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HomeMy WebLinkAbout26-550 ShanshalaPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL August 4, 2026 To the Requester: Michael J. Shanshala, III Dear Mr. Shanshala: 26-550 This responds to your letter dated July 24, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issue presented below: Issue: Facts: Whether the "revolving door" restrictions of Section 1103(g) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(g), would impose restrictions upon you with regard to performing work for a new employer following termination of your employment as a Senior Civil Engineer Manager with the Pennsylvania Department of Transportation ("PennDOT"). Brief Answer: YES. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with a new employer upon termination of your employment with PennDOT. However, during the first year following termination of your 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. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Shanshala, 26-550 August 4, 2026 Page 2 You are currently employed as a Senior Civil Engineer Manager with PennDOT in Engineering District 10-0. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. In your role with PennDOT, you serve as the Construction Services Engineer, and you directly report to the Assistant District Executive for Construction. You oversee an office staff of 21 individuals working in various disciplines. You are considering retiring from your employment with PennDOT within the next year, at which time you may seek employment with a consulting firm or a manufacturing firm. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to seeking employment with a new employer or performing work for a new employer following termination of your employment with PennDOT. You ask whether it is correct that for a period of one year following your retirement from PennDOT, you would be prohibited from engaging in representation before a formal governmental body and from submitting documents from a new employer to Commonwealth governmental bodies. You also pose the following questions: (1) When would you be permitted to begin interviewing at consulting firms that you are presently involved with in construction management; (2) When would you be permitted to begin interviewing at consulting firms that you are not presently involved with in construction management; (3) When would you be permitted to begin interviewing at manufacturing firms that may or may not supply the Commonwealth with equipment such as automotive or building trade components; (4) Does the prohibition on "representing" before governmental bodies pertain only to the Commonwealth or does it also include local townships and other municipalities; (5) When would you be allowed to tell acquaintances in the private sector that you plan to retire; and (6) If you would be hired by a firm, when would you be permitted to work in the background on state projects while not engaging in prohibited representation. 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 relevantto 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. Shanshala, 26-550 August 4, 2026 Page 3 Section 1103(a) of the Ethics Act, pertaining to conflicts of interest, provides as follows: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. 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 Shanshala, 26-550 August 4, 2026 Page 4 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 (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) (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 aM 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; Shanshala, 26-550 August 4, 2026 Page 5 (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. 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 governmental body. 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 a Senior Civil Engineer Manager with PennDOT, you are a public employee subject to the provisions of 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 10-0. 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 to a new employer before your former governmental body, PennDOT. The restrictions as to representation outlined above must be followed. Shanshala, 26-550 August 4, 2026 Page 6 Your specific questions shall now be addressed. With respect to your first three questions, you are advised that the Ethics Act would not prohibit you at any time whether while you would be employed with PennDOT or after you would retire from your employment with PennDOT from interviewing for any position with a new employer, including a position with a consulting firm that you have or have not been involved with in construction management or a manufacturing firm that may or may not supply equipment to the Commonwealth. However, pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your position with PennDOT or confidential information received as a result of being in your position with PennDOT in pursuance of obtaining employment with a consulting firm or manufacturing firm. In response to your fourth question, you are advised that Section 1103(g) of the Ethics Act would only apply to restrict you from engaging in representation before your former governmental body, which is PennDOT. Section 1103(g) would not prohibit you from engaging in representation before other Commonwealth agencies/bodies or governmental entities such as townships and other municipalities. Turning to your fifth question, you are advised that the Ethics Act would impose no restrictions upon you at any time with regard to telling acquaintances in the private sector that you plan to retire. With regard to your sixth question, you are advised as follows. Because Section 1103(g) of the Ethics Act would apply to restrict your conduct only with respect to activities that would involve representation before PennDOT, Section 1103(g) would not require you to do work for a new employer "in the background" or "behind the scenes" on state projects that would not involve PennDOT. Section 1103(g) would not prohibit you from doing work for a new employer in the background or behind the scenes on PennDOT projects as long as in so doing, you would not engage in any activity that would involve representing your new employer before PennDOT. You are additionally advised that you would not be prohibited from submitting documents containing your name from a new employer to Commonwealth governmental bodies other than PennDOT as long as those documents would not subsequently be submitted to 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. Shanshala, 26-550 August 4, 2026 Page 7 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