          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert E. Ihlein,                        :
                    Petitioner           :
                                         :
             v.                          :
                                         :
Unemployment Compensation                :
Board of Review,                         :   No. 1402 C.D. 2017
                 Respondent              :   Submitted: April 12, 2018


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                      FILED: May 8, 2018



             Robert E. Ihlein (Claimant) petitions for review of the decision and
order of the Unemployment Compensation Board of Review (Board), which
affirmed the determination of the Referee, concluding that Claimant as Manager of
the Borough of Lemoyne (Manager) held a major nontenured policymaking or
advisory position rendering him ineligible for benefits. After review, we affirm.
             Claimant was employed, full time, as the Manager for the Borough of
Lemoyne (Employer) from April 1, 2009 through January 9, 2017. Certified Record
(C.R.) Item No. 9; Transcript of Testimony, 7/5/17 (T.T.) at 4. The Borough of
Lemoyne Code of Ordinances creates the Manager position.             BOROUGH OF
LEMOYNE, PA., CODE OF ORDINANCES, §§ 1-201-1-207 (1991) (Ordinance).
              Specifically, the Ordinance provides that the Manager shall be
appointed by a majority of all Council members to serve an indefinite term “at the
pleasure of the Council.” Id. at § 1-202. The Council must select a Manager “solely”
on the basis of his or her executive and administrative abilities giving special
consideration to the duties of the office. Id. at § 1-203. The Manager’s salary is
fixed from time to time by the Council. Id. at § 1-205. The Council may remove
the Manager at any time by a majority vote of all members. Id. at § 1-202. Prior to
removing the Manager, the Council shall provide, at least 30 days in advance, a
written statement to the Manager setting forth its intention to remove him or her
from the position. Id.
              The Manager acts as the “chief administrative officer” of the Borough
and is responsible to the Council to properly and efficiently manage all Borough
affairs. Id. at § 1-206. As chief administrative officer, the Manager must supervise
and be responsible for the activities of all municipal departments, except the police
department and other departments excluded by Council action, and must “[s]ubmit
all recommendations and applications for employment to the Council for its decision
to fill vacancies or to add new employees.” Id. at § 1-206A-B.
              The Manager must attend all Council and committee meetings and has
the right to take part in meeting discussions, id. at § 1-206F, prepare the agenda for
each Council meeting (with the approval of the Council president), id. at § 1-206I,
and notify all members of all Borough boards, commissions, committees and
authorities of all regular and special meetings. Id. at § 1-206G. He or she must
keep the Council informed as to the conduct of Borough affairs,1 submit periodic
       1
        To do this, the Manager must have an active role in the conduct of Borough affairs. The
Manager must hold such municipal offices or head any municipal departments as directed by the
Council. Ordinance at 1-206E. With the Council’s approval, the Manager may employ experts

                                              2
reports on the condition of the Borough finances,2 and provide such other reports as
requested by Council. Id. at § 1-206H.
               The Manager must “make such recommendations to the Council” as he
or she deems necessary, id. at § 1-206H, and must “[c]ooperate with the Council at
all times and in all matters so that the best interest of the Borough and of the general
public may be maintained.” Id. at § 1-207T.
               In the present matter, after Claimant’s employment as Manager of the
Borough ended,3 Claimant filed a claim for unemployment compensation benefits.
C.R. Item No. 2, Internet Initial Claims form. The Duquesne Unemployment
Compensation Service Center (Center) determined Claimant to be financially
ineligible for benefits.4 C.R. Item No. 5, Notice of Financial Determination, 5/9/17.


and consultants to perform work and render advice in connection with the Borough. Id. at § 1-
206K. The Manager is to receive all complaints regarding the services or personnel of the Borough
and must either investigate or designate an officer to investigate and dispose of such complaints
and report the resolution to the Council. Id. at § 1-206S.
       2
          The Manager must prepare and submit to the Council a budget for the next calendar year.
Ordinance at § 1-206C. The Manager must submit the proposed budget to the Council in sufficient
time that the Council may “consider and adopt the budget and related tax ordinances” required by
law. Id. Once the Council adopts the budget, the Manager is responsible for its administration,
id. at § 1-206D, and, as noted above, must submit reports to the Council.
       3
         The Referee made no findings as to why Claimant’s employment ended. Claimant asserts
that he had a lack of work and was laid off. C.R. Item No. 2, Internet Initial Claims form at 2,
Question 6. The Employer asserts that Claimant quit for personal reasons. C.R. Item No. 3,
Record of Oral Interview. Given the issue before this Court, and our ultimate disposition, it is not
relevant why Claimant’s employment ceased.
       4
          The Notice of Financial Determination provided, “[y]our financial eligibility is based on
the wages you were paid and the credit weeks you earned during your base year (the first four of
the last five completed calendar quarters immediately prior to filing your claim) which is from
OCT 01, 2015 to SEP 30, 2016.” C.R. Item No. 5, Notice of Financial Determination, 5/9/17
(emphasis in original). Though not expressly referenced in the Notice, the Center relied on Section
401(a)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess.,
P.L. (1937) 2897, as amended, which provides, in pertinent part, that “[c]ompensation shall be

