Circular No. 03/2007/TT-BNV guiding the implementation of disciplinary regulations for commune-level civil servants

CIRCULAR

Guidelines for Implementing the Disciplinary System for Commune-level Civil Servants

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Implementing Decree No. 114/2003/ND-CP dated October 10, 2003 of the Government on cadres and civil servants at commune, ward, and town levels (hereinafter referred to as Decree No. 114/2003/ND-CP) and Decree No. 35/2005/ND-CP dated March 17, 2005 of the Government on the Handling of Disciplinary Measures for Cadres and Civil Servants (hereinafter referred to as Decree No. 35/2005/ND-CP), the Ministry of Home Affairs provides guidelines for implementing disciplinary measures against commune-level civil servants as stipulated in Clause 2, Article 2 of Decree No. 114/2003/ND-CP as follows:

I. GUIDELINES FOR IMPLEMENTING GENERAL PROVISIONS

1. Regarding the subjects and scope of regulation:

This Circular guides the implementation of the disciplinary system for commune-level civil servants as stipulated in Clause 2, Article 2 of Decree No. 114/2003/ND-CP, including the following positions: Chief of Public Security (in places where regular public security forces have not been deployed), Military Commander, Office - Statistics, Land Administration - Construction, Finance - Accounting, Justice - Household Registration, Culture - Social Affairs.

2. Regarding cases subject to disciplinary action: Commune-level civil servants shall be subject to disciplinary action in the following cases:

a) Violating the duties of commune-level cadres and civil servants as stipulated in Article 8 of Decree No. 114/2003/ND-CP;

b) Violating the prohibitions for commune-level cadres and civil servants as stipulated in Article 11 of Decree No. 114/2003/ND-CP;

c) Violating the work regulations as stipulated in Article 9 of Decree No. 114/2003/ND-CP;

d) Violating laws and being criminally prosecuted, but not sentenced to imprisonment;

đ) Violating laws and having their violations concluded in writing by competent authorities;

e) Violating the management and use of illegal certificates and diplomas. Deceiving in the declaration of personal history files;

g) During the period assigned to study, training, and professional development, violating training regulations;

h) Violating state regulations on preventing and combating prostitution and drug abuse.

3. Commune-level civil servants falling under the provisions of Article 3 of Decree No. 35/2005/ND-CP, if they violate discipline, will not be subject to disciplinary action.

4. Disciplinary measures shall not be applied to commune-level civil servants in the following cases:

a) Engaging in unlawful acts during a period of loss of civil capacity as concluded by a competent health authority;

b) Violating laws in a situation of force majeure while performing duties and this is confirmed by a competent authority;

c) Being required to implement a decision of a superior authority as stipulated in Clause 7, Article 8 of Decree No. 114/2003/ND-CP.

5. When considering disciplinary action against commune-level civil servants, it must comply with the principles prescribed in Article 5 of Decree No. 35/2005/ND-CP.

6. Appeals, lawsuits, and resolution of appeal conclusions regarding disciplinary actions against commune-level civil servants shall be carried out in accordance with the provisions of Articles 6, 7, and 29 of Decree No. 35/2005/ND-CP and Articles 20 and 21 of Decree No. 114/2003/ND-CP.

7. Illegal certificates and diplomas include those concluded by competent authorities as illegal, including the following types:

a) Certificates and diplomas made fake;

b) Certificates and diplomas that have been modified without permission from competent authorities;

c) Certificates and diplomas issued to individuals who do not meet legal conditions and standards or issued and modified in violation of procedures or authority.

II. GUIDELINES FOR DISCIPLINARY ACTIONS

1. Forms of disciplinary action:

Commune-level civil servants mentioned in Item 1, Part I of this Circular, if they violate laws, shall be subject to disciplinary action according to one of the forms prescribed in Clause 2, Article 17 of Decree No. 114/2003/ND-CP, including:

a) Reprimand;

b) Warning;

c) Reduction in pay grade;

d) Dismissal (if they are the Chief of Public Security or Military Commander);

d) Compulsory resignation.

2. Commune-level civil servants who are criminally sentenced to imprisonment shall be automatically dismissed.

3. Regarding the statute of limitations for disciplinary action: The statute of limitations for disciplinary action against commune-level civil servants shall be implemented as prescribed in Article 9 of Decree No. 35/2005/ND-CP.

4. Regarding the implementation of responsibility for disciplinary action: If the person authorized to handle disciplinary action against commune-level civil servants fails to impose disciplinary action within the prescribed statute of limitations, they may themselves be subject to disciplinary action ranging from reprimand to dismissal.

