Author: John Kaufmann

On January 5, 2022, the Supreme Court, Appellate Division, Third Judicial District convened to hear oral arguments in an appeal by the neighbors of Saratoga Hospital over the city’s zoning of the land for the hospital’s expansion.

Consistent with Mayor Kim’s running City Attorney debacle, no one appeared for the city to defend it in the lawsuit. Not to be represented in this court was highly unusual.

Mayor Kim, who is an attorney, had not bothered to meet with the two departing City Attorneys prior to his taking office to find out what outstanding legal actions were before the city.

Had he done so, the city could have hired counsel to represent it.

With City Attorney DeLeonardis leaving office on December 31, and the hearing scheduled for January 5, and no new City Attorney identified to take over, it became obvious that it was simply no longer practical for the city to be able to be represented by counsel. DeLeonardis then advised the court that no one would be available to represent the city and that the city would have to rely on their written arguments to the court.

It is impossible to know whether, if the city had been properly represented at the hearing, the outcome of the decision would have been different.

In any case, given Mayor Kim’s hostile attitude toward DeLeonardis and Mayor Meg Kelly, it is probably unlikely he would have seen that the city was represented or worse yet, would have represented the city himself. The Daily Gazette February 19, 2022 edition reported:

In a news statement Friday, Mayor Ron Kim targeted former Mayor Meg Kelly and former city attorney Vincent DeLeonardis for trying to “ram this rezoning through without taking a hard look at the environmental impacts.”

Kim, whose tenure started Jan. 1, went on to call it a “lack of transparency and stomach-churning duplicity of the former administration and city attorney.”

Daily Gazette February 19, 2022

I am not sure what Mayor Kim means that there was a lack of transparency. This project was the subject of many meetings of the Planning Board and the City Council during which there was much public participation.

People can disagree over the merits of the hospital expansion but I do not know what he is referring to when he accuses the council of “stomach-churning duplicity.”

Analysis Of Court Decision

This is a link to the court’s decision:

Foothills Business Daily (FBD) has a good story on the court decision that is worth reading in addition to the following:

The neighbors of Saratoga Hospital, represented by attorney Claudia Braymer, have won a partial victory in their lawsuit to block the hospital from building a medical office building adjacent to the hospital. 

The Supreme Court, Appellate Division, Third Judicial Department made the following rulings:

1. The neighbors asserted that the decision by the city to rezone the hospital parcel was an instance of spot zoning.  The court rejected the claim.
2. The neighbors asserted that the members of the council had received donations from people associated with the hospital and therefore there was a conflict of interest.  The court rejected the claim.
3. The neighbors asserted that the designation of the parcel as OMB-2 (Medical Office Building) was inconsistent with the comprehensive plan.  The court rejected the claim.
4. The neighbors asserted that the city’s response to State Environmental Quality Review Act (SEQRA) was flawed.  The court agreed with the neighbors on this claim.

The city had argued that it was required to bring its zoning into compliance with the city’s comprehensive plan.  Which is what it did. This rezoning action was not a response from an application by the hospital.  As such, the city was not responding to any particular plan for what might be constructed there.  Without a plan, the city argued, any determinations of the impact would be hypothetical.  The city argued that when an actual site plan would be submitted to the city it would then be feasible and appropriate to do a further SEQRA review.

The court’s decision noted that as the hospital had submitted detailed plans back in 2015 in a failed application to the city for a Planned Unit Development (PUD), and as the hospital had sent a letter to the neighbors describing a medical building as their planned use for the parcel, there was enough information to undertake a full SEQRA review.

The court found that the failure to consider the impact of a medical building was an example of an unpermitted SEQRA “segmentation.”  Roughly, segmentation is where a developer seeks a review of only part of the full build out for his project.  As an example, a developer submits a plan for a mall that includes only one structure when they actually plan to build more structures on the site over time.

At this point the hospital has the option to ask the City Council to rezone its parcels to OMBD-2 in a process that would have the City Council (or the Planning Board) do the SEQRA review.  In this case, all of the plans and environmental impacts which were nearing completion in the pending site plan review by the Planning Board are known.  As such, the process would be considerably shorter than would otherwise be the case.

The hospital’s real problem is that the culture of the current Council is hostile to the hospital.  During their campaign, last fall, the slate of Democrats who have taken office sought support from the neighbors opposed to the hospital expansion.

If twenty percent of the owners of properties adjacent to the hospital sign a protest petition, it would require a supermajority of the council to approve the hospital’s expansion.  It is hard to imagine four of the current members of the Council supporting such a vote.

