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September 06, 2017

New York City employee found guilty of used his employer's telephone and computer equipment for his political campaign while at work


New York Cityemployee found guilty of used his employer's telephone for his political campaign while at work
Oberman v New York City Conflicts of Interest Bd., 2017 NY Slip Op 02366, Appellate Division, First Department

Accepting the findings and recommendation of a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ], the New York City Conflicts of Interest Board found Igor Oberman guilty of having violated New York City Charter §2604(b)(2) and 53 RCNY §1-13(a) and (b), as the result of his using his employer's telephone in connection with his political campaign activities while at work and ordered him to pay a civil penalty of $7,500.* The ALJ, however, found that Oberman's employer failed to prove that he had used the employer's computer during business hours to work on his political campaign. 

§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" while 53 RCNY §1-13(a) and (b), respectively, provide as follows:

   (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.

With respect to the penalty to be recommended by the Administrative Law Judge, Oberman contended that he suffered financial hardship due to his being terminated from his position and his failed run for elected office. The ALJ said that was there no proof with respect to Oberman's claims of financial hardship and opined that Oberman's "good work" in his former employment "is not compelling mitigation." However, said the ALJ, Oberman's "termination from employment should be factored into a penalty determination" and the Board's imposing a $7,500 civil penalty "takes into account the Board’s precedent, the aggravating and mitigating factors, and it comports with the Board’s deterrent function."

Oberman appealed the Board's determination and the penalty it imposed. The Appellate Division unanimously confirmed the Board's ruling

The court held that the Board's determination was supported by substantial evidence and there was no basis to disturb the credibility determinations of the Administrative Law Judge made at the Oberman's administrative hearing. Further, said the Appellate Division, "strong circumstantial evidence" including records of numerous calls involving Oberman's work telephone and donations to Oberman's political campaign raised a reasonable inference that Oberman used his public employer's resources for private purposes, "in violation of Charter §2604(b)(2) and 53 RCNY § 1-13(a) and (b)."

Citing Kelly v Safir, 96 NY2d 32, the Appellate Division held that the penalty was 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."

* The administrative hearing findings and recommendation of the OATH Administrative Law Judge [OATH Index No. 1657/14]  and the decision of the City of New York Conflicts of Interest Board, COIB Case No. 2013-609, are both posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1657.pdf

The Appellate Division's decision is posted on the Internet at


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