Opinion
111355/08.
Decided June 8, 2009.
In this Article 78 proceeding, petitioners seek an order vacating a determination of respondent New York City Campaign Finance Board (the "Board"), dated April 10, 2008, finding that petitioners violated the campaign finance program spending limit during the 2005 primary election campaign, and assessing a civil penalty against petitioners. Petitioners also seek an order vacating a determination of the Board, dated August 14, 2008, denying petitioners' claim for public matching funds in the amount of $18,972. Respondent counterclaims for an order directing petitioners to pay the assessed penalty of $18,152.
BACKGROUND
In 2005, petitioner Stephen Kaufman ("Kaufman") was a candidate for the New York City Council in District 13 in the Bronx. Petitioner Kaufman for Council (the "Committee") was his principal campaign committee, and petitioner Margaret Vega was the treasurer of the Committee. During the primary election, Kaufman participated in the campaign finance program established by the New York City Campaign Finance Act in 1988 (Administrative Code of the City of New York § 3-701 et seq.) (the "Act"), and administered by respondent the Board ( see Admin. Code § 3-708; NY City Charter § 1052). The campaign finance program provides public matching funds for eligible candidates running for the offices of mayor, comptroller, public advocate, borough president, and City Council member, who agree to comply with certain conditions for receiving such funds, including limitations on expenses and campaign contributions, and the submission of documentation and other proof of campaign expenditures as requested by the Board ( see Admin. Code § 3-703; see generally New York City Campaign Fin. Bd. v Ortiz , 38 AD3d 75 [1st Dept 2006]). As the agency charged with administering the campaign finance program, the Board is authorized to, among other things, promulgate rules and regulations as necessary for the administration of the Act, and "to take such other actions as are necessary and proper to carry out the purposes of [the Act]" (Admin. Code § 3-708 [8], [10]; New York City Charter § 1052 [a] [8], [10]).
"The primary purpose of the Program is to make candidates for municipal elective office less dependent on large contributions and to enable grassroots candidates to mount competitive campaigns." Kurland v New York City Campaign Fin. Bd. , 23 Misc 3d 567 , 569, 873 NYS2d 440, 441 (Sup Ct, NY County 2009). As further explained by the legislature, the Act was intended to reduce undue influence on local elections by large campaign contributors, to increase participation in local elections by voters and candidates, to improve public understanding of local issues, and to enhance public confidence in local government. See Declaration of legislative intent and findings, Notes, following Admin. Code §§ 3-714, 3-715. Thus, by imposing spending limits on candidates who participate in the campaign finance program, the Act seeks to level the financial playing field among candidates seeking city offices.
Certain campaign expenditures made for the purpose of complying with the requirements of state election law were not subject to the campaign finance program spending limits during the 2005 campaign( see Admin. Code § 3-706 [4]). Pursuant to Election Law §§ 6-118 and 130-136, in order to be designated as a candidate in a primary election, the candidate must collect, during a specified time period, a minimum number of signatures on designating petitions. The costs associated with circulating and filing the petitions, as required by law, generally were exempt from the campaign spending limit ( see Board Advisory Opinion 1996-1, Ex. E to Loprest Aff. in Support of Answer). Typically, the costs of such compliance could include, among other things, payment to workers hired to gather the necessary signatures on petitions.
The Administrative Code was amended in 2007 to eliminate exemptions for almost all compliance costs. See infra at 16.
