Saratoga Springs Public Safety Commissioner James Montagnino has unilaterally added a section to the “Saratoga Springs Police Standards of Conduct” that will make adultery a cause for the termination of an officer. The section that was added approximately a week ago without any notification or fanfare is highlighted below in yellow. It can be found on the city’s web page.
It is important to note that Commissioner Montagnino is not just referring to relationships that may occur at work between members of the department. His broad directive includes firing officers engaging in adulterous relationships between consenting adults occurring in officers’ private lives as well. Absent from the directive is how Montagnino will determine that an officer has committed this crime.
In operatic terms, Montagnino justifies his directive by asserting that a private act between consenting adults “…bring[s] shame upon the entire department.” Supposedly, “it jeopardizes prosecutions.” He imperiously asserts “it has a corrosive effect on the morale and reputation of all members of the service whether uniformed or civilian.”
About a dozen people have been charged with adultery since the early 1970s, most of them upstate. (Most of the charges were dismissed, or apparently were dropped after the defendants pleaded guilty to other charges.)
While no one is really at risk of being jailed for adultery, adultery still has tremendous significance in family law, said Alton L. Abramowitz, another divorce lawyer.
Adultery is one of three principal grounds for divorce in New York State…
New York Times March 21, 2008
As Commissioner Montagnino spent most of his career as a “referee” for divorces, it is not surprising that he is familiar with this law.
Federal Court Rules Firing For Adultery Is Unconstitutional
Commissioner Montagnino’s rash decision to introduce this addition to the Police Standards of Conduct seems to invite costly litigation for the city.
Some History
US courts have a long and storied history of being reluctant to allow the government to intrude into the bedrooms of its citizens. We have seen this especially in recent decades in cases pertaining to gay rights. The Supreme Court in Lawrence v Texas struck down a Texas law that criminalized homosexual intimate relations. The court held that “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”
Commissioner Montagnino’s call for severe sanctions for the private, consensual off-duty sexual conduct of police officers tramples on the same Constitutional rights that the Supreme Court sought to protect in the Lawrence case.
In addition, his statement that this behavior must be punished because it brings “shame on the entire department” is particularly troubling as it brings to mind the long history of victimization and stigmatization of women who engaged in unsanctioned sexual relationships. In its most extreme form this behavior, which was considered to bring “shame” on the woman’s family, resulted in horrific deaths by stoning and honor killings. I guess just losing your job for bringing shame on your department might be considered mild in comparison.
Groups such as UN Women have asserted that “penalization of adultery … leads to discrimination and violence against women.” However, as we already know, Mr. Montagnino’s record on these issues is questionable at best.
Some Questions
I find Montagnino’s adoption of this standard more than strange. It prompts me to ask four questions:
What prompted Commissioner Montagnino to adopt this standard?
How will he determine that a member of the police force is involved in an adulterous relationship?
His deputy, Jason Tetu, was a member of the Saratoga Springs Police Department before he became Commissioner Montagnino’s deputy. He is divorced and one of the issues that prompted the divorce was adultery. Would Mr. Tetu be subject to this standard?
Does Commissioner Montagnino have an officer in mind who this amendment will be used to target?
These are really rhetorical questions as Commissioner Montagnino never responds to my queries.
Saratoga Springs Public Safety Commissioner James Montagnino has inappropriately inserted himself into a criminal case. He has compromised an ongoing investigation by going to the press. He has taken action against the senior-most female officer in the Police Department in a move that could likely result in her termination as he gets to choose the hearing officer who will decide her fate. He has struck yet another blow against the morale of his department.
Background: The Precipitating Incident
The incident that precipitated the case that has led to all these actions by the Commissioner took place on February 28, 2022. This account of the incident is based on information from multiple reliable sources. Although none of my sources were present at the event, the information they gave me was consistent.
A teenage party involving underage drinking took place at a local home. One of the participants, a white kid, had a cell phone with a blue flag sticker that is the symbol for “back the police.” Another youth of darker skin who has been described to me as possibly of Iranian or maybe Algerian descent took exception to the sticker and accused the person with the phone of being a racist. He shoved the white kid with the phone who then shoved him back causing him to fall and hit his head on the counter behind him. It was alleged to me that the kid with the phone never struck the fallen person again. Two other boys are alleged to have struck the victim on the floor.
The issue of assessing guilt in this altercation is complicated by the problem of determining which blows caused which injuries. The chaos of these kinds of fights involving kids fueled by alcohol often leads to conflicting eye-witness accounts and adds to the difficulty of determining who is culpable for what.
The patrol officer who investigated the incident recommended that a charge of harassment be brought against the youth who knocked the boy down. He consulted his sergeant who agreed with the charge and recommended it to the lieutenant in charge of the investigation. The lieutenant is the highest-ranking female in the department. She agreed with the assessment but nevertheless kept the investigation open.
At some point in early March, the parents of the youth who was injured went to the police department to complain about the incident. They then went on to meet with Commissioner Montagnino.
Commissioner Montagnino Acts
On Thursday, March 31, 2022, Commissioner Montagnino summoned the lieutenant in charge of the investigation to his office. He instructed her to raise the charge against the youth from harassment, which is a violation, to assault, which is a criminal offense and a misdemeanor. My understanding is that it was a directive and not a consultation.
I am told that the Police Department policy is that a harassment charge is used when an incident does not involve serious injury. A black eye or a split lip under this definition would not rise to assault. A more serious injury such as a broken limb or a damaged eye would constitute an assault. Who instigated the fight is also factored into the decision on what charges to bring.
Numerous sources report that the lieutenant declined Montagnino’s order to change the charge and asserted that she reports to the Chief of Police and not to the Commissioner. I am told, but cannot verify, that she told Montagnino, “James, I do not report to you, I report to the chief” and that he responded by telling her that in the future she was to refer to him as the “Commissioner” and that she “F#ing works for him” and that she was being insubordinate.
