NYC CFB Albanese

July 17, 2015

By First Class Mail and C-Access

Sal F. Albanese

957 78th Street

Brooklyn, NY 11228

John H. ODonnell

32 Turner Road

Pearl River, NY 10965

Sal 2013

32 Turner Road

Pearl River, NY 10965

Notice of Alleged Violations and Recommended Penalties

The staff of the Campaign Finance Board (the Board) has reviewed the

response of Sal Albaneses 2013 election campaign (the Campaign) to the

Draft Audit Report. The staff recommends that the Board determine that the

Campaign violated the Campaign Finance Act and Board Rules and that the

Campaign must pay $10,675 in penalties (please see the enclosed Penalty

Notice).

As described in greater detail in the enclosed Penalty Notice and Notice

Response Form, the Board will make a final determination regarding any

possible violations of the Campaign Finance Act or Board Rules and penalty

assessments. Please refer to the enclosed documents for instructions on

responding to the Board staff s recommendations. You must respond no

later than August 14, 2015. Your response must include all supporting

explanations, documentation or evidence.

Failure to respond in a timely fashion will constitute a waiver of any rights you

have to participate in the post-election enforcement process, including the

right to a hearing before the Board or an administrative law judge. If you need

an extension of time to respond, you must submit a written request to Mark

Griffin, Associate Counsel, before the response deadline. Only those requests

which demonstrate extenuating circumstances will be considered; routine

2

requests for extensions will be denied. If you have questions, please contact

Mark Griffin, at (212) 409-1863, or [email protected].

Hillary Weisman

Director, Legal Unit

New York City Campaign Finance Board

HW/MPG

cc: Amy Loprest, Executive Director

Sue Ellen Dodell, General Counsel

Mark Griffin, Associate Counsel

Nailaja Mingo, Auditor

Selene Muoz, Senior Auditor

Enclosed:

Penalty Notice

Notice Response Form

Alleged Violations and Recommended Penalties for

Sal F. Albaneses 2013 Election Campaign

(Penalty Notice)

Candidate ID: AU

July 17, 2015

The New York City Campaign Finance Board (the Board) staff (the

Board staff ) recommends in this Penalty Notice that the Board issue a

determination that the Sal F. Albanese 2013 election campaign committed

the below-listed violations of the New York City Campaign Finance Act

(the Act)1 and Board Rules and must pay penalties of $10,675, for which

the Candidate, Sal F. Albanese (Albanese), the Treasurer, John H.

ODonnell, and the Committee, Sal 2013 (collectively, the Campaign), will

be jointly and severally liable.2

The Board staff s recommendations are subject to change based on the

Campaigns response to this Notice. The Board may assess civil penalties of

up to $10,000 for most violations of the Act or Board Rules.3 Unless noted

otherwise, each of the below penalty recommendations is made in

accordance with the Guidelines for Staff Recommendations for Penalty Assessments

for Certain Violations for the 2013 elections (the Penalty Guidelines), which

is available on the Boards website. The Board may assess penalties that

are higher or lower than what is recommended in this notice.

1 New York City Administrative Code (Admin. Code) 3-701et seq. 2 See Admin. Code 3-710.5, 3-711(1); CFB Rule 7-02(c). In other words, the Board shall have the option of collecting this amount from the Candidate, Treasurer, or Committee, or any combination of the three. 3 See New York City Charter (NYC Charter) 1052(a)(15)(d); Admin. Code 3-711. The Board may assess penalties in excess of $10,000 for some violations, such as exceeding the expenditure limit or failing to respond to the draft audit report. See, e.g., Admin. Code 3-711(2).

2

Failing to report a merchant account used

for campaign purposes.

See Draft Audit Report Finding # 1

$250

Campaigns are required to establish and maintain a separate campaign bank

account and to report all bank, merchant, and depository accounts used for

campaign purposes. See Admin. Code 3-703(1)(c), (d), (g), (6), (10), (11),

3-719(1); Board Rules 1-11(d), 2-06, 4-01(f).

Records show that the Campaign failed to report a CyberSource merchant

account (account ending in 2973).

The Board staff recommends a penalty of $250 for this violation.

