Manfredonia. As anticipated, with a recent decree, the Extraordinary Commissioner of the Municipality of Manfredonia, Dr Rachele Grandolfohas decreed to revoke “for just cause and with immediate effect”, the appointment of the members of the Board of Directors of ASE spa, Centola Michelewith the role of President, Leo Maximuswith the role of CEO e Murgolo Luciawith the role of vice president.
THE REASONS (FROM THE DECREE) decree-cs-20-24-signed
The ASE spa company is currently at the center of a legal case conducted by the Public Prosecutor’s Office of Foggia, called “Hands off”, which had a great media impact, with the direct involvement of a former employee of the company and his son, an employee of the same, recipients of precautionary measures; this body, following this serious situation which arose, has adopted new internal organizational measures, with the aim of making services more efficient and transparent and strengthening the relationship of trust between citizens towards the institutions; these include the agreement signed with the Puglia Region for the shared use of the executive engineer. Rosa Tedeschi and the assignment to this body, in a superordinate position, of the lieutenant of the Guard
Finance Paolo Claudio Bisceglia, both professional figures dedicated, in the management of urban hygiene services, to the better definition and regulation of relations with the company ASE spa, also through the organization of an efficient guidance and control system.
With a resigned report dated yesterday, 23 April, acquired in the general protocol of the 19486 Institution, the manager Tedeschi and Lieutenant Bisceglia highlighted a series of conduct on the part of the administrator and the board of directors as a whole, integral, as will be explained below, just cause for revocation of their positions.
INDUSTRIAL PLAN 2024-2031 SUBMITTED BY ASE SPA WITH NOTE N.1-316 OF 12.27.2023.
From the preliminary report on the 2024-2031 industrial plan, carried out by the engineer. Tedeschi, referred to in his note dated 04.19.2024, prot.n.18555, “it emerges that, in addition to the signature of a signatory of the document, responsible for the drafting and validation of the document transmitted, not being detected, the conditions to consider the Industrial Plan presented by Ase SpA with note no. 1-316 of 12.27.2023, characterized by the absence of strategic reflections on local emergencies, necessary to plan such a long time span as the one proposed, also characterized by planning lacking the minimum contents to carry out merit assessments, and composed of a highly incomplete technical and economic documentation. Added to this is the fact that the existence of a specific resolution of the Shareholders’ Meeting, pursuant to art. 12 of the Articles of Association, with which it was decided, in view of the contractual expiry, to draw up an Industrial Plan lasting eight years, like the one proposed by the CEO”.
EXECUTION OF THE CONTRACT – PENALTIES
“Despite the fact that a Director of Contract Execution and therefore a figure responsible for slavishly monitoring compliance with the contractual agreements was never appointed, during the year 2022, 4 penalties were applied for a total of €17,300, while in during the year 2023, 4 penalties were applied for a total of €37,900. In this regard the art. 18 of the Contract states: “The Municipality can declare the contract terminated after three disputes, which occurred at different times, following non-compliance which led to the application of penalties.[…]”.
OMISSIONS
“The analytical report required by art. 13 of the Contract, relating to the waste cycle activity and other managed services, was not transmitted for the year 2023. The last transmission dates back to February 2023 relating to the 2022 year. The annual report required by art. 5 of the Contract, with which the level of user satisfaction was detected, was not transmitted for the year 2023. The last transmission dates back to February 2023 relating to the 2022 year.
The currently valid RCT and RCO Insurance Policies with the maximum limits established pursuant to art. 12 of the Contract, are not transmitted, an absence which may constitute serious prejudice to the correct performance of the service towards third parties. The list of contracted services for which the Company uses third parties pursuant to art. 11 of the Contract, is not transmitted. To the knowledge of the office, beach cleaning, disinfestation and rodent control services have been entrusted to third parties”.
NON-COMPLIANCE FINDINGS FOUND IN THE INSPECTION OF 15.04.2024 AT THE MUNICIPAL COLLECTION CENTER
Lack of appropriate identification and registration of incoming users. There is no verification that the waste delivered to the Municipal Center of Manfredonia, and therefore falls on the treatment costs incurred by the Institution, belong only to the TARI users of the Municipality of Manfredonia. Forms for “identification of users who access the Collection Center by van” filled out completely and not containing information necessary and compliant with regulatory provisions.
Failure to comply with the art. 212 co. 8 of Legislative Decree 152/2006 ss.mm.ii. (pursuant to art. 212, paragraph 8, non-domestic users who decide to deliver their urban waste to the Municipal Waste Collection Center with their own means are required to register in the Register of transporters in the ‘Own account’ section and, before unloading the waste into the CCR, form 1a attached to the Ministerial Decree of 8 April 2008 amended by the Ministerial Decree of 13 May 2009 must be filled out by the centre’s employees, in order to quantify the waste delivered by each company, for the determination of the variable quota of the TARI). Home collection from non-domestic users in the port area. The company did not provide, despite a specific request, the list of users served and the payment of the TARI by them.
