SENATE AMENDED

 

PRIOR PRINTER'S NOS. 1883, 2062, 3164

PRINTER'S NO.  4284

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

1516

Session of

2009

  

  

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

  

  

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

  

  

  

AN ACT

  

1

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

2

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

3

reduction, removal and reinstatement of paid officers,

4

firemen and employes of fire departments and of fire alarm

5

operators and fire box inspectors in the bureaus of

6

electricity in cities of the third class; defining the powers

7

and duties of civil service commissions for such purposes;

8

and fixing penalties," further providing for civil service

<--

9

examinations and eligibility lists examinations, for

<--

10

applications, for eligibility lists, for vacancies and

11

promotions and for physical examinations.

12

The General Assembly of the Commonwealth of Pennsylvania

13

hereby enacts as follows:

14

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

15

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

16

appointment, promotion, reduction, removal and reinstatement of

17

paid officers, firemen and employes of fire departments and of

18

fire alarm operators and fire box inspectors in the bureaus of

19

electricity in cities of the third class; defining the powers

20

and duties of civil service commissions for such purposes; and

21

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

 


1

amended to read:

2

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

3

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

4

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

5

test the comparative merit and fitness of the persons examined

6

to discharge the duties of the employment sought by them. All

7

examinations shall be open to all applicants who have fulfilled

8

the preliminary requirements required by this act without regard

9

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

10

application. All applicants for any position in the fire

11

department and as fire alarm operators and fire box inspectors

12

in the bureau of electricity shall[,]:

13

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

14

commission[, be required to submit to a physical examination

15

before being admitted to the regular examinations held by the

16

commission.];

17

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

18

required to submit to a physical fitness or agility examination

19

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

20

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

21

physical and psychological medical examination in accordance

22

with section nine of this act.

23

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

24

examination held under the provisions of this act, together with

25

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

26

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

27

commission shall adopt reasonable regulations for permitting the

28

presence of representatives of the press at the examinations.

29

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

30

eligible lists, containing the names and grades of those who

- 2 -

 


1

have passed examinations, and shall indicate [thereon such] the 

<--

2

appointments [as may be] made from [said] the lists.

<--

3

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

<--

4

to read:

5

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

6

shall require persons applying for admission to any examination

7

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

8

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

<--

9

reasonable time prior to the proposed examination, a formal

10

application, in which the applicant shall state under oath or

11

affirmation---

12

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

13

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

14

birth.

15

Third.  His health, and his physical capacity for public

16

service.

17

Fourth.  His business and employments and residences for at

18

least three years previous.

19

Fifth.  Such other information as may reasonably be required,

20

[touching] regarding the applicant's qualifications and fitness

<--

21

for the [public service] position.

<--

22

Blank (b)  Blank forms for [such] applications shall be

<--

23

furnished by the commission, without charge, to all persons

24

requesting the same. The commission may require, in connection

25

with [such] the application, [such] all certificates of

<--

26

citizens, physicians or others, having knowledge of the

27

applicant, as [the good of the service may require] deemed

<--

28

appropriate. The commission may refuse to examine an applicant,

29

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

<--

30

to lack] an applicant who lacks any of the established

<--

- 3 -

 


1

preliminary requirements for the examination [or], position or

<--

2

employments for which [he] the applicant applies; or who is

<--

3

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

4

performances of the duties of the position to which [he] the

<--

5

applicant seeks appointment; or who is [addicted to the habitual

6

use of intoxicating liquors or drugs;] illegally using a

7

controlled substance, as defined in section 102 of the

8

Controlled Substances Act (Public Law 91-513, 21 U.S.C. § 802); 

9

or who has been convicted of any crime, or whose conduct is

10

infamous or notoriously disgraceful; or who has been dismissed

11

from the public service for delinquency or misconduct; or who

12

has made a false statement of any material fact, or practiced or

13

attempted to practice any deception or fraud in [his] the 

<--

14

application, [in his] examination[, or in establishing his] or

<--

15

establishment of eligibility; or who refuses to comply with the

16

rules and regulations of the commission.

17

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

<--

18

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

19

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

20

in the event any applicant has formerly served in the fire

21

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

22

the bureau of electricity of the city to which application is

23

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

24

misconduct or other misfeasance were made against the applicant

25

within a period of two years next preceding the date of

26

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

27

the person shall be eligible for reinstatement, in the

28

discretion of the civil service commission, even though the

29

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

30

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

- 4 -

 


1

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

2

operator or fire box inspector in the bureau of electricity

3

without examination, other than a physical examination in

4

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

5

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

6

department next above the probationers of the department.

