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HomeMy WebLinkAbout1060 ServisIn Re: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Bryan Servis File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Boyd E. Wolff Julius Uehlein 96- 027 -C2 Order No. 1060 8/14/97 8/26/97 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 Leg., 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. A consent agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the State Ethics Commission 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 Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. Servis, 96- 027 -C2 Page 2 I. ALLEGATION: That Bryan Servis, a public official /public employee in his capacity as a Councilman of the Tullytown Borough, Bucks County, violated the following provision of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit by contracting to obtain a cellular telephone for his personal use at borough expense without the approval of council, and when he used the cellular telephone for personal calls and subsequently approved payments of bills for said calls, including but not limited to approving invoices, voting to pay bills and signing checks. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). II. FINDINGS: 1. Bryan R. Servis has served as a Tullytown Borough, Bucks County, Councilman since January 7, 1992. a. Servis served as council president from January 7, 1992, to April 5, 1994, and from January 2, 1996, to August 6, 1996. 2. On January 15, 1993, Servis entered into a contract with Comcast Metrophone, 480 East Swedesford Road, Wayne, PA, to lease two cellular telephones. a. Servis entered into this lease as an official of the borough. 3. The Agreement, under Account Number 91582775, called for Comcast to provide two cellular telephones under a "Large Account Plan II /Corp." plan. The agreement required the borough to pay a start of service fee of $25.00 for each phone, a $16.00 monthly service fee for each phone; air time usage fees of $ .36 per minute peak time and $ .16 per minute off -peak time; local land fees; and taxes. b. The Agreement was signed by Bryan R. Servis and listed the Borough of Tullytown as the membership corporate name, attention Bryan Servis, 500 Main Street, Tullytown, PA 19007, Phone 945 -1560. 4. Servis kept one of the phones for his own use and turned the other phone over to the police department for use by the police chief and police department personnel. a. a. b. The listed number of the phone used by Servis was (215) 808 -0679. The listed number of the phone used by the police department was (215) 808 -0691. 5. On July 15, 1993, Servis entered into a second agreement with Comcast Metrophone as an official of the Borough of Tullytown, leasing two additional cellular telephones under Agreement No. 91962506. Servis, 96- 027 -C2 Page 3 a. This Agreement called for Comcast to provide the two additional cellular telephones under a "Large Account Plan II /Corp." plan. b. The Agreement required the borough to pay a start service fee of $35.00 for one of the phones; . a $16.00 monthly service fee for each phone; the same air time usage fees; local land fees; and taxes. c. The Agreement was signed by Bryan R. Servis and listed the Borough of Tullytown as the membership corporate name, attention Bryan Servis, 500 Main Street, Tullytown, PA 19007, Phone 945 -1560. 6. One of the phones provided under Agreement Number 91962506, listed telephone number (215) 290 -9161, was for use by Servis. a. This telephone is in addition to the phone obtained by Servis via Agreement No. 91582775 (telephone number (215) 808 - 0679). (See Findings No. 15 and 16). 7. The police department was provided with the other phone obtained under Agreement Number 919622506, listing telephone number (215) 290 -9162. a. This was in addition to telephone number (215) 808 -0691, as part of Agreement Number 91582775. 8. Both contracts (Nos. 91582275 and 91962506) entered into by Servis, with Comcast Metrophone, were not discussed at council meetings and were not approved by a vote of council. 9. The Borough of Tullytown did not have a specific policy governing the acquisition and use of cellular phones by borough personnel or officials. a. Contracts entered into on behalf of the borough are approved by council prior to the effective date of the contract. 10. Comcast Metrophone billed the borough on the 23rd of each month for the use of the cellular phones. a. The bills were addressed to: Boro of Tullytown, Attn: Bryan Servis, 500 Main Street, Tullytown, PA 19007. b. Comcast began billing the borough for the phone service to Agreement Number 91582275 [sic] on January 23, 1993. 