Montagnino later summoned the lieutenant again to a meeting and this time told her that he was pursuing disciplinary action against her. She could resign or she could take administrative leave pending a hearing regarding charges of gross incompetence and insubordination which, if found to be true, could result in her termination. Montagnino gets to appoint the hearing officer who would hear the case.
For as long as anyone I know can remember, no Public Safety Commissioner has interfered in a criminal case being investigated by the police. As politicians who must run for election, Commissioners are very much subject to pressure from constituents. The last thing this city needs is a Public Safety Commissioner helping out donors, party bosses, or anyone else with an interest in the outcome of a criminal matter.
I have no idea what Commissioner Montagnino’s relationship is with the parents of the youth involved in the case of a drunken altercation at a teenage party. What I do know is that he should not have met with them to begin with, and most importantly, he should not have interfered with the ongoing investigation.
Violating these norms is an invitation to cronyism and corruption.
Montagnino Makes a Disturbing Public Relations Move
In an effort to get ahead of the story, Montagnino, as is his practice, contacted WYNT television (Channel 13) about the case. Montagnino has appeared frequently on WNYT. He was able to dominate two stories over two days on his criticism of the handling of this case.
As this is an ongoing investigation (as of this writing no one has been arrested and the investigation is continuing) it was shockingly inappropriate for Montagnino to be discussing this case publicly in the media. Normally, the standard protocol is to respond to inquiries by the media in a case like this by saying, “this is an ongoing investigation, and we cannot comment on it at this time.”
In addition, though, Montagnino went on to make a particularly disingenuous, reckless, and irresponsible statement suggesting race played a role in what charges the lieutenant decided to bring in the case.
“One of the aspects of the case that I find deeply troubling is that all of the other participants were White. The victim, himself was the only African American involved in the situation. I hope, I truly hope that racial animus played no part in the decision (to) not assess this as a crime,” said Montagnino. [technically harassment is a violation and a violation is not considered to be a “crime”]
WNYT April 1, 2022
While Montagnino did not name the officer who decided the charge, the word was already out about the action he had taken against his lieutenant. Raising the specter of racism allowed him to establish a narrative that would work in his favor and against the lieutenant. He qualified his ugly accusation to WNYT with the smarmy phrase “I truly hope that racial animus played no part…”
It is important to note that the lieutenant is a twenty-one-year veteran of the police force. She rose from patrol officer to Lieutenant during those years. I spoke to Chris Mathiesen who served two terms as the Commissioner of Public Safety. He was appalled to learn of Montagnino’s actions. He told me that during his tenure he promoted her to sergeant. He described her as an outstanding police officer whose record during his term was unblemished. Others have given her similar accolades.
The District Attorney
In the system of justice in New York State, it is the county District Attorney who prosecutes criminal cases, and it is the District Attorney in the end who decides what charge to pursue.
In that context, given the disparity between Montagnino’s assessment of the case and that of his lieutenant, I am told by several attorneys, that the prudent route for Montagnino to have taken would have been to discuss the case with the District Attorney.
Montagnino’s failure to engage the DA could be considered either an unfortunate oversite or a conscious strategy to avoid a contrary opinion. Either way, it speaks badly for him that he failed to consult the DA but instead went straight to the media.
Ignoring The Chain Of Command
I have no direct knowledge as to what if any consultation Montagnino had with Police Chief Shane Crooks before taking his action in bringing serious charges against the lieutenant. What is clear is that rather than working through the existing chain of command, he circumvented his police chief and for whatever reason chose to deal with the lieutenant directly.
The city charter gives the Public Safety Commissioner extremely broad authority. Technically, it was within his authority to bypass the police chief, but the implication is that he did not have confidence in his Police Chief to carry out a proper review.
Anyone with organizational experience would understand that this sends a message to Montagnino’s officers and the entire force that the Chief has lost his confidence (if the Chief ever enjoyed that confidence).
Organizationally, this was a very damaging management decision.
An Extremely Damaging Precedent
The city charter gives the Commissioner of Public Safety extremely broad powers of civilian control over the Police Department. It states that the Commissioner shall have “jurisdiction, supervision, and control of the governance, administration, disposition, operation, and discipline of the Police Department and its officers subject to section 6.1 of this charter.” [Title 6] Section 6.1 states that “the police department of the City of Saratoga Springs shall be under the general control and management of the Commissioner of Public Safety.”
While commissioners enjoy this kind of broad authority according to the charter, previous officeholders have refrained from interfering in criminal investigations.
If this is how Commissioner Montagnino is going to operate, he is going to be very busy meeting with people seeking to affect charges involving themselves or their family members or friends.
What I want in the Commissioner of Public Safety is someone who if approached about a particular criminal investigation tells the parties, “I am sorry, but it would be inappropriate for me to intercede in an investigation. If you have important information about an ongoing case I urge you to take it up with the officer overseeing the investigation.”
A History of Alleged Misogyny Plagues Montagnino
Montagnino’s interference in a case led by the highest-ranking female in the Saratoga Springs Police Department and the charges he has brought against her that could lead to her dismissal has reminded those who know his history of some unfortunate incidents in his past.
For a number of years, Montagnino served as a “special referee” in Westchester, New York overseeing divorce proceedings. He was the subject of a number of complaints by women over what they characterized as his bias against them.
A story that appeared in the New York Post (not my favorite newspaper), seemed to add credence to their claim. Referring to women seeking divorce settlements he gave students the following advice.
At a 2004 Pace Law School lecture, Montagnino warned lawyers to “beware of the 10583 Syndrome,” a reference to posh Scarsdale’s ZIP code.
“The 10583 mentality . . . says that ‘I’m entitled and I ought to be able to get the house, I ought to be able to get support . . . I ought to be able to live with my son’s drum instructor happily ever after and it all should be on his dime,’ ” he (Montagnino) said.
Saratoga Springs Public Safety Commissioner James Montagnino has been hit with a one-two punch that appears to have crushed his proposal to establish a security cordon around the Caroline Street bar district.
