A disciplinary penalty imposed on a civil servant is entered in the service record even before it has become final. Where the penalty is set aside on an objection to the superior authority, or annulled by the Administrative Court, the corresponding entry must be removed from the personnel file. Under Article 133 of the Civil Servants Act No. 657, a civil servant who has received a disciplinary penalty other than dismissal from the civil service may apply to the superior authorised to make appointments and request that the penalty be expunged once 5 years have elapsed since the application of a warning or a reprimand, or 10 years since the application of a deduction from salary or a suspension of step advancement. In addition, where a civil service record amnesty is declared by legislation, the entries relating to the disciplinary penalties falling within its scope are removed from the file of the civil servant concerned. Where a civil servant meets one of the conditions for expungement but the penalty is nevertheless not expunged from their record, an action for the annulment of the administrative act arises.
Public institutions are obliged to keep a separate personnel file for every civil servant they employ. That file brings together the civil servant’s professional details; the examination, investigation and audit reports concerning them; records of awards and achievements; and the information and documents relating to the disciplinary penalties they have received. The data held in the file are taken into account in decisions such as step advancement, grade promotion, retirement and the termination of the employment relationship.
What Is a Civil Servant’s Personnel File (Service Record)?
The personnel file is the employee record file opened when a civil servant is appointed to a public institution, in which professional details, appointment records and advancement and transfer documents are collected. The civil servant’s declarations of assets; any examination, investigation and audit reports concerning them; and the information and documents relating to disciplinary penalties and to the award of prizes and certificates of achievement are also added to this file.
A separate file is kept for each civil servant. That file is taken as the basis in determining the civil servant’s performance, competence and capability; in their step and grade advancement; on their retirement; and on the termination of their employment relationship.
How Must the Personnel File Be Kept?
The provisions on the service record in the Civil Servants Act No. 657 were repealed by Act No. 6111. The order in which the file is to be kept is expressly laid down in the General Communiqué on Public Personnel (Series No: 2) published by the State Personnel Presidency. Under the Communiqué, the personnel file consists of eight sections, and the information and documents to be held in those sections are as follows:
- First section: documents relating to initial appointment, re-appointment and appointment by transfer
- Second section: educational background, foreign languages known and the levels attained, postgraduate education, documents concerning internships and studies, the records of every kind of training activity attended, and information on the civil servant’s publications and works
- Third section: documents relating to the leave taken by the civil servant
- Fourth section: the records of disciplinary investigations concerning the civil servant and the disciplinary penalties imposed, copies of decisions given by judicial bodies, documents relating to suspension from duty, and any examination, investigation and audit reports
- Fifth section: where the institution considers it necessary, documents relating to salary, remuneration, travel allowances and other financial entitlements, records showing the retirement position, declarations concerning dependants, declarations of assets and documents relating to trade union membership
- Sixth section: documents relating to probationary status and appointment to substantive civil service posts, grade and step advancements, records relating to changes of class, place, title and duty, and temporary assignment documents
- Seventh section: information and documents relating to the award of prizes and certificates of achievement and outstanding achievement
- Eighth section: documents relating to military service status, compulsory service obligations and disability status, together with other professional information and documents that fall outside the scope of the preceding sections and concern the civil servant’s service position
The same instrument goes on to provide that an information file is to be created for staff employed under Articles 4(B) and 4(C) of Act No. 657. That file contains the contracts, documents showing educational background, records relating to changes of place and title within the institution, leave, trade union membership details, documents relating to the termination of the contract and other records connected with the service.
Recording the Disciplinary Penalty in the Personnel File
Under Article 133 of Act No. 657, a disciplinary penalty takes effect from the date on which it is imposed, is applied immediately and is entered in the service record. The penalty imposed is at the same time notified to the superior disciplinary authority; in the case of dismissal from the civil service, the State Personnel Presidency is also informed. As will be seen, a disciplinary penalty is entered in the service record before it becomes final. Where the penalty is set aside on an objection to the superior authority or annulled by a decision of the Administrative Court, the entry must be removed from the personnel file.
As to which penalty may be imposed for which conduct, our note entitled “Disciplinary Penalties That May Be Imposed on a Civil Servant” may be consulted; and as regards the objection and annulment procedure, which is a considerably more detailed subject, our note entitled “Objection to and Action for Annulment of a Disciplinary Penalty Imposed on Civil Servants”.
