
Entry-level positions are typically filled through public tenders, with individuals starting at the last grade of the respective structure unless higher-grade vacancies exist.
Characteristics of the Civil Service Career
- Impersonality and impartiality of the State
- Respect for the dignity of public service
- A hierarchical and disciplined system with merit-based promotions
Definition of the Career Path
The career path is a comprehensive system regulating public employment for permanent staff, based on hierarchical, professional, and technical principles. It guarantees equal opportunities, dignity, training, promotion, job security, and objective performance evaluations.
Equal Opportunity for Admission
Chile upholds the principle of equality in entry conditions. The career path ensures that requirements for each position are established by law, promoting fairness and transparency in the selection process.
Job Security and Performance Evaluation
What is Job Security?
Job security guarantees the right of public officials to continue in their positions unless there are legal grounds for termination, such as voluntary resignation, retirement, poor performance, or breach of obligations. Positions of trust are an exception to this principle.
Are Public Officials Owners of Their Jobs?
While Article 583 of the Civil Code recognizes job security as a right, numerous laws have been enacted that suppress public employment without being deemed unconstitutional. Therefore, job security is not protected by property rights, but its regulation remains within the domain of the law.
What is a Qualifier?
A qualifier is an assessment tool used to evaluate the performance and skills of staff members, ensuring they meet the requirements of their positions. It serves as a basis for promotions, incentives, and potential removal from service.
Requirements for Promotion to a Higher Education Position
- Meeting the requirements of the target position
- Adhering to the established hierarchy
- Typically, promotion within the same structure
- Absence of impediments to promotion
- No prior disciplinary actions
Statutory Schemes and the National Civil Service
Does Chile Have a Single Statutory Scheme?
No, Chile employs a pluralistic approach to statutory schemes, with different regulations for various sectors, such as the Administrative Statute (Law No. 18,834 of 1989), the Administrative Regulations for Municipal Officials (Law No. 18,883 of 1989), and regulations for health professionals (Law No. 15,076).
What is the National Civil Service?
The National Civil Service is a decentralized public service with its own assets, responsible for coordinating, monitoring, and improving personnel functions within the Civil Administration of the State. It reports to the President through the Ministry of Finance.
Senior Management and Trust Positions
What Contests Does the National Civil Service Conduct?
The National Civil Service conducts public tenders for senior management positions.
Definition of a Senior Manager Public Position
Senior manager public positions are held by officials and service chiefs from the second hierarchical level within their respective agencies.
What is an Exclusive Trust Officer?
Exclusive trust officers are appointed directly by the President or the appointing authority.
Special Rules for the Head of Department Position
- Positions are filled through contests open to qualified officials.
- In the absence of qualified applicants, a public tender is required.
- The term of service is three years.
- Officials remain in their positions based on performance and ranking.
- After their term, they can re-apply or return to their original position.
Alternate and Contract Positions
Definition of an Alternate Position
Alternate officials are designated to fill vacant positions or cover for absent officials for periods of 15 days or more.
Definition of a Contract Position
Contract employees are part of the provisional budget of each government department. Their contracts typically expire in December each year, unless extended.
Official Tests and Entry Requirements
Definition of an Official Test
An official test is an optional component of the selection process for entry-level positions. It allows for a probationary period to assess the suitability of candidates.
Entry Requirements for the Public Administration
- Chilean citizenship
- Compliance with the Conscription Act and Mobilization (when applicable)
- Health compatible with the position
- Completion of basic education and required educational level
- No prior dismissal from public office due to poor performance or disciplinary measures
- No disqualifications for exercising public functions
Definition of Chilean Citizenship
Chilean citizens are individuals who have reached 18 years of age, have not been sentenced to corporal punishment, and have not been convicted of any crime defined as terrorism by law.
Crimes Leading to Loss of Citizenship
Citizenship can be revoked for individuals convicted of crimes resulting in imprisonment, detention, confinement, exile, or banishment, as well as those convicted under anti-terrorism laws.
Required Education Level for Public Administration Entry
Applicants must have completed basic education and possess the necessary educational qualifications, whether professional or technical, as required by law for the specific position.
Consequences of Dismissal Due to Poor Performance
Individuals dismissed due to poor performance are barred from re-entering public service for five years.
Requirements for Re-entry After Dismissal Due to Poor Performance
After five years have passed since dismissal, individuals can re-apply for public service positions.
Requirements for Re-entry After Dismissal Due to Disciplinary Measures
Individuals dismissed due to disciplinary measures require a Presidential Decree for rehabilitation to re-enter public service.
