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HomeMy WebLinkAbout679 HitchingsMr. Thomas W. Hitchings c/o Regis J. McNally, Esquire Suite 602, Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 Re: 87 -189 -C Dear Mr. Hitchings: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION ORDER W. 679 DATE DECIDED: September 28, 1988 DATE MAILED: October 13, 1988 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: I. Allegation: That you, 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 you used your public position, the work product of that position and /or confidential information obtained through your public position when you 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 you had investigated in your public position; and in that you failed to file a Statement of Financial Interests: 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. Code S403(a). e Mr. Thomas W. Hitchings Page 2 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. §404(a). A9 Findings: 1. You are currently employed by the City of Pittsburgh Fire Department as a Platoon Captain for Engine Company No. 24. a. You have served in this position since about March, 1988. b. Prior to this position you served as a fire captain assigned as an investigator with the Arson Strike Team in Pittsburgh. c. You served in that position since 1981. 2. In your position, you were the officer in charge of all arson and fire investigations within the City of Pittsburgh. 3. On February 5, 1984, a fire occurred at the Arcade Theater, 1915 East Carson Street, Pittsburgh, Pennsylvania. 4. One of the owners of the Arcade Theater was Stanley Kramer. 5. Stanley 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. Mr. Thomas W. Hitchings Page 3 6. Stanley Krasner 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 coverage company's refusal to pay the insureds' claim. 7. Records of the City of Pittsburgh Fire Department indicate that you 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 your official duties as a Captain in the City of Pittsburgh Fire Department, you were called at home and advised of the progress of the fire. b. You proceeded to the fire site and the report outlines your observations upon your arrival. c. Your report indicates your conversations with theater owners and other investigative steps that were taken including taking photographs, requesting assistance from city electrical engineer and reviewing the building. d. The report further outlines post fire investigative activities. 8. Appended to your report were the followings a. Diagrams of the Arcade Theater. b. A confidential report of laboratory findings dated March 9, 1984 from the Pittsburgh Department of.Laboratories. (i) This was a two page report regarding the Arcade Theater fire. (ii) This report identified items submitted to the laboratory by the Pittsburgh Fire Department. c. A consent form for fire scene examination signed by Stanley Kramer. d. A request form from the Pittsburgh Fire Department to the Department of Laboratories seeking examination of three metal cans and wood floor samples for tests for accelerant. e. A report from the electrical inspector concluding that the fire at the Arcade Theater was not due to electrical causes. Mr. Thomas W. Hitchings Page 4 f. A report from the Pittsburgh Department of Laboratories concluding that wood debris submitted for analysis showed presence of volatile materials. 9. By way of letter dated March 18, 1986 from Edward C. Flynn addressed to you at the Pittsburgh Fire Department in the Public Safety Building, acknowledgement is made that you will provide consulting services for the law firm of Alder, Cohen & Grigsby regarding the case of Stanley Kramer et. al. v. KDKA -TV et. al. a. Your fee is $50 per hour. b. You are requested to provide a written opinion with respect to whether the fire which occurred at the Arcade Theater on February 5, 1984 was incendiary in nature. c. You are requested to send a draft of the report upon completion. d. You are requested to forward your current resume. 10. By letter dated March 31, 1986 from you to Edward C. Flynn, Esquire, of the law firm of Alder, Cohen & Grigsby, you provided a written report summarizing your conclusions regarding the fire at the Arcade Theater at 1915 -1921 East Carson Street, Pittsburgh, Pennsylvania on February 5, 1984. a. This report was prepared on the letterhead of Thomas W. Hitchings, consultant, fire origin and cause, 422 Suncrest Street, Pittsburgh, Pennsylvania, 15201. b. Pursuant to this report, you indicate that you have reviewed various records and reports "contained in my own investigation file including my own personal reports, police reports, reports of the first arriving fire units, report of the city electrical inspector and photographs and drawings of the scene." c. You further indicate that you were the officer in charge of all fire and arson investigations within the City of Pittsburgh jurisdiction. d. You report your observations at the time of the fire. e. The report indicates that you supervised the investigation team from the Pittsburgh Bureau of Fire and the Federal Bureau of Alcohol, Tobacco and Firearms. Mr. Thomas W. Hitchings Page 5 f. The report indicates that you testified as an expert witness in the trial of Donald Gainer, the person accused of setting the Arcade Theater fire. g You conclude that the fire was deliberately set and thus the result of arson. 