Conflicts of Interest Bd. v. Trojanowska OATH Index No. 1654/18 (Aug. 27, 2018), adopted, COIB Case No. 2017-187 (Nov. 1, 2018), appended

Taxi and Limousine Commission (“TLC”) employee violated City Charter when she used her position to try to obtain payment from a taxi driver for damage to her car. $3,000 fine recommended. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of CONFLICTS OF INTEREST BOARD Petitioner - against - MARTA TROJANOWSKA Respondent ______

REPORT AND RECOMMENDATION FAYE LEWIS, Administrative Law Judge This is a civil penalty proceeding commenced by petitioner, the Conflicts of Interest Board (“COIB”), against respondent, Marta Trojanowska, under Chapter 68 of the New York City Charter and Title 53 of the Rules of the City of New York. Petitioner alleges that respondent, a former employee of the Taxi and Limousine Commission (“TLC”), used her city identification and her status as a TLC attorney to try to obtain payment from a taxi driver for damage to her car, in violation of sections 2604(b)(2) and 2604(b)(3) of the City Charter and section 1-13(b) of the Board’s rules.1 Charter § 2604(b)(2), § 2604(b)(3) (Lexis 2018); 53 RCNY § 1-13(b) (Lexis 2018). At trial, petitioner presented one witness, Hanif Ahamed, who is a TLC-licensed driver, and respondent testified on her own behalf. Petitioner and respondent also presented documentary evidence, including text messages sent between respondent and Mr. Ahamed.

1 Petitioner withdrew a third cause of action, alleging that respondent violated section 2604(b)(4) of the Charter (Tr. 87) by accessing TLC’s Taxi Automated Management Information System (“TAMIS”) to obtain the driver’s home telephone number. Petitioner acknowledged that there was insufficient proof to support the charge (Tr. 87). - 2 -

For the reasons below, I find that petitioner failed to prove that respondent violated section 2604(b)(2) and rule 1-13(b) by displaying her city identification in an attempt to procure a personal gain. I find the other Charter violation to be sustained in part, and recommend a fine of $3,000.

ANALYSIS It was undisputed that on August 13, 2016, respondent and Mr. Ahamed had a car accident on Astoria Boulevard in Queens. At the time respondent was employed by TLC as a prosecuting attorney, bringing cases against drivers for violations of the TLC rules (Tr. 64). Respondent was driving her personal car and Mr. Ahamed was driving his taxi. As is often the case, the parties disagreed about whose fault the accident was and about the extent of damage to their cars. Respondent claimed that Mr. Ahamed “suddenly” veered into her lane while she was driving “straight” (Tr. 54). Mr. Ahamed asserted that it was respondent who “suddenly” hit his car (Tr. 31). Similarly, Mr. Ahamed testified that his car was damaged and that respondent’s car was scratched (Tr. 34), while respondent testified that Mr. Ahamed’s car was not damaged and that her rear driver’s side bumper was “clipped” (Tr. 55). More importantly for this case, the parties disagreed about what happened after the accident. Respondent testified that both parties got out of their cars and looked to see if there was damage, and that she approached Mr. Ahamed with all of her “information out” (Tr. 55). Mr. Ahamed, by contrast, testified that respondent blocked his car with her car, took his license and/or ID card with him to her car, and then moved her car to a safer spot. He also moved his car to a safer spot, where respondent again approached him (Tr. 31). Mr. Ahamed and respondent provided very different accounts about what happened next. Mr. Ahamed testified that respondent came up to his car and said, “I am a TLC Officer. I will cancel your TLC license” (Tr. 31). Respondent also showed him her “ID” (Tr. 32). Mr. Ahamed acknowledged, he did not know what type of identification she showed him (Tr. 33). Mr. Ahamed recalled telling respondent that the accident was not his fault. When respondent disputed this, he told her to call the police (Tr. 32). Respondent replied that they did not need to call the police and that he should give her $300 (Tr. 32). Mr. Ahamed initially testified that he told respondent that he did not have the money. She reiterated that there was no need to call the police, and said that if he gave her the money, - 3 - she would not “complain” (Tr. 32). He repeated that he did not have the money; she repeated that there was no need to call the police. Mr. Ahamed gave respondent his mobile and home phone numbers and they parted ways (Tr. 32). Later in his testimony, however, Mr. Ahamed testified that when respondent asked for money, he said that he would give her $100. Respondent demanded $300 instead, leading him to tell her to call the police, because there was not $300 worth of damage (Tr. 40). Respondent told him, “no,” and to “go,” and that she would call him; otherwise, she would “cancel” his license (Tr. 40). Mr. Ahamed explained that he was “totally scared” at the time (Tr. 40). He had only gotten his New York State driver’s license in 2015 and had never been in this situation before, even though he had driven in his native country for 24 years (Tr. 42). Respondent denied ever identifying herself as a “TLC officer” or saying that she would “cancel” Mr. Ahamed’s license. She was an attorney for TLC and has never referred to herself as a “TLC officer” or “even used that word” (Tr. 63). Respondent also denied ever showing Mr. Ahamed her TLC identification (Tr. 65). She acknowledged, however, telling him that she said she knew the TLC rules and that by refusing to provide his insurance information, he was violating a rule (Tr. 62, 65). And respondent told Mr. Ahamed that she would file a complaint if he did not settle with her as he promised (Tr. 62-63). Before their conversation ended, Mr. Ahamed asked respondent if she worked for TLC, and she said yes (Tr. 65). Respondent testified that it was Mr. Ahamed who offered to pay her money after she called the police (Tr. 55). According to respondent, when she asked Mr. Ahamed for his “information,” he provided his driver’s license but not his insurance card (Tr. 55). He repeatedly said he was a “new driver” (Tr. 55) and “wouldn’t even respond” to her request for the insurance card. Because of this, respondent called the police and began to report the accident (Tr. 55). But then Mr. Ahamed approached her and said, “[o]kay, okay, just, I’ll pay you. Take the car to the mechanic and I’ll pay you” (Tr. 55). He did not offer to pay a specific amount of money. She asked him if he had any money with him and said that maybe they could “take care of this situation right now” (Tr. 55). Mr. Ahamed said he did not have any money and was unwilling to go to an ATM (Tr. 55). However, he told respondent that he would give her the money in a week and gave respondent his telephone number (Tr. 55). Respondent called 911 to cancel her first request, after which the police called her back from a different number and she confirmed the cancellation (Tr. 56). Respondent submitted 911 records which she obtained through a - 4 -

