Borough of Middletown, PA Chapter A265 Civil Service Rules and Regulations

[HISTORY: Adopted by the Borough Council of the Borough of Middletown as revised 3-14-2008.[1] Amendments noted where applicable.]

GENERAL REFERENCES

Police Department — See Ch. 60.

[1] Editor's Note: Ordinance No. 1342 (adopted and approved on 6-20-2017) approved and adopted the Civil Service Rules and Regulations, that were attached as Exhibit A, to govern the affairs of the Middletown Borough Police Department, and further provided that changes and amendments may be made from time to time, subject to approval by resolution of the Borough Council. A complete copy of the ordinance and exhibit, any amending ordinances and resolutions, and any further amendments thereto, are on file in the Borough offices.

§ A265-1 Promulgation of policies and procedures.

The following policies and procedures are promulgated under the authority of Article XI, Section 1171 to 1195, and other sections of the Pennsylvania Borough Code.[1]

[1] Editor's Note: See now 8 Pa.C.S.A. § 101 et seq.

§ A265-2 Definitions.

Unless otherwise expressly stated, the following words and phrases when used in these rules and regulations shall be construed to have the meaning indicated herein.

ASSISTANT BOROUGH MANAGER

The Assistant Manager of the Borough.

BOROUGH

Reference in this text to be the Borough of Middletown.

BOROUGH COUNCIL

Borough Council of the Borough.

CERTIFICATION

The submission to the Borough Council of names taken from the eligible list developed by the Civil Service Commission or any authorized agent, including but not limited to the Dauphin County Chiefs of Police Association, Inc.

CHAIRPERSON

The Chairperson of the Civil Service Commission of the Borough.

COMMISSION

The Civil Service Commission of the Borough.

DEMOTION

The assignment of an employee from one class to another with a lower maximum rate of pay.

DISCHARGE

The involuntary termination of an employee for reasons other than lack of funds or work.

ELIGIBLE

A person whose name is recorded on a current eligible list or furlough list.

ELIGIBLE LIST

A list of names of persons who have passed an examination for a particular position in the Police Department.

FURLOUGH LIST

A list containing the names of persons temporarily laid off from positions in the Police Department because of a reduction in the number of officers.

JOB DESCRIPTION

A written description of a class containing the class title, a general statement of the duties and responsibilities, essential job functions and/or examples of the typical duties performed and minimum qualification requirement(s).

LAY-OFF

The involuntary separation of an employee from Borough service due to lack of work, lack of funds or the abolishment of a position or classification.

MEDICAL EXAMINER

For purposes of these rules, a qualified medical physician, psychologist (mental portion only), psychiatrist, physicians assistant, certified nurse practitioner or other practitioner allowed by law.

POLICE OFFICER

For purposes of these rules, an entry level sworn position in the Police Department.

PROBATIONER

An officer in the Police Department who has been appointed from an eligible list, but who has not yet completed his probationary (work test) period.

REDUCTION IN RANK

A change to a different position or rank which results in a decrease in salary; provided, however, that a decrease in salary without a change to a different position or rank shall not necessarily constitute a reduction in rank.

REMOVAL

The permanent separation of a police officer from the Police Department.

SECRETARY

The Secretary of the Civil Service Board of the Commission.

SUSPENSION

The temporary separation of a member of the Police Department from his position.

TEMPORARY APPOINTMENT

A temporary noncompetitive appointment of a qualified individual to a classified position pending the establishment of an eligible list for such position.

§ A265-3 Civil Service Commission.

A. Officers. The Civil Service Commission (Commission) of the Borough on the first Monday in February of even-numbered years shall elect one of its members as the Chairperson, one as Vice Chairperson and one as Secretary. If the first Monday is a legal holiday, the meeting shall be held the first day following.

B. Duties of Chairperson. The Chairperson, or in his/her absence, the Vice Chairperson, shall preside at all meetings and hearings of the Commission, decide all points of order or procedure and perform all duties required by law of these rules.

C. Duties of Secretary. The Secretary shall be responsible for, at the direction of the Commission, all official correspondence of the Commission, sending out all notices required by law and these rules of procedure, keeping minutes, keeping a record of each examination or other official action of the Commission and performing all other duties required by law, by these rules and by the Commission. The Assistant Borough Manager shall assist the Commission Secretary in the performance of these duties.

D. Meetings. Except for the biennial organization meeting, all meetings shall be held either at the call of the Chairperson or at the call of two members of the Commission. At least 24 hours' written notice of such meetings shall be given each member. No rule or regulation of the Commission shall be adopted without prior approval of the Borough Council, except when otherwise provided in these rules. The Commission shall have the discretion to determine whether meetings shall be open to the public, when not specifically regulated by law, including but not limited to the Sunshine Act,[1] or these rules.

[1] Editor's Note: See 65 Pa.C.S.A. § 701 et seq.

E. Three members of the Commission shall constitute a quorum. Each member shall vote on each issue that comes before the Commission, except as provided by § A265-11E.

