PAUL GEORGE FEINMAN, J.:
The motions and cross-motion bearing sequence numbers 003 and 004 are consolidated for purposes of decision.1
Plaintiff Annabel Palma is an elected member of the New York City Council from the 18th District in the Bronx, New York. Palma first ran for and was elected to office in 2003. Co-plaintiff "Friends of Annabel Palma" (hereinafter, the campaign) was the campaign committee which successfully helped elect Palma to the City Council. Defendant New York City Campaign Finance Board (the Board or CFB) administers the matching funds program available to New York City candidates running for election to the offices of mayor, comptroller, public advocate, borough president, and member of the City Council.
Palma, a former employee of New York's Health and Human Service Union, 1199/SEIU, AFL-CIO ("1199"), participated in the matching funds program in 2003 and ultimately received public matching funds totaling $93,750 (Loprest Aff. ¶ 17). As described more fully below, in the course of the oversight and audit by the Board's staff of the campaign's finances, the staff found activities by 1199 which suggested to them that the union was not acting independently from the campaign, had made in-kind contributions which were unreported in the campaign's disclosure statements, and had coordinated activities with the campaign on the days of the primary and general elections (Loprest Aff. ¶¶15, 18; Def. Memo in Opp. p. 7). On June 28, 2005, the Board issued its "Notice of Alleged Violations, Proposed Penalties and Opportunity to Respond" (the Notice) to which the campaign was to respond by a deadline which ultimately was extended until October 21, 2005 (Loprest Aff. ¶ 24), at which time this action was commenced.
Plaintiffs filed a summons and verified complaint on October 20, 2005 and moved by order to show cause for a temporary restraining order enjoining the Board from proceeding with its inquiry pending a hearing concerning the constitutionality of certain provisions on which theBoard was relying.2 After a court conference, the motion was deemed withdrawn by decision and order on December 20, 2005, without prejudice to plaintiffs' filing a second amended complaint and a renewed request for preliminary injunctive relief. Defendant advised that it would likely issue a revised Notice, with both parties responding to the changes to the Board Rules resulting from the changes to the Administrative Code, as discussed more fully below (Def. Memo of Law in Opp. p. 4). Shortly thereafter, plaintiffs filed and served their second amended complaint, dated December 14, 2005. In addition, by notice of motion dated December 22, 2005 and filed on January 6, 2006, plaintiffs moved for various injunctive and declaratory relief.
On January 6, 2006, defendant served plaintiffs with a revised Notice of Alleged Violations. On January 13, 2006, defendant cross-moved to dismiss the amended complaint, based on lack of subject matter jurisdiction and failure to state a cause of action (CPLR 3211[a][2], [7]). Also on January 13, 2006, plaintiffs brought a second order to show cause seeking a temporary restraining order and other relief, including a stay of the upcoming deadlines for plaintiffs to respond to the amended Notice as well as meeting with the Board.
For the reasons set forth below, plaintiffs' motion bearing sequence number 003 and motion brought by order to show cause bearing sequence number 004 are denied and defendant'scross motion to dismiss is denied.
THE NYC CAMPAIGN FINANCE BOARD AND ITS PROCEDURES The New York City Campaign Finance Board is charged with administering the New York City Campaign Finance Act (NYC Admin. Code §§ 3-701 to 3-717; 3-801; N.Y. City Charter ch. 46, §§ 1051-1053, 1056-1057, hereinafter the Act) and the New York City Campaign Finance Board Rules (RCNY ch. 52, hereinafter the Rules).3 Together they are known colloquially as the matching funds program. The Board is comprised of five members, two of whom are appointed by the Speaker of the City Council, two by the Mayor, and a Chair who is appointed by the Mayor after consultation with the Speaker (N.Y.C. Admin. Code § 3-708[1]). In addition to the Board members, there are staff members including an executive director and counsel, and legal and accounting staff whose duties include providing technical assistance to prospective and participating candidates so as to facilitate compliance with the requirements of the program (NYC Admin. Code § 3-708[4]).
The matching funds program, which is available to candidates running for many New York City offices, is a voluntary program. All candidates who choose to participate complete a certification form required under Rule 2-01 (NYC Admin. Code § 3-703[1][c]). The form requires that the candidate explicitly agree to abide by the Act and Rules and agree that the candidate, his or her campaign committee, and the campaign's treasurer "may be jointly andseverally liable for the repayment of public funds and/or civil penalties pursuant to Sections 3-710 and 3-711 of the Act." (But see, New York City Campaign Finance Board v Perez, NYLJ, May 16, 2005, p. 18, c. 3 [Sup. Ct., New York County] [Act does not impose obligation on the individual candidate to repay public funds for a failure of the campaign committee to file reports and accountings]). The participating candidate is obligated to maintain proper documentation, and must obtain and furnish to the CFB "any information it may request relating to his or her campaign expenditures or contributions and furnish such documentation and other proof of compliance . . . as may be requested" (NYC Admin. Code § 3-703[1][d]; Rule 4-01).
Once a candidate has been found qualified to participate in the matching funds program, the Finance Board requires him or her to comply with the detailed rules concerning campaign expenditures and contributions, report filing, and providing documentation and other information to verify compliance with the program (NYC Admin. Code § 3-701, et seq.; see also Rules 3-02 to 3-09). Based upon the candidate's documentation for each eligible contribution received, the Finance Board will provide public matching funds according to the formula set forth in the Act.4
Candidates participating in the matching funds program are required to document and disclose all campaign contributions, defined in the Rules as anything of value that is provided to a campaign, including in-kind donations of goods and services (Rule 1-04; NYC Admin. Code § 3-702[8]). However, the Campaign Finance Act excludes from the definition of "contribution" when "it is made, taken or performed by a person or political committee independent of thecandidate or his or her agents or political committees" (NYC Admin. Code § 3-702[8]). "In-kind contributions" include payments for anything of value made to or for any candidate or authorized committee, and compensation by any person other than an authorized committee for the personal services of another person which are rendered to a candidate or the candidate's campaign committee without charge (Rule 1-02 ["In-kind contribution"]; N.Y.C. Admin. Code § 3-702[8]). The definition excludes "personal services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or authorized committee." (Id.). The candidate is to document all expenditures, which includes disbursements, liabilities, and in-kind contributions received, with some expenditures subject to the limits of the Act or Rule 1-08(j)(1), and others exempt (Rule 1-08[a]).
In general, candidates may accept multiple contributions from a single source but may not accept a total amount from a single source in excess of the applicable contribution limit (Rule 1-04[c]).5 A single source includes any person who or entity which maintains or controls another entity (Rule 1-04[h]).
Expenditures made by third parties who are independent of a campaign need not be reported by the campaign. An activity is independent, and not subject to limitations of the public financing program, if the candidate or the candidate's agents or political committee "did not authorize, request, suggest, foster or cooperate in any such activity" (N.Y.C. Admin. Code § 3-702[8]). In contrast, expenditures undertaken by a third party in cooperation with a candidate's campaign must be reported (Rule 2-02[c]). Failure to report such activity is considered a"fundamental breach of the obligations affirmed and accepted by the participant" for which the candidate will be required to forfeit all public funds previously received for the election at issue and shall "be subject to such civil and criminal sanctions as are applicable under section 3-711 of the Code and other applicable law." (Rule 2-02).
The Finance Board is authorized to promulgate rules defining infractions, and the definitions "shall include,...
