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 Administrative Liability of Public Servants in Mexico

One of the least-known subjects among Mexican citizens is undoubtedly that relating to the administrative liability of public servants and private individuals linked to the public administration, as few are aware of how to report them when they have failed to fulfill their legal duties or even refused to serve them. Therefore, I have decided to write this post to summarize and explain how the administrative liability of municipal, local, and federal public servants works.

This is based on the General Law of Administrative Liabilities, which was established to standardize the administrative liability of all public servants and private individuals through a common law, as mandated by Article 73, Section XXIX-V of the Political Constitution of the United Mexican States[1]. In this regard, within this post, I will address basic concepts such as how an investigation is initiated to initiate an administrative liability procedure, what constitutes serious and non-serious offenses, and the classification of offenses, among other issues.

A new post will follow later, analyzing the resolutions that can be issued by sanctioning bodies and administrative courts, as well as the remedies available to both public servants and individuals to protect their rights.

Without further delay, let’s begin:

List of Contents

Translation

This entry is a translation of my Spanish post La responsabilidad administrativa de los servidores públicos en México.

1)  Obligated Subjects

The subjects obliged by the General Law on Administrative Liabilities are:

I.- Public servants, who, under the provisions of Article 3, Section XXI Bis of the law and Article 108 of the Political Constitution of the United Mexican States, include popularly elected representatives, members of the Federal Judicial Branch, officials and employees, and, in general, any person who holds a position, office, or commission of any nature in the Congress of the Union or the Federal Public Administration, as well as public servants of agencies granted autonomy by the Constitution.

On the other hand, it is necessary to clarify that independent directors of the governing bodies of state-owned productive companies or public entities, whose creation laws expressly provide for this, are not considered public servants.

II.- Former public servants.

III.- Individuals linked to serious administrative offenses.

Therefore, contrary to the opinion of many, this disciplinary power extends beyond the public sphere when serious misconduct occurs and, consequently, may impact the legal sphere of individuals.

2) Investigation and Sanction

The federal and state civil service secretariats, as well as internal oversight bodies, will be responsible, within their respective jurisdictions, for investigating, substantiating, and classifying administrative misconduct, as well as imposing any applicable sanctions.

A) Competent Bodies For Non-Serious Misconduct

In the case of acts or omissions classified as non-serious administrative misconduct, civil service secretariats and internal oversight bodies will be competent to initiate, substantiate, and resolve the administrative liability procedures stipulated in the law under review.

In this regard, if the investigating authorities determine, in their assessment, the existence of administrative offenses, as well as the alleged liability of the offender, they must prepare a report of suspected administrative liability and submit it to the substantiating authority for further action under the terms established by law.

Finally, the internal oversight bodies will also be competent to:

I.- Implement internal mechanisms to prevent acts or omissions that could constitute administrative liability, under the terms established by the National Anti-Corruption System.

II.- Review the income, expenditure, management, custody, and application of federal public resources and federal contributions, as well as local public resources, as appropriate within their scope of jurisdiction.

III.- File complaints for acts designated by law as crimes before the Specialized Prosecutor’s Office for Combating Corruption or, where appropriate, before its local counterparts.

B) Substantiation of Serious Administrative Offenses

The Superior Audit Office of the Federation and the supreme audit bodies of the federal entities shall be competent to investigate and substantiate proceedings for serious administrative offenses. Therefore, if the Superior Audit Office of the Federation and the supreme audit bodies of the federal entities detect potential non-serious administrative offenses, they shall report this to the internal oversight bodies, as appropriate, so that they may continue the respective investigation and initiate appropriate actions.

Finally, in cases where, as a result of their investigations, the alleged commission of crimes occurs, they shall file the corresponding complaints with the competent public prosecutor’s office.

C) Sanctions For Serious Administrative Offenses

Furthermore, in the case of serious administrative offenses, the administrative courts with jurisdiction over administrative liability, in addition to the powers and attributions conferred by their organic legislation and other applicable regulations, shall be empowered to resolve the imposition of sanctions for the commission of serious administrative offenses and offenses committed by individuals.