5. Regarding temporary suspension of duties and cessation of work:

a) The temporary suspension of duties for commune-level civil servants who violate discipline shall be carried out in accordance with the provisions of Article 18 of Decree No. 114/2003/ND-CP and Article 10 of Decree No. 35/2005/ND-CP;

b) Commune-level civil servants who are temporarily detained by a competent authority for investigation and handling according to the law and have not yet received a complete conclusion on the violation shall not proceed with disciplinary action;

e) The temporary suspension of duties for commune-level civil servants shall only be implemented within the statute of limitations for disciplinary action.

6. Regarding the Disciplinary Committee:

a) The Disciplinary Committee consists of three or five members appointed by the Chairman of the People's Committee at the commune level. The Chairman of the Disciplinary Committee is a representative of the leadership of the People's Committee at the commune level;

b) The composition and operational rules of the Disciplinary Committee shall be implemented as prescribed in Clause 2, Article 19 of Decree No. 114/2003/ND-CP;

c) The working principles of the Disciplinary Committee and the participants invited to attend meetings of the Disciplinary Committee shall be implemented as prescribed in Article 12 and Article 13 of Decree No. 35/2005/ND-CP. Additionally, if a commune-level civil servant violates discipline during the previous term and a new leader is appointed in the current term, the Disciplinary Committee for commune-level civil servants may invite the previous term's leader to attend the meeting of the Disciplinary Committee;

đ) Individuals related by family ties to the commune-level civil servant who violated discipline as stipulated in Clause 4, Article 1 of Decree No. 35/2005/ND-CP shall not be allowed to participate as members of the Disciplinary Committee, including:

- Father, mother; foster father, foster mother of spouse recognized by law;

- Father-in-law, mother-in-law (or father-in-law, mother-in-law);

- Spouse of the violator; brother, sister; brother-in-law, sister-in-law recognized by law;

- Biological child, daughter-in-law, son-in-law, adopted child recognized by law.

7. Regarding the procedure and process for considering disciplinary action:

a) Preparation work and the procedure for convening the Disciplinary Committee shall be carried out as prescribed in Article 15 and Article 16 of Decree No. 35/2005/ND-CP;

b) A commune-level civil servant who violates discipline shall be notified by the Disciplinary Council with a summons at least seven working days before the Disciplinary Council convenes;

c) In cases where a commune-level civil servant who violates discipline refuses to write a self-criticism report and accept the form of disciplinary action or fails to attend the self-criticism session without a valid reason, the agency still convenes a meeting to conduct the self-criticism of the violator, and the Disciplinary Council still convenes a meeting to examine and handle the disciplinary action;

d) For a commune-level civil servant who arbitrarily absents themselves from work after being summoned three times by the agency but does not appear, the Disciplinary Council still convenes a meeting to consider recommending disciplinary actions according to regulations;

đ) In cases where multiple commune-level civil servants within the same agency violate discipline, the Disciplinary Council may examine and handle them in the same session. The minutes of the meeting are recorded according to the procedure for examining discipline against each individual commune-level civil servant who violated discipline;

e) When the agency convenes a meeting to criticize a commune-level civil servant who violates discipline, it must analyze and clearly point out the violations to educate and assist the violator in recognizing their own shortcomings to correct and improve;

8. The management of disciplinary case files for commune-level civil servants shall be carried out as prescribed in Article 22 of Decree No. 114/2003/NĐ-CP and Article 18 of Decree No. 35/2003/NĐ-CP;

9. In cases where a commune-level civil servant is on leave awaiting retirement procedures or has been transferred to another agency or organization and only then is a violation of discipline discovered, the previous agency of employment will proceed to examine and handle the disciplinary action according to current regulations. Subsequently, the entire file and disciplinary decision will be sent to the agency or organization currently managing the commune-level civil servant to be filed in the civil servant's record and monitored;

10. In cases where, after the establishment, merger, or division of communes, towns, or wards, a violation of discipline by a commune-level civil servant during their time at the former administrative unit is discovered, the agency currently having jurisdiction over the commune-level civil servant will proceed to examine and handle the disciplinary action. When the Disciplinary Council convenes, they may invite representatives of the leadership of the agency that directly employed the commune-level civil servant previously to attend and express opinions;

