Month: June 2022

As background to this scandal, I refer readers to this earlier blog:

Don’t You Dare Park In Commissioner Montagnino’s Parking Space!😱

There have been designated parking spaces for Saratoga Springs City Council members in the city owned parking lot behind City Hall for years. More spots, though, have now been allocated to the Commissioners’ Deputies, and it appears that Public Safety Commissioner Montagnino has acted inappropriately in designating these spaces a tow away zone.

Current City Council members seem to have an exceptionally strong sense of proprietary rights regarding these spots. First it was Finance Commissioner Sanghvi calling 911 to complain about a car parked in her space that turned out to belong to Mayor Kim’s wife. Then it was Public Safety Commissioner Montagnino declaring his parking space a tow away zone.

I have spoken to a number of past Council members, and they have all told me that, on occasion, they would find some interloper had parked in their space. Their response was simply to find another space that was available.

That was then….

Do The Council Members and Their Deputies Merit Their Own Parking Spaces?

I personally have no problem with designating parking spaces in this lot for our elected officials. They are paid a mere $14,500.00 salary and, in spite of the fact that they officially are part-time, most regularly spend many more hours in City Hall attending to city business.

I do have reservations about the Deputies now also having allotted spaces there, though, when an agreement with the City Center when it was constructed allocated sixty spaces in the facility for the city government’s use. Part of the idea was to free up the well-located city owned lot for public use.

The City Center parking facility is a mere 70 feet from the Deputies’ current parking spaces. According to one calculator on the web, it takes approximately 30 seconds to walk 70 feet. Most people who work would love to have an easily accessible free sheltered parking spot that close to their place of employment.

Why tie up the prime spots now designated to Deputies twenty-four/seven/three hundred and sixty-five days a year? For that matter perhaps the Commissioners might also want to consider using the spots in the City Center garage.

Did Commissioner Montagnino Have the Right to Designate His Space a Tow Away Zone?

The tow-away zone signs that have been posted are confusing. They were done by the Department of Public Safety under the direction of Commissioner Montagnino. One sign is situated in front of Commissioner Montagnino’s parking space and now another one has appeared in the space designated for the Deputy Commissioner of Accounts. Does this mean that only those two spaces have been designated as tow away zones or are the signs meant to apply to all the Council and Deputy spaces?

Whether or not you agree that these people should have the perk of private parking spaces, Commissioner Montagnino violated the city’s parking codes in unilaterally authorizing these “tow-away” zones.

The lot behind the city hall is described in the city’s code in Chapter 225-32, Schedule XXII as a two-hour lot. There is nothing in the code for this lot that authorizes a tow-away zone, let alone designates parking for public officials and their deputies.

There are a number of sections of the city code that address parking regulation.

Chapter 225-26 Schedule XXX identifies areas where parking is prohibited (the parking spaces that constitute the city lot are not included). The code lists a variety of streets that prohibit parking on one side or the other or on both sides.

Chapter 225-26 does give the Commissioner of Public Safety unilateral authority to make certain temporary regulations to cover emergencies or special conditions and also gives the Commissioner certain discretion to change hours and time limits for parking upon proper posting and in conformity with the chapter. I assume this authority is meant for things like parades, road races, festivals, etc.

Chapter 178, “Public Property,” allows for property owned by the city to be posted with a notice regarding its use, and any violation of that notice would be considered a trespass under that chapter. However, the notice must be posted at the “main entrance” or other approach.

So the city can, not surprisingly, regulate parking, but to do so properly requires following proper procedures and regulations. Nowhere is the Commissioner of Public Safety given the authority to unilaterally have his parking space or those of his colleagues designated as tow-away zones.

Hoisted On Their Own Petard

Commissioner Montagnino frequently references that he is an attorney and often resorts to legal verbiage when making points.

This recent business with parking spaces is part of a broader pattern of the current Council’s sense of both entitlement and an indifference to properly research the law before rewarding themselves with the city’s resources.