7

(c)  (1)  No application will be accepted if the person

<--

8

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

9

five years of age at the date of application. A person who is

10

over thirty-five years of age shall be eligible for

11

reinstatement at the discretion of the commission if all of the

12

following apply:

13

(i)  The applicant has formerly served in the fire department

14

or as a fire alarm operator or fire box inspector in the bureau

15

of electricity of the city to which application has been made

16

for a period of more than six months.

17

(ii)  No charges of misconduct or other misfeasance were made

18

against the applicant within a period of more than two years

19

preceding the date of application.

20

(iii)  The applicant is a resident of the city.

21

(2)  The applicant, providing the applicant's former term of

22

service was satisfactory, may be reappointed to the fire

23

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

24

the bureau of electricity without examination, other than a

25

physical examination required under section 9. If the person is

26

reinstated, the person shall be the lowest in rank immediately

27

above the probationers of the department.

28

(c) (d)  If any applicant [feels himself] is aggrieved by

<--

29

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

<--

30

[him, or, after an examination, to certify him as an] or certify

<--

- 5 -

 


1

the applicant as eligible, as provided in this section, the

2

commission shall, at the request of [such] the applicant,

<--

3

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

4

[such] the applicant may appear, [by himself or counsel, or

<--

5

both] with or without counsel, and the commission shall [then] 

<--

6

take testimony and review its refusal to [make such] provide 

<--

7

examination or certification[, and testimony shall be taken].

<--

8

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

9

any competent witnesses requested by [him. After such review] 

<--

10

the applicant. Following the public hearing, the commission

11

shall file the testimony taken in its records, and shall again

12

make a decision, which decision shall be final.

13

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

14

including any background, physical agility or other

15

examinations, with the exception of physical and psychological

16

medical examinations pursuant to section nine of this act, the

17

civil service commission shall rank the candidates who have

18

satisfied the minimum requirements for appointment on an

19

eligibility list. The eligibility list shall contain the names

20

of individuals eligible for appointment listed from highest to

21

lowest based on their scores on the examinations administered by

22

the commission and any points for which the applicant was

23

entitled by virtue of 51 Pa.C.S. Ch. 71 (relating to veterans'

24

preference). The eligibility list will be valid for one year

25

from the date the commission ranks all passing applicants,

26

assigns veterans' preference points and formally adopts the

27

eligibility list. The commission may, at its sole discretion

28

before the original expiration date, by a vote of the majority

29

of the commission at a duly authorized commission meeting,

30

extend the list for up to an additional twelve months. In the

- 6 -

 


1

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

2

expire.

3

(b)  Every position or employment, unless filled by

4

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

5

the following manner: The appointing officer shall notify the

6

civil service commission of any vacancy in the service which he

7

desires to fill, and shall request the certification of

8

[eligibles] an eligibility list. The commission shall forthwith

<--

9

certify[, from the appropriate eligible list,] the names of the

<--

10

three persons [thereon] who received the highest averages at the

<--

11

last preceding examination [held under the provisions of this

<--

12

act]. The appointing officer shall, [thereupon,] with sole

<--

13

reference to the relative merit and fitness of the candidates,

14

make [an] a conditional appointment from the three names [so] 

<--

15

certified on the eligibility list. If the appointing officer

<--

16

makes objection to the commission to one or more of the persons

17

named for any of the reasons stated in section five of this act,

18

and if such objections are sustained by the commission, or if a

19

conditional appointee is determined to be unqualified in

20

accordance with the procedures set forth in section nine of this

21

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

<--

22

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

<--

23

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

24

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

25

[such] the name shall be stricken from the list. When there are

<--

26

a number of positions of the same kind to be filled at the same

27

time, each appointment shall be made separately and in

28

accordance with the foregoing provisions.

