SENATE AMENDED

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY ROSS, KESSLER, GRUCELA, GINGRICH, FREEMAN AND CALTAGIRONE, MAY 26, 2009

SENATOR CORMAN, APPROPRIATIONS, IN SENATE, RE-REPORTED AS AMENDED, SEPTEMBER 21, 2010   

AN ACT

Amending the act of June 24, 1931 (P.L.1206, No.331), entitled

"An act concerning townships of the first class; amending,

revising, consolidating, and changing the law relating

thereto," further providing for general provisions relating

to examinations, for rejection of applicant and hearing, for

manner of filling appointments, for probation 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 635 of the act of June 24, 1931

(P.L.1206, No.331), known as The First Class Township Code,

reenacted and amended May 27, 1949 (P.L.1955, No.569) and

amended December 4, 1980 (P.L.1101, No.188), is amended to read:

Section 635.  General Provisions Relating to Examinations.--

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

approved as provided in section 630 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 for examination 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 being admitted to the regular

examination held by the commission, 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 643 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 township or in

a newspaper circulating generally in the township 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

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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.]

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Section 2.  Section 637 of the act is amended to read:

Section 637.  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] 

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 politics or activities are subversive to the

form of government set forth in the Constitution 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 to certify him] or certify the applicant as

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eligible after examination, the commission shall, at the request

of [such person] the applicant, within ten (10) days appoint a

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time and place [where he may appear personally and by counsel.

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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 or certification

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[and take such testimony as may be offered]. The decision of the

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commission shall be final.

Section 3.  Section 638 of the act, amended December 14, 1992

(P.L.864, No.136), is amended to read:

Section 638.  Eligibility List and Manner of Filling

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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 643 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)  Every 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 township commissioners 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] who have received the highest average.

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The township commissioners shall[, thereupon, with sole

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reference to the merits and fitness of the candidates,] make

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[an] a conditional appointment from the three names certified

[unless they] based solely on the merits and fitness of the

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candidates, unless the township commissioners make objections to

the commission [as to] regarding one or more of the [persons so] 

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certified persons for any of the reasons stated in section 637

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of this subdivision. Should such objections be sustained by the

commission, as provided in [said] section 637, or if the

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conditional appointee is determined to be unqualified in

accordance with the procedures set forth in section 643 of this

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

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

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next highest name for each name stricken [off] from the

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eligibility list. As each subsequent vacancy occurs in the same

or another position, precisely the same procedure shall be

followed.

(c)  A 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

the township commissioners 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 a case of

reappointment or reinstatement to the force or department with

which the employe previously served, except at the discretion of

the township commissioners or as otherwise required by law.

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

police or chief of the fire department or equivalent official,

the township commissioners 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

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and if [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 4.  Section 640 of the act, amended May 17, 1972

(P.L.293, No.72), is amended to read:

Section 640.  Probation 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 [subdivision 637 of this subsection.] section

637 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 or fitness of the probationer has not been

satisfactory to the township commissioners, the probationer

shall be notified in writing that he will not receive a

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

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shall cease[; otherwise,]. If the probationer is not notified or

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dismissed in accordance with this section, his retention shall

be equivalent to a permanent appointment.

Section 5.  Section 642 of the act, added May 27, 1949

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(P.L.1955, No.569), is amended to read:

Section 642.  Promotions.--Promotions in the police force or

fire department shall be based on merits 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. The township commissioners shall notify the

commission of a vacancy on the police force or fire department

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 the three persons on the

eligibility list who have received the highest average in the

last promotion 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 township

commissioners shall make an appointment from the names certified

based solely on the merits and fitness of the candidate unless

the township commissioners make objections to the commission

regarding any person on the eligibility list for any reason

provided under section 637.

The township commissioners shall have power to determine in

each instance whether an increase in salary shall constitute a

promotion.

Section 5 6.  Section 643 of the act, amended December 4,

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1980 (P.L.1101, No.188), is amended to read:

Section 643.  Physical and Psychological Medical 

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

physical examination as provided in section 635 which shall be

conducted under the supervision of a doctor of medicine

appointed by the 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 employee undergoing a physical and psychological

medical examination and a determination that the conditional

employee 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

township commissioners 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

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perform all of the essential functions of the position for which

he or she the person was conditionally appointed.

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(c)  If the opinion rendered by the medical examiner 

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physician, other qualified medical professional, psychiatrist or

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psychologist calls into question the conditional appointee's

ability to perform all essential functions of a position, a

person or persons designated by the township commissioners shall

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meet with the conditional appointee for the purpose of having

one or more interactive discussions focused on the issue of on 

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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 under subsection (c), the township commissioners

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determine that the conditional appointee is not qualified, the

township commissioners shall give written notice to the

conditional appointee and the Civil Service 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 term "medical the following

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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. §

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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 6 7.  Nothing contained in the amendment of sections

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635, 637, 638, 640, 642 and 643 of the act shall affect the

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validity of any civil services appointments or promotions made

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prior to the effective date of this section.

Section 7 8.  This act shall take effect immediately.

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