HomeMy WebLinkAbout1114 ClipperIn Re: David Clipper
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STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Julius Uehlein
Louis W. Fryman
Frank M. Brown
Susan Mosites Bicket
97- 051 -C2
Order No. 1114
2/26/99
3/10/99
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission
conducted an investigation regarding a possible violation of the Public Official and
Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et sea., by the above -
named Respondent. At the commencement of its investigation, the Investigative
Division served upon Respondent written notice of the specific allegation(s). 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 and a hearing was waived. The record is complete. A Consent Agreement
was submitted by the parties to the Commission for consideration which was
subsequently approved.
Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official
and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S.
§1101 gt seq., which essentially repeats Act 9 of 1989 and provides for the
completion of pending matters under that Act.
This adjudication of the State Ethics Commission is issued under Act 93 of
1998 and will be made available as a public document thirty days after the mailing
date noted above. However, reconsideration may be requested.- Any reconsideration
request must be received at this Commission within thirty days of the mailing date and
must include a detailed explanation of the reasons as to why reconsideration should
be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration
will not affect the finality of this adjudication but will defer its public release pending
action on the request by the Commission.
The files in this case will remain confidential in accordance with the Ethics Act.
Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor
subject to a fine of not more than $ 1,000 or imprisonment for not more than one year.
Confidentiality does not preclude discussing this case with an attorney at law.
Cliooer, 97- 051 -C2
Page 2
I. ALLEGATION: That David Clipper, a public official /public employee in his
capacity as chairman and chief administrative law judge for the Pennsylvania Board of
Claims, violated Section 3(a) of the State Ethics Act (Act 9 of 1989, 65 P.S. §401
seq.) when he used the authority of office for the private pecuniary benefit of himself
and /or a business with which he is associated by using Commonwealth equipment,
including but not limited to cellular telephones, computers, typewriters and fax
machines, supplies and employees for his private practice of law.
II. FINDINGS:
1. David C. Clipper has served as Chairman and Chief Administrative Judge
of the Pennsylvania Board of Claims from January of 1994 to the present.
a. Clipper held the position of Chief Counsel for the Board of Claims in
1992 and 1993.
2. The Board of Claims was created on October 5, 1978, by the Pennsylvania
General Assembly pursuant to Act 260.
a. The Board of Claims supersedes the former Board of Arbitration
Claims.
3. The Board of Claims has exclusive jurisdiction to hear and determine claims
against the Commonwealth arising from contracts to which the
Commonwealth is a party, where the amount in controversy is $300 or
more.
a. The Board has exclusive jurisdiction to hear and determine those
claims against the Commonwealth formerly submitted to the Auditor
General and State Treasurer.
4. The Board is composed of three members: an attorney who serves as
Chief Administrative Judge and Chairman; a civil engineer; and a citizen
of the Commonwealth.
a. Appointments to the Board are made by the Governor and approved
by the Senate.
b. Each member shall be appointed for a term of eight years.
5. The Board of Claims has the authority to appoint an executive secretary
and has the power to appoint employees including lawyers, engineers, and
stenographers as are needed in the proper exercise of its functions.
a. §4651 -2.1, of Act 260 provides that the board shall maintain its
office in Harrisburg.
6. Each member of the Board of Claims is required, by the Act establishing
the Board, to devote full -time to the duties imposed by the Act and are
prohibited from performing duties inconsistent with their duties and
responsibilities as board members.
7. David Clipper has maintained a private law practice since 1969.
a. Since at least 1992 Clipper's law practice has been located at 116
Cocoa Avenue, Hershey, PA.
Clipper, 97- 051 -C2
Page 3
8. Statements of Financial Interests filed by Clipper as Chief Counsel for and
member of the Board of Claims for the years 1992, 1993, 1994 and 1995
disclose that the law practice at 116 Cocoa Avenue, Hershey, PA, was a
direct or indirect source of income.
a. A Statement of Financial Interests dated 03/27/97 for the calendar
year 1996, confirms Clipper was a partner in the law firm and that the
firm was a direct or indirect source of income.
9. The Board has provided board members Clipper and James Harris with
cellular telephones for use on agency related business.
10. In January of 1994 Clipper was provided by the Board of Claims with a
cellular telephone for agency related calls. -
a. The telephone number for the cellular phone was (717) 574 -1231.
b. Clipper had the cellular phone in his possession until October of 1997.