11. Regarding the examination and application of forms of disciplinary action:

a) The examination and application of forms of disciplinary action against commune-level civil servants who violate discipline shall be implemented as prescribed in Articles 20, 21, 22, and 25 of Decree No. 35/2005/NĐ-CP and Clause 5 (from Point 5.1 to 5.3 and from Point 5.5 to 5.11) Section II Circular No. 03/2006/TT-BNV dated February 8, 2006 issued by the Ministry of Home Affairs guiding the implementation of Decree No. 35/2005/NĐ-CP;

b) A commune-level civil servant who is currently receiving a salary coefficient at the first grade of the civil servant rank and who violates discipline shall only have one of the following disciplinary measures applied: reprimand, warning, removal from position, or dismissal;

12. If a Disciplinary Council examines and recommends a form of disciplinary action for a commune-level civil servant who violates discipline, but the competent authority has not yet issued a Disciplinary Decision and the agency subsequently discovers additional circumstances related to the violation of discipline or another act of violating discipline, the competent authority shall return the file to the Disciplinary Council to reconsider and recommend a new form of disciplinary action. In this case, the statute of limitations for examining and handling disciplinary action shall be calculated from the date of discovery of additional circumstances related to the violation of discipline or the discovery of another act of violating discipline;

13. Regarding the implementation of provisions related to commune-level civil servants who have been disciplined:

a) A commune-level civil servant who violates the law and is sentenced to suspended imprisonment, after being disciplined (except in cases of disciplinary dismissal), shall be assigned appropriate work in accordance with supervision and education requirements;

b) In cases where a commune-level civil servant is serving a suspended sentence and is transferred to another place, the agency responsible for supervision and education shall immediately notify the court to complete the necessary procedures to transfer the supervision and education responsibility to the agency where the person serving the suspended sentence is transferred;

c) During the period of serving a suspended sentence (including the probation period), a commune-level civil servant shall not undergo a review for promotion to a higher pay grade, and this period shall not be counted towards the time for considering promotion to a higher pay grade. However, the probation period shall be counted towards the total length of service;

14. A commune-level civil servant who is on leave awaiting retirement procedures and is found to have violated the law during the performance of duties prior to taking leave shall have the retirement procedures temporarily halted until the competent authority concludes the examination and handling of the disciplinary action;

15. Other provisions related to commune-level civil servants who are disciplined with dismissal shall be implemented as prescribed in Article 28 of Decree No. 35/2005/NĐ-CP;

16. For commune-level civil servants who are disciplined with demotion in pay grade, the following shall apply: A commune-level civil servant who is currently receiving a pay grade under a certain civil servant rank shall be demoted to the next lower pay grade of that rank. The time for considering the next pay grade increase shall be calculated from the time they were receiving the previous pay grade before the violation of discipline;

17. Commune-level civil servants disciplined with demotion in pay grade shall not have their pay grade increase period extended by an additional year (12 months). However, during the period when the Disciplinary Decision remains effective, the pay grade increase based on seniority shall not be processed. After the Disciplinary Decision ceases to be effective, the pay grade increase based on seniority shall be considered;

18. The termination of the effect of the Disciplinary Decision for commune-level civil servants shall be carried out as prescribed in Article 26 of Decree No. 35/2005/NĐ-CP, and the competent authority issuing the Disciplinary Decision does not need to issue a separate Decision terminating the effect of the Disciplinary Decision;

III. IMPLEMENTATION ORGANIZATION

1. Provincial People's Committees and municipal people's committees directly under the central government shall base on the authority to handle disciplinary actions for commune-level civil servants prescribed in Article 19 of Decree No. 114/2003/NĐ-CP to specifically define the delegation of authority to handle disciplinary actions for commune-level civil servants; specify the composition and operational rules of the Disciplinary Council, while directing the organization of training and equipping relevant documents for the implementation of disciplinary actions for commune-level civil servants to the heads of commune-level people's committees. Organize inspections of the handling of disciplinary actions for commune-level civil servants.

2. A full-time cadre at the commune level holding election positions such as Chairman, Deputy Chairman of the People's Council or People's Committee, if they violate discipline or commit a crime as specified in Section 2, Part I of this Circular, shall be subject to disciplinary action by the competent authority based on the Law on the Organization of the People's Councils and People's Committees.

3. A full-time cadre at the commune level who is the Secretary, Deputy Secretary of the Commune Party Committee, or the head of political-social organizations at the commune level, if they violate discipline or commit a crime as specified in Section 2 of this Circular, shall be subject to disciplinary action according to the regulations of the organizational charters of political and political-social organizations.

4. This Circular shall take effect fifteen days from the date of publication in the Official Gazette.

5. Any difficulties encountered during implementation should be reported to the Ministry of Home Affairs for study and resolution./.