Month: March 2022

Good story on WNYT (Channel13) regarding Gaffney’s Bar as a trouble spot.

Here is the link

Saratoga Springs Public Safety Commissioner James Montagnino has been hit with a one-two punch that appears to have crushed his proposal to establish a security cordon around the Caroline Street bar district.

In mid-March Montagnino went to the media to tout what he called an “out-of-the-box idea to keep the city’s entertainment district safer.” His idea was to block off Caroline Street and institute security checks similar to those used at SPAC. This would involve using metal detectors and having private security guards waning and checking IDs of anyone wishing to enter the street. He told WRGB “This could turn the entire area into a major event every week end” and make Caroline Street a “mini-SPAC”. He was not specific as to where exactly these checkpoints would be set up given the many access points to Caroline Street.

Montagnino credited Mayor Ron Kim with originating the idea. Kim told Gazette reporter Brian Lee (3/20/22) that he was aware that some thought the security checks on a public street would be a violation of the Constitution’s 4th amendment which protects citizens from unreasonable search and seizure. “It’s not because, basically, if you don’t want to be searched, you don’t want to be ID’d, you just don’t come to that area of the town during a certain time period,” he said. Not great advice to give to those who live in apartments on this part of Caroline Street. Needless to say, not everyone agrees with Mayor Kim’s legal theory either. According to the Gazette editorial cited below, the American Civil Liberties Union, for instance, has successfully gone to court to protect access to public streets.

1.The Daily Gazette Editorial

In a scathing editorial, the Daily Gazette sliced and diced Montagnino and Mayor Ron Kim for the security proposal.

If treating customers and residents like potential airline hijackers, terrorists and bank robbers is the best plan Saratoga Springs officials can come up with for dealing with Caroline Street’s party scene, then the city either needs a better plan or it needs public officials with better ideas.

Gazette March 27, 2022

2.Commissioner Montagnino’s Head-on Collision with Caroline Street Bar Owners

Promoting his proposal, Montagnino told Channel 6 News on March 14 that his idea had the support of the Caroline Street bar owners. 

At a meeting on March 22, 2022, Montagnino got a different message from the bar owners, however. They told him they unanimously opposed his plan.

The meeting, requested by the owners of nine of the twelve Caroline Street bars, was attended by Public Safety Commissioner James Montagnino, his deputy Jason Tetu, Accounts Department Deputy Stacey Collins, and Deputy Mayor Angela Rella. Conspicuously absent from the meeting was the city’s Chief of Police.  This is unfortunately consistent with Commissioner Montagnino’s pattern of marginalizing not only the head of the Police Department but pretty much all his “sworn” officers.

I spoke at length with one of the bar owners who attended the meeting about what had transpired. According to my source, Montagnino had little to say at the meeting.  Responding to questions from the bar owners, he said he was there to listen.

In the face of the bar owners’ opposition to his Caroline Street proposal, Montagnino, in an embarrassing moment playing the victim, backed off from his proposal and blamed the media for hyping the idea as if he had had no role in promoting the publicity.

Is Gaffney’s the Main Problem on Caroline Street?

The person I spoke with said that he had operated his bar on Caroline Street for some ten years.  He told me that the culture had changed and that there had been more violence on the street during the last three years than in all the previous seven.

According to my source, while there are from time to time incidents in other establishments, the bar owners unanimously saw Gaffney’s as the major and most frequent source of violence.

He told me about a meeting held in August of last year that brought together a representative from the New York State Liquor Authority with the bar owners, the Sheriff’s Department, the Saratoga Springs Police Department, and the State Police along with representatives from the City Council.  Conspicuously absent from the meeting were any representatives from Gaffney’s.

Gaffney’s is owned by Justin Manfro whose primary residence is in Westchester.

Manfro is not only one of the owners of Gaffneys but of Max London’s Restaurant, and Mrs. London’s Bakery.

Interestingly, WRGB (Channel 6) news in a story on the meeting, reported that for three weeks they have been trying to reach Manfro including visiting his attorney’s office without success.

The bar owner with whom I spoke argued that Gaffney’s fails to act pro-actively to minimize the potential for conflict.  He listed for me a variety of techniques that bars use to control the “temperature” in their venues.  He asserted that Gaffney’s does none of this.

According to him, Gaffney’s has been the subject of an investigation by the New York State Liquor Authority regarding nine violations during the last year.  I have been told that six confirmed violations in a year can result in a revoked liquor license.

My source said that none of the participants wants to see the shutdown of any business.

It would be very helpful to have a conversation with Commissioner Montagnino about all of this but as he does not respond to my emails seeking the most basic information, it seems out of the question that he would be willing to meet with me.

[JK: This post has been corrected on March 25, 2022. The lieutenant that was demoted to sergeant was not a woman]

At the March 15, 2022, City Council meeting, Saratoga Springs Public Safety Commissioner James Montagnino announced, without prior notice to the public or the Police Department, that he was eliminating the Assistant Police Chief position, setting off a string of demotions within the department.

Montagnino successfully sold his narrative to the media that these moves were designed to put more police on patrol to address recent violent episodes on Caroline Street and to eliminate excessive bureaucracy and duplication of duties. A closer look at the Commissioner’s recent moves, however, reveals a very different story.

A Little History

Last December, then Public Safety Commissioner Robin Dalton promoted Lieutenant Robert Jillson to Assistant Chief of Police.  Montagnino went to the media to accuse Dalton of illegally pre-empting his authority to fill the position.  The story had an unusually long life as the two exchanged arguments through the media over the promotion.  Eventually, Montagnino was forced to concede that it had been legally done, and he would have to accept it. 

Well, he might have accepted it then, but as we now know, he was not done with Lieutenant Jillson.

