FACT
The Municipality of Florence has given various management positions to external
your organization on the basis of art. 18 of the Municipal Regulations on the structure of
offices and services, and between them the arch. Stefano Fanfani was appointed as head of urban planning
office by resolution of council 2009/G/534. This measure is being challenged
by the applicant, placed second in the ranking of a public competition for
a directorship technical administration, con gravame notificato il
22 gennaio 2010 e depositato il 28 gennaio 2010 per violazione di legge, incompetenza ed eccesso
di potere sotto diversi profili.
Si sono costituiti il Comune di Firenze e la controinteressata chiedendo l'inammissibilità e
comunque il rigetto del ricorso nel merito.
La controinteressata, con ricorso incidentale notificato l'8 febbraio 2010 e depositato il 9 febbraio
2010, ha impugnato la procedura concorsuale all'esito della quale il ricorrente si è utilmente
collocato nella relativa graduatoria.
Con ordinanza n. 112 del 10 febbraio 2010 è stata accolta la domanda incidentale di sospensione.
The Administration summoned, acting giuntale 2010/G/31, annulled the contested decision
and by order of February 12, 2010 No union 65 has again entrusted to
defendant charged under discussion. Even these measures have been challenged with
additional grounds, notified 9 March 2010 and filed on March 11, 2010, requesting the temporary suspension
.
By Ordinance No. 231, 24 March 2010 the application for the suspension was upheld
censoring the non-performance of a selection procedure preceded by public notice for the identification of the subject
which give the position in examination.
The Administration, in accordance with Resolution No. giuntale April 13, 2010 72
has ordered the holding of a public selection for the cover of the assignment. The call was made with
public notice on April 15, 2010 stating that the selection was carried out by
the comparative examination of professional resumes and possible interview by a special
Board. The procedure was also attended by the applicant. The outcome of the investigation
the task was again given to the defendant, by order of union
September 8, 2010, No 419. At the hearing on 20
ottobre 2010 la causa è stata trattenuta in decisione.
DIRITTO
1. La presente vicenda trae origine dalla scelta dell’intimata Amministrazione di conferire l’incarico
di responsabile dell'ufficio di pianificazione urbanistica mediante ricorso alle potestà di cui all’art.
110 del d.lgs. 18 agosto 2000, n. 267 anziché con indizione di pubblico concorso o scorrimento
della graduatoria concorsuale tuttora in corso di validità, nella quale il ricorrente è il primo degli
idonei1.1 Con il ricorso originario il ricorrente impugna la deliberazione di Giunta 2009/G/534 e, in parte
qua, il presupposto regolamento comunale on the structure of offices and services with the first ground complaining
incompetence and violation of constitutional principles relating to access to
public service, as the entrustment was not preceded by the conduct of insolvency proceedings
public. Also argues that the post is not intended to cover
a function of highly specialized but of managerial responsibility, the type for which the same
municipal regulation provides that the award is made following the publication of a notice
. With
second alleges that the task entrusted to the defendant, would exceed the limit of
total staffing of the leadership and the area within which the directive is allowed
the recruitment of external administration. In fact he said the percentage of posts that
can be outsourced, fixed at 4% from municipal regulation
sorting offices and services, should be calculated on the basis not only of management personnel
, the only officials who hold organizational positions.
1.2 With additional reasons the applicant challenges the decision giuntale 2010/G/31 which reversed the decision
union ordinance originally weighed 12 No February 2010 65, which has
again the task entrusted to the defendant at issue, reiterating the grounds of appeal
excluding the original complaint of incompetence.
1.3 The Administration summoned challenge the admissibility of the application because the applicant was
enabled to take part in a public, as called for, and acceptance
of action could not then make no use since the ' Directors
determined the effect of exercise the function in question by means of fixed-term contract and
not with the previous slide rankings.
It says the action is also unacceptable because the expectation of the scrolling list of
in which the applicant is included in the nature of a mere expectancy done impingendo
evaluations on administrative discretion. On the merits, reply promptly to the deduction of
applicant.
1.4 The other party is associated with replicas of the defense and municipal
appeal challenging the outcome of the insolvency proceedings which the applicant was properly placed in
on the list. Shows that the task is assigned a fixed period and the claimant could claim
no position protected by its inclusion in a list for
recruitment, however, in perpetuity.
The appellant challenges the admissibility of the appeal el'inammissibilità
given the diversity of the proceedings upon which acts with the same severity, and lack of interest,
vagueness and lack of specific complaints against the contested measures.
2. The original application must be dismissed for lack of interest declined jurisdiction, because of the cancellation occurred
intimated by the administration of the measure with the same
contested.
3. The dispute focuses on the first and then use additional grounds that, like the original
, complains that a procedure has been completed for comparative
identifying the charge of the engagement in question, which however could not qualify
in terms of "highly specialized" but it would be a responsible leadership. Also
argues that the designation would be done in excess of the limit specified by the percentage municipal regulation on the structure of offices and services and
still art. 110, Leg. 267/00.
