HomeMy WebLinkAbout1715 Bullers�x
STATE ETHICS COMMISSION
309 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA I7120
In Re: Herbert Bullers, File Docket:
Respondent X -ref:
Date Decided:
Date Mailed:
16 -012
Order No. 1715
617117
6122117
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Maria Feeley
Melanie DePalma
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." A Stipulation of Findings and a Consent Agreement were
subsequently submitted b 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.
ALLEGATIONS:
That Herbert Bullers, a public official /public employee in his capacity as a
Commissioner for Jefferson County, Pennsylvania, violated Sections 1103(a) and 1103(f)
of the State Ethics Act (Act 93 of 1998) when he utilized the authority of his public position
for the private pecuniary benefit of himself anal /or a business with which he is associated,
namely ServPro, when he participated in actions, discussions, and/or determinations of the
Board of Commissioners to utilize ServPro as a vendorlcontractor of the County to perform
water damage rem ediation /restoration services; and when said contract /agreement was
entered into between Jefferson County and ServPro, in excess of $500.00, absent an open
and public process.
II. FINDINGS:
1. Herbert L. Bullers, Jr. ( "Bullers ") has served as an elected Commissioner of
Jefferson County since January 4, 2016.
a. Bullers has served as Vice - President of the Board of Commissioners since
January 4, 2016.
2. Jefferson County is governed by a three (3) Member Board of Commissioners.
a. The Commissioners currently hold two (2) re ularly scheduled legislative
meetings per month on the second and fourth Tuesdays of the month.
P.O. BOX 1 1470, HARRISBURG, PA 17108 -1470 • 717 - 783 -1610 • 1 -800- 932 -0936 • www.ethics.state.pa.us
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b. Special meetings are held as necessary.
3. Voting at the Commission meetings occurs via a roll call vote, after a motion is
made and seconded.
a. Abstentions andlor dissenting votes are specifically documented in the
meeting minutes.
1. Minutes of each meeting are approved for accuracy at each
subsequent meeting.
4. A meeting packet is not supplied to the Commissioners prior to their legislative
meetings.
a. Each Commissioner has a mailbox at the County building where information
requiring review is routinely placed.
1. Draft meeting minutes are provided approximately a week in advance.
2. Draft meeting agendas are provided approximately a day in advance.
3. Bill lists are not provided in advance to the Commissioners.
aa. The bill lists are provided to the Commissioners during the
legislative meetings.
5. The Commissioners conduct a specific vote at each legislative meeting to pay bills
identified on a bill list.
a. The bill lists document the following information:
1. Vendor name.
2. Vendor invoice description.
3. Amount of invoice.
b. The bill lists detail all bills received by the County since the last legislative
meeting.
C. The bill lists are provided to the Commissioners at the meeting said bills are
to be approved.
6. Si nature authority over the County's financial accounts is maintained by the three
(3 Commissioners and the Chief Clerk, Karen Lupone.
a. The electronic signature of all three (3) Commissioners and the Chief Clerk
are automatically applied to all computer generated County checks.
b. The majority of the County checks are computer generated.
7. The Commissioners follow the provisions in the County Code regarding contracting
procedures.
a. Contracts in excess of $18,500.00 are publicly bid in the Courier Express
and the Punxsutawney Spirit.
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The Courier Express and Punxsutawney Spirit are newspapers of
general circulation.
b. Written or telephonic price quotations from at least three qualified contractors
are obtained forcontracts in excess of $10,000.00 but less than $18,500.00.
C. Bids and/or telephonic price quotes are not obtained for contracts considered
to be of an "emergency" nature.
8. Servpro is a nation -wide company that provides water, fire, and mold remediation
services.
a. A franchise of the company can be purchased by individuals.
9. Servpro of Clarion, Jefferson & Forest Counties, LLC (hereafter "Servpro ") is a
franchise of the Servpro company.
a. Servpro's EIN (Employer Identification Number) is 264090070.
b. Servpro is not incorporated with the Pennsylvania Department of State.