In his campaign, Commissioner Moran trumpeted his claim that he would not do reassessments. Here are just two of his campaign mailings, but the promise is on every one of his mailers.

It now appears clear that Commissioner Moran is going to carry out major reassessments of properties throughout the city.

According to the February 15, 2022 edition of the Foothills Business Daily,

Hundreds, maybe up to 1,000, residences are undervalued on the tax rolls in Saratoga Springs, and the city has contracted with a company to help find and rectify the discrepancies, says Commissioner of Accounts Dillon Moran. 

FBD

“Rectify The Discrepancies”: When is Reassessing not Reassessing?

So apparently there are a large but unknown number of structures that have either been built or have had major work done on them such as new additions or other improvements, whose assessed value has not been updated in the city’s tax roles.

At their last meeting (2/15/22) the Council approved a contract with GAR Associates to go through the city’s records regarding, I assume, building permits to determine which properties need to be reassessed.

Moran says the trouble has arisen over years as the Accounts Department has only one full-time assessor and one clerk. As such, some residential properties have been developed on what was undeveloped land, or the homes have received major upgrades, but the assessments [my emphasis] have not been adjusted to reflect the increase in value.

FBD

Now I am not opposed to making sure that properties are properly assessed in order for our real property taxes to be fair, but Moran promised “No re-assessment”.

The Ethics Of Promises

Commissioner Moran has a history of reckless campaigning with a disregard for the facts. Readers may remember that he forged a NY State Health Department document in a previous campaign to try to smear his opponent.

I will be generous and assume ignorance rather than malice in this case of his promise not to do reassessments. In his desire to use this as a hot button campaign issue he simply saw no need to actually research whether the city in fact needed to carry out extensive reassessments.

Moran, asked by FBD to explain the discrepancy between his campaign promise not to do reassessments and his current plan told FBD:

“I’m comfortable making the fairness argument,” he said, adding, “Everybody has the ability to grieve” their new tax bills if their home value changes. Also, the changes only apply moving forward. The city cannot ask for taxes that should have been levied in the past.

FBD

Maybe he should have considered the “fairness argument” before making “NO ASSESSMENT” the center of his campaign.

Saratoga Springs Mayor Ron Kim has appointed Tony Izzo as an “interim” City Attorney. Tony was the city’s Assistant City Attorney for over 30 years before Kim decided not to reappoint him when he took office in January. While I am happy that Tony will be returning to city hall, this is yet another chapter in the continuing debacle as Kim struggles to permanently fill the City Attorney’s position.

The resolution establishing the terms of Tony’s appointment has him working from twenty to twenty-nine hours a week

If you are familiar with Tony’s history, you know he will regularly be working more than those contractual hours. The city of Saratoga Springs has no more loyal supporter than Tony Izzo.

Interestingly, Tony had been making $1,100.00 a week during Meg Kelly’s administration. The terms of employment are the same under Kim, but now Tony will be making $1,800.00 a week. I am glad for Tony. I feel pretty confident that the increase was not rooted in a demand from Tony for more money. His salary will be less than what Kim advertised for a permanent part time city attorney.

In his announcement of Tony’s appointment, Mayor Kim stated, “As we continue our search for a city attorney, Tony has agreed to step in as an interim attorney.”

In the February 16, 2022, edition of the Foothills Business Review, Stephen Thurston reported:

Asked if he [Mayor Kim] is having trouble finding an attorney to take the job, he said there has been no trouble at all.

“We’ve actually been spending a lot of time interviewing people,” he said.

Foothills Business Daily

Mayor Kim’s remarks seem a bit disingenuous. After his well-covered fiasco before Judge Wait and his reported intransigence in accepting the clear evidence that the City Attorney is a public officer subject to a residency requirement, it is likely that the Mayor is having more trouble finding a City Attorney than he will publicly acknowledge. After all, he has had since November to find one.

A very reliable source has told me that Mayor Kim had a candidate who initially agreed to the appointment but who backed out two days before Tuesday’s Council meeting.

In his remarks, Mayor Kim emphasized the temporary nature of Tony’s appointment noting that he is continuing his search for a City Attorney. After Tony generously agreed to step in to assist the Mayor and the city it was particularly ungracious of Kim to infer that Tony Izzo does not embody the qualities of a City Attorney that the Mayor is looking for.

Mayor Kim is not one to admit error. For all his protestations that he was wronged by Judge Wait and that he plans to appeal Judge Wait’s decision, the fact that neither Judge Francine Vero nor Judge Jeffery Wait will allow him to appear in their court as the attorney representing the city may have influenced his decision to hire Tony.

