This post was also written by Scott E. Blissman.

Over the past few weeks, Pennsylvania Gov. Edward Rendell signed a series of bills into law (Acts 76, 77, 78, 91 and 92) that amended the civil service provisions of the First Class Township Code, Borough Code and Third Class City Code (as well as the civil service provisions applicable to towns). All of these amendments are effective immediately and require municipal civil service commissions to revise their civil service rules to ensure compliance before a new hiring or promotional testing cycle has been initiated for police officers and paid firefighters.

Each of these new civil service amendments specifies that appointments and promotions made prior to the effective date of each act are unaffected by the new legislation. However, the viability of any current eligibility list for future hirings and promotions, as well as the propriety of completing hiring or promotional screening that has already commenced rather than starting over after adoption of the amendments, should be reviewed on a case-by-case basis. The critical question is whether the existing civil service rules used in creating the current eligibility list or used for initiating the new hiring or promotional process incorporate the new mandatory provisions. Specifically, do the municipality’s current civil service rules require a physical agility test as well as a medical and psychological examination after issuance of a conditional offer of employment? If the answer is yes, then the municipality may well be able to continue with its current process and make selections from an existing eligibility list. If the answer is no, then the municipality will need to incorporate the amendments into its civil service rules and restart the process under the newly adopted rules.

This new legislation also has a significant impact on the discretion of municipal governing bodies when selecting candidates for promotion. Prior to these recent amendments and pursuant to the Commonwealth Court’s decision in Borough of Wilkinsburg v. Colella, 961 A.2d 265 (Pa. Cmwlth. 2008), petition for allowance of appeal denied, 601 Pa. 703, 973 A.2d 1007 (2009), a Borough was required to select the highest-ranked candidate on its eligibility list for the promotion. In other words, the Borough had no discretion to select from the top three candidates, as it does for entry level appointments. Thus, in 2008, the Colella ruling represented a significant change to the manner in which boroughs promoted. Moreover, it was unclear as to whether the Commonwealth Court would reach the same conclusion with respect to promotions by a first class township. This recent legislation, in essence, constitutes a legislative overruling of the Colella decision and restores to all classes of civil service municipalities the discretion to select any of the top three candidates for each position, regardless of whether the position is an entry level or promotional opportunity.

This new legislation also incorporates the interactive process required by the Americans with Disabilities Act (“ADA”) for conditionally appointed applicants, and, now, promotional candidates who fail a medical exam. Moreover, the new legislation requires municipalities, as part of their hiring and promotional processes—i.e., within their civil service rules—to include physical agility tests. Under the ADA, an employer may only require so-called “physical agility” tests if the tests accurately measure activities that an employee would be required to perform as part of his/her duties. An employer must include as part of its hiring process a requirement that an applicant, who has received a conditional offer of employment, undergo a fitness-for-duty examination from both a medical and psychological standpoint. The ADA, however, prohibits an employer from directing such examinations until after a conditional offer of employment has been extended to the applicant. If the applicant fails either the medical or psychological exam, then the employer must engage in an interactive process to determine if a reasonable accommodation would allow the applicant to perform the essential duties of the position. The recent legislation now incorporates these ADA principles into the Civil Service provisions of the various municipal codes.

The new legislation also amends the civil service provisions of the various municipal codes in the following respects:

• An applicant no longer has to be addicted to the use of drugs or alcohol to be disqualified from consideration. The illegal use of a controlled substance is now sufficient to automatically disqualify a candidate. In addition, probationary officers may be terminated because of incapacity for duty as a result of the use of alcohol or drugs.
• Eligibility lists are valid for one year. However, the civil service commission may vote to extend the validity of the list for up to an additional 12 months, if the vote occurs prior to the expiration of the initial year.
• Once appointed, the failure to properly notify a probationary employee that he or she will be dismissed is the equivalent of a permanent appointment. This amendment reinforces the need to either reach an agreement extending the original probationary period of a marginal employee or reject the employee before the expiration of the probationary period. Otherwise, the employee secures civil service protections at the end of the probationary period if the employer fails to take affirmative action.

This new legislation clarifies some issues with regard to civil service, but also leaves additional questions unanswered. For instance, under the new legislation, an applicant can be rejected for “illegally using a controlled substance.” Although that may seem helpful, it still fails to resolve the issue of whether an applicant who admitted to smoking marijuana within the past five years (or 10 or 15 years) can be considered to be “illegally using a controlled substance.” As such, municipalities should continue to rely on their labor and employment specialists for guidance in this area.

In the coming months, we anticipate the publication of the latest edition of the Model Hiring Manual for Pennsylvania Municipalities, authored by Reed Smith attorneys and distributed by the Pennsylvania Department of Community and Economic Development. This Fifth Edition will incorporate and explain these new amendments, and should be available before the end of 2010. We will email an Alert when this publication is available. In the interim, if you have any questions about the new legislation, amending your rules, or the civil service process in general, feel free to contact the Reed Smith lawyer with whom you typically work or the authors of this Alert.