In mid-March Montagnino went to the media to tout what he called an “out-of-the-box idea to keep the city’s entertainment district safer.” His idea was to block off Caroline Street and institute security checks similar to those used at SPAC. This would involve using metal detectors and having private security guards waning and checking IDs of anyone wishing to enter the street. He told WRGB “This could turn the entire area into a major event every week end” and make Caroline Street a “mini-SPAC”. He was not specific as to where exactly these checkpoints would be set up given the many access points to Caroline Street.
Montagnino credited Mayor Ron Kim with originating the idea. Kim told Gazette reporter Brian Lee (3/20/22) that he was aware that some thought the security checks on a public street would be a violation of the Constitution’s 4th amendment which protects citizens from unreasonable search and seizure. “It’s not because, basically, if you don’t want to be searched, you don’t want to be ID’d, you just don’t come to that area of the town during a certain time period,” he said. Not great advice to give to those who live in apartments on this part of Caroline Street. Needless to say, not everyone agrees with Mayor Kim’s legal theory either. According to the Gazette editorial cited below, the American Civil Liberties Union, for instance, has successfully gone to court to protect access to public streets.
1.The Daily Gazette Editorial
In a scathing editorial, the Daily Gazette sliced and diced Montagnino and Mayor Ron Kim for the security proposal.
If treating customers and residents like potential airline hijackers, terrorists and bank robbers is the best plan Saratoga Springs officials can come up with for dealing with Caroline Street’s party scene, then the city either needs a better plan or it needs public officials with better ideas.
Gazette March 27, 2022
2.Commissioner Montagnino’s Head-on Collision with Caroline Street Bar Owners
Promoting his proposal, Montagnino told Channel 6 News on March 14 that his idea had the support of the Caroline Street bar owners.
At a meeting on March 22, 2022, Montagnino got a different message from the bar owners, however. They told him they unanimously opposed his plan.
The meeting, requested by the owners of nine of the twelve Caroline Street bars, was attended by Public Safety Commissioner James Montagnino, his deputy Jason Tetu, Accounts Department Deputy Stacey Collins, and Deputy Mayor Angela Rella. Conspicuously absent from the meeting was the city’s Chief of Police. This is unfortunately consistent with Commissioner Montagnino’s pattern of marginalizing not only the head of the Police Department but pretty much all his “sworn” officers.
I spoke at length with one of the bar owners who attended the meeting about what had transpired. According to my source, Montagnino had little to say at the meeting. Responding to questions from the bar owners, he said he was there to listen.
In the face of the bar owners’ opposition to his Caroline Street proposal, Montagnino, in an embarrassing moment playing the victim, backed off from his proposal and blamed the media for hyping the idea as if he had had no role in promoting the publicity.
Is Gaffney’s the Main Problem on Caroline Street?
The person I spoke with said that he had operated his bar on Caroline Street for some ten years. He told me that the culture had changed and that there had been more violence on the street during the last three years than in all the previous seven.
According to my source, while there are from time to time incidents in other establishments, the bar owners unanimously saw Gaffney’s as the major and most frequent source of violence.
He told me about a meeting held in August of last year that brought together a representative from the New York State Liquor Authority with the bar owners, the Sheriff’s Department, the Saratoga Springs Police Department, and the State Police along with representatives from the City Council. Conspicuously absent from the meeting were any representatives from Gaffney’s.
Gaffney’s is owned by Justin Manfro whose primary residence is in Westchester.
Manfro is not only one of the owners of Gaffneys but of Max London’s Restaurant, and Mrs. London’s Bakery.
Interestingly, WRGB (Channel 6) news in a story on the meeting, reported that for three weeks they have been trying to reach Manfro including visiting his attorney’s office without success.
The bar owner with whom I spoke argued that Gaffney’s fails to act pro-actively to minimize the potential for conflict. He listed for me a variety of techniques that bars use to control the “temperature” in their venues. He asserted that Gaffney’s does none of this.
According to him, Gaffney’s has been the subject of an investigation by the New York State Liquor Authority regarding nine violations during the last year. I have been told that six confirmed violations in a year can result in a revoked liquor license.
My source said that none of the participants wants to see the shutdown of any business.
It would be very helpful to have a conversation with Commissioner Montagnino about all of this but as he does not respond to my emails seeking the most basic information, it seems out of the question that he would be willing to meet with me.
[JK: This post has been corrected on March 25, 2022. The lieutenant that was demoted to sergeant was not a woman]
At the March 15, 2022, City Council meeting, Saratoga Springs Public Safety Commissioner James Montagnino announced, without prior notice to the public or the Police Department, that he was eliminating the Assistant Police Chief position, setting off a string of demotions within the department.
Montagnino successfully sold his narrative to the media that these moves were designed to put more police on patrol to address recent violent episodes on Caroline Street and to eliminate excessive bureaucracy and duplication of duties. A closer look at the Commissioner’s recent moves, however, reveals a very different story.
A Little History
Last December, then Public Safety Commissioner Robin Dalton promoted Lieutenant Robert Jillson to Assistant Chief of Police. Montagnino went to the media to accuse Dalton of illegally pre-empting his authority to fill the position. The story had an unusually long life as the two exchanged arguments through the media over the promotion. Eventually, Montagnino was forced to concede that it had been legally done, and he would have to accept it.
Well, he might have accepted it then, but as we now know, he was not done with Lieutenant Jillson.
Montagnino’s Cynical Revenge
While Montagnino likes to continually tout his commitment to transparency, his manipulative and dishonest use of his authority was on display at the March 15, 2022, Council meeting.
Montagnino had put the following item on his agenda for the Council meeting: “Discussion and Vote: Patrol Division Increase Initiative – Phase 1.” Conspicuously absent from this bland-sounding agenda item was a link to the actual resolution which would abolish Jillson’s position and lead to the demotion of other officers.