Freedom of Information Law (“FOIL”) request, which show that she made a call at 12:59 p.m. reporting a car accident with a green cab and property damage, and again at 1:06 p.m. indicating that she wanted to exchange information with the driver (Resp. Exs. A2, A3). Respondent testified she was skeptical about whether Mr. Ahamed would “make good on . . . the settlement,” so before they left the scene, she told him, “I know all the rules. You know, you broke the rule. You, you are supposed to give me your insurance information. It’s a . . .a TLC rule that you are not supposed to withhold insurance information” (Tr. 56-57). And she asked respondent, “[Y]ou’re sure you’re going to pay me?” (Tr. 56). Mr. Ahamed confirmed that he would pay her. Respondent replied that if Mr. Ahamed did not follow through, she would file a complaint with the police and the TLC because he had “made” her “call off the police” and she had no insurance information (Tr. 57). Respondent acknowledged that in the six days after the incident, she sent Mr. Ahamed 15 text messages. He initially responded, but then stopped (Tr. 56). There was a flurry of text messages on August 14, 2016, the day after the accident. Respondent sent Mr. Ahamed a text message at 10:17 a.m. that her painter said that it would cost $300 to paint the damaged area of her car (Pet. Ex. 1 at 2; Resp. Ex. A5). At 1:23 p.m., Mr. Ahamed replied, “I will give 100” (Pet. Ex. 1 at 3; Resp. Ex. A5). At 1:41 p.m., Mr. Ahamed received a text from respondent stating, “If you don’t Pay me how much We agreed to FIX my car you Will have a summons in 2 weeks” (Pet. Ex. 1 at 5)(emphasis in the original). One minute later, respondent added, “You Will be Paying much more AND have points on Your license.” (Pet. Ex. 1 at 6) (emphasis in the original). At 1:42 p.m., Mr. Ahamed received texts from respondent reiterating that the painter had quoted her a price of $300 and she was “not taking les[s] than $200” (Pet. Ex. 1 at 7, 8; Resp. Ex. A5). Mr. Ahamed replied that he would give respondent $200, but would need a week to get the money and would give it to respondent on Saturday, which respondent said was “fine” (Resp. Ex. A5). Two days later, on August 16, 2016, respondent texted Mr. Ahamed at 8:52 a.m., “Could you meet me Thursday or Friday at TLC” (Pet. Ex. 1 at 10; Resp. Ex. A6). At 11:17 a.m., Mr. Ahamed asked why (Resp. Ex. A6). In a text received by Mr. Ahamed at 11:19 a.m., respondent said she wanted to take the car to the painter on Saturday and asked if they could meet either Friday or early on Saturday (Pet. Ex. 1 at 11, 12; Resp. Ex. A6). At 11:21 a.m., respondent replied that she was “just asking” if they could meet “sooner” (Pet. Ex. 1 at 13; Resp. Ex. A6). - 5 -

