The judges Carmen Cecilia Plata and María del Pilar Veloza, of the Contentious Administrative Court of La Guajira, agreed on the provisional suspension of the representative of the municipality of Urumita, Rafael Eduardo Ramos Herrera, appointed by the mayor (e), and Carlos Iván Daza Abril, temporarily appointed by the Council of that locality.
The two professionals had been holding office, in the midst of a legal controversy between the mayor and the councilors, whose actions were sued before the Contentious Administrative Court of La Guajira.
In the case of the representative Carlos Iván Daza Abril, appointed temporarily by the council, the act was demanded by Mrs. Rosa Juliana Ramos Peñate, while the appointment of Rafael Eduardo Ramos Herrera was demanded by the councilor Alcides Enrique Lago Duarte.
In the case of the representative Rafael Eduardo Ramos Herrera, the Court admitted the lawsuit filed by Alcides Lago Duarte, against the appointment act contained in decree 036 of March 1, 2024 issued by the mayor (e) of Urumita, for processing in a single instance.
In the ruling, the presiding judge Carmen Cecilia Plata decreed the provisional suspension contained in the aforementioned decree, and recognized the lawyer Sigifredo Wilches Bornacelli as mayoral representative.
In the development of the interventions, the municipal administration indicated that, in accordance with article 172 of law 136 of 1994, municipal mayors are empowered to appoint the representative in the absence of one.
He maintained that at the time of the issuance of resolution No. 008 of February 29, 2024, which temporarily appointed Mr. Carlos Iván Daza Abril as municipal representative in charge of the municipality of Urumita, there was no vacancy in the position.
He indicated that the appointment of Mr. Carlos Iván Daza Abril to the position of municipal representative was not made by the Municipal Council in a meeting of all its members but by the Board of Directors of this Corporation, who did not have the authority to do so. He pointed out that, given the lack of a representative and the absence of all the members of the Municipal Council in his election, the person competent to appoint him was the mayor of the municipality of Urumita.
He argued that the rule is clear in establishing that the election necessarily had to be carried out by all the members of the Council, that is, by the nine councilors that make it up; In this sense, the administrative act (resolution No. 008 of 2024) lacks validity and has no effect.
In this sense, the Chamber observed that, regardless of the qualification of the vacancy, the competence for the provisional provision of the position of representative can only correspond to the municipal council, since in addition to being the appointing authority for that position, it has the general function to resolve their absolute or temporary faults.
Furthermore, the mayor in charge of the municipality of Urumita lacked the authority to appoint the municipal representative of Urumita, even temporarily, given that a normative assumption was applied in the wrong way when proceeding to apply the second paragraph of article 172 of law 136. of 1994, to the extent that, apparently, it was based on the existence of a temporary lack, when what existed was an absolute lack of office due to the expiration of the period.
Regarding the situation of the representative, Carlos Iván Daza Abril, appointed by the board of directors of the Council, the rapporteur magistrate María del Pilar Veloza, reported that the claim was admitted in the first instance due to lack of jurisdiction, and declared the provisional suspension of the legal effects of his act of election.
Faced with this problem, the Chamber observed that, regardless of the qualification of the vacancy, the competence for the provisional provision of the position of representative can only correspond to the Municipal Council, since in addition to being the appointing authority, it has the general function of resolving on its absolute or temporary absences.
Thus, according to the evidence in the file, the lack of competence of the board of directors of the Urumita municipal council to appoint Mr. Carlos Daza Abril as representative is evident, since as has been maintained, the competence for this election lies in the full council, even if that election was temporary or provisional.
It was noted in the ruling that despite the fact that councilor López Rico presented proposal No. 009 to the full room of the municipal council of Urumita in order to be granted the power to elect the provisional representative to the board of directors of the Municipal Council, and that in turn the aforementioned corporation approved said proposal with 7 votes in favor and 2 against, the rule is clear in stipulating the competence of the full council as the body in charge of carrying out the election of the municipal representative, so It is not appropriate for this entity to delegate these powers to the board of directors of the municipal council without violating the aforementioned constitutional norm.
