OFFICIAL, PUBLIC. – *Officialis*, from *officium*, is in general the physical person holding a public office. His relationship with the State or, in general, with the public legal entity can be succinctly described as a relationship of service. This concept serves to define, in a generic way, the position of persons acting as organs of public entities.
I. GENERAL LEGAL NOTIONS
Public officials are commonly also designated by the terms authority, functionary, employee, agent, without precise meaning; but in legal doctrine the various terms are most often used with a determined and specific value.Even here, however, the meaning varies according to different legal systems, and within the same systems there are not lacking discussions, and sometimes, as in Italian law, the very concept is somewhat different in administrative law and in the legislation or doctrine of criminal law.
In Italian criminal law and in penalistic doctrine, a public official (*pubblico ufficiale*) 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 legislative and judicial power, since here too public functions are exercised (Italian Penal Code, art. 357; *v.* also PUBBLIC POWERS). In the science of administrative law, more than of public officials one speaks of public functionaries, meaning thereby an organ of the administration invested with the exercise of public functions. Thus, besides restricting the public official to a public administrative function, the quality of organ is emphasized, from which penal law prescinds.
Public office or function is a generic concept, which includes the exercise of any faculty attributed by law, with a view to providing for public interests. Nor should the function be confused with public service in general or with a service of public necessity (arts. 358–359, *ibid.*). For a public function to exist, besides the exercise, another element is necessary, namely a certain discretionary power, which instead does not belong to the person charged with a public service, to whom a purely material task is entrusted, resulting from predetermined acts (art. 358, *ibid.*). Participation in the public function can be voluntary (voluntariness is rather common to the employment relationship) or obligatory or coercive; and it is connected with a legal norm that comes into effect upon the occurrence of determined facts. Obligatory services are military conscription (*v.*) and jury service (*v.*).
Voluntary services are gratuitous or remunerated. In the first case, the service is rendered out of a sense of civic duty and for merely moral and honorary 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 it their profession, and these are public employees. An employee is any individual who professionally and stipendially renders his work (the concept of public official and functionary excludes, for its part, any idea of patrimonial relation with the public entity on which he depends) 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 remunerated, lacking the character of professionalism (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 important to highlight the specific obligations that they assume toward the State and individual citizens.
II. HISTORICAL NOTES
The articulation of public functions in that complex of functionaries and employees known as bureaucracy is of rather recent date, if, as seems, one must go back to the time of Louis XV, but the fact of the public function or public employment is much older. Without going back to the Code of Hammurabi, in which evident traces exist of a bureaucratic system with its merits and defects (F. Harper, *The Code of Hammurabi King of Babylon about 2250 b. C.*, Chicago 1906, p. 11), it is enough to look at the history of Rome, especially in the imperial period. The late Empire (4th century) was equipped with a numerous and complex bureaucracy. However, bureaucratic organization and legislative power entrusted to representatives of the people as it exists today spread especially from the 19th century with the formation of liberal States based on representative constitutions. The modern State then 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 functionaries, has greatly increased.III. FUNCTIONS, TASKS, AND OBLIGATIONS OF PUBLIC OFFICIALS
Society is bound toward individuals by particular obligations, which are summed up especially in obligations of distributive justice: to give to each his due, according to proper proportion. It is bound also by particular rights, which likewise are summed up in the obligations of legal justice of citizens toward society. As a moral person, society cannot itself fulfill these tasks but needs physical persons who, duly invested, fulfill the obligations of society and see to the satisfaction of its rights. This function is fulfilled by public officials. The distribution of functions is made on the basis of laws and varies from State to State. Besides the strictly legal obligations, there is however a complex of rights and duties that arises from natural law itself.The public official has the right:
a) to conduct his office in accordance with divine and human laws, without anyone being able to hinder him in the free exercise of his duties;
b) to receive the agreed-upon compensation, proportionate to the service rendered, so as to be able to live suitably in accordance with his rank and the service rendered;
c) to remain in his office for the fixed time;
d) to possess the rights of weekly rest and holidays, as well as welfare remunerations, etc.
As to the duties of the public official, the question arises of the nature of the obligation that arises in one who undertakes the exercise of a public office. Vermersch declares outright that it is an obligation of commutative justice toward society and toward individual citizens (cf., however, Serafino da Loiano, *Inst. theol. mor.*, III, Turin 1937, n. 730, p. 949). Society indeed has a strict right to be well administered. To this right there corresponds in the public official an obligation of justice, which arises also from contract when the office is accepted freely. The obligation of justice extends also to individual citizens, for whose benefit the public office was instituted, so that they can demand that the public official exercise his functions out of strict duty. The proximate source of this obligation is the law, which has established that the public office be exercised with justice in the interest of individuals (cf. A. Vermersch, *Theol. mor.*, II, 2nd ed., Bruges 1928, n. 507, p. 494).
