Montagnino Challenges Public Safety Commissioner Dalton’s Appointment

Jim Montagnino will become the Commissioner of Public Safety in January. Assistant Police Chief John Catone will retire in January. Mr. Montagnino contends that the current Public Safety Commissioner, Robin Dalton, has acted improperly in selecting a replacement for Catone in the last month of her term. He took his case to the media.

Times Union story

Daily Gazette Story

Foothills Business Daily

Mr. Montagnino makes a number of arguments supporting his opposition to the appointment.

First and foremost, he references the decision by New York State Attorney General Letitia James to investigate the Saratoga Springs Police Department over their handling of the Black Lives Matter protests in the city. He observes that it is unclear whether the investigation will identify members of the police department as having acted improperly. He told the Times Union in a December 2,2021, article, “It would be beyond embarrassing to discover someone who got promoted during the course of the investigation could end up being involved in wrongdoing.” He added, “As long as there is an investigation ongoing, there shouldn’t be any promotions.”

Second, he believes that Commissioner Dalton cannot legally make the appointment. He told the Times Union that “I told her [Commissioner Dalton] she did not have the authority.”

In a conversation I had with Mr. Montagnino, he argued that until the Assistant Police Chief actually retires, there is no vacancy to be filled. He expanded his argument by speculating on the issue of timing. For example, what if Catone were to retire next August? Would it be appropriate for Dalton to make an appointment in December? In our conversation, he told me that even if he has submitted his paperwork for retirement in January, Catone could change his mind. Mr. Montagnino emphasized that there is no vacancy to be filled until Catone is no longer Assistant Chief.

The Times Union story included this poorly worded text:

Montagnino is also distressed that all of the top jobs in the police department are currently not open and competitive, as per the city’s civil service rules. That means no one, other that current members of the Saratoga Springs police, can be appointed to leadership positions.

TU December 2, 2021

This language is confusing. It could be read as indicating that the appointment violated the civil service rules or it could be read that the current civil service rules somehow are not “open and competitive.” I believe that the TU meant the latter. The current civil service rules restrict applicants to members of our local police department.

Specifically, New York Civil Service laws require that “as far as practicable” promotions must draw from the local department.” They also grant bonus points for candidates based on their longevity at the local department. [see below]

Drawing on this standard, the local civil service standards limit candidates for positions such as the assistant chief to currently employed public safety staff.

Montagnino doubles down on this point asserting that “…the upper echelon [of the police department], all white, is guaranteed by civil service commission to keep it that way.”

Like Most Things It Is Complicated

I spoke at some length with Commissioner Dalton who responded to Mr. Montignino’s complaints.

Commissioner Dalton noted that she is not actually filling Catone’s position. The roster of the Police Department has two Assistant Police positions. One is currently vacant. She is filling the vacant position.

Without going too far into the weeds, the original reason for the second position is due to the fact that the Police Chief has no administrative support. There is no administrative assistant or secretary for the Chief. This is unusual for the head of a department as large as the Police Department. The idea of the second assistant was to take on some of the administrative duties. Due to funding limits and other priorities, the position was never filled.

Technically the actual appointment being filled is not Catone’s position but the second Assistant Chief. The candidates for the position are the top three scorers on the test for Assistant Chief. The idea is to provide the appointee with a transition period during which this person will work with Catone.

The three eligible candidates are all lieutenants. Commissioner of Finance Madigan has found the money to supplement the salary of whoever is selected to bring it in line with the Assistant Chief position during the transition. The transfer of funds to support the position during the final days of 2021 was approved at the December 7, 2021, Council meeting.

Commissioner Dalton told me that she had offered to let Mr. Montagnino participate in the interviews but he declined. He told me that he did not want to offer legitimacy to the process.

There is a history of late-term appointments. For instance, incoming Public Safety Commissioner Rick Wirth (R) objected when Ron Kim (D), the outgoing Commissioner, moved during his last weeks in office to appoint a new Police Chief. Wirth ended up participating in the interviews and joining Kim in a news conference to announce the appointment.

It is also important to note that, according to Commissioner Dalton, this entire process has been carefully vetted by the city’s Civil Service office and has their approval. Mr. Montagnino is a lawyer and he may disagree with the Civil Service’s interpretation of the relevant statutes but that is their determination.

In my conversations with Mr. Montagnino he acknowledged the need to fill vacancies in the department which seemed to contradict his statements to the TU, but he emphasized that he would like to make any such appointments provisional. My understanding is that the city’s Civil Service rules would not allow for provisional appointments.

Mr. Montagnino said that his information is limited given that he is not yet Commissioner.

Commissioner Dalton also bridled at this accusation that the process is not “open and transparent.” She observed that the history of civil service is that it was created to address the abuses of nepotism. The process is a vigorous one based on publicly established eligibility rules along with a competitive test. Only the top three scorers on the test can be considered.

Dalton observed that if the Attorney General were to determine that the person appointed to the Assistant Chief’s position had violated the law they would be subject to dismissal or other disciplinary acts as established by city policy and contract.

Dalton told me that she was especially disturbed by Montagnino advocating that all promotions be frozen until the AG report is issued.

Dalton told me the Attorney General has asked the city for a huge amount of documents and video. Investigations like this can go on for a very long time. To freeze all positions in the meantime she argued would have a major, negative impact on morale.

Montagnino Rethinks

In an email to me on December 8, following the City Council meeting, Mr. Montagnino acknowledged, that his original critique had been compromised. “It’s a new ball game since last night,” he wrote. “The city council created a second assistant chief position and funded it only until the end of the year.” Actually, as noted above, the position had been authorized several years earlier.

In conversation with Commissioner Dalton, she told me the department has the money to continue to pay the new appointment in January.

Should This Have Gone To The Media?

Mr. Montagnino has raised reasonable concerns regarding the appointment of the Assistant Chief. Commissioner Dalton has offered some thoughtful rebuttals. The question to ask is, did Commissioner Dalton’s actions merit Mr. Montagnino’s media event?

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Civil Service Criteria

These are the relevant references from the state’s civil service law and from the city’s provisions:

NYS Civil Service Law 52.1  ‘…vacancies in positions in the competitive class (such as Assistant Police Chief) shall be filled, as far as practicable, by promotion from among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion…‘.  When a promotional civil service examination is administered, those passing candidates receive seniority credits at 0.4 points per year (max of 8.0 points) which are then included with the score provided by NYS Civil Service.

Also, our local Civil Service Rule 13.1  ‘In order to be eligible to participate in a promotional examination or to be promoted a candidate must have been employed in a competitive class or non-competitive class position on a permanent basis in a lower grade, either in direct line of promotion or in a related or collateral line of promotion as determined by the Commission. The Commission shall determine the minimum period of such service for eligibility to enter a promotion examination, and may also prescribe a minimum period of such service as a qualification for promotion from the resulting eligible list.’

The way the job specification reads currently today, the minimum qualifications call for the Assistant Police Chief to be promotional, requiring continuous time served with the City of Saratoga Springs Police Department.