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.
I wrote to both the chair of the Saratoga Springs Democratic Party Committee, Pat Tuz, along with Mayor Kim, and the chair of the city Republican Party, Mike Brandi, and invited them all to address the issue of the alleged misuse of emails collected by the Saratoga Springs Recreation Department. The controversy was initiated by Mayor Kim, who sought and received extensive coverage from area media.
Brandi agreed, but Ms. Tuz told me that she would not participate. I did not receive a response from Mayor Kim.
Mr. Brandi’s piece is quite long and includes rigorous documentation that Mayor Kim’s allegations of improprieties are based on a fundamental misunderstanding of the New York State Freedom of Information Law.
Here is the reply I received from Mr. Brandi:
“It’s been very difficult to get information out,” Kim said. “This isn’t the city’s information, it’s the taxpayers’ information. They are paying our salaries. We have to do what is right.”
– Ron Kim, Times Union, December 27, 2021
On that, Mayor Kim, we agree. In no uncertain terms, Ron Kim ran on a platform promising transparency. Admittedly, he talked a good game. He spoke about ending needless expenditures on litigation fighting FOIL requests and honoring the spirit of the freedom of information law. These are laudable aspirations. However, after five months in office, it is becoming abundantly clear that Mr. Kim’s platform of transparency was nothing more than a house of cards built on a shaky table. In a particularly egregious “flip-flop,” Mr. Kim has presided over one of the most secretive administrations in memory. The administration is rife with whispers and intrigue about secret meetings, deliberate avoidance of written communication, and, significant here, the complete disregard of the dictates of FOIL.
As an attorney who has represented municipalities, served as a FOIL appeals officer and litigated FOIL on behalf of municipalities, I am well versed on the ins and outs of FOIL. While Mayor Kim has publicly disparaged my position as “armchair legal analysis,” he gives modern application to Socrates’s observation that “when the debate is lost, slander becomes the tool of the loser.” Rather, my contentions are backed up by case law and the opinions of the Committee on Open Government. Call me an idealist, but I am a true believer in government transparency and believe it to be a cornerstone of democracy and a critical component of effective local government and citizen engagement, regardless of the party in control.
What is FOIL?
The Freedom of Information Law was enacted in the 1970’s with the goal of giving citizens access to the records of their government. In declaring FOIL’s purpose, the legislature did not mince words,
“The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature, therefore, declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of the government in accordance with the provisions of this article.”
There are three broad categories of information held by a municipality. First, there are those records that are confidential by statute and may not be disclosed. This includes things like 911-call recordings. Second, there is a category of information that fits certain categories created by FOIL. Records fitting these categories may be withheld by the municipality, but the municipality can release them. These include records like deliberative documents and some internal communications or internal attorney-client records. Finally, by far the largest category of records are those which must be disclosed as they are not confidential and do not fit any of the exceptions created by FOIL.
In sum, FOIL is permissive. What this means is that a municipality could, if it chose to, release everything in the second and third categories above immediately upon request. FOIL creates a bare minimum of transparency. Unfortunately, all too often, FOIL is used as a shield to obfuscate and delay requests by the public. For example, in multiple FOIL requests to the City of Saratoga Springs, the City regularly takes the statutory maximum of 5 business days to provide an acknowledgment. From the date of the acknowledgment, the City often exceeds the 20 business days required to provide a response. There is no remedy for a requester in these circumstances except to grin and bear it.
Despite FOIL being on the books for almost 50 years, New York State regularly finds itself in the bottom half of the nation in transparency rankings. Chalk this up to negligent or malicious politicians who are more concerned about their self-image and preservation than true transparency and good government. For its part, NYS occasionally tries to bolster FOIL with amendments. Recently, the legislature amended FOIL to allow a requester to recover their attorneys’ fees if a court determines that a municipality’s denial of their request was unreasonable. Of course, this remedy is entirely based on judicial discretion and only comes about after the requester has gone through the request and appeal process and invested some thousands of dollars on an attorney to file and pursue the matter in court. There is hope that as municipalities see taxpayer funds on the line, they will shape up, but commencing litigation is a high bar for a citizen and too sporadic for municipalities to take real notice.