                                                 3
Claimant appealed the Center’s determination. The Referee held a hearing on the
matter, at which an agency representative for the Department of Labor and Industry
and Claimant testified.5
                The agency representative testified that after reviewing Claimant’s
claim for benefits, the Center initiated an investigation into whether Claimant, as
Manager, was eligible for benefits, specifically focusing on whether Claimant had
been paid wages for employment as defined by the Unemployment Compensation
Law (Law). See C.R. Item No. 9, T.T. at 4-5. The representative testified that she
reviewed the filings by Claimant and Employer, which were inconsistent as to the
nature of the position.6 Id. at 5. Due to the inconsistencies, the representative
reviewed the Ordinance to obtain information regarding the position. Id. at 5-6.
Based on her review of the Ordinance, the representative concluded that the Manager
position is a major nontenured policymaking or advisory position, which is not
employment eligible for benefits under the Law. Id.
                Claimant testified that, as Manager, his job was to run the day-to-day
business of the Borough and, on occasion, advise the Council on policy. Id. at 7.
Claimant explained that once the Council, as the governing body, sets the policy


payable to any employe who is or becomes unemployed, and who . . . [h]as, within his base year,
been paid wages for employment as required by section 404(c) of this act.” 43 P.S. § 801(a)(1)
(emphasis added). At no point in time did Claimant assert that he did not have notice or understand
why the Center denied his claim.
       5
           Employer did not appear at the hearing. C.R. Item No. 9, T.T. at 1.
       6
         Claimant asserted in the Supplemental Information provided on the Internet Initial Claims
form that the Manager position was appointed, that he managed the daily business activities of the
Borough and that “the office of the Borough Manager does advise Borough Council on policy
issues, and once approved, carries them out.” C.R. Item No. 2, Internet Initial Claims form at 4.
Employer provided that Claimant’s position was not a major policymaking or advisory position
on its questionnaire. C.R. Item No. 3, State and Local Government Employees Questionnaire
Employer Questionnaire at 1.
                                                 4
direction, the Manager implements the policy. Id. Although the Ordinance provides
that the position is appointed, Claimant asserted that the Council posted the job,
interviewed individuals and decided whom to hire. Id.
              After the hearing, the Referee affirmed the Center’s determination that
Claimant is financially ineligible for benefits concluding that the Ordinance “clearly
indicates that this is a non-tenured, appointed position. The duties and functions
support the designation of a major policymaking or advisory position. Under these
circumstances, the claimant’s base-year wages are not covered for establishing
financial eligibility. . . .” Referee Decision/Order, 5/22/2017, at 2. Claimant
appealed the Referee’s decision and order to the Board, which affirmed.                       In
affirming, the Board reasoned:

              Besides indicating that the borough manager was the chief
              administrative officer for the borough, the . . . Ordinance
              stated that one of the claimant’s functions as borough
              manager was to ‘make such recommendations to the
              Council as he deems necessary.’ This is an advisory role.
              Also, the claimant was placed on notice by Employer
              Ordinance that he served ‘at the pleasure of the Council’
              and he could be ‘removed at any time by a majority vote
              of its members.’ Thus, the claimant could anticipate the
              possibility of job termination upon a change of
              administration, so that unemployment in such
              circumstances cannot be regarded as sudden and
              unexpected. Accordingly, the Board concludes that the
              borough manager’s position was designated as a major
              non-tenured policymaking or advisory position.

Board Order, 9/7/17. Claimant petitions this Court for review.7

       7
         This Court’s review is limited to determining whether the findings of fact are supported
by the evidence, whether an error of law has been committed or whether constitutional rights have
been violated. Sheets v. Unemployment Comp. Bd. of Review, 708 A.2d 884, 885 n.3 (Pa. Cmwlth.
1998).

