Conflicts of Interest Bd. v. Hawkins OATH Index No. 1043/16 (Apr. 19, 2016), adopted, Bd. Dec. (Sept. 22, 2016), appended

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1 Conflicts of Interest Bd. v. Hawkins OATH Index No. 1043/16 (Apr. 19, 2016), adopted, Bd. Dec. (Sept. 22, 2016), appended Respondent, a NYCHA property maintenance supervisor, violated New York City Charter section 2604(b)(3) by making a corporation that she was associated with eligible for NYCHA small procurement contracts, by awarding the corporation 11 contracts, and by recommending it for another contract. ALJ recommended a civil fine in the amount of $42,000. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of CONFLICTS OF INTEREST BOARD Petitioner - against JENEEN HAWKINS Respondent REPORT AND RECOMMENDATION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge Petitioner, the Conflicts of Interest Board ( Board ) brought this civil penalty proceeding under Chapter 68 of the New York City Charter ( Charter or Chapter 68 ) and Title 53 of the Rules of the City of New York ( Board s rules ). Petitioner alleges that respondent, Jeneen Hawkins, a former property maintenance supervisor for the New York City Housing Authority ( NYCHA ), violated section 2604(b)(3) of the Charter when she made a construction corporation that she was associated with eligible for small procurement contracts at NYCHA, awarded the corporation 11 small procurement contracts, and recommended the corporation for work at another NYCHA property (Pet. Ex. 1). Respondent did not appear for the trial scheduled for April 1, The record established that petitioner provided respondent adequate notice of these proceedings including the notice of petition and the notice of trial (Tr. 5-7; Pet. Exs. 1, 2). Such evidence established the jurisdictional prerequisites for finding respondent in default and an inquest was held. Conflicts of Interest Bd. v. Norwood, OATH Index No. 1974/07 at 2 (July 11, 2007), adopted, Bd. Dec (Oct. 10, 2007).

2 - 2 - Respondent also failed to answer the petition. Under the Board s rules, respondent s failure to answer constituted an admission to the allegations contained in the petition. Petitioner was required to submit for the record an offer of proof of the pertinent facts only. 53 RCNY 2-02(c)(3) (Lexis 2015); see also Conflicts of Interest Bd. v. Vera, OATH Index No. 1677/12 at 2 (July 28, 2012), modified on penalty, Bd. Dec. No (Dec. 20, 2012). At the trial, petitioner presented documentary evidence and the testimony of Department of Investigation ( DOI ) Investigator Vitti and respondent s former supervisor. Petitioner proved the charges. For the sustained violation a civil penalty of $42,000 is recommended. BACKGROUND Respondent was employed by NYCHA from October 10, 1996, until April 28, 2015, when she resigned from her NYCHA position (Tr ; Pet. 2). At all times relevant, respondent was the property maintenance supervisor (a superintendent) at Sotomayor Houses in the Bronx (Tr. 12; Pet. 2). As such respondent was a public servant within the meaning of Charter section 2601(19) ( public servant means all officials, officers and employees of the city.... ). Charter 2601(19) (Lexis 2016). As the property maintenance supervisor, respondent s responsibilities included awarding NYCHA small procurement contracts and dispersing payments for small procurement work (Tr. 12, 45-46, 49; Pet. Ex. 1; Pet. 3). A small procurement contract is awarded for work that is less than $5,000 and does not require competitive bidding (Tr ). On April 10, 2001, respondent married David Mackins (Pet. 4; Pet. Ex. 2). There is no evidence that this marriage was terminated (Tr. 16). As such respondent was associated with Mr. Mackins within the meaning of Charter section 2601(5) (a person associated with a public servant includes a spouse ). Charter 2601(5) (Lexis 2016). DOI Investigator Vitti testified that she was assigned to this matter following complaints made to DOI by contractors hired by respondent, who identified her as Mrs. Mackins (Tr , 15, 43-45). Investigator Vitti uncovered the following. On May 22, 2014, a private construction company called Turkish Construction Corp. ( Turkish ) was incorporated. When Turkish was incorporated, Mr. Mackins s mother was designated as the registered agent. Later, at an unknown date, Mr. Mackins became the registered agent (Tr ; Pet. Exs. 3, 4).

