The request for an opinion, made by the Mayor of a municipality, concerning the merits of a transaction, is inadmissible from an objective point of view, since the question asked not only does not concern the interpretation of a public accounting standard, but appears aimed at obtaining evaluations pertaining to the concrete administrative management activity of the institution, highlighting, among other things, possible interferences and overlaps with other functions of the Court of Auditors and other magistracies (Court of Auditors, Reg. Control Section for Emilia-Romagna, Resolution No. 160/2022 – text at the bottom).
The story
The Mayor of a municipality presents a request for an opinion, pursuant to art. 7, paragraph 8, of the law 131 of 2003asking if it is possible for the institution to reach a transaction proposed by a telephone operator, concerning:
- waiver by the manager of the payment of legal fees settled in his favor;
- renounces to appeal with payment of the costs of registering the sentence to be paid by the Municipality;
- reciprocal concessions concerning the sum previously ordered by the Municipality, for non-payment of concession fees for the occupation of a municipal building used for the installation of a radio base station for mobile telephony, and that to be repaid by the Municipality, following a opposition to the injunction of the municipal collection concessionaire, victoriously tried by the telephone operator.
The Council of Local Autonomies, by virtue of the agreement in place with the Section, has processed the request for an opinion, deeming it inadmissible from an objective point of view, as it does not pertain to the matter of public accounting and in contrast with the need to represent to the Court itself questions of a general and abstract nature, having instead the request of the Municipality regarding profiles of a purely managerial nature.
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The opinion given by the Control Section of the Court of Auditors for Emilia Romagna
The Court previously declared the request for an opinion admissible from a subjective point of view, as formulated by the mayor of the municipality, a body and entity entitled to resort to the consultative assistance of the Court of Auditors.
He noted that, on the objective side, it is necessary to establish whether the question before him pertains to the subject of public accounting, presents the requirement of generality and abstractness, does not interfere with other functions performed by the accounting judiciary or of a different jurisdictional order.
During the audit, the Sections Joint in resolution number 54/2010 (as reaffirmed by the Autonomies Section in resolution 5/2022), clarified how further matters, unrelated to public accounting, can nevertheless be considered attributable to it, if the profile considered both the one inherent to budget balances rather than to the management of the same.
The question, according to the Court consulted, concerns a matter which does not ask for the interpretation of a public accounting rule, but rather the unquestionable choice of the administration to reach a settlement.
The request, focusing on a specific concrete case, does not respect the canons of generality and abstractness and is clearly aimed at obtaining a decision, which falls within the exclusive discretion of the entity.
An involvement of the Regional Section in specific managerial or even instrumental problems must be excluded (resolution 17/SEZAUT/2020/QMIG).
Otherwise, by opining, the position of impartiality and independence, which distinguishes the Court of Auditors as a judicial body, would be lost.
Therefore, the body cannot make requests aimed at obtaining a prior or subsequent endorsement from the accounting judiciary with reference to the definition of specific management acts.
The request for an opinion originates from a court sentence, issued following an opposition to an injunction; for this reason, it could lead to some interference with ordinary jurisdiction.
The Autonomies Section, with resolution no. 24/SEZAUT/2019/QMIG, reiterated that the consultative function of the Court cannot be performed with reference to questions concerning administrative behaviors susceptible to evaluation by the Prosecutor of the same Court or other judicial bodies, in order to prevent the opinions prefigure solutions that cannot be reconciled with subsequent rulings by the competent bodies of jurisdiction (ordinary, administrative, accounting, tax).
Indeed, the consultative function of the Court of Auditors cannot in any way interfere with and, least of all, overlap with that of the judicial bodies.
The Section cannot even pronounce on the reasonableness, understood in terms of opportunity and convenience for the entity, of a potential transaction.
However, in some rulings, it focused on the conditions and limits within which public administrations can stipulate transaction contracts.
The Control Section is only responsible for recalling that a detailed motivation is required, which takes account of the logical path followed to reach the settlement settlement of the dispute, also on the basis of a prognostic judgment regarding the outcome of the dispute. He points out that there is an opportunity to acquire the opinion of the Attorney, if any, and of the auditing body, in the case of a proceeding, which must end with a resolution of the Board, also with reference to proceedings relating to the approval of transactions not within the competence of the same, where of particular importance and relating to disputes of considerable size.
However, if the functions of the auditors have not been previously expanded by regulation, pursuant to article 239, paragraph 6, TUEL, there is no obligation on the part of the internal control body to render the opinion.
The Court therefore considered the request for an opinion, presented by the Municipality, inadmissible from an objective point of view, since the question asked not only does not concern the interpretation of a public accounting rule, but appears aimed at obtaining indications on the adoption of a specific conclusive provision of a settlement agreement.
The opinion is also intended to obtain assessments pertaining to the concrete administrative management activity of the entity, highlighting, among other things, possible interferences and overlaps with other functions of the Court of Auditors and other magistracies.
For these reasons, the Section declared the request for an opinion formulated by the municipality to be objectively inadmissible, arranging that its resolution be sent to the Mayor of the territorial body and to the President of the Council of Local Autonomies of the Emilia-Romagna Region.
He invited the Municipality to proceed with the publication of the resolution on the institutional website, pursuant to article 1, paragraph 9, of the law of 6 November 2012 n. 190 and in compliance with the general principle of transparency, understood as total accessibility of data and documents held by public administrations, also in order to favor widespread forms of control over the use of public resources, pursuant to article 1, paragraph 1, legislative decree 14 March 2013, n. 33.
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