11. Invoices received from vendors are compiled by employees of the borough into lists for council review and approval. a. Borough purchase orders are prepared by staff for review and approval by the Council President prior to a vote by Council. b. Council President also reviews and initials vendor invoices. c. A Treasurer's Report is then prepared for approval by council. Servis, 96- 027 -C2 Page 4 12. While serving as Tullytown Borough Council President, Bryan Servis reviewed and approved vendor invoices and signed borough purchase orders. a. This included bills received from Comcast for the cellular telephone service. 13. Servis took the following action as Council President to approve for payment the Comcast Metrophone bills submitted to the Borough: Date Comcast Bill 01/23/93 Initialed BRS 02/23/93 03/23/93 04/23/93 05/23/93 06/23/93 07/23/93 08/23/93 09/23/93 Initialed BRS 10/23/93 11/23/93 12/23/93 01/23/94 Initialed BRS 02/23/94 03/23/94 04/23/94 05/23/94 14. Servis participated in actions of Council to approve Treasurer's Reports which included Comcast bills. Date of Meetina 02/11/93 03/03/93 04/13/93 05/04/93 06/01/93 07/06/93 08/10/93 09/14/93 10/05/93 11/09/93 12/07/93 01/11/94 02/01/94 03/01/94 04/11/94 05/03/94 06/07/94 Servis Absent or Present Present Present Present Present Absent Present Present Absent Present Present Present Present Present Present Present Absent Present Borough of Tullytown Purchase Order No. 5181 No. 5781 No. 5781 Signed by Bryan Servis No. 5952 Signed by Bryan Servis No. 5999 Signed by Bryan Servis No. 6031 No. 6031 Signed by Bryan Servis No. 6064 Signed by Bryan Servis No. 6113 Signed by Bryan Servis No. 6269 No. 6269 No. 6269 Signed by Bryan Servis Action Taken By Servis Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Voted to Approve Comcast Bill Date and Amount 01/23/93-$131.37 01/23/93-$131.37 02/23/93 03/23/93 - $381.37 No Comcast Bill 04/23/93 - $284.63 06/23/93 - $525.03 07/23/93- $441.17 08/23/93 - $396.39 09/23/93 - $391.27 No Comcast Bill No Comcast Bill 11/23/93-$122.72 12/23/93- $967.78 01/23/94-$170.50 02/23/94 - $261.87 02/23/94 - $261.87 03/23/94 -$ Servis, 96- 027 -C2 Page 5 07/05/94 04/23/94 - $444.58 Present Voted to Approve 05/23/94 - $262.93 15. Servis signed the borough checks issued, as indicated below, to Comcast for payment of cellular telephone service. Check Number Date Amount Contains Bryan Servis' Signature As Council President 19034 02/15/93 $131.37 Yes 19123 03/31/93 $381.37 Yes 19256 05/24/93 $284.63 No 19331 07/07/93 $525.03 No 19400 08/02/93 $441.17 Yes 19446 09/17/93 $396.39 No 19522 10/07/93 $391.27 Yes 19709 01/10/94 $122.72 Yes 19747 01/11/94 $967.78 Yes 19767 02/02/94 $170.50 Yes 19912 04/08/94 $261.87 No 19993 05/03/94 $444.58 No 20105 06/29/94 $262.93 No 16. At the September 14, 1993, and October 5, 1993, council meetings Councilman James Chase questioned the Comcast Metrophone bills and requested a breakdown of the July 1993 and August 1993 Comcast Bills. 17. Council President Servis was present at the meeting of October 5, 1993. a. Servis informed Chase that the phones were not purchased through the Borough as they are owned by each individual. b. Servis also stated the phone bills contain information on personal calls and confidential calls so they should be reviewed in the office. 18. During the October 5, 1993, meeting, Chase made a motion that the Borough be reimbursed for all monies paid out for the use of the phones and that the Borough not accept any future bills for the use of the phones. a. The motion was seconded by Councilman Mazzocchi. b. The motion failed by a vote of 3 against 2, in favor, with Servis abstaining. 19. Borough solicitor John Cordisco advised Council as follows regarding the cellular telephones: a. The fact as to whether the phones were authorized or not authorized is not the issue because there was no expenditure for the purchase of the phones. Servis, 96- 027 -C2 Page 6 b. If a majority of Council approves a bill and in fact it is reimbursed for those calls which are private and pays for the calls that are conducted for the purpose of the Borough then the expenditure is proper. 20. On March 24, 1994, Servis revised the Agreements with Comcast Metrophone under Account Numbers 91582775 and 91962506. a. Servis changed telephone number (215) 290 -9161 from Account Number 91962506 to Account Number 91582775. b. Servis changed telephone number (215) 808 -0691 from Account Number 91582775 to Account Number 91962506. 