C. Servpro is located at 36 East Main Street, Brookville, PA 15825.
10. Servpro has been owned by Bullers and Bullers' spouse, Mary C. Bullers, since
2009.
a. Bullers owns 51 % of the business, and his spouse owns the remaining 49 %.
b, Servpro specializes in water, fire, and mold remediation services, as well as
structural rebuild services.
C. Servpro primarily performs services in the following Pennsylvania counties:
Jefferson, Clarion, Forest, Elk, Warren, McKean, Clearfield, and Cameron.
11. Servpro has been a vendor /service provider to Jefferson County since at least 2010,
prior to Bullers' service as a County Commissioner.
a. Servpro provided various water and mold remediation services, as well as
structural rebuild services, to Jefferson County during the time period of 2010
through 2015.
b. The County paid Servpro a total of $213,283.96 during the time period of
2010 through 2015, for emergency services.
Of the $213,283.96 paid to Servpro, $50,790.63 related to Servpro
performing emergency water remediation services at the County
Courthouse due to a water leak that occurred in 2010.
12. On January 27, 2016, Commissioners John Matson, Jeffery Pisarcik, and Bullers
met with Richard Miller (the County's Labor Law Counsel), C.J. Zwick (County
Solicitor), and Mathew Zwick (County Solicitor) to discuss County labor law issues.
a. Bullers and Matson were newly seated Commissioners in 2016.
13. During the course of the January 27, 2016, meeting, discussion occurred regarding
the County's ability to continue to use Servpro and Matson Insurance as
vendors /service providers.
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a. During the meeting, Pisarcik questioned how Bullers should proceed in the
event the Commissioners wanted to utilize Servpro for future matters.
b. Additionally, Matson questioned how he should proceed regarding the
annual renewal of the County's insurance, which has routinely been provided
by Matson Insurance, an agency owned and operated by Matson's aunt.
14. County Solicitor, C.J. Zwick, advised Bullers and Matson that they could not make
any decisions as Commissioners that could result in them or their family members
financially benefiting from County contracts.
a. Zwick recommended that an RFP (Request for Proposal) be drafted
regarding non - hazmat related emergencies, in order to solicit and select a
listing of Commissioner - approved vendors to perform water, fire, and mold
remediation services.
Zwick believed that by requiring Servpro and other companies to
respond to an RFP, a potential conflict of interest for Bullers would be
alleviated, provided that Bullers recused himself from the RFP
process.
15. As of the conclusion of the meeting, the Commissioners were in favor of Zwick
drafting the RFP and implementing a procedure to enact the process.
a. Zwick has not drafted said RFP to date, due to the time needed for research.
b. Additionally, Zwick has delayed pending the outcome of the current [matter].
16. During the meeting of January 27, 2016, it was further determined by all three (3)
Commissioners that the County would continue to utilize the services of Servpro for
emergency situations provided Bullers would not participate in the decision - making
process.
a. Bullers agreed with the determination and was of the understanding that he
could not be involved in the decision by the Commissioners to utilize Servpro
for future emergency events.
b. Bullers was of the belief that if the County required the services of Servpro,
the decision to utilize /contact Servpro would be made by Matson and
Pisarcik.
17. On Saturday, February 13, 2016, at approximately 6:30 p.m., a water line break
occurred at the Jefferson County Courthouse, causing water damage to two floors
of the Courthouse.
a. The water leak affected the second -floor conference room, victim services
office, tax claim office, and tax assessment office.
b. The leak occurred seventeen (17) days after the Commissioners' January
27, 20'16, meeting with legal counsel, but prior to the Solicitor being able to
draft an RFP regarding emergency services.
18. Between 6:30 p.m. on February 13, 2016, when the leak was discovered, and 7:10
p.m., an emergency decision was made by the Commissioners to utilize the
services of Servpro to remediate the water damage.
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a. Bullers participated in discussions by advising the other two 2)
Commissioners of the extent of the damage but did not participate in the
decision to utilize Servpro.
b. Bullers was the only Commissioner available to be contacted by County
personnel at the time the water leak was discovered.
19. Paul Dines, County IT employee, first discovered the water leak at or about 6:30
p.m. on February 13, 2016, while performing computer maintenance services at the
Courthouse.
a. Contemporaneous to the time that Dines noticed the leak, County
Maintenance Worker Paul Snyder reported to the Courthouse to review the
work orders for the following week and also discovered the water leak.