Kaufman qualified for matching funds during the 2005 primary, and on or about August 4, 2005, the Committee received a payment from the Board of $63,528. The spending limit for City Council candidates in the 2005 primary election was $150,000. By letter dated August 15, 2005, the Board notified the Committee that a preliminary review of the Committee's financial disclosure statement indicated that the Committee exceeded the $150,000 primary spending limit by $18,013, and the Board requested documentation supporting the Committee's claimed exempt expenditures ( see Aug. 15, 2005 Letter, Ex. A to Laufer Aff. in Support of Petition). The Committee submitted documentation of its claimed exempt expenses, including invoices and payments for various services, as well as consultant agreements with petition supervisors and the campaign coordinator ( see Aug. 16, 2005 Letter and accompanying documents, Ex. B to Laufer Aff. in Support). At that time, petitioners claimed that, of a total reported expenditures of $168,013, its exempt expenditures were $38,880, including $16,620 for petition carriers, drivers, and supervisors, and $5,000 for a petitioning analysis done by Kaufman's campaign coordinator.
Both sides agree that the maximum public matching funds available to the Committee for the primary campaign was $82,500. See Respondent's Memo of Law in Support of Answer, at 9, FN 5; Laufer Letter dated May 12, 2008, Ex. W to Laufer Aff., FN 1. See also Admin. Code 3-705 (b) (no candidate can receive public funds in excess of 55% of expenditure limit).
On August 18, 2005, the Board issued a second round of public funds, without issuing any additional funds to the Committee. Instead, the Board issued a notice of alleged violations, dated August 19, 2005, alleging that the Committee violated the Act by exceeding the campaign spending limit by $18,716 ( see Notice of Alleged Violations, Proposed Penalties, and Opportunity to Respond, Ex. C to Laufer Aff.). The Committee then submitted additional documentation, including time records for petition carriers, and an affidavit from the campaign coordinator regarding the petition analysis ( see Aug. 26, 2005 Letter and documents, Ex. D to Laufer Aff.), and it requested a hearing. Separately, on August 31, 2005, the Committee also filed a petition, pursuant to section 5-02 (a) of New York City Campaign Finance Board Rules (RCNY § 5-02 [a]), challenging the Board's denial of additional public funds.
The Committee appeared at a hearing before the Board on September 1, 2005, to address the allegations of spending violations. An issue at the hearing, as in the instant proceeding, was whether the distribution of literature during petitioning was an exempt activity, and thus, whether payments to Kaufman campaign workers who distributed campaign-related literature while collecting signatures for the petitions, were exempt from the primary election spending limit ( see Transcript of Sept. 1, 2005 Board meeting [Sept. 1 Transcript], Ex. G to Laufer Aff., at 107-108). The Board heard testimony from attorney Lawrence Laufer, on behalf of Kaufman and the Committee; Salvador Ocasio, a petition supervisor; and John Greaney, Kaufman's campaign coordinator, who all stated that the distribution of literature, described in this case as a palm card, was a regular and integral part of petitioning, necessary to inform prospective petition signers about the candidate ( see id. at 83-84, 112-116, 122; see Ex. E to Laufer Aff.). Over Mr. Laufer's objection, the Board also heard testimony from an opposing candidate's campaign manager, who stated that generally it is not standard procedure to hand out literature when petitioning ( see Sept. 1 Transcript at 159, 161, 164).
At the close of the hearing, the Board determined that 50% of the costs claimed by the Committee for petitioning were exempt expenses, and found that petitioners accordingly had not exceeded the $150,000 spending limit ( see id. at 186). The Board explained that its decision that the petitioning included exempt and non-exempt activities was based, in part, on the description of the petition carriers' work, on time sheets, as "Lit. Distribution and petition gathering;" and on testimony of the Committee's witnesses that literature was sometimes left without getting a signature ( see id. at 184-186; see also Ex. D to Laufer Aff. in Support [time sheets]).
The Board formally advised petitioners of its determination in a written notice dated September 2, 2005 ( see Sept. 2, 2005 Notice, Ex. H to Laufer Aff.). The same notice included a second notice of violations, again alleging, among other things, that petitioners exceeded the primary election expenditure limit by $10,455 ( see id. at 4), and informing petitioners that the Board would consider imposing penalties for this and other alleged violations of the Act, at a September 9, 2005 meeting. Mr. Laufer appeared before the Board on September 9, 2005, with Committee treasurer Margaret Vega, and objected to the Board's finding that only 50% of the petitioning expenses were exempt, contending that, in prior decisions of the Board in similar cases, much more than 50% of the petitioning costs was considered exempt from the spending limit ( see Transcript of Sept. 9, 2005 Board meeting [Sept. 9 Transcript], Ex. B to Lopresto Aff. in Support of Answer, at 46).