3) Linking Administrative Liability to Legal Entities

Legal entities will be sanctioned under the General Law on Administrative Liability when individuals acting on their own behalf or representing the legal entity commit acts linked to serious administrative misconduct, seeking to obtain benefits for the legal entity through such conduct.

In this regard, when determining the liability of legal entities, the extent to which they have an integrity policy will be assessed. For the purposes of the law, an integrity policy will be considered one that includes at least the following elements:

I.- A clear and comprehensive organizational and procedures manual, which delineates the functions and responsibilities of each of its areas and clearly specifies the different chains of command and leadership throughout the structure.

II.- A duly published code of conduct, disseminated among all members of the organization, with systems and mechanisms for actual implementation.

III.- Adequate and effective control, monitoring, and auditing systems that constantly and periodically examine compliance with integrity standards throughout the organization.

IV.- Adequate reporting systems, both within the organization and with the competent authorities, as well as disciplinary processes and concrete consequences for those who act contrary to internal standards or Mexican legislation.

V.- Adequate training and capacity-building systems and processes regarding integrity measures.

VI.- Human resources policies aimed at preventing the hiring of individuals who may pose a risk to the integrity of the corporation. These policies will in no case authorize discrimination against any person based on ethnic or national origin, gender, age, disability, social status, health conditions, religion, opinions, sexual preferences, marital status, or any other reason that violates human dignity and aims to nullify or undermine the rights and freedoms of individuals.

VII.- Mechanisms that ensure transparency and publicity of their interests at all times.

4) Minor Administrative Offenses

The General Law on Administrative Liabilities defines public servants as committing minor administrative offenses when, through their acts or omissions, they fail to comply with or violate the following obligations:

I.- To fulfill the duties and responsibilities assigned to them, observing discipline and respect for both other public servants and individuals with whom they may interact.

II.- To report any acts or omissions that they become aware of in the performance of their duties that may constitute administrative offenses.

III.- To heed the instructions of their superiors, provided they are consistent with the provisions related to public service.

IV.- To submit, promptly, declarations of assets and interests following the terms established by the General Law on Administrative Liabilities.

V.- To register, compile, safeguard, and maintain the documentation and information for which they are responsible, under their employment, position, or commission, and to prevent or avoid their improper use, disclosure, removal, destruction, concealment, or rendering unusable.

VI.- Supervise that public servants under their direction comply with the provisions contained in the General Law on Administrative Liabilities.

VII.- Render accounts for the performance of their duties.

VIII.- Collaborate in judicial and administrative proceedings in which they are a party.

IX.- Ensure, before entering into contracts for the acquisition, leasing, or sale of any type of goods, the provision of services of any nature, or the contracting of public works or services related thereto, that the individual declares under penalty of perjury that they do not hold a position, office, or commission in the public service or, where applicable, that despite holding such a position, the execution of the corresponding contract does not create a conflict of interest. The respective declarations must be in writing and made known to the internal oversight body before the execution of the act in question. If the contractor is a legal entity, these declarations must be submitted to the partners or shareholders who exercise control over the company.

X.- Without prejudice to the foregoing obligation, before carrying out any legal act involving the use of public resources with legal entities, the incorporation of legal entities must be reviewed and, where applicable, any amendments thereto, in order to verify that its partners, members of the board of directors, or controlling shareholders do not incur a conflict of interest.

For the foregoing purposes, a partner or shareholder is deemed to exercise control over a company when they are directors or sit on the board of directors, either jointly or separately, directly or indirectly, hold rights that allow them to vote over more than 50% of the capital, have decision-making power in their meetings, can appoint the majority of the members of their governing body, or by any other means have the power to make fundamental decisions for said legal entities.

XI.- Any damages and losses caused by a public servant to the public treasury or the assets of a public entity through negligence or fault, without incurring any of the serious administrative offenses.

5) Serious Administrative Offenses

Under the General Law on Administrative Liabilities, a public servant shall incur a serious administrative offense when they commit the conduct detailed below:

A) Bribery

A public servant shall incur bribery if he or she demands, accepts, obtains, or attempts to obtain, for himself or herself or through third parties, in the course of his or her duties, any benefit not included in his or her remuneration as a public servant, which could consist of:

I.- Money

II.- Securities

III.- Movable or immovable property, even through sale at a price significantly lower than the market price.

