The Volokh Conspiracy
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Bill DeBlasio Argued N.Y. Had First Amendment Duty to Pay Travel Costs for NYPD Security Detail on His Presidential Campaign
A short excerpt from the 33,000-word De Blasio v. N.Y. City Conflict of Interest Board, decided Tuesday by Manhattan judge Shahabuddeen Abid Ally:
Bill DeBlasio … 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. [I had completely forgotten that, if I ever noticed in the first place. -EV] 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 ….
Shortly before announcing his candidacy, Petitioner consulted [the] New York City Conflict of Interest Board … on whether … the City of New York … could pay all costs associated with providing Petitioner and his immediate family an NYPD security detail during political trips…. [T]he 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, … 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 … 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") …. 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 ….
The court rejected de Blasio's challenge to this, but also had this to say about a curious First Amendment argument:
Petitioner argues that the failure of the City to pay the travel costs of his security detail in connection with his presidential campaign violates his First and Fourteenth Amendment Rights…. Even if Petitioner's constitutional claims are preserved for review, they are meritless. Indeed, Petitioner barely defends those claims against Respondents' arguments for dismissal, spending all of a single paragraph in his memorandum of law addressing Respondents' extensive argument why they should be dismissed on the merits. That paragraph, furthermore, makes perfunctory arguments only concerning the substantive validity of Petitioner's First Amendment claim; it makes no mention whatsoever of his Fourteenth Amendment claim. Thus, the Court concludes that Petitioner has, wisely, chosen not to defend that claim and only addresses the First Amendment claim.
[Here's that paragraph, from de Blasio's brief: "The Board's Order threatens to impose ruinous financial consequences on Mr. de Blasio solely because he exercised his and his supporters' First Amendment right to run for national office. While the Board repeatedly asserts a 'state interest in ensuring government resources are not put towards non-government purposes,' it concedes that protecting the mayor is a legitimate government purpose. This is not a case where Mr. de Blasio directed City personnel to support the activities of his presidential campaign, or where he seeks 'public matching funds.' Far from asking the City to 'subsidize[]' his presidential campaign, Mr. de Blasio merely seeks to be relieved of having his First Amendment rights unduly burdened with City expenses, which were determined solely by the NYPD." -EV]
Petitioner's single argument in opposition to dismissal of his First Amendment claim is that, contrary to Respondents' position, the COIB Order served no legitimate state interest "in ensuring government resources are not put towards non-government purposes," because Respondents concede that protecting the mayor is a legitimate government purpose. But that argument depends entirely on the invalidity of the Board's distinction between the salary and overtime of Petitioner's security detail serving the City purpose of protecting the mayor and its ancillary travel costs only serving Petitioner's personal interest in seeking non-City elective office. The Court has already decided that the Board's distinction, based on its proffered reasoning, is not arbitrary or capricious.
Petitioner may not have asked the NYPD to provide him with the security detail during his campaign trips, but the Board unequivocally informed him prior to his campaign launch that the City's conflicts-of-interest laws required reimbursement of the security detail's travel expenses. This did not unduly burden Petitioner's First Amendment rights--he was still free to campaign; he simply had to pay for the ancillary travel costs of his security detail personally or through his campaign funds, or otherwise choose not to have the detail accompany him. As Respondents rightly argue, the Supreme Court has repeatedly "reject[ed] the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State." …
