County Attorney Stephen Dorsey Announces His Retirement

The Times Union is reporting that the Saratoga County Board of Supervisor’s attorney Stephen Dorsey has announced his retirement to take effect at the end of December. He claims his retirement has nothing to do with the debacle over Covid related pay raises.

His advice not to explicitly authorize the bonuses in the Board of Supervisors’ resolution was central to the chaos that ensued.

His contention that the special Covid committee that granted the raises was not subject to the Open Meetings Law was identified in the independent investigation as not supported by New York State law.

It appears likely that the insurgent Supervisors will have the votes to take power in January. It is reasonable to assume he would not have survived such a change. It’s too bad that Spencer Hellwig doesn’t have the good grace to join Dorsey.

An Appeal To The Leadership of Common Sense Saratoga

In an earlier post I wrote about a video on the Common Sense Saratoga website. The video was originally captioned “Someone sent us this video.” The video purports to be of office furniture thrown away by the city and sitting in the rain outside the Rec Center. The video has a running banner that contains easily documented false statements:

  1. The Commissioner of Finance zeroed out the Rec Department budget (She didn’t.)
  2. The pile of discarded items shown in the video was furniture bought by the city (It wasn’t furniture, and the furniture the city did lease for the temporary offices at the Rec Center was returned to the vendor. The items shown in the video were in fact the partitions used to set up the temporary work areas and had been sold at auction to the high bidder who was scheduled to pick them up.)

Ron Kim and Julie Cuneo are the co-chairs of Common Sense Saratoga and the following is an open letter to them:

Dear Ron and Julie:

This is a follow-up to my email to you both regarding the video that falsely purports to show furniture discarded by the city. In my email I documented how the video contained demonstrably false allegations, and I asked you to take it down.

Your website continually displays banners calling for transparency and accountability. In this age of bots and fake websites, the spirit of that clarion call is welcome.

What I do not understand is how your site can so blatantly violate those principles by displaying that video.

I had taken the liberty of posting comments on your website Common Sense Saratoga exposing the falsehoods in the video. I went up on your site tonight and discovered that my comments are gone. I also found that the text about “somebody sending you the video” was gone.

While I do not support your charter I am sympathetic to your commitment to improve our city. I believe that the value of your proposed ward system is the kind of idea that people of good faith can disagree about.

What I cannot understand is how you can undermine the credibility of your entire proposal by highlighting a video that is so clearly false. I would also have thought that both of you would be embarrassed by such a nakedly dishonest set of claims.

I find it even more troubling that you appear to assume that if you remove my comments from your website that you will be able to take advantage of an innocent public unaware of the truth.

Paraphrasing the late Ronald Reagen, “Mr. Kim and Ms. Cuneo, take down your video.”

Image by WikiImages from Pixabay

Charter Advocates: More Disinformation and Quite A Coincidence

.The advocates for charter change have put up a video on their website that purports to show furniture owned by the city, dumped in the rain behind the recreation center.

Mark Pingel, who is identified as one of the founders of Common Sense Saratoga, alleged the same waste in a post on Next Door with a link to the video. He asserted on the site “We witness that when the recreation center furniture, used for 2 years and still serviceable, is thrown out so we can buy new, at the same time laying-off city workers.”

In the video, as it pans the pile of construction which is partially covered by blue tarps a banner proclaims:

While commissioner of finance zeros out the Rec Departments budget

Thousands of dollars worth of city owned furniture (some used, some never opened)

Sits in the rain outside the Center after the administration moved back to city hall

And the Center’s floor was so damaged, the city had to spend thousands

To restore it — And then cut the Center’s funding

Video on Common Sense Saratoga’s website

First of all it is patently false that the “commissioner of finance zeroed out the rec department budget.” The Commissioner of Finance in the draft version of the 2021 budget allocated $1.2 million to pay for the rec director and one staff position along with the maintenance of the city’s fields and facilities.

Secondly, the city did not throw out the furniture it used at the rec center. This furniture was leased and has been returned to the vendor.

Third, the city did purchase partitions (they are what what are shown in the video) using insurance money to construct the temporary offices at the rec center. These were auctioned and the high bidder is scheduled to pick them up.

The gym floor is redone annually.

I have written to Ron Kim and Julie Cuneo who chair Common Sense Saratoga and asked them to take the video down. I will post their response when I receive it.

