GIOVANNI DUNI
The use of electronic techniques in the enactment of the acts and in the administrative proceedings.
Starting point for a theory of the administrative act in an electronic form.
Taken from the
Rivista Amministrativa della Repubblica Italiana
Anno 129° - Giugno 1978 - Volume CXXIX - Fasc. 6
TIPOGRAFIA TAPPINI - CITTĄ DI CASTELLO (PERUGIA)
1978
1. - Introduction. The written form, to which the administrative activity is linked, as the main obstacle for the full use of electronic techniques. The solution in the electronic form.
At present in various public administrations there already exists advanced electronic equipment which certainly bring great advantages. However such advantages tend to be only sectorial, and as a whole, they have not resolved the problem of the general disorders in public administrations.
The reason for this partial failure is due to the fact that the body of legislation in force concerning the material form of acts and of the administrative proceedings does not reconcile itself with complete mechanization.
As Giannini put it (Atto Amministrativo, in " Enciclopedia del diritto ", vol. IV, pag. 178), the need for control over administrative processes and security of public documents have led to the need for written documents in the majority of cases and always in the most important acts. This "written" document can represent, according to the case in point, its "form", as in the case of administrative decrees which come into existence with the signature by the authorized functionary; the same applies for example, with further records, such as the minutes of a collective body’s sittings or the minutes of examinations.
In this paper I will try to show that, with a simple but also revolutionary legislative reform, it is possible to do away with the limitations of traditional writing and allow an act to come into being directly in electronic form, at the same moment in which it is introduced into the computer’s memory.
At the same time, in all other cases where written records are at present required, full legal value should be awarded to their introduction by means of electronic equipment. The electronic memory, would thus be the official file, and any reproductions which can be obtained would be only copies.
It is not my intention in this work to outline a dogmatic theory on the administrative act in an electronic form, on its official reproductions, let alone on the questions of impugnability and contestability in general: it is sufficient for the moment, to hint at the existence of this very important problem, and to point out the general considerations that follow.
2. - The problems of malfunction in public administrations. The use of electronic techniques as instruments of efficiency
As was said in the previous section, the advantages brought by electronic machines in public administrations, even though important, are only partial and sectorial.
It is thus necessary to study not only the quantitative and qualitative empowerment of this equipment, but also the necessary conditions for its full employment, which at present is hindered by the law in force concerning acts and proceedings.
If Public administration were a private enterprise, the introduction and the full employment of automatism generally and of the electronic techniques in particular would take place, at least partially, spontaneously, as a consequence of national and international competition, which calls for the employment of all appropriate means to improve the production and to lower the costs, in order not to jeopardize the very existence of the enterprise.
In the administration of common welfare there is no such powerful and immediate incentive to improve the structures.
Delays in any sector of administrative activity merely cause great inconvenience to the citizen and sometimes result in considerable damage.
I say merely to stress the fact that in the majority of cases the damage is accepted with supine resignation.
The general dysfunction state of public administrations has caused many citizens to resign themselves to it and become convinced that it is an inescapable reality.
In state employees one can often notice a sense of mistrust towards the possibilities of improving the situation, despite the goodwill of some individuals, who, as a consequence, can become infected with laxism and an unhealthy attitude to their job. There are of course many exceptions and cases of public employees who behave in an exemplary and praiseworthy manner.
The doctrinal approach has always compared public administration to an enterprise: in a non competitive environment, it provides both legal and social services.
However, such lack of competition removes the danger of a bankruptcy closing, it creates the conditions for wide- reaching damages, whose extent is incalculable.
Furthermore the single fact that a good or a service produced by the State should cost the double or four times of what it could cost in a more efficient situation, results in a destruction of wealth, decrease in the national income, reduction of welfare, taxation out of proportion to the results, obtained from spending and loss of international competitiveness.
This loss of wealth can occur in countless ways, even for example when the citizen is forced to spend too much time in public offices to deal with matters that concern him/her. Various mistakes in the proceedings, or the sheer slowness, bring about all kinds of delays resulting in higher unitary costs for the product of the company "public administration", as well as direct damages to the single citizen and with ones, which effect the whole community.
State employees should become the key players of the modernization of our public administration, considering that each one of them supplies a specific service, but, at the same time, employers are also users of the services provided by Public Administrations, so that they are also effected negatively like all other citizens if the public administration is poorly run.
Nowadays it is the norm for citizens to go in person to public offices in order to press for the papers that concern them, thus creating a number of disadvantages which are simply a burden on the office itself and on the people who work in it: a) worktime wasted in direct relations with the public, which become more and more difficult;
b) normal work rhythm is upset which makes it impossible to organize an effective scheduling of the ordinary day to day work.