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Towards individual citizens, the public official may also incur obligations of strict commutative justice. This can occur principally for three reasons: a) in the case that the society has assumed contractual obligations, as a private person, towards individual citizens; b) in the case that the society has intended to bind itself by strict justice towards individual citizens, as in the case of assigning positions through competition; c) in the case that the good of a citizen requires that he not bear, towards the State, greater burdens than others for the needs of social living. Sometimes the obligations that the public official extinguishes towards society are confirmed by a formal promise, accompanied by an oath. If this is a true oath (v.), then a bond of religion also arises. When, finally, besides the public function, there is employment, the relationship and juridical-moral obligations also arise from the stipulation of a contract subject to the common norms of contracts, including those concerning cause, consent, capacity to contract, form, etc.
1. Due Preparation
To hold public office, adequate preparation is required. Whoever, while recognizing himself as suitable for the office, nevertheless accepts it, acts deceitfully, violating the tacit agreement of a minimum of capacity implicit in every offer and acceptance of an assignment. However, ordinary capacity suffices; the highest degree is not required. Likewise, one is bound to resign if, at a later time, one’s capacity to perform the office adequately is diminished.2. Diligence
Once the office is accepted, it must be carried out with due diligence; ordinary diligence suffices, unless otherwise agreed by express or tacit convention, or the common good itself demands something more. No intrinsic inconvenience in the exercise of one’s duties excuses from faithful service; for all this is included in a kind of tacit promise made in accepting the office. Once the office is accepted, one cannot renounce it prematurely, fraudulently, to anticipate pension rights. And this is required by justice, so that whoever employs such deceit would be bound to make restitution.3. Manner of Fulfilling Public Office
Among the manifold obligations of the public official is that of upholding, in one’s own person, the authority of the State and rendering oneself useful to the State and to individual citizens. As compiler, executor, and guardian of the laws, one may not abuse one’s mandate but must aim at the public good with justice, disinterestedness, care, and vigilance. When the public official, by reason of his office, is in contact with the public, a spirit of charity and understanding for all is required. Every office, especially today, demands a certain degree of confidentiality regarding matters handled. This confidentiality is commonly referred to as professional secrecy (v.), which may be more or less strict depending on the case and the office held.4. Abuses
Whoever manages a public office may not extort money or gifts from others on account of the performance of his duties, unless 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 arise unless after a judicial sentence. In the first case, indeed, there is no legal title for demanding payment; in the second, the injustice is not entirely clear. Such abuses are ordinarily punished by penal laws as well. Thus in Italy, abuses of office (art. 323), private interest in official acts (art. 324), the use of inventions or discoveries known through office (art. 325), unlawful omission or refusal of official acts (art. 328), abandonment (art. 333), forgery in public documents (art. 495), embezzlement against private individuals (art. 315), embezzlement (art. 314–16), extortion (art. 317), corruption in office (art. 318 ff., 325 ff.), diversion of funds contrary to their intended use, abuse of the qualities and functions inherent to one’s office so as to instill in others the “metus publicae potestatis” (art. 323), illicit remunerations, violation of official secrets (art. 326), concealment, dispersal, or distribution of documents, illegal arrest (art. 606), undue restriction of personal liberty (art. 607), abuse of authority against detainees (art. 608), arbitrary searches and inspections (art. 609). Since it is not lawful to demand from anyone something he cannot provide without sin, it is not lawful to induce an official to neglect the conscientious fulfillment of his office.IV. THE PUBLIC OFFICIAL IN THE LEGISLATIVE FUNCTION
In modern constitutional States, the legislative function is exercised by legislative chambers, whose members are either deputies or senators (v. PARLAMENTO; SENATO). The legislator is bound to fulfill well his task of cooperating in the formation of good laws, first of all by legal justice; but he also has an obligation deriving from commutative justice, which follows from the acceptance of the mandate. Therefore, a public official cannot cooperate in a law that is openly unjust, that is, whose object is intrinsically evil, since injustice can never be sanctioned and made into an enforceable law, whether it redounds to the detriment of religion, the family, individual members of society, or public morals. Having said this, if anyone votes in favor of a law that harms the common good, he commits a mortal sin and is bound to make restitution. Even more gravely does he sin who receives money to cast his vote (and still more gravely he who demands and requires it). For this action indeed produces serious harm to the State, regardless of whether the law is just or not. If money is received to vote for a just law, restitution is not owed to the State, which has suffered no injury, at least not immediately; but there is an obligation of restitution towards the one who paid the money, since the obligation to vote for the just law already existed in the contract made with the State at the very moment of assuming the mandate. If, however, the vote was cast for an unjust law, then restitution is obligatory towards the State; but it does not seem that there is an equal obligation towards the one who paid the money. For if the law is unjust, a corrupt contract was made between the two parties, and since there is disagreement among theologians regarding obligations arising from such contracts, and since civil law commonly denies the action to enforce them, the principle may be applied: “Meliore est condicio possidens” [the possessor’s condition is better]. Greater difficulty arises if the reward, in expectation of which the injustice of voting for the law was committed, is not money or a thing of value, but an office or position to be granted by the one who corrupted. Then the question arises whether the guilty public official is bound to relinquish or not the office or position received. Perhaps a distinction must be made: if, by retaining the office or position, no harm is done—such as when the office has social utility and was not denied to another who had a right to it—he may keep it; otherwise, he must relinquish II. In the matter of restitution, it is always necessary to bear in mind and distinguish whether restitution is owed to the State or to the one who gave the money. As has been seen, there may be an obligation towards the former without one towards the latter. The obligation of restitution to the State binds all those who voted for the unjust law jointly and severally: for all have formally and properly cooperated in causing the harm.Should an unjust law concern the Church, it incurs a special censure reserved to those who enact laws, decrees, or provisions against her liberty or rights (can. 2334). Deputies who vote in favor of such laws likewise incur this censure. State judicial or administrative authorities, however, who accept appeals against the exercise of ecclesiastical jurisdiction or apply the aforementioned measures, though they sin through illicit cooperation, do not incur this censure.