3 - 3 - Since at least June 2014, Mr. Mackins has operated and received income from the operation of Turkish as evidenced by: a June 17, 2014, Turkish invoice from Mr. Mackins that was ed to respondent in the amount of $4,090 for work performed at Sotomayor Houses; a Chase bank signature card for Turkish dated July 31, 2014, showing Mr. Mackins as a signer on the account; two NYCHA checks from June and August 2014 made out to Turkish and endorsed by Mr. Mackins; three Chase bank withdrawal slips for Turkish from July and August 2014 signed by Mr. Mackins; and a Turkish paycheck dated August 1, 2014, made out to Mr. Mackins and signed by his mother (Tr ; Pet. Exs. 1, 5-11; Pet. 5). Investigator Vitti also determined that Mr. Mackins was involved in the day-to-day construction work at Turkish, including jobs performed for NYCHA (Tr ). On May 28, 2014, respondent ed NYCHA s Accounting and Fiscal Services Department asking that Turkish be added to the list of approved suppliers for NYCHA construction and maintenance projects. Turkish was deemed eligible to receive NYCHA small procurement contracts (Tr ; Pet. Ex. 12; Pet. 6). Respondent s former supervisor, the property manager at Sotomayor House, testified that typically he would be copied on such correspondence. He was not copied and had no knowledge that Turkish was performing small procurement contracts awarded by respondent (Tr ). Since becoming an approved supplier, Turkish has received 39 small procurement contracts from NYCHA valued at approximately $96, (Tr ; Pet. Ex. 14; Pet. 6). Between June 11, 2014 and February 26, 2015, respondent, acting in her official capacity, personally awarded 11 small procurement contracts to Turkish for work at Sotomayor Houses valued at $28,774. These contracts included: Contract # , awarded June 11, 2014, valued at $4,090; Contract # , awarded June 19, 2014, valued at $4,800; Contract # , awarded August 19, 2014, valued at $970; Contract # , awarded August 21, 2014, valued at $970; Contract # , awarded August 26, 2014, valued at $970; Contract # , awarded August 27, 2014, valued at $4,974; Contract # , awarded August 29, 2014, valued at $970; Contract # , awarded August 29, 2014, valued at $4,020; Contract # , awarded September 8, 2014, valued at $700; Contract # , awarded February 13, 2015, valued at $4,860; Contract # , awarded February 25, 2015, valued at $1,450.

4 - 4 - (Tr ; Pet. Exs. 1, 6, 7, 14, 15; Pet. 7). Because all of the contracts were for less than $5,000, there was no competitive bidding for the work (Tr. 41). On June 4, 2014, respondent, using her NYCHA account, sent an to the assistant property manager at another NYCHA housing development, recommending Turkish s services for a small procurement contract at that development (Tr ; Pet. Ex. 13; Pet. 8). ANALYSIS Petitioner alleges that respondent used her NYCHA position to benefit herself and her husband in violation of Charter section 2604(b)(3). That section states: No public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant. (Charter 2604(b)(3)) (Lexis 2016). Here, the credible, undisputed evidence established that on May 28, 2014, respondent made Turkish, a corporation that she was associated with within the meaning of Charter section 2601(5), eligible to receive NYCHA small procurement contracts. A reasonable inference can be drawn that respondent intentionally omitted her supervisor from the requesting that Turkish be added to the list of approved suppliers in order to avoid detection. Since becoming an approved supplier, Turkish has received 39 contracts valued at $96, The undisputed, credible evidence also demonstrates that between June 11, 2014 and February 25, 2015, respondent, acting in her official capacity, personally awarded 11 contracts to Turkish valued at $28,774. The fact that several of the 11 contracts were awarded on the same day or on subsequent days suggest that respondent did so in order not to go over the $5,000 threshold for small procurement contracts and thereby avoid the need for competitive bidding. Finally, on June 4, 2014, respondent recommended Turkish to another NYCHA housing development for a contract. Respondent s actions constituted a use of her position for financial gain in violation of section 2604(b)(3) of the Charter. Accordingly, the charges should be sustained.

