Loading...
HomeMy WebLinkAbout856 KubitIn re: Robert Kubit STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: : Date Decided: : Date Mailed: Before: James M. Howley, Daneen E. Reese, Roy W. Wilt Austin M. Lee Allan M. Kluger 86 -137 -C September 15, 1992 September 18, 1992 Chair Vice Chair The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. Written notice, of the specific allegation(s) was served at the commencement of.the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing was waived. A Consent Order was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 52.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 409(e). Kubit, 87 -137 -C Page 2 I. ALLEGATION: That Robert Kubit, Executive Secretary to Controller, City Controllers Office, Pittsburgh, Pennsylvania, violated Section 3(a) of the Ethics Act which prohibits a public employee or public official's use of office or confidential information gained through that office to obtain financial gain; and Section 3(b) which prohibits a public employee, public official or candidate from offering, soliciting or accepting anything of value based on an understanding that the vote, official action or judgment of the public official, public employee or candidate will be influenced; or 3(d) which prohibits other areas of conflict by seeking political contributions from employees of the Controller's office as a consideration of their continuing employment or promotion. II. FINDINGS: 1. Robert Kubit served as Executive Secretary to Thomas Flaherty, Controller for the City-of Pittsburgh, from January 1984 until December 31, 1987. a. Kubit also served as Administrative Assistant to Thomas Flaherty beginning in 1981 when Flaherty served as a Pittsburgh City Councilman. b. Kubit currently serves as a District Justice, Court 05 -3- 10, located in the Lawrenceville area of the City of Pittsburgh. c. Kubit has also held the elected office of Committeeman in the City of Pittsburgh. 2 . Kubit's- duties as Executive - Secretary- to Thomas Flaherty included the following: a. Handle all personal correspondence of the Controller. b. Review constituent complaints and requests. c. Conduct research on various public policy issues. d. Supervise a staff of employees who comprise the Executive Session. 1) Employees included Ray Johnson, Patti Pillage, Charlene Hines, Eileen Kelly, Patty Devlin, John Parous, Tom Fitzgerald, Jeanne Terrence and Nancy Noszka. e. Kubit reported directly to Controller Tom Flaherty. Kubit, 87 -137 -C Page 3 3. Records of the City of Pittsburgh Department of Personnel confirm the following salaries set for Robert Kubit during his period of employment with the City Controller's Office: a. 1984: 34,930 b. 1985: 36,327 c. 1986: 36,327 d. 1987: 36,327 4. Thomas Flaherty was elected Controller for the City of Pittsburgh in November 1983 and took office in January 1984. a. Flaherty was re- elected Controller in 1987 and continues to serve as Controller. 5. In January and February of 1985, Flaherty sought the endorsement of the Democratic City Committee for the Office of Mayor of the City of Pittsburgh. a. He did not. receive the endorsement and dropped out of contention for the 1985 mayoral election. 6. In the Spring of 1986, Flaherty ran in the statewide Democratic Primary for the position of Lieutenant Governor. He lost the nomination in that election. 7. In March 1987, Flaherty received the City Democratic Committee endorsement for re- election to the office of City Controller. a. Flaherty was re- elected. 8. Kubit was actively involved in fund- raising activities for Tom _ Flaherty's attempts at various elected positions from at least 1983 when Flaherty sought election to City Controller, until the latter part of 1987. a. Kubit was directed by City Controller Thomas Flaherty-to distribute tickets for fund - raising events to employees of the Controller's office. b. The instructions would come directly from Flaherty or from Gilbert Martinez, a Flaherty aide. c. He distributed fundraising tickets to at least (90) of the employees of the city Controller's Office. d. He would distribute tickets to the employees in different ways at different times. 1) On some occasions, he would approach employees at their stations and advise that there was an Kubit,, 87 -137 -C Page 4 upcoming fund- raiser and to see him to purchase tickets. 2) On other occasions, Kubit would advise section supervisors to bring their sections in to his office or conference room. 3) Kubit would give three to five minute speeches advising employees of the particulars of the fund- raiser. e. Kubit maintained an accounting of tickets distributed to employees. 9. It was Kubit's opinion that if he did not distribute fundraising tickets to the employeees, he would be subject to disciplinary action from Thomas Flaherty or loss of employment. a. On at least one occasion Flaherty told Kubit that employees of the Controller's Office were expected to pull their weight in relation to the purchase of fundraising tickets. 