Johnson v McLaren

Supreme Court, Albany County

Decided on November 26, 2025

Index No. 900026-25

David A. Weinstein, J.

By verified petition filed January 2, 2025, and brought by Order to Show Cause, petitioner Michael J. Johnson, the Chief Enforcement Counsel ("CEC" or "Enforcement Counsel") at the Division of Election Law Enforcement at the New York Board of Elections ("Board" or "BOE") sought the following relief:

1. A finding that respondents Mark McLaren, as Treasurer of Democratic Group DG ("DGDG"), and DGDG itself, were required to timely file 28 campaign financial disclosure statements between May 2020 and October 2023, and failed to do so:

2. An order imposing civil penalties in the total amount of $68,000.00 against respondents pursuant to Election Law §§14-126(1)(a) and 16-120, with costs and disbursements; and

3. An order pursuant to Election Law § 16-114(2) compelling Respondents to file with the [BOE] the missing 28 campaign financial disclosure statements at issue in this proceeding.

Respondents have failed to appear or oppose the petition. Nevertheless, the petition has raised significant issues of first impression regarding the authority of the Enforcement Counsel to [*2]bring this proceeding in the manner it did, and to seek certain of the relief at issue. Moreover, when I raised some of these questions, petitioner submitted a proposed Order to Show Cause seeking to amend the petition, and that application remains pending before me.

This Decision & Order resolves these matters. But before I can get to the particular issues raised by this petition, some background is necessary, both as to the office of Chief Enforcement Counsel and the specific enforcement proceeding at issue.

Background

The Office of the CEC was created as part of a package of reform measures enacted in legislation accompanying the 2014 State Budget (see Chapter 55 of the Laws of 2014; Sugarman v New York State Board of Elections, 190 AD3d 1228 [3d Dept 2018]). In particular, the Legislature created the Division of Election Law Enforcement within the BOE, and placed the CEC at its head (see Election Law § 3-100[3-a]). The CEC was vested with "sole authority" within the Board to investigate campaign finance violations (Election Law § 3-104[1][b]; New York State Republican Campaign Committee v Sugarman, 165 AD3d 1536, 1536 [3d Dept 2018]).

In short, the legislation created a "new, independent division of election law enforcement," appointed directly by the Governor^FN1 that would "enforce and prosecute violations of the election law" including "all civil violations of the Election Law both before an independent hearing officer and in court" (Budget Mem at 16).

As set forth in the Verified Petition, the present case arises out of an administrative enforcement proceeding commenced by the Enforcement Counsel, in which he alleged that respondent DGDG registered with the BOE as a political action committee, but then on 28 occasions failed to file campaign finance disclosure statements required by Article 14 of the Election Law (Pet, Ex A). Respondents did not file an answer or otherwise appear, and petitioner then proceeded before the BOE Hearing Officer assigned to the matter (see Pet ¶¶ 22-23).

Following review, the Hearing Officer issued Findings of Fact and Conclusions of Law (Pet, Ex G). The Hearing Officer held that the allegations in the complaint were founded, but disagreed with certain of the Conclusions of Law proposed by the CEC. First, while he agreed that financial disclosure reports were not filed on the dates alleged, he found that only certain of those reports (those for the January and July periodic filings and the November 2020 general election) were required (id. at 4). As to the others, he held that such were only required if DGDG had "receive[d] or expend[ed] any money or valuable thing or incu[red] any liability ro pay money or its equivalent" during the period at issue, and there was "no evidence" that this was the case (id. at 6, citing Election Law § 14-102[1]). As a result, he found that DGDG had failed to file only nine required statements (id. at 7).

Second, the Hearing Officer rejected petitioner's assertion as to the required penalty. Under Election Law § 14-126(1)(a):

"Any person who fails to file a statement required to be filed by this article shall be subject to a civil penalty, not in excess of one thousand dollars, to be recoverable in a special proceeding or civil action to be brought by the chief enforcement counsel pursuant to section 16-114 of this chapter. Any person who, three or more times within a given election cycle for such term of office, fails to file a statement or statements required to be filed by this article, shall be subject to a civil penalty, not in excess of ten thousand dollars, to be recoverable as provided for in this subdivision."

