Loading...
HomeMy WebLinkAbout779 HitchingsIn re: Thomas W. Hitchings • STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 87 -189 -C : Date Decided: December 14, 1990 : Date Mailed: Jprniary 3. 1991 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. Written notice, of the specific allegation(s) was served at the commencement of the investigation. Order Number 679 was issued on October 13, 1988. The above respondent on November 12, 1988 filed a petition for review from Order 679 in Commonwealth Court at 2631 C.D. 1988. Thereafter in Hitchings v. Commonwealth of Pennsylvania, State Ethics Commission, Pa. Commw. Ct. , 563 A.2d 988, 1989, Commonwealth Court vacated Order 679 and remanded the case for a hearing. Respondent filed an Answer dated October 28, 1989, to the findings in Order 679. In addition, respondent requested a continuance which was granted and a change of venue to Pittsburgh which was denied. Respondent filed a petition for review from the venue denial in Commonwealth Court on November 28, 1989 at 2265 C.D. 1989. Following the filing of a motion to quash, the petition was dismissed. A second request for continuance was requested by respondent and granted. A hearing was held in Pittsburgh on September 24 and 25, 1990. 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 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 S2.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one unless the right to challenge this Order is Page 2 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). ADJUDICATION I. Allegation: That Thomas W. Hitchings, a Captain with the Pittsburgh Fire Department and Chief Arson Investigator, violated the following provision(s) of the State Ethics Act (Act 170 of 1978) when he used his public position, the work product of that position and /or confidential information obtained through his public position when he acted as a paid private consultant to a law firm representing one of the parties in a law suit regarding a fire at the Arcade Theatre that_ he had investigated in his public position; and in that he failed to file a Statement of Financial Interests: II. Findings: 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. 5403(a). Section 4. Statement of financial interests required to be filed. (a) Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1, of each year that he holds such a position and of the year after he leaves such a position. Any other public employee shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. 5404(a). 1. Thomas W. Hitchings (Hitchings) was employed by the City of Pittsburgh Fire Department as a Platoon Captain for Engine Company No. 24. a. He had served in that position since about March, 1988. b. Prior to that position he served as a fire captain assigned as an investigator with the Arson Strike Team in Pittsburgh. c. He served in the former position since 1981. Thomas W. Hitchings Page 2 d. After retiring from the Pittsburgh Bureau of Fire, he is currently employed by the Allegheny County Office of Fire Marshall. e. Hitchings has never filed a Statement of Financial Interests. 2. On February 5, 1984, a fire occurred at the Arcade Theater, 1915 East Carson Street, Pittsburgh, Pennsylvania. a. One of the owners of the Arcade Theater was Stanley Kramer (Kramer). 3. Kramer initiated a law suit against several individuals and entities as a result of a televised broadcast regarding fires in the City of Pittsburgh including the fire at the Arcade Theater. a. This suit included Westinghouse and KDKA -TV. b. This suit was based upon comments during the broadcast that the fire was caused by arson and the owners may have been involved. 4. Kramer also initiated a law suit against the insurance company that issued the fire insurance coverage for the Arcade Theater. a. This suit was based upon the insurance company's refusal to pay the insureds' claim. b. A decision in the U.S. District Court for the Western District of Pennsylvania upheld the insurance company in refusing to pay the claim of the insureds. 5. A subpoena was issued to Hitchings in his capacity as an employee of the City of Pittsburgh in the matter of Stanley Kramer et. al. v. Standard Life Insurance Company et. al., 84 -2940 U.S.D.C., Western District of Pennsylvania. a. The subpoena was issued upon the application of the defendant. b. His appearance was directed for November 16, 1987. c. He was paid a $30 witness fee from the operating account of James, Gregg, Creehan.& Gerace (counsel for defendant) as a result of his appearance. Thomas W. Hitchings Page 3 6. Records of the City of Pittsburgh Fire Department indicate that Hitchings filed a memo addressed to Chief Charles Lewis, dated March 5, 1984 regarding the fire at the Arcade Theater, incident NO. 1134. a. This report indicates that as part of his official duties as a Captain in the City of Pittsburgh Fire Department, he was called at home and advised of the progress of the fire. b. He proceeded to the fire site and the report outlines his observations upon his arrival. c. His report indicates his conversations with theater owners and other investigative steps that were taken including taking photographs, requesting assistance from the city electrical engineer and reviewing the building. d. The report further outlines post fire investigative activities. 7. By way of letter dated August 26, 1986 from George E. Yokitis of the firm of Alder, Cohen & Grigsby, a check in the amount of $650 was forwarded to Hitchings for providing services in the matter of Kramer v. Westinghouse et. al. a. Payment was made by way of check No. 3393 on the account of Alder, Cohen & Grigsby, P.C., account No. 221840 at the Pittsburgh National Bank payable to Hitchings in the amount of $650. 8. Dante Pellegrini, Esquire, Solicitor for the City of Pittsburgh, provided the following information in relation to this situation. a. It was possible that his office told...[Hitchings that he] could bill law firms for...[his] services. b. There is nothing wrong with this arrangement. c. The City saves money because employees are constantly called to testify in private civil litigation in which the City is not involved and the City should not have to pay for this. d. If called, Judge Pellegrini would testify that the reasoning behind the opinion he set forth...was that to prohibit city employees from testifying as experts would impugn the truth finding process of the courts Thomas W. Hitchings Page 4 and that he knows, as a litigator, that an expert witness must prepare a report and appear often times in court and that you cannot compel an expert witness to prepare a report and appear without reasonable compensation, based on a number of factors...and that _ the city would not pay that because the city was not involved and therefore, he believed that to deny the expert witnesses the right to do that would impugn the truth finding process. 9. John Harpur is one of six Deputy Fire Chiefs for the City of Pittsburgh. a. He is also one of four suppression chiefs detailed to the fire prevention division. b. As well as being in charge of a platoon with suppression duties, he is detailed 50% of his time in coordinating fire prevention activities. c. The City of Pittsburgh is divided into six battalions with a battalion chief in charge of each. d. A fire captain is in charge of a fire company. (1) He is the supervisor of the station. (2) He is in charge of the crew members who respond with him. e. During the time in issue, Thomas Hitchings was employed by the Bureau of Fire of the City of Pittsburgh. (1) In 1984, Hitchings was employed as a Captain in the Fire Prevention Bureau with duties in the area of fire arson investigation. f. An officer at the scene of a fire may request a fire arson investigator. (1) The investigator surveys a scene to determine where the fire started and what was the cause, that is, cause and origin. g. A fire arson investigator requires specific training. (1) He must know the elements of cause and origin. (2) He would also be involved with arson for profit, white collar crime and insurance fraud cases. Thomas W. Hitchings Page 5 h. An arson fire investigator must file two reports as to his work assignments. (1) One report is UFIRS, Uniform Fire Incident Report,- which is a format report containing the basic elements of the investigation. UFIRS is available to the public. (2) A second report is a more detailed comprehensive report which becomes part of the record. (a) This report is on a form which is narrative in style. (b) The second report is private and confidential. (c) It provides the summation of the investigator's findings in a particular case. (d) The fire arson investigator has discretion as to the content of the report wherein he uses his expertise in making an analysis and reaching a final result. i. At the time of the Arcade Theatre fire, Hitchings spent the majority of his time as a full -time fire arson investigator and investigated that fire. 1. (1) He was in charge of the fire investigation and would supervise all activities in that regard. He was the supervisor of Hitchings who worked a daylight shift from eight to 4:30 or 5:00. k. Hitchings position was titled Roving Captain whereby the fire department chief had broad discretion as to assignments. (1) Roving captains can be assigned to fire prevention, fire suppression or training school instructor. 