use of electronic techniques in the enactment of the acts and in the
point for a theory of the administrative act in an electronic form.
Amministrativa della Repubblica Italiana
Anno 129° - Giugno
1978 - Volume CXXIX - Fasc. 6
TIPOGRAFIA TAPPINI - CITTĄ
DI CASTELLO (PERUGIA)
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 bodys 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 computers
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
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
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
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
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
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
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
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
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
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.
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 employees 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
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
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
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 managers
terminal or to a functionarys, 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 workers
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
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
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
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 employeess terminal, it will be the functionarys
duty to explain the stoppage.
Today, with a desk piled
high with papers, functionaries are convinced that they are overburdened
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
hours 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