Times Union To Kim: Focus On Being Mayor, Quit The City Attorney Business

 The February 7, 2022, edition of the Times Union, has an editorial with the subheading “One Man, One Job,” that chastises Saratoga Springs Mayor Ron Kim for trying to act as both the city’s Mayor and City Attorney. The editorial ends with the admonition, “Mr. Mayor, you have enough on your plate: Cut the drama and hire some new legal counsel.”

One man, one job

In one of his first actions as mayor of Saratoga Springs, Ron Kim dismissed the city attorneys. He said he was dissatisfied with their denials of Freedom of Information Law requests and disagreed with advice they gave the city last year on police reform plans.

That’s the mayor’s right, of course. And it’s a strong signal that Mr. Kim is taking the city in another direction.

The next step? The mayor needs to replace the city attorneys — and not try to do their jobs himself.

That’s what the newly elected Mr. Kim has recently attempted to do, and it has caused confusion, delays and procedural stumbles in court.

He foreshadowed this possibility when he was mayor-elect, suggesting that there was no urgency in replacing the city attorneys. “I’m an attorney,” he said in December. “My deputy, Angela Rella, is an attorney. We won’t skip a beat advising the city.”

Being city attorney is a full-time job. So’s being mayor — which is what voters elected Mr. Kim to do.

And with state Attorney General Letitia James investigating the city police department’s handling of Black Lives Matter protests, the last thing Saratoga Springs needs is more distractions.

Mr. Mayor, you have enough on your plate: Cut the drama and hire some new legal counsel.

Times Union Editorial February 7, 2022

Mayor Kim’s Plan

While I agree with the editorial, Mayor Kim’s plan for hiring new legal counsel for the city is troubling.

He has announced that he wants to hire only one part-time City Attorney to replace the city’s previous full time City Attorney and part time Assistant City Attorney. This attorney would “average (my emphasis) thirty hours a week.” Keeping track of those averaged weekly hours should be an interesting challenge for the Human Resources Department.

So under Kim’s plan, the city will go from having a City Attorney for 40 hours a week and a part-time Assistant Attorney for up to twenty-nine hours a week for a total of sixty-nine hours, down to one part-time attorney for thirty hours a week. It is also important to note that both former City Attorney Vince DeLeonardo and former Assistant City Attorney Tony Izzo regularly worked considerably more hours a week than they were contractually obliged to.

Kim claims his plan will save the city money and cited the legal expenses of Jamestown, New York as evidence that Saratoga Springs should be spending less on attorneys. While Jamestown may have a similar population, it does not have the challenges that a successful tourist town like Saratoga deals with nor the extraordinary housing explosion our city has seen in recent years.

Kim has made reference to how much the city has been spending on legal fees, but he has presented no evidence to prove these expenses were not justified. He has not presented any kind of thorough analysis that shows how much time and expertise is required to meet the city’s legal needs. Without that kind of information, it is difficult to understand how he can be confident one part time attorney will be sufficient or that the city will save the $50,o00 to $100,000 he has promised.

Although appointed by the Mayor, the City Attorney actually works for the entire City Council, providing legal services to the Commissioners and their departments. It is disappointing that Kim’s fellow Democrats on the Council seem uninterested in seriously evaluating whether moving back to one part time City Attorney will serve their needs and is in the best interest of the city.

At the bottom of this post is a satirical look at City Attorney expenses by my friend Publius. For all its droll observations, it includes some very unhumorous numbers. For example, it compares the $294,846.00 spent in 2009 on outside counsel when Scott Johnson was Mayor (that did not include the cost of the “part-time City Attorney”) with the $29,593.00 spent in 2020 during Mayor Kelly’s term when the city had one and a half attorneys in-house.

A Passive Council

The authority to establish the terms of employment for a City Attorney rests with the full city Council and is not the prerogative solely of the Mayor.

As readers may recall, in January the Mayor originally drafted a proposal describing the City Attorney job for Council approval and then withdrew it. So the Council has not approved the terms of employment for the position of a new City Attorney.

