On Monday, May 23, 2022, Saratoga Springs Finance Commissioner Minita Sanghvi arrived at City Hall only to discover someone’s car in her parking space. Her reaction was to call 911. My understanding is that the dispatcher at the Sheriff’s Department who took the call referred her to the Saratoga Springs Police Department. As it turns out, the vehicle in question belongs to Mayor Ron Kim’s wife.
After a thorough investigation by the New York State Police into Saratoga Springs Democratic Chair Pat Tuz’s charge that Republican Public Safety candidate Tracey LaBelle forged signatures on her petitions, the result is in. Tuz’s charges were unfounded. Every one of the people whose petition signatures Tuz claimed were forgeries confirmed to the police that they had signed the document.
Tuz claimed some signatures were fraudulent because some of the people who signed LaBelle’s petitions did so using block letters. These same individuals wrote their name in cursive rather than block letters when they registered to vote. As city Democratic chair, Ms. Tuz has to know that mistakenly using block letters on petitions is a common error and does not necessarily constitute forgery.
Ms. Tuz’s accusation produced embarrassing headlines for LaBelle, and Tuz made a series of harsh comments to the press telling the Gazette that there was “clear evidence” of forgeries on the petitions.
There was a time when people who carelessly hurt others would apologize. Some still do, but Ms. Tuz is apparently not one of those.
Did Pat Tuz Ignore Attempts by the New York State Police to Contact Her?
The police report exonerating Tracey Labelle also documented that the State Police had repeatedly tried to contact Tuz without success.
It is troubling that Pat Tuz did not respond to numerous messages left by the New York State Police asking her to contact them regarding her complaint. I emailed Tuz asking her for an explanation.
Although she has not responded to my emails in the past, this time she sent me this curious reply:
I do admit to having a phone that I often forget to put the ringer on, in which case I don’t hear the call and even miss a voicemail. However, when people want to get a hold of me they usually do.
I wrote back to Ms. Tuz asking why she thought the State Police were then never able to get hold of her in spite of leaving numerous messages for her.
Ms. Tuz replied:
As discussed, they may have called, and I am very sorry if I missed the call, but, they have a lot to do, with many things going at once, as I do.
Saratoga Springs Mayor Ron Kim issued a press release alleging some kind of wrongdoing regarding the management of the email addresses that had been maintained by the city’s Recreation Department. The story was picked up by multiple media outlets including WNYT, the Daily Gazette, the Times Union, and the Foothills Business Review.
What is woefully missing from the release the Mayor sent out is supporting evidence of the possible wrongdoing he only hints at. He also demonstrates, yet again, his ignorance of New York State law.
I am from the old school. I believe that before I would go to the media with allegations that damage someone’s reputation, I would need to have gathered clear and compelling evidence that supported my claims. Mayor Kim did not do this.
Mayor Kim’s Poorly Documented Allegations
Basically, this whole fiasco began with a press release from Mayor Kim alleging that some persons, who the Mayor declined to identify, had alleged they had received emails from an unknown source (not identified). These alleged complainants (we do not know how many) claimed that the only way the unknown source could have gotten their email address was from the Saratoga Springs city Rec Center’s email list.
Subsequently, the person first identified in the media as making such a complaint was Gordon Boyd. Foothills Business Review (FBR) reported that Boyd made the allegations at a City Council meeting during the public comment period. Gordon Boyd played a leadership role in Ron Kim’s campaign last November. As the wags say, “he has a dog in this race.”
The fact that some persons claim that their email address was secure and that the only time they ever used it other than with family members was as a contact for the Recreation Department has to be viewed with some skepticism. It may indeed be true but nothing has been offered that would reliably establish it as fact.
I have been a computer consultant for several decades. I would be a rich man if I were paid for all the times users claimed to me that they could not have done something like shared an email address when later investigation proved this not to be true.
Nevertheless, for the purpose of this post, let’s assume what they say is true. The next question is who used this email list and for what purpose(s). Here again, Mayor Kim’s statements are full of contradictions and vague assumptions, and he colors his statements to add to the atmosphere of illegal clandestine shenanigans.
His press release states that there is evidence that a Rec Department email list was sent to “several employees outside the Recreation Department”, and yet he told the Gazette that “he is not making the connection between the release of the Recreation Department database and the unsolicited emails.” In fact, he stated, “We don’t know who is using the email addresses and what they are using them for.”
This doesn’t stop him from then telling the Times Union, that “he is learning the email addresses have likely [JK: my emphasis] been used for political purposes.”
At one point he drops a suggestion in a TU article that Moving Saratoga Forward is using the Rec Department list. He tells the TU he is hearing from people who are getting unsolicited emails from Moving Saratoga Forward and that they are telling him that “the only way [their email address] could have gotten into the hands of MSF was through the Rec Department.” After putting that out there he then tells FBR that he actually has no evidence to make that connection (FBR 5/17/22).
Likewise he disingenuously suggests to the TU, again without offering any evidence, that that the Rec Department email was used “first in 2020 to oppose a city charter change referendum and more recently to push school board candidates.” This of course contradicts his earlier statement to the Daily Gazette, that he doesn’t know what it was used for.
Mayor Kim Slimes Mayor Kelly
While Kim attempts to use this email issue to achieve a number of his political goals–discrediting the integrity of the previous officeholders for instance–he seems particularly focused for some reason on attacking his predecessor, Meg Kelly.