Spectrum News did a story on the charter controversy. In a bizarre segment of the video Ron Kim and Julie Cuneo are shown walking in Geyser Crest. They stop at what appears to be a random house where a young man is raking leaves. The narrator of the video asks him what he thinks about charter change and he extolls the need for a new type government.

As it happens, the young man is the son of Gordon Boyd who is a leader of Common Sense Saratoga (he donated $10,000.00 to them). In the background, also raking. is Gordon’s wife, Sharon. Spectrum News is supposed to act with some kind of journalistic standard. I would love to know how this episode came about.

Commissioner Madigan Discusses 2021 Austerity Budget

[JK: This is from a speaking out piece Commissioner Madigan published in the Saratogian]

I presented the 2021 Comprehensive Budget to the City Council on October 6. Since then I have noticed a significant amount of confusion regarding the realities to which this budget responds and how it will affect delivery of city services.

The unpleasant reality is that the economic impacts of covid-19 are real and far reaching, with no end in sight. State and local governments are in dire need of aid from Washington. Absent such aid, services will be compromised or eliminated, with millions of people losing jobs and/or significant portions of their income. The City of Saratoga Springs is facing a significant revenue decrease in 2021, having already suffered severe reductions in 2020, and we have to be prepared to carry on without that much-needed federal assistance. I estimate that the revenues underlying the 2021 comprehensive budget will be $6.8 million less than those originally budgeted for 2020 – and that’s after increasing property tax rates by 6%. That means planned spending for 2021 needs to be $6.8 million lower than was planned in the original 2020 budget – a 14% decrease. This is the challenge I am faced with as Finance Commissioner. Cuts in spending must be made. It is my job to work with the Council to figure out how. We can’t spend money we do not have, and we can’t pay for operating expenses with debt. That’s akin to a family borrowing money for groceries and housing. It’s not sustainable.

To minimize the number of required layoffs, the budget contains a 10% reduction in all city employee salary lines. With a 10% pay cut we can limit the layoffs, but they are still significant: 25% reduction in Public Works labor lines and 15% in Public Safety. A lower pay cut requires more layoffs, fewer layoffs will require a larger pay cut. Furthermore, budgeted Recreation Department expenses have been reduced but not completely eliminated, maintaining only the costs of the Director of Recreation, one staff person, and building and grounds maintenance and utilities for a total budget of 1.12M to start with. This means Recreations programs cannot incur any additional costs to the city, it does NOT mean that Recreation is shutting down. As budget neutral programs are implemented, the Budget will be amended to include them. 

This is a best effort to construct a budget that works for the city while minimizing pain. I firmly believe it is better to share pain equitably amongst all of us than to ask relatively more of some than of others, and that is what I have set out to do. As we address these challenges we must also be concerned about the city’s financial sustainability and longer-term fiscal health. We were able to tap into reserves and our fund balances to weather the pandemic through 2020. I have used similar funding, within reason, in the 2021 budget to mitigate expected revenue decreases. Allowing these reserves and balances to drop below minimal thresholds will have material long term consequences and should only happen as a last resort, which is why the 2021 budget maintains them at prudent levels.

With a close to $7M expected reduction in revenues, the city must closely manage costs, reducing salaries and head count while ensuring that any non-essential services or programs are budget neutral. We must weather the uncertainties of 2021 together, as we are all riding out the same storm in the same proverbial boat. We’ll need a little luck, too – 2021 is not the time for unexpected or unnecessary additional expenses, such as the expense that will be created if residents vote to change our form of government. I am hoping we can all work together as a community to avoid such expenses and meet these challenges together as the great city we are. 

Keep Governor Cuomo From Killing The Working Families Party

Andrew Cuomo is notoriously thin skinned and is notoriously vindictive.

In the last primary for Governor the Working Families Party endorsed Cynthia Nixon over Andrew Cuomo. Predictably, Cuomo was the architect of a commission meant to create a new public finance campaign system which ended up as a vehicle to kill the Working Families Party. The result was a new and onerous standard for third parties to get on the ballot. In order to stay on the ballot third parties must now garner a minimum number of votes in each election year for either governor or president. It raised the required threshold for third parties to qualify for the ballot by threefold: from 50,000 to the much larger number of 2 percent of total voter turnout, or 130,000 votes. The commission also recommended that parties be required to qualify every two years, instead of every four years under previous election law.

When his commission’s actions were successfully overturned in court he incorporated the changes into his 2020 budget. This time a legal challenge failed so the new standard is being implemented in the November election.

