Ging v. Commonwealth, Unemployment Compensation Board of Review

*252Dissenting Opinion by

Judge Colins:

I must respectfully dissent.

Section 1002(11) excludes from compensable employment the jobs of individuals serving in positions which, under or pursuant to the laws of this Commonwealth are designated pursuant to a statute, regulation, executive order, or the like as a major nontenured policymaking or advisory position. Gahres v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 114, 433 A.2d 152 (1981).

Although I agree that Management Directive 530.22 was issued pursuant to the “Directives Management System”, 4 Pa. Code §1.1, et seq., I do not agree' that, as such, it falls within the above definition which we have previously adopted.

The Directive in question does not qualify as a regulation, since it has not been properly published in the Pennsylvania Code. Section 702(3) of the Commonwealth Documents Law, 45 Pa. C. S. §702(3), provides that “[a] 11 statements of policy which are general and permanent in nature ’ ’ shall be codified in the Pennsylvania Code. Management Directive 530.22 is “general and permanent in nature”, as it applies to all employees of the Commonwealth, both present and future.1

The Directive in question is also not a designation pursuant to a statute, executive order, or the like.

In addition, the claimant did not occupy a major advisory position. Although the claimant was sole counsel in some litigation cases, he received his assignments from a Litigation Chief and his work was *253reviewed by a Litigations Coordinator, a Chief Counsel, a Secretary, and the Justice Department. The claimant could not initiate litigation on his own volition, nor could he terminate any litigation without the approval of his supervisors.

Accordingly, for the aforementioned reasons, I must dissent.

Section, 1204 of the Commonwealth Documents Act, 45 Pa. C. S. §1204, which states that “except as otherwise provided by regulations promulgated by the joint, committee, an agency may omit and modify the procedures specified . . is also inapplicable. Section 1204 relates to regulations, like Management Directive 530.22, which affect all Commonwealth employees.