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In Re: Fredrick Clark, : File Docket: 11-023
Respondent : X-ref: Order No. 1608
: Date Decided: 9/24/12
: Date Mailed: 10/9/12
Before: John J. Bolger, Chair
Donald M. McCurdy, Vice Chair
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
Mark R. Corrigan
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) of the Public Official and Employee Ethics
Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegations. Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an “Investigative Complaint.” An Answer was filed. A Stipulation of Findings and a
Consent Agreement were subsequently submitted by the parties to the Commission for
consideration. The Stipulated Findings are set forth as the Findings in this Order. The
Consent Agreement has been approved.
I.ALLEGATION:
That Fredrick Clark, a public official/public employee in his capacity as a Member of
the Board of Directors of The Harrisburg Authority, violated Section 1103(a) of the
State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority
of his public position for private pecuniary benefit by receiving computer equipment
and accessories from the Authority and then retain[ing] the computer equipment
and accessories for his personal use.
II.FINDINGS:
1. Fredrick Clark served as a Member of the Board of Directors (“Board”) of The
Harrisburg Authority (“THA”) from the mid 1990's until 2007.
a. Clark was appointed to the THA Board by Harrisburg Mayor Stephen Reed.
b. Clark’s appointment to the THA Board was approved by Harrisburg City
Council through its confirmation process.
2. Clark is self-employed as President and CEO of Clark Resources, which he has
owned for approximately eleven years.
a. Clark Resources provides services in various areas such as business
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services, government and politics, diversity, and philanthropic matters.
3. Articles of Incorporation for THA have been amended by Harrisburg City Council by
way of ordinance from when it was first established in 1957 through its current
existence.
a. When THA was formed in 1957, it was known as the Harrisburg Sewerage
Authority.
b. On July 17, 1978, the term of its existence was extended through May 31,
2028.
c. On December 1, 1987, the Harrisburg Sewerage Authority was renamed the
Harrisburg Water and Sewer Authority.
d. On January 23, 1990, the Harrisburg Water and Sewer Authority was
renamed The Harrisburg Authority.
4. Articles of Incorporation for THA provide the following:
To engage in acquiring, holding, constructing, financing, improving, maintaining and
operating, owning and leasing projects of the kind and character contemplated by
law for a general purpose authority, as authorized and permitted by, and also as
limited by provisions of the Municipality Authorities Act, the Act of May 2, 1945, P.L.
382, as amended or supplemented, and by any other applicable statute or law.
5. The THA Board currently consists of five Members serving staggered terms.
6. Individuals serving on THA's Board do not receive a defined compensation.
7. Authority by-laws created the officer positions of Chairman, Vice-Chairman,
Secretary, Treasurer, and one or more Assistant Secretary/Treasurer(s).
8. The by-laws of THA effective June 26, 2006, through October 2007, under Article III
Officers, identify the functions of the Chairman and Vice-Chairman.
Chairman
a. - The Chairman shall function as the Chief Executive Officer of
the Authority exercising the executive and administrative powers of the
Authority. The Chairman shall preside at all meetings of the Authority, and
shall submit to the Authority such recommendation and information as the
Chairman may consider proper. Except as otherwise authorized by
resolution of the Authority, the Chairman shall execute all contracts, deeds,
bonds, or other instruments made by the Authority in its name. The
Chairman shall appoint all members of committees, established by resolution
of the Authority. The Chairman shall notify the Mayor of the City of
Harrisburg, at least one month in advance, of the expiration of the term of
office of any member of the Authority. In addition, the Chairman shall notify
the Mayor of the City of Harrisburg of any resignation of a member of the
Authority, stating the unexpired term thereof. He shall, in the intervals
between meetings, consult with the various officers and employees of the
Authority regarding the business of the Authority and perform such other
duties as directed by the Authority.
1. On October 4, 2007, the by-laws were amended in that the Chairman
was to notify Harrisburg City Council at least one month in advance of
the expiration of the term of office of any Member of the Authority and
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also to notify Harrisburg City Council of any resignation of a Member
of the Authority, stating the unexpired term thereof.
b. Vice-Chairman - In the absence of the Chairman, the Vice Chairman shall
preside at all meetings of the Authority, and in the case of the resignation,
death, or inability of the Chairman to perform his duties, the Vice Chairman
shall perform the duties of the Chairman and shall perform such other duties
as directed by the Authority.