21. As a result of the revision Account Number 91582775 included telephone numbers (215) 290 -9161 and (215) 808 -0679. a. Account Number 91962506 contained telephone numbers (215) 290- 9162 and (215) 808 -0961. 22. Servis also changed the billing information on Account Number 91582775 to read "Boro of Tullytown, Attn: Bryan Servis, 237 Main Street, Tullytown, PA 19007," Servis' home address. 23. The billing information on Account Number 91962506 remained "Boro of Tullytown, Attn: Bryan Servis, 500 Main Street, Tullytown, PA 19007." a. The Borough of Tullytown Municipal Building is located at 500 Main Street, Tullytown, PA. 24. On April 5, 1994, Tullytown Borough Council voted unanimously to approve a motion to cancel all of the Borough's cellular phone contracts and to have all of the cellular phones returned to council. a. Servis was present at the meeting and voted on the motion. 25. Servis did not return the cellular phones to the borough which were obtained from Comcast as a result of the original contracts entered into on January 15, 1993, (No. 91582775) and July 15, 1993, (No. 91962506). a. Servis retained the phones for his personal use under the revised Agreement of 03/24/94 on Account Number 91582775. 26. Servis was questioned by other members of Borough Council at the time of the April 5, 1994, meeting concerning his use of the cellular phones and the cost to the borough for Servis' personal calls on the phones. a. Servis informed Council members that he would reimburse the Borough for the cost of his personal use of the phone. 27. Servis told Council Member Pat Carroll that he reimbursed the Borough $300.00 by paying a check to Borough Treasurer William DePasquale. Servis, 96- 027 -C2 Page 7 a. No payments have ever been made by Servis to DePasquale or any other borough official for the cellular telephone service. 28. Servis maintained Account Number 91582775 with Comcast Metrophone until January 16, 1996, when it was canceled for non - payment of bills. 29. The monthly Comcast Metrophone bills to the borough confirm that Servis made the following personal calls using the cellular phone which were billed to the Borough of Tullytown: a. Number: (215)945 -5130 Date 02/03/93 02/09/93 02/09/93 02/11/93 03/05/93 04/01/93 04/08/93 04/15/93 05/28/93 05/28/93 05/28/93 05/28/93 05/28/93 TOTAL b. Amount Date Amount . 36 . 36 .72 .36 .36 . 36 1.08 .36 1.17 2.33 1.18 1.18 2.20 $ 12.02 Number: (215)945 -6390 05/28/93 05/31/93 06/03/93 06/07/93 08/03/93 09/15/93 09/16/93 09/28/93 10/04/93 10/19/93 11/02/93 12/01/93 12/05/93 Date Amount Date Amount 07/09/93 1.44 10/20/93 2.52 07/06/93 6.30 11/19/93 1.44 07/15/93 1.08 11/19/93 .36 07/20/93 .72 11/19/93 .72 08/03/93 .72 11/29/93 .72 08/09/93 2.88 12/06/93 .36 08/12/93 5.82 12/06/93 .36 08/17/93 .36 12/06/93 1.08 Service Listed To: J. Green/ Bryan Servis 237 Main Street Tullytown, PA 1.18 3.32 . 36 . 36 .72 .36 .72 . 36 .36 . 36 .72 . 36 .16 $9.34 Date Amount 12/21/93 12/25/93 01/04/93 01/08/93 02/09/94 03/23/94 GRAND TOTAL .72 .16 .72 .16 .72 .16 $ 2.64 $ 24.00 Number Listed To: Power Plant Gym Levittown, PA Date Amount 01/05/94 .72 01/05/94 .36 01/12/94 .36 01/19/94 .36 01/21/94 .36 01/26/94 .16 02/18/94 .72 02/22/94 .36 08/17/93 2.16 12/08/93 1.08 03/09/94 .36 Servis, 96- 027 -C2 Page 8 09/28/93 .72 10/08/93 .72 TOTAL $22.92 c. Number: (215)547 -6923 Date Amount 06/01/93 .72 06/01/93 2.16 06/09/93 .36 06/09/93 3.24 06/09/93 1.08 06/09/93 1.08 06/11/93 1.08 06/11/93 3.24 06/22/93 1.80 06/14/93 10.07 06/25/93 .36 06/30/93 1.44 07/08/93 .36 07/08/93 .36 07/08/93 .36 07/08/93 .36 07/08/93 .36 07/08/93 .72 07/08/93 .36 07/08/93 1.44 07/09/93 .36 07/12/93 6.48 07/13/93 .36 07/16/93 .36 07/16/93 .72 07/20/93 1.44 07/22/93 2.52 07/23/93 1.08 07/21/93 2.88 07/27/93 1.08 07/28/93 .72 07/29/93 2.52 TOTAL $51.11 d. Number: (215)785 -3762 12/09/93 .36 03/15/94 3.96 12/22/93 .72 $9.72 $7.72 GRAND TOTAL $40.36 Service Listed To: Date Amount 08/03/93 08/03/93 08/07/93 08/17/93 08/18/93 08/02/93 08/02/93 08/07/93 08/26/93 08/27/93 08/31/93 09/01/93 09/03/93 09/16/93 09/16/93 09/21/93 09/24/93 09/27/93 10/01/93 10/06/93 10/19/93 10/20/93 10/20/93 10/21/93 10/23/93 10/25/93 11/01/93 11/02/93 11/08/93 11/16/93 11/16/93 11/19/93 .72 .72 .16 1.08 .36 6.06 7.55 9.06 1.08 .72 1.44 .72 2.16 .72. 