HOUSE AMENDED

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

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

AS REPORTED FROM COMMITTEE ON LOCAL GOVERNMENT, HOUSE OF REPRESENTATIVES, AS AMENDED, MARCH 10, 2010   

AN ACT

Amending the act of May 31, 1933 (P.L.1108, No.272), entitled,

as amended, "An act providing for the appointment, promotion,

reduction, removal and reinstatement of paid officers,

firemen and employes of fire departments and of fire alarm

operators and fire box inspectors in the bureaus of

electricity in cities of the third class; defining the powers

and duties of civil service commissions for such purposes;

and fixing penalties," further providing for civil service 

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examinations and, for applications, for eligibility lists, 

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for vacancies and promotions and for physical examinations.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 4 of the act of May 31, 1933 (P.L.1108,

No.272), entitled, as amended "An act providing for the

appointment, promotion, reduction, removal and reinstatement of

paid officers, firemen and employes of fire departments and of

fire alarm operators and fire box inspectors in the bureaus of

electricity in cities of the third class; defining the powers

and duties of civil service commissions for such purposes; and

fixing penalties," amended July 17, 2003 (P.L.29, No.13), is

amended to read:

Section 4.  (a)  All examinations for positions or promotions

shall be practical in their character, and shall relate to such

matters, and include such inquiries, as will fairly and fully

test the comparative 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 fulfilled

the preliminary requirements required by this act without regard

to any applicant's place of residence at or prior to the date of

application. All applicants for any position in the fire

department and as fire alarm operators and fire box inspectors

in the bureau of electricity shall[,]:

(1)  be subject to regulations adopted by the civil service

commission[, be required to submit to a physical examination

before being admitted to the regular examinations held by the

commission.];

(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 in accordance

with section nine of this act.

(b)  Adequate public notice of the time and place of every

examination held under the provisions of this act, together with

information as to the kind of position or place to be filled,

shall be given at least one week prior to such examinations. The

commission shall adopt reasonable regulations for permitting the

presence of representatives of the press at the examinations.

The commission shall post, in a public place at its office, the

eligible lists, containing the names and grades of those who

have passed examinations, and shall indicate thereon such

appointments as may be made from said lists.

Section 2.  Sections 5 and 6, 6 and 8 of the act are amended

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to read:

Section 5.  (a)  The civil service commission in each city

shall require persons applying for admission to any examination

provided for under this act, or under the rules and regulations

of the said commission, to file in its office, within a

reasonable time prior to the proposed examination, a formal

application, in which the applicant shall state under oath or

affirmation---

First.  His full name, residence, and post office address.

Second.  His citizenship, age, and the place and date of his

birth.

Third.  His health, and his physical capacity for public

service.

Fourth.  His business and employments and residences for at

least three years previous.

Fifth.  Such other information as may reasonably be required,

touching the applicant's qualifications and fitness for the

public service.

Blank forms for such applications shall be furnished by the

commission, without charge, to all persons requesting the same.

The commission may require, in connection with such application,

such certificates of citizens, physicians or others, having

knowledge of the applicant, as the good of the service may

require. The commission may refuse to examine an applicant, or,

after examination, to certify as eligible, one who is found to

lack any of the established preliminary requirements for the

examination or position or employments for which he applies; or

who is physically [so disabled as to be rendered] unfit for the

performances of the duties of the position to which he seeks

appointment; or who is [addicted to the habitual use of

intoxicating liquors or drugs;] 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 convicted of any crime, or whose conduct is infamous or

notoriously disgraceful; or who has been dismissed from the

public service for delinquency or misconduct; or who has made a

false statement of any material fact, or practiced or attempted

to practice any deception or fraud in his application, in his

examination, or in establishing his eligibility; or who refuses

to comply with the rules and regulations of the commission.

(b)  No application will be received if the person applying

is less than eighteen years of age or more than thirty-five

years of age at the date of application: Provided, however, That

in the event any applicant has formerly served in the fire

department or as a fire alarm operator or fire box inspector in

the bureau of electricity of the city to which application is

made for a period of more than six months, and no charges of

misconduct or other misfeasance were made against the applicant

within a period of two years next preceding the date of

application, and the applicant is a resident of the city, then

the person shall be eligible for reinstatement, in the

discretion of the civil service commission, even though the

applicant is over thirty-five years of age. The applicant,

providing the applicant's former term of service so justifies,

may be reappointed to the fire department or as a fire alarm

operator or fire box inspector in the bureau of electricity

without examination, other than a physical examination in

accordance with section nine of this act. If the person is

reinstated, the person shall be the lowest in rank in the

department next above the probationers of the department.