10. From January 1984 until April 1989, Thomas Flaherty conducted at least (17) political fund - raising events for which tickets ranging in price from $25.00 to $100.00 were sold. a. Kubit, along with Controller's office: employee distributed these tickets to employees of the Controller's office during the period of his employment. Distribution occurred in the offices of the Pittsburgh- City Controller, City County Building and during the regular working hours of the Controller's office. c. Thomas Flaherty expected employees to purchase or sell these tickets. 11. Employees of the Office of City Controller have routinely contributed cash or purchased tickets to fund - raisers for the various political campaigns of Thomas Flaherty. a. Employee donations to Flaherty campaigns went through the purchase of a ticket to a fund- raising event. 12. Fund- raising events were held by the Committee to elect Flaherty and Friends of Tom Flaherty on at least the following occasions: Kubit, 87 -137 -C Page 5 Amount Data Oraanization 6/18/84 Friends of Tom Flaherty $100.00 Duranti's Restaurant 5/13/85 Friends of Tom Flaherty 50.00 Sheraton Station Square 10/27/85 Committee to Elect Tom - Froggy's Flaherty 1/26/86 10/86 12/12/86 3/29/87 5/13/87 10/87 11/3/87 1/88 7/2/88 10/28/88 12/18/88 12/27/88 1/22/89 4/13/89 Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Flaherty Committee to Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom Elect Tom pi Ticket Loc}ttpn 25.00 25.00 Froggy's Paski's American Legion, Post #5 50.00 Lemont 50.00 American Legion, Post #5 Troyhill 100.00 Sokol Hall CMU Inauguration 50.00 Greek Church North Side Dinner Cruise, Riverboat VFW, Summit Post 1902 Tavern Super Bowl Party, Sokol Hall Catered Dinner, !Cubit, 87 -137 -C Page 6 Flaherty 300 People - William Phaturos 13. Campaign Finance Reports for the Committee to Elect Flaherty filed with the Allegheny County Bureau of Elections confirms the following regarding campaign contributions made by employees of the Office of City Controller: # Employees Number of Contributing Amount Employees Multiple Year Collected Contributing Occasions 1984 $ 6,775.00 52 1 1985 13,985.00 62 25 1986 12,720.00 61 36 1987 16,580.00 66 51 1988 27,640.00 79 65 1989 20,032.50 65 52 TOTAL $97,733.00 14. When fund - raisers were to be held for Flaherty, Kubit would distribute fund - raiser tickets to supervisory personnel in the Controller's office to disseminate to employees in their respective sections. This occurred from 1984 until the end of 1987. Thomas Bouvy, a Supervisor in the Accounts Payable Section received fund- raiser tickets to distribute from Kubit on at least three to four occasions. Barbara Funari, Manager of the Controller Information Section, received fund- raiser tickets from Kubit. 1) On one occasion, she received tickets in 1986 approximately three weeks prior to Christmas and refused to distribute those tickets. c. Kathleen Kraus, a Supervisor in the Performance Audit Section, received tickets from Kubit on a regular basis to distribute to employees in her section. 1) On one occasion, Kubit called her entire section to his office to advise that tickets were going to be distributed. 2) Kraus believed that employees had to sell or purchase the tickets. d. Richard O'Neill, an Accounting Manager, would receive Cubit, 87 -137 -C Page 7 fund- raiser tickets from Kubit. 1) Kubit would personally give them to him or distribute them to employees in O'Neil's section. e. A.T. Bishop, an Audit Manager, received tickets for fund- raisers from Kubit. 1) Kubit would come to his section and distribute tickets to employees in that department. f. Stephen Verbanets, an Audit Supervisor, was called to Kubit's office on at least one occasion, along with employees in his department, for the purpose of buying tickets to fund - raisers. g. 1) Kubit encouraged the employees to buy tickets now at a lower price, because there would be a number of fund- raisers during the year. Thomas Reddy, a Chief Auditor, was approached by Kubit on one occasion to buy tickets to a fund- raiser. 1) The tickets were $50.00 each, and Kubit gave Reddy two tickets. 15. During the period of his employment, Kubit distributed tickets to employees of the Controller's office during regular office hours. a. Distribution occurred during regular office hours at the direction of Tom Flaherty. b. William Davis, a Fiscal Auditor, was given tickets by Kubit. 1) At the time of Davis' hiring, Kubit advised Davis that he would be expected to buy fund - raiser tickets. c. In 1986, Kubit distributed fund - raiser tickets to Mary Hayes, an Auditor. d. Shirley Deasy, a Clerk Typist, was called into Kubit's office on at least three occasions regarding the purchase of tickets. 