COMPENSATION TO THE ADMINISTRATIVE BODY
With Minutes of the Ordinary Meeting n. 1 of 05.26.2022 it was resolved to: reconstitute the Administrative Body of the in-house company ASE SpA by adopting the collegial structure of the Board of Directors, of three members; to set the annual compensation of the newly appointed Board of Directors at a maximum amount of € omissis, having noted the overall annual cost incurred for the directors’ compensation in 2013, in light of the provisions in force on the matter and until the issuing of the implementing decree referred to in art. 11 paragraph 6 of the TUSP; designate for the appointment of the Board of Directors, Dr. Centola Michele as President, Dr. Leone Massimo, the lawyer. Murgo Lucia, take note that, with regards to the remuneration for directors, in the absence of the ministerial decree referred to in paragraph 6 of the art. 11, the reference is always DL n.95/2012 art. 4 paragraph 4, therefore establish that the respective gross annual compensation in € omitted for the President and € omitted for each Director, delegate to the Board of Directors the drafting of a proposal for the distribution of delegations, and any further compensation to be submitted to the member in a subsequent meeting .
It resulted that, with Board of Directors’ Minutes no. 1 of 06/15/2023, Dr. Leone Massimo was appointed CEO of the Company, with the assignment of functions detailed in the aforementioned Minutes, granting him “an additional fixed remuneration compared to that established by the meeting equal to € omissis plus charges and reimbursement of expenses for the exercise of the functions, together with a variable remuneration to be defined with respect to the achievement of specific and measurable objectives”, preliminarily acknowledging that “the reference law is Legislative Decree no. 95/2012 art. 4 paragraph 4 which provides that the fixed part in the overall remuneration of all members of the board of directors cannot exceed 80% of the cost incurred in 2013 which was € omitted and therefore the ceiling is currently equal to € omitted” .
With subsequent minutes of the Board of Directors n. 2 of 09/21/2023, among other things, it was decided to recognize Dr. Leone Massimo “a performance bonus or a variable compensation equal to omissis (ed. if it is a typo given that the amount of euro omissis is indicated in the proposal, aligned with the data present in the budget)
beyond postal code and VAT following the approval of the 2023 budget provided that it is ascertained: 1) increase compared to 2022 in the citizen satisfaction index for the service as per the survey carried out by an external company already contracted by the previous administrator; 2) profit for the year before taxes not less than omitted.”
Therefore, the overall total of the amount that can be received by the CEO alone, for the 2023 financial year, in the event of the achievement of the objectives set for the variable compensation, is equal to at least € omissis. On the subject of directors’ compensation, reference is made to Resolution no. 4/2024 of the Court of Auditors – Regional Control Section for Emilia Romagna, in which it is expressly clarified that: “in the face of precise regulatory indices which refer to the “total cost incurred in 2013” (art. 4, c. 4, of Legislative Decree no. 95/2012) and to the “all-inclusive annual salary” (art. 11, c.6, third period of the TUSP) and in light of the jurisprudence referred to above, the percentage limit of 80% is
referable to both fixed and variable emoluments”.
Therefore, the autonomous determination of the Board of Directors as stated in Minutes no. is to be considered incorrect. 1 of 06/15/2023, in the part which refers to the reference standard, or the Legislative Decree n. 95/2012 art. 4 paragraph 4, is to be applied only to the fixed part of the remuneration, excluding the compensation relating to the variable part. It follows, sic rebus stantibus, that the maximum limit of € omissis set as the annual compensation of the Board of Directors, established with Minutes of the Ordinary Meeting no., appears to have been exceeded. 1 of 05.26.2022, and since the Board of Directors was established only on 05.26.2023, and the CEO was appointed only on
15.06.2023, cannot be the recipient of a performance pay equal to € omissis for the entire year 2023.
FAILURE TO SUBMIT COMPENSATION TO THE MEETING
According to the provisions of the art. 23 of the Statute, entitled “Remunerations and reimbursements”, “The compensation due to the Administrative Body is determined by the Shareholders’ Meeting within the limits imposed by the provisions of law, regulations, resolutions and directives of the Institutions.” This statutory provision is disregarded by the current Board of Directors which, neither ex ante nor ex post, has submitted to the Shareholders’ Meeting the decisions taken regarding the compensation of the CEO, according to Minutes no. 1 of 06/15/2023 and 2 of 09/21/2023. (CONTINUES).
