Author: John Kaufmann

At yet another special Saratoga Springs City Council meeting, this one held on Friday afternoon, December 16, the law firm of E. Stewart Jones, Hackler, Murphy was hired to appeal the restraining order against the city growing out of the press conference Mayor Ron Kim, and Public Safety Commissioner James Montagnino held regarding the shoot out on Broadway the weekend before Thanksgiving. The law firm’s partners bill at $400.00 an hour.

This occurred at a special meeting that was improperly noticed, where Kim refused to let Public Works Commissioner Jason Golub attend via zoom as he himself had done only two weeks before, and where it was revealed that Montagnino, City Attorney Tony Izzo and Deputy Mayor Angela Rella had not yet met with Saratoga County DA Heggen as they had been directed to do by the Council. That meeting had been intended to try to resolve the differences over the restraining order and avoid going to court.

Montagnino and Kim Show Contempt For Their Colleagues on the Council

DA Heggen reached out to the Council, suggesting they meet to discuss the issues surrounding the restraining order. At their December 6, 2022, meeting, the Council directed Montagnino, City Attorney Anthony Izzo, and Deputy Mayor Angela Rella to meet with Heggen to try to find a way to resolve the TRO controversy. Kim told his colleagues he would write to DA Heggen to arrange the meeting.

That was at the December 6, 2022, Council meeting. The restraining order was scheduled to be reviewed by the court on December 22. So this allowed for sixteen calendar days before the hearing on the TRO for the city to meet with the DA to try to resolve their differences.

As it turns out, Kim never contacted Heggen, nor did anyone else from city hall.

Kim scheduled a special meeting for Friday, December 16. The legal notice for the meeting was not published until the day of the meeting, giving the public little, if any, notice.

At the last minute, Kim added a resolution to the agenda that would authorize him to hire outside attorneys for “legal services related to response to the TRO.”

In a Rush To Litigate, Kim and Montagnino Fail To Follow Proper Purchasing Requirements

On November 29, 2022, Kim sent out a Request For Quotes (RFQ) to area law firms to seek quotes for legal services to respond to the TRO. The deadline for responses was 5:00 PM, December 1, 2022.

A Request For Quotes required that the city receive a minimum of three proposals to make an award, and it appears that no firms responded by the deadline.

Undeterred, Kim and Montagnino apparently reached out to the law firm E Stewart Jones, Hacker, Murphy. That law firm then submitted a response on December 13, 2022, twelve days after the deadline. This was the proposal Kim and Montagnino pressed the Council to accept on December 16.

Did Montagnino and Kim Ever Intend To Carry Out The Wishes of the Council?

It was apparent that Kim and Montagnino never took seriously the Council’s directive to meet with the DA to try to avoid litigation. At the December 16 meeting, Montagnino informed his colleagues that he had already been in discussions with the E Stewart Jones law firm on the case, even though the other Council members were not even aware that the law firm had been contacted after the December 1 deadline for the response to the RFQ. Montagnino announced to his colleagues that the law firm was awaiting his text advising the law firm that the Council had approved the contract so that the firm could work on the case over the weekend (at who knows what cost).

At one point, Commissioners Moran and Sanghvi asked what had happened with the meeting with Heggen. Kim offered a rambling response. Unfortunately, neither Accounts Commissioner Moran nor Finance Commissioner Sanghvi effectively pressed for a clear answer. Kim runs a chaotic meeting that makes securing answers to unfriendly questions challenging.

Using their usual legal gibberish about the need for representation, Montagnino and Kim successfully pressured Sanghvi and Moran to join them in voting to authorize the contract with the law firm.

Moran admitted later that he had failed to scrutinize the contract, which contained a vague clause that, in effect, gave the Mayor broad authority to use the law firm even beyond the TRO case. The agreement was for a full year and allowed “for other services as assigned.”

Regrettably, Public Works Commissioner Jason Golub, the most reasonable and articulate voice on the Council, was not there due to a cynical maneuver by Kim.

Kim Blocks Golub from Joining City Council Meeting

The December 16, 2022, City Council meeting took place on a day when a snow emergency had been declared, and schools had been closed, necessitating that Commissioner Golub remain home with his kids.

Golub contacted the city about arranging for him to participate in the meeting via Zoom as many Council members had done over the past year. Much to his surprise, he was advised that it would be illegal for him to participate. The Mayor had received a legal opinion from City Attorney Tony Izzo that the law required the city to provide the public with notice before the meeting indicating that a Council member would be zooming in.

Bear in mind that on December 2, 2022 (just fourteen days earlier), the Mayor used Zoom to participate in a Council meeting. There was no prior notice to the public advising them that he would be video conferencing as required according to Izzo’s opinion. At the time, Kim assured the public that his participation was legal and appropriate. So two weeks later, somehow, Tony Izzo provides Mayor Kim with a legal opinion that he can use to block Golub from doing the very same thing.

Here is Mayor Kim on December 2:

The reality is that Golub had been instrumental in blocking a previous resolution by Montagnino condemning DA Heggen and, more importantly, had played a key role in convincing the Council to meet with the DA to discuss their differences. Kim and Montagnino did not want Golub present as it risked disrupting their plans to do what they had wanted to do all along which was to litigate.

I contacted the New York State Committee on Open Government for an opinion on both Kim’s and Golub’s right to have Zoomed.

The email correspondence with the Committee on Open Government (COOG) is included at the end of this post. They confirmed Izzo’s opinion that prior notice to the public is required for any council member to vote via Zoom.

Apparently, the way other municipalities deal with the problem of how to deal with unexpected and last-minute Zooming is to include in all notices for meetings that there will be “video conferencing” whether or not there actually will be video conferencing. Strange, but that is the law.

By affirming Izzo’s opinion, it also established that Kim’s December 6, 2022 Zoom violated the Open Meetings Law.

A Little Late…

Apparently, Kim, Montagnino, and Izzo learned that criticism was on its way for Kim’s failure to write to DA Heggen requesting a meeting as the Council directed. So today (December 19, 2022), City Attorney Izzo sent a letter to Heggen asking to set up the meeting. I cannot keep from asking, “Is this crazy?” Kim had agreed to send the letter on December 6. So now, sixteen days later, with the TRO hearing only three days away and the city spending money on legal fees, the letter is finally sent.

A Self-Inflicted Fiasco

This whole mess was unnecessary. Montagnino and Kim circumvented their colleagues on the Council and disregarded established city policy when they held their press conference about the shootout on Broadway. They have resisted every effort to address the ensuing restraining order without resorting to litigation. They may prevail in a court challenge of the restraining order, but this will be at great and unnecessary expense to the city. They have put their own egos before the city’s interests.

According to the city’s police manual, all contacts with the media regarding ongoing investigations must go through the police chief. This had served the city well. Had Montagnino and Kim followed this policy, the city would not be in the position it is in today.

