Public Act 93-0411

HB0988 Enrolled                      LRB093 05742 RCE 05835 b

    AN ACT in relation to public bodies.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  1.   Short  title.  This Act may be cited as the
Fire Department Promotion Act.

    Section 5. Definitions. In this Act:
    "Affected department" or "department" means  a  full-time
municipal  fire  department  that  is subject to a collective
bargaining agreement or the fire  department  operated  by  a
full-time  fire protection district. The terms do not include
fire departments operated by the State, a  university,  or  a
municipality  with a population over 1,000,000 or any unit of
local government other than a municipality or fire protection
district. The terms also do not include a combined department
that was providing both police and firefighting  services  on
January 1, 2002.
    "Appointing authority" means the Board of Fire and Police
Commissioners,  Board  of  Fire  Commissioners, Civil Service
Commissioners,  Superintendent  or  Department   Head,   Fire
Protection District Board of Trustees, or other entity having
the  authority  to  administer  and  grant  promotions  in an
affected department.
    "Promotion" means any appointment  or  advancement  to  a
rank   within  the  affected  department  (1)  for  which  an
examination was required before January 1, 2002; (2) that  is
included  within  a  bargaining unit; or (3) that is the next
rank immediately above the highest  rank  included  within  a
bargaining  unit,  provided  such  rank  is not the only rank
between the Fire Chief and the highest rank  included  within
the  bargaining  unit,  or is a rank otherwise excepted under
item (i), (ii), (iii),  (iv),  or  (v)  of  this  definition.
"Promotion"  does  not  include appointments (i) that are for
fewer than 180 days; (ii) to the positions of Superintendent,
Chief,  or  other  chief  executive  officer;  (iii)  to   an
exclusively  administrative  or  executive  rank for which an
examination is not required; (iv) to a rank that was exempted
by a  home  rule  municipality  prior  to  January  1,  2002,
provided  that  after  the effective date of this Act no home
rule municipality may exempt any  future  or  existing  ranks
from  the provisions of this Act; or (v) to an administrative
rank immediately below the Superintendent,  Chief,  or  other
chief  executive  officer of an affected department, provided
such rank shall not be held by more than 2 persons and  there
is  a promoted rank immediately below it. Notwithstanding the
exceptions to the definition  of  "promotion"  set  forth  in
items  (i),  (ii),  (iii),  (iv), and (v) of this definition,
promotions shall include any appointments to ranks covered by
the terms of a collective bargaining agreement in  effect  on
the effective date of this Act.
    "Preliminary  promotion  list"  means  the  rank order of
eligible candidates established in accordance with subsection
(b) of  Section 20 prior to applicable  veteran's  preference
points.   A  person  on the preliminary promotion list who is
eligible  for  veteran's  preference  under  the   laws   and
agreements  applicable to the appointing authority may file a
written application for that preference within 10 days  after
the  initial  posting  of the preliminary promotion list. The
preference shall be calculated in accordance with Section  55
and  applied as an addition to the person's total point score
on the examination.   The  appointing  authority  shall  make
adjustments  to  the  preliminary promotion list based on any
veteran's preference claimed and the final adjusted promotion
list shall then be posted by the appointing authority.
    "Rank" means any position within the chain of command  of
a  fire  department to which employees are regularly assigned
to perform duties related to providing fire suppression, fire
prevention, or emergency services.
    "Final adjusted promotion list" means the promotion  list
for  the  position that is in effect on the date the position
is created or the vacancy  occurs.   If  there  is  no  final
adjusted  promotion  list in effect for that position on that
date, or  if  all  persons  on  the  current  final  adjusted
promotion  list  for  that position refuse the promotion, the
affected department shall  not  make  a  permanent  promotion
until  a  new final adjusted promotion list has been prepared
in accordance  with  this  Act,  but  may  make  a  temporary
appointment to fill the vacancy. Temporary appointments shall
not exceed 180 days.
    Each component of the promotional test shall be scored on
a  scale  of  100 points.  The component scores shall then be
reduced by the weighting factor assigned to the component  on
the  test  and the scores of all components shall be added to
produce a total score based on a scale of 100 points.