1) She was called in as an individual and also as part of her section. e. William Gedman, Performance Auditor, Management Audit Kubit, 87 -137 -C Page 8 Section, was given tickets by Kubit on a regular basis. f. Mary Gratkowski, an Account Clerk, was given tickets by Kubit on more than one occasion in 1986. Katherine Newel, a Senior Internal Auditor, was called to Kubit's office where he advised her of tickets being available to a fund - raiser, if she wanted them. h. Kirk Rice, a Clerk II, received tickets for fund - raisers from Kubit in 1986. i. Robert Ward, Acting Supervisor, Materials Inspection Department, was called into Kubit's office by Kubit for the purpose of purchasing tickets to a Flaherty fund- raiser. James Cinque, a Senior Accountant, was called into Kubit's office on one occasion and asked to sell or buy tickets to..a Flaherty fund - raiser. k. Virginia Bruder- Murphy, a Keypunch Operator and Secretary to Richard Pugh, was solicited on one occasion by Kubit to purchase tickets to a Flaherty fund- raising event. i 1. Frank Thurner, a Materials Inspector and Clerk, was contacted prior to the 1986 primary by Kubit in regards to purchasing tickets to fund - raisers. 1) On another occasion, Thurner was called to Kubit's office where he met with Kubit and William Quest, a Chief Inspector. Thurner had purchased a $50.00 ticket to a fund - raiser but was advised that he should buy an additional ticket. 16. Prior to the 1986 Primary Election when Flaherty was running for Lieutenant Governor, Kubit and other Controller office employees, Richard O'Neil, William Quest and James Cinque travelled to go to Kittanning, Pennsylvania to obtain signatures on a Flaherty nominating petition. a. The four travelled to Kittanning on an afternoon during regular working hours. b. There was no leave utilized for this function. c. This occurred with the knowledge and consent of Thomas Flaherty. 17. During the period of his employment with the Controller's office, Kubit, along with Controller Tom Flaherty and Kubit,, 87 -137 -C Page 9 managerial employees, Gil Martinez, Tony Pokora, Don Walko and Kevin Forsythe, would walk through the City Controller's office seeking volunteers to deliver Flaherty campaign literature (lit- dropping) to different areas of the city. a. These solicitations occurred during regular working hours. b. The lit- dropping would occur prior to elections. c. Employees were requested to lit -drop after regular working hours. 18. Kubit solicited employees of the Controller's office to perform fund - raising activities for Tom Flaherty. a. The solicitations occurred during regular working hours. b. During the fall of 1986, Kubit directed Joyce Grill, a Clerk Typist, to type up envelopes to be sent to (25) members of the community. 1) Kubit provided her with the names on a note pad. 2) The mailing was in regards to a fund - raiser that was being held on November 24, 1986. 3) This typing was done during Grill's regular working hours. c. In 1986, Kubit asked Neil Pasquarelli, a Computer Operator, to work in a group for Flaherty's campaign for Lieutenant Governor. 1) The request occurred during regular working hours. 2) The campaign work was not on city time. 19. On February 10, 1987, Kubit met with Gloria Novak, a Performance Auditor, outside of the Controller's office in the hallway of the City County Building. a. The meeting occurred during regular working hours. b. Kubit requested her, at the direction of Tom Flaherty, to have her mother, a 26th Ward. Democratic Chairperson, sponsor a candidate night for Flaherty. c. Novak's mother did not have the candidates night. d. Novak was furloughed from her job in 1989. Kubit, 87 -137 -C Page 10 20. In 1984, Jeanne Terrence, an Assistant Executive Secretary to Controller Thomas Flaherty, began compiling a list of contributors to Flaherty fund - raisers on a city computer. a. She was provided with copies of contributor cancelled checks by Robert Rubit. b. Rubit provided Terrence with these records on a regular basis during regular working hours. 21. The telephones in offices of the City-Controller were utilized in relation to various political campaigns of Thomas Flaherty. a. From time to time Kubit would receive and make telephone calls regarding campaign or political activity. Kubit and other employees of the Controller's Office used the telephones on a Saturday to make telephone calls to committee persons throughout the City of Pittsburgh soliciting.. support for Flaherty. 1) Rubit was specifically directed to make contacts with individuals in the 29th Ward to solicit support for Flaherty. c. Thomas Flaherty was present when the telephone calls were being made. 1) Flaherty directed the employees to make the calls. 22. The copy machines in the City Controller's Office were utilized in relation to Flaherty's campaign activities. a. Kubit personally observed employees of the Controller's Office making copies of Tom Flaherty campaign literature. b. This occurred every time Flaherty sought reelection or higher office. 