Perhaps if they agreed to follow this policy in all investigations in the future, it would address the DA’s concerns.

Unfortunately, the bottomless appetite of Montagnino and Kim for media exposure blinds them from doing what is good for the city.

Grim!

This level of deceit and manipulation by city leaders is hard to watch. I feel badly for the city’s employees who have to endure the same kind of behavior directed at them.

I have to admit covering local Saratoga Springs politics is beginning to take its toll on your blogger. I usually maintain a certain amused distance to maintain my sanity in observing and writing about our Council. Regrettably, watching the toxic carrying on of these people and the damage they are doing to our city and enduring listening to the self-serving and grandiose speeches is, to say the least, wearing me down a bit.

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The Opinion From The Committee On Open Government

Assuming that a public body held a public hearing and adopted a resolution and procedures, Section 103-a permits members to attend and participate in a meeting through purely remote means under very limited circumstances. Relevant to your first question emailed on December 17, Section 103-a(f) states that for any meeting where a member will be attending remotely due to extraordinary circumstances, “the public notice for the meeting shall inform the public that videoconferencing will be used, where the public can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location for the meeting where the public can attend.” Notice of meetings that are scheduled at least one week in advance must be posted 72 hours before the meeting. §104(1). Therefore, if the notice did not inform the public that videoconferencing would be used and did not include a link for the public to access the meeting in that same way, the advice provided by the attorney was, in my opinion, consistent with the requirements of the OML.

Remote attendance is permissible under Section 103-a only when a member experiences an extraordinary circumstance. While the body has some discretion in defining what qualifies as an extraordinary circumstance, it appears that the Saratoga City Council defines “extraordinary circumstances” to include “disability, illness, caregiving responsibilities, non-routine events or responsibilities of family or personal business, or any other significant or unexpected factor or event which precludes the Member’s physical attendance at such meeting.” In my opinion, a family wedding would fit within this definition. 

While the OML does not require a public body to publish a legal notice informing the public of open meetings, it must produce a public notice (i) setting forth the time, physical location and remote access link (if a member attends remotely), and (ii) that notice must be sent to the news media, (iii) “conspicuously posted in one or more designated public locations,” and (iv) posted to the webpage, if the body has the ability to do so. § 104. Since I am unable to locate a copy of the meeting notice, I cannot offer an opinion regarding whether the notice seems consistent with these requirements.

If you believe that the City Council has not complied with the requirements of the OML, you have the right to initiate a Civil Procedure Law and Rules, Article 78 proceeding in state Supreme Court.  

Christen L. Smith

Senior Attorney

Pronouns: she/her/hers

New York State Committee on Open Government

One Commerce Plaza, Albany, NY 12231

(518) 474-2518 

http://www.opengovernment.ny.gov

Pat Tuz, the chair of the Saratoga Springs Democratic Committee, made the unusual move at the December 6, 2022, City Council meeting of officially endorsing an amendment to the city code in spite of the fact that three of the Democrats on the Council opposed and defeated the amendment. In effect, she and her executive committee lined up with the sponsors of the bill, Democrats Mayor Kim and Commissioner Montagnino, openly opposing Democratic Commissioners Golub, Sanghvi, and Moran who voted against the proposal.

For the chair of a political party to choose sides against elected officials of their own party on a fractious issue, if not unheard of, is at least very unusual.

Just as odd was an email Tuz sent out to the members of the city Democratic Committee urging them to attend the December 6 meeting and speak in support of a resolution that was not on the agenda and, in effect, did not exist.

Her ghost resolution was purportedly to “adopt a 2:00AM closing time for bars and restaurants in the City of Saratoga Springs.” As has been thoroughly discussed at the Council table and in the media, the city cannot set the closing times of its bars. No such resolution was on the City Council agenda, and there was no public hearing on adopting a 2am closing time. This is a link to the December 6 City Council agenda, and here is the list of public hearings scheduled for that evening.

What was on the agenda that night was a deeply flawed and likely illegal amendment to Chapter 136 of the city code proposed by Public Safety Commissioner Montagnino and supported by Mayor Ron Kim. The amendment would have given the city the power to revoke a bar’s license if any of a series of events took place after 2am. For instance, bizarrely, a bar could lose its license under this proposal if someone had been in their establishment and left after 2AM and afterward committed a criminal offense somewhere somehow, even though the bar had done nothing that contributed to the offense.

Let’s be clear that the three Democrats who voted against Montagnino’s proposal were entirely in support of a 2:00am bar closing. Their opposition to the code amendment was based on their belief that it was unworkable and would only lead to needless litigation.

An earlier post explored Montagnino’s “creative” resolution in detail. Democrat Public Works Commissioner Jason Golub, who is an attorney, captured the problems with this proposal when at the December 6 meeting, he said:

“I think it’s poorly written, I think it’s open to so many different interpretations that I’m not even sure it could be, or is legal. I think it contradicts what our own city attorney suggested as language, which has, once again, been ignored. And I think it contradicts the need to spend more time and understand what the real problems are and what the solutions can be, including, potentially, closing the bars at 2 a.m.”

Jason Golub December 6, 2022, Council Meeting

Nevertheless, in the days leading up to the Council meeting where Montagnino’s proposal would be voted on, Democratic Chair Pat Tuz sent out the following emails to Democratic Committee members, and probably others, misrepresenting what was going to be voted on and what the public hearing was about:

“The Executive Committee of the  Saratoga Springs Democratic Committee supports the resolution being proposed at the Tuesday, December 6 City Council meeting to adopt a 2:00 a.m. closing time for bars and restaurants in the City of Saratoga Springs. [JK:Emphasis added] This is important for the safety and security of our residents, and our guests.  In light of serious recent events, and a history of over 20 years of problems, and the fact that  previous attempts have failed,  we feel the time is right for the City Council to do everything in its power to change the closing time to 2:00am and hope that every city council member will approve this measure to take action now.” 

Pat Tuz email December 5, 2022

and

There will be a public hearing tomorrow evening at 6:40 [JK: My emphasis]. Please attend in person and share your thoughts.  Or just say “I support a 2am closing.”  The meeting will be in the Music Room on the 3rd floor of City Hall.  

If you cannot attend, please send an email with your thoughts and support to the City Council.  Emails are as follows:

[JK: What followed was a list of the five city council members and their email addresses.]

Pat Tuz Email December 5, 2022

So why would Pat Tuzv mischaracterize the issue before the Council as “a resolution to adopt a 2am closing time”? And why does she urge Dems to contact City Council members to urge them to support a 2am closing when all five Council members had already taken this position? They had, in fact, recently voted unanimously to ask the County to change the time.

And why did the city Democratic Facebook page similarly misrepresent what was going to be considered at the upcoming Council meeting, falsely claiming that there would be a hearing on “whether to shift the bar-closing time from 4:00 am to 2:am”?

