Del. Court of Auditors, Sec. regional control for the Veneto, January 10, 2008, No 2
(...) In its meeting of January 10, 2008, consisting of: Bruno
PROTA CARLESCHI Board Chairman Aldo
Elena BRANDOLINI Referendary Rapporteur
Alberto Rigoni Referendary
VISA art. 100, second paragraph of the Constitution;
GIVEN the Consolidated Law on the Court of Auditors, approved by Royal Decree of 12 July 1934, No 1214, as amended; VIEW
the Law of 14 January 1994, no 20, laying down rules on jurisdiction and control of the Court of Auditors;
GIVEN the Regulations for the organization of the Court's audit of the accounts with which it was established in each Region a Regional Branch of ordinary self control, resolved by the United Chambers on June 16, 2000;
VISTA law June 5, 2003, No 131 laying down rules for the adaptation of the law of the Republic of cost. October 18, 2001, No 3, in particular art. 7, paragraph 8 °
VISA guidelines and criteria for conducting consultative approved by the Chamber of self-government in the assembly
of April 27, 2004;
having received a request for an opinion submitted by the Mayor of Falcade (BL) dated 16/11/2007, received here on November 22, 2007 and acquired the prot. No 8780 / 9;
VISTA Ordinance No. 2/2008/Cons. January 9, 2008 by which the President of this Chamber of Control has convened the Section for today's session;
HEARD the judge rapporteur report Referendary Elena BRANDOLINI;
FACT
By letter prot. No 10895, 16.11.2007, on the file on November 22, 2007 prot. No 8780 / 9, the Mayor of Falcade (BL) submitted pursuant to art. 7, paragraph 8 of the Law of 05.06.2003, No 131, this section control, for an opinion on the containment of personnel costs to safeguard the public finance objectives.
FACT
The Mayor of Falcade (BL) submitted to this control section for an opinion to obtain a final resolution on the proper interpretation and application of Article. 16 of the Negotiable segment of the January 22, 2004 in relation to the benefits of supervision.
Specifically, the question asked by the Mayor of Falcade inherent in the identification of those that must be paid the allowance in view of the fact that Article. 16 of the Negotiable sector has on the 22.01.2004 alla corresponsione della predetta indennità nei confronti del “ personale dell’area di vigilanza non svolgente le funzioni di cui all’art. 5 della L. n. 65/86 ”, la giurisprudenza dei tribunali amministrativi regionali costantemente afferma la non spettanza della indennità de qua nei confronti dei tecnici comunali che espletano attività di vigilanza edilizia, ritenendo che tale trattamento sia riservato solo a formali qualifiche funzionali di inquadramento e che, da ultimo, nel 2003, invece il Consiglio di Stato, con sentenza n. 7232, abbia ritenuto, che “ secondo indirizzi della Corte di Cassazione cui si richiama parte appellante nell’atto introduttivo di questa fase di giudizio, confirmed in a binding declaration in this case with the competent public prosecutor (see note dated December 30, 1989 No 1024/89) and according to the text as art. 26 fourth paragraph Lett. f) of Presidential Decree 347/1983 does not appear doubtful attributable to employees of municipal engineering departments called to check on violations of housing allowances in relation to the recognized quality supervision of police officers .
In making the required standards, the Mayor is also that, in light of the above representation, the above allowances must be recognized and responded in reference to years past, except the requirements five years.
LAW
The analysis will examine the contents of the note describes the nature of the request for an opinion under Article. 8th paragraph 7 of Law June 5, 2003, No 131 and highlights the suitability both in terms of subjective legitimacy as mayor of the municipality from the applicant that under the objective of the request for its relevance to the field of public accounting and, more specifically, the containment of expenditure for the personnel to safeguard the public finance objectives.
That said, after examining the relevant legislation, the Department gives the following notice:
framework law on the organization of Municipal Police (Law No. 65/85) provides the benefits attributable to the supervisory personnel only formally included in the exercise of supervisory functions (Articles 5 and 10) of the criminal police, traffic police, and the auxiliary functions of public security carried out by staff at the service of municipal police, which the Prefect has conferred the status of "public security agent" after the establishment of the required qualifications. The next Presidential Decree 268, May 13, 1987, on " standards resulting from the rules provided by the auditors for the years 1985-1987, on to fund staff of local "art. 34, 1 co. Lett. a), established in favor of the gross annual compensation of the supervisory staff engaged in the functions of Articles. 5 and 10 of L. 65/86, as well as gross annual compensation payable to the remainder of the supervisory staff which was not mentioned in the exercise of delegated functions, including establishing the payment of compensation by a different amount.
As also noted by the Court on the merits, the rule has operated within the area of \u200b\u200bsupervision of those employees, a distinction between those who carry out the functions laid down in Articles. 5:10 L. 65/86 and remaining staff that they will not carry. Although the art. 47 CCNL to paragraph 1, lett. v), in the art. 72, paragraph 1, of Legislative Decree no. No 29/93, provides expressly for the inapplicability of the letters. a) art. Presidential Decree No. 34 268/1987, regarding the allocation of compensation attributable to de quo was maintained and represented also by art. Negotiable 37, 1995, which in subparagraph. b) recognizes that benefit not only the " supervisory staff of the (....) meeting the requirements and the performance of the Article. 5 of L. No 65/86 "but also" to the remaining staff AER not engaged in supervisory functions in art. 5 of the Act. " Even
collective agreements (four regulatory 2002-2005) have retained substantially (Article 16) the distinction between staff (meeting requirements) engaged in the tasks stipulated in art. 5 L. 65/86 and that, while belonging to the area of \u200b\u200bsupervision, it performs the functions of judicial police, traffic police and public security and the innovations introduced in the field of negotiation were of the quantum of compensation payable.
The analysis, therefore, the regulatory framework, shows that the legislature has expressly identified the beneficiaries of the allowance should be paid ie: those who are formally incardinated in the area of \u200b\u200bsupervision. Within the latter, then the rule, designed by the further distinction between:
a) staff performing real functions of supervisory and operational functions that (police personnel engaged in the functions of municipal police service, traffic police , auxiliary functions of public security) which has been formally given the status of "public safety officer "
b) the remaining staff formally belonging to the supervisor but without that status. The difference between the
two categories is only the amount to be paid. Otherwise, would not make sense, given the text of the second paragraph of the article " for the remainder of the supervisory personnel who do not perform the duties under Article. 5 of Law No 65/86, the allowance is increased by € 25.00 for twelve monthly gross .
It follows that the compensation at issue can not be paid to patients in areas other than typical of the Supervisory Board.
The above decision of the Council of State (No. 7232 of 2003) is not relevant because it decides on a different situation or the lack of coverage of expenditure and only incidentally addresses the question of compensation for supervision, but without comment on the substantive aspect of the story.
PQM
Section for the Veneto regional control renders its opinion in terms of which in part motivated.
copy of this resolution be forwarded by the Director of the Secretariat, the Mayor of the relevant administration. So
resolved in Venice, the Chamber of the Council of 10 January 2008. (...)
Filed in Office January 16, 2008 (...)
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