HOUSE AMENDED

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY ROBBINS, ERICKSON, EICHELBERGER, STOUT AND WOZNIAK, JUNE 5, 2009

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, SEPTEMBER 29, 2010   

AN ACT

Amending the act of February 1, 1966 (1965 P.L.1656, No.581),

entitled "An act concerning boroughs, and revising, amending

and consolidating the law relating to boroughs," as to civil

service for police and firemen, further providing for general

provisions relating to examinations, for rejection of 

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applicant and hearing, for manner of filling appointments, 

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for probationary period and, for physical examination 

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promotion and for promotions.

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The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Sections 1181 and 1183 of the act of February 1,

1966 (1965 P.L.1656, No.581), known as The Borough Code, are

amended to read:

Section 1181.  General Provisions Relating to Examinations.--

(a)  The commission shall make rules and regulations, to be

approved as provided in section 1176 hereof, providing for the

examination of applicants for positions in the police force and

as paid operators of fire apparatus and for promotions, which

rules and regulations shall prescribe the minimum qualifications

of all applicants to be examined and the passing grades. All

examinations for positions or promotions shall be practical in

character and shall relate to such matters and include such

inquiries as will fairly test the merit and fitness of the

persons examined to discharge the duties of the employment

sought by them. All examinations shall be open to all applicants

who have the minimum qualifications required by the rules and

regulations. Each applicant shall:

(1)  be subject to the regulations adopted by the

commission[, and shall be required to submit to a physical

examination];

(2)  either before or after the written examination, be

required to submit to a physical fitness or agility examination

that is job-related and consistent with business necessity; and

(3)  if made a conditional offer of employment, be given a

physical and psychological medical examination as provided in

section 1189 of this act.

(b)  Public notice of the time and place of every

examination, together with the information as to the kind of

position or place to be filled, shall be given by publication

once in a newspaper of general circulation in the borough, at

least two weeks prior to each examination, and a copy of the

notice shall be prominently posted in the office of the

commission or other public place.

(c)  The commission shall post in its office the eligible

list, containing the names and grades of those who have passed

the examination. [Persons, male or female, who served in the

military or naval service of the United States during any war in

which the United States has been, is now, or shall hereafter be,

engaged and who have honorable discharges from such service, who

have successfully passed the examination, shall be given the

additional credits and preference in appointment and promotion

provided for by law.]

Section 1183.  Rejection of Applicant; Hearing.--(a)  The

commission may refuse to examine, or, if examined, may refuse to

certify after examination as eligible, any applicant who is

found to lack any of the minimum qualifications for examination

prescribed in the rules and regulations adopted for the position

or employment for which he has applied, or who is physically

[disabled and] unfit for the performance of the duties of the

position to which he seeks employment, or [who is addicted to

the habitual use of intoxicating liquors or narcotic drugs,] who

is illegally using a controlled substance, as defined in section

102 of the Controlled Substances Act (Public Law 91-513, 21

U.S.C. § 802), or who has been guilty of any crime involving

moral turpitude, or of infamous or notoriously disgraceful

conduct, or who has been dismissed from public service for

delinquency or misconduct of office, or who is affiliated with

any group whose policies or activities are subversive to the

form of government set forth in the constitutions and laws of

the United States and Pennsylvania.

(b)  If any applicant or [other person feels himself] person

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is aggrieved by [the action] refusal of the commission[, in

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refusing] to examine [him or to certify him] or certify the

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applicant as eligible after examination, the commission shall,

at the request of [such person] the applicant, within ten days,

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appoint a time and place [where he may appear personally and by

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counsel. Whereupon] for a public hearing, with or without

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counsel, at which time the commission shall [then] take

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testimony and review its refusal to [make such] provide 

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examination or certification [and take such testimony as may be

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offered]. The decision of the commission shall be final.