A Classic Example Of Bait And Switch

It begs credibility that Tuz was unaware that there was no public hearing or vote on the City Council agenda to adopt an earlier closing time for the bars. Remember, the statement came not just from her but also from the five other members of the Democratic Committee’s executive committee. How could all of these people make such a significant error? Were they just not paying attention?

I don’t think so. I suspect that Tuz and her colleagues on the city’s Democratic Executive Committee knew that even lay people with no legal background could see the problems with Montagnino’s resolution that claimed the city could rescind bar licenses under the most dubious circumstances. Rather than try to mobilize people to support a confusing and probably illegal proposal, it was easier to rally their base around a simple call for a 2AM closing even though they knew this was not the proposal before the Council. So I think the email Tuz sent out was not a mistake but a deliberate strategy.

The Democrats’ narrative was soon picked up by the media.

Consider this cover of Saratoga Today.

The television coverage suffered from similar disinformation. WNYT referred to the Montagnino/Kim proposal as a “proposal to change the closing time for bars…”

Throwing Three Democratic Commissioners Under The Bus

Chairperson Tuz had to know that Commissioners Jason Golub, Minita Sanghvi, and Dillon Moran, all Democrats, wholeheartedly supported closing the bars at 2:00am but were opposed to the Montagnino/Kim resolution for very legitimate reasons. This did not restrain Tuz and her executive committee.

Interestingly, this was done by the Democrats’ executive committee, which is just the officers, not the full committee, where two of the three opponents to Montagnino’s proposal are members.

The consequence of characterizing the proposal as a vote on a 2am closing, not as a vote on a specific flawed proposal to pressure bars to close, was for people to conclude falsely that Golub, Sanghvi, and Moran, by voting against this measure, opposed closing the city’s bars early.

That Tuz and her executive committee would promote a false narrative at the expense of the three Commissioners is even stranger in light of the fact that Tuz and her executive committee have remained silent regarding our Supervisors Gaston(D) and Veitch(R), who really are opposed to closing the bars earlier.

So why would Tuz and her committee promote such a falsehood?

And why wouldn’t she and the executive committee instead work to find some common ground between the five Democrats in approaching the bar issue rather than involve themselves in taking sides in a contentious and divisive split among the elected Democratic officials?

The answer seems to be that there is a factional split among the Democrats and that Tuz and the executive committee have signed on to the Kim/Montagnino team.

The Democratic Divide Continues

Further evidence of this split among the Democrats was on display in comments Mayor Kim made recently to the Times Union and in an email from Ron Kim that Tuz endorsed and circulated.

Both falsely characterized the three Council members who voted against the Kim/Montagnino proposal as opposed to closing bars at 2 AM.

In the TU article, Kim discussed the defeat of Montagnino’s code amendment, saying:

“I’m disappointed. The chief of police, on the record, stated that most of the violence on Caroline Street is happening after 2am. Three of the council members turned a blind eye to that…”

Kim’s email that Tuz circulated contained the following:

Unfortunately, my [Kim’s] effort with Commissioner of Public Safety Jim Montagnino to restrict operations on Caroline Street past 2 am failed to pass on a 2:3 vote, despite the SSPD Chief of Police stating that most of the reported violent activity on Caroline Street occurs after 2 am.

Commissioners Minita Sanghvi (minita.sanghvi@saratoga-springs.org), Jason Golub (jason.golub@saratoga-springs.org), and Dillon Moran (dillon.moran@saratoga-springs.org) all voted against the proposed ordinance. Please feel free to contact them with any comments or concerns you may have about their vote.

Kim email

Needless to say, Commissioners Moran, Sanghvi, and Golub have unfortunately received numerous emails falsely accusing them of opposing a 2AM closing.

It remains to be seen how bitter and divisive this apparent factionalism among the Democrats will continue to be.

---

The Emails

From: Pat Tuz <Pat.Tuz@saratogadems.org>
Date: December 5, 2022 at 3:05:47 PM EST
Subject: Please support City Council’s action for 2:00am bar closing…



Dear Committee Members:

 The Executive Committee is asking all members of the Saratoga Springs Democratic Committee to join us in recommending this course of action to all members of the City Council.

The Executive Committee of the  Saratoga Springs Democratic Committee supports the resolution being proposed at the Tuesday, December 6 City Council meeting to adopt a 2:00 a.m. closing time for bars and restaurants in the City of Saratoga Springs. This is important for the safety and security of our residents, and our guests.  In light of serious recent events, and a history of over 20 years of problems, and the fact that  previous attempts have failed,  we feel the time is right for the City Council to do everything in its power to change the closing time to 2:00am and hope that every city council member will approve this measure to take action now. 

 There will be a public hearing tomorrow evening at 6:40. Please attend in person and share your thoughts.  Or just say “I support a 2am closing.”  The meeting will be in the Music Room on the 3rd floor of City Hall.  

If you cannot attend, please send an email with your thoughts and support to the City Council.  Emails are as follows:

Mayor Ron Kim:  ron.kim@saratoga-springs.org

Commissioner of Public Safety Jim Montagnino:   james.montagnino@saratoga-springs.org

Commissioner of Finance Minita Sanghvi:  minita.sanghvi@saratoga-springs.org

Commissioner of Accounts Dillon Moran:   dillon.moran@saratoga-springs.org

Commissioner of Public Works Jason Golub:    jason.golub@saratoga-springs.org

Here are a few recent article with some background.  

The Gazette:   https://dailygazette.com/2022/11/28/saratoga-springs-city-council-sets-public-hearings-to-address-downtown-violence-earlier-bar-closing-times/

The Gazette:  https://dailygazette.com/2022/12/03/closing-time-amid-proposal-for-earlier-closings-many-saratoga-springs-b

ars-already-shut-down-around-2-a-m/

Thanks for your interest!  See you tomorrow night.

Pat Tuz

SSDC Chairperson

From: Pat Tuz
Date: December 8, 2022 at 2:47:43 PM EST
Subject: Fwd: Closing Bars at 2 am

A hearty thank you for your help in the form of your presence and your emails at this past Tuesday’s City Council meeting.  Thanks to all who participated in all ways in the discussion on Caroline Street.  The letter below is from Mayor Ron Kim’s office thanking everyone.  

With the proliferation of guns in general and a SC decision that affected New York’s formerly very strict concealed carry law, our City Council understands the urgency of this issue.  

The decision was made to form a committee, and part of that is to do a “security audit”.  Although we would have liked to have seen measures taken now, this audit will yield the need for the 136  amendment.  

In the meantime, I suggest we send emails to  the County Board of Supervisors requesting a 2:00am closing time for bars and restaurants in Saratoga Springs.  You can click on this link and use the forms provided for each Supervisor.  

