I do not offer this lightly. In a truly disturbing series of events, Saratoga Springs Mayor Ron Kim has committed a number of acts that raise serious doubts about his competence and ethics as an attorney in his role as both Mayor and his claim to be the city’s Attorney.
On January 20, 2022, there was a scheduled evidentiary hearing in City Court over a local contractor, Jeffrey Dumont’s, failure to secure a building permit prior to work he performed on a local building he owns. The matter, City v Church Street Trust, was to be heard by Judge Jeffery Wait in City Court.
Earlier on that day, Mayor Kim appeared in Judge Francine Vero’s court attempting to act as the city’s Attorney in another code violation hearing. Judge Vero ruled that only a duly appointed City Attorney or other attorney authorized by the City Council could represent the city. She advised him that, in his role as Mayor, he could request an adjournment by citing the fact that the city did not have a duly authorized attorney. He protested her decision and she advised him to provide her with a legal basis for his challenge.
Returning to his office, at 11:52AM Kim sent an email to the City Court clerk, claiming that the “opposing counsel” in the Dumont case had consented to an adjournment.
The problem was that in the numerous hearings on this case, Mr. Dumont had never been represented by counsel. Further, the email included no cc to any alleged representative attorney for Mr. Dumont.
This prompted the City Court clerk to call Mayor Kim’s office and inquire as to the identity of Mr. Dumont’s attorney.
The person who answered the call told the clerk that Mr. Dumont had no attorney. The new story, the clerk was told, was that Mayor Kim had contacted Mr. Dumont and asked if he would agree to an adjournment. Allegedly Mr. Dumont had agreed and Mayor Kim then told him it was unnecessary for Mr. Dumont to appear at the hearing.
This prompted the court to contact Mr. Dumont to advise him that there had been a misunderstanding, that the case had not been adjourned, and that he would need to appear.
When the court convened that afternoon, Mr. Dumont appeared, but no one representing the city was present.
Mr. Dumont told the court that he had received a call from “some guy named Ron.” Mr. Dumont could not recall whether the person had given a last name. Dumont told the court that he assumed the caller was an attorney representing the city. Mr. Dumont told Judge Wait that the person he spoke to told him he did not have to appear in court.
Citing the numerous improprieties exercised by the city, the absence of an attorney to represent the city, and the fact that Mr. Dumont had been in compliance since November 2021, Judge Wait ruled that “the conviction for failure to obtain a building permit is vacated and the information is dismissed.”
Parsing Out The Mess
As part of preparing this post, I consulted a number of experienced attorneys. This analysis draws heavily from my conversations with them.
It was improper for Mayor Kim to have contacted Mr. Dumont, the defendant in the case. Professional ethics required that only the “city attorney” who is a public officer authorized to represent the city or an attorney hired by the City Council for the purpose of representing the city in this matter, had the professional authority to directly contact the defendant.
Just as disturbing, Mayor Kim had no authority to tell the defendant that he did not have to show up in court. While it is fairly common for a judge to adjourn a case at the request of both parties, it is not a given. More centrally, the only person with the authority to grant an adjournment is the court.
The attorneys I spoke with were stunned that Mayor Kim would presume to tell the defendant that he did not have to show up for his hearing.
This very likely was a breach of the New York Bar’s Professional Standards.
The email from Mayor Kim’s secretary to Judge Wait alleged that the Mayor’s office had consulted the attorney representing the defendant and that both parties had agreed to request an adjournment. In his decision, Judge Wait flatly characterized this as “untrue” because the defendant had no attorney representing him.
It cannot be stressed enough how serious sending a false statement to a judge is.
Mayor Kim blamed the error on his secretary who sent the email. He admits the error should have been corrected. He told the Daily Gazette, “I did not correct that because I didn’t actually see the email until later. That was a mistake but there [were] no misrepresentations.”
“…there [were] no misrepresentations…” How can Mayor Kim reconcile his statements that there was an error but that there were no misrepresentations?
First of all, there was no lawyer representing Mr. Dumont. How could that possibly not be a misrepresentation?
Second, where did his secretary come up with the idea that an attorney representing Mr. Dumont existed? After all, this was no simple typo. It begs credibility that the secretary was the sole author of this email.
Third, and most seriously, the letter came out of his office and both Mayor Kim and his Deputy, Angela Rella, who is also an attorney, were cc’d.
The attorneys I spoke with were flabbergasted by Mayor Kim’s response. He appears to believe that he can simply blame the error on his secretary and that he and Ms. Rella have no culpability in the matter.
Any correspondence coming out of an attorney’s office is his/her responsibility. Period…end of story.
All three of the attorneys I talked with basically told me that had an error been made by anyone in their office, they would have dropped everything to advise the court of the error and to apologize.
I cannot emphasize how egregious Mayor Kim and his deputy Angela Rella’s failure to take responsibility for this gross mistake is.
I have FOIL’d the city for all correspondence between the city and the court regarding this case. I suspect that Kim and Rella never acknowledged to the court their error let alone apologized.
This was an extremely grave violation of the New York State Bar’s Professional Standards.
The Court Does Not Work For The Mayor
The Mayor asserted to the Daily Gazette that he was going to appeal the dismissal of the case “on the premise the court hadn’t contacted his office to inform him that the evidentiary hearing on the permit dispute would take place on January 20. By not contacting him, the court denied the city the right to appear for the court matter.”
This argument is beyond strange. Why did he send an email to the court asking for an adjournment if he did not know there was going to be a hearing? Why did he call the defendant and tell him not to show up for the hearing that day if he didn’t know that a hearing was to take place? Did the Mayor believe that he had the authority to adjourn the hearing or that it was the court’s responsibility to contact him (the mayor) to tell him that the case was still on? How could Mayor Kim, who is a practicing attorney, believe that it was not his responsibility to check with the court to see if the judge had indeed granted the adjournment?