20. Upon discovering the water leak, Snyder telephoned County Maintenance Director
Mike Wilson to inform Wilson of the situation.
a. Wilson traveled to the Courthouse after receiving Snyder's telephone call, in
order to assess the situation.
b. Wilson observed water pouring from the ceiling light fixtures upon arrival, and
determined the situation to be an emergency.
21. Wilson telephoned the County's Emergency Management Agency 911 Call Center
at approximately 6:34 p.m. in order to obtain Bullers' personal cellular telephone
number and to inform the center of the situation at the Courthouse.
a. Wilson sought Bullers' contact information because he was aware, from
interactions, that neither Matson nor Pisarcik was available due to personal
matters.
b. Wilson was also aware of Bullers' professional expertise related to water
remediation services.
C. Wilson was contacting Bullers as the only available County Commissioner.
Wilson did not have Bullers' personal contact information, as Bullers
was only recently seated as a County Commissioner.
22. Matt McCracken, the 911 Call Center Shift Supervisor, subsequently telephoned
Tracy Zents, County Director of Emergency Services, at 6:35 p.m. to inform Zents of
Wilson's call and the emergency situation.
a. At 6:41 p.m., Zents telephoned Bullers and explained to Bullers the situation
which was occurring at the Courthouse.
23. Bullers immediately telephoned Daryl Dewan, General Manager of Servpro,
following his conversation with Zents.
a. Bullers informed Dewan of the situation at the Courthouse and to put Servpro
on notice that the company's services might be needed.
24. At approximately 7:00 p.m., Bullers arrived at the Courthouse where he met Wilson
and Snyder.
a. Wilson questioned Bullers if Servpro could be dispatched to provide water
remediation services.
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b. Bullers responded that he could not make the decision, and that the other
two Commissioners would make the decision to contact/contract Servpro.
25. At approximately 7:06 p.m., Bullers telephoned Commissioner Matson to inform
Matson of the situation at the Courthouse and to obtain guidance as to what should
be done regarding the need for water remediation services.
a. Matson expressed his desire to have Servpro utilized and informed Bullers to
contact Pisarcik to determine if Pisarcik was in agreement with that decision.
Matson was familiar with Servpro due to his family using the service in
the past and his campaigning with Bullers in 2015.
b. Matson did not consider, or suggest, any other businesses to be utilized for
the water remediation services.
G. Bullers did not suggest, recommend, or attempt to influence Matson to select
Servpro.
26. At approximately 7:08 p.m., Bullers telephoned Pisarcik regarding the situation at
the Courthouse and to inform Pisarcik of his (Bullers') earlier conversation with
Matson.
a. Pisarcik advised Bullers that he was in agreement with Matson's decision to
use Servpro.
Pisarcik agreed with Matson's decision mainly due to Pisarcik having
served as a Commissioner during the time period of 2010 through
2015, when Servpro developed a good rapport and business
relationship with the County.
b. Pisarcik did not consider or suggest any other businesses to be utilized for
the water remediation services.
C. Bullers did not suggest, recommend, or attempt to influence Pisarcik to
select Servpro, other than to inform him of Matson's
decision /recommendation.
27. At approximately 7:10 p.m., Bullers telephoned Dewan, Servpro's General Manager,
again to inform Dewan that Servpro was to respond to the water leak at the
Courthouse.
a. Dewan contacted several Servpro employees via telephone or text message
and instructed them to meet him at the Servpro office or at the Courthouse.
b. Dewan arrived at the Servpro office at approximately 7:50 p.m. to obtain the
equipment needed and load it into the Servpro van that was to be dispatched
to the scene.
The Servpro office is located approximately three (3) minutes from the
Courthouse.
C. Bullers telephoned Dewan a third time, at 8:01 p.m., to inquire as to Dewan's
location.
28. At approximate) 8:20 p.m., Dewan and several Servpro employees arrived at the
Courthouse and began performing the necessary water remediation services.
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a. Bullers briefly met with Dewan on site and advised Dewan of the situation at
the Courthouse.
b. Bullers did not perform any services in his capacity as owner /employee of
Servpro while present at the Courthouse.
