Hitchings v. Pennsylvania State Ethics Commission

PALLADINO, Judge.

Thomas W. Hitchings appeals an order of the State Ethics Commission (the Commission) which concluded that Hitchings violated subsections 3(a) and 4(a) of Pennsylvania’s ethics act governing public officials and public employees (Ethics Act), Act of October 4, 1978, P.L. 883, 65 P.S. §§ 403(a) and 404(a).¹

On August 24, 1988, the Commission began an investigation of the conduct of Hitchings for possible violations of the Ethics Act. Without a hearing, the Commission issued an order that concluded that Hitchings violated the Ethics Act. This court vacated that order and remanded the case to the Commission for a hearing. Hitchings v. State Ethics Commission, 128 Pa.Commonwealth Ct. 469, 563 A.2d 988 (1989). Following a hearing, the Commission issued an order dated December 14, 1990 that concluded that Hitchings violated subsections 3(a) and 4(a) of the Ethics Act,² and which imposed a treble penalty of $1,950 on Hitchings.

The facts of this case, as reported by the Commission in its decision dated December 14, 1990, are as follows. Between 1981 and 1988, Hitchings served as a fire captain assigned as an investigator with the Arson Strike Team in Pittsburgh. Finding of Fact 1. As part of his job responsibilities, Hitchings supervised the investigation of fires, Finding of Fact 9.i.(l), and had authority to make a final determination as to the cause and origin of fires, Finding of Fact 9.s.

On February 5, 1984, a fire occurred at the Arcade Theater in Pittsburgh, Finding of Fact 2, which Hitchings investigated. Finding of Fact 6. His investigation activities included personally appearing at the site of the fire while the fire was in progress, Finding of Fact 16.c., inspecting the site of the fire to determine its cause, Finding of Fact 16.d.-v., and filing a report dated March 5, 1984 regarding the fire with the Chief of the Pittsburgh Fire Department. Finding of Fact 6.c.-d. Hitchings utilized his expertise as an arson investigator and exercised discretion in drafting his analysis of what caused the fire. Finding of Fact 9.h.(2)(d).

Subsequently, one of the owners of the Arcade Theater, Stanley Kramer, filed a defamation lawsuit against KDKATV, a local television station, claiming that KDKA-TV had reported the fire was caused by arson and the owners of the theater may have been involved. Finding of Fact 3. In preparing KDKA-TV’s defense to Kramer’s lawsuit, counsel to KDKA-TV hired Hitchings at a rate of $50 per hour to testify about whether the fire at the Arcade Theater was caused by arson. Finding of Fact 10.b.(2).

Though the Commission made no finding with respect to whether Hitchings ever did in fact testify in court on behalf of KDKA-TV, the Commission did find that Hitchings prepared a report on the cause of the fire³ and consulted with defense counsel. Services rendered included: (1) a two-hour meeting with counsel on March 18, 1986, a date Hitchings’ personnel records indicate he worked a full day for the City of Pittsburgh; (2) using two hours for preparation of a report on March 24, 1986, a date Hitchings’ personnel records indicate he worked a full day for the City of Pittsburgh; (3) a nine hour consultation on March 31, 1986, a day Hitchings took a vacation day. Findings of Fact 17, 20 and 22. In preparing the report on the cause of the fire, Hitchings relied on, among other items, his own investigative file on the Arcade Theater fire which included a private, confidential memorandum he presented to Charles Lewis, Chief of the Pittsburgh Fire Department. Findings of Fact 6 and 22.a.; R. at 363a-79a. Counsel to KDKA-TV ultimately paid Hitchings $650 for his services. Finding of Fact 7.

Hitchings appeals from the order of the Commission that concluded, on the basis of the above facts, that he violated the Ethics Act. The principal issue presented on appeal is whether a fire department captain in charge of arson investigations is a public employe as defined by the regulations promulgated pursuant to the Ethics Act. Collateral to that issue is whether the Ethics Act as applied violated constitutional rights to equal protection, whether the Commission’s order constituted an unconstitutional intrusion into the judicial power of this Commonwealth and the United States, and whether the Commission commingled its prosecution and adjudicative functions, thereby violating Hitchings’ right of procedural due process.

Our scope of review in considering an order of the Commission is limited to determining whether constitutional rights have been violated, an error of law was committed, and necessary factual findings are supported by substantial evidence. Phillips v. State Ethics Commission, 79 Pa.Commonwealth Ct. 491, 470 A.2d 659 (1984). Because Hitchings raised no substantial evidence arguments, we confine our analysis to whether it was an error of law for the Commission to conclude that Hitchings was a public employe subject to the Ethics Act, and whether any constitutional claims have merit.

We note initially that the Commission found that Hitchings violated provisions of the Ethics Act which apply to public officials and public employes. See subsections 3(a) and 4(a) of the Ethics Act, 65 P.S. §§ 403(a) and 404(a) (requiring public officials and public employes not to engage in a conflict of interest, and to file a statement of financial interests, respectively). The Commission concluded that Hitchings was a public employe as defined in the Ethics Act and the Commission’s corresponding regulations.

The regulations provide the following definition:

Public employe—

(i) The term includes an individual:

(A) Who is employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of 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 the official action has an economic impact of greater than a de minimis nature on the interests of any person.

(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____

51 Pa.Code § 1.1, “Public employe” definition.

The Commission asserts that Hitchings is a public employe because, under subsection (i)(A)(IV) and (V), his official actions of a nonministerial nature entail the “inspection” of fire sites and have an economic impact of greater than a de minimis nature, and because Hitchings satisfies subsection (i)(B)(I)(-a-). Assuming that Hitchings falls within the parameters of 51 Pa.Code § 1.1, Public employe definition, subsection (i), we nevertheless conclude that Hitchings is not a public employe by virtue of the regulatory provision at 51 Pa.Code § 1.1, Public employe definition, subsection (iv)(A).

