PUBLIC OFFICIAL. - Officialis, ab officio, is generally the natural person holding a public office. Their relationship with the State or generally with the public legal person can be succinctly characterized as a relationship of service. This concept serves to define in a generic way the position of persons who act as organs of public bodies.
I. GENERAL LEGAL NOTIONS
Commonly public officials are also designated by the names of authority, functionaries, employees, agents, without a precise meaning; but in legal doctrine the various terms are for the most part used with a determined and specific value.
Here too, however, the meaning varies according to the different legal systems, and within the same systems there is no lack of discussion, and at times, as in Italian law, the same concept is somewhat different in administrative law and in the legislation and doctrine of criminal law.
In Italian criminal law and in penal doctrine, a public official is one who exercises a public function either as the holder of an office or as a private individual (notary, tax collector, etc.). There are then public officials not only in the field of administration, but also in that of the legislative and judicial power, because here too there are public functions (art. 357, It. Penal Code; v. also POTERI PUBBLICI). In the science of administrative law, rather than of public officials one speaks of public functionary, meaning thereby an organ of the administration, invested with the exercise of public functions. Therefore, besides restricting the public official to a public administrative function, the quality of organ is emphasized, from which the criminal law prescinds.
Office or public function is a generic concept, which comprises the exercise of any faculty attributed by law, for the purpose of providing for the public interests. Nor should the function be confused with the public service in general or with a service of public necessity (art. 358-359, ibid.). For a public function to exist, there is need, besides the exercise, of another element, namely a certain discretionary power, which on the other hand does not belong to the person charged with a public service, to whom is entrusted a wholly material work, resulting from pre-established acts (art. 358, ibid.). Participation in the public function may be voluntary (voluntariness is rather common to the employment relationship) and obligatory or compulsory; and it is linked to a rule of law that enters into effect upon the occurrence of determined facts. Obligatory prestations are military service (v.) of conscription and that of jurors (v.).
Voluntary prestations are unpaid and paid. In the first case the service is rendered out of a sense of civic duty and for merely moral and honorific advantages that may derive from it (honorary functionaries). In the second case, those who voluntarily embrace a public service or function intend to make of that service or function their profession, and they are public employees. An employee is every individual who renders his professional and salaried work (from the concept of public official and of functionary, on the other hand, any idea of a patrimonial relationship with the public body on which he depends is excluded in itself) and makes of such activity, rendered in the interest of others, his stable occupation. There can therefore be public officials who are not employees even if paid, the character of professionalism being lacking (e.g., ministers), and employees who are not public officials when the office to which they are called is of an internal character. It is of interest to emphasize the specific obligations that they assume toward the State and individual citizens.
II. CENNI STORICI
The articulation of public functions into that complex of officials and employees that goes under the name of bureaucracy is of rather recent date, if, as it seems, one must trace it back to the time of Louis XV, but the fact of public function or public employment is much more ancient. Without going back to the Code of Hammurabi, in which there are evident traces of a system of bureaucratic functioning with its merits and its defects (F. Harper, The Code of Hammurabi King of Babylon about 2250 b. C., Chicago 1906, p. 11), it suffices to look at the history of Rome, especially in the imperial period. The late Empire, moreover (4th century), was endowed with a numerous and complex bureaucracy. However, bureaucratic organization, and legislative power entrusted to the representatives of the people as it is today, spread above all from the 19th century with the formation of liberal States, based on representative constitution. The State of today, furthermore, concerns itself with many activities that in ancient times were left to private individuals. Thus it has come about that the number of public offices, and consequently of officials, has greatly increased.
III. FUNCTIONS, TASKS AND OBLIGATIONS OF THE PUBLIC OFFICIAL
Society is bound toward individuals by particular obligations, which are summed up especially in obligations of distributive justice: to give each one his due, according to the proper proportion. It is also bound by particular rights, which likewise are summed up in the obligations of legal justice of citizens toward society. Being a moral person, society cannot discharge these tasks for itself and by itself, but needs physical persons who, duly invested, may discharge the obligations of society and attend to the satisfaction of its rights. This function is performed by public officials. The distribution of functions is made on the basis of the laws and varies from State to State. Besides strictly juridical obligations, however, there is a complex of rights and duties that springs from natural law itself.