They need to spend less time criticizing past administrations and touting their rigorous administration of the city and spend more time carrying out due diligence before acting.

The previous administration, which enjoys the contempt of this current government, had two lawyers whose duties included vetting proposed actions to ensure their legality before those Council members took any action.

What Will the Members of the Council Do Now That the Violation of City Code Has been Pointed Out to Them?

Probably nothing.

The picture below shows voting machines being unloaded by our local custodians and a County Board of Elections employee at one of the Saratoga Springs polling sites.

The Saratoga Springs Accounts Department is responsible for managing election logistics in the city. Among other duties, the city is responsible for picking up the voting machines from the Saratoga County Board of Elections in Ballston Spa the day prior to elections and delivering them to the city’s polling sites. According to officials at the Board of Elections, no one from the city showed up this morning (Monday, 6/27) to pick up the machines. Primary elections for candidates for state offices are scheduled for Tuesday, June 28.

As long as anyone who has been involved in local elections can remember, the Saratoga County Board of Elections has notified the Accounts Department that the machines are ready for pick up. The Accounts Department has then notified the Department of Public Works which has sent an employee to Ballston Spa to transport the machines using a truck provided by the County Board of Elections. According to Public Works Commissioner Jason Golub, DPW was not notified by the Department of Accounts to pick up the machines. The County Board of Elections confirmed that they had notified the Accounts Department as usual and had delivered the supply bags for the election to the Accounts Department on Friday.

When no one from the city showed up this morning to pick up the truck with the machines, the Board of Elections stepped in and found one of their employees to drive the machines to Saratoga Springs. Once in Saratoga, the truck was met as usual by the city’s four “custodians”, two Democrats and two Republicans who work for the county Board of Elections but are recommended by the chairs of the local political committees. The custodians’ job is to assist in delivering the voting machines and setting them up in each of the city’s polling sites.

I have emailed Accounts Commissioner Dillon Moran asking why there was a problem this morning. When I get his response, I will post it.

It didn’t take long after Todd Kerner resigned the position he had held for over a decade as Saratoga County Democratic Chair for Saratoga Springs Democratic Chair Pat Tuz to spring into action promoting Joanne Yepsen to fill that position as the email below from Tuz shows. Apparently Tuz and Yepsen were either ignorant of or didn’t care that the County Committee’s by-laws had a process in place to fill the vacancy which they seemed to be ignoring. According to the County’s by-laws the chair’s position automatically is filled by the first or second vice-chair.

Below is Tuz’s email and Kerner’s response which a friend shared with me.

From: “Todd M. Kerner, Esq.”
Date: June 20, 2022 at 11:16:09 AM EDT
To: Todd Kerner <
Subject: County Chair Position

All,

See below an email someone forwarded to me.  

Pat – There have not been confirmations that the first and second vice-chairs will not assume the chair position?  If not, this email is very disrespectful.  I also am using the current executive committee list as you are using an old one.  If neither assumes the role, this must be filled by a regular meeting noticed to every committee person with a quorum present.  I remain a committee person and will expect the rules be followed as I did for 11 years.  

Please see the bylaws on county committee website for specifics.  

Todd

---

This is an email sent out by Saratoga Springs Democratic Committee Chair

Sometime in the next two weeks, there will be a groundbreaking for the new eastside Fire and Emergency Medical Services station. This has been a long time coming. With the construction of water and sewer lines on the eastern plateau decades ago, there was an explosion of development in that area of the city. There were, however, longer response times for emergency services to get there from the city’s two existing fire stations.

When Chris Mathiessen became Commissioner of Public Safety, he made a valiant effort to secure land for an eastside station to serve this fast-developing area of the city. A deal he made with a local synagogue and Joel Aronson, who owns the Algonquin Building, for a land swap involving a plot east of the Northway collapsed when the Attorney General rejected the agreement.

It was Mayor Meg Kelly who entered into the negotiations with the New York Racing Association that finally secured the land required for the station at no cost to the city. Kelly deserves enormous praise for finally acquiring a site for the project for the city.

