In earlier posts, I have reported on Saratoga Springs Mayor Ron Kim’s debacle in his attempt to act as the City Attorney in City Court over a code violation case (see links to stories at end of this post). He received highly critical coverage for his actions, including an editorial in the Times Union (page down in their editorial to find the reference).
Most recently, Miller Mannix, the private law firm Kim has engaged to appeal this case is now also filing an additional suit, an Article 78. Apparently, Miller Mannix convinced Mayor Kim that the regular appeal might not prevail, so as a backup, they have prepared this additional legal action.
I have FOILed the city to try to find out how much all this legal work is costing.
What’s even more troubling is that this legal work on the part of Miller Mannix appears to be pointless given actions being taken by the City’s Building Department and the owner of the property in question.
An Utterly Pointless Suit
The case in question was the “City of Saratoga Springs v Church Street Trust”. It involved a contractor who initiated work without a permit on a building he owned. When the city failed to appear for the hearing (see story below), City Court Judge Jeffrey Wait dismissed the case against the contractor.
It is important to understand that Judge Wait’s decision did not empower the contractor to proceed with his project without a building permit. In fact, Judge Wait’s decision included that the dismissal was “without prejudice,” which meant the city could refile its complaint and pursue the case with representation by a properly appointed City Attorney.
In fact, as the documents below illustrate, the city has still not issued a building permit to the contractor. Rather the city’s Code Enforcement Department has submitted its complaint again. This complaint, in addition to the issue of not having a building permit, now includes additional code violations.
If the purpose of the Miller Mannix appeal is to ensure that the contractor does not do any work before all code violations are addressed and a proper building permit issued, the new complaint submitted by code enforcement (see documents below) that will be heard in city court this summer will achieve this. There is no reason to expend public money appealing the Wait decision.
Adding to the pointlessness of the appeal and the Article 78 is the recent revelation that the contractor now has a contract to sell the property that is at the root of the conflict. This would render the violations against the current owner moot as well.
I wrote to Mayor Kim asking why he is pursuing this legal appeal. He did not reply. I even went to a City Council meeting in May and asked him to explain the purpose of the lawsuit. He ignored my question, and no one on the Council used the occasion to seek an answer.
It is regrettable that Mayor Kim, who repeatedly criticizes the past administration for their alleged lack of transparency, fails to live up to the high standards he espouses.
On its face, having Miller Mannix pursue their appeals is about as gross a waste of public moneys as I have ever observed in the eight years I have been writing this blog.
Violating City Procurement Policies
The city has an agreement with the law firm Miller Mannix to provide legal support to the city’s land-use boards. The agreement is very broad in scope, but it appears to be quite a stretch that pursuing a criminal complaint about code violations in municipal court could be constituted as providing legal service to the land-use boards. There is an argument to be made then that Kim should have gone through a separate procurement process to hire Miller Mannix to pursue this code violation case.
I do not think it is unfair to consider that Mayor Kim does not want to procure the services through a separate resolution from the council for these lawsuits because it would highlight their cost and would draw the public’s attention to them.
The Complaint Submitted By Code Enforcement
The following documents demonstrate that the city code enforcement office is seeking to enforce the original violations rendering the appeal and article 78 moot.
At the State Liquor Authority’s (SLA) hearing with Gaffney’s, the bar offered up a memo of understanding (MOU) they had with the city. I presume it was written by Public Safety Commissioner James Montagnino. I write “presumed” because it was never presented to the City Council for action, so the entire process was totally opaque. Given Commissioner Montagnino’s history, it is both likely he wrote it and unlikely he had the city attorney review it.
The chairperson of the SLA dismissed the document. He characterized it as “not worth the paper it was written on.”
If Commissioner Montagnino wants to write a post for this blog explaining what this MOU was all about, I would be happy to publish it.
Todd Kerner, the chair of the Saratoga County Democratic Committee for over a decade, resigned before the end of his current term. The following is an email he sent to the Democratic committee members throughout the county. He offered no explanation for the suddenness of his resignation.
His Email to Committee Members
June 18, 2022
Committee Members and Friends,
After considerable thought over the past few months, I have decided to step down as the Saratoga County Democratic Committee Chair.