IV.- Donations

V.- Services

VI.- Undue employment and other benefits for themselves or their spouse, blood relatives, civil relatives, or third parties with whom they have professional, employment, or business relationships, or for partners or companies of which the public servant or the aforementioned persons are members.

A public servant who fails to return an excess payment of their legitimate remuneration, according to the applicable salary scales, within 30 calendar days of receipt, shall also be guilty of bribery.

B) Embezzlement

A public servant who authorizes, requests, or performs acts for the use or appropriation of public resources, whether material, human, or financial, for themselves or their spouse, blood relatives, civil relatives, or third parties with whom they have professional, employment, or business relationships, or for partners or companies of which the public servant or the aforementioned persons are members, without legal basis or in violation of applicable regulations, shall also be guilty of embezzlement.

C) Misappropriation of Resources

A public servant who authorizes, requests, or performs acts for the allocation or misappropriation of public resources, whether material, human, or financial, without legal basis or in violation of applicable regulations, shall be liable for misappropriation of public resources.

For the above purposes, the granting or authorization, for oneself or others, of payment of remuneration in violation of the applicable salary scales, as well as the granting or authorization, for oneself or others, of retirement, pension, or retirement benefits, settlements for services rendered, loans, or credits not provided for by law, legislative decree, collective bargaining agreement, contract law, or general working conditions, shall be considered misappropriation of public resources.

D) Misuse of Information

A public servant who acquires, for himself or herself or his or her spouse, blood relatives, civil relatives, or for third parties with whom he or she has professional, employment, or business relationships, or for partners or companies in which the public servant or the aforementioned persons are a member, real estate, personal property, and securities that could increase their value or, in general, improve their conditions, as well as obtaining any private advantage or benefit, as a result of privileged information of which he or she has become aware, shall incur misuse of information.

For these purposes, privileged information is considered to be information obtained by the public servant in the course of their duties and that is not in the public domain.

It should be noted that this restriction will be in effect for up to one year after the public servant’s position or employment has been terminated.

E) Abuse of Power

A public servant who exercises powers not conferred upon him or her, or who uses those powers to perform or induce arbitrary acts or omissions to generate a benefit for himself or herself or his or her spouse, blood relatives, civil relatives, or third parties with whom he or she has professional, employment, or business relationships, or for partners or companies of which the public servant or the aforementioned persons are members, in order to cause harm to any person or the public service, shall incur abuse of power.

F) Conflict of Interest

A public servant who intervenes, because of his or her employment, position, or commission, in any way in the handling, processing, or resolution of matters in which he or she has a conflict of interest or a legal impediment, shall incur in acting under a conflict of interest.

In a different sense, upon becoming aware of the aforementioned matters, the public servant will report such situation to his or her immediate supervisor or the body determined by the applicable provisions of public entities, requesting that he or she be excused from participating in any way in the handling, processing, or resolution of the matters.

Finally, it will be the immediate supervisor’s obligation to determine and inform the public servant no later than 48 hours before the deadline established for addressing the matter in question, in which cases it is not possible to abstain from intervening in the issues, as well as to establish written instructions for the impartial and objective handling, processing, or resolution of said matters.

G) Improper Contracting

A public servant who authorizes any type of contracting, as well as the selection, appointment, or designation of anyone who is legally impeded or disqualified by a resolution of a competent authority from holding a job, position, or commission in the public service, or who is disqualified from contracting with public entities, shall be liable for improper contracting. In the case of disqualifications, at the time of authorization, the disqualifications are registered in the national system of sanctioned public servants and individuals on the national digital platform.

In this regard, any public servant who intervenes or promotes, either personally or through an intermediary, in the selection, appointment, or designation of individuals for public service based on business interests shall incur the aforementioned liability.

H) Hidden Enrichment

A public servant who fails to be truthful in filing declarations of assets or interests, to conceal, respectively, an increase in his or her assets or the use and enjoyment of goods or services that cannot be explained or justified, or a conflict of interest, shall incur hidden enrichment or concealment of a conflict of interest.