It now remains to be seen whether the current city administration will have the courtesy to recognize her work by inviting Ms. Kelly to the groundbreaking ceremony. I hope they do.

In earlier posts, I have reported on Saratoga Springs Mayor Ron Kim’s debacle in his attempt to act as the City Attorney in City Court over a code violation case (see links to stories at end of this post). He received highly critical coverage for his actions, including an editorial in the Times Union (page down in their editorial to find the reference).

Most recently, Miller Mannix, the private law firm Kim has engaged to appeal this case is now also filing an additional suit, an Article 78. Apparently, Miller Mannix convinced Mayor Kim that the regular appeal might not prevail, so as a backup, they have prepared this additional legal action.

I have FOILed the city to try to find out how much all this legal work is costing.

What’s even more troubling is that this legal work on the part of Miller Mannix appears to be pointless given actions being taken by the City’s Building Department and the owner of the property in question.

An Utterly Pointless Suit

The case in question was the “City of Saratoga Springs v Church Street Trust”. It involved a contractor who initiated work without a permit on a building he owned. When the city failed to appear for the hearing (see story below), City Court Judge Jeffrey Wait dismissed the case against the contractor.

It is important to understand that Judge Wait’s decision did not empower the contractor to proceed with his project without a building permit. In fact, Judge Wait’s decision included that the dismissal was “without prejudice,” which meant the city could refile its complaint and pursue the case with representation by a properly appointed City Attorney.

In fact, as the documents below illustrate, the city has still not issued a building permit to the contractor. Rather the city’s Code Enforcement Department has submitted its complaint again. This complaint, in addition to the issue of not having a building permit, now includes additional code violations.

If the purpose of the Miller Mannix appeal is to ensure that the contractor does not do any work before all code violations are addressed and a proper building permit issued, the new complaint submitted by code enforcement (see documents below) that will be heard in city court this summer will achieve this. There is no reason to expend public money appealing the Wait decision.

Adding to the pointlessness of the appeal and the Article 78 is the recent revelation that the contractor now has a contract to sell the property that is at the root of the conflict. This would render the violations against the current owner moot as well.

I wrote to Mayor Kim asking why he is pursuing this legal appeal. He did not reply. I even went to a City Council meeting in May and asked him to explain the purpose of the lawsuit. He ignored my question, and no one on the Council used the occasion to seek an answer.

It is regrettable that Mayor Kim, who repeatedly criticizes the past administration for their alleged lack of transparency, fails to live up to the high standards he espouses.

On its face, having Miller Mannix pursue their appeals is about as gross a waste of public moneys as I have ever observed in the eight years I have been writing this blog.

Violating City Procurement Policies

The city has an agreement with the law firm Miller Mannix to provide legal support to the city’s land-use boards. The agreement is very broad in scope, but it appears to be quite a stretch that pursuing a criminal complaint about code violations in municipal court could be constituted as providing legal service to the land-use boards. There is an argument to be made then that Kim should have gone through a separate procurement process to hire Miller Mannix to pursue this code violation case.

I do not think it is unfair to consider that Mayor Kim does not want to procure the services through a separate resolution from the council for these lawsuits because it would highlight their cost and would draw the public’s attention to them.

The Complaint Submitted By Code Enforcement

The following documents demonstrate that the city code enforcement office is seeking to enforce the original violations rendering the appeal and article 78 moot.

Past Posts Related To This Controversy

Mayor Ron Kim Spends Taxpayers’ Dollars on Vanity Appeal

Mayor Ron Kim: His Gross Mishandling Of A Court Case Raises Grave Concerns

At the State Liquor Authority’s (SLA) hearing with Gaffney’s, the bar offered up a memo of understanding (MOU) they had with the city. I presume it was written by Public Safety Commissioner James Montagnino. I write “presumed” because it was never presented to the City Council for action, so the entire process was totally opaque. Given Commissioner Montagnino’s history, it is both likely he wrote it and unlikely he had the city attorney review it.