Disqualifications for Exercising Public Functions
Individuals convicted of crimes or misdemeanors are disqualified from holding public office.
Open Competitions and Appointments
Definition of an Open Competition in the Administrative Staff
Open competition refers to the competitive process for entry into public service, aiming to select the most suitable candidate based on merit and qualifications.
Principles Governing Public Tenders for Official Appointments
- Advertising
- Free admission
- Strict adherence to rules
- Equal opportunities for all applicants
Definition of Appointment
Appointment is the administrative decision to place an individual in a specific position within the public administration.
Effects of Appointment
Appointment confers rights and obligations, including the right to assume office, the right to function, and the obligation to disclose interests and assets.
When a Person Enters the Public Administration
Upon appointment and assumption of the respective charge.
What is the Right to Function?
The right to function is the right to perform the duties associated with the designated position. It is a personal, inalienable, and non-transferable right.
What is the Declaration of Interests?
Individuals in management-level positions must submit a declaration of interests, outlining any professional or economic activities that could potentially create conflicts of interest.
What is the Declaration of Assets?
Individuals in management-level positions must submit a declaration of assets, disclosing their property holdings, investments, and liabilities exceeding a certain threshold.
Effects of a Null Appointment
A null appointment cancels the individual’s placement in the position. However, it does not invalidate actions taken during their tenure. Administrative liability may be pursued against those involved in processing the irregular appointment.
Wages for Staff Members with Null Appointments
The law does not require the reimbursement of payments received during the period of null appointment, provided the individual was not responsible for the irregularity.
Performance Ratings and Promotions
Objectives of the Performance Rating
- Facilitates promotions based on performance
- Identifies individuals for potential removal due to poor performance
- Supports the granting of incentives based on individual performance
- Provides valuable information for training and development
Who Conducts the Performance Evaluation?
A rating board, typically composed of higher-level officials, conducts the performance evaluation.
What is the Performance Evaluation?
The performance evaluation is a periodic, objective, and impartial assessment process that underpins the civil service career system.
What is Promotion?
Promotion is the advancement of an official to a higher-level position within the hierarchical structure. It can occur through competition or seniority-based promotion.
Requirements for Promotion
- Meeting the requirements of the target position
- Adhering to the established hierarchy
- Typically, promotion within the same structure
- Absence of impediments to promotion
- No prior disciplinary actions
Explanation of Promotion by Seniority
Promotion by seniority follows a strict hierarchical order within the same structure. It is the general rule for administrative and auxiliary positions.
Explanation of Promotion by Competition
Promotion by competition is typically used for managerial, professional, and technical positions. A selection committee evaluates candidates based on merit and qualifications.
Principles Governing Promotion
- Priority given to internal candidates
- Strict adherence to ranking order
- Voluntary application process
- Governance by Ministry of Law
- Considered the primary method for filling vacancies
Administrative Responsibility and Disciplinary Actions
What is Administrative Responsibility?
Administrative responsibility refers to the consequences faced by public officials who commit serious violations of their duties.
What is Disciplinary Authority?
Disciplinary authority is the power vested in superiors to punish subordinates for serious breaches of their obligations. This power is regulated by law and must be exercised within established guidelines.
Principles Governing the Application of Disciplinary Actions
- Legal reserve
- Due process
- Typicality
- Guilt
- Proportionality
Discussion Regarding the State’s Right to Punish
The debate centers on whether the state’s power to punish in administrative matters should be subject to the same principles as criminal sanctions. Some argue that disciplinary authority is an attribute of the state’s right to punish, while others maintain a distinction between the two.
Applicability of Principles Governing Criminal Sentencing to Disciplinary Actions
While the principles are not directly applicable, a conviction for a felony or misdemeanor can render an official unfit for public service, leading to dismissal.
Definition of the Principle of Legal Reserve
The principle of legal reserve dictates that all administrative actions must be authorized by law, preventing arbitrary or abusive exercise of power.
Definition of Due Process
Due process guarantees that administrative sanctions are only imposed after a fair and lawful investigation, ensuring the right to defense.
Definition of the Principle of Criminality
The principle of criminality states that individuals can only be punished for conduct explicitly prohibited by law.
Types of Disciplinary Actions
Disciplinary actions can be corrective (e.g., censure, fines, suspension) or expulsive (e.g., dismissal).
Procedures for Establishing Administrative Liability
Administrative inquiries and preliminary investigations are used to establish administrative liability.
Definition of a Disciplinary Action
A disciplinary action is a penalty imposed for a violation of administrative rules.
