Month: April 2022

Saratoga County District Attorney Karen Heggen ripped into Public Safety Commissioner James Montagnino for his interference in the investigation of a fight involving four teenagers, one of whom was a person of color. This is a link to her statement.

Commissioner Montagnino’s public insertion into an active, on-going investigation brought about a spin and dissemination of misinformation regarding the case.  He chose to bring the case to the court of public opinion, not a court of law.  In doing so, he exposed those involved to inappropriate scrutiny and shined a spotlight of social media commentary upon a purported victim.  Those actions fly in the face of the concept that justice should be blind so that justice is delivered in a fair and unbiased manner.  With the victim and their family recently informing the SSPD that they are requesting the case be closed without further law enforcement action, the sad result of the Commissioner’s public actions is that all involved have been subject to spin, speculation and ridicule.  

Karen Heggen

Montagnino’s Defense

At the April 5, 2022, City Council meeting, Montagnino responded to Heggen.

Apparently, there is a New York State database where local police departments record the disposition of criminal cases. Montagnino held up a piece of paper at the meeting that he said showed that the Saratoga Springs Police Department had used this system to record that the controversial case was “closed” on March 1, 2022.

Montagnino claimed that this document established that he was not guilty of interfering with “an ongoing investigation” when he repeatedly talked about the case in TV appearances and in the newspapers because, according to the document he displayed, the case had been closed over a month ago.

By asserting his innocence based on this document, however, Montagnino simply raised more questions about his own credibility.

The illegal drinking party where one of the participants was injured took place on the weekend of Saturday, February 27. Montagnino’s document would mean that someone reported the case closed the Tuesday following the incident.

Clearly, however, the investigation of the incident continued well beyond March 1. We know that it was late March when Montagnino summoned the lieutenant in charge of the investigation and ordered her to charge one of the youths with assault, a misdemeanor rather than harassment, a violation. If the case were indeed closed as Montagnino now asserts, why was he having this conversation with the lieutenant in late March?

It is also important to note that in all his appearances in the media, Montagnino never mentioned that the case had been closed. Further, the Police Department consistently responded that they could not discuss an ongoing case when they were contacted by the media.

In fact, this is really what makes this story truly disturbing. Montagnino knew that he could cherry-pick from the events to attack his own department because they could not defend themselves if they were to maintain the very professional standards highlighted by DA Heggen. When asked about the investigation all they could say was that it was “ongoing.”

A press with more resources and time might ask about Montagnino’s apparent contradictions. For instance, if the case indeed was recorded as closed who ordered this? Was the recording of the case as closed an error? I will be foiling for this document, but it will be at least five weeks before I can get a response.

A Chilling Attack On His Own Chief of Police

A Times Union April 5, 2022, story about Heggen’s accusations and Montagnino’s response contains a number of troubling statements.

We already know that Montagnino, to say it generously, has regularly misrepresented events to the media by asserting repeatedly for instance that he intervened in this case because the police had refused to bring charges when clearly his lieutenant was recommending a charge, just one he wasn’t happy with.

It is also deeply disturbing that he has presented to the public the narrative that the youth of color was attacked by a “gang.” This was a party of very affluent youth at one of their homes. For Montagnino to gin this up as a gang assault shows just how manipulative he is with the “facts.”

I can share with the readers my experience with the Commissioner. He does not respond to any questions that raise doubts about his actions. He is the gatekeeper of his own story.

In this latest article, Montagnino not only adds more to the list of his inconsistencies, distortions, and outright incorrect information, but he also makes a truly disturbing remark about his Police Chief, Shane Crooks.

Montagnino said Heggen and Chief Shane Crooks, who told the Times Union on Monday that the investigation is ongoing, are “trying to rewrite history.”

Times Union April 5, 2022

Given that in the last month, Montagnino has demoted one lieutenant and is charging another lieutenant with offenses that could result in her termination, this all has the feel of a purge.

Commissioner of Finance Speaks Up for the Humanity of the Police

At the April 5, meeting of the City Council, one of the speakers from Black Lives Matter referred to the police as subhuman. Much to her credit, Commissioner of Finance, Minita Sanghvi, gently offered a response. Ms. Sanghvi is an openly gay woman of color. She observed that no one is subhuman and that this kind of language is problematic.