[Amended 5-8-2019 by Ord. No. 1362, approved 5-8-2019]

F. Order of business. The order of business of all meetings of the Commission shall be as follows:

(1) Roll call.

(2) Approval of minutes of previous meeting.

(3) Unfinished business.

(4) Hearing of cases.

(5) New business.

(6) Communications and reports.

G. Solicitor. When circumstances arise which require the Commission to retain a solicitor, the Commission shall request Borough Council to authorize the funds to do so. The selection of the solicitor shall be the sole choice of the Commission.

H. Minutes. The Secretary shall keep minutes of the Commission proceedings, showing the vote of each member upon each question, or if absent, or failing to vote, indicating such fact.

I. Annual report. The Commission shall make an annual report to the Council containing a brief summary of its work during the year at the first Council meeting scheduled in March.

J. Scope. The provisions of these rules as of January 1, 2007, apply only to the Police Department.

§ A265-4 Applications.

A. Police officers.

(1) Application form. No person shall be admitted to an examination for a position in the Police Department of the Borough until after having filed, on the official form prescribed by the Commission, or its authorized agent, a sworn application giving such information as the Commission, or its authorized agent, may require. The official application form and all notations, references and statements appearing in it are incorporated by reference into these rules and regulations and shall be as much a part of these rules as if they were fully described herein.

(2) Availability. As advertised, application forms shall be available to all interested persons in the office of the Assistant Borough Manager and may be mailed upon written request. Application forms shall include a separate attachment regarding reasonable accommodation for testing. Any applicant requiring a reasonable accommodation for testing shall make such request at the time the application form is returned.

(3) Age qualifications. At the date of actual application, no applicant for any position in the Police Department shall be less then 18 years of age. Each applicant shall present satisfactory evidence of date of birth.

(4) Testing. The Borough Council has authorized entry level testing to be performed by the Civil Service Commission or its designee.

[Amended 7-5-2023 by Ord. No. 1406, approved 7-5-2023]

B. General qualifications for all applicants. Each applicant for a position in the Police Department shall satisfactorily pass the testing identified in Subsection A(4), be a citizen of the United States, shall have graduated from an accredited high school or have a GED (Graduate Equivalency Diploma), and shall possess an Act 120 diploma and current MPOETC (Municipal Police Officer Education Training Commission) card either at the time of hiring or following the completion of the Police Academy, but before the time he or she is required to start work as a police officer. Upon appointment, each applicant shall be medically fit for the performance of the duties of a police officer with or without reasonable accommodation, of good moral character without felony convictions, guilty pleas or no contest pleas, licensed to operate a motor vehicle in the Commonwealth of Pennsylvania and legally entitled to work in the United States. In the case of a foreign-born applicant, evidence satisfactory to the Commission, which fulfills I-9 requirements, shall be produced showing the person to be a naturalized citizen. Notwithstanding the foregoing, Borough Council may waive the Act 120 requirement at the request of the Chief of Police/Public Safety Director based on the needs of the Police Department at the time of testing. The request must be made in writing and approved by Council prior to the test date.

[Amended 5-8-2019 by Ord. No. 1362, approved 5-8-2019; 7-5-2023 by Ord. No. 1406, approved 7-5-2023]

C. Special qualifications required for advanced ranks in police service other than Chief of Police.

(1) In addition to meeting the general qualifications specified in Subsection A(1) and (2), each applicant for advanced rank in the police service shall meet the following special qualifications, at the time of appointment have:

(a) Been continuously employed in the Middletown police service for at least two years on the date of application in the case of a Sergeant and at least three years for all higher ranking positions;

(b) Satisfactorily completed their basic training program for police officers, and graduated from a recognized police school or an equivalent combination of training and experience;

(c) Demonstrated an ability to carry out orders from superiors;

(d) Demonstrated a working knowledge of police science and administration;

(e) Demonstrated an ability to deliver and supervise the work of subordinates; and

(f) Received at least a grade of "satisfactory" on the latest service rating.

(2) In addition, any candidate appointed to such position under these regulations must continue to meet all state or federal certification requirements on an ongoing basis.

D. Filing applications.

(1) Application for entry level testing shall comply with the requirements established by the Civil Service Commission or its designee.

[Amended 7-5-2023 by Ord. No. 1406, approved 7-5-2023]

(2) Applications for any other position in the Police Department may be received as advertised during normal business hours in the office of the Assistant Borough Manager. The receipt of such applications shall be subject to the following conditions:

(a) No application received after 12:00 noon on any day that is 14 calendar days prior to the date fixed for the written examination in the public announcement shall be considered for such examination, but;

(b) Additions, corrections or deletions can be made in applications up to the fourteenth day prior to the date fixed for the written exam.

E. Recording applications. The Assistant Borough Manager shall review each application upon receipt, for the purpose of determining that such application contains no errors or omissions. An application containing errors or omissions may, at the Assistant Borough Manager's discretion, be returned to the applicant for correction. The Assistant Borough Manager shall date, number and record in the order of receipt all acceptable applications, which once recorded shall be Commission records and shall not be returned to the applicants.