The latter of the above mentioned disadvantages makes it hard to determine the productivity of an office with any certainty. We will return to this point on the last section, and see how it can be resolved by using electronic equipment.
On a social level it is clear that if people know exactly how long it will take to obtain a particular document there will be greater equality among citizens, for there will no longer be discrimination between those who have acquaintances in the offices and those who have none, not even between those who have the time and the possibility to follow and speed up the preparation of their papers and those who cannot do so.
Moreover the citizens who seem to be favoured by the present system mentioned above would be very glad to rely on an efficient and impartial Public Administration, saving the time that at present they must spend to urge that their papers be dealt with within a reasonable time, and with the guarantee that a set amount of time is required without resorting to preferences and favouritisms. Any change in production schedules should be recorded and justified in a written memorandum by the chief clerk.
3. - The authenticity and the legal value of an administrative act drawn up directly by means of electronic equipment or officially archived in its memory.
The objectives outlined above can be achieved using electronic equipment, thus eliminating the inconveniences of the present system, and ensuring benefits until recently unimaginable.
However, in order to obtain these results, the lawmakers will have to remove all the formal obstacle that at present prevent an effective utilization of electronic technology.
Given that the work of Public Administration is highly varied in content and procedure, every type of function they perfom should be jointly scrutinized by technicians and lawyers.
I will therefore limit myself to outlining possible solutions that seem feasible, and must stress that what follows chiefly concerns the acts and proceedings relative to the nominations, careers and salaries of public employees.
I will refer specifically to some acts and stages in proceedings, but only as an example of the type of problems that may, in various guises, arise in any administrative proceeding that is to be mechanized using electronic equipment.
In order to modernize radically the work of a P.A., it is essential that the law award full legal recognition to administrative acts no longer in a written form, but in an electronic one.
It is necessary, however, for full guarantees of authenticity to subsist.
An embryonic form of these problems did occur in the past, when legal value was awarded to type written public acts, such as the minutes of trials and notary declarations.
I realize though, that the proposal I am making in this paper is far more daring and binding.
The cornstone of the reform must be the overturning of relations between paper files and electronic memorization/elaboration.
According to the law currently in force, an official act takes the form of a written and signed document. Electronic equipment - where it exists- can only provide data that a functionary receives, displaying it in the document that he signs, thus assuming responsibility (in theory) for the correctness of the data. (Witness for example the registry certificates issued by computer terminal and then signed by a town council functionary).
With the current system, we all too often see piles of various documents on functionaries’ desk, in a state of disorder that we hope is only apparent, but which inevitably acts as a disincentive to employees and consequently lowers productivity. This situation must change radically; the mislaying of documents must become a thing of the past; indeed, rapid data retrieval from an archive should be the norm. If all this is to become a reality, we will need to assign full legal value to work carried out by machine, and to widest possible extent.
Naturally, human intervention will be unavoidable where discretionary evaluation is required, as well as in all tasks for which machines have not yet been programmed.
Furthermore, human intervention must always be formally apparent and give a guarantee of authenticity.
Guarantees of authenticity are today given by signatures, together with a rubber stamp normally at hand on a desk top. Yet this is in itself only becomes an absolute guarantee in the event (admittedly highly unlikely) that authenticity is contested and submitted to examination to confirm its legal validity.
Contrariwise, a signature may be authentic but the content of the document is not even read by the person who signs it. This practice is today widely accepted, but as we shall see, electronic systems would ensure greater precision and also necessitate a revision of rules governing, responsibility for signatures, effectively delegating in full to those who prepare acts.
It is certainly possible to an act contained in an electronic memory to be "signed" by the author and this gives it a greater guarantee of authenticity. I would rule out having an actual signature, which could be memorized by the computer as a series of dots as in a "telephotograph". I would rule out it because such a reproduced signature would probably be imperfect and so not give sufficient guarantee. Also, I believe that programming machines for this function would be difficult and expensive.
The ideal system would be based on electronic key codes, similar to those used by banks for automatic cash dispensing machines (atm's). In the same way as a current account holder has a pin number, the official charged with signing administrative acts would use a personalized card, which the machine would recognize and register as having recognized it as being authentic. The entire operation would follow a strict precautionary procedure. On the bottom line the following should appear:
a) a symbol indicating that authenticity has been verified;
b) Name, surname and status of who is "signing";
c) clarification in the event of a coincidence of names;
d) a symbol indicating that the user has typed a combination of utters and secret numbers (personal code). This could be eliminated for less important acts);
e) a symbol containing that a personal card has been used, and that it belongs to the person as to letters b) and c) and that the code as to letter d) is also correct and corresponds to the other elements b) c) and e);
The machine should be programmed to not store any acts if the automatic control system does not recognize the codes;
f) the terminal identification code. The terminal must automatically indicate it;
g) date and time, likewise automatically displayed
h) a symbol certifying that the machine has recognized that the person "signing" is entitled to do so for acts concerned. Here again the machine could be programmed to refuse the deal with acts coming from people not having the specific competence to work with them. For atypical acts, on the other hand, the only check undertaken by the machine is the one as to letter c).