                                               5
             On appeal, Claimant asserts that the Board erred by concluding that he
held a nontenured appointed position as Manager. Claimant contends in his Brief
that the position did not meet the requirements to be deemed nontenured because the
Ordinance did not expressly designate it as a major nontenured policymaking or
advisory position. Further, Claimant’s position did not require him to perform
policymaking duties, as this was the responsibility of the Council, and although he
was allowed to make recommendations to the Council, he made no advisory
recommendations in practice.
             Section 401(a)(1) of the Law provides, in part, that “[c]ompensation
shall be payable to any employe who is or becomes unemployed, and who . . . [h]as,
within his base year, been paid wages for employment as required by section 404(c)
of this act.” 43 P.S. § 801(a)(1). Section 404(c) provides that a claimant’s weekly
benefit rate is based on qualifying wages paid for employment during the base year.
43 P.S. § 804(c). Thus, to be eligible for benefits, the employee must be engaged in
employment that pays qualifying wages as defined by the Law.
             The Law expressly excludes certain positions from the definition of
employment. Most pertinent here is Section 1201 of the Law, 43 P.S. § 911,
regarding political subdivision employees.       Specifically, Section 1201(b)(9)
provides that the following political subdivision employees are not engaged in
employment: “[i]ndividuals serving in positions which, under or pursuant to the laws
of this Commonwealth, are designated as (i) a major nontenured policymaking or
advisory position, or (ii) a policymaking position the performance of the duties of
which ordinarily does not require more than eight hours per week.” 43 P.S. §
911(b)(9).




                                         6
               To ascertain whether a position is designated as “major nontenured
policymaking or advisory,” this Court has held that the designation must be made
“by the words of a statute, regulation, executive order or the like.” Conroy v.
Unemployment Comp. Bd. of Review, 693 A.2d 254, 256 (Pa. Cmwlth. 1997). The
designation does not have to include the precise words “major” or “policymaking”
or “advisory,” although it could be done that way.                  Id.8   When rendering a
determination as to whether the position is designated as “major nontenured
policymaking or advisory,” the underlying purpose of the Law must be considered:

               The logic of [the Law] . . . is plain. The exclusion imposes
               ineligibility on the basis that any occupant of such a
               position can anticipate the possibility of job termination
               upon a change of administration, so that unemployment in
               such circumstances cannot be regarded as sudden and
               unexpected. The required official designation hence
               provides a basis for that expectation; when the nature of
               the position is designated by law, there is thus an official
               signpost which informs the jobholder, upon assuming the
               position, of what can be expected.

Id. Although it is not essential that the designation be made before an employee
assumes his or her post, it is essential that the designation be more than a functional
description of job duties, “even where that description is, in some attenuated way,
made pursuant to the laws of this Commonwealth.” Id. at 256-57. The designation
must, at a minimum, “be a written statement of policy which has the clear and
intended effect of establishing the job tenure and employment status attached to the




       8
          This Court has also explained that “[i]t is enough that a statute, regulation, executive
order, or the like communicate the concept that the position is policymaking or advisory.” City of
Philadelphia v. Unemployment Comp. Bd. of Review, 643 A.2d 1158, 1159 (Pa. Cmwlth. 1994).
                                                7
position. Moreover, the statement must be made by an official or entity with
authority to set such terms.” Id. at 257.
             In City of Philadelphia v. Unemployment Comp. Bd. of Review, 643
A.2d 1158 (Pa. Cmwlth. 1994), this Court held that the Board erred when it deemed
the claimant, who held the position of city water commissioner, eligible for benefits
because the city charter provided the required designation. Id. at 1160. The Court
examined the relevant provisions of the Philadelphia Home Rule Charter, which
created the city water department that the claimant headed. Id. at 1159.
             The charter provided that the water commissioner served at “the
pleasure of the appointing power and until a successor is qualified.” Id. The charter
further explained the water commissioner’s job functions to include, in pertinent
part, making recommendations to the “[m]ayor for transmission to the [c]ouncil.”
Id. at 1159-60. As a department head, the water commissioner had the power to
prescribe rules for the department’s internal government and to make such
reasonable regulations as necessary and appropriate in the exercise of his powers
and performance of duties. Id. at 1160. Based on a review of these provisions, this
Court concluded that the provisions reached the “level of an official designation of
the position as a major policymaking or advisory one.” Id.
             In contrast, this Court held in Conroy that the Board erred when it
concluded that the Borough of Forest Hills’s police chief was ineligible for benefits
because the position designation did not provide the required notice. Conroy, 693
A.2d at 257. In Conroy, the claimant drafted the “Manual of Policy and Procedures
for the Borough Police Department.” Id. at 255. The manual set forth the duties and
responsibilities of all members of the police department and was adopted by the
Borough Council. Id.