According to his own statement, multiple people had access to the Rec Department address file. He told the Gazette:
“Commissioner [Minita] Sanghvi’s department reviewed digital records and did in fact discover that on or about October 21, 2020, the Recreation Department email list was sent to several employees outside the Recreation Department, who would not normally have access to this information,” Kim said in a statement. “In addition, there is also digital evidence that the email spreadsheet was directly sent to former Mayor Meg Kelly’s Gmail account. It may also have been released by other elected officials, and we are continuing to investigate that possibility.”Daily Gazette May 16, 2022
So of all the people –we still don’t know how many–who received this email list why do Kim and the TU focus on Kelly?
Here’s the headline of the TU article “Saratoga Springs Investigating If Former Mayor Accessed Resident’s Emails.”
In fact, Kim and the TU know the name of at least one other elected official who received the email list–Michele Madigan. And if Sanghvi’s supposed forensic search of the city server was properly carried out, Kim knows the names of the other “several employees” he alludes to.
So in the tradition of most good detective stories, there are multiple suspects but this did not keep Mayor Kim from gratuitously naming only the past mayor.
Mayor Kelly has told me that she did not provide the email list to anyone outside of city hall. Even if she did, as I will point out below, it was within her authority to do so.
Mayor Kim, Apologize to Mayor Kelly
A person of character would feel chagrinned over having impugned the character of someone on such a dubious basis. They would have acknowledged to themselves that they took liberties with the facts that impugned the character of someone without having properly established the basis of such accusations.
Mayor Kim, you could redeem yourself and recover your reputation for fairness and accuracy by apologizing to Meg Kelly.
Mayor Kim Fails To Carry Out Due Diligence
Mayor Kim has added to the drama by stating that he is “turning this information over to the proper legal authorities to determine if there were any criminal violations.”
At the same time, Kim, a lawyer, admits to the TU that “he is still trying to determine if the breach is illegal.” And he told FBR that “It is unclear at this point whether any laws or even government regulations, were broken in the release of the email.”
In the May 20, 2022, edition of the Times Union, Mayor Kim stated that the mailing list was not accessible under the state’s Freedom of Information Law (FOIL). In effect, he is alleging that the information is privileged which would make its release to the public improper. He didn’t offer a legal citation for this claim. This feels unpleasantly like his steadfast pronouncements that the City Attorney was not a public officer that turned out to be false.
Whether out of malice or slothfulness, Mayor Kim does not appear to feel the need to do the required research before issuing such statements. This recklessness makes for greater drama, more news coverage, and dubious ethics.
As it turns out, he is wrong on the law. According to the New York State Committee on Open Government, the court ruling in Livson v. Town of Greenburgh established that mailing lists such as the one maintained by the Recreation Department are public documents available to any citizen. It confirmed that, notwithstanding Mayor Kim’s claim, the Rec Department’s mailing list is accessible under FOIL.
NYS Committee on Open Government’s FOIL AO 19703 from January of 2019, “In Livson v. Town of Greenburgh [141 AD3d 658 (2016)], it was held that a list of email addresses of residents used to inform them of events occurring in the Town is public. In short, it could not be demonstrated that disclosure of an email address would rise to the level of an unwarranted invasion of privacy. Many individuals, purposefully or otherwise, share their email addresses as a matter of course.”
I have FOILed for the email list. I have also emailed Mayor Kim asking about the legal basis of his claim. I do not expect an answer, but he deserves the right to defend himself and I would publish his response.
Kim colors his statements to add to the atmosphere of lawbreaking and clandestine shenanigans by alluding to unknown organizations that he plans to refer the matter to.
The city is in the process of turning over its information to the proper legal authorities to determine if there were any criminal violations, said Kim.Daily Gazette May 16, 2022
Kim said the city is now investigating if any laws were violated and, if so, who would investigate the violation.Times Union May 17, 2022
I will be interested to see if we hear from Mayor Kim should an investigation determine there were no criminal violations.
Saratoga Springs Mayor Ron Kim has continued his campaign against City Court Judge Jeffrey Wait. The history of this debacle goes back to Mayor Kim’s unsuccessful attempt to act as the City Attorney in the case of a code violation involving Church Street Trust (CST). Mayor Kim has now retained an attorney on behalf of the city to appeal Judge Wait’s ruling which dismissed CST’s code violation.
Briefly, CST originally pleaded guilty in Judge Wait’s court for doing work on a property without a building permit. The building department identified a number of items that CST would have to address before CST could receive its permit.
The hearing in question was to determine whether CST had successfully complied with the outstanding issues identified by the building inspector. CST was potentially subject to fines for failure to comply.
When the city failed to appear for the hearing (see original post), Judge Wait dismissed the case.
As Judge Wait dismissed the case “without prejudice” it meant that the city could simply file the complaint again if they wished and seek a new hearing on the same issues.
In fact, the Building Department has done just that. In addition to the issue of no building permit, they have identified four safety violations in their complaint against CST.
What Will the City Gain with This Appeal?
In spite of the fact that the city has refiled the complaint, the appeal of Judge Wait’s decision is for some reason moving forward as well. Judge James Murphy will hear the appeal. If the city is successful, all that will happen is that Judge Murphy will order that Judge Wait rehear the case.
As Judge Wait will be rehearing the case anyway, there appears to be no reason to go through an appeal.
I have to wonder whether Miller Mannix, who the city is paying to appeal this case, realizes that the city’s building department has reissued the complaint. I am at a total loss as to why the city is spending money on the appeal. It appears that this has everything to do with Mayor Kim getting back at Judge Wait and little to do with trying to resolve the issues with CST.
It also remains unclear whether the Mayor has circumvented the procurement requirements in his enlisting Miller Mannix. For a discussion of the issue here is a link.
A number of concrete barriers have been installed on the streets of Saratoga Springs as part of Accounts Commissioner Dillon Moran’s expansion of outdoor dining into public spaces. Unfortunately, I have been unable to find any record of the City Council approving the acquisition and deployment of these barriers as is required by city procurement policies.