I am grateful to Tony for his willingness to take on the job. Having served the city for more than thirty-five years, he will bring with him an institutional history that this new council desperately needs. I just hope that the Mayor will seek his counsel and listen to him.

Commissioners Moran, Sanghvi, Montagnino: They see no problem

In the February 14, 2022, edition of the Foothills Business Daily (FBD), with the exception of Public Works Commissioner Scirocco who is out due to illness, Mayor Kim’s other colleagues have come out in support of Mayor Kim stating that they see no conflict of interest in his being both Mayor and City Attorney. Further, they found no problem in relying on him for the city’s legal needs.

Three city council members reached in time for this publication do not see a problem with the mayor in his dual role.

Foothills Business Daily

Commissioner Minita Sanghvi told FBD that she has observed no “improper behavior.”

Commissioner Dillon Moran assured the FBD that “he had gotten the legal counsel he needed.”

[Commissioner] Montagnino said there may be times when the mayor would be in a conflict of interest as mayor and city attorney. That would keep him from acting as counsel in a specific situation, “but that’s not a blanket disqualification.”

FBD

Conflict of Interest?

Here is a definition of “conflict of interest” from a website called Indeed (they regularly advertise on public radio):

Conflicts of interest have many forms, from financial to personal. They can occur any time someone in a position of power could be motivated to abuse their position to earn money, make connections, build a reputation or otherwise promote their personal goals.

Indeed

It would seem that this would cover the mayor’s dual role.

Alice In Wonderland

Mayor Kim appointed himself as the city attorney. He then provided legal advice to the members of the Council in his capacity as the City Attorney confirming for them that he could be and had become their City Attorney. (Having trouble with that syllogism?)

A rigorous and responsible City Council would have sought an independent opinion regarding the dual role. Unfortunately, we do not have that kind of council.

What Is Most Troubling Is Not His Conflict Of Interest

In an example of magical thinking, Mayor Kim continues to assert that he never lied to Judge Wait.

Mayor Kim told FoothillsBusinessDaily.com last week that he did not lie to the judge. He believed the case had been adjourned. He was in City Hall and could have shown up in court within minutes if called, he said last week.

Foothills Business Daily

So Mayor Kim sent an email to Judge Wait that stated that he and the attorney representing the defendant had agreed to seek an adjournment.

It has been established that the defendant had no lawyer. Simple logic tells us that he could not have reached an agreement with a lawyer who did not exist. Therefore, the statement to Judge Wait that he and a non-existent lawyer had reached an agreement is demonstrably false.

It is also rudimentary that only a judge can grant an adjournment. As my FOIL for the email is languishing in city hall (it has been more than two weeks) I do not know if the email sent by Mayor Kim requested an adjournment or worse, maybe instructed Judge Wait to adjourn the case. Amazingly though, Ron Kim, a lawyer as he likes to repeatedly tell us, felt no responsibility to check with the court to see if the judge had granted the adjournment before he told the defendant not to show up and decided himself to skip the hearing.

What the record shows is that Judge Wait never granted an adjournment and that the defendant and Mayor Kim were required to appear in court even if only to ask for an adjournment.

Nevertheless, Mayor Kim still insists that it was Judge Wait’s fault that he did not appear in court.

Scary!

Which brings me to my central point: What is truly scary is that Commissioners Montagnino, Sanghvi, and Moran believed they, and the city, could rely on Attorney Ron Kim for sound legal advice.

The City Council has again violated the open meeting law. The City Council has a pre-agenda meeting on the Monday before the Council meetings. They are required to provide access to the public for any meeting at which there is a quorum.

The city website indicated the Monday morning meeting would take place on zoom, but there was no link nor any information on how to acquire a link. Jane Weihe emailed the deputy mayor asking how the public can access the meeting.

Deputy mayor Angela Rella responded with an email that contained a link.

Jane wrote back to her and asked, “how is the general public made aware of how to access the meeting?”

Ms. Rella did not provide a reply.

From the February 10, 2022, edition of the Times Union:

“He (Mayor Kim) also said he is appealing Judge Wait’s decision.”

“’ The attorney handling says we have a good chance of reversing it,’ Kim said.”

Times Union February 10, 2022

So according to the TU, Mayor Kim has engaged counsel to appeal the decision City of Saratoga Springs v Church Street Trust. This was the case dismissed by Judge Jeffery Wait when Mayor Kim failed to appear in court to request an adjournment.

I have written to Mayor Kim asking for the name of the attorney he has engaged to carry out the appeal, and so far have gotten no response.