This was a flagrant violation of the New York State Open Meetings Law. Governor Hochul signed two pieces of legislation last October requiring that any resolution to be considered by a public body must be posted at least twenty-four hours prior to the meeting. Commissioner Montagnino, who is an attorney and who is never shy about reminding the public of his status and of his expertise in all things legal, would do well to remind himself of his need to adhere to the Open Meetings Law.
Montagnino’s failure to post on the city’s website the resolution he was bringing forward for a vote was no inadvertent error. Given Commissioner Montagnino’s continual self-promotion in the media, especially in the Times Union, his newfound shyness was out of character. Montagnino knew exactly what he was doing. He was hiding his plan. He had been on the job for only two and a half months, but according to multiple sources, he went ahead with this plan to reorganize the Police Department without first consulting the Chief of Police or any other members of the city’s sworn officers regarding his planned demotions. A manager acting professionally would have first asked for feedback from his staff as to any problems such a major initiative might precipitate that they had not anticipated. Why would Montagnino take such an impactful action after less than three months on the job without consulting at least his Chief of Police?
There is also the essential and fundamental element of trust. Even in the case of an unpopular initiative, basic respect and courtesy would require a manager to communicate directly with those their decision will affect. Failure to do so creates an atmosphere of fear and undermines morale. Employees will continue to worry over what “the boss” will do next.
It tells you a great deal about Montagnino’s character that aside from being a very bad manager, he had neither the courage nor the integrity to face Jillson and the other officers. Jillson and the others who were demoted would have to learn their fate from a City Council meeting.
All of this reminds me of the television comedy, “The Office” about an office managed by a clueless executive played by Steve Carroll. The only difference is that while the character played by Carroll was inept, he was not vindictive.
If nothing else, Montagnino is a savvy media player. Montagnino wanted to make sure that he would have the stage all to himself. With Commissioner Scirocco’s absence, he knew he could rely on his compliant fellow Council members not to raise questions. He did not want anyone, though, to refute any of the dubious arguments he was making so the media would provide him with the publicity he was seeking to promote his narrative unchallenged. All of this, according to Montagnino was supposedly about putting more police on patrol and the last thing he wanted was an aroused public challenging his assertions at the meeting.
Lieutenant Jillson is popular with the men and women in his department. Jillson’s demotion will have a cascade effect. He will go back to his position as Lieutenant. A lieutenant will be demoted back to sergeant. A sergeant will go back to patrolman. Montagnino knew the effect eliminating the position would have on morale in the Police Department, but he clearly did not care.
These demotions were tough enough, but the underhanded way it was done only further poisoned the atmosphere in the department. If Montagnino wanted the people he is supposed to lead to distrust and fear him rather than admire and respect him, he was successful.
Exposing Montagnino’s Misrepresentations: Duplication? Shame On You, Commissioner
In explaining his reorganization plan, Montagnino claimed that he was eliminating duplication in the Police Department. He specifically referred to the positions of Chief and Assistant Chief as duplicative and wasteful. I was struck by the fact that he didn’t even attempt to create the façade of seeking out all of the facts. By all reports, he never spoke to either Chief Crooks or Lieutenant Jillson about what they did each day. It is important to remember that Montagnino has been in office less than three months and by all accounts has spent little if any time actually talking with staff and learning how the department works. According to his own public statements, he based his decision entirely on a reading (misreading?) of the two positions’ job descriptions.
The management structure of the police is extremely lean. In 2014 under Public Safety Commissioner Chris Mathiesen, the management team was reorganized. The position of captain was eliminated. The command structure became simply the Chief of Police and the Assistant Chief of Police. There was no administrative staff. No secretary. No clerk. The Chief and his Assistant, beyond their roles of running the department, were responsible for taking calls, typing reports, filing documents, etc.
It is absolutely true that the job descriptions of the two men include many of the same duties. As noted, the Chief of Police has no administrative support other than the Assistant Chief. Of course, they share many tasks. They run the department together. What makes all this so ugly is that James Montagnino knows this. To use the duplication argument exposes his cynicism and his contempt for the public and the Police Department
So now Chief Crooks must manage the entire department with no support staff and no assistant.
Montagnino has made it very clear that he wants to draw leadership staff from outside the department. I do not think that it is at all far-fetched to speculate that he knows what an impossible position he has put Chief Crooks in and that part of his agenda is getting rid of the chief.
Montagnino also asserted that forty percent of the force “never leaves the office.” I have spoken to numerous people at the department and they are at a loss as to how he arrived at this number. I wrote to Montagnino asking how he arrived at that number but, not surprisingly, he has not responded. I submit that he grossly overstated this and being unable to defend his claim, silence is his strategy.
How About Taking on the Real Issue?
The department currently has eight vacancies in its patrol staff. Another seven are at the training academy and will not be able to operate fully as officers until November. If history is a guide, there is a good possibility that once they learn what life is like as a police officer, particularly these days in Saratoga Springs, some of them will resign and seek other employment.
If Montagnino wants to get more boots on the ground, what he really needs to do is to come up with a plan to attract and retain well-qualified staff.
It is important to remember that this string of demotions has come on the heels of Montagnino’s attempt to break the police contract by getting rid of the 12-hour shifts the PBA had spent months negotiating for. What he has managed to do during his less than three months in office is discourage people from joining our police department by getting the word out that it is a hostile environment to work in.
How To Insult Your Staff
At the same March 15, 2022, City Council meeting, Commissioner Montagnino managed to further insult his staff.
Included in his agenda was the purchase of three police vehicles.
In this video clip, Montagnino explains why he had put off the awarding bids on the cars explaining:
“I wanted to investigate to confirm in fact these purchases were properly bid out and I can state for the record there is a statewide program…” he goes on to describe how he confirmed it was done properly.
Now, I guess there is something to be said for a commissioner who is so rigorous that he personally reviews all the purchases made by his department. The problem is that if you worked for him handling the bid, he has announced to the public that he did not have confidence that you had done it properly. It was entirely unnecessary and gratuitous of him to present himself as the rigorous manager at the expense of his staff. He could have simply just asked for approval of the bid.