1. There is a rotating call -out procedure for fire and arson investigators with one fire and one police personnel forming a team. (1) An investigator has no discretion as to which fire he will investigate. Thomas W. Hitchings Page 6 (2) A fire investigator reports directly to the incident commander. m. He holds an Associates Degree in fire science, a Bachelor's Degree in business and economics with major concentration in fire administration and science and has studied in the area of cause and origin as to fires. n. The narrative report filed by the arson fire investigator is available through subpoena power to attorneys involved in civil litigation. o. Some flexibility in working time schedule could exist if an arson fire investigator worked all night on a case and was scheduled for normal duty at 8:00 a.m. (1) The investigator would stay on the scene of an investigation and complete his work even if it were beyond his normal duty time. Hitchings may have accrued substantial quantities of informal time gained on fire investigation scenes without charging the City although there are no records which would so reflect. P• The civil service laws as to second class cities apply regarding discipline, transfers and promotions to deputy chiefs down to fire fighters, including but not limited to captains. (1) The above positions are within the labor bargaining unit represented by the firefighters union. (2) In Philadelphia, the fire officers have their own union and do not belong to the general bargaining unit. r. A fire arson investigator performs his work in the office and in the field. (1) As to the fire scene and the interviews of witnesses, such work is done in the field. (2) Hitchings had a supervisor part of the time but generally not. Thomas W. Hitchings Page 7 (3) If the investigator determines cause and origin to be suspicious, he can refer the matter to federal or other agencies. s. Hitchings had authority to make a final determination as to cause and origin which would be sent to the bureau chief. t. Arson for profit is an economic crime of major proportions in the U.S. The problem is combatted in part by cooperation of public officers /fire arson investigators with individuals in civil litigation involving the target of the investigation. u. A fire arson investigator has the first opportunity to review a fire scene before access is available to the general public. v. In the criminal trial as to the arson at the Arcade Theatre, Hitchings testified as a city employee/ investigator. w. It is his opinion that Hitchings is outstanding in qualifications as a fire arson investigator. 10. George Yokitis is a licensed practitioner and partner in the firm of Babst, Calland, Clements and Zomnir. a. Prior to his association with the above law firm, he was a partner in Alder, Cohen and Grigsby. b. Relative to the fire at the Arcade Theatre, he represented KDKA TV in Pittsburgh. The case was a defamation action commenced by Stanley Kramer against KDKA as to a story it ran concerning the Arcade Theatre fire. Hitchings was hired to testify at a fee of $50 per hour that the Arcade Theatre fire was caused by arson. An accountant was hired to testify regarding the financial condition of the Arcade Theatre, a realtor as to the value of the theatre and an individual who taught FBI school as to arson for profit. (4) Hitchings and the three other individuals each prepared reports as to what they would testify. Thomas W. Hitchings Page 8 (5) Hitchings was paid $650.00 for his services. (6) Reports were prepared due to the judicial requirement that they be produced as part of a pre* trial statement. (7) Hitchings prepared a report dated March 31, 1986, under the letterhead of Thomas Hitchings Consultants. (8) There was no legal requirement to use Hitchings in the case. (9) Any person qualified in fire cause and origin could prepare such a report. (10) Hitchings was the best evidence available on the issue of cause and origin. (11) Files used in the case from the Pittsburgh Fire Department were obtainable for the parties in the case. 11. Edward C. Flynn is a licensed practitioner employed by the law firm of Katarincic and Salmon. a. From 1983 to 1986, he was employed by the law firm of Alder, Cohen and Grigsby. b. As to the Arcade Theatre litigation, he was assigned to assist in preparing the report on the cause of the fire. (1) He met with Hitchings to discuss and assist -in preparing the request. (2) A meeting with Hitchings occurred on March 18, 1986 which was confirmed by a letter of that date. His daily calendar for March 18, 1986, reflects a notation of a meeting with Hitchings at 1:30 p.m. 12. George Bates is a Pennsylvania State Trooper assigned to Troop A, Greensburg, Pennsylvania. a. Of his 23 years of service with the State Police, the last twelve have been in the capacity of Fire Marshall. (3) Thomas W. Hitchings Page 9 g. b. His duties as Fire Marshall are to determine cause and origin as to fire investigations. c. In his position, he would generically be classified as a detective. d. As to fire investigations, the procedure is to locate the point of origin. If arson, an investigation would be made to identify the person who set the fire. A report would be prepared reflecting observations at the scene of the fire, witness interviews, firefighters, the building owner(s) and conclusions as to cause and origin. (4) If a suspect is arrested, he would follow the case through pretrial and prosecution. e. He knows Hitchings since 1989 and his reputation as a fire and arson investigator. f. Fire Marshalls for the Pennsylvania State Police testify as expert witnesses in civil cases involving fires in which the State Fire Marshall was the investigating official for the State Police. (1) They are compensated for their service in civil actions by being listed as working on that day by the State Police. After origin is established, a determination is made as to whether the fire was arson, accidental or undetermined. (2) The Pennsylvania State Police has department regulations regarding testifying at civil or criminal court proceedings. He performs his duties in the field primarily without on site supervision. (1) Wide discretion is allowed as to how to conduct the investigation. (2) He has the power of arrest if he has probable cause that an individual has perpetrated arson. Thomas W. Hitchings Page 10 h. If subpoenaed by a private litigant, he could appear and receive a witness fee provided he received no compensation for that day from the Commonwealth. (1) He could not receive payment for preparing a report for private litigants. (2) He would be only entitled to a witness fee and expenses. If he were subpoenaed for a non -duty situation, he would not be listed and paid as on duty. (4) He would not receive payment as on duty from the Commonwealth if he were acting as a private expert. He would be prohibited from accepting a private fee as an expert witness to testify about conclusions made as to a fire he investigated as part of official duties. (6) It would be a conflict of interest to set up a business as a private consultant or expert witness for firms involved in litigation relative to fires he investigated in an official capacity. i. As a fire investigator, he filed a Statement of Financial Interests. 