Mr. Ahamed replied, “Give me your bank account no. As early possible I give you the money,” and respondent, at 11:27 a.m., said “ok” (Resp. Ex. A6, A7; Pet. Ex. 1 at 14). That night at 8:36 p.m., and then again the next morning at 8:09 a.m., respondent sent her bank routing and account numbers to Mr. Ahamed (Pet. Ex. 1 at 15; Resp. Ex. A7). Respondent sent Mr. Ahamed three additional texts on August 19, all saying “Hello” (Pet. Ex. 1 at 17, 18). It was undisputed that Mr. Ahamed did not respond to the August 19 text messages and that a few days later, respondent telephoned him to ask whether he was going to pay her (Ahamed: Tr. 36: Trojanowska: Tr. 58). Respondent explained that she had telephoned Mr. Ahamed because she thought they had reached an “understanding” (Tr. 58). According to respondent, when she asked about the money during the call, Mr. Ahamed cursed at her and said that he was not giving her anything; she replied that she would call the “cops” and would also file a complaint with TLC; he said that he would file a complaint; and she told him to file the complaint, because she had not done anything wrong (Tr. 58). Although Mr. Ahamed did not testify about the telephone call, he explained that he felt “scared, totally” by respondent’s text messages (Tr. 38). He thought that if he got some points on his TLC or DMV license, it would be cancelled (Tr. 38). He went to a TLC office and spoke to someone there about the text messages. The person at TLC told him that respondent’s conduct was illegal and gave him a telephone number to call to file a complaint (Tr. 36). It was unclear whether Mr. Ahamed contacted TLC before his telephone conversation with respondent. It was undisputed that Mr. Ahamed never paid respondent any money relating to the car accident. Respondent testified that their contact ceased after this telephone call (Tr. 58), which Mr. Ahamed did not rebut. At some point, which she could not precisely recall, respondent checked with her supervisor to see if it was acceptable for her as a TLC employee to file a complaint against Mr. Ahamed. Her supervisor said it was “fine” (Tr. 59). Respondent filed the complaint through “311.” Her supervisor then urged her to call the COIB hotline to double-check, because he was concerned that it might be construed as retaliation for Mr. Ahamed’s decision not to pay her the settlement money (Tr. 60). At this point respondent decided to drop “the whole thing” and “that was the end of it” (Tr. 60). Respondent testified that she was a new attorney at the time and “in public service,” and did not want to take any risk (Tr. 61). - 6 -