F. Penalty for false statement.

(1) The statements made by the candidate in his/her resume shall contain no falsification, omission or concealment of material fact. Should investigation disclose any willful misstatement, falsification, omission or concealment with respect to an application:

(a) The application shall be invalid, and the candidate shall be disqualified from examination; or

(b) If the candidate has been examined, the name of such candidate shall be removed from the consideration for the position;

(c) If the candidate shall have been appointed, such willful misstatement, falsification, omission or concealment shall constitute grounds for dismissal from the Police Department.

(2) No person who makes any willful false statement or omission shall be permitted to make any future application for any position in the Police Department of the Borough or other Borough position.

G. Chief of Police.

(1) Resume. No person shall be considered for the position of Chief of Police until he/she has submitted to Borough Council a current resume stating all police experience and expertise.

(2) General qualifications. In addition to meeting qualifications fixed for each applicant for a position in the Police Department, all applicants for the position of Chief of Police shall have:

(a) Been continuously employed in police service for at least five years or an equivalent combination of education and experience;

(b) Satisfactorily completed the in-service training program for police officers as required by state law or regulation, be eligible for a waiver of the training, or be able to comply with requirements within one year of appointment to the position;

(c) Demonstrated an ability to carry out order(s) from superiors;

(d) Demonstrated managerial and leadership skills and abilities;

(e) Demonstrated an ability to deliver and supervise the work of a subordinate;

(f) Received at least a grade of "satisfactory" on the latest service ratings, providing that an evaluation of the experience, training, general background and such other records of performance of the applicant, at the discretion of the Commission, may be substituted for the service requirement.

(3) Special qualifications required. In addition to the above general qualifications, each candidate shall meet the following special qualifications:

(a) All candidates shall have served in a federal, state or local law enforcement agency in a supervisory capacity for a minimum of two years;

(b) All candidates shall have a degree in Police Science or related field, or an equivalent to such degree in experience, training and understanding of managerial techniques, sufficient to supplement command experience.

(4) Background investigation. Each candidate for the Chief position may be subject to a complete background investigation to ascertain the character, qualifications and the managerial potential of each candidate. Each candidate will be asked to complete and provide a Federal Fair Credit Reporting Act (FCRA) authorization for this purpose. Refusal to sign such form shall result in disqualification from consideration.

§ A265-5 Announcement of examinations.

A. Public notice.

(1) Public notice of the time and place of every examination conducted by the Commission itself, together with information as to the position to be filled, shall be given by publication in two newspapers of general circulation a minimum of two times in the Borough. The public notice shall be published at least four weeks prior to an examination, and a copy of the notice shall be posted in a public place in the Borough Building. Additional public notice by publication, posting or otherwise may be given at any time at the discretion of the Commission.

(2) Public notice of the time and place of every examination conducted by an authorized agent of the Commission shall be given on a time and manner reasonably calculated to alert the general public to the examination.

B. Notice of examinations. In addition to the public notice in the event of an examination conducted by the Commission itself, the Secretary shall give written notice at least five days prior to the date fixed for the examination by certified or registered mail to each qualified applicant as follows:

(1) By mailing or otherwise delivering to each applicant a notice which shall include the date, time, place and duration of the examination; the type of examination (physical agility, written, oral, etc.).

(2) By mailing or otherwise delivering a form to each application qualified for medical and/or psychological examination. For a medical examination, a Borough medical examination form stating the established medical requirements for a position in the Police Department, as stated in § A265-6 of these rules, will be included. The notice will contain the name of the examiner and the date, time and place the applicant should report for examination.

(3) Only applicants receiving notices to report for any examination shall be permitted to participate in such examination, and each applicant shall present his/her notice to the examiner before he/she shall be examined. Failure to report for an examination in accordance with the instructions contained in the written notice shall disqualify the applicant; except in the case of a medical examination, the applicant, with the prior approval of the medical examiner designated in the notice, may fix another date and time for such examination.

§ A265-6 Medical and psychological examinations.

A. Introduction. The Borough is aware of both the requirements of the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA),[1] and its need to protect the health, safety and welfare of its citizens through the continuous efforts of its Police Department. As a result, the Borough requests that candidates for positions make any need for reasonable accommodation known to the Borough at the time of the application and medical/psychological examination.

[1] Editor's Note: See 42 U.S.C. § 12101 et seq. and 43 P.S. § 951 et seq., respectively.

B. Medical and mental requirements. Every applicant to whom the Borough has made a conditional job offer for appointment to a position in the Police Department shall submit, at Borough expense, to a medical examination by a Borough-appointed examiner, who shall determine if the applicant is free from any bodily or mental defect, deformity or disease that might make it impossible for that candidate to perform his/her essential job functions, with or without reasonable accommodation.