I) Simulation of a Legal Act

A public servant who uses a legal personality other than their own to obtain public resources in violation of the law for their own benefit or that of a relative up to the fourth degree by blood or marriage.

It should be noted that this administrative offense shall be punishable by disqualification from office for 5 to 10 years.

J) Influence Peddling

A public servant who uses the position conferred by his or her employment, position, or commission to induce another public servant to perform, delay, or omit to perform any act within his or her jurisdiction, in order to generate any benefit, profit, or advantage for himself or herself or his or her spouse, blood relatives, civil relatives, or third parties with whom he or she has professional, employment, or business relationships, or for partners or companies in which the public servant or the aforementioned persons are members, shall be liable for influence peddling.

K) Concealment

A public servant who, in the performance of his or her duties, becomes aware of acts or omissions that could constitute administrative offenses and deliberately engages in any conduct intended to conceal them shall be liable for concealment.

L) Contempt

A public servant who, in the case of requests or resolutions from supervisory, internal control, judicial, electoral, or human rights defense authorities, or any other competent authority, provides false information, fails to respond, or deliberately and unjustifiably delays the delivery of information despite having been imposed with enforcement measures in accordance with applicable provisions, shall be guilty of contempt.

M) Nepotism

A public servant who, using the powers or authority of his or her job, position, or commission, directly or indirectly, designates, appoints, or intervenes in the hiring of persons with whom he or she is related by blood up to the fourth degree of affinity or by marriage or common-law marriage, shall be guilty of nepotism.

N) Obstruction of Justice

Public servants responsible for the investigation, substantiation, and resolution of administrative offenses shall incur obstruction of justice when:

I.- They perform any act that simulates non-serious conduct during the investigation of acts or omissions classified as serious.

II.- They fail to initiate the corresponding procedure before the competent authority within 30 calendar days of becoming aware of any conduct that could constitute a serious administrative offense, misconduct by private individuals, or an act of corruption.

III.- They reveal the identity of an anonymous whistleblower.

Ñ) Failure to Pay Dues

The failure to pay dues, contributions, social security contributions, or deductions to the Institute of Security and Social Services for State Workers in accordance with the terms established in Articles 21 and 22 of the Law of the Institute of Security and Social Services for State Workers is a serious administrative offense.

6) Acts of Private Individuals Linked to Serious Administrative Misconduct

The acts of private individuals listed below are considered to be linked to serious administrative misconduct; therefore, their commission will be sanctioned in accordance with the terms of the General Law on Administrative Liabilities. These acts are the following:

A) Bribery

A private individual who promises, offers, or delivers any undue benefit to one or more public servants, directly or through third parties, in exchange for said public servants performing or refraining from performing an act related to their duties or those of another public servant, or who abuses their actual or perceived influence to obtain or maintain, for themselves or a third party, a benefit or advantage, regardless of the acceptance or receipt of the benefit or the result obtained.

B) Unlawful Participation

Any individual who performs acts or omits to participate in administrative proceedings, whether federal, local, or municipal, will incur unlawful participation in administrative proceedings, even though they are impeded or disqualified from doing so by law or resolution of a competent authority.

On the other hand, unlawful participation in administrative proceedings is also considered when an individual intervenes on their own behalf but in the interest of another person or persons who are impeded or disqualified from participating in federal, local, or municipal administrative proceedings, with the purpose of obtaining, in whole or in part, the benefits derived from said proceedings.

C) Influence Peddling

Any individual who uses their influence, economic, or political power, real or fictitious, over any public servant, to obtain a benefit or advantage for themselves or a third party, or to cause harm to any person or the public service, regardless of the public servant’s acceptance or the result obtained, will incur in influence peddling to induce the authority to participate.

D) False Information

Any individual who presents false or altered documentation or information, or who simulates compliance with requirements or rules established in administrative procedures, to obtain authorization, a benefit, an advantage, or to harm any person, shall be liable for the use of false information.

Likewise, any individual who, having information related to an investigation into administrative offenses, provides false information, deliberately and unjustifiably delays its delivery, or fails to respond to requests or resolutions from investigating, substantiating, or resolving authorities shall be guilty of obstructing investigative powers, provided that enforcement measures have been previously imposed in accordance with applicable provisions.

