(Of Lawyer Francesco Fameli)
With regard to the State Police, the regulation of the transition to other roles of the same PS administration or to another State Administration of personnel who have become permanently unfit for service due to supervening causes presents many profiles of certain complexity, which certainly deserve a deepening.
Let us then proceed in order to their analysis.
The applicable legal regime: the DPR n. 339/1982
The reference regulatory framework on the matter is constituted by the Presidential Decree of 24 April 1982, n. 339, which precisely dictates provisions on the subject of “Transfer of personnel unsuitable for carrying out police services, to other roles of the Public Security Administration or other State administrations”.
Limiting the gaze to judged personnel only “absolutely unfit for health reasons”, pursuant to art. 1, the aforesaid decree establishes the need for the interested party to present the relative application within thirty days of the notification of the judgment of unsuitability rendered by the medical commissions referred to in art. 165 et seq. of Presidential Decree no. 1092/1973.
Pursuant to art. 4, paragraph 2, the same commissions must “provide indications on the further use of personnel, taking into account the confirmed infirmity”. From this we clearly deduce the centrality of the role of the bodies in question, which, through their judgment, can restrict and delimit the scope of any further assignment of the interested party, for example by excluding the possibility of its future assignment to other roles within the PS administration itself (on this point see in particular art. 7) and allowing their re-employment exclusively in another State administration.
The transfer to other roles of the State Police is established by decree of the Minister of the Interior (art. 5), while the transfer to other administrations is established by decree of the minister concerned, in agreement with the Minister of the Interior (art. 8) .
The application for transition to civilian roles can well be rejected. In this case, however, the refusal provision – to be issued with a decree of the Minister of the Interior in the event of transfer to other roles of the State Police or with a decree of the minister concerned, in the case of transfer to other administrations (art. 12) – must be adequately motivated. Pursuant to art. 9, in this case the interested party is dispensed from the service in accordance with articles 129 and 130 of the consolidated act approved by decree of the President of the Republic 10 January 1957, n. 3. On the basis of art. 10, as regards classification and economic treatment, the personnel transferred are supernumerary, which can be reabsorbed upon termination of service for any reason, of the same personnel in the position corresponding to that held at the time of transfer, retaining seniority in the position covered, the overall seniority accrued and the economic position acquired.
The particular case of the supervening aptitude unsuitability
Having said that with regard to the applicable legal regime, a particular case has emerged on the subject in question with regard to the hypothesis of the supervening aptitude unsuitability of the personnel concerned. Specifically, the question concerning whether the supervening aptitude unsuitability was to be equated to the supervening psycho-physical unsuitability was raised in jurisprudence, with the consequent applicability also to this hypothesis of the aforementioned discipline, referred to in Presidential Decree No. 24 April 1982 . 339, which in itself refers only to psycho-physical unsuitability.
The Plenary Meeting of the Council of State expressed itself in this regard in an absolutely negative sense, excluding the practicability of such an analogical interpretation. In the very recent sentence of 29 March 2023, n. 12, the highest administrative judge stated in fact that “The attitudinal unsuitability that has occurred does not fall within the provisions of art. 1 Presidential Decree no. 339 of 1982 and consequently does not give rise to the transfer of the employee of the Police Force to other roles of the Public Security Administration or other State administrations, but is cause for termination of the employment relationship pursuant to art. 129 You civilian employees of the State”. And he added that “the doubts about the constitutionality of this discipline as well as about possible opposition to Euro-unitary law are manifestly unfounded”.
Moreover, this stance confirms the majority orientation already established within the administrative jurisprudence and lastly, previously in Cons. State, Section IV, 8 June 2020, n. 3622, for which the reference to the concept of “disability” […] clearly recalls profiles of a physical (or, at most, psycho-physical) order, but certainly not attitudinal: “invalid”, in fact, is a concept referable (and consequent) to the finding of a pathology that affects the material ability to do something, while the aptitude pertains to the personal and subjective suitability to carry out a certain activity or function well, profitably and safely, regardless of the existence of pathological profiles (see also Cons. State, Section IV, 18 January 2021, n. 519; Cons. State, Section III, 6 June 2016, n. 2401).
The one and the other profiles – of the psycho-physical unsuitability, on the one hand, and of the attitudinal one, on the other – must be considered clearly distinct, as well as the consequences that they entail on a legal level.
Conclusions
Considering all this, it can only conclude with the observation of the fact that the subject of the legal regulation of the transition to civilian roles of personnel belonging to the State Police is extremely complex and delicate.
For all the aforementioned reasons, it is clear that the interested party would do well to rely on the advice of an expert (legal doctor, lawyer) and at least to maintain constant dialogue with the reference hierarchical line and with the relevant offices.
Photo: State Police