11. By way of letter dated May 16, 1986 from George E. Yokitis of the law firm of Alder, Cohen & Grigsby addressed to you at the Pittsburgh Fire Department, you are advised that trial in the matter of Kramer v. KDKA -TV has been fixed for June 1, 1986. 12. By way of letter dated August 19, 1986, to George E. Yokitis, you advise that your fee in the matter of Kramer v. KDKA -TV is $650. a. This fee was for 13 hours of work at $50 per hour. 13. 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 you for providing expert consulting 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 you in the amount of $650. 14. A subpoena was issued to you in your 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. Your appearance was requested for November 16, 1987. c. You were paid a $30 witness fee from the operating account of James, Gregg, Creehan & Gerace (counsel for defendant) as a result of your appearance. 15. You provided sworn testimony by way of a deposition on October 30, 1985 in the matter of Stanley Kramer et. al. v. Standard Life Insurance Company, No. 584 -2940, U.S.D.C. Western District of Pennsylvania. Mr. Thomas W. Hitchings Page 6 a. .ou testified that part of your duties included determining cause and origin of a fire. b. You provided testimony regarding your actions during the fire at the Arcade Theater and the subsequent investigation thereof. 16. Edward Flynn, Esquire, provided the following information in relation to this situation: a. He worked with the law firm of Alder, Cohen & Grigsby. b. You were employed by the firm to render an expert opinion in the case of Kremer v. KDKA -TV. c. The law firm represented KDKA -TV. d. You reviewed fire records and federal case records to give your opinion. e. They did not receive confidential information from you. 17. Jack Montgomery, Esquire, of the law firm Alder, Cohen & Grigsby, provided the following information in relation to this situation: a. The firm represented Westinghouse in the claim filed by the Kramers. b. Subpoenas were issued for all the records and these records were obtained prior to your engagement as a consultant. c. They wanted the best experienced arson investigator available. d. You were only paid for the time used to write your report. 18. George Yokitis, Esquire, provided the following information in relation to this situation: a. You were paid $50 per hour. b. You did not testify at trial because the trial was settled out of court. Both sides had the same information that had been subpoenaed from the City. Mr. Thomas W. Hitchings Page 7 d. Both sides probably had access to the confidential laboratory reports. e. You were hired for your expertise. 19. Maureen Middleman, Esquire, testified as follows regarding this situation: a. Her firm represented Aetna Casualty Insurance Company in a suit filed by the owners of the Arcade Theater. b. The Company had refused to pay the claim due to arson. c. You were known as a result of other cases. d. The testimony of an investigating officer gives credibility to a case. e. You were subpoenaed to testify during the proceedings. f. Other fire investigators also testified. g. Your reports were also obtained as part of the case. h. You never prepared an expert report for their firm. i. You were told that you would be paid as an expert but no bill was received and you were never paid. j. You were paid a $30 witness fee. 20. John K. Leoby, Jr., City of Pittsburgh Fire Chief, provided the following information in relation to this situation: a. The City has no policy regarding outside employment. b. If a fire employee was subpoenaed in a matter that didn't involve the City, the employee would have to use leave. 21. 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 you that you could bill law firms for your services. b. There is nothing wrong with this arrangement. Mr. Thomas W. Hitchings Page 8 c. The City saves money because employees are constantly called to testify in private civil litigation in which the City is involved and the City should not have to pay for this. 22. Section 705 of the Charter of the City of Pittsburgh provides in part: City employees shall not be permitted to accept any gift or thing of value in connection with their employment other than their salary. 23. Section 706 of the Charter of the City of Pittsburgh provides in part: 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. 24. Commentary regarding Section 706 provides as follows: 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. 