The functionary must of course be fully responsible for safeguarding his card, and it would not be transferable for use by third persons. If there is need to delegate part of the work, the office manager must follow a formal procedure in order to supply another employee with personal card, and the machine with the relevant data concerning the new functionary charged with new responsibilities.
It is essential that the new data fed into the machine concerning competencies assigned to new people must take place with the maximum guarantee that no tampering with data is possible, unless ordered and supervised by the office manager.
4. Administrative proceedings using electronic techniques
It follows from what has been outlined above that given appropriate legislative reform, an administrative act can exist in electronic form, thus replacing the traditional written form. The type written document would be seen as an additional back up. Nevertheless, it would be expedient to maintain a traditional archive in which all original documents ( cerfificates, correspondence etc.) coming from private persons or from offices not connected to the electronic system, would be kept.
For the system to function smoothly however, all the above-mentioned documents (if relevant for administrative proceedings) need to be stored in the computer's memory, with evidence that they are "certified copies" or " certified abstracts", authenticated by an authorized functionary.
Consultation of paper written archives would thus be necessary only in exceptional circumstances.
A reserve electronic file should also be created in case of accidental erasure or memory wear. Furthermore, the traditional archives mentioned above should also contain a printed copy of all the regulations concerning acts and proceedings.
At this point we have a scenario where proceedings are clearly defined by means of network between the various electronic centers set up in all main administrations. Minor administrations could be supplied with terminals and work under the direction of the major administrative centers.
Let us take as an example the handling of information concerning a public employee’s work status. Considering separately the initial stage of winning the job competition, all career stages would be recorded on electronic file.
As for job assignment procedures, an authorized functionary should be able to program the computer to perform the necessary checks required by law, including the final report on candidates’ performance, marking it as a "certified copy".
It would not be opportune to authorize each individual member of the job competition panel to operate the computer, because such panels are temporary state commissions whose sole function is to deal with acts concerning one particular job competition.
These acts would be automatically transferred by electronic centers to other competent offices: advisory offices, internal and external control centers, offices authorized to issue nomination decrees.
Generally speaking, by the time an act reaches an office, it will have been subject to the greatest number possible of automatic controls.
The regular employee should in other words, no longer have to carry out checks that can be performed by the machine. And by machine we mean either a central computer that may block transmission of data or even refuse to memorize an act that has not met certain procedural requirements; or it may be an arrival centre for electronic data that will automatically report any errors committed by the office of origin. This double checking should not be ruled out, even if it may seem an unnecessary repetition. Public officers do infact have autonomy in different areas. An office running checks may use a set of criteria different from that adopted by the office of origin. In this way, the respective electronic centers could be programmed to run checking procedures according to contrasting criteria.
The administrative procedure would be halted if the two electronic data centers find themselves in disagreement. That is to say a lack of agreement between the people in separate offices who have set up their respective computer programmes starting from different legal premises.
Given such a situation where the machine would cause work to halt, the administration would be forced to intervene promptly to resolve the conflict and adopt any legal remedies the law allows for.
A whole series of administrative operations should be completely automated, needing no human intervention. Firstly, there should be an automatic protocol for departure and arrival procedures.
In a complex organizational structure, the electronic data centre would need an automated system for sorting acts at the different offices authorized to carry out certain procedures (according to the subject matter, for example). Atypical acts would instead be automatically directed to an office manager’s terminal or to a functionary’s, who would either deal with them himself or delegate them to other staff.
Everyday routine administration work accounts for 90% of total work and could be carried out in the time it takes a given authorized functionary in any of the numerous offices to read through documents on a video terminal. Savings in energy, general expenditure and even postal charges would be considerable; In extreme cases, the amount of time a citizen would have to wait could be reduced from 5 years to 5 hours, even when offices located in various different places ( the capital, other cities) all need to be consulted. Only in certain delicate cases would there be need to resort to written documentation, obtainable from a printer connected to the terminal. An authorized functionary may want to examine a particular case more thoroughly, using paper documents. Or he may consult an office manager, who could attend to the ‘particular case’ himself.
A whole range of matters would no longer require any human intervention. For example, salary increases and career advancement of public employees could be updated automatically by connecting the computer files on each worker’s status to an automatic calendar.
Consequently, the various career stages an employee passes through following his/her appointment to a job, would be registered automatically, providing that discretionary intervention is not deemed necessary or for whatever reason no modification in the stages of a career path need be applied.