    Section 10.  Applicability.
    (a)  This Act shall apply to all positions in an affected
department, except those specifically excluded in  items (i),
(ii), (iii), (iv), and (v) of the definition  of  "promotion"
in   Section  5  unless  such  positions  are  covered  by  a
collective bargaining agreement in  force  on  the  effective
date of this Act.  Existing promotion lists shall continue to
be  valid until their expiration dates, or up to a maximum of
3 years after the effective date of this Act.
    (b)  Notwithstanding any  statute,  ordinance,  rule,  or
other  laws  to  the  contrary, all promotions in an affected
department to which this Act applies shall be administered in
the manner provided  for  in  this  Act.  Provisions  of  the
Illinois  Municipal  Code,  the Fire Protection District Act,
municipal ordinances,  or  rules  adopted  pursuant  to  such
authority  and  other laws relating to promotions in affected
departments shall continue to apply to the  extent  they  are
compatible  with  this  Act,  but  in  the  event of conflict
between this Act and any other law, this Act shall control.
    (c)  A home rule or non-home rule  municipality  may  not
administer  its fire department promotion process in a manner
that is inconsistent with  this  Act.    This  Section  is  a
limitation  under  subsection (i) of Section 6 of Article VII
of the Illinois Constitution on the  concurrent  exercise  by
home  rule units of the powers and functions exercised by the
State.
    (d)  This Act is intended to serve as a minimum  standard
and shall be construed to authorize and not to limit:
         (1)  An   appointing   authority  from  establishing
    different  or  supplemental   promotional   criteria   or
    components,  provided  that  the criteria are job-related
    and applied uniformly.
         (2)  The negotiation by an employer and an exclusive
    bargaining representative of clauses within a  collective
    bargaining agreement relating to conditions, criteria, or
    procedures for the promotion of employees who are members
    of bargaining units.
         (3)  The negotiation by an employer and an exclusive
    bargaining   representative   of   provisions   within  a
    collective bargaining agreement  to  achieve  affirmative
    action   objectives,   provided  that  such  clauses  are
    consistent with applicable law.
    (e)  Local authorities and  exclusive  bargaining  agents
affected  by  this  Act may agree to waive one or more of its
provisions and bargain on the contents of  those  provisions,
provided that any such waivers shall be considered permissive
subjects of bargaining.

    Section 15. Promotion process.
    (a)  For the purpose of granting promotion to any rank to
which  this  Act applies, the appointing authority shall from
time to time, as necessary, administer a promotion process in
accordance with this Act.
    (b)  Eligibility  requirements  to  participate  in   the
promotional  process  may include a minimum requirement as to
the  length   of   employment,   education,   training,   and
certification   in   subjects  and  skills  related  to  fire
fighting. After the effective date  of  this  Act,  any  such
eligibility requirements shall be published at least one year
prior to the date of the beginning of the promotional process
and  all members of the affected department shall be given an
equal opportunity to meet those eligibility requirements.
    (c)  All  aspects  of  the  promotion  process  shall  be
equally  accessible  to  all  eligible   employees   of   the
department.  Every  component  of  the testing and evaluation
procedures shall be published to all eligible candidates when
the announcement of promotional testing is made.  The  scores
for  each  component of the testing and evaluation procedures
shall be disclosed to each candidate as soon  as  practicable
after the component is completed.
    (d)  The  appointing  authority  shall provide a separate
promotional examination for  each  rank  that  is  filled  by
promotion.    All   examinations   for   promotion  shall  be
competitive among the members of the next lower rank who meet
the established eligibility requirements and desire to submit
themselves to  examination.   The  appointing  authority  may
employ   consultants   to  design  and  administer  promotion
examinations or may adopt  any  job-related  examinations  or
study  materials  that  may become available, so long as they
comply with the requirements of this Act.