1.08 .36 1.08 1.08 .72 .72 .72 1.80 1.44 .36 .96 1.80 1.08 1.44 .72 .36 2.16 1.08 $51.51 Rob's Automotive 5250 Emilie Road Levittown, PA 19057 Date Amount 11/29/93 12/01/93 12/15/93 12/15/93 12/17/93 01/11/94 01/12/94 01/14/94 01/16/94 01/25/94 01/31/94 01/31/94 01/31/94 02/08/94 02/21/94 02/22/94 02/22/94 02/28/94 03/04/94 03/11/94 03/16/94 03/17/94 03/23/94 03/21/94 From NJ: 07/26/93 08/02/93 08/02/93 08/07/93 GRAND TOTAL 1.80 1.44 .72 .72 .72 1.80 .36 .72 .48 1.08 .72 1.80 1.08 1.80 .72 .36 .72 .72 1.08 1.08 .72 .72 .36 1.80 15.11 6.06 7.55 9.06 $ 61.30 $164.28 Service Listed To: Robert A. Leipziger 318 Park Avenue Bristol, PA 19007 Servis, 96- 027 -C2 Page 9 Date Amount 06/15/93 06/21/93 06/05/93 06/12/93 06/29/93 07/06/93 07/16/93 07/08/93 07/12/93 06/25/93 07/21/93 07/26/93 07/26/93 08/01/93 08/01/93 08/02/93 12/21/93 12/23/93 12/24/93 12/24/93 12/25/93 01/04/94 01/05/94 01/06/94 01/07/94 01/09/94 TOTAL e. Number: 1.08 .72 3.40 1.14 .48 .72 .16 .80 1.80 2.26 .72 .72 .32 .16 .96 .72 .72 2.88 .16 . 32 .32 . 16 .36 .72 .36 .48 $22.64 (215)368 -9681 Date 08/03/93 08/07/93 08/07/93 08/18/93 08/18/93 08/23/93 08/23/93 08/23/93 09/01/93 09/17/93 09/20/93 10/01/93 09/27/93 09/28/93 09/30/93 10/18/93 01/10/94 01/25/94 01/26/94 02/07/94 02/09/94 02/20/94 .72 .64 .64 1.84 .16 .16 . 32 . 32 .36 .36 1.44 .36 .36 1.08 .36 .16 . 36 .36 . 96 .16 . 36 .32 02/20/94 .16 02/20/94 .16 02/26/94 .48 02/26/94 .16 $12.76 GRAND TOTAL Date Amount Date Amount 01/15/93 .72 03/24/93 .36 01/15/93 .64 03/25/93 .36 01/19/93 .72 03/25/93 .36 01/20/93 1.08 03/26/93 .36 01/20/93 .72 03/28/93 .32 01/20/93 .80 03/28/93 1.92 01/21/93 .48 03/29/93 .36 01/22/93 .72 03/29/93 .36 02/04/93 .36 03/29/93 .72 02/04/93 .72 03/30/93 .36 02/11/93 .36 03/30/03 .72 02/11/93 .48 03/30/93 .72 02/12/93 .36 03/31/93 .72 02/18/93 .36 03/31/93 .36 Amount Date Amount 10/18/93 10/23/93 11/02/93 11/03/93 11/21/93 11/30/93 12/06/93 12/15/93 12/18/93 12/18/93 12/18/93 12/18/93 12/18/93 12/19/93 12/19/93 12/20/93 02/27/94 03/08/94 03/08/94 03/14/94 03/20/94 . 16 .16 .36 .64 . 32 . 32 1.80 .72 .48 .48 .32 .16 .32 .64 .16 . 36 .32 . 36 .64 .48 .16 $9.36 $44.76 Service Listed To: Joseph Sweeney 1484 Wheaten Lane North Wales, PA 19454 Date Amount 11/27/93 11/28/93 11/29/93 11/30/93 12/02/93 12/04/93 12/04/93 12/04/93 12/05/93 12/06/93 12/06/93 12/06/93 12/07/93 12/12/93 .16 1.28 .36 . 72 . 32 .48 .16 .16 2.24 .36 . 16 .16 1.76 1.12 Servis, 96- 027 -C2 Page 10 02/19/93 .36 02/23/93 .72 02/27/93 .16 02/27/93 1.12 02/27/93 .32 02/27/93 .16 03/01/93 .36 03/01/93 .72 03/02/93 1.08 03/02/93 1.08 03/02/93 1.08 03/02/93 .16 03/03/93 .16 03/07/93 .48 03/09/93 3.60 03/09/93 .36 03/09/93 2.88 03/09/93 .72 03/10/93 .72 03/10/93 .36 03/10/93 .72 03/11/93 .36 03/12/93 .36 03/12/93 .72 03/14/93 .16 03/23/93 .36 03/24/93 .36 TOTAL $28.16 f. Number: 04/02/93 04/02/93 04/04/93 04/07/93 04/08/93 04/10/93 04/15/93 04/17/93 04/17/93 04/17/93 04/17/93 04/21/93 04/21/93 03/28/93 06/02/93 06/04/93 06/25/93 07/09/93 07/16/93 07/16/93 08/05/93 08/05/93 08/18/93 08/25/93 09/01/93 11/08/93 11/19/93 .36 .72 .16 .36 .36 .16 . 36 .16 .16 1.44 1.60 . 36 1.76 1.14 .36 . 36 .36 .72 .36 . 36 .36 .36 .36 .36 . 36 . 36 .36 $22.14 (215)949 -2392 Service Listed To: 12/21/93 .72 12/22/93 .36 12/22/93 1.60 12/22/93 .36 12/23/93 .36 12/23/93 .36 12/23/93 .32 12/25/93 .16 GRAND TOTAL $13.68 $ 63.98 Donna Weidenmiller Donna Funsten 18 Hawk Road Levittown, PA 19056 Date Amount Date Amount Ilat o Amount 01/15/93 .36 06/02/93 .48 11/29/93 1.80 01/17/93 1.25 07/19/93 .32 12/08/93 2.52 01/20/93 1.80 07/19/93 2.56 12/08/93 5.76 02/22/93 2.16 07/20/93 1.80 12/28/93 2.52 02/23/93 .36 07/20/93 .36 12/29/93 1.76 03/05/93 3.96 07/23/93 1.44 01/05/94 1.08 03/05/93 2.16 07/23/93 4.32 01/10/93 .36 03/09/93 .36 07/28/93 .32 02/25/94 5.40 03/09/93 .36 07/28/93 .36 02/28/94 .36 03/10/93 1.08 07/29/93 1.44 03/01/94 .36 03/12/93 1.44 07/30/93 2.52 03/04/93 .64 03/22/93 2.52 11/16/93 .36 04/07/93 2.16 11/16/93 .96 04/15/93 .72 11/17/93 .72 Servis, 96- 027 -C2 Page 11 05/21/93 1.08 06/01/93 .36 TOTAL $22.13 9. Number: Date 06/15/93 06/22/93 06/28/93 07/02/93 07/19/93 07/26/93 09/08/93 09/03/93 11/12/93 12/10/93 02/01/94 TOTAL h. Number: (215)646 -3877 Service Listed To: Guido J. Allegrezza 1558 Three Tuns Lane Upper Dublin, PA 19002 Date Amount 06/18/93 1.44 06/28/93 .16 06/30/93 1.12 07/16/93 1.08 07/22/93 1.92 08/27/93 2.52 09/18/93 .80 11/10/93 1.44 12/05/93 .80 01/06/93 .32 Amount Date Amount .16 06/15/93 .32 .32 06/22/93 1.12 .16 06/28/93 .32 .80 07/06/93 12.34 .32 07/19/93 36.27 4.32 08/05/93 5.67 4.68 09/10/93 1.44 5.67 09/30/93 .30 1.44 11/28/93 .80 1.12 12/19/93 .96 .32 $19.31 $ 59.54 (215)579 -7422 Date Amount Date 01/27/93 .36 01/27/93 .72 01/27/93 2.88 02/06/93 .48 02/08/93 .72 02/20/93 .32 02/23/93 1.44 02/24/93 1.08 02/24/93 .36 02/25/93 1.08 