Legal framework of public administration in venezuela

In view of the problem raised within the Public Administration in the field of Human Resources Management, we have realized that said problem is due to the fact that they are the same laws, that is, the legal framework that regulates human resources in the Public Administration, those that cause these problems, in part, due to misinterpretation, or non-application, but in my opinion a new factor is included to be considered: the multiplicity of laws that exist, when it could be a single Law the one that will regulate all matter. The Administrative Career Law (LCA), formulated years ago, is the one that should contain all the necessary material to regulate Human Resources in Public Administration.

In this paper I will try to outline the background to the LCA, and the different laws that regulate Human Resources in Public Administration. Since there is a great variety of laws that it is necessary to review in order to talk about this matter.

2- Brief History of the Laws that regulated Human Resources before the promulgation of the Administrative Career Law.

Venezuela, like most countries with a liberal democratic structure and court, do not have a unitary conception of the world of work or of the worker himself. It distinguishes the provision of work carried out to the different organs of the public Power from that made to the so-called private sector, just as it distinguishes between those who provide their service, who sell their workforce to private employers or to public entities as employees., of the borrowed as workers. But this is not only, there is no general regime for the former, those known in general terms, as public officials. What's more, not even for the servers of the National Public Administration.

It is from the year 1958 when, in this country, as a consequence of the political-social transformations that have occurred, the approach and analysis of the civil service matter begins with a certain technical criterion within the global context of the necessary institutional reform of the State, which then arises. It is in the year 58 that it must start to determine the stages that, first with the Constitution of 1961 and later with the promulgation of the LCA, have outlined the Civil Service regime in Venezuela. It is in that year when the administrative reform process begins, which has its birth certificate in the Herbert Emmerich Report, prepared for the UN Technical Assistance Administration. Shortly after, by Decree No. 287 of 06/27/1958, the Public Administration Commission (CAP) was created,organism on which the administrative reform process fell for a certain time, whose work is contained in two volumes of undoubted interest not only historical but of conceptual validity.

By Decree No. 28 of 04/09/1969, the CAP was assigned to Cordiplan. Decree No. 103 of 07/23/1969 puts into effect the CAP Regulation and Decree No. 141 of 09/17/1969 creates the Administrative Reform Councils and the Administrative Reform Coordinating Offices. On 05/13/1970, instruction RA-1 of the President of the Republic was issued, on the general guidelines of the Administrative Reform in the National Public Administration.

In 1974, with the change of government, the reform process was restructured. CAP loses validity and is created by Decree No. 11 of 03/22/1974 (Official Gazette (GO) No. 30358 of the same date) the ad-honorem Commission for the Study of the Comprehensive Reform of Public Administration, of the Institutes Self-Employed and State Companies (CRIAP).

Finally, in this never-ending process of restructuring and renewal, the Presidential Commission for State Reform (COPRE) was created.

In the specific aspect, the CAP saw its work materialize with the promulgation on 11/14/1960 of the Personnel Administration Regulations for National Government Servants (RAPSGN), according to Decree No. 394 (GO No. 26406 of 11/14/1960), which constitutes the immediate antecedent of the LCA and in which the fundamental institutions of the same are collected. It expresses its temporary nature "until regulations are issued on the Administrative Career" (First recital). It is provided that the highest authority is the President of the Republic (art. 1). Working personnel and those subject to special laws are exempted from its scope. It applies to all persons who provide service to the dependencies of the National Government and the Autonomous Institutes on a full or part time basis (art. 2). In art.3rd, it is stated that the Public function will be developed through adequate programming of the activities that are specified. It establishes that the Ministers and Presidents of Autonomous Institutes are responsible for the development of the Public function in their respective dependencies, in accordance with the provisions of the CAP, which, until the LCA is approved, will act as the central body to guide and coordinate the function of National government personnel (art. 4). The attributions of the Chiefs of the Personnel Division are established (art. 5 and 6). It defines what is understood by the Personnel Administration system (article 7). Qualifies who are the employees of free choice and appointment and guides a selection system by competition, for the provision of the rest of the positions (art. 8º, 9º and 10º).It refers to who must make the appointments (art. 11). Establishes the trial period (art. 12), as well as the efficiency rating through periodic evaluation (art. 13). It contemplates a training system (art. 14º).

