State Opinion Counters Kim; More Legal Missteps and Misstatements At Council Meeting

At Tuesday (January 18, 2022) night’s Saratoga Springs City Council meeting, Mayor Kim dug his heels in on the City Attorney issue. Even in the light of overwhelming evidence to the contrary, he continued to insist that the position is not a “public officer” and therefore not subject to a residency requirement, offering yet more odd rationales for his opinion. Kim’s pursuit of this issue seems to be related to his desire to appoint a resident of Middle Grove to be the City Attorney. This person has since indicated she is no longer interested in the position making it strange that Kim is doubling down on this issue.

Even more troubling, though, was watching him gain support from his three Democratic colleagues on the Council for a vote that violated the Open Meetings Law and another vote that potentially violated the City Charter.

A Promise Not Kept

Readers following this blog may remember that Mayor Kim promised to answer two questions I put to him regarding how he determined that the City Attorney is not a public officer:

Who at NYSCOM provided you with the opinion that the city attorney is not a public officer?

Could you cite the actual language in section 3 of the NY State Public Officers Law supporting your position.

At Tuesday night’s meeting, he answered neither question.

Instead, he oddly offered a new piece of evidence he thought supported his claim: the case of Fischer vs Mechanicville.

That evening I looked up the case. It turned out that the case went back to 1916 when Mechanicville was transitioning from a village to a city. There has been considerable legislation and case law over the subsequent one hundred and five years since this decision. It is troubling that now this is the only specific the Mayor is offering to support his claim.

Mayor Kim then went on to assert that among other things he believed the City Council had the authority to ignore state laws such as the Public Officers Law and draft their own local law. He stated:

“even if we were hemmed in by this Public Officers Law it is very clear that we as a city council have the authority to enact a local law that would vary this [sic]. There are, as I said, several attorney general opinions on this dating back to the 1970s that sort of resolve this issue. In other words, every city council has to wrestle with whether or not they have the authority to change certain laws as opposed to whether or not only the legislature could do it. It’s very clear we could do it. So we think it’s very clear the City Attorney is not a public officer. The criteria that this case goes through so to set that out [sic]. They don’t take an oath like a district attorney.”

If in fact there were opinions issued by Attorney Generals in the 1970s, Kim never cites one that would allow the City Council to ignore state law and declare that the City Attorney is not a public officer.

In fact in 1997 the NY State Attorney General issued this opinion:

“While there is a lack of uniformity in judicial decisions as to whether municipal attorneys are public officers, in our view, a municipal attorney who is the head of the municipality’s law department, serves as the chief legal officer of the municipality, and is responsible for offering advice to municipal officials and defending and commencing actions on behalf of the municipality is a public officer.”  [my emphasis].

Here is a link to a video of his remarks.

Kim’s claim that our City Attorneys don’t take oaths is simply not true. One wonders what source he relied on for this assertion.

I contacted the previous City Attorney Vince DeLeonardis, Sarah Burger, and current City Court Judge Jeff Wait. Mr. DeLeonardis told me he had taken the oath when originally hired by Joanne Yepsen and then at the beginning of each term during Mayor Kelly’s tenure. Judge Wait told me he had taken the oath twice when serving as City Attorney under Ken Klotz for two terms. Ms. Burger served under Mayor Yepsen and took the oath.

As far as I can determine, every City Attorney has taken the oath. I have FOILed for copies of these oaths covering the last thirty years.

The NY Department of State Weighs In

Following the City Council meeting, I wrote to the New York Department of State’s Office of Local Government.

My email was brief. I asked whether the City Attorney position was considered a public office. I received the following response:

Hello John:

Thank you for your email. 

Yes, a city attorney would be considered a public officer.

