The following e-filed documents, listed by NYSCEF document number, were read on this motion (Seq. No. 2) to DISMISS: 1, 15-46, 48 DECISION, ORDER & JUDGMENT Petitioner BILL DE BLASIO (“Petitioner”) was Mayor of New York City from 2014 to 2021. In May 2019, Petitioner announced that was he running for President of the United States. Four months later, in September 2019, Petitioner suspended his campaign. During his campaign, Petitioner or members of his immediate family took 31 out-of-state trips on which they were assigned and accompanied by a full-time security detail of officers of the New York City Police Department (the “NYPD”). Shortly before announcing his candidacy, Petitioner consulted respondent NEW YORK CITY CONFLICT OF INTEREST BOARD (the “Board”) on whether respondent THE CITY OF NEW YORK (the “City”; and, together with the Board, “Respondents”) could pay all costs associated with providing Petitioner and his immediate family an NYPD security detail during political trips. By written confidential advisory opinion dated May 15, 2019 (the “2019 AO”), the Board opined that while the City could indeed pay the officers’ salaries and overtime, it could not pay the officers’ out-of-City travel-related costs. Payment of those costs by the City, the Board advised, would violate the City’s conflict-of-interest laws, specifically, §2604(b)(2) and (3) of the New York City Charter (the “Charter”) and §1-13(b) of Title 53 of the New York City Rules and Regulations (the “Board Rules”), because it would constitute a prohibited use of City resources for a non-City purpose as well as Petitioner’s use of his official position for his own financial gain or personal advantage. Contemporaneously with the end of Petitioner’s campaign, the Board requested that the New York City Department of Investigation (the “DOI”) investigate whether the City had been paying for Petitioner’s security detail’s campaign-related travel costs. The DOI’s investigation of the matter, which was consolidated with investigations of separate questions involving the propriety of the use of NYPD security details by members of Petitioner’s immediate family and lasted for approximately two years, involved review of documents provided by the NYPD and Petitioner’s campaign, as well as interviews with more than a dozen individuals, including Petitioner and his wife and the members of their security detail. In its report, issued in October 2021, the DOI found that the NYPD had incurred $319,794.20 in unreimbursed out-of-City travel-related costs for the security detail, including the officers’ airfare, hotel accommodations, and meals, during Petitioner’s campaign. In August 2022, the Board commenced an enforcement action against Petitioner before the New York City Office of Administrative Trials and Hearings (“OATH”), charging Petitioner with violating Charter §2604(b)(2) and Board Rules §1-13(b). In a Report and Recommendation dated May 4, 2023 (the “OATH R&R”), issued after an evidentiary hearing held virtually on December 20, 2022, OATH upheld the charges and recommended that Petitioner be required to fully reimburse the City for the NYPD’s travel-related costs and pay a fine of $155,000. The Board fully adopted OATH’s recommendations in a Final Findings of Fact, Conclusions of Law, and Order dated June 15, 2023 (the “COIB Order”). On the same day of the COIB Order, Petitioner commenced this special proceeding by filing a Verified Petition and Notice of Petition. In the Verified Petition, Petitioner alleges two causes of action: (1) the first, pursuant to 42 U.S.C. §1983, alleges violations of Petitioner’s First and Fourteenth Amendment rights; and (2) the second, pursuant to CPLR Article 78, alleges that the 2019 AO, the OATH R&R, and the COIB Order are arbitrary and capricious. As relief, Petitioner seeks: (1) a declaration that the City will pay all of Petitioner’s NYPD security detail’s expenses; (2) an order vacating the 2019 AO, the OATH R&R, and the COIB Order; (3) a judgment in favor of Petitioner and against Respondents pursuant to Article 78; and (4) an award of attorneys’ fees, costs, and disbursements. On November 17, 2023, Respondents moved to dismiss the Verified Petition pursuant to CPLR §7804(f) and Rule 3211(a)(7). Petitioner filed opposition to the motion on December 15, 2023, and Respondents filed a reply on January 19, 2024. The Court heard oral argument on the motion virtually on April 30, 2024. The Court now grants the motion. For the reasons that follow, the Court determines that Respondents have demonstrated that Petitioner’s claims that Respondents acted arbitrarily and capriciously and in violation of law are meritless. The Court further determines, for the reasons that follow, that Petitioner’s constitutional claims are unpreserved for review and, in any event, meritless. Accordingly, Respondents’ motion to dismiss is granted, and the Verified Petition is dismissed. I. BACKGROUND A. The Board’s Creation, Purpose, and Powers The Board was created as part of the December 1986-to-November 1988 New York City Charter Revision (the “1988 Charter Revision”). (See Aff. of Emily Reisbaum in Supp. of Mot. to Dismiss, dated Nov. 17, 2023 (“Reisbaum Aff.”) (NYSCEF Doc. 30), Ex. A (“Charter Revision Re-port”) (NYSCEF Doc. 31) at 148, 154-56) In adopting the proposals of the 1988 Charter Revision, City