Typicality in Disciplinary Actions
The principle of typicality requires that the imposed penalty corresponds to a specific violation outlined in law.
Definition of a Penalty
A penalty is a deduction from the official’s monthly salary, typically ranging from 5% to 20%.
Definition of Suspension
Suspension is the temporary removal from employment, with a reduction in salary (50% to 70%).
Definition of Dismissal
Dismissal is the termination of employment due to serious misconduct.
Definition of Censure
Censure is a written reprimand for violating obligations.
Behaviors that Seriously Infringe Probity
- Misuse of confidential information
- Abuse of authority for personal gain
- Misuse of institutional funds or property
- Misuse of work hours or resources
When Absence is Grounds for Dismissal
Absence without justification for more than three consecutive days, or without compelling reasons, can be grounds for dismissal.
Administrative Offenses Punishable by Dismissal
- Unauthorized absence for more than three consecutive days
- Failure to properly notify authorities of leave without pay
Definition of Reproach
Reproach is the attribution of responsibility for an action or omission.
Definition of a Defense of the Guilty
A defense of the guilty refers to legal arguments presented on behalf of an individual accused of wrongdoing.
Definition of Pro Extinction of Administrative Liability
Pro extinction of administrative liability refers to circumstances that exempt an individual from administrative responsibility.
Causes of Extinction of Administrative Responsibility
- Death of the official
- Resignation from service, unless an inquiry is in progress
- Completion of the imposed penalty
- Statute of limitations
Prescription of Administrative Responsibility
Administrative responsibility is extinguished after four years from the date of the violation.
Interruption of Disciplinary Responsibility
The statute of limitations is interrupted if the official commits another administrative offense.
Role of the Prosecutor in a Summary
The prosecutor is an official designated to investigate the facts and gather evidence in a disciplinary proceeding.
Obligations of the Prosecutor in a Summary
- Appoint a clerk
- Ensure due process
- Gather evidence
- Identify responsible parties
- Propose a penalty
- Report to the relevant authorities
Requirements for a Prosecutor in a Summary
The prosecutor must be of equal or higher rank than the accused, be governed by the same statute, and maintain impartiality.
Responsibility and Liability
Definition of Responsibility
Responsibility is the obligation to bear the consequences of one’s actions or omissions.
Definition of Guilt in the Broad Sense
Guilt in the broad sense encompasses both intentional wrongdoing (dolo) and negligence.
Definition of Guilt in the Narrow Sense
Guilt in the narrow sense refers specifically to negligence.
Difference Between Guilt in the Broad and Narrow Sense
The key difference is the presence or absence of intent.
Types of Liability
- Civil liability
- Criminal liability
- Administrative liability
When Civil Liability Exists
Civil liability arises when an official is obligated to compensate for damages caused.
When Criminal Liability Exists
Criminal liability arises when an official intentionally or negligently violates the law, warranting the imposition of a penalty.
When Administrative Liability Exists
Administrative liability arises when an official is obligated to compensate for damages caused in the course of their duties.
Independence of Responsibilities
A single act can give rise to civil, criminal, and administrative liability, each with its own procedures and consequences.
Effect of Criminal Liability on Civil Liability
A criminal conviction can be used as evidence in a civil trial.
Effect of Criminal Liability on Administrative Liability
A criminal conviction typically requires the dismissal of the official from public service.
Effect of Tort Satisfaction on Criminal Liability
Voluntary compensation for damages can be considered a mitigating factor in criminal proceedings.
When an Official’s Act Generates Civil Liability for the Service
Civil liability for the service arises when an official’s actions or omissions while performing their duties cause harm to a third party.
Ways to Obtain Compensation for Damages Caused by a Staff Member
- Agreement between the staff member and the institution
- Legal action by the institution to recover damages
- Trial account
What is the Trial Account?
The trial account is a process overseen by the Comptroller General to review the financial management of public funds by officials.
What is an Objection in the Trial Account?
An objection indicates that the account does not meet the required standards or regulations.
Importance of the Objection in the Trial Account
An objection can serve as a basis for further investigation and potential legal action.
What is the Review of Accounts?
The review of accounts is the investigation and examination of financial records by the Comptroller General.
Authority of the Comptroller General to Examine and Judge Accounts
The Constitution grants the Comptroller General the authority to examine and judge accounts.
Composition of the Judiciary in the Trial of Accounts
The Comptroller General serves as the judge of first instance, while the Comptroller General’s Office acts as the court of second instance.