In the eight years I have been writing about the City Council on this blog, this is the first time I have become aware of an expenditure of city dollars that has improperly circumvented the City Council and been hidden from public view.
Commissioner Moran doesn’t seem to grasp that the revenues collected by the city are not a piggy bank that he can personally dip his hand into at will without proper authorization and public notice.
Some questions that need to be answered:
- How much did it cost the city to acquire and deploy the barriers being used in the expanded outdoor dining program?
- Who was contracted with to acquire and deploy these barriers?
- Were there requirements for contracting to acquire and deploy these barriers such as an RFP or soliciting a minimum of three bids?
- If bids or an RFP were required, when was this done?
A Breakdown of Fiscal Controls
Normally, the protection for avoiding fiscal abuse in public spending rests with the other members of the Council in general and, in our form of local government, with the Commissioner of Finance in particular. Council members would normally in the past challenge and ask questions about these kinds of expenditures at the Council table. Unfortunately, the current Council members never ask questions and always vote unanimously. They seem utterly indifferent to following proper procedures for everything from the conduct of meetings to state and municipal law and the charter. They appear more interested in protecting each other than in requiring their colleagues to adhere to the law and the charter.
Reaching Out to Finance Commissioner Sanghvi with Disappointing Results
As Commissioner of Finance, Minta Sanghvi is, according to the charter, “the chief fiscal officer of the City” [Title 4, city charter]. Since Commissioner Moran did not respond to my emails asking about the purchasing of the barriers, I wrote to Commissioner Sanghvi regarding two issues.
- How did Commissioner Moran arrive at the fees for permits to expand outdoor dining? Here is the fee structure Moran proposed and that the Council adopted without any discussion:
Private Property – $100.00
Public Property (Sidewalks) – $500.00
Public Property (Sidewalks and Street Barriers) – $1,000.00
Why does a restaurant pay $500.00 to put tables on the city’s sidewalk? Why not $400.00 or $600.00? Are they subsidizing the cost for barriers deployed for other restaurants?
In observing the barriers the city recently installed for these restaurants, I noticed that there is quite a wide range in the number of barriers different restaurants are using. It appears, though, that there is only one fee charged no matter how many barriers a restaurant uses. What was the rationale behind this decision? It would seem reasonable to have had some kind of discussion as to whether there would be different fees based on how many barriers a restaurant used, but no one raised that issue with Moran.
Most importantly, though, there has been no public reporting on how much the city has collected in fees so there is no way of knowing if there is enough to cover the cost of the barriers. But then we don’t know what the barriers cost either.
2. I also noted in my communication with Commissioner Sanghvi that I was unable to find any record of the Council authorizing the expenditures for the acquisition and deployment of barriers and asked for her assistance in locating the appropriate Council action.
I don’t think my email to Commissioner Sanghvi could have been any clearer (see emails below). Her response, though, was to repeat the resolution authorizing the fee schedule which clearly did not address my questions as to how the fees were determined. Of particular note, she also ignored the question about the apparent lack of authorization for the acquisition and deployment of barriers.
In the end, I wrote her again to make sure she understood what I was asking for and since then I have not heard from her.
I have FOILed the city for all documents associated with the acquisition and deployment of barriers. I will be writing on this further when I get them.
A Reason for Hope?
I contacted newly appointed Public Works Commissioner Jason Golub regarding the issue of the lack of a resolution authorizing the expenditures for barriers. In an email to me, he offered to look into it. Perhaps a sign of hope and an independent voice at the table?
Jason Golub’s Email
thanks for reaching out. Obviously, you know that the deployment of the barriers and the process of approval/deployment all pre-dated my time on the council. That being said, I will look into the process that was followed and evaluate if there were any violations involving the acquisition and/or deployment of these barriers and let you know what, if any, corrective action is warranted.
My Email Exchange With Commissioner Sanghvi
From: “john kaufmann21” >
To: “Minita Sanghvi” <email@example.com>
Cc: “Dillon Moran” <firstname.lastname@example.org>
Sent: Monday, May 2, 2022 8:02:10 PM
Subject: What is the basis for the city’s fees for temporary outdoor dining?
I have written to Commissioner Moran trying to find out how he determined what restaurants should pay for the use of public areas to expand their business for outdoor dining. The fees range from $500.00 to $1,000.00. The $1,000.00 fee is for those who select to use concrete barriers which apparently the city is paying for. So, for example, how did Commissioner Moran determine that the use of public property plus the cost for providing barriers should cost $1,000.00?
Regrettably, he has not responded to my emails requesting this information. As Finance Commissioner you are responsible for overseeing all things financial.
I am sure you would agree that this is a reasonable request and deserves an answer.
I am writing you to ask for your assistance. I would think you would want to know whether the fees he is requesting of restaurants have a solid, thought-out basis.
Could you please advise me on how these fees were determined?
Also, the barriers have been installed at a number of restaurants but I can find no record of the council approving the expenditures for these. Can you advise me if the council has approved these expenditures and if so could you direct me to the minutes of the meeting when they were approved?
Here is the information from the April 5 city council meeting. The resolution is uploaded with the agenda.
From the minutes:
Discussion and Vote: Extended Outdoor Dining Fee Schedule Commissioner Moran stated the extended temporary outdoor dining fee schedule had three (3) levels. Moran stated Level 1 would be for extended dining onto private property where the licensee had previously were not permitted to utilize for dining use by either the City or the State Liquor Authority. Moran stated the fee for Level 1 to be one-hundred dollars ($100.00). Moran stated Level 2 would be for the use of public property – city curb to sidewalk. Moran stated the fee for Level 2 to be five-hundred dollars ($500.00). Moran stated Level 3 would be for the use of both public sidewalk property and city street property with city-owned barriers. Moran stated the fee for Level 3 would be one-thousand dollars ($1,000.00). Moran stated the fee would include the use of property, installation and use of the barriers, and application fee. Moran stated the application fee for Levels 1 and 2 were included in the pricing of each level. The intent of the fees is to invest the money back in to support the program. In years two and three of the program, the City will look to convert the blocks to something more decorative.
