dissenting.
The main issue in this case is whether a city fire department captain, functioning as an arson investigator who investigated the origin of a theatre fire and later received a fee from private attorneys for a consultant’s report based upon his official investigation, has violated the Ethics Act as a public employee who has used confidential information from his public position to obtain financial gain other than the public compensation due him by law.
In bringing this appeal from an order of the State Ethics Commission holding that he had committed such a violation, Thomas W. Hitchings, the former fire captain, has also raised constitutional questions as to (1) whether classifying him as a public employee subject to the Act is a violation of his equal protection rights, (2) whether the Commission’s holding amounts to an unlawful intrusion upon judicial functions, and (3) whether there was a violation of his due process rights by a commingling of prosecutorial and adjudicative functions on the part of the Commission’s General Counsel.
*392 The Act
Because all of the relevant events in this case occurred during the period of 1984-1986, before the Ethics Act was reenacted and amended by the Act of June 26,1989, P.L. 26, the governing statute is the original form of the Ethics Act of Oct. 4, 1978, §§ 1-13, formerly 65 P.S. §§ 401-413.
Subsection 3(a) of the Act provided:
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.
The commission’s conclusion that Captain Hitchings was subject to the Act also resulted in a holding that he had violated Section 4, requiring the filing of an annual statement of financial interests by persons covered.
The Facts
The facts, as found by the commission and well stated in the majority opinion, are essentially undisputed. Hitchings was serving as a fire captain in the Fire Department of the City of Pittsburgh, assigned to the Bureau of Fire Prevention and functioning as arson investigator in charge of all arson investigations. (407a) He supervised the investigation of fires and had authority to make a final determination as to the cause and origin of fires. (397a)
With respect to a February 5, 1984 fire at the Arcade Theatre in Pittsburgh, he investigated by personally appearing on the fire scene during the fire and afterwards, by inspecting the site to determine cause, and by filing his report with the Fire Chief on March 5.
Later, in connection with a defamation suit by one of the theatre’s owners against a television station which had allegedly implicated the owners with an arson origin of the fire, the attorneys for that plaintiff hired Hitchings to *393consult and possibly testify as to the fire origin, at $50 per hour.
Although there is no finding that Hitchings ever testified, the attorneys paid him $650 for 13 hours of consultation and preparation of a report for them, intended for pre-trial purposes. Hitchings did that work for them over three separate dates. On one of those dates, during which he had a two-hour daytime meeting with legal counsel, his city personnel records showed him working his full daytime shift for the city. On the second date, a city working day for him, he used two hours to prepare the report, but there was no evidence or specific finding that his report preparation was during his city working hours. His nine-hour consultation with the attorneys was on a third day, which he took as a vacation day from the city.
In preparing the report for the attorneys, Hitchings relied, at least in part, upon his own official investigative file that included a private, confidential memorandum from him to the Fire Chief concerning the fire.
Ethics Act Application and Interpretation
The facts show that, if the Ethics Act applies to Captain Hitchings, he did violate the section 3(a) prohibition against using “his public office” and “confidential information received through his holding public office to obtain financial gain” for himself “other than compensation provided by law....”
However, the violation was a technical and innocent one, as soundly indicated by the dissent of Ethics Commissioner Dennis C. Harrington opposing imposition of the treble penalty in the amount of three times the fee received.
According to the commission’s findings, the Pittsburgh City Law Department apparently advised that Hitchings could properly bill for expert witness services performed on personal time, with notice to the city officials for approval, in view of the truth-finding benefits to the courts, for which services the city should not have to pay.
*394Moreover, there is no indication whatsoever in the findings or the record that Hitchings had any predisposition in favor of the theatre owners at the point of developing his official report to the Fire Chief. The facts show that the private attorneys did not approach him until after he had concluded his official report.
Despite these considerations, this court must confront the threshold question: Does the public position in this case fall under the Ethics Act’s coverage definition of “public employee”? Because the “public employee” definitions in the original Act and in the reenactment of 1989 are both the same as they relate to facts like those here, and because the commission regulations on that point also remain unchanged, this court’s interpretation is important for the present and the future, as well as for the history of this case.
The pertinent provisions of the “public employee” definition, in section 2 of the Act, are as follows:
Sectiori 2. Definitions
“Public employee.” Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a non-ministerial nature with regard to:
(4) inspecting, licensing, regulating or auditing any person; or
(5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person.
The implementing regulations of the Commission, at 51 Pa.Code § 1.1, repeat the above statutory definition and add the statement that a “public employee” is a person within the statutory definition who also meets the criteria of subclauses (I) or (II).