Procedure for Reporting Foreign Accounts
Officials residing abroad must submit a certificate confirming their compliance with reporting requirements.
Parties Involved in the Trial of Accounts
The parties involved include the accountable official, the prosecutor, and the Comptroller General.
Definition of Causal Implication and Challenge
These are grounds for temporary disqualification of the judge in the trial of accounts.
Definition of the Objection in the Trial of Accounts
The objection is the formal complaint or accusation in the trial of accounts.
Role and Powers of the Trial Judge in the Trial of Accounts
The trial judge, typically the Comptroller General, oversees the proceedings, examines evidence, and issues a ruling.
Resources Available Against the Ruling in the Trial of Accounts
Appeals and reviews can be filed with the court of second instance.
Explanation of the Appeal in the Trial of Accounts
An appeal is a request for a higher court to review the decision of the lower court.
Explanation of the Review in the Trial of Accounts
A review is a request for the court to reconsider its decision based on new evidence or legal arguments.
Enforcement of the Sentence in the Trial of Accounts
The Comptroller General can enforce the sentence through various means, including salary deductions and legal action.
Classification of Crimes Committed by Officials in Connection with Their Service
- Crimes committed outside of official duties
- Crimes committed outside of official duties but using official capacity or resources
- Crimes committed against the service itself
- Crimes that can only be committed by public officials (ministerial crimes)
Definition of a Ministerial Crime
A ministerial crime is an offense that can only be committed by a public official in the exercise of their duties.
Differences in the Concept of Public Official for Criminal and Administrative Matters
Yes, the definition of a public official is broader for criminal purposes, encompassing individuals in various government entities, regardless of appointment method or salary source.
Definition of Ministerial Communicability
Ministerial communicability refers to the potential for individuals who are not public officials to be considered accomplices or accessories to ministerial crimes.
Definition of the Crime of Bribery
Bribery is the act of offering, giving, receiving, or soliciting something of value to influence the actions of a public official.
Types of Bribery Recognized by the Penal Code
- Passive bribery (soliciting or receiving a bribe)
- Active bribery (offering or giving a bribe)
Definition of Embezzlement
Embezzlement is the misappropriation of public funds or property for personal gain or unauthorized purposes.
Classification of Forms of Embezzlement
Embezzlement can take various forms, including theft, misapplication, and diversion of funds.
Distinction Between Embezzlement and Misappropriation
Embezzlement typically involves the theft or misappropriation of funds entrusted to the official, while misappropriation may involve the misuse of funds for unauthorized purposes.
Distinction Between Defrauding the Exchequer and Embezzlement
Defrauding the exchequer involves depriving the state of funds or assets, while embezzlement typically involves the misappropriation of funds already in the official’s possession.
Definition of the Crime of Fraud to the Treasury
Fraud to the treasury is the act of defrauding the state, municipalities, or public institutions for personal gain or to cause financial loss.
Definition of Incompatible Negotiation
Incompatible negotiation occurs when a public official engages in business dealings that create a conflict of interest with their official duties.
Definition of the Crime of Trespass
Trespass, in this context, refers to the abuse of administrative power or the perversion of justice for personal gain or to harm others.
Definition of an Additional Penalty
An additional penalty is a supplementary punishment imposed in addition to the primary sentence, such as disqualification from holding public office.
Problem with the Application of Penalties When an Official Receives a Suspended Sentence
Debate exists regarding whether a suspended sentence also suspends the additional penalty of disqualification from public office.
Definition of Illegal Exaction
Illegal exaction is the act of demanding or receiving unauthorized payments or benefits in connection with official duties.
Behaviors that Violate the Administrative Ministerial Crime and Their Sanctions
Examples include bribery, embezzlement, and illegal exaction, which can result in dismissal, fines, and imprisonment.
When the Commission of a Crime or Offense is Cause for Removal
Conviction for a crime or misdemeanor typically results in dismissal from public service.
Effect of Remission of Sentence on Dismissal
Remission of sentence may or may not affect the additional penalty of dismissal, depending on the specific circumstances and the court’s decision.
Definition of the Principle of Proportionality
The principle of proportionality requires that disciplinary actions be proportionate to the severity of the misconduct.
Definition of the Fault Principle
The fault principle requires that the official be culpable or blameworthy for the misconduct before disciplinary action can be taken.
Role and Requirements of the Prosecutor in a Summary
The prosecutor investigates the facts, gathers evidence, and ensures due process in disciplinary proceedings. They must be impartial, of equal or higher rank than the accused, and governed by the same statute.