Heard in oral public trial by the Ninth Section of the Provincial Court of Málaga, case file PA 2017/21, corresponding to Preliminary Proceedings no. 80/10 of Court of First Instance and Investigation no. 5 of Estepona, for the prosecution of an offence of misconduct by public officials (prevaricación) against the town’s former mayor, Doña Antonia Muñoz Vázquez, the Human Resources Councillor Diego Díaz Jiménez, the president of the Manilva sports society Francisco M. F. and the legal adviser Aitor M. C.
According to the ruling, from the arrival of Antonia Muñoz at Manilva Town Hall a recruitment process took place that completely disregarded the legal requirements, specifically articles 13 and 55 of the Basic Statute of Public Employees (2015), which establish that staff must be hired in accordance with the principles of merit and ability and criteria of suitability, and through procedures that guarantee publicity and open competition. The existing public employment offer was abandoned, in the face of opposition from the Town Hall’s own auditing department, which pointed to the lack of budget allocation to meet the payroll costs of the contracts being made. Indeed, the auditor’s report, folio 2960 (30-6-2011), records, among many other shortcomings, that at that time there were up to 50 posts without budget allocation.
APPARENTLY NORMAL COMPANIES
The Fundación de Desarrollo Manilva and the Club Deportivo Manilva were the two entities, with their own legal personality and initially independent of the Town Hall, used to hire staff for a wide variety of jobs without having to go through any selection procedure. Subsequently, the Town Hall’s human resources department was responsible for drawing up the payslips, which were paid by the Town Hall itself with public money.
The Court considers it proven that there were at least between 700 and 900 contracts of this kind, and so the Town Hall suddenly found itself with workers who had not even been legally appointed and who had to be paid at the end of the month.
Of particular importance is the auditor’s report at folios 2,554 and 2,556 dated 21-6-07, drawn up precisely at the request of the Mayor’s Office, which states: «The biggest problem at present is staff, most of whom have been hired without public call through the systems of competition, competitive examination or examination, and without respecting the constitutional principles of equality, merit, ability and publicity. Apart from four administrative staff, one technical engineer, the local police officers, the secretary and the auditor, the rest of the staff as at 31-5-07, out of 518 municipal employees, are in a situation of temporary employment».
FOR POLITICAL REASONS
After becoming aware of this report, the new mayor, far from resolving the problem of all those staff having no budget allocation, hired more than four hundred people.
The mayor had been warned beforehand by the Town Hall’s auditor (these auditor’s reports recur throughout the proceedings, from folio 160 to 2966, and were all confirmed at the oral trial by their author, Ms C. L., who stressed that she had warned that there was even no money to pay, with the mayor ignoring the situation).
Asked what might explain why the same course was continued and why the public call for 201 posts made by the previous council was not respected, the witness replied that it was for political reasons.
The Court therefore accepts one of the arguments put forward by the defence, that the mayor’s lack of experience, together with the inertia in the town’s hiring practices inherited from previous councils, led her to be unaware of such illegality.
Furthermore, given the statements of the witnesses who testified at the trial that the report of such serious criminal activity was agreed in the works council to put pressure on the mayor so that she would negotiate with them, and that once this was achieved, they wanted the proceedings to be shelved, the Court can only regret that such a crude and coarse use of the Administration of Justice was attempted by those who should be working for the common good.
HIRED AND MOVED TO PERMANENT CONTRACTS
Among the contracts that appear in the ruling by way of example, out of the more than 700 investigated (hence the slowness and the amount of documentation gathered in these proceedings), we find the following contracts made by the mayor, among others:
– Mª Carmen A. P.: Hired on a temporary basis on 1-8-07, her contract becoming permanent on 1-2-2009.
– Francisca A. M.: Hired on a temporary part-time basis on 25-5-2010 as a cleaner.
– Antonio A. C.: Hired on a temporary full-time basis from 25-5-2009 to 18-5-2012, a contract which appeared as permanent on 31-3-11.
– Francisco Jesús B. R.: Hired on a permanent full-time basis as a draughtsman (folios 647 to 649).
– Inmaculada C. H.: Hired as a nursery assistant on 9-10-2007, her contract being permanent as at 31-3-2011.
– Ana María G. G.: Hired on a temporary basis on 15-9-2008, her contract becoming permanent full-time on 24-6-2009, being permanent as at 31-3-2011.
– Yolanda L. A.: (folios 975 and 976) Hired on a permanent seasonal (fijo discontinuo) basis on 1-10-2008, the contract being changed to permanent full-time on 22-6-2010, and as at 31-3-2011 she appears as permanently employed.
– Cristóbal L. B.: (folio 983) Hired on a permanent full-time basis.