In the same year, 1960, the CAP introduced a draft LCA before the legislative chambers, approved in the first discussion in the Chamber of Deputies and passed to be discussed in the Social Affairs Commission. In 1967 the discussion was restarted with the modifications proposed by the commission, but it was suspended when a new bill was introduced, which began to be discussed on 06/08/1970, sanctioned by the Senate on 06/29/1970. On 08/25/1970 the chambers sanctioned the project, which was promulgated on 09/03/1970 and published in GO No. 1428 on Friday 09/04/1970.

Therefore, until the entry into force of the LCA, there is a long way to go, but as one author says: “The Administrative Career Law is not, however, a completely innovative norm in the Venezuelan system, in the sense that it lacks of historical precedents, but that we could consider constitutes the culmination of a long institutional process. On the one hand, prior to this legal text, a series of regulatory norms existed, spread over a series of legal norms and, on the other, statutes of some categories of officials ”.

3- The Public Function in Venezuela.

3-1 Constitutional Budgets.

The current constitution (1961), in Title IV of the Public Power, First Chapter, General Provisions, deals with public officials in arts. 119, 121, 122, 123, 124 and 125, which, respectively, refer to the ineffectiveness of the usurped authority and the nullity of its acts, because the exercise of public Power carries individual responsibility for abuse of Power or for violation of the Law, to the administrative career, the prohibition of holding more than one paid public office unless it is those expressly exempted, as well as that the acceptance of a second assignment that is not one of the excepted ones implies the resignation of the first, except as provided for Senators and Deputies (art. 141) or in the case of substitutions while the incumbent is not definitively replaced,to the prohibition of hiring a person or on behalf of another person from the Republic, States or Municipalities, except for the exceptions established by the Laws, to the prohibition of accepting positions, honors or rewards from foreign governments without the authorization of the Senate.

Of all of them, the content of art. 122: “The Law will establish the administrative career by means of the norms of entry, promotion, transfer, suspension, retirement of the employees of the National Public Administration, and will provide for their incorporation into the social security system. Public employees are at the service of the State and not of any political bias. Every public official or employee is obliged to comply with the requirements established by law for the exercise of their position ”.

3-2 Plurality of Regimes

There is a plurality of regimes of officials of the National Public Power, which is the most relevant and which in a certain way is the one who dictates the rule to the others. Within it, the one corresponding to its different functions or Powers (Executive, Legislative and Judicial) must be distinguished. Thus, there is an official regime of the Executive Power in its meaning of National Public Administration, a regime for the Legislative Power, and another for the Judicial. Within the regime of the National Public Administration it is necessary to distinguish the one that corresponds to the different sectors of the same (it is the reason for this work) (Central Public Administration, Decentralized Public Administration and Public Administration with functional autonomy).

3-3 Official regime of Public Administration personnel excepted in the Administrative Career Law.

The LCA in art. 5th except a series of officials of the National Public Administration, to whom we will refer below:

1. Foreign service officials covered by the Foreign Service Personnel Law (LPSE) and the Organic Law of the Consular Service (LOSC), dated 01/21/1962 and 10/28/1936, partially amended on 11/27/19 1984, respectively. The art. 5th, 2nd ordinal LCA expressly excludes them. However, the contentious-administrative jurisprudence has repeatedly decided that the administrative and technical employees of the MRE are subject to the LCA.

2. The members of the National Armed Forces in their capacity as such and of the State security forces (art.5º, ordinal 4th LCA). The members of the FAN are governed by the Organic Law of the National Armed Forces (LOFAN). Administrative employees of the Ministry of Defense are governed by the LCA and its regulations.

3. The 5th ordinal, of the 5th LCA article, exempts “The members of the executive, academic, teaching and research staff of the National Universities”. Different aspects or problems raises this provision. There is no doubt whatsoever regarding the indicated personnel serving in the National Universities, which in accordance with the Universities Law enjoy full autonomy. The issue is more complicated in relation to the administrative staff of the universities. Traditionally, the jurisprudence of the CPCA has held that such personnel are governed by the LCA, especially with regard to rights and obligations, without this meaning that the University Councils cannot dictate rules on the administrative personnel regime, so that, administrative officials are governed by the LCA,Since this is the general statute for the regulation of public employment, but based on the regulatory autonomy agreed by the universities, they can dictate specific regimes that will be applied in addition to the LCA.

