The opinion of the court was delivered by: Edward H. Lehner, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this litigation plaintiffs seek a declaration that, notwithstanding the adoption of Introduction 845-A as Local Law 51 ("LL51") permitting elected City officials to serve for three consecutive terms, the existing members of the City Council as well as the present Mayor and Public Advocate remain subject to the two-term limitation contained in the prior law (City Charter § 1138).*fn1
The sole basis of plaintiffs' claim, as set forth in their petition, is that by enacting LL51, the Council and the Mayor violated § 2604 b 3 of the City Charter (the "Charter") by using their positions "to obtain a privilege or ... personal advantage" for themselves (petition ¶ 22). No argument is made herein that the Council lacked the authority to adopt LL51 or even to repeal the entire term limit law (tr. pp. 11-12, 19). The only remedy sought is the declaration referred to above with respect to officials involved in the enactment (tr. pp. 13-15). Thus, with respect to the remedy sought, this suit differs from the action commenced in federal court in which the Second Circuit this week affirmed the judgment upholding the law against challenges on a myriad of grounds [Molinari v. Bloomberg, 596 F. Supp. 2d 546 (EDNY 2009), aff'd. __F. 3d __ (2009 WL 1138501)].
This matter was commenced in October 2008 as a special proceeding, but by stipulation dated November 10, 2008 was converted into a plenary action. By notice of motion dated December 15, 2008, defendants moved to dismiss the complaint pursuant to CPLR 3211(a) 7, and by notice of motion dated January 30, 2009, plaintiffs cross-moved for summary judgment seeking the aforesaid declaration. At oral argument held on April 17, 2009*fn2 , the parties agreed that there were no disputed issues of fact and thus the court could consider the motions as seeking summary judgment (tr. p. 26).
Although initially defendants asserted a lack of standing on the part of plaintiffs, that defense was withdrawn in light of the statement of one of the plaintiffs (Danielle Singleton) that she intends to be a candidate for the Council (tr. p. 3). In addition to asserting a lack of merit to plaintiffs' claim, defendants maintain that a violation of § 2604 b 3 does not give rise to a private right of action.
Section 2604 b 3 of the Charter provides as follows:
No public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.
Although slightly different from the position asserted in the petition verified October 21, 2008 (dated just prior to passage of Intro 845-A on October 23, 2008), at oral argument plaintiffs' counsel stated that the word "license" is the only term in the above Charter provision on which plaintiffs' challenge is based (tr. p. 33).
Prior to the vote on Intro 845-A, Public Advocate Betsy Gotbaum and two Council members requested an opinion from the City's Conflict of Interest Board (the "Board") as to whether there would be a conflict in their participation in the consideration of and voting upon Intro 845-A. The Board was created pursuant to § 2602 of the Charter and consists of five member appointed by the mayor. Among other functions, the Board is authorized to give advisory opinions to public servants "with respect to all matters covered by" Chapter 68 of the Charter dealing with conflicts of interest. Section 2603 provides that a public servant who acts or fails to act based on "a reasonable reliance on the opinion, ... shall not be subject to penalties or sanctions."
In opining that the Council members would not violate the Charter by participating in the legislative process and voting on a measure relating to term limits, the Board stated that "there is no duty more fundamental to their office than the obligation to vote upon pending bills lawfully before them," and that the suggestion "that elected officials may never act on matters properly before them if their actions would have implications for their personal political prospects ... would bring democratic government to a halt." In so finding it was noted that there was no dispute that Council members may properly vote on their own salaries, the amount of campaign contributions they may receive, and various perks of office. The Board concluded that the conflicts of interest law "concerns conflicts between public servants' official duties and, in the main, their private, financial interests ..., not their political interests in serving as public officials or in the terms and conditions of that service" (emphasis in original).
With respect to salaries, it is noted that Council members are not limited, as are state legislators, to voting salary increases only for members elected to a future session. In fact, the last salary increase voted upon by Council members was made retroactive.
In Molinari v. Bloomberg, supra, District Court Judge Sifton in upholding LL 51 quoted with approval the statement in DiLucia v. Mandelker, 110 AD2d 260, 263 (1st Dept. 1985), that an advisory opinion of the Board "should be given considerable weight,." He concluded that the aforesaid opinion of the Board was correct, which conclusion was affirmed by the Second Circuit. This court also finds that deference is appropriate here. In O'Brien v. Spitzer, 7 NY2d 239, 242 (2006), it was stated that "[w]hile as a general rule courts will not defer to administrative agencies in matters of pure statutory interpretation ..., deference is appropriate where the question is one of specific application of a broad statutory term"(internal citations omitted). In that case the terms involved were "employee" and "independent ...