Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Robert P. Ging, Jr., No. B-213875.
Michael F. Fives, for petitioner.
Charles G. Hasson, Acting Deputy Chief Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Francine Ostrovsky, Assistant Chief Counsel, with her, Herbert W. Hoffman, Deputy Chief Counsel, and Richard L. Cole, Jr., Chief Counsel, for Amicus Curiae, Department of Labor and Industry.
Judges Williams, Jr., Craig and Colins, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Colins.
[ 84 Pa. Commw. Page 246]
Claimant Robert P. Ging, Jr. appeals from a decision and order of the Unemployment Compensation Board of Review, which based its denial of his compensation claim upon section 1002(11) of the Unemployment Compensation Law,*fn1 excluding from compensable employment the jobs of "[i]ndividuals serving in positions which, under or pursuant to the laws of this Commonwealth, are designated as . . . a major non-tenured policymaking or advisory position. . . ."
The claimant had been employed with the Commonwealth of Pennsylvania, Department of Environmental Resources, as an Assistant Attorney General, assigned to the Litigation Department in the Western Region of Pennsylvania. His primary responsibility with the Bureau of Litigation was to insure compliance with the laws of the Commonwealth, specifically to enforce environmental laws in the field of surface mining, coordinate litigation and actually litigate claims of the bureau.
This court has previously considered section 1002(11) and stated that:
[ 84 Pa. Commw. Page 247]
We note particularly that the terms of Section 1002(11) do not apply the exclusion to positions which are policymaking or advisory positions merely as a matter of fact. The law applies the exclusion to those which are so "designated" and describes the designation as being "under or pursuant to the laws of this Commonwealth" Page 247} . . . that is, by the words of a statute, regulation, executive order or the like. (Emphasis added.)
Gahres v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 114, 116, 433 A.2d 152, 153 (1981).
The board and the Department of Labor and Industry, in its brief amicus curiae, argue that a Management Directive, No. 530.22, issued by Robert C. Wilburn, Secretary of Budget and Administration, at the direction of Governor Dick Thornburgh, providing that major non-tenured policymaking or advisory positions (as set forth in section 1002(11)) include[s] "Chief Counsels and All Attorneys," is a designation which satisfies the official designation requirement of section 1002(11) because it was issued pursuant to 4 Pa. Code § 1.1 et seq., entitled "Directives Management System." Recently, in Bowe v. Unemployment Compensation Board of Review, 83 Pa. Commonwealth Ct. 221, A.2d (1984), we agreed with the board because that Directive, supported by the authorization in 4 Pa. Code § 1.2, was therefore issued under or pursuant to law and hence is a "statute, regulation, executive order or the like," citing Pennsylvania Department of Labor and Industry v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 107, 108, 433 A.2d 156, 157 (1981), as well as Gahres.
However, unlike the situation of the bureau director in Bowe -- whose initial appointment, on August 18, 1980, followed several months after the May 14, 1980 issuance of Management Directive No. 530.22 -- this case presents the further question of whether that Management Directive should be given effect with respect to this ...