A summary of TLC “Complaint Details,” which respondent submitted, shows that she initiated a complaint on September 6, 2016, stating that Mr. Ahamed had switched lanes, striking her car, but refused to provide his insurance information and instead promised to pay for the damage to her car. However, by September 7, 2016, respondent decided that she did not want to proceed with her complaint and TLC decided not to pursue any action against Mr. Ahamed (Pet. Ex. A4). Respondent testified that she had been talking to her supervisor “the entire time this case was happening” (Tr. 61). It was not clear, however, what respondent meant by “the entire time.” Certainly respondent did not claim that she notified any supervisor before sending the text messages to Mr. Ahamed, much less that a supervisor approved of the specific text messages which she had sent. Respondent did attempt, however, to explain the text message in which she told Mr. Ahamed that he would get a “summons” if he did not pay her the agreed-upon money (Tr. 61). Respondent acknowledged that perhaps she should not have sent that message, but that under the TLC rules, once a complaint was filed the driver would have gotten a summons for violating several rules, resulting in a fine and points on his license (Tr. 62). She asserted, “[A]nybody could see the rules, anybody could see the penalties” (Tr. 62). Thus, respondent contended, she was not using her knowledge as a TLC employee. Rather, she was conveying information that was publicly available (Tr. 62). She testified that a driver will be issued a summons and points automatically, without a hearing, and that a hearing would be held only if a driver contests the penalties (Tr. 62). Respondent denied going into TLC’s TAMIS system to obtain Mr. Ahamed’s violation history, as petitioner alleged in its second cause of action. Respondent testified that she had made a request under the FOIL request for any “actions” taken by her log-in relating to Mr. Ahamed’s license (Tr. 63). In response, TLC stated that it had no record of any such activity (Tr. 65). Correspondence from TLC Legal Affairs indicated that a search of the TAMIS database was done and showed that there were “no actions taken by [respondent’s] login” relating to Mr. Ahamed (Resp. Ex. A1). Petitioner did not directly rebut respondent’s evidence. Instead, petitioner relied upon respondent’s statements in a recorded interview conducted by the Department of Investigation (“DOI”) on December 9, 2016. In the interview respondent said she had accessed TAMIS to see - 7 - if Mr. Ahamed had a record (Pet. Ex. 3a; Pet. Ex. 3b at 15-17). At that point, respondent told DOI, she was in touch with her supervisor, because she wanted to file a complaint with the TLC and did not think she should be barred from doing so because she worked for TLC (Pet. Ex. 3a; Pet. Ex. 3c at 2). Because Mr. Ahamed had violated TLC rules, she did not think that accessing TAMIS was for her personal purposes (Pet. Ex. 3a; Pet. Ex. 3c at 2). When confronted with her DOI testimony, respondent denied accessing TAMIS (T. 69). She testified that she felt “pressured” during the interview and “got nervous and . . . said all kinds of things” (Tr. 72, 74). She knew that she had gone online and tried to find Mr. Ahamed’s insurance information and she “thought, at some point” in the interview that she had checked him in the system. At that time, however, she “felt like [she] was going crazy” (Tr. 71). She was getting married that day and thought the interview was about something completely different (Tr. 73). She had never been “interrogated like that” before (Tr. 77) and became “distraught” when DOI lied to her, falsely stating that a forensic analysis of her phone proved that she never called 911 (Tr. 71-72). After the DOI interview, respondent submitted a FOIL request to TLC to document that she never accessed TAMIS (TR. 72). Petitioner’s first cause of action alleges that respondent violated section 2604(b)(2) of the Charter and section 1-13(b) of the Board’s rules by displaying her TLC identification to attempt to obtain payment for a personal expense. Section 2604(b)(2) prohibits a public servant from engaging “in any business, transaction or private employment . . . which is in conflict with the proper discharge of his or her official duties.” Section 1-13(b) of the Board’s rules provides that it “shall be a violation” of section 2604(b)(2) “for any public servant to use City letterhead, personnel, equipment, resources, or supplies for any non-City purpose.” Petitioner did not meet its burden of proof on this charge. Although Mr. Ahamed testified that respondent showed him some identification, he acknowledged that he did not know what that identification was. At no point did he refer to it as a TLC identification or badge. Respondent specifically denied showing her TLC identification to Mr. Ahamed. Her testimony that she approached Mr. Ahamed’s car with all of her identification “out” is too ambiguous to permit a finding that she showed her TLC identification. And although respondent was asked during the DOI interview about whether she showed her identification to Mr. Ahamed, her answers were equivocal. When asked if she displayed any TLC identification, respondent answered that she did not “per se” display the identification (Pet. Ex. 3b at 11). She explained - 8 - that the identification was in her wallet and is the first thing visible when she opens her wallet. She also said that she had asked Mr. Ahamed if he wanted her driver’s license but did not think he took it (Pet. Ex. 3b at 11-12). After a break in the interview, respondent was again asked whether Mr. Ahamed saw her identification and replied, “If he was paying attention, he probably did see it. I, I really didn’t, I don’t know” (Pet. Ex. 3c at 16). DOI moved to a different topic rather than try to resolve this ambiguity. For all these reasons, petitioner’s first cause of action should be dismissed. Petitioner’s second cause of action alleges that respondent used and/or attempted to use her City position for personal gain in violation of section 2604(b)(3) of the City Charter, by: (1) identifying herself to Mr. Ahamed after the accident as a “TLC officer;” (2) threatening Mr. Ahamed with a TLC summons if he failed to pay the $300 that she requested; and (3) using her TLC-issued TAMIS identification and password to obtain Mr. Ahamed’s violation record to aid her in her attempt to obtain money from him. Section 2604(b)(3) prohibits a public servant from using or attempting to use “his or her position . . . to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant . . . .” Petitioner established that respondent violated section 2604(b)(3) only to the extent it proved that respondent threatened Mr. Ahamed with a summons if he did not pay the money that she was requesting. The proof as to the other allegations was insufficient. Mr. Ahamed and respondent gave conflicting testimony as to how respondent identified herself after the accident. Mr. Ahamed testified that respondent immediately identified herself as a “TLC officer” and threatened to “cancel” his license. Respondent denied this, noting that she was an attorney and would not use the phrase, “TLC officer.” Respondent acknowledged, however, that she told Mr. Ahamed that she worked for TLC in response to his question – after she had told him that she knew the TLC rules and knew he was violating them by not providing insurance information. Mr. Ahamed testified about the incident close to two years after it happened. I was not convinced that he recalled everything that respondent said to him with precision. For instance, Mr. Ahamed initially testified that he told respondent several times that he did not have money to pay her. Later in his direct examination, he testified that he told respondent he would pay her $100 but refused to pay her $300. Mr. Ahamed also testified that respondent refused to call the - 9 - police (Tr. 32, 40, 44-5). But the “event chronology” that respondent submitted shows otherwise, corroborating respondent’s testimony that she called the police twice after the accident.2 Similarly, when questioned about the text messages, Mr. Ahamed denied ever asking for respondent’s bank account information (Tr. 44), although the text messages show that he did (Resp. Exs. A6, A7). Thus, there is reason to question the reliability of Mr. Ahamed’s testimony about particular statements made by respondent nearly two years ago. For these reasons, petitioner failed to meet its burden of establishing that respondent identified herself as a “TLC officer.” Petitioner acknowledged that identifying oneself as a TLC employee in response to a direct question – which respondent acknowledged doing – is, “[s]tanding alone. . . not a problem” (Tr. 91). Petitioner asserted that it was only a problem “because of what came after” (Tr. 91). In terms of “what came after,” respondent sent Mr. Ahamed 15 text messages in an attempt to get him to pay her money to fix the alleged damage to her car. The texts started the day after the incident, when respondent texted that her painter said it would be $300. When Mr. Ahamed offered $100, respondent texted that if he did not pay the agreed-on price, he would have a summons in 2 weeks.” She added one minute later that he would be “Paying much more AND have points on [his] license.” Respondent contended that she did not violate section 2603(b) by sending these texts because she merely described the consequences of violating TLC rules, which were publicly accessible (Tr. 61-62). This is not persuasive. It is plausible that had respondent pursued a complaint with TLC, a summons may have been issued. There may have been points or other adverse consequences if the summons was sustained. But respondent’s texts cannot reasonably be construed as mere informational statements about TLC’s rules and penalties. Respondent had already identified herself as a TLC employee to Mr. Ahamed. She had argued with him over the amount of money that he would have to pay her to avoid her making a complaint to TLC. She then sent him texts threatening him with a summons and points on his license if he did not pay her the agreed-upon money. It is hard to construe this as anything other than respondent using