C. At approximately 12:00 a.m. on February 14, 2016, Servpro left the
Courthouse after performing as much work as possible to mitigate the water
damage.
d. Dewan and several other Servpro employees reported to the Courthouse
between February 14, 2016, and February 22, 2016, to complete routine
follow -up water remediation services.
e. The water remediation services performed by Servpro were completed by
February 22, 2016,
29. Servpro invoice no. 4908313, dated February 11, 2016, was submitted to the
County for payment related to the water remediation services performed at the
Courthouse.
a. The invoice was incorrectly dated February 11, 2016, as the services did not
begin until February 13, 2016, and were not completed until February 22,
2016.
30. At the February 23, 2016, Commissioners public meeting, the Commissioners
reported that water damage occurred during the night of February 13, 2016.
a. The Commissioners announced that Servpro was utilized, and that Bullers
did not participate in the decision to contract /utilize Servpro.
31. The water line break caused extensive damage to offices on the first and second
floors of the Courthouse, which included the following:
First Floor. Ceilings, walls, carpeting in the Tax Claim and Tax
Assessment Offices; and
Second Floor: Ceilings, walls, carpeting, light fixtures in the Conference
Room and Victim Services Office,
32. On March 11, 2016, the County provided the following seven (7) contractors with an
invitation to bid on the rebuild work associated with the water damage caused to the
Courthouse by the water leak event of February 13, 2016:
• James B. Kunselman;
• Park Contracting;
• Felix Brothers Construction;
• MGM Construction;
• Quality Builders;
• Tim Britton Construction Services; and
• Fleeger Contracting.
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a. The contractors were selected from the County's Department of
Development approved contractor list.
1. Servpro was not identified as a contractor on the County's
Department of Development approved contractor list.
2. Bullers was not interested in bidding on the rebuild work, although
Servpro was qualified to perform the work.
33. The County issued check number 59748 dated March 11, 2016, in the amount of
$12,505.49 payable to "Servpro of Clarion, Jefferson and Forest Counties" for
services related to the water damage remediation.
a. The check bore the electronic signatures of the three (3) Commissioners,
including Bullers, and the Chief Clerk.
b. The payment was issued prior to approval by the Board of County
Commissioners.
C. The check was mailed to Servpro on or about March 11, 2016.
34. On March 14, 2016, County check number 59748 was deposited into Servpro's
business checking account ([account number redacted]) maintained at Farmers
National Bank.
a. Servpro representatives holding signature authority over said account
include:
1. Bullers;
2, Mary Bullers;
3. Daryl Dewan; and
4. Patricia Dewan.
b. The reverse side of County check number 59748 was stamped "For Deposit
Only."
35. The approval of the payment by the Commissioners to Servpro was not made until
the Commissioners' public meeting of March 27, 2016,
36. The $12,505.49 payment to Servpro, related to the work completed at the
Courthouse over the dates of February 13, 2016, through February 22, 2016, was
contained on the bill list presented to the Commissioners at the March 27, 2016,
Commission meeting.
a. Bullers voted in favor to pay all bills contained on the bill list when initially
presented for approval.
1. Matson subsequently informed Bullers that payment to Servpro was
identified on the bill list, which resulted in the vote being stopped and
then re- voted.
b. Bullers subsequently abstained from the approval of the bill list when the
vote was re- taken.
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The motion to approve the bills to be paid passed via a 2 -0 -1 vote.
2. The minutes note only the events relating to the second time the vote
occurred.
37. On January 12, 2017, Bullers provided the following during a sworn statement to an
investigator of the Pennsylvania State Ethics Commission.
a. Bullers is part -owner of Servpro.
Bullers owns 51 % of Servpro, and his spouse owns the remaining
49 %.
b. Servpro has been in business since approximately 2009 when Bullers and
his spouse purchased the Clarion, Jefferson & Forest Counties franchise.
Bullers subsequently purchased the Clearfield County franchise in
approximately 2011.
2. Bullers' company, Servpro of Clarion, Jefferson & Forest Counties,
was the franchise that responded to the water leak at the Courthouse
in February 2016.
G. Servpro specializes in water, fire, and mold remediation services, as well as
rebuild services.
