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HomeMy WebLinkAbout26-542 Apessos - Elwee 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 July 6, 2026 To the Requesters: George D. Apessos, Esquire, Counsel Lydia C. Grose, Vice President Office Executive Michael Baker International, Inc. 26-542 Dear Mr. Apessos and Ms. Grose: This responds to Mr. Apletter received June 22, 2026, received June 29, 2026, by which an advisory was requested from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether the - 1103(g) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(g), would apply to impose restrictions upon an individual with regard to providing staff augmentation services to Southeastern Pennsylvania Transportation Authority -time employee of Michael Baker International, Inc. -time pensioner with SEPTA. Brief Answer: NO. Upon review of the submitted facts, as a part-time pensioner with Act. Consequently, the post-employment restrictions of Section 1103(g) of the Ethics Act are not applicable to the individual and would not impose restrictions upon him with regard to providing staff augmentation services to SEPTA as a part-time employee of MBI. Facts: Apessos/Grose, 26-542 July 6, 2026 Page 2 Y based upon submitted facts that may be fairly summarized as follows. In April 2025, Mr. McElwee retired from his full-time employment with SEPTA. In May 2025, Mr. McElwee returned to employment with SEPTA as a part-time pensioner to provide construction management support for the City Hall Program and related transit projects. Mr. McElwee provided services to SEPTA through April 2026, when SEPTA decided not to renew his part-time pensioner position. have a formal job description for his part-time pensioner position with SEPTA. Ms. Grose further states that Mr. McElwee provided the following description of his duties in that position: through April 2026, I have been supporting staff to help move forward the multi-project, City Hall Program, with embedded projects such as the Broad Street Subway City Hall Reverse Signaling Project, the City Hall Underpinning Project and the City Hall ADA Improvement Project. These projects are multi- disciplined, interrelated, and have a legacy of planning and design spanning over 20 years which I have had a key roll, specifically as the BSS Reverse Signal project ramps up and moves into construction. I have been providing support to the C&S Department by being a resource of existing knowledge and project background to ensure that this essential phase meets the overall objective of the City Hall Program. Over the years I have also established important working relationships with external stakeholders such as the City Hall maintenance groups and the Center City District which I continued to maintain and pass on to staff. My critical and specific knowledge of the overlapping ownership of City Hall complex and the delineation of responsibilities between entities, which has taken years to develop is essential as we complete design of the Underpinning Project. In addition to the City Hall Project, I have assisted staff and provided information and history to projects that are moving into construction. 11th Street Station, 19th Street Station, 37th Street Station projects, projects associated with preparing for the 2026 and projects within the 69th and Bridge Street Complexes are several of the projects I provided staff with guidance, 1 advice and history leveraging his existing knowledge and professional background in the relevant areas. Ms. Grose 1 Email from Lydia C. Grose, Vice President Executive Office, Michael Baker International, Inc., to Martin W. Harter, Deputy Chief Counsel, Pennsylvania State Ethics Commission (June 29, 2026, at 4:45 p.m. EST). Apessos/Grose, 26-542 July 6, 2026 Page 3 further states that Mr. McElwee did not participate in advancing any approvals or decisions regarding internal or external stakeholders and that his assistance was limited to providing guidance and context that did not influence or lead to any official actions. MBI is considering hiring Mr. McElwee as a part- GEC Construction Management contract with SEPTA. The question that is presented by your advisory request is whether Mr. McElwee became -time pensioner in May 2025 and consequently became subject to the one-year post employment restrictions of Section 1103(g) of the Ethics Act when he ceased providing services to SEPTA in April 2026. 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; Apessos/Grose, 26-542 July 6, 2026 Page 4 (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. 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 individuals recommendations or actions are an inherent and recurring part of his position. (I) The individuals recommendations or actions affect organizations other than his own organization. Apessos/Grose, 26-542 July 6, 2026 Page 5 (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. (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. Apessos/Grose, 26-542 July 6, 2026 Page 6 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, the desirability of the action being taken. 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. 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 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. 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 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 submitted facts as to the duties of Mr. former position, the necessary conclusion is that in his capacity as a part-time pensioner with SEPTA, Mr. McElwee was not a "public employee" as that term is defined in the Ethics Act. Based upon an objective review, Mr. McElwee was not Apessos/Grose, 26-542 July 6, 2026 Page 7 responsible for taking or recommending official action of a nonministerial nature with regard to Because the duties and responsibilities of Mr. McElweeformer position did not bring him the Ethics Act is not applicable to him during the first year following termination of his service as a part-time pensioner with SEPTA. Accordingly, Section 1103(g) of the Ethics Act would not restrict Mr. McElwee from providing staff augmentation services to SEPTA as a part-time employee of MBI. The only provision of the Ethics Act that applies to Mr. McElwee is Section 1103(b), which applies to everyone. 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. 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 received at 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