Although the Notice states that the Board would consider imposing a penalty of "[u]p to $10,455 for exceeding the primary election expenditure limit by $31,365," the Board's calculation of Kaufman's expenditures, annexed to the Sept. 2, 2005 Notice, shows that $10,455 was the amount over the limit ( see Ex. H to Laufer Aff. in Support, at [unnumbered] 8).
Additionally, on September 12, 2005, the Board notified the Committee that it would receive no further matching funds because petitioners appeared to have exceeded the spending limit ( see Sept. 12, 2005 Letter, Ex. R to Laufer Aff.). The Board formally denied the Committee's petition for further campaign finance program funding at a Board meeting held on September 29, 2005 ( see Transcript of Sept. 29, 2005 Board meeting, Ex. C to Lopresto Aff. in Support). Kaufman lost the September 2005 primary election, and subsequently withdrew from the general election as a City Council candidate. He therefore sought no further campaign finance program public matching funds.
A post-election audit was conducted by the Board, and in December 2006, the Board issued a draft audit report of the Committee's primary election expenditures (Dec. 28, 2006 Letter and Report, Ex. K to Laufer Aff.). The Board, noting that it had not previously made any determination as to violations alleged in the Sept. 2, 2005 notice, found, among other things, that petitioners exceeded the spending limit by $40,727 ( id. at 9). The alleged amount of overspending was adjusted down to $10,289, after petitioners submitted additional documents ( see Dec. 10, 2007 Notice, Ex. M to Laufer Aff.). At a hearing before the Board on March 13, 2008, petitioners challenged the audit findings, again arguing that the Board incorrectly allowed only 50% of petitioning expenses as exempt expenditures. Petitioners also argued that the Committee was entitled to a credit of $3,534 for unused literature ( see Transcript of March 13, 2008 Board meeting, Ex. D to Loprest Aff. in Support, at 77-79, 82, 84-85).
In April 2008, the Board issued its final determination that petitioners had violated the primary election spending limit by $9,076, and assessed a penalty of $18,152 ( see Final Board Determination, Ex. P to Laufer Aff.). In its final audit report (Ex. Q to Laufer Aff.), the Board indicated that petitioners "did not provide a reasonable attribution" for exempt and non-exempt petitioning expenditures ( id. at 9), and did not demonstrate that the $5,000 payment for a petition analysis was an exempt expenditure ( id.) The Board also found that the cost of unused literature was subject to the spending limit ( id. at 10). In response to the Board's post-election final audit, the Committee petitioned the Board in May 2008, seeking payment of $18,972 in public matching funds ( see May 12, 2008 Letter, Ex. W to Laufer Aff.). In August 2008, the Board issued a final determination denying the Committee's petition (Final Determination, Ex. Y to Laufer Aff. in Support). The instant proceeding followed, challenging, as arbitrary and capricious, both the Board's determination that petitioning expenses, including $8,310 paid to petition workers and $5,000 paid for a petition analysis, were not exempt; and the Board's determination that petitioners are not entitled to receive a post-election payment of matching funds in the amount of $18,972.
Additional penalties were assessed against petitioners for other violations, in the amount of $3,000, which was paid ( see May 12, 2008 Letter, Ex. W to Laufer Aff.). It is undisputed that the only violation at issue here is the spending limit violation based on non-exempt petitioning expenses.