The Mayor’s indication that he has involved an attorney to act on the city’s behalf raises serious issues that need to be addressed.

First and foremost, section 8.1 of the city charter requires that in order for the city to hire outside counsel it requires an action by the City Council. This would include the scope of work and how much the city was committed to pay. There is no record of such a resolution, and the Mayor’s agenda for Tuesday’s (2/15) Council meeting includes no request for Council action on such a resolution.

In addition, according to the city’s purchasing policies, the Mayor was required to either seek a minimum of three bids from interested attorneys or issue an RFP depending upon how much the cost of the services will be. He has done neither.

It is important to note that in seeking a resolution to hire outside counsel, Kim would have to involve his colleagues on the Council in a public discussion as to whether an appeal is justified both in terms of the likelihood of success and whether the cost of such an appeal is merited.

Where Are The Checks And Balances On The Mayor?

It is most unfortunate that Mayor Kim’s colleagues on the Council (Commissioner Scirocco is out ill and is not a player in this) have done nothing to reign in Mayor Kim’s abuses.

It was bad enough that they supported going into executive session without the required statement of its purpose. It was bad enough that they supported a resolution putting off the State of the City report in violation of the city charter. Now they are faced with Mayor Kim ignoring the city’s fiscal controls on spending.

Transparency?

All of the active members of the Council ran on a platform that highlighted their commitment to transparency. In that spirit, this blogger has written to both the Mayor and those Council members asking for them to address concerns over the Mayor’s unilateral hiring of outside counsel in violation of the city’s policies.

Hopefully, I will receive some kind of response.

The Emails

---

Subject: Outside Counsel

Date: Sat, Feb 12, 6:30 PM

To: Mayor@Saratoga-Springs.org

CC: dillon.moran@saratoga-springs.org, minita.sanghvi@saratoga-springs.org, James, mayor@saratoga-springs.org

According to the February 10, 2022, Times Union edition:

“He (Mayor Kim) also said he is appealing Judge Wait’s decision.”

“’ The attorney handling says we have a good chance of reversing it,’ Kim said.”

These  comments you made to the press raise a number of questions and issues which I am asking you to address:

1. Who is the attorney “handling” this case?

2.    According to the city charter 8.1: “The Council may, from time to time, engage legal professionals to provide additional legal service to the City or to any department or entity. Contracts with all such legal professionals shall be reviewed and approved by the Council.”

   When did the Council vote on a resolution authorizing the city to contract with the “attorney handling” the appeal?

  3.   New York State requires that the city secure three bids or award a contract through an RFP process before it can utilize the services of outside counsel.  Please provide the records showing this procedure was followed.

4.    An appeal of the decision in the case of the City of Saratoga Springs v. Church Street Trust will be expensive especially if the city is using outside counsel. I believe that the principal of the Trust is making a good faith effort to secure the building permit which is the central issue in the case. Please explain how it makes sense for the city to pursue this.

5.    Given the failure of the city to appear in court for this case, what would be the basis of the appeal?

---

Subject: Transparency and Accountability

Date:Saturday, Feb 12, 7:43 PM

TO: dillon.moran@saratoga-springs.org, minita.sanghvi@saratoga-springs.org, James, mayor@saratoga-springs.org

CC: Mayor@Saratoga-Springs.org

All of you ran on a platform promising transparency and fiscal accountability. 

According to the Times Union the Mayor has been working with outside counsel on a review of City of Saratoga Springs v Church Street Trust case with a plan to appeal the court’s decision.

I can find no record of either an RFP or the securing of three bids required to hire the attorney currently working with Mayor Kim. In addition, the city charter (section 8.1) requires you, the Council members, to approve the hire of outside counsel. This was not done.

In the commission form of government you, the Commissioners, are independent and co-equals of the mayor. What actions can the public expect you to take to address the mayor’s violation of state policy and the city charter?

Three local people have begun a Podcast called Talking Saratoga.

Dan De Federicis is a retired NY state trooper, past police union leader, and attorney who publishes Saratoga Reports, a news aggregate site focused on Saratoga.

Adam Israel is a lifelong Saratogian, small business owner, and recent independent candidate for Commissioner of Finance.

Robin Dalton was the Commissioner of Public Safety and ran for mayor on an independent line with Adam.

 The February 7, 2022, edition of the Times Union, has an editorial with the subheading “One Man, One Job,” that chastises Saratoga Springs Mayor Ron Kim for trying to act as both the city’s Mayor and City Attorney. The editorial ends with the admonition, “Mr. Mayor, you have enough on your plate: Cut the drama and hire some new legal counsel.”

