Circumstantial evidence "raised a reasonable inference" that the employee had violated of New York City Charter §2604(b)2)

Circumstantial evidence "raised a reasonable inference" that the employee had violated of New York City Charter §2604(b)(2)
Oberman v New York City Conflicts of Interest Board, 2017 NY Slip Op 02366, Appellate Division, First Department

The New York City Conflicts of Interest Board, adopting the findings and recommendation as to the penalty to be imposed of an Office of Administrative Trials and Hearings' [OATH] Administrative Law Judge, held that Igor Oberman was guilty of having violated New York City Charter §2604(b)(2)* and 53 RCNY §1-13(a) and (b)**when he "used his public employer's resources for private purposes." The penalty imposed: a civil fine in the amount of $7,500.

Oberman initiated an Article 78 action challenging the Board's determination on the grounds that it was not supported by substantial evidence.  The Appellate Division, unanimously confirmed the Board's action.

The court said that there was no basis to disturb the credibility determinations of the OATH Administrative Law Judge*** as the "strong circumstantial evidence" of records of numerous calls involving Oberman's work telephone and donations to Oberman's political campaign, raised a reasonable inference that had used his public employer's resources for private purposes in violation of Charter §2604(b)2).

The Appellate Division then opined that "penalty is not shockingly disproportionate to the offense, in light of the extent of [Oberman's] misconduct, the warnings he had received against such misconduct, his failure to accept responsibility, and the high ethical standards to which he was held as an attorney." 

* §2604(b)(2) provides that "No public servant shall engage in any business, transaction or private employment, or have any financial or other private interest, direct or indirect, which is in conflict with the proper discharge of his or her official duties. 

** 53 RCNY §1-13(a) and (b) provide that:

            (a) Except as provided in subdivision 3 of this section, it shall be a violation of  City Charter §2604(b)(2) for any public servant to pursue personal and private activities during times when the public servant is required to perform services for   the City.

            (b) Except as provided in subdivision 3 of this section, it shall be a violation of City Charter §2604(b)(2) for any public servant to use City letterhead, personnel, equipment, resources, or supplies for any non-City purpose. 

*** See Office of Administrative Trials and Hearing Index #1657/14:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1657.pdf

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_02366.htm