03/03/93 .16 03/04/93 1.44 03/09/93 1.44 03/09/93 .36 03/10/93 3.52 03/24/93 .36 03/28/93 .48 03/31/93 .72 04/10/93 .16 04/10/93 .48 04/15/93 .72 04/15/93 1.08 04/16/93 5.04 04/16/93 1.80 04/19/93 1.08 04/23/93 1.44 05/26/93 6.48 05/26/93 .72 05/26/93 .36 05/27/93 2.52 05/27/93 .16 05/27/93 .64 06/15/93 .16 06/17/93 1.80 06/18/93 .72 06/21/93 .72 11/20/93 .16 11/20/93 .96 $19.08 GRAND TOTAL GRAND TOTAL $ 22.56 $63.77 Amount Date Amount 01/27/93 .36 02/6/93 .48 02/20/93 .16 02/24/93 .36 02/27/93 .16 03/04/93 .36 03/09/93 .36 03/25/93 .72 04/01/93 1.08 04/15/93 .36 04/15/93 .36 04/16/93 .16 05/22/93 .16 05/26/93 .36 05/27/93 1.44 06/01/93 .36 06/18/93 1.44 06/22/93 .36 $11.60 $ 90.45 Service Listed To: Cobra Technologies 108 Corporate Drive Middletown, PA 18940 Servis, 96- 027 -C2 Page 12 06/14/93 1.26 07/08/93 .16 07/12/93 .36 07/26/93 .72 09/03/93 5.04 09/12/93 1.12 09/28/93 .36 10/22/93 .36 10/25/93 .48 11/10/93 .72 11/16/93 2.16 12/09/93 6.84 12/10/93 .36 12/20/93 .72 12/23/93 1.44 01/06/94 .64 01/14/94 .36 01/21/94 .36 02/06/94 .16 02/16/94 2.88 02/20/94 .16 02/28/94 1.44 03/15/94 .36 TOTAL $ 54.70 Number: Date 07/27/93 08/11/93 09/28/93 10/13/93 11/08/93 02/21/94 03/09/94 TOTAL J• Number: (215)943 -6062 Service Listed To: Amount Date Amount Date Amount . 36 08/05/93 6.24 08/10/93 .32 .16 08/11/93 .16 08/25/93 2.52 2.52 10/02/93 .32 10/09/93 1.60 . 96 10/26/93 .72 11/04/93 .16 1.12 12/01/93 .16 12/01/93 1.44 2.24 03/07/94 .16 03/07/94 1.92 2.16 $9.52 $7.76 $7.96 GRAND TOTAL $25.24 (215)750 -9333 06/25/93 07/08/93 07/23/93 07/26/93 09/03/93 09/21/93 09/28/93 10/23/93 10/25/93 11/12/93 11/19/93 12/09/93 12/18/93 12/20/93 12/25/93 01/10/94 01/16/94 01/23/94 02/09/94 02/18/94 02/25/94 03/04/94 .72 .96 .36 1.44 1.44 6.12 .36 .32 .48 1.28 . 36 2.88 .48 .32 . 96 7.92 .16 3.68 .16 . 80 . 36 7.92 $ 57.40 06/28/93 07/09/93 07/26/93 08/11/93 09/10/93 09/27/93 10/09/93 10/23/93 11/06/93 11/13/93 11/30/93 12/10/93 12/19/93 12/21/93 01/05/94 01/12/94 01/16/94 01/21/94 02/15/94 02/20/94 02/27/94 03/13/94 GRAND TOTAL .72 2.16 1.08 2.16 2.16 .16 . 64 . 32 .16 .16 .16 . 36 .16 .36 . 36 2.52 .16 .72 .36 .16 .16 .48 $ 24.72 $136.82 James Duffy 23 Goldengate Road Bristol, PA 19057 Service Listed To: Its About Time 2300 E. Lincoln Highway Oxford Valley Mall Langhorne, PA 19047 Servis, 96- 027 -C2 Page 13 Date Amount Date Amount Date Amount 09/08/93 .36 09/08/93 1.28 09/16/93 .64 09/16/93 .16 09/18/93 .16 09/19/93 1.60 09/23/93 .32 09/10/93 12.46 09/11/93 3.40 09/28/93 3.68 10/01/93 .16 10/02/93 .16 10/02/93 .16 10/18/93 .16 11/19/93 .16 11/20/93 .16 11/21/93 .32 11/28/93 .64 12/09/93 1.12 01/05/94 1.12 TOTAL $5.96 $ 15.66 $6.60 GRAND TOTAL $28.22 k. Number (215)547 -6576 Service Listed To: Marie Lebron 135 Trenton Road Apt. E21 Fairless Hills, PA 19030 Date Amount Date Amount Date Amount 02/04/93 .32 03/10/93 .36 03/12/93 .32 03/12/93 .16 04/03/93 .16 04/15/93 1.80 04/21/93 1.08 05/24/93 1.80 06/17/93 .36 06/22/93 .36 07/28/93 .32 08/20/93 .72 09/23/93 .36 09/28/93 1.44 10/01/93 .36 10/01/93 .72 10/01/93 .36 10/25/93 .48 11/01/93 .36 11/01/93 .36 12/07/93 .16 12/16/93 .36 12/23/93 2.88 12/23/93 .32 12/28/93 .16 02/09/94 .72 02/11/94 .36 02/12/94 .16 02/18/94 .36 02/23/94 .36 02/24/94 .36 02/24/94 .16 02/25/94 1.44 03/04/94 .72 TOTAL $5.12 $8.92 $6.68 GRAND TOTAL $20.72 Number: (215)547 -5468 Service Listed To: Eric Scott Bradfield 201 S. Woodbourne Rd. Apt. F32 Levittown, PA 19056 Date Amount Date Amount Date Amount 03/13/93 .16 03/13/93 .16 04/04/93 3.20 04/04/93 .16 04/04/93 .16 05/24/93 1.08 05/25/93 .36 05/25/93 1.80 05/24/93 .72 06/01/93 .72 06/02/93 .72 06/02/93 1.08 06/02/93 1.76 06/02/93 .16 06/09/93 .36 06/09/93 1.44 06/23/93 1.80 05/28/93 3.47 05/28/93 6.79 05/30/93 1.14 05/30/93 1.14 05/31/93 1.14 05/31/93 1.25 05/31/93 1.16 Servis, 96- 027 -C2 Page 14 05/31/93 6.92 06/05/93 1.14 06/06/93 2.14 06/25/93 6.92 11/05/93 .36 11/10/93 .16 11/12/93 .16 11/13/93 2.24 11/16/93 .48 11//28/93 .16 11/29/93 .36 12/01/93 .36 12/01/93 1.08 12/14/93 1.80 12/23/93 1.08 12/24/93 .16 12/28/93 1.44 12/30/93 2.16 TOTAL $ 27.93 $14.53 $18.59 GRAND TOTAL $61.05 m. Number: (215)637 -5544 Service Listed To: Barbara Capponi 3738 Vale Lane Phila. PA 19114 Date Amount Date Amount Date Amount 12/08/93 .36 12/12/93 .16 12/15/93 .36 12/16/93 .32 12/18/93 3.36 12/19/93 .32 12/19/93 .64 12/20/93 .36 12/23/93 .36 12/29/93 1.60 12/30/93 .32 TOTAL $ 2.92 $4.20 $ 1.04 GRAND TOTAL $8.16 n. Number: (609)263 -6327 Service Listed To: D. Watson 113 S. Commonwealth Ave Strathmire NJ 08248 Date 06/25/93 2.14 07/18/93 2.12 07/30/93 4.00 09/06/93 1.06 TOTAL $9.32 o. Amount Date Amount Date Amount 07/04/93 2.06 07/18/93 1.06 08/27/93 2.12 $ 5.24 07/1793 1.06 07/18/93 1.01 08/28/93 5.30 $ 7.37 GRAND TOTAL $21.93 Number: (609)368 -0736 Service Listed To: Lynn Milardo 2nd Floor Rear 347 Dune Drive Stone Harbor, NJ 08247 Date Amount Date Amount Date Amount 08/07/93 .16 08/07/93 1.12 08/12/93 1.26 08/12/93 3.16 08/28/93 2.12. 