Reducing or eliminating the penalty: the Campaign may be able to

reduce this penalty by completing a Change of Bank Account Form to

amend its Certification to include all missing account information. The

form can be downloaded at

http://www.nyccfb.info/PDF/forms/change_of_bank_account.pdf.

Failing to provide merchant account

statements.

See Draft Audit Report Finding # 2(a)

$50

Campaigns are required to provide copies of all bank and merchant

account statements for accounts used for each election. See Admin. Code

3-703(1)(d), (g), (11), 3-719(1); Board Rule 4-01(f).

The Campaign failed to provide merchant account statements for its

CyberSource merchant account (account ending in 2973) for November

2013 through January 2014. It failed to provide merchant account

statements for its American Express merchant account (account ending in

7582) for January 2013 and April 2013.

The Board staff recommends total penalties of $50 for these violations.

Reducing or eliminating the penalty: the Campaign may be able to

reduce this penalty by providing the merchant account statements for its

CyberSource account for November 2013 through January 2014, and for its

American Express account for January 2013 and April 2013.

3

Failing to file a daily pre-election

disclosure statement.


$250

Aggregate contributions and loans from a single source in excess of $1,000,

and aggregate expenditures in excess of $20,000, received or made within

14 days of an election, must be disclosed to the Board within 24 hours. See

Admin. Code 3-703(6), (12), 3-708(8), 3-719(1); Board Rules 1-09, 3-

02(e).

The Campaign received a $30,000 loan (Transaction ID 12/I/R0003558)

from Albanese on September 9, 2013 which it failed to report in a daily pre-

election disclosure statement.


Accepting an over-the-limit

contribution.


$10,000

Campaigns are prohibited from accepting contributions in excess of the

applicable contribution limit. See Admin. Code 3-702(8), 3-703(1)(f), (11),

3-719(2); Board Rules 1-04(c)(1), (h), 1-07(c). A loan not repaid by the day

of the election is considered a contribution subject to the contribution

limit. Loans that are forgiven or settled for less than the amount owed are

also considered contributions. See Admin. Code 3-702(8); Board Rules 1-

05(a), (j).

Under the Act, Albanese was permitted to contribute up to three times the

$4,950 limit, or $14,850, to his campaign. See Admin. Code 3-703(1)(h).

He made three $4,950 contributions to the Campaign in January 2013. In

addition, he made three loans to the Campaign: $100,000 (Transaction ID

6/I/R0000168) on December 12, 2012, $25,000 (Transaction ID

11/I/R0003404) on August 10, 2013, and $30,000 (Transaction ID

12/I/R0003558) on September 9, 2013. The Campaign failed to repay the

loans and therefore Albaneses contributions to the Campaign exceeded the

permissible limit by $155,000. See Exhibit 1.

The Board staff recommends a penalty of $10,000 for this violation.

4

Accepting a contribution from a

corporation.


$125

Campaigns may not accept, either directly or by transfer, a campaign

contribution or loan, or guarantee or other security for such loan, from any

corporation, limited liability company (LLC), or partnership. See N.Y.C.

Charter 1052(a)(13); Admin. Code 3-702(8), 3-703(1)(l), 3-719(2)(b);

Board Rules 1-04(c)(1), (e), (g), 1-05.

The Campaign accepted a $250 contribution (Transaction ID

7/ABC/R0000919) from John M. Giordano P.C. on March 6, 2013, and

refunded it after being notified by the Board staff.


Conclusion & Instructions for Responding

You have the right to contest any recommendation in this Notice by:

a) completing and submitting the enclosed Notice Response Form (the

Response Form) and b) submitting a detailed explanation of your

grounds for contesting the recommendation along with relevant evidence

or documentation. You also have the right to an informal hearing directly

before the Board, or a formal hearing before the New York City Office of

Administrative Tribunals and Hearings (OATH). In an informal hearing,

you or a representative make a presentation directly to the Board, which

usually makes a decision the same day. Formal hearings are before an

OATH judge who conducts a formal adjudication, a proceeding similar to a

trial, in accordance with the requirements for adjudications contained in

section 1046 of the New York City Charter. The OATH judge then

submits a non-binding recommendation to the Board. Further information

regarding hearings is available in the enclosed Notice Response Form.

