Mormak v. Unemployment Compensation Bd. of Review

• Decision Date: 20 September 1990
• Citation: 135 Pa.Cmwlth. 232,579 A.2d 1383
• Parties: Karen A. MORMAK, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1383

579 A.2d 1383

135 Pa.Cmwlth. 232

Karen A. MORMAK, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Submitted July 20, 1990.

Decided Sept. 20, 1990.

Steven J. Schiffman, Serratelli and Schiffman, Harrisburg, for petitioner.

Zella M. Smith, Asst. Counsel, with her, Victoria A. Reider, Deputy Chief Counsel, and Linda J. Wells, Chief Counsel, for respondent.

Before PALLADINO and BYER, JJ., and BARBIERI, Senior Judge.

BYER, Judge.

Karen A. Mormak (claimant) appeals from an order of the Unemployment Compensation Board of Review (UCBR) which determined she was ineligible for benefits because she occupied a "major nontenured policymaking or advisory position" with the Commonwealth and, therefore, is not entitled to benefits under the Unemployment Compensation Law, Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-914. We affirm.

Claimant originally was employed by the Pennsylvania Insurance Department as executive director of the Catastrophic Loss Trust Fund (CAT Fund). As executive director, she was neither a civil servant nor was she eligible for unemployment compensation, because her position was classified a "major nontenured policymaking or advisory position." ¹ Claimant was responsible for providing program direction and administrative support to the CAT Fund Board (board). She formulated, recommended and participated in the adoption of rules, regulations and policies necessary to carry out the purpose of the CAT Fund. Claimant's duties also included assisting the board chairperson in providing administrative support to the board, setting the agenda for board meetings and attending those meetings. She communicated board orders, resolutions and directives to the Insurance Commissioner.

In addition, claimant supervised the fund's claim unit. She reviewed claims and approved or disapproved payments as well as coordinated all activities of the claims administrator, an independent entity responsible for performing all claims adjustments for the CAT Fund.

Claimant held this position from November 25, 1985 until December 12, 1988 when the General Assembly abolished the CAT Fund. ² Claimant then supervised the Catastrophic Loss Claim Fund Unit (claim unit), and her pay and responsibilities remained substantially the same as in her prior position. The only changes resulting from the termination of the CAT Fund were the requirements that claimant report to the Director of Administration instead of to the Insurance Commissioner and that claimant no longer attend senior staff meetings.

On October 6, 1989 claimant was furloughed. She filed an application for unemployment compensation benefits, contending that because her position had changed as a result of the abolition of the CAT Fund, she was no longer in a "major nontenured policymaking or advisory position." The referee denied claimant unemployment compensation benefits, and the UCBR affirmed.

The act specifically provides that certain Commonwealth employees are not eligible for unemployment compensation benefits. Section 1002 of the act, 43 P.S. § 892, provides as follows:

Except for services performed in the employ of a hospital or institution of higher education not otherwise excluded in this act, for purposes of this article the term "employment" shall not include services performed by:

* * * * * *

(11) Individuals serving in positions which, under or pursuant to the laws of this Commonwealth, are designated as (i) a major nontenured policymaking or advisory position; .... (Emphasis added.)

In order to be ineligible for unemployment compensation, there must be some official designation of the position as policymaking or advisory by statute, regulation, executive order or the like. Gahres v. Unemployment Compensation Board of Review, 61 Pa.Commonwealth Ct. 114, 433 A.2d 152 (1981). "[A]ctual activities performed, or not performed, by the claimant, are not controlling in determining the application of the exclusion, but may be examined only to verify the validity of the designation, if any." Department of Labor and Industry v. Unemployment Compensation Board of Review, 61 Pa.Commonwealth Ct. 107, 108, 433 A.2d 156, 157 (1987).

The purpose of the official designation requirement is so 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 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 job-holder upon assuming the position, of what can be expected.

Gahres, 61 Pa.Commonwealth Ct. at 116, 433 A.2d at 154.

Claimant's position as executive director of the CAT fund was officially designated a "major nontenured policymaking or advisory position" pursuant to Management Directive 530.22, May 14, 1980. The directive, issued by the Governor's Secretary of Budget and Administration, states that the position of executive director, among others, is an example of a "major nontenured policymaking or advisory position." This directive satisfies the requirement that the designation be official. Ging v. Unemployment Compensation Board of Review, 84 Pa.Commonwealth Ct. 244, 479 A.2d 37 (1984); Bowe v. Unemployment Compensation Board of Review, 83 Pa.Commonwealth Ct. 221, 477 A.2d 587 (1984). Thus, an executive director is excluded from those positions eligible for unemployment compensation.

The issue for us to determine is whether the UCBR erred in finding claimant retained the designation as executive director after the abolition of the CAT Fund. Based upon the record, the UCBR found that claimant retained the position as executive director...