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HomeMy WebLinkAbout26-558 Schoch 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 August 31, 2026 To the Requester: Barry Schoch, Sr. Vice President KCI Technologies, Inc. 26-558 Dear Mr. Schoch: This responds to your letter dated August 10, 2026, received August 19, 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 “revolving door/post-termination of employment” restrictions of Section 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 working on projects for Southeastern Pennsylvania Transportation Authority (“SEPTA”) as an employee of, or contractor to, KCI Technologies Inc. (“KCI”) following termination of the individual’s employment as a part-time pensioner with SEPTA. Brief Answer: NO. Upon review of the submitted facts, as a part-time pensioner with SEPTA, the individual was not a “public employee” subject to the provisions of the Ethics 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 working on projects for SEPTA as an employee of, or contractor to, KCI. Facts: You have been authorized by Timothy P. Shirk (“Mr. Shirk”) to request an advisory from the Commission on his behalf based upon submitted facts that may be fairly summarized as follows. Schoch, 26-558 August 31, 2026 Page 2 On May 1, 2025, Mr. Shirk retired from his full-time employment as the Director of Communications and Signals Engineering for SEPTA. In the aforesaid position with SEPTA, Mr. Shirk supported the maintenance, engineering, and construction aspects of SEPTA’s operations. From August 4, 2025, to August 4, 2026, Mr. Shirk returned to employment with SEPTA as a part-time pensioner to assist with the transfer of his institutional knowledge and provide project history. Mr. Shirk’s role was limited to offering background information about various phases of long-term projects to ensure adherence to established scopes and programmatic intent. Mr. Shirk provided historical perspective on initiatives/systems for Positive Train Control, Trolley Modernization, and Centrex Telephone Replacement and general maintenance guidance for communications and signaling systems. Mr. Shirk’s daily tasks focused on transferring his institutional knowledge regarding operations and maintenance practices to SEPTA staff, and he connected staff to external contacts, entities, and agencies to ensure a baseline of continuity of contact and to maintain historical relationships. You state that during his time as a part-time pensioner with SEPTA, Mr. Shirk possessed no authority to make autonomous decisions, advance official proposals, or direct employees, and he did not manage budgets, sign contracts, or authorize expenditures. You further state that Mr. Shirk’s role was purely advisory, technical, and ministerial in nature and was limited entirely to providing guidance, historical background, and routine contact introductions to ensure operational continuity. KCI is considering entering into an employment or contractual relationship with Mr. Shirk to perform transit/rail communications and signals work. Mr. Shirk’s potential role could include work on projects where KCI provides services to SEPTA under a contract. The question that is presented by your advisory request is whether Mr. Shirk became a “public employee” when he returned to work with SEPTA as a part-time pensioner in August 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 August 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 Schoch, 26-558 August 31, 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 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. 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. Schoch, 26-558 August 31, 2026 Page 4 (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. (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. Schoch, 26-558 August 31, 2026 Page 5 (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. “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), Schoch, 26-558 August 31, 2026 Page 6 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 submitted facts as to the duties of Mr. Shirk’s former position, the necessary conclusion is that in his capacity as a part-time pensioner with SEPTA, Mr. Shirk was not a "public employee" as that term is defined in the Ethics Act. Based upon an objective review, Mr. Shirk was not responsible for taking or recommending official action of a nonministerial nature with regard to any of the five categories set forth in the Ethics Act’s definition of the term “public employee.” Because the duties and responsibilities of Mr. Shirk’s former position did not bring him within the definition of “public employee” as set forth in the Ethics Act, Section 1103(g) of 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. Shirk from performing work on SEPTA projects as an employee of, or contractor to, KCI. The only provision of the Ethics Act that applies to Mr. Shirk 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. Schoch, 26-558 August 31, 2026 Page 7 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