    Section 20. Promotion lists.
    (a)  For the purpose of granting a promotion to any  rank
to  which  this  Act  applies, the appointing authority shall
from time  to  time,  as  necessary,  prepare  a  preliminary
promotion  list  in accordance with this Act. The preliminary
promotion list shall be  distributed,  posted,  or  otherwise
made  conveniently  available  by the appointing authority to
all members of the department.
    (b)  A person's position  on  the  preliminary  promotion
list  shall  be  determined by a combination of factors which
may include any of the following:  (i) the person's score  on
the   written   examination  for  that  rank,  determined  in
accordance with  Section  35;  (ii)  the  person's  seniority
within  the department, determined in accordance with Section
40; (iii)  the  person's  ascertained  merit,  determined  in
accordance  with  Section  45; and (iv) the person's score on
the subjective  evaluation,  determined  in  accordance  with
Section  50.  Candidates  shall be ranked on the list in rank
order based on the highest to the lowest total points  scored
on all of the components of the test. Promotional components,
as  defined  herein,  shall be determined and administered in
accordance with  the  referenced  Section,  unless  otherwise
modified  or agreed to as provided by paragraph (1) or (2) of
subsection (e) of Section 10.  The use of physical  criteria,
including   but  not  limited  to  fitness  testing,  agility
testing, and medical evaluations, is specifically barred from
the promotion process.
    (c)  A person on the preliminary promotion  list  who  is
eligible  for  a  veteran's  preference  under  the  laws and
agreements applicable to the department may  file  a  written
application  for  that  preference  within  10 days after the
initial posting  of  the  preliminary  promotion  list.   The
preference  shall  be calculated as provided under Section 55
and added to the total score achieved by the candidate on the
test.  The appointing authority shall then  make  adjustments
to  the rank order of the preliminary promotion list based on
any  veteran's  preferences  awarded.   The  final   adjusted
promotion   list   shall  then  be  distributed,  posted,  or
otherwise  made  conveniently  available  by  the  appointing
authority to all members of the department.
    (d)  Whenever a promotional rank is  created  or  becomes
vacant  due  to  resignation, discharge, promotion, death, or
the granting of a disability or retirement  pension,  or  any
other  cause,  the appointing authority shall appoint to that
position the person with the highest  ranking  on  the  final
promotion  list  for  that  rank,  except that the appointing
authority shall have the right to pass over that  person  and
appoint  the  next  highest  ranked person on the list if the
appointing authority has reason to conclude that the  highest
ranking  person  has demonstrated substantial shortcomings in
work performance or has engaged in misconduct  affecting  the
person's  ability  to perform the duties of the promoted rank
since the posting of the  promotion  list.   If  the  highest
ranking person is passed over, the appointing authority shall
document  its  reasons  for  its  decision to select the next
highest ranking person on the list.  Unless the  reasons  for
passing  over the highest ranking person are not remedial, no
person who is the highest ranking person on the list  at  the
time of the vacancy shall be passed over more than once.  Any
dispute   as   to  the  selection  of  the  first  or  second
highest-ranking person shall  be  subject  to  resolution  in
accordance  with  any  grievance procedure in effect covering
the employee.
    A vacancy shall be deemed to occur in a position  on  the
date  upon  which  the  position is vacated, and on that same
date, a vacancy shall occur in all  ranks  inferior  to  that
rank,  provided that the position or positions continue to be
funded and authorized by  the  corporate  authorities.  If  a
vacated  position  is  not filled due to a lack of funding or
authorization  and  is  subsequently  reinstated,  the  final
promotion  list  shall  be  continued  in  effect  until  all
positions vacated have been filled or for a period  up  to  5
years  beginning  from  the  date  on  which the position was
vacated.  In such event,  the  candidate  or  candidates  who
would   have   otherwise  been   promoted  when  the  vacancy
originally occurred shall be promoted.
    Any candidate may refuse a promotion once without  losing
his  or  her  position  on the final adjusted promotion list.
Any candidate who refuses promotion a second  time  shall  be
removed from the final adjusted promotion list, provided that
such  action  shall not prejudice a person's opportunities to
participate in future promotion examinations.
    (e)  A final adjusted promotion list shall  remain  valid
and unaltered for a period of not less than 2 nor more than 3
years  after  the  date  of  the initial posting.  Integrated
lists are prohibited and when a  list  expires  it  shall  be
void,  except  as provided in subsection (d) of this Section.
If a promotion list is not in effect,  a successor list shall
be prepared and distributed within 180 days after a  vacancy,
as defined in subsection (d) of this Section.
    (f)  This Section 20 does not apply to the initial hiring
list.

    Section 25. Monitoring.
    (a)  All  aspects  of  the  promotion  process, including
without limitation the administration, scoring,  and  posting
of   scores   for  the  written  examination  and  subjective
evaluation and the determination and posting of seniority and
ascertained merit scores, shall be subject to monitoring  and
review  in  accordance  with this Section and Sections 30 and
50.
    (b)  Two impartial persons who are  not  members  of  the
affected  department shall be selected to act as observers by
the exclusive bargaining agent.  The  appointing  authorities
may also select 2 additional impartial observers.
    (c)  The  observers  monitoring the promotion process are
authorized to be present and observe when  any  component  of
the  test  is  administered  or  scored.  Except as otherwise
agreed to in a collective bargaining agreement, observers may
not interfere with the promotion process, but shall  promptly
report   any   observed   or   suspected   violation  of  the
requirements  of  this  Act  or  an   applicable   collective
bargaining  agreement  to  the  appointing  authority and all
other affected parties.
    (d)  The provisions of this Section do not apply  to  the
extent  that  they are inconsistent with provisions otherwise
agreed to in a collective bargaining agreement.