13. William J. Petraitus is a special agent employed with the Bureau of Alcohol, Tobacco, Firearms (ATF) in the U.S. Treasury Department. a. His assignment is arson for profit and he is attached to the Pittsburgh Arson Group. b. AFT investigates fires where accelerants are used and thus offers assistance to state and local departments in their fight against arson. c. He has worked with Hitchings on a regular basis since 1981. d. In 1989 a task force was established with the City of Pittsburgh whereby there would be a joint response to fires of a pre - determined magnitude. e. He worked with Hitchings on the investigation of the Arcade Theatre fire. (3) (5) Thomas W. Hitchings Page 11 J. (1) Two days were spent on excavating the scene, interviewing first -in firefighters, the owners and other people. (2) After the above activity, another agent in the ATF office was assigned to work with Hitchings on the investigation. f. About the same time, he worked with Hitchings on other fire investigations during the following five year period. g. A decision was made to establish national response teams to investigate major arson cases throughout the country. (1) ATF selected ten individuals from other governments. (2) Hitchings was one of the ten individuals chosen by ATF. h. He has received training and education in the field of arson investigations and has the competence to do cause and origin investigations. i. Hitchings reputation is one of high respect nationwide. He would be classified as a detective. k. At the Arcade fire, Hitchings did not have anyone at the site of the fire instructing him in performing his duties. 1. As part of the City of Pittsburgh Arson Squad, Hitchings had the power of arrest and did participate in arrests as to various arsons. 14. Carla Gedman is employed by the City of Pittsburgh as Assistant Chief in the Office of Professional Responsibility (OPR). a. In 1987 and 1988, she was at that time a civilian investigator in the Office. b. OPR investigated Hitchings' behavior regarding being paid for services by Alder, Cohen and Grigsby relative to the Arcade fire. Thomas W. Hitchings Page 12 (1) The case file was F- BI -7 -88. (2) The scope of the investigation was to determine whether any department general orders had been violated. (3) There was not sufficient evidence to find misconduct and the case was closed as not sustained. (4) The Office serves as fact finder and has no input as to discipline. (5) A report was prepared which included all documentation in the case. (6) The report after the case is closed is sent to the bureau chief and Director of Public Safety for approval or disapproval. (7) The investigation had a rather narrow scope. (8) The report did not find that the complaint against Hitchings was unfounded and the report did not exonerate Hitchings. (9) The report reflects that Hitchings was in charge of all fire and arson investigations in the City and supervised the investigation team consisting of the Fire Bureau and ATF. (10) The investigation considered Departmental procedures but not the city charter. (a) Section 705 if the Home Rule Charter provides that 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. (b) It is stated in Section 706 in part that no elected official, officer or employee shall solicit or receive any compensation, gratuity or any thing for any acts done in the course of public work... (11) No one informed her nor did she reach a conclusion that any person paid for work by the City can not receive other compensation for this work. Thomas W. Hitchings Page 13 (a) She was the investigator who recommended findings. (b) She is not an attorney. (c) Her supervisor who is an attorney would have the final say. (12) The Ethics Law was not considered in the analysis of the case. (13) She interviewed Hitchings as part of the investigation as to his conduct. (a) In response to a question as to how he (Hitchings) was engaged for services by the law firm, he responded that he was subpoenaed for a deposition and thereafter engaged for testimony as to cause and origin. (b) The law firm sought the services of Hitchings. (c) Hitchings' opinion was formed when he was hired by the law firm. (d) The law firm did not have a file for Hitchings to read. (e) In response to a question as to when Hitchings did the work, he stated that it was done after normal working hours and on a vacation day. Hitchings used his personal files from the original investigation regarding performing his services for the law firm. (f) (14) The complaint against Hitchings was bureau initiated. (15) The investigator does not make the final disposition as to an investigation. c. An unwritten policy existed in the City of Pittsburgh as to city employees receiving fees for testifying in litigation. Thomas W. Hitchings Page 14 (1) The City law department opined that anyone receiving a fee for services in litigation should seek permission from the law department and notify his supervisor. (2) Such work could not be on City time and, if so, the fees would have to be relinquished. 15. James J. Malloy is a Sergeant in the Pittsburgh Police Department. a. Prior to his assignment as a sergeant in Zone 4, he was assigned to the Pittsburgh Arson Investigation Unit. (1) He had occasion to investigate arson. (2) He was generally considered a detective. (3) He worked with Hitchings as a plain clothes investigator. (4) His expertise was not in the area of cause and origin but in the area of identifying the perpetrator. b. When a first fire chief or assistant chief arrived at a fire that was an arson case, they called Hitchings who would in turn call out James Hays and himself (Malloy). c. Following a series of fires, the Pittsburgh Arson Strike Force was formed. (1) The force consisted of Hitchings, Hayes, himself and another firefighter. (2) The teams were two men consisting of a policeman and fireman. Since these teams were in plain clothes, one could not distinguish, without an identifying badge, as to who was the policeman and who was the fireman. (4) Hitchings made a decision as to whether a fire was arson and he (Malloy) made the decision whether to arrest. (3) d. As to the Arcade fire, Hitchings played a role from beginning to end as to the collection of evidence and interviewing witnesses. Thomas W. Hitchings Page 15 e. Severe economic consequences result from arson. f. In the field he and Hitchings had wide discretion as to conducting their investigations. A detective in a crime unit employs expertise in the conduct of an investigation. 16. The private confidential report, as outlined in Fact Finding 6, filed by Hitchings as to his investigation of the fire at the Arcade Theatre reflected the following progression: a. At 3:07 a.m. on February 5, 1984, Hitchings is notified of the three alarm fire. g. b. At a given point, while enroute, Hitchings was able to observe the fire in the roof area of the building. c. Hitchings arrived at the scene at 3:36 a.m. at which time the blaze was a four alarm fire. d. A large fire existed at the rear of the stage area and roof. e. One door of the building was found to have glass removed prior to the fire. f. There was little smoke damage in the lobbies and seating area. Fire was observed in the front three or four rows of seats. Fire was not seen in front until the screen burned through. g. The building and roof collapsed at 3:50 a.m. h. After Hitchings learned that the theatre manager was present watching the fire, he requested the police to take the manager's statement. i. Hitchings met with the owners of the building at 4:00 a.m. and told them of the suspicious nature of the fire. . At 7:00 a.m. Hitchings requested the owners to accompany him into the building to check for possible burglary but all doors were locked and there were no signs of burglary. k. When questioned, the owners advised that no flammable liquids were stored in the theatre but there were about five gallons of flammable liquids in the basement. i Thomas W. Hitchings Page 16 1. Natural gas was eliminated as a cause because the point of origin showed no evidence of a natural gas fire. m. Although the area of origin contained a large amount of electrical equipment, the report by the City Electrical Engineer eliminated electricity as a fire cause. n. After taking pictures and evaluating the fire damage, Hitchings left the fire scene at 1:00 p.m. on February 5, 1984. The owners were requested to sign a consent for a search. o. The investigation team for the fire was Hitchings, Robert Friel from the Pittsburgh Fire Department and Agents Perlick, Giancola, Gruce, Wallington, Petraitis and Morrissey from the Bureau of Alcohol, Tobacco and Firearms. p. The point of origin of the fire was determined to be the rear of the stage of the theatre where evidence showed a distinct flammable liquid pattern. q. The spread of the fire was both vertical and horizontal in the theatre. r. The evidence reflected a fast intense fire similar to that of a flammable liquid used as an accelerant. s. Hitchings eliminated natural /accidental causes and concluded incendiary- suspected arson. t. The report contains a diagram of the theatre from different perspectives. u. The report contains findings from the Department of Laboratories, Forensic Science Section. v. The consent form signed by the owners of the theatre is part of Hitchings report as well as reports from the Allegheny County Crime Laboratory, Bureau of Building Inspection and from K-Chem Laboratories. 