C. Report of examiner. The Commission shall furnish each applicant with forms upon which the medical examiner shall state the physical and/or mental condition of each applicant. The report of each examination shall be submitted to the Commission within five days after the date of examination.

D. Rejection of applicants. If the examiner shall deem any applicant medically unfit for performance of the essential duties of a police officer because of any physical or mental defect, which cannot be reasonably accommodated, whether or not the defect shall be specifically stated as a cause for rejection in the statement of medical requirements, such applicant shall be rejected and a brief statement of the reason for rejection shall be entered in the report of the medical examination. Insofar as possible, however, the medical examiner shall determine the medical fitness of an applicant after reviewing the job descriptions and its essential job functions and mental and physical requirements. The medical examiner shall discuss any request for reasonable accommodation with the Borough Manager and Chief of Police prior to making final determination.

E. Reexamination of medical fitness. Each applicant eligible for certification to the Borough Council for appointment to any position in the Police Department shall be instructed by the Assistant Borough Manager, before being certified, to inform the Commission of any illness or injuries requiring the attendance of a physician or requiring hospitalization, rehabilitation or outpatient treatment, and of any surgical operations that shall have occurred subsequent to the original medical examination. If, in the judgment of the Commission, there has been any change which is contrary to what was reported by the applicant, whether or not such change has been reported, the Commission may require the applicant to submit to a further medical and/or psychological examination before being certified for appointment. Any such further examination(s) shall be performed at the expense of the Borough, conducted by a Borough-appointed examiner.

F. Employee medical examination. When, in the opinion of the Commission or Borough Council, an employee is physically or mentally incapable of performing the essential duties of his/her position, the Commission or Council may require the employee in question to submit to a medical and/or psychological examination by an examiner appointed by the Commission. At that time, the employee is urged to make recommendations regarding any desired reasonable accommodation in order to begin the interactive exchange process. If after consideration of such reasonable accommodation, the Borough still believes that the employee cannot perform the essential functions of his/her job, written findings shall be made. The written findings of such examiner or examiners may be deemed a just basis for discharge due to disability. Dismissals because of physical and/or mental disability shall be made in accordance with § A265-11 of these rules.

§ A265-7 Examinations.

A. Entry level examinations for police officer.

(1) Entry-level written examinations for police officers shall be conducted by the Commission or its designee if the Commission elects to administer either the written or agility tests.

[Amended 5-8-2019 by Ord. No. 1362, approved 5-8-2019; 7-5-2023 by Ord. No. 1406, approved 7-5-2023]

(2) Test scoring. Testing shall include:

(a) Successful completion of a physical fitness assessment conducted on a pass/fail basis. Candidates who do not successfully complete this test will not be admitted to the written examination.

(b) A score of 70% or more on a written examination;

(c) An oral examination which is considered 30% of the final score (the written is weighted as 70%).

B. Examination for ranks above the position of police officer and below the rank of Chief of Police.

(1) An examination for the above positions shall consist of three parts, namely:

(a) A written examination which shall include a test of police knowledge, supervision and performance and such other written tests as the Commission may, from time to time, designate. The written examination shall represent 60% of all examinations.

(b) An oral examination which represents 40% of all examinations.

(c) The total of all examinations shall not exceed 100%.

(d) If deemed necessary and/or desirable, psychological assessments, physical assessments and agility tests may be administered. (Pass/fail scored only.)

(2) So far as they are able, the Commission shall provide that the written portion of the examination for the varying ranks shall place emphasis upon those qualifications which are important in each rank. In every case, however, the total weight assigned to the written examination shall be a total of 60%.

C. Passing grades.

(1) The minimum passing grade for an examination and to be eligible to proceed to the next examination for the position of police officer shall be a score of 70%. The minimum passing grade for any examination for positions above the rank of police officer and to be able to proceed to the next examination shall be a score of 80%.

(2) Every applicant for the position of police officer who receives a total score of at least 70%, after weighting the written and oral exams, and who is entitled by law to additional credit for service in the Armed Forces of the United States, shall have his/her score adjusted accordingly as provided by law. Applicants claiming veteran's preference shall submit satisfactory proof of active service and honorable discharge.

D. Notice of applicant's grade. When the grading of each examination is completed, the Secretary shall give each applicant written notice of his/her grade. A copy of the eligibility list which lists the passing scores shall be posted in the Municipal Building listing the applicant's name and grade.

E. Administering examinations. If the Commission elects to perform its own testing, the Commission or its designee shall be responsible for administering the written or the agility tests. The oral examination of any applicant shall be the responsibility of the Commission, provided that the Commission may designate, from time to time, such persons qualified in oral examination techniques and procedures or qualified to evaluate performance or service records as considered necessary to assist in such examinations and evaluations.

[Amended 5-8-2019 by Ord. No. 1362, approved 5-8-2019; 7-5-2023 by Ord. No. 1406, approved 7-5-2023]

F. Conduct of written examination.

(1) The Commission and/or its testing agent shall prepare a statement of instructions and rules for the conduct of written examinations.