2 During the DOI interview, DOI told respondent that her cell phone records did not include the 911 call she purported to have made. Respondent answered that she had “no idea” why that would be because she had called 911 from the scene (Pet. Ex. 3a; Pet. Ex. 3c at 17, 18). The purported records referenced by DOI were not part of the record at trial and do not constitute evidence. Moreover, DOI’s reference is in direct conflict with the 911 records which establish that respondent telephoned 911, as she testified. - 10 - her position at TLC to obtain a financial gain – to pressure Mr. Ahamed into giving her money for the alleged damage to her car. This violated section 2604(b)(3) of the Charter. See Conflicts of Interest Bd. v. Dixon, OATH Index No. 585/11 (Dec. 9, 2010), adopted, Bd. Dec. (May 23, 2011) (city planner at the Department of Housing Preservation and Development (“HPD”) violated section 2604(b)(3) by sending an e-mail to the owner of the building where she sublet an apartment which stated that she worked for HPD and “would hope not to let this issue involve more people – at [her] department and furthermore at the NYC housing courts”). Accordingly, that portion of the second cause of action which alleges that respondent threatened Mr. Ahamed with a TLC summons if he did not pay her an agreed-upon amount to fix her car is sustained. Petitioner did not establish, however, that respondent used her TLC-issued TAMIS identification and password to obtain Mr. Ahamed’s violation history, as also alleged in the second cause of action. Respondent denied accessing TAMIS, despite having told DOI that she looked up his information to see if he had a record. She urges that her prior statement not be credited because she felt pressured and nervous during the interview. Petitioner contends that respondent’s statement to DOI should be credited, because the record of the interview makes clear that “there was certainly no pressure being applied to her in that moment to confess to anything” (Tr. 86). The audio recording of the interview (Pet. Ex. 3a) suggests that respondent may be exaggerating the level of duress which she felt when questioned about TAMIS. The DOI questioner asked open-ended questions about TAMIS in a measured and even tone, and at that juncture in the interview DOI had not yet confronted respondent about her cell phone records (Pet. Ex. 3a, Pet. Ex. 3c at 9, 17-20), or told her that her story was “not adding up” (Pet. Ex. 3a; Pet. Ex. 3c at 10, 20). But given her encounter with Mr. Ahamed, and her job with TLC, it is entirely plausible that respondent would have felt some level of stress and anxiety during the entire DOI interview. Respondent testified credibly that she was surprised by the questioning, which she had not anticipated, and that it was her wedding day. It is also notable that after respondent first testified about TAMIS, DOI asked if she had anything else to add. Respondent said no, but DOI went off the record and went back on five minutes later. At that time the DOI interviewer said, “You said you wanted to add something,” and respondent replied that when she “look[ed] up the record,” - 11 - she already knew that Mr. Ahamed was not going to give her any money and was in touch with her supervisor about filing a complaint (Pet. Ex. 3a; Pet. Ex. 3c at 17). The record does not reflect what may have been said to respondent to precipitate this statement. The burden of proof is on petitioner. Petitioner did not offer any evidence that respondent or anyone else checked TAMIS records for Mr. Ahamed in August 2016. Respondent, by contrast, submitted evidence that TLC searched its database and found that there were no “actions” taken by respondent’s log in relating to Mr. Ahamed. Petitioner urges that TLC’s database search should be discounted because it is not clear that the log in which respondent gave TLC was actually hers, and that respondent could have used someone else’s login information to access TAMIS. Yet petitioner produced no evidence that respondent supplied the incorrect log in to TLC. Respondent’s FOIL request provided a log in number to be searched, and indicated, “I believe that was my log in.” (Resp. Ex. A1). TLC responded, “I note that there were no actions taken by your login” (Id.). TLC did not state that respondent provided the wrong log in number. Petitioner’s argument that respondent could have used someone else’s log in information to access TAMIS is pure speculation unsupported by the evidence. In sum, because TLC represented that there were no “actions” taken in TAMIS by respondent’s log in pertaining to Mr. Ahamed, petitioner failed to meet its burden of proof on its charge.