E) Collusion

Any individual who, with one or more other private parties, in public procurement matters, carries out actions that imply or have the purpose or effect of obtaining an undue benefit or advantage in federal, local, or municipal public procurement shall be guilty of collusion. Collusion will also be considered when private individuals agree or enter into contracts, agreements, arrangements, or combinations between competitors, the purpose or effect of which is to obtain an undue benefit or cause damage to the public treasury or the assets of public entities.

F) Misuse of Public Resources

Any private individual who performs acts by which he or she appropriates, misuses, or diverts public resources, whether material, human, or financial, from the purpose for which they are intended, shall be liable for the misuse of public resources when, for any reason, he or she handles, receives, administers, or has access to these resources.

Furthermore, it is pertinent to note that the failure to render accounts verifying the use of said resources is also considered misuse of public resources.

G) Improper Hiring

Any individual who hires someone who has been a public servant during the previous year, possesses privileged information directly acquired through their employment, position, or commission in the public service, and directly allows the contractor to benefit in the market or place themselves at an advantage over their competitors, shall be liable for the improper hiring of former public servants. In this case, the former public servant who was hired shall also be sanctioned.

H) Offenses By Individuals In A Special Situation

Offenses by individuals in a special situation are those committed by candidates for elected office, members of electoral campaign teams or transition teams between public sector administrations, and leaders of public sector unions, which involve demanding, requesting, accepting, receiving, or seeking to receive any benefit, whether for themselves, for their electoral campaign, or for someone close to them, in exchange for granting or offering an undue advantage in the future if they become a public servant.

7) Statute of Limitations and Expiration of the Instance

The statute of limitations for this matter is nothing more than the loss of the right to report, process, and sanction a public servant or individual for the offenses described above. This is done in order to protect the fundamental right to legal certainty for these individuals.

Thus, in the case of statute of limitations and in the case of non-serious administrative offenses, the powers of the civil service secretariats or internal oversight bodies to impose sanctions will expire in 3 years, counted from the day after the violations were committed, or from the moment they ceased.

For serious administrative offenses or offenses committed by individuals, the statute of limitations is 7 years, as specified in the previous paragraph.

Finally, it should be noted that within the various stages that comprise the administrative liability of a public servant or individual, certain actions interrupt it, although these are not contradictory or excessive, as determined by our highest court in its mandatory precedent:

ADMINISTRATIVE LIABILITIES. THE GENERAL LAW ON THE SUBJECT, IN ESTABLISHING VARIOUS ACTIONS WITHIN THE ADMINISTRATIVE SANCTIONING PROCEDURE THAT INTERRUPT THE STATUTE OF LIMITATIONS FOR SANCTIONING ACTIONS, DO NOT CONFIGURE AN ANTINOMY, NOR DO THEY VIOLATE THE PRINCIPLE OF LEGAL SECURITY (ARTICLES 74, 100, 112, AND 113)[2].

A) Expiration

Once an administrative liability procedure has been initiated for the offenses described above, it cannot be suspended—without just cause—for more than 6 months, under penalty of expiry. This means that all actions taken in the procedure will remain in effect without prejudice, and if the statute of limitations has not expired, the procedure may be resumed from the initial investigation. The aforementioned period will be calculated in calendar days.

8) Sanctions for Non-Serious Administrative Offenses

The bodies competent to impose sanctions for non-serious administrative offenses are the public service secretariats or administrative oversight bodies, which may impose the following administrative sanctions:

I.- Public or private reprimand.

II.- Suspension from employment, position, or commission.

III.- Removal from employment, position, or commission.

IV.- Temporary disqualification from holding employment, positions, or commissions in the public service and from participating in procurement, leasing, services, or public works.

It should be noted that for non-serious administrative offenses, one or more of the sanctions listed may be imposed, provided they are compatible with each other and warranted based on the severity.

Furthermore, the suspension from employment, position, or commission imposed may range from 1 to 30 calendar days. In the case of temporary disqualification, this will not be less than 3 months nor more than 1 year.

A) Assessment for the Sanction

For the imposition of sanctions, the elements of the job, position, or commission held by the public servant when the offense occurred must be considered, as well as the following:

I.- The hierarchical level and background of the offender, including length of service.