Complete and sign the enclosed Notice Response Form to indicate whether

you will be challenging any of the Board staff s recommendations, and

whether you are requesting a hearing either before the Board or OATH.

Please submit the Notice Response Form, with a substantive written

response for each recommendation you are contesting and copies of any

supporting documents, to the Associate Counsel listed below. Your

response must be submitted no later than August 14, 2015. Failure to

submit a timely response will constitute a waiver of your right to contest

5

any recommendation in this Notice, and your right to a hearing. If you have

any questions, please contact Mark Griffin, Associate Counsel, at (212) 409-

1863 or [email protected].

Hillary Weisman

Director, Legal Unit


Exhibit attached:

1. Contributions over the limit.

Exhibit 1

Name

Statement/Schedule/

Transaction ID Transaction Type

Incurred/

Received/

Refunded Date Amount Notes

Albanese, Sal F 6/ABC/R0000071 Monetary Contribution 01/09/13 $4,950.00



Albanese, Sal F 6/I/R0000168 Loan 12/12/12 $100,000.00



Total $169,850.00

Office Limit $14,850.00 (1)

Amount Over the Limit $155,000.00

Notes:

(1)

Exhibit 1

Sal 2013

Contributions Over the Limit

(see Alleged Violation #4)

The contribution limit for the candidate is three times the office limit of $4,950.00, or $14,850.00.


Instructions & notice of your rights

You have the right to contest any recommendation in the enclosed Public

Funds or Penalty Notice by: a) completing and submitting this Notice

Response Form (the Response Form) and b) submitting a detailed

explanation of your grounds for contesting the recommendation along with

relevant evidence or documentation. You also have the right to an informal

hearing directly before the Board, or a formal hearing before the New York

City Office of Administrative Tribunals and Hearings (OATH). In an

informal hearing, you or a representative make a presentation directly to the

Board, which usually makes a decision the same day. Formal hearings are

before an OATH judge who conducts a formal adjudication, a proceeding

similar to a trial, in accordance with the requirements for adjudications

contained in section 1046 of the New York City Charter. The OATH judge

then submits a non-binding recommendation to the Board. Further

information regarding hearings is available below.

To respond to the enclosed Notice you must complete, sign and date this

Response Form, indicating which recommendations you will be contesting or

not contesting.

(1) If you choose NOT to contest any of the recommendations in the

Notice, send the completed Response Form to the Associate Counsel

listed below.

(2) If you choose to contest one or more recommendations in the

Notice, send the completed Response Form, along with a detailed

written explanation and all supporting documentation or evidence

describing your reasons for contesting the recommendations to the

Associate Counsel listed below. You may not request a formal or

informal hearing if you do not provide a written response.

Failure to submit a completed Response Form and all supporting explanations,

documentation, or evidence to the Board, by August 14, 2015 (the Response

Deadline) constitutes a waiver of your right to respond to the Notice and

your right to a hearing.

If you require additional time to respond, submit a request in writing

immediately to the Associate Counsel listed below. Only those requests which

demonstrate extenuating circumstances will be considered; routine requests for

extensions will be denied.



Sal F. Albanese 2013 Elections

Candidate ID: AU

2

Penalty Recommendation

Carefully review the Penalty Notice before completing this section. The

Candidate, Treasurer and Committee will be responsible for paying any

penalties assessed by the Board. Please indicate whether you will or will not

contest each penalty recommendation by checking () the appropriate box.

Please remember that if you are contesting any recommendation, this

Response Form must be accompanied by a detailed written explanation and all

supporting documentation or evidence.

Recommended Violation

Recommended

Penalty

I will

contest this

I will NOT

contest this

1. Failing to report a merchant account used

for campaign purposes. $250

2. Failing to provide merchant account

statements. $50

3. Failing to file a daily pre-election disclosure

statement. $250

4. Accepting an over-the-limit contribution. $10,000

5. Accepting a contribution from a

corporation. $125




Candidate ID: AU

3

Requesting a hearing

If you wish to request a hearing, you must choose between either a formal or

informal hearing. Differences are summarized below. Please make your selection

on the following page.