voters replaced the Board’s predecessor agency, the Board of Ethics, with a new, strengthened agency tasked with overseeing compliance with the City’s conflict-of-interest laws, codified in Chapter 68 of the Charter. (Id.) Rosenblum v. N.Y.C. Conflicts of Interest Bd., 18 N.Y.3d 422, 425 (2012). Under Chapter 68, the Board is expressly empowered and directed to, among other things: (1) issue rules interpreting and implementing the provisions of Chapter 68, Charter §2603(a); (2) issue advisory opinions on the application of Chapter 68 and the Board Rules to specific contemplated actions, id. §2603(c); (3) direct the DOI to investigate any matter over which the Board has jurisdiction, id. §2603(f); and (4) conduct hearings to enforce the provisions of Chapter 68 and the Board Rules, id. §2603(h). (Charter Revision Report at 156-61, 163-67) Chapter 68′s prohibitions and the Board’s jurisdiction for its rules and enforcement actions extend to all “public servants,” defined as “all officials, officers and employees of the city,” Charter §2601(19), including “former public servants,” id. §2603(c)(5), (e)(3), (g)(3), (h)(7). (Charter Revision Report at 153) As relevant to this dispute, Charter §2604(b)(2) was among the provisions adopted as part of the 1988 Charter Revision. That section provides that “[n]o 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.” Charter §2604(b)(2). According to the Charter Revision Report, this provision is a “‘catchall’ prohibition” that was retained “in recognition of the fact that the specific prohibitions set forth in the chapter cannot address all conflict of interest situations which may arise in the future and that the board must retain the flexibility to handle new situations as they arise.” (Charter Revision Report at 175) Pursuant to its rulemaking authority under Chapter 68, the Board adopted Board Rules §1-13(b) interpreting and implementing Charter §2604(b)(2). Section 1-13(b) provides that “it shall be a violation of City Charter §2604(b)(2) for any public servant to use City letterhead, title, personnel, equipment, resources, supplies, or technology assets for any non-City purpose.” 53 R.C.N.Y. §1-13(b). Under the 1988 Charter Revision, the Board also retained its authority and obligation to issue advisory opinions. See Charter §2603(c). (Charter Revision Report at 158) Those opinions, however, may now be issued only at the request of a public servant or supervisory official,1 whereas, under the previous charter, advisory opinions could be issue by the Board of Ethics on its own initiative. (Charter Revision Report at 160) “Advisory opinions are to be used to provide advice and guidance to public servants who are uncertain of the application of the conflict of interest standards to specific contemplated actions.” (Id. at 159) In other words, advisory opinions may be sought concerning only future conduct, not past or ongoing conduct. See Charter §2603(c)(2). (Charter Revision Report at 159) “[A]dvisory opinions have a binding effect on future conduct,” so that “a public servant cannot be penalized for any action taken in accordance with an advisory opinion.” (Charter Re-vision Report at 160) Charter §2603(c)(2). A significant limitation on that principle, however, is that advisory opinions apply only to the individuals who sought them and only to the specific facts considered by the Board in rendering them. Charter §2603(c)(1). (Charter Revision Report at 160-61 (“Advisory opinions apply only to the individual in question and to the set of facts considered.”)) Thus, no public servant other than the one who requested the opinion may rely on it as anything but nonbinding guidance, although others may still cite advisory opinions in enforcement actions and the Board may still consider them in reaching its decisions. (Charter Revision Report at 160-61) Because an advisory opinion is individual-and fact-specific, “if the [B]oard determines that an opinion reflects a general principal which may be applied more broadly to other public servants, it should embody the content of the opinion in a rule.” (Id. at 161) To that end, Charter §2603(c)(4) provides that each year the Board shall publicly identify in its annual report any advisory opinions issued during the prior year that “establish[] a test, standard or criterion” or “will be the subject of future advisory opinion requests from multiple persons” and “shall initiate a rulemaking to adopt any such opinion, or part of an opinion, so determined.” The 1988 Charter Revision further empowered the Board, for the first time, to adjudicate disputes, where previously “violations of the code of ethics [were] enforced, if at all, as part of disciplinary actions at the agency level or by criminal prosecution.” (Charter Revision Report at 163) Charter §2603(h); Rosenblum, 18 N.Y.3d at 432. The Board exercises its adjudicatory power through enforcement actions, which are governed by the procedures set forth in Charter §2306(h) and Board Rules §§2-02 and 2-03. If, through a complaint, investigation, or other information, the Board makes an initial determination that there is probable cause to believe that a public servant violated Chapter 68, the Board must first notify that individual by service of a Notice of Initial Determination of Probable Cause. Charter §2306(h)(1); 53 R.C.N.Y. §2-02(a); Rosenblum, 18 N.Y.2d at 426. The public servant may then submit a response. Charter §2306(h)(1); 53 R.C.N.Y. §2-02(b); Rosenblum, 18 N.Y.2d at 426. Based on the public servant’s response, the Board must determine whether to dismiss the action or sustain its initial probable-cause determination. Charter §2306(h)(2); 53 R.C.N.Y. §2-02(b)(3). If the Board sustains its initial probable-cause determination, 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 con-duct 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. Rosenblum, 18 N.Y.2d at 426 (quoting Charter §2603(h)(2)). The Board has, by rule, designated OATH to conduct hearings on alleged violations for which the accused public servant is not entitled to alternative disciplinary rights under state law or a collective-bargaining agreement. 