Montagnino’s Cynical Revenge

While Montagnino likes to continually tout his commitment to transparency, his manipulative and dishonest use of his authority was on display at the March 15, 2022, Council meeting. 

Montagnino had put the following item on his agenda for the Council meeting: “Discussion and Vote: Patrol Division Increase Initiative – Phase 1.”  Conspicuously absent from this bland-sounding agenda item was a link to the actual resolution which would abolish Jillson’s position and lead to the demotion of other officers.  

This was a flagrant violation of the New York State Open Meetings Law. Governor Hochul signed two pieces of legislation last October requiring that any resolution to be considered by a public body must be posted at least twenty-four hours prior to the meeting. Commissioner Montagnino, who is an attorney and who is never shy about reminding the public of his status and of his expertise in all things legal, would do well to remind himself of his need to adhere to the Open Meetings Law.

Montagnino’s failure to post on the city’s website the resolution he was bringing forward for a vote was no inadvertent error. Given Commissioner Montagnino’s continual self-promotion in the media, especially in the Times Union, his newfound shyness was out of character. Montagnino knew exactly what he was doing.  He was hiding his plan.  He had been on the job for only two and a half months, but according to multiple sources, he went ahead with this plan to reorganize the Police Department without first consulting the Chief of Police or any other members of the city’s sworn officers regarding his planned demotions.  A manager acting professionally would have first asked for feedback from his staff as to any problems such a major initiative might precipitate that they had not anticipated. Why would Montagnino take such an impactful action after less than three months on the job without consulting at least his Chief of Police?

There is also the essential and fundamental element of trust. Even in the case of an unpopular initiative, basic respect and courtesy would require a manager to communicate directly with those their decision will affect. Failure to do so creates an atmosphere of fear and undermines morale. Employees will continue to worry over what “the boss” will do next.

It tells you a great deal about Montagnino’s character that aside from being a very bad manager, he had neither the courage nor the integrity to face Jillson and the other officers.  Jillson and the others who were demoted would have to learn their fate from a City Council meeting.

All of this reminds me of the television comedy, “The Office” about an office managed by a clueless executive played by Steve Carroll. The only difference is that while the character played by Carroll was inept, he was not vindictive.

If nothing else, Montagnino is a savvy media player. Montagnino wanted to make sure that he would have the stage all to himself.  With Commissioner Scirocco’s absence, he knew he could rely on his compliant fellow Council members not to raise questions. He did not want anyone, though, to refute any of the dubious arguments he was making so the media would provide him with the publicity he was seeking to promote his narrative unchallenged.  All of this, according to Montagnino was supposedly about putting more police on patrol and the last thing he wanted was an aroused public challenging his assertions at the meeting.

Lieutenant Jillson is popular with the men and women in his department. Jillson’s demotion will have a cascade effect. He will go back to his position as Lieutenant. A lieutenant will be demoted back to sergeant. A sergeant will go back to patrolman. Montagnino knew the effect eliminating the position would have on morale in the Police Department, but he clearly did not care.

These demotions were tough enough, but the underhanded way it was done only further poisoned the atmosphere in the department. If Montagnino wanted the people he is supposed to lead to distrust and fear him rather than admire and respect him, he was successful.

Exposing Montagnino’s Misrepresentations: Duplication?  Shame On You, Commissioner

In explaining his reorganization plan, Montagnino claimed that he was eliminating duplication in the Police Department.  He specifically referred to the positions of Chief and Assistant Chief as duplicative and wasteful.  I was struck by the fact that he didn’t even attempt to create the façade of seeking out all of the facts.  By all reports, he never spoke to either Chief Crooks or Lieutenant Jillson about what they did each day. It is important to remember that Montagnino has been in office less than three months and by all accounts has spent little if any time actually talking with staff and learning how the department works. According to his own public statements, he based his decision entirely on a reading (misreading?) of the two positions’ job descriptions.

The management structure of the police is extremely lean.  In 2014 under Public Safety Commissioner Chris Mathiesen, the management team was reorganized.  The position of captain was eliminated.  The command structure became simply the Chief of Police and the Assistant Chief of Police.  There was no administrative staff.  No secretary.  No clerk.  The Chief and his Assistant, beyond their roles of running the department, were responsible for taking calls, typing reports, filing documents, etc. 

It is absolutely true that the job descriptions of the two men include many of the same duties.  As noted, the Chief of Police has no administrative support other than the Assistant Chief.  Of course, they share many tasks.  They run the department together.  What makes all this so ugly is that James Montagnino knows this.  To use the duplication argument exposes his cynicism and his contempt for the public and the Police Department

So now Chief Crooks must manage the entire department with no support staff and no assistant.

Montagnino has made it very clear that he wants to draw leadership staff from outside the department.  I do not think that it is at all far-fetched to speculate that he knows what an impossible position he has put Chief Crooks in and that part of his agenda is getting rid of the chief. 

Montagnino also asserted that forty percent of the force “never leaves the office.”  I have spoken to numerous people at the department and they are at a loss as to how he arrived at this number. I wrote to Montagnino asking how he arrived at that number but, not surprisingly, he has not responded. I submit that he grossly overstated this and being unable to defend his claim, silence is his strategy.

How About Taking on the Real Issue?

The department currently has eight vacancies in its patrol staff. Another seven are at the training academy and will not be able to operate fully as officers until November. If history is a guide, there is a good possibility that once they learn what life is like as a police officer, particularly these days in Saratoga Springs, some of them will resign and seek other employment.

If Montagnino wants to get more boots on the ground, what he really needs to do is to come up with a plan to attract and retain well-qualified staff.

