I have a corollary. The more a politician appears in the newspapers and the more committees they establish, the less actually gets done.

Too often citizens are most impressed by the charm of their elected official or by the simple fact that a politician knows their name and are oblivious as to what they are actually achieving. This is hardly surprising. People live busy lives just getting the basics of job and family maintained. They have little time to monitor their government the way this blog attempts to do.

Meg Kelly was the unpolitician. She was not one to schmooze. She did not spend much time going to social events that did not require her presence.

While in a one-on-one situation she could be quite warm and charming, her public persona was all business. She had an austere manner of running Council meetings. More than once, I was the subject of her stern command that my two minutes at the microphone were up during the public comment period. City Council meetings were all business. They were not a social event.

I know that many people were put off by her style of dealing with the public. Not me. What I look for in an elected official is how much do they actually achieve. Most people also have little idea how much work is required by elected officials such as the mayor to get things done. Most people take for granted the fact that the city is so attractive and liveable.

I asked Mayor Kelly to make a list of the things that she and the Council were able to achieve in the last four years.

Quite a few of the projects on her list had languished for years uncompleted by previous administrations. Patiently working with all the parties Mayor Kelly was able to find solutions that allowed these long sought-after projects to move forward to fruition.

An eastside Fire/EMS station is one example of a project that was routinely identified as a priority by city officials for years. Chris Matthiesen, when he was the Public Safety Commissioner, made the most serious effort to pursue it but without success. During her time in office, Mayor Kelly brought together the New York Racing Authority and representatives of the state and finally made a deal in which NYRA agreed to allow the city to build its facility on their land at no significant charge. This was quite an achievement.

During her predecessor’s time in office, the city’s plan for a Geyser Road bike/pedestrian trail was hobbled by conflicts between the city and property owners and the town of Milton. These conflicts curdled into litigation that basically suspended the project. Here again, Mayor Kelly patiently worked with the parties to resolve their concerns and today we have our new bike path.

Then there were the nitty-gritty, unsexy changes in the city like improving the Board of Plumbing Examiners, something most Saratogians don’t know even exists. The state requires that the city have a board that sets up exams for certifying plumbers. The city statute for this board had not been revised in some thirty years.

State law requires that plumbing services be done by a certified plumber. There is a wrinkle. In addition to state licensing procedures, each municipality is required to establish a written and a practical test in order for an individual to get what is called a “master plumber” certification. The benefit of passing the local test is that fees the city charges for a project are radically discounted if the job is overseen by a “master plumber.”

The city had bumbled along with an outdated statute with confusing language and dubious requirements. For example, an applicant to become a master plumber used to be required to have a brick-and-mortar facility in the city.

Under Mayor Kelly’s watch the city established more appropriate tests and procedures to facilitate the ability of new plumbers to do business in the city.

I highlight this because it is an example of the kind of rigor with which Mayor Kelly went about strengthening the city’s internal operations. It’s not a very high-profile change, but if you were a plumber wanting to work in Saratoga Springs it was important and something the city had not properly addressed in years.

There were, of course, the larger multiple challenges she faced with COVID, the fire in city hall, and the street demonstrations by Black Lives Matter and their volatile participation at City Council meetings.

Perhaps the most impressive achievement by the Mayor during her tenure was the way the city dealt with the crisis brought on by the fire in City Hall. The city operations had to be reorganized and moved to other locations and then, following the rehabilitation of City Hall, moved back. The swiftness with which this was successfully done was a credit to both her leadership and the teamwork of her colleagues on the Council.

I asked Mayor Kelly if she would provide me a list of accomplishments and they are as follows:

1. Changed format of State of the City event. Rather than simply limit presentations to the Mayor’s office, Kelly structured the event to allow all members of the Council to address the public and share their department’s achievements and goals for the coming year.
2. Eight months into Kelly’s first term the city was faced with a monumental disaster. A lightning strike set off a fire that made city hall uninhabitable. Working with her colleagues on the Council they were able to reopen city operations within five days using the Recreation Center. This also required the Recreation Department to move its programming across the city with the help of the School District, Skidmore College, the YMCA, and Gavin Park.
3. The City Center had set a goal to construct a parking facility for event vendors and participants that would also address some of the parking needs of downtown merchants. The project languished due to an acrimonious lawsuit. Kelly, working with the stake holders, facilitated a deal to resolve the suit which led to the construction of the facility.
4. The proposed Geyser Bike and Pedestrian Trail had been in the works for 15 years and was bogged down in three separate lawsuits. Mayor Kelly facilitated an agreement by all parties to end the lawsuits. The trail was successfully completed.
5. Secured land for 3^rd EMS station on Henning Rd, working with NYRA, NYS and FOB.
6. Create bike lanes on Henry Street
7. Created many affordable housing units: Finished Intrdata (158), Finished Promenade (87), Finished additional units at Terrace (240)
8. Canceled gun shows at City Center.
9. Gun buy back , 85 guns taken in, (Tom Roohan raised $10,000.00 for program).
10. Organized Police Reform Task Force under Governor’s executive order.
11. Created homeless court with Judge Vero.
12. Helped organize and promote food drives for Mother Anderson, Franklin Community Ctr and Snacpac. Fed hundreds for several months.
13. Secured more parking (45 spots) at the recreation center. Developer donated land to city.
14. New Playgrounds at Northside and Westside Parks. New equipment at Eastside Rec
15. Juneteenth Holiday
16. Reinstated Plumbers Board (Years went by without one)
17. Railroad Run Connector Haller Lane (between path and Alger Street, named for Doug Haller. I worked to get land donated by Empire State College)
18. Secured 1.9 Million Grant for Missing Sidewalks
19. Submitted State legislation to allow Deputies to live in the county not the city, giving a larger pool of applicants.
20. Secured temporary housing for Code Blue at the Holiday Inn during outbreak of COVID (not one person came down with COVID)
21. All 7 city unions’ contracts are up to date (negotiations traditionally dragged on for years)
22. Negotiated all unions to not take 2% increase for 2021
23. Testified in Albany to save Video Lottery Funding 2020 & 2021(Both times funds were fully restored)
24. Dedicated MaryLou Whitney Park at Union and Circular
25. Progressed with the Downtown Connector for the greenbelt
26. Introduced RISE to Mackey Ford (new van to transport homeless) donated a vehicle (related to homeless court).
27. Secured picnic tables for Congress Park from NYRA at no cost
28. 2019 Completed Recreation Master Plan
29. City is now recognized as a Bronze Certified Climate Smart Community.
30. 2018 The final sidewalk section of “Safe Routes to School” was completed on Geyser Road
31. Bikeshare was successfully launched and has continued with great success.
32. In 2018 The City was awarded $2.7M in grant funds for projects like the Greenbelt Downtown Connector project, Electric Vehicle (EV) stations and a Natural Resource Inventory
33. Land use board applications are now submitted electronically on the City’s website
34. Helped facilitate Code Blue temporary home through strong working relationships among city, county leaders.
35. 2019 The City’s Zoning Map brought into compliance with the 2015 Comprehensive Plan, as required by law.
36. Completed UDO

In its January 4, 2022 edition, The Daily Gazette reported that the following day (January 5, 2022), Black Lives Matter activist and Schenectady School Board member Jamaica Miles was due in court to face charges over her actions in a July 14,2021, protest in downtown Saratoga Springs. The Gazette coverage of Ms. Miles’ court appearance was extensive and differed significantly from the brief and inaccurate account in the Times Union.

Miles complained to the Gazette that she was not offered an adjournment in contemplation of dismissal (ACOD) by the Saratoga County District Attorney who had offered this to others arrested for their actions at the same event. An ACOD basically offers a defendant the dismissal of the charge if they are not re-arrested for a specific period of time.

The Gazette reporter, Brian Lee, followed up with Saratoga County District Attorney Karen Heggen who told him that Ms. Miles had been offered an ACOD by Saratoga Springs City Court Judge Francine Vero but had turned it down.

Lee reported that “Heggen questioned why it would matter that her office hadn’t offered an outcome that Miles had already rejected.”

Miles nevertheless continued to insist that since Heggen had not offered her an ACOD she was being treated differently from other defendants because of her politics even though she had already rejected the same offer from the judge.

Miles alleged that the District Attorney’s office was somehow part of a campaign launched by retiring Assistant Police Chief John Catone to shut down Black Lives Matter.

“It is consistent with the statement that was made by the assistant chief of police, and it is consistent with the idea that the DA’s office is possibly even supportive of the notion of preventing other people from exercising their First Amendment rights by intimidating the leaders of the Black Lives Matter movement locally, and that’s myself and Lexis Figuereo,” Miles said.

“I’ve done my research and talked to lawyers and other folks,” she said. “The unlawful imprisonment charge is ridiculous, and the DA refuses to drop it, which I believe is politically motivated.”

Daily Gazette January 4, 2022

Follow up Story

There was a follow up story in the January 5, 2022, edition of the Daily Gazette that included a video of Ms. Miles attacking both the police and the District Attorney’s office for what she alleged was retaliation.

The story reported that Judge Vero, for the second time, tried to resolve the matter with an Adjournment in Contemplation of Dismissal (ACOD).

Assistant District Attorney Joseph Frandino, representing the Saratoga County District Attorney’s office, declined Judge Vero’s offer. Instead, he offered to reduce the charge against Miles from unlawful imprisonment down to disorderly conduct. Miles declined that deal.

Judge Vero asked the prosecutor why he had turned down the ACOD. The Gazette quoted Frandino who said, “it is my understanding that neither side would be willing to consent to an adjournment in contemplation of dismissal.”