The Working Families Party has provided an option for candidates supported by neither the Democrats nor the Republicans. In the case of Saratoga Springs, Michele Madigan was able to win election to Commissioner of Finance using the WFP line along with the Independence Party.

This is a story from a website called the Intercept chronicling Cuomo’s machinations.

I am urging those voting for Joe Biden for president to cast their vote on the Working Families Part line in order to keep them as a player in New York State politics.

Former Commissioner of Public Safety Lew Benton Opposes Current Charter Change Proposal: Excellent Piece Exposes False Claim That New Charter Will Have Separation of Powers

[JK: I received this from Lew Benton who served as the Commissioner of Public Safety. ]

Thoughts of the Proposed Charter

Four years ago the City’s then Charter Revision Commission invited former council members to share their views on the form of government.  

Recently I stumbled upon the comments I made to that Commission.  They represent a rather harsh assessment of the commission form of government.  

Those comments included the following:

“As you know, the current Charter was presented to the community on September 4, 2001, was approved at referendum that year and became effective January 1, 2004.  As such, it postdates my years as commissioner but I note my membership on the Commission which prepared it.

“It did not change the form of our government but rather was designed to more definitively describe the role and function of council members and certain other City officials, promote greater efficiency in programs and services, prescribe a comprehensive budgeting process, promote openness, require periodic reviews of the Charter itself and other presumed essential plans and programs, etc.

“In essence it was an attempt to reform and modernize – not change – our form of government. In hindsight, attempting to reform major governmental functions without recognizing and addressing the barriers to reform was probably akin to putting new wine in old skins.”

“From my perspective as a former public safety commissioner, a life long member of the community and a member of the 2000 – 2001 Charter Review Commission, I believe the changes resulted in certain benefits to the public and improved the administration of some key  governmental functions (operating and capital budgeting for example).   But they did not and could not address the fundamental flaws in our commission form: i.e., there remains no separation of powers between the executive function and the legislative function; the inherent conflict between the dual roles of legislator and administrator/executive was not addressed; the form’s inbred parochialism further impedes the legislative function, hinders oversight, argues against economies of scale and promotes turf struggles; and the recognition that the commission form was designed for extreme crisis management, not governance of a progressive, stable and fiscally sound city such as ours.”

Then, as now, I favored a mayor/council form with the mayor serving as the chief executive officer and members of the council serving solely in a legislative and policy making capacity, a form that would finally allow for a system of checks and balances and the separation of powers.

But the current proposal fails to distinguish the legislative and executive functions. In the final analysis, its failure to separate powers only aggravates the conflicts found in the commission form.  It is difficult to understand why the authors did not separate the executive functions, particularly since they claim to have done so, but that failure alone negates the benefits of scraping the commission system.

 Proposed Charter Does Not Separate Powers or Establish Checks and Balances

Many of those supporting the proposed charter cite separation of powers as its primary attribute.  And the proposal’s stated purpose (see Article I, Sec. 1.01) is to “…  provide for the separation and balance of legislative and executive functions and responsibilities in order to promote clarity, efficiency and responsibility within City government.”

But saying it does not make it so.  The proposed charter does NOT allow for separation of legislative and executive responsibility.  In fact, it does not recognize or establish an executive function.  

In Title 3, the current charter names the mayor as the City’s chief executive officer and at Title 2 establishes the City Council as the legislative body.  Granted, the mayor is a voting member of the Council and thus her powers are both executive and legislative.  But at least the current charter, with all its flaws, distinguishes  executive and legislative roles.   The proposed charter does not.

Under the proposed charter not only is the mayor’s executive authority removed, but all administrative duties as well.  Consider Section 2.04 of the proposal: “The Mayor shall be recognized as the head of City government for all ceremonial purposes, but the Mayor shall have no administrative duties …”  

And the proposed charter (see Section 3.04) casts the city manager as the “chief administrative officer” and the budget officer appointed by and serving at the pleasure of the city council.  The proposed charter does not and cannot empower the manager to serve in the executive capacity. So where is it vested?
By default, the executive function would fall to the new City Council as a whole.   This does not separate the legislative and executive roles but rather makes the two powers indistinguishable, powers that would be held jointly by all council members.  The City Council thus becomes the sole executive authority and the city manager becomes the administrative officer who serves at the council’s pleasure. In effect, the proposal would further entangle legislative and executive power, not separate them.  