(2) A blind system for scoring examinations will be used. The candidate's test number and name is placed on a card and sealed in an envelope until the test scores are calculated. Later, the test number is matched to the candidate's name.

G. Penalty for improper conduct. Should an applicant for a entry level position be found guilty of an act tending to defeat the proper conduct or the result of any examination, his/her name shall be removed from the eligible list resulting from the examination, and the applicant shall not be permitted to make future application for any position in the Police Department or Borough. Should any member of the Borough of Middletown Police Department be found guilty of an act tending to defeat the proper conduct on the result of any examination, his or her name shall be referred to the Mayor for appropriate action.

H. Examination for Chief of Police. The Commission may certify a candidate to the position of Chief of Police who meets the qualifications specified in § A265-4G by one of the following options as selected by Borough Council.

(1) A noncompetitive process. The Council nominates a candidate for the position to the Commission at which time the Commission administers a noncompetitive examination to the candidate. The examination must test the candidate's knowledge of police management and administration. If the candidate passes the examination by a score of 80% or higher, the Commission may certify the candidate to the position of Police Chief; or

(2) A competitive process. Commission or designate, or Borough Council or designate, may minimally administer written and oral examinations to test the candidates' knowledge of police management and administration. To be considered, the candidate must pass all the requirements for police officer and any additional requirements imposed by the Commission for Police Chief.

I. The Commission may refuse to examine, or, if examined, may refuse to certify after examination as eligible, any applicant who:

[Added 5-8-2019 by Ord. No. 1362, approved 5-8-2019]

(1) 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 the applicant has applied;

(2) Is physically unfit for the performance of the duties of the position to which the applicant seeks employment;

(3) Is illegally using a controlled substance, as defined in Section 102 of the Controlled Substances Act (91-513, 21 U.S.C.A. § 802);

(4) Has been guilty of any crime involving moral turpitude or of infamous or notoriously disgraceful conduct;

(5) Has been dismissed from public service for delinquency or misconduct of office; or

(6) Is affiliated with any group whose policies or activities are subversive to the form of government enumerated in the Constitutions and laws of the United States and this Commonwealth.

J. If an applicant is aggrieved by the refusal of the Commission to certify the applicant as eligible after examination or a person is aggrieved by refusal of the Commission to examine the person, the Commission shall, at the request of the applicant or person aggrieved, within 10 days, appoint a time and place for a public hearing. At the hearing, the applicant or person aggrieved may appear with or without counsel, and the Commission shall take testimony and review its refusal to provide examination or certification. The deliberations of the Commission, including interim rulings on evidentiary or procedural issues, may be held in the nature of a closed executive session. The Commission's disposition of the matter shall constitute official action which shall occur at a public meeting held under 65 Pa.C.S.A. Chapter 7 (relating to open meetings). The decision of the Commission shall be final.

[Added 5-8-2019 by Ord. No. 1362, approved 5-8-2019]

§ A265-8 Eligible list.

A. Preparation of eligible list. As soon as possible after the completion of all examinations other than entry level, the Secretary shall prepare an eligible list upon which shall appear the name of each applicant who has successfully completed the examination process. The names on the eligible list shall be arranged, from the highest to the lowest, in the order of the final weighted score received by each eligible applicant. The eligible list shall be filed in the office of the Assistant Borough Manager and a copy shall be posted on the bulletin board in the Borough Municipal Building.

B. Breaking tie scores. When two or more eligible applicants shall receive the same final weighted score, the order in which the names of such persons shall appear on the eligible list shall be determined by their respective scores on that part of the examination assigned the greatest weight. In the event that two or more qualifying applicants also receive identical scores on that part of the examination assigned the greatest weight, the order of listing shall be determined by the order in which the applications were numbered for recording purposes.

C. Life of eligible lists. The eligibility list will be valid for one year from the date the Commission formally adopts the eligibility list. Prior to expiration of the one-year period, the Commission may extend the validity of the eligibility list for up to an additional 12 months by a majority vote of the Commission at a duly authorized Commission meeting. In the absence of a lawful extension by the Commission, the list shall expire.

[Amended 5-8-2019 by Ord. No. 1362, approved 5-8-2019]

D. Furlough lists. Whenever the Borough Council shall determine the need for a reduction in the number of police officers, the Commission shall prepare and maintain a list of the names of all such furloughed officers, together with the position held by each such officer at the time of furlough. The names on the furlough list shall be arranged in priority order based on seniority of each furloughed officer. Seniority shall be defined by the applicable collective bargaining agreement.

§ A265-9 Certification and appointments.

