HomeMy WebLinkAbout779-R HitchingsSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In re: Thomas W. Hitchings : File Docket: 87 -189 -C
: Date Decided: February 14, 1991
: Date Mailed: February 7R_ 1991
Before: Robert W. Brown, Vice Chair
G. Sieber Pancoast
Dennis C. Harrington
Daneen E. Reese
Roy W. Wilt
The State Ethics Commission received a request for
reconsideration on January 15, 1991, with respect to Order 779 issued
on January 3, 1991. Pursuant to Section 2.38 of the regulations of
the Commission, the discretion of the State Ethics Commission to grant
reconsideration is properly invoked as follows:
(b) Any party may ask the Commission to reconsider an order
within 15 days of service of the order. The person
requesting reconsideration should present a detailed
explanation setting forth the reason why the order should
be reconsidered. Reconsideration may be granted at the
discretion of the Commission only where any of the following
occur:
(1) A material error of law has been made.
(2) A material error of fact has been made.
(3) New facts or evideo order and
lead to reversal or modification
where these could not be or were not discovered
previously by the exercise of due diligence.
51 Pa. Code §2.38(b).
This adjudication of the Commission is hereby issued which sets
forth the Discussion and Reconsideration Order.
This Reconsideration Order and Order 779 are final and shall be
made available as public ublicsdoc the (5th) business day
following the date
ADJUDICATION
Discussion: Reconsideration is sought for both State Ethics
Commission Orders 679 and 779. However, since Commonwealth Court
vacated Order 679 in Hitchings v. State Ethics Commission, Pa.
Commw.,Ct. , 563 A.2d 988 (1989), the scope of our review is only
as to Order 779.
In your request, you raise eleven points for reconsideration
which will be considered seriatim.
You first argue that there is no evidence in the record to
support a conclusion that Hitchings did not file Financial Interest
Statements (FIS). Since Hitchings admitted that he did not file,
there was no need to hear evidence on that issue. Thus, Hitchings'
admission establishes the result.
As to your second point regarding the separation of powers
argument, that issue was broadly discussed on page 29 of Order 779
wherein we noted that the Ethics Act does not impinge upon the
judicial power to regulate the practice before the courts but does
prohibit use of public office to obtain financial gain. Having
already considered and rejected this type of argument as having no
basis in law, we see no need to restate our analysis.
The third proffered basis for reconsideration raises the issue of
whether there was substantial evidence to find that Hitchings was a
"public employee" under the Ethics Act. Our finding that Hitchings
Mr. Thomas W. Hitchings
Page 2
was a public employee was determined by applying the job duties and
responsibilities of Hitchings, as presented by the testimony primarily
of John Harpur, Deputy Fire Chief and others, to the definition and
regulations regarding "public employee ", case law, and prior
Commission precedent. Although we fully considered the issue, the
following is noteworthy from the case of Phillips v. State Ethics
Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984) which we cited
and which involved the issue of whether a claims settlement agent in
the Department of Public Welfare was a public employee:
Furthermore, the class specifications provide that
this work is not normally performed in accordance
with prescribed procedures, but requires
discretion and judgment in conducting
investigations and making recommendations and
preliminary decisions. Under such circumstances,
we agree with the Commission that the Petitioner,
as a CSA I, is a public employee.
Id. at 495. Substantial evidence does exist in the record that
Hitchings' duties and responsibilities clearly established that he was
a public employee.
In the fourth point for reconsideration, an equal protection
argument is raised regarding classifying Hitchings as a public
employee as compared to detectives. Our determination that Hitchings
was a public employee was reached by utilizing the objective test
sanctioned by Commonwealth Court in the Phillips case, supra.
Secondly, a similar type argument was raised and rejected by
Mr. Thomas W. Hitchings
Page 3
Commonwealth Court in Phillips:
Specifically, he contends that police officers,
detectives and welfare caseworkers are afforded
and exercise more discretion than a CSA I and
because the regulation generally considers the
holders of such positions not to be public
employees, a CSA I cannot be considered to be a
public employee.
In light of the liberal, expansive interpretation
to be given the Act's coverage provisions and the
substantial evidence supportive of the findings
underpinning the Commission's conclusion that a
CSA I is a public employee position, we reject
Petitioner's argument.
Id. at 496. There was no violation of equal protection in finding
that Hitchings was a public employee.
Contrary to Hitchings' assertions in his fifth point, the issue
of the Supremacy Clause was considered on page 29 of Order 779. Since
we have already addressed that specific argument, we summarily reject
it.