53 R.C.N.Y. §§2-02(c)(1)-(2), 2-03(a). (See Charter Revision Report at 165 (“Hearings shall be heard by [OATH], unless the [B]oard determines by rule that it should conduct its own adjudications.”)) At the hearing before OATH, the Board bears the burden of proof by a preponderance of the evidence. 53 R.C.N.Y. §2-03(f)(1). After the hearing, OATH must issue a report recommending “findings of fact, conclusions of law and a proposed disposition for the Board’s review and final action.” Rosenblum, 18 N.Y.2d at 426; 53 R.C.N.Y. §2-03(g). The parties to the enforcement action have an opportunity to submit comments to the Board “to explain, rebut, or provide information concerning OATH’s recommended findings of fact, conclusions of law, and disposition.” 53 R.C.N.Y. §2-03(h). If, based on OATH’s report, documents admitted into evidence during the evidentiary hearing, the transcript of the hearing, and the parties’ post-hearing written comments, if any, the Board determines, by a preponderance of the evidence, that a violation of Chapter 68 has occurred, it shall, after consultation with the head of the agency served or formerly served by the public servant, or in the case of an agency head, with the mayor, issue an order either imposing such penalties provided for by this [Chapter 68] as it deems appropriate, or recommending such penalties to the head of the agency served or formerly served by the public servant, or in the case of an agency head, to the mayor…. Charter §2603(h)(3); see also 53 R.C.N.Y. §2-03(i) (“If the Board determines that it has proven by a preponderance of the evidence that the respondent violated a provision of a law identified in 53 RCNY §2-01(a), the Board will issue an order stating its final findings of fact and conclusions of law and imposing a penalty.”). The requirement that the Board consult with the head of the agency at which the public servant is employed, or if the public servant who is the subject of the enforcement action is an agency head, with the mayor, “recognizes that agencies have a strong interest in disciplining of their officers and employees.” (Charter Revision Report at 166) “While the [B]oard is not required to adopt the views expressed by the agency, an agency head may raise issues or concerns the [B]oard will wish to consider in rendering a decision concerning the imposition of penalties.” (Id.) In any event, if the agency independently decides to take disciplinary action against the public servant, that action does not preclude the Board from exercising its own powers and duties under Chapter 68, or vice versa. Charter §2603(h)(6). (Charter Revision Report at 166) For any violation of Charter §2604, the Board has the authority, under Charter §2606, to “order payment to the city of the value of any gain or benefit obtained by the respondent as a result of the violation” and, after satisfying the same consultation requirement set forth in Charter §2603(h)(3), to impose fines of up to $25,000 and recommend the public servant’s suspension or removal from office or employment. Charter §2606(b), (b-1). The Board may not seek or impose a penalty for a violation of §2604, however, unless “such violation involved conduct identified by rule of the [B]oard.” Id. §2606(d). B. The Board’s Relevant Prior Advisory Opinions Two of the Board’s advisory opinions pre-dating the 2019 AO and the events underlying this proceeding are central to the parties’ dispute, those advisory opinions having been examined closely by the Board in the 2019 AO and relied upon by the parties in constructing and advancing their arguments both here and before OATH. The advisory opinions in question, both of which were issued publicly, are Advisory Opinion No. 2009-1 (Reisbaum Aff., Ex. E (“2009 AO”) (NYSCEF Doc. 35)) and Advisory Opinion No. 2012-5 (id., Ex. B (“2012 AO”) (NYSCEF Doc. 32)). The Court summarizes both below. i. The 2009 AO On March 12, 2009, at the request of “certain elected officials,” the Board issued the 2009 AO, entitled “Use of City-Owned Vehicles.” (2009 AO) As its title suggests, the 2009 AO addresses whether and under which circumstances elected New York City officials who have use of City-owned vehicles2 may use them and City personnel as drivers for purposes other than official business. The Board analyzed that issue under Charter §2604(b)(2) and (3)3 and Board Rules §1-13, which “specifie[s] certain conduct that constitutes a violation of [§] 2604(b)(2).” (See id. at 1, 3-4) The Board structured its analysis by dividing the elected officials to which the 2009 AO applies