His alleged thoroughness was particularly pretentious because the entire bidding process was done through the state which clearly he didn’t know.
The fact is, the reason he did this was to create the appearance that he is a hands-on manager steeped in the ongoing operation of his department. Again, this shameless pretense is belied by the fact that he comes into the Public Safety office infrequently, and when he does, he hardly ever talks to any of his staff.
Montagnino: Out Of Touch With The People He Is Supposed To Lead
What is important to understand about Public Safety Commissioner James Montagnino is that he is out of touch with the men and women he is supposed to lead. He is rarely at thedepartment and when he is, he has almost no contact with the staff and that includes his top officers. His staff is the last to learn about his heavy-handed initiatives.
Commissioner Montagnino is an example of what I call the “Smartest Person in the Room Syndrome.” This is a person so taken with their own brilliance and with their own voice that they have little room for anyone else’s insights. In the case of Montagnino, he is legitimately smart, poised, and articulate enough that he can burn brightly with success for a while. Still, that kind of narcissistic deafness will eventually require that he pay a price for his failure to listen. Unfortunately, the cost of his arrogance will be shared by the police department, the fire department, and the people of Saratoga Springs.
In an imprudent rush to initiate his three year extended outdoor dining “plan” , Saratoga Springs Accounts Commissioner Dillon Moran has written to downtown business owners indicating he plans to erect barriers to build out “parklets” on city streets beginning April 1, a little over a week from today, March 23.
Efforts to convince him to establish proper notice for neighbors who will be impacted by the use of public right-of-ways for outdoor dining have been ignored as have calls for caution and the need to better define the program.
Samantha Bosshart, executive director of the Saratoga Springs Preservation Foundation and the board president, Adam Favro, have sent a letter to the City Council urging that further attention be given to the appearance of outdoor dining spaces in the city now that they will no longer be temporary.
They point out that the new ordinance allows for “‘decorations’ yet does not define what that means…”. In addition, no requirements exist for barriers, furniture, planters, lighting, etc. They urge that guidelines be established not only for esthetics but for safety, and that since these outdoor spaces will now be allowed for up to three years, that they “should receive the same thorough review that businesses with sidewalk cafes go through by the Design Review Commission…” [Their entire letter appears below.]
The establishment of standards has apparently been dismissed by the Commissioner. It is not even clear what hours these outdoor dining operations must operate within and the promised schedule of permit fees has not been issued.
Instead, Commissioner Moran has established himself as a kind of street czar. Without standards, he will determine policies on a case-by-case basis. This is an invitation to cronyism and corruption.
The big unknown of course is whether the New York State Legislature will act to extend the legislation that permitted outdoor dining designed to address the needs of restaurants during Covid. That legislation is due to expire on July 7,2022. Without this extension that would allow liquor to be served in these venues, Moran’s plan for outdoor dining will be effectively dead.
While Saratoga Springs Accounts Commissioner Dillon Moran has enjoyed favorable coverage by a credulous media of his plan to reshape downtown to expand outdoor dining, as with the Wizard of Oz, the reality has remained hidden behind a curtain. To the more critically observant, it is apparent that Moran has demonstrated a combination of ignorance and indifference to a variety of questions related to implementing the closing of streets and the wholesale granting of rights to restaurants and bars to use our city’s sidewalks and streets to enhance their businesses. I characterize the approach, all too common these days, as “stumbling forward management” where rather than analyzing and planning for foreseeable impediments to a goal, the executive simply tries to dodge one obstacle after another as they pop up in hopes of somehow eventually achieving a goal.
In fact, Moran’s entire plan is predicated on state legislative action that may never come to pass. After all the hype he has enjoyed, the enterprise remains very much in doubt.
A thoughtful manager would ask the basic question: “Why put time and effort into this until we know that the state will pass the required law that would make it possible?” That would include putting off going to the newspapers and television to tout the plan.
What is most disturbing has been Moran’s resistance to transparency. He has been urged to amend his ordinance to require that before a street is closed or restaurants are allowed to change a neighborhood’s streetscape that all the neighbors be provided:
Proper notice regarding the change
A document that explains what is planned including graphical renderings
A way to have input tochallenge the project
Without this transparency, if Moran is successful, residents and businesses in the downtown area may be in for some very unpleasant surprises.
Commissioner Moran touts the fact that citizens are supportive of expanding outdoor dining. All of us would support helping our restaurants when raised in the abstract. The problem is that issues of safety, access, noise, and inconvenience are serious potential problems for neighbors both residential and commercial that need to be carefully considered. Without the most rigorous and disciplined analysis of how to proceed, the entire enterprise could turn into a fiasco. In an earlier Gazette editorial, the newspaper specifically cautioned Commissioner Moran on the need to proceed with great caution. It is pretty clear that Commissioner Moran ignored this sage advice.
As will be described below, this process has been anything but rigorous and disciplined. Commissioner Moran’s missteps and ineptitude have been masked by a poorly informed media whose uncritical coverage has only emboldened him. Consider this puff piece from Channel 13 news as Commissioner Moran casually describes closing specific streets in the city over weekends oblivious to the complex problems that make the success of such sweeping actions enormously challenging. Most of those streets include not just restaurants and bars but also residences and retail businesses.
Dear reader, consider how you might feel if a restaurant in your neighborhood stayed open at night with extensive outside dining. What impact might the resulting noise have? What might the effect of lost parking spaces have on people trying to visit you? What might the closing of streets do to traffic in your neighborhood?
After all this hype, in the end, if the New York State Legislature does not adopt the needed legislation by July 7, then this will have been great media for Commissioner Moran personally but will have done little for the city.
The Timeline
The following is meant to document the sketchiness of Commissioner Moran’s management to date.
January and February2022 – Commissioner Dillon Moran repeatedly scheduled public hearings before City Council meetings on expanding outdoor dining but provided no actual proposal on which to comment. Not surprisingly, no one from the public spoke at any of these pointless hearings. The hearings created the facade of allowing for public input rather than the real thing.