The public official has the right: a) to administer his office in conformity with divine and human laws, without anyone being able to impede him in the free exercise of his duties; b) to receive the compensation, agreed upon and proportionate to the service rendered, in such a way as to be able to live suitably in accordance with his own rank and the service rendered; c) to remain in his office for the fixed time; d) to possess the rights of weekly rest and of holidays, as well as of welfare payments, etc.
In the field of the duties of the public official, the question is asked of what nature the obligation is that arises in the one who undertakes the exercise of a public office. Vermeersch declares without hesitation that it is a matter of an obligation of commutative justice toward society and toward individual citizens (cf. on the other hand Serafino da Loiano, Inst. theol. mor., III, Turin 1937, n. 730, p. 949). Society in fact has a strict right to be well administered. To this right there corresponds in the public official an obligation of justice, which also arises from the contract, when the office is freely accepted. The obligation of justice extends also to individual citizens, for whose benefit the public office has been instituted, so that these can demand that the public official render them, by strict duty, the exercise of his functions. The proximate source of this obligation is the law, which has established that the public office be exercised for justice in the interest of individuals (cf. A. Vermeersch, Theol. mor., II, 2nd ed., Bruges 1928, n. 507, p. 494).
Toward individual citizens the public official can also contract obligations of strict commutative justice. This can happen principally for three reasons: a) in the case, that is, where society has assumed contractual obligations, as a private person, toward individual citizens; b) in the case in which society has intended to bind itself by strict justice toward individual citizens, as in the case of the assignment of posts by competition; c) in the case in which the good of a citizen requires that he not find himself having to bear toward the State greater burdens than others for the needs of social living. Sometimes the obligations that bind the public official toward society are reconfirmed by a formal promise, accompanied by an oath. If it is a matter of a true oath (v.), then a bond of religion also arises. When finally, besides the public function, there is employment, the relationship and the juridical-moral obligations draw life also from the stipulation of a contract subject to the common norms of contracts, including those reflecting the cause, the consent, the capacity to contract, the technicalities, etc.
1. Due preparation
To hold public offices, adequate preparation is required. One who, while recognizing himself as unsuited to the office, nevertheless accepts it, acts deceitfully, violating the tacit agreement of a minimum of capacity, implicit in every offer and acceptance of a charge. However, an ordinary capacity suffices; the maximum is not required. Likewise he is bound to resign if at a later time he falls short in the capacity to discharge his task suitably.
2. Diligence
Once the office has been accepted, it must be executed with due diligence; ordinary diligence suffices, unless it has been otherwise agreed by express or tacit convention, or the common good itself requires something more. No inconvenience intrinsic to the exercise of one's duties excuses one from faithful service; for all this is included in a kind of tacit promise that is made with the acceptance of the office. Once the office has been accepted, one cannot renounce it before the time, fraudulently, in order to anticipate pension rights. And this is so by justice, so that whoever should use such frauds would be bound to restitution.
3. Manner of performing the public office
Among the many obligations of the public official, one is to have the dignity of the State respected in his own person, and to render himself useful to the State and to individual citizens. As compiler, executor, custodian of the laws, he cannot abuse his mandate, but must aim at the public good with justice, disinterestedness, attention and vigilance. When the public official is, by reason of his office, in contact with the public, a spirit of charity and understanding toward all is required in him. Every office, especially today, demands a certain degree of confidentiality in the matters that are handled. This confidentiality commonly goes under the term of professional secrecy (v.), which can be more or less rigorous according to the cases and the office one holds.
