This has been a busy week for Mayor Ron Kim as regards news media. Unfortunately, his unfiltered ruminations raise troubling signs for what is to come.
The first thing that stands out about his recent comments to the press is how ungracious the man is. He has used his interviews to regularly criticize his predecessors. For some odd reason, he seems particularly focused on Vince DeLeonardis who served as City Attorney. Traditionally it is considered good taste to simply thank one’s predecessors for their service and to say something along the lines of “we are going to head in a different direction.” In my circle, it’s called “class.” That was, however, pre-Trump.
It is impressive too, how, in his remarks to the media, Mr. Kim has been able to display such an extraordinary ignorance of state and municipal law along with city history and the city charter. It is truly impressive how much misinformation he is able to cram into so few words.
Here is a link to a Daily Gazette story. Brian Lee is an excellent reporter following in the footsteps of his predecessors at one of the last, good, local newspapers.
Ron Kim told the Daily Gazette:
Just to be clear, I am not appointing a city attorney at this point,” Kim said…”We are going to look at this whole office and then make a decision,” Kim saidDaily Gazette December 31, 2021
Citing the fact that he and his deputy are attorneys, he told the Gazette:
…there’s a lesser need to have a city attorney looking over our shoulder. I’m not saying we don’t have to have a city attorney. But I’m saying, maybe, we’re looking at a part time position. I haven’t made that conclusion.Daily Gazette December 31, 2021
So at the moment, there is no City Attorney nor does it seem there will be one in the immediate future.
The city charter does, however, require a City Attorney.
The city attorney is the city’s legal officer whose services are required in a variety of circumstances . Just to cite one item from the city charter:
Title 8. Legal Matters, 8.2 Service of Papers On The City
All legal papers served on the City shall be immediately delivered to the City Attorney’s office.City Charter
Neither Mr. Kim nor his deputy, Angela Rella have a professional background in municipal law. While it is not unusual for incoming city attorneys to be new to municipal law, they enjoy the privilege of having no other duties (such as being Mayor) while updating their skills and representing the city. They also have had the advantage in the past of having Tony Izzo, who served as the city’s Assistant City Attorney for over three decades, as a resource. Mr. Kim, however, has now fired Mr. Izzo.
The prospect that Mr. Kim and Ms. Rella will handle city legal affairs while trying to learn their new roles as Mayor and Deputy is worrisome.
There is also this language in the city charter:
Title 8. Legal Matters 8.1 City Attorney“There shall be a City Attorney who shall report to the Council regarding all legal matters affecting the City.”
“The City Attorney shall be responsible for providing legal services and guidance to the City and all its departments.
While the Mayor appoints the city’s attorney, the City Attorney serves the entire Council not just the Mayor.
How are the Mayor and his Deputy supposed to learn their jobs and run the city while providing legal support to the four other Commissioners and their departments? Also, it is not unusual for there to be conflicts between the Mayor and his/her colleagues. It is inappropriate and an obvious conflict of interest for the other Commissioners to have to rely on the Mayor and his Deputy for legal advice should there be a disagreement with any of his decisions.
This setup invites major conflict. It should not surprise the readers of this blog that a government for a city the size of Saratoga Springs constantly requires legal support. Mayor Kim’s cavalier approach to the need for substantive legal resources for the city seems especially ill-advised.
Modesty Has Its Virtues
Kim said he asked for but was told by the city’s human resources department that neither of the city attorney positions had job descriptions.
“That in itself is a problem in the sense that would seem to be a pretty basic thing,” Kim said.Daily Gazette December 31, 2021
Mr. Kim seems overly eager to find ways to belittle the past administration and to highlight his own acumen. Here he believes he has exposed a case of long-standing negligence.
The simpler truth is that the duties of the City Attorney are spelled out in the city’s charter. The charter reads as follows:
There shall be a City Attorney who shall report to the Council regarding all legal matters affecting the City. The Mayor shall appoint the City Attorney, and the Council shall establish his or her compensation. The City Attorney shall serve as general legal advisor and shall be responsible for providing legal services and guidance to the City and all its departments and entities. The City Attorney shall maintain regular and updated records and shall report to the Council on the progress of all legal matters conducted by or on behalf of the City, as required.The Council may, from time to time, engage legal professionals to provide additional legal service to the City or to any department or entity. Contracts with all such legal professionals shall be reviewed and approved by the Council.Charter Title 8, 8.1 City Attorney
It is curious since Mr. Kim chaired the last charter change commission that he does not seem to be familiar with the provisions of the current charter.
It’s Best To Rely On The Actual Law
The Gazette article went on to report that:
Kim confirmed he is interested in appointing local bankruptcy attorney Elizabeth Fletcher-Banks as potential part-time city attorney, but that hiring doesn’t appear imminent.Daily Gazette December 31, 2021
Ms. Fletcher-Banks does not live in Saratoga Springs.
Kim said DeLeonardis advised him that the city attorney had to live in Saratoga Springs, to which he obviously disagrees.
“We did the research,” Kim said, including confirmation from the New York Conference of Mayors.
“We’re talking about city attorneys,” Kim said. We’re not talking about the assistant district attorney, who are not a public officer. So here’s my final conclusion about it: Why would I hire somebody [JK:Vince DeLeonardis] who gave me that advice.Gazette December 31, 2021
Mr. Kim conspicuously omits that he had been advised by the city’s Human Resource Department that there was a residency requirement as well.