08/28/93 2.12 08/28/93 5.24 08/28/93 2.01 08/28/93 2.12 TOTAL $8.56 $5.25 GRAND TOTAL $19.31 Servis, 96- 027 -C2 Page 15 P. Number: (609)368 -8540 Service Listed To: Robert Leipziger Unit B 1619 Ocean Drive Avalone, NJ 08202 Date Amount Date Amount Date Amount 07/10/93 1.06 07/26/93 4.22 08/02/93 1.14 08/21/93 1.14 08/21/93 1.14 8/22/93 1.06 09/05/93 5.30 TOTAL $ 7.50 $ 5.36 $2.20 GRAND TOTAL $15.06 q. Number: (609)770 -8435 Service Listed To: Trina Barrett 64 -6 Van Buren Road Vorhes Twp. NJ Date Amount Date Amount Date Amount 01/27/93 .80 03/03/93 .80 06/03/93 3.60 06/04/93 .36 06/17/93 .36 07/15/93 .32 08/23/93 .48 08/24/93 .24 08/24/93 .16 08/25/93 .36 08/26/93 .36 08/26/93 .26 08/26/93 .26 09/10/93 .72 09/10/93 4.16 09/18/93 2.08 09/18/93 .32 09/18/93 .96 11/19/93 .32 11/27/93 1.12 12/31/93 .48 12/31/93 .32 12/31/93 .32 TOTAL $4.98 $4.24 $9.94 GRAND TOTAL $19.16 r. Number: (212)247 -5000 Service Listed To: Americani Hotel New York City Date Amount Date Amount Date Amount 06/08/93 .50 06/08/93 1.00 06/08/93 .50 06/08/93 5.00 06/11/93 5.54 TOTAL $ 5.50 $ 6.54 $ .50 GRAND TOTAL $12.54 s. Number: (803)448 -2856 Service Listed To: Myrtle Beach SC Date Amount Date Amount Date Amount 03/23/93 5.00 03/24/93 3.19 04/08/93 .50 Servis, 96- 027 -C2 Page 16 04/08/93 1.00 04/10/93 .48 TOTAL $6.00 $3.67 $.50 GRAND TOTAL $10.17 30. Servis received a private pecuniary benefit when the borough paid for private cellular telephone calls placed as follows: a. (215) 945 -5130 $ 24.00 b. (215) 945 -6390 $ 40.36 c. (215) 547 -6923 $164.28 d. (215) 785 -8762 $ 44.76 e. (215) 368 -9681 $ 63.98 f. (215) 949 -2392 $ 63.77 g. (215) 646 -3877 $ 90.45 h. (215) 579 -7422 $136.82 i. (215) 943 -6062 $ 25.24 j. (215) 750 -9333 $ 28.22 k. (215) 547 -6576 $ 20.72 I. (215) 547 -5468 $ 61.05 m. (215) 637 -5544 $ 8.16 n. (609) 263 -6327 $ 21.93 o. (609) 368 -0736 $ 19.31 p. (609) 368 -8540 $ 15.06 q. (609) 770 -8435 $ 19.16 r. (212) 247 -5000 $ 12.54 s. (803) 448 -2856 $ 10.17 TOTAL $869.98 31. After council voted on April 5, 1994, to cancel the cellular contracts a Comcast Metrophone bill dated April 23, 1994, for account number 91582775, was submitted for payment to council. a. The bill covered the period from 03/24/94 to 04/23/94, in the amount of $142.77. Servis, 96- 027 -C2 Page 17 b. The bills covered telephone numbers (215) 290 -9160 and (215) 808- 0691. 32. The Comcast bill was approved for payment by borough council on June 7, 1994. a. Servis was present and participated in the vote. 33. The payment of this bill was for calls made subsequent to Bryan Servis changing this account to his private residence. (See Finding No. 36) a. A majority the calls were made after council voted on April 5, 1994, to cancel the Comcast Metrophone contract and ordered the cellular phones returned to council. (See Finding No. 41). 34. Servis received a private pecuniary benefit of $142.77 when the borough paid his cellular telephone bill after voting on April 4, 1992, to discontinue service. (See Findings No. 49 and 50). 35. Total private pecuniary benefit realized by Bryan Servis for the use of cellular telephone is as follows: a. Finding Nos. 31 and 32 - personal calls paid for by borough. $869.98 b. Finding No. 36 - personal bill paid for by borough. $ 142.77 TOTAL $ 1,012.75 III. DISCUSSION: At all times relevant to this matter, the Respondent, Bryan Servis, hereinafter Servis, has been a public official /public employee subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq. The issue before us is whether Servis, as a Councilman in Tullytown Borough, Bucks County, violated Section 3(a) of the Ethics Law as to the allegation that he used the authority of his office for a private pecuniary benefit by contracting to obtain a cellular telephone for his personal use at borough expense without the approval of council, and when he used the cellular telephone for personal calls and subsequently approved payments of bills for said calls, including but not limited to approving invoices, voting to pay bills and signing checks. Pursuant to Section 3(a) of the Ethics Law quoted above, 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 Act 9 of 1989 as follows: Section 2. 