Last week in February 2022 – Commissioner Moran finally drafts a proposal. The original legislation that extended outdoor dining in the city during Covid employed a committee representing the Fire Department, Risk and Safety, the City Attorney, and the Department of Public Works to establish the rules and to review applications. Moran’s proposed revision eliminated the committee and granted himself sole authority over this process. Public Works Commissioner Skip Scirocco intervened and informed Moran that his plan was in violation of the city charter. Scirocco explained to Moran that Public Works has authority over the city’s streets and sidewalks, and Moran cannot act without his cooperation. Moran was forced to amend his proposal to require the consent of the Commissioner of Public Works to any expansion of outdoor dining.
March 1, 2022 – On this date, the Commissioner of Accounts sponsored another public hearing at the City Council meeting, this time with a document. The problem was that the document which was made available for the public hearing had not been updated and was no longer the version to be voted on. Among the missing elements was the provision for the inclusion of the Department of Public Works in the process. As Commissioner Moran had the updated document that included the new role of the Department of Public Works, it is unclear why Moran did not update the city website so that people wishing to comment were addressing the correct document.
Even after it was pointed out to Commissioner Moran that the document on the city website was not correct, Moran failed to post the correct document for almost another two weeks.
March 11, 2022 – On the Friday before each City Council meeting, a draft of the proposed agenda and supporting documents for the following Tuesday meeting are supposed to be posted on the city’s website by noon. On this Friday this information was not posted until 8PM Friday night. It was only then, that at last, the latest version of Moran’s proposal was finally posted as part of the proposed agenda.
March 14, 2022 – On Monday mornings before the regular Tuesday night City Council meeting, the Council holds a “pre-agenda” meeting to finalize the Tuesday night agenda. In this March 14 meeting, there was a discussion over a clause in the ordinance that had been added that required permits for outside dining to be approved by the City Council. It was decided to remove this significant clause. It is unclear when this once again updated version of the ordinance was finally posted but as the ordinance was to be voted on the following evening, most of the public who might have participated in the public hearing would have been ignorant of the change. This is simply another example of how little Moran and his colleagues on the Council take their oft-repeated claims of transparency seriously
A New Development- The Big Surprise
In addition to the further changes made to the outdoor dining proposal at the March 14 pre-agenda meeting, Moran announced that he was adding a new item to his agenda concerning this issue.
According to Moran, on the previous Saturday, March 12, he discovered (he never explains how) that the New York State legislation extending the ability of restaurants to serve liquor in expanded outdoor dining spaces will end on July 7, 2022. Without the renewal of this legislation, his proposal will be rendered pointless, yet he apparently didn’t recognize this until at least two different versions of the ordinance had been posted on the city website and after months of appearing on television and in newspapers to tout his idea.
So at the March 14 pre-agenda meeting, Moran notified his colleagues that he would be asking the Council to authorize the Mayor to write to Governor Hochul asking her to extend the relaxed outdoor dining expansion regulations beyond July 7.
Moran also claimed that he had been working with Assemblywoman Carrie Woerner on dealing with the Governor and potential legislation. As, by his own admission, he had only become aware of the problem on Saturday, and as the pre-agenda meeting was at 10:00 AM on Monday morning, when was all this work with Woerner supposed to have transpired?
Dillon Moran and Governor Hochul
According to the March 16, 2022, Daily Gazette:
“… he [Moran] had a personal conversation with [Governor] Hochul about the matter [extending outdoor dining] last year, when the state’s top official assured Moran of her support.”
Daily Gazette March 16, 2022
So if Moran knew this extension was needed last year as his comments to the Gazette indicate, why did he only come to realize he had a problem on Saturday, March 13, 2022?
It also is unlikely that Governor Hochul made this kind of far-reaching commitment to him in casual conversation.
It is worth noting the protocol when dealing with the Governor. If you want the Governor to do something, you provide her with the courtesy of discussing it with her or her staff first. You do not ask her for what you seek through the media. Only after receiving assurances from the Governor, do you write her and publicize it. I understand that Mayor Kim has been warned about this. If they want Governor Hochul’s help, they have now undermined their own efforts.
The Failure of Transparency in the Agenda
Item #5 in the Department of Accounts agenda for the March 15 City Council meeting read:
“Discussion and Vote: Authorization for Mayor to Sign Letter to Governor Hochul Regarding Outdoor Dining”
There should have been a link to a resolution explaining exactly what was being asked of the Governor “regarding outdoor dining.” There was none. I expect they wanted to downplay the potential failure of their plan that the letter to the Governor would expose.
Confusion Over The Role of the Design Review Commission
There are many unanswered questions about just how all of these expanded dining areas into the city’s right-of-way are going to look. The concrete barriers [Jersey Barriers] the city has used on Phila and Henry Streets were ugly and potentially dangerous. We do not want our streets to look like the city was designed by Homeland Security.
In the meantime, when Moran first announced his plan he made a point about avoiding the Design Review Commission (DRC).
He [Dillon Moran] said his proposal will eliminate a clause that prohibits restaurants from decorating outdoors. Moran said he doesn’t want the restaurants to build semi-permanent outdoor structures that would require approval from the city’s Design Review Commission.
Daily Gazette
Of course, this leaves entirely undefined how these restaurants in the city’s downtown are going to look. It left completely unclear what oversight there will be, what standards will be established, and how anything will be enforced.
After there was some push back, at the March 16 meeting Moran again reversed course.
However, the Saratoga Springs Preservation Foundation wants the city’s Design Review Commission to approve the plan. Moran said he’s spoken to to the DRC’s chair and agreed on a process to include the commission headed into the fall.
If and when it makes sense for permanent outdoor dining, the DRC will be fully involved, Moran said.
Daily Gazette March 16, 2022
Conclusion
I do not dismiss the value of exploring expanded outdoor dining. What I find deeply troubling is that Commissioner Moran, who it appears will be the key decision-maker in all of this simply lacks the kind of disciplined skills to move cautiously and respectfully forward. He needs to focus less on the media and more on anticipating and addressing the many problematic issues that expanded outdoor dining and street closures will precipitate.