25. You provided the following information in relation to this situation: a. You have been employed by the City of Pittsburgh Fire Department for 24 years. b. You have testified on numerous occasions as an expert witness but only acted as a paid consultant once. c. The case where you acted as a paid consultant was the matter involving KDKA -TV. You were paid $650. d. You were not paid in the insurance litigation involving the Arcade Theater. You only received a $30 witness fee. e. You advised the City Law Department that you were acting as a consultant in the KDKA -TV case. f. You were on your own time while working as a consultant in the matter. c. In relation to the insurance case, there were certain times when you met with representatives of the insurance company under the Arson Immunity Act to exchange information. On these occasions, you were on City time. On other occasions you were on your own time. Mr. Thomas W. Hitchings Page 9 h. You used your reports, photographs and diagrams when you testified in the KDKA -TV matter. i. The City Law Department told you that you could charge a fee in such situations. This opinion was not in writing. You only testified as to the cause and origin of the Arcade Theater fire. j. k. You have never filed a Statement of Financial Interests. 1. You have never been asked to do so and you are not familiar with the State Ethics Act. 26. Records of the City of Pittsburgh indicate that you have never filed a Statement of Financial Interests. B. Discussion: As a Captain with the Pittsburgh Fire Department and Chief Arson Investigator, you are a public employee as that term is defined under the Ethics Act. 65 P.S. Section 402; 65 Pa. Code Section 1.1; Coyle Opinion 82 -013. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. As quoted above, Section 3(a) of the Ethics Act provides, in part, that a employee may not use public office or confidential information to obtain a financial gain for himself other than compensation as provided for by law. The allegation in this case charges that you violated Section 3(a) of the Ethics Act by acting as a paid private consultant and by using confidential information to obtain a consulting fee in a lawsuit regarding a fire that you investigated as part your official duties as a public employee. Factually, it is noted that you were assigned to investigate a fire at the Arcade Theater on February. 5, 1984 which was owned by Stanley Kramer and others. Following a TV broadcast which reported that the fire was caused by arson, Mr. Kramer filed a law suit against Westinghouse and the TV station, KDKA -TV. A separate suit was filed by Mr. Kramer against the insurance company which refused to pay the fire insurance claim. As part of your investigation of the fire, you prepared and submitted a March 5, 1984 memo wherein you recite various details and aspects of your investigation. Appended to your report were various exhibits consisting of diagrams of the theater, a confidential laboratory findings report, electrical inspectors report, another report from the Department of Laboratories and other documents. Following the filing of the lawsuit by Mr. Kramer against Westinghouse and KDKA -TV, you were contacted by the law firm which represented one or both of the Mr. Thomas W. Hitc dings Page 10 defendants and asked to prepare a written opinion as to the fire and as to whether it was incendiary in nature. Your consulting fee for these services was at the rate of $50 per hour and you received a total fee of $650. Thereafter, you filed your report, wherein you recite that you were the officer in charge of all fire and arson investigations, that you reported your personal observations at the time of this particular fire and that you rendered an opinion based upon the various records and reports consisting of your own personal report, the police report of the fire units, the report of the city electrical engineer as well photographs and scene drawings. Further, after reciting in your opinion that you testified as an expert witness at the trial of the defendant who was charged with setting the fire, you express your conclusion that the fire was deliberately set and was the result of arson. Parenthetically, as to the other lawsuit against the insurance company, you did appear at that trial but did not receive a consulting fee but only the $30 witness fee as provided for in law. Lastly, it should be noted that several of the attorneys in the law firm which retained you as a consultant have stated that the information you used in your opinion was obtained by subpoena and was available to all parties of the lawsuit. _ Under these circumstances, you have violated Section 3(a) of the Ethics Act because you used public office, namely your position as a Captain with the Fire Department and Chief Arson Investigator, as a means of obtaining a financial gain consisting of the $650 consulting fee which was paid by the law firm that represented the defendants in the suit instituted by Mr. Kramer. You not only used the public office, but you used the information consisting of the reports and other files that you prepared and which you were required to prepare as part of your official duties and responsibilities. It is clear that this is not a compensation provided for by law. In this regard, it is noted that Section 705 of the Pittsburgh Charter provides that no employee may receive anything of value in connection with their employment. That is precisely what you did in this case when you received a consulting fee of $650 for the preparation of the written opinion which was based upon your official investigation and reports. If you were merely subpoenaed in this trial and testified for the standard witness fee, in the capacity of a Chief Arson Investigator relative to your investigation and reports, there would