FINDINGS AND CONCLUSIONS

1. Petitioner did not establish by a preponderance of the credible evidence that respondent violated section 2604(b)(2) of the City Charter and section 1-13(b) of the Board’s Rules by displaying her TLC identification to attempt to obtain payment for a personal expense, as alleged in the first cause of action.

2. Respondent sent a text message to a taxi driver which threatened him with a summons if he failed to pay the agreed- upon amount of money to fix her car, in violation of section 2604(b)(3) of the City Charter, as alleged in the second cause of action.

3. Petitioner did not establish by a preponderance of the credible evidence that respondent identified herself to the driver in the aftermath of the accident as a “TLC officer,” or that respondent used her TAMIS identification and password to obtain the - 12 -

driver’s violation record for use in her payment dispute with him, as also alleged in the second cause of action. Those portions of the second cause of action should be dismissed.

RECOMMENDATION Petitioner seeks a penalty of a $6,000 fine for respondent’s violations of the Charter, as alleged in the first and second causes of action. However, the first cause of action was not sustained and only a portion of the second cause of action, relating to the text message, was sustained. Thus, a lesser penalty is warranted. Although not cited by either party in argument, the case that seems the most relevant to penalty is Dixon, OATH 585/11. In recommending a fine of $2,000, which the Board imposed, Administrative Law Judge Zorgniotti noted that the HPD employee who sent an e-mail to the owner of her building, insinuating that she would involve HPD and the Housing Court if he did not help her, “used her position to intimidate an individual … to gain an advantage in a personal dispute.” Id. at 7. The threatening nature of the e-mail in Dixon is similar to the nature of the text message in this case. However, there is some mitigation in Dixon that is not present here. Ms. Dixon sent a second e-mail several hours later in which she stated that she was not threatening anybody and just wanted help getting her security deposit back. Id. at 2. Administrative Law Judge Zorgniotti also credited Ms. Dixon’s assertion that she was experiencing extreme anxiety over her housing dispute and found it likely that she would suffer financial hardship from the imposition of any penalty. Here, by contrast, respondent continued to send texts to Mr. Ahamed asking for the agreed-upon money, never backtracking from the language in her text message indicating that Mr. Ahamed would “have a summons in 2 weeks” if he did not pay her as agreed. Respondent is also an attorney, and as such would be typically held to a higher standard of care. Matter of Oberman v. NYC Conflict of Interest Bd., 148 A.D.3d 598 (lst Dep’t 2017), aff’g Conflicts of Interest Bd. v. Oberman, OATH Index No. 1657/14, adopted, Bd. Dec. (Nov. 6, 2014) (reasons for penalty include “the high ethical standards to which [employee] was held as an attorney”). Petitioner argues (Tr. 88-89) that a greater penalty is warranted than the $2,500 fine imposed in Conflicts of Interest Bd. v. Maldonado, OATH Index No. 1323/11 (Apr. 4, 2011), adopted, Bd. Chair’s Dec. (Dec. 8, 2011), which also involved a violation of section 2604(b)(3) - 13 - of the Charter. In Maldonado, a Department of Buildings inspector whose son had been arrested for jumping a turnstile identified himself as a city inspector to a sergeant and displayed his shield, while requesting that his son be released. In recommending a $2,500 fine, which was imposed, Administrative Law Judge Casey noted that the incident at the stationhouse lasted only a few minutes and that the city inspector was not “a bully trying to use undue influence,” but rather a father distraught by the arrest of his son. Maldonado, OATH 1323/11 at 6. By contrast, petitioner asserts that respondent’s motive was monetary and that the text messages that she sent to Mr. Ahamed spanned a full week after the incident (Tr. 89). Respondent contends that she was not seeking money initially from Mr. Ahamed and that it was Mr. Ahamed who proposed a monetary settlement when she called the police after the accident. Respondent further highlights her decision to file a complaint with the TLC as demonstrating that she was no longer trying to get any money from Mr. Ahamed (Tr. 91-92). I agree with petitioner that the facts of Maldonado presented more mitigation. Respondent called 911 initially. But she did not pursue that complaint, and she and Mr. Ahamed instead discussed a monetary settlement. Whether or not it was respondent or Mr. Ahamed who initially proposed the idea is not critical. By the time they left the scene of the accident, Mr. Ahamed had provided his cell and home telephone numbers to respondent, and respondent had identified herself as a TLC employee and warned that Mr. Ahamed was violating TLC rules by not providing insurance information. The next day, respondent sent the text to Mr. Ahamed indicating that if did not pay the agreed-upon amount, “you will have a summons in 2 weeks.” She followed up with a text indicating that he would be “paying much more” and would also have points on his license. Respondent’s motive in sending these texts was plainly monetary. However, some mitigation exists because, once Mr. Ahamed told respondent that he would not pay her any money for the accident, respondent did not continue to text or call him. Respondent should not be penalized for her decision to file a complaint against Mr. Ahamed with the TLC, which she later withdrew, and which petitioner acknowledges she had the right to do (Tr. 91). Moreover, although respondent continued to text Mr. Ahamed for several additional days, the text message which threatens the summons – which is the only text charged in the second cause of action – was sent the day after the accident. - 14 -