5 - 5 - FINDINGS AND CONCLUSIONS 1. Respondent was properly served with the charges and notice of hearing. 2. On May 28, 2014, respondent made a corporation associated with her within the meaning of the Charter eligible for small procurement contracts in violation of Charter section 2604(b)(3). 3. Between June 11, 2014, and February 25, 2015, respondent awarded a corporation associated with her within the meaning of the Charter 11 small procurement contracts in violation of Charter section 2604(b)(3). 4. On June 4, 2014, respondent recommended a corporation associated with her within the meaning of the Charter to another NYCHA housing development for a contract in violation of Charter section 2604(b)(3). RECOMMENDATION Under the Charter, the maximum fine for a violation of Chapter 68 is $25,000 and the recoupment of any benefit obtained by respondent. Charter 2606(b) (Lexis 2016). Petitioner seeks a $42,000 fine which includes: $6,000 for respondent making Turkish eligible for NYCHA small procurement contracts valued at over $96,000; $3,000 for each of the 11 contracts personally awarded by respondent to Turkish; and $3,000 for respondent s recommendation of Turkish for another NYCHA contract. Petitioner does not seek recoupment (Tr. 59). The Board has agreed to fines ranging from $4,000 to $20,000 in settlements with employees approving contracts for close family members. See, e.g., Conflicts of Interest Bd. v. Green, COIB Case No (Dec. 29, 2005) (assistant principal fined $4,000 for submitted bid sheet with her husband s company as lowest bidder); Conflicts of Interest Bd. v. Mumford, COIB Case No (Jan. 9, 2003) (teacher fined $7,500 for approving purchase order for $3,500 for husband s company); Conflicts of Interest Bd. v. Sass, COIB Case No (June 29, 1999) (director of administration in borough president s office fined $20,000 for hiring two cleaning companies, one owned by her and the other by her sister). The Board has also agreed to a $1,250 fine in settlements with employees who recommended an associated party for jobs. See, e.g., Conflicts of Interest Bd. v. Sahm, COIB

6 - 6 - Case No (Mar. 21, 2007) (construction manager fined $1,250 for recommending sister to a vendor); Matter of Okowitz, COIB Case No (June 6, 2006) (director of budget and contracts fined $1,250 for recommending son to a vendor). Moreover, the above-referenced cases were settled prior to a trial. This tribunal has noted that by appearing and settling, respondents take responsibility for their actions, which the Board has determined mitigates a penalty otherwise imposed after a hearing. Conflicts of Interest Bd. v. Lugo, OATH Index No. 2013/11 at 8 (Sept. 1, 2011) adopted, Bd. Dec. (Jan. 30, 2012); Conflicts of Interest Bd. v. Hill, OATH Index No. 2199/11 at 4 (Feb. 3, 2012), modified on penalty, Bd. Dec. (May 3, 2012). Moreover, these settlements were approved before 2010 when the maximum fine for a Chapter 68 violation was increased from $10,000 to $25,000. Respondent s use of her NYCHA position to benefit herself and her husband constituted a breach of the public trust. The fact that respondent resigned her position rather than face discipline, does not justify the lowering of the civil penalty because she did not appear and take responsibility for her actions. Vera, OATH No. 1677/12 at 8. In light of the prior settlements and relevant case law, the egregiousness of respondent s conduct, petitioner s decision to forego recoupment, and the lack of any mitigating circumstances, the request for a $42,000 civil penalty is reasonable. Accordingly, the Board should impose a $42,000 civil penalty upon respondent. April 19, 2016 SUBMITTED TO: CAROLYN LISA MILLER Chair APPEARANCES: JEFFREY TREMBLAY, ESQ. MICHELE WEINSTAT, ESQ. Attorneys for Petitioner No Appearance by or for Respondent Alessandra F. Zorgniotti Administrative Law Judge

7 - 1 - THE CITY OF NEW YORK CONFLICTS OF INTEREST BOARD X In the Matter of COIB Case No JENEEN HAWKINS OATH Index No.1043/16 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 ), the Conflicts of Interest Board (the Board.) hereby adopts the findings of fact and conclusions of law contained in the annexed Report and Recommendation of OATH Administrative Law Judge ( ALJ ) Alessandro F. Zorgniotti dated April 19, 2016 (the Report ), in the above-captioned matter. As recommended in the Report, and as further explained herein, the Board imposes a fine of $42,000 upon Respondent for violating Chapter 68 of the City Charter, the City s conflicts of interest law. This enforcement matter involves a property maintenance supervisor for the New York City Housing Authority ( NYCHA ) who enabled Turkish Construction Corporation ( Turkish ), a private construction company owned and operated by her husband, to be eligible to receive procurement contracts by facilitating its inclusion as an approved supplier for NYCHA construction and maintenance projects resulting in 39 small procurement contracts. Small procurement contracts are contracts valued at less than $5,000 and require no competitive bidding. Moreover, respondent personally awarded eleven of the 39 contracts to Turkish and recommended Turkish s services for work on another NYCHA housing development. By using her City position to facilitate, award, and solicit work for her husband s company, Respondent violated the following provision of the City s conflicts of interest law: New York City Charter 2604(b)(3) This section states: No public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant. Charter Section 260I(5) defines those associated with a public servant to include the spouse of the public servant.

