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HomeMy WebLinkAbout867 PughSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: Richard Pugh File Docket: 86 -136 -C Date Decided: December 10, 1992 : Date Mailed: December 15,1992 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kiuger 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 held. The record is complete. 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 oft 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). Pugh, 86 -136 -C Page 2 I. ALLEGATION: That Richard Pugh, Controller's Engineer, City Controller's Office, Pittsburgh, Pennsylvania, violated Section 3(a) of the Ethics Act, Act 170 of 1978, 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(h) 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 Section 3(d) which prohibits , : other areas of conflict by seeking political contributions from ,employees of the Controller's Office as a consideration for their continuing employment or promotion. II. FINDINGS: A. PLEADINGS: 1. Richard Pugh has been employed by the Pittsburgh City Controller since January, 1984 in the capacity of Engineer. a. Pugh was previously employed by the City of Pittsburgh, Bureau of Engineering. b. Pugh was hired by City Controller, Thomas Flaherty. 2. The Controller's Engineer supervises the inspection of all city construction projects both in progress and prior to the City Controller authorizing the expenditure of funds. 3. A job description for the position of Controller's Engineer contains the following duties: Verifies and processes all departmental current and final estimates, calculation books and extra work on construction projects. Makes periodic field visits to inspect projects during construction to verify quantity and quality of work. Verifies that contractors are following plans and specifications of contract. Supervises field measurement of all items of work prior to payment to contractor. Accompanies city engineers and inspectors to final inspections; signs off on projects prior to payment. Pugh, 86 -136 -C Page 3 Performs activities and functions of related lower -level personnel as assigned or required. Performs such other related tasks and duties that are assigned or required. 4. W -2 Wage and Tax Statements_ obtained from the City of Pittsburgh confirm the following earnings for Richard Pugh while employed by the City Controller's Office. 1984: 1985: 1986: 1987: 1988: 1989: 1990: 1991: $39,425.00 41,002.00 41,473.32 4 258.80 '44,487.53 44,561.00 46,567.00 47,732.00 5. Richard Pugh has served in various political positions in the City of Pittsburgh. a. He serves as a Democratic Committee person in the 15th Ward of the 8th District. 1.) That District is now the 3rd District of the 15th Ward. b. He served as Vice - Chairman of the 15th Ward for twelve years until 1987. 6. Richard Pugh was active in 1983 in Thomas Flaherty's attempts to get the Democratic endorsement for the Office of City Controller. a. His primary function was to contact all committee people he knew to request that they support Flaherty. b. In Flaherty's subsequent political campaigns Pugh served as a fundraiser by selling tickets to various political functions. 7. Thomas Flaherty was elected Controller for the City of Pittsburgh in November, 1983 and took office in January, 1984. a. Flaherty was reelected Controller in 1987 and continues to serve as Controller. 8. 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. Pugh, 86 -136 -C Page 4 a. He did not receive the endorsement and dropped out of contention for the 1985 mayoral election. 9. 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. 10. In March, 1987 Flaherty received the Democratic Committee endorsement for reelection to the office of City Controller. a. Flaherty was reelected in the 1987 General Election. 11. Following the May 13, 1985 fundraiser, Salvatore Tiglio and Richard Pugh, Controller's Engineer, met with employees of the Controller's Office. 12. Pugh and Tiglio met with the supervisors from each department prior to the meeting to advise them that employees would be called to the conference room to meet with Tiglio and Pugh. a. This meeting occurred during regular working hours in the offices of the City Controller. 13. While employed as Controller's Engineer, Richard Pugh solicited campaign contributions and sold fundraising tickets for various Tom Flaherty fundraisers to contractors /vendors who performed services for the City of Pittsburgh and who Pugh had oversight responsibility. a. Fundraiser tickets were given to Pugh by Gilbert Martinez, an aide to Controller Thomas Flaherty. b. Pugh, as Controller Engineer "has oversight responsibility for inspecting projects and signing off on projects for these vendors prior to the Controller approving payment. 14. After an invoice is received by the Controller's Office for processing for payment, the invoice is forwarded to Richard Pugh, the Controller's Engineer. a. Pugh or his subordinate, Raymond Jablonowski inspects projects under construction to verify quantity and quality of work and to ensure that work is being completed according to contract specifications. b. Pugh then approves projects prior to payments being made. 15. Sargent Electric has contracts with the City of Pittsburgh for installing street lights and signs. 