The majority of the work performed by Servpro is related to "insurance
work."
d. Servpro does not provide bids and/or quotes prior to reporting [to] a situation
which involves water remediation services.
Bullers claimed that there are too many hidden factors that need to be
considered when reviewing situations that require water remediation
services, and therefore bids /quotes are not provided prior to a site
visit.
2. In order to provide a bid or quote, Servpro has to physically respond
to the situation in question and provide initial inspections, in order to
generate a detailed estimate.
3. Time is of the essence when responding to water remediation
situations, and therefore it is atypical for Servpro to respond to a
situation, provide initial services, generate an estimate, but to not
perform the remaining work necessary.
e. Servpro has maintained a business relationship with the County since
approximately 2010.
1. The County never required Servpro to submit any bids or quotes
related to emergency remediation services performed prior to Bullers
becoming a Commissioner in January 2016.
f. Bullers and the other two Commissioners decided that Servpro would
continue to be utilized by the County for emergency work only during the
Commissioners meeting with the County's legal counsel on January 27,
2016.
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Although said decision was made, at least two (2) Commissioners had
to authorize the "call out" of Servpro.
2. Bullers asserts that it was permissible for Servpro to be utilized by the
County, as long as he (Bullers) did not participate in the decision to
"call out" Servpro.
g. Bullers' initial call to Dewan after being informed of the water leak at the
Courthouse did not result in Bullers dispatching Servpro to respond to the
situation.
Bullers' initial call to Dewan was to put Dewan "on notice" as to what
occurred at the Courthouse, and that Servpro might be needed.
h. Bullers did not suggest the use of Servpro to either Matson or Pisarcik while
conversing with them separately about the situation at the Courthouse.
Bullers initially voted to approve the bill list which included payment to
Servpro in the amount of $12,505.49.
Prior to the meeting at which the Servpro bill was approved, Bullers
reviewed the bill list and was aware Servpro was identified for
payment.
aa. Bullers' participation in the vote to approve the bill list was due
to an oversight, and his mistake was corrected when the vote
was re -taken and he abstained.
Ili. DISCUSSION:
As a Commissioner of Jefferson County "County "), Pennsylvania, since January 4,
2016, Respondent Herbert Bullers, hereinafter also referred to as "Respondent,"
"Respondent Bullers," and "Bullers," has been a public official subject to the provisions of
the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sec..
The allegations are that Bullers violated Sections 1103(a) and 1103(f) of the Ethics
Act: (1) when he utilized the authority of his public position for the private pecuniary benefit
of himself and/or a business with which he is associated, namely ServPro, when he
Farticipated in actions, discussions, and/or determinations of the Board of Commissioners
o utilize ServPro as a vendor /contractor of the County to perform water damage
rem ediationlrestoration services; and (2) when said contract /agreement was entered into
between the County and ServPro, in excess of $500.00, absent an open and public
process.
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:
§ 1902. Definitions
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"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 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.
Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting:
§ 1103. Restricted activities
(f) Contract. --No public official or public employee or
his spouse or child or any business in which the person or his
spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with which
the public official or public employee is associated or any
subcontract valued at $500 or more with any person who has
been awarded a contract with the governmental body with
which the public official or public employee is associated,
unless the contract has been awarded through an open and
public process, including prior public notice and subsequent
public disclosure of all proposals considered and contracts
awarded. In such a case, the public official or public employee
shall not have any supervisory or overall responsibility for the
implementation or administration of the contract. Any contract
or subcontract made in violation of this subsection shall be
voidable by a court of competent jurisdiction if the suit is
commenced within 90 days of the making of the contract or
subcontract.
65 Pa.C.S. § 1103(f).
Section 1103(f) of the Ethics Act provides in part that no public official/public
employee or his spouse or child or business with which the public official/public employee
or his spouse or child is associated may enter into a contract with his governmental body
valued at five hundred dollars or more or any subcontract valued at five hundred dollars or
more with any person who has been awarded a contract with the governmental body with
which the public official/public employee is associated unless the contract is awarded
through an open and public process including prior public notice and subsequent public
disclosure of all proposals considered and contracts awarded.
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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.