It is important to remember that this string of demotions has come on the heels of Montagnino’s attempt to break the police contract by getting rid of the 12-hour shifts the PBA had spent months negotiating for. What he has managed to do during his less than three months in office is discourage people from joining our police department by getting the word out that it is a hostile environment to work in.

How To Insult Your Staff

At the same March 15, 2022, City Council meeting, Commissioner Montagnino managed to further insult his staff.

Included in his agenda was the purchase of three police vehicles. 

In this video clip, Montagnino explains why he had put off the awarding bids on the cars explaining:

“I wanted to investigate to confirm in fact these purchases were properly bid out and I can state for the record there is a statewide program…” he goes on to describe how he confirmed it was done properly.

Now, I guess there is something to be said for a commissioner who is so rigorous that he personally reviews all the purchases made by his department.  The problem is that if you worked for him handling the bid, he has announced to the public that he did not have confidence that you had done it properly.  It was entirely unnecessary and gratuitous of him to present himself as the rigorous manager at the expense of his staff. He could have simply just asked for approval of the bid.

His alleged thoroughness was particularly pretentious because the entire bidding process was done through the state which clearly he didn’t know.

The fact is, the reason he did this was to create the appearance that he is a hands-on manager steeped in the ongoing operation of his department.  Again, this shameless pretense is belied by the fact that he comes into the Public Safety office infrequently, and when he does, he hardly ever talks to any of his staff.

Montagnino: Out Of Touch With The People He Is Supposed To Lead

What is important to understand about Public Safety Commissioner James Montagnino is that he is out of touch with the men and women he is supposed to lead.  He is rarely at the department and when he is, he has almost no contact with the staff and that includes his top officers.  His staff is the last to learn about his heavy-handed initiatives.

Commissioner Montagnino is an example of what I call the “Smartest Person in the Room Syndrome.” This is a person so taken with their own brilliance and with their own voice that they have little room for anyone else’s insights. In the case of Montagnino, he is legitimately smart, poised, and articulate enough that he can burn brightly with success for a while. Still, that kind of narcissistic deafness will eventually require that he pay a price for his failure to listen. Unfortunately, the cost of his arrogance will be shared by the police department, the fire department, and the people of Saratoga Springs.

In an imprudent rush to initiate his three year extended outdoor dining “plan” , Saratoga Springs Accounts Commissioner Dillon Moran has written to downtown business owners indicating he plans to erect barriers to build out “parklets” on city streets beginning April 1, a little over a week from today, March 23.

Efforts to convince him to establish proper notice for neighbors who will be impacted by the use of public right-of-ways for outdoor dining have been ignored as have calls for caution and the need to better define the program.

Samantha Bosshart, executive director of the Saratoga Springs Preservation Foundation and the board president, Adam Favro, have sent a letter to the City Council urging that further attention be given to the appearance of outdoor dining spaces in the city now that they will no longer be temporary.

They point out that the new ordinance allows for “‘decorations’ yet does not define what that means…”. In addition, no requirements exist for barriers, furniture, planters, lighting, etc. They urge that guidelines be established not only for esthetics but for safety, and that since these outdoor spaces will now be allowed for up to three years, that they “should receive the same thorough review that businesses with sidewalk cafes go through by the Design Review Commission…” [Their entire letter appears below.]

The establishment of standards has apparently been dismissed by the Commissioner. It is not even clear what hours these outdoor dining operations must operate within and the promised schedule of permit fees has not been issued.

Instead, Commissioner Moran has established himself as a kind of street czar. Without standards, he will determine policies on a case-by-case basis. This is an invitation to cronyism and corruption.

The big unknown of course is whether the New York State Legislature will act to extend the legislation that permitted outdoor dining designed to address the needs of restaurants during Covid. That legislation is due to expire on July 7,2022. Without this extension that would allow liquor to be served in these venues, Moran’s plan for outdoor dining will be effectively dead.

Preservation Foundation Letter

2

While Saratoga Springs Accounts Commissioner Dillon Moran has enjoyed favorable coverage by a credulous media of his plan to reshape downtown to expand outdoor dining, as with the Wizard of Oz, the reality has remained hidden behind a curtain. To the more critically observant, it is apparent that Moran has demonstrated a combination of ignorance and indifference to a variety of questions related to implementing the closing of streets and the wholesale granting of rights to restaurants and bars to use our city’s sidewalks and streets to enhance their businesses. I characterize the approach, all too common these days, as “stumbling forward management” where rather than analyzing and planning for foreseeable impediments to a goal, the executive simply tries to dodge one obstacle after another as they pop up in hopes of somehow eventually achieving a goal.

In fact, Moran’s entire plan is predicated on state legislative action that may never come to pass. After all the hype he has enjoyed, the enterprise remains very much in doubt.

A thoughtful manager would ask the basic question: “Why put time and effort into this until we know that the state will pass the required law that would make it possible?” That would include putting off going to the newspapers and television to tout the plan.

What is most disturbing has been Moran’s resistance to transparency. He has been urged to amend his ordinance to require that before a street is closed or restaurants are allowed to change a neighborhood’s streetscape that all the neighbors be provided:

1. Proper notice regarding the change
2. A document that explains what is planned including graphical renderings
3. A way to have input tochallenge the project

Without this transparency, if Moran is successful, residents and businesses in the downtown area may be in for some very unpleasant surprises.

Commissioner Moran touts the fact that citizens are supportive of expanding outdoor dining. All of us would support helping our restaurants when raised in the abstract. The problem is that issues of safety, access, noise, and inconvenience are serious potential problems for neighbors both residential and commercial that need to be carefully considered. Without the most rigorous and disciplined analysis of how to proceed, the entire enterprise could turn into a fiasco. In an earlier Gazette editorial, the newspaper specifically cautioned Commissioner Moran on the need to proceed with great caution. It is pretty clear that Commissioner Moran ignored this sage advice.

