Criminal offense committed by a public official: what disciplinary sanction?

Misconduct in the performance of duties may justify disciplinary proceedings by the administration and criminal proceedings. The same facts may constitute both professional misconduct and a criminal offense.

In addition, the administration may also decide to initiate disciplinary proceedings against a staff member prosecuted for acts unrelated to the service in the following cases:

• The offense is incompatible with the exercise of a public office
• The offense damages the reputation of the administration
• The offense constitutes a serious breach of probity, liable to impair confidence in public action, etc.

However, disciplinary and criminal proceedings are independent. Irrespective of the decision of the criminal judge, the administrative authority may decide whether or not to initiate disciplinary proceedings against the staff member.

The decision of the criminal judge of any kind (conviction, dismissal, discharge, acquittal, dismissal) does not oblige the administration to take a decision along the same lines. Conversely, the judge is not bound by the decision of the administration to sanction or not sanction the staff member.

However, the conduct of the disciplinary proceedings is affected by the prosecution.

Duration of disciplinary proceedings

Where the administration is aware of facts liable to disciplinary action, it must initiate disciplinary proceedings within three years of the day on which it becomes aware of them. After this period of three years, the facts in question are time-barred, i.e. they can no longer be the subject of disciplinary proceedings. However, when the staff member is the subject of criminal proceedings, that three-year period is interrupted until the final decision to dismiss, dismiss, acquit, discharge or convict has been taken.

Alternative measures to the suspension of duties

Furthermore, depending on the seriousness and circumstances of the misconduct, the administration may decide to to suspend the agent from his duties. This measure is limited to 4 months. The staff member's situation must be finally settled at the end of the 4 months, that is to say that the administration must have referred the matter to the Disciplinary Board and decided on a penalty at the end of the 4 months. In the absence of a decision by the administration at the end of the 4 months, the staff member must be reinstated, regardless of the seriousness of the facts and even if the disciplinary procedure remains ongoing.

But again, when the officer is subject to criminal prosecution, it's a different situation. If the measures decided by the judicial authority or if the interests of the service so permit, the staff member may be the subject of one of the following decisions:

• The administrative authority may reinstate him
• Or the administrative authority may provisionally assign him to a post compatible with the obligations of judicial supervision to which he may be subject
• Or the administrative authority may, of its own motion, temporarily, in the case of an official, second him to another body or framework of uses to perform a job compatible with the obligations of judicial review.

The assignment or temporary secondment shall end when the staff member's situation is finally settled (i.e. the administration has taken the decision whether or not to penalize him).

Posting or temporary secondment may also end when the progress of criminal proceedings makes it impossible to extend it (in particular in the case of pre-trial detention).

If the staff member is unable or no longer able to work, the administration may reduce his remuneration. This deduction of remuneration may not exceed 50%. However, the Family Treatment Supplement (FTS) continues to be paid in full.

After the court decision

In the event of dismissal, discharge, acquittal or dismissal, the staff member shall be reinstated. The administration shall draw up a report indicating the date of reinstatement. If the staff member so wishes, the administration shall communicate these minutes, within one month of their establishment, to other staff members and to users, if the staff member is employed in a job in contact with the public.

The staff member shall be removed from the management without the need for disciplinary proceedings in the following cases:

• He is facing a conviction that results in the loss of his civil rights
• Or he is subject to a ban on holding public office
• Or he is convicted of a crime resulting in the loss of French nationality.

However, he may apply to the administrative authority for reinstatement at the end of the period of deprivation of civil rights or at the end of the period of prohibition from holding public office or in the event of reinstatement to French nationality.

This application for reinstatement shall be submitted to the opinion of the HEADING: titleContent. The administration is not obliged to respond favorably.