Board of Supervisors

And, all you have to say is the following:   

Due to the ongoing violence in Saratoga Springs, and as it’s a County decision to determine closing times for all bars and restaurants, I am requesting that the closing time for all bars and restaurants be moved to 2:00am.  There is no reason for them to stay open so late as too often leads to violence as was demonstrated by the November 20th incident on Broadway.  

Thanks again for everyone’s help!  

Pat Tuz

SSDC Chairperson

From: ron.kim@saratoga-springs.org

Subject: Closing Bars at 2 am

Date: December 8, 2022 at 9:06:22 AM EST

To: Jen Dunn <jen.dunn@saratoga-springs.org>

Cc: Ron Kim <ron.kim@saratoga-springs.org>, James Montagnino <james.montagnino@saratoga-springs.org>, angela rella <angela.rella@saratoga-springs.org> Good morning,

I want to thank you again for expressing your support for closing bars in Saratoga at 2 am.  

Unfortunately, my effort with Commissioner of Public Safety Jim Montagnino to restrict operations on Caroline Street past 2 am failed to pass on a 2:3 vote, despite the SSPD Chief of Police stating that most of the reported violent activity on Caroline Street occurs after 2 am.

Commissioners Minita Sanghvi (minita.sanghvi@saratoga-springs.org), Jason Golub (jason.golub@saratoga-springs.org), and Dillon Moran (dillon.moran@saratoga-springs.org) all voted against the proposed ordinance. Please feel free to contact them with any comments or concerns you may have about their vote.

I will continue working toward solutions that ensure the safety of residents and visitors to Saratoga Springs, law enforcement personnel, and other first responders and business owners and employees who work at late night establishments in our City.  This is a matter of vital importance to me.

Sincerely,

Ron Kim

Jen Dunn
Executive Assistant to the Mayor’s Office
City of Saratoga Springs
474 Broadway, Suite 11
Saratoga Springs, NY 12866
518-587-3550 Ext: 2520

The members of the current Saratoga Springs City Council, like past Councils, feel strongly that closing the bars in Saratoga at 2AM would help to control the increasing number of problems occurring on Caroline Street late at night. Saratoga Springs’ two County Supervisors, Matt Veitch (R) and Tara Gaston (D), are major impediments to achieving this goal, however.

As many readers know, Saratoga Springs cannot set its own bar and restaurant closing times. According to state law, closing times must be uniform county wide, and Saratoga County has currently set the closing time at 4 AM. Bars and restaurants may close earlier if they so choose and many do, but mandating an earlier closing time requires the cooperation of the Saratoga County Board of Supervisors. Saratoga City Councils, including this one, have repeatedly asked the Board of Supervisors to take action to institute earlier closing times without success, and they will never have success as long as the two Supervisors who represent the city oppose this move. Both Supervisor Veitch and Gaston made clear their opposition to changing the closing time at the December 6, 2022, City Council meeting.

Here are the Supervisors speaking at that meeting:

It was particularly disheartening that after these statements, the members of the Council offered so little pushback.

Public Safety Commissioner Montagnino claimed he had a letter from Police Chief Shane Crooks strongly supporting bar closings, but he failed to press this point with the Supervisors. I asked Montagnino for a copy of the letter and for relevant statistics that support the letter. He has regrettably not yet responded. Hopefully, he has shared this information with Supervisor Gaston.

Supervisor Gaston’s Unfortunate Attack

Having made clear her opposition to changing the bar closing times, Supervisor Gaston, made an odd attempt to somehow blame the previous Council for not persuading the Board of Supervisors to take action. She claimed the previous Council had intemperately attacked the Board of Supervisors for not changing the closing hours. She asserted that the previous administration basically told the County Board of Supervisors, “you suck”(her words). I have reviewed the video from the August 3, 2021, Council meeting at which the previous Council passed a resolution unanimously requesting the County to change the bar closing time. There was little discussion and nothing criticizing the County. I have written to Supervisor Gaston asking for some kind of documentation for her harsh accusations.

Having Their Cake And Eating it Too

So our two Supervisors have made it clear that they do not believe that there is any point in making the closing hours earlier. They refuse to advocate for the County to change the hours, yet they credited themselves for a resolution passed by the Board of Supervisors to amend state law to allow local municipalities to set their own bar closing times.

I would call that contradictory. They do not support the County allowing Saratoga to change the hours, but they do support the state allowing the change? So how to explain this? Gaston and Veitch, along with their colleagues on the County Board of Supervisors, know what a herculean task it will be to pass this kind of legislation affecting every county in the state. This is a way for them to confuse the voters into thinking they somehow support early closings (which they don’t!) while actually undermining the effort.

The Way Forward

Solving the problems on Caroline Street will be challenging, and in the end, there is no cure all. I join those, however, who feel that closing bars earlier would provide some relief. Commissioner Montagnino’s proposal to try to move bar owners to close earlier by threatening to revoke their licenses was ill-conceived and most likely illegal. Commissioners Golub, Sanghvi, and Moran are to be commended for voting this down and searching for other ways to address the problems the city is facing.

I myself feel that it is possible to convince the County to take action to change the bar closing times. Achieving this would take some careful and thoughtful work meetings, probably first individually with key Supervisors to hear and address their concerns. Getting an understanding of what pressures Supervisors are experiencing in the communities they represent is important. For instance, how many bars currently stay open til 4AM in, say, Halfmoon? My understanding is that Saratoga County Sheriff Michael Zurlo is sympathetic to the concerns of our Police Chief. Enlisting law enforcement to voice their opinions with the Supervisors might be effective. All this, however, would require a patient and thoughtful approach, and I’m not sure who on this current Council could fill this role, with the exception of Jason Golub. Unfortunately, certainly not Mayor Ron Kim or Commissioner Montagnino, who have spent useless time and energy on a poorly conceived proposal that fortunately went nowhere. And yes, to move the County will require that our two Supervisors get on board.

Saratoga Springs Public Safety Commissioner James Montagnino’s terribly flawed proposal to pressure bars and restaurants to close at 2AM was fortunately defeated at the December 6, 2022, City Council meeting by a 3-2 vote.

Here is a link to Montagnino’s complete proposal to amend Chapter 136-37 of the City Code:

file:///C:/Users/kaufm/Downloads/Chapter_136_Proposed_Amendment_(Dec_2__2022)%20(2).pdf

The amendment contains four conditions that, should any of them occur after 2 AM, would subject a bar or restaurant to having their business license rescinded.

For instance, the first condition states that a permit could be revoked by the City Council if:

“a patron or guest of the establishment in question left the establishment after 2:00 am and, within one hour of leaving the establishment, committed a criminal offense. Prima facie evidence of the commission of a criminal offense shall include, but not be limited to, an arrest or issuance of an appearance ticket upon probable cause;”

So if a patron came into a bar and drank a glass of Saratoga Water and, upon leaving, was stopped for running a stop sign, the bar owner could face the revocation of his/her business license. This is even though the bar management did nothing that contributed to the driving violation.