16. M. DePasquale, Inc., Pittsburgh, PA, has had construction and Pugh, 86 -136 -C Page 5 demolition contracts with the City of 17. Swank Associated Companies, Inc. has City of Pittsburgh for street repairs streets in 1989. Pittsburgh. had contracts with the and the milling of city a City of Pittsburgh the Marietta Street 18. Noralco Corporation participated in project for the rehabilitation of Retaining Wall. 19. Anjo Construction Company is a vendor of the City of Pittsburgh selected to perform services in regards to the Bloomfield Street Bridge replacement. 20. Chambers Development Company, Monroeville, PA, maintains a contract with the City of Pittsburgh for the hauling of trash to landfills. 21. The Home Rule Charter for the City of Pittsburgh, Article 7 Personnel, Paragraph 705, Political Activity of Employee/ Gifts. a. Employees of the city are prohibited from engaging in political activity hours and at all times 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 employee for anv 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. b. Paragraph 706, Prohibitions in General. No elected official, officer or employee shall in any manner receive benefit from the profits or emoluments of any contract, job, work or service with the city or accept any service or thing of value directly or indirectly upon more favorable terms than those granted to the public generally from any person, firm or corporation having dealings with the city. No elected official, officer or employee shall solicit or receive bah, 86 -136 -C Page 6 any compensation, gratuity or other thing for anv act done in the course of public work. This section shall be broadly construed and strictly enforced. Any violation of this section shall cause the offending official, officer or employee to forfeit office or employment. 22. Pugh challenges the authority or jurisdiction of the State Ethics Commission to investigate the allegations against him. a. It is asserted that his conduct is beyond the statute of limitations of 65 P.S. §408(m). b. Pugh asserts that the sunset period of the Commission bars any proceeding against him. c. It is asserted that the Commission failed to complete the preliminary inquiry in 60 days, the investigation in 360 days and failed to give a'notice of the continuation of the investigation every 90 days. B. TESTIMONY: 23. Anthony M. Tedesco was an employee in the Office of City Controller of Pittsburgh from April, 1984 until termination. a. Tedesco is currently an attorney -at -law. b. In the summer of 1985, Tedesco met with Tiglio and Pugh in the conference room of the City Controller's Office. (1) The conference room was adjacent to Tom Flaherty's personal office. (2) Tiglio or Pugh stated that every employee in the City Controller's Office was expected to give one percent of their salary to Tom Flaherty's campaign. (3) Notes taken by Tedesco as to the conference reflected in part: "Summer '85 maced by S Tiglio, D Pugh, in conference room = Tom expects every employee to give one percent of salary. . . (a) Tedesco believed that giving money was a prerequisite to continuing employment with the City Controller's Office. c. Tedesco was assistant management auditor of the Performance Audit Section. (1) Tedesco was not part of the executive level staff Puah, 86 -136 -C Page 7 of the City Controller's Office. (2) When Tedesco was interviewed for the position, his impression was that the job would be apolitical. 24. Shirley Deasy was an employee in the Pittsburgh City Controller's Office from February, 1984 to 1986. a. In 1985, Deasy was called to the conference room where Tiglio and Pugh were present. (1) Tiglio or Pugh brought up her giving one percent of her wages for Tom F .aher- ty' s "coffer". (a) Deasy indicated that she already purchased two tickets: (b) Tiglio and Pugh indicated that the one percent would be equivalent to paying union dues if she worked somewhere else. b. Deasy believed that contributions were expected as part of employment. c. The supervisors in the City Controller's Office usually handed out the .fundraising tickets. (1) Tiglio and Pugh did not hand out tickets to Deasy. d. Deasy contributed money to Tom Flaherty in 1984 and 1985. (1) No money was contributed by Deasy in 1986 prior to being laid off. 25. Nancy Nazska was an employee in the Office of Pittsburgh City Controller from July,, 1981 to April, 1989. a. Nazska was treasurer for Tom Flaherty's election campaign from 1985 to 1987. (1) Records were kept by Nazska of contributions received from employees of the Controller's Office. b: In 1985 Nazska was the private secretary to the Controller. c. Nazska was approached by Kubit, Pugh, Tiglio and Flaherty to call employees to the conference room. (1) Tiglio and Pugh were in the conference room. Pugh, 86 -136 -C Page 8 (2) Approximately thirty people were called separately into the conference room. (3) Nazska was also called into the conference room. (a) An indication was given to her as to what was received from her in the last fundraiser. (b) The impression Nazska got was that she was asked to give more. (4) Flaherty was . aware of employees being called to the conference room. 26. Mary Gratkowski was an employee of the City Controller of Pittsburgh from April, 1983 through December, 1986. a. In June, 1985, Nancy Nazska telephoned Christine Haffer, the immediate supervisor of Gratkowski, that it was Gratkowski's turn to be sent to the conference room. (1) Gratkowski went to the conference room where Tiglio and Pugh were present. (a) Tiglio told Gratkowski that she had not given any money and asked if she would be able to do so. (b) Gratkowski responded that she was not able to pay $250.00. (i) Tiglio told her that she could pay in three installments (ii) Pugh told Gratkowski that she should consider the payment as union dues. (c) Gratkowski believed that the possibility existed that she would be let go if she did not contribute. 