DISCUSSION
It is well settled that judicial review of an administrative agency determination is limited to whether the determination was arbitrary and capricious, that is, without a rational basis in the administrative record. See CPLR 7803 (3); Matter of Arrocha v Board of Educ. of the City of New York, 93 NY2d 361, 363-364 (1999); Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231-232 (1974); see also Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758 (1991). "[A] court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion." Matter of Arrocha, 93 NY2d at 363, quoting Matter of Pell, 34 NY2d at 232 (emphasis in original; additional citation omitted); Matter of Partnership 92 LP Bldg. Mgt. Co., Inc. v State of NY Div of Hous. Community Renewal , 46 AD3d 425 , 429 (1st Dept 2007), affd 11 NY3d 859 (2008). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Matter of Pell, 34 NY2d at 231. "[O]nce it has been determined that an agency's conclusion has a sound basis in reason,' the judicial function is at an end. . . ." Paramount Communications v Gibralter Cas. Co., 90 NY2d 507, 514 (1997), quoting Matter of Pell, 34 NY2d at 231; Matter of Partnership 92 LP Bldg. Mgt. Co., Inc., 46 AD3d at 428.
It is further settled that "where . . . the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference." Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 (1987); Awl Indus., Inc. v Triborough Bridge Tunnel Auth. , 41 AD3d 141 , 142 (1st Dept 2007). An agency's interpretation of the statutes and regulations it is responsible for administering will be upheld, if reasonable, where the interpretation requires "knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom.'" Matter of Gruber (New York City Dept. of Personnel — Sweeney), 89 NY2d 225, 231 (1996), quoting Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 (1980); see Matter of Rodriguez v Perales, 86 NY2d 361, 367 (1995); Matter of Salvati v Eimicke, 72 NY2d 784, 791 (1988); see also Matter of Espada 2001 v New York City Campaign Fin. Bd. , 59 AD3d 57 , 64 (1st Dept 2008); Matter of Herzog v Joy, 74 AD2d 372, 375 (1st Dept 1980), affd 53 NY2d 821 (1981). "In such circumstances, a reviewing court may not reevaluate the weight accorded the evidence adduced . . . since the duty of weighing the evidence, interpreting relevant statutes and making the determination rests solely on the expertise of the agency'." Awl Indus., Inc., 41 AD3d at 142 (1st Dept 2007), quoting Matter of P C Giampilis Constr. Corp. v Diamond, 210 AD2d 64, 65 (1st Dept 1994); see Flacke, 69 NY2d at 363.
Even if different conclusions could be reached as a result of conflicting evidence, "it is not the province of the courts to second-guess a reasoned agency determination or to invade the process by which such a conclusion is reached. . . ." Matter of Lighthouse Pointe Prop. Assoc. LLC , 61 AD3d 88 , 94, 872 NYS2d 766, 770 (4th Dept 2009) (citations omitted); see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast , 9 NY3d 219 , 232 (2007). "The . . . agency, after all, has the responsibility to comb through reports, analyses and other documents before making a determination; it is not for a reviewing court to duplicate these efforts." Matter of Riverkeeper, Inc., 9 NY3d at 232. Thus, "[w]here an agency determination states the findings, and the record . . . sets forth enough evidence to support those findings, the determination is legally sufficient on its face." Matter of Eastwood Bldg. Comm. of Roosevelt Is. v Eimicke, 130 AD2d 425, 426 (1st Dept 1987); see also Ross-Rodney Hous. Corp. v Michetti, 205 AD2d 436, 438 (1st Dept 1994).
Chiefly at issue in this proceeding is the Board's determination that petitioners were entitled to claim only half of their petitioning costs as exempt expenses, because petition workers distributed literature in the process of collecting signatures for the petitions. Petitioners contend that the Board had a longstanding practice of allowing unlimited expenditures for the purpose of ballot petitioning, and that the Board's rejection of 50% of the Committee's petitioning expenses deviated from the Board's standards in prior, similar cases.