11. The cellular phone and monthly service was purchased by the
Commonwealth from 360° Cellular.
12. 360° Cellular's basic monthly service fee for Clipper's cellular telephone
was $18.95.
13. The following amounts were paid by the state for the basic service and
calls made from the telephone number (717) 574 -1231 assigned to David
Clipper from 1994 through August of 1997.
Date of Bill Basic Service Charges for Usage Total
01/17/94 $18.95 $ 30.10 $ 49.05
02/16/94 $18.95 $ 34.90 $ 53.85
03/10/94 $18.95 $ 33.43 $ 52.83
04/15/94 $18.95 $ 36.95 $ 55.90
05/16/94 $18.95 $ 38.00 $ 56.95
06/17/94 $18.95 $ 46.70 $ 65.65
07/15/94 $18.95 $ 72.83 $ 91.78
08/15/94 $18.95 $265.59 $284.54
09/15/94 $18.95 $ 99.28 $171.23*
10/17/94 $18.95 $ 51.53 $ 70.48
11/15/94 $18.95 $151.56 $170.51
12/15/94 $18.95 $ 77.40 $ 97.19
01/15/95 $18.95 $ 88.66 $109.06**
02/15/95 $18.95 $ 51.31 $ 70.26
03/15/95 $18.95 $ 42.86 $ 61.61
04/17/95 $18.95 $148.20 $167.80
05/15/95 $18.95 $100.60 $121.12
06/15/95 $18.95 $ 83.52 $102.47**
07/17/95 $18.95 $ 67.99 $ 87.42**
08/15/95 $18.95 $ 77.43 $ 96.38
09/15/95 $18.95 $109.47 $129.15**
10/16/95 $18.95 $104.15 $124.43 **
11/15/95 $18.95 $ 36.34 $ 55.29
12/15/95 $18.95 $ 69.47 $ 88.42
01/15/96 $18.95 $ 56.51 $ 75.46
Clipper, 97- 051 -C2
Page 4
02/15/96
03/15/96
04/15/96
05/15/96
06/15/96
07/15/96
08/15/96
09/16/96
10/15/96
11/15/96
12/16/96
01/15/97
02/17/97
03/17/97
04/15/97
05/15/97
06/17/97
07/15/97
08/15/97
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$18.95
$ 48.79
$ 55.51
$ 47.00
$ 47.60
$ 56.64
$ 31.95
$ 55.25
$ 70.88
$ 80.00
$ 35.40
$ 22.45
$ 50.40
$ 32.00
$ 19.20
$ 32.30
$133.80
$ 96.00
$ 52.20
$ 29.40
$ 67.74
$ 74.46
$ 65.95
$ 66.55
$ 75.59
$ 50.90
$ 74.20
$ 89.83
$ 98.95
$ 54.35
$ 41.40
$ .75.35
$ 50.95
$ 38.15
$ 51.25
$152.75.
$114.95'
$ 71.15
$ 48.35
*Includes charges for equipment
**Includes taxes on roaming charges
14. Fifteen minutes of free air time was provided through the monthly basic
service charge.
a. A majority of calls listed as free, through the monthly basic service
charge were of a personal nature.
15. Clipper made calls of a personal nature from the cellular telephone provided
by the Commonwealth on a regular basis from January 3, 1994, through
July, 1997.
a. Over 65% of all calls made by Clipper on the cellular telephone were
for personal use.
16. On June 25, 1997, the comptroller for the Board of Claims questioned the
06/17/97 bill as to the use of the cellular phone by Clipper for personal
calls.
17. Clipper reimbursed the Commonwealth $82.20 with personal check
number 1961, dated 07/14/97, signed by Suzanne L. Clipper.
18. On July 22, 1997, the comptroller questioned the 07/15/97 bill as to the
use of the cellular phone by Clipper for personal calls.
19. Clipper reimbursed the Commonwealth with personal check number 2041,
dated 08/15/97, in the amount of $43.80, signed by Suzanne L. Clipper.
20. The personal calls made by Clipper from the cellular phone from January
of 1994 to May of 1997 were paid for by the Board of Claims.
21. The Commonwealth paid a total of $1,586.11 for personal telephone calls.
22. Clipper did not reimburse the Commonwealth for the personal calls
described.