Commissioner of Finance
Saratoga Springs, NY
|From: Kaufmann||May 4, 2022, 11:44 AM (8 days ago)|
I am deeply troubled by your response. As indicated in my email to you, I was fully aware of what was in the minutes. My question was how did the city come up with these figures. I don’t think I could make my question to you any clearer. For example, I wrote:
So, for example, how did Commissioner Moran determine that the use of public property plus the cost of providing barriers should cost $1,000.00?
As you are the watchdog over the city to make sure money is spent appropriately, do you simply accept that $1,000.00 for the use of public land and for the use of barriers is the correct amount because the commissioner of accounts says it is?
I hope this is not the case. I hope that I simply caught you at an odd moment and you did not read my email carefully.
So I ask again, for example, was $1,000.00 the correct amount for the city to receive for the barriers and space. Similarly, I ask the same for the other fees.
I also asked in my email:
Also, the barriers have been installed at a number of restaurants but I can find no record of the council approving the expenditures for these. Can you advise me if the council has approved these expenditures and if so could you direct me to the minutes of the meeting when they were approved?
For some reason, you did not address this. I respectfully ask that you advise me when the council approved these expenditures and where I can find the record for this?
In the event that the council did not take action, could you please advise why this was exempted and, most importantly, what were the costs incurred by DPW for the barriers and what was the cost for deploying them in front of the restaurants?
On May 5, 2022, Dillon Moran posted the item below on his Facebook page and paid to boost its promotion. He accuses unnamed “social deviants” of spreading disinformation to the public about his efforts to inform the citizens of the substance of his proposed expansion of alcohol use in public places. Unfortunately, in his intemperate remarks, he unintentionally exposed the fact that he failed to comply with the requirements of the city charter.
Violating Requirements in the City Charter
Commissioner Moran appears to be completely oblivious that in publishing legal notices on May 1 and May 2, he failed to meet the requirements of publishing these notices in a timely manner as required by the Saratoga Springs city charter.
Notices for public hearings for ordinances must be published twice, and they must be published at least five days prior to the hearings.
The hearing was held on May 3. These two notices were published one day ahead and two days ahead respectively. By my count, they are four days short and three days short of compliance.
The Real Issue
The real issue here is not so much the technicalities of meeting the city’s legal obligations, important as this is. The real issue is how best to inform citizens of changes in city policies that may affect them.
How many would have thought to look for the text of Moran’s ordinance in the classified section of the Daily Gazette on May 1 and 2?
I went into this in some detail in an earlier post but briefly, the city has developed a user-friendly method that Commissioner Moran chose to ignore. The city publishes its proposed agenda on the Friday before its Tuesday meetings. Items in the agenda that set public hearings have regularly included a link to the actual proposed text of the law or ordinance to be considered.
Rather than graciously admit that he should have included such a link to his hearing in the agenda, Commissioner Moran has chosen instead to accuse those who have pointed out his error of having some kind of malign intent to mysteriously harm the city.
Making The City Vulnerable
In not meeting the requirements for public notice, Commissioner Moran has placed a cloud over the resolution he wants to be adopted. Strictly speaking, someone could probably bring a suit to nullify the city’s resolution. Of course, Moran and his fellow council members could just redo the process, but the point is that this kind of sloppiness has the potential to create liabilities and expenses for the city. Eventually, the indifference to detail of this council will catch up to them.
In a recent post I took Saratoga Springs Accounts Commissioner Dillon Moran to task for setting a public hearing without properly informing the public of what his proposal actually was.
At the City Council meeting Tuesday (5/3/22) Commissioner Moran issued a blistering statement claiming anyone who couldn’t find information about his proposed amendment to the city code was either “lazy or a social deviant intent on harming the community with…lies.”
Here is a video clip of Commissioner Moran speaking.
In this clip the Commissioner lists (inaccurately) the many ways the public has been informed about the language of his resolution on expanded drinking opportunities:
So Moran claims that besides listening to him read his proposal out loud that night at the meeting, citizens (who were not lazy or social deviants) could have read about the proposal in the newspaper or looked at it on the city website.
Let’s start with the claim that the “actual language has run in the paper on consecutive days.” Commissioner Moran is presumably referring to the fact that a notice of a public hearing on his proposal did appear on page 27 of the April 29-May 5 issue of Saratoga Today in the Classified section as required by law. Saratoga Today comes out once a week so it was not in the paper on two consecutive days or even in two consecutive issues (as were other notices of city public hearings). More importantly, however, was that the notice did not contain the actual language of the proposal as Moran claimed. Instead, it contained a brief summary stating that the legislation would create “exemptions to temporarily allow the sale and consumption of alcoholic beverages in designated public areas” without indicating what exemptions or what areas. “Any interested person” was informed that they could “inspect the Amendment in the office of the Commissioner of Accounts. ” Presumably this would have to happen between 9 and 5 on weekdays when City Hall was open. There was no indication that the actual wording of the proposal was available on the city website.
As it turns out the proposal is now on the city website but those looking for it have to know to go to the Public Hearings section of the city website not to the Council agenda or the Accounts Department page where one might first think to look. I for one have to say that after all these years of following City Council business I was not aware there even was a Public Hearing page until Commissioner Moran indicated at the meeting that this is where his proposal could be found. Lesson learned.