FOIL and Saratoga Springs
Ron Kim’s administration is a prime example of the hurdles that the citizens of the State of New York face in striving for a more open government. The impetus for undertaking this article was Mr. Kim’s recent press release and subsequent commentary in which he sought to blame a “leak” of an email list on his predecessors. Mr. Kim immediately sought to frame this issue as one of a “data breach,” attempting to borrow some of the social outrage that faces corporations when private information is stolen by nefarious actors. Mr. Kim definitively stated that the information allegedly released was not subject to FOIL, and that its release was potentially criminal. On May 25, 2022, Mayor Kim doubled down in a Facebook comment in which he stated the following to a local blogger:
“You are wrong about the email list being FOILable and thus public without any protection of privacy:
1). There was no pending FOIL on 10/21/20 when this list was effectively ordered by politcal (sic) superiors to be released to their custody and control. No FOIL, no release, emails still private. So this is the Reddest of Red Herrings.
2) The specific case that is being relied upon as the basis to state that the emails are public information is predicated on the concept that the person who has the information is a “Public Officer.” The Mayor is a Public Officer, City Council Members are Public Officers. The Recreation Staff is not, so keeping this list secured with the Recreation Staff, meant it was protected from FOIL….until of course former elected officials required that it be turned over.
3) If you speak to the NYS Open Government Committee staff (sic) (who oversee FOIL) they will tell you that the idea of holding that an email address of a private citizen is FOILable is to ensure that the public knows who is contacting their elected representatives in the regular course of government business. So if you write an email to your City Council member, you should expect that email and your address to be FOILABLE. It is not to invade the privacy of several thousands of people who want to stay informed about recreational opportunities in Saratoga Springs. So if you signed up for soccer for your kids, you should not expect that your email address is susceptible to a FOIL request.
4. BTW if the logic that any email address given to a government entity is FOILABLE, why aren’t these large telemarketers simply sending FOIL requests to every government agency that exists?”
Subsequently, Mr. Kim addressed the issue at the May 24 City Council meeting, deriding my “armchair legal analysis” and reiterating in substance his arguments above (as an aside, I do my legal analysis from an ergonomic office chair from Branch furniture. I highly recommend it).
Breaking Down Mr. Kim’s Misunderstanding of FOIL
As noted above FOIL is permissive. A municipality does not legally need a FOIL request in order to release information that is not confidential. Mr. Kim’s assertion that records are private until a FOIL request is made is incorrect. For instance, municipal records are regularly posted online without a FOIL request. Municipal officials also respond to inquiries by constituents and provide certain records and information. FOIL is a tool that is used by the public to request certain information, but it is not the sole means of dissemination of information from the government. Mr. Kim’s position here is unsupported by logic or the law.
Mr. Kim next argues that FOIL only applies to “public officers”as if the City only has the obligation to disclose information when it comes into the hands of an elected official. He seems to believe that as long as the information remains with city employees(as opposed to officers), it is shielded from the public. I have to admit I am having trouble finding any basis for Mr. Kim’s position here, but his argument appears to be based on the fact that FOIL appears in Chapter 47 of the Consolidated Laws of New York, which is entitled “Public Officers.” I do not want to disparage Mr. Kim’s lawyering abilities as he has mine, but if this is the case, it is truly an amateurish understanding of how the law works — as if the title “public officers” limits the application of the eight articles and hundreds of pages of legislation that exists in that chapter. The Committee on Open Government was asked by the Foothills Business Daily to opine on Mr. Kim’s position and the COOG was clear that “[i]t’s not relevant which employee maintains the records” and that “The City is subject to FOIL requests.” Again, Mr. Kim was wrong.
Third, Mr. Kim argues that the COOG has told him that email lists are not subject to FOIL and that the intent of FOIL is not to allow the disclosure of lists of people. Basic research on this point proved Mr. Kim wrong. The COOG publishes its advisory opinions. Under the topic of “email addresses,” the COOG addressed the disclosure of email lists by municipalities five times. In each and every instance, the COOG held that the list must be disclosed. For example, in FOIL AO 17129 the committee held “Should an agency deny access to a list of email addresses collected for purposes of distributing information, in our opinion it is likely that, without more, an agency could not meet the burden of proving that disclosure would cause an unwarranted invasion of personal privacy.”