Proponents may argue that the manager is a de facto executive, but executive authority cannot by law be given or transferred to a non-elected “manager,” even if that is the intended or stated purpose.  And it is not.

Yes, the proposal would at long last remove the administrative duties now vested with the four commissioners, but that alone does not accomplish the fundamental need to separate power and create a true system of checks and balances.  Rather it creates a potential power struggle between and among the council members and the city manager.

Better to keep what we have — with all its shortcomings and flaws — than to trade it for something worse.  Regrettably, in my view, the failure of the proposal to address the greatest flaw in the commissioner form of government – the absence of checks and balances and the separation of powers – has not been discussed or even recognized.

This charter is NOT what many of its advocates have said it is and I hope all actually read it before voting.

The Appropriation of James Madison

The fallacy that the proposed charter separates the legislative and executive functions has been advanced, knowingly or unknowingly, by many of its supporters.

Rather than detail how the proposal would separate powers and create a system of checks and balances, one endorsement decrees that it is “… consistent with our fundamental democratic ideals …”  and suggests that it is the very essence of the structure of government conjured by James Madison.  It is not.

In announcing its August 22 endorsement of the proposal, the chair of one of the City’s major political parties said:

  “We believe that the proposed change in the form of our local government is consistent with our most fundamental democratic ideals, including the separation of executive and legislative powers.”

Indeed, in its endorsement resolution, the party committee wrote that “ … a fundamental principle of democracy is the separation of executive and  legislative powers, as this ‘separation of powers’ is, in the words of Federalist Paper number 51, ‘The Structure of the Government [That] Must Furnish the Proper Checks and Balances Between the Different Departments…’ “

No doubt Madison, as author of Federalist 51, would be flattered.  But this proposed charter is no more representative of what Madison envisioned than the current commission form is.  Suggesting the proposed charter is a worthy example of the Madisonian model of checks and balances is embarrassingly  ignorant, arrogant and cringe worthy.

In early 1788, Madison, writing anonymously as “Publius,” published The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, otherwise labeled Federalist.

Addressed to the People of the State of New York, Federalist 51 began by establishing what Madison saw as the essence of what he called “… the foundation for that separate and distinct exercise of the different powers of government …”  Here it is with my emphasis:

“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of he government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

The proposed charter does NOT meet the most fundamental elements of what constitutes separation of power and checks and balances as presented in Federalist 51: i.e., the means of keeping the legislative and executive authority “in their proper places” and “…  so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

A few examples:

The city council cannot even appoint its own clerk unless the clerk is nominated by the city manager.

The city manager can unilaterally fire the clerk to the city council.

The council can appoint the city attorney only from a list provided by the city manager.

It has already been noted, but warrants repeating, that the mayor and the city council will, by default, share the executive power.

The executive and legislative functions are not separated but rather co-joined and indistinguishable.

Council members are prohibited from dealing with city officials and employees.

Council Members Prohibited From ‘Dealing’ with City Officers and Employees

Advocates of a ward system argue that it would result in greater representation.  Residents, they argue, of each ward would have a direct link to their council member, someone who could address their  neighborhood concerns, resolve local issues and respond to inquiries.   But the proposed charter actually prohibits the council access to city officials and employees who have the resources, institutional knowledge and responsibility to respond.

Under the title Prohibitions, Section 2.08 C. of the proposed charter includes the following: “ …the City Council or its members shall deal with City officials or employees who are subject to the direction and supervision of the City Manager solely through the City Manager.”

Such a “prohibition” serves to limit a council members ability to seek out answers to constituent questions, address concerns or bring city resources to bear on identified problems in a neighborhood.  Why create a ward system – presumably to increase accountability – and then hobble the ward representative’s ability to address constituent needs and concerns?  

For example,  a group of residents in Ward 1 have a concern about a  drainage problem.  They ask their council member to address the issue but the council member cannot approach the city engineer or the Public Works Department.  The charter prohibits it.  The council member must present the matter to the City Manager who, in turn, presumably would ask the city engineer to investigate.  Then what?  Who knows?

Or imagine a constituent asks a council member a property assessment question.  The council member is not allowed to speak to the city assessor.  This is not representative government and it will not work.

Other Views

It is noted that two former commissioners of public safety, Ron Kim and Chris Mathieson, have come down squarely on the side of the proposed charter.

