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HomeMy WebLinkAbout883 KramerSTATE ETHICS COMMISSION 305 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: Stanley Kramer File Docket: 88 -063 -C Date Decided: May 6. 1993 Date Mailed: Mav 11, 1993 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Roy W. Wilt Austin M. Lee Allan M. Kluger The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing was waived. A Consent Order was submitted by the parties to the Commission four consideration which was subsequent) ,approved. This adjudication of the Commission is hereby issueyi It t ick, ck, sets ferth the individual Allegations, Findings of Fact, D scuss4on.. _ co n clusl.ons of Law and Order. This ad judiiztation is f.jnal and will be made available as a public document fifteen days utter.. 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.,., tf,ect. the finality of this adjudication. A reconsideration requ must be received at thi Commission within, fifteen days ,o x Zsvpayrce and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 52.38. The files in this case will remain Ogniieleittlial in accordance with Section 8(a) of Act 170 of 19 duri rtg• fifteen day period and no one unless the right to challenge i% Order is waived, may violate confidentiality by releasinc,, ettscussing or circulating this. Order. However, confidentiality does not preclude . discussing this case with an attorney at law. Any _person who violates confidentiality of the Etthic Act is guilty of a misdemeanor, subject_ to a f e,.gf • not more. than $1,0G0 or imprisonment for not more than one y. r, 65 P.S. 409(e) Kremer, 88 -063 -C .Age .2 X, ELATION: That Stanley Kramer violated the following provisions of the Stet, Wt#siee Act (Act 170 of 1978) , when he disclosed to reporters of the Vittsburgh Post-Gazette that he had filed a Complaint with the`State Ethics Commission alleging violations of the Ethics At by ?home Hitching*, a Captain in the Pittsburgh Fire Department. lection 8. Investigations by the Commission. (s.) Upon a complaint signed under penalty of perjury by any person or upon its own motion, the commission shall investigate any alleged violation of this act. All commission proceedings and records relating to an investigation shall ,.be confidential until a final determination is made by the commission. The executive director shall notify any person under investigation by the commission of the investigation and of the nature of the alleged violation within five days of the commencement of the investigation. Within 15 days of the filing of a sworn complaint by a person alleging a violation and every 30 days thereafter until the matter is terminated, the executive director shall notify the complainant of the action taken to date by the commission. together with the reasons for such action or non-action. 63 P.S. §4.0S(a). TI. 1: Stanley Kramer was part -owner of the Arcade Theater, 1915 Bast Cars Street,, Prtt.sburgh PA 15203. 2. On Februaxy. 5,, ISM, a fire occurred at. the Arcade Theater, 1915 East. Carson Street, Pittsburgh, Pennsylvania, 3. The Bureau of Eire of' the City crf Pittsburgh investigated the fire. 4. Thomas Hatchings served. es the Chief. Arson Investigator for the City of Pittsburgh., a. He wes• ia charge of the" Aide Theater fire investigaion and__ gj ervised all activities in that regard. Hitchings supervised investigation teem' from the Pittsburgh Eire Bureau and. Eederatl. Bureau ot l.'cb}io�li, To(egco and Eizeaums... Kramer, 88 -063 -C Page 3 5. Hitchings' investigation determined: a. The point of origin of the theater fire was the rear stage area. b. The burn pattern showed a fast intense heat similar to that caused by a liquid -type accelerant. c. Hitchings eliminated natural /accidental causes of the fire; and it was his opinion that the fire was deliberately set and was arson. 6. 3itchings assisted the Pittsburgh Police detectives and ATF agents and later testified in the trial of Donald Gainer who was accused and convicted of setting the Arcade Theater fire. a. Gainer's conviction was subsequently overturned. 7. Kramer initiated a lawsuit 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. These suits included Westinghouse and KDKA -TV. b. This suit was based upon comments during the televised broadcast that the fire was caused by arson and the owners may have been involved. c. The case was a defamation action commenced by Stanley Kramer against KDKA as to a story it ran concerning the fire. d. Hitchings was hired as an expert witness to prepare a report and testify at a fee of $50 per hour that the Arcade Theater fire was caused by arson. 8. Kramer also initiated a lawsuit 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 Kramer's claim. 9. 