As will be described below, this process has been anything but rigorous and disciplined. Commissioner Moran’s missteps and ineptitude have been masked by a poorly informed media whose uncritical coverage has only emboldened him. Consider this puff piece from Channel 13 news as Commissioner Moran casually describes closing specific streets in the city over weekends oblivious to the complex problems that make the success of such sweeping actions enormously challenging. Most of those streets include not just restaurants and bars but also residences and retail businesses.

Dear reader, consider how you might feel if a restaurant in your neighborhood stayed open at night with extensive outside dining. What impact might the resulting noise have? What might the effect of lost parking spaces have on people trying to visit you? What might the closing of streets do to traffic in your neighborhood?

After all this hype, in the end, if the New York State Legislature does not adopt the needed legislation by July 7, then this will have been great media for Commissioner Moran personally but will have done little for the city.

The Timeline

The following is meant to document the sketchiness of Commissioner Moran’s management to date.

January and February 2022 – Commissioner Dillon Moran repeatedly scheduled public hearings before City Council meetings on expanding outdoor dining but provided no actual proposal on which to comment. Not surprisingly, no one from the public spoke at any of these pointless hearings. The hearings created the facade of allowing for public input rather than the real thing.

Last week in February 2022 – Commissioner Moran finally drafts a proposal. The original legislation that extended outdoor dining in the city during Covid employed a committee representing the Fire Department, Risk and Safety, the City Attorney, and the Department of Public Works to establish the rules and to review applications. Moran’s proposed revision eliminated the committee and granted himself sole authority over this process. Public Works Commissioner Skip Scirocco intervened and informed Moran that his plan was in violation of the city charter. Scirocco explained to Moran that Public Works has authority over the city’s streets and sidewalks, and Moran cannot act without his cooperation. Moran was forced to amend his proposal to require the consent of the Commissioner of Public Works to any expansion of outdoor dining.

March 1, 2022 – On this date, the Commissioner of Accounts sponsored another public hearing at the City Council meeting, this time with a document. The problem was that the document which was made available for the public hearing had not been updated and was no longer the version to be voted on. Among the missing elements was the provision for the inclusion of the Department of Public Works in the process. As Commissioner Moran had the updated document that included the new role of the Department of Public Works, it is unclear why Moran did not update the city website so that people wishing to comment were addressing the correct document.

Even after it was pointed out to Commissioner Moran that the document on the city website was not correct, Moran failed to post the correct document for almost another two weeks.

March 11, 2022 – On the Friday before each City Council meeting, a draft of the proposed agenda and supporting documents for the following Tuesday meeting are supposed to be posted on the city’s website by noon. On this Friday this information was not posted until 8PM Friday night. It was only then, that at last, the latest version of Moran’s proposal was finally posted as part of the proposed agenda.

March 14, 2022 – On Monday mornings before the regular Tuesday night City Council meeting, the Council holds a “pre-agenda” meeting to finalize the Tuesday night agenda. In this March 14 meeting, there was a discussion over a clause in the ordinance that had been added that required permits for outside dining to be approved by the City Council. It was decided to remove this significant clause. It is unclear when this once again updated version of the ordinance was finally posted but as the ordinance was to be voted on the following evening, most of the public who might have participated in the public hearing would have been ignorant of the change. This is simply another example of how little Moran and his colleagues on the Council take their oft-repeated claims of transparency seriously

A New Development- The Big Surprise

In addition to the further changes made to the outdoor dining proposal at the March 14 pre-agenda meeting, Moran announced that he was adding a new item to his agenda concerning this issue.

According to Moran, on the previous Saturday, March 12, he discovered (he never explains how) that the New York State legislation extending the ability of restaurants to serve liquor in expanded outdoor dining spaces will end on July 7, 2022. Without the renewal of this legislation, his proposal will be rendered pointless, yet he apparently didn’t recognize this until at least two different versions of the ordinance had been posted on the city website and after months of appearing on television and in newspapers to tout his idea.

So at the March 14 pre-agenda meeting, Moran notified his colleagues that he would be asking the Council to authorize the Mayor to write to Governor Hochul asking her to extend the relaxed outdoor dining expansion regulations beyond July 7.

Moran also claimed that he had been working with Assemblywoman Carrie Woerner on dealing with the Governor and potential legislation. As, by his own admission, he had only become aware of the problem on Saturday, and as the pre-agenda meeting was at 10:00 AM on Monday morning, when was all this work with Woerner supposed to have transpired?

Dillon Moran and Governor Hochul

According to the March 16, 2022, Daily Gazette:

“… he [Moran] had a personal conversation with [Governor] Hochul about the matter [extending outdoor dining] last year, when the state’s top official assured Moran of her support.”

Daily Gazette March 16, 2022

So if Moran knew this extension was needed last year as his comments to the Gazette indicate, why did he only come to realize he had a problem on Saturday, March 13, 2022?

It also is unlikely that Governor Hochul made this kind of far-reaching commitment to him in casual conversation.

It is worth noting the protocol when dealing with the Governor. If you want the Governor to do something, you provide her with the courtesy of discussing it with her or her staff first. You do not ask her for what you seek through the media. Only after receiving assurances from the Governor, do you write her and publicize it. I understand that Mayor Kim has been warned about this. If they want Governor Hochul’s help, they have now undermined their own efforts.

The Failure of Transparency in the Agenda

Item #5 in the Department of Accounts agenda for the March 15 City Council meeting read:

“Discussion and Vote: Authorization for Mayor to Sign Letter to Governor Hochul Regarding Outdoor Dining”

There should have been a link to a resolution explaining exactly what was being asked of the Governor “regarding outdoor dining.” There was none. I expect they wanted to downplay the potential failure of their plan that the letter to the Governor would expose.