Clipper, 97- 051 -C2
Page 5
23. Clipper did not have authorization to use the Commonwealth provided
cellular telephone for his personal use.
24. David Clipper realized a private pecuniary benefit when he used cellular
telephones paid for by the Commonwealth for his personal use.
25. In August 1995 the Board of Claims replaced the agency's computer
system with new IBM computers.
a. The old computers were to be disposed of through the
Commonwealth surplus system.
26. In August of 1995 Clipper transported one of the computers scheduled to
be surplused, an IBM 386PC Model, and a fax machine, also owned by the
state, to his Hershey law office.
a. Clipper asserts that he properly transported the computer and fax
machine to his law offices at 116 Cocoa Avenue, Hershey, PA,
because that law office was being established as a satellite office of
the Board of Claims. Clipper further asserts that the use of these
machines and the establishing of his law office as a satellite office for
the Board of Claims is appropriate, in that other individuals serving
with the Board of Claims in the past have followed similar practice.
27. Clipper requested Board of Claims Executive Secretary Connie Rode to go
to his private law office to instruct Clipper's private secretary on the use
of the word processing software on the state's IBM computer.
a. Clipper asserts that the work done by Connie Rode in this regard was
done on a personal day, a day off, and that her time was volunteered
on that occasion.
28. The computer and fax machine were returned to the Board of Claims office
in June of 1997 after Clipper and O'Boyle terminated their partnership and
the law office closed.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, David Clipper, hereinafter
Clipper, has been a public official subject to the provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401,
el seq. /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, et seq.
The issue is whether Clipper, as Chairman and Chief Administrative Law Judge
for the Pennsylvania Board of Claims, violated Section 1103(a) of the Ethics Act as to
the allegation that he used Commonwealth equipment, including but not limited to
cellular telephones, computers, typewriters and fax machines, supplies and employees,
for his private law practice.
Section 1 103. 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).
Clipper, 97- 051 -C2
Page 6
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.
The term "conflict of interest" is defined under the Ethics Act as follows:
Section 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 a member of his immediate
family is associated.
65 Pa.C.S. §1102.
Section 1 103(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.
Having noted the issues and applicable law, we shall now summarize the
relevant facts.
Clipper has served as the Chairman and Chief Administrative Law Judge of the
Commonwealth of Pennsylvania Board of Claims from January, 1994 to the present.
Each member of the Board of Claims is required to be full time and is prohibited from
performing duties inconsistent with the responsibilities of a Board member. In a private
capacity, Clipper has maintained a private law practice since 1969.
Clipper is one of two Board members who was provided with a cellular
telephone for agency - related business use. The cellular telephone contract provides for
a basic monthly service fee of $18.95 plus usage charges. The fees incurred for
Clipper's cellular phone use from 1994 through August 1997 are delineated in Fact
Finding 13. The cellular telephone service contract provides for 15 minutes of free air
time each month. The cellular telephone bills reflect that a majority of the calls listed
as free were of a personal nature by Clipper. The record reflects that over 65% of the
calls made by Clipper on the cellular phone were of a personal nature.
On June 25, 1997 when the Comptroller questioned a June 17, 1997 bill by
Clipper for personal calls, Clipper reimbursed the Commonwealth $82.20. Once again,
on July 22, 1997, the Comptroller questioned another bill of July 15, 1997 as to
cellular phone use by Clipper for personal calls for which Clipper reimbursed $43.80
to the Commonwealth.
Clipper, 97- 051 -C2
Page 7
Although Clipper made numerous personal calls on his cellular telephone from
January, 1994 through May, 1997, which totaled $1,586.11 and which the Board of
Claims paid, Clipper did not reimburse the Commonwealth.
Since Clipper was not authorized to utilize the Commonwealth cellular phone for
personal use, he realized a private pecuniary benefit for using such phone for his
personal use.
Separate and apart from the above, in August 1995, when the Board of Claims
replaced its computers, the old ones were to be surplused. However, Clipper
transported one of those computers to his Hershey law office. Clipper requested the
Board of Claims Executive Secretary to go to his private law office to instruct his
private secretary on the use of the word processing software in that computer. Clipper
asserts that the computer as well as a fax machine were transported to his law office
because that office served as a satellite office of the Board of Claims. Clipper further
asserts that the Board of Claims Executive Secretary volunteered her time to go to his
law office on a day off. The computer and fax machine were returned to the Board of
Claims after Clipper and his law partner terminated their law practice.