The chairperson of the SLA dismissed the document. He characterized it as “not worth the paper it was written on.”

If Commissioner Montagnino wants to write a post for this blog explaining what this MOU was all about, I would be happy to publish it.

Todd Kerner, the chair of the Saratoga County Democratic Committee for over a decade, resigned before the end of his current term. The following is an email he sent to the Democratic committee members throughout the county. He offered no explanation for the suddenness of his resignation.

His Email to Committee Members

June 18, 2022 Committee Members and Friends,   After considerable thought over the past few months, I have decided to step down as the Saratoga County Democratic Committee Chair. During my term as Chair, now at almost 11 years to the date, I have had the pleasure to work with so many people who stand up for the tremendous values our party stands for, from elected officials, candidates, and committee members to volunteers. The County turns further from red to blue every year. We now have an Assembly district based in our county with a tremendous Democratic representative in Carrie Woerner; an excellent Congressional representative who represents most of the County and who will represent the whole county starting next year in Paul Tonko; and a Senate District covering our whole county which was won by President Biden by approximately 9 percent.   We have many exceptional candidates this year, including candidates for DA, 112th Assembly, State Supreme Court, and hopefully for the brand-new Family Court seat.   In addition, Assemblymember John McDonald and the complete statewide slate of Democratic candidates seeking election and re-election will add to our successes. I want to thank each one of you for the assistance and guidance over the years.  Without all of you, none of this would be possible. I will be working with the Executive Committee to ensure a smooth transition and provide any assistance.   Sincerely, Todd

Todd M. Kerner, Chair Saratoga County Democratic Committee

At the June 7, 2022, meeting, Saratoga Springs Mayor Ron Kim offered a resolution to transfer the Director of Risk and Safety from the Accounts Department to his office under the supervision of the City Attorney. The tone of Kim’s remarks (see video at the end of this piece) was heated and self-righteous while to his credit, Accounts Commissioner Moran maintained his dignity and decorum in responding to the Mayor.

Although the proposal may not be without merit, the reasoning for such a change was lost due to the Mayor’s fundamental misunderstanding of the liability insurance policy the city maintains and his inaccurate assertions about events related to an ongoing suit against the city.

The main argument Kim articulated for moving Risk and Safety to his office was based on the false assertion that the City Attorney had been left out of an April 1 meeting regarding the settlement of a lawsuit brought against the city by former city engineer Tim Wales. The attorney for the insurance carrier, John Aspland, who is handling this case for the city, asked Commissioner Moran, a witness in the case, and Marilyn Rivers, the Manager of Risk and Safety, to attend.

Mayor Kim’s Shrill Warnings

Kim misrepresented the significance of who was and who was not at this meeting when he spoke to Daily Gazette in a story published on June 8, 2022:

Kim argues the position [Manager of Risk and Safety] should be placed under the city attorney’s office to avoid situations like one in April in which the city attorney was not at a settlement meeting in an ongoing lawsuit against the city, while Moran and the city’s Risk and Safety Director Marilyn Rivers were present.

Daily Gazette June 8, 2022

“I believe it is imperative that we better coordinate the activities of the city attorney and the director of Risk and Safety,” Kim said. “If we don’t, this case will continue to go forward without the involvement of the city attorney, and that is not tenable.”

Daily Gazette June 8, 2022

We open the city to substantial risk as shown by the example above, where a City Council member, with the director of Risk and Safety, attempted to resolve a legal matter without involving the city attorney’s office or a member of the City Council,” Kim said Tuesday.

Gazette June 8, 2022

The Role of the Insurance Carrier In Defending the City

To understand the problem with the Mayor’s assertions, it is critical to understand the terms of the agreement between the city and its insurance carrier regarding legal liability insurance.

The city maintains insurance to protect against lawsuits brought against it.

The way this works is that in the event of a lawsuit against the city, as in the Wales case, the city’s insurance carrier engages its own attorneys to defend the city against the suit. It does not use the City Attorney.