Confusion Over The Role of the Design Review Commission

There are many unanswered questions about just how all of these expanded dining areas into the city’s right-of-way are going to look. The concrete barriers [Jersey Barriers] the city has used on Phila and Henry Streets were ugly and potentially dangerous. We do not want our streets to look like the city was designed by Homeland Security.

In the meantime, when Moran first announced his plan he made a point about avoiding the Design Review Commission (DRC).

In the February 2 edition of the Daily Gazette the following was reported:

He [Dillon Moran] said his proposal will eliminate a clause that prohibits restaurants from decorating outdoors. Moran said he doesn’t want the restaurants to build semi-permanent outdoor structures that would require approval from the city’s Design Review Commission.

Daily Gazette

Of course, this leaves entirely undefined how these restaurants in the city’s downtown are going to look. It left completely unclear what oversight there will be, what standards will be established, and how anything will be enforced.

After there was some push back, at the March 16 meeting Moran again reversed course.

This is from the Daily Gazette:

However, the Saratoga Springs Preservation Foundation wants the city’s Design Review Commission to approve the plan. Moran said he’s spoken to to the DRC’s chair and agreed on a process to include the commission headed into the fall. 

If and when it makes sense for permanent outdoor dining, the DRC will be fully involved, Moran said.

Daily Gazette March 16, 2022

Conclusion

I do not dismiss the value of exploring expanded outdoor dining. What I find deeply troubling is that Commissioner Moran, who it appears will be the key decision-maker in all of this simply lacks the kind of disciplined skills to move cautiously and respectfully forward. He needs to focus less on the media and more on anticipating and addressing the many problematic issues that expanded outdoor dining and street closures will precipitate.

His unwillingness to incorporate language into the ordinance to ensure that neighbors impacted by specific expansions are properly informed pretty much guarantees that homeowners, businesses, and renters will be unpleasantly surprised. I expect that the heat this will generate will be appropriately directed not only at Moran but at the other members of the Council who were fully aware of the need for this transparency but failed to act.

There is no other way to put it. Commissioner Moran lacks the management skills that the expansion of dining into the city’s right-of-ways requires and his hostility to properly notifying the neighbors of such projects is a train wreck waiting to happen.

I am working on a longer, critical piece regarding Saratoga Springs Public Safety Commissioner James Montagnino’s recent actions. Unfortunately, his skillful and manipulative use of the media belies what is really going on in the Public Safety Department. Even a cursory assessment of Montagnino’s public relations campaign exposes the poverty of what he is doing. Most of the media, though, sadly lacks the resources to do a critical assessment, and instead they largely parrot his assertions.

To his credit, Stephen Thurston’s recent article provides some push back. His website is the first media source to provide any kind of substantive criticism of the many highly questionable initiatives Montagnino has been pushing.

Montagnino Uses Legal Rhetoric To Dress Up His Positions

Recent coverage has focused on Montagnino’s surprise defunding of the city’s assistant police chief position and the resulting demotion of a number of officers. The new Public Safety Commissioner’s controversial initiatives, however, also have included an earlier announcement that he wanted to roll back an agreement negotiated with the city over months allowing the police to work 12 hour rather than 8 hour shifts.

Montagnino claims that studies he has researched prove that twelve hour shifts are unsafe. Montagnino alleges that these studies give him the legal authority he needs to break the city’s agreement, and force the uniformed officers into the eight hour shifts. I spoke to a friend who is an attorney with a professional background in law enforcement. He offers a counter narrative that raises serious questions regarding Montagnino’s recent statements about the legal basis of nullifying the contract with the police union.

Here are my friend’s observations:

What Jim Montagnino is threatening to do will not only fail, but it will cost the city tens of thousands of dollars in litigation fees if he forces the PBA’s hand.  The 12 hour shifts are not novel in law enforcement, in fact almost all NYS Troopers (with the exception of those in special assignments and details) work 12 hour shifts exclusively and have for 20 years.  Stating that some studies indicate safety issues with the 12-hour shifts would somehow allow the city to successfully assert an unconscionable contract defense demonstrates that he doesn’t know much about that defense – or labor law in general.  Even if this defense had any validity to it, how would it ultimately fare when so many other law enforcement agencies currently have 12 hour shifts?   If Montagnino forces officers off 12 hour shifts, it will force the PBA to file legal actions at either the Public Employment Relations Board (PERB) or directly to the courts for a stay or temporary restraining order to stop the city from violating this MOU [Memo of Understanding which is part of the contract].  We should hope the city’s hired outside counsel advises Montagnino that this approach will be doomed to be costly and ultimately a failure, and if they don’t then it’s time to find new outside counsel.    

Saratoga Springs Commissioner of Accounts Dillon Moran has announced his ambitious plan to expand outdoor dining. He wants to close some streets on weekends (Thursday to Sunday) during the spring and summer months. This proposal, while laudable, will need sober and rigorous oversight. The initiative seems rife to fall prey to the law of unanticipated consequences. Caution seems especially important in light of the many management problems that have plagued the new Council.

The resolution under consideration on Tuesday, March 15, 2022, would empower him with broad authority to pursue his publicly announced goals.

This is a story from WNYT Channel Thirteen in which Commissioner Moran identifies streets he plans to limit traffic on.

Background

During the pandemic, the Governor, using the executive authority granted him by the legislature, attempted to address the crisis faced by restaurants. The state had imposed a fifty percent reduction in restaurant capacity. To offset this, along with the public’s fear of eating indoors, the New York State Liquor Authority eased its rules and oversight to temporarily allow restaurants to move some of their dining to the sidewalk and even the street.