In spite of this, Mayor Kim posted a help-wanted ad on the Saratoga County Bar Association’s webpage that lists a salary, benefits, and hours for the position.

The job description makes no reference to a residency requirement. Kim’s obstinance regarding this issue now borders on the bizarre. Multiple sources have confirmed that without action by the City Council or, preferably, the NY State Legislature, the City Attorney, as a public officer, must live in the city.

Mayor Kim’s three fellow Council members (Commissioner Scirocco has been absent due to illness) appear unwilling to offer any resistance to the Mayor’s actions.

How can his colleagues on the Council remain silent?

Maybe a critical editorial from the Times Union, a newspaper that has been notoriously supportive of Kim, will be a wake-up call, but I doubt it.

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[JK: From Publius]

The Musings Of Publius

Thoughts on the City Attorney Question

I note that the matter of the Office of City Attorney still commands a disproportionately large share of your “Saratoga Springs Politics” posts and corresponding reader comments.

Enough already!  Time to move on.

So let’s put this silly city attorney matter to rest once and for all with an objective, non-partisan analysis.

Even a casual review of the relative merits of the full-time v. part-time city attorney model argues in favor of the part-timer. 

Perhaps the greatest, and most overlooked, benefit of the part-time paradigm is its positive economic impact on the legal profession and, in turn, the community at large.  

Since 2019, when the then city council first elevated the city attorney to full-time status, there has been a precipitous and dangerous decline in the amount of public dollars spent on outside legal services.  This must stop!   

Indeed, that city council, in an apparent rush to create a more disciplined, responsible, and cost-effective office, failed to consider its negative impact on many local law firms.  

Compare, for instance, the $294,846 then Mayor Johnson spent in 2009 on outside legal services to the $29,593 spent in 2020, the year following the institution of a full-time city attorney.  Not even a fool could fail to grasp how such economies would injure the legal community.  Is it any wonder then why the government is held in such low esteem today!

In fact, the 2018 council did not even prepare a Fiscal Impact Analysis Statement prior to its action.  Its move to a full-time city attorney was nothing more than a cynical and politically motivated attempt to reduce the cost of city government, increase efficiency and accountability and promote transparency. 

For many years prior to 2019, the city appropriated large sums to hire private, outside law firms.  Often those appropriations had to be supplemented during the course of the budget year to cover legal cost overruns or to make whole deliberately low balled cost projections.

For instance, the original 2008 budget appropriated $175,000 for outside legal services but the then-mayor spent $249,846 that year.  These costs were, of course, in addition to the $58,000 and $53,000 salaries of the part-time city attorney and part-time assistant city attorney.

In 2010 the city attorney’s office overspent its original appropriation of $150,000 for outside legal services by $59,735.  In 2011 $96,000 was originally budgeted but a total of $187,400 was spent.  

In 2012 the mayor’s office allowed the cost of outside counsel to jump from the $75,000 budgeted to $163,606, an $88,606 overrun. 

Thus, the then-mayor again demonstrated his commitment to promoting employment opportunities for private attorneys while not depriving the city attorney and the assistant city attorney of their aggregate salaries of $111,000 plus benefits.  Truly a “win-win” for all.

So the part-time city attorney proved to be a significant economic benefit to private law firms.  In turn, those firms undoubtedly spent some of that largesse at local businesses and further stimulated the local economy by contributing to their benefactor’s re-election campaigns.

For example, many of the members of the firms retained by the city may have had lunch at a local restaurant, tipped the server, and paid the city sales tax on their meal.  All of that adds up.

Let’s assume, for a moment, that two lawyers from the firm Dewey, Cheathem, and Howe, while working on a case for the city, have lunch at  Compton’s on Broadway. The check comes, in this example, to $20.  The lawyers leave a 15% or $3.00 tip and also pay $1.40 in sales tax, 30 cents of which is returned to the city.

Thus, the part-time model stood as a powerful manifestation of trickle-down economics.  The reinstatement of the part-time model will restore such economic stimuli.

Of course, the part-time city attorney remained busy by attending city council meetings, itself worthy of his $58,000 stipend. In fact, some even tore themselves away from their private practices to occasionally spend an hour or two in city hall during the day.