Respondent Bullers has served as an elected County Commissioner and as Vice -
President of the County Board of Commissioners ( "Board ") since January 4, 2016. The
Board consists of three Members.
In a private capacity, Respondent and his wife, Mary C. Bullers, own a business
named " Servpro of Clarion, Jefferson & Forest Counties, LLC" ( "Servppro "). Respondent
owns 51 % of the business, and his spouse owns the remaining 49 %. 5ery ro specializes
in water, fire, and mold remediation services, as well as structural rebuild services.
Servpro has been a vendor /service provider to the County since at least 2010, prior to
Bullers' service as a County Commissioner.
The County Commissioners follow the provisions in the County Code regarding
contracting procedures. Bids and /or telephonic price quotes are not obtained for contracts
considered to be of an "emergency" nature.
On January 27, 2016, County Commissioners John Matson ( "Matson"), Jeffery
Pisarcik ( "Pisarcik'), and Bullers met with the County's legal counsel and discussed matters
including the County's ability to continue to use Servpro as a vendor /service provider.
County Solicitor C.J. Zwick advised Bullers that he could not make any decisions as a
Commissioner that could result in Bullers or his family members financially benefiting from
County contracts. The discussions resulted, inter alia, in a determination byy all three
County Commissioners that the County would continue to utilize the services of Servpro for
emergency situations provided Bullers would not participate in the decision - making
process: Bullers agreed with the determination and was of the understanding that he could
not be involved in the decision by the Commissioners to utilize Servpro for future
emergency events. Bullers was of the belief that if the County required the services of
Servpro, the decision to utilize /contact Servpro would be made by Matson and Pisarcik.
Approximately two and one -half weeks later, on Saturday, February 13, 2016, at
approximatel 6:30 p.m., a water line break occurred at the County Courthouse, causing
extensive =er damage to two floors of the Courthouse (see, Fact Findings 20 b and 31).
Between 6:30 p.m. on February 13, 2016, when the leak was discovered, and 7:10 p.m.,
an emergency decision was made by the Commissioners to utilize the services of Servpro
to remediate the water damage. Bullers was the only Commissioner available to be
contacted by County personnel at the time the water leak was discovered. Bullers
participated in discussions by telephonically advising the other two Commissioners of the
extent of the damage, but he did not participate in the decision to utilize Servpro.
At approximately 7:00 p.m., Bullers arrived at the Courthouse where he met County
Maintenance Worker Paul Snyder and County Maintenance Director Mike Wilson
( "Wilson'). Wilson questioned Bullers if Servpro could be dispatched to provide water
remediation services. Bullers responded that he could not make the decision, and that the
other two Commissioners would make the decision to contact/contract Servpro.
At approximately 7:06 p.m., Bullers telephoned Matson to inform Matson of the
situation at the Courthouse and to obtain guidance as to what should be done regarding
the need for water remediation services. Matson expressed his desire to have Servpro
utilized and informed Bullers to contact Pisarcik to determine if Pisarcik was in agreement
with that decision. Bullers did not suggest, recommend, or attempt to influence Matson to
select Servpro.
At approximately 7:08 p.m., Bullers telephoned Pisarcik regarding the situation at
the Courthouse and to inform Pisarcik of his (Bullers') earlier conversation with Matson.
Pisarcik advised Bullers that he was in agreement with Matson's decision to use Servpro.
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Bullers did not suggest, recommend, or attempt to influence Pisarcik to select Servpro,
other than to inform him of Matson's decisionlrecom mend ation.
At approximately 7:10 p.m., Bullers telephoned Servpro's General Manager to
inform him that Servpro was to respond to the water leak at the Courthouse. Servpro
performed water remediation services at the Courthouse from February 13, 2016, through
February 22, 2016.
At the Board's February 23, 2016, public meeting, the Commissioners reported that
water damage occurred during the night of February 13, 2016. The Commissioners
announced that Servpro was utilized, and that Bullers did not participate in the decision to
contract/utilize Servpro.
Servpro invoice no. 4908313 was submitted to the County for payment related to the
aforesaid water remediation services performed at the Courthouse.