His unwillingness to incorporate language into the ordinance to ensure that neighbors impacted by specific expansions are properly informed pretty much guarantees that homeowners, businesses, and renters will be unpleasantly surprised. I expect that the heat this will generate will be appropriately directed not only at Moran but at the other members of the Council who were fully aware of the need for this transparency but failed to act.
There is no other way to put it. Commissioner Moran lacks the management skills that the expansion of dining into the city’s right-of-ways requires and his hostility to properly notifying the neighbors of such projects is a train wreck waiting to happen.
I am working on a longer, critical piece regarding Saratoga Springs Public Safety Commissioner James Montagnino’s recent actions. Unfortunately, his skillful and manipulative use of the media belies what is really going on in the Public Safety Department. Even a cursory assessment of Montagnino’s public relations campaign exposes the poverty of what he is doing. Most of the media, though, sadly lacks the resources to do a critical assessment, and instead they largely parrot his assertions.
To his credit, Stephen Thurston’s recent article provides some push back. His website is the first media source to provide any kind of substantive criticism of the many highly questionable initiatives Montagnino has been pushing.
Montagnino Uses Legal Rhetoric To Dress Up His Positions
Recent coverage has focused on Montagnino’s surprise defunding of the city’s assistant police chief position and the resulting demotion of a number of officers. The new Public Safety Commissioner’s controversial initiatives, however, also have included an earlier announcement that he wanted to roll back an agreement negotiated with the city over months allowing the police to work 12 hour rather than 8 hour shifts.
Montagnino claims that studies he has researched prove that twelve hour shifts are unsafe. Montagnino alleges that these studies give him the legal authority he needs to break the city’s agreement, and force the uniformed officers into the eight hour shifts. I spoke to a friend who is an attorney with a professional background in law enforcement. He offers a counter narrative that raises serious questions regarding Montagnino’s recent statements about the legal basis of nullifying the contract with the police union.
Here are my friend’s observations:
What Jim Montagnino is threatening to do will not only fail, but it will cost the city tens of thousands of dollars in litigation fees if he forces the PBA’s hand. The 12 hour shifts are not novel in law enforcement, in fact almost all NYS Troopers (with the exception of those in special assignments and details) work 12 hour shifts exclusively and have for 20 years. Stating that some studies indicate safety issues with the 12-hour shifts would somehow allow the city to successfully assert an unconscionable contract defense demonstrates that he doesn’t know much about that defense – or labor law in general. Even if this defense had any validity to it, how would it ultimately fare when so many other law enforcement agencies currently have 12 hour shifts? If Montagnino forces officers off 12 hour shifts, it will force the PBA to file legal actions at either the Public Employment Relations Board (PERB) or directly to the courts for a stay or temporary restraining order to stop the city from violating this MOU [Memo of Understanding which is part of the contract]. We should hope the city’s hired outside counsel advises Montagnino that this approach will be doomed to be costly and ultimately a failure, and if they don’t then it’s time to find new outside counsel.
Saratoga Springs Commissioner of Accounts Dillon Moran has announced his ambitious plan to expand outdoor dining. He wants to close some streets on weekends (Thursday to Sunday) during the spring and summer months. This proposal, while laudable, will need sober and rigorous oversight. The initiative seems rife to fall prey to the law of unanticipated consequences. Caution seems especially important in light of the many management problems that have plagued the new Council.
The resolution under consideration on Tuesday, March 15, 2022, would empower him with broad authority to pursue his publicly announced goals.
During the pandemic, the Governor, using the executive authority granted him by the legislature, attempted to address the crisis faced by restaurants. The state had imposed a fifty percent reduction in restaurant capacity. To offset this, along with the public’s fear of eating indoors, the New York State Liquor Authority eased its rules and oversight to temporarily allow restaurants to move some of their dining to the sidewalk and even the street.
To come to the aid of our city’s eateries, the previous Council adopted amendments to the city’s code to facilitate these expansions. While during the first year there were some considerable delays in issuing permits, in the second year things went quite smoothly.
It is important to bear in mind the unique circumstances that existed during this period. First and foremost, the demand for dining along with shopping had been suppressed by the threat of infection. This meant that the traffic downtown during this period was greatly reduced. This helped minimize the logistical inconveniences that might have accompanied the restaurant expansions.
In addition, the public was sympathetic to the needs of the restaurants that were in crisis, and it was understood that the entire endeavor was temporary.
Moran’s Proposal
Now Commissioner Moran is proposing to take what was designed as a temporary fix to assist restaurants during Covid and to expand it and make it permanent for at least the next three years. This proposed change raises a number of issues that should be considered before moving ahead.
As an example, consider the Jersey barriers. Those were the large concrete barriers the city used on Phila and Henry Streets. D.A. Collins was extremely generous to the city providing these to the city for free and taking responsibility for delivering and removing them. It is unreasonable to expect that D.A. Collins will permanently support these barriers.
That having been said, the barriers were not a great long-term option. They are ugly and they represented a hazard for cars negotiating Phila Street at the time. Critical to Saratoga Springs’ success is its charm and beauty. We do not want to look like downtown Bagdad.
The original amendment passed by the Kelly administration barred the use of “decorations”, but Commissioner Moran’s proposal has removed this prohibition. What is a “decoration?” It is not defined. Clearly, this needs to be thought through more carefully.
Any expansion of restaurants brings on a host of requirements from the New York State Liquor Authority (SLA) that must be met. While some of these restrictions were loosened during Covid that is no longer the case, and the old more demanding rules are back in effect. The process of applying to the SLA can take considerable time and investment, and it is not clear what effect they may have on a restaurant’s ability to expand in the coming years.
Perhaps most importantly the plan for this more permanent expansion needs to take into consideration the effect on other retail businesses, residents, and building owners. During Covid, there was a great deal of community support to assist the city’s restaurants which were in dire need. Other issues and inconveniences were tolerated or overlooked. With city restaurants now recovering and doing well it is time to address those concerns as the city looks to make outdoor dining a more permanent fixture on the city’s street.
