Opposition councilor Lello De Prisco, in a Facebook post, called Sunday evening's city council meeting null and void. He cited the procedure for appointing the city clerk.
The appointment of the municipal secretary is the result of a complex process, which – at the time of the appellant's case – primarily involved the above-mentioned Agency and the Mayor. Following the reforms introduced at the end of the nineties of the last century (so-called “Bassanini reforms”), the municipal and provincial secretaries have, in fact, become employees of the Agency (see art. 97, paragraph 1, of the TUEL, already mentioned) but in any case these are officials who have a functional service relationship with the local bodies to which they are assigned. As observed by the Council of State (see Section V, 31 July 2006, n. 4694), there is an "imbrication" between two relationships, to be identified with that of employment and that of service, which clearly reveals that the act of assignment of the Agency constitutes a fundamental juncture in the appointment procedure. The procedure – as can be deduced from the above provisions but also from the resolution of the National Board of Directors no. 150 of 15 July 1999 – is, in fact, structured as follows: 1) initiation of the appointment procedure by the Mayor (or the President of the Province) by requesting the Agency to publish a notice of search for a secretary for the institution; 2) publication of the vacancy notice on the Agency's website; 3) identification by the requesting administration of the name of the secretary to be appointed and subsequent request for assignment addressed to the Agency; 4) assignment by the Agency, once it has been ascertained that the identified secretary possesses the requirements required for taking on the role; 5) adoption by the Mayor (or the President of the Province) of the provision for the appointment of the assigned secretary; 6) acceptance by the appointed person and his/her assumption of service. That said, it is unequivocal that the Mayor (or the President of the Province) can make the appointment "only in the presence and after the assignment, by the Ages, of the Secretary previously identified; where the assignment is missing, no appointment can take place and any appointment made must be considered tamquam non esset due to the lack of its sole and indefectible prerequisite. In other words, the appointment of the Secretary proceeds from the completion of a progressively formed situation, of which the assignment by the Agency is an essential and constitutive element: it is unthinkable, in fact, in light of the general principles, that a public body (specifically, the Province or the Municipality) can avail itself of an employee belonging to the role of a different administration, without having previously reached a specific agreement with the latter (the term, here obviously used in a non-technical sense, alludes to the objective convergence that must necessarily be achieved, in the procedural stage, between the requests formulated by the local body and the outcome of the checks institutionally delegated to the Agency)” (see CdS, cited above). Given the above, the Panel believes it can affirm that—in the absence of compliance with the above procedure and, in particular, the Agency's failure to perform its assigned duties—no valid service relationship can ever be established between the Mayor and the Municipal Secretary. Therefore, the period of service required for admission to the internal specialization course for attaining the qualification for the highest level of secretary cannot be effectively accrued and, consequently, recognized.
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