27. Richard O'Neil was an employee of the Pittsburgh City Controller from November, 1983 to February, 1987. a. O'Neil was an accounting manager which was an executive level position. b. In 1986, O'Neil was told to go to the conference room. (1) Tiglio and Pugh were in the conference room. Puah, 86 -136 -C Page 9 (a) O'Neil was asked if he knew why he was there. (i) The response by O'Neil was that he knew what was going on. (b) The gist of the conversation by Tiglio /Pugh was that they wanted more money /contributions. (i) People were, not contributing /volunteering as to Tom Flaherty's political activities. (c) The state of mind of O'Neil was anger because he was asked for more contributions and his section was becoming trivialized. c. O'Neil contributed to Tom Flaherty in 1984, 1985 and possibly 1986 but not 1987. 28. James P. Cinque was an employee in the Office of the Pittsburgh City Controller between 1984 and 1986. a. The position Cinque held was an Accountant II for budget. b. In 1984 or 1985, . Cinque was told to go the conference room. (1) Tiglio and Pugh were in the conference room. (2) The purpose of the meeting was to raise money for Tom Flaherty's campaign. The state of mind of Cinque was that a contribution was expected. 29. Steve. Verbanets, Jr: was an employee in the Office of City Controller of Pittsburgh from March, 1976 to December, 1986. (3) a. He is currently an accountant who has passed the CPA exam. b. Verbanets held the positions of CETA employee, auditor, payroll auditor and audit supervisor. a. At some point in time, Verbanets. was called by Nancy Nazska to go to the conference room. (1) Tiglio and Pugh were in the conference room. (a) Tiglio and Pugh told Verbanets that Tom Flaherty was trying to get more money for his Puah, 86 -136 -C Page 10 31. Mary Hayes Pittsburgh a. Hayes campaign. (b) Verbanets was asked to pay $50.00 since he had already given $100.00. (c) Verbanets did not give the $50.00 because he felt the $100.00 he had given was enough. 30. Scott W. Kunka was an employee of the Pittsburgh City Controller from April, 1984 to January, 1987. a. Kunka holds a B.S. in biology from the University of Pittsburgh and a Masters in International Relations from Notre Dame. b. Kunka worked as a performance auditor. c. In 1985, Kunka's supervisor received a telephone call for Kunka to go to the conference room. (1) Tiglio and Pugh were present in the conference room. (a) Kunka was informed that he had contributed $100.00. (b) The expectation conveyed to Kunka was that he contribute one percent of his salary. (i) Since he contributed $100.00, he was told he was $50.00 short. (ii) Kunka asked what the quid pro quo was for the $150.00. (iii) Tiglio responded that it was about $50.00. (c) Kunka was called in during normal office working hours. (d) The state of mind of Kunka was that the contributions were mandatory. (e) Kunka did contribute the extra $50.00. was employed by the Office of City Controller of from July, 1975 to December, 1986. worked as an auditor. Puch, 86 -136 -C Page 11 b. In June, 1985, Hayes was asked by Nancy Nazska to go to the conference room. (1) Tiglio and Pugh were in the conference room. (a) Tiglio stated that tickets had been sent through the mail without any prior notification. (b) After referencing Hayes' wages, Tiglio noted that she purchased two tickets for $100 and that an additional $50.00 should be paid by Hayes. (c) The state of mind of Hayes was that she was expected: to contribute. c. Tiglio was persistent in seeking the $50.00 contribution from Hayes. d. Hayes went back to work in the Controller's Office of Pittsburgh in 1992. (1) The current employment is part of a settlement of a law suit against Tom Flaherty. e. Hayes contributed to Tom Flaherty in 1984, 1985 and 1986. 32. Kathleen Krause was an employee of the Pittsburgh City Controller from May, 1977 to March, 1990. a. Krause was a management auditor in the Performance Audit Unit. (-1) Hayes .refused in three subsequent instances to give the $50.00. (1) The direct supervisor of Krause was Tom Flaherty. At a point in time, Krause was advised that the people under her supervision would be called to the conference room:. (1) Krause was so advised at a supervisor's meeting attended by Jean Terrence, Bob Kubit and possibly others. 