Members of the Black Lives Matter responded with a volley of shouts. Efforts by Mayor Ron Kim to quiet them so Commissioner Sanghvi could finish her remarks were unsuccessful. None of the other members of the Council offered their support to Commissioner Sanghvi, and Mayor Kim formally shut down the public comment period in order to re-establish order.

Much credit should be given to Commissioner Sanghvi. If you have experienced these meetings, it was not surprising that her remarks made her the subject of attack and she deserves credit for bravely subjecting herself to this abuse in order to call for respect and decency.

Saratoga Springs Public Safety Commissioner James Montagnino has unilaterally added a section to the “Saratoga Springs Police Standards of Conduct” that will make adultery a cause for the termination of an officer. The section that was added approximately a week ago without any notification or fanfare is highlighted below in yellow. It can be found on the city’s web page.

It is important to note that Commissioner Montagnino is not just referring to relationships that may occur at work between members of the department. His broad directive includes firing officers engaging in adulterous relationships between consenting adults occurring in officers’ private lives as well. Absent from the directive is how Montagnino will determine that an officer has committed this crime.

In operatic terms, Montagnino justifies his directive by asserting that a private act between consenting adults “…bring[s] shame upon the entire department.” Supposedly, “it jeopardizes prosecutions.” He imperiously asserts “it has a corrosive effect on the morale and reputation of all members of the service whether uniformed or civilian.”

Montagnino’s amendment to the city’s standards of conduct for the police notes that adultery is still a crime in New York. This is a link to a webpage from the New York Times on this archaic law. New York is one of the few states that still has a statute criminalizing adultery.

About a dozen people have been charged with adultery since the early 1970s, most of them upstate. (Most of the charges were dismissed, or apparently were dropped after the defendants pleaded guilty to other charges.)

While no one is really at risk of being jailed for adultery, adultery still has tremendous significance in family law, said Alton L. Abramowitz, another divorce lawyer.

Adultery is one of three principal grounds for divorce in New York State…

New York Times March 21, 2008

As Commissioner Montagnino spent most of his career as a “referee” for divorces, it is not surprising that he is familiar with this law.

Federal Court Rules Firing For Adultery Is Unconstitutional

In the case of Janelle Perz v. City of Roseville Police Department; Stephan Moore, Captain Daniel Hahn, Chief, Cal Walstad, Lieutenant, the United States Court of Appeals For The Ninth Circuit ruled that unless it affects the officer’s performance, adultery cannot be used as the basis for dismissal.

Commissioner Montagnino’s rash decision to introduce this addition to the Police Standards of Conduct seems to invite costly litigation for the city.

Some History

US courts have a long and storied history of being reluctant to allow the government to intrude into the bedrooms of its citizens. We have seen this especially in recent decades in cases pertaining to gay rights. The Supreme Court in Lawrence v Texas struck down a Texas law that criminalized homosexual intimate relations. The court held that “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

Commissioner Montagnino’s call for severe sanctions for the private, consensual off-duty sexual conduct of police officers tramples on the same Constitutional rights that the Supreme Court sought to protect in the Lawrence case.

In addition, his statement that this behavior must be punished because it brings “shame on the entire department” is particularly troubling as it brings to mind the long history of victimization and stigmatization of women who engaged in unsanctioned sexual relationships. In its most extreme form this behavior, which was considered to bring “shame” on the woman’s family, resulted in horrific deaths by stoning and honor killings. I guess just losing your job for bringing shame on your department might be considered mild in comparison.

Groups such as UN Women have asserted that “penalization of adultery … leads to discrimination and violence against women.” However, as we already know, Mr. Montagnino’s record on these issues is questionable at best.

Some Questions

I find Montagnino’s adoption of this standard more than strange. It prompts me to ask four questions:

1. What prompted Commissioner Montagnino to adopt this standard?
2. How will he determine that a member of the police force is involved in an adulterous relationship?
3. His deputy, Jason Tetu, was a member of the Saratoga Springs Police Department before he became Commissioner Montagnino’s deputy. He is divorced and one of the issues that prompted the divorce was adultery. Would Mr. Tetu be subject to this standard?
4. Does Commissioner Montagnino have an officer in mind who this amendment will be used to target?

These are really rhetorical questions as Commissioner Montagnino never responds to my queries.