4. There is also a group of officials of the National Public Administration, who are excluded from the application of the LCA, by the special Laws that govern it. Among them are the following:

• Officials of the Central Bank of Venezuela (BCV). They are governed by its Law, which expressly prohibits strikes and collective bargaining, by the Personnel Statute, and by the Personnel Administration Regulations for the members of the Central Bank's Protection, Custody and Security Corps. It prohibits unionization, strike and collective bargaining. Officials of the Venezuelan Investment Fund (FIV) who are governed by its Statute and by the Personnel Statute of the Venezuelan Investment Fund Officials of the Instituto Autónomo de Ferrocarriles del State, are governed by its Law of 08/27/1981. Officials of the Venezuelan Postal Telegraph Institute (IPOSTEL) are governed by the Organic Labor Law. Teaching staff of the Ministry of Education,is governed by the Organic Law of Education and the Organic Labor Law, and by the LCA in cases not contemplated in the previous one. The staff of the Intergovernmental Fund for Decentralization (FIDES), is governed as of 10/16/1995 by the Special Regime and Internal Statutes of the Employees of the Intergovernmental Fund for Decentralization.

5. Regarding the officials of the National Public Administration with functional autonomy, that is, those who provide their services to such as the Public Ministry (MP), Comptroller General of the Republic (CGR), National Electoral Council (CNE) and Council of the Judiciary (CJ), the LCA only exempts (art. 5º, ordinal 3º) the officials of the MP and those of the CNE.

• § National Electoral Council: CNE officials are expressly excluded from the application of the LCA, in ordinal 3 of art. 5th, ejusdem. They are governed by the Organic Law on Suffrage and Political Participation, dated 11/13/1997 and by its Personnel Statute, dated 11/10/1982.§ Public Ministry: The Organic Law of the Public Ministry (LOMP), dated 16 / 09/1970 classifies the personnel at its service as civil servants and employees, so it is only civil servants that the LOMP is applied to, while employees are governed by the LCA.§ Judicial Council: the Magistrates of the CJ are governed by the Organic Law of the Council of the Judiciary (LOCJ), dated 08/24/1988 and by the Regulations of the Council of the Judiciary, insofar as it has not been repealed by that.

4- The Organic Labor Law. Analysis of art. 8th.

Leaving aside the considerations made throughout this work, Venezuela has accepted, without hesitation or ambiguity, the statutory thesis. Both the more general regime of the LCA as well as the particular or special in force, respond to such guidance. It, then, conforms all the legislation and jurisprudence in this regard.

According to art. 8th: "National, State or Municipal public officials or employees shall be governed by the regulations on National, State or Municipal Administrative Careers as the case may be, in everything related to their entry, promotion, transfer, suspension, retirement, compensation system, stability and jurisdictional regime; and they will enjoy the benefits agreed by this Law in everything not provided for in those regulations.

Public officials or employees who hold career positions shall have the right to collective bargaining, to the peaceful resolution of conflicts and to strike, in accordance with Title VII of this Law, insofar as it is compatible with the nature of the services that provide and with the demands of the Public Administration.

Workers at the service of public entities will be covered by the provisions of this Law ”.

Of the three paragraphs in the article, the last one does not require further analysis. Indeed, the protection of labor legislation is for all workers at the service of public entities, whatever their class and nature. The first two, on the other hand, do deserve to be analyzed and studied in some depth. Regarding the first, Caballero Ortiz points out that there are two interpretations. The first, relative to the fact that the administrative career regimes will only deal with what is "related to their entry, promotion, transfer, suspension, retirement, remuneration system, stability and jurisdictional regime", that is, the aspects that the Constitution (art 122º) includes as part of the administrative career, if they are regulated by a statute (entry, promotion, transfer,suspension and withdrawal) and to which are added others included in the LCA itself (remuneration system, stability and jurisdictional regime). In accordance with this position, the LOT will regulate "because they are not provided for in those regulations", all other matters, so its application regime would be very broad, since it would include rights with the exception of stability, promotion and remuneration, duties, permits and licenses and disciplinary regime. Such an interpretation, as observed, does not seem to respond to the very nature of the public service and does not appear to respond to the spirit of the legislator.Therefore, its application regime would be very broad, as it would include rights with the exception of stability, promotion and remuneration, duties, permits and licenses, and disciplinary regime. Such an interpretation, as observed, does not seem to respond to the very nature of the public service and does not appear to respond to the spirit of the legislator.Therefore, its application regime would be very broad, as it would include rights with the exception of stability, promotion and remuneration, duties, permits and licenses, and disciplinary regime. Such an interpretation, as observed, does not seem to respond to the very nature of the public service and does not appear to respond to the spirit of the legislator.