I have spoken to three well-respected attorneys, all of whom dismissed the amendment as poorly crafted and sure to be challenged in court. This was a major reason Commissioners Moran, Sanghvi, and Golub voted against Montagnino’s proposal.

Public Works Commissioner Jason Golub articulated this and other concerns:

[Due to the fact that Commissioner Golub speaks softly, people using pcs will probably have to resort to earphones]

Here is the transcript of what Commissioner Golub had to say:

“I think it’s poorly written, I think it’s open to so many different interpretations that I’m not even sure it could be, or is legal. I think it contradicts what our own city attorney suggested as language, which has, once again, been ignored. And I think it contradicts the need to spend more time and understand what the real problems are and what the solutions can be, including, potentially, closing the bars at 2 a.m.”

Commissioner Jason Golub

I have a darker analysis of this resolution. As poor a lawyer as Montagnino may be, he must know that his resolution would not survive a court appeal. The real purpose of this resolution, besides getting him on television, was, I believe, to intimidate and threaten the bar owners. If it had passed, the amendment would have been a threat to the bars even if it didn’t eventually survive court challenges. While the city, I believe, would not prevail in a lawsuit, the cost for a business to defend itself in court and challenge the amendment, along with the loss of revenue while it was closed, could easily bankrupt a small business. This proposal was legally flawed and would have severely damaged the possibility of creating a situation where the city and the business owners could work cooperatively together to address these issues.

Mayor Kim: We Have To Do Something (Even If It’s Ill Conceived)

Mayor Kim was Montagnino’s sole supporter. In his remarks at the meeting, he never addresses Commissioner Golub’s concerns about the resolution. Instead, he asserts that if the city does not pass Montagnino’s amendment, it will open the city to lawsuits for inaction.

After the vote, Kim dramatically called for the record to show that he and Montagnino moved and seconded the resolution and that Golub, Sanghvi, and Moran voted against it. I cannot restrain myself from being snarky. Mayor Kim, the minutes of the City Council always record who voted one way or the other. Your coda was not required.

The City Democratic Committee Weighs In

In one of the odder twists to the evening, Pat Tuz, the chair of the Saratoga Springs Democratic Committee, spoke during the comment period. As an indication of the condition of that committee, she announced the party’s executive committee had voted to endorse Montagnino’s proposal and gave it a ringing endorsement only to see three of the committee’s endorsed candidates vote it down.

The Tuesday, December 6th Saratoga Springs City Council meeting was notable for its length –about five hours–but also for the number of contentious items on the agenda. I will be writing more extensively about the events at this meeting once I can review the video. For now, I will rely on my less-than-perfect memory to post this synopsis of some of the main items that were acted on. These include (not necessarily in the order they were dealt with by the Council):

*the proposal to pressure the bars to close at 2 AM

*the proposal to increase wages and benefits for the Deputies

*the DA Heggen issue

*the Liberty Affordable housing proposal

Public Safety Proposal to “Amend City Code Chapter 136-37 Regarding Revocation And Suspension of Permits”

Public Safety Commissioner James Montagnino had an item on his agenda designed to pressure the bars in town to close by 2 am by threatening to revoke the permit of any eating or drinking establishment if, for example, “a patron or guest of the establishment in question left the establishment after 2:00AM and, within one hour of leaving the establishment, committed a criminal offense.”

The public hearing on this item was long and contentious. Many persons associated with the bars around Caroline Street turned up and spoke against closing the bars at 2:00 AM in general, and this proposed ordinance change in particular. While some members of the public spoke in favor of a 2 AM closing, none addressed the problematic nature of this particular ordinance change.

The resolution failed on a 3-2 vote, with Mayor Kim and Montagnino voting in favor and Commissioners Moran, Sanghvi, and Golub voting against the motion to adopt the proposed regulations.

Putting aside the issue of a 2:00 AM closing, to say that the proposal was flawed is a gross understatement. I will be writing about this in a coming post.

Deputy Salary and Benefits Proposal

There was a heated exchange over the proposal submitted by Accounts Commissioner Dillon Moran to increase the salary and benefits of the Deputies. {see the previous post for details} The proposal was tabled for two weeks. There appeared to be a consensus that Public Works Deputy Joe O’Neil’s situation was unique and deserved special consideration. In his role, he is on call basically 24/7. He is called out at night for infrastructure emergencies, for instance. O’Neil has also held his position for a number of years as opposed to the other Deputies who have been employed for a year or less. Commissioner Sanghvi offered to work on revising the proposal to try to find a consensus on how to handle the O’Neil issue.

The DA Issue

Earlier, before the meeting on Tuesday, county District Attorney Karen Heggen responded to a letter sent by City Attorney Tony Izzo at the direction of the Council. The Council had decided they would take the DA up on an offer she had made to meet, but they had attached a demand that first Heggen ask Judge Freestone to drop the restraining order against them. In her reply, Heggen declined to apply to the court to drop the restraining order. She did, however, offer to modify the order and invited representatives of the Council to meet with her in her offices to discuss the issues.

The Council decided that the Mayor should not go to the meeting but instead that Deputy Mayor Angela Rella, along with Public Safety Commissioner Montagnino and City Attorney Tony Izzo, would meet with Heggen. There was some discussion about having the city’s Chief of Police attend, but it was not clear to me how that was resolved, if at all.

Montagnino Ignores His Own Department’s Policy Manual

As an interesting aside, it came to light during the public comment period that the Saratoga Springs Police Department Policy Manual contains the following:

It is the policy of the Saratoga Springs Police Department to protect the privacy rights of individuals, while releasing non-confidential information to the media regarding topics of public concern.  Information that has the potential to negatively affect investigations will not be released.”

324.2 Policy

and

“The ultimate authority and responsibility for the release of information to the media shall remain with the Chief of Police.”

324.3 Responsibilities

Obviously, had Mayor Kim and Commissioner Montagnino followed the policy manual of their own police department, the debacle the city is dealing with now could have been avoided.

Given the manual, it is clear that the Chief of Police should attend the meeting with Heggen.

As Commissioner Montagnino never responds to my emails, I cannot verify what the plan is.

The Liberty Affordable Housing Issue

The Accounts agenda included two items related to the Liberty Affordable Housing proposal for the parcel at the corner of Crescent Avenue and Jefferson Street.

The items were:

1. Discussion and Vote SEQRA Liberty Affordable Housing
2. Discussion and Vote Council Approval of Zoning Map and Comprehensive Map Amendments for Liberty Affordable Housing

Commissioner Dillon Moran explained that these two items would not actually be voted on at the meeting. He had placed them on his agenda to provide the public with a link to the documents related to Liberty’s proposal, something that he said couldn’t be done otherwise because of some kind of limit to the city’s IT system.