3.1 The first ground declined jurisdiction must be dismissed because the Administration, by creating
be a selection procedure, has satisfied the applicant's interest in instrumental
to participate in a competition for the appointment of de quo. Thus it is therefore failed to stop
of purpose.
in order to rule on costs in accordance with the criterion of unsuccessful virtual
the Board notes that the plea was well founded because art. 110 of Legislative Decree no. 267/00, in
allow local authorities to appoint senior management positions of responsibility
term contracts, which shall not relieve them from carrying out procedure concorsuali. Ne segue quindi che in
applicazione del generale principio, di rilevanza costituzionale, in base al quale l'accesso ai pubblici
impieghi può avvenire solo per concorso, l'affidamento di detti incarichi non può non essere
preceduto da una procedura selettiva adeguatamente pubblicizzata (T.A.R. Campania Napoli V, 9
dicembre 2002 n. 7887).
3.2 Il Collegio ritiene che il ricorrente conservi comunque interesse alla decisione sul secondo
motivo di ricorso, poiché il suo accoglimento determinerebbe la caducazione della procedura
effettuata e dell'affidamento dell'incarico de quo.
La difesa comunale sostiene that the appointment of suitable vacancies in by scrolling a list
effective is an option and not an obligation of the administration falls within the
discretion of the institution and may not be subject to judicial review. The Board agrees
on those findings, according to the jurisprudence of the Court of Appeal (SC V, 18
December 2009 No 8369), and yet believes that the applicant has an interest in the decision because
acceptance of the plea would outcome, at least, the launch of a new procedure
competition for filling the post in question. In this way, would be reconstructed
his chances to access the assignment. In this regard, the applicant claims an interest in instrumental
which the Court has affirmed the long legal significance. The acceptance of the plea, if
is unable to determine access to the good life that is the coveted designation of
into question, however, is likely to increase its legal heritage through an injection
chanches to obtain the new use.
The reason for this action, however, is unfounded.
Article. 110 of Legislative Decree no. 267/00 identifies the basis on which to calculate the percentage of positions delivered to
fixed in "the leadership and staffing of the Directive." Not being
dispute the meaning of the first term, he maintains that the area directly
be taken into account for this purpose would be the only officials with responsibility for
organizational position.
The Board does not agree with this reconstruction.
The rule should be interpreted in the light of classification of personnel
made by the National Collective Labour March 31, 1999, which established the category "D"
providing art. 8 that the inside can be established for jobs "that require
with direct recruitment of high product liability and result:
a) the holding of management functions of organizational units of particular complexity,
characterized by high degree of management autonomy and Organizational b) conducting business with content of high professionalism and expertise related to
degrees and / or universities and / or membership of professional bodies;
c) conducting activities of staff and / or study, research, inspections, supervision and control
characterized by high autonomy and experience. "
These are the "organizational positions" which are not, however, a class of its own, but a
specification of tasks and responsibilities of certain employees classified in the general category
D. Article. 110 of Legislative Decree no. 267/00 makes no reference to organizational positions
but to a general "area directly, thus alluding to a general category of classification of
staff, in light of predictions that can not Negotiable identified in
category D.
The interpretation is consistent with the given letter of the law, and also allows you to balance
the needs of its flexibility of modern government with the need to safeguard
principles of transparency in the supply of human resources. The government, according to this interpretation
, have a relatively wide availability in the identification of tasks to be allocated
with fixed-term contracts to meet targets and transitional needs;
but this can only by respecting the principle of competition, and therefore those which confer
tasks must be identified by selection procedures to be advertised properly.
in the accomplishment of tasks entrusted to it under Article. 110 of Legislative Decree no. 267/00
then those outside its offices under the direct political bodies for the exercise of their functions
direction and control. For these specific regulation exists in fact, as correctly claims
intimacy Directors, contained in art. 90 of the Legislative Decree no. 267/00. This is different
hypothesis (that) is governed by a rule of species; art. 110 of Legislative Decree no.
267/00 is instead its scope of the award of positions within the
administrative structure of the institution.
For the same reasons not taken into account that even the expectation
of office as director general, governed by art. 108 of Legislative Decree no. 267/00.
are no disputed the calculations made by the defense in relation to its municipal budget
organic management, counted in 92 units which must be added to general manager and secretary
entity, including an allocation to their eighth title Computed in 235 units . Their
summation leads to a total of 329 units, of which the rate of 4%
eligible for conferral of management positions in fixed amounts to 13.16 units. Following the applicant's calculations
stored only in the final result is that, excluding
positions at the offices of staff and the director-general, the number of tasks assigned under Article.
110 of Legislative Decree no. 267/00 amounted to eleven units, including the one given today's proceedings.
The limits of the law, as properly interpreted, are therefore respected and
plea must be rejected.
5. The rejection of the claims advanced by the applicant against the measures
gravity makes inadmissible the appeal brought by the other party.
6. In conclusion, the main appeal must be dismissed declined jurisdiction; the appeal on
added must be rejected and must be declared inadmissible on appeal.
The costs can be fully settled between the parties because of mutual
loses.
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