A. The Council shall notify the Commission of any vacancy which is to be filled and shall request the certification of an eligibility list. The Commission shall certify for each existing vacancy from the eligibility list the names of the three persons, or a lesser number if three are not available, who have received the highest average. The Council shall make a conditional appointment from the three names certified, based solely on the merits and fitness of the candidates, unless Council makes objections to the Commission regarding one or more of the certified persons for any of the reasons stated in § A265-7I and J (relating to rejection of applicant and hearing). If the objections are sustained by the Commission as provided in § A265-7I and J or the conditional appointee is determined to be unqualified in accordance with the procedures specified in § A265-7I and J, the Commission shall strike the name of the person from the eligibility list and certify the next highest name for each name stricken from the eligibility list. As each subsequent vacancy occurs in the same or another position, the same procedure shall be followed.

[Amended 5-8-2019 by Ord. No. 1362, approved 5-8-2019]

B. Furlough list to fill appointments. Upon receipt of a request from the Borough Council, the Commission shall first certify the names of those eligible applicants who were furloughed because of a reduction in the force. In filling a vacancy from furlough lists, the Commission shall certify the top name only. If more than one vacancy is to be filled, the Commission shall certify the number of names equal to the number of vacancies by the order of the list, highest to lowest.

C. Certification from eligible lists. If no furlough list exists, or if the total number of vacancies cannot be filled from the available names on the furlough list, the Commission shall certify names from the eligible list. The number of available names certified from the eligible list shall exceed by two the number of vacancies to be filled from such eligible list. If there are less than three available eligibles on the eligible list, the Borough Council shall request that the Commission or the Dauphin County Chiefs of Police Association, Inc., hold another examination.

D. Removal of names from furlough and eligible lists.

(1) In addition to the other reasons stated as grounds for removal in these rules, the name of any person appearing on a furlough list or an eligible list shall be removed by the Commission if such person:

(a) Is appointed to a position in the Police Department;

(b) Declines an appointment to a permanent position in the Police Department;

(c) Fails to make written reply to the Commission within 14 calendar days from the mailing of a certified letter for the position offered; or

(d) Indicates availability for appointment and is appointed to fill a vacancy but fails to report for duty at the time prescribed, unless, in the opinion of the Commission, such person can show good and sufficient reasons for failure to report.

(2) Nothing in this section, however, shall be construed as authorizing the removal of the name of a person from a furlough list or eligible list who refuses or accepts a position of a lower rank than that from which furloughed or for which eligible on a Commission list.

E. Appointment procedures. Whenever the name of a person is certified from either the furlough list or the eligible list, a notarized statement of waiver shall be obtained from the candidate to permit a comprehensive background check. Upon the completion of a background check, including the FCRA, indicating an acceptable background, the person shall be notified immediately of such certification by registered or certified mail. The notice shall include the title of the position the compensation to be paid and shall request a written reply within 14 days from the date of mailing.

F. Probationary period. All initial appointments to positions in the Police Department shall be for a probationary period of one year. The Chief of Police shall investigate the adjustment, performance and general acceptability of each probationer to determine whether such probationer is fully qualified for permanent appointment. The Chief of Police shall make a report on the performance and conduct of each probationer at the end of the fourth and eighth months of the probationary period and, finally, not less than 15 calendar days before the next regular meeting of the Borough Council immediately preceding the end of the probationary period. Each final probationary report shall include the recommendation of the Chief of Police either to retain or reject the probationer. Each report shall be submitted in writing to the Mayor for presentation to the Borough Council within 15 days prior to the regular meeting of the Borough Council immediately preceding the end of the probationary period. The Borough Council shall notify the Commission and shall notify the probationer of such decision on or before the last day of the probationary period. In the event the probationary appointment is the Chief of Police, the Mayor shall evaluate the performance and conduct of the Chief in the same manner and subject to the same procedures as all other positions, by providing a written report to Borough Council.

G. Provisional appointments. Whenever there are urgent reasons for the filling of a vacancy in any position in the police force and there are no names on the eligible list for such appointment, Council may nominate a person to the Commission for noncompetitive examination and if such nominee shall be certified by the Commission as qualified after such noncompetitive examination, he/she may be appointed provisionally to fill such vacancy. It shall thereupon become the duty of the Commission within three weeks to request an examination from the Dauphin County Chiefs of Police Association, Inc., and/or other authorized testing agent to hold a competitive examination and certify a list of eligible's and regular appointment shall then be made from the name or names submitted by the Commission.

H. Notification. It shall be the duty of the Council to notify any provisional appointee in writing at the time of appointment concerning the terms and tenure of such appointment as provided by law and to receive his/her written acknowledgement of such notice.

§ A265-10 Promotions.

A. Promotions. Promotions shall be based on examinations. The nature and scope of which shall be determined by the Commission and shall be in concert with the applicable sections of § A265-7 of these rules.

B. Examinations. Promotional examinations shall be conducted by the Commission and an eligible list drawn up in the same manner as that prescribed for original appointment, provided that only the names of those participants in a promotional examination who shall have attained a final average rating of 80% shall be placed on the resultant eligible list for promotional appointment. In response to requisition for names to fill a position by promotion, the Commission shall certify the entire appropriate eligible list and the appointing officer or body shall have the right to appoint any person whose name appears on the said list.

