Public Employees: Are Township Zoning Officers Management by Statute?

Exeter Twp. v. PLRB, 177 A.3d 428 (Pa. Cmwlth. 2018), allocatur granted Sept. 5, 2018, appeal dockets 49 and 50 MAP 2018

The zoning officer position in Exeter Township, Berks County, has been part of the bargaining unit for collective bargaining under the Public Employee Relations Act (PERA) since 1994 when the unit was certified. In March 2016, while the zoning officer position was vacant, the Township requested the Pennsylvania Labor Relations Board to exclude the zoning officer position from the collective bargaining unit, arguing that the position of zoning officer is by statute a management level employee.  The Board denied the request.  The Township appealed to the Commonwealth Court, and a Commonwealth Court panel reversed in a split decision, holding that Section 614 of the Municipalities Planning Code (MPC) describes a zoning officer’s duties in a manner that makes it clear that the duties are managerial.

The Commonwealth Court majority acknowledged the general rule that to exclude a public employee from a bargaining unit as a “management level employee,” evidence of actual management level job duties must be offered, but that the general rule does not apply where, as here, a statute describes a particular position’s duties in terms that make it clear the position is management level:

Here, the General Assembly vested the power to “administer the zoning ordinance” to the zoning officers. Section 614 of the MPC, 53 P.S. §10614. By prescribing this management-level duty, the General Assembly has, in essence, designated the job classification of zoning officer as a managerial position…  Although a mere description of job duties, without testimony regarding actual duties performed, is generally insufficient to establish duties for purposes of PERA, … such is not the case here because the zoning officer’s job duties are mandated by law…. Just as the Board and this Court are powerless to alter this statutory mandate, so too are the Township and the Union.… This statutory mandate obviates the need to examine the Zoning Officer’s actual duties…. For these reasons, we conclude that the job classification of Zoning Officer does not belong in the bargaining unit as a matter of statutory law. To conclude otherwise would contravene this clear legislative directive.

Slip Op. at 9 (citations omitted).

In dissent, Judge Pellegrini agreed with the majority’s recitation of the basic principles, but dissented “because the description of the job duties contained in Section 614 of the MPC does not make the position automatically a management level employee.”  Slip Op. at DRP-2.  As he reasoned:

Because Section 614 of the MPC does not specifically exclude a Zoning Officer from the bargaining unit, the question then is whether that section describes the Zoning Officer’s position as someone who meaningfully participates in the development of the employer’s policy or ensures fulfillment of that policy by concrete measures necessary to be a management level employee. An examination of that provision shows that it does not. Section 614 of the MPC provides that a Zoning Officer:

[S]hall administer the zoning ordinance in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance. Zoning officers may be authorized to institute civil enforcement proceedings as a means of enforcement when acting within the scope of their employment.

 53 P.S. § 10614.

Slip Op. at DRP 3-4.

“As can be seen,” the dissent continued, “all that the provision expresses is what a zoning officer cannot do and what he or she may be authorized to do. It does not give the zoning officer any independent discretion to determine policy. All that Section 614 provides is that he or she shall administer the terms of a zoning ordinance in compliance “with its literal terms,” and shall not have the power to vary the terms of the zoning ordinance. 53 P.S. § 10614. Slip Op. at DRP-4. “Because Section 614 of the MPC does not set forth in any detail the actual job duties of a zoning officer,” Judge Pellegrini continued, “the general rule that there be evidence of actual job duties is necessary for the Board to determine whether the position is a ‘management level’ under PERA and must be followed.”

The Supreme Court has granted allocatur to address this issue, which it has stated as:

Does Section 614 of the Municipalities Planning Code, 53 P.S. § 10614, provide sufficient basis to determine that a zoning officer is a management level employee absent evidence regarding actual job duties?

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.