Former Mayor Ken Klotz argues in favor of keeping the current government which, notwithstanding the significant administrative and budgetary changes approved in 2001, has maintained the same form since 1915.  Ken specifically cites a council made of representatives of six city wards rather than at-large representatives for his opposition.  

I know, campaigned for and supported all three.  As members of the City Council they often acted with the political courage all too often absent in government.  I consider them friends but on this issue I disagree with all three.

I disagree with Ken on the question of form not on his opposition to a ward system.  And I believe Ron and Chris’s advocacy for a council/management form is misplaced because, again, it fails to establish a separate legislative and executive branch.

And I think Barbara Lombardo’s recent piece makes for a strong argument against the proposed ward system.

There are other legitimate concerns about the proposal but these are enough for now.  If adopted I hope the community will not end up with buyers’ remorse.

Times Union Watch: Zombie Accusations Resurrected By Newspaper

Back in August, 2019, Bill McTygue and Ann Bullock accused Eddie Miller of the Independence Party and the members of the Saratoga Springs City Council of colluding in an agreement over the purchase of energy contracts.

Briefly, the city’s Ethics Board investigated the allegations and found them without merit. The police investigated the allegations and declined to bring charges. McTygue and Bullock complained of a conspiracy in city hall and brought their allegations to the New York State Attorney General.

At the time I wrote a long post reporting on the cynical charges the two had brought forward in their attempt to smear the members of the City Council during an election year. As leaders of the group heavily involved in trying to unseat the Mayor and City Council members last fall, McTygue and Bullock used press coverage of their allegations to try to portray the city government as a cesspool of corruption.

Here is a link to my post.

Two Stories From Alternate Universes?

So way back in the August 19, 2019, edition of the Times Union the story of the original allegations was reported under the headline:

“Complaint dismissed by Saratoga Springs officials goes to state Attorney General’s office”

Now, more than a year later (October 13, 2020) the same reporter (Wendy Liberatore) publishes a new story under the headline:

Two Saratogians ask AG to review city gas, electric bids”

Does this new story’s headline sound rather familiar? Yes, except this headline is missing the inconvenient reference to the allegations having been dismissed a year ago.

Now a reasonable person might have expected the new story to inform the readers that this is the second time McTygue and Bullock have brought their complaints to the Attorney General and that after more than a year the Attorney General’s office has declined to bring any action.

Again, a reasonable person might have expected the reporter to contact the Attorney General’s office to find out why, since August of last year, the Attorney General has apparently taken no action.

A reasonable person would be disappointed. Instead, although there is a brief mention of a police investigation that dismissed McTygue’s and Bullock’s accusations the story reads as though these are new, shocking revelations. There is no mention that their charges were discredited over a year ago by the city’s Ethics Board and that the Attorney General had apparently decided not to pursue them over the past fourteen months.

McTygue and Bullock are among the leadership of the group campaigning for charter change. It is probably not coincidental that McTygue and Bullock waited a full year, until just before their charter proposal would be on the ballot, to try to bring their allegations back to life. Regrettably, the Times Union now serves as the hand maiden to their campaign. It repeats McTygue’s and Bullock’s harsh condemnation of the City Council as made up basically of criminals. This is consistent with the charter change narrative that somehow the commission form of government is particularly subject to corruption and needs to be replaced. It is not surprising then that the same day the TU article was published, McTygue visited the Saratoga Works website (they oppose the charter) and put up a link to the story.

Here are links to the original story and the new one.

Article from Times Union By Wendy Liberatore August 19, 2019

Article from Times Union By Wendy Liberatore October 13, 2019

Pro-Charter Campaign: There is the truth, There is hyperbole, and Then There Is…

The website promoting charter change has a professionally produced video that makes a variety of claims regarding the charter’s benefits. As with many of the materials produced by this group, the claims made in this video exaggerated to the point of being untrue.

This particular video focuses on supporting their claim that charter change will save the city money. As usual, though, the pro-charter people do not simply assert that their form of government will save money which may or may not be the case in the long run. Instead they produce a figure of $100,000.00 that will be saved “right off the bat.” A hundred thousand dollars is a conveniently large number to make a point (in other parts of their materials they seem to be claiming the savings will be $300,000), but I am not sure what it means to produce a $100,000.00 savings “right off the bat.” Even if their charter produces savings, it would seem reasonable to assume that it would require some time to achieve this. This kind of subtlety is lost in our age of excess and inflated promises. This is the kind of shameless sloganeering more suited to late night advertising for cancer cures.