Our Downtown Is More Than Restaurants
As Commissioner Moran is apparently an investor in one of the downtown restaurants and as his brother operates a downtown restaurant, it is understandable that they would be sensitive to the needs of the hospitality industry, but our downtown is made up of more than restaurants. We have retail operations, offices, and residential properties.
Saratoga County Chamber of Commerce president Todd Shimkus told the Daily Gazette:
“The city needs to work with the neighbors on each street individually because they have different means and different abilities to service outdoor areas without conflicting with their neighbors,” he said, noting that Caffe Lena and a non-restaurant Coles Woodwind on Phila Street, had legitimate challenges associated with outdoor dining in 2020.
Daily Gazette 2/1/22
Transparency Is Essential– People Need to Be Informed
Critical to the success of this endeavor would be proper public notice and education. It is essential that all the parties in an area that might be affected by the closing of streets and the expansion of dining be properly advised and allowed a public forum if they have reservations about a plan.
I have submitted for the public hearing the following suggestions to be included in the amended code:
The neighbors of restaurants planning to expand should be notified when the Council is considering applications for permits.
Neighbors should be notified of any changes to be made in nearby public spaces such as streets to be closed or made one way in relation to expanded outdoor dining.
At a minimum the people to be notified should be on the same block but it should probably extend beyond that block and should include other business owners, residents, and building owners.
The notice mailed to effected parties should include a detailed drawing of what is planned along with a narrative.
Any documents submitted to the Commissioner of Accounts by other departments such as Public Safety, Risk Management, and Public Works regarding proposed expansions should be posted on the city’s website.
Summary
The first two months of this City Council have involved a series of fumbles including the failure to adhere to the open meetings law, the ignoring of state laws and the city charter, and the failure to meet self-imposed deadlines for advising the public on significant initiatives.
This record makes the ambitious plans for closing streets and redesigning our city’s streetscapes worrisome. The best antidote for this is transparency so that the public can inform the Council of any problems that they may not have considered.
Unfortunately, this pattern of opacity has continued with the handling of this outdoor dining proposal. While Moran has scheduled a number of public hearings on outdoor dining the actual document to be voted on was not available to the public until late last Friday night, March 11. Now the Council is scheduled to vote on Moran’s proposal the same night as the first opportunity for the public to examine and weigh in on the proposal. In the interest of transparency and accountability the Council would do well to delay this vote till the public has had ample time to review and digest the changes being proposed.
Saratoga Springs Mayor Ron Kim has become the subject of approximately $6,000.00 in penalties levied on him by the state of New York. These penalties were the result of his failure to file the appropriate tax reports with the New York State Department of Taxation.
The Warrant
This is a “warrant” issued against the law offices of Ronald Kim by the New York State Department of Taxation on December 16,2021 and registered with Saratoga County.
A warrant allows the state to place liens on Mayor Kim’s properties and even to garnish his wages.
According to the warrant, the state began levying fines against Kim for failure to file required forms beginning in July of 2019 up to September of 2020.
A Totally Avoidable Blunder
The warrant indicates that from July of 2019 to September of 2020, Mayor Kim’s law office failed to submit tax form NYS-45. This form is to report quarterly withholding, Wage Reporting, and Unemployment Insurance.
During the last campaign, it was reported that Mr. Kim had failed also to pay his workman’s comp insurance and owed $7,000.00. Kim defended himself by asserting that during the period he had no employees and so, according to him, he was not required to maintain insurance. He called it a “misunderstanding” that he planned to address.
I will accept that during this period he did not have any employees although it seems odd that a law office would not have even a secretary. The problem is that unless notified otherwise, New York State assumes that if you have been withholding taxes during the previous quarter that you still have employees and must continue to report your withholding and other tax-related obligations.
If you do not submit NYS-45 or advise the state that you no longer have employees, then there is an automatic penalty. In this case, it is $1000.00 per quarter plus accrued penalty interest.
Kim failed to submit this form for over a year despite notices that the tax department would have been sending him.
So, all Mr. Kim had to do to avoid penalties was to notify state taxation that he no longer had employees. One has to wonder why he didn’t just notify the state to avoid all of this.
As of this blog post March 11, 2022, the warrant has not been satisfied so it can be assumed that he has neither paid the fines nor resolved the basis of the problem in consultation with the New York State Department of Taxation. It is also unclear whether Mayor Kim is continuing to rack up more fines.
It is worth noting also that the warrant refers to “last known address.” In this case, it was an address that he had vacated back in 2016. It may be that since 2016, some five years, the New York State Tax Department has not known how to contact him if he never notified them of a change of address.
What this tells us
Mayor Kim’s record in office has been a continued series of errors and mismanagement.
For an attorney, he seems especially indifferent to record-keeping, and inconvenient laws that might interfere with something he wants to do. The city has many dedicated staff with years of experience that should be a vital resource but the reports I hear from city hall are that his office operates in a sort of siege mentality.
As an example of his obliviousness, consider his promise made at the March 1, 2022, City Council meeting. At that meeting, he announced that he would be holding a public hearing in order to adopt the Unified Development Ordinance (UDO) which he erroneously claimed had not been done appropriately due to errors by the last administration. He announced that he would be posting the document the next day (March 2, 2022) that would be the subject of the hearing.
As of today March 11, I have been unable to locate the document on the city’s website. An email to the Mayor asking for the name of the document and where it is located on the city website has gone unanswered.
This is a fundamental failure not only to live up to a public promise, but it undermines the fundamentals of transparency that are central to the democratic process.
The reality is that this is simply another example of his indifference to his obligations. It seems that Mayor Kim simply ignores inconvenient truths or, as in the case with his court fiasco, he blames others for what are clearly his own missteps. Unfortunately for the city, he seems to live in some kind of alternate reality.
Saratoga Springs Politics 