While the Enforcement Counsel took the position that the $10,000 penalty for three or more violations was to be imposed in addition to the $1,000 penalty for each individual violation, the Hearing Officer found that it was to be in place of such smaller penalties (Pet, Ex G at 7-8).

As a result of these rulings, the Hearing Officer found that the appropriate penalty was $16,0000: $10,000 for the three violations in the 2020 election cycle, and $1,000 each for the six missed semi-annual reports which the Hearing Officer ruled to have been required (id. at 8).

Enforcement Counsel moved to reargue and/or renew, but the Hearing Officer denied the application (Pet, Exs H, K).

CEC then initiated this proceeding. In its petition, Enforcement Counsel sought "a modification of [the Hearing Officer's] findings of fact and conclusion of law in part and for an acceptance of those findings of fact and conclusion of law in part" (Pet ¶ 1 [emphasis in original]). Counsel argued that the Hearing Officer's ruling that respondents were not required to file any pre- or post- election reports for 2021, 2022, or 2023 was "contrary the NYSBOE rule, opinion, and/or policy as stated in the Campaign Finance Handbook that a hearing officer must adhere to when presiding over an administrative enforcement action pursuant to NYSBOE Regulation 9 NYCRR § 6218.4(b)" (Pet ¶ 12). As to the Hearing Officer's ruling that the two types of civil penalties provided for under Election Law § 14-126(1)(a) could not to be applied in the aggregate, Enforcement Counsel asserted that it was "an anomaly and stands alone in contrast to all other cases that came before in both administrative enforcement actions presided over by other hearing officers and any resulting special proceedings filed with and judgments granted by the Supreme Court of the State of New York, Albany County" (id. ¶ 13). The petition set forth a detailed argument for the correctness of the Enforcement Counsel's position, and what it believed was the erroneous nature of the constructions of law adopted by the Hearing Officer (see Pet ¶¶ 14-20, 34-36). On this basis, the petition sought an order reaching the findings and conclusions that the CEC had originally sought before the Hearing Officer: that the respondents had failed to file 28 required reports, and that they were liable for penalties of $68,000.

Respondents defaulted on the petition, and at the Court's request Enforcement Counsel submitted a proposed order. Following review of the proposal, I wrote petitioner to note that the cited statutory basis for its application, Election Law § 3-104(5), did not appear consistent with the relief it sought. That provision sets forth the process by which Enforcement Counsel may initiate proceedings before a hearing officer when the CEC "determines that substantial reason exists to believe that a person, acting as or on behalf of a candidate or political committee under circumstances evincing an intent to violate such law that does not otherwise warrant criminal [*3]prosecution, or has unlawfully violated any provision of this chapter." The statute further provides:

"The chief enforcement counsel shall adopt the report of the hearing officer and may, in his or her discretion, commence a special proceeding in the supreme court pursuant to sections 16-100, 16-114 and 16-116 of this chapter should the findings of fact and conclusions of law support the commencement of such proceeding or enter into an agreement to settle such matter with the subject of the complaint. In the event the chief enforcement counsel commences a special proceeding, the court shall afford the subject of the [complaint] an opportunity to be heard and shall be empowered to accept, reject or modify the findings of fact and conclusions of law made by the hearing officer. If the board fails to produce a list of eligible hearing officers, the chief enforcement counsel may commence a special proceeding as provided herein in accordance with recommendations made in his or her report" (Elec Law § 3-104[5] [emphasis added]).

I noted that given the statutory requirement that the CEC "adopt" the hearing officer's report and commence a special proceeding thereon, "[t]he basis for petitioner's view that the statute vests the Enforcement Counsel with the authority to challenge the ruling of a BOE hearing officer is not clear from its present submissions" (Ltr of Court to Petitioner, 9/10/25). I therefore allowed petitioner to make an additional submission on this issue.