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 Servis, 96- 027 -C2 Page 18 65 P.S. §402. facts. 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. "Conflict" or "conflict of interest" 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. Having noted the issues and applicable law, we shall now summarize the salient Servis has been a Member of Tullytown Borough Council since January 7, 1992 and Council President from January 7, 1992 to April 5, 1994 and from January 2, 1996 to August 6, 1996. In January, 1993, Servis as Council President entered into a contract with Comcast Metrophone (CM) to lease two cellular telephones for the Borough. Servis retained one of the telephones for his personal use and gave the other telephone to the Police Department for its use. In July, 1993, Servis entered into a second agreement with CM for two additional cellular telephones. As to the two additional telephones, Servis similarly retained one of the telephones for his own use and turned over the second telephone to the Police Department. Both of the lease agreements between Servis as a Borough official and CM were not discussed at Council meetings nor approved by a vote of Council. Tullytown Borough had no policy governing the acquisition and use of cellular telephones by Borough officials or employees. CM billed the Borough on a monthly basis for the cellular telephone service as per the agreements with Servis. All invoices received from vendors of the Boroughs are put into lists for Council's review and approval. Council President initially reviews and initials vendors invoices which are then placed in a Treasurer's report that is prepared to submit to Council for approval. Servis, while serving as Council President, reviewed and approved vendor invoices including those from CM for cellular telephone service. The specific actions that Servis took as Council President, including initialing bills, signing purchase orders, voting approvals, and signing checks, for CM cellular telephone service are delineated in Fact Findings 13 -15. At the September and October, 1993 Council meetings, Council Member James Chase questioned the CM bills. At the October Council meeting, Chase made a motion that the Borough be reimbursed for all monies paid for use of the cellular telephones but the motion failed in a 3 -2 vote with Servis abstaining. Servis asserted that the telephones were not purchased for the Borough and were owned by each individual. Council contacted the Borough Solicitor about the cellular telephone usage and he opined that the cellular telephones were not an issue because they were not purchased. The only matter in issue according to the Solicitor was whether payments Servis, 96- 027 -C2 Page 19 of the cellular telephone service bills were approved by a majority of Council and whether reimbursements were made for any private calls. In March of 1994, Servis revised the agreements with CM to change telephone numbers. Servis also changed the billing information on one account to read Tullytown Borough to the attention of Servis at his home address. The billing location for the other account remained with Tullytown Borough at the municipal building address. In April, 1994, after Borough Council voted to cancel the cellular telephone service, Servis did not return the cellular telephones to the Borough and retained the telephones for his personal use. Servis was questioned by Borough Council Members about his cellular telephone usage at Borough expense. Servis informed Council Members that he would reimburse the Borough for such costs and told one Council Member that he would pay $300 to the Borough Treasurer, even though no payment was ever made by Servis. Servis maintained one account with CM until January of 1996 when the service was canceled for non - payment of bills. During the years 1993 and 1994, Servis made various personal calls on the cellular telephones at Borough expense. The particulars as to such personal telephone calls by Servis, consisting of the call dates, the charges, and the parties called, are delineated in Fact Finding 29. Servis's personal calls are set forth on a "number called" basis in Fact Finding 30. The private pecuniary benefit that Servis received as to the personal telephone calls amounted to $869.98. Fact Finding 30. Even after the April, 1994 Council vote to cancel the cellular telephone service with CM, a bill in the amount of $142.77 was submitted to Council which was approved for payment with Servis participating in that vote. That bill reflected the payment