Naysayers will no doubt ask what these outside firms did, in the false hope of finding cause to criticize the part-time system. Critics may ask why the part-time city attorney and assistant city attorney could not represent the city or give legal advice to the land use boards or zoning amendments or even provide “oversight” of the defense team in Anderson v. City in 2010.  So much nitpicking.

Well, the following representative example of firms hired and the matters they dealt with should dispel their fallacious arguments.

A sampling of “Outside” Law Firms Hired: January 2010 – June 2011

Miller, Mannix, Schachner & Hufner, LLC, to provide legal services to City land use boards, $160/hr., $20,000 yearly cap, Motion 10-13, Jan. 19, 2010

Bailey, Kelleher & Johnson, to advise City Council on the then city attorney’s workplace violence incident, $170/hr., $1,000 cap, Feb. 16, 2010

Miller, Mannix, Schachner & Hufner, LLC, to provide legal services to City regarding zoning ordinance amendments, $160/hr. Motion 10-186, June 6, 2010

Unidentified “outside counsel” to provide oversight of defense team in Anderson v. City trial.  The council authorizes the mayor to retain counsel at $200/hr.  June 15, 2010

Harris Beach, Mayor failed to properly requisition for a monthly retainer fee of $10,000 for period Feb. 2010 through June 2010 for “general labor advice.”  To honor the $10,000 invoice the mayor had to go to the Council.  The accounts commissioner voted against the expenditure because “proper procedure was not followed.”

Fitzgerald, Morris, Baker, and Firth at $170 per hour, no cap, to provide the City with legal counsel on the actions undertaken by the Civil Service Commission in modifying the job responsibilities and abilities within the Building Department.   Motion 10-219, July 26, 2010

Fitzgerald, Morris, Baker, and Firth at $170 per hour, no cap, to provide the City with legal counsel on the recent actions undertaken by the City Civil Service Commission in restricting the ability of the assistant building inspectors to issue building permits.  Motion 10-220, July 26, 2010

Fitzgerald, Morris, Baker, and Firth, LLC at $200 per hour, no cap referenced, to defend the City in an Article 78 proceeding, matter of Saratoga Citizen, Inc., against City Clerk of the City of Saratoga Springs, Motion 10-265, August

Brown and Weinraub as legal counsel for the proposed charter revision at $200 per hour, no cap referenced. Motion 10-222, July 26, 2010

Fitzgerald, Morris, Baker, and Firth, LLC at $200 per hour to defend the City in an Article 78 proceeding in the Matter of Saratoga Citizen, Inc., against City Clerk of the City of Saratoga Springs,  Motion 10-265, August 25, 2010

Miller, Mannix, Schachner & Hufner, LLC, to provide legal services to City land use boards, $160/hr., $20,000 yearly cap, Motion 11-23, Jan. 18, 2011

Discussion and Vote:  Right to Appeal from Saratoga Citizen vs. the City of Saratoga Springs Court Decision, Motion 11-51, Feb. 15, 2011, no firm named, no $ amount specified. The mayor moved to give himself permission and authorization to direct outside legal counsel to file a notice of appeal by February 17, 2011, in the matter of Saratoga Citizen, Inc. vs. the City of Saratoga Springs. 

Discussion and Vote:  Permission to Perfect Appeal in Saratoga Citizen vs. Saratoga Springs. Motion 11-81, March 15, 2011. Mayor to proceed with the appeal as filed; to perfect the appeal and present it to the Appellate Court for determination, no specific firm named, no hourly fee referenced.

Of course, this is simply a representative sample.  But it includes the hiring of the firm of Bailey, Kelleher, and Johnson to aid the council in determining if the surveillance film of the then city attorney hitting a member of the city council in the head with a bunch of layoff notices had to be provided to the media.

Clearly, the $170 per hour fee for that service was money well spent and underscores the necessity of maintaining appropriate funds for such emergencies.

I trust that this will dispel the myth many of your readers are perpetuating, correct the misinformation abroad, and encourage an honest, fact-based public debate of such matters.  Lawyers have to eat too.

Publius