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HomeMy WebLinkAbout26-534 Zaloga 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 May 28, 2026 To the Requester: Anthony F. Zaloga 26-534 Dear Mr.Zaloga: This responds to your letter received May 15, 2026, by which you requested anadvisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general 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 new employer following termination of your employment as aTransportation Construction Manager 3 with the Pennsylvania Department of Transportation (“PennDOT”). Brief Answer: YES. During the first year following termination ofyour employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve “representing” a “person” — including but not limited to a new employer — before your “former governmental body,” PennDOT. Facts: Yourequest an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a Transportation Construction Manager 3 with PennDOT in Engineering District 5-0. You have submitted a copy of a position description for the position of Transportation Construction Manager 3, which document is incorporated herein by reference. Zaloga,26-534 May 28, 2026 Page 2 In your role with PennDOT you have worked in Monroe County forthe last sixteen years, and you have also had project oversight in Carbon and Schuylkill Counties during the last three years. Your responsibilities include: (1) serving as the Construction Manager and planning and coordinating roadway and bridge construction activities; (2) directing the inspection of materials and workmanship to ensure compliance with approved plans and specifications; (3) providing technical direction and resolving complex issues to support successful project delivery; (4) managing schedules and resolving disputes with contractors to maintain project progress; and (5) monitoring project costs throughout all phases to ensure compliance with contract requirements. You are considering an opportunity for employment as a Construction Manager with a firm. Your prospective work would be outside of Engineering District 5-0 and potentially within Engineering District 4-0 or on a project for the Pennsylvania Turnpike Commission. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing work for a new employer following termination of your employment with PennDOT. In particular you pose the following questions: (1) Whether you would be permitted to perform construction management services for the Pennsylvania Turnpike Commission given that you have not been involved with the Pennsylvania Turnpike Commission during your employment with PennDOT; (2) Whether you would be permitted to work on PennDOT’s Bureau of Design (O.E.), which focuses on workforce development initiatives; and (3) Whether you would be permitted to work on PennDOT’s statewide agreement, the Pathways Major Bridge Initiative, where a consultant’s role is limited to only quality assurance oversight and does not involve direct management, direction, or financial transactions with contractors or the developer. 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 to former public officials/public employees. While Section 1103(g) does not prohibit a former public official/public employee from accepting a position of employment, it does restrict the former public official/public employee with regard to “representing” a “person” before “the governmental body with which he has been associated”: § 1103. Restricted activities Zaloga,26-534 May 28, 2026 Page 3 (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 associatedfor one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms “represent,” “person,” and “governmental body with which a public official or public employee is or has been associated” are specifically defined in the Ethics Act as follows: § 1102. Definitions “Represent.” To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. “Person.” A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. “Governmental body with which a public official or public employee is or has been associated.” The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa.C.S. § 1102. The term “person” is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; 3) submission of bid or contract proposals which are signed by or contain the name of the former public official/public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; (5) lobbying; and (6) acting to make known to the former governmental body the representation of, or work for, a new employer. Popovich, Opinion 89-005, Edley, Opinion 17- 002; Confidential Opinion, 17-007; Valentine, Opinion 20-003. Zaloga,26-534 May 28, 2026 Page 4 Listing one’s name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official/public employee on invoices submitted by his new employer to the former governmental body, even if the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shay, Opinion 91-012. However, if such a pre-existing contract does not involve the unit where a former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95-011. A former public official/public employee may assist in the preparation of any documents presented to his former governmental body. However, the former public official/public employee may not be identified on documents submitted to the former governmentalbody. The former public official/public employee may also counsel any person regarding that person’s appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body.The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Section 1103(g) only restricts the former public official/public employee with regard to representation before his former governmental body. The former public official/public employee is not restricted as to representation before other agencies or entities. However, the “governmental body with which a public official/public employee is or has been associated” is not limited to the particular subdivision of the agency or other governmental body where the public official/public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Sharp, Opinion 90-009-R. Conclusion: As aTransportation Construction Manager 3 with PennDOT, you are a public employee subject to the provisionsof the Ethics Act. Consequently, upon termination of your employment with PennDOT, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your employment with PennDOT would be PennDOT in its entirety, including Engineering District 5-0. For the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict you from “representing” a “person” —including but not limited toa new employer—before PennDOT. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as a Construction Manager with a firm. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties that would involve prohibited representation of the firm before PennDOT as delineated above. Zaloga,26-534 May 28, 2026 Page 5 Turning to your specific questions, you are first advised that Section 1103(g) of the Ethics Act would not prohibit you from performing construction management services for the Pennsylvania Turnpike Commission as long as in so doing, you would not engage in prohibited representation before PennDOT. You are further advised that Section 1103(g) would prohibit you from working on PennDOT’s Bureau of Design (O.E.), which focuses on workforce design initiatives, or from working on PennDOT’s statewide agreement, the Pathways Major Bridge Initiative, unless you would be able to do so without engaging in prohibited representation before PennDOT. Lastly, 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. 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