Indeed, the text of FOIL itself acknowledges that lists are subject to release as long as the list is not “used for solicitation or fund-raising purposes.” To this end, FOIL allows municipalities to request a certification from the requester that a list will not be used for fundraising or solicitation purposes. The use of the certification answers Mr. Kim’s 4th question above regarding why telemarketers don’t simply FOIL email lists for marketing purposes. Simple answer, they cannot, With the certification made, lists must be released. In FOIL AO 16609 the COOG held
“If a list of names and addresses would not be used for a commercial or fund-raising purpose, the recipient may do with the list as he/she sees fit. There are numerous instances in which lists of names and addresses are given, shared, and used by persons other than the initial recipient of the lists, i.e., to express positions relating to an election, to build support for or against a community project, or development, to attempt to educate concerning particular matters, etc. In short, in those situations in which a list of names and addresses would not be used or distributed for commercial or fund-raising purposes, I do not believe that there can be valid restrictions on its use or dissemination.”
In sum, Mr. Kim is incorrect, and email lists are indeed subject to FOIL. Municipalities face a very high burden in opposing the release of email lists. Even if a specific email address may be redacted (for example, if the email belongs to a minor or a victim of a crime), the remainder of the document must be released (the COOG and New York State’s highest court are clear that blanket denials of access are “inimical to FOIL’s policy of open government”). For Mr. Kim to assert that an email list is not subject to FOIL demonstrates either a willful disregard of FOIL or negligence of his obligations as a public officer. I am not sure which situation is worse.
To demonstrate the point, I submitted a FOIL request for this list. The City has acknowledged my request and has some time to respond. Should they fail to respond, I will have the opportunity to appeal and, finally, may bring the issue to our local Supreme Court. If I am successful and the Court finds that the City improperly denied my request, the City will be responsible for paying my attorney fees and costs.
I have no interest in obtaining a list of thousands of emails. I have no use for that. Once it is provided, I will shred it. What I do have an interest in is ensuring that our local government understands and honors FOIL. That is a hill worth fighting on and a mantle I will gladly take up.
Item #19 on Saratoga Springs Mayor Ron Kim’s agenda for the June 7, 2022, City Council meeting is a resolution to move the Director of Health and Safety from the Accounts Department to the Mayor’s department. Not everyone thinks this proposal is a good idea.
The resolution reads in part:
The position of Director of Risk & Safety shall report to, and work under the general supervision and administrative direction of, the City Attorney, effective July 1, 2022.
Since its inception at the initiative of then Commissioner Steve Towne, the Director of Risk and Safety has been part of the city’s Accounts Department which handles the city’s insurance program. According to Kim’s resolution the position of Director of Risk & Safety was established “to coordinate all insurance and safety activity within the City and provide a resource for each Commissioner to implement safety rules and regulations within their departments.”
Marilyn Rivers is the first and only Director and has held that position for the last eighteen years. Among her many accomplishments over the years has been the implementation of the security system in city hall, ensuring that the City’s historic artifacts are properly insured, facilitating the insurance financing necessary to address all the issues resulting from the city hall fire, and making sure that the handling of ongoing litigation and lawsuits reflect the city’s best interests. It is unclear what impact the proposed change will have on her employment status.
One of the people expressing concern over Kim’s proposal to move this position into his department is Laura Emanation. Ms. Emanation had a distinguished career as a Saratoga Springs police officer beginning at the bottom and working her way up to Lieutenant. This year she was forced out of the Police Department by Public Safety Commissioner James Montagnino.
Ms. Emanation sent the following email to the City Council challenging Mayor Kim’s action. According to a reliable source her email ended up in the city’s junk mail folder and only today (6/6/22), the day before the City Council will meet to vote on Kim’s proposal, did the Council receive it after an outside source prompted a search for the correspondence.
As an IT professional I find an email system that sends a citizen’s correspondence with elected officials to junk mail to be shocking to say the least.
Here is what Ms. Emanation sent to the City Council:
As my elected officials I would like to voice my concern over the City Council Agenda for the June 7, 2022 meeting; specifically, the Mayor’s agenda item number 20.