II.- External conditions and means of execution.

III.- Repeated non-compliance with obligations.

In this regard, it is pertinent to clarify that in the case of repeated non-serious administrative offenses, the sanction imposed may not be equal to or less than the one previously imposed. For these purposes, a repeat offender is considered to be someone who, having committed an offense that has been sanctioned and has become final, commits another of the same type.

B) Refraining From Imposing Sanctions

Internal oversight bodies may refrain from imposing the appropriate sanction provided that the public servant:

I.- Has not previously been sanctioned for the same non-serious administrative offense.

II.- Has not acted intentionally.

However, the civil service secretariats or internal oversight bodies must record that no sanctions have been imposed.

9) Sanctions For Serious Administrative Offenses

The serious administrative sanctions that the administrative courts must impose on public servants shall consist of the following:

I.- Suspension from employment, position, or commission.

II.- Removal from employment, position, or commission.

III.- Financial penalty.

IV.- Temporary disqualification from holding employment, positions, or commissions in the public service and from participating in procurement, leasing, services, or public works.

As with sanctions for non-serious administrative offenses, one or more sanctions may be imposed as long as they are compatible with each other and commensurate with the seriousness of the offense.

Furthermore, it should be noted that the suspension from employment, position, or commission will be for 30 to 90 calendar days. Likewise, if disqualification is determined, it will range from 1 to 10 years if the amount of the serious administrative offense does not exceed 200 UMAs (Uninstitutional Units of the Amount of UMAS) and from 10 to 20 years if the amount exceeds that limit. Finally, when no damage or harm is caused, nor is there any benefit or profit, a disqualification of 3 months to 1 year may be imposed.

A) Specifics of the Financial Penalty

If the serious administrative offense committed by a public servant generates financial benefits for themselves, their spouse, blood relatives, civil relatives, or third parties with whom they have professional, employment, or business relationships, or for partners or companies in which the public servant or the aforementioned persons are members, a financial penalty will be imposed that may be up to two times the amount obtained. In no case may the financial penalty imposed be less than or equal to the amount of the financial benefits obtained.

Furthermore, the administrative court will determine the payment of compensation when the serious administrative offense causes damages to the federal, local, or municipal public treasury, or to the assets of public entities. In such cases, the public servant will be obligated to repair all the damages caused, and any persons who may have also obtained an undue benefit will be jointly and severally liable.

B) Assessment For the Sanction

To impose sanctions for serious administrative offenses, the administrative court must consider the elements of the employment, position, or commission held by the public servant who committed the offense, as well as the following:

I.- The financial damages caused by the acts or omissions.

II.- The hierarchical level and background of the offender, including length of service.

III.- The socioeconomic circumstances of the public servant.

IV.- The external conditions and the means of execution.

V.- Repeated breach of obligations.

VI.- The amount of profit derived from the violation obtained by the responsible party.

10) Sanctions For Individuals

The administrative sanctions for individuals linked to serious administrative offenses will be as follows:

A) Individuals

I.- A financial penalty that may be up to twice the amount of the profits obtained or, if none were obtained, the equivalent of 100 to 150,000 UMAs.

II.- Temporary disqualification from participating in procurement, leasing, services, or public works, as applicable, for a period of no less than 3 months and no more than 8 years.

III.- Compensation for damages caused to the federal, local, or municipal public treasury, or to the assets of public entities.

B) Legal Entities

I.- A financial penalty that may be up to twice the amount of the profits obtained, if not obtained, equivalent to the amount of 1,000 to 1,500,000 UMAs.

II.- Temporary disqualification from participating in acquisitions, leases, services, or public works, for a period of no less than 3 months and no more than 10 years.

III.- Suspension of activities for a period of no less than 3 months and no more than 3 years, which will consist of temporarily halting, deferring, or depriving individuals of their commercial, economic, contractual, or business activities for being linked to serious administrative offenses.

IV.- Dissolution of the respective company, which will consist of the loss of the legal capacity of a legal entity to fulfill the purpose for which it was created by jurisdictional order and as a consequence of the commission, connection, participation, and relationship with a serious administrative offense.