I do not know who he spoke to at the New York Conference of Mayors. I do not know how he asked his question or the credentials of whomever he spoke with, but proof of the residency requirement can be easily found through a Google search.
At the bottom of this post is the definition of who is a public officer from the New York State Comptroller’s Office. It is extremely broad and any thoughtful reader can see that Mr. Kim is wrong and Mr. DeLeonardis was correct. This is now the third time Mr. Kim has slurred Mr. DeLeonardis. Mr. Kim might consider apologizing to Mr. DeLeonardis.
More telling evidence of Mr. Kim’s failure to understand the law, however, is contained in New York State Public Officers Law Section 3. It clearly spells out the residency requirement. It includes over seventy exceptions that have been made over the years as a result of home rule bills granting specific municipalities a waiver for hiring a particular person who lives outside of their jurisdiction. These waivers are allowed when a municipality can prove that they have been unable to find a qualified person to fill a position who lives within their jurisdiction.
Here are two examples of waivers:
The first example is a local one. It allowed Saratoga Springs to fill deputy commissioner positions with individuals from outside the city. I chose this because it shows just how broad the definition of a “public officer” is.
* 70. In the city of Saratoga Springs, in the county of Saratoga, the provisions of this section requiring a person to be a resident of thepolitical subdivision or municipal corporation of the state for which he or she shall be chosen or within which his or her official functions are required to be exercised, shall not prevent a person from holding the office of deputy mayor, deputy commissioner of finance, deputy commissioner of public works, deputy commissioner of public safety or deputy commissioner of accounts, provided that such person resides in Saratoga county; provided, however that any person performing such functions or holding such office in any other city shall be a resident of such city unless otherwise provided by law.Public Officers Law Section 3 item 69
This waiver is more directly to the point as it involves a waiver specifically for a city attorney:
11. In the city of Salamanca the provisions of this section requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall not prevent a person regularly admitted to practice as an attorney or counsellor in the courts of record of this state from holding the office of city attorney or city justice of the city of Salamanca, if such person resides in the county in which such city is located.New York State Public Officers Law Section 3, item 11
So, notwithstanding whoever it was who misinformed Mr. Kim, the City Attorney position is a public office and Ms. Fletcher-Banks will have to resolve the residency issue before the city could even consider hiring her.
Release of Police Records: Not So Simple Or Obvious
Mr. Kim also told the Daily Gazette that one of his first actions as Mayor will be to release records sought by fellow blogger Barbara Lombardo in her FOIL for all police excessive use-of-force complaints.
According to the story, the city had claimed the right to deny such requests if they involved a complaint that was internally investigated and determined to be unfounded.
Now I myself have an outstanding FOIL seeking to discover discipline records from the police department.
I have a real ambivalence about the issue. It seems unfair to allow unfounded accusations against an employee of the city to be publicized. On the other hand, there is the tendency of institutions to try to cover up their internal problems so I would personally support as much transparency as possible.
Having said that, the law that passed making such records available is currently being challenged in the courts. It remains to be seen whether the courts will narrow the scope of what can be FOILed.
In an example of Mr. Kim’s intemperate attacks, he told the Daily Gazette, “I’m not going to make an argument that is going to get shut down by a judge six months from now and $20,000.00 later in legal fees, that I know can’t be sustained.”
First, one might ask, how qualified is Mr. Kim to make such an assessment? How familiar is he with the controversial law and with the ongoing legal proceedings challenging the law? I would welcome knowing but, in spite of his public championing of transparency, he does not answer my emails.
It is reasonable to expect that the local police union would attempt to protect its members and might very well take the city to court to block the release of these documents. This might then subject the city to the same potential legal fees that Mr. Kim expresses concern over.
My understanding is that the caution the city has shown reflects their desire to see what the courts decide before acting.
Mayor Kim, Dial It Back
It would appear that Mayor Kim cannot get out of campaign mode. This community will welcome a leader who brings us all together. Focusing on constructive and achievable actions is what most of us are hoping for.
Excerpt From The New York State Comptroller Regarding Who Is Public Officer
Public officers are eligible for membership in NYSLRS. This applies regardless of whether individuals are elected or appointed as public officers. You must give them the opportunity to join NYSLRS.
A public officer is a person either elected or appointed to a governmental position with the following general characteristics:
- The position is authorized by statute, resolution or charter to exercise part of the sovereign power of the governmental entity.
- The duties of the position involve the exercise of discretion on behalf of the governmental entity. If the duties of the position are routine, subordinate, advisory, or directed, then the position is more likely to be a position of employment, rather than a public office.
- The State or local enactment creating the position refers to it as an “office.”
- The position has a fixed or definite term.
- The person holding the position files an oath of office.
- The compensation for the position does not depend on the number of hours worked.
- Incumbents of the position may be compensated either through the employer’s payroll system or by voucher.
- Incumbents of the position generally must reside in the jurisdiction they are serving.
Section 10 of the Public Officer’s Law requires every public officer to take and file an oath or affirmation prior to the discharge of any of their official duties. Public officers are authorized to act in their capacity as an officer for their established term. Any public officer who is re-appointed should take and file an oath or affirmation at the beginning of each new term. In addition, these oaths of office shall be provided to the Office of the State Comptroller if requested as part of an employee/independent contractor review.
Some positions considered public offices are members of planning boards, Town or Village Justice, County Attorney and District Attorney. Other positions that may be considered public offices are Town, Village and City Attorney.