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HomeMy WebLinkAbout26-508 Larson PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 6, 2026 To the Requester: Cole Larson 26-508 Dear Mr. Larson: This responds to your email received February 4, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon you with regard to performing work for a transportation consulting firm following termination of your probationary employment as a Transportation Planning Specialist Trainee with the Pennsylvania Department of Transportation (“PennDOT”). Brief Answer: NO. Upon review of the submitted facts, as a former Transportation Planning Specialist Trainee for PennDOT, you were not a “public employee” subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. Consequently, thepost-employment restrictions of Section 1103(g) of the Ethics Act are not applicable to you. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You were employed as a Transportation Planning Specialist Trainee, for PennDOT’s Bureau of Rail, Freight, Ports, and Waterways until December 2025. You stated that you did not have a decision-making role in your probationary position with PennDOT. You have accepted a position as a Project Analyst with Transportation Resource Associates (“TRA”), a transportation consulting firm, where your work may involve interaction with PennDOT's State Safety Oversight program. The start date for your employment with TRA is February 9, 2026. Larson, 26-508 February 6, 2026 Page 2 You have submitted a copy of a job description pertaining to the duties you performed as a Transportation Planning Specialist Trainee, which document is incorporated herein by reference. The job description lists your job duties as follows: Supports the Ports Program Manager in the administration of grants and management of publicly funded port projects; Assists in the delivery of port and private terminal projects funded through Multimodal Transportation Program; Provides transportation data and analysis regarding port, rail, and intermodal freight, including impact to economic development and transportation-related technology; Performs data analysis and reporting for federal and state-funded rail and port projects; and Conducts research and analysis in the preparation of papers, speeches, fact sheets, and other documents for presentations given by the Ports Manager or bureau director. Job Description, at 1. A copy of the job classification specifications for the position of Transportation Planning Specialist Trainee (job code 11600) has been obtained and is incorporated herein by reference. Per the job classification specifications under job code 11600, a Transportation Planning Specialist Trainee works in a structured and specialized training program in professional transportation planning and programming in PennDOTinvolving highway, mass transit, aviation, rail freight, port, or waterway systems. Examples of the work performed by a Transportation Planning Specialist Trainee include: Participates in formal and on-the-job training designed to introduce and develop familiarity with transportation planning and programming; Participates in the development and monitoring of a schedule for project implementation consistent with state funding capabilities; Participates in the development of capital budget information; Prepares written and oral reports for agency and local decision makers on individual projects, programs, and related issues; Compiles, analyzes, and projects land use, travel, mass transit, aviation, rail freight, and other data; Reviews and analyzes financing mechanisms and federal and state legislation; In an engineering district environment, performs beginning level assignments in the development of local planning programs such as rails to trails, greenway, safe routes to school, and safety and mobility; In aviation or rail freight environments, assists in the development of statewide transportation improvement programs for the respective transportation mode; In aviation or rail freight environments, participates in the development or revision of a variety of transportation programs and related areas, such as planning, intermodal development, environmental compliance, and land use; and Participates in strategic planning studies related to varied aspects of the organization or to specific transportation or aviation issues. Larson, 26-508 February 6, 2026 Page 3 Job Classification Specifications, Job Code 11600, at 1-2. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing work for TRA following the termination of your employment with PennDOT in December 2025. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. The post-employment restrictions of Section 1103(g) of the Ethics Act apply only to former public officials/public employees: § 1103. Restricted activities (g) Former official or employee.--No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g). The Ethics Act defines the term “public employee” as follows: § 1102. Definitions “Public employee.”Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. Larson, 26-508 February 6, 2026 Page 4 The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term “public employee” and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of “public employe”: (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E)The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F)The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual’s recommendations or actions are an inherent and recurring part of his position. (I) The individual’s recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. Larson, 26-508 February 6, 2026 Page 5 (B)Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary-treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions “Ministerial action.” An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person’s own judgment as to the desirability of the action being taken. Larson, 26-508 February 6, 2026 Page 6 “Nonministerial actions.”An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. Status as a “public employee” subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics Act’s definition of the term “public employee” and the related regulatory criteria to the powers and duties of the position itself. Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04-002; Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has specifically considered and approved this Commission’s objective test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips, supra. The first portion of the statutory definition of “public employee” includes individuals with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Pa. Code § 11.1 (“public employee”)(ii), include not only individuals with authority to make final decisions but also individuals with authority to forward or stop recommendations from being sent to final decision-makers; individuals who prepare or supervise the preparation of final recommendations; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.g.,Reese/Gilliland, Opinion 05-005. Conclusion: In applying the definition of "public employee" and the related regulatory criteria to the duties of your formerposition, the necessary conclusion is that in your capacity as a Transportation Planning Specialist Trainee with PennDOT under job code 11600, you were not a "public employee" as that term is defined in the Ethics Act. Based upon an objective review, it is noted that neither the submitted job description nor the job classification specifications under job code 11600 for the position of Transportation Planning Specialist Trainee clearly reflect that there was any ability to take or recommend official action of a nonministerial nature in the performance of any of the listed job duties. Because the duties and responsibilities of your formerposition do notbring you within the definition of “public employee” as set forth in the Ethics Act, Section 1103(g) of the Ethics Act would notbe applicable to you during the first year following termination of your service as a Transportation Planning Specialist Trainee with the Commonwealth. Accordingly, Section 1103(g) of the Ethics Act would not restrict you with regard to your employment with TRA beginning February 9, 2026. Larson,26-508 February 6, 2026 Page 7 The only provision of the Ethics Act that applies to you is Section 1103(b), which applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve aninterpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually receivedat the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, Bridget K. Guilfoyle, Chief Counsel