(c)  If any applicant feels himself aggrieved by the action

of the commission in refusing to examine him, or, after an

examination, to certify him as an eligible, as provided in this

section, the commission shall, at the request of such applicant,

appoint a time and place for a public hearing, at which time

such applicant may appear, by himself or counsel, or both, and

the commission shall then review its refusal to make such

examination or certification, and testimony shall be taken. The

commission shall subpoena, at the expense of the applicant, any

competent witnesses requested by him. After such review, the

commission shall file the testimony taken in its records, and

shall again make a decision, which decision shall be final.

Section 6.  (a)  At the completion of the testing process,

including any background, physical agility or other

examinations, with the exception of physical and psychological

medical examinations pursuant to section nine of this act, the

civil service 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' preference points and formally adopts the

eligibility list. The 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 list for up to an additional twelve months. In the

absence of a lawful extension by the commission, the list shall

expire.

(b)  Every position or employment, unless filled by

promotion, reinstatement, or reduction, shall be filled only in

the following manner: The appointing officer shall notify the

civil service commission of any vacancy in the service which he

desires to fill, and shall request the certification of

eligibles. The commission shall forthwith certify, from the

appropriate eligible list, the names of the three persons

thereon who received the highest averages at the last preceding

examination held under the provisions of this act. The

appointing officer shall, thereupon, with sole reference to the

relative merit and fitness of the candidates, make [an] a

conditional appointment from the three names so certified. If

the appointing officer makes objection to the commission to one

or more of the persons named for any of the reasons stated in

section five of this act, and if such objections are sustained

by the commission, or if a conditional appointee is determined

to be unqualified in accordance with the procedures set forth in

section 9 of this act, the commission shall thereupon strike the

name of such person from the eligible list, and certify the next

highest name for each person so stricken off. If any name shall

be three times rejected for the same or another position, such

name shall be stricken from the list. When there are a number of

positions of the same kind to be filled at the same time, each

appointment shall be made separately and in accordance with the

foregoing provisions.

Section 8.  Vacancies in positions in the fire department and

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as fire alarm operators and fire box inspectors in the bureau of

electricity shall be filled, so far as practicable, by

promotions from among persons holding positions in the next

lower grade in the department. Promotions shall be based upon

merit, to be ascertained by tests to be provided by the civil

service commission[, and upon the superior qualifications of the

persons promoted, as shown by his previous service and

experience: Provided, however, That no]. The appointing officer

shall notify the civil service commission of a vacancy in the

service which the appointing officer desires to fill 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 appointing officer shall then,

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

make an appointment from the names certified unless the

appointing officer makes objections to the commission as to one

or more of the persons so certified. No person, however, shall

be eligible for promotion from the lower grade to the next

higher grade until such person shall have completed at least two

years service in the next lower grade in the department. The

commission shall have the power to determine in each instance

whether an increase in salary constitutes a promotion.

Section 3.  Section 9 of the act, amended June 16, 1972

(P.L.427, No.125), is amended to read:

Section 9.  [All applicants for any position in the fire

department and as fire alarm operators and fire box inspectors

in the bureau of electricity shall undergo a physical

examination, which shall be conducted under the supervision of

the physician member of the civil service commission, or if

there be none, then by a physician appointed by the civil

service commission. Said examiner shall certify that an

applicant is free from any bodily or mental defects, deformity

or diseases that might incapacitate him from the performance of

the duties of the position desired before said applicant shall

be permitted to take further examinations. No application will

be received if the person applying is less than eighteen years

of age or more than thirty-five years of age at the date of his

application: Provided, however, That in event any applicant has

formerly served in the fire department or as a fire alarm

operator or fire box inspector in the bureau of electricity of

the city to which he makes application for a period of more than

six months, and no charges of misconduct or other misfeasance

were made against such applicant within a period of two years

next preceding the date of his application, and is a resident of

the city, then such person shall be eligible for reinstatement,

in the discretion of the civil service commission, even though

such applicant shall be over the age of thirty-five years. Such

applicant, providing his former term of service so justifies,

may be reappointed to the fire department or as a fire alarm

operator or fire box inspector in the bureau of electricity

without examination, other than a physical examination. If such

person is reinstated, he shall be the lowest in rank in the

department next above the probationers of the department.] (a)  

An applicant selected from the eligibility list shall receive a

conditional offer of employment. The offer of employment shall

be conditioned upon the applicant undergoing a physical and, if

required by the rules and regulations of the commission, a

psychological medical examination, and a determination by the

commission that the applicant 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 the

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 ability to perform all of the

essential functions of the position for which he or she was

conditionally appointed.

(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

persons designated by the appointing officer shall meet with the

conditional appointee for the purpose of having one or more

interactive discussions focused on the issue of whether the

conditional 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, the appointing officer determines that the conditional

appointee is not qualified, the appointing officer shall give

written notice to the conditional appointee and the board.

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

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 4.  Nothing contained in this act shall affect the

validity of any civil service appointments or promotions made

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prior to the effective date of this section.

Section 5.  This act shall take effect immediately.