In subclause (I), a pertinent criterion is that the person must be one “who normally performs his responsibility in *395the field without on-site supervision. In subclause (II), the pertinent criterion is that one who “[prepares or supervises the preparation of final recommendations ...” or who “[m]akes the final technical recommendations.”
The record includes a finding that a city report “reflects that Hitchings was in charge of all fire and arson investigations in the City and supervised the investigation team.” (402a) As noted in the statement of facts above, he did “normally perform[s] his responsibility in the field without on-site supervision.” 51 Pa.Code § 1.1(1) And his function was to make “the final technical recommendations.” 51 Pa.Code § 1.1(11)
Accordingly, the record facts and findings, as to Hitchings’ supervisory role and his fact-determination and conclusion-making functions as to fire origins, and the undeniable point — sharply illustrated by his sought-after services in the private litigation here — that, in the words of the statute, his “official action had an economic impact of greater than a de minimis nature on the interests of any person,” Act § 2(5), lead to the conclusion that Hitchings role was that of a “public employee” subject to the Ethics Act.
However, he is also entitled to look to the provision at (iv)(A) of the commission’s 51 Pa.Code § 1.1 definition, which is one of the listings of persons generally not considered public employees. It excludes:
(A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators and recreation directors. (Emphasis added)
Thus the final question as to coverage by the Act is whether Hitchings, in view of his investigatory function in relation to the crime of arson as well as to general safety concerns about fire causes, was exempt as a detective.
He clearly was not a police officer. Although he was authorized to bear a city-issued firearm, there is no finding that he had any power of arrest, nor any responsibility for law enforcement generally.
*396Neither the Act nor the ethics regulations define the exempted category of “detective.” We therefore must turn to the common and approved usage of that term, as we are directed by the Statutory Construction Act, 1 Pa.C.S. §§ 1502(a)(l)(ii), 1903(a).
Certainly the common understanding of a detective is that it signifies the occupation of investigating wrongdoing, either as a member of a police force or as a private operative. A fire department officer, with supervisory responsibilities, and the duty of reaching conclusions as to fire origins for both arson and safety purposes, does not fit the common understanding of a detective’s occupation.
Significantly, the commission’s detective exemption is linked with positions not having the discretionary, judgmental and determination-reaching functions of Hitchings’ position as a fire captain in charge of arson investigations; the jobs grouped with “detectives” include clerical staff, secretaries, caseworkers, maintenance workers, equipment operators and recreation directors — none of whose roles involve official action of an economic impact of “greater than a de minimis nature of the interests of any person,” in the way that Hitchings’ functions did. The economic factor is the key, because economic impact provides the incentive for corrupt solicitations by persons involved, and thus it is economic temptations which are subject to constraints by the Act. As noted above, the impact of. Captain Hitchings’ powers provided the very reason that building owners sought him to back them in their litigation.
Captain Hitchings’ powers, rather than resembling those of a police detective, were very much like those of the claim settlement officer held by this court to be a “public employee” covered by the Ethics Act in Phillips v. State Ethics Commission, 79 Pa.Commonwealth Ct. 491, 470 A.2d 659 (1984). This court there, noting that Ethics Act coverage should be construed broadly and exclusions read narrowly, held that the settlement officer’s powers to investigate and recommend the disposition of claims were determinative, *397rejecting an attempted comparison to police officers and detectives.
Unlike police officers or detectives working their beats under the control of their supervisors, the captain’s position here was one appropriately within the statute’s express coverage of inspecting, regulating or auditing with a substantial impact upon economic interests.
Although the legislature, 25 years before the Ethics Act, defined “private detective business” to include the investigation of fires — in the Private Detective Act of 1953, Act of August 21,1953, P.L. 1273, § 2 os amended, 22 P.S. § 12— that enactment had purposes and concerns wholly unrelated to the concerns of the legislature in the Ethics Act with respect to public officials.
Indeed, if the Private Detective Act of 1953 had any relevance here, it would serve only to indicate that, if arson investigation is sufficiently important to be subjected to an extensive licensure law when carried on by private persons, it certainly has sufficient importance, when carried on by a public official, to be subject to the Ethics Act and not to be exempt from it.
Captain Hitchings was subject to the Act, not exempt.
Constitutional Claims
Certain constitutional issues are presented by counsel on Captain Hitchings’ behalf.