With little notice, Saratoga Springs Accounts Commissioner Dillon Moran has put on his agenda for Tuesday night’s (December 6, 2022) City Council meeting a resolution that will raise the salaries and benefits exclusively for the five city Deputies. I am certainly not opposed to fairly compensating employees, but his resolution is disturbing for a number of reasons:

1. The timing

2. The increases in salary and benefits are only for political appointees, the deputies.

3. There is no rationale for these salary and benefits increases

The Timing

Past Councils traditionally addressed Deputy salaries and benefits in an annual resolution passed well before the city budget was adopted, as those figures would have to be included in projecting city expenditures. Commissioner Moran put this proposal on the Council agenda on Friday (12/2/22), less than a week after the 2023 budget was passed and the tax rate was set on Monday (11/28/22), thus avoiding any discussion of these salary increases at any of the budget hearings. Finance Commissioner Sanghvi raised no objection to this addition to the budget at this Monday morning’s (12/5/22) agenda meeting when it was discussed.

Deputies Only

Moran’s proposed raises and increase in benefits apply only to the Deputies, not to any other city employees.

In the past, the Council would annually pass a “Resolution for Non-Union Full-Time Employees” setting salaries and benefits for Deputies but also for a list of City Hall positions that included, for instance, the Executive Assistants, the Human Resources Specialist, the Director of Risk and Safety, the Civil Service Coordinator, the City Attorney, etc. The city’s policy has been to keep benefits and raises for these employees in line with those negotiated for CSEA (Civil Service Employees Association) employees. So, for instance, non-union full-time employees have been given an annual 2% pay increase and the same number of vacation days as the CSEA union employees.

This resolution put forward by Moran is unprecedented in that it separates the Deputies from the other non-union employees and grants these raises and benefits only to the Deputies who are now identified as “Executive Employees.”

Hopefully, readers realize that the Mayor and Commissioners are only paid $14,500, so although the charter does not indicate this, they are considered part-time. The charter states, though, that each Commissioner is entitled to a deputy. While wise Commissioners in the past have chosen many outstanding deputies with the knowledge and skill set to effectively run their departments, there are no requirements in the charter for who can be appointed a deputy: no degrees, no prior experience, no civil service tests…nothing. The charter does allow the Council to “establish appropriate qualifications for any deputy,” but no Council has done this so far. So these positions are, in the end, all political appointments. Commissioner Sanghvi’s deputy, for instance, was her campaign manager.

Four of the five current Deputies have no prior experience working in City Hall, and four have not yet worked a year in their jobs. I am told by reliable sources that Deputy Public Safety Commissioner Jason Tetu and Deputy Accounts Commissioner Tracey O’Connor wrote the original draft of Moran’s resolution.

Moran’s Proposal as of Monday Morning’s Agenda Meeting

I understand that Commissioner Moran has revised his proposal, and I would direct readers to the city’s website to see the latest version. The following is a comparison between the Deputies’ current benefits and those in Moran’s original proposal:

• Current Base Salary for Deputies = $77,680.00 | Proposed = $102,500.00 (+32%)
• Currently, the deputy salaries are uniformly the same| Proposed a Commissioner may increase his/her deputy’s salary if there are sufficient funds (no limit).
• Currently Starting Employees Vacation Days = 10 | Proposed 21 Days (+110%)
• Currently, no vacation days can be carried over at the end of the year | Proposed any unused vacation days can be carried over into the next year.
• Currently, employees can only redeem cash for unused vacation accrued during the current year of employment | Proposed all vacation days accrued since the person was hired can be converted to cash when that person leaves city employment.
• Currently, an employee leaving the city is eligible to convert 25% of their accumulated sick leave up to a maximum of 200 days into cash| Proposed the employee will receive full value for every sick day, and there is no limit to the number of sick days.
• Currently, employees receive 6 personal days | Proposed employees will receive 8 personal days (+33%).
• Currently, unused personal days can be converted to sick time | Proposed employees can roll over personal time to the next year.
• Currently, unused personal time is lost | Proposed employees can cash in personal time at the end of their employment.

Problems Remain –Where’s The Data?

In spite of the modifications in Commissioner Moran’s proposal, essential problems remain.

I admit I do not know how much Deputies should be paid nor what their benefits should be.

Unfortunately, Moran’s resolution was not accompanied by any documentation showing how these figures were arrived at. I would think that before such changes would be proposed, there would be some sort of salary/benefit study assessing, for instance, what other municipalities pay for comparable positions and how this compensation relates to that of other positions in city hall. As far as I can tell, these figures were grabbed out of thin air.

And these other questions remain-why have the Deputies been singled out for improved compensation, and why was this done after the budget process had concluded.

Another Blow to City Hall Morale

Multiple sources have described to me the anger and frustration that this proposal has generated among the other non-union and CSEA (union) employees.

The current rates of inflation have placed strains on most people. If the proponents of this resolution wanted to further undermine the morale of the city’s employees who are already suffering under current management, they couldn’t have chosen a better weapon than this proposed resolution.

Lew Benton served for eight years as Saratoga Springs Public Safety Commissioner from 1988 to 1995. Here are his observations about the downtown bar scene then and now.

*************************************************************

I doubt that Gideon Putnam ever imagined when he platted the hamlet’s streets that the one he lent his daughter Caroline’s name to would become a modern day version of Deadwood’s Lower Main or Dodge City’s Front streets.

But the November 20 early morning gunfight on Broadway, reportedly prompted by a dispute in a Caroline Street bar, presents as a 19th century Dodge City shootout. Like Caroline Street, Front Street in Dodge was host to several ‘watering holes’ including the famous Long Branch Saloon.

There one night in 1879 the ironically named Frank Loving shot and killed Levi Richardson over a dispute involving Loving’s wife. Loving was wounded in the exchange.

Of course such gun play in that time was not unusual, but it is specifically referenced because it may prove to be characteristic of what happened here a week ago Sunday in the wee small hours.

Now, as then, carrying a hand gun, legally or not, in public places where alcohol is consumed in excess, inhibitions diminished and rational thought trumped by bravado and irresistible impulse, present as ripe for trouble and unintended consequences.

Indeed, some would argue that today’s faster, lighter, higher capacity, more powerful, semi-automatic hand guns only increase the danger of an accidental shooting, the killing or wounding of innocence or a disproportionate response to a perceived slight.

The November 20 shooting was not an aberration, not a one and done. And we had been warned.

In June of 2021, a Caroline Street brawl, reportedly involving 15 to 20, resulted in the stabbing of a 26 year-old, the discharge of a “ghost” gun and the suggestion of possible “gang” involvement. Serious stuff and fraught with serious consequences, including potential injuries to police officers and bystanders, the risk of escalation, unwarranted allegations of police misconduct and the attended risk of municipal liability.

This is to say nothing of the municipal costs of such incidents.

Following that incident the then deputy chief of police urged the development and support of a comprehensive community based plan designed to stem growing violent downtown episodes.

