The Canary Islands' Advisory Council has confirmed the nullity of the release of former Lanzarote Island Council member Juan Manuel Sosa during the last term.
It should be remembered that Sosa appeared in 2019 on the electoral lists of Coalición Canaria, as a member of the San Borondón party. However, after disagreements with the nationalist party, he joined Dolores Corujo's government. Then, his colleagues from the Nationalist Group in the Island Council began negotiations to achieve the resignation of the councilor and to facilitate a motion of censure against the previous government team.
After being expelled from the Nationalist Group and becoming a non-attached councilor, Juan Manuel Sosa filed an appeal for the protection of fundamental rights before the Administrative Court of Las Palmas de Gran Canaria. The Court provisionally annulled his expulsion from the Coalición Canaria Group in the Island Council.
The president of the Island Council, Oswaldo Betancort, has considered that “this fact demonstrates that the government of the past legislature, presided over by the socialist Dolores Corujo, was supported by a defector, contravening the ethical norms of his own party.”
Betancort has stressed that “the Canary Islands' Advisory Council has agreed with what CC denounced and what Corujo defended so much; now the administrations will have to abide by it and act accordingly.”
According to the order of the Ministry of the Presidency, Public Administrations, Justice and Security, which declares the nullity of full right of the Resolution of April 27, 2020, of the General Directorate of Public Function, regarding the linking of the declaration of the situation of special services to the application of article 42 of the Canary Islands Public Function Law to don Juan Manuel Sosa Rodríguez, “in the aforementioned request (of December 31, 2019) the official does not state that he has lost, by resignation, his condition as spokesperson for the political group of CC in the Island Plenary.”
Among the legal considerations of the governmental order, it is stated that “it is evident that when the General Directorate of Public Function becomes aware of a fact such as the loss of the condition of spokesperson of the official in a situation of special services, and that it is not precisely because he is the one who communicates it to his Administration, but a third party, the known fact that determines the nullity, not being therefore, as the High Court would say, simple elementary mistakes of names, dates, arithmetic operations or transcriptions of documents.”
Indeed, “the supervening knowledge of information not provided, such as the loss of the condition of spokesperson, determines a fundamental alteration in the meaning of the act, which cannot subsist, because it maintained a subjective right contrary to law.”
The condition of spokesperson, the text continues, “constitutes an essential requirement for the official, who must fulfill it, in order to acquire the remunerative right that article 42 of Law 2/1987, of March 30, recognizes him, and its loss, by resignation, implies the automatic exclusion of such right, so that the Resolution of the General Directorate of Public Function, of April 27, 2020, incurs in cause of absolute nullity, etc., given that the interested party does not meet the essential requirements for the legal content of his declaration of special services to be applicable... without such circumstance, that is, the loss of the condition of spokesperson, being attributable to this Administration, nor is its ignorance, since it is a personal circumstance, whose duty of communication weighed on the official.”
The Order declares the nullity not only of the initial resolution of 2020, but also of the alleged correction of errors in 2022, once Samuel Martin (CC) denounced the facts.
In this regard, the current Island Council of Lanzarote has highlighted as "relevant the opinion of the Canary Islands' Advisory Council that pronounces and concludes that we are facing an essential requirement whose absence determines the nullity of full right of the act that recognizes the right, for having completely and absolutely disregarded the legally established procedure, since, the alleged regularization of the administrative life of the official did not involve a mere rectification of a factual, material or arithmetic error, but a partial ex officio review of the null act issued on April 27, 2020, excluding the application of article 42 of Law 2/1987, of March 30, of the Canary Islands Public Function.”
And it adds “the determining vice in which the act of April 27, 2020 incurs is a consequence of the official's failure to comply with his duty to communicate to his Administration of belonging a determining and essential circumstance of his administrative situation, more specifically, of the remunerative right that the Law recognizes him, given his condition as spokesperson, so that the official continued to avail himself of such remunerative regime, taking advantage of the circumstance of the Administration's ignorance of his change of legal situation.”
The application then of the aforementioned article 110, would be “contrary to law, on the one hand, because there has been a breach, by the interested party, of the principle of good faith, and on the other hand, because the protection of the right of individuals would then occur on the occasion of the injury to the public interest that underlies the legal regime of civil servants, given that as has been said, the loss of such condition of spokesperson, only allowed him to avail himself of the ordinary regime of special services provided for in the Canary Islands Public Function Law.”
Therefore, it has resolved to declare the nullity of the Resolution issued by the General Directorate of Public Function, of April 27, 2020, regarding the declaration of application of article 42 of the Law of the Canary Islands Public Function to the administrative situation of special services José Manuel Sosa Rodríguez, career official of the Superior Facultative Body, Scale of Health Graduates, Specialty Medical Assistance Physician, with effect from December 30, 2019, as well as the Resolution of the General Directorate of Public Function, of October 4, 2022, by which the rectification of errors of the aforementioned Resolution was carried out.
Likewise, it has resolved to notify this Resolution to Juan Manuel Sosa Rodríguez, for the purposes of his knowledge; and to the General Directorate of Human Resources of the Canary Islands Health Service, as well as to the Island Council of Lanzarote, “for the purposes of proceeding with the regularization of earnings received, in application of the non-procedural nature of article 42 of the Canary Islands Public Function Law.”