17. The personal leave records for 1986 for Hitchings reflect the following: a. Hitchings is listed as working a full day on March 18, 1986 with no leave. Thomas W. Hitchings Page 17 b. Hitchings took leave on March 31, 1986 for the full day as a vacation day. c. Hitchings is listed as working a full day on March 24, 1986 with no leave. 18. The personal appointment calendar of Edward C. Flynn, Esquire, of the law firm of Alder, Cohen and Grigsby reveals a consultation between Hitchings and Flynn on March 18, 1986 at 1:30 p.m. a. A meeting date with Hitchings on March 17, 1986 at 9:00 a.m. is crossed out. 19. In a letter dated March 18, 1986, Edward C. Flynn, Esquire of the law firm Alder, Cohen and Grigsby acknowledges meeting with Hitchings on March 18, 1986, confirms retaining Hitchings as a consultant at $50.00 per hour and requests a written opinion from Hitchings as to the fire at the Arcade Theater regarding his investigation and the nature of the origin of the fire. 20. Hitchings on private stationary captioned in part as "Consultant Fire Origin and Cause" dated August 19, 1986, to George E. Yokitis, Esquire of the firm of Alder, Cohen and Grigsby acknowledges a two hour consultation on March 18, 1986, a two hour report preparation on March 24, 1986 and a nine hour consultation on March 31, 1986. 21. Hitchings performed private services for the law firm of Alder, Cohen and Grigsby on March 18, 1986, during his working hours as an employee of the City of Pittsburgh. (Fact Findings 11, 17, 18, 19, 20). 22. On private letterhead captioned in part as "Thomas W. Hitchings Consultant Fire Origin and Cause" dated March 31, 1986, Hitchings submitted a report to Edward C. Flynn, Esquire of the law firm of Alder, Cohen and Grigsby summarizing his conclusions as to the Arcade Theater fire. a. In preparing the report, Hitchings reviewed his own investigative file, including his own personal reports, police reports, reports of the first arriving fire units, reports of the city electrical inspector and photographs and drawings of the scene. b. Hitchings recites that he was the officer in charge of all fire and arson investigations in the City of Pittsburgh and notes the progression of the fire. Thomas W. Hitchings Page 18 (1) Hitchings was called at 3:07 as to the (theatre) fire. (2) Hitchings arrived at the scene of 3:36. (3) On his way to the scene, Hitchings was able to observe the fire. (4) The fire was spreading rapidly and was coming through the roof of the building. The building collapsed within a short time of Hitchings' arrival. (6) Prior to the collapse of the theatre, Hitchings observed the interior to determine the area of origin which was in the stage area. Hitchings interviewed the first arriving fire units and police personnel as to the stage of the fire and security of the building. There was a large amount of fire behind the screen as well as in the first three rows. Hitchings spoke to the theatre owners concerning flammable materials but none were stored in the area of origin. (10) Hitching learned from fire units and police that all doors were securely locked. (11) Hitchings supervised the investigation team from the Pittsburgh Fire Bureau and Federal Bureau of Alcohol, Tobacco and Firearms. (12) The point of origin of the theatre fire was the rear stage area. (13) The burn pattern showed a fast intense heat similar to that found from a liquid -type accelerant. (5) (7) ( (9) (14) Evidence taken at the scene consisted of photographs, drawings and three samples of fire debris. (15) Hitchings assisted the Pittsburgh Police detectives and ATF agents and later testified in Thomas W. Hitchings Page 19 the trial of Donald Gainer who was accused and convicted of setting the Arcade Theatre fire. (16) Hitchings concluded that he eliminated natural /accidental causes of the fire; it was his-" opinion that the fire was deliberately set as a result of arson. 23. The Pittsburgh Home Rule Charter provides in part as follows: a. Employees of the City are prohibited from engaging in political activity during working 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 any purpose during working hours. Nothing contained in this section shall affect the right of the city employees to support a political party, to vote as they choose, to hold party office or to express publicly and privately their opinions on political subjects and to attend political meetings. b. Any person paid for work by the City is not to receive any other compensation for this work. This is an anti- corruption provision and provides a stiff penalty for violators. c. No elected official, officer or employee shall in any manner receive benefit from the profits or emoluments of any contract, job, work or service for 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 any compensation, gratuity or other thing for any act done in the course of public work. This section shall be broadly construed and strictly enforced. Any violation of the section shall cause the offending official, officer, or employee to forfeit office or employment. Thomas W. Hitchings Page 20 24. In a memorandum dated April 13, 1989, from D.R. Pellegrini, Pittsburgh City Solicitor to the Mayor, members of City Council, Department heads and other individuals of the City of Pittsburgh, an opinion was expressed as to those individuals in Pittsburgh City government who were required to file Statements of Financial Interests (FIS) under the Ethics Act. a. The memorandum sets forth the statutory definitions of public official /employee and regulations of the State Ethics Commission as to those terms. b. A listing of positions is included where individuals in those positions should file FIS's. c. The memorandum includes the following as to fire /police personnel: "The Pennsylvania Ethics Commission has also ruled that all police management employees, including some Police Sergeants and Fire Captains, must file. Those fire and police personnel who belong to a union should consult with their union as to whether they are required to file." 25. The United States Court for the Western District in Pennsylvania requires pretrial statements as to witnesses who will be testifying in a case pending in that court. 