It borders on the comic that he complained to the Times Union that he was “right downstairs” but Judge Wait proceeded anyway. Of course, the judge proceeded anyway. He never granted the adjournment.
Nobody sprung this case on the city.
Did the Mayor think that telling this to the media would exonerate him with a public unaware of the legal issues and procedures?
As background, the court works with the city through the office of the City Attorney. The court routinely sends its calendar to the office of the City Attorney and not to the Mayor.
If Mayor Kim wanted to know what cases were pending on January 20, 2022, he should have consulted the secretary (the city has no Attorney) in the City Attorney’s office to check the calendar.
The Mayor Does Not Determine Whether A Case Will Be Adjourned
Dubious as even his call to the defendant was, Kim had no right to tell Mr. Dumont he did not have to appear in court. If, as alleged by Mayor Kim, Mr. Dumont had agreed to an adjournment, it still required an appeal to the court to accept their request. While requests by two parties in a case for an adjournment is routinely approved, the privilege to adjourn a hearing lies solely with the judge. Kim had not been notified that the judge had granted an adjournment when he told Mr. Dumont not to bother to show up in court.
I think it is fair to speculate that Kim went to these extremes to avoid appearing in court because of his earlier experience that day before Judge Vero.
The Mayor Didn’t Listen
Mayor Kim had been advised by Judge Vero that while he could not prosecute the code violation, he could as Mayor, request an adjournment.
Why didn’t the Mayor take Judge Vero’s advice and appear in Judge Wait’s court simply as the Mayor, lacking a City Attorney, requesting an adjournment until such time as the city secured someone to represent the city?
The result of his not appearing was that the case was dismissed. The seriousness of losing this case lies firmly at the Mayor’s feet.
Mayor Claims He has Appeared In Court Before
Mayor Kim told the Daily Gazette that he had appeared in court before, implying that he had some sort of history of handling city cases. In fact court cases involving the city have been routinely adjourned since Mayor Kim took office because the city has no one to represent it. The appearance before Judge Vero when she informed him he could not act as the City Attorney in her court was his one and only appearance.
The Mayor Claims He Can Appoint Himself To Be City Attorney
Mayor Kim has claimed to the local media that he can appoint himself as the “City Attorney.”
This is a link to multiple documents that demonstrate that he is not allowed to do this.
This is just one of the opinions cited in the attachments:
It’s Vince DeLeonardis and Tony Izzo’s Fault
In the Daily Gazette article Mayor Kim blamed the city’s previous attorneys who handled these cases for the mishaps in the Dumont case. “For instance,” the Gazette reported, “Kim complained that the city doesn’t have an existing file on Dumont. The new mayor said he had to do research just to find his [Dumont’s] phone number.”
Pardon this snarky observation, “Wow!” There is a comprehensive file on the Dumont case ,and it can be found in the Code Enforcement Office. The idea that there is no file is such an extraordinary accusation. The Code Enforcement Office has been the repository for these kinds of cases through multiple administrations. The code enforcement officers need these records to do their jobs.
As an aside, without a City Attorney, Code Enforcement is now very limited in their ability to take action against code violators in the city as they cannot take these violations to court.
Adjourn, Adjourn, Adjourn
Kim complained to the Gazette:
“If it had been resolved in November, it would never have hit our calendar. That’s one of the problems with the former city attorneys — that they will just adjourn, adjourn, adjourn. That costs the city money. It’s not fair to taxpayers, and clearly the judge didn’t like it.”Mayor Ron Kim January 29, 2022 Daily Gazette
Ironically, every case that has come before the court since Mayor Kim took office has been adjourned because the city has no City Attorney.
Who Leaked The Document To A Local New Site
The decision to dismiss a criminal hearing triggers the sealing of that case. The case in effect does not exist for anyone doing a search.
Copies of the decision went to the defendant, the City Attorney’s office, and the Mayor’s office.
The Foothills Daily Business Review ran a story in which they directly quoted from the document so someone provided it to them.
I spoke to the City Attorney’s office and was told I would need to FOIL for it.
I did some more investigation in light of the fact that in the past, either the City Attorney or the Assistant City Attorney reviewed documents before they were released to make sure they were covered by FOIL. The process of reviewing a FOIL can involve redacting (blacking out) sections of a FOIL’d document. Currently, the responsibility has been assigned to the Human Resources Department. Another reason why the city should not go so long without an attorney.
So the document did not come from the City Attorney’s Office.
I contacted Jeffery Dumont, the defendant in the proceedings. He told me that he knew nothing about the article in the Foothills Business Daily Review (FBDR). (I sent him a link).
So it appears that the document was provided to the FBDR from someone in the Mayor’s office.
I also did some further research about what kind of protections existed on a decision that is sealed.
According to New York State Law, only the defendant has the right to release such a document. Any other party would be subject to a suit for releasing it.
I don’t think it unfair to speculate that the Mayor released the opinion. He may have thought that he would get ahead of the events that would reflect badly on him. There is also the reasonable chance, given his history, that he was unaware that providing it would subject him and the city to liability.
No Playing Off Judges
When the Mayor’s Office contacted Judge Wait, they had an obligation to advise him about Judge Vero’s ruling that the Mayor could not represent the city in court.
Again, I was told by the lawyers I spoke to that this was another violation of New York State Bar Professional Standards.
As should be apparent, Saratoga Springs is in desperate need of a City Attorney.
It seems regrettably necessary to ask, what competent attorney would take the job of City Attorney in this kind of administration?