    Section 30.  Promotion examination components.  Promotion
examinations  that  include  components consisting of written
examinations,  seniority  points,   ascertained   merit,   or
subjective  evaluations  shall be administered as provided in
Sections 35, 40, 45 and 50.  The  weight,  if  any,  that  is
given  to  any component included in a test may be set at the
discretion of the appointing  authority  provided  that  such
weight  shall  be subject to modification by the terms of any
collective bargaining agreement in effect  on  the  effective
date  of  this  Act or thereafter by negotiations between the
employer and an exclusive bargaining representative.  If  the
appointing  authority  establishes  a  minimum passing score,
such score shall be  announced  prior  to  the  date  of  the
promotion  process  and  it  must  be  an  aggregate  of  all
components  of  the testing process.  All candidates shall be
allowed to participate  in  all  components  of  the  testing
process  irrespective  of  their  score on any one component.
The provisions of this Section do not  apply  to  the  extent
that  they  are inconsistent with provisions otherwise agreed
to in a collective bargaining agreement.
    Section 35. Written examinations.
    (a)  The   appointing   authority   may   not   condition
eligibility  to  take  the   written   examination   on   the
candidate's  score  on  any of the previous components of the
examination. The written examination for  a  particular  rank
shall  consist  of  matters  relating to the duties regularly
performed by persons holding that rank within the department.
The examination shall  be  based  only  on  the  contents  of
written   materials   that   the   appointing  authority  has
identified and made readily available to potential  examinees
at  least 90 days before the examination is administered. The
test  questions  and  material  must  be  pertinent  to   the
particular rank for which the examination is being given. The
written   examination   shall   be   administered  after  the
determination and posting of the seniority list,  ascertained
merit  points,  and subjective evaluation scores. The written
examination shall be administered, the test materials opened,
and the results scored and tabulated.
    (b)  Written  examinations  shall  be   graded   at   the
examination  site  on  the day of the examination immediately
upon completion of the test in front of the observers if such
observers are appointed under Section 25,  or  if  the  tests
are  graded  offsite  by  a  bona  fide  testing  agency, the
observers shall witness the sealing and the shipping  of  the
tests  for  grading  and the subsequent opening of the scores
upon the return from the testing agency. Every examinee shall
have the right  (i)  to  obtain  his  or  her  score  on  the
examination  on the day of the examination or upon the day of
its  return  from  the  testing  agency  (or  the  appointing
authority shall  require  the  testing  agency  to  mail  the
individual  scores to any address submitted by the candidates
on the day of  the  examination);  and  (ii)  to  review  the
answers  to  the  examination  that  the  examiners  consider
correct.  The  appointing authority may hold a review session
after the examination for the purpose of  gathering  feedback
on the examination from the candidates.
    (c)  Sample  written  examinations may be examined by the
appointing authority and members of the  department,  but  no
person   in   the  department  or  the  appointing  authority
(including the Chief, Civil Service Commissioners,  Board  of
Fire  and  Police Commissioners, Board of Fire Commissioners,
or Fire Protection  District  Board  of  Trustees  and  other
appointed  or  elected  officials)  may  see  or  examine the
specific questions on the actual written  examination  before
the  examination is administered.  If a sample examination is
used, actual test questions shall not be included.  It  is  a
violation of this Act for any member of the department or the
appointing  authority  to  obtain or divulge foreknowledge of
the  contents  of  the  written  examination  before  it   is
administered.
    (d)  Each  department  shall  maintain  reading and study
materials for its current written examination and the reading
list for the last 2 written examinations or for a period of 5
years, whichever is less,  for each rank and shall make these
materials available and accessible at each duty station.
    (e)  The provisions of this Section do not apply  to  the
extent  that  they  are in conflict with provisions otherwise
agreed to in a collective bargaining agreement.