Expunging the Penalty on the Expiry of a Set Period
Under Article 133 of the Civil Servants Act No. 657, a civil servant who receives a disciplinary penalty other than dismissal from the civil service may, once the following periods have elapsed, apply to the superior authorised to make appointments and request that the penalty be expunged:
- for the penalties of deduction from salary and suspension of step advancement, 10 years from the date of application
- for the penalties of warning and reprimand, 5 years from the date of application
If the civil servant’s conduct during those periods is considered such as to justify the request, it is decided that the request be granted; that decision is likewise recorded in the file. In the case of the removal of a penalty of suspension of step advancement from the file, the opinion of the disciplinary board is first obtained and the provision of the preceding paragraph is then applied. Since a decision rejecting a request for expungement is itself in the nature of an administrative act, recourse may be had to the courts seeking its annulment.
Expunging by Reason of a Civil Service Record Amnesty
Where a civil service record amnesty is declared as a result of legislation, the entries relating to the disciplinary penalties falling within the scope of the amnesty are removed from the personnel file of the civil servant concerned. Once the amnesty decision has entered into force and the civil servant has applied to the administration to that end, the penalty is expunged from the record by the superior authorised to make appointments.
Expunging by Way of an Action for Annulment
As stated above, a disciplinary penalty is entered in the service record on the date on which it is imposed. The penalty may not yet be final on that date, however, and it may be set aside by an action for the annulment of the disciplinary penalty brought before the Administrative Court. Where the penalty is annulled by a decision of the court, the entry must be removed from the record. The civil servant may request that the penalty be expunged from their record by an application enclosing the relevant court decision.
Action for Annulment Against the Rejection of an Expungement Request
We explained above that a civil servant who meets one of the conditions for expungement may make an application to that effect. Where a civil servant meets the conditions but the penalty is not removed from their file, or their request is not granted, a final and enforceable administrative act comes into being; the annulment of that act may be sought.
For the details of this action, our note entitled “Objection to Administrative Acts and the Action for Annulment” may be consulted.
Court with Subject-Matter and Territorial Jurisdiction in the Action for Annulment
In actions of this kind, the court with subject-matter and territorial jurisdiction is the Administrative Court for the place where the public institution to which the superior who rejected the request belongs is situated.
The action for the annulment of the rejection of a request for the expungement of a disciplinary penalty must be brought by the civil servant within 60 days of the date on which the decision of rejection was served.
Frequently Asked Questions
When is the personnel file opened, and is a disciplinary penalty entered in it?
The file begins to be kept when the civil servant is appointed to a public institution. Where a disciplinary penalty is imposed on the civil servant, that too is entered in the service record.
How long must one wait for the penalty to be expunged?
For a warning and a reprimand it is necessary to wait 5 years; for a deduction from salary and a suspension of step advancement, 10 years must have elapsed since the date of application. Once those periods have expired, an application may be made to the superior authorised to make appointments requesting that the penalty be expunged from the record.
What happens if the administration does not carry out the expungement?
Where one of the conditions for expungement has been met but the administration does not remove the entry from the file, the civil servant acquires the right to bring an action for the annulment of the administrative act.
If the request is rejected, before which court and within what period is an action brought?
A civil servant whose application is not granted although the conditions have been met may apply for annulment to the Administrative Court for the place where the institution to which the superior who rejected the request belongs is situated, within 60 days of the day on which the decision was served.
Is representation by a lawyer mandatory in administrative proceedings?
Save for limited exceptions, there is no requirement to be represented by a lawyer, and the position is no different before the administrative courts. That said, the technical nature of administrative law legislation, together with the short and strict time limits in the Administrative Procedure Act No. 2577, may lead to consequences that are difficult to remedy if the process is conducted by persons who are not lawyers.
The Independent Legal View
The entry of a disciplinary penalty in the service record before it has become final is a rule with serious practical consequences for the civil servant, since the entry can take effect in promotion and appointment processes before it has undergone any judicial scrutiny. For that reason, the legal strategy pursued against the penalty must from the outset cover not only the setting aside of the penalty but also when and by what route the trace it leaves in the record will be cleared.
The situation most frequently encountered in practice is the rejection of an application made after the expiry of the period on the ground that “the civil servant’s conduct during the period does not justify the request”. Although that assessment lies within the discretion of the administration, it is subject to review; whether the reasoning rests on concrete facts constitutes the substance of the proceedings.
In a particular file, we recommend that the following matters be addressed first:
- documenting the date on which the penalty was applied and calculating the 5-year or 10-year period by reference to that date
- checking whether the opinion of the disciplinary board was obtained in the case of a penalty of suspension of step advancement
- relying on the record, award and achievement entries from within the period in support of the application
- confirming whether penalties set aside following an objection or an action for annulment have in fact been removed from the file
- where a record amnesty is enacted, assessing separately whether its scope covers the particular penalty
- recording the date of service of the decision of rejection and monitoring the 60-day period for bringing an action
Independent Legal provides advisory services and conducts litigation throughout disputes arising from civil service disciplinary law, from the investigation stage to the expungement of the service record entry.