                                            8
               The manual provided the police chief a policymaking role, including
the power to “prescribe, promulgate, and enforce policies and regulations for the
government of the Police Department.” Id. Further, the claimant had the power to
“formulate all policy relating to the Police Department” and had to have all policy
statements published in the manual. Id. Nevertheless, this Court explained that the
description, drafted by the claimant himself, merely listed the police chief’s
functions. Id. at 257. The description was not “intended to relate to the Chief’s job
security, nor could it reasonably be read to provide the requisite ‘signpost’” to inform
the claimant that he could face job termination upon a change of administration. Id.
               Here, Claimant’s position was created through an Ordinance prior to
Claimant assuming the position, much like the charter established the claimant’s
position in City of Philadelphia.9 The Ordinance provides that the Manager is the
chief administrative officer responsible for the day-to-day operations of the Borough
and is responsible to the Council in the furtherance of his or her duties. Ordinance
at § 1-206.
               The Manager holds a major “advisory position” as provided in Section
1201(b)(9) of the Law because the Ordinance requires him to advise the Council,
which is the governing body of the Borough, to enable it to render decisions on
Borough affairs. The plain language of Section 1201(b)(9) provides that it is the

       9
          The parties do not contest that the Ordinance was enacted “under or pursuant to the laws
of this Commonwealth.” 43 P.S. § 911(b)(9). The Borough Code provides that the “Council shall
enact ordinances in accordance with this part and the laws of this Commonwealth in which the
powers of the borough shall be exercised as deemed beneficial to the borough and to provide for
the enforcement of the powers of the borough.” 8 Pa. C.S. § 3301.1(a). Further, the Borough
Code provides that, “Every legislative act of council must be by ordinance.” 8 Pa. C.S. §
3301.1(b). The General Assembly consolidated the Borough Code on April 18, 2014, and when
it did so, it derived the language of the statute from prior law. Thus, the Ordinance here was
enacted pursuant to state law, i.e., the Borough Code.



                                                9
designation of the position in the statute, regulation or, as here, the ordinance, that
controls, not the conduct of the employee while holding the position. See 1 Pa. C.S.
§ 1921(b) (“[w]hen the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing its spirit.”); see also
Zerbe v. Unemployment Comp. Bd. of Review, 681 A.2d 740 (Pa. 1996).10 As noted
above, Section 1201(b)(9) provides that “[i]ndividuals serving in positions which . .
. are designated as . . . major nontenured policymaking or advisory” are not engaged
in employment. 43 P.S. § 911(b)(9) (emphasis added).
              The Ordinance provides that the Manager submits recommendations
for employment to the Council, attends all meetings of the Council and its
committees, with the right to take part in the discussion, and makes
recommendations to the Council as he or she deems necessary regarding the conduct
of Borough affairs. Ordinance at § 1-206B, 1-206F & 1-206H. The obvious purpose
of the Manager’s attendance at Council meetings is to enable him or her to provide
input and render advice to the Council, as needed, regarding decisions that it must
make regarding Borough affairs. As noted in Conroy, the language of the Ordinance
does not have to include the precise word “advisory” to be deemed a sufficient

       10
           In Zerbe, the Supreme Court examined the language of Section 1002(11) of the Law, 43
P.S. § 892(11), which excludes from employment individuals in positions with the Commonwealth
designated as “major nontenured policymaking or advisory.” Zerbe, 681 A.2d at 743. The
Supreme Court, upon review of the plain language of Section 1002(11), noted that nothing in the
language requires a factual determination as to whether the claimant “actually performed major
policymaking or advisory functions.” Id. Rather, the exclusion is “expressly dependent upon a
claimant’s position being designated” as a major nontenured policymaking or advisory position.
Id.
             Here, the language of Section 1201(b)(9) of the Law, pertaining to employees of
political subdivisions, is the same as the language considered by the Supreme Court in Section
1002(11). Applying the reasoning set forth by the Supreme Court in Zerbe, this Court must look
to the language of the Manager position, not Claimant’s testimony or assertions of what he did in
practice while holding the position, to ascertain whether the position is designated as a major
nontenured policymaking or advisory position.
                                               10
designation. The Ordinance communicated the concept that the Manager has an
advisory role to the Council. See City of Philadelphia, 643 A.2d at 1159.
            In addition, the Ordinance established the job tenure status attached to
the position, unlike the claimant’s position in Conroy. The Ordinance provides that
the Manager is appointed by the Council for an “indefinite term” to “serve at the
pleasure of the Council.” Ordinance at § 1-202. The Manager can be removed at
any time by a majority vote of the Council members. Id. Because the Ordinance
expressly provides that the Manager can be removed at any time by the Council,
Claimant could anticipate the possibility of a job termination upon a change in the
members of the Council. In short, Claimant had the requisite “signpost” of what to
expect when he assumed the position of Manager.
            Accordingly, we affirm.




                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                        11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert E. Ihlein,                      :
                    Petitioner         :
                                       :
             v.                        :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 1402 C.D. 2017
                 Respondent            :

                                  ORDER


             AND NOW, this 8th day of May, 2018, the order of the Unemployment
Compensation Board of Review dated September 7, 2017 is AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