23. A conference room in the Controller's Office was used for the purposes of stuffing envelopes with campaign literature to be mailed. a. The envelope stuffing sessions occurred frequently when Flaherty was seeking reelection or higher office b. Kubit observed that Tom Flaherty and his father were present when the envelope stuffing sessions occurred. 24. The Home Rule Charter for the City of Pittsburgh, Article 7 Personnel, Paragraph 705, Political Activity of Kubit, 87 -137 -C Page 11 Since effective provisions Ethics Act Under determined Employees /Gifts prohibits political activity during working hours. Article 7 provides as follows: a. Em lo ees o th III. DISCUSSION: I' al a iv t wo • hours d at re •r•: bi m en in city offices. City employees may not hold an elected public office unless a leave of absence is taken without pay. Certain described classes of city employees and officers may be required by ordinance, to take a leave of absence without pay while a candidate for elected public office. City employees shall not be permitted to accept any gift or thing of value in connection with their employment other than their salary: nor be compelled to contribute to any fund other than that required by law. No solicitation shall be made of a city emplovge for any purpose during working hours. Nothing contained in this section shall affect the right of city employees to support a political party; to vote as they choose; to hold party office or to express publicly and privately their options on political subjects and to attend political meetings. As the Executive Secretary to the City Controller of Pittsburgh, Robert Kubit, hereinafter Kubit, was a public employee as that term is defined in the Ethics Act, 65 P.S. 5402; 51 Pa. Code 51.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989, P.L. 26, provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." the occurrences in this case transpired prior to the date of Act 9 (June 26, 1989), we must apply the of Act 170 of 1978, P.L. 883, to determine whether the was violated. Section 3(a), quoted above, this Commission has that use of office by a public official to obtain a fit, 87 -137 -C Page 12 financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Section 3(b) of Act 170 of 1978 provides: Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office . or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public" official or public employee ar ";: candidate for public office would be influenced thereby. 65 P.S. 5403(b). Section 3(b) provides in part that no person shall solicit or accept anything of value based on the understanding that the vote, official action or the judgment . of the public official or employee would be influenced thereby. Section 3(d) of Act 170 of 1978 provides: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 5403(d). The above provision of law which allows this Commission to address other areas of possible conflict has been traditionally Kubit, 87 -137 -C Page 13 utlized by this Commission in issuing advisories wherein Section 3(d) has been applied in conjunction with the Preamble as to areas which did not constitute a conflict under Section 3(a) of Act 170 of 1978 but nevertheless created an appearance of a conflict. See O'Reilly, Opinion 83 -012. The allegation before us is whether Kubit as the Executive Secretary for the Pittsburgh City Controller violated either Sections 3(a), 3(b) or 3(d) of Act 170 of 1978 by seeking political contributions of Controller's Office employees as consideration for the continuation of his employment. The record in this case reflects that Kubit served as the Pittsburgh City Controller Executive Secretary from January 1984 to December 31, 1987 with duties and responsibilities of handling the Controller's personal correspondence, reviewing constituent complaints /requests, performing research, supervising the "Executive Session" staff and reporting to the Controller. Kubit was active in 1983 regarding Tom Flaherty's attempt to obtain the democratic endorsement for the Office of City Controller. (Fact Finding 8). Flaherty was in fact elected Controller for the City of Pittsburgh in 1983 and was re- elected in 1987. Kubit became actively involved in fundraising for the Controller by distributing tickets for fundraising events to Controller's Office employees at the direction of Tom Flaherty or his aide, Gilbert Martinez. (Fact Finding 8b). At least ninety employees were given fundraising tickets by Kubit either at their employee work stations, to supervisors who were directed to bring the employees into Kubit's office or the conference room or to employees after speeches relative to a particular fundraiser. It was Kubit's belief that he would be subject to disciplinary action or dismissal by Tom Flaherty if he did not distribute fundraising tickets. (Fact Finding 9). Such fundraising tickets were distributed in the Pittsburgh City Controller's Office during normal working hours. (Fact Finding 10). From January 1984 through April 1989, Flaherty conducted at least seventeen political fundraising events as to which tickets in the price range of $25 to $100 were sold. (Fact Finding 10). During that period of time, Flaherty collected over $97,000 in contributions from employees within his office. (Fact Finding 13). Such contributions by employees were obtained through the mechanism of the purchase of tickets to fundraising events. (Fact Finding 11). Whenever fundraisers were to held, Kubit distributed the tickets to the supervisory personnel in the Controller's Officer for dissemination to employees in their respective sections. Specific instances of the fundraising ticket distribution are set forth in Fact Finding 14. In addition, Kubit also distributed tickets to Controller's Office employees during regular work hours Kubit,, 87 -137 -C Page 14 during the general period of his employment which occurrences are outlined in Fact Finding 15. In 1986, when Flaherty was running for Lieutenant Governor, Kubit and other Controller Office employees traveled to Kittanning to obtain signatures for Flaherty's nominating petition. Such travel was done during normal working hours with the knowledge and consent of Thomas Flaherty-and no leave was utlized for the activity. (Fact Finding 16). Apart from fundraising, Kubit also solicited City Controller employees during regular office working hours to perform fundraising activities such as delivering Flaherty campaign literature to different areas of Pittsburgh. (Fact Finding 17). In the fall of 1986, Kubit directed Joyce Grill a Clerk Typist to type up envelopes for a November fundraiser which typing was done during Grill's regular working hours in the City Controller's Office. (Fact Finding 18b). On February 10, 1987, Kubit met Gloria Novak, a Performance Auditor in the Controller's Office, to request her to have her mother, a Ward Chairperson, sponsor a candidate night for Flaherty. Novak's mother did not have the candidates night and Novak was subsequently furloughed from her position in 1989. (Fact Finding 19). Finally, we note that the Pittsburgh City Controller's Office, the equipment and telephones were used for campaign or political activity. In particular, the Assistant Executive Secretary Jeanne Terrence in 1984 utilized the city computer to compile a list of contributors to Flaherty fundraisers. (Fact Finding 20). Further, the telephones of the City Controller's Office were utilized for Thomas Flaherty political campaign activity at his direction. (Fact Finding 21). The photocopy machine of the Pittsburgh City Controller's Office was utilized for Flaherty campaign activities such as making copies of Tom Flaherty campaign literature (Fact Finding 22) and the conference room was used on a regular basis for campaign activities such as stuffing envelopes with campaign literature. (Fact Finding 23). In applying the above quoted provisions of Section 3(a) of Act 170 of 1978 to the instant matter, we find a violation of that provision of law by Kubit. In particular, there was a use of public office on the part of Kubit when he solicited employees in the City Controller's Office regarding the purchase of fundraising tickets for Thomas Flaherty's campaign fund. Kubit used his status as the Pittsburgh City Controller's Office Executive Secretary during regular working hours in the offices of the Pittsburgh City Controller to solicit these campaign contributions. Thus, it is clear that Kubit's status and high position in the Pittsburgh City Controller's Office was the linchpin for the solicitation for the tickets for the fundraising events. That use of public office by Kubit resulted in a financial gain to him individually which would be the continuation of his salary as City Controller's Office Executive Secretary. Lastly, the financial gain was other than Kubit, 87 -137 -C Page 15 compensation provided for by law because there is no provision which allows for the solicitation of such contributions under the facts of this case. To the contrary, the Home Rule Charter for the City of Pittsburgh, Article 7, Paragraph 705 (Fact Finding 24) specifically-forbids such activity in that the Charter specifically prohibits employees from engaging in political activity during working hours in city offices and further prohibits the compelling of contributions to any fund other than required by law and prohibits solicitation of employees for any purpose during working hours. It is not the function of this Commission to interpret the foregoing Home Rule Charter but we may review such Charter to the extent that it impacts upon our determination under Section 3(a) of Act 170 of 1978 as to whether a financial gain is compensation other than provided for by law. Clearly, the solicitation of employees in the Pittsburgh City Controller's Office for political contributions