29

Section 8.  Vacancies in positions in the fire department and

<--

30

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

- 7 -

 


1

electricity shall be filled, so far as practicable, by

2

promotions from among persons holding positions in the next

3

lower grade in the department. Promotions shall be based upon

4

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

5

service commission[, and upon the superior qualifications of the

6

persons promoted, as shown by his previous service and

7

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

8

officer shall notify the commission of a vacancy in the position

9

which the appointing officer desires to fill by promotion and

10

shall request the certification of an eligibility list. The

11

commission shall certify for each vacancy the names of the three

12

persons on the eligibility list who have received the highest

13

average in the last promotional examination held within a period

14

of two years preceding the date of the request for the

15

eligibility list. If three names are not available, the

16

commission shall certify the names remaining on the eligibility

17

list. The appointing officer shall make an appointment from the

18

names certified based solely on the merits and fitness of the

19

candidate unless the appointing officer makes objections to the

20

commission regarding any person on the eligibility list for any

21

reason provided under section 5. No person, however, shall be

22

eligible for promotion from the lower grade to the next higher

23

grade until such person shall have completed at least two years

24

service in the next lower grade in the department. The

25

commission shall have the power to determine in each instance

26

whether an increase in salary constitutes a promotion.

27

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

28

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

29

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

30

department and as fire alarm operators and fire box inspectors

- 8 -

 


1

in the bureau of electricity shall undergo a physical

2

examination, which shall be conducted under the supervision of

3

the physician member of the civil service commission, or if

4

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

5

service commission. Said examiner shall certify that an

6

applicant is free from any bodily or mental defects, deformity

7

or diseases that might incapacitate him from the performance of

8

the duties of the position desired before said applicant shall

9

be permitted to take further examinations. No application will

10

be received if the person applying is less than eighteen years

11

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

12

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

13

formerly served in the fire department or as a fire alarm

14

operator or fire box inspector in the bureau of electricity of

15

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

16

six months, and no charges of misconduct or other misfeasance

17

were made against such applicant within a period of two years

18

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

19

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

20

in the discretion of the civil service commission, even though

21

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

22

applicant, providing his former term of service so justifies,

23

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

24

operator or fire box inspector in the bureau of electricity

25

without examination, other than a physical examination. If such

26

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

27

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

28

An applicant selected from the eligibility list shall receive a

29

conditional offer of employment. The offer of employment shall

30

be conditioned upon the applicant undergoing a physical and, if

- 9 -

 


1

required by the rules and regulations of the commission, a

2

psychological medical examination, and a determination by the

3

commission that the applicant is capable of performing all the

4

essential functions of the position. Physical medical

5

examinations shall be under the direction of a physician or

6

other qualified medical professional. Psychological medical

7

examinations shall be under the direction of a psychiatrist or

8

psychologist.

9

(b)  The physician or other qualified medical professional

10

and the psychiatrist or psychologist shall be appointed by the

11

council and shall render an opinion as to whether the

12

conditional appointee has a physical or mental condition which

13

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

<--

14

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

<--

15

she the person was conditionally appointed.

<--

16

(c)  If the opinion rendered by the medical examiner

<--

17

physician, other qualified medical professional, psychiatrist or

<--

18

psychologist calls into question the conditional appointee's

19

ability to perform all essential functions of a position, a

20

person or persons designated by the appointing officer shall

<--

21

meet with the conditional appointee for the purpose of having

22

one or more interactive discussions focused on the issue of on 

<--

23

whether the conditional appointee can, with or without

24

reasonable accommodation, perform all the essential functions of

25

the position.

26

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

27

process under subsection (c), the appointing officer determines

<--

28

that the conditional appointee is not qualified, the appointing

29

officer shall give written notice to the conditional appointee

30

and the board.

- 10 -

 


1

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

<--

2

authorize physical or psychological medical examinations prior

3

to conditional appointment.

4

(f)  As used in this section, the term "medical the following

<--

5

definitions shall apply:

6

"Medical examination" shall mean any examination, procedure,

7

inquiry or test designed to obtain information about medical

8

history or a physical or mental condition which might disqualify

9

an applicant if it would prevent the applicant from performing,

10

with or without a reasonable accommodation, all of the essential

11

functions of the position.

12

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

<--

13

1991 (relating to definitions).

14

"Qualified medical professional" shall mean an individual, in

15

collaboration with or under the supervision or direction of a

16

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

17

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

18

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

19

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

20

known as the "Osteopathic Medical Practice Act"; or

21

(2)  as a certified registered nurse practitioner pursuant to

22

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

23

Professional Nursing Law.

24

Section 4.  Nothing contained in this act shall affect the

25

validity of any civil service appointments or promotions made

<--

26

prior to the effective date of this section.

27

Section 5.  This act shall take effect immediately.

- 11 -