for cellular telephone calls made by Servis after he changed the billing address of the Borough account to his private residence with the majority of the calls being made after Council voted to order the cellular telephones returned to Council. As to the personal use of the cellular telephone service, Servis received a pecuniary benefit at Borough expense in making personal calls on the cellular telephones and in making certain calls after the April 4, 1994 vote by Council to discontinue service. The total private pecuniary benefit received by Servis was $1,012.775. Fact Finding 35. Having summarized the above relevant facts, we must now determine whether the actions of Servis violated Section 3(a) of Act 9 of 1989. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /public employee for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. We find no violation of Section 3(a) of Act 9 of 1989 regarding the contract by Servis for Borough - provided cellular telephone for official use and purposes. Under such parameters, there would be no private pecuniary benefit to Servis because the service was to be only for official business of the Borough. Hafer, Opinion 90 -013. However, we do find violations of Section 3(a) of Act 9 of 1989 when Servis used the Borough cellular telephone service for personal use. There was a use of authority of office on the part of Servis because he could not have made such personal calls but for the fact that he was a Council Member and President of Borough Council. See, Servis, 96- 027 -C2 Page 20 Juliante, Order No. 80. There was also a use of authority of office by Servis in participating in approving the cellular telephone service payments as well as signing the checks payable to CM. Perino, Order 980. The use of authority of office on the part of Servis resulted in a pecuniary benefit to him consisting of the cellular telephone service which he used for personal purposes at Borough expense. The pecuniary benefit was private because there is no provision in law which authorizes the use of a government -paid cellular telephone for non - official uses. The private pecuniary benefit enured to Servis. Hence, Servis violated Section 3(a) of Act 9 of 1989 when he used the Borough -paid cellular telephone for personal use. See, Eck, Order 787. The private pecuniary benefit received by Servis as to the use of the cellular telephone was $1,012.75. Turning to the matter of restitution, Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /public employee has obtained a financial gain in violation of the Ethics Law. In this case, since it has been determined that the financial gain amounted to $ 1,012.75, restitution of $1,012.75 by Servis is warranted. Therefore, Servis is directed to make payment of $ 1,012.75 within 30 days of the date of issuance of this Order through this Commission to Tullytown Borough. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. Non - compliance will result in the institution of an order enforcement action. Lastly, we note that the parties have filed a Stipulation of Findings and Consent Agreement which sets forth a proposed resolution of the allegations. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. Bryan Servis (Servis), as a Councilman in Tullytown Borough, is a public official subject to the provisions of Act 9 of 1989. 2. Servis did not violate Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain Borough cellular telephone service for official use. 3. Servis violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for himself by using Borough cellular telephones for his personal use at Borough expense and by signing Borough checks, voting to pay bills, and approving invoices for such personal cellular telephone calls. In Re: Bryan Servis ORDER NO. 1060 File Docket: 96- 027 -C2 Date Decided: 8/14/97 Date Mailed: 8/26/97 1. Bryan Servis (Servis), as a Councilman in Tullytown Borough, did not violate Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain Borough cellular telephone service for official use. 2. Servis violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for himself by using Borough cellular telephones for his personal use at Borough expense and by signing Borough checks, voting to pay bills, and approving invoices for such personal cellular telephone calls. 3. As per the Consent Agreement of the parties, Servis is directed to make payment in the amount of $1,012.75 through this Commission to Tullytown Borough within 30 days of the issuance of this Order. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR