UFFICIALE, PUBBLICO. – Officialis, ab officio is generally the natural person who holds a public office. His relationship with the State or, more generally, with the public juridical person may be succinctly characterized as a relationship of service. This concept serves to define, in general terms, the position of persons who act as organs of public entities.
I. GENERAL LEGAL NOTIONS
Public officials are commonly also designated by the names authorities, functionaries, employees, agents, without any precise meaning;but in legal doctrine these various terms are for the most part used with a definite and specific sense.
Here too, however, the meaning varies according to the different legal systems, and even within the same legal systems there is no lack of controversy; sometimes, as in Italian law, the same concept is somewhat different in administrative law from what it is in the legislation and doctrine of criminal law.
In Italian criminal law and criminal-law doctrine, a public official is one who exercises a public function, whether as the holder of an office or as a private individual (notary, tax collector, etc.). Public officials are found not only in the sphere of administration, but also in that of legislative and judicial power, since public functions exist in these spheres as well (art. 357, Cod. pen. it.; V. POTERI PUBBLICI). In the science of administrative law, rather than of public officials, one speaks of the public functionary, meaning thereby an organ of the administration entrusted with the exercise of public functions. Thus, besides restricting the public official to an administrative public function, emphasis is placed on the quality of being an organ, a consideration disregarded by criminal law.
A public office or public function is a general concept comprising the exercise of any power conferred by law for the purpose of attending to 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, in addition to its exercise there must be another element, namely a certain discretionary power; this, on the other hand, does not belong to the person entrusted with a public service, who is assigned an entirely material task consisting in predetermined acts (art. 358, ibid.). Participation in a public function may be voluntary (voluntariness is more properly characteristic of the employment relationship) or obligatory or coercive; and it is connected with a rule of law that takes effect upon the occurrence of specified facts. Obligatory services are military conscription (v.) and jury service (v.).
Voluntary services are gratuitous or remunerated. In the first case, the service is performed out of civic-mindedness and for the merely moral and honorary advantages that may derive from it (honorary functionaries). In the second case, those who voluntarily take up a public service or function intend to make that service or function their profession, and are public employees. An employee is every individual who performs professional and salaried work (the concept of a public official and that of a functionary, by contrast, in themselves exclude any notion of a pecuniary relationship with the public entity on which he depends) and makes this activity, performed in the interests of others, his permanent occupation. There may therefore be public officials who are not employees even if remunerated, where the character of professionalism is lacking (e.g., ministers), and employees who are not public officials when the office to which they are appointed is internal in character. It is important to emphasize the specific obligations they assume toward the State and individual citizens.
II. HISTORICAL NOTES
The organization of public functions into that complex of officials and employees known by the name of bureaucracy is of relatively recent date, if, as seems likely, it must be traced back to the time of Louis XV; but the fact of public service or public employment is far older. Without going back to the Code of Hammurabi, in which there are clear traces of a bureaucratic system of administration, 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 during the imperial period. The Later Empire, moreover (4th cent.), possessed a large and complex bureaucracy. Yet bureaucratic organization, and legislative power entrusted to representatives of the people as it is today, expanded above all from the 19th century onward with the formation of liberal states based on representative constitutions. The modern state, moreover, takes responsibility for many activities that in ancient times were left to private individuals. Thus it came about that the number of public offices, and consequently of officials, increased considerably.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 each person 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. Since society is a juridical person, it cannot discharge these tasks by and of itself, but requires physical persons who, duly invested with authority, discharge society’s obligations and ensure the satisfaction of its rights. Public officials perform this function. The distribution of functions is established 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 arising 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 hinder him in the free exercise of his duties; b) to receive the remuneration agreed upon and proportionate to the service rendered, so that he may live suitably according to his rank and the service rendered; c) to remain in his office for the prescribed period; d) to enjoy the rights of weekly rest and holidays, as well as welfare benefits, etc.
As regards the duties of the public official, the question arises as to the nature of the obligation incurred by one who undertakes the exercise of a public office. Vermeersch declares without qualification that it is an obligation of commutative justice toward society and toward individual citizens (cf. instead Serafino da Loiano, Inst. theol. mor., III, Torino 1937, n. 730, p. 949). Society indeed has a strict right to be well administered. Corresponding to this right, the public official has an obligation of justice, which also arises from a contract when the office is freely accepted. The obligation of justice extends also to individual citizens, for whose benefit the public office has been established, so that they may demand that the public official, as a matter of strict duty, exercise his functions for them. The proximate source of this obligation is the law, which has established that public office be exercised in justice and in the interest of individuals (cf. A. Vermeersch, Theol. mor., II, 2ª ed., Brugs 1928, n. 507, p. 494).
Toward individual citizens, the public official may also incur obligations of strict commutative justice. This may occur principally for three reasons: a) namely, when society has assumed contractual obligations, as a private person, toward individual citizens; b) when society has intended to bind itself by strict justice toward individual citizens, as in the assignment of posts through competitive examination; c) when the good of a citizen requires that he not have to bear greater burdens toward the State than others, on account of the requirements of social life. Sometimes the obligations binding the public official toward society are reaffirmed by a formal promise accompanied by an oath. oath (v.), there then also arises a bond of religion. Finally, when, in addition to the public function, there is employment, the juridical-moral relationship and obligations also derive from the conclusion of a contract subject to the ordinary rules governing contracts, including those concerning cause, consent, capacity to contract, formalities, etc.