Ebony Mapp, AICP

Local Government Specialist

NYS Department of State

Local Government Services

One Commerce Plaza
99 Washington Avenue, 10^th Floor

Albany, NY 12231

O: 518-992-6463

E: ebony.mapp@dos.ny.gov

W: https://dos.ny.gov/

A Violation of the Open Meetings Law

Mayor Kim’s doubling down on the City Attorney’s residency requirement was not the only troubling part of Tuesday’s City Council meeting, however. If a public body is to conduct business in private in an executive session, the NY State Open Meetings Law (OML)requires a statement identifying the specific subject that will be discussed prior to the executive session. Before going into the executive session at Tuesday’s meeting, Mayor Kim instead just read a list of all the possible subjects that New York allows to be covered in the executive session. Conspicuously missing was a statement by Mayor Kim as to the subject of that night’s session as required under the OML. He and all three of his Democratic colleagues on the Council voted for this illegal resolution. Commissioner of Public Works Skip Scirocco was not present.

A Violation of the City Charter

Title 3. Item E of the City Charter requires that “The Mayor shall submit in writing to the Council and the public a State of the City Message on or before the first regularly scheduled Council meeting in February each year.” This would require Mayor Kim to deliver, in writing, the State of the City message no later than the next City Council meeting on February 1.

Mayor Kim acknowledged this part of the City Charter at Tuesday’s meeting but noting the COVID threat and his desire to have the public physically present at the event, he offered a resolution allowing the event to occur any time prior to March 19. He received unanimous support again from his three Democratic colleagues on the Council.

I know this change in the State of the City Message may seem a petty issue to many, but the Mayor and the Council do not enjoy the privilege of cavalierly ignoring the provisions in our charter. This is simply not healthy. A thoughtful lawyer (or simply a thoughtful person) could find a better solution for this. For instance, the charter does not require a public event. It only requires that the mayor “submit in writing to the Council and the public a State of the City message ….” The Mayor therefore could have provided such a document within the time restrictions of the charter and then organized some later event for him and the members of the Council to convene with the public to review the city’s “state.” Why have he and his fellow Council members taken this action which they were clearly not authorized to do?

The City’s Business Requires A City Attorney

It appears unlikely that the City Attorney position will be filled this month. Mayor Kim has told the media that as he and his deputy, Angela Rella, are attorneys so there is no rush. He and Ms. Rella are handling the city’s legal matters.

I am not sure what exactly they have been doing, but I do know that they have not been representing the city in court. The City Attorney handles matters involving code enforcement violations and parking issues in city court. It is my understanding that those matters have had to be adjourned.

Citing the fact that he is a lawyer, Mayor Kim has also told the media that he doesn’t need a City Attorney “looking over his shoulder” in dealing with municipal matters.

I do not think it is unfair to observe that the mishandling of issues at Tuesday’s City Council meeting does not inspire confidence in Mr. Kim’s and Ms. Rella’s legal advice to the Council.

The Wider Implications

The management of this city and its Council should involve a fastidious adherence to the laws and rigorous acknowledgment of facts. These are the essential guardrails of democracy. People will make mistakes. It is the nature of being human but those should hopefully be rare and they should be acknowledged so they do not become endemic.

Mayor Kim has been openly contemptuous of the previous city administration, but he should acknowledge the rigorousness of how it did the city’s business. This was because Mayor Kelly and attorneys Vince DeLeonardis and Tony Izzo crossed their t’s and dotted their i’s when preparing for Council meetings. In a litigious age, without that fastidiousness bad things can happen.

Consider that Mayor Kim sought to employ as City Attorney someone who was legally ineligible because she did not live in the city. Had he succeeded in doing this, it potentially would have put the city at risk in any legal proceedings this person was involved in.

I am sure that Mayor Kim has nothing but the best intentions in serving the city. At $14,500.00 he is not doing it for the money. Unfortunately for him, after the City Attorney fiasco, it will make finding a skilled lawyer to serve the city that much harder. I worry about his plan to reduce the hours of the City Attorney (more about that in a later post). Hopefully he will find the right person who will help him, the Council, and the city move forward.