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. See (Finding #20). a. The subpoena was issued upon the application of the 1KraMer, 88 -063 Page 4 defendant. b. His appearance was directed for November l6, 1987. 10. U.S.D.0 docket files indicate a jury trial liras held on Civil Case #84 -2940 November 16, 1987 throujh Decextibet 1, 1887. 11. On December 3, 1988, jurors returned a verdict finding in favor of the defendant, Standard Fire Ineukenee Company and against plaintiffs Stanley Kramer, Lave-the lamer, his `wife Arcade Theater Inc., and Artistic Proiotidn, Inc. 12. U.S.D.C. docket -files for Case 84 -2940 reflect a tatidh for a new trial by the plaintiff was made on December 11, 1887. 13. By way of Order dated December 15, 1987, the plaintiffss' motion for a new trial was denied. 14. The Final Order and Judgment was filed oft Heceer 28, 1987. 15. A sworn complaint w'as filed with the State Ethics OOMmmittion by Stanley Kramer against Thomas Hitchings alleging violations of the Public Official and Employee Ethics Led, as a tteult of Hitchings acting as a paid consultant privately in gelation to a fire (at the Arcade Theater) which he itvestigated in his official position. a. The complaint was notarized on beceinber 15, 1987. b. The complaint was executed by Stanley Kramer, 7245 Beacon Hill Drive, Pittsburgh, PA 15221. 16. All correspondence documents and other official items received by the State Ethics Commission are time stamped on the day they are received. 17. The complaint was received by the State Ethics Commission on December 18, 1987. The complaint was time stamped upon receipt by the State Ethics Commission. b. The time stamp indicates "State Ethics Commission Dec. 18 8:45 AM '87" a. 18. The complaint that was received by State Ethics Commission from Stanley Kramer was Form _SEC. 3' 7/84. a. This form contained instructions that included the following statement: Kramer, 88 -063 -C Page 5 Penalties for Violatina Confidentiality: Section 9. (e) Any person who violates the confidentiality of a commission proceeding pursuant to section 8, is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year, or be both fined and imprisoned. my person who willfully affirms or swears falsely in regard to any material matter before a commission proceeding pursuant to section 8 is guilty of a felony and shall be fined not more than $5,000 or imprisoned for not more than five years, or be both fined and imprisoned. 19. The complaint forwardedto the State Ethics Commission was . notarized on December 1987. a. The notary seal and attestation indicates that the complaint was signed on that day. b. f' -This `i9 the "'team day that the Federal Court denied KraMet'A-Mdtidnotor a new trial in Case 84 -2 20. By letter dated December 21, 1987 from the State Ethics Commission' 'ter"• , S..ta-nley Kramer, 4258 McCaslin Street, Pittsburgh, PA 15217 receipt of Mr. Kramer's complaint is acknowledged. a. It was noted in said letter that the allegations were being `iei iewed 'and that =he wmullti'• ` ` nbtif: d of subsequent actions. b. The lettet farther noted that "'Section 8(a) of th6 kthics Act provides that "All Commission proceedingactrcords; relating to an investigation shall be confide'titia1 unt l a final determination is made by the' Commission." c. Additionally Section 9(e) of Act 170-1978, the Ethics Act, was reprinted and enclosed with the letter. d.' Seotion l(e) of Act IT0- 1 provided as follows: Section 9. Penalties: (e) Any person who ' vici'lates ' the confidentiality of a commission proceeding pursuant. tar _ _ sentaon.'.:.8; as guilty Of a misdemeanorr" ant! 4h4k1.12. be =fie n:at_ rtto i. than Kramer, 88- 063-+C Page 6 one year, or be both fined and imprisoned. Any person who willfully affirms or swears falsely in regard to any .material matter before a commission proceeding pursuant to section 8 is guilty of a felony and shall be fined not more than $5,000 or imprisoned for not more than five years,or be both fined and imprisoned. 65 P.S. S409(e). 21. The aforementioned acknowledgement letter was mailed on December 21, 1987. 22. Sometime prior to December 27, 1987 Bill Moushey, a reporter for the Pittsburgh Post Gazette, received a copy of the complaint that had been executed by Stanley Kramer. a. The complaint was an identical copy of the complaint that Kramer had filed with the State Ethics Commission except that it did not contain the State Ethics Commission time stamp thereon. b. Moushey received the complaint in the mail. 23. Bill Moushey subsequently contacted Thomas Hitchings and questioned whether he would respond to the complaint that had been filed with the State Ethics Commission. a. Hitchings indicated that he was unaware of the complaint. b. This contact occurred sometime prior to Christmas, 12/25/87. c. Hitchings asked Moushey if he could have a copy of the complaint. 