26. The Pennsylvania State Police has duty provisions regarding appearances at court proceedings by Pennsylvania state policemen. a. The purpose of the provision is to establish rules for the payment of expenses by personnel who are subpoenaed or required to testify in court proceedings. b. The provision considers non -duty testimony and duty related testimony in civil or criminal court proceedings. c. Notification requirements and expense limitations are established. d. Personnel subpoenaed to appear at civil court proceedings resulting from duty related matters are deemed to be in regular employment status with certain expenses but with no demands for witness fees. Thomas W. Hitchings Page 21 27. The Office of Professional Responsibility (OPR) of the City of Pittsburgh conducted on investigation, Number F -BI #7 -88 into the conduct of Hitchings as to whether departmental procedures were transgressed as to Hitchings' services for a law firm relative to his investigation of the Arcade Theater fire. a. The case investigator was Carla Gedman. b. The case was closed as "Not sustained ". c. The Final Report contains in part a Report on Investigation. (1) A factual summary sets forth a background as to the case. (2) The scope of the inquiry is set forth which considers whether Hitchings acted within departmental operating procedures. (3) The report reaches findings and a recommendation. (a) Hitchings had law department approval. (b) No departmental procedure orders were found by OPR to be violated based on its conclusion that Hitchings' "consulting" work was done on his time. (c) A recommendation was made "to address the issue of a departmental policy regarding the parameters of expert witness participation." (4) The report included five appendices: (a) State Ethics Commission Complaint. (b) Hitchings Report from Attorney G. Yokitis. (c) Case File notes. (d) Captain Hitchings Statement. i). Hitchings made the following statements which he consented to have recorded on tape. a). Hitchings was retained by the law Thomas W. Hitchings Page 22 firm after he was first subpoenaed for a deposition. b). A report was put together by Hitchings for federal court wherein: he stated that he relooked at his file and notes. c). The law firm did not have a file for Hitchings to review. d). The opinion of Hitchings was formulated through his investigation at the scene of the Arcade Theatre fire. e). Hitchings engaged in "consulting work" on other occasions relative to investigations on which he worked. f). Hitchings stated that he did the private work on his own time and not on Pittsburgh City time. g). The law department advised Hitchings "[t]hat if it was not on city time, that...[he] could charge them an expert witness fee." h). Hitchings did not testify because the case was settled out of court. i). After Hitchings filed his report with the firm, he was asked to submit his bill. (e) Pittsburgh Press Article[s]. III. Discussion: Thomas W. Hitchings (Hitchings) was a Captain with the Pittsburgh Fire Department and Chief Arson Investigator between 1981 and 1988 when he became a Pittsburgh Fire Department Platoon Captain. Hitchings continued in the latter position until his retirement and subsequent employment with the Allegheny County Office of Fire Marshall. Hitchings however contends that he was not a public employee as that term is defined under the Ethics Act and therefore is not subject to the jurisdiction of this Commission. Initially, it is noted that Section 5 of Act 9 of June 26, 1989 provides, in part, as follows: Thomas W. Hitchings Page 23 "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 October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. The term "public employee" is defined under Act 170 as follows: Section 2. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. 65 P.S. §402. The regulations of the Commission define public employee as follows: Section 1.1. Definitions. Public employe - -- (i) The term includes any individual: (A) who is employed by the Commonwealth or a political subdivision and who is responsible for Thomas W. Hitchings Pacje 24 taking or recommending official action or a nonministerial nature with regard to: (I) contracting or procurement; (II) administering or monitoring grants or subsidies; (III) planning or zoning; (IV) inspecting, licensing, regulating, or auditing any person; or (V) any other activity where official action has greater than a de minimis economic impact; and (B) who meets the criteria of either subclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on- site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or Thomas W. Hitchings Page 25 (ii) employed by the Commonwealth in duties. ( actions: ( -4 -) makes final technical recommendations; and whose recommendations or ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. The term does not include individuals who are Commonwealth or a political subdivision of the teaching as distinguished from administrative (iii) Persons in the positions listed below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (D) Solicitors, engineers, managers, and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, sewer enforcement officers, and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. Thomas W. Hitchings Page 26 (F) School business managers and principals. (iv) Persons in the positions listed below are generally not considered public employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerk of the schools. 51 Pa. Code §1.1. In Coyle, Opinion 82 -013, we considered whether various members of the Philadelphia Police and Fire Department were public employees subject to the filing requirements of the Ethics Act. In the cited case we found that fire lieutenants and captains who were equivalent to police unit commanders or who served as supervisors as to the on- site inspection were public employees subject to the filing requirements. In addition, in Garland, Opinion 89 -004, we held that an investigator in the Pennsylvania Department of State was a public employee subject to the filing requirements of the Ethics Act. In applying the above statutory definition, regulation and prior precedent to the instant matter, we note that Hitchings was a captain in the fire department and a chief arson investigator. Thus, he worked in the field without supervision and by his own written admission he supervised other personnel on the team from the Alcohol, Tobaccc and Fire Federal Bureau as well as the Pittsburgh Fire Bureau. Hitchings also had the power to make conclusions or recommendations as to cause and origin of fires. Since Hitchings as an arson investigator performed inspections, his activities fall within the category of "inspecting" contained in the definition of public employee. In addition, considering the major economic impact of arson, his actions have "an economic impact of greater than a de minimus nature on the interests of any person." As to the regulation on the definition of public employee, Hitchings' duties of working in the field without on -site supervision coupled with his supervision of others, places him within the definition under Section (i)(B)(I). Since we are directed to liberally construe the applicability of the Ethics Act in applying the definition of public official /employee Thomas W. Hitchings Page 27 and conversely narrowly construe exclusions as to those terms (Phillips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984)), we find that Hitchings was a public employee as that term is defined in the Ethics Act. Parenthetically, the fact that Hitchings has not filed Financial Interests Statements is not dispositive as to the above issue. Having established that Hitchings was a public employee subject to the provisions of the Ethics Act, we now must address a motion for dismissal filed by Hitchings which presents three separate arguments which we will consider seriatim. The first ground for dismissal concerns a contention of a violation of the confidentiality requirements of the State Ethics Act, 65 P.S. §408. In particular, it is argued that the Commission staff disclosed the investigation and Order 679 to the public and news media, that staff of the Commission released the Complaint originally filed to a reporter with the Pittsburgh Post Gazette and that staff has warned potential witnesses not to discuss the investigation with any other person which has obstructed the development of the case by Hitchings. The assertion that Commission staff has disclosed the investigation is not supported by any evidence other than the publication of the newspaper articles. This Commission and its staff rigidly adhere to and follow the statutory requirement of confidentiality. Nears, Order 613 -R. Regarding the dissemination of Order 679, since no request for reconsideration was made within the fifteen day period of that Order, the order was made public as per the direction of Section 8(a), 65 P.S. 408(a). As to the matter of the filing of the Complaint or its release to a reporter with the Pittsburgh Post Gazette, the fact that a reporter received a copy of the Complaint does not establish that it was released by