THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

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

SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED, JANUARY 26, 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, rejection of applicant

and hearing, manner of filling appointments, probationary

period and physical examination.

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 aggrieved

by the action of the commission, in refusing to examine him or

to certify him as eligible after examination, the commission

shall, at the request of such person, within ten days, appoint a

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

Whereupon the commission shall then review its refusal to make

such examination or certification and take such testimony as may

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

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'

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)  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. The commission

shall certify for each existing vacancy from the eligible list,

the names of three persons thereon, or a lesser number where

three are not available, who have received the highest average.

The council shall thereupon, with sole reference to the merits

and fitness of the candidates, make [an] a conditional

appointment from the three names certified, unless they make

objections to the commission as to one or more of the persons so

certified for any of the reasons stated in section 1183 of this

act. Should such objections be sustained by the commission, as

provided in said section, 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 person from the eligible list

and certify the next highest name for each name stricken off. As

each 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 person to a non-competitive examination, and if such person

shall be certified by the commission as qualified, he may then

be appointed to such position, and thereafter shall be subject

to all the provisions of this subdivision.

Section 3.  Section 1186 of the act is amended to read:

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

fitness of the probationer has not been satisfactory to the

council, the probationer shall be notified in writing that he

will not receive a permanent appointment. Thereupon, his

appointment shall cease; otherwise his retention shall be

equivalent to a permanent appointment.

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 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 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 council 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, council determines that the 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

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 5.  Nothing contained in this act shall affect the

validity of any civil service appointment made prior to the

effective date of this section.

Section 6.  This act shall take effect immediately.