To come to the aid of our city’s eateries, the previous Council adopted amendments to the city’s code to facilitate these expansions. While during the first year there were some considerable delays in issuing permits, in the second year things went quite smoothly.

It is important to bear in mind the unique circumstances that existed during this period. First and foremost, the demand for dining along with shopping had been suppressed by the threat of infection. This meant that the traffic downtown during this period was greatly reduced. This helped minimize the logistical inconveniences that might have accompanied the restaurant expansions.

In addition, the public was sympathetic to the needs of the restaurants that were in crisis, and it was understood that the entire endeavor was temporary.

Moran’s Proposal

Now Commissioner Moran is proposing to take what was designed as a temporary fix to assist restaurants during Covid and to expand it and make it permanent for at least the next three years. This proposed change raises a number of issues that should be considered before moving ahead.

As an example, consider the Jersey barriers. Those were the large concrete barriers the city used on Phila and Henry Streets. D.A. Collins was extremely generous to the city providing these to the city for free and taking responsibility for delivering and removing them. It is unreasonable to expect that D.A. Collins will permanently support these barriers.

That having been said, the barriers were not a great long-term option. They are ugly and they represented a hazard for cars negotiating Phila Street at the time. Critical to Saratoga Springs’ success is its charm and beauty. We do not want to look like downtown Bagdad.

The original amendment passed by the Kelly administration barred the use of “decorations”, but Commissioner Moran’s proposal has removed this prohibition. What is a “decoration?” It is not defined. Clearly, this needs to be thought through more carefully.

Any expansion of restaurants brings on a host of requirements from the New York State Liquor Authority (SLA) that must be met. While some of these restrictions were loosened during Covid that is no longer the case, and the old more demanding rules are back in effect. The process of applying to the SLA can take considerable time and investment, and it is not clear what effect they may have on a restaurant’s ability to expand in the coming years.

Perhaps most importantly the plan for this more permanent expansion needs to take into consideration the effect on other retail businesses, residents, and building owners. During Covid, there was a great deal of community support to assist the city’s restaurants which were in dire need. Other issues and inconveniences were tolerated or overlooked. With city restaurants now recovering and doing well it is time to address those concerns as the city looks to make outdoor dining a more permanent fixture on the city’s street.

Our Downtown Is More Than Restaurants

As Commissioner Moran is apparently an investor in one of the downtown restaurants and as his brother operates a downtown restaurant, it is understandable that they would be sensitive to the needs of the hospitality industry, but our downtown is made up of more than restaurants. We have retail operations, offices, and residential properties.

Saratoga County Chamber of Commerce president Todd Shimkus told the Daily Gazette:

“The city needs to work with the neighbors on each street individually because they have different means and different abilities to service outdoor areas without conflicting with their neighbors,” he said, noting that Caffe Lena and a non-restaurant Coles Woodwind on Phila Street, had legitimate challenges associated with outdoor dining in 2020.

Daily Gazette 2/1/22

Transparency Is Essential– People Need to Be Informed

Critical to the success of this endeavor would be proper public notice and education. It is essential that all the parties in an area that might be affected by the closing of streets and the expansion of dining be properly advised and allowed a public forum if they have reservations about a plan.

I have submitted for the public hearing the following suggestions to be included in the amended code:

1. The neighbors of restaurants planning to expand should be notified when the Council is considering applications for permits.
2. Neighbors should be notified of any changes to be made in nearby public spaces such as streets to be closed or made one way in relation to expanded outdoor dining.
3. At a minimum the people to be notified should be on the same block but it should probably extend beyond that block and should include other business owners, residents, and building owners.
4. The notice mailed to effected parties should include a detailed drawing of what is planned along with a narrative.
5. Any documents submitted to the Commissioner of Accounts by other departments such as Public Safety, Risk Management, and Public Works regarding proposed expansions should be posted on the city’s website.

Summary

The first two months of this City Council have involved a series of fumbles including the failure to adhere to the open meetings law, the ignoring of state laws and the city charter, and the failure to meet self-imposed deadlines for advising the public on significant initiatives.

This record makes the ambitious plans for closing streets and redesigning our city’s streetscapes worrisome. The best antidote for this is transparency so that the public can inform the Council of any problems that they may not have considered.

Unfortunately, this pattern of opacity has continued with the handling of this outdoor dining proposal. While Moran has scheduled a number of public hearings on outdoor dining the actual document to be voted on was not available to the public until late last Friday night, March 11. Now the Council is scheduled to vote on Moran’s proposal the same night as the first opportunity for the public to examine and weigh in on the proposal. In the interest of transparency and accountability the Council would do well to delay this vote till the public has had ample time to review and digest the changes being proposed.

Saratoga Springs Mayor Ron Kim has become the subject of approximately $6,000.00 in penalties levied on him by the state of New York.  These penalties were the result of his failure to file the appropriate tax reports with the New York State Department of Taxation.

The Warrant

This is a “warrant” issued against the law offices of Ronald Kim by the New York State Department of Taxation on December 16,2021 and registered with Saratoga County.   

A warrant allows the state to place liens on Mayor Kim’s properties and even to garnish his wages.

According to the warrant, the state began levying fines against Kim for failure to file required forms beginning in July of 2019 up to September of 2020.

A Totally Avoidable Blunder

The warrant indicates that from July of 2019 to September of 2020, Mayor Kim’s law office failed to submit tax form NYS-45.  This form is to report quarterly withholding, Wage Reporting, and Unemployment Insurance.

During the last campaign, it was reported that Mr. Kim had failed also to pay his workman’s comp insurance and owed $7,000.00.  Kim defended himself by asserting that during the period he had no employees and so, according to him, he was not required to maintain insurance.  He called it a “misunderstanding” that he planned to address.