24. After this conversation, Thomas Hitchings received a copy of the complaint at his office. a. The complaint was identical to the complaint filed with the State Ethics Commission except that it did not contain the Commission's stamp. b. The complaint was delivered to Hitchings in an envelope with an imprinted return address for "Pittsburgh Poste Gazette, Pittsburgh, PA 15230." c. The envelope was addressed in handwriting to "Captain Thomas Hitchings." d. The envelope also contained the following handwritten notation "Taw Please call. Hill Moushey 263-1807." Kramer, 88 -063 -C Page 7 25. On December 27, 1987 an article ves,,,published in the Pittsburgh Post - Gazette newspaper, g$ge „;,�, .;regarding the complaint that had been filed by Stanley Kramer against Thomas Hitchings. a. The article in part provided as follows: r The city's chief arson investigator has been accused of viol4ting the state ethtgs at by working a paid private consultant in an unresolved case he supervises. Stanley Kramer, former owner of the Arcade Theater on the city's South Side, has accused Fire Capt. Thomas Hitchings of disclosing "information which he was only able to collect and summarize through his official duties.” - In a notarized complaint sent to the State Ethics Commission Dec. 15, Kramer said Hitchings admitted under oath in the insurance case that KDKA -TV lawyers -- the Pittsburgh firm of Alder Cohen & Grigsby -- paid him a private consultant's fee for a report delivered March 31, 1986. "The information in this .. report prepared by Capt. Hitchings is information which he was only able , . -to, collect and summarize - through his official duties as a Captain of the Pittsburgh Fire Department and its chief sQnrirnveatiga e- mx wrote. HitchirigV „three -page report j which Kramer included: in his .complaint tplaint, to the ethics commission,, . g &ve details about . the fire, commented on. h work of . ' : federal agents and other per5Qna1..tkServatieas and concluded, "I am of the 'epini ©n, to ; a reasonable degree of certainty, t thin fire was deliberately set, and was the result of arson." Kramer referred to a section of the state ethics -code that states: "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.. . othe .. -than compensation provided by. .1as fop% bi elf , -.a membez of - his Kramer, X8.8 -063 -C Page 8 Ilmfuediate fam4y or a business wtt t v¢h,i h he is associated..." b. The .article was written by Bill shey. 26. Bill Mousb r had • also forwarded a copy of the zamplaint to Chief Leahy of the City Fire Department. a. He was seeking commentary thereon. 27. Bill Monshey was familiar with Stanley and Eduard lemmr and talked to them on several occasions.. 28. One of the standard steps that Moushey would have taken after receiving the complaint would have been to contact the Kramers'. 29, When the complaint was notarized, Stanley Kramer was present and signed it in front of the notary. a. His wife and son were also present. b. No one, other than the notary was there. c. The notary did not copy or receive a complaint, copy of the gil. Rr r ION: 1nitiaily, it is noted that Section 9 of Act 9 of June 26, 1 989, P.L. 26, provides, in part, as follows: "'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, 1889), we must apply the provisions of- Act '170 of 1978, P.L. 883, to determine whether the Ethics Law was violated. In this case, the allegation before us is that Stanley Kramer, hereinafter Kramer, violated Section 8(a) of Act 170 of 1978 quoted above by disclosing to a Pittsburgh Post - Gazette reporter the Kramer, 88-063-C Page 9 complaint he filed with this Commission wherein he alleged a violation of the Ethics Law by Thomas Hitchings, a Captain in the Pittsburgh Fire Department. Section 8(a) of Act 170 of 1978 quoted above, provides in part that all Commission proceedings and records relating to an investigation shall be confidential until a final determination is made by the Commission. In addition, Section 9(e) of Act 170 of 1978 provides that any person who violates confidentiality is guilty of a misdemeanor and shall be fined not more $1,000 or imprisoned for not more than one year or be both fined and imprisoned. In the instant matter, the facts reflect that Kramer was a part owner of the Arcade Theater wherein a fire odtttred on February 5, 1984. An investigation was conducted by ,Thomas Hitchings, the Chief Arson Investigator of the Bureau of Fire in the City of Pittsburgh. Hitchings eliminated -natural /accidental causes for the fire and concluded that the fire was deliberately set and was arson. Donald Gainer was"tharged, tried and convicted of setting the