33. Virginia Bruder- Murphy was an employee of the Pittsburgh City Controller from January, 1984 through 1986. a. Initially, Murphy was a clerk; then she became Dick Pugh, 86 -136 -C Page 12 Pugh's secretary. b. Murphy became aware that Pugh was involved in Flaherty's political campaign activities. (1) Pugh mentioned to Murphy that he was selling tickets. (2) Contractors working on job would be asked by Pugh to buy tickets when he would go out to inspect the job. (a) Pugh asked Murphy to help out by calling some of the contractors. c. The state of mind of Murphy was that Tom Flaherty's employees were expected to sell or buy tickets. d. Murphy received and did sell tickets. 34. Gloria Novak is an employee of the Pittsburgh City Controller since 1984. a. Novak has a B.A. in English from Thiel College and a Masters from the University of Pittsburgh. b. There was albreak in Novak's employment between November, 1990 and May, 1991. c. Novak works as a performance auditor. d. In 1985, Novak was called to meet Tiglio and Pugh in the conference room. (1) Novak was told that employees were being asked for contributions. (2) A contribution of about $150.00 was asked of Novak. (3) Novak made notes of the meeting because someone said the solicitation was illegal.. (4) The state of mind of Novak was that she would lose her job if she did not contribute. (a) A payment plan for the contribution was suggested to Novak. (b) Novak believed that she had to contribute. 35. Robert W. Kubit was an employee in the Pittsburgh City Pugh, 86 -136 -C Page 13 Controller's Office from 1984 through 1987. a. Kubit holds a B.S. in Education and a Masters from Dusquene University. b. Kubit was an assistant to Tom Flaherty when he was a City Councilman. d. As to Tom Flaherty's campaigns for Lieutenant Governor, City Mayor and re- election campaign, Kubit was an active participant. e. Kubit asked City Controller employees for political contributions. f. Tiglio and Pugh engaged in fundraising activities as to City Controller's employees. (1) On, one official workday in the City Controller's Office, Tiglio and Pugh called employees to discuss a Flaherty fundraiser. e. Kubit believed that if he did not solicit contributions from employees, he would fall out of Flaherty's favor and be terminated. 36. Nancy Pereleman was an employee in the Pittsburgh City Controller's Office approximately from 1985 to 1990. a. A performance auditor was the position held by Pereleman. b. At a point in time, Pereleman was called to meet with Tiglio and Pugh in the conference room of the City Controller. (1) Pereleman was told by Tiglio and Pugh that they wanted to raise more money than they had for a fundraiser for Tom Flaherty and hoped she could help out. (a) It was suggested that Pereleman give $100 in addition to what she already had given based upon her salary. 37. Ralph Horgan was an employee in the City Controller's Office of Pittsburgh between 1984 and 1987. a. The position held by Horgan was a performance auditor. b. Horgan was asked at some point in time to go to the conference room. Pugh, 86 -136 -C Page 14 (1) Tiglio and Pugh were present in the room. (2) Horgan was asked to Flaherty fundraiser. (a) There was a prior (b) Horgan did not money. contribute money contribution made contribute any conference to a Tom by Horgan. additional 38. Eugene Ricciardi is a member of Pittsburgh City Council since 1990. a. The City Charter of Pittsburgh prohibits political activity on City premises. b. The opinion of Ricciardi is that solicitation by an employee of the City-Controller's Office on City time for political fundraising contributions would be violative of the City Charter provision. 39. Salvatore T. Tiglio is the assistant director of operations in the Pittsburgh Public Works Department. a. Tiglio worked in the Pittsburgh City Controller's Office between 1984 or 1985 and 1986 (1) The position Tiglio held was fixed asset coordinator and then operations manager. (2) Tom Flaherty was a political associate. (3) Flaherty had high political aspirations. (a) The positions of mayor and :lieutenant governor were sought by Flaherty. (b) An adjunct part of Flaherty's aspirations were political fundraisers. (4) Every employee in the City Controller's Office received several hundred dollars of fundraising tickets from Fran Brennan. (a) Flaherty sought.a "volunteer" to speak to the people. (i) Tiglio and Pugh were the volunteers. (b) The employees were upset with Flaherty's Pugh, 86 -136 -C Page 15 fundraising efforts. (5) Tiglio believed that he was offered the position by Flaherty as an inducement for his support as a committeeman. (6) Contributions were given to Nancy Nazska on City office time. (7) Prior to the conference room meeting between Pugh and Tiglio and City Controller employees, Flaherty met with most of the supervisors. b. Tiglio and Pugh at a point in time told Nancy Nazska to call employees to the conference room. c. Tiglio asserts that he and Pugh met with Controller employees to tell them that they were not compelled to purchase Flaherty fundraising tickets that were received in the mail. 40. Richard D. Pugh was an employee of the Pittsburgh City Controller between January, 1984 and May, 1990. a. The position Pugh held was a Controller's engineer. b. A number of City Controller's employees were disgruntled about receiving tickets. (1) Pugh asserts that he and Tiglio met with Controller employees to tell them that they were not compelled to purchase Flaherty fundraising tickets that were received in the mail. c Pugh was active in fundraising Tom Flaherty'. d. Pugh was given tickets to sell Controller engineer. activities on behalf of in his position of City III. DISCUSSION: As a Controller's Engineer, Richard Pugh, hereinafter Pugh, is a public employee as that term is defined in the Ethics Act, 65 P.S. §402; 51 Pa. Code 1.1. 