Here is the notice that appeared in the classified section of Saratoga Today.
How It Is Supposed to Be Done
The City Council has traditionally handled the setting of public hearings by including links in the agenda to the text of whatever is being proposed. This is nothing new. In fact, the current Mayor properly followed this procedure when he recently set a hearing to make changes in the city’s Uniform Development Ordinance.
This makes it simple for anyone checking the city agenda before Council meetings to easily see what there will be to comment on.
As I illustrate below, the normal method for setting a public hearing involves an announcement at a Council meeting of the hearing which includes a link to the text of whatever the purpose of the hearing is. It includes any relevant documents such as a resolution or, in this case, the proposed amendment to the city code.
In order to understand Commissioner Moran’s grossly inept handling of the public hearing on expanded drinking in the city, it is instructive to consider how the public hearings for changes to the Unified Development Ordinance were handled at the same meetings by Mayor Kim.
Here is an excerpt from the Mayor’s agenda for the April 19, 2022, City Council meeting when he set public hearings for the Unified Development Ordinance.
Note that the four public hearing items are underlined. This signifies that there is a link to a document with the actual language of the proposed changes to the UDO. Online, the user simply clicks on these to find out precisely what changes the hearing will address.
Now contrast this with the agenda for the Accounts Department at the same meeting.
Note that there is no black line under item #5. There was no link to the text of the changes being proposed by Commissioner Moran.
Now consider the Mayor’s agenda regarding the UDO proposals for the May 3, 2022, City Council meeting:
Here again, there is a link to the actual language under consideration for the UDO.
Now consider the Accounts Department agenda:
Again, there is no link anywhere on the agenda to the actual wording of Commissioner Moran’s proposal.
How Not to Do a Public Notice
Notices of Public Hearings on changes to local laws and ordinances are required by law to be published in designated newspapers.
Notice of Commissioner Moran’s proposal, as seen earlier in this post, while fulfilling the letter of the law, had no text and no information on how to view the proposal online.
Compare that with the notice for the UDO hearings which appeared in two consecutive editions of Saratoga Today. Most of the three columns on the page are the text of the proposed changes. This notice appeared in the April 22 and April 29 editions of Saratoga Today.
Learning From Mistakes?
Hopefully, Commissioner Moran will, in the future, be able to move forward and instead of berating the public, accept the responsibility as an elected official to more responsibly and transparently provide information to the public as he engages in the city’s business.
Last fall Black Lives Matter member Lexis Figuereo was arrested and charged with two misdemeanors and a violation. While all charges were either dismissed or dropped this spring, controversy over the nature of the charges and how they were resolved remains.
This post explores these controversies in two sections. The first section focuses on some of the issues raised by the charges against Lexis Figuereo. The second is an in-depth review of Judge Francine Vero’s decision to dismiss charges in the case. The discussion of the decision is lengthy but worth the time to read. It will hopefully shed some light on the complexity of what is required to determine guilt or innocence that often leads to the dismissals of charges in cases like this.
Part 1: The Charges
Black Lives Matter member Lexis Figuereo was arrested last September and charged with two misdemeanors for obstructing governmental administration arising from incidents at the July 6 and July 20, 2021, Saratoga Springs City Council meetings. He was also charged with disorderly conduct, a violation, for allegedly blocking traffic during a July 14, 2021, demonstration in downtown Saratoga Springs.
Here are two video segments of the July 20, 2021, City Council meeting showing some of the events of that evening that led to one of the misdemeanor charges.
This video clip shows Mayor Kelly attempting to bring order during the public comment period of the meeting that night.
This is a video clip of the chaos the meeting descended into as the Mayor attempted to conduct City Council business.
To Figuereo his behavior at the City Council meeting was an exercise of his Constitutional right to free speech. His lawyer Mark Mishler claimed that Figuereo had been “speaking out for justice” and that the charges of obstructing governmental administration were “bogus from the beginning and were only…pursued as a way to try to silence Lexis and to scare other activists from engaging in legitimate and constitutionally protected activism.”
This perspective on the charges was shared by Saratoga Springs Mayor Ron Kim and Finance Commissioner Minita Sanghvi. They appeared at a press conference prior to Figuero’s hearing and called for dismissal of the charges against Figuereo. They sharply criticized Saratoga County District Attorney Karen Heggen and Saratoga City Court Judge Francine Vero. Ron Kim told the Daily Gazette:
“We’re talking about a First Amendment right to protest. We’re not talking about somebody burglarizing a car,” Kim said. “Why are we even wasting taxpayer money dealing with this seems to be insanity. It is not cost free to have all the appearances and all the rest of this stuff. I don’t know why the district attorney did not dismiss this or the judge, a long time ago.”Daily Gazette April 15, 2022
My observation of our police is that they have no problem with people exercising their rights to speech and to assembly by marching on the sidewalks. Likewise, the police are willing to coordinate with Mr. Figuereo and other groups for a march that would occur on the city’s streets. The problems have occurred when BLM refuses to give the police any information on when and where they plan to demonstrate and then block traffic putting themselves and others in danger.
As Mr. Kim, who is a lawyer, is well aware, no right is absolute. Slander, for instance, is not protected speech. Judge Vero addressed this issue when she ruled that there was enough evidence to allow the charge against Figuereo for disorderly conduct arising from the obstruction of traffic in a July 14 BLM demonstration to proceed. She quoted from two relevant precedents:
[t]he authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need.Cox v State of New Hampshire
A state may prohibit someone from “taking his stand in the middle of a crowded street, contrary to traffic regulations and maintain[ing] his position to the stoppage of all traffic….since such activity bears no necessary relationship” to freedom of speech (Schneider v State of New Jersey). To that end, “[w]hen conduct, even taking the form of protest, substantially interferes with vehicular or pedestrian traffic, prosecutions for disorderly conduct are appropriate and constitutional.”Judge Vero
Similarly, Figuereo certainly had the right to address the Council like any other citizen during the public comment period but not to shout at the Council in a way that made it impossible for them to carry out city business.