The city pays a deductible to its insurance carrier for the legal costs and possible settlement or judgment. In the current case, that deductible amounted to $25,000.00. The cost of lawyer fees in that suit has far exceeded the city’s deductible. The suit has been ongoing for over a year.

So, to be clear, the insurance company at this point is responsible for paying whatever settlement their attorneys may reach with the plaintiff or the cost of the judgment should it go to trial.

Because the insurance company is using their money, they insist on controlling the process. The contract the carrier has with the city requires the city to “cooperate” with it.

Traditionally, the Director of Risk and Safety, who works in the Accounts Department, acts as the primary contact with the insurance carrier. This is not surprising as the Accounts Department handles insurance for the city. The Director assists the insurance attorneys by providing any information they may need from the city. She also keeps the City Attorney informed as to the ongoing activity in the suit.

This has been established procedure for the roughly twenty years the current Risk and Safety Director, Marilyn Rivers, has been employed by the city.

Should the insurance company decide to settle, depending upon the language in the contract between the city and the carrier, the city may be asked to pass a resolution endorsing the settlement.

In such a case, theoretically, the city could refuse to accept the settlement. In reality, the city always agrees, and the vote is effectively a legal formality.

If the city were ever to refuse a settlement reached by the insurer’s lawyer, the insurance company could withdraw and leave the city to hire its own lawyers at its own expense as well as pay for the costs of any possible settlement.

It’s hard to imagine a scenario in which the city would take on the costs and liabilities by rejecting a settlement agreed to by the insurance company.

Mayor Kim Misunderstands the Role of the City Attorney in Insurance Claims

Mayor Kim does not seem to grasp the authority the insurer has in litigation nor how minimal a role the City Attorney plays in these cases of claims against the city.

First of all, the Mayor’s assertions that the City Attorney had been left out of the loop regarding the April 1 settlement conference is patently false. I have seen the email in which Tony Izzo was advised of the “conference.”

In Tony’s defense, he probably didn’t attend because he knew that his role would be marginal and that Ms. Rivers would inform him of what transpired.

To give context to the role of Moran and Rivers in this matter, neither of them said a word during the April 1, 2022, meeting at which the judge discussed the case with the opposing attorneys. No one could characterize them, as Mayor Kim has done, of having “…attempted to resolve a legal matter.”

So at the June 7, 2022, Council meeting, when Mayor Kim accused Commissioner Moran of circumventing the City Attorney and of trying to negotiate the case settlement without the Council’s involvement he was wrong on both counts. The City Attorney had been informed of the meeting and chose for whatever reason not to attend and neither Commissioner Moran nor Risk and Safety Manager Marilyn Rivers “attempted to resolve a legal matter without involving the city attorney’s office or a member of the City Council,” as Kim asserted to the Gazette.

Mayor Kim’s Odd Handling of the Issue at the Council Meeting

Adept elected officials do not bring resolutions to the table if they do not have the votes to pass them (unless they are trying to score some kind of political point). I am not privy to the interactions that may have occurred prior to the meeting, but it appeared clear at the June 7 Council meeting that the Mayor did not have the votes to pass his resolution. Why take up Council time for a resolution doomed to fail?

Moran understandably opposed the Mayor’s resolution, but as it turned out, so did Public Works Commissioner Jason Golub. Golub told his colleagues that he was uncomfortable with the process. He noted that there were issues involving civil service that needed to be addressed (Kim dismissed this). His key concern was the potential for future partisan abuse. He was concerned about a partisan majority from one party forcing a reorganization move on a Commissioner from another party.

Mayor Kim read an email from Public Safety Commissioner James Montagnino, who was in Europe on vacation and therefore not present to vote, strongly supporting his initiative.

Had Mayor Kim’s resolution come to a vote that night, there would have been two votes against. Even if Commissioner Sanghvi had voted with the Mayor (which wasn’t clear) his motion would have failed to pass.

So, after all this theater, the Mayor withdrew his motion.

