The Council of State confirmed the loss of the investiture of councilor Hernán Sogamoso Guzmán. Discarded the admission to the corporation of the priest Edwin Lombo, president of the recall.
RICARDO AREIZA
unidadinvestigativa@lanacion. com.co
The councilman of Campoalegre (Huila) Hernán Sogamoso Guzmán will have to leave the seat he held for two years.
The ‘political death ‘ decreed for violation of the disability regime was confirmed by the Council of State.
“Despite knowing the disabilities by signing the contract, Sogamoso Guzmán decided to run for office and be elected councilman incurring thus in an unjustified seriously negligent conduct”, explained the Nubian magistrate Margoth Peña Garzón.
The First Section confirmed the loss of investiture that the Administrative Court of Huila decreed on April 29 of 2021.
The decision adopted last December was officially notified yesterday by the corporation.
Sogamoso, a young professional in occupational health ional, was elected councilor of the municipality of Campoalegre by the Colombia Renaciente party (constitutional period 2020-2023). The list obtained a vote of 1,049 votes, reaching one seat.
However, after two years of occupying the seat, he will have to abandon his seat as he has been left with a permanent disability that will prevent him from holding popularly elected positions.
His co-party, Alexander Walles Vargas, who shared the list in the elections of October 27, 2019, sued him because in his opinion, he violated the regime of disabilities due to having been a contractor.
The lawsuit
Walles Vargas, nursing assistant, who held the fifth vote on his list, denounced that Sogamoso Guzmán had entered into a contract for the provision of professional services with the municipal administration, a circumstance that vitiated his election.
The contract was executed between 26 November and December 25, 2018. Since its run ended on December 25, 2018, only seven months elapsed before it was registered as or candidate for the local council and was later elected.
“So the legal assumptions for the inability to operate were met,” Walles argued when demanding the loss of investiture, removing him from the corporation .
The lawsuit was filed on February 10 and was admitted on the 22nd of the same month by Judge Ramiro Aponte Pino, who declared his ‘political death’.
Lifetime
The loss of investiture is a jurisdictional sanction of a disciplinary nature, which is imposed on members of public corporations , who are stripped of their dignity, and disqualified for life from occupying positions of popular election in the future.
Given its constitutional origin, it is an autonomous institution, regulated by its own procedure, whose knowledge was assigned to the contentious-administrative jurisdiction, and has been conceived as an instrument of citizen control, aimed at guaranteeing the ethical performance of and the people who hold elected positions.
The defense
Sogamoso Guzmán, registered with the endorsement of the Colombia Renaciente movement, despite the contract that ended his political career.
The political leader warned that he did not incur any grounds for disability since, although he signed a contract for the provision of professional services with the Municipality of Campoalegre (Huila), he did not execute it.
During the time he was linked to that territorial entity, he served as an employee under the reality contract modality , regarding which the three constitutive elements of the employment relationship converged.
He clarified that he always served as a servant of the municipal mayor’s office; because they required him to comply with a schedule, he received remuneration, he was subordinate to the supervisor and he “delivered” his job.
In his opinion, these circumstances make up a real contract and the elements structural aspects of an employment relationship (in application of the constitutional principle of the primacy of reality over formalities).
In addition to the fact that their functions “did not entail jurisdiction or political, civil, administrative or military or organization of spending, and therefore they are not suitable for any reason of incapacity”.
In other words, that he was not a contractor, but rather maintained a subordinate employment relationship. And it showed that on October 14, 2020 (before the loss of investiture was established), he requested the municipality to pay the emoluments derived from the employment relationship that took place between November 26 and December 25, 2018.
But in addition, he argued that convinced of that relationship, he processed a preliminary conciliation before the Attorney General’s Office.
However, the judicial attorney David de La Torre, estimated that in this case it was not possible to prove that the defendant councilor acted with the conviction of violating the disability regime.
“When in doubt and after assessing the evidence, the doubts must be resolved in favor of the ‘accused’, he affirmed.
Substantive reasons
Despite the arguments presented by Sogamoso Guzmán, the Council of State, maintained the loss of investiture decreed in the first instance by Judge Ramiro Aponte Pino.
“You cannot have the councilman’s argument as a defense of guilt according to the qua l, incurred in the configuration of disability as a result of an intimate and mistaken conviction that arose at the time of entering into the contract for the provision of professional services that led him to think that he had actually been linked to the employment of the staff of the Mayor’s Office Municipality of Campoalegre (Huila), or that, after that, it was denatured to become a real contract with labor and regulatory implications”, explained the Nubian magistrate Margoth Peña.
“The body of evidence is overwhelming – he said- by showing that, contrary to what was stated in his defense, Mr. Hernán Sogamoso Guzmán knew and had full knowledge of the business nature of the contract he entered into” – ,
It also demerited the prejudicial conciliation before the Attorney General’s Office.
“The truth is that this does not exempt the councilor from his grossly negligent action nor does it allow him to disprove the negligence and inexperience with which acted to l hold a business with the public entity for which he was subsequently elected as a member of its municipal council”, he specified.
Conclusion
“In short, for the Chamber it is clear that the censored conduct, -intervention in the execution of a public contract-, was displayed by Mr. Hernán Sogamoso Guzmán, knowing that he was disqualified to register and be elected municipal councilor of Campoalegre (Huila) and, even so, he chose to participate and be elected in the elections, in a gravely negligent and reckless manner, despite the fact that he had the cognitive capacity to have recognized that that action prevented him from his electoral aspiration”, the magistrate concluded.
The successor
Sogamoso already he will not return to the corporation that begins ordinary sessions next February 1st.
He will be succeeded by community leader José Santos Gracia Gutiérrez, second on the list. The new councilor was serving as president of the Community Board of the Panama neighborhood.
“I have not been notified but it is a fact that I will assume the seat”, confirmed Gracia.
“Although it is not an impediment, I have already resigned from the board and now I hope to assume the seat that corresponds to me on the Council,” he assured.
Yes, he warned that he will not support the recall of Mayor Elizabeth Motta, promoted by some members of her party. “I have no interest in this cause and I will try to serve my community,” he said.
The announcement ruled out the incorporation of the Vetero-Catholic priest, Edwin Lombo Moncaleano, current president of the Committee of Revocation. The religious leader, one of the serious opponents of Mayor Elizabeth Motta Álvarez, ranked third on the list of the political movement.
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