1. Proper preparation. — Adequate preparation is required for holding public offices. Anyone who, while recognizing himself to be unsuitable for the office, nevertheless accepts it, acts deceitfully, violating the tacit agreement concerning a minimum degree of competence implicit in every offer and acceptance of an assignment. Ordinary competence is sufficient; the highest degree is not required. Likewise, he is bound to resign if, at a later time, he should lose the capacity to discharge his task properly.
2. Diligence. — Once the office has been accepted, it must be performed with due diligence; ordinary diligence is sufficient, unless something different has been agreed expressly or tacitly, or the common good itself requires something more. No inconvenience intrinsic to the exercise of one’s duties excuses one from faithful service, since all this is included in a kind of tacit promise made upon accepting the office. Once the office has been accepted, one may not fraudulently resign from it before the appointed time in order to anticipate pension rights. This is required by justice, so that anyone who used such frauds would be bound to make restitution.
3. Manner of performing public office
Among the many obligations of the public official is that of causing the State to be respected in his own person, and of making himself useful to the State and to individual citizens. As compiler, executor, and custodian of the laws, he may not abuse his mandate, but must pursue the public good with justice, disinterestedness, attention, and vigilance. When, by reason of his office, the public official comes into contact with the public, he is required to show a spirit of charity and understanding toward everyone. Every office, especially today, requires a certain degree of discretion concerning the matters dealt with. This discretion is commonly designated by the term professional secrecy (v.), which may be more or less rigorous according to the circumstances and the office held.4. Abuses
Whoever administers a public office may not extort money or gifts from others on account of the performance of his official duties, unless this is permitted by law or custom (v. ESTORZIONE). In the case of direct extortion, the obligation of restitution arises; in the case of acceptance following an offer, this obligation does not arise until after the judge’s sentence. In the first case, there is no title authorizing the demand; in the second, the injustice is not entirely evident. Such abuses are ordinarily also punished by the criminal laws. Thus, in Italy: abuse of office (art. 323), private interest in official acts (art. 324), use of inventions and discoveries learned of by reason of office (art. 325), unlawful omission or refusal to perform official acts (art. 328), abandonment (art. 333), falsification in public acts (art. 496), embezzlement to the detriment of private persons (art. 315), peculation (arts. 314–16), extortion by a public official (art. 317), corruption in office (arts. 318 ff., 325 ff.). These include the diversion of money from the use for which it was intended; abuse of the capacities and function inherent in one’s office, such as to create in others the «metus publicae potestatis» (art. 323); unlawful remuneration; 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 arrested persons (art. 608); and arbitrary searches and inspections (art. 609). Since it is not lawful to ask anyone to do something that he cannot do without sin, it is not lawful to urge an official not to perform his office conscientiously.IV. THE PUBLIC OFFICIAL IN THE LEGISLATIVE FUNCTION
In present-day constitutional States, the legislative function is carried out by the legislative chambers, whose members are either deputies or senators (v. PARLAMENTO; SENATO). The legislator is bound to perform well his task of cooperating in the formation of good laws, first of all by reason of legal justice; but he also has an obligation deriving from commutative justice, which follows from acceptance of the mandate. A public official therefore cannot cooperate in an openly unjust law—that is, one whose object is intrinsically evil—since injustice can never be sanctioned and enacted as an enforceable law, whether it redounds to the detriment of religion, the family, individual members of society, or good morals. With this premise, if anyone casts his vote in favor of a law harmful to the common good, he commits a mortal sin and is bound to make restitution. Much more gravely does one sin who receives money for casting his vote (and even more gravely, one who demands and solicits it). This action in fact causes serious harm to the State, quite apart from whether the law is just or not. If money is received for voting for a just law, it need not be returned to the State, which has suffered no injury, at least not an immediate one; but there is an obligation of restitution toward the person 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 accepting the mandate. If, on the other hand, the vote was cast for an unjust law, restitution to the State is obligatory; but it does not appear that there is an equal obligation toward the person who disbursed the money. For if the law is unjust, a turpid contract was stipulated between the two parties, and since theologians differ in their opinions regarding obligations arising from such contracts, and since, moreover, civil law generally tends to deny an action for enforcing those obligations, the principle may be applied: «Melior est condicio possidentis». Greater difficulty arises if the reward in hope of which the injustice of voting for the law was committed is not money or something of monetary value, but an appointment or office to be conferred by the person who gave the bribe. The question then arises whether the guilty public official is bound to relinquish the appointment or office received. Perhaps a distinction must be made: if retaining the appointment or office causes no harm—for example, if the office offers social utility and no other person who had a right to that office has been excluded—he may retain it; otherwise, he must relinquish II. With regard to restitution, one must always bear in mind and distinguish whether restitution is to be made to the State or to the person who gave the money. As has been seen, there may 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: all of them, in fact, formally and properly cooperated in causing the harm.When the unjust law concerns the Church, it subjects to excommunication reserved in a special manner those who issue laws, decrees, or provisions against her freedom or rights (can. 2334). Deputies who vote in favor of such laws incur this excommunication. State judicial or administrative authorities, on the other hand, which entertain appeals against the exercise of ecclesiastical jurisdiction or apply the aforementioned measures, although sinning through illicit cooperation, do not incur this censure. The approval of unjust laws may also be caused by a passive attitude: these are the forms of negative cooperation (non obstant, as the moralists say). These forms are reduced to abstention, when voting would instead be obligatory, or to physical absence from the legislative chambers, when the parliamentarian could and should be present. In this regard, one should recall what was said above, namely, that every public office must be performed with ordinary diligence, although extraordinary diligence is not required. In any case, this diligence must be prudent and take account of the importance of the sessions, the appeals made by public opinion and by the responsible leaders, and, above all, whenever they are expressed, the norms laid down by ecclesiastical authority.