During my term as Chair, now at almost 11 years to the date, I have had the pleasure to work with so many people who stand up for the tremendous values our party stands for, from elected officials, candidates, and committee members to volunteers.
The County turns further from red to blue every year. We now have an Assembly district based in our county with a tremendous Democratic representative in Carrie Woerner; an excellent Congressional representative who represents most of the County and who will represent the whole county starting next year in Paul Tonko; and a Senate District covering our whole county which was won by President Biden by approximately 9 percent. We have many exceptional candidates this year, including candidates for DA, 112th Assembly, State Supreme Court, and hopefully for the brand-new Family Court seat. In addition, Assemblymember John McDonald and the complete statewide slate of Democratic candidates seeking election and re-election will add to our successes.
I want to thank each one of you for the assistance and guidance over the years. Without all of you, none of this would be possible.
I will be working with the Executive Committee to ensure a smooth transition and provide any assistance.
Sincerely,
Todd
Todd M. Kerner, Chair Saratoga County Democratic Committee
At the June 7, 2022, meeting, Saratoga Springs Mayor Ron Kim offered a resolution to transfer the Director of Risk and Safety from the Accounts Department to his office under the supervision of the City Attorney. The tone of Kim’s remarks (see video at the end of this piece) was heated and self-righteous while to his credit, Accounts Commissioner Moran maintained his dignity and decorum in responding to the Mayor.
Although the proposal may not be without merit, the reasoning for such a change was lost due to the Mayor’s fundamental misunderstanding of the liability insurance policy the city maintains and his inaccurate assertions about events related to an ongoing suit against the city.
The main argument Kim articulated for moving Risk and Safety to his office was based on the false assertion that the City Attorney had been left out of an April 1 meeting regarding the settlement of a lawsuit brought against the city by former city engineer Tim Wales. The attorney for the insurance carrier, John Aspland, who is handling this case for the city, asked Commissioner Moran, a witness in the case, and Marilyn Rivers, the Manager of Risk and Safety, to attend.
Mayor Kim’s Shrill Warnings
Kim misrepresented the significance of who was and who was not at this meeting when he spoke to Daily Gazette in a story published on June 8, 2022:
Kim argues the position [Manager of Risk and Safety] should be placed under the city attorney’s office to avoid situations like one in April in which the city attorney was not at a settlement meeting in an ongoing lawsuit against the city, while Moran and the city’s Risk and Safety Director Marilyn Rivers were present.
Daily Gazette June 8, 2022
“I believe it is imperative that we better coordinate the activities of the city attorney and the director of Risk and Safety,” Kim said. “If we don’t, this case will continue to go forward without the involvement of the city attorney, and that is not tenable.”
Daily Gazette June 8, 2022
We open the city to substantial risk as shown by the example above, where a City Council member, with the director of Risk and Safety, attempted to resolve a legal matter without involving the city attorney’s office or a member of the City Council,” Kim said Tuesday.
Gazette June 8, 2022
The Role of the Insurance Carrier In Defending the City
To understand the problem with the Mayor’s assertions, it is critical to understand the terms of the agreement between the city and its insurance carrier regarding legal liability insurance.
The city maintains insurance to protect against lawsuits brought against it.
The way this works is that in the event of a lawsuit against the city, as in the Wales case, the city’s insurance carrier engages its own attorneys to defend the city against the suit. It does not use the City Attorney.
The city pays a deductible to its insurance carrier for the legal costs and possible settlement or judgment. In the current case, that deductible amounted to $25,000.00. The cost of lawyer fees in that suit has far exceeded the city’s deductible. The suit has been ongoing for over a year.
So, to be clear, the insurance company at this point is responsible for paying whatever settlement their attorneys may reach with the plaintiff or the cost of the judgment should it go to trial.
Because the insurance company is using their money, they insist on controlling the process. The contract the carrier has with the city requires the city to “cooperate” with it.
Traditionally, the Director of Risk and Safety, who works in the Accounts Department, acts as the primary contact with the insurance carrier. This is not surprising as the Accounts Department handles insurance for the city. The Director assists the insurance attorneys by providing any information they may need from the city. She also keeps the City Attorney informed as to the ongoing activity in the suit.