Then it was suggested that following the 2021 summer season, with the benefit of recent experience, the type and number of incidents compared to corresponding data from previous years and knowledge of any changing influences driving outbreaks of violence, would seem the best time to develop such a plan.

To my knowledge, no such comprehensive plan was developed.

Over the years, as previous public safety commissioners have attested, there have been many, many violent incidents on Caroline Street and environs, several resulting in serious injury and, in at least three cases, deaths. The most recent a 2021 homicide resulting from a bar fight.

Different City administrations have attempted to keep the lid on the Caroline Street pressure cooker. Many years ago I implemented a 8 PM to 4 AM overlapping special patrol which, I recall, helped tamp down violent outbreaks. Such initiatives, however, do not address the root causes of the problem.

Other strategies were considered. A Public Safety initiative to close bars at 2 AM rather than 4 AM, strenuously resisted by some bar operators and the Chamber of Commerce, was ultimately dismissed by an indifferent, mulish County Board of Supervisors perhaps still cultivating some past pique.

Pre-peak season meetings with the police, bar operators, private security and the SLA, sponsored by public safety, sought to lessen the occasions of violent and other criminal behavior. And this year Public Safety and the SLA intervened to sanction Gaffney’s following yet another street brawl reportedly provoked by its “patrons.”

I recall riding, over 26 plus years ago, on patrol with late at night on Caroline Street during the height of the summer season. Then, as now, the goal was to roll back, calm dicey situations before they got out of hand. What I experienced then was good, ethical policing conducted with discretion, common sense and a cool demeanor.

And as far back as the late 1960s, as a young probation officer, I occasionally rode on night patrol with my father, a city police officer.

Still, even a greater police presence designed to deter such street crime begs the more fundamental question of cause and effect and how to prevent, or at least reduce, it.

What really drives the too frequent downtown lawlessness and occasion of violence? Booze, street drug use, diminished inhibition, alcohol fueled bravado, mob mentality, less fear of potential legal and social consequences, simple peer pressure. A “What Happens in Las Vegas, Stays in Las Vegas” mentality.

Now a new dynamic to consider and one I have not seen discussed: the carrying of concealed weapons in public.

On June 23, 2022, in a 6-3 ruling, the US Supreme Court struck down part of New York’s concealed carry gun law, a provision requiring an applicant to show “proper cause” in order to obtain a license to carry a concealed handgun outside their home. (New York does not allow handguns to be carried openly at all, and that restriction was not challenged in the case.) The Court’s decision in New York State Rifle & Pistol Association v. Bruen removed a key element of New York’s gun laws, making it easier to obtain a license to carry a firearm in New York’s public spaces.

The Court ruled that the 109-year-old provision violated the Second Amendment, holding that States may not require otherwise responsible and law-abiding citizens to show “a special need for self-defense” in order to qualify for a license to carry a handgun outside the home. A license to carry a handgun may be denied for other reasons specific to an applicant’s background, character, or ability to use a firearm properly, but not for lack of a special need for self-defense.

The Court’s opinion focused primarily on history, relying on its view that there was no precedent for similarly restrictive laws limiting people’s ability to carry handguns in public for the purpose of self-defense when the Second Amendment was ratified. Consequently, the Court ruled that New York’s proper-cause requirement was not part of a “historical tradition” defining the “outer bounds of the right to keep and bear arms.”

Of course most thinking people know that the Second Amended conferred no such right, but for now communities and the police are left to deal with the irrational decisions of a compromised, activist court.

In the wake of the Court’s decision in Bruen, New York’s lawmakers were called back to Albany for a special session to pass new legislation clarifying and enhancing New York’s many public-safety-oriented protections for handgun licensing in a manner consistent with the Supreme Court’s decision. On July 1, 2022, the governor signed legislation expanding restrictions on access to guns in the state.

In relevant part the legislation made carrying a concealed hand gun, even if licensed, illegal in certain public places, including bars.

That state July action, which prohibits and criminalizes a licensed concealed carrier from bringing a gun into a bar, was, of course, almost immediately challenged but, at least for now, I believe, stands.

The insanity of the Supreme Court’s ruling in the Bruen case is made evident by the November 20 gun fight on Broadway and untenable burden it places on the police.

If, as has been suggested, one of the young men shot that morning, was licensed to carry his concealed hand gun in public, but may have violated the penal law by possessing the gun in a bar, how will the DA proceed? The other gunman, reportedly an off duty Vermont deputy sheriff, was carrying a concealed non-issue hand gun in the same bar. Did he legally carry that gun into the Caroline Street bar?

Hey, two armed guys in a bar at about 3 AM get into a dispute. What could possibly go wrong?

It will be interesting to learn how the DA deals with all this. If, in fact, the two involved legally possessed their weapons, will she prosecute them for violating the stricture against carrying them in a bar? Will they claim self defense in the response to a self created threat? What if one legally possessed and carried is weapon and the other did not?

Will she even enforce the state prohibition against concealed weapons in bars? We will recall that the county sheriff vowed not enforce the state’s SAFE law regulating certain semi-automatic assault weapons.

Presumably these and other questions will be answered in the course of the reported State Police investigation. Hopefully the findings of that investigation and any corresponding one conducted by SSPD will also serve to prevent future similar violent outbursts.

In the meantime the police are again left to keep the piece and babysit the Caroline Street crowd, not knowing who is carrying a concealed weapon, legally or illegally, but surely aware that guns, bars and alcohol are a toxic mix. Their lot cannot be a happy one.

The federal courts have predicated recent gun decisions on a contrived right of self defense in public places. But the November 30 gun play protected no one and placed police officers and others in grave danger.

If the Board of Supervisors, including are own representative, again negate an earlier closing time, let the city council ask for a Home Rule message to amend the pertinent state law. And every bar in the Caroline Street area should be required, as a condition of city licensing, to display a door sign reminding all that under current state law it is a crime to bring a concealed weapon prohibiting into the premises.

Local elected officials have suggested other steps. Perhaps now is finally the time to develop the community based strategic plan that Deputy Chief Catone advocated well over a year ago. For now the priority should be gaining control of bar closing times, developing a definitive policy regarding enforcement and prosecution of concealed carry laws and exposing the myth that carry a weapon in public makes anyone safer.

If not, the Dodge City analogy may just stick and the city will suffer for it.



12/01/2022
LJB

Saratoga Springs has been fortunate to have attracted some outstanding individuals to work for the city in many capacities. This year some key people have either left or announced their plans to leave in the near future. The list includes:

Shane Crooks, Chief of Police

Lieutenant Laura Emanation, the highest-ranking woman in the Police Department

Lynn Bachner, the city’s Budget Director

Marilyn Rivers, Director of Risk and Safety

Tina Carton, Administrator of Parks, Open Lands, and Historic Preservation

All but one of the IT staff members

These employees have not only enriched the city with their knowledge and talent, but they have an institutional memory that has been important to the smooth running of the city and will be missed.