Petitioner responded by submitting a proposed Order to Show Cause which would allow it to amend its petition: "(I) to adopt the determination issued by the hearing officer but also to emphasize that the Court '... shall be empowered to accept, reject, or modify the findings of fact and conclusions of law made by the hearing officer' pursuant to Election Law §3-104(5)(a); and/or (ii) in the alternative, for the same relief set forth in section (I) plus leave to join the BOE, as a "Third-Party Stakeholder," since "this Court's decision in this case may affect existing jurisprudence with respect to Election Law § 14-126(1)(a) and/or existing rules, regulations, and opinions of the NYSBOE with respect to PACs being required to file every pre- and post- election statements for all primary and general elections as instructed in the Handbook" (Affirmation in Support ["Aff in Supp"] ¶ 4). Two alternate proposed Verified Petitions were appended to the motion in accordance with the two options, both of which substituted a new provision stating: "Per Election Law § 3-104(5)(a), the Petitioner commenced this special proceeding pursuant to sections 16-100, 16-114, 16-116, 16-120 of the Election Law for the Court to accept the findings of fact and conclusion of law made by the hearing officer," (see Aff in Supp, Ex 5 ¶¶ 9-10, Ex 6 ¶¶ 9-10 [emphasis in original]), in place of the language in the original proceeding stating that the special proceeding was commenced to "modify" the Hearing Officer's findings^FN2 (Pet ¶ 10 [emphasis in original]). For its request for relief, it asks that judgment be entered against respondents, without specifying the amount it is seeking.

The remainder of the petition, however, continues to present arguments as to why the penalty imposed by the Hearing Officer, and the legal rulings on which it was based, were erroneous (see, e.g. Aff in Supp, Ex 5 ¶ 12 [hearing officer's ruling that respondents were [*4]required to file any pre- and post- election reports for 2021, 2022, and 2023 "is contrary the NYSBOE rule, opinion, and/or policy as stated in the Campaign Finance Handbook"]; id. ¶ 14 ["This ruling is an anomaly and stands alone in contrast to all other cases that came before in both administrative enforcement actions presided over by other hearing officers and any resulting special proceedings filed with and judgments granted by the Supreme Court of the State of New York, Albany County"]; id. ¶ 35 [attaching various unpublished orders and decisions which "stand for the proposition that the civil penalties under Election Law§ 14-126(1 )(a) are to be applied in the aggregate"]).

In short, the CEC asserts that it may both "adopt" the Hearing Officer's report as provided under the statute and argue that the Court overturn its conclusions, since the Court retains its discretion to modify the Hearing Officer's rulings.

By letter dated October 7, 2025, I declined to sign the Order to Show Cause. I found that there was no such thing under the CPLR as a "third party stakeholder," and so no basis to include the Board as a quasi-party in this way. Moreover, I held that allowing the complaint to be amended would be to "put the cart before the horse," since the first question that had to be decided was whether the position taken by the CEC — that it could "adopt" the determination of the Hearing Officer and then argue against it, with the Court retaining the authority to overrule the Hearing Officer on the basis of the CEC's contentions — was permissible under the Election Law. I sought out submissions from the Board and CEC on the question. The Board declined to take a position, while CEC made a further submission again defending its authority to challenge the Hearing Officer's rulings (CEC Ltr to Court of 10/31/25).

Discussion

The threshold question presented by this petition is this: does the governing statute allow the CEC to challenge the ruling of a Hearing Officer in a proceeding brought under Election Law 3-104(5) and — even if it does not — does the Court have the authority upon such a petition to reject the Hearing Officer's sanction in favor of a higher one?

I start my analysis with the language of the statute. The provision at issue requires that the CEC "adopt the report of the hearing officer" and then provides that it may commence a special proceeding "should the findings of fact and conclusions of law support the commencement of such proceeding" (Election law § 3-104[5]).

As noted, petitioner here purports to perform the requisite "adoption" of the Hearing Officer's findings and conclusions, while arguing that they are wrong in significant part. But that is not what "adopt" means.