Someone in the audience called out to the Mayor that there should be a public hearing on the question. The Mayor then tried to get his colleagues to pass a resolution setting a public hearing at the next Council meeting. Interestingly, he could not get a second even from Commissioner Minita Sanghvi, who earlier in the meeting appeared to be in support of the Mayor.

So it appears that Mayor Kim will introduce this resolution again at the next Council meeting. As Montagnino supports the Mayor in this matter, Commissioner Sanghvi will be the deciding vote.

Some Highlights From The Meeting

Another lively video from the folks at Talking Saratoga.

Here is the link: https://fb.watch/dAXbDiq55H/

The Tuesday, June 7,2022, Saratoga Springs City Council meeting was remarkable for the amount of conflict and confusion, for its duration, and for a major ethics violation on the part of Mayor Kim.

Overlooked by many observers amidst all the drama in the conflict between Mayor Ron Kim and Accounts Commissioner Dillon Moran (more about that in a later post) was Mayor Kim’s questionable appointment of Susan Barden to chair the city’s Ethics Board.

Ms. Barden works in the Planning Department and currently reports directly to the Mayor. It is entirely inappropriate (unethical?) for Mayor Kim to appoint someone he supervises to head a board that might have to consider allegations against him.

People have been justifiably critical of our state government’s dubious attempts at ethics oversight. Governor Cuomo was notorious for appointing cronies to the institutions charged with ethics oversight. We do not need to replicate the former Governor’s behavior here in Saratoga Springs.

While the Mayor has complete authority over appointments to the Ethics Board, it was disappointing and unfortunate that no one on the Council raised any objections.

A Marathon Council Meeting

Tuesday night’s Council meeting was also notable for its length. There were six public hearings and four presentations to get through before the actual business of the Council began.

City Council meetings begin at 7:00 PM, but it was approximately 8:30 before the presentations were finished, and the Mayor’s agenda, which comes first, began. It was almost 10:00 PM before the Mayor completed the 19 items on his agenda including the very controversial proposal to move the Department of Risk and Safety from the Accounts Department to his. None of the four Commissioners had presented any of their agenda items at this point. I have no idea when the meeting ended. My endurance exhausted, I turned off my computer . I don’t think I was alone in doing this. Even the other Council members and Deputies looked like they were ready to go home at this point, and there was still plenty of business to attend to.

Under Mayor Kim’s predecessor, Meg Kelly, City Council meetings were run efficiently. They rarely went beyond nine o’clock, but there was plenty of opportunity for spirited discussion during that time. As a matter of policy, though, Mayor Kelly only allowed two presentations per meeting and limited those to ten minutes each which meant the actual Council meeting began at a reasonable time.

It is my belief that it is important that the public is able to observe their government conducting city business. The actual deliberations of the Council need to be the priority at these bi-monthly meetings. In the interest of transparency and accountability, Kim needs to see that transacting the city’s business is done at a reasonable hour.

Mayor’s Incomprehensible Call For A Public Hearing

One of the items that delays the start of business at City Council meetings on a regular basis is a proliferation of Public Hearings. The Mayor and Commissioners regularly set up public hearings without offering specific proposals for the public to comment on.

In the video above, I find the Mayor’s rambling remarks on the purpose of the hearing he is setting up incomprehensible.

Here’s my pass at it:

The Governor’s executive order allowing the use of teleconferencing (not in-person) public government meetings will expire in July. The Mayor apparently is looking for a way to get around this.

Strangely, the item on his agenda describes this as a public hearing on “Section 103-a of the Open Meetings Law.” That is a state law, not a local law, so the city has no authority to change the law. Why there would be a local hearing on a state law that is already in place makes no sense.

Assuming that his proposal actually has something to do with establishing a local law, best practices would be to iron out the substance and wording of what he plans to accomplish before setting a public hearing so the public would be properly prepared to decide whether they support or oppose the proposal. There was no link to an actual proposal on his agenda.

I invite the readers of this blog to offer their input on what the Mayor is attempting to say.