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HomeMy WebLinkAbout26-534-S ZalogaPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Anthony F. Zaloga Dear Mr. Zaloga: 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 October 22, 2026 26-534-S This responds to your letter dated September 22, 2026, by which you requested a supplemental advisory from the Pennsylvania State Ethics Commission ("Commission") under the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec ., seeking guidance as to the issue presented below: Issue: Whether, following termination of your employment as a Transportation Construction Manager 3 with the Pennsylvania Department of Transportation ("PennDOT"), Section 1103(g) of the Ethics Act would impose restrictions upon you with regard to performing construction management and quality assurance support services for a subcontractor to the prime consultant supporting PennDOT's Major Bridge Public -Private Partnership Program ("MBP3 Program"). Brief Answer: Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the subcontractor to the prime consultant supporting PennDOT's MBP3 Program. However, during the first year following termination of your employment with PennDOT, Section 1103(g) would prohibit you from performing any job duties for the subcontractor that would involve "representing" yourself or the subcontractor before your "former governmental body," PennDOT. Facts: By letter received May 15, 2026, you initially requested an advisory from the Commission regarding the post -employment restrictions of Section 1103(g) of the Ethics Act, 65 Pa.C.S. § Zalo a, 26-534-S October 22, 2026 Page 2 1103(g). In your advisory request letter, you stated that you are employed as a Transportation Construction Manager 3 with PennDOT in Engineering District 5-0. You further stated that you were considering an opportunity for employment as a Construction Manager with a firm and that 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 sought guidance as to whether Section 1103(g) of the Ethics Act would impose any prohibitions or restrictions upon you with regard to performing work for a new employer following termination of your employment with PennDOT. You posed several specific questions, including 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. In response to your initial advisory request, Zaloga, Advice of Counsel 26-534, was issued to you on May 28, 2026. Advice of Counsel 26-534 determined, in pertinent part, as follows: As a Transportation Construction Manager 3 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 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 to a 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. Turning to your specific questions, you are ... advised that Section 1103(g) would prohibit you 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. Zaloga, Advice of Counsel 26-534, at 4-5. In your September 22, 2026, advisory request letter, you state that you have an opportunity for employment with Johnson Mirmiran & Thompson Inc. ("JMT") to perform construction Zalo a, 26-534-S October 22, 2026 Page 3 management and quality assurance support services. JMT is a subcontractor to Gannett Fleming, which is the prime consultant supporting PennDOT's MBP3 Program with quality oversight over the Independent Quality Firm, Volkert Construction Services. Your direct supervisor with JMT would be JMT's P3 Construction Program Manager, who reports to the PennDOT P3 Major Bridge Initiative Construction Chief and Program Director. Your proposed assignment with JMT would be technical and advisory in nature and would focus on reviewing construction quality, inspection practices, documentation, and compliance with applicable PennDOT standards, specifications, and project requirements. You would not be employed by or work for the P3 developer or the P3 construction contractor. Your responsibilities in your role with JMT would include: • Reviewing Independent Quality Firm inspection documentation and inspection practices; • Reviewing quality assurance/quality control documentation and records; • Evaluating whether inspection and quality assurance practices are consistent with applicable PennDOT standards, specifications, and project requirements; • Observing construction activities in the field; • Attending project and construction meetings for purposes of providing technical observations concerning construction quality and compliance and not for the purpose of advocating or negotiating on behalf of the P3 developer or the P3 construction contractor; • Providing technical observations and recommendations concerning construction practices and compliance; • Communicating observations and recommendations through the established consultant and project management structure; and • Providing technical and professional advice concerning construction quality assurance and oversight practices. You state that your work would not involve representing the P3 developer or the P3 construction contractor before PennDOT. You state that in particular, you would not: • Negotiate with PennDOT on behalf of the P3 developer or the P3 construction contractor; • Submit bids, contract proposals, claims, or other submissions on behalf of a private parry for the purpose of influencing PennDOT; • Lobby or otherwise advocate before PennDOT on behalf of a private parry; • Negotiate contractual matters on behalf of the P3 developer or the P3 construction contractor; or • Negotiate or advocate for the P3 developer or the P3 construction contractor or otherwise attempt to influence PennDOT's decisions on their behalf with regard to claims, change orders, compensation entitlement, contract disputes, or other matters requiring PennDOT action. Your services would be performed strictly as an employee of JMT under JMT's subcontract with Gannett Fleming, and your compensation would be paid to you by JMT in accordance with your employment relationship with JMT. You would not submit invoices to PennDOT, receive payment directly from PennDOT, or have any contractual relationship with PennDOT. JMT's Zalo a, 26-534-S October 22, 2026 Page 4 consultant costs associated with the MBP3 Program may ultimately be reimbursed by PennDOT pursuant to the applicable consultant contractual arrangement. Based upon the above additional facts, you pose the following questions: (1) Whether the fact that your proposed supportive role and reporting relationship would be through JMT's P3 Construction Program Manager rather than to PennDOT's P3 Major Bridge Initiative Construction Chief and Program Director would affect an analysis as to your role with respect to representation before PennDOT; (2) Whether the fact that PennDOT would ultimately reimburse the hours associated with your services under the consultant/program contractual arrangement would affect the application of Section 1103(g) of the Ethics Act, where your employment would be with JMT, your duties would not involve representing a private parry before PennDOT, and your name would appear on an invoice for reimbursement from PennDOT under the consultant invoicing; and (3) Whether you would be permitted to perform the described construction management and quality assurance services during the first year following termination of your employment with PennDOT provided that you would refrain from activities that would constitute prohibited representation before PennDOT as described in Advice of Counsel 26-534. Discussion/Conclusion: This supplemental advisory incorporates herein by reference the quotations, citations, and commentary as to the Ethics Act set forth in Zaloga, Advice of Counsel 26-534. In response to your request for a supplemental advisory, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with JMT. However, during the first year following termination of your employment with PennDOT, Section 1103(g) would prohibit you from performing any job duties that would involve prohibited representation of JMT or any other "person" before PennDOT as set forth in Advice of Counsel 26-534. You have factually submitted that your proposed work with JMT would not involve representing the P3 developer or the P3 construction contractor before PennDOT. Accordingly, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from performing the described construction management and quality assurance services during the first year following termination of your employment with PennDOT as long as in so doing, you would not engage in any activities that would constitute prohibited representation of JMT before PennDOT. The fact that your proposed supportive role and reporting relationship would be through JMT's P3 Construction Program Manager rather than to PennDOT's P3 Major Bridge Initiative Construction Chief and Program Director would appear to comply with Section 1103(g) of the Za�lo _a, 26-534-S October 22, 2026 Page 5 Ethics Act's restriction against engaging in representation before PennDOT. Additionally, the fact that PennDOT would ultimately reimburse the hours associated with your services under the consultant/program arrangement would not prohibit you from performing those services provided that the inclusion of your name on invoices submitted to PennDOT would be permitted by the Commission's holding in Abrams/Webster, Opinion 95-011. See, Zaloga, Advice 26-534, at 4. 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