Informal Board Hearing Formal OATH Hearing

Who do I

appear

before?

A minimum of three members of the

Board, a nonpartisan body comprised of

five members.

An Administrative Law Judge (an ALJ)

from the New York City Office of

Administrative Trials and Hearings

(OATH). More information about

OATH can be found on its website,

www.nyc.gov/oath.

When is the

hearing?

Your hearing date is listed on the following

page. Extensions may be provided for

good cause.

In consultation with the parties, OATH

schedules the hearing; it may be weeks or

months after the submission of a response.

How long is

the hearing?

Your hearing before the Board will likely

last 15 minutes to an hour.

Your hearing may last for a few hours or

days, or could take place during a number

of sessions spread over several weeks.

What are

the hearing

procedures?

The procedural rules are simple. The Board

will ask you to explain your side of the

story and may ask you questions. You may

bring witnesses or a representative,

including an attorney, of your choosing. All

written submissions must be timely

submitted with this Response Form to

ensure that the Board will consider it.

Formal hearings are similar to a court trial

and subject to the formal procedural

requirements of section 1046 of the NYC

Charter, Chapter 12 of the Board Rules

and the OATH Rules of Practice. You are

encouraged to review the rules carefully

and consult an attorney if requesting a

formal hearing.

When do I

get the

Boards

decision?

In most cases, you will learn of the Boards

determination on the same day as the

hearing.

Typically, weeks or months after the formal

hearing ends. After the hearing, the ALJ

issues a recommended determination. The

ALJs recommendation is not binding

on the Board. The Board considers the

OATH recommendation (and written

arguments submitted by the parties or

Board staff, if any) and issues the final

determination.




Candidate ID: AU

4

Please indicate your hearing selection by checking () the appropriate box

(check only one box):

I waive my right to a hearing. I understand that I may still contest any of

the allegations in the enclosed Notice by submitting, along with this form, a

detailed written explanation and all supporting documentation or evidence

describing my grounds for contesting the allegations to the Board by the

Response Deadline. (Please also check this box if you are not contesting any

of the recommendations in the enclosed Notice.)

I request an informal hearing before the Board. I understand that I will

speak directly before the Board in the informal manner described in the

chart above, and that I waive the right to a formal OATH hearing and the

adjudication procedures of section 1046 of the NYC Charter. I further

understand that, along with this form, I must also submit detailed written

explanations and all supporting documentation or evidence describing my

grounds for contesting any allegations to the Board by the Response

Deadline. I acknowledge that my hearing is scheduled for:

Thursday, September 10, 2015 10:00 a.m.

100 Church Street, 12th Floor

New York, NY 10007

(please bring I.D. and allow time to get through security)

I request a formal OATH hearing. I understand that the formal hearing

will be conducted by OATH in accordance with the procedural requirements

of section 1046 of the NYC Charter, Chapter 12 of the Board Rules and the

OATH Rules of Practice. I further understand that Board staff cannot

assist me in complying with these procedural requirements, and that

the ALJs final recommendation will not be binding on the Board.

I further agree to accept service for any and all proceedings related to the

formal hearing at the following address:




Candidate ID: AU

5

Candidate and Treasurer must sign, print, and date below:

Candidate Signature Treasurer Signature

Print Name Print Name

Date Date

We strongly prefer that the Candidate and the Treasurer prepare one response. If

this is not possible, you each must submit a response and provide a detailed

explanation as to why one response is not possible: I am the

candidate/treasurer (circle one) and am responding separately from the

candidate/treasurer (circle one) because (fill in detailed reasons below and add

more pages if necessary):

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

Signature Print Name

Return your complete response, no later than the Response

Deadline, August 14, 2015, to:

Mark Griffin, Associate Counsel, New York City Campaign Finance Board,

100 Church Street, 12th Floor, New York, NY 10007, [email protected].

Penalty Notice Exhibit 1.pdfExhibit 1 Cover.pdfEC2013 Albanese, Sal NAV Exhibit 1 - Contributions Over the Limit

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