I will accept that during this period he did not have any employees although it seems odd that a law office would not have even a secretary.  The problem is that unless notified otherwise, New York State assumes that if you have been withholding taxes during the previous quarter that you still have employees and must continue to report your withholding and other tax-related obligations.

If you do not submit NYS-45 or advise the state that you no longer have employees, then there is an automatic penalty.  In this case, it is $1000.00 per quarter plus accrued penalty interest.

Kim failed to submit this form for over a year despite notices that the tax department would have been sending him.

So, all Mr. Kim had to do to avoid penalties was to notify state taxation that he no longer had employees. One has to wonder why he didn’t just notify the state to avoid all of this.

As of this blog post March 11, 2022, the warrant has not been satisfied so it can be assumed that he has neither paid the fines nor resolved the basis of the problem in consultation with the New York State Department of Taxation. It is also unclear whether Mayor Kim is continuing to rack up more fines.

It is worth noting also that the warrant refers to “last known address.”  In this case, it was an address that he had vacated back in 2016.  It may be that since 2016, some five years, the New York State Tax Department has not known how to contact him if he never notified them of a change of address.

What this tells us

Mayor Kim’s record in office has been a continued series of errors and mismanagement.

For an attorney, he seems especially indifferent to record-keeping, and inconvenient laws that might interfere with something he wants to do. The city has many dedicated staff with years of experience that should be a vital resource but the reports I hear from city hall are that his office operates in a sort of siege mentality.

As an example of his obliviousness, consider his promise made at the March 1, 2022, City Council meeting. At that meeting, he announced that he would be holding a public hearing in order to adopt the Unified Development Ordinance (UDO) which he erroneously claimed had not been done appropriately due to errors by the last administration. He announced that he would be posting the document the next day (March 2, 2022) that would be the subject of the hearing.

As of today March 11, I have been unable to locate the document on the city’s website. An email to the Mayor asking for the name of the document and where it is located on the city website has gone unanswered.

This is a fundamental failure not only to live up to a public promise, but it undermines the fundamentals of transparency that are central to the democratic process.

The reality is that this is simply another example of his indifference to his obligations. It seems that Mayor Kim simply ignores inconvenient truths or, as in the case with his court fiasco, he blames others for what are clearly his own missteps. Unfortunately for the city, he seems to live in some kind of alternate reality.

Saratoga Springs Mayor Ron Kim seems to go from one self-inflicted wound to another.

The debacle of his conflict with Judge Jeffery Wait has now been superseded by his new campaign regarding the alleged need to redo the UDO.

At the March 1, 2022, City Council meeting, Mayor Ron Kim asserted to his colleagues and the public that the city’s adoption of the Unified Development Ordinance (UDO) was so flawed by the actions of the previous administration that it now requires a redo of the process. Unfortunately for Mayor Kim, none of his allegations are true.

Here is a video clip that includes Mayor Kim’s allegations. I have gone through them one by one and what follows is the documentation of his folly.

Video of Mayor Kim’s Allegations

Kim’s Allegations

1. The UDO lacks an implementation date

In the video of the Council meeting, Mayor Kim alleges that the UDO has no implementation date.

There is an implementation date as indicated from this screenshot from the first page of the UDO posted on the city’s website. There are two items in the UDO document in which the implementation date is also referenced. Clearly, Mayor Kim did not carry out due diligence in studying the document.

2. The UDO was not filed with the New York State Department of State

I have to grant Mayor Kim points for chutzpah. The UDO landed in his lap on January 1, and there it sits. It is his administration that failed to meet the deadline to file. If he is looking for someone to blame, he might consider his own culpability.

The UDO was adopted on December 21, 2021, in the final days of the previous administration. According to the city charter, it was then the responsibility of then Accounts Commissioner John Franck to see that the secretary to the City Council, Lisa Ribis, who works in his office, filed it with the Department of State. By law, the city was required to file the document with the state within twenty days (see below).

When Mayor Kim and the new Accounts Commissioner Dillon Moran took office on January 1, the filing had not yet been done. The city still had ten days left to do the filing. Why didn’t the Mayor and Commissioner Moran see that the UDO was properly filed? How is it Vince DeLeonardis’ fault that they failed to fulfill the responsibility that was left to them?

Here is the relevant section from the state’s handbook published to assist municipalities.

Each local law shall be filed with the Secretary of State within 20 days after its final adoption or approval as required by Section 27 of the Municipal Home Rule Law. The cited statute provides that a local law shall not become effective before it is filed in the office of the Secretary of State.

From the NYS Department of State’s handbook Adopting Local Laws in New York State

3. The UDO was adopted by a simple motion rather than a written resolution.

Mayor Kim claimed that the previous administration was required to adopt the UDO through a written resolution rather than a verbal one.

It is true that Mayor Kelly, as recorded in the minutes of the Council meeting, simply verbally moved the adoption of the UDO document as published on the city website. There was no written resolution. New York State Law, however, allows a local ordinance to be adopted by an oral motion. There is nothing in New York State statute that requires a written resolution according to the handbook the Department of State provides local municipalities.

If Mayor Kim has a legal basis for this claim, he is welcome to document that on this blog site.

4. The previous zoning was not repealed when the UDO was adopted

Mayor Kim claimed that the city was required to rescind the previous zoning when adopting the UDO and it was required to be in the resolution that adopted it.

Neither is true.

Effect of local laws on acts of legislature or prior local laws or ordinances.

1. In adopting a local law changing or superseding any provision of a state statute or of a prior local law or ordinance, the legislative body shall specify the chapter or local law or ordinance, number and year of enactment, section, subsection or subdivision, which it is intended to change or supersede, but the failure so to specify shall not affect the validity of such local law.