V.- Compensation for damages caused to the federal, local, or municipal public treasury, or to the assets of public entities.

C) Assessment of the Sanction

For the imposition of sanctions for private offenses, the following elements must be considered:

I.- The degree of participation of the individual(s) in the private offense.

II.- Recidivism in the commission of violations.

III.- The financial capacity of the offender.

IV.- The harm or jeopardy to the proper development of the State’s administrative activity.

V.- The amount of the benefit, profit, or damage or harm derived from the violation, when these were caused.

11) Investigation and Classification of Administrative Offenses

Now that we have seen the differences between serious and non-serious administrative offenses, it is time to explore how the investigation and classification of offenses are initiated. In this regard, it should be noted that the investigation for alleged liability for administrative offenses will begin ex officio, upon complaint, or as a result of audits conducted by the competent authorities or, where appropriate, by external auditors.

In any case, complaints may be anonymous, and the investigating authorities will keep the identity of the persons reporting alleged violations of the General Law on Administrative Liabilities confidential.

On the other hand, it is pertinent to clarify that the complaint must contain the data or evidence that allows for the detection of alleged administrative liability for the commission of administrative offenses and may be submitted electronically through the mechanisms established for this purpose by the investigating authorities.

A) Investigation

Beyond any complaints that may be filed, in order to fulfill their powers, the investigating authorities may conduct ex officio audits or duly substantiated and reasoned investigations into the conduct of public servants and private individuals that may constitute administrative liability within their scope of jurisdiction.

In this regard, the investigating authorities will have access to the information necessary to clarify the facts, including information that the relevant legal provisions consider confidential or reserved, with the obligation to maintain the same confidentiality or secrecy as determined by law.

Finally, it is very important to clarify that during the conduct of investigations for serious administrative offenses, provisions aimed at protecting the secrecy of information related to tax matters, securities, fiduciary matters, or those related to deposit, administration, savings, and investment of monetary resources will not be applicable.

B) Requirements

Public or private individuals or legal entities that are the subject of investigations for alleged irregularities committed in the performance of their duties must comply with duly substantiated and motivated requirements made by the investigating authorities within a period of 5 to 15 business days, without prejudice to the possibility of extending the period for duly justified reasons, when requested by the interested parties. This extension may not exceed half of the originally planned period under any circumstances.

C) Enforcement Measures

During the investigation phase, the investigating authorities may use the following measures to enforce their decisions:

I.- A fine of up to the equivalent of 100 to 150 UMAs, which may be doubled or tripled each time, up to 2,000 UMAs, in the event of refusal to comply with the respective mandate.

II.- Request the assistance of public forces of any level of government, which must immediately respond to the authority’s request.

III.- Arrest for up to 36 hours.

D) Classification of Administrative Offenses and Refusal to Investigate Them

Once the investigation proceedings are concluded, the investigating authorities will proceed to analyze the facts and the information gathered to determine the existence or nonexistence of acts or omissions designated by law as administrative offenses and, where appropriate, classify them as serious or non-serious. Once the conduct has been classified, it will be included in the report of alleged administrative liability, which will be submitted to the investigating authority to initiate the administrative liability procedure.

However, if sufficient evidence is not found to demonstrate the existence of the violation and the alleged liability of the offender, a decision will be issued to conclude and close the case, without prejudice to the possibility of reopening the investigation if new evidence or indications are presented and the power to sanction has not expired. This decision, where applicable, will be notified to the public servants and individuals subject to the investigation, as well as to the complainants when they are identifiable, within ten business days of its issuance.

Furthermore, the investigating authorities, or, where applicable, the resolving authorities, shall refrain from initiating administrative liability proceedings or imposing administrative sanctions on a public servant, as the case may be, when the investigations conducted or the assessment of the evidence provided in the aforementioned proceedings reveal that there is no harm or damage to the federal, local, or municipal public treasury, or to the assets of public entities, and that any of the following hypotheses are true:

I.- The public servant’s actions in addressing, processing, or resolving matters under his or her charge relate to a matter of opinion or debatable discretion, on which various solutions can be validly supported, provided that the conduct or refrain does not constitute a deviation from the law and there is evidence of the elements taken into account by the public servant in the decision made.

