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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