Montagnino Calls For the Council To Condemn DA Karen Heggen

In a Kafkaesque special meeting on Monday, November 28, the Saratoga Springs City Council attempted to pass a resolution crafted by Public Safety Commissioner James Montagnino that, in the most bravura rhetoric, denounces Saratoga County’s District Attorney Karen Heggen.

At the end of this blog is the full text of his resolution, along with a video documenting the confusion and ignorance on display at this meeting, something that seems endemic to the current Council. Montagnino’s resolution will be up again for discussion and vote at yet another special Council meeting this Friday (12/2) at 3PM.

There are many problems with the substance of Montagnino’s resolution, as well as the manner in which he tried to get it adopted by the Council.

Wretched Excess

Montagnino’s resolution was prompted by a court restraining order issued on November 23 restricting Council members and city employees in their official capacities from further releasing certain information regarding the November 20 shootings on Broadway. The order was issued after Kim and Montagnino held a press conference less than twelve hours after the shootings occurred, where they released footage of the incident and commented extensively on the event.

In his resolution, Montagnino focuses on DA Heggen, condemning her “in the strongest terms” for seeking the temporary order (TRO).

Item #4 of Montagnino’s resolution states the following:

“District Attorney Heggen knows, or has reason to know, that seeking a TRO which precludes every public employee of the City of Saratoga Springs, including elected officials, from exercising their free speech rights under the First Amendment of the United States Constitution is a gross violation of her Oath of Office.”

While it is true that the order imposes significant restraints on the city’s elected officials’ and employees’ right to speak in their official capacity, I don’t think that it was unintentional on Montagnino’s part to add drama by adopting language that would lead people to believe that the order was all-encompassing. The order does not impose limits on the city’s officials or employees from privately talking about the case. In fact, even in their official capacities, it does not bar them from discussing the case except as regards comments associated with evidentiary issues.

The actual language in the restraining order states:

Ordered, that the Mayor of Saratoga Springs, the Public Safety Commissioner of Saratoga Springs, and all other elected or public employees of Saratoga Springs acting in their official capacity [my emphasis] shall refrain from making any further public comments characterizing any

  • evidence,
  • speculating as to the quality, quantity, or clarity of any evidence,
  • and presenting opinions or legal conclusions as to the ongoing investigation.”

ORDERED, that the Mayor of Saratoga Springs, the public Safety Commissioner of Saratoga Springs, and all other elected or public employees of Saratoga Springs, acting in their official capacity, shall refrain from releasing any further

  • street camera footage
  • police officer body camera footage
  • surveillance footage
  • private video footage
  • audio footage
  • audio transcript
  • or any other information that would tend to identify witnesses, their statements to law enforcement, or describe in detail any physical evidence or resulting scientific tests associated with the ongoing investigation

There is a very real and thorny issue here of 1st amendment free speech on the one hand and disclosing information that might be harmful to individuals and endanger the 6th amendment right to a fair trial with an impartial jury on the other. How should the right of elected officials to discuss ongoing criminal investigations without restraint be balanced against the need to effectively bring to justice those who violate the law?

This is the kind of issue that courts often must deal with.

Unfortunately, rather than addressing these issues soberly and professionally to seek accommodation between the city and the county District Attorney, Montagnino, Kim, and some of the other members of the Council have gone into attack mode.

It is important for the city’s police to be able to work cooperatively with the county’s District Attorney. The police rely on the county DA to prosecute the criminals they apprehend. A thoughtful City Attorney would have reminded Kim and Montagnino of the importance of this relationship. I expect such a lawyer would have advised sitting down with the DA and trying to find a way to work together constructively rather than raising the temperature by publicly denouncing the DA using the most extreme language. And, of course, city officials would then have had to listen to such a lawyer.

Disinformation

To begin with, while DA Heggen applied for the restraining order, it was Supreme Court Justice Dianne N. Freestone who issued the restraining order and is responsible for its content, not DA Heggen.

I am not sure why, in his resolution, Montagnino has selectively attacked only Heggen, and not Freestone. It might be tactical, as it is unwise to verbally abuse a judge. Given his history of vindictive behavior and misogyny, Montagnino may simply be angry that DA Heggen, a woman, had the temerity to ask him not to release the videos just before his press conference. It could, of course, be both.

In response to a question by the Daily Gazette, Montagnino indulged in this sexist comment, reinforcing the personal and unprofessional nature of his conflict with DA Heggen.

…oh well, it’s under investigation and now are we going to have the DA step in and stomp her foot and say, ‘you can’t talk about that either?’”

Daily Gazette November 29, 2022

It is worth noting that DA Heggen, in contrast, has demonstrated a much higher level of professionalism by not indulging in similar statements.

