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HomeMy WebLinkAbout1608 Clark 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 Clark, 11-023 Page 2 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 Clark, 11-023 Page 3 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 Page 4 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 Clark, 11-023 Page 5 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 Clark, 11-023 Page 6 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