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Section 2.  Section 1184 of the act, amended May 2, 1986

(P.L.148, No.46), is amended to read:

Section 1184.  Eligibility List and Manner of Filling

Appointments.--(a)  At the completion of the testing process,

including any background, physical agility or other examination,

with the exception of any physical and psychological medical

examination pursuant to section 1189 of this act, the commission

shall rank the candidates who have satisfied the minimum

requirements for appointment on an eligibility list. The

eligibility list shall contain the names of individuals eligible

for appointment listed from highest to lowest based on their

scores on the examinations administered by the commission and

any points for which the applicant was entitled by virtue of 51

Pa.C.S. Ch. 71 (relating to veterans' preference). The

eligibility list will be valid for one year from the date the

commission ranks all passing applicants, assigns veterans'

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preference points and formally adopts the eligibility list. The

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commission may, at its sole discretion before the original

expiration date, by a vote of the majority of the commission at

a duly authorized commission meeting, extend the Prior to

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expiration of the one-year period, the commission may extend the

validity of the eligibility list for up to an additional twelve

months by a majority vote of the commission at a duly authorized

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commission meeting. In the absence of a lawful extension by the

commission, the list shall expire.

(b)  Except as provided in subsection [(b)] (c), every

original position or employment in the police force or as paid

operators of fire apparatus, except that of chief of police or

chief of the fire department, or equivalent, shall be filled

only in the following manner: the council shall notify the

commission of any vacancy which is to be filled and shall

request the certification of [a list of eligibles] an

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eligibility list. The commission shall certify for each existing

vacancy from the [eligible] eligibility list, the names of the 

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three persons [thereon], or a lesser number where three are not

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available, who have received the highest average. The council

shall [thereupon, with sole reference to the merits and fitness

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of the candidates,] make [an] a conditional appointment from the

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three names certified, [unless they make] based solely on the

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merits and fitness of the candidates, unless borough council

makes objections to the commission [as to] regarding one or more

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of the [persons so] certified persons for any of the reasons

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stated in section 1183 of this act. Should such objections be

sustained by the commission, as provided in [said section,] 

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section 1183 of this act, or if the conditional appointee is

determined to be unqualified in accordance with the procedures

set forth in section 1189 of this act, the commission shall

[thereupon] strike the name of [such] the person from the

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[eligible] eligibility list and certify the next highest name

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for each name stricken [off] from the eligibility list. As each

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subsequent vacancy occurs in the same or another position

precisely the same procedure shall be followed.

[(b)] (c)  Any vacancy in an existing position in the police

force or as a paid operator of fire apparatus which occurs as a

result of retirement, resignation, disability or death may be

filled by council by the reappointment or reinstatement of a

former employe of the police force or fire department who had

previously complied with the provisions of this section. No

examination, other than a physical examination as directed by

the civil service commission, shall be required in any case of

reappointment or reinstatement.

[(c)] (d)  In the case of a vacancy in the office of chief of

police or chief of the fire department, or equivalent official,

the appointive power may nominate a person to the commission. It

shall thereupon become the duty of the commission to subject

[such] the person to a non-competitive examination, and if

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[such] the person shall be certified by the commission as

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qualified, he may then be appointed to [such] the position, and

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thereafter shall be subject to all the provisions of this

subdivision.

Section 3.  Section 1186 Sections 1186 and 1188 of the act is 

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are amended to read:

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Section 1186.  Probationary Period.--All original

appointments to any position in the police force or as paid

operators of fire apparatus shall be for a probationary period

of not less than six months, and not more than one year, but

during the probationary period an appointee may be dismissed

only for a cause specified in section 1183 of this act or

because of incapacity for duty due to the use of alcohol or

drugs. If at the close of a probationary period the conduct [of] 

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or fitness of the probationer has not been satisfactory to the

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council, the probationer shall be notified in writing that he

will not receive a permanent appointment[. Thereupon, his], and

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the appointment shall cease[; otherwise]. If the probationer is

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not notified or dismissed in accordance with this section, his

retention shall be equivalent to a permanent appointment.

Section 1188.  Promotions.--Promotions shall be based on

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merit to be ascertained by examinations to be prescribed by the

commission. All questions relative to promotions shall be

practical in character and such as will fairly test the merit

and fitness of persons seeking promotion. Borough council shall

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notify the commission of any vacancy in the police force or as a

paid operator of fire apparatus in the borough which is to be

filled by promotion and shall request the certification of a

list of eligibles. The commission shall certify for each

existing vacancy, from the eligible list, the names of three

persons on the list who have received the highest average in the

last preceding promotional examination held within a period of

two years next preceding the date of the request for eligibles.