Having summarized the above relevant facts, we must now determine whether
the actions of Clipper violated Section(s) 1103(a) of the Ethics Act.
As to Section 1103(a) of the Ethics Act, there was a use of authority of office
on the part of Clipper when he utilized the Commonwealth cellular telephone for
personal use. But for the fact that Clipper was the Chairman and Chief Administrative
Law Judge of the Board of Claims, he would not have been in a position to receive a
free cellular telephone for agency business. The use of authority of office by Clipper
resulted in a pecuniary benefit to him consisting of the cellular phone usage for
personal calls that he made. Such was a pecuniary benefit to Clipper who did not have
any personal out -of- pocket expenses for his personal calls by using the
Commonwealth -paid cellular service. The pecuniary benefit was private because there
was no authorization in law for Clipper to use the Commonwealth -paid cellular phone
for personal calls. Lastly, such private pecuniary benefit inured to Clipper himself.
Clipper violated Section 1 103(a) of the Ethics Act when he used the authority of office
for a private pecuniary benefit for himself by utilizing Commonwealth -paid cellular
telephone service for personal purposes.
Our decision in this case is consistent with our prior precedent, wherein we
have long held that government offices, facilities, equipment, and personnel are to be
used for government purposes and not for private, business or campaign /re- election
activities. See, Eck, Order 787.
As to the matter of the surplus Commonwealth computer and fax machine,
which Clipper transported to his private law practice, the facts of record do not
establish whether such equipment was to be used in a "satellite office" for the Board
of Claims or for personal use in furtherance of Clipper's law practice. Hence, since
there is not clear and convincing proof that such equipment was used for personal
rather than government purposes, we find no violation of Section 1103(a) of the Ethics
Act as to that aspect of the allegation, based upon an insufficiency of evidence.
The parties have submitted a Consent Agreement together with a Stipulation of
Findings wherein it is proposed to resolve the case by finding a violation of Section
1103(a) of the Ethics Act as to the utilization of a Commonwealth cellular phone for
personal calls; no violation of Section 1103(a) regarding the alleged utilization of
Commonwealth equipment and employees for personal purposes, based upon an
insufficiency of evidence; and a payment of $1,586.11 by Clipper through this
Clipper, 97- 051 -C2
Page 8
Commission to the Commonwealth of Pennsylvania. Accordingly, Clipper is directed
to make the payment of $1,586.11 to the Commonwealth of Pennsylvania in a timely
manner. Compliance with the foregoing will result in the closing of this case with no
further action. Noncompliance will result in the institution of an order enforcement
action.
IV. CONCLUSIONS OF LAW:
1. David Clipper, as Chairman and Chief Administrative Law Judge for the
Pennsylvania Board of Claims, is a public official subject to the provisions of Act
9 of 1989/Act 93 of 1998, Chapter 11.
2. Clipper violated Section 1103(a) of the Ethics Act when he utilized a
Commonwealth cellular phone for calls that were personal in nature or related
to his private law practice.
3. Clipper did not violate Section 1103(a) of the Ethics Act regarding his alleged
utilization of Commonwealth equipment and /or employees for his personal
purposes, based upon an insufficiency of evidence.
In Re: David Clipper
ORDER NO. 1114
File Docket: 97- 051 -C2
Date Decided: 2/26/99
Date Mailed: 3/10/99
1. David Clipper, as Chairman and Chief Administrative Law Judge for the
Pennsylvania Board of Claims, violated Section 1103(a) of the Ethics Act when
he utilized a Commonwealth cellular phone for calls that were personal in nature
or related to his private law practice.
2. Clipper did not violate Section 1103(a) of the Ethics Act regarding regarding his
alleged utilization of Commonwealth equipment and /or employees for his
personal purposes, based upon an insufficiency of evidence.
3. Per the Consent Agreement of the parties, Clipper is directed to make payMent
in the amount of $ 1,586.11 in a timely manner to the Commonwealth of
Pennsylvania.
a. Compliance with the foregoing will result in the closing of this
case with no further action by the Commission.
b. Non - compliance will result in the institution of an order
enforcement action.
BY THE COMMISSION,
cotts,a)6 Puz2.
DANEEN E. REESE, CHAIR