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In the Matter of Stephen Rosenblum v. the New York City Conflicts of Interest Board

February 9, 2012

IN THE MATTER OF STEPHEN ROSENBLUM, RESPONDENT,
v.
THE NEW YORK CITY CONFLICTS OF INTEREST BOARD, ET AL., APPELLANTS.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

We hold that the Conflicts of Interest Board of the City of New York (the Board or COIB) is authorized to enforce the Conflicts of Interest Law (NY City Charter §§ 2600-2607) against a public servant who is subject to discipline under §§ 3020 and 3020-a of the Education Law. As a result, the lower courts improperly prohibited respondents COIB and the City's Office of Administrative Trials and Hearings (OATH) from proceeding with an administrative trial against petitioner Stephen Rosenblum, a tenured assistant principal in the City's public school system.

I.

In 1964, the Legislature enacted General Municipal Law article 18 to "define areas of conflicts of interest in municipal transactions," while "leaving to each community the expression of its own code of ethics" (L 1964, ch 946, § 1). New York City's Conflicts of Interest Law is applicable to all of the City's current and former employees, and sets out various ethics rules designed "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" (NY City Charter § 2600).

Adopting the recommendation of the Charter Revision Commission, City voters in 1988 approved the creation of COIB as an independent body with the power to enforce the Conflicts of Interest Law (id. §§ 2602-2603). Whenever the Board receives a written complaint alleging violations of the law, it must take one of four actions: dismiss the complaint if it determines no further steps are required; send the complaint to the Commissioner of the City's Department of Investigation for further inquiry; make an initial determination that there is probable cause to believe that a violation of the Conflicts of Interest Law has occurred; or refer the matter to the head of the agency employing the public servant in those cases where the violation is deemed minor, or related disciplinary charges are pending there (id. § 2603 [e] [2]).

Once the Board makes an initial determination, whether based on a complaint, investigation or other information, it must notify the public servant in writing of the alleged violation (id. § 2603 [h] [1]). If, after consideration of the public servant's response to this notice, the Board determines that there remains probable cause, it

"shall hold or direct a hearing to be held on the record to determine whether such violation has occurred, or shall refer the matter to the appropriate agency if the public servant is subject to the jurisdiction of any state law or collective bargaining agreement which provides for the conduct of disciplinary proceedings, provided that when such a matter is referred to an agency, the agency shall consult with the board before issuing a final decision (id. § 2603 [h] [2]; see also 53 RCNY §§ 2-02 [a], 2-03).

The hearing is conducted by the Board or, upon its behalf, by a Board member, or the Chief Administrative Law Judge or an assigned administrative law judge (ALJ) from OATH (see 53 RCNY § 2-03), which has jurisdiction to conduct adjudicatory hearings for all City agencies (NY City Charter § 1048).

Following the hearing, the hearing officer reports recommended findings of fact, conclusions of law and a proposed disposition for the Board's review and final action (see 53 RCNY § 2-04 [a]). If the Board determines that a violation of the Conflicts of Interest Law has occurred, it

"shall, after consultation with the head of the agency served or formerly served by the public servant . . . issue an order either imposing such penalties provided for by this [Conflicts of Interest Law] as it deems appropriate, or recommending such penalties to the head of the agency served or formerly served by the public servant," with the exception of members of the City Council and staff, where COIB's authority is limited to recommending penalties to the Council (NY City Charter § 2603 [h] [3]; see also id. § 2606

[b] [Upon determination of a violation, the Board, "after consultation with the head of the agency involved . . . shall have the power to impose fines of up to twenty-five thousand dollars, and to recommend to the appointing authority (i.e., the employing agency), or person or body charged by law with responsibility for imposing such penalties, suspension or removal from office or employment"]).

Finally, section 2603 (h) (6) of the Charter specifies that

"[n]othing contained in this section [2603] shall prohibit the appointing officer [i.e., the employing agency] of a public servant from terminating or otherwise disciplining such public servant, where such appointing officer is otherwise authorized to do so; provided, however, that such action by the appointing officer shall not preclude the board from exercising its powers and duties under [the ...


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