Considering all the circumstances, for the misconduct proven, I recommend a fine of $3,000, which is comparable to relevant precedent and sufficient to serve the Board’s goal of deterrence.

Faye Lewis Administrative Law Judge August 27, 2018

SUBMITTED TO:

RICHARD BRIFFAULT Chair

APPEARANCES:

JEFFREY TREMBLAY, ESQ. Attorney for Petitioner

MARTA TROJANOWSKA, ESQ. Self-Represented

THE CITY OF NEW YORK CONFLICTS OF INTEREST BOARD ______x

In the Matter of

COIB Case No. 2017-187 MARTA TROJANOWSKA OATH Index No. 1654/18

Respondent.

______x

FINAL FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Upon consideration of all the evidence presented in this matter, and of the full record, and all papers submitted to, and rulings of, the Office of Administrative Trials and Hearings (“OATH”), including the annexed Report and Recommendation of OATH Administrative Law Judge (“ALJ”) Faye Lewis dated August 27, 2018 (the “Report”), in the above-captioned matter, and upon consideration of the comment to the Report submitted by Petitioner, the Conflicts of Interest Board (the “Board”) hereby adopts in full the findings of fact and conclusions of law contained in the Report. The Report recommends that the Board impose a fine of $3,000, which recommendation the Board adopts.

Without limiting the foregoing, and in summary of its findings and conclusions, the Board notes the following:

The charges against Respondent arise out of a motor vehicle accident between Respondent and a taxi driver. The Report finds that Respondent, a now-former New York City Taxi and Limousine Commission (“TLC”) employee, threatened the taxi driver with a summons if he failed to pay money to fix Respondent’s car, in violation of Charter Section 2604(b)(3).

As described in detail in the Report, ample evidence supports the Report’s finding that Respondent attempted to use her TLC position to threaten the taxi driver with a TLC summons.

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While their testimony differs in several respects, Respondent and the taxi driver agree that the taxi driver learned on the day of the accident that Respondent worked for TLC and that, the day after the accident, Respondent sent the taxi driver the following text message: “If you don’t Pay me how much We agreed to FIX my car you Will have a summons in 2 weeks.” Report at 4 (capitalization in original). Respondent subsequently texted the taxi driver to ask him to meet her at the TLC offices to give her the money. Id.

In her comment to the Report, Respondent disputes the Report’s conclusion that she attempted to use her position as a TLC prosecuting attorney to threaten the taxi driver with a summons. Rather, she explains that she intended to make the taxi driver aware that she was familiar with the TLC complaint system, and would use it, if he failed to pay her to settle the accident. This was substantially the same argument that Respondent made at trial, where she acknowledged that “perhaps she should not have sent that message, but that under the TLC rules, once a complaint was filed the driver would have gotten a summons for violating several rules, resulting in a fine and points on his license.” Report at 6. Respondent claims, at trial and in her comment, that “she was not using her knowledge as a TLC employee,” but instead was “conveying information that was publicly available.” Id.

