FINAL FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Upon consideration of all the evidence presented in this matter, and of the full record, and all papers submitted to, and rulings of, the Office of Administrative Trials and Hearings (“OATH”), including the annexed Report and Recommendation (the “Report”) of OATH Administrative Law Judge (“ALJ”) Kevin F. Casey dated May 4, 2023, in the above-captioned matter, the Board hereby adopts in full the findings of fact and conclusions of law contained in the Report, which finds that Respondent violated Charter Section 2604(b)(2), pursuant to Board Rules Section 1-13(b). The Report recommends the Board impose a fine of $155,000 pursuant to Charter Section 2606(b) and, in addition, order payment to the City of $319,794.20 pursuant to Charter Section 2606(b1), which recommendation the Board adopts.
Both parties were reminded of their right, pursuant to Board Rules Section 2- 03(h), to submit a post-hearing comment on the Report; neither party submitted such a comment within the time period provided for in the rule.
Without limiting the foregoing, and in summary of its findings and conclusions, the Board notes the following:
Between May 2019 and September 2019, while serving as Mayor, Respondent was a candidate for President of the United States. During this time, Respondent had the City pay the travel expenses for an NYPD security detail to accompany Respondent or his spouse on 31 out-of-state trips in connection with his presidential campaign. This NYPD security detail incurred $319,794.20 in travel costs, excluding NYPD salary and overtime, during these 31 trips.
The City’s conflicts of interest law, codified in Chapter 68 of the City Charter, exists to “preserve the trust placed in the public servants of the city, to promote public confidence in government, to protect the integrity of government decision-making and to enhance government efficiency.” Charter Section 2600. Charter Section 2604(b)(2), as implemented in Board Rules Section 1-13(b), forwards this critical purpose by prohibiting public servants from using City resources for any non-City purpose. When a public servant uses City resources for private purposes, it erodes the public’s trust and makes City government less efficient. For this reason, the Board has routinely enforced this prohibition, particularly where a public servant uses City resources for the non-City purpose of advancing a campaign for elective office or other political activity.(1)
Respondent’s conduct plainly violates this prohibition. Although there is a City purpose in the City paying for an NYPD security detail for the City’s Mayor, including the security detail’s salary and overtime, there is no City purpose in paying for the extra expenses incurred by that NYPD security detail to travel at a distance from the City to accompany the Mayor or his family on trips for his campaign for President of the United States. The Board advised Respondent to this effect prior to his campaign; Respondent disregarded the Board’s advice.
Having found the above-stated violations of the City Charter, and for the reasons set forth in the Report, the Board adopts the Report’s recommended fine of $5,000 for each of Respondent’s 31 violations of Chapter 68, for a total fine of $155,000 pursuant to Charter Section 2606(b), and payment to the City of $319,794.20 pursuant to Charter Section 2606(b-1), the value of the gain or benefit obtained by the Respondent as a result of the violation.
Respondent claims that the Board cannot impose a penalty upon Respondent because of the requirement, contained in Charter Section 2606(b), that the Board consult “with the head of the agency involved, or in the case of an agency head, with the mayor” before imposing a fine for violations of Charter Section 2604. Charter Section 2603(h)(3) contains a similar provision. As discussed in the Report, and as the Board has held previously, because Respondent was an executive branch elected official, this requirement does not apply here. Report at 19-20. See COIB v. Holtzman, COIB Case No. 93-121 (1996), OATH Index No. 581/94 at 41 n. 3, aff’d Holtzman v. Oliensis, 91
(1) See, e.g., COIB v. Oberman, COIB Case No. 2013-609, OATH Index No. 1657/14 (2014), affirmed 148 A.D.3d 598 (1st Dept., 2017) (imposing $7,500 fine against former Executive Agency Counsel at the New York City Taxi and Limousine Commission who used his City phone during business hours to work on his campaign for the New York City Council); COIB v. Hynes, COIB Case No. 2013-771 (2018) (imposing $40,000 fine against District Attorney who used City computers, email, and personnel for his re-election campaign); COIB v. Mosley, COIB Case No. 2013-004 (2013) (imposing $2,500 fine against an administrative manager at the New York City Office of the Comptroller who used her City computer and email account to perform campaign work for a candidate for the New York State Assembly).
N.Y.2d 488 (1998); COIB v. Markowitz, COIB Case No. 2009-181, OATH Index No. 1400/11 at 4.
WHEREFORE, IT IS HEREBY ORDERED that Respondent be assessed a fine of $155,000 pursuant to Charter Section 2606(b) and payment to the City of $319,794.20 pursuant to Charter Section 2606(b-1), a total of $474,794.20, to be paid to the Conflicts of Interest Board within 30 days of service of this Order
Respondent has the right to appeal this Order to the Supreme Court of the State of New York by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules.
The Conflicts of Interest Board
By: Milton L. Williams Jr., Chair
Fernando A. Bohorquez Jr., Wayne G. Hawley, Ifeoma Ike, Georgia M. Pestana did not participate in the consideration or decision of this matter.
Dated: June 15, 2023.
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