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: Pugh, 86 -136 -C Page 16 "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." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of 1978, P.L. 883, to determine whether the Ethics Act was violated. Section 3(a) of Act 170 of 1978 provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. §403(a). Under Section 3(a), quoted above, this Commission has determined that use of office by a public- official to obtain a 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 Pugh, 86 -136 -C Page 17 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 or candidate for public office would be influenced thereby. 65 P.S. §403(b). Section 3(b) provides that no person shall solicit or accept anything of value based on the understanding that 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). Section 3(d) which allows this Commission to address other areas of possible conflict has been traditionally applied 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. Initially, we note ,that Pugh has raised three grounds for dismissal: statute of limitations, sunset and the failure to comply with the deadlines of Section 8 of Act 9 of 1989, 65 P.S. §408. As to both the statute of limitations and the investigative notice and deadline requirements of Section 8, both those provisions are contained in Act 9. However, Act 9 has no application to this case because of the explicit statutory direction of Section.9 of-Act 9 quoted supra. Section 9 of Act 9 is necessary because if any provision of Act 9 were applied to a case such as the instant matter where the activity occurred prior to the passage of Act 9, such legislation would be an ex post facto Pugh, 86 -136 -C Page 18 law. Act 170 of 1978 applies to this case which has neither a statute of limitations nor investigative deadlines. We therefore reject Pugh's first and third arguments. The second issue (sunset), challenges the ability of this Commission to continue with investigations upon revival after the period of sunset non - existence. That issue was resolved by Commonwealth Court in Zontek, et al. v. State Ethics Commission, filed at 49 M.D. 1991 on August 10, 1992, which-held that the failure to raise the sunset issue by the judicial deadline of December 13, 1989 imposed by the Pennsylvania Supreme Court in Blackwell v. Commonwealth of Pennsylvania, State Ethics Commission, (Blackwell III), 130 Pa. Cmwlth. 646, 569 A.2d 378 (1990), aff'd., (Blackwell V), Pa. , 589 A.2d 1094 (1991) was an absolute bar to subsequently raising that issue. Commonwealth Court concluded: In summary, because the commission commenced this proceeding in:1987 by notifying the petitioners that it was investigating them, they proceeding was in existence before Blackwell II, so that they only way that decision could affect the outcome of this case is if it fitted within the condition of retrospective application the Supreme Court set out in Blackwell V - -- that is, by having raised the constitutional revival issue on or before December 13, 1989. Because this case clearly does not fall within the conditions set out in Blackwell V for retroactive application, this court concludes that the respondents are entitled to summary judgment. Slip Opinion at 9, 10. Pugh's argument on sunset is unavailing under Zontek and we expressly reject it. We will now consider the allegation as to whether Pugh as the Engineer 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 continuation of employment or promotion. The record in this case reflects that Pugh has served as the Pittsburgh City Controller Engineer since January 1984 with duties and responsibilities of supervising the inspection of city construction projects in progress and prior to the City Controller authorizing the expenditure of funds. Pugh has also served as a political committee person and was active in 1983 regarding Tom Flaherty's attempt to obtain the democratic endorsement for the Push, 86 -136 -C Page 19 Office of City Controller. Flaherty was in fact elected Controller for the City of Pittsburgh in 1983 and was re- elected in 1987. After Flaherty directed Tiglio and Pugh to meet with the employees in the City Controller's Office, they did meet with approximately thirty employees of the City Controller's Office. The meetings occurred in a conference room of the Controller's Office during regular working hours for the purpose of soliciting political contributions from employees. for Tom Flaherty fundraisers. Prior to such meetings, the supervisors from each department of the City Controller's. Office were advised that employees would be called for conferences. The employees were then individually called into the conference room during working hours and solicited for campaign contributions for Thomas Flaherty. The specific employees and :the _circumstances as to the individual conferences are as follows. Attorney Anthony .Tedesco, while an employee in the City Controller's Office, was called in by Tiglio and Pugh and advised that every - employee was expected to give one percent of his salary to Tom Flaherty's campaign. Notes taken Tedesco of that conference contain the following in part: "Summer '85 - maced by S. Tiglio, D. Pugh, in conference -room - Tom expects every employee to give one percent of salary . . . ." Tedesco as an Assistant Management Auditor believed that giving the contributions was a prerequisite to continuing employment When City Controller's employee Shirley Deasy was called into the conference room, Tiglio or Pugh raised the matter of her giving one percent of her wages to Tom Flaherty's "coffer ". After Deasy advised that she had already purchased two tickets, Tiglio and Pugh indicated that one percent would be equivalent to paying union dues if she had worked elsewhere. Deasy also believed that the contribution was expected as part of her employment. Nancy Nazska who was the treasurer of Tom Flaherty's election campaign from 1985 to 1987 and an employee in his office as private secretary to the controller, confirmed that approximately 30 people were called into the conference room to meet with Tiglio and Pugh. Even Nazska herself was called into the conference room and was advised as to what she had given in the last fundraiser which left her with the impression that she was expected to give more. Mary Gratkowski, a City Controller's Office employee, was told by her supervisor, Christine Haffer, to go to the conference room where Tiglio and Pugh were present. When Gratkowski was told that she had not given any money and was asked to do so, she responded that she was not able to pay $250. Tiglio then indicated that she could make payments in three installments and that she should consider the payment as union dues. It was Gratkowski's belief that the possibility existed that she would be let go if she did Pucrh, 86 -136 -C Page 20 not contribute. While an employee in the Pittsburgh City Controller's Office, Richard O'Neil was an accounting manager. When O'Neil was told to go to the conference room, Tiglio and Pugh were present and asked O'Neil if he knew why he was there. O'Neil responded that he knew what was going on. Thereafter Tiglio and Pugh indicated that they wanted more money and contributions because people were not contributing or volunteering as to Tom Flaherty's political activities. James Cinque was an employee in the Office of Pittsburgh City Controller and held the position of Accountant II for budget. When Cinque was told to go to the conference room, Tiglio and Pugh were present and advised that the meeting was to raise money for Tom Flaherty's campaign. It was Cinque's belief that a contribution was expected of him. While a Pittsburgh City Controller's Office employee, Steve Verbanets, Jr., held various positions such as a CETA employee, auditor, payroll auditor and audit supervisor. When Verbanets was called by Nancy Nazska to go the conference room, Tiglio and Pugh were present and advised that they were trying to get more money for Flaherty's campaign. Verbanets was requested to pay $50 since he had already given $100. Scott Kunka was an performance auditor while he was an employee of the Pittsburgh City Controller. Kunka's supervisor received a telephone call for Kunka to go to . the conference room wherein Tiglio and Pugh were 'present. After Kunka was informed that he contributed $100, he was advised that the expectation was for him to contribute one percent of his salary. Since Kunka had contributed $100, he was told by Tiglio and Pugh that he was $50 short. Kunka was called in during normal office hours and it was his state of mind that the contributions were mandatory. Mary Hayes was employed by the Pittsburgh City Controller's Office as an auditor. When Hayes was asked by Nancy Nazska to go to the conference room, Tiglio and Pugh were present. After Tiglio advised that tickets had been sent through the mail, he noted that Hayes had purchased two tickets for $100 and that an additional $50 should be paid by Hayes. It was the impression of Hayes that she was expected to contribute. Hayes nevertheless refused to make the $50 contribution even though she was pressed by Tiglio on three separate occasions. Virginia Bruder- Murphy was an employee of the Pittsburgh City Controller initially as a clerk and then as Dick Pugh's secretary. The state of mind of Murphy was that Tom Flaherty's employees were expected to sell and buy tickets and in fact Murphy did receive and sell tickets. Pugh, 86 -136 -C Page 21 Gloria Novak is an employee of the Pittsburgh City Controller and works as a performance auditor. When Novak was called into the conference room to meet with Tiglio and Pugh, Novak was advised that employees were being asked for contributions. She was asked for $150. Novak did make notes of the meeting because someone said the solicitation was illegal. The state of mind of Novak was that she would lose her job if she did not-contribute. Robert W. Kubit was a Pittsburgh City Controller employee who asked City Controller employees for political contributions. Kubit testified that Tiglio and Pugh did engage in fundraising activities as to City Controller employees and Kubit