It should be possible also to apply sliding scale indexation to all employees, once all relevant personal data has been stored and updated.
5) Practical problems. Material difficulties. Work incentives and automatic control of productivity. Backlogs resulting form outdated work systems.
It would be foolish to underestimate the practical difficulties involved in such a radical reform of our Public Administration. The fixed and operational costs of new equipment would be high. But the investment for the State would be a profitable one, provided full use was made of new equipment. Unfortunately, all too often equipment is purchased only to be left idle, or left unused because unsuitable or out of date technically.
Great caution is needed in spending public money. We know that the most modern "electronic brains" are built with high memory capacities, so only those offering the greatest flexibility should be considered in order to give leeway should any future changes in work systems, controls or connections be necessary. If sensible choices are made now, there will be great savings in work time as well as for the state budget. In the long term, by reducing or at least not increasing expenditure on public employees in routine bureaucracy jobs, the state budget would become more and more flexible, leaving more options for social expenditure or other kinds of investment.
Staff training courses in the new technology may be seen as a problem, but only by those who have never seen a terminal in use. This is in effect the only instrument an authorized functionary need know how to use and by using it continuously skills development would be guaranteed.
Computer Science is already taught in Secondary schools specializing in Public Administration. But if the radical reform I am proposing is to work, there will be a need for computer training courses at varying levels. In future, public job competitions should include computer science as an exam subject. Primary schools and universities should also introduce it and aim to teach the basics.
An important consideration to remember is that the demand for technicians and programmers would increase enormously. The main administration centers would need programmes on their staff full time, and they would work closely with other offices to keep equipment updated and so meet new demands arising from the introduction of new work methods or from new laws that modify administrative procedures and acts.
Programmers could initially be contracted out from private companies. In the cases of some technicians, it makes sense to continue contracting out from private companies.
Such decisions need careful consideration.
Another advantage of reform worth noting is the psychological factor: the presence of modern equipment stimulates the work environment. A functionary will feel part of a complex efficient, modern organization and thus be motivated to ensure that such costly investments are exploited to the full.
A further point to note is that when the system is fully operational with registry and automatic file sorting procedures in place, if the normal work rhythm is interrupted at any one employees’s terminal, it will be the functionary’s duty to explain the stoppage.
Today, with a desk piled high with papers, functionaries are convinced that they are overburdened with work.
Citizens also believe this to be so. Areas of low productivity are difficult to pinpoint. Further, if functionaries have no obligation to deal with routine tasks in a preset order, they cannot be blamed for neglecting for example document A, document B or Z, all the more so because a functionary can easily demonstrate that he has worked on several documents simultaneously over a set period.
On the contrary if the routine work is planned by machine, it may only undergo variations if the office manager finds official justification to exercise this prerogative. A computer will indicate whether or not an unjustifiable amount of time has elapsed between the completion of task "m" (e.g. at 10 a.m.) and the completition of task "n" ( at 1 p.m. the same day). Can three hours work for task N be justified?
During a typical day, a functionary should complete 6 tasks, each requiring on average one hour’s work, or 3 requiring two hours each or 12 needing 30 minutes etc. Of course these are only approximate calculations, to be assessed by the office manager. But any gaping disparity between the actual and theoretical work performance could now be checked upon.
Finally there is a question of work backlog created by antiquated typewritten files system.
Initially, the old and new systems will have to exist side by side. Legal reform must also demand that new tasks be carried out using the new electronic system.
A process of selection will be needed to deal with backlogs. Many routine administrative procedures which are destined to become obsolete, could continue to be attended to, using the old system.
Other files such as those concerning the status of young public employees could be placed on electronic file by functionaries authorized to sign for "certified copy" or "certified abstracts". Such files on employees would also outline career advancement schedules and salary scales.
To deal with the work backlog the State will need to employ staff short term. If this is not feasable, the old and new system will only become apparent when it is fully operational. By fully operational I mean that all the various administrations will communicate via electronic centres and terminals. This will only happen when all necessary equipment and networks have been installed and set up. Besides, the unspeakable burden of chesty paper files must rapidly become a thing of the past, by transferring them to electronic files. If a serious attempt is made to renew the system and no "new work is started under the old system", time will diminish the importance of traditional work methods, and it will be less and less necessary to search manually among paper archives.
A final point to note is that while the problem of convertion from old to new will be particularly onerous for central government, more recently formed bodies, such as Regional governments, have a better chance of achieving success rapidly.
Before the chronic malfunction of the State spreads further, the adoption of the system described above would place the region at the forefront of operational efficiency.
It could even be considered as a model to which the more slowly evolving central government bodies might aspire.
