A split Commonwealth Court panel held that municipal code and zoning enforcement officers are considered management-level employees and are therefore excluded from collective bargaining activities.

The court ruled 2-1 to overturn a decision from the Pennsylvania Labor Relations Board denying Exeter Township’s request for for clarification under the Pennsylvania Employee Relations Act as to whether code and zoning officials are to be excluded from collective bargaining. Judges Michael H. Wojcik and P. Kevin Brobson voted to overturn, while Judge Dan Pellegrini issued a dissent to the decision.

A PLRB hearing examiner held that the township did not meet its burden in proving that its zoning officer was management-level because it did not provide evidence as to the officer’s job duties. Exeter Township, located in Berks County, argued that it was not required to provide such evidence because under the Municipalities Planning Code, code and zoning officers are required to implement policy, thus making them managers, according to Wojcik’s majority opinion.

The board in a final order from February 2017 dismissed the township’s exceptions. Exeter brought the matter to the Commonwealth Court.

Wojcik pointed to a similar Commonwealth Court decision in the 1999 case, PSSU, Local 668, AFL-CIO v. Pennsylvania Labor Relations Board.

“The analysis in PSSU is equally applicable here,” Wojcik said. “Although the General Assembly did not designate zoning officers as ‘management-level employees,’ it assigned them management-level duties under the MPC.”

He cited Section 614 of the MPC, which reads:

“For the administration of a zoning ordinance, a zoning officer, who shall not hold any elective office in the municipality, shall be appointed. … The zoning officer shall 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.”

In his dissent, Pellegrini took issue with the majority’s ruling that Exeter did not need to provide a job description. Additionally, he disagreed that policy-implementation makes a code official a manager by default.

“Because Section 614 of the MPC does not set forth in any detail the actual job duties of a zoning officer, 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,” Pellegrini said.

Robert Nagle of Fox Rothschild, who represents Exeter, said Tuesday, “The court addressed and embraced our first argument that the board’s decision was legally erroneous.”

He added, “In this case, the board’s decision seemed to disregard the inherently managerial nature of the zoning officer position and the record evidence.”

Peter Lassi of the Pennsylvania Labor Relations Board did not return a call seeking comment.