believed that if he did not solicit contributions from employees, he would fall out of Flaherty's favor and _be terminated. While an employee of the Pereleman worked as a performance called to meet with Tiglio and Pugh told that they wanted to raise more help out by giving $100 in addition Pittsburgh Controller, Nancy auditor. When Pereleman was in the conference room, she was money and hoped that she would to what she had already given. When Ralph Horgan was an employee in the City Controller's Office, he worked as a performance auditor. When Horgan was asked to go to the conference room, Tiglio and Pugh were present and asked Horgan to contribute money to Tom Flaherty's fundraisers. Despite all of the testimony of the above current /former employees of the Pittsburgh City Controller's Office, both Tiglio and Pugh assert that the reason for the meeting with these employees was to tell them they were not compelled to purchase Flaherty fundraising tickets which the employees had received in the mail. As to the testimony of Tedesco, Deasy, Nazska, Gratkowski, O'Neil, Cinque, Verbanets, Kunka, Hayes, Krause, Murphy, Novak, Kubit, Pereleman, and Horgan, we find these witnesses to be credible. The testimony of the witnesses, many of whom are professionals with degrees, was consonant and compelling. These witnesses clearly discerned and knew, without equivocation, that they were being solicited for political contributions. In sharp contrast to the above, we do accept the =assertion by Pugh and Tiglio that the employees were called into the conference room for the purpose of advising them that they did not have to purchase the fundraising tickets that were received in the mail. We reject the testimony as a mere contrivance to explain away the real purpose of the employee conferences, namely, the solicitation of political contributions. In short, the weight of the evidence in this case, not only figuratively but literally (considering the consonant testimony of Puah,, 86 -136 -C Page 22 the numerous witnesses), compels our acceptance of their testimony and a rejection of the testimony of Tiglio and Pugh. In applying the above quoted provisions of Section 3(a) of Act 170 of 1978 to the instant matter, we find a clear cut violation of that provision of law by Pugh. In particular, there was a use of public office on the part of Pugh when he solicited employees in the City Controller's Office regarding the purchase of fundraising tickets for Thomas Flaherty's campaign fund. Pugh used his status as the Pittsburgh City Controller's Office Engineer during regular working hours in the offices of the Pittsburgh City Controller to solicit these campaign .contributions. Thus, it is clear that Pugh's status and 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 Pugh resulted in a financial gain to him individually which would be the continuation of his salary as City Controller's Office Engineer. Lastly, the financial gain was other than compensation provided for by law because there is no provision which allows for the solicitation of such contributions. The Home Rule. Charter for the City of Pittsburgh, Article 7, Paragraph 705 specifically bars. 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. In addition, Paragraph 706 prohibits elected officials, officers or employees from soliciting anything for any action in the course of public work. 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 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 prescribed by the Home Rule Charter. We therefore find that the financial gain in this case is compensation other than provided for by law. Accordingly, Pugh violated Section 3(a) of Act 170 of 1978 when he solicited the employees in the Pittsburgh City Controller's Office for political contributions. As to Section 3(b) of Act 170 of 1978, we are constrained to find no violation of this particular provision. 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 ,Duch, 86 -136 -C Page 23 individually, during working hours, summoned to a conference room wherein political contributions were solicited from them for 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 Pugh coupled with the mere tacit purchases of tickets in some instances 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 given 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 mustc,review 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 and on that basis we therefore find no violation of Section 3(d) of Act 170 of 1978. Because of the gravity of the conduct of Pugh in this case, we will refer this matter to the appropriate law enforcement authority. In addition, Pugh is reminded as to his future conduct that public office -is a public trust and that he should therefore comport himself accordingly. IV. CONCLUSIONS OF LAW: 1. Richard Pugh as the Engineer for the Controller of the City of Pittsburgh is a public employee subject to the provisions of Act 170 of 1978. 2. Pugh violated Section 3(a) of Act 170 of 1978 when he used public office to obtain a financial gain for himself by seeking political contributions from employees in the Pittsburgh City Controller's Office during normal working hours. 