II.- That the act or omission was spontaneously corrected or remedied by the public servant or involves a manifest error, and in any of these cases, any effects that may have occurred have disappeared.

Finally, it should be noted that both the agreement to conclude the case, the filing of the case, and, in general, the refusal to initiate an administrative liability procedure may be challenged by the complainant, as revealed by the following jurisprudential criteria:

ADMINISTRATIVE LIABILITIES. THE COMPLAINANT MAY CHALLENGE THE AGREEMENT TO CONCLUDE AND FILING THE CASE THROUGH AN APPEAL FOR COMPLAINT[3].

LIABILITY OF PUBLIC SERVANTS. THE COMPLAINTANT REFERRED TO IN THE GENERAL ADMINISTRATIVE LIABILITY HAS STANDING IN CHALLENGING, THROUGH AN INDIRECT AMPARO PROCEDURE, AGAINST THE REFUSAL TO INITIATE AN INVESTIGATION, AS WELL AS THE DECISION ORDERING ITS CONCLUSION DUE TO A LACK OF EVIDENCE[4].

ADMINISTRATIVE LIABILITY. THE COMPLAINANT HAS LEGAL STANDING IN FILING AN INDIRECT AMPARO PROCEEDING AGAINST THE DECISION NOT TO INITIATE THE RELATED INVESTIGATION[5].

E) Challenging the Classification of Non-Serious Offenses

The classification of the facts as non-serious administrative offenses by the investigating authorities shall be notified to the complainant when identifiable. The classification given to the alleged offense shall also be established. In this regard, the classification and the abstention may be challenged, where appropriate, by the complainant through a non-compliance appeal or legal remedy. The filing of the appeal will prevent the administrative liability procedure from being initiated until it is resolved.

The formalities for the non-compliance appeal are as follows:

I.- It must be filed within 5 business days from the notification of the challenged resolution.

II.- The challenge must be submitted to the investigating authority that classified the administrative offense as non-serious, and must state the reasons why the classification is deemed improper.

Once the appeal has been filed, the investigating authority must forward it, attaching the completed file and a report justifying the challenged classification, to the corresponding Specialized Chamber for Administrative Responsibilities of the administrative court.

III.- If the document used to file the appeal is unclear or irregular, the Specialized Chamber for Administrative Responsibilities will require the petitioner to correct the deficiencies or provide the appropriate clarifications, for which they will be given a period of 5 business days. If the deficiencies or clarifications are not corrected within the aforementioned period, the appeal will be deemed not filed.

IV.- Once the appeal has been admitted, the alleged offender will be given notice to submit any relevant statements within 5 business days.

V.- Once the appeal for non-compliance has been admitted and answered, the Specialized Chamber for Administrative Responsibilities will resolve the appeal within a period of no more than 30 business days.

By Omar Gómez

Mexican Tax, Administrative, and Constitutional Attorney

Partner at belegalabogados.mx

Contact me at hola@ogomezabogado.com

[1] Article 73.- Congress has the power: […]

XXIX-V.- To issue the general law that distributes powers among the levels of government to establish the administrative liabilities of public servants, their obligations, the sanctions applicable to their acts or omissions, and the sanctions applicable to individuals linked to serious administrative offenses that it provides for this purpose, as well as the procedures for their application.

[2] Thesis: 1a./J. 51/2022 (11a.) First Chamber of the Mexican Supreme Court of Justice. Eleventh Judicial Epoch. Binding Precedent. Digital Number: 2024679.

[3] Thesis: 2a./J. 12/2023 (11a.) Second Chamber of the Mexican Supreme Court. Eleventh Judicial Epoch. Binding Precedent. Digital Registration: 2026084.

[4] Thesis: PC.I.A. J/177 A (10a.) PLENARY COURT ON ADMINISTRATIVE MATTERS OF THE FIRST CIRCUIT. Eleventh Judicial Epoch. Binding Precedent. Digital Registration: 2023540.

[5] Thesis: 2a./J. 33/2021 (10a.) Second Chamber of the Mexican Supreme Court of Justice. Eleventh Judicial Epoch. Binding Precedent. Digital Registration: 2023419.

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