A Farewell to Tina Carton

One of those departing employees is Tina Carton, the Administrator of Parks, Open Lands, and Historic Preservation, whose last day in City Hall was Friday, December 2. As chronicled in the piece below by former Finance Commissioner Michele Madigan, Ms. Carton has been at the center of many, many key projects dealing with the quality of life and sustainability of our city. It will be hard to fill her position with someone as capable as her.

From Ms. Madigan:

On hearing the news of Tina Carton’s resignation as the city’s Administrator of Parks, Open Lands, and Historic Preservation, a position required by the Saratoga Springs City Charter, I wanted to express my wholehearted gratitude for all the sustainable project work Tina completed on behalf of our great city. Tina consistently showed herself to be one of the hardest-working employees within City Hall. 

A few projects and memories spring to mind. Tina has been instrumental in the ongoing development of the city’s Greenbelt Trail, the Missing Sidewalks project, the Geyser Road Trail, the Municipal Smart City Street Light Conversion project, bringing EV charging stations to the city, energy benchmarking and bicycle lanes, to name a few. These are all massive projects with huge budgets typically associated with a NYS grant that often require matching funds with quarterly and yearly updates due to the NYS in a timely manner. For the city, Tina was practically a one-woman show. During my tenure, the Finance Office always tried to assist her regularly because we, too, were invested in the successful completion of her sustainable project work. though she very much disliked “Certifications of Sufficient Funds” (a private joke between Tina and me)! I am sure she is simply thrilled to be rid of this onerous task. 

In addition to all of Tina’s project and grant work, she was involved actively with running numerous official city committees: The Open Space Advisory Committee, Climate Smart Task Force Communities, and Compete Streets. She project-managed the city’s Natural Resource Inventory Plan and the Open Space Plan. Tina also prepared excellent website content for the city’s “Sustainability and Resiliency” and I strongly advise residents to review all this great content.

 Tina has a great personality, and I believe her passion for city sustainability projects will be regretfully missed. But we are lucky that Tina will continue to reside in Saratoga Springs, and I’m sure she will stay involved in some manner with sustainable efforts here locally. I wish Tina much success and goodwill in her future endeavors.

 Michele Madigan, Former Commissioner of Finance 2012 -2021

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.

One of the problematic aspects of allowing bars in Saratoga Springs to stay open until 4AM that has not been focused on is the impact this has on the city’s police department. In addition to the verbal abuse police suffer, officers are routinely placed in a volatile and dangerous situation as they try to cope with crowds of drunks in the downtown bar area. It is only a matter of time before more people, including police officers are hurt. In addition, officers who must routinely respond to the eruptions on Caroline Street are not available to quickly respond to other incidents that may occur simultaneously in other areas of the city. If this situation is not addressed, the city will find it increasingly difficult to attract and keep officers.

Chris Mathiesen served as the Public Safety Commissioner in Saratoga Springs from January 2012 to December 2017. During his time in office Chris visited Caroline Street at three in the morning to observe firsthand what was going on there. Here is a recent interview I did with him where he describes this experience.

Below is a piece Chris wrote for this blog.

Caroline Street Nightclub Scene

It is much too early to make any definitive pronouncements regarding the November 20 shooting in the Caroline Street Nightclub District.  As this incident is fully investigated by law enforcement professionals, there will be more details to consider.  It is hoped that all injuries sustained will not be too serious and will allow for a full recovery.

It was just a matter of time.  Gun violence has become commonplace in the cities surrounding Saratoga Springs.  There was an incident in June of 2021 where a gun was discharged multiple times on Caroline, though it was assumed that no one was injured.  Other forms of violence have gotten worse in this district, with ubiquitous fist fights giving way to knives.  A stabbing took place this past summer on Phila Street.  Two fatalities occurred when individuals were punched and then suffered fatal head injuries as they hit the ground, once in 2014 and again in 2021.  There was a death in 2010 when a brawl turned into an assault by a motor vehicle.

Over the years, there have been relatively frequent incidents of altercations between police and inebriated patrons of the many drinking establishments in the nightclub district.  Usually, the incidents have occurred on weekends after midnight.  Some have resulted in injuries to police officers.  Due to the over-consumption of alcohol and other excessive behavior, Caroline Street has been out of control during late-night weekend hours for years.  It has to be observed to be believed.

The success of Saratoga Springs is stunning.  It has become a year-round destination City for weddings, conventions, meetings, and other less formal occasions.  Skidmore College attracts resident students from all over the world.  Downtown continues to thrive with numerous successful stores, offices, and businesses, while inner City condos and apartments have high occupancy rates.  Our good fortune is the result of many years of efforts on the part of those both in government and the private sector.

Success is fragile.  The success of a city like Saratoga Springs depends upon a reputation as a safe, fun place in which to live and work or to visit.  That all-important reputation is being undermined each and every weekend by the late-night bad behavior in our nightclub district.  

Some improvement took place in 2012 when, after a horrific incident in the summer of 2011, the pressure was brought to bear on all parties, which resulted in better cooperation between police and the establishments.  There was more focus on the problem of over-serving alcohol to inebriated patrons and on required background checks for bartenders.  Training standards for ‘bouncers’ were enforced.  The increased presence of police officers on the street helped to significantly subdue those engaging in openly aggressive behavior. 

Unfortunately, other measures proposed to help tame the nightlife problems were met with fierce resistance.  The most obvious issue has been the 4 AM last call for serving alcohol.   While the NYS SLA was supportive of our efforts in 2012 to limit the hours of alcohol sales, and the City Council did vote 3-2 to support these changes, the Chamber of Commerce and the owners of the nightclub district bars were adamantly opposed.   The County Board of Supervisors has the final say on this issue.   Our attempt to change the last call to a compromise driven 3 AM failed when that board failed to provide any support for our efforts.

Since then, both Warren County and Essex County have passed legislation shortening the hours of alcohol sales to 3 AM.  Police officials in Glens Falls and Lake Placid reported an immediate reduction in weekend calls for service.  The police officials in Lake Placid were so pleased that they were seeking a further reduction to 2 AM to reflect the last call hour in neighboring Clinton County.

It should be noted that Saratoga County is in the minority in New York State.  Most counties have last call hours of 3 AM or 2 AM, with some as early as 1 AM with more severe restrictions Sunday through Thursday.  As anyone who travels knows, alcohol in most other states cannot be served as late as in New York.  The 4 AM last call is extremely late.  In fact, the best solution to this problem would be for New York State to revisit this issue.  There is no good reason to continue granting permission statewide for bars and clubs to be serving alcohol until 4 AM.

Members of the previous City Council supported efforts to change the last call to 2 AM.  Mayor Kim and Commissioner Montagnino now seem poised to seek ways of doing so.  We should all support their efforts.

Chris Mathiesen