Esteban Capdepón, former municipal secretary of the Benidorm City Council, governed by the popular Toni Pérez, refused on up to six occasions to answer the documentation requirements of the Valencian Anti-Fraud Agency (AVA) related to irregularities in the granting of licenses to hotels in the coastal town in the Marina Baixa region. The Anti-Fraud officials had to carry out the sixth request in person at the town hall, accompanied by agents from the National Police Corps Unit assigned to the Valencian Community. And even then the municipal secretary did not agree to deliver the documentation, even though by law he was obliged to collaborate with Anti-Fraud. The AVA imposed a fine of 5,001 euros on Capdepón, currently retired, which the official appealed. However, the fourth section of the Administrative Litigation Chamber of the Superior Court of Justice of the Valencian Community (TSJ-CV), in a ruling to which elDiario.es has had access, has dismissed the appeal, thus endorsing the sanction. .
The ruling, which is not final, affects the “active role” in the concealment of the documentation by the municipal secretary. In parallel, the city council filed a complaint against the agency’s officials, later filed by a Benidorm judge and by the Alicante Provincial Court.
Despite the obstacles in the wheels of the municipal secretary, the Anti-Fraud investigations (initiated after an anonymous alert in their complaints mailbox) concluded that up to nine hotels in Benidorm lacked a license, as reported by this newspaper. The AVA noted that the lack of hotel licenses “affects the public safety and health” of the residents of Benidorm and the “potential users and clients” of a town that highlighted its status as an “international tourist reference.”
Mayor Toni Pérez ended up sending part of the documentation although “without having attended to the full content of all the requirements,” as recalled in the sanctioning resolution of the AVA, extensively reproduced in the ruling “due to its interest in contextualizing” the procedure. contentious.
Faced with the first Anti-Fraud request, notified on June 12, 2020, a letter from the mayor of the PP hid behind the fact that the “material and human means necessary to be able to collect all the requested information” prevented the council from meeting the request.
The second requirement, notified on October 27, 2020, reiterated the demand for documentation, warned that the city council’s attitude could be considered an infraction and specified that the requested files must be provided through a report from the municipal secretary. Faced with the second notice from the AVA, Esteban Capdepón alleged that the Benidorm City Council had appealed a resolution of the Transparency Council regarding a request from an individual for information related to licenses for commercial establishments.
The council requested the suspension of the AVA requirement, arguing that the “only difference between both files” was the reference to commercial or hotel establishments and left Antifraud “waiting” for the resolution of the procedure, in charge of the same fourth section. of the Administrative Litigation Chamber of the TSJ-CV. The autonomous high court, as reported by this newspaper, agreed with the Benidorm City Council: although the individual’s request for licenses in commercial establishments was not “abusive”, the ruling recognized the difficulties in obtaining data from a census formed for 4,733 records.
The third requirement of the AVA, notified on December 3, 2020, “expressly” reiterated the request for a report by the municipal secretary. Anti-Fraud warned that the council’s refusal was “unfounded”, since its request had “no relationship” with a request for information from an individual under the Transparency Law. However, Benidorm City Council responded by attaching the resolution of the Transparency Council and the appeal filed before the TSJ-CV.
The fourth requirement, notified on February 5, 2021, also fell on deaf ears. The municipal secretary submitted the contentious appeal to the resolution of the Transparency Council, indicating that he was “waiting” for the TSJ-CV to issue a ruling.
After the “absolute lack of attention” of the municipal secretary, the fifth request, notified on May 3, 2021, “expressly” warned that the Anti-Fraud officials would appear “personally” at Benidorm City Hall if it was not attended to, as It finally happened.
On May 12, 2021, Anti-Fraud officials went to Benidorm City Hall accompanied by agents from the Regional Police of the Generalitat. Although “initially” they were going to be attended to by Mayor Toni Pérez, it was the municipal secretary who “personally refused to provide the documentation,” relying on the contentious appeal against the request of an individual under the Transparency Law (which had not even been resolved yet by the TSJ-CV). Esteban Capdepón confirmed that he had “answered all the previous requirements.”
Finally, on June 21, 2021, the mayor relented and ended up sending – more than a year after the first Anti-Fraud request – a letter with part of the requested documentation and a report from the municipal secretary. Even so, the first mayor omitted four certificates and two files requested by the Anti-Fraud Agency, “necessary for the correct exercise of investigative powers.”
On March 19, 2022, a month and a half after the investigation into the hotel licenses concluded, the then director of the AVA, Joan Llinares, issued the sanctioning resolution that imposed a fine of 5,001 euros on the municipal secretary when considering that the lack of attention to the requirements represented a “breach of their obligation to collaborate”, established in the law that regulates the AVA.
The official “failed” to collaborate with Antifraud
The municipal secretary appealed the sanction, alleging that the start of the procedure could only begin once the investigation proceedings were concluded and the requested documentation had been “provided”. For its part, Antifraud considered that the investigation actions and the sanctioning procedure were “different files” and that Capdepón “disregarded” the requirements of the AVA and “pertinaciously and consciously did not respond to the requests to provide the documentation and reports that “They were notified.”
The municipal secretary also alluded to the “manifest incompetence” of the director of the Anti-Fraud Agency to sanction a nationally authorized official. The AVA, for its part, maintained that Capdepón confused disciplinary power with sanctioning power. The official also considered that a municipal secretary “does not decide whether or not to send documentation, he only advises.” On the contrary, Antifraud reproached him for “he was the one who determined the documentation that was sent and provided (or not)” to agency officials.
Furthermore, Capdepón claimed that the AVA investigation procedure “had expired,” to which Antifraude responded that it was a resolution “unrelated” to the contentious appeal.
The ruling of the TSJ-CV, for its part, concludes that the appeal is limited to the contested act, that is, to the sanction imposed for a serious violation. The ruling indicates that the AVA can exercise sanctioning power “with autonomy” with respect to investigation procedures, as it does not “expressly” have restrictions on the matter either in its founding law or in its regulations.
Furthermore, the obligation to actively collaborate or provide information to the agency “reaches all personnel serving public entities.” The ruling confirms that the municipal secretary “breached” those obligations. The TSJ-CV also does not detect a “collision with local autonomy” and highlights that the function of a municipal secretary includes both public faith and mandatory legal advice.
Thus, the court concludes that it was the official “who was responsible for attending to the request made by the agency.” The ruling imposes on Capdepón, for a maximum of 1,000 euros, the costs of the procedure.
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