C. Deputy Chief duties. Nothing in this section shall prohibit the Mayor or the Police Chief from adding additional functions, responsibilities and/or compensation to an officer or other police employee covered by these regulations without an examination and promotion. Conversely, removal of such additional functions, responsibilities and/or compensation shall not be considered a suspension, removal or reduction in rank for purposes of § A265-11.

§ A265-11 Suspensions, removals and reductions in rank.

A. Procedures.

(1) Whenever a police officer is suspended without pay, removed or reduced in rank, the specific charges warranting such actions shall be stated in writing by the Mayor and relayed to the police officer by the Commission. The charges shall be stated clearly and in sufficient detail to enable the officer to understand the charges and to allow the officer an opportunity to respond to those charges. The charges shall specify that which provides the basis for the disciplinary action as well as an explanation of the factual circumstances upon which the appointing authority relied in finding a violation.

(2) Within five days after the Mayor has imposed the suspension, removal or reduction in rank, a written statement of the charges shall be delivered to the officer either by personal service or by certified and registered mail. A copy of the statement of charges shall also be served upon the members of the Civil Service Commission.

B. Demand of hearing. Any police officer suspended, removed or reduced in rank may file with the Commission a written demand for a formal hearing with a taped or stenographic record, and right to examination and cross-examination. Such written demand and any statement of written answers to the charges made against the person accused shall be filed no later than 10 calendar days from the date upon which the statement of charges were personally serviced or received. Each such hearing shall be open to the public.

C. Hearing on suspensions, removals and reductions.

(1) The Commission shall grant a formal hearing at which witnesses are examined and cross-examined and a transcript is made within 10 days of the request for such by the accused, provided that the accused complies with the time frame specified in Subsection B. The hearing may be continued by the Commission for good and sufficient reason at the request of the Council or the accused. At any such hearing the person against whom the charges are made may be present in person and represented prior to the hearing by counsel. The suspension, removal or reduction in rank will remain in effect, pending the determination of the charges against the accused. In conducting the hearing, the Commission's standard of review shall be to determine whether sufficient evidence has been presented to support the statutory reason for the disciplinary action. In the event the Commission fails to uphold the charges, then the person sought to be suspended, removed or demoted shall be reinstated with full pay for the period during which he/she was suspended, removed or demoted and no charges shall be officially recorded against his/her record.

(2) The aggrieved party shall have immediate right of appeal to the Court of Common Pleas of Dauphin County, and/or the Commonwealth Court, and the case shall therefore be taken within 30 days from the date of entry by the Commission of its final order and shall be by petition. The Council and the person sought to be suspended, removed or demoted shall at all times have the right to employ counsel before the Commission and upon appeal to the Court of Common Pleas, and/or the Commonwealth Court.

(a) Notice of hearing. Notice of the date, time and place for each hearing shall be given in the following manner:

[1] Either by personal service, certified mail and if desired one or more of the following: e-mail or facsimile to each of the principals involved in the case; and

[2] By mailing, e-mailing or sending by facsimile a notice to all other parties who have stated an interest in the hearing to the Chair of the Civil Service Commission provided that any failure to give notice required by this subsection shall not invalidate any subsequent action taken by the Commission.

(b) Oaths. All testimony shall be given under oath. The Chairperson, or in his/her absence the Vice Chairperson, shall administer all oaths.

(c) Subpoenas. The Chairperson, or in his/her absence the Vice Chairperson, may compel the attendance of witnesses and the production of records, documents, and papers pertaining to any hearing. However, upon the written request by the accused or by the person making charges, the Chairperson, or in his/her absence, the Vice Chairperson, additionally shall order the attendance of pertinent witnesses or the production of relevant documents, provided that such a written request is filed with the Secretary within five days from the date appearing on the notice of the hearing.

(d) Hearing procedure.

[1] Each hearing shall be conducted in the following manner:

[a] The Chairperson shall state the general purpose of the hearing;

[b] The Secretary, upon direction of the Chairperson, shall read the written charges or circumstances against the accused together with the record of action taken against such officer;

[c] The Secretary shall read any written reply of the accused;

[d] The Chairperson shall afford each person making charges, or his/her counsel, an opportunity to make further statement in support of the charges and to produce any witnesses;

[e] The Chairperson shall afford the accused, or his/her counsel, an opportunity to question or cross-examine the person making charges and to question or cross-examine any witness produced by such person;

[f] The Chairperson shall afford each person making charges or his/her counsel an opportunity to examine the person accused;

[g] The Chairperson shall permit each person making charges, or his/her counsel, to make a summation;

[h] The Chairperson shall afford the accused, or his/her counsel, an opportunity to produce any witness and to sum up the defense;

[i] The Chairperson shall afford each person making charges, or his/her counsel, an opportunity to question or cross-examine the witnesses produced by the person accused;

[j] The Commission shall be the judge of admissible evidence and procedure and shall not be bound by technical rules of evidence.

