The City Attorney Ordeal Continues

As reported in my previous blog, I recently received an email from the Department of State (DOS) definitively affirming that, contrary to Mayor Ron Kim’s many assertions, the City Attorney is a public official and therefore subject to a residency requirement. We reported earlier that the residency requirement could be waived by the passage by the NY State Legislature of a Home Rule bill as had been done many times for many municipalities throughout the state.

Foothills Business Daily followed up with the New York State DOS and spoke with someone in the DOS press office.

That office did not dispute their department’s earlier determination that, contrary to Mayor Kim’s assertions, the City Attorney is a public officer. The office, according to the story, “seemed” to agree with Mayor Kim, though, that the residency requirement could also be changed through the passage of a local law. They hedged on this, recommending that the New York State Attorney General should be contacted for further clarification of its opinions on this issue

All of this prompted me to do more research.

I knew that recently the city of Mechanicville similarly wanted to remove the residency requirement for their City Attorney. They enlisted the help of Assemblywoman Carrie Woerner and Senator Daphne Jordan to get the state legislature to pass a Home Rule bill that would exempt the city from the requirement. The bill was passed just seven months ago on June 11, 2021. As noted in an earlier post, Section 3 has many similar additions exempting the residency requirement for other municipalities.

It was interesting to me that Mechanicville chose not to take the seemingly simpler route of passing a local law. What I found in my research, consistent with the caution shown by the DOS press secretary, was that the history of the Public Officers Law on residency is marked by conflicting opinions and court cases. Attorneys that I spoke with offered that the conservative approach was to opt for the state legislative solution Mechanicville chose rather than a local law.

The Path Forward

As people may recall, Mayor Kim originally crafted a resolution that was submitted for the pre-agenda meeting of the City Council regarding the City Attorney. The resolution included a whereas clause that incorrectly asserted that the City Attorney was not a Public Officer. Apparently, Mayor Kim simply assumed that if he asserted that the City Attorney was not a public officer, there was no need to even address the residency obstacle.

While Mayor Kim has steadfastly held to his position that the City Attorney is not a public officer, at Tuesday night’s meeting he allowed for its possibility and offered that a local law could circumvent the problem.

A local law is different from a simple resolution. I don’t understand all of the distinctions except that it requires a public hearing and must be registered with the state upon adoption.

I can only say that had the Mayor enjoyed the assistance of the two attorneys who he chose not to reappoint, he might have avoided the torturous and prolonged process he has followed and Saratoga Springs might now have a City Attorney.

I know he believes he is saving money by personally providing legal counsel to the city. One might hope that this experience would humble him to acknowledge that whatever his background as a bankruptcy attorney, it is not sufficient when it comes to municipal law. He would be better served by focusing on his role as Mayor and relying on an attorney with expertise in municipal law.

6 thoughts on “The City Attorney Ordeal Continues”

  1. This is an interesting subject for a variety of reasons. I disagree with John’s statement above:

    “One might hope that this experience would humble him to acknowledge that whatever his background as a bankruptcy attorney, it is not sufficient when it comes to municipal law.” The interpretation of law is not the singular domain of people who have graduated from a law school and passed a state bar exam. Passing the bar exam is basically a commercial license to charge for ‘legal services’. Many elected Judges do not have to be lawyers, yet they are responsible for upholding the law. Ron Kim is a trained lawyer licensed to practice in New York and he can read and interpret municipal law, which is a good thing for the residents of Saratoga Springs.

    Ron Kim is testing and challenging in an interesting area – the limits of local governance and the interpretation of the intent of ‘home rule’, as well as the meaning of words and terms. Having read the State Constitution and Public Officer’s Law, as well as the information on this blog, I have the following observations:

    1) Asking for clarification from a higher level of executive government is a good technique, however, executive departments often interpret things differently than the legislative spirit of a particular rule and may not reflect other positions on the issue that may conflict. In this case, the New York State Constitution says that ‘public officers’ take an oath, and Public Officer’s Law lays out residency requirements which define certain non-elected positions that are ‘public officers’ insofar as they are excluded from residency rules. However, it is not explicit that ‘all sanitation officers are public officers’ – meaning, just because you are explicitly listed as being exempt from a residency requirement, does not mean you are a public officer in every jurisdiction.

    2) There are legal implications for being a public officer as it relates to civil and criminal inquires. For example, if the City Attorney is a public officer, they have to answer certain questions in Court…thus not defining them as Public Officers may be a legal shielding strategy on the part of the mayor.

    3) Saratoga Springs cannot override a State Law on residency for public officers – it violates the notion of legal supremacy. Just like firearms restrictions that are subject to the US Constitution. Defining who is and is not a public officer when not explicit in State Law seems to be defensible for a local government. I think it would be advisable to keep a table of positions for public inspection on who is and is not a public officer for those being retained by the city. Ron Kim is trying to do just this, asserting that the City Attorney via resolution and job description is not a public officer. This is legal right up until it is challenged and defeated in Court – which would probably involve the new city attorney, not being a public officer, having to answer questions in Court, thus causing a judge to rule on the case very quickly.

    I have a feeling a judge would define a City Attorney as a public officer, so Ron Kim is expending political capital needlessly on this issue as it seems he wanted Ms. Fletcher in the position. Now he is going to lose face, have to hire someone else, and have them sworn in, thus making them a public officer.

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  2. There is no bigger threat to democracy then the Mayor trying to circumvent the City Charter by passing resolutions and not one other elected official questions him on this. And if a part time city attorney is going to save the city $70,000 then please present the data to support this figure. I have to assume the Commissioner of Accounts and/or Finance must have helped to pull the historical data to provide this figure in savings. I have looked for the data on the city website but could not find it. Transparency is what these people ran on so now is the time to prove it.

    Liked by 1 person

  3. Ron and new council seems to be missing the simple fact that being your own attorney is a conflict of interest. Call me jaded but trusting a politician to be free to interpret rules, laws etc. as they see fit does not sit well with me. Time will tell.

    How is this view wrong ?

    Liked by 1 person

  4. I trust those recently elected to office bar one, will slowly and surely discover that their interests lie not in echoing initiatives by one so arrogantly omnipotent, but that their own leadership over their departments and the interests of the electorate will undoubtably inspire them to speak with individual voices regardless of stripes and persuasions. It’s only been three weeks.

    Liked by 1 person

      1. Did I say imperious (perhaps subliminally)? Given that only one new member to this council has experience at the big table I can’t help but wonder if the other newcomers are taking a lead from one who has thus far behaved like his word rules the table. One advantage to our charter, is that it permits dialogue from each department to arrive at a consensus. No one should take their voice for granted given in 18 months, that position can be haunting.

        Liked by 2 people

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