during normal working hours is an activity specifically proscribed by the Home Rule Charter. We therefore find that the financial gain in this case was compensation other than provided for by law. Accordingly, Kubit violated Section 3(a) of Act 170 of 1978 when he solicited the employees in the Pittsburgh City Controller's Office for political contributions. See, Pancoe, Opinion 89 -011; Street, Opinion 81 -005; Rieaer Order No. 680; Freind, Order No. 800. As to the above violation, we shall take no further action since Kubit's activity was done as a condition of continued employment and Kubit so acted in order to prevent the loss of his job. As to Section 3(b) of Act 170 of 1978, we find no violation of this particular provision. A finding of a Section 3(b) violation requires that an understanding must exist between the public employee soliciting or accepting anything of value based on the understanding that his vote, official action or judgment would be influenced thereby. Although it is quite clear to this Commission as to the realities which existed when the employees in the Pittsburgh City Controller's Office were individually, during working hours, accosted for political contributions to Tom Flaherty's campaign funds, we do not, in the context of the record before us, specifically find the requisite "understanding" which is a necessary element for finding a Section 3(b) violation. In particular, the one -sided solicitation by Kubit coupled with the mere tacit purchases of tickets by the various employees is insufficient to establish the basis for a violation. Since we cannot find that the requisite "understanding" existed in this case, we find no violation of Section 3(b) of Act 170 of 1978. As to Section 3(d), we likewise find no violation. Section 3(d) must be understood in the context of prior Commission decisions as to this provision of law. As noted above, Section 3(d) has traditionally been used in those cases where the given Rubit, 87 -137 -C Page 16 circumstances would not constitute a conflict under Section 3(a) but would create an appearance of a conflict. Section 3(d) was used in conjunction with the Preamble of the Ethics Law to find a prohibited result based upon an appearance of a conflict, usually in an advisory opinion context. Since in this case we must review the conduct to determine whether a violation exists, we believe that our prior applications of Section 3(d) in the context of appearances of conflict are inappropriate in an investigative setting to determine .whether a violation of the law existed; on that basis, we therefore find no violation of Section 3(d) of Act 170 of 1978. IV. CONCLUSIONS OF LAW: 1. Robert Kubit as the Executive Secretary for the Controller of the City of Pittsburgh was a public employee subject to the provisions of Act 170 of 1978. 2. Rubit violated Section 3(a) of Act 170 of 1978 when he used public office to obtain a financial gain for himself as to continued employment by seeking political contributions for the City Controller from employees in that office during regular working hours. 3. Rubit did not violate Section 3(b) of Act 170 of 1978 regarding soliciting political contributions from employees in the Pittsburgh City Controller's Office in that the evidence does not establish an understanding existed whereby Kubit solicited contributions based on the understanding that his official action or judgment would be influenced thereby. 4. Rubit did not violate Section 3(d) of Act 170 of 1978 in that his action of seeking political contributions from employees of the Pittsburgh City Controller's Office does not fall within an other area of conflict that may be addressed by the Commission. In re: Robert Rubit : File Docket: 86 -137 -C : Date Decided: September 15, 1992 Date Mailed: September 18, 1992 ORDER NO. 856 1. Robert Kubit as the Executive Secretary for the Controller of the City of Pittsburgh violated Section 3(a) of Act 170 of 1978 when he used public office to obtain a financial gain for himself as to continued employment by seeking political contributions for the City Controller from employees in that office during regular working hours. 2. 'Cubit did not violate Section 3(b) of Act 170 of 1978 regarding soliciting political contributions from employees of the Pittsburgh City Controller's Office in that the evidence does not establish an understanding existed whereby Rubit solicited contributions based on the understanding that his official action or judgment would be influenced thereby. 3. Rubit did not violate Section 3(d) of Act 170 of 1978 in that his action of seeking political contributions from employees of the Pittsburgh City Controller's Office does not fall within an other area of conflict that may be addressed by the Commission. 4. Based upon the totality of the facts and circumstances, this Commission will take no further action in this case. BY THE COMMISSION, JAMES M. HOWLEY C IR