| HOUSE AMENDED |
| PRIOR PRINTER'S NOS. 1096, 1232, 1628, 1752 | PRINTER'S NO. 2242 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY ROBBINS, ERICKSON, EICHELBERGER, STOUT AND WOZNIAK, JUNE 5, 2009 |
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| AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, SEPTEMBER 29, 2010 |
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| AN ACT |
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1 | Amending the act of February 1, 1966 (1965 P.L.1656, No.581), |
2 | entitled "An act concerning boroughs, and revising, amending |
3 | and consolidating the law relating to boroughs," as to civil |
4 | service for police and firemen, further providing for general |
5 | provisions relating to examinations, for rejection of | <-- |
6 | applicant and hearing, for manner of filling appointments, | <-- |
7 | for probationary period and, for physical examination | <-- |
8 | promotion and for promotions. | <-- |
9 | The General Assembly of the Commonwealth of Pennsylvania |
10 | hereby enacts as follows: |
11 | Section 1. Sections 1181 and 1183 of the act of February 1, |
12 | 1966 (1965 P.L.1656, No.581), known as The Borough Code, are |
13 | amended to read: |
14 | Section 1181. General Provisions Relating to Examinations.-- |
15 | (a) The commission shall make rules and regulations, to be |
16 | approved as provided in section 1176 hereof, providing for the |
17 | examination of applicants for positions in the police force and |
18 | as paid operators of fire apparatus and for promotions, which |
19 | rules and regulations shall prescribe the minimum qualifications |
20 | of all applicants to be examined and the passing grades. All |
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1 | examinations for positions or promotions shall be practical in |
2 | character and shall relate to such matters and include such |
3 | inquiries as will fairly test the merit and fitness of the |
4 | persons examined to discharge the duties of the employment |
5 | sought by them. All examinations shall be open to all applicants |
6 | who have the minimum qualifications required by the rules and |
7 | regulations. Each applicant shall: |
8 | (1) be subject to the regulations adopted by the |
9 | commission[, and shall be required to submit to a physical |
10 | examination]; |
11 | (2) either before or after the written examination, be |
12 | required to submit to a physical fitness or agility examination |
13 | that is job-related and consistent with business necessity; and |
14 | (3) if made a conditional offer of employment, be given a |
15 | physical and psychological medical examination as provided in |
16 | section 1189 of this act. |
17 | (b) Public notice of the time and place of every |
18 | examination, together with the information as to the kind of |
19 | position or place to be filled, shall be given by publication |
20 | once in a newspaper of general circulation in the borough, at |
21 | least two weeks prior to each examination, and a copy of the |
22 | notice shall be prominently posted in the office of the |
23 | commission or other public place. |
24 | (c) The commission shall post in its office the eligible |
25 | list, containing the names and grades of those who have passed |
26 | the examination. [Persons, male or female, who served in the |
27 | military or naval service of the United States during any war in |
28 | which the United States has been, is now, or shall hereafter be, |
29 | engaged and who have honorable discharges from such service, who |
30 | have successfully passed the examination, shall be given the |
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1 | additional credits and preference in appointment and promotion |
2 | provided for by law.] |
3 | Section 1183. Rejection of Applicant; Hearing.--(a) The |
4 | commission may refuse to examine, or, if examined, may refuse to |
5 | certify after examination as eligible, any applicant who is |
6 | found to lack any of the minimum qualifications for examination |
7 | prescribed in the rules and regulations adopted for the position |
8 | or employment for which he has applied, or who is physically |
9 | [disabled and] unfit for the performance of the duties of the |
10 | position to which he seeks employment, or [who is addicted to |
11 | the habitual use of intoxicating liquors or narcotic drugs,] who |
12 | is illegally using a controlled substance, as defined in section |
13 | 102 of the Controlled Substances Act (Public Law 91-513, 21 |
14 | U.S.C. § 802), or who has been guilty of any crime involving |
15 | moral turpitude, or of infamous or notoriously disgraceful |