Ignoring the City Charter’s Transparency Requirements

Equally problematic was the way Montagnino brought this resolution before the Council.

The City Charter clearly states:

“Agendas for regular meetings shall be finalized and filed in the City Clerk’s office for public review no later than noon the day preceding such meeting.”

Article 2.2 City Charter

In addition, the charter states that new items cannot be added to the city’s agenda during a Council meeting without the following actions:

“Matters not listed on the agenda for a meeting may not be finally acted on at that meeting, unless one or more Council members shall propose an unlisted matter be finally acted upon and shall state on the record the reason why such matter was not listed on the agenda, and the Council shall, by motion and vote, find that immediate final action on the matter is necessary.”

Article 2.2 City Charter

There is a good reason the charter established these requirements.  It allows for a reasonable amount of time for citizens to become informed about what the Council plans to discuss and act on at a meeting.

Both of these provisions have routinely been violated by this City Council. The procedures followed (or rather not followed) by Montagnino at this special meeting were no exception.

Commissioner Golub Raises Concerns

The special meeting called for November 28 was supposed to primarily be to vote on Commissioner Sanghvi’s 2023 proposed budget, but that night Commissioner Montagnino added his resolution to the agenda. When Public Works Commissioner Jason Golub expressed concern at this last-minute addition to the agenda, Commissioner Sanghvi casually observed that the Council had routinely amended the agenda during Council meetings.  She didn’t see what the problem was. (see video)

Golub observed that because the resolution had not been included in the Council’s published agenda, not only was the public unaware of what Montagnino was proposing, it was unaware that the issue would even be discussed.

Golub told his colleagues that he had not had an opportunity to properly review Montagnino’s resolution as it had only been handed to him that afternoon, and there were some serious accusations made against Heggen. In the course of the discussion, it was revealed that not only had the City Attorney, Tony Izzo, not read the resolution, but Izzo had not been consulted at all about the crafting of it. (see video)

Commissioner Sanghvi oddly asked Izzo if he would like to comment on Montagnino’s resolution. As he had just told her and the rest of the Council that he had not read it, it was hardly surprising that he said: “no.” (see video).

Golub asked Montagnino to table the resolution until the next meeting.

Mayor Kim then offered a rambling commentary about why it was urgent to pass Montagnino’s resolution immediately.  As best I could make out, the gist of his argument was that it would somehow strengthen the city’s case by demonstrating how quickly the city objected to the court order.

He argued that delaying adopting Montagnino’s resolution would undermine the city’s argument that it was an emergency to have the temporary restraining order lifted.

I asked a number of attorneys about Kim’s argument. They uniformly dismissed Kim’s claim as without foundation.  They noted that the court would only be interested in the strength of the city’s legal arguments and whether any legal action the city took was timely as required by law.

As Commissioner Golub had asserted that he could not vote for Montagnino’s resolution without further review, the Council agreed to table the motion and to consider it at yet another special meeting they scheduled for Friday, December 2, at 3:00 PM. in spite of the fact that there is already a regularly scheduled Council meeting on Tuesday, December 6.

Double Standard?

In defending Montagnino’s resolution, Mayor Kim was dismissive of withholding information from the public on the basis of an ongoing investigation. As the video shows, Kim was adamant that the right of the public to know trumps concerns about investigations.

In April, the city received a FOIL request asking for documents associated with an alleged forged signature on one of Kim’s petitions for mayor. It was denied. The reason for the denial? “There is currently an open investigation.” Below is the denial letter.

The Video

Montagnino’s Resolution Denouncing DA Heggen

BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SARATOGA SPRINGS:

That the actions of Karen Heggen, District Attorney of Saratoga County, in seeking a Temporary Restraining Order (TRO) directing that “The Mayor of Saratoga Springs, the Public Safety Commissioner of Saratoga Springs, and all other elected or public employees of Saratoga Springs acting in their official capacity, shall refrain from making any further public comments characterizing any evidence, speculating as to the quality, quantity, or clarity of any evidence, and presenting opinions or legal conclusions as to the ongoing investigation [into the events of Sunday, November 20, 2022],” are condemned in the strongest terms for the following reasons:

  1. District Attorney Heggen obtained the TRO illegally, in violation of 22 NYCRR §202.7(f), by failing to provide the City with notice and an opportunity to be heard;
  2. District Attorney Heggen acted improperly in presenting the proposed TRO to a Judge in the afternoon of the day before Thanksgiving, thereby depriving the City of the opportunity to respond in a timely fashion;
  3. District Attorney Heggen acted improperly in seeking to prevent the City from being heard on the TRO for a full month; and, most importantly,
  4. District Attorney Heggen knows, or has reason to know, that seeking a TRO which precludes every public employee of the City of Saratoga Springs, including elected officials, from exercising their free speech rights under the First Amendment of the United States Constitution is a gross violation of her Oath of Office.