This has been established procedure for the roughly twenty years the current Risk and Safety Director, Marilyn Rivers, has been employed by the city.
Should the insurance company decide to settle, depending upon the language in the contract between the city and the carrier, the city may be asked to pass a resolution endorsing the settlement.
In such a case, theoretically, the city could refuse to accept the settlement. In reality, the city always agrees, and the vote is effectively a legal formality.
If the city were ever to refuse a settlement reached by the insurer’s lawyer, the insurance company could withdraw and leave the city to hire its own lawyers at its own expense as well as pay for the costs of any possible settlement.
It’s hard to imagine a scenario in which the city would take on the costs and liabilities by rejecting a settlement agreed to by the insurance company.
Mayor Kim Misunderstands the Role of the City Attorney in Insurance Claims
Mayor Kim does not seem to grasp the authority the insurer has in litigation nor how minimal a role the City Attorney plays in these cases of claims against the city.
First of all, the Mayor’s assertions that the City Attorney had been left out of the loop regarding the April 1 settlement conference is patently false. I have seen the email in which Tony Izzo was advised of the “conference.”
In Tony’s defense, he probably didn’t attend because he knew that his role would be marginal and that Ms. Rivers would inform him of what transpired.
To give context to the role of Moran and Rivers in this matter, neither of them said a word during the April 1, 2022, meeting at which the judge discussed the case with the opposing attorneys. No one could characterize them, as Mayor Kim has done, of having “…attempted to resolve a legal matter.”
So at the June 7, 2022, Council meeting, when Mayor Kim accused Commissioner Moran of circumventing the City Attorney and of trying to negotiate the case settlement without the Council’s involvement he was wrong on both counts. The City Attorney had been informed of the meeting and chose for whatever reason not to attend and neither Commissioner Moran nor Risk and Safety Manager Marilyn Rivers “attempted to resolve a legal matter without involving the city attorney’s office or a member of the City Council,” as Kim asserted to the Gazette.
Mayor Kim’s Odd Handling of the Issue at the Council Meeting
Adept elected officials do not bring resolutions to the table if they do not have the votes to pass them (unless they are trying to score some kind of political point). I am not privy to the interactions that may have occurred prior to the meeting, but it appeared clear at the June 7 Council meeting that the Mayor did not have the votes to pass his resolution. Why take up Council time for a resolution doomed to fail?
Moran understandably opposed the Mayor’s resolution, but as it turned out, so did Public Works Commissioner Jason Golub. Golub told his colleagues that he was uncomfortable with the process. He noted that there were issues involving civil service that needed to be addressed (Kim dismissed this). His key concern was the potential for future partisan abuse. He was concerned about a partisan majority from one party forcing a reorganization move on a Commissioner from another party.
Mayor Kim read an email from Public Safety Commissioner James Montagnino, who was in Europe on vacation and therefore not present to vote, strongly supporting his initiative.
Had Mayor Kim’s resolution come to a vote that night, there would have been two votes against. Even if Commissioner Sanghvi had voted with the Mayor (which wasn’t clear) his motion would have failed to pass.
So, after all this theater, the Mayor withdrew his motion.
Someone in the audience called out to the Mayor that there should be a public hearing on the question. The Mayor then tried to get his colleagues to pass a resolution setting a public hearing at the next Council meeting. Interestingly, he could not get a second even from Commissioner Minita Sanghvi, who earlier in the meeting appeared to be in support of the Mayor.
So it appears that Mayor Kim will introduce this resolution again at the next Council meeting. As Montagnino supports the Mayor in this matter, Commissioner Sanghvi will be the deciding vote.
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.”
Finally, Mr. Kim’s position is inconsistent with the terms of use as they appear on the City’s website, which acknowledges that email addresses and other information may need to be disclosed in response to FOIL. Specifically, the terms state, “[a]s a governmental agency, the City of Saratoga Springs is governed by open records laws. Your email address and other identifying information may be subject to these open records laws if requested. In addition, certain email may constitute a public record and is subject to disclosure under state law.”
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.
Saratoga Springs Politics 