If three names are not available, the commission shall certify

the names remaining on the list. The borough council shall then,

with sole reference to the merits and fitness of the candidates,

make an appointment from the names certified, unless council

makes objections to the commission as to one or more of the

persons so certified. Borough council shall notify the

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commission of a vacancy in the police force or as a paid

operator of fire apparatus in the borough which is to be filled

by promotion and shall request the certification of an

eligibility list. The commission shall certify for each vacancy

the names of three persons on the eligibility list who have

received the highest average in the last preceding promotional

examination held within a period of two years preceding the date

of the request for the eligibility list. If three names are not

available, the commission shall certify the names remaining on

the eligibility list. The borough council shall make an

appointment from the names certified, based solely on the merits

and fitness of the candidate, unless council makes objections to

the commission regarding one or more of the persons so certified

for any reason provided under section 1183 of this act.

The council shall have power to determine in each instance

whether an increase in salary shall constitute a promotion.

Section 4.  Section 1189 of the act, amended October 17, 1980

(P.L.1082, No.182), is amended to read:

Section 1189.  Physical and Psychological Medical 

Examination.--[All applicants for examination shall undergo a

physical examination, either before or after the written

examination, which shall be conducted under the supervision of a

physician appointed by the commission. No person shall be

eligible for appointment until such physician certifies that the

applicant is free from any bodily or mental defect, deformity or

disease that might incapacitate him for the discharge of the

duties of the position desired.] (a)  An applicant selected from

the eligibility list shall receive a conditional offer of

employment. The offer of employment shall be conditioned upon

the conditional appointee undergoing a physical and

psychological medical examination and a determination that the

conditional appointee is capable of performing all the essential

functions of the position. Physical medical examinations shall

be under the direction of a physician or other qualified medical

professional. Psychological medical examinations shall be under

the direction of a psychiatrist or psychologist.

(b)  The physician or other qualified medical professional

and the psychiatrist or psychologist shall be appointed by

council and shall render an opinion as to whether the

conditional appointee has a physical or mental condition which

calls into question his or her the person's ability to perform

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all of the essential functions of the position for which he or

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she the person was conditionally appointed.

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(c)  If the opinion rendered by the physician, other

qualified medical professional, psychiatrist or psychologist 

calls into question the conditional appointee's ability to

perform all essential functions of a position, a person or

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persons designated by council shall meet with the conditional

appointee for the purpose of having one or more interactive

discussions focused on the issue of on whether the conditional

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appointee can, with or without reasonable accommodation, perform

all the essential functions of the position.

(d)  If, at the conclusion of the interactive discussion

process under subsection (c), council determines that the

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conditional appointee is not qualified, council shall give

written notice to the conditional appointee and the commission.

(e)  Nothing in this act shall be construed as authorizing to

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authorize physical or psychological medical examinations prior

to conditional appointment.

(f)  As used in this section, the following definitions shall

apply:

"Medical examination" shall mean any examination, procedure,

inquiry or test designed to obtain information about medical

history or a physical or mental condition which might disqualify

an applicant if it would prevent the applicant from performing,

with or without a reasonable accommodation, all of the essential

functions of the position.

"Physician" shall have the meaning given to it in 1 Pa.C.S. §

1991 (relating to definitions).

"Qualified medical professional" shall mean an individual, in

collaboration with or under the supervision or direction of a

physician, as may be required by law, who is licensed:

(1)  as a physician assistant pursuant to the act of December

20, 1985 (P.L.457, No.112), known as the "Medical Practice Act

of 1985," or the act of October 5, 1978 (P.L.1109, No.261),

known as the "Osteopathic Medical Practice Act"; or

(2)  as a certified registered nurse practitioner pursuant to

the act of May 22, 1951 (P.L.317, No.69), known as "The

Professional Nursing Law."

Section 5.  Nothing contained in this act shall affect the

validity of any civil service appointment or promotion made

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prior to the effective date of this section.

Section 6.  This act shall take effect immediately.