Mile’s attorney, Thomas Keefe, responded that since the county didn’t consent, any response from the defendant was irrelevant.

According to the story, the reporter asked Miles whether she would accept an ACOD if the assistant District Attorney changed his position. Miles responded, “I’m not willing to discuss that right now.”

Instead, Miles told reporters that the DA’s office actions were simply an attack on Black Lives Matter and meant to intimidate people from exercising their rights.

The Charges

In some impressive reporting, the Gazette reporter, Brian Lee reviewed the charging document in the Miles case along with other related public documents.

Miles is charged with having “intentionally and unlawfully restrained the movement of another person by physically placing herself in front of a motor vehicle on Broadway and Phila Street.”

The Gazette stories are behind a paywall but the newspaper does allow a minimal number of stories to be read each month without charge. The story goes into some detail regarding the events that led to Ms. Miles’ arrest. I would encourage people interested in this to go to the Gazette website.

According to the Gazette, documents related to the case indicate that the passenger whose car was allegedly trapped by protesters had called 911 twice. Following this, the group retreated. According to the Gazette, the passenger statement included, “I thanked them and they continued to walk away.”

Briefly, Ms. Miles’s attorney argued that the “passenger hadn’t alleged that he had been ‘confined.'” The attorney argued that unlawful imprisonment requires restraint. Miles’ attorney requested that the case be dismissed on a motion “in the interest of justice.”

According to the Gazette, Miles’ attorney argued that there are eight elements to a motion to dismiss in the interest of justice. He argued that the seriousness of the offense is one of them, and it is in dispute.

The following is from the Wikipedia entry on “Motion in the interest of Justice” and it identifies the eight elements that must be met:

More recently, the statute has been employed to reach cases in which the court found for a variety of reasons that the ends of justice would be served by the termination of the prosecution.^[8] Indeed, it has been stated that the use of the statute depended only on principles of justice, not on the legal or factual merits of the charge or even on the guilt or innocence of the defendant.^[9]

The provisions of N.Y. Crim. Proc. Law §§ 210.40 and 210.45 require a hearing when either the prosecution or the defendant moves to dismiss the indictment in the furtherance of justice.

At the hearing the parties may, if they are so advised, present such evidence and arguments as may be pertinent to the interests of justice. Among the considerations which are applicable to the issue are (a) the nature of the crime, (b) the available evidence of guilt, (c) the prior record of the defendant, (d) the punishment already suffered by the defendant, (e) the purpose and effect of further punishment, (f) any prejudice resulting to the defendant by the passage of time and (g) the impact on the public interest of a dismissal of the indictment.

Wikipedia

The judge declined to take action on Miles’ attorney’s motion and an evidentiary hearing was set for January 20, 2022.

Miles held a press conference on the steps of city hall the video of which is available on the Gazette website.

The Times Union Misreports

The Times Union resident gossip columnist, Wendy Liberatore, published an article on the Miles case in the January 5, 2021 edition. She incorrectly wrote:

Accusing the Saratoga District Attorney’s Office of abusing its power and intimidating Black Lives Matter protesters a social justice advocate rejected an offer to ultimately dismiss her charges and is instead opting to go to trial. Jamaica Miles, co-founder of All of Us and a Schenectady Board of Education member, declined an adjournment in contemplation of dismissal on disorderly conduct and unlawful imprisonment charges in Saratoga Springs City Court on Tuesday morning.

Times Union January 5, 2021

As the story in the Gazette correctly reported, Ms. Miles did not reject an offer to dismiss her charges when she appeared in court on Tuesday. This offer was never made as the county Assistant District Attorney declined to sign off on that and only offered to reduce the unlawful imprisonment down to a charge of disorderly conduct.

When asked by the Gazette whether she would accept an ACOD if the Assistant DA changed his position, Ms. Miles responded that “I’m not willing to discuss that right now.” This seems inconsistent with the TU story which asserted she wanted a trial.

Support The Daily Gazette

I would like to urge the readers of this blog to subscribe to the Daily Gazette. The decline of newspapers is a threat to our democracy. Without local coverage of news, it is impossible to keep politicians honest.

The Daily Gazette is one of the last independent locally owned newspapers in the region. It has an outstanding history of fair and rigorously accurate reporting. Its latest reporter to cover Saratoga Springs, Brian Lee, follows on the heels of some really great reporters. At one time a reporter was assigned full-time to cover Saratoga County. Those of you old enough will remember the local coverage by Judy Patrick and Stephen Williams, both reporters of the highest caliber.

Unless we support papers like the Gazette, they will go the way of the Saratogian which now has almost no local news coverage.

Please consider subscribing.

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 said

Daily 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.

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Excerpt From The New York State Comptroller Regarding Who Is Public Officer

Public Officers

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.