7 thoughts on “Montagnino Calls For the Council To Condemn DA Karen Heggen”

  1. Those that know me well, know I’m rarely without words yet I am in this case – at least any that can be printed in a public forum. Reading all this from a distance I feel like I’m reading a very poorly written soap opera type of show. How can four people be so incredibly obtuse with two most verbal in their uninformed comments being lawyers? I’m glad to see Jason showing some judgment. He has a rough time needing to work with these dunderheads for the next year.

    Liked by 3 people

  2. Pathetic, performative exercise?

    With the exception of Dillon and Jason this council seems to think this is all performance art.

    The Mayor and Public Safety Commissioner are absurd, arrogant, egomaniacs.

    I have viewed the videos and our police officers showed incredible bravery, skill and professionalism.

    Intelligent leadership would have deferred to the request to not show videos, praised the actions of our
    LOE and turned over any questions to our Police Chief. Like in Albany, I am sure some video information could have been quickly released. (released by our Police Chief without the verbose narrative by Montagnino)

    Now more performance art wasting time & money with the resolution against the DA. ( as noted, not the Judge?)

    And I have lost track how many times our “lawyers” have been wrong. (too smart to consult with Tony Izzo)
    ( tip: how about you listen to the businessman who is also an engineer and the city’s real attorney)

    Can’t wait to watch the 3pm meeting show today.

    Thank you again John for all your work and research.

    Liked by 2 people

  3. “Ego is the anesthesia that deadens the pain of stupidity”
    Dr. Rick Rigsby

    It seems to be compounded in this case as the two involved have law degrees that allow them to truly ignore the stupidity of their actions. Add to that another great quote by Dr. Rigsby seems to be appropriate.

    “Pride is the burden of a foolish person”

    Liked by 1 person

  4. Surprise! Surprise! Commissioner Montagnino, who would like us to think of him as Commissioner Transparency, forgot to mention last Monday that DA Heggen had met with him and with Mayor Kim just prior to the November 20 press conference regarding the November 20 shooting incident on Caroline Street and Broadway (which had occurred only hours before the press conference). Apparently, DA Heggen met with the Mayor and DPS Commissioner and suggested that they not conduct the press conference. Since DA Heggen has years of experience in deciding what information can be released to the public and when to release it on incidents that may involve criminal investigations and indictments, it is hard to understand why the two Council members would decide to ignore her advice. It is also disturbing that the Commissioner would put forward his resolution last Monday evening without informing the public and other Council members that DA Heggen had warned them against conducting the press conference. Not exactly the whole truth!

    It should be noted that for years, both previous DA Jim Murphy and current DA Karen Heggen have had a very good working relationship with the Saratoga Springs Police Department. There has been well coordinated release of information on such incidents in the past.

    Chris Mathiesen

    Liked by 2 people

  5. There was another incident in April. Anybody see a pattern here?

    “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. ” https://saratogacountyda.com/statement-of-district-attorney-karen-a-heggen/

    Liked by 2 people

  6. I just finished listening to yesterday’s council meeting, and again, I am discouraged, but also optimistic, because many reasonable folks are trying to hold the city council responsible.

    Although I have worked cases in both the Federal and State systems, I will focus on the Federal system because that is where most of my experiences occurred. Its long been established, by policy, that the United States Attorney’s Office, not the investigative agencies, and certainly not politicians, oversee the prosecution of cases. They are responsible for the release of information and the integrity of those cases because they must prosecute them. I do not understand why this is such a foreign concept.

    Public employees and politicians, paid by their constituents, must work together to release the appropriate amount of information so the public feels safe, and the rest should be saved for the courtroom because that is where the government should speak. The idea put forth by Commissioner Montagnino that the government should try and release information because there are falsehoods in social media is ridiculous.

    Further, the default mechanism to constitutional rights is a bunch of malarkey and sounds so desperate. Every single constitutional right has limits. You can’t yell fire in a movie theater; you can’t publicly release classified information without a court order; you can’t publicly release grand jury information without a court order; you can’t have a surface to air missile in your garage because the constitution says you have the right to bear arms; and the list goes on and on.

    In my view, some of the commissioners in the City of Saratoga have become isolationists. They forget they are part of Saratoga County, New York State, and the United States of America. Furthermore, unlike other cities, it is a fact that the City of Saratoga cannot police the city without assistance from other agencies, like the Saratoga County Sheriff’s Department. If you want to be a city in isolation, you better fund a police force that does not need any help from any other agencies, and you better find a different venue to prosecute the crimes that occur within your city. Good luck.

    Tim Coll

    Liked by 1 person

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