Petitioners acknowledge that, in 2005, it was well settled that the cost of producing campaign literature, including palm cards like those used by petition workers in this case, was not an exempt expenditure (see Transcript at 85; Advisory Opin. No. 2005-3, Ex. J to Laufer Aff., at 4), and that the distribution of campaign literature, by itself, was not an exempt activity ( see Sept. 1 Transcript at 123-125). However, petitioners contend that the use of literature during petition drives was necessary in order to inform prospective signers about the candidate, and the distribution of literature under those circumstances was not an activity separate, or severable, from petitioning, but was part and parcel of the effort to obtain signatures ( id. at 92-93, 109, 122). According to petitioners, the use of literature to collect signatures had always been recognized by the Board as an exempt activity ( id. at 85).
Petitioners claim that the Board's determination in this case regarding the use of literature was inconsistent with its decisions in other candidates' cases. In particular, petitioners contend that, based on the Board's decisions in Alan Hevesi's 2001 mayoral campaign (the Hevesi matter), and in the 2005 City Council campaigns of candidates Inez Dickens and Thomas White, the Committee reasonably expected that exempt petitioning costs included the distribution of literature during signature gathering. As to the Hevesi matter, petitioners claim that, under similar circumstances involving the use of literature during petitioning, the Board allowed more than 95% of petitioning costs to be exempt, and argue that it was arbitrary and capricious not to make a similar allocation in this case. However, while the merits of the Board's determination in the Hevesi matter are not at issue here, and will not be reviewed by this court ( see Matter of Riverkeeper, Inc., 9 NY3d at 232; Matter of Partnership 92 LP Bldg. Mgt. Co., Inc., 46 AD3d at 428-429), the evidence, as presented here, does not show that the facts were essentially the same or so remarkably similar as to require the same conclusion. Compare Matter of Martin v Troy Publ. Co., Inc., 70 NY2d 679 (1987); 721 Ninth Ave., LLC v New York State Div. of Hous. Community Renewal , 8 AD3d 41 (1st Dept 2004). Nor, in any event, is it clear that the decision in the Hevesi matter was inconsistent with the decision in this case. Describing the Hevesi matter in a 2005 advisory opinion, the Board found that the use of literature was not exempt, but found no evidence that literature was distributed in the petitioning drive at issue ( see Advisory Opin. No. 2005-3, Ex. J to Laufer Aff., at 4). Even assuming, as petitioners assert, that evidence to the contrary was presented in the Hevesi matter, it is not the duty of this court to reevaluate or weigh that conflicting evidence. See Awl Indus., Inc., 41 AD3d at 142.
Similarly, evidence does not clearly establish that the cases involving city council candidates Dickens and White were so similar that the Board was required to reach the same conclusions. Although petitioners claim that petition workers in those cases submitted affidavits attesting that they distributed literature during petitioning, the affidavits stated that "workers made communications" in the course of petitioning, and "[t]o facilitate such communications, voluntary petition carriers were provided with cards" ( see, e.g., Aff. of David Johnson, Ex. O to Laufer Aff.). Moreover, even if, as respondent acknowledges, the Board may have erred in those cases ( see Respondent's Memo of Law in Support, at 23), any resulting inconsistency would not establish that the decision in this case did not have a rational basis.
In this case, the Board reached its decision that petitioners exceeded the 2005 primary election spending limit after several hearings, and after review of numerous financial disclosure documents submitted by petitioners, Contrary to petitioners' argument, there is no evidence that the Board ignored the affidavits and other information provided to it by the Committee.
The Board explained its reasoning, both at the hearings and in its written notices, for finding that 50% of petitioning costs were exempt and 50% were not exempt ( see Sept. 1 Transcript at 124-125, 129-131, 184-186), and identified the evidence on which it based its determination. Evidence considered by the Board included, among other things, documents describing the tasks of the petition workers as two-fold, namely, literature distribution and petition collection; as well as testimony that the distribution of literature was a part of all petitioning efforts. No similar evidence was shown to exist in other cases.