be no violation of the Ethics Act; however, you used public office as to your official status, as to your personal investigation of the fire and as to your reports as a means of obtaining the consulting fee in this case. The receipt of that fee by and through public office is prohibited under the Ethics Act. The fact that you testified in the insurance case and others and received the standard witness fee establishes two things: you knew - hat your testimony in the Westinghouse /KDKA -TV case could have been Mr. Thomas W. Hitchings Page 11 given as a subpoenaed witness and secondly, you created or seized an opportunity for personal financial gain by becoming a consultant as to matters you were required to perform as part of your official duties. In your discussions with the law firm, the appropriate course of action for you should have been to advise that your testimony could be given as a subpoenaed witness. Instead, you used public office to make some money for yourself in violation of the public trust. Your actions reflect callous opportunism in denigration of your public office. You have violated both the spirit and letter of the Ethics Act by your actions in this matter. This Commission also takes.note of Section 706 of the Charter which prohibits an employee from receiving any compensation for an act done in the course of their public work. The commentary to that section provides that an employee may not receive any other compensation for paid work done for the City; once again, this is precisely what you did. This Commission may not find that you violated the provisions of the Pittsburgh Charter since that is beyond the scope of the Ethics Act. These provisions of the Charter are cited merely to reflect that they parallel the Ethics Act. However, under Section 3(a) of the Ethics Act, you did use public office to obtain a financial gain which is not part of your compensation as provided for by law; such action on your part violated that provision of the law. Section 9(c) of the 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. 5409(c). The power of this Commission to order restitution or impose a penalty has been sustained by Commonwealth Court. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yocabet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Your conduct in this case warrants the imposition of a treble penalty. Accordingly, you are hereby directed to forward a check to the State Ethics Commission payable to the order of the State Treasury in the amount of $1,950 within thirty days of the date of this order which is treble the $650 illegal financial gain you received. Mr. Thomas W. Hitchings Page 12 Turning to the matter of the failure, on your part to file Statements of Financial Interests, it is noted that you have been employed as a fire captain and currently hold the position of platoon captain. In Covle, supra, this commission determined that a fire captain was a public employee required to file a Statement of Financial Interests. Although this Commission did not address the specific position of a platoon captain in it is clear that such a high(er) level position would be covered based upon the reasoning and analysis in that opinion. Therefore, you are a public employee under the Ethics Act and have violated Section 4(a) by your failure to file for all years in which you have been employed by the City. You must, within thirty days, file Statements of Financial Interests with the City for the calendar years 1981 through 1987 and you must continue to file during your employment. C. Conclusion and Order: 1. As Captain of the Pittsburgh Fire Department and Chief Arson Investigator, you are a public employee subject to the provisions of the Ethics Act. 2. You violated Section 3(a) of the Ethics Act when you used public office to obtain a financial gain consisting of a consulting fee from a law firm which was representing a defendant in a law suit regarding a fire at a theater as to which you conducted an investigation and filed reports in your official capacity. 3. You are hereby ordered to pay a treble penalty of $1 (three times the financial gain of $650 you received) and forward a check to the State Ethics Commission payable to the State Treasury within thirty days of the date of this order. 4. You violated Section 4(a) of the Ethics Act when you failed to file Statements of Financial Interests as a public employee both in your position of Fire Captain and Platoon Captain in the City of Pittsburgh for the calendar years 1981 through 1987. 5. You are hereby directed to file Statements of Financial Interests referenced in Section 3 above with the City of Pittsburgh within thirty days of the date of this Order. 6. This matter will be referred to the appropriate law enforcement authority for review and appropriate action. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. S408(a). However, this Order is final and will be made available as a public document 15 days after service (defined as mailing) unless you file documentation with 1 _Mr. Thomas W. Hitchings Page 13 the Commission which justifies reconsideration and/or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). Enclosures (SFI -7) By the Commission, Joseph W. Marshall, III Chairman