– Antonio L. L.: (folios 996 and 997) Hired on a permanent full-time basis on 1-11-2007; as at 31-3-2011 he was recorded as permanent.
– Mª Rocío L. M.: Folios 1002 and 1003, hired on a temporary full-time basis on 1-5-2007, with the contract changed to permanent on 23-11-2007. As at 31-3-20011 she appears as permanent staff.
– Santiago L. D.: (folios 1012 to 1015) Hired on a permanent full-time basis on 1-8-2007 as an administrative officer. His contract was changed to commerce and industry technician on 16-1-2009. He appears as permanently employed as at 31-3-2011.
– Eva M. R.: (folio 2548) Hired on a temporary part-time basis on 31-1-2011. As at 31-3-2011 she is recorded as permanent staff.
– Juan M. C.: (folios 1051 and 1052) Hired on a permanent full-time basis on 6-07-2007. As at 31-3-2011 he is recorded as permanent staff.
– José M. G.: (folios 1059 and 1060) Hired on a permanent full-time basis on 1-8-2007. As at 31-3-2011 he is recorded as permanent staff.
– Miguel M. U.: (folios 1084 and 1085) Hired on a permanent full-time basis on 18-11-2007. As at 31-3-2011 he is recorded as permanent staff.
– María M. M. (folio 2032) Hired on a temporary part-time basis on 2-2-2009,2 and 0-09-2010. As at 31-3-2011 she is recorded as permanent staff.
– Isabel M. Q. (folios 1777, 1830, 1860, 1871 and 1975) Hired on 22-10-08 and 3-11-09, with her hours extended to 16 hours per week on 5-11-2010.
– Rafael M. C.: Folio 1143, hired on a permanent full-time basis.
– Miguel M. O.: (folios 1167 and 1168) Hired on 1-08-2007 on a permanent full-time basis.
– Mª del Carmen M. P.: (folios 1167 and 1168) Hired on a temporary basis on 1-08-2007 and her contract became permanent on 1-08-09.
– Ildefonso N. B.: (folios 1173 to 1175) Hired on 1-05-09 on a permanent full-time basis.
– Fernando Q. M.: (folios 1257 and 1258) Hired on a permanent seasonal (fijo discontinuo) basis on 1-10-2008, becoming a permanent full-time contract on 1-04-2010.
– Fernando S. A.: (folios 1386 to 1368) Hired on a temporary full-time basis on 1-08-2007, his contract being changed to permanent full-time on 1-12-2010. As at 31-3-2011 he is recorded as permanent staff.
– Gabriel T. L.: (folios 1408 and 1409) Hired on 1-10-2008 on a seasonal full-time basis, and on 22-06-2010 his contract was changed to permanent full-time.
– José Manuel V. C.: (folios 1461 and 1462) Hired on a temporary basis on 1-02-2007, his contract being changed to permanent full-time on 9-3-2007.
– Ernesto V. O.: (folios 1466 to 1471) Hired on a temporary basis on 1-09-2007, his contract being changed to permanent full-time on 1-09-2008.
THE COURT’S RULING
Antonia Muñoz is found, in this part of the case, criminally responsible as the author of a continuing offence of administrative misconduct (prevaricación) and is sentenced to special disqualification from any public office or employment for a period of nine years and to pay a quarter of the costs of the trial.
Aitor M.C. is convicted as the person responsible for an offence of administrative misconduct (prevaricación) by necessary cooperation and sentenced to 1 year and 9 months of special disqualification from any public office and employment and to pay a quarter of the costs of the trial.
Both Diego Díaz and Francisco M. are acquitted in this ruling, as the court considers that they merely acted as signatories under the orders of Muñoz, who at no point in the proceedings denied that she selected the people hired. She is therefore considered the true author of the administrative act, rather than the member of the administration who signed the documents, and so they will also be exempt from paying the costs of this trial.
PENDING CASES
This is the first ruling of the three into which the «Manilva Case» network was divided, which has been under investigation for more than 11 years. The other two parts of the case, the alleged embezzlement of public funds and misconduct (prevaricación) over the award of municipal contracts to family businesses, are continuing. In the trials for the part investigating the alleged transfers of money to an urban development body in the municipality, the Public Prosecutor’s Office is demanding that the accused and the urban development body El Hacho compensate Manilva Town Hall with 217,159 euros, the amount allegedly embezzled.
For this part of the case, which has yet to be tried, the Public Prosecutor’s Office is seeking eight years in prison for the former mayor, accusing her of these offences on a continuing basis; for the current mayor, Mario Jímenez, and four others it is seeking four years in prison and 17 years of disqualification from public employment or office.