In fact, the city has until the implementation date (April 4, 2022) of the UDO to rescind the previous zoning.

In September of 2021, the city placed a legal advertisement in Saratoga Today announcing their plan to rescind the zoning and the scheduling of a public hearing on it which they held, setting the required groundwork for rescinding.

The actual action to rescind was put off because it was unclear until the last moment in December whether the UDO would even pass. Bear in mind that if the existing zoning were rescinded and then the UDO did not pass, the city would be without zoning regulations!

The central point is that Mayor Kim is simply wrong about the timing of rescinding the zoning. The city has until the implementation date (April 4, 2022) to rescind the zoning. It does not require voiding the UDO decision to address rescinding the zoning. The city still has a month to take this action.

It is clear based on the legal notice above and on the contents of the project management software that was used (this will be discussed further below) that Mayor Kelly’s team was fully aware that the old zoning needed to be rescinded and that it had to be done by April 4.

The Root of the Problem

A large and complex institution like the city government of Saratoga Springs has ongoing legal issues. It is routine when administrations change, for the incoming City Attorney to meet with the outgoing City Attorney to discuss current legal matters with a particular eye to items that will require prompt action by the incoming administration.

As Mayor Kim had not chosen a new City Attorney, it became incumbent on him to meet with outgoing attorney Vincent DeLeonardis to go over these matters. While DeLeoanrdis was more than willing to sit down with the Mayor to bring him up to speed on ongoing issues facing the city, Kim was never interested in doing this. As has been made clear by his repeated attacks on DeLeonardis, Kim considers DeLeonardis incompetent and so apparently had no plan to engage him in a conversation about what the city’s pressing legal obligations might be.

The termination of both the City Attorney and Assistant City Attorney meant that Mayor Kim entered his first term utterly ignorant of any pressing legal matters the city may have been facing.

Two months into his new term, unburdened by any informed insights he might have gotten from a discussion with the previous administration, Mayor Kim suddenly announces that the UDO was never properly adopted.

In a better world where there was real transparency, I would write Mayor Kim and ask why he had not met with DeLeonardis prior to taking office, and he would have provided some kind of answer. Regrettably, in our brave new world here in Saratoga Springs, simple forms of transparency and courtesy are the exception rather than the rule.

A Document Exists But No One In The Mayor’s Office Cares

The management staff under Mayor Kelly utilized project management software to establish an orderly system of tasks to guide them in their work on the UDO. Their planning included a timeline and steps that would need to be taken to implement the UDO after the Council vote.

Below is the timeline they set for completing the UDO. These documents are readily available to Mayor Kim.

Tony Izzo’s Stamp of Approval?

An article in the Foothills Daily Review indicated that Interim Attorney Tony Izzo was on board with Kim’s characterization of the misdeeds of the previous Council. Steve Thurston wrote:

…when the vote took place later than planned last December, the city council did not follow the full and proper procedure, and the law was never technically implemented.

This was the claim made by Mayor Ronald Kim and verified by acting City Attorney Tony Izzo…

Foothills Business Daily Review

The Foothills Business Daily Review is an excellent news source, but the public record does not support this characterization of what Tony Izzo said. Here is a link to a video of what Tony Izzo actually said when called upon by Kim.

https://youtu.be/Ip2otS6gq-A

I would say that Tony Izzo is doing a bit of equivocating here to avoid committing to anything. I expect that Mayor Kim will probably press Tony to be a team player and say something more helpful. I don’t envy Tony.

Public Hearing Gobbledygook

Mayor Kim announced that there would be some kind of hearing related to moving his redo of the UDO forward. The hearing is scheduled for the next Council meeting on March 15. The Mayor and Accounts Commissioner Dillon Moran agreed to provide ten minutes for the public hearing.

Mayor Kim then announced that the “actual document that will be considered [at the public hearing] will be posted tomorrow [Wednesday, March 2, 2022] on the city’s website because someone will ask.”

I am unclear what will be in this document and have been so far unable to find it anywhere on the city website as promised.

I wrote to the Mayor on Friday asking what the name of the document is and where it can be found. To date [March 7, 2022], he has not responded.

Times Union Watch

In an example of the worst kind of journalism, in the March 2, 2022, edition of the Times Union, Wendy Liberatore not surprisingly provided Mayor Kim a platform for his latest attack regarding the UDO.

The Times Union regularly boosts Mayor Kim by uncritically publishing his often wildly false pronouncements. Such drama draws clicks for the newspaper at the expense of misinforming the public and holding elected officials accountable.

In Ms. Liberatore’s latest story that hypes Kim’s false claims, she reports that she called former Mayor Meg Kelly for a response. This is how Ms. Liberatore operates. Meg Kelly never returns her calls. Ms. Liberatore knows she will not get a callback.

Why does she bother to call Ms. Kelly? Rather than look for other sources to balance Kim’s remarks, she uses Kelly’s silence to create the appearance that she tried to write a balanced story. It is hard to know with Ms. Liberatore whether her appalling reporting is the result of the limited time allowed her by the TU or some other less flattering motivation.

Some Concluding Thoughts

What is clear is that Mayor Kim and his fellow newly elected colleagues on the Council bear a kind of fanatical hostility toward their predecessors. This is just the latest example of their propensity to blindly dismiss anything done by the past administration.

It also seems apparent that this move on the UDO is part of Kim’s intention to try to reverse the approvals for Saratoga Hospital’s expansion. As is so often the case with this Mayor, rather than just take the necessary steps to achieve his policy goal, he resorts to operatic drama wherein he adopts the role of the hero rescuing the city from the crimes of his predecessors. Unburdened by facts or law he sets himself up to be embarrassed by dramatizing his own ignorance.