Arcade Theater fire but the conviction was subsequently overturned. Kramer filed a lawsuit against several individuals and entities following media stories was caused by arson and that the owners may have been' involved. Kramer also filed a lawsuit against the insurance company- which Yefiised "to pay Kramer's claim. _.In'the trial against the insurance- 0'01 Hitchings was subpoenaed for the jury, trial which rendered a verdict in favor of the insurance company against Kramer. Follo4 iing the denial for the motion for new trial on December 15, 1987, Kramer filed a sworn complaint with this Commission` against Thomas Hitchings alleging violations of the Ethics haw as a . festiilt' of . HjtGni:ngs acting as a paid private consultant in relation to the:'fire at the Arcade Theater which he investigated in his official 'position. The complaint was notarized on December 15, 1987, and- *as'received at this Commission on December 18, 1987. By letter dNfet t December 21, 1987, ` this Commission sent a letter to Kratnet acknowledging the receipt of the complaint and advising -of the confidentiality requirements of Section 8(a) and the criminal. penalties under Section 9(e) of Act 170 of 1978. At Some point in time prior to Decem'lber 2.7, 1987, a Pittsburgh Post -=Gazette: reporter received a copy' Of the complaint which had been _ executed by Kramer: and was identical in all respects as to "the cotplaint.filed with this Commission but for the Commission's time receipt stamp. An article appeared in the Pittsburgh Post- Gazette on December 27, 1978, concerning that complaint. In the newspaper article, background information concerning Hitchings use of his investigative file, prepared as part of his official duties, to obtain a private' consultant fee by a law firm was set forth in the Kramer, 88 -063 -C Page 10 context of Section 3(a) of the ethics Law which prohibits use df office for financial gain. Lastly, the record reflects that when the daitiplalftt was nothf`izid, it was lone by Kramer before the notafy With his wife and aon also being present. !ft applying the pkovisiohs of Section 8(a) of the Etlids Law to the fildta of this Matter, we must determine Whdthef tL t has breached Confidentiality. There is fed fpiestiofi that Confidentiality had been breached given the publication df the article in the Pittsburgh Pdst- Ga2ette on beceifibef 27, 1 987, which contaifed infotiation ad to the domplaifit Kramer filed against Hitching's . The question before tis is whether Kramer was the pefsdfi who violated that confidentiality. Ve must deduce that Kramer made one Of i iote plotocdpids Of the complaint which he filed +eiien thdugh these afe no facts of fdd6rd to so i.naicate, It is Clear that ofte of the photocopies was sent to the Pittsburgh Post Oazatte reporter. The fecord does €ef1€et that 1 teller's Wife and SCn were present When the coniplaifit was notari Uased tipofi above, it is possible that Krather hit wi €e, his son Or possibly some tither pers6ri was the iftd vidua1 wl5io seht a copy of the complaint t6 that Pit €ebixfgt Pdtt =( aiette fepeffer. Since there is no evidence d€ fec6fd Whidh Wduld establi dh the identity Of the individtiai that breached confidentiality, we are left with nothing ictbfd it the record than pure speculation as to whether Kramr taus the individual who bread led editfi:dentialitli. On the Dallis of eft ifisufflG.iency of evidefiddi we find AO vidiatioii of Section L1 a of the Etliids Law as to Kramet regarding the breach of cofifidea1t�tity . Ad a pCstscript, upholding donfidentiality is a Matt of great concern to this C6 li:ss%bii . *fete there has bed evidende of record to establish a- breach Of ddfl €ldentiality, we have not only fond a violation but referred the latter with our fegoffidieftdatioft tao a la w enf orcement agency for a cfis'tiiial pros'ec'ution. See Order 613. -H,. !ft the instant f t €ef, however, prddf is lad •iftg which ` necessitates the 4b'6ve fegult TV. LOSIONffi .4t_i Ls L. gtattl.ey Kramer did not violate Section 8(&) di At 170 of 1978 regarding the discioSti a to i P'ittsbrr-gh P6St =58t€tte reporter Of t ei filif • of a ctisplaint with this Commission concerning in allured violation df the g €hies Law by Pittsburgh Pire Department Captain Thomas 1fitchinge. In re: Stanley Kramer : File 'Docket: 88 -063 -C Date Decided: May 6 1993 Date Mailed: Mav 11, 1993 ORDER NO. 883 1. Stanley Kramer did not violate Section 8(a) of Act 170 of 1978, based upon an insufficiency of evidence, regarding the disclosure to a Pittsburgh Post- Gazette reporter of the filing of a complaint with this Commission concerning an alleged violation of the Ethics Law by Pittsburgh Fire Department Captain Thomas Hitchings. BY THE COMMISSION, JAMES M. HOWLEY, tf