    Section 40. Seniority points.
    (a)  Seniority points shall be based  only  upon  service
with  the  affected  department and shall be calculated as of
the date of the  written  examination.  The  weight  of  this
component  and  its  computation  shall  be determined by the
appointing  authority  or  through  a  collective  bargaining
agreement.
    (b)  A seniority list shall be posted before the  written
examination  is  given  and  before the preliminary promotion
list is  compiled.  The  seniority  list  shall  include  the
seniority  date,  any  breaks in service, the total number of
eligible years, and the number of seniority points.

    Section 45. Ascertained merit.
    (a)  The  promotion   test   may   include   points   for
ascertained  merit.  Ascertained  merit points may be awarded
for education, training, and certification  in  subjects  and
skills  related  to the fire service.  The basis for granting
ascertained merit points, after the effective  date  of  this
Act,  shall  be published at least one year prior to the date
ascertained merit points are awarded and all persons eligible
to compete for promotion shall be given an equal  opportunity
to obtain ascertained merit points unless otherwise agreed to
in a collective bargaining agreement.
    (b)  Total  points awarded for ascertained merit shall be
posted before the written  examination  is  administered  and
before the promotion list is compiled.

    Section 50. Subjective evaluation.
    (a)  A  promotion  test may include subjective evaluation
components.  Subjective  evaluations  may  include  an   oral
interview,  tactical  evaluation,  performance evaluation, or
other  component  based  on  subjective  evaluation  of   the
examinee.   The  methods  used for subjective evaluations may
include using any  employee  assessment  centers,  evaluation
systems, chief's points, or other methods.
    (b)  Any  subjective component shall be identified to all
candidates prior to its application,  be job-related, and  be
applied  uniformly  to  all candidates.  Every examinee shall
have the right to documentation of his or her  score  on  the
subjective  component  upon  the completion of the subjective
examination component or its application.
    (c)  Where chief's points or other subjective methods are
employed that are not amenable to monitoring, monitors  shall
not  be  required, but any disputes as to the results of such
methods shall be subject to resolution in accordance with any
collectively bargained grievance procedure in effect  at  the
time of the test.
    (d)  Where  performance  evaluations  are used as a basis
for promotions, they shall be given annually and made readily
available to each candidate for review and they shall include
any disagreement or documentation the  employee  provides  to
refute  or  contest the evaluation.  These annual evaluations
are not subject to  grievance  procedures,  unless  used  for
points in the promotion process.
    (e)  Total points awarded for subjective components shall
be  posted before the written examination is administered and
before the promotion list is compiled.

    Section  55.  Veterans'  preference.  A   person   on   a
preliminary  promotion  list  who  is  eligible for veteran's
preference under  any  law  or  agreement  applicable  to  an
affected  department  may file a written application for that
preference within 10 days after the initial  posting  of  the
preliminary  promotion  list.  The veteran's preference shall
be calculated as provided in the applicable law and added  to
the  applicant's  total  score  on  the preliminary promotion
list.  Any  person  who  has  received  a  promotion  from  a
promotion  list on which his or her position was adjusted for
veteran's preference, under this Act or any other law,  shall
not be eligible for any subsequent veteran's preference under
this Act.

    Section 60. Right to review. Any affected person or party
who  believes  that  an  error  has been made with respect to
eligibility  to  take  an  examination,  examination  result,
placement or position  on  a  promotion  list,  or  veteran's
preference shall be entitled to a review of the matter by the
appointing authority or as otherwise provided by law.

    Section 65. Violations.
    (a)  A  person  who  knowingly  divulges or receives test
questions  or  answers  before  a  written  examination,   or
otherwise  knowingly  violates or subverts any requirement of
this Act commits a   violation of this Act and may be subject
to charges for official misconduct.
    (b)  A person  who  is  the  knowing  recipient  of  test
information   in   advance   of   the  examination  shall  be
disqualified from the promotion examination or  demoted  from
the  rank  to  which  he  was  promoted,  as  applicable  and
otherwise subjected to disciplinary actions.

    Section 900.  The State Mandates Act is amended by adding
Section 8.27 as follows:

    (30 ILCS 805/8.27 new)
    Sec.  8.27.  Exempt  mandate.  Notwithstanding Sections 6
and 8 of this Act, no reimbursement by the State is  required
for  the  implementation  of  any  mandate  created  by  this
amendatory Act of the 93rd General Assembly.

    Section  999. Effective date.  This Act takes effect upon
becoming law.

Effective Date: 08/04/03