The Metropolitan City of Messina had no obligation to hire Daniele Lo Presti as commander of the Metropolitan Police. This is what the Catania Regional Administrative Court established in the sentence issued yesterday in the appeal presented by the current commander of the local police of Taormina against the metropolitan city and against Giovanni Giardinaappointed Commander of the Metropolitan Police on 28 February 2023 on a part-time basis.
Lo Presti, assisted by the lawyer. Valentina Prudente, between December 2021 and December 2022 was commander of the Metropolitan Police and lodged an appeal against the silence-non-compliance of the former Province on his request of 4 November 2022 for definitive stabilization as commander with extraordinary classification procedure pursuant to Legislative Decree. 36/2022, requesting the annulment of the decree appointing Giardina signed by the mayor Federico Basile and compensation for damages of 292,918 euros. The judges of the Second Section of the Catania Regional Administrative Court, however, declared the initial appeal in part inadmissible and in part rejected and rejected the one for additional reasons, compensating the costs.
The panel chaired by Daniele Burzichelli (alongside Gustavo Giovanni Rosario Cumin and Emanuele Caminiti) first recognized the jurisdiction of the administrative judge, then entering into the merits and judging the introductory appeal inadmissible, noting that the decision of the Metropolitan City, defended by the lawyer Santi Delia, does not have a discretionary nature “given that the so-called administrative silence it also refers to cases in which a non-binding measure must be taken and the Administration has subsequently implicitly acted on the appellant's request, authorizing the stipulation of the agreement and assigning the organizational position to the other interested party”.
Unfounded appeal, however, regarding Lo Presti's request for verification of the validity of his claim, as “in the matter of administrative silence the judge can rule in this sense only when it concerns a restricted activity or when it appears that no further margins remain to exercise discretion and there is no need for preliminary investigations to be carried out by the Administration (circumstances which do not apply in this case)”.
The metropolitan city did not arrange any hiring, but made use of the right to use Giardina (defended by the lawyer Silvano Martella) with the shared override for a “better implementation of institutional services” and the achievement of “economical management of resources”. Therefore “the choice to use shared staff under an agreement with an 18-hour hourly commitment, rather than activating the extraordinary classification procedure, responds to functional and financial needs which cannot be discussed here, in the absence of proof carried out regarding its objective and indisputable unreasonableness.”