4. Abuses
One who administers a public office cannot extort money or gifts from others by reason of the performance of his offices, unless this is permitted by law or custom (v. ESTORSIONE). In the case of direct extortion, the obligation of restitution arises; in the case of acceptance, following an offer, this obligation does not exist, except after the sentence of a judge. In the first case in fact the title for demanding is lacking; in the second, on the other hand, the injustice is not entirely evident. Such abuses are ordinarily punished also by the penal laws. Thus in Italy, abuse of office (art. 323), private interest in official acts (art. 324), utilization of inventions and discoveries known by reason of office (art. 325), the omission or unlawful refusal of official acts (art. 328), abandonment (art. 333), forgery in public acts (art. 496), malversations to the detriment of private individuals (art. 315), peculation (arts. 314-16), extortion (art. 317), corruption in office (arts. 318 ff., 325 ff.). The misappropriation of money differently from the use for which it was destined, the abuse of the qualities and of the function inherent in one's office such as to constitute in others the «metus publicae potestatis» (art. 323), unlawful remunerations, the violation of official secrets (art. 326), the concealment, dispersion or distribution of acts, illegal arrest (art. 606), the undue limitation of personal liberty (art. 607), abuse of authority against arrested persons (art. 608), arbitrary searches and inspections (art. 609). Since it is not lawful to ask of anyone a thing that he cannot render without sin, it is not lawful to solicit an official not to fulfill his office conscientiously.
IV. THE PUBLIC OFFICIAL OF THE LEGISLATIVE FUNCTION
In present-day constitutional States the function of legislator is discharged by the legislative chambers, whose members are either deputies or senators (v. PARLAMENTO; SENATO). The legislator is bound to discharge well his task of cooperation in the formation of good laws, first of all by legal justice; but he also has an obligation deriving from commutative justice, which follows upon the acceptance of the mandate. Therefore a public official cannot cooperate in an openly unjust law, that is, one whose object is intrinsically evil, since injustice can never be sanctioned and made an enforceable law, whether it redounds to the harm of religion, or of the family, or of individual members of society, or of good morals. That premised, if anyone gives his vote in favor of a law that harms the common good, he commits a mortal sin and is bound to make reparation. Far more gravely does he sin who receives money to give his own vote (and even more so he who demands and exacts it). This action in fact produces grave harm to the State, even apart from whether the law be just or not. If one receives money to give his own vote to a just law, he is not bound to restore it to the State, which has suffered no injury, at least no immediate one; but there is an obligation of restitution toward the one who paid the money, since the obligation to vote for the just law already existed in the contract made with the State, in the very act of assuming the mandate. If, on the other hand, the vote was given for an unjust law, then restitution toward the State is obligatory: but it does not appear that there is an equal obligation also toward the one who disbursed the money. For if the law is unjust, a shameful contract was stipulated between the two, and since on the obligations deriving from such contracts there is a diversity of opinions among theologians, and since moreover the civil law commonly tends to deny an action to enforce their obligations, the principle may be applied: "Melior est condicio possidentis". A greater difficulty arises if the reward, in the hope of which the injustice of voting for the law was committed, is not money or a thing of assessable value, but a post or an office, to be granted by the one who has corrupted. Then the question is raised whether the guilty public official is bound or not to give up the post or office received. Perhaps a distinction is needed: if, by keeping the post or office, no harm is caused, as, for example, if the office presents a social utility, and no one else who had a right to that office has been excluded, he may retain it; otherwise, he must give it up.
In the matter of restitution, one must always keep in mind and distinguish whether the restitution must be made to the State or to the one who gave the money. As has been seen, there can be an obligation toward the former without there being one toward the latter. The obligation of restitution to the State then binds in solidum all those who voted for the unjust law: for all have formally and properly cooperated in committing the harm.
If the unjust law concerns the Church, the latter strikes with a special excommunication reserved in a special manner those who issue laws or decrees or provisions against her liberty or her rights (can. 2334). Deputies who vote in favor of such laws incur this same excommunication. The judicial or administrative authorities of the State, on the other hand, who receive appeals against the exercise of ecclesiastical jurisdiction or apply the aforesaid measures, although they sin through unlawful cooperation, do not incur this censure. The endorsement of unjust laws can also be brought about by a passive attitude: these are the forms of negative cooperation (non obstant, as the moralists say). These forms reduce to abstention, when instead it would be obligatory to vote, or to material absence from the legislative chambers, when the parliamentarian could and should be present. In this regard one recalls what was said above, namely that every public office must be discharged with normal diligence, though extraordinary diligence is not required. This must in any case be prudent and take account of the importance of the sessions, of the urgings made by public opinion and by responsible leaders and, above all, should it be expressed, of the norms laid down by ecclesiastical authority.