I would like to challenge the thought process on moving Risk and Safety to the Mayor’s office oversight. This move is not a lateral move into the Mayor’s office. This is an attempt to control and overtake areas that the Mayor does not have authority over. The City Charter identifies responsibilities of each commissioner and office. Each commissioner exists for a reason – and this process is being undermined.
I know that you do not know me, but I am confident you have heard my name in months, if not years, past. I am Laura Emanatian, recently retired from the Police Department. I have remained quiet for very personal reasons, but what I see happening in City Hall has me greatly concerned. When I reviewed the council agenda, I immediately knew what was happening and I now feel the need to be vocal.
Marilyn Rivers has been a fierce supporter of mine and I fear that she is being punished for her unwavering support of me. I have great concerns that this act is retaliatory for being an intelligent woman with a voice. If you compare what just happened in my situation to what is happening right now, you will see that things are one in the same. I am sure you have heard Jim Montignino’s perspective on what occurred, but no one has heard from me. I will not go into the details but essentially, we are setting a very disturbing trend to threaten someone’s career and force them out if they don’t follow a very specific agenda, right or wrong, truth or lies. Silence them into submission, or otherwise they will be punished.
As elected officials, you are leaders. As leaders, it is your responsibility to foster an environment where ideas can be shared without fear of retribution. This is not something that is actively occurring in city hall and this attempt to overtake Risk and Safety is a direct reflection of that mentality. Until someone will speak out against this behavior, you will continue to empower this sick mentality, and the city will fall further behind. Any leader that actively seeks to control areas that are not theirs to control, is not a leader, they are a dictator. This is an absolute mockery of our democracy and our community deserves better.
I have worked with Marilyn Rivers for the duration of my career. In the past ten years, I have come to work very closely with her with respect to the permit process, special events, city security cameras, swipe cards, capital budget projects, and most importantly the City Hall fire. Her work ethic and dedication to her job is paramount to the insurability of the City and the employees of the City. She is a leader in her field, recognized throughout the country as an educator in Risk and Safety. It is because of Marilyn, that the City is insured properly and we were able to recover the losses due to the fire that occurred in 2018. I was in the building for the duration of the fire and the days following. Marilyn worked alongside Chief Williams and assured all employees she would work tirelessly to get everything covered. And she did. Her recordkeeping for fixed assets allowed us to quickly identify damaged offices, equipment in them, and cost. Because the City Charter defines all records to be kept in the Accounts office, we were able to act quickly to get areas identified and equipment replaced.
As a taxpayer and retired city employee, I feel that it is imperative to educate others on the years past and how we got to where we are. Ron Kim was the Public Safety Commissioner when I had to make very difficult decisions that would impact the trajectory of my career. Since Ron could not seem to make a decision that would give equality to the female employees of the police department, an area he was responsible for, I used my voice to advocate for that equality. Not only would he not provide equality, he then refused to promote the most vocal person advocating for equality, me. You won’t see anything published on this lawsuit, because the judge ordered a gag on it. While those years were very painful, they were also meant to happen as I learned the voice you have is yours and yours alone. Should you be punished for using it, there are protections in place. While the righting of the wrongs couldn’t happen fast enough, it did happen. Not only was Ron’s decision overturned, I continued to climb the ranks at the police department and show my value in each and every one.
I challenge each of you to be the voice against the mayor in his attempt to further his own agenda. I challenge you to speak up for those working in city hall as defined and undefined leaders on your behalf. It is the valued work of each employee that makes each of you a success. I challenge you to speak loudly and in favor of our employees for being intelligent, competent, and valued in the workplace. Create an environment where productive conversations can occur without the fear of retribution.
If I can be of further assistance, I can be reached via email.
With everything the state police have to do these days – especially now with violent crime and mass shootings on the rise – the last thing these highly trained investigators should be wasting their time on is whether election petition signatures are valid.
Election petitions are part of a political process, a tradition kept alive because they help keep incumbents in power. A growing number of states don’t even require them any longer for candidates to demonstrate their eligibility for the ballot.
Challenges to petitions are brought not because the candidate feels a strong moral and legal obligation, but to knock an opponent off the ballot.