[2] A stenographic transcript of proceedings shall be made and filed in the Commission archives along with all other records pertinent to the case. Such records shall be sealed and not open to public inspection.

[3] The Commission, at any time during the course of the hearing, may question or cross-examine the person making charges, the accused and any witnesses.

D. Decision of the Commission. Within 30 days after the later of the conclusion of the hearing and receipt of the hearing transcript, the Commission shall issue its decision in the form of a written order approved by at least two members of the Commission. The written order shall include all findings of fact. If, during the public hearing, opposing facts are presented, the Commission shall include in the written order a decision as to what it considers to be the correct facts. The findings and decision of the Commission shall be certified to the person making charges, to the accused officer and to the Borough Council.

E. Conflict of interest.

(1) Should any Commission member be of relations to, or possess information of any facts of persons and/or cases which may prejudice his/her vote, full disclosure of such knowledge shall be made to all other members of the Commission. At that time:

(a) The member in question may elect to refrain from participation in the hearing process; or

(b) The other Commission members may vote upon whether or not the biasing value of the knowledge is such to warrant the exclusion of member's vote.

(2) If a conflict of interest does occur, and the member's vote is disqualified, it is imperative that the votes of the two remaining Commission members be in agreement or else the issue being is not upheld. If a conflict of interest has occurred, has not been reported and is then discovered at a later date, the biased vote will be disqualified, and the decision will rest upon the votes of the remaining two Commission members.

(3) In the event of multiple recusals in the same case, the Commission shall appoint an unbiased hearing examiner to preside over the hearing and make the determination.

§ A265-12 Inspection.

A. Inspection in general. Except as otherwise provided in § 265-11C(2)(d) or other parts of this chapter, all of the records of the Commission shall be open to the public and available for inspection during normal business hours. A member of the Commission or any person who may, from time to time, be designated by the Commission, shall be present at all times during any inspection of any record of the Commission. The Commission shall take appropriate steps to protect the privacy of identifier information, such as address, social security number, home telephone number and any health care information related to employees.

B. Character reports. All reports of investigation and inquiries into the character of applicants shall not be open to general public inspection.

C. Inspection of examination materials.

(1) Any examined applicant may inspect his/her written examination papers, provided that:

(a) He/she makes a written request to the Commission within seven days from the date of mailing of the written notice of his/her grade;

(b) He/she receives the written consent of the Commission to inspect the examination papers;

(c) He/she makes the inspection within five calendar days from the date of the mailing of the consent of the Commission.

(2) The Commission shall not consent to the request of any examined applicant to inspect any written examination paper which may be used in a subsequent written examination. If the Commission consents to an inspection of any of the written examination papers to a previously examined applicant, it shall state in its letter of consent the specific examination papers that may be inspected. Before any member of the Commission, or any person designated by the Commission, permits any inspection of examination papers, he/she shall require the examined applicant to produce the letter indicating the consent of the Commission and shall limit the inspection by the examined applicant to only those examination papers indicated in the letter of consent. No examined applicant shall be permitted to inspect any examination papers other than his/her own, nor shall be/she be permitted to make any written notes while inspecting any examination paper.

§ A265-13 Commission forms.

A. Use of forms. The Commission may adopt and use various types of forms to perform their official functions, copies of which may be obtained from the Secretary of the Commission.

B. Forms. The following numbered forms and their titles become the official forms of the Commission and a part of the rules and regulations of the Commission, a copy of which may be obtained from the Secretary of the Commission:

(1) Application for examination used by the Commission or any of its authorized agents;

(2) Certificate of medical examination;

(3) Confidential inquiry letter;

(4) Confidential inquiry form;

(5) Notice of medical examination;

(6) Certification notice;

(7) Personal service record;

(8) Service rating Police Department; and

(9) Authorization of FCRA investigation.

§ A265-14 Amendments.

The Borough Council upon its own motion or upon recommendation of the Commission, may from time to time amend any part of these rules and regulations insofar as such amendments do not conflict with the Borough Code or other applicable law.

§ A265-15 Conflicts.

A. Conflict with collective bargaining agreement.

(1) The Commission recognizes that certain members of the police force are covered by a collective bargaining agreement (CBA) or internal arbitration award (IAA). In the event that the provisions of the CBA or IAA are more favorable to the police officer, the CBA or IAA shall control.

(2) To the extent that any issue arises for which the CBA or IAA controls, the officer shall utilize the grievance and arbitration procedures of the CBA or IAA, rather than the hearing provision of these regulations.

B. Conflict with state or federal law. To the extent that any provisions of these regulations conflicts with state or federal law or constitutional protection, the provision of these regulations shall be suspended.

§ A265-16 Authority.

The Borough Council of Middletown adopts these civil service regulations in accordance with the provisions of the Borough Code appearing at 53 P.S. § 46171 et seq.,[1] allowing for the appointment of police and fire employees through the Civil Service system. The Commission of the Borough shall have any and all powers established in that authority.

[1] Editor's Note: See now 8 Pa.C.S.A. § 1171 et seq.