V. IL P. U. DELLA FUNZIONE AMMINISTRATIVA. — The principles indicated for deputies and senators must also be applied to those entrusted with safeguarding the administration of the State. All such persons are bound, by an obligation of legal and commutative justice toward the State, by the office they have assumed; indeed, as Vermeersch very aptly observes, greater diligence is owed to a public person, such as the State, than to private individuals. It will nevertheless be useful to consider briefly certain forms of corruption that are more common today, such as illicit favoritism and the sale of immunity from the laws.
5. Favoritism
Apart from deputies and, in Italy, also the majority of senators, who are elected by popular suffrage, all other p. u. are placed in office by other officials who have previously entered the service. Hence the first question to be asked in this matter is whether there is truly an obligation to choose the most deserving persons for office. A distinction is necessary. If a competitive examination is announced, the winner of which acquires the right to appointment, there is an obligation of commutative justice to appoint the winner to that office. If he is not elected, a grave injustice is committed, and the electors are obliged to make restitution to the winner and to the State, which suffers harm through the election of a less deserving person. If a similar injustice is committed indirectly, in that the victory in the examination is awarded not to the person who deserves it but to another, the obligation to compensate for the damage does not arise, because such a procedure does not in itself affect the morality of the election. If, on the other hand, no competitive examination is announced, many likewise think that there still exists an obligation to elect the most deserving person, although one cannot deny the probability, at least extrinsic, of Vermeersch’s opinion. In this regard, he distinguishes between public offices or appointments properly so called and secondary offices, in which officials are properly only assistants (such as, for example, secretaries, writers, and other employees), and asserts that the former ought to be conferred on the most deserving person; as for the latter, it would be sufficient to elect those who are simply deserving (cf. A. Vermeersch, op. cit., II, p. 530). It should nevertheless be observed that all offices and appointments have been instituted to promote the common good. When, despite the possibility, such offices are not conferred on the most deserving person, no reasonable justification can be offered for such a course of action. It must also be noted that the person who makes the appointment was not himself the founder of the office; he therefore cannot claim any power beyond that conferred upon him either by law or by the statutes. Nor would it be fitting to admit as a principle that power may be conferred on the basis of acceptio personarum. Finally, a person who confers an office on someone less deserving, when the appointment is not made through competitive examination, is not obliged to make restitution to the more deserving person, because only distributive justice has been injured. But if actual harm is caused to the State, commutative justice is violated and the obligation of restitution arises.2. Evasioni legali. — If a p. u., in return for compensation, facilitates evasion of the law, he is always obliged to make restitution to the State. He is also obliged to make restitution to the private individual if the money was demanded. He is not, however, obliged to do so if the money was given spontaneously (v. SORA). A lower-ranking p. u. whom a superior orders to approve an evasion of the law is obliged to resist in every possible manner. He may submit to the unjust command only when, by opposing it, he would himself be exposed to serious hardship. In conclusion, everything may be summed up in these two principles: that nothing harmful to the State should be done, and that its interests should be adequately provided for with the diligence required by the common good and implicitly promised upon accepting the office (Vermeersch, op. cit., II, pp. 480-81).
3. Ceto burocratico. — P. u., especially those with the greatest permanence in the administrative establishment, tend almost imperceptibly to differentiate themselves from the other classes and to constitute almost a class of their own. Its members have in common, besides interests and activities, a kind of forma mentis, an exaggerated respect for legal formalities and for the authority of the State, as well as other habits. They feel themselves—and in fact are—the custodians of the State’s permanent technical functions, above and outside the fluctuations of governments expressed by the 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 must not, however, and cannot, degenerate into a kind of caste that selfishly isolates itself from the people and seeks to regulate everything absolutely from above, thereby becoming a harsh, unjust, and oppressive mechanism weighing like a nightmare upon the whole of public life.
VI. IL P. U. NELLA FUNZIONE GIUDIZIARIA: V. GIUDICE; MAGISTRATO.