The first claim is that applying the Act to this fire captain’s public role is a discriminatory denial of equal protection of laws because, as the claim goes, volunteer fire company chiefs also investigate and rule upon arson matters and they are exempt under statutory language which formerly stated that the definition of “public official” did not include “any appointed official who receives no compensation----”
That theory is actually obsolete because, in 1981, before the events of this case, the Supreme Court pursued a similar analysis and, as a consequence, invalidated the no-*398compensation exemption in Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981), holding that uncompensated school board members had to be subjected to the Act as fully as compensated school members. Hence, the Act has been judicially construed, in order to save its constitutionality, as covering public officials who receive no compensation. The distinction between paid and unpaid officials became legally non-existent before the events of this case. (The 1989 amendment codified the judicial ruling by deleting the offending non-compensation exemption. Act of June 26,1989, P.L. 26, § 1)
As a further aspect of the equal protection defense, the petitioner contends that there is no rational basis for distinguishing between the expressly-excluded police officers and detectives, on the one hand, and Captain Hitchings’ role on the other hand. This claim must fail because of the substantial distinctions stated above, particularly the higher rank, supervisory powers, and determination-making powers of Captain Hitchings’ position, compared to the lesser powers of the detective or police officer on the beat.
The next claim is that applying the Ethics Act to govern his employment as an expert civil litigation witness amounts to an unconstitutional infringement on the judicial powers of the courts.
Of course, the plain words of the Act do not interfere with the practice and procedures of the courts, nor with the desires or aims of private attorneys. Testifying is not prohibited. A public employee such as Captain Hitchings is not exempt from subpoena. Nor is there anything in the ethics regulations which would bar the presentation of a report if duly subpoened, or if authorized by the department having control over the information gathered.
Thus the courts are not affected. All the Act does is prohibit the public employee from using his public office and confidential information, obtained for the public, for personal gain. Regulation of the ethics and the compensation of an executive branch municipal official subjects the judicial branch to no constraint whatsoever.
*399Nor is the fact that the ethics complaint here was filed by one Kramer, who was on the other side of the civil litigation from the party aided by Captain Hitchings, relevant to the application of the Act. The motives of complainants are of no moment if the facts, as here, show that the complaint is not frivolous. Cf. Act § 10.1, 65 P.S. § 410.1, in the amended law.
Finally there is the claim of denial of due process on the ground that the official role of the chief counsel of the commission unlawfully commingles prosecutorial and adjudicative functions.
Both the Act and the record in this case refute that commingling contention. Section 8 of the Act, 65 P.S. § 408, governing the investigations and prosecutions of the commission, clearly identifies the executive director, not the chief counsel, as the investigator and prosecutor. Under subsections (a) through (d), it is the executive director who is expressly empowered to conduct preliminary inquiries and further investigations. 65 P.S. § 408(a)-(d) Section 6, 65 P.S. § 406, makes the executive director responsible for the administrative operations and identifies the chief counsel only as the legal officer of the commission.
In view of the explicit vesting of the charge-initiating duties in the executive director, there is no contrary implication to be drawn from the mere fact that the statute and regulations describe the chief counsel as being part of the staff. Although Section 6(i) of the Act, 65 P.S. § 406(i), recognizes the chief counsel as being part of the staff, and the regulations confer investigation and prosecution responsibilities upon “the staff,” 51 Pa.Code 2.32-2.36, the explicit statutory language summarized above, conferring the investigative and prosecutorial duties upon the executive director, shows that use of “staff” in the regulations is intended merely to distinguish those positions from the membership of the commission itself.
Throughout the record, from the start of the hearings mandated by this court, Executive Director John Contino functioned as prosecutor, along with his director of investí*400gations. Chief Counsel Dopko performed only the role of advising the commission. Soja v. Pennsylvania State Police, 500 Pa. 188, 455 A.2d 613 (1982) and Dussia v. Barger, are distinguishable, being cases in which the State Police Commissioner, as the final adjudicator, received preliminary evidence apart from that given to the court martial board (Soja) or actually initiated the charges. (Dussia)
Contrary to petitioner’s contention that the chief counsel made evidence rulings, the record shows that the chief counsel, in every one of those instances, merely acknowledged the admission of exhibits where there was a stipulation or opposing counsel stated that there was no objection. (68a, 70a, 148a, 150a, 164a, 181a, 229a.)
The roles here were quite different from the cases involving commingling of roles by legal counsel; in those cases, counsel advising the adjudicative body was also the attorney conducting the prosecution by presenting evidence and otherwise functioning as the trial attorney against the charged party. Cf. Horn v. Hilltown Township, 461 Pa. 745, 337 A.2d 858 (1975); English v. Northeast Board of Education, 22 Pa.Commonwealth Ct. 240, 348 A.2d 494 (1975).
All the constitutional claims should be rejected.
Conclusion
The decision of the commission should be treated as modified in accordance with the dissent of Commissioner Harrington and should be affirmed as so modified. As amended, subsection 9(c) of the Act, 65 P.S. § 409(c), now provides that “Treble damages shall not be assessed against a person who acted in good faith on the advice of legal counsel,” as here. Disgorging the amount received should be all that is required.
McGINLEY and SMITH, JJ., join in this dissent.