Signature authority over the County's financial accounts is maintained by the three
County Commissioners and Chief Clerk. The majority of the County checks are computer
generated and automatically bear the electronic signature of all three Commissioners and
the Chief Clerk. The County issued check number 59748 dated March 11, 2016, in the
amount of $12,505.49 payable to " Servpro of Clarion, Jefferson and Forest Counties" for
services related to the water damage remediation. County check number 59748 bore the
electronic signatures of the three County Commissioners, including Bullers, and the Chief
Clerk as authorized County signatories. The payment was issued prior to approval by the
Board. The check was mailed to Servpro on or about March 11, 2016.
On March 14, 2016, County check number 59748 was, deposited into Servpro's
business checking account.
The County Commissioners vote at each legislative Board meeting to pay bills
identified on a bill list. Bill lists are not provided in advance to the Commissioners, but
rather, are provided to the Commissioners during the legislative meetings. The bill lists
document vendor names, vendor invoice descriptions, and invoice amounts.
The approval of the payment by the Commissioners to Servpro was not made until
the Board's public meeting of March 27, 2016. The $12,505.49 payment to Servpro,
related to the work completed at the Courthouse from February 13, 2016, through February
22, 2016, was contained on the bill list presented to the Commissioners at the March 27,
2016, Board meeting. Bullers initially voted in favor to pay all bills contained on the bill list.
Matson subsequently informed Bullers that payment to Servpro was identified on the bill
list, which resulted in the vote being stopped and then re- voted. Bullers subsequently
abstained from the approval of the bill list when the vote was re- taken. The motion to
approve the bills to be paid passed via a 2 -0 -1 vote.
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:
That no violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa. C.S. §
1103(a), occurred when the Board of
Commissioners for Jefferson County utilized
ServPro as a vendor /contractor to perform water
Bullers, 16 -012
Fa-14
damage remediationlrestoration services
onlabout February 13, 2016, in that Bullers did
not utilize the authority of his public position
concerning the actions of the Board of
Commissioners.
That no violation of Section 1103(f) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
1103(f), occurred when the Board of
Commissioners for Jefferson County entered
into a contract/agreement with ServPro, In
excess of $500.00, absent an open and public
process, to perform water damage
remed iatio n/resto ration services onlabout
February 13, 2016, in that exigent circumstances
existed and the need was deemed an
emergency. See Order No.: 1176, Heller.
4. 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.
Bullers hereby acknowledges the jurisdiction of the
Pennsylvania State Ethics Commission and the applicability of
the Pennsylvania Public Official and Employee Ethics Act (65
Pa.C.S. §1101 et seq.) to himself as a public official /public
employee.
Bullers hereby acknowledges and verifies that all future
conduct will be in compliance with the Pennsylvania Public
Official and Employee Ethics Act (65 Pa.C.S. '1101 et seq.
as well as the Regulations of the Commission �51 Pa. Code
11.1 et seq.), to include, but not be limited to, the future use of
ServPro as a vendor/contractor of Jefferson County.
Consent Agreement, at 2.
In considering the Consent Agreement, we accept the recommendation of the
parties for a finding that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), occurred when the Board utilized Servpro —a business with which Bullers is
associated —as a vendor/contractor to perform water damage remediationlrestoration
services onlabout February 13, 2016, in that Bullers did not utilize the authority of his public
position concerning the actions of the Board. On February 13, 2016, the other Board
Members made the decision to use Servpro, and Bullers' role was limited to relaying to
them the conditions on site and receiving their direction. Additionally, given that: (1)
Bullers' signature on County check number 59748, paying Servpro, was electronicall
generated, and the check was issued prior to review and approval by the Board; and (2�
the vote to approve the bill list that included the aforesaid payment to Servpro was stopped
and re -cast to preclude involvement by Bullers, it would appear that the Investigative
Division is not pursuing those actions.
Accordingly, we hold that no violation of Section 1103(a) of the Ethics Act, 65
Pa.C.S. § 1103(a), occurred when the Board utilized Servpro —a business with which
Bullers is associated —as a vendor/contractor to perform water damage
remediationlrestoration services onlabout February 13, 2016, in that based upon the
Stipulation of Findings and Consent Agreement, Bullers did not utilize the authority of his
public position concerning the actions of the Board.