9. On October 24, 2007, the by-laws of THA were amended to make the officer
positions gender neutral.
a. The Chairman became known as the Chairperson and the Vice-Chairman
was now identified as Vice Chairperson.
10. In or around 1998 or 1999, THA decided to purchase computer equipment for Board
Members that could be utilized and kept at their homes.
a. The purpose of purchasing computer equipment was, interalia, to eliminate
the amount of paperwork the Board Members would have to keep and store
at their homes.
b. There were no formal resolutions or motions by the Board approving this
practice, and no formal policy was enacted by the Board regarding the use of
the computers by Board Members.
11. The computer equipment was to be utilized by Board Members for THA business.
12. The computer equipment was purchased through THA's Administration account.
a. THA’s unwritten practice was that when a Board Member or Senior Staff
employee either resigned or was replaced, they were responsible for either
returning the equipment or paying for the estimated cost.
b. Clark maintains that he was never advised of this practice.
13. Clark was provided with two laptops, a desktop computer, two printers, and various
computer accessories totaling $7,912.54 at THA expense between April 1998 and
July 2005.
a. Clark submits that he used the equipment solely for THA business, not for
personal use, and the Commission has no information or evidence to the
contrary.
14. Clark was replaced as a THA Board Member during or around 2007.
15. On April 18, 2008, correspondence was sent from THA to Clark, requesting
payment by May 15, 2008, for all THA-owned equipment that was provided to Clark.
16. Clark maintains he never received this April 18, 2008, correspondence.
17. THA staff determined the 2008 value of the computer equipment by utilizing price
checks on eBay, and the 2008 value of the computer equipment was determined to
be $1,810.00.
18. The April 18, 2008, correspondence included an invoice in the amount of $1,810.00
Clark, 11-023
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for equipment provided to Clark by THA, and payment in the form of a check was
requested by May 15, 2008.
a. Clark denies that he received the invoice sent under cover letter dated April
18, 2008, and [maintains] that he only saw copies of the April 18, 2008, letter
and invoice when they were shown to him by the State Ethics Commission in
2011.
19. Clark forwarded a check dated December 13, 2011, to THA in the amount of
$1,810.00, representing payment for the computer equipment.
a. Under cover letter dated January 18, 2012, THA returned the check to Clark.
b. THA's January 18, 2012, correspondence indicated that it returned the check
to Clark pending the conclusion of any matter pending before the State
Ethics Commission.
20. Subsequent to the date Fredrick Clark was invoiced for the computer equipment
(i.e., April 18, 2008), it was determined that on or about October of 2005, an
insurance claim was made by THA for one of the laptop computers and a
Blackberry cell phone, which were reported stolen.
a. THA was reimbursed by the insurance company in the amount of $848.60
for the stolen laptop and cell phone.
b. There is no indication of which laptop computer was reported stolen;
therefore, for purposes of this Stipulation of Findings, the highest priced
laptop computer will be deducted from the total invoiced amount of
$1,810.00.
c. For purposes of this Stipulation of Findings only, the laptop for which the
insurance claim was made by THA is the Inspiron 9300, Pentium M 750
(1.86 GHz, 533 MHz FSB), 17 inch Wide Screen, Type 3 Contract, 40GB
Ultra ATA Hard Drive, CyberLink Power DVD v5.5, Extra Large Nylon
Deluxe Carrying Case, Intel PRO/Wireless 2200 Internal Wireless, valued by
THA at $625.00.
21. Clark was not charged for the Blackberry cell phone in the invoice sent to Clark
under cover letter dated April 18, 2008.
a. The following table represents a listing of the computer equipment for which
Clark agrees to pay in order to resolve this dispute:
2008
Assessed
Description of Equipment
Value
Scroller Mouse/Surge Protector $15.00
HP DeskJet 35çprinter $95.00
Desktop computer $250.00
Dell Inspiron 8500 laptop computer $425.00
Dell Inspiron 9300 laptop computer $0.00
(THA reimbursed by insurance company for (Originally invoiced
this laptop, which was reported stolen) to Clark for $625.00)
Sandisk 512 MB Upgrade $15.00
$15.00
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HP 0)7410 Color Printer $250.00
Speed Booster Upgrades (4) $100.00
Blue Tooth Earpiece $35.00
-
$1,185.00
b. The 2008 value of the computer equipment shall be determined as $1,185.00
($1,810.00 (amount Clark was invoiced on April 18, 2008) - $625.00 (2008
assessed value of laptop computer)).