Subsection (iv)(A) states that detectives are not public employes. Hitchings asserts that because his duties are those of a detective, he is not a public employe.

Neither the Ethics Act nor the Commission’s regulations define the term “detective.” Under the rules of statutory construction of this Commonwealth, the term would then be given a meaning according to its common and approved usage. Subsections 1903(a) and 1502(a)(l)(ii) of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1903(a) and 1502(a)(l)(ii).

To determine the common and approved usage, we turn to the dictionary, which defines “detective” as:

[0]ne employed or engaged in detecting lawbreakers or getting information that is not readily or publicly accessible: an investigator of private esp. illicit or criminal affairs: a plainclothes police officer.

Webster’s Third New International Dictionary 616 (1986).⁴ Accordingly, the issue we must decide is whether, under the facts as found by the Commission, Hitchings is a detective as defined above.

The Commission found that Hitchings’ duties involved surveying the scene of a fire to determine where the fire started and its cause (Finding of Fact 9.f.(l)); filing two reports detailing the basic elements of the investigation and a summation of his findings in a particular case (Findings of Fact 9.h.(l) and (2)(c)); supervising all activities regarding the investigation of the fire (Finding of Fact 9.i.(l)); interviewing witnesses in the field (Finding of Fact 9.r.(l)); referring suspicious fires to federal or other agencies (Finding of Fact 9.r.(3)); and making and forwarding to the fire chief a final determination as to the cause and origin of a fire (Finding of Fact 9.s.).

We conclude that these duties render Hitchings a detective as that term is used in the Commission’s regulations. Both the definition of “detective” and Hitchings’ duties center on performing an “investigation” and on “detecting lawbreakers” through the use of information not readily accessible to the public.

Many of the Commission’s findings themselves use the term “investigate” to describe Hitchings’ work duties. Kg. Findings of Fact 9.e.(l) (Hitchings has “duties in the area of fire arson investigation”); Finding of Fact 9.1(1) (“The investigator surveys a scene____”); Finding of Fact 9.h.(l) (Hitchings was required to file a report “containing the basic elements of the investigation”); Finding of Fact 9.i. (“Hitchings spent the majority of his time as a full-time fire arson investigator and investigated [the Arcade Theater] fire”); Finding of Fact 9.u. (“A fire arson investigator has the first opportunity to review a fire scene before access is available to the general public”).

Moreover, as a captain in the City of Pittsburgh Fire Department responsible for arson investigations (Finding of Fact 9.e.(l)), Hitchings was charged with the task of “detecting lawbreakers” who commit the crime of arson. See Finding of Fact 9.v. (Hitchings testified at the criminal trial as to the Arcade Theater fire).

Finally, the record clearly indicates that Hitchings used information not available to the public in performing his investigative duties. Attached to the memorandum on the Arcade Theater fire which Hitchings filed with the Chief of the City of Pittsburgh Fire Department was a confidential laboratory report regarding samples of charred wood. See also Finding of Fact 9.u., above.

Because the duties of Hitchings are encompassed by the term “detective,” we hold that Hitchings is not a “public employe” under the Ethics Act as implemented by the Commission’s regulation at 51 Pa.Code § 1.1, “Public erriployee” definition. Because only public employees are subject to the Ethics Act, we further hold that the Commission erred by concluding that Hitchings violated sections 3(a) and 4(a) of the Ethics Act, 65 P.S. §§ 403(a) and 404(a).

Because we have determined that Hitchings is not subject to the Ethics Act, we need not address his constitutional arguments.

The order of the Commission is reversed.

PELLEGRINI, J., did not participate in the decision in this case.

ORDER

AND NOW, April 20, 1992, the order of the State Ethics Commission in the above-captioned matter is reversed.

1 . This case was re-assigned to the author on April 3, 1992.

2 . Subsection 3(a) of the Ethics Act states “[n]o public official or public employee shall engage in conduct that constitutes a conflict of interest.” 65 P.S. § 403(a). Subsection 4(a) requires, among other things, that public employees annually file statements of financial interest with the entity for which they are employed. 65 P.S. § 404(a).

3 . The Commission found that the report was prepared because of a practice in the United States District Court for the Western District of Pennsylvania (the court that heard Kramer’s defamation suit) that witnesses in civil litigation file a pre-trial statement. Commission Decision, at 31.

4 . We note that neither the definition of ‘‘detective’’ provided in Webster’s nor the regulations of the Commission indicates that a detective must be a member of a police force. That Hitchings was employed by the City of Pittsburgh Fire Department thus does not preclude his being classified as a detective. We further note that certain subsections within the Commission’s definition of public employe distinguish between employes who are members of a police force and those who are not. See, e.g., 51 Pa.Code § 1.1, Public employe definition, subsection (iii)(D) (referencing "police chiefs”); 51 Pa.Code § 1.1, Public employe definition, subsection (iv)(A) (referencing "police officers”). The term "detectives” in 51 Pa.Code § 1.1, Public employe definition, subsection (iv)(A), however, is not preceded by the term “police", thus presenting the inference that the Commission intended for detectives of any public employer not to be a public employe.

Additionally, while the precise term "detective” is not defined in section 2 of The Private Detective Act of 1953, Act of August 21, 1953, P.L. 1273, as amended, 22 P.S. § 12, the term “private detective business” is defined in subsection 2(b)(6) of that act, 22 P.S. § 12(b)(6), as including any investigation of "[t]he causes and origin of, or responsibility for, fires____”