The opinion of the Lombardy Regional Section of the Court of Auditors No 70, February 3, 2011, deserves a careful analysis for a number of factors taken into account by the judiciary accounting, which are increasingly important in the current context of reform of the sector of local public services, in particular the request for an opinion on the arrangements for the operation of pharmacies municipalities with regard to the constraints on participation of companies and the recruitment of personnel costs accounting
the judiciary has turned a small town in the Lombardy, given the constraints on the establishment and maintenance of company shares by the municipalities and the limits of containment of recruitment and staff costs, has requested an opinion concerning a series of questions concerning possible ways of managing a local pharmacy.
themes on which you requested a ruling mainly concern:
a) the question on the forms of management of public pharmacies, with particular reference to whether the management of staff within or not within the limitations of expenditure within the limits of provided for local hiring;
b) the question of the equity interests of the municipalities "under soglia” demografica;
c) la questione relativa al c.d. “patto di stabilità” per gli enti pubblici.
Le varie forme di gestione di farmacie comunali
Le farmacie di cui sono titolari i comuni o quelle acquisite in seguito all’esercizio del diritto di prelazione possono essere gestite in una delle seguenti forme:
a) in economia;
b) a mezzo azienda speciale;
c) a mezzo consorzi tra comuni per la conduzione di farmacie di cui sono titolari;
d) a mezzo di società di capitali costituite tra il comune e i farmacisti che, al momento della costituzione della società, prestino servizio presso farmacie di cui l’ente have owned.
Upon incorporation of the company ceases to right the employment relationship between the council and those legal professionals. In some cases, moreover, it was considered convenient, in the absence of preclusion law, giving the entire management of pharmacy municipal to private forms of evidence identified by the public, through the instrument of grant similar in fact to the lease company, behind payment of a fee calculated according to the duration of the concession in fixed annual fee plus a percentage determined in different ways.
Recent years have witnessed the gradual establishment of company equity investment (in house), a majority or even minority government agencies, to carry out functions which concern them or the management of public services, the making of public works, the performance of activities of both communities of interest local instrumental and functional for the performance of institutional duties of local authorities. The legislature
"running" for cover
The legislature in the face of a real phenomenon of proliferation of pharmacies in public management is to safe havens with the Law 296/2006 then proceed with the budget law for 2008, introducing strict limitations on the ability of the public company to use the instrument, avoiding the abuse of private forms or the use of corporate forms designed solely avoidance of business risk or the constraints of public finance.
With art. 3 of Law No 244/2007, it is intended to provide a regulation of the shareholdings of the government, to curb the proliferation and indiscriminate use of Led Light within the fold of the actual needs of local institutions. The legislature has therefore introduced the express prohibition of new companies or keep existing ones when these organisms are not subject to the production of goods and services strictly necessary for the pursuit of institutional goals or produce services of general interest.
converting Decree Law 78/2010 (Law 122/2010) has introduced additional and more stringent restrictions on the formation of companies that integrate with those already in force and which are not expressly repealed, and the cited provision gave rise to doubts interpretation and because of the wording that may lend itself to different readings, either because of the many legislative initiatives in recent years have introduced rules to regulate the various modes of participation of local companies in the capital.
the Court's analysis of Auditors
With reference to the needs posed by the City concerning the current rules of recruitment, in the case of municipal management of the pharmacy through the special agency or corporation, the Court of Auditors has been able to highlight both connection with the performance of the advisory role, both in annual reports on the outsourcing of public services of local authorities, the importance of the constraint imposed by Article. 3, paragraph 30 of Law No 244/2007 which requires the government to constituents or participating in society, consortium or other bodies to take measures for transfer of human resources, financial and instrumental to the extent appropriate to funzioni esercitate, provvedendo alla corrispondente determinazione della propria dotazione organica.
Nel caso dell’azienda speciale, ente strumentale del comune dotato di personalità giuridica e di autonomia imprenditoriale, l’eventuale mancata assegnazione di risorse da parte delle amministrazioni locali contribuenti o partecipanti recherebbe grave pregiudizio all’attività dell’organismo, compromettendone le finalità ed i risultati della gestione che deve assicurare quanto meno l’obbligo del pareggio del bilancio (art. 114, comma 4, del T.U.E.L.).
Per i giudici contabili , in ogni caso, le spese del personale eventualmente assunto direttamente, con procedura concorsuale, dall’azienda Special consortium are also attributable to common shareholders or constituents, as has often been explained by the Court of Auditors in Lombardy, and likewise, the same Court has ruled several times on staffing costs, with specific reference to the impact of the new budget law No 122/2010.
I also reiterated to the entities subject to the Stability Pact "the principles of inclusiveness of the items of expenditure for any type of staff employed by the local authority, reducing the overall cost for staff rationalization of bureaucratic structures and administrative, to the containment of wage and employment, to reduce the incidence percentuale delle spese di personale rispetto al complesso delle spese correnti attraverso la parziale reintegrazione dei cessati e il contenimento della spesa per il lavoro flessibile; di divieto assoluto di assunzione di personale a qualsiasi titolo e per qualsivoglia tipologia contrattuale in caso di mancato rispetto delle condizioni poste dalla stessa norma”.
Alla luce della vigente normativa, per i giudici contabili, non è più ammesso alcun regime derogatorio che escluda l’applicazione delle misure di contenimento della spesa di personale. Per la Corte dei Conti , deve essere, infine, richiamato l’art. 14, comma 9, della stessa legge n. 122/2010 che ripropone la misura sanzionatoria del blocco delle assunzioni di personale, in any capacity with any type of contract, if the limit is not observed in the incidence of personnel costs to be less than 40% of current expenditure, and for institutions "virtuous" limits at least since January 1, 2011, the recruitment the extent of 20% of expenditure relating to cessation of the previous year.
The provision applies to municipalities, such as, inter alia, that poses the question, which has a population of over 5,000 people and helping to identify a double limit, intended to prevent uncontrolled increases in both spending and the number of staff.
Formulas operator community pharmacies
The judges show that accounting is at present not possible to conduct a pharmacy in municipal licensing system to third parties, although identified by public tender, while the direct management by the entity, consistent with the purpose of public service activities attributed to economic importance.
Where, then, it is considered convenient, in terms of efficiency, effectiveness and efficiency of pharmaceutical services, use the tool company, the option to give adequate reasons, is allowed by legislation of a special character (Article 9 of Law No 475/1968) which is not below but should always be coordinated with the restrictive rules regarding of shareholdings. By way of conclusion, it can be argued that local authorities with a population less than 30,000 inhabitants, can not use a body corporate for the management of municipal pharmacy if not associated with other institutions that together exceed 30,000 inhabitants, taking a shareholding equal or proportional the number of inhabitants.
In any case, the Court of Auditors noted that the costs of personnel who might be recruited directly through competitive tender, also by the special consortium are attributable to common shareholders or constituents.
Source: IPSOA
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