a member or staff of the Commission. Lastly, as to the assertion that the Commission staff is intimidating witnesses and obstructing Hitchings investigation by warning of the confidentiality requirements, such amounts to nothing more than staff following the statutory requirements of confidentiality contained in the Ethics Act. Accordingly, we deny the first ground in the motion to dismiss. Turning to the second ground for dismissal, Hitchings asserts that this Commission has prejudiced his case by already having found him in violation of the Ethics Act and by recommending that the Attorney General proceed with a criminal prosecution. This second argument is dispelled by the fact that the Commission is proceeding in this case as per the direction of Commonwealth Court in Hitchings v. Commonwealth of Pennsylvania State Ethics Commission, Pa. Commw. _ 563 A.2d 988 (1989), wherein Order 679 was specifically vacated and this case was remanded for hearing before this Commission. That decision of Commonwealth Court was final and this Commission scheduled a hearing in Pittsburgh on September 24, and 25, 1990, to comply with that decision. We therefore deny the second ground for dismissal Thomas W. Hitchings Page 28 since this Commission has followed the direction of Commonwealth Court in Hitchings v. State Ethics Commission, supra. As to the Office of Attorney General, such is an independent elected office wherein the holder exercises his powers and duties relative to matters within his jurisdiction. _ The third and final ground for dismissal is an argument that there has been a commingling of investigatory /Prosecutorial and judicial functions which has deprived Hitchings of a fair hearing. The proffered basis for this alleged commingling relates to correspondence which has been sent by Hitchings' counsel to the Commission addressed to one staff member with a responsive letter sent by another. The by staff establish the lack of any commingling in this case because letters which relate to the investigation and the prosecution must be considered by the Investigative Division; if Hitchings addressed that matter to the adjudicatory side of this agency, that person properly would forward it to the Investigative Division for their review. Conversely, when matters which were within the province of the adjudicatory branch, such as requests for continuances and changes of venue, were addressed to the Investigative Division, that division properly forwarded the letter to the adjudicatory side of the agency which has the responsibility of addressing such matters. Thus, the third argument regarding alleged commingling consists of a boot strap argument whereby misdirected letters by Hitchings' counsel are used as a basis for arguing that there was a commingling of prosecutorial/ adjudicatory functions. In further support of the claim of commingling, a litany of sections from the Ethics Act and Regulations are cited for the purpose of establishing commingling. The flaw in such an argument is twofold. First, the approach looks at all agency operations, such as advisory opinions which by their very nature can not involve commingling issues, rather than limiting the concern to the investigative function. Secondly, if the investigatory process is considered, the separate and distinct functions of the Executive Director in the prosecutorial role and Chief Counsel as legal advisor to the Commission in performing its adjudicatorial function can not create an institutional commingling since these individuals are separately employed by the Commission and are independent and autonomous of each other. If a commingling were to exist under these circumstances, then such an institutional flaw must exist as to all similarly situated administrative agencies such as the PUC and the licensing boards of the Department of State. Turning to a consideration of the commingling issue from a factual rather than institutional analysis, the fact that the Executive Director prosecutes the cases before the Commission as the prosecuting attorney in the Investigative Division and the Chief Counsel serves as legal advisor by sitting with the Commission in performing its adjudicatorial function, conforms to rather than contravenes the bifurcation requirements. Thomas W. Hitchings Page 29 It is also argued that the Commission's Chief Counsel at the hearing usurped the function of the presiding officer as to ruling upon objections. First, the objections were ruled upon by the Vice Chair, a lawyer licensed to practice in Pennsylvania, who served as presiding officer. Secondly, as noted above, the Chief Counsel serves_ as an advisor to the Commission in performing its adjudicatorial functions; any discussions or conversations between the presiding officer and Chief Counsel is clearly permissible and in fact appropriate. Due process requires that the prosecutorial and judicial function remain distinct and separate during the hearing and decision making process. In Re: Appeal of Redo, (1979), 42 Pa. Commw. Ct. 468, 401 A.2d 394 (1979). Since there is no institutional or factual basis for the argument, the third ground for dismissal is denied. Hitchings argues that a finding of a Section 3(a) violation would infringe upon the judiciary in governing the practice and procedure in the court system. It is argued that such action would violate the Supremacy Clause of the U.S. Constitution in exercising authority over the conduct of litigation in the federal courts. The fallacy of such an argument is that the Ethics Act does not contravene appearances in court relative to matters performed by a public official /employee in an official capacity but the Ethics Act does proscribe conduct on the part of a public official /employee who uses public office to obtain (private) financial gain. The foregoing becomes clear when the circumstances of the civil trial (Fact Finding 5) are considered wherein Hitchings appeared and received only a witness fee which is provided for by law. The conduct of Hitchings at that trail stands in sharp contrast to his private services for a fee as to the other litigation (Fact Finding 7). We therefore reject the above argument as having no basis in law. We must now turn to the allegation before us as to whether Hitchings violated Section 3(a) of the Ethics Act by using his position or confidential information when he acted as a paid private "consultant" or "expert" to a law firm representing a party in the law suit regarding a fire which he investigated in his public position. Secondly, we must consider the allegation whether he violated Section 4 of the Ethics Act by not filing a Statement of Financial Interests. 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 Thomas W. Hitchings Page 30 (1987). In addition, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow v. State Ethics Commission,, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Under Section 4(a), of the Ethics Law quoted above, this provision- of law requires that each public employee and public official (Kremer v. State Ethics Commission, 56 Pa. Commonwealth 160, 425 A.2d, 968 (1981), affirmed 503 Pa. 358, 469 A.2d 593 (1983)), must file a Statement of Financial Interests for the preceding calendar year of each year that he holds a public position as well as for the year after he leaves such a position. As to the matter of whether Hitchings violated Section 4 of the Ethics Act quoted above regarding the Financial Interests Statements (FIS), we have established that Hitchings in his position is a public employee subject to the Ethics Act and hence subject to the filing requirements. In addition, Hitchings has conceded that he has not. filed FIS's. Therefore, in light of Hitchings admission of the fact that he has not filed, we find a violation of Section 4 of the Ethics Act in failing to file FIS's. Hitchings is therefore directed to file FIS's for all calendar years in which he served in the above positions, that is, from 1981 until retirement with the City within 30 days of the date of this Order. Failure to comply with the above will result in a referral to the appropriate law enforcement authority. Turning to the second allegation regarding whether Hitchings violated Section 3(a) of the Ethics Act concerning his service as a "consultant" or "expert" in