In another part of this video they suggest the city is currently spending millions of dollars on lifetime health insurance for Commissioners.

Now it is true that the city has a policy that provides health insurance for life for members of the Council who serve for ten years or more. It is also true that health insurance is expensive. Currently the annual cost for health insurance for the city is roughly $22,000.00 for a family, $12,000.00 for a couple, and $6,000.00 for a single person.

But in addition to serving ten years, the official must be 55 years old before he/she can begin benefitting.

There are no former Commissioners or Mayors receiving this benefit. As far as I can tell, only three people have ever benefitted from this and all are long dead.

It is also reasonable to believe that persons passing the age of 55 will have few children of an age to be eligible for family coverage. The number of such dependents, if any, can be expected to dwindle over time. In general, those fortunate enough to become eligible for the insurance would receive either $12,000.00 per year (couple) or $6,000.00 per year (single).

It is also possible that when the beneficiary becomes eligible to receive Medicare that the cost to the city would be further reduced.

Now people may indeed feel that even this is too much.

The problem is that this misleading banner (see below) suggests to the public that we are currently bleeding money. MILLIONS OF DOLLARS!!!! The fact is that we are not paying this benefit to anyone currently.

Even over time, if you run the numbers you cannot get anywhere near a million dollars let alone millions. For example, a couple receiving $12,000.00 a year in health benefits from the age of 55 to 85 would theoretically cost the city $360,000.00. Now I am not suggesting that that is not a lot of money and I am not arguing over whether it is merited. What is undeniable is that it does not add up to millions.

The thing is that “MILLIONS” has the same appeal as $100,000.00. It is a number grabbed cynically by the advocates for charter reform meant to excite the public rather than inform.

Here is another clam they make:

The proponents of charter change declined to interview the deputies when they crafted the first version of this charter in 2017. They interviewed many other employees of the city, but never the deputies. They made it clear in the earlier campaign that they viewed these deputy positions as simply patronage jobs. Their recent financial analysis supports this narrative as the analysis gets most of its purported savings by eliminating the deputies and assumes that the city manager will be able to absorb their work load as well as the work of the four Commissioners

It may be possible that there is duplication of work with the deputies but describing the process of eliminating them all and expecting the proposed city manager to take on all their duties as “streamlining “is again a case of hyperbole.

It’s as though they don’t really believe in the benefits of their charter and have to gin them up to convince the public to vote for this change.

Defenders Of County Administrator Hellwig Called For Due Process, Uh Oh! FOIL Reveals that Process Doesn’t Exist

The defenders of Spencer Hellwig denounced the Supervisors who attempted to terminate his employment accusing them of allegedly denying Hellwig due process. Curious about the “process” they were referring to I submitted two Freedom of Information inquiries.

The first was a request for the contract between Spencer Hellwig and the Board of Supervisors. Hellwig is an “at will” employee which means theoretically he can be dismissed without cause as long as the basis of the dismissal does not constitute a violation of law like discrimination based on race, age, etc.

Still it is regular practice to contract with an at will employee spelling out the terms of their employment in a written document. It is possible that such an agreement might provide some kind of protection.

The response to my FOIL was that there is no such contract.

I then FOILed the Board of Supervisors for any documents pertaining to the process for dismissal of the County Administrator. In response I received a copy of the local law establishing the position of County Administrator which was adopted on November 20, 1979.

This is a link to the document.

There is nothing in the document that establishes any procedures (processes) for the termination of the County Administrator. The closest relevant text in the document reads:

The County Administrator shall be appointed by the Board of Supervisors and shall serve at the pleasure of the Board

Section 3

There is a delicious irony that these Supervisors are complaining about an alleged failure to adhere to due process as it applies to terminating the County Administrator given their own flagrant violations of county policies as documented in the report by the law firm E. Stewart Jones Hacker Murphy on the overtime pay fiasco. It borders on the bizarre for them to complain about the lack of due process for Hellwig when they never bothered to establish any formal procedures that would address the termination of a County Administrator.

There may be case law that requires some sort of process beyond a resolution simply terminating a County Administrator but if so they should have established rules adhering to whatever those precedents required.

I thought it was instructive that the letter sent by the attorney representing Hellwig went on at some length about the failure to provide his client with due process but failed to cite any specific, required action that had been violated. In other elements of the letter, he backed up his defense with specifics but not as regards this due process that was allegedly denied his client.