That’s an issue for elections officials, not law enforcement. And nowhere is the need to change the challenge process more evident than with the recently closed case involving a complaint filed by Saratoga Springs Democratic Committee Chair Pat Tuz against Republican public safety commissioner candidate Tracey LaBelle.
Tuz alleged in her complaint that the petition signatures from the United Saratoga party line didn’t match voter registration signatures. Two state police investigators interviewed 19 people over several months, only to conclude that the forgery allegations brought against LaBelle were unfounded.
On top of that, the outcome of the election wasn’t in jeopardy. LaBelle lost last November.
Did Democrats really need to keep pushing this, and did state police really need to keep investigating a case that was moot?
The reason this investigation continued was because it included allegations of a crime. And police likely were obligated to carry their investigation to its conclusion.
They shouldn’t have been involved in the first place. The matter should stay within the state elections system, first going through some initial review by a committee, then through the county board of elections or an independent arbitrator. Then if it still wasn’t resolved, on to the state Board of Elections for final review.
Unless allegations of fraud went beyond signatures to a crime that involved bribery or coercion of petition signers, then police should not be brought into these matters.
By going to the police, the political parties are, as Saratoga Springs Republican Committee Chairman Michael Brandi said, setting a “dangerous precedent of criminalizing the petitioning process.”
It’s in the interests of the political parties and candidates from all along the political spectrum to keep these challenges procedural, rather than criminal.
If the parties insist on going the criminal route, then the Legislature needs to take that power away from them and put it into law.
A New Addition: This Is Not A Joke (But It Should Be)
In order to snuff a crime spree of people parking in elected city officials’ parking spaces, Saratoga Springs Public Safety Commissioner James Montagnino has taken decisive action…regarding his parking space. The picture above is not photo-shopped.
Also, apparently, the current City Council has added a new perk for their deputies. They too now have special reserved parking spaces.
This is progress✌️
An Understaffed Police Department Faces A Difficult Summer
The latest video from Talking Saratoga discusses the problems faced by the Saratoga Springs Police Department growing out of the problematic management of Commissioner Montagnino. The new patrolman promised by Commissioner Montagnino due to his elimination of one of the three police lieutenants has apparently not happened and the police force now has twenty vacancies as the department continues to lose sworn staff.
Yes, it was almost too good to be true. Elise Stefanik, that ‘great replacement’ theorist, was coming to town toting her carpetbag to save us from the immigrant hoard and Make America Great Again, again.
And it was all owed to the ‘special master’ Jonathan Cervas, the Carnegie Mellon political scientist appointed by Steuben County Supreme Court Judge Patrick McAllister to deliver us from all manner of leftist extremism.
Tears of joy flowed freely down Caroline Street and washed away stale beer from the gutter in front of Gaffney’s. The sounds of rejoicing echoed from every neighborhood, hill and vale.
Church bells were said to have sounded at the news of the coming of the congresswoman. One stout red-faced man was overcome with emotion and was rushed to the hospital by the fire service.
The irony was too delicious. A lowly Republic Steuben County judge and a Pennsylvania teacher had done what our illustrious State Legislature and governor could not. The good judge and the professor had teamed up to spare us the evils of gerrymandering.
And while I looked forward to the impartial and non-partisan representation Congresswoman Stefanic would bring to the 118th Congress, there were some naysayers among us.
There always are. The same ‘effete core of impudent snobs who characterize themselves as intellectuals’ that Sprio Agnew, another great American, warned of many years ago. Truly a man ahead of his time.
That same crowd that perpetuates the global warming hoax, claims that Joe Biden won in 2020, attempts to force our schools to actually teach history and harbors some insane notion that we should all have access to quality, affordable health care. These radicals even advocate for infrastructure improvements and free and fair elections.
Their time was nigh.
But then came Saturday and with it news that Elise would not be coming to rescue us after all.
The good judge had blinked, caved to pressure brought by a few reactionaries. Just as then-Vice President Pence wimped out to the Constitution on January 6, 2020, and denied us all another four years to Make America Great Again, again, the judge had fallen victim to common sense and rational thought.
It is a bitter disappointment to see Elise go even before she arrived. We are left with only the ‘what might have been.’
Yes, the world can be cruel and often conspires against us. But take heart, the next decennial census is but 8 years away and the next reapportionment only ten.
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.