into two categories and addressing each category in turn. The first category — “Category 1″ — comprises “Elected Officials for whom the [NYPD] has determined that requirements of personal security dictate, at a minimum, that provision of a City-owned car and security personnel is necessary.” (Id. at 2) The second category — “Category 2″ — comprises “all other Elected Officials who currently have use of a City-owned car and, in some cases, a City employee as a driver.” (Id.) The distinguishing factor between Category 1 and Category 2 is, therefore, whether the NYPD has determined that the official requires personal security. If the NYPD has made such a determination, the elected official will “conclusively” fall within Category 1 for purposes of the Board’s analysis. (Id. at 9) In the 2009 AO, with respect to Category 1 elected officials, the Board determined that “any use of a City-issued car and security personnel by that public servant, whether for official or for personal purposes or for any combination of the two, is consistent with Chapter 68, and no reimbursement to the City for such use is required.” (Id. at 10-11 (emphasis in original)) More specifically, the Board determined that Category 1 elected officials could “use City vehicles, drivers, and security personnel when they attend political events, such as campaign fundraisers, and personal non-City business events, provided that the official’s participation in such activities does not otherwise result in a conflict of interest,” and that such elected officials “may even use the car and driver to travel outside the City, if consistent with security determinations by the NYPD.” (Id. at 9) The Board’s analysis underlying its determination concerning Category 1 elected officials is based on a number of factors. First, the Board recognized that a Category 1 elected official’s “need for protection and security remains the same whether the official ventures forth to perform a personal rather than an official task or to attend a private social function rather than a public event.” (Id.) Thus, according to the Board, “there can be no effective restriction on these officials’ ‘personal’ use of City cars and drivers.” (Id.) Second, the Board reasoned that its conclusion that Category 1 elected officials can use City vehicles and personnel for political and business events and to travel outside the City “reflects sound public policy, because it will encourage public officials to follow and adhere to security recommendations, and not ignore them in order to avoid violating the ethics law.” (Id.) The Board acknowledged that the NYPD strongly advised Category 1 elected officials “to use the security personnel assigned to them, in the manner prescribed by the NYPD, whenever they move about, whether for public or private purposes.” (Id.) Third, the Board reasoned that requiring Category 1 elected officials to reimburse the City for unofficial use of City vehicles would be unfair and present significant issues of practicability, writing: Since officials in this category are subject to security determinations by the NYPD requiring them to use City vehicles to the maximum extent possible for all local transportation, official or otherwise, it would be unfair to re-quire them to pay for any use deemed unofficial. Moreover, given these officials’ constant use of the required vehicles, an effort to determine what use must be reimbursed would require an almost limitless parsing and costing to determine how much of that use is ‘official,’ or incidental to official business, and how much is in no way related to official business. Any such attempt, particularly if applied to officials who…are on call essentially every hour of the day and night, seems both an impossible and an unfair accounting burden on all involved. (Id. at 10) Nevertheless, the Board opined that elected officials “are free to reimburse the City for non-City use of their City vehicles for example [sic], to reimburse with campaign funds for political use.” (Id. at 11) With respect to Category 2 elected officials, the Board determined that they too may “use their City cars for personal as well as official purposes.” (Id. at 12) In reaching that determination, the Board recognized that Category 2 elected officials are “regularly require[d]…to appear in their official capacities at functions and events, to respond to emergencies, or to otherwise attend to the needs of their constituents, outside of normal business hours” (id. at 11), so that “[r]equiring these public officials to switch from official vehicles to personal vehicles to pursue official duties, would defy common sense and might impede their ability to respond expeditiously to the needs of their constituents” (id. at 12). It was based on this rationale — i.e., “promot[ing] the ready presence of these officials at the myriad meetings, functions, events, or emergencies that occupy their official lives” (id.) — that the Board determined, however, that a Category 2 elected official’s use of City vehicles is limited in a way that a Category 1 elected official’s use is not. According to the Board, a “City car may be used by the Category 2 Elected Official only within the five boroughs or within a sufficiently close geographic range thereof to permit timely return to the City in cases of emergencies.” (Id. (emphasis added)) As