V. THE PUBLIC OFFICIAL IN THE ADMINISTRATIVE FUNCTION
The principles pointed out for deputies and senators must also be applied to those who have the task of safeguarding the administration of the State. All of these are bound by the obligation of legal and commutative justice toward the State, on account of the office they have assumed; indeed, as Vermeersch very rightly notes, to a public person, as the State is, greater diligence is owed than to private individuals. It will nevertheless be opportune to consider briefly certain forms of corruption, more common today, such as illicit favoritism and the sale of immunities from the laws.
1. Favoritism
Apart from deputies and, in Italy, also the majority of senators, who are elected by popular suffrage, all the other public officials are placed in their offices by other officials, already previously taken into service. Therefore the first question to be posed in this matter is whether there is truly an obligation to choose the most worthy for offices. A distinction must be made. If a competitive examination is announced, the winner of which acquires the right to appointment, there is an obligation of commutative justice to choose that same winner for the office. And if he is not elected, a grave injustice is committed, with the obligation on the part of the electors to make restitution to the winner and to the State, which suffers harm through the election of a less worthy person. If such an injustice is committed indirectly, inasmuch as the victory in the competition is given not to the one who merits it but to another, the obligation to compensate for damages does not arise, because such a manner of proceeding does not in itself undermine the morality of the election. If, on the other hand, the competition is not announced, many nonetheless think that there is still an obligation to elect the most worthy, although one cannot deny the probability, at least extrinsic, of the opinion of Vermeersch, who, distinguishing in this regard between public offices or charges properly so called, and secondary offices, in which the officials are properly only assistants (as, for example, secretaries, clerks and other attendants), asserts that the former should be conferred on the most worthy; as for the latter, it would be sufficient that those be elected who are simply worthy (cf. A. Vermeersch, op. cit., II, p. 530). It must be observed in any case that all offices and charges have been instituted to promote the common good. When, though it is possible, these offices are not conferred on the most worthy, no reasonable justification can be given for such a manner of acting. It must further be noted that he who appoints did not himself institute the office; he cannot therefore assume any power beyond that conferred on him either by law or by statutes. And it would be hardly fitting to accept as a principle that power may be conferred on the basis of acceptio personarum. Finally, he who confers an office on a less worthy person, when the assignment is not made by competition, is not bound to make restitution to the more worthy, because only distributive justice is injured. But if real harm is caused to the State, there is a violation of commutative justice and the obligation of restitution arises.
2. Legal evasions
If a public official favors, in exchange for compensation, an evasion of the law, he is always bound to make restitution to the State. He is also bound to make restitution to the private individual, if the money was demanded. He is not bound, however, if the money was granted spontaneously (v. above). A public official of lower rank, whom a superior commands to endorse an evasion of the law, is bound to resist in all possible ways. He may only submit to the unjust command when, by opposing it, he would himself suffer a grave inconvenience. In conclusion, everything is summed up in these two principles: that nothing be done harmful to the State, and that its interests be sufficiently provided for with that diligence which the common good requires and which was implicitly promised at the act of accepting the office (Vermeersch, op. cit., II, pp. 480-81).
3. The bureaucratic class
Public officials, especially those more permanently established in the administrative role, tend almost imperceptibly to differentiate themselves from the other classes and to constitute almost a class apart, whose members have in common, besides interests and activities, also a kind of forma mentis, an exaggerated respect for the legal formula, for the authority of the State, and other habits. They feel themselves, and in fact are, the depositaries of the permanent technical functions of the State, above and beyond the fluctuations of governments, expressed by parties. This gives rise to the formation of a bureaucratic class, which becomes all the stronger as the authority of the State is consolidated. It cannot, however, nor must it, degenerate into a kind of caste, which selfishly segregates itself from the people and wishes to regulate everything absolutely from on high, turning into a harsh, unjust and burdensome mechanism that weighs like a nightmare on the whole of public life.
VI. THE PUBLIC OFFICIAL IN THE JUDICIAL FUNCTION: v. GIUDICE; MAGISTRATO.