16 | conduct, or who has been dismissed from public service for |
17 | delinquency or misconduct of office, or who is affiliated with |
18 | any group whose policies or activities are subversive to the |
19 | form of government set forth in the constitutions and laws of |
20 | the United States and Pennsylvania. |
21 | (b) If any applicant or [other person feels himself] person | <-- |
22 | is aggrieved by [the action] refusal of the commission[, in | <-- |
23 | refusing] to examine [him or to certify him] or certify the | <-- |
24 | applicant as eligible after examination, the commission shall, |
25 | at the request of [such person] the applicant, within ten days, | <-- |
26 | appoint a time and place [where he may appear personally and by | <-- |
27 | counsel. Whereupon] for a public hearing, with or without | <-- |
28 | counsel, at which time the commission shall [then] take | <-- |
29 | testimony and review its refusal to [make such] provide | <-- |
30 | examination or certification [and take such testimony as may be | <-- |
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1 | offered]. The decision of the commission shall be final. | <-- |
2 | Section 2. Section 1184 of the act, amended May 2, 1986 |
3 | (P.L.148, No.46), is amended to read: |
4 | Section 1184. Eligibility List and Manner of Filling |
5 | Appointments.--(a) At the completion of the testing process, |
6 | including any background, physical agility or other examination, |
7 | with the exception of any physical and psychological medical |
8 | examination pursuant to section 1189 of this act, the commission |
9 | shall rank the candidates who have satisfied the minimum |
10 | requirements for appointment on an eligibility list. The |
11 | eligibility list shall contain the names of individuals eligible |
12 | for appointment listed from highest to lowest based on their |
13 | scores on the examinations administered by the commission and |
14 | any points for which the applicant was entitled by virtue of 51 |
15 | Pa.C.S. Ch. 71 (relating to veterans' preference). The |
16 | eligibility list will be valid for one year from the date the |
17 | commission ranks all passing applicants, assigns veterans' | <-- |
18 | preference points and formally adopts the eligibility list. The | <-- |
19 | commission may, at its sole discretion before the original |
20 | expiration date, by a vote of the majority of the commission at |
21 | a duly authorized commission meeting, extend the Prior to | <-- |
22 | expiration of the one-year period, the commission may extend the |
23 | validity of the eligibility list for up to an additional twelve |
24 | months by a majority vote of the commission at a duly authorized | <-- |
25 | commission meeting. In the absence of a lawful extension by the |
26 | commission, the list shall expire. |
27 | (b) Except as provided in subsection [(b)] (c), every |
28 | original position or employment in the police force or as paid |
29 | operators of fire apparatus, except that of chief of police or |
30 | chief of the fire department, or equivalent, shall be filled |
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1 | only in the following manner: the council shall notify the |
2 | commission of any vacancy which is to be filled and shall |
3 | request the certification of [a list of eligibles] an | <-- |
4 | eligibility list. The commission shall certify for each existing |
5 | vacancy from the [eligible] eligibility list, the names of the | <-- |
6 | three persons [thereon], or a lesser number where three are not | <-- |
7 | available, who have received the highest average. The council |
8 | shall [thereupon, with sole reference to the merits and fitness | <-- |
9 | of the candidates,] make [an] a conditional appointment from the | <-- |
10 | three names certified, [unless they make] based solely on the | <-- |
11 | merits and fitness of the candidates, unless borough council |
12 | makes objections to the commission [as to] regarding one or more | <-- |
13 | of the [persons so] certified persons for any of the reasons | <-- |
14 | stated in section 1183 of this act. Should such objections be |
15 | sustained by the commission, as provided in [said section,] | <-- |
16 | section 1183 of this act, or if the conditional appointee is |
17 | determined to be unqualified in accordance with the procedures |
18 | set forth in section 1189 of this act, the commission shall |
19 | [thereupon] strike the name of [such] the person from the | <-- |
20 | [eligible] eligibility list and certify the next highest name | <-- |
21 | for each name stricken [off] from the eligibility list. As each | <-- |