to reimbursement for the use of their City vehicles, the Board determined that, like Category 1 elected officials, Category 2 elected officials need not reimburse the City for any per-mitted use of their City vehicles within the five boroughs. (Id.) The reasoning provided by the Board was again based primarily on practical considerations: “a rule requiring these officials to keep track daily of the breadth and duration of non-City use ultimately would devolve into a complex of such minute detail as to be incomprehensible or unworkable, or both.” (Id. at 12-13) However, any Category 2 elected official’s use of a City vehicle for travel outside of the City’s five boroughs, but within a range permitting timely return to the City, is “presumptively considered personal and will thus require reimbursement to the City,” unless the Category 2 elected official can make “a showing that a particular trip outside the City is clearly and exclusively for an official purpose.” (Id. at 13, 15-16) ii. The 2012 AO On December 19, 2012, after receiving “a number of questions from public servants, including in particular from current City elected officials who anticipate being candidates for elective office in the near future,” the Board issued the 2012 AO, entitled “Political Activities: Campaign Related Activities.” The 2012 AO addresses whether public servants may, in accordance with the prohibitions of Chapter 68 and the Board Rules, engage in certain political-campaign-related activities. The Board analyzed the propriety of the specific activities at issue under a number of Charter provisions, including Charter §2604(b)(2), as well as under Board Rules §1-13(a)4 and (b). (See 2012 AO at 1-4) Initially, the Board stated unequivocally that “political activities always fall within the prohibition on use of City time or resources, that is, there is no ‘incidental use’ exception for political activities.” (Id. at 2 (emphasis in original)) In other words, according to the Board, a public servant’s use of City time or resources for political activities, regardless of how seemingly minor the use may appear, always violates Board Rules §1-13(a) or (b). At the same time, the Board expressly acknowledged that the 2009 AO — which, as just discussed, permits certain elected officials to make use of their City-owned vehicles for personal or political purposes without reimbursement — constitutes an “exception to this flat ban” on the use of City time or resources of political purposes. (Id. at 2 n.1) As relevant to Board Rules §1-13(a) and (b), the 2012 AO goes on to determine, among other things, that: (1) City schedulers are prohibited from using City time or resources to arrange campaign events (id. at 5); (2) City employees who receive telephone calls or email messages concerning an official’s election campaign may respond to such inquiries only by providing campaign contact information (id. at 7); (3) City employees who act as a “body person” or an “advance person” to an elected official may attend campaign events on City time “only if it can reasonably be anticipated that they would be required to perform official City duties at the event and if the only duties they in fact perform at the event are official City duties,” and because an “advance person” would have few, if any, City duties to perform at campaign events, “it would ordinarily violate Chapter 68 for an advance person to attend campaign events on City time” (id. at 8-10 (emphasis in original)); and (4) photographs of elected officials taken by City employees may only be provided to the official’s election campaign if they are also made available to the public, and then only on the same terms and by the same process as to the public (id. at 10-11). C. Petitioner’s NYPD Security Detail Petitioner was elected Mayor of New York City in 2013 and took office in 2014. (Verified Pet., dated June 15, 2023 (“Pet.”) (NYSCEF Doc. 1), 27). He served in that position until his second term ended on December 31, 2021. (Id. 74) Throughout his two terms as Mayor, Petitioner and his immediate family were assigned an NYPD security detail that provided them with protection seven days a week, 24 hours a day, regardless of their location or the activity in which they were engaged, whether official or unofficial in nature. (See id.
41, 44) For example, Petitioner alleges that, in 2014, he and his family traveled to Italy “in part on official City business and in part for a family vacation” and that the NYPD provided Petitioner and his family with a security detail for that trip without the City seeking to recoup any costs. (Id. 45) Petitioner also alleges more generally that, during his tenure as Mayor, “he…travelled outside the City, on overnight trips, for political purposes, including political fundraising, support of other candidates or the Democratic Party, and political meetings.” (Id. 46) According to Petitioner, the “NYPD provided a full-time NYPD protective detail to [Petitioner] on all of those occasions, and all of the expenses for this protective detail were borne by the City.” (Id.) The decision to assign Petitioner and his immediate family a full-time security detail was made solely by the NYPD, based on its assessment of the number, seriousness, and credibility of the threats that Petitioner and his immediate family faced to their safety. (See id.