Saratoga Springs Public Safety Commissioner James Montagnino has inappropriately inserted himself into a criminal case. He has compromised an ongoing investigation by going to the press. He has taken action against the senior-most female officer in the Police Department in a move that could likely result in her termination as he gets to choose the hearing officer who will decide her fate. He has struck yet another blow against the morale of his department.

Background: The Precipitating Incident

The incident that precipitated the case that has led to all these actions by the Commissioner took place on February 28, 2022. This account of the incident is based on information from multiple reliable sources. Although none of my sources were present at the event, the information they gave me was consistent.

A teenage party involving underage drinking took place at a local home. One of the participants, a white kid, had a cell phone with a blue flag sticker that is the symbol for “back the police.” Another youth of darker skin who has been described to me as possibly of Iranian or maybe Algerian descent took exception to the sticker and accused the person with the phone of being a racist. He shoved the white kid with the phone who then shoved him back causing him to fall and hit his head on the counter behind him. It was alleged to me that the kid with the phone never struck the fallen person again. Two other boys are alleged to have struck the victim on the floor.

The issue of assessing guilt in this altercation is complicated by the problem of determining which blows caused which injuries. The chaos of these kinds of fights involving kids fueled by alcohol often leads to conflicting eye-witness accounts and adds to the difficulty of determining who is culpable for what.

The patrol officer who investigated the incident recommended that a charge of harassment be brought against the youth who knocked the boy down. He consulted his sergeant who agreed with the charge and recommended it to the lieutenant in charge of the investigation. The lieutenant is the highest-ranking female in the department. She agreed with the assessment but nevertheless kept the investigation open.

At some point in early March, the parents of the youth who was injured went to the police department to complain about the incident. They then went on to meet with Commissioner Montagnino.

Commissioner Montagnino Acts

On Thursday, March 31, 2022, Commissioner Montagnino summoned the lieutenant in charge of the investigation to his office. He instructed her to raise the charge against the youth from harassment, which is a violation, to assault, which is a criminal offense and a misdemeanor. My understanding is that it was a directive and not a consultation.

I am told that the Police Department policy is that a harassment charge is used when an incident does not involve serious injury. A black eye or a split lip under this definition would not rise to assault. A more serious injury such as a broken limb or a damaged eye would constitute an assault. Who instigated the fight is also factored into the decision on what charges to bring.

Numerous sources report that the lieutenant declined Montagnino’s order to change the charge and asserted that she reports to the Chief of Police and not to the Commissioner. I am told, but cannot verify, that she told Montagnino, “James, I do not report to you, I report to the chief” and that he responded by telling her that in the future she was to refer to him as the “Commissioner” and that she “F#ing works for him” and that she was being insubordinate.

Montagnino later summoned the lieutenant again to a meeting and this time told her that he was pursuing disciplinary action against her. She could resign or she could take administrative leave pending a hearing regarding charges of gross incompetence and insubordination which, if found to be true, could result in her termination. Montagnino gets to appoint the hearing officer who would hear the case.

For as long as anyone I know can remember, no Public Safety Commissioner has interfered in a criminal case being investigated by the police. As politicians who must run for election, Commissioners are very much subject to pressure from constituents. The last thing this city needs is a Public Safety Commissioner helping out donors, party bosses, or anyone else with an interest in the outcome of a criminal matter.

I have no idea what Commissioner Montagnino’s relationship is with the parents of the youth involved in the case of a drunken altercation at a teenage party. What I do know is that he should not have met with them to begin with, and most importantly, he should not have interfered with the ongoing investigation.

Violating these norms is an invitation to cronyism and corruption.

Montagnino Makes a Disturbing Public Relations Move

In an effort to get ahead of the story, Montagnino, as is his practice, contacted WYNT television (Channel 13) about the case. Montagnino has appeared frequently on WNYT. He was able to dominate two stories over two days on his criticism of the handling of this case.

Here is a link to the first WNYT story.

As this is an ongoing investigation (as of this writing no one has been arrested and the investigation is continuing) it was shockingly inappropriate for Montagnino to be discussing this case publicly in the media. Normally, the standard protocol is to respond to inquiries by the media in a case like this by saying, “this is an ongoing investigation, and we cannot comment on it at this time.”

In addition, though, Montagnino went on to make a particularly disingenuous, reckless, and irresponsible statement suggesting race played a role in what charges the lieutenant decided to bring in the case.