It is necessary to specify that the rights enshrined in the LCA and, in principle in accordance with art. 8 of the LOT are exclusive to officials who hold career positions, so that it would not correspond to career officials in exercise of a position of free appointment and removal; On the other hand, if they will be beneficiaries of them, those officials who, without being a career, hold such a position (probationary period, substitution, etc.).

To conclude, it should be noted that the treatment that the LOT gives to public officials is far from constituting a single regime. This "patchwork quilt" has not brought anything other than doctrinal and jurisprudential confusion, without having modified, at all, the statutory regime enshrined in the Constitution and the LCA. “The legislator could have been radical and he was not, he should have been realistic, adjusted to the times and was manipulative; He tried to temporize and bogged down the matter ”.

5- The Administrative Career Law. Structure and scope of application.

We have analyzed the process that culminated in the entry into force of the LCA. The LCA is inspired, rather it can be said, that it follows step by step the dictates of the statutory doctrine. In effect, a guideline, establishes a statute; that is, a specific legal regime; enshrines the career, professionalism as a permanent provision of the service. In this sense, it includes fundamental principles of the closed structure system, but at the same time, it incorporates others of the open structure system, such as the classification of positions. In reality, the LCA goes beyond the establishment of the administrative career; hence, the inadequacy of its name, since it certainly includes a general system of Public Function. However, the Law does not respond to a true organic sense, often, not even logical,escapes from fixing basic concepts, attributes to a wide field to the National Executive for its 'interpretation' by regulatory means, is hesitant, timid and even shameful regarding the treatment and recognition of institutions and concrete situations of the provision of public service, it is, in our days, in cases inactual. Notwithstanding all this, it constitutes, constitutes, even today, a valid and useful instrument for professionalizing and objectifying the provision of public service. The evil is not in the Law, which if it could be better is, in any case, perfectible, the evil is more in those who have the responsibility of applying it, who, frequently, neither apply it or misapply it, or distort and violate it or they deviate, to subject their provisions to personal, partisan or group interests.attributes to a wide field to the National Executive for its 'interpretation' by regulatory means, it is hesitant, timid and even shameful regarding the treatment and recognition of institutions and specific situations of the provision of public service, it is, in our days, in cases inactual. Notwithstanding all this, it constitutes, constitutes, even today, a valid and useful instrument for professionalizing and objectifying the provision of public service. The evil is not in the Law, which if it could be better is, in any case, perfectible, the evil is more in those who have the responsibility to apply it, who, frequently, neither apply it or apply it badly, or distort and violate it or diverted, to subject their provisions to personal, partisan or group interests.attributes to a wide field to the National Executive for its 'interpretation' by regulatory means, it is hesitant, timid and even shameful regarding the treatment and recognition of institutions and specific situations of the provision of public service, it is, in our days, in cases inactual. Notwithstanding all this, it constitutes, constitutes, even today, a valid and useful instrument for professionalizing and objectifying the provision of public service. The evil is not in the Law, which if it could be better is, in any case, perfectible, the evil is more in those who have the responsibility to apply it, who, frequently, neither apply it or apply it badly, or distort and violate it or diverted, to subject their provisions to personal, partisan or group interests.

Regarding the scope of its application, to whom and in what circumstances it applies, it is in art. 1 where the same is provided. Indeed, it is said that "it regulates the rights and duties of public officials in their relations with the National Public Administration…". therefore, public officials are its recipients; the regulation of their rights and duties in the specific case of the National Public Administration, not of the entire State, but of one of its powers: the Executive Branch in administrative function, that is, as the National Public Administration. The State Power and the Municipalities are outside its scope, and within the Executive Power, it is limited to the latter as National Public Administration. It excludes the Legislative and Judicial Power.

6- Bibliography