The sixth point raised for reconsideration concerns 42 U.S.C.
S1985. It is argued that the Commission violated the foregoing
provision with respect to Hitchings. The foregoing provision of law
is aimed at conspiracies to intimidate witnesses, parties . or jurors as
to the performance of their duties in federal courts. Kuchka v. Rile,
634 F. Supp. 502 (1985). Since we addressed the argument regarding
Mr. Thomas W. Hitchings
Page 4
contravening appearances in court on page 29 of Order 779, such was of
sufficient detail to generally address this issue. Shenk v. State
Real Estate Commission, 107 Pa. Commw. Ct. 48, 527 A.2d 629 (1987).
In the seventh argument for reconsideration, Hitchings rehashes
commingling arguments which we have already considered and rejected.
Hitchings asserts that there was "intimate involvement" by the Chief
Counsel as to rulings made at the hearing, that Chief Counsel on at
least one occasion ruled on the admission of documents into evidence
and that Chief Counsel is "intimately involved at every stage of the
conduct of an investigation, prosecution and adjudication."
As to the rulings, we specifically noted on page 29 of Order 779
that the presiding officer as a licensed attorney made the rulings.
The foregoing becomes obvious when the notes of testimony of the
hearing are reviewed which reflects the many dialogues between the
presiding officer and counsel for Respondent and the Investigative
Division prior to making rulings. As to the matter of the admission
of documents, the notes of testimony further reflect that the Chief
Counsel labeled the documents as exhibits and made statements
reflecting the admission of same where the counsel had no objection.
In any case, where there was a challenge to admission, the presiding
officer would make the ruling thereon. Finally, as to the Chief
Counsel being involved in investigations and prosecutions while
serving as legal advisor to the Commission in performing an
Mr. Thomas W. Hitchings
Page 5
adjudicatory function, such is factually incorrect. The function of
the Chief Counsel is limited to the adjudicatory side of the
Commission and hence there is no commingling. For the reasons set
forth on pages 28 and 29 of Order 779, we reject the argument.
The eighth point raises two distinct issues. First, Hitchings
asserts that we misrelied upon Coyle, Opinion 82 -013 in reaching our
determination that Hitchings was a public employee. As Order 779
reflects, our determination that Hitchings was a public employee was
made by applying the Ethics Act, the regulations, prior Commission
precedent and judicial precedent to his duties and responsibilities.
The argument is without merit and we reject it. The second issue
concerns the use of the word "confidential" relative to the report
Hitchings filed as to his investigation of the Arcade Theatre fire.
Fact Finding 9 which is based upon the testimony of one of the
Pittsburgh Deputy Fire Chiefs reflects that the report is private and
confidential (Fact Finding 9h(2)(b)) but may be subpoenaed by
attorneys involved in civil litigation (Fact Finding 9n). We see no
error of fact or law and reject the argument.
In the ninth point, Hitchings asserts that the reference to the
"confidential laboratory report" is in error since there was no
finding of accelerants by the laboratory to sustain a conclusion of
arson. We fail to see the significance, validity or relevance of the
argument given our analysis which resulted in Legal Conclusions three
Mr. Thomas W. Hitchings
Page 6
and four. We reject this immaterial argument.
We likewise reject the tenth point for reconsideration regarding
the lack of any reference in Covle, supra, to arson investigators for
the reason set forth in our rejection of the eighth point for
reconsideration.
The eleventh and last point raised by Hitchings in seeking
reconsideration raises the issue that our finding would preclude the
courts from having the best evidence available in litigation. In
rejecting the argument, we will quote from Order 779:
,mod. at 29.
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 [sic] 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.
Upon review of the Order in conjunction with the arguments which
have been made, no material error of law or fact has been shown which
would warrant reconsideration.
In re: Thomas W. Hitchings s File Docket: 87 -189 -C
s Date Decided: February 14, 1991
Date Mailed:
Reconsideration Order 779 -R
1. The request by Hitchings to reconsider Order 779 issued on
January 3, 1991 is denied.
2. Hitchings is directed to comply with the terms of Order 779
within thirty (30) days of the date of issuance of this
Reconsideration Order.
3. Failure to comply with paragraph 2 will result in the
referral of this matter to the appropriate law enforcement
authority for review and appropriate action.
BY THE COMMISSION,
ROBERT W. BROWN, VICE CHAIR