“One of the aspects of the case that I find deeply troubling is that all of the other participants were White. The victim, himself was the only African American involved in the situation. I hope, I truly hope that racial animus played no part in the decision (to) not assess this as a crime,” said Montagnino.  [technically harassment is a violation and a violation is not considered to be a “crime”]

WNYT April 1, 2022

While Montagnino did not name the officer who decided the charge, the word was already out about the action he had taken against his lieutenant. Raising the specter of racism allowed him to establish a narrative that would work in his favor and against the lieutenant. He qualified his ugly accusation to WNYT with the smarmy phrase “I truly hope that racial animus played no part…”

It is important to note that the lieutenant is a twenty-one-year veteran of the police force. She rose from patrol officer to Lieutenant during those years. I spoke to Chris Mathiesen who served two terms as the Commissioner of Public Safety. He was appalled to learn of Montagnino’s actions. He told me that during his tenure he promoted her to sergeant. He described her as an outstanding police officer whose record during his term was unblemished. Others have given her similar accolades.

The District Attorney

In the system of justice in New York State, it is the county District Attorney who prosecutes criminal cases, and it is the District Attorney in the end who decides what charge to pursue.

In that context, given the disparity between Montagnino’s assessment of the case and that of his lieutenant, I am told by several attorneys, that the prudent route for Montagnino to have taken would have been to discuss the case with the District Attorney.

Montagnino’s failure to engage the DA could be considered either an unfortunate oversite or a conscious strategy to avoid a contrary opinion. Either way, it speaks badly for him that he failed to consult the DA but instead went straight to the media.

Ignoring The Chain Of Command

I have no direct knowledge as to what if any consultation Montagnino had with Police Chief Shane Crooks before taking his action in bringing serious charges against the lieutenant. What is clear is that rather than working through the existing chain of command, he circumvented his police chief and for whatever reason chose to deal with the lieutenant directly.

The city charter gives the Public Safety Commissioner extremely broad authority. Technically, it was within his authority to bypass the police chief, but the implication is that he did not have confidence in his Police Chief to carry out a proper review.

Anyone with organizational experience would understand that this sends a message to Montagnino’s officers and the entire force that the Chief has lost his confidence (if the Chief ever enjoyed that confidence).

Organizationally, this was a very damaging management decision.

An Extremely Damaging Precedent

The city charter gives the Commissioner of Public Safety extremely broad powers of civilian control over the Police Department. It states that the Commissioner shall have “jurisdiction, supervision, and control of the governance, administration, disposition, operation, and discipline of the Police Department and its officers subject to section 6.1 of this charter.” [Title 6] Section 6.1 states that “the police department of the City of Saratoga Springs shall be under the general control and management of the Commissioner of Public Safety.”

While commissioners enjoy this kind of broad authority according to the charter, previous officeholders have refrained from interfering in criminal investigations.

If this is how Commissioner Montagnino is going to operate, he is going to be very busy meeting with people seeking to affect charges involving themselves or their family members or friends.

What I want in the Commissioner of Public Safety is someone who if approached about a particular criminal investigation tells the parties, “I am sorry, but it would be inappropriate for me to intercede in an investigation. If you have important information about an ongoing case I urge you to take it up with the officer overseeing the investigation.”

A History of Alleged Misogyny Plagues Montagnino

Montagnino’s interference in a case led by the highest-ranking female in the Saratoga Springs Police Department and the charges he has brought against her that could lead to her dismissal has reminded those who know his history of some unfortunate incidents in his past.

For a number of years, Montagnino served as a “special referee” in Westchester, New York overseeing divorce proceedings. He was the subject of a number of complaints by women over what they characterized as his bias against them.

A story that appeared in the New York Post (not my favorite newspaper), seemed to add credence to their claim. Referring to women seeking divorce settlements he gave students the following advice.

At a 2004 Pace Law School lecture, Montagnino warned lawyers to “beware of the 10583 Syndrome,” a reference to posh Scarsdale’s ZIP code.

“The 10583 mentality . . . says that ‘I’m entitled and I ought to be able to get the house, I ought to be able to get support . . . I ought to be able to live with my son’s drum instructor happily ever after and it all should be on his dime,’ ” he (Montagnino) said.

New York Post April 10, 2006

Unfortunate remarks that are on the record.