The word "adopt" as used generally in the case law clearly means something akin to "accept" or "embrace" (see, e.g. People v Dunton, 42 NY3d 97, 121 [2024][Aarons, J., dissenting] ["the majority adopts a version of the People's argument"]; Sardanis v Sumitomo Corp., 279 AD2d 225, 230 [1st Dept 2001] ["We adopt this position, notwithstanding a contrary ruling by the Fourth Department"]). As one Court explained the "common and ordinary meaning" of the term:

"to 'adopt', as the word is commonly used in this [different] context, is defined as 'to take up (a practice, method, word, or idea) from some one else'; 'to embrace, espouse' or 'to approve, to confirm (accounts, reports, etc.)', Oxford English Dictionary (2d ed. 1989); or 'to accept formally and put into effect', Webster's New Collegiate Dictionary 16 (1974)"

(see Kerber v Qwest Group Life Ins. Plan, 656 F Supp 2d 1279, 1295 [D Col. 2009]).

Indeed, in the specific context at hand — involving the adoption of a particular ruling by a decision-maker — the term "adopt" is clearly used to denote acceptance of the ruling as controlling. This is what is understood to have occurred when a Court "adopts" the report or recommendations of a hearing officer or referee (see Matter of Chiarelly v Watertown City School Dist. Bd. of Educ., 34 AD3d 1219 [4th Dept 2006] ["The Board was entitled to rely on and adopt the findings of fact and recommendations of the Hearing Officer who conducted petitioner's hearing . . . [and] the Board did so," as it "made no independent appraisal of the evidence and reached no independent conclusion"]; Hilton, Vil. Of, Matter Of v Town of Parma, 27 AD2d 978, 978 [4th Dept 1967] ["After receiving the report of the referees and hearing oral arguments thereon, we adopt and confirm as our adjudication and determination the findings of fact and conclusions of law contained in the report"], lv denied 20 NY2d 643 [1967], and lv dismissed 20 NY2d 805 [1967]). What "adopt" clearly does not entail is whatever the CEC is trying to do here, which is to mouth the word "adopt" in regard to the Hearing Officer's determination while making a full-throated argument that the officer's determination was incorrect. These two actions are not consistent with one another.

It is true that, under the construction of the statute that I employ, the CEC is stuck with a reading of a statute that it believes to be erroneous, and without any apparent avenue — either administrative or judicial — to challenge it. But such a structure would hardly be unique to the Board of Elections. It is often the case that when an agency is unsuccessful in its own administrative proceeding, it has no opportunity to contest the determination of the agency's own hearing officers, as they were "acting as an extension of that agency's commissioner" (Wayne Center for Nursing and Rehabilitation, LLC v Zucker, 197 AD3d 1409, 1411 [3d Dept 2021], citing Beaudoin v Toia, 45 NY2d 343, 349 [1978]).^FN3 That is just as much the case here, where all Hearing Officer have been appointed with the approval of the majority of the Board (see Election law § 3-104[5][a]), and there is no reason why a Court should presume — absent statutory authority — that one arm of the Board should have authority to challenge the determinations of another in Court.

The Legislature could, of course, have created a different structure in regard to the CEC But while it sought to vest the CEC with "independence" from the Board — as via its unique appointment process — there is nothing in the governing statute which indicates that such independence extends to providing Enforcement Counsel the ability to challenge the rulings of the Board's hearing officers. To the contrary, the statute specifically limits the CEC's authority to bring court actions to those cases where the findings of fact and conclusions of law "support the commencement of such proceeding" (see Election law § 3-104[5][a]). That is hardly the case when the CEC takes the position that those findings and conclusions are wrong. Moreover, the CEC does not have complete independence from the Board. For example, the statute vests the [*5]Board with the authority to deny the CEC the ability to investigate a particular charge (see Election Law § 3-104[3], and the Hearing Officer the power to dismiss charges brought by Enforcement Counsel when the equities favor a dismissal (Election Law § 3-104[5][a]). In short, the statute balances the powers held by different institutions within the Board. Part of that balance — explicit in the statute — is to allow the CEC to go to Court only after adopting the Hearing Officer's findings, and only when such findings support the petition.