The endorsement of unjust laws may also arise from passive conduct: these are forms of negative cooperation (so moralists term them). Such forms reduce to abstention when voting would otherwise be obligatory, or to physical absence from legislative chambers when a deputy could and should be present. On this point, it should be recalled what was said above: every public office must be discharged with normal diligence, though extraordinary diligence is not required. Nevertheless, this diligence must be prudent, taking into account the importance of the sessions, the urgings of public opinion and responsible leaders, and—above all—when expressed, the norms laid down by ecclesiastical authority.
V. THE PUBLIC OFFICIAL IN ADMINISTRATIVE FUNCTION
The principles noted for deputies and senators must also apply to those entrusted with safeguarding the administration of the State. All such officials are bound by the obligations of legal and commutative justice toward the State for the office they hold; indeed, as Vermeersch rightly observes, greater diligence is owed to a public entity like the State than to private individuals. It will nonetheless be useful to consider briefly some forms of corruption now more common, such as illicit favoritism and the sale of exemptions from the law.5. Favoritism
Apart from deputies and, in Italy, most senators, who are elected by popular suffrage, all other public officials are appointed to office by other officials already in service. Hence the first question to be asked in this matter is whether there is a genuine obligation to choose the most worthy candidates for office. A distinction must be made. If a competition is announced, the winner of which acquires the right to appointment, there is a commutative justice obligation to appoint that winner to the office. Should this not occur, a grave injustice is committed, with the electors incurring an obligation to make restitution to the winner and to the State, which suffers harm through the appointment of a less worthy candidate. If a similar injustice is committed indirectly—inasmuch as the victory in the competition is awarded not to the one who deserved it but to another—the obligation to compensate for damages does not arise, since such a procedure does not in itself impair the morality of the appointment. If, however, no competition is announced, many still hold that there remains an obligation to appoint the most worthy, though one cannot deny the at least extrinsic plausibility of Vermeersch’s opinion, who, distinguishing at this point between offices or public posts properly so called and secondary posts in which officials are merely assistants (such as secretaries, clerks, and other attendants), asserts that the former should be conferred on the most worthy, while for the latter it suffices that those appointed be merely worthy (cf. A. Vermeersch, op. cit., II, p. 530). It must nonetheless be observed that all offices and posts were instituted to promote the common good. When, though possible, these offices are not conferred on the most worthy, no reasonable justification can be given for such conduct. It should further be noted that the one who appoints did not himself establish the office; he can therefore assume no greater authority than that conferred by law or statutes. It would moreover be improper to accept as a principle that authority may be exercised on the basis of personal favor. Finally, he who appoints a less worthy candidate to an office, when no competition is held, is not bound to make restitution to the more worthy, since only distributive justice is involved. If, however, real damage is inflicted on the State, commutative justice is violated and the obligation of restitution arises.6. Legal evasions
If a public official facilitates, for compensation, an evasion of the law, he is always bound to make restitution to the State. He is likewise bound to make restitution to a private party if money was demanded. He is not bound, however, if the money was given voluntarily (see above). A subordinate public official who is ordered by a superior to endorse an evasion of the law is bound to resist in every possible way. He may only submit to an unjust command when, by opposing it, he would himself suffer grave hardship. In sum, everything may be reduced to these two principles: nothing should be done to the detriment of the State, and its interests must be adequately safeguarded with the diligence required by the common good and implicitly promised at the acceptance of office (Vermeersch, op. cit., II, pp. 480–81).7. The bureaucratic class
Public officials, especially those permanently established in administrative roles, tend almost imperceptibly to differentiate themselves from other classes and to form almost a class apart, whose members share not only interests and activities but also a kind of mentality, an exaggerated respect for legal formalism, for state authority, and other habits. They feel—and indeed are—the repositories of the State’s permanent technical functions, 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 when state authority is consolidated. It cannot, however, nor should it, degenerate into a kind of caste that arrogantly secludes itself from the people and seeks to regulate everything absolutely from above, transforming itself into a harsh, unjust, and oppressive mechanism that weighs like a nightmare upon the entire public life.VI. THE PUBLIC OFFICIAL IN THE JUDICIAL FUNCTION: V. GIUDICE; MAGISTRATO.