In 2007, the City Council amended the Campaign Finance Act to eliminate essentially all exempt expenditures for compliance activities. See Admin. Code § 3-706 (4), as amended by Local Law No. 34 (2007) of City of NY § 23. Petitioners correctly note that the amendment resulted, at least in part, from confusion about what expenditures were exempt and inconsistent rulings by the Board ( see Report of the Governmental Affairs Committee [excerpt], Ex. Z to Laufer Aff.). However, the City Council's recognition that inconsistencies and uncertainty needed to be avoided does not address any particular decision of the Board, or identify which, if any decisions, were in error, and does not demonstrate that the decision in this case was irrational or arbitrary and capricious.
Petitioners further claim that the Board improperly determined that $5,000 paid to campaign coordinator John Greaney for a petition analysis was not exempt, arguing that the Board's conclusion that the services for the payment did not have a "solely exempt purpose" ( see Final Board Determination, Ex.P to Laufer Aff.) was not supported by evidence. Alternatively, petitioners argue that the Board's finding indicates that the services had some exempt purpose, and the Board should have allowed some portion of the amount to be exempt. With respect to the Committee's claim for the petition analysis, the Board considered an affidavit from campaign coordinator John Greaney, an outline of the analysis, and Greaney's consultant agreement with the Committee. The Board found, based on the scope of the analysis and of Greaney's overall campaign duties, that the petition analysis would benefit non-exempt campaign activities other than petitioning. The Board's determination, therefore, had some rational basis in the record. Even if such activity could have both an exempt and non-exempt purpose, the burden of making an allocation between exempt and non-exempt purposes is on the Committee ( see Board Rule 7-03 [e]). As petitioners offered no means of allocating the services, the Board's determination that the Committee did not meet its burden of substantiating that this expense was exempt was not arbitrary and capricious.
Petitioners also argue that the Board incorrectly applied the amount of $3,534, expended on unused campaign literature and lawn signs, to the primary election spending limit. Relying on Rule 1-08 (b) of the New York City Campaign Finance Board Rules (52 RCNY § 1-08 [b]), which provides that "an expenditure for goods or services is made when the goods or services are received, used, or rendered, regardless when payment is made," petitioners contend that the cost should not be subject to the primary expenditure limit because the literature was not used. According to petitioners' argument, because the literature was not distributed, was returned to the vendor, and will never be used, no campaign expenditure — for purposes of the spending limit — was made. Petitioners further argue that applying the cost of unused and undistributed literature to the spending limit runs counter to the campaign finance program's goal of leveling the playing fields of campaigns, because they received no actual value from the goods.
In opposition, respondent argues that Rule 1-08 (b) is intended to protect candidates against the disadvantage created, for example, when one campaign buys goods during the primary campaign for use in the general election; it does not operate to permanently defer an election expenditure when goods are purchased but never used. In this case, petitioners do not dispute that the campaign literature in question was intended for use in the primary campaign, and would usually be subject to the expenditure limit. As the plain language of the rule provides that an expense is made when goods or services are "received," and as it is undisputed that the goods in question were purchased and received during the primary campaign by petitioners, who chose not to use them, the court finds no reason to disturb the Board's interpretation of Rule 1-08 (b), or its determination that the cost of petitioners' primary election literature was subject to the primary election spending limit.
Finally, petitioners argue that the Board has no authority to assess civil penalties against the Committee's treasurer, Margaret Vega, because the Act provides that only candidates and their committees can be liable for spending limit violations. While petitioners note that Admin. Code § 3-711 (1) provides for treasurer liability in "other circumstances" (Petitioners' Memo of Law, at 27), they contend that, pursuant to Admin. Code § 3-711 (2) (a), there is no treasurer liability for penalties based on violations of the expenditure limits.
Respondent does not contest that committee treasurers cannot be personally liable under Admin. Code § 3-711 (2) (a), but claims that civil penalties up to $10,000 can be assessed against treasurers under Admin. Code § 3-711 (1), for any violation of the Act or Board Rules, including violations of the expenditure limits.