22 | subsequent vacancy occurs in the same or another position |
23 | precisely the same procedure shall be followed. |
24 | [(b)] (c) Any vacancy in an existing position in the police |
25 | force or as a paid operator of fire apparatus which occurs as a |
26 | result of retirement, resignation, disability or death may be |
27 | filled by council by the reappointment or reinstatement of a |
28 | former employe of the police force or fire department who had |
29 | previously complied with the provisions of this section. No |
30 | examination, other than a physical examination as directed by |
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1 | the civil service commission, shall be required in any case of |
2 | reappointment or reinstatement. |
3 | [(c)] (d) In the case of a vacancy in the office of chief of |
4 | police or chief of the fire department, or equivalent official, |
5 | the appointive power may nominate a person to the commission. It |
6 | shall thereupon become the duty of the commission to subject |
7 | [such] the person to a non-competitive examination, and if | <-- |
8 | [such] the person shall be certified by the commission as | <-- |
9 | qualified, he may then be appointed to [such] the position, and | <-- |
10 | thereafter shall be subject to all the provisions of this |
11 | subdivision. |
12 | Section 3. Section 1186 Sections 1186 and 1188 of the act is | <-- |
13 | are amended to read: | <-- |
14 | Section 1186. Probationary Period.--All original |
15 | appointments to any position in the police force or as paid |
16 | operators of fire apparatus shall be for a probationary period |
17 | of not less than six months, and not more than one year, but |
18 | during the probationary period an appointee may be dismissed |
19 | only for a cause specified in section 1183 of this act or |
20 | because of incapacity for duty due to the use of alcohol or |
21 | drugs. If at the close of a probationary period the conduct [of] | <-- |
22 | or fitness of the probationer has not been satisfactory to the | <-- |
23 | council, the probationer shall be notified in writing that he |
24 | will not receive a permanent appointment[. Thereupon, his], and | <-- |
25 | the appointment shall cease[; otherwise]. If the probationer is | <-- |
26 | not notified or dismissed in accordance with this section, his |
27 | retention shall be equivalent to a permanent appointment. |
28 | Section 1188. Promotions.--Promotions shall be based on | <-- |
29 | merit to be ascertained by examinations to be prescribed by the |
30 | commission. All questions relative to promotions shall be |
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1 | practical in character and such as will fairly test the merit |
2 | and fitness of persons seeking promotion. Borough council shall | <-- |
3 | notify the commission of any vacancy in the police force or as a |
4 | paid operator of fire apparatus in the borough which is to be |
5 | filled by promotion and shall request the certification of a |
6 | list of eligibles. The commission shall certify for each |
7 | existing vacancy, from the eligible list, the names of three |
8 | persons on the list who have received the highest average in the |
9 | last preceding promotional examination held within a period of |
10 | two years next preceding the date of the request for eligibles. |
11 | If three names are not available, the commission shall certify |
12 | the names remaining on the list. The borough council shall then, |
13 | with sole reference to the merits and fitness of the candidates, |
14 | make an appointment from the names certified, unless council |
15 | makes objections to the commission as to one or more of the |
16 | persons so certified. Borough council shall notify the | <-- |
17 | commission of a vacancy in the police force or as a paid |
18 | operator of fire apparatus in the borough which is to be filled |
19 | by promotion and shall request the certification of an |
20 | eligibility list. The commission shall certify for each vacancy |
21 | the names of three persons on the eligibility list who have |
22 | received the highest average in the last preceding promotional |
23 | examination held within a period of two years preceding the date |
24 | of the request for the eligibility list. If three names are not |
25 | available, the commission shall certify the names remaining on |
26 | the eligibility list. The borough council shall make an |
27 | appointment from the names certified, based solely on the merits |
28 | and fitness of the candidate, unless council makes objections to |
29 | the commission regarding one or more of the persons so certified |
