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 June 1, 1945 (P.L.1232, No.427), entitled

"An act providing for and regulating the appointment,

promotion and reduction in rank, suspension and removal of

paid operators of fire apparatus in boroughs, incorporated

towns and townships of the first class; creating a civil

service commission in each borough, incorporated town and

township of the first class; defining the duties of such

civil service commission; imposing certain duties and

expenses on boroughs, incorporated towns and townships of the

first class; imposing penalties; and repealing inconsistent

laws," further providing for general provisions relating to

examinations, for rejection of applicant and hearing, for

manner of filling appointments, for probationary period, for

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promotions and for physical examinations.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 11 of the act of June 1, 1945 (P.L.1232,

No.427), entitled "An act providing for and regulating the

appointment, promotion and reduction in rank, suspension and

removal of paid operators of fire apparatus in boroughs,

incorporated towns and townships of the first class; creating a

civil service commission in each borough, incorporated town and

township of the first class; defining the duties of such civil

service commission; imposing certain duties and expenses on

boroughs, incorporated towns and townships of the first class;

imposing penalties; and repealing inconsistent laws," amended

October 17, 1980 (P.L.1078, No.180), is amended to read:

Section 11.  General Provisions Relating to Examinations.--

(a)  Each commission shall make rules and regulations to be

approved, as provided in section six hereof, providing for the

examinations of applicants for positions as fire apparatus

operators and for promotion thereof, which rules and regulations

shall prescribe the minimum qualifications of all applicants to

be examined and passing grades. All examinations for promotions,

or positions as fire apparatus operators of any municipality,

shall be practical in character and shall relate to such

matters, and include such inquiries as will 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 for examination shall:

(1)  be subject to the regulations adopted by the commission

[and shall be required to submit to a physical examination

either before or after being admitted to the regular examination

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 nineteen 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 municipality,

or in a newspaper circulating generally in the municipality 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] 

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eligibility list containing the names and grades of those who

have passed the examination for a position.

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[Under this act, soldiers as defined by the act, approved the

fifth day of August, one thousand nine hundred forty-one

(Pamphlet Laws, eight hundred seventy-two), who have

successfully passed the examination shall be given the

additional credits provided for by said act.]

Section 2.  Sections 13, 14 and 16, 16 and 18 of the act are

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amended to read:

Section 13.  Rejection of Applicant; Hearing.--(a)  The

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

may refuse to certify, after examination, any person 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 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 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

in 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 person [feels himself] is aggrieved

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by [the action] refusal of the commission [in refusing] to

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examine [him] or certify the applicant, or to certify him as

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eligible after examination, the commission shall, at the request

of [such person] the applicant, within ten days, appoint a time

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and place [where he may appear personally and by council,

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whereupon] for a public hearing, with or without counsel, at

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which time the commission shall [then] take testimony and review

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its refusal to [make such] provide examination [of] or 

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certification [and take such testimony as may be offered]. The

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decision of the commission shall be final.

Section 14.  Eligibility List and Manner of Filling

Appointments.--(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 nineteen 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 shall 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

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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 at the end of the original

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one-year period.

(b)  Every position or employment, unless filled by

promotion, reinstatement or reduction, shall be filled only in

the following manner:

The appointing officer or body of the municipality shall

notify the commission of any vacancy as a fire apparatus

operator which is to be filled and shall request the

certification of [a list of eligibles] an eligibility list. The

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commission shall certify [for each existing vacancy from the

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eligible list,] the names of the three persons [therefrom] on

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the eligibility list who have received the highest average in

the last preceding examination[, held within a period of one

year next preceding the date of the request for such eligibles] 

for each vacancy. The appointing officer or body shall

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

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

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names certified, based solely on the merits and fitness of the

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candidates, unless [he or they make objections] the appointing

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officer or body makes an objection to the commission [as to] 

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regarding one or more of the persons [so certified] on the

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eligibility list for any reason [stated in] provided under 

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section thirteen of this act. Should [such objections] an

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objection be sustained by the commission, as provided in [said] 

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

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determined to be unqualified in accordance with the procedures

set forth in section nineteen of this act, the [commissioner] 

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commission shall [thereupon] strike the name of [such] the 

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person from the [eligible] eligibility list and certify the next

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highest name for each name stricken [off.] from the eligibility

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list. As each subsequent vacancy occurs in the same or another

position precisely the same procedure shall be followed.

Section 16.  Probationary Period.--All original appointments

to positions as fire apparatus operators shall be for a

probationary period of six months, but during the probationary

period an appointee may be dismissed only for a cause specified

in section thirteen of this act or because of incapacity for

duty due to the use of alcohol or drugs. If at the close of the

probationary period the conduct or fitness of the probationer

has not been satisfactory to the appointing body or officer, the

probationer shall be notified in writing that he will not

receive a permanent appointment[. Thereupon his], and the 

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appointment shall cease[, otherwise,]. If the probationer is not

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notified or dismissed in accordance with this section his

retention shall be equivalent to a permanent appointment.

Section 18.  Promotions.--Promotions shall be based on merits

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to be ascertained by examination 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. The appointing officer

or body shall notify the commission of a vacancy in the police

force which is to be filled by promotion and shall request the

certification of a list of eligibles an eligibility list. The

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commission shall certify for each existing vacancy, from the

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eligible list, the names of the three persons on the eligibility

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list who have received the highest average score in the last

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preceding promotional promotion examination held within a period

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of two years next preceding the date of the request for

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eligibles the eligibility list. If three names are not

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available, the commission shall certify the names remaining on

the eligibility list. The appointing officer or body shall then,

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

make an appointment from the names certified based solely on the

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merits and fitness of the candidate unless the appointing

officer or body makes objections to the commission as to one or

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more of the persons so certified regarding any of the persons on

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the eligibility list for any reason provided under section

thirteen of this act.

The appointing body or officer shall have power to determine

whether an increase in salary shall constitute a promotion.

Section 3.  Section 19 the of the act, amended October 17,

1980 (P.L.1078, No.180), is amended to read:

Section 19.  Physical and Psychological Medical 

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

physical examination as provided in section 11 which shall be

conducted under the supervision of a doctor of medicine

appointed by the civil service commission. No person shall be

eligible for appointment until said doctor certifies that the

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

or disease that might incapacitate him from 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 the appointing officer or body shall meet

with the conditional appointee for the purpose of having one or

more interactive discussions focused on the issue of on whether

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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 under subsection (c), the appointing officer or body

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determines that the conditional appointee is not qualified, the

appointing officer or body 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 an 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 the amendment of section 11,

13, 14, 16, 18 or 19 of the act shall affect the validity of any

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civil service appointments or promotions made prior to the

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effective date of this section. Nothing CONTAINED in the

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amendment of section 18 of the act shall affect the validity of

any civil service promotions made prior to the effective date of

this section.

Section 5.  This act shall take effect immediately.