civil litigation relative to a matter which he investigated in his public position, this matter had its genesis when Hitchings was called to investigate a fire which occurred at the Arcade Theatre in Pittsburgh. Hitchings conducted an extensive investigation at the scene of the fire, interviewed various witnesses and made a review of evidence and reports prepared by others. Thereafter, Hitchings filed two reports, one of which was public and a second which was confidential. After a story was run by KDKA -TV in Pittsburgh that the fire at the Arcade Theatre was incendiary in nature, Kramer as one of the owners of the Arcade Theatre filed a defamation action against the TV station as well as an action against the insurance company which held the policy on the Arcade Theatre and which refused to pay Kramer's claim because of the incendiary nature of the fire at the theatre. The law firm of Cohen, Alder and Grigsby, which represented defendants in the civil case brought by Stanley Kramer, sought the services of Hitchings as a consultant or expert witness in the litigation. Separate and apart from the above litigation, Hitchings was subpoenaed to testify in a criminal proceeding against a Donald Gainer who was indited, tried and convicted of setting the fire at the Arcade Theatre. In the civil case against the insurance company, Hitchings received the standard Thomas W. Hitchings Page 31 witness fee, but did not receive any fee as a consultant or expert witness in that proceeding. As to the Westinghouse case, the law firm of Cohen, Alder and Grigsby contacted Hitchings regarding his acting as a "consultant" for, the firm in that litigation at a rate of $50 per hour. It was contemplated that Hitchings would testify in the litigation as to his investigation of the fire at the Arcade Theatre as well as offer his opinion as to the cause and origin of that fire. The private work that Hitchings performed for the firm totalled thirteen hours: part of that work was done by Hitchings on his own time, but part of that work was done on public time when Hitchings was in service as a public employee of the City as a Captain in the Fire Department. In particular, on March 18, 1986, Hitchings according to his personnel file was listed as a working full day for the Fire Department; on that same day, Hitchings went to the firm of Cohen, Alder and Grigsby and had a two hour consultation which began at 1:30 p.m. with attorney Flynn regarding the impending civil litigation. The above fact is not only confirmed by the personal calendar of Attorney Flynn who, as the associate in the law firm, met with Hitchings but is also confirmed by Hitchings in his letter dated August 19, 1986 to the firm as well as in a confirmation letter by the firm on the date of the meeting. The record reflects that Hitchings' working hours were between 8:00 a.m. and 4:30 or 5:00 p.m., so that the time of the consultation coupled with travel time was during normal working hours. Further, although the Fire Department would allow an employee flexibility in working on a given day if the individual were called up during the previous night or morning, no such circumstances have been proffered around the period of March 18, 1986. In reviewing the evidence or established facts in a case, an administrative agency may adopt inferences of facts. Simon v. Fine, 167 Pa. Super 386, 74 A.2d 674 (1950). In reviewing all of the_ evidence and facts in this record, we find as a matter of fact (Fact Finding 21) that Hitchings did perform private services on March 18, 1986, during his working hours with the City of Pittsburgh. We also note that Hitchings in his letter to the firm acknowledges that he not only used his investigative file, but his own personal reports in preparing the report for the firm. Parenthetically, the reason for the preparation of the report was because it was the practice of the U.S. District Court for the Western District of Pennsylvania to require pre -trial statements prepared by individuals who would be testifying in civil litigation. In applying the provisions of Section 3(a) of the Ethics Act quoted above to the instant matter, we find that Hitchings violated Section 3(a) of the Ethics Act when he, on the City of Pittsburgh Thomas W. Hitchings Page 32 time, went to the firm of Cohen, Alder and Grigsby and had a two hour consultation for which he received a private fee at the rate of $50 per hour. Since he was also being paid for that time as being in service by the City of Pittsburgh, such action is a use of public office because Hitchings was in that position and used public office - to obtain the private fee. Hitchings did obtain a financial gain which again is the private fee he received at the rate of $50 per hour. Such was compensation other than provided for by law since there is no provision in law which allows him to perform and be paid for private work while being paid for the same time by the City of Pittsburgh. Our finding of a violation of Section 3(a) of the Ethics Act by Hitchings is in accord with prior Commission precedent on this issue. Thus, in Dorrance, Order 456, we held that a publicly employed attorney violated Section 3(a) of the Ethics Act when he used the materials, facilities and equipment of his governmental office in performing private legal services. More on point is Cohen, Order 610 - R wherein we found the Director of the Enforcement Division of the Pennsylvania Securities Commission violated Section 3(a) of the Ethics Act when he was logged in at the Securities Commission when he was in fact sitting on arbitration panels for which he received fees for his legal services. In Forbes, Order 681, we find a violation of Section 3(a) of the Ethics Act and imposed a treble penalty in a case where a state boiler inspector submitted false time records and was paid for time when he was actually working in a private capacity at a nursing home. Finally, in Williams, Order 734 -R, a Field Inspector Supervisor in the Department of Labor and Industry was found in violation of Section 3(a) of the Ethics Act when he received compensation from the Commonwealth for certain hours when he in fact was working as a security guard during those time periods. Separate and apart from the above, we find Hitchings violated Section 3(a) of the Ethics Act by using public office to obtain the financial gain of the private fee because Hitchings in his public position as Captain of the Fire Department and Chief Arson Investigator was the individual who was assigned and performed the investigation as to the Arcade Theatre. Hitchings used his own reports prepared for the Fire Department while on duty for the City of Pittsburgh as the basis for preparing his report for the law firm; the critical element is the action by Hitchings in utilizing personal, investigative reports, observations, information gleaned and learned as to the work he performed in his official capacity which were prepared on public time for which he received compensation from the City of Pittsburgh. The foregoing served as a basis for a report for the law firm for which Hitching's received a private fee. The use of office is evident when a comparison is made between the official report prepared by Hitchings (Fact Finding number 16) which is materially similar to the report prepared by Hitchings for the law firm (Fact Finding number 22). Further, the extremely short Thomas W. Hitchings Page 33 preparation time of two hours as to the report by Hitchings for the law firm (Fact Finding 20) also evidences the use of public office by Hitchings, that is, Hitchings only spent two hours on report preparation because he already spent City time in preparing the official report as part of his duties as an arson investigator. The use of public office to obtain a financial gain is compensation other_ than provided by law because the Pittsburgh Home Rule Charter prohibits City personnel from receiving any other compensation for work paid by the City (Fact Finding 23). Although the Office Professional Responsibility (OPR) of the City of Pittsburgh conducted an investigation into this matter, the scope of that investigation was very narrow, that is, it only considered whether Hitchings' conduct in receiving a fee for private services in the law suit relative to his