I wonder how Kim and Sanghvi would react if it had been white supremacists interrupting City Council meetings.
In the end, the two misdemeanor charges were dismissed by City Court Judge Francine Vero, and Saratoga County District Attorney Karen Heggen dropped the remaining violation charge, but none of these decisions had anything to do with the free speech and assembly issues Figuereo and his supporters focused on in the press.
Judge Vero Dismisses Two Charges Due to Inadequate Documents
On April 15 Saratoga Springs City Court Judge Francine Vero dismissed on technical grounds the two misdemeanor charges that alleged Lexis Figuereo “Obstructed Governmental Administration” (OGA) by disrupting two City Council meetings.
The prosecution is required to meet a variety of essential requirements in order to successfully achieve a guilty verdict in cases involving OGA charges. Vero’s decision focused on the inadequacy of the paperwork provided to the court by the District Attorney (a fuller discussion can be found later in this post). As the charges were dismissed “without prejudice”, however, the DA had the opportunity to either correct the flaws cited by Judge Vero and resubmit them or to bring different charges related to the disruption of the City Council meeting that might better satisfy the Judge. Instead, the prosecution chose not to pursue either of these options for reasons that only later became evident.
In the case of the disorderly conduct charge related to blocking traffic, Judge Vero was prepared for the parties to go to trial. It is important to note that Figuereo’s attorney, Mark Mishler, contended that his client was not present at the event. The prosecution’s paperwork apparently presented sufficient evidence to the court documenting Figuereo’s activities that day (I assume body cam and other videos) that contradicted Mishler’s assertion that Judge Vero decided a trial was in order.
Surveillance, Discovery, and the Collapse of The Prosecution
On April 22, Saratoga County District Attorney Karen Heggen released a statement requesting that the court dismiss the remaining violation charge against Figuereo. She gave two unusual and surprising reasons for her actions.
One of the two reasons she gave for withdrawing the last charge against Figuereo was somewhat of a critical swipe at Judge Vero. Vero had previously dismissed similar charges against Jamaica Miles “in the interest of justice.” Heggen asserted that because of Vero’s actions in the Miles case, there was no point in pursuing the charges against Figuereo because, DA Heggen contended, Judge Vero would do the same again. Given the differences between Miles who had no previous criminal convictions and is a single mother of three versus Figuereo who has a record of previous convictions it is not obvious to me that this was a fair conclusion on Heggen’s part. It does not seem to me to be a compelling reason to drop the charges.
The second reason DA Heggen cited was the existence of an ongoing investigation by an outside, unnamed organization that predated the July 14 events that lead to Lexis’ arrest. She claimed that pursuit of the disorderly conduct charge would interfere with that investigation.
When Lexis Figuereo was arrested, the police seized his cell phone. Mr. Figuereo sought for months to get it back and when it was finally returned to him it was in an FBI evidence bag. So I think it is reasonable to assume that the mystery agency is the FBI.
The case against Figuereo collapsed because the involvement of the FBI was not disclosed to the defense. DA Heggen was unwilling to pursue with the FBI whatever evidence they might have gathered in order to comply with the discovery requirements. Her refusal to do this meant the case could not go forward.
A Troubling and Inconclusive “Resolution”
Lexis Figuereo has managed to take a laudable call for social justice and reduce it to a series of nuisance events that have alienated many who would share his goals. Having observed him and the people who follow him, they appear to believe that disrupting the deliberations of the Saratoga Springs City Council by yelling epithets and shouting abuse will somehow build a social movement.
Mr. Figuereo is undoubtedly annoying but for me, he does not rise to the status of being a serious threat meriting an FBI investigation. If, in fact, the Federal Bureau of Investigation is investing serious resources to investigate him, it is a sign of how wasteful our intelligence agencies can be. More likely, he is probably peripheral to something else they are investigating. What is frustrating is that their investigation has interfered with a thorough judicial review of Figuereo’s actions here in the city.
The challenge for Saratoga Springs and its police is how to manage Mr. Figuereo and his group while protecting their civil rights but also avoiding injuries to demonstrators, the public, and the police and the disruption of council meetings so that city business can be transacted.
As demonstrated by the results of Figuereo’s court cases, finding a solution will not be easy.
DA Heggen’s Letter to Judge Vero
Part 2: Judge Vero’s Decision–Into the Weeds
I have spoken to a number of lawyers who felt that Judge Vero wrote an unusually long, thoughtful, and thoroughly researched decision, especially for a misdemeanor charge in a local municipal court.
In a twenty-three-page decision issued on Friday, April 15, 2022, City Court Judge Francine Vero dismissed two of the three charges against Lexis Figuereo. The charges were dismissed for technical reasons.
This is a very long section because Judge Vero’s decision involves a great many issues and many of these are still unresolved.
I urge readers to take the time to go through this part of the post because it is instructive as to how much more complicated the issues of guilt and innocence are than most people realize.
A casual observer, like me, of the events of July 20, 2021, may come away from viewing the video believing that it seems obvious that Mr. Figuereo participated in an action that made it impossible for the City Council to transact their duties and that therefore he is guilty of “obstructing government administration.”
Judge Vero’s opinion documents that the issues are far more complex.