Bullers, 16012
al e75
As for the remaining allegation, the parties have recommended a finding that no
violation of Section 1103( of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when the
Board entered into a contract/agreement with Servpro that was in excess of $500.00,
absent an open and public process, to perform water damage remediationlrestoration
services onlabout February 13, 2016, in that exigent circumstances existed and the need
was deemed an emergency. In support of this recommendation, the parties cite Heller,
Order No. 1176.
In Heller, su ra, we found a technical violation of Section 1103(f) of the Ethics Act
when a business with which the respondent in that case ----a township supervisor -- entered
into a contract with the township that was in excess of $500.00 for snow removal services,
during a state of emergency, without an open and public process.
We recognize that emergency conditions may require immediate action. (See,
discussion in Kistler v. State Ethics Commission, 610 Pa. 516, 533, 22 A.3d 223, 2334
(2011), re gar Ong emergency pprocurements. n the instant matter, emergency conditions
required immediate action by fhe Board. The Board's immediate action did not satisfy all of
the requirements of Section 1103(f) of the Ethics Act. There was no prior public notice of
the contract before it was awarded to Servpro. There was subsequent public disclosure of
the contract awarded to Servpro.
While the facts in this case are compelling, Section 1103(f) of the Ethics Act does
not contain an exception for emergency conditions (Heller, supra, at 17), and it is axiomatic
that this Commission does not have authority to create an exception that does not exist by
statute (see, _e. Richardson, Opinion 93 -006; Long, Opinion 97 -01 Q; Zile le�r, Opinion 98-
001; Whitlock, Op�nio4� -: Confidential O inion, 07 -006; Clams comb, Opinion 14 -004).
However, tt e investigative Division as prosecutona[ discretion, and in this case, we find
no violation of Section 1103(f) based upon a n pros by the Investigative Division.
Accordingly, we hold that no violation of Section 1103(f) of the Ethics Act, 65
Pa.C.S. § 1103(f), occurred when the Board entered into a contract/agreement with
Servpro that was in excess of $500.00, absent an open and public process, to perform
water damage remediationlrestoration services on /about February 13, 2016, based upon a
non pros by the Investigative Division.
IV. CONCLUSIONS OF LAW:
1. As a Commissioner of Jefferson County ( "County "), Pennsylvania, since January 4,
2016, Respondent Herbert Bullers ("Bullers") has been a public official sub'ectto the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§ 1101 et seg.
2. Bullers did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103 (a), when
the County Board of Commissioners utilized " Servpro of Clarion, Jefferson & Forest
Counties, LLC" ("Servpro ") —a business with which Bullers is associated —as a
vendor /contractor to perform water damage rem ed iationlresto ration services
on /about February 13, 2016, in that based upon the Stipulation of Findings and
Consent Agreement, Bullers did not utilize the authority of his public position
concerning the actions of the County Board of Commissioners.
3. No violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred
when the County Board of Commissioners entered into a contractlagreement with
Servpro that was in excess of $500.00, absent an open and public process, to
perform water damage remediationlrestoration services on/about February 13,
2016, based upon a non pros by the Investigative Division.
In Re: Herbert Bullers
Respondent
File Docket: 16012
Date Decided: 617117
Date Mailed: 6122117
ORDER NO. 1715
1. As a Commissioner of Jefferson County ( "County" , Pennsylvania, Herbert Bullers
( "Bullers ") did not violate Section 1103(a) of the Pu lic Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when the County Board of Commissioners
utilized Servpro of Clarion, Jefferson & Forest Counties, LLC ( Servpro ) —a
business with which Bullers is associated —as a vendor /contractor to perform water
damage remediation /restoration services on /about February 13, 2016, in that based
upon the Stipulation of Findings and Consent Agreement, Bullers did not utilize the
authority of his public position concerning the actions of the County Board of
Commissioners.
No violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred
when the County Board of Commissioners entered into a contract/agreement with
Servpro that was in excess of $500.00, absent an open and public process, to
perform water damage remediation /restoration services on /about February 13,
2016, based upon a non pros by the Investigative Division.
BY THE COMMISSION,
ri•
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