The request for an opinion formulated by a Municipality on the subject of the regulation of the so-called surplus bypass is objectively inadmissible as it is not attributable to the subject of public accounting, as set out in the accounting jurisprudence (Corte Conti, Control Reg. Section for Lazio, Resolution no. 99/2022 – text at the bottom).
The story
With a note dated 2 August 2022, the Council of Local Autonomies of Lazio sent a request for an opinion from the Mayor of the Municipality of Esperia to the Court of Auditors of the same region.
The question introduced with this request concerns the correct interpretation of article 22, paragraph 2, of the CCNL of 21 May 2018, according to which “pursuant to article, paragraph 4, d.lgs. 66/2003the duration of working hours cannot exceed the average of forty-eight hours per week, including overtime, calculated with reference to a six-month period of time”.
With the application, it is asked whether the aforementioned article 22 and, in particular, the time limit of six months are valid exclusively for normal working hours or whether they also apply to the so-called excess bypass, referred to in article 1, paragraph 557, L. 311/2004given that if this were the case, the institutions could use personnel from other administrations for a limited period of time (six months), thus leading to a situation of discontinuity of services.
It should be noted that in the so-called surplus bypass, an institution used in municipalities with a population of less than 5000 inhabitants, the worker, while remaining tied to the employment relationship (full-time) with the original body), performs additional work services in favor of one of the entities indicated by the law, by virtue of the authorization of the administration of origin.
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Unlike the shared bypass (art. 14 CCNL 2004 of the personnel of the Regions and local autonomies sector), the surplus bypass entails that the activity is carried out outside ordinary working hours, at another body, for a maximum number of 12 hours, not being able to exceed 48 hours per week (in practice, 12 hours outside the ordinary 36-hour schedule).
This institute represents a conspicuous exception to the principle of the uniqueness of the employment relationship expressed by article 53 of Legislative Decree 165/2001.
The Court of Auditors for Puglia (resolution n. 80/2022/PAR) has found that the provision of art. 1, paragraph 557, Law 311/2004, providing for an employment relationship, which constitutes a unicum in the panorama of public employment, can only operate in compliance with the requirements and limits established by the law.
In compliance with the constitutional principle of good performance and impartiality of the administration, according to the opinion of the Apulian accounting judge, the decision to use the working activity of the full-time employee of another administration is left to the will and discretion of the entities, provided that all the requirements set by the legislator are present.
Just as the assessment of granting the authorization is discretionary where it does not prejudice the correct and timely performance of the activity at the institution to which they belong and does not interfere with the institutional tasks, without prejudice to the employee’s willingness to work for different.
Remuneration, for additional work (even of a different type), carried out in a Municipality with a population of up to 5,000 inhabitants (or in other bodies envisaged by the legislation in question) must necessarily comply with the constraints and parameters established by the relevant collective agreements .
The reasons for the decision
The request was deemed admissible and admissible from a subjective point of view, as it was advanced through the Autonomies Council by the Mayor, legal representative of the entity, ex article 50 of Legislative Decree 267/2000.
However, on the objective side, the Court reiterated that it cannot offer generalized consultancy, which involves assessments of administrative behavior pertaining to specific cases or management facts; in fact, the advisory function cannot result in a surreptitious method of “co-administration” (ex multis, Marches contr. Section, resolution no. 21/20/2/PAR) and cannot invest behaviors susceptible to evaluation by the Prosecutor of the Court of Auditors or of other judicial bodies (Section auton, resolution 24/2019/QMIG).
Concerning the interpretation of collective bargaining, the request is inadmissible on an objective level, as it cannot be traced back to the subject of public accounting (ex multis, Tuscany contr. section, resolution no. 255/2019/PAR and contr. section Veneto, resolution 131/2021/PAR).
In fact, as observed in the nomophylactic section (Section of autonomy, resolutions n. 5/2022/QMIG and n. 9/2022/QMIG), the dynamic extension of the notion of accounting does not pertain to the matters considered per se, but rather to the specific questions which, within the ambit of these subjects, may arise in relation to the interpretation of those rules of coordination of public finance, which set limits and prohibitions instrumental to the achievement of the specific objectives of expenditure containment; therefore, when the request for an opinion does not solicit the interpretation of these rules, it is beyond the objective limits of competence, referred to in article 7, paragraph 8, Law 131/2003.
In this specific case, the question on the regulation of excess bypass does not raise interpretative problems capable of having repercussions on financial management and budget balances, but invests the administrative organization and the employment relationship, with possible interference with the scope of knowledge reserved for another jurisdiction.
The Court therefore declared the objective inadmissibility of the request for an opinion illustrated.
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Section Lazio control, resolution no. 99/2022