Given all of the above, the CEC bases its claim that this Court may hear its challenge to the Hearing Officer's determination on the above-cited language that "[i]n the event the chief enforcement counsel commences a special proceeding, the court shall afford the subject of the [complaint] an opportunity to be heard and shall be empowered to accept, reject or modify the findings of fact and conclusions of law made by the hearing officer." The sum of petitioner's argument is that this provision explicitly gives the Court the authority to increase the scope and amount of the penalty imposed by the Hearing Officer. The problems with this contention, though, are legion. To wit:

• The language on which petitioner relies specifically addresses the circumstance in which the subject of the investigation is given an opportunity to be heard, and thus involves a challenge to the sanction by the party on which it is imposed, not the Board's Enforcement Division.

• The petition itself can only be brought upon adoption of the Hearing Officer's finding and if those findings support the petition, neither of which would seem to allow for the petition itself to challenge those findings.

• Even if the Court has the authority to impose a greater sanction than that imposed by the Hearing Officer, that does not mean the CEC may use the proceeding to argue for one, which would require it to "adopt" the very findings it is arguing against. Yet a construction which would bar the petitioner from seeking additional sanctions while allowing the Court the discretion to impose them would deprive the respondent of notice that the proceeding could result in a higher penalty.

The CEC also argues that the rulings of the Hearing Officer should not be allowed to stand because they violate the State Administrative Procedure Act, in that they did not follow BOE policies or judicial rulings (Letter of James Barron Esq. to Court, October 31, 2025). Whatever the merits of that argument on its substance, I can see no legal authority for the Enforcement Counsel to bring such a challenge in a proceeding under Election Law § 4-104(5), and the CEC points to none.

For all these reasons, I find that my only authority in this proceeding is to determine whether to issue an order enforcing the determination of the Hearing Officer. The last remaining question is whether I may order such relief, although it is not specifically sought in the petition. While the CEC has sought to address this by amending its pleading, the proposed amendment has the defects described above, and thus I cannot grant the application to substitute the proposed defective pleading for the present one.

In any event, I do not believe such amendment is necessary. The original petition seeks an order imposing total civil penalties in the amount of $68,000.00 against Respondents pursuant to Election Law §§14-126(1)(a) and 16-120, together along with costs and disbursements of the action, (Pet, Wherefore Clause ¶ e), along with an order requiring that petitioner make 28 the [*6]filings which the CEC contended were required. Given that such relief encompasses within it the lesser penalties ordered by the Hearing Officer, and respondents have defaulted against the application seeking such greater relief, I see no obstacle to now granting the relief to which I find that the CEC is entitled.

Accordingly, I direct petitioner to provide the Court within seven days of the filing of this Decision with a proposed Order imposing on respondents penalties in the amount of $16,000, along with costs and disbursements, and directing respondents to file the nine campaign financial disclosure statements found to be required in the Hearing Officer's Findings of Fact and Conclusions of Law.

The motion to amend is denied for reasons set forth above, and I therefore decline to sign the proposed Order to Show Cause.

The original Decision is being electronically filed with the County Clerk, with a copy e-mailed to petitioner's counsel. The signing and filing of this Decision and Order shall not constitute notice of entry and counsel is not relieved from the applicable provisions of the CPLR concerning the filing and service of notice of entry.

ENTER.

Dated: November 26, 2025

Albany, New York

David A. Weinstein, A.J.S.C.

Papers Considered

1. Petition, dated January 2, 2025, with appended exhibits.

2. Affirmation of James Barron, Esq. dated January 2, 2025.

3. Supplemental Affirmation in Support of James Barron, Esq., dated April 21, 2025.

4. Proposed Order, filed July 18, 2025.

5. Court's Letter Order dated September 10, 2025.

6. Proposed Order to Show Cause for Leave to Amend Petition, filed September 25, 2025, with Affirmation in Support of James Barron, Esq., dated September 25, 2025, appended exhibits and Memorandum of Law.

7. Court's Letter Order dated October 7, 2025.

8. Letter of Kevin G. Murphy, Esq. on behalf of New York State Board of Elections dated October 24, 2025.

9. Letter of James Barron, Esq. On behalf of Petitioner Chief Enforcement Counsel Michael L. Johnson. Esq. dated October 31, 2025.