30 | for any reason provided under section 1183 of this act. |
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1 | The council shall have power to determine in each instance |
2 | whether an increase in salary shall constitute a promotion. |
3 | Section 4. Section 1189 of the act, amended October 17, 1980 |
4 | (P.L.1082, No.182), is amended to read: |
5 | Section 1189. Physical and Psychological Medical |
6 | Examination.--[All applicants for examination shall undergo a |
7 | physical examination, either before or after the written |
8 | examination, which shall be conducted under the supervision of a |
9 | physician appointed by the commission. No person shall be |
10 | eligible for appointment until such physician certifies that the |
11 | applicant is free from any bodily or mental defect, deformity or |
12 | disease that might incapacitate him for the discharge of the |
13 | duties of the position desired.] (a) An applicant selected from |
14 | the eligibility list shall receive a conditional offer of |
15 | employment. The offer of employment shall be conditioned upon |
16 | the conditional appointee undergoing a physical and |
17 | psychological medical examination and a determination that the |
18 | conditional appointee is capable of performing all the essential |
19 | functions of the position. Physical medical examinations shall |
20 | be under the direction of a physician or other qualified medical |
21 | professional. Psychological medical examinations shall be under |
22 | the direction of a psychiatrist or psychologist. |
23 | (b) The physician or other qualified medical professional |
24 | and the psychiatrist or psychologist shall be appointed by |
25 | council and shall render an opinion as to whether the |
26 | conditional appointee has a physical or mental condition which |
27 | calls into question his or her the person's ability to perform | <-- |
28 | all of the essential functions of the position for which he or | <-- |
29 | she the person was conditionally appointed. | <-- |
30 | (c) If the opinion rendered by the physician, other |
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1 | qualified medical professional, psychiatrist or psychologist |
2 | calls into question the conditional appointee's ability to |
3 | perform all essential functions of a position, a person or | <-- |
4 | persons designated by council shall meet with the conditional |
5 | appointee for the purpose of having one or more interactive |
6 | discussions focused on the issue of on whether the conditional | <-- |
7 | appointee can, with or without reasonable accommodation, perform |
8 | all the essential functions of the position. |
9 | (d) If, at the conclusion of the interactive discussion |
10 | process under subsection (c), council determines that the | <-- |
11 | conditional appointee is not qualified, council shall give |
12 | written notice to the conditional appointee and the commission. |
13 | (e) Nothing in this act shall be construed as authorizing to | <-- |
14 | authorize physical or psychological medical examinations prior |
15 | to conditional appointment. |
16 | (f) As used in this section, the following definitions shall |
17 | apply: |
18 | "Medical examination" shall mean any examination, procedure, |
19 | inquiry or test designed to obtain information about medical |
20 | history or a physical or mental condition which might disqualify |
21 | an applicant if it would prevent the applicant from performing, |
22 | with or without a reasonable accommodation, all of the essential |
23 | functions of the position. |
24 | "Physician" shall have the meaning given to it in 1 Pa.C.S. § |
25 | 1991 (relating to definitions). |
26 | "Qualified medical professional" shall mean an individual, in |
27 | collaboration with or under the supervision or direction of a |
28 | physician, as may be required by law, who is licensed: |
29 | (1) as a physician assistant pursuant to the act of December |
30 | 20, 1985 (P.L.457, No.112), known as the "Medical Practice Act |
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1 | of 1985," or the act of October 5, 1978 (P.L.1109, No.261), |
2 | known as the "Osteopathic Medical Practice Act"; or |
3 | (2) as a certified registered nurse practitioner pursuant to |
4 | the act of May 22, 1951 (P.L.317, No.69), known as "The |
5 | Professional Nursing Law." |
6 | Section 5. Nothing contained in this act shall affect the |
7 | validity of any civil service appointment or promotion made | <-- |
8 | prior to the effective date of this section. |
9 | Section 6. This act shall take effect immediately. |
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