Mark Mishler, the attorney representing Lexis Figuereo, is a talented and experienced criminal defense attorney. His rigorous challenges to the charges expose just how difficult rendering guilt and innocence is.
Judge Vero dismissed the charges of obstructing government administration (interfering with the city council’s deliberations) citing that the complaint submitted to the court was “Facially Insufficient.”
In order for a misdemeanor information (complaint) to be facially sufficient the misdemeanor information must, when viewed in a light most favorable to the People (the District Attorney or prosecution), contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged. [my emphasis]Crotty | Saland
As Judge Vero states in her decision:
Every information (jk: complaint) must contain an accusatory part (jk: what the person is being charged with) and a factual part, and the factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.Judge Vero
“Evidentiary” here means facts that are consistent with the standards of the court. “Hearsay” is not evidentiary. A statement by a police officer that he heard that person X did Y would be considered hearsay.
A statement by a witness that personally saw X do Y would be evidentiary as would be physical evidence like a weapon.
Basically, in their information/complaint, the prosecution must lay out what it believes the facts to be that they hope to prove at trial.
This is especially important as it provides the defense with the required information for them to prepare their case.
So for example the charge might be shoplifting. The complaint/information must include “facts of an evidentiary nature” such as affidavits from persons who saw the theft describing what they saw. It would include a description of the item that the person was trying to steal.
In her decision, Judge Vero observed that the complaint was based on statements made by a police officer on “investigation, photographs, and video alleging the incident.” The key issue here is that the officer offering support for the charges was not present at the actual events. Vero notes that “To date, the People (prosecution) have failed to file a supporting deposition sworn to by the mayor or anyone present at the meetings.” She notes that the July 20 events had at least an incident report in which a police officer describes what he observed and heard on a video. Judge Vero writes, “With respect to the July 6th alleged incident, there is no police report, supporting deposition, or other document attached to or accompanying the information.”
So the defense argues that the complaint is simply based on hearsay evidence or “conclusory” assertions. In this case, a conclusory assertion would be that “Figuereo obstructed the meeting.” Stating that it happened is not the same as documenting the specifics meant to prove what happened.
The prosecution disagreed with the judge regarding her claim of lack of evidence. They cited a precedent that “…an affiant (a person who swears to an affidavit) officer’s statement of what he or she views or hears on a videotape is not hearsay.” Such a precedent might have provided a strong basis for appeal.
Judge Vero notes that “Even if the Court were to consider the allegation in the July 20th Incident Report as non-hearsay, the Report has not been verified by any of the methods set forth in… [she cites a series of precedents] and based upon the Report narrative it is not clear whether the officer is relying on a review of a transcript in addition to video footage to form the basis of the allegations.” Apparently, the complaint did not make clear what sources the officer used in determining the charge.
So basically, Judge Vero dismissed the “Obstruction” charges because the information/complaint was fatally flawed because it lacked clear facts supported by affidavits made by persons present at the incidents.
Prosecution Has Not Proven Obstruction of Government Administration
Judge Vero asserts that putting aside the “deficiencies,” the prosecution has still failed to address the required basis for the charge of the Obstruction of Government Administration.
“The statute requires as an element of the crime that the accused act by one of three methods: (1) intimidation, (2) physical force or interference, or (3) any independently unlawful act.”Judge Vero
She cites a Court of Appeals precedent “…that purely verbal interference may not satisfy the ‘physical’ component under penal law.” “[M]ere words alone do not constitute ‘physical force or interference,’ [and] in order to trigger criminal liability under section 195.05, the interference would have to be, in part at least, physical in nature.”
I expect that this is because this charge is more commonly used when someone attempts to interfere with a police officer trying to carry out a duty like arresting someone. In that case, people yelling at an officer trying to make an arrest would not constitute obstruction.
Judge Vero wrote that in this case:
The only allegations regarding the Defandant’s conduct are that he “yell[ed] over,” “continue[d] to talk over,” “continued to yell,” “sp[oke] over,” and continually interrupted” the Mayor and Council members–That is it. This is purely verbal interference and does not satisfy the physical requirement of Penal Law 195.05.Judge Vero
Judge Vero wrote:
Intimidation in the context of the statute means intimidation by threat of physical force or interference. There is no allegation as to what the Defendant was yelling or that it put the Mayor in fear or deterred her by means of a threat.Judge Vero
Independently Unlawful Act
Judge Vero wrote:
The people (prosecution) submit the Defendant could have been charged with Disorderly Conduct (Penal Law 240.20) and this uncharged offense constitutes the independently unlawful act upon which the Obstructing Government Administration in the Second Degree charge may be grounded. This is a vague, conclusory alternative theory of the alleged act of obstruction that simply does not provide the Defendant with the “requisite ‘notice sufficient'” to defend against the charges.Judge Vero
The factual part of the Information (complaint), however, does not in any way allege the Defendants conduct constituted another independently unlawful act, to wit, Disorderly Conduct.Judge Vero
Here, Judge Vero observes that as the prosecution did not include the charge of Disorderly Conduct in their complaint, they cannot utilize this argument now. It’s too late.
Judge Vero wrote:
The Informations (complaints) also fail to establish the element of intent. The Informations merely allege the Defendant “prevent[ed] the Mayor from performing her official functions. There are no allegations that by yelling he intended to obstruct, impair, pervert, prevent, or attempt to to prevent the Mayor from performing an offical function. Also absent from the Informations (complaints) are any allegations from which the Defendant’s intent or recklessness can be discerned.Judge Vero
The prosecution did not establish intent as they did not offer any evidence showing that Mr. Figuereo’s actions were consciously done in order to disrupt the proceedings of the council.