22. Clark received a pecuniary gain of $1,185.00 as a result of his use of the authority
of his public position, when he retained computers and related equipment
purchased by THA, after the expiration of his term; however, Clark maintains that he
used the computer equipment in his possession solely for THA business and did not
use it following his service to THA.
III.DISCUSSION:
As a Member of the Board of Directors (“Board”) of The Harrisburg Authority (“THA”)
from the mid-1990s until 2007, Respondent Fredrick Clark, hereinafter also referred to as
“Respondent,” “Respondent Clark,” and “Clark,” was a public officialsubject to the
provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101
et seq.
The allegation is that Clark violated Section 1103(a) of the Ethics Act when he used
the authority of his public position for private pecuniary benefit by receiving computer
equipment and accessories from the Authority and then retaining the computer equipment
and accessories for his personal use.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
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a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official/public employee from
using the authority of public office/employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official/public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Clark served as a Member of the THA Board from the mid-1990s until 2007. During
Clark’s service on the THA Board, THA provided computer equipment to Board Members
to use and keep at their homes. The computer equipment was to be utilized for THA
business. THA’s unwritten practice was that when a Board Member either resigned or was
replaced, the Board Member was responsible for either returning the equipment or paying
for the estimated cost. Clark maintains that he was never advised of this practice.
Between April 1998 and July 2005, Clark was provided at THA’s expense with two
laptops, a desktop computer, two printers, and various computer accessories, at a total
cost to THA of $7,912.54. Clark was replaced as a THA Board Member in or around
2007.
On April 18, 2008, THA sent Clark a letter and invoice requesting payment in the
amount of $1,810.00 by May 15, 2008, for computer equipment provided to Clark by THA.
Staff of THA determined the 2008 value of the computer equipment to be $1,810.00 by
utilizing price checks on eBay. Clark maintains that he never received the April 18, 2008,
letter and invoice from THA and that he only saw copies of the letter and invoice when they
were shown to him by the State Ethics Commission in 2011.
Clark forwarded to THA a check dated December 13, 2011, in the amount of
$1,810.00, representing payment for the computer equipment. THA returned Clark’s check
to him with a letter dated January 18, 2012, indicating that his check was being returned
pending the conclusion of any matter pending before the State Ethics Commission.
Subsequent to the date that Clark was invoiced by THA for the computer equipment,
it was determined that in or about October of 2005, THA made an insurance claim for one
of the laptop computers issued to Clark, which had been reported stolen. THA was
reimbursed by the insurance company in the amount of $848.60 for the stolen laptop and a
Blackberry cell phone which had also been reported stolen.
The parties have stipulated that the 2008 value of the computer equipment issued to
Clark by THA is $1,185.00, calculated as the amount that THA invoiced Clark for such
computer equipment on April 18, 2008 ($1,810.00), less a deduction for the 2008 assessed
value of the highest priced of the two laptop computers issued to Clark ($625.00). See,
Fact Findings 20 b-c, 21 a-b.
The parties have stipulated that Clark received a pecuniary gain of $1,185.00 as a
result of his use of the authority of his public position when he retained computers and
related equipment purchased by THA after the expiration of his term. Clark maintains that
he used the computer equipment in his possession solely for THA business and did not
use it following his service to THA.
Clark, 11-023
Page 7
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations
as follows:
3. The Investigative Division will recommend the following in
relation to the above allegations:
a. That a violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
1103(a) occurred in relation to Clark's retention
of computer equipment and accessories upon
the expiration of his term as a Member of the
Board of Directors for THA and his failure to
either timely return or reimburse THA for the
same.
4. Clark agrees to make payment in the amount of $1,185.00 in
settlement of this matter payable to The Harrisburg Authority
and forwarded to the Pennsylvania State Ethics Commission
within thirty (30) days of the issuance of the final adjudication
in this matter.
5. Clark agrees to not accept any reimbursement, compensation
or other payment from [The] Harrisburg Authority representing
a full or partial reimbursement of the amount paid in settlement
of this matter.
6. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other
authority to take action in this matter. Such, however, does not
prohibit the Commission from initiating appropriate
enforcement actions in the event of Respondent's failure to
comply with this agreement or the Commission's order or
cooperating with any other authority who may so choose to
review this matter further.
Consent Agreement, at 1-2.
In considering the Consent Agreement of the parties, we accept the
recommendation of the parties for a finding that a violation of Section 1103(a) of the Ethics
Act occurred in relation to Clark's retention of computer equipment and accessories upon
the expiration of his term as a Member of the Board of Directors for THA and his failure to
either timely return or reimburse THA for the same.
Between April 1998 and July 2005, Clark was provided at THA’s expense with two
laptops, a desktop computer, two printers, and various computer accessories, at a total
cost to THA of $7,912.54. Such equipment was to be utilized for THA business. THA’s
unwritten practice was that when a Board Member either resigned or was replaced, the
Board Member was responsible for either returning the equipment or paying for the
estimated cost. Clark was replaced as a THA Board Member in or around 2007. On April
18, 2008, THA sent Clark a letter and invoice requesting payment in the amount of
$1,810.00 by May 15, 2008, for computer equipment provided to Clark by THA. Clark
forwarded to THA a check dated December 13, 2011, in the amount of $1,810.00, but THA
returned Clark’s check to him pending the conclusion of any matter pending before the
Clark, 11-023
Page 8
State Ethics Commission. The parties have stipulated that Clark received a pecuniary gain
of $1,185.00 as a result of his use of the authority of his public position when he retained
computers and related equipment purchased by THA after the expiration of his term.
We hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a),
occurred in relation to Clark's retention of computer equipment and accessories upon the
expiration of his term as a Member of the Board of Directors for THA and his failure to
either timely return or reimburse THA for the same. Cf., Keller, Order 1603.
As part of the Consent Agreement, Clark has agreed to make payment in the
amount of $1,185.00 in settlement of this matter payable to The Harrisburg Authority and
forwarded to this Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
Clark has agreed to not accept any reimbursement, compensation or other payment
from THA representing a full or partial reimbursement of the amount paid in settlement of
this matter.
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
Accordingly, per the Consent Agreement of the parties, Clark is directed to make
payment in the amount of $1,185.00 payable to The Harrisburg Authority and forwarded to
th
this Commission by no later than the thirtieth (30) day after the mailing date of this
adjudication and Order.
Per the Consent Agreement of the parties, Clark is further directed to not accept any
reimbursement, compensation or other payment from THA representing a full or partial
reimbursement of the amount paid in settlement of this matter.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV.CONCLUSIONS OF LAW:
1. As a Member of the Board of Directors (“Board”) of The Harrisburg Authority
(“THA”) from the mid-1990s until 2007, Respondent Fredrick Clark (“Clark”) wasa
public official subject to the provisions of the Public Official and Employee Ethics
Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.
2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in
relation to Clark's retention of computer equipment and accessories upon the
expiration of his term as a Member of the Board of Directors for THA and his failure
to either timely return or reimburse THA for the same.
In Re: Fredrick Clark, : File Docket: 11-023
Respondent : Date Decided: 9/24/12
: Date Mailed: 10/9/12
ORDER NO. 1608
1. As a Member of the Board of Directors of The Harrisburg Authority (“THA”), Fredrick
Clark (“Clark”) violated Section 1103(a) of the Public Official and Employee Ethics
Act, 65 Pa.C.S. § 1103(a), in relation to his retention of computer equipment and
accessories upon the expiration of his term as a Member of the Board of Directors
for THA and his failure to either timely return or reimburse THA for the same.
2. Per the Consent Agreement of the parties, Clark is directed to make payment in the
amount of $1,185.00 payable to The Harrisburg Authority and forwarded to the
th
Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after
the mailing date of this Order.
3. Per the Consent Agreement of the parties, Clark is further directed to not accept
any reimbursement, compensation or other payment from THA representing a full or
partial reimbursement of the amount paid in settlement of this matter.
4. Compliance with paragraphs 2 and 3 of this Order will result in the closing of this
case with no further action by this Commission.
a. Non-compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
___________________________
John J. Bolger, Chair