This argument remains unpersuasive. Even if the TLC complaint and summons process is public knowledge, the Report correctly explains that Respondent’s text messages “cannot reasonably be construed as mere informational statements about TLC’s rules and penalties” because Respondent had already identified herself as a TLC employee, argued with the taxi driver “over the amount of money that he would have to pay her to avoid her making a complaint to TLC,” and indeed asked him to meet her at TLC to pay that money. Id. at 9. Accordingly, the Board agrees with the Report that “[i]t is hard to construe this as anything other than [R]espondent using her position at TLC to obtain a financial gain.” Id.

Petitioner also charged Respondent with violating Charter Section 2604(b)(2), pursuant to Board Rules Section 1-13(b), by displaying her TLC identification in an attempt to obtain a personal gain and with violating Charter Section 2604(b)(3) by identifying herself as a “TLC officer” to the taxi driver and by using her TLC-issued Taxi Automated Management Identification System account and password to obtain the taxi driver’s violation record for use in her payment dispute with him. The Report finds that Petitioner failed to prove these charges, and the Board accepts the Report’s recommendation.

The Report recommends a fine of $3,000. Petitioner initially sought a fine of $6,000 based on the causes of action alleged. As the Report explains, however, because the Report finds that not all of the causes of action were sustained, “a lesser penalty is warranted.” Report at 12.

In reaching its penalty of a $3,000 fine, the Report cites COIB v. Dixon, COIB Case No. 09-792, in which the Board fined an employee of the New York City Department of Housing Preservation and Development (“HPD”) $2,000 for sending an email to the owner of her building, identifying herself as an HPD employee, and insinuating that she would involve HPD

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and the Housing Court if he did not help her. The Report noted that “[t]he threatening nature of the e-mail in Dixon is similar to the nature of the text message in this case.” Report at 12. The Report, however, recommends a higher penalty than that in Dixon because “there is some mitigation in Dixon that is not present here.” Id. In Dixon, the respondent “sent a second e- mail several hours later in which she stated that she was not threatening anybody.” Id. By contrast, Respondent “never backtrack[ed] from the language in her text message indicating that [the taxi driver] would ‘have a summons in 2 weeks’ if he did not pay her as agreed.” Id. Moreover, because Respondent is an attorney, she is “held to a higher standard of care” in complying with Chapter 68. Id., citing Oberman v. COIB, 148 A.D.3d 598 (1st Dep’t 2017), aff’g COIB v. Oberman, COIB Case No. 2013-609.

The Report also cites COIB v. Maldonado, COIB Case No. 2010-548, in which the Board fined an Inspector for the New York City Department of Buildings (“DOB”) $2,500 for calling the New York City Police Department precinct where his son was being held for subway fare evasion, identifying himself as a City employee, showing his DOB-issued shield, and demanding that his son be released. In recommending this fine, the ALJ recognized that the incident “lasted only a few minutes” by “a father distraught by the arrest of his son.” Maldonado Report and Recommendation at 6. Here, by contrast, Respondent’s motive “was plainly monetary” and her interactions with the taxi driver persisted after the initial incident. Report at 13. Nevertheless, the Report found some mitigation to exist because she “did not continue to text or call” the taxi driver after he told Respondent that he would not pay her any money. Id.

Respondent did not comment on the Report’s rationale for its recommended fine, which is supported by the cases that the Report cites. Instead, Respondent seeks mitigation of the penalty due to economic hardship resulting in part from a family member’s illness. Respondent also claims that a public disposition and fine would negatively affect her career.

Respondent’s claim of economic hardship does not warrant mitigation of her penalty. Respondent does not take responsibility for her actions, instead blaming the taxi driver for “initially offer[ing] to resolve the incident by settling the damages” and for “backtrack[ing] and … stalling on the settlement payment.” Respondent’s Comment.

Having found the above-stated violations of the City Charter and having consulted with Respondent’s agency head as required by Charter Section 2603(h)(3), the Board determines that the penalty shall be a fine of $3,000.

WHEREFORE, IT IS HEREBY ORDERED, pursuant to Charter Section 2606(b), that Respondent be assessed a civil penalty of $3,000 to be paid to the Conflicts of Interest Board within 30 days of service of this Order.

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Respondent has the right to appeal this Order to the Supreme Court of the State of New York by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules.

The Conflicts of Interest Board

By: Richard Briffault, Chair

Fernando A. Bohorquez, Jr. Anthony Crowell Jeffrey D. Friedlander Erika Thomas

Dated: November 1, 2018

Attachment

cc: Marta Trojanowska, Esq.

Administrative Law Judge Faye Lewis Office of Administrative Trials and Hearings 100 Church Street New York, New York 10007

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