So the District Attorney’s office could have used Judge Vero’s arguments for dismissing the Obstruction charges to recraft their complaint and resubmit it. They could also have considered whether there are other charges regarding the events at the Council meetings that might better hold up under her scrutiny.
Problems With Discovery
Judge Vero wrote:
Under CPL 245.2 (1) prosecutors are required to disclose “all items and information that relate to the subject matter of the case that are in the possession, custody, or control of the prosecution or persons under the prosecution’s control.”Judge Vero
The prosecution is required to provide this information to the defense within thirty-five days of the arraignment.
Once the prosecution has fulfilled the discovery requirements…it must serve upon the defendant and file with the court a certificate of compliance (COC). “The certificate of compliance shall state that after excercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecuter has disclosed and made available all known material and information subject to discovery” and “identify the items provided (id).”Judge Vero
The prosecution, having provided all relevant documents to the defense, must submit a certificate formally declaring that they have met their obligations. So on September 24, 2021, the prosecution filed their COC and Statement of Readiness for Trial.
In early January 2022, the Defense became aware for the first time that undercover law enforcement officers were present at the July 14, 2021 protest…the next day the People (prosecutors) disclosed the names of seven individuals from Saratoga Springs Police Department (SSPD) and Saratoga Sheriff’s Department who were present at the protest in an undercover capacity.
On January 13, 2022, the People (prosecution) disclosed the SSPD’s 30 page Operational Plan for the protest.
The People (prosecution) concede the identities of and information regarding the undercover officers and Operational Plan are discoverable materials that should have been provided in their original discovery package. This evidence is not only undeniably discoverable but also extremely significant for the Defense. The issue before the Court is whether the belated disclosure renders the People’s (prosecution’s) COC invalid.
“[n]o adverse consequence to the prosecution…shall result from the filing of a certificate of compliance in good faith and reasonable circumstances.” “[N]umerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the excercise of due diligence.”Judge Vero
The fact that the prosecution failed to include some discoverable information does not necessarily invalidate the certificate of compliance so long as the court believes the prosecution had acted in good faith and had not tried to hide items from the defense.
In this case, the only explanation proffered by the People for their failure to timely provide discoverable materials is that the SSPD failed to make them aware of the undercover officers or the Operational Plan.Judge Vero
Despite the People’s failure to ensure the required flow of information sufficient to avoid the omission of critical evidence, immediately upon realizing the People’s (prosecution’s) discovery as incomplete, the assigned assistant district attorney (ADA) diligently worked with the SSPD to obtain further discovery regarding the protest.
The ADA…expeditiously provided the names of all undercover officers, their impeachment materials and the Operational Plan to the Defense.Judge Vero
The court finds the People (prosecution) have substantially complied with their discovery obligations. When the discovery lapse came to light the ADA made diligent, good faith efforts to obtain and provide discoverable materials under CPL 245.20(1) to the Defense.Judge Vero
“…the Court declines to invalidate the People’s (prosecution’s) COC.Judge Vero
Even though Judge Vero did not invalidate the Certificate of Compliance (COC), this did not mean that she was dismissing the question.
A court may impose remedies and sanctions on the People for belated disclosures even when a certificate of compliance was filed in good faith.Judge Vero
She directed both parties to submit written submissions addressing possible sanctions.
The Defense has asserted that the prosecution has failed to disclose “communications and statements made by and between the undercover officers present at the July 14, 2021 protest.” These are discoverable but the prosecution claims that it has sought these items but that none exist. Such communications, the prosecution contends, may have been only verbal and no written documents or recordings exist.
Judge Vero wrote that at this time she is taking no action. She does, however, concede that “…its is likely at least some of those communications were written or otherwise recorded.” “…Defendant is granted leave to renew his motion to strike the COC on this ground if it is revealed at the…conference that the People (prosecution) failed to disclose any written or recorded communications between the undercover officers present at the July 14th protest, including Emails or text messages. The Defense may also move for sanctions pursuant to CPL 245.80 on this ground.”
The Defense also contends that the police monitored the defendant dating back to June of 2020 and asserted those records should have been provided. This may tie into the reason the DA dropped the last charge. It may be that those records are related to the larger investigation that is being carried out by the unnamed organization (the FBI).
In their Opposition the People (prosecution) submit they “have continually sought these records as part of their discovery obligations and have represented to [the] Defendant that no such additional records exist. Additionally, the People (prosecution) are continuing to request these records.”Judge Vero
The parties’ submissions are inadequate to provide the Court with a clear understanding as to where they are with respect to this critical item of discovery. It is unclear whether the People (prosecution) have attempted to locate such information and materials and none exists, or if the People’s (prosecution’s) position is this discovery is overly broad…, or if some materials have been provided since January and the Defense is requesting more.Judge Vero
Judge Vero writes that there will be a conference with the lawyers on April 26, 2022, to go over the issue of potentially still undisclosed items. If it had turned out that there were, the prosecution would have been directed to obtain them and to file a supplemental certificate of compliance.
The People’s (prosecution’s) failure to disclose may result in striking the COC or imposing sanctions…Judge Vero
The Defense also argues that they have a right to the disciplinary records of the police officers involved. The prosecution provided some documentation regarding the plainclothes police but has declined to provide documentation for officers whose disciplinary allegations were deemed to be “unsubstantiated” or “unsustained.” The prosecution claims that no such unsubstantiated complaints exist. The prosecution argues that even if unsubstantiated complaints exist the prosecution is not obligated to disclose them.
Judge Vero drew a distinction between unsubstantiated complaints against officers and exonerated and unfounded allegations. She wrote that unsubstantiated complaints are discoverable.
In the end all this became moot when DA Heggen asked the court to dismiss the remaining charge against Figuereo.