Judgment No. 9801 of 2024: Extrainstitutional Assignments and Compatibility in Public Employment

The recent judgment No. 9801 of April 11, 2024, issued by the Court of Cassation, has highlighted a crucial issue for public employees: the compatibility of extrainstitutional assignments with their public employment relationship. Specifically, the ruling analyzes the situation of an employee who accepted the position of chairman of the board of directors of a cooperative, addressing issues of incompatibility and the need for employer authorization.

Regulatory Context

The Court referred to various regulations, including Article 60 and 61 of Presidential Decree No. 3 of 1957 and Article 53, paragraph 7, of Legislative Decree No. 165 of 2001. According to these provisions, accepting corporate positions in public employment is not automatically considered incompatible but still requires prior authorization from the employer.

• Article 60 of Presidential Decree No. 3/1957: Defines situations of absolute incompatibility.
• Article 61 of the same decree: Provides for exceptions for specific assignments but does not exclude the need for authorization.
• Article 53, paragraph 7, of Legislative Decree No. 165/2001: Stipulates that even gratuitous assignments require prior clearance.

The Ruling's Headnote

INCOMPATIBILITY (WITH OTHER EMPLOYMENTS, PROFESSIONS, POSITIONS, AND ACTIVITIES) Acceptance of Corporate Positions - Cooperative Societies - Extrainstitutional Assignment - Authorization - Necessity - Gratuitousness - Irrelevance - Basis - Case Law. In contracted public employment, the acceptance of a corporate position, in this case, chairman of the board of directors of a cooperative, even if it does not fall under the hypotheses of absolute incompatibility referred to in Article 60 of Presidential Decree No. 3 of 1957, due to the exception provided by Article 61 of the same decree, constitutes an extrainstitutional assignment whose performance, in order to assess its compatibility with the employment relationship, requires prior employer authorization pursuant to Article 53, paragraph 7, of Legislative Decree No. 165 of 2001, even in cases of gratuitousness, both to verify compliance with the constitutional principles of exclusivity of the relationship, as well as impartiality and efficient administration of public bodies. (Principle affirmed in relation to healthcare sector employees, for whom conflicts of interest must also be verified pursuant to Article 4, paragraph 7, of Law No. 412 of 1991, referenced by Article 53 of Legislative Decree No. 165 of 2001).

This headnote perfectly summarizes the principle affirmed by the Court. The decision emphasizes that even if the assignment does not fall under absolute incompatibility, authorization is still necessary to ensure compliance with the principles of exclusivity, impartiality, and efficient administration of public bodies. The Court wished to highlight how the gratuitous nature of the assignment cannot justify the absence of a prior assessment by the employer.

Conclusions

Judgment No. 9801 of 2024 represents an important reminder of the regulations governing extrainstitutional assignments for public employees. It clarifies that the absence of absolute incompatibility does not exempt from the obligation to request authorization. This principle is fundamental to preserving the integrity of public administration and ensuring a proper balance between the personal interests of employees and institutional needs. The Court's decision contributes to better defining the responsibilities and duties of public employees in an increasingly complex regulatory landscape.