The Mystery: Process? What Process?

Community News is published and distributed in Southern Saratoga County. It is a publication of the Saratogian Newspaper. On October 9, 2020, they published a story with the headline: Next step in county compensation controversy a tough call

As background, the Board of Supervisors established a special committee to review the report by the law firm Jones, Hacker, Murphy regarding the overtime pay fiasco to make recommendations as to what, if any, disciplinary action should be undertaken as a result of the disclosures in the report.

…to receive recommendations from said labor counsel as to what, if any, disciplinary action may be appropriate against any employee named in the report; to determine and formulate recommendations of the committee to the Board of Supervisors as to what disciplinary actions, if any, may be appropriate against employees named in the report; and to convey such recommendations of labor counsel and the committee to the Board of Supervisors.

From the resolution establishing the committee

The committee subsequently decided to focus on five issues. The following items have been taken verbatim from the minutes of the special committee:

  1. The report concludes that named officials informed County staff that their workers who showed up “in-person” would be paid time and a half before the Board of Supervisors (BOS) discussed and voted to form the COVID-19 Oversight Group (Resolution 84-2020)
  2. Several named officials presented incorrect information to the BOS regarding other local municipalities paying time and a half to “in person” essential workers
  3. Named officials improperly paid time and a half to several individuals whose pay is subject to legislative action and permissive referendum
  4. Named officials appear to have violated open meetings law
  5. Named officials failed to communicate effectively with the BOS, labor unions, and nonunionized employees regarding when time and a half would end

The story states that in light of the fact that the special committee is dealing with a personnel matter, their deliberations cannot be accessible to the public. In the event that they decide on some action short of termination, then the results will remain secret.

This blogger would observe that even the termination of a high profile employee like a county administrator would probably remain secret in that the county would not formally announce the termination. Anyone inquiring about the fact that a particular county administrator was no longer employed would simply be advised of their dates of employment. The circumstances of their leaving the position would remain privileged.

There are a number of troubling things about this article. Take for example this quote:

If the committee chooses to terminate (my emphasis) there will be a hearing with that individual or individuals so that they have their due process. Then a hearing officer will look at the case or cases and see if the committee overstepped its bounds.

Community News October 9, 2020

This committee does not have the authority to terminate anyone. I expect the reporter or whichever member of the committee the reporter talked to either misspoke or was ill informed. Authority to fire or otherwise discipline the county administrator rests with the full Board of Supervisors.

What I find most troubling is the reference to a “hearing officer.” Is there going to be a formal hearing? If so, what will the standards be? How will a hearing officer be chosen? I also have trouble understanding what is meant by the committee “overstepping its bounds.” What bounds?

Even more extraordinary is this:

Also under seal would be any changes the committee recommends to see that such a situation like the one surrounding the time-and-a-half compensation plan never happens again.

Community News October 6, 2020

There is no reason that recommendations made to the full Board of Supervisors about changes in county procedure should be privileged. It would be a violation of the Open Meetings Law if they discussed these kinds of recommendations in executive session. They are public policy issues.

Eric Connolly is the Supervisor from the Town of Ballston who chairs this committee. He is quoted in the article as follows.

“There could be stiff reprimands, and we could put together a robust employee improvement plan but people will never know about it,” Connolly said last week. “If it’s internal, then things cannot be revealed. That’s what our labor attorney is telling us.”

October 6, 2020 Community News

I am sorry, but there is something terribly wrong here. I don’t know if Supervisor Connolly is confused, if the reporter misquoted him, or if the labor attorney is giving problematic advice. I am at a loss at what he means when he states “If it’s internal, then things cannot be revealed.” What does he mean by internal?

In the article he worries about litigation. He told the newspaper:

“We really want to be as transparent as possible and let the public see the result, but we do not want to put the county at risk of a lawsuit.”

Community News October 6, 2020

I am sympathetic with his caution. Spencer Hellwig is being represented by a national law firm and the County needs to proceed cautiously, but if the report in the Community News is to be believed, he and the committee are potentially proceeding in violation of our own State’s requirement for public access.

The Need For Clarity

So the article raises many questions about what the process actually is. The County responded to my request for all pertinent documents regarding procedures for disciplining a county administrator and basically there were none.

All of this seems to be simply a continuation of the gross mismanagement that the Covid overtime pay raises so clearly exposed.