Admin. Code § 3-711 (1) provides, in pertinent part:
Any participating . . . candidate and his or her principal committee . . . that fail to file in a timely manner a statement or record required to be filed by this chapter or the rules of the board . . . or that violate any other provision of this chapter or rule promulgated thereunder, . . . and any committee treasurer . . . who commits such a violation or infraction, shall be subject to a civil penalty in an amount not in excess of ten thousand dollars.
Admin. Code § 3-711 (2) (a) provides:
In addition to the penalties provided in subdivision one of this section, if the aggregate amount of expenditures by a participating . . . candidate and such candidate's principal committee exceed the expenditure limitations contained in this chapter, such candidate and principal committee shall be subject to a civil penalty in an amount not to exceed three times the sum by which such expenditures exceed the applicable expenditure limitation.
In support of their argument, petitioners rely on recent cases holding that, under Admin. Code § 3-710 (2), committee treasurers are not personally liable for repaying public funds when the Board determines that funds have not been used for qualified campaign expenditures. See Matter of Mossa v New York City Campaign Fin. Bd. , 41 AD3d 178 (1st Dept 2007); New York City Campaign Fin. Bd. v Ortiz , 38 AD3d 75 (1st Dept 2006). Admin. Code § 3-710 (2) (b), like Admin. Code § 3-711 (2) (a) expressly limits liability to a "committee" or a "candidate and principal committee," respectively. However, the recent decision in Matter of Espada 2001 v New York City Campaign Fin. Bd. ( 59 AD3d 57, supra [decided during the pendency of the instant proceeding]) makes clear that committee treasurers can be personally liable for civil penalties assessed under Admin. Code § 3-711, for various violations of the campaign finance laws. Although the Court in Espada does not specifically address violations of the expenditure limits, it supports respondent's argument that Admin. Code § 3-711 applies to any violation of the Act, including spending limit violations ( see 59 AD3d at 64). Even assuming arguendo that the language of § 3-711 may be considered ambiguous about a treasurer's liability for spending limit violations, the Board's interpretation is entitled to great deference, and must be upheld if reasonable ( id.). The Board's interpretation in this case, that "any" violation of the Act or Rules includes spending violations, is reasonable and must be upheld.
In view of the above, the court finds that respondent's denial of petitioners' claim for post-election public matching funds was not arbitrary and capricious, and grants respondent's counterclaim for enforcement of the penalty.
Accordingly, it is
ORDERED and ADJUDGED that the petition is dismissed; and it is further
ORDERED and ADJUDGED that respondent is granted a judgment against petitioners Stephen Kaufman, Kaufman for Council, and Margaret Vega, jointly and severally, in the amount of $10,000, with interest from May 22, 2008; and it is further
ORDERED and ADJUDGED that respondent is granted a judgment against petitioners Stephen Kaufman and Kaufman for Council, jointly and severally, in the amount of $8,152, with interest from May 22, 2008; and it is further
ORDERED the counsel for respondent shall serve a copy of this order with notice of entry within twenty days of entry on counsel for petitioner. The instant application and counterclaim are decided in accordance with the accompanying Memorandum Decision. It is hereby ORDERED and ADJUDGED that the petition is dismissed; and it is further
ORDERED and ADJUDGED that respondent is granted a judgment against petitioners Stephen Kaufman, Kaufman for Council, and Margaret Vega, jointly and severally, in the amount of $10,000, with interest from May 22, 2008; and it is further
ORDERED and ADJUDGED that respondent is granted a judgment against petitioners Stephen Kaufman and Kaufman for Council, jointly and severally, in the amount of $8,152, with interest from May 22, 2008; and it is further
ORDERED the counsel for respondent shall serve a copy of this order with notice of entry within twenty days of entry on counsel for petitioner.