investigation of the Arcade Theatre fire contravened departmental procedure. The conclusion of OPR was that the case was closed as not sustained. OPR did not consider, in its investigation /analysis in arriving at its conclusion, the provisions of the State Ethics Act or the provisions of the Pittsburgh Home Rule Charter which essentially provide that an employee may not receive other compensation for work done for the City of Pittsburgh for which the employee received compensation as a City employee. Based upon the above, we find that the decision of OPR has no probative value on the issue before this Commission. Even if OPR considered the Pittsburgh Home Rule Charter as well as the Ethics Act, which it did not in the limited scope of its review, we would not be bound by the results of its investigation in making our determination as to Hitchings' conduct under the Ethics Act. We do take note of the procedures which the Pennsylvania State Police have issued relative to court appearances in civil /criminal trials that relate to duty or non -duty testimony by the state policemen. As to duty related matters, a state policeman may accept the standard witness fee; he is considered in service during his court appearance. However, the state policeman may not accept a fee as an expert witness or consultant for that testimony, aside from the nominal witness fee; such an action on the part of a state policeman would be considered a conflict under their guidelines. Thus, in the context of duty related court appearances by state police, the procedures do not provide any support for Hitchings' conduct in this case. In addition, we do note that the Pittsburgh Home Rule Charter prohibits an individual who is paid for work by the City of Pittsburgh from receiving any other compensation for that work. Although we have applied the Ethics act in finding a violation of Section 3(a) in this case, we cite the Home Rule Charter merely to show its similarity to Section 3(a). Thomas W. Hitchings Page 34 Finally, we make reference to decisions of other Ethics Commissions which parallel our decision in this matter. Thus, in Opinion, 81 -049 the South Carolina Ethics Commission held that an arson investigator could not submit his reports of an investigation to an insurance company because such would be a use of office for personal financial gain. In Opinion, 90 -01, the Florida Ethics Commission held that an arson investigator was precluded from receiving consultation or expert witness fees as to (fire) incidents even though they occurred outside of the city of employment. In the cited opinion that Commission referenced Opinion, 88 -59, wherein they held that fire department employees were prohibited from engaging in a private fire investigation business, when off duty, due to the sensitive nature of the fire investigation process. We once again cite the precedent of these other Ethics Commissions to show the similarity of results on. this issue. Section 9(c) of the State Ethics Act provides: Section 9. Penalties. (c) Any person who obtains financial gain from violating any provision of this act, in addition to any other penalty provided by law, shall pay into the State Treasury a sum of money equal to three times the financial gain resulting from such violation. 65 P.S. S409(c). In McCutcheon v. State Ethics Commission, supra, Commonwealth Court specifically upheld the statutorily created power of this Commission to impose treble penalty. Considering the totality of the facts and circumstances as to the conduct of Hitchings in this case, we conclude that a treble penalty is appropriate. Shenk v. Pennsylvania Real Estate Commission, 107 Pa. Commw. Ct. 48, 527 A.2d 629 (1987). Accordingly, we impose a treble penalty in the amount $1,950.00 which is thrice the $650 fee which Hitchings received. Hitchings is therefore directed within thirty days of the date of this Order to forward a check to this Commission payable to the State Treasury of the Commonwealth of Pennsylvania in the amount of $1,950.00. Failure to comply with the above will result in the referral of this matter to the appropriate law enforcement authority. The Commonwealth Court of Pennsylvania has also recognized in Yacobet v. State Ethics Commission, supra, that this Commission may impose restitution in cases where a public official /employee has obtained a financial gain, other than compensation provided for by law, from his public office which would warrant the restitution of that gain to his governmental body. In this case, Hitchings was paid his salary while he was in fact at the private law firm providing consulting services for which he received a fee. However, we will not Thomas W. Hitchings Page 35 impose restitution in this case, given the treble penalty above. Based upon the totality of the facts and circumstances in the case and the imposition of the treble penalty, this Commission will take no further action as to the findings of violations as to Sections 3(a) and 4(a) of the Ethics Act. IV. Conclusions of Law: 1. Thomas W. Hitchings as a Captain of the Pittsburgh Fire Department and Chief Arson Investigator was a public employee subject to the provisions of the State Ethics Act. 2. Hitchings violated Section 4(a) of the Ethics Act when he failed to file Statements of Financial Interests for the years in which he served as a public employee of the City of Pittsburgh. 3. Hitchings violated Section 3(a) of the Ethics Act when he was paid as being in service for the City of Pittsburgh when he was at a law firm providing consulting services for a private fee on a matter which he investigated as part of his public position. 4. Hitchings violated Section 3(a) of the Ethics Act in using public office by receiving a private fee from a law firm in preparing a report based upon his personal reports, investigative files, observations and information gleaned and learned as to the fire he investigated in his public position for which he was compensated by the City of Pittsburgh. In re: Thomas W. Hitchings : File Docket: 87 -189 -C : Date Decided: December 14, 1990 : Date Mailed: .Tarmary 1, 1991 ORDER No. 779 1. Thomas W. Hitchings as a Captain of the Pittsburgh Fire Department and Chief Arson Investigator violated Section 4(a) of the Ethics Act when he failed to file Statements of Financial Interests for the years in which he served as a public employee of the City of Pittsburgh. 2. Hitchings violated Section 3(a) of the Ethics Act when he was paid as being in service for the City of Pittsburgh when he was at a law firm providing consulting services for a private fee on a matter which he investigated as part of his public position. 3. Hitchings violated Section 3(a) of the Ethics Act in using public office by receiving a private fee from a law firm in preparing a report based upon his personal reports, investigative files, observations and information gleaned and learned as to the fire he investigated in his public position for which he was compensated by the City of Pittsburgh. 4. A treble penalty in the amount of $1,950.00 is imposed upon Hitchings as a result of the $650 fee he received from a law firm for private services relative to work that he performed in his public position with the City of Pittsburgh. 5. Hitchings is directed within 30 days of the date of this Order to forward a check in the amount of $1,950.00 to the State Ethics Commission payable to the State Treasury_of the Commonwealth of Pennsylvania. Failure to comply with the foregoing will result in the referral of this matter to the appropriate law enforcement authority for order enforcement. 6. Hitchings is directed within 30 days of the date of this Order to file Statements of Financial Interests for all years wherein he served as a public employee in the City of Pittsburgh from 1981 until retirement. Failure to comply with the foregoing will result in the referral of this matter to the appropriate law enforcement authority. 7. Based upon the totality of the facts and circumstances in the case and the imposition of the treble penalty, this Commission will take no further action as to the findings of violations as to Sections 3(a) and 4 a)-of the Ethics Act. BY COMMISSION LENA G. HUGHE', CHAIR Commissioner Dennis C. Harrington dissents only as to the imposition of a treble penalty.