3. Pugh 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 Pugh solicited contributions based on the understanding that his official action or judgment would be influenced thereby. Pugh,, 86 -136 -C Page 24 4. Pugh 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 this Commission. In re: Richard Pugh • ORDER NO 867 : File Docket: 86 -136 -C : Date Decided: December 10, 1992 : Date Mailed: December 15. 1992 1. Richard Pugh as the Engineer 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 by seeking political contributions from employees in the Pittsburgh City Controller's Office during normal working hours. 2. Pugh 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 Pugh solicited contributions based on the understanding that his official action or judgment would be influenced thereby. 3. Pugh 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 this Commission. 4. This matter will be referred to the appropriate law enforcement authority. BY THE COMMISSION, DENNIS C. HARRINGTON, COMMISSIONER Commissioner Austin M. Lee did not participate in this matter because he acted as single hearing officer and recused himself pursuant to 51 Pa. Code §2.34(d). Commissioners James M. Howley, Chair, and Daneen E. Reese, Vice Chair, concur in part and dissent in part. In Re: Richard Pugh File Dockets: 86- 136 -C Date Mailed: December 15-, 1992 CONCURRING AND DISSENTING OPINION Although I concur in the finding of a violation of Section 3(a) of Act 170 of 1978, I must dissent from the failure by the majority of the Commission to find violations of Sections 3(b) and 3(d) of the Ethics Law. Sections 3(b) and 3(d) of Act 170 of 1978 provide: Section 3. Restricted activities. (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 n� 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 or candidate for public office would be influenced thereby. 65 P.S. §403(b). (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 5403(d). Section 3(b) prohibits any person from soliciting or accepting anything of value based on the understanding that the vote, official action or judgment of a public official /employee would be influenced thereby. Although Section 3(d) is very broad in allowing this Commission to address other possible areas of conflict, as a matter of practice the Commission has limited the scope of inquiry to appearances of conflict. In reviewing the evidence in this case, I believe that both Section 3(b) and Section 3(d) of Act 170 of 1978 have been implicated by the conduct of Tiglio and Pugh. In particular, as to Section 3(b), there was a clear understanding that political contributions were being exacted in return for the continuation of existing employment. The employees of the Controller's Office who were summoned to the conference room adjacent to the office of Tom Flaherty knew exactly that they were being called for the purpose of making contributions or additional contributions. See the testimony of Richard O'Neil (Fact Finding 25b(1)(a)(i)). In reviewing the individual testimony, Anthony Tedesco believed that giving the money was a prerequisite to continuation of employment. Shirley Deasy testified that contributions were expected as part of employment. Mary Gratkowski believed that she would be terminated if she did not contribute. Scott Kunka believed that the contributions were mandatory. Likewise, Mary Hayes testified that she believed that contributions were expected. It was the belief of Gloria Novak that she would lose her job if she did not make a contribution. Robert Kubit testified that if he did not solicit contributions he would fall out of Flaherty's favor and be terminated.. It is patently clear to me that an understanding did exist to the effect that Tiglio and Pugh solicited contributions from these employees based on an understanding that the payment of such contributions was inextricably linked to the .continuation of employment. The evidence in this case establishes the requisite elements for a Section 3(b) violation. As to Section 3(d), even if its applicability is limited, per the Commission practice, to a determination of whether an appearance of conflict existed, Section 3(d) is clearly implicated in this case. One need only review the Preamble of the Ethics Law which provides in part: "Public office is a public trust and . . . any effort to realize personal financial gain through public office other than compensation provided for by law is a violation of that trust." I strongly disagree with the interpretation of the majority of this Commission that an explicit "understanding" is necessary to sustain a violation of Section 3(b) of the Ethics Law. See, Commonwealth v. Cherpes, 360 Pa. Super. 246, 520 A.2d 439 (1987), appeal denied, 515 Pa. 612, 530 A.2d 866. Such an interpretation is not required from a literal reading of Section 3(b). Furthermore, such a construction would have the practical effect of eliminating any application of that Section, because parties who transgress this provision of law typically use a nod or "wink of the eye," rather than reduce their "understanding" to a written or verbal statement of the specific, agreed exchange. Such a strained interpretation of Section 3(b) is inimical if not to the letter, then to the spirit of the Ethics Law. James M. Howley Daneen E. Reese, Vice Chair, joins in the Opinion of James M. Howley, Chair.