HomeMy WebLinkAbout779 HitchingsIn re: Thomas W. Hitchings
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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.