8 - 2 - Petitioner served Respondent with a Notice of Petition on November 24, 2015, alleging that Respondent violated Charter Section 2604(b)(3). The Petition set forth, in its three Causes of Action, respectively, the three above-described misuses of City position to financially benefit Respondent and her husband. As the record herein demonstrates, and as the ALJ found, Respondent was given notice of and the opportunity to challenge the allegations about her conduct, but failed to answer the Petition and did not appear for the trial scheduled for April 1, 2016, thus properly leading the ALJ to find her in default and to proceed with the trial as an inquest. The evidence presented at the trial, which included testimony by Suzanne Vitti, Assistant Inspector General with the New York City Department of Investigation, and Courtney Saunders, Property Manager for NYCHA and Respondent s supervisor, as well as documentary evidence in the form of cancelled checks, bank withdrawal slips, s, and a list of Turkish contracts with NYCHA, established that Respondent violated Charter Section 2604(b)(3) by making Turkish eligible to receive NYCHA procurement contracts resulting in 39 small procurement contracts valued at over $96,000, by personally awarding eleven of these 39 small procurement contracts to Turkish, and by recommending Turkish to a NYCHA employee to perform paid work at another NYCHA facility. The evidence also included testimony by Respondent s supervisor that he would have typically been copied on Respondent s request that Turkish be added to the list of approved NYCHA providers, but that he was not so copied by Respondent and that he had no knowledge that Turkish was performing contracts awarded by Respondent. The ALJ noted that a reasonable inference can be drawn that [R]espondent intentionally omitted her supervisor from the requesting that Turkish be added to the list of approved suppliers in order to avoid detection. Similarly, the ALJ noted that the fact that several of the eleven contracts that Respondent personally awarded to Turkish were awarded on the same days or within days of each other suggest that [R]espondent did so in order not to go over the $5,000 threshold for small procurement contracts and thereby avoid the need for competitive bidding. Following the issuance of the Report, the Board sent a copy of the Report to Respondent and reminded her of the opportunity to submit to the Board any comments she might wish to make on the Report. Respondent did not, however, submit comments to the Report. Petitioner likewise submitted no comments. The Board concurs in the ALJ s determination that the evidence establishes violations of the above-quoted prohibition against using one s City position to obtain a personal financial gain, a violation of Charter Section 2604(b)(3), when Respondent awarded and solicited procurement contracts to Turkish to benefit herself and her husband. See, similarly, COIB v. Green, COIB Case No (2005) (assistant principal violated Section 2604(b)(3) for submitting bid sheet with husband s company as lowest bidder); COIB v. Mumford, COIB Case No (2003) (teacher violated Charter Section 2604(b)(3) for approving purchase order for husband s company); COIB v. Sass, COIB Case No (1999) (director of administration violated Section 2604(b)(3) for hiring two cleaning companies, one owned by her and the other by her sister). With regard to the penalty, and for the reasons cited in the Report, including without limitation the egregiousness of [R]espondent s conduct, the Board accepts the ALJ s recommendation to impose a total fine of $42,000 for violations of Charter Section

9 (b)(3), namely, a fine of $6,000 upon Respondent for making Turkish eligible for NYCHA small procurement contracts valued at over $96,000; $3,000 for each of the eleven procurement contracts personally awarded by Respondent to Turkish; and $3,000 for Respondent s recommendation of Turkish for another NYCHA contract. For these reasons, the Board finds that Respondent violated Charter Section 2604(b)(3) and, having consulted with Respondent s agency head pursuant to Charter Section 2603(h)(3), determines that the penalty for these violations shall be $42,000. WHEREFORE, IT IS HEREBY ORDERED, pursuant to Charter Section 2606(b), that Respondent be assessed a civil penalty of $42,000 to be paid to the Conflicts of Interest Board within 30 days of service of this Order. 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 Bohorquez Anthony Crowell Andrew Irving Erika Thomas Dated: September 22, 2016