One man, one job

In one of his first actions as mayor of Saratoga Springs, Ron Kim dismissed the city attorneys. He said he was dissatisfied with their denials of Freedom of Information Law requests and disagreed with advice they gave the city last year on police reform plans.

That’s the mayor’s right, of course. And it’s a strong signal that Mr. Kim is taking the city in another direction.

The next step? The mayor needs to replace the city attorneys — and not try to do their jobs himself.

That’s what the newly elected Mr. Kim has recently attempted to do, and it has caused confusion, delays and procedural stumbles in court.

He foreshadowed this possibility when he was mayor-elect, suggesting that there was no urgency in replacing the city attorneys. “I’m an attorney,” he said in December. “My deputy, Angela Rella, is an attorney. We won’t skip a beat advising the city.”

Being city attorney is a full-time job. So’s being mayor — which is what voters elected Mr. Kim to do.

And with state Attorney General Letitia James investigating the city police department’s handling of Black Lives Matter protests, the last thing Saratoga Springs needs is more distractions.

Mr. Mayor, you have enough on your plate: Cut the drama and hire some new legal counsel.

Times Union Editorial February 7, 2022

Mayor Kim’s Plan

While I agree with the editorial, Mayor Kim’s plan for hiring new legal counsel for the city is troubling.

He has announced that he wants to hire only one part-time City Attorney to replace the city’s previous full time City Attorney and part time Assistant City Attorney. This attorney would “average (my emphasis) thirty hours a week.” Keeping track of those averaged weekly hours should be an interesting challenge for the Human Resources Department.

So under Kim’s plan, the city will go from having a City Attorney for 40 hours a week and a part-time Assistant Attorney for up to twenty-nine hours a week for a total of sixty-nine hours, down to one part-time attorney for thirty hours a week. It is also important to note that both former City Attorney Vince DeLeonardo and former Assistant City Attorney Tony Izzo regularly worked considerably more hours a week than they were contractually obliged to.

Kim claims his plan will save the city money and cited the legal expenses of Jamestown, New York as evidence that Saratoga Springs should be spending less on attorneys. While Jamestown may have a similar population, it does not have the challenges that a successful tourist town like Saratoga deals with nor the extraordinary housing explosion our city has seen in recent years.

Kim has made reference to how much the city has been spending on legal fees, but he has presented no evidence to prove these expenses were not justified. He has not presented any kind of thorough analysis that shows how much time and expertise is required to meet the city’s legal needs. Without that kind of information, it is difficult to understand how he can be confident one part time attorney will be sufficient or that the city will save the $50,o00 to $100,000 he has promised.

Although appointed by the Mayor, the City Attorney actually works for the entire City Council, providing legal services to the Commissioners and their departments. It is disappointing that Kim’s fellow Democrats on the Council seem uninterested in seriously evaluating whether moving back to one part time City Attorney will serve their needs and is in the best interest of the city.

At the bottom of this post is a satirical look at City Attorney expenses by my friend Publius. For all its droll observations, it includes some very unhumorous numbers. For example, it compares the $294,846.00 spent in 2009 on outside counsel when Scott Johnson was Mayor (that did not include the cost of the “part-time City Attorney”) with the $29,593.00 spent in 2020 during Mayor Kelly’s term when the city had one and a half attorneys in-house.

A Passive Council

The authority to establish the terms of employment for a City Attorney rests with the full city Council and is not the prerogative solely of the Mayor.

As readers may recall, in January the Mayor originally drafted a proposal describing the City Attorney job for Council approval and then withdrew it. So the Council has not approved the terms of employment for the position of a new City Attorney.

In spite of this, Mayor Kim posted a help-wanted ad on the Saratoga County Bar Association’s webpage that lists a salary, benefits, and hours for the position.

The job description makes no reference to a residency requirement. Kim’s obstinance regarding this issue now borders on the bizarre. Multiple sources have confirmed that without action by the City Council or, preferably, the NY State Legislature, the City Attorney, as a public officer, must live in the city.

Mayor Kim’s three fellow Council members (Commissioner Scirocco has been absent due to illness) appear unwilling to offer any resistance to the Mayor’s actions.

How can his colleagues on the Council remain silent?

Maybe a critical editorial from the Times Union, a newspaper that has been notoriously supportive of Kim, will be a wake-up call, but I doubt it.

---

[JK: From Publius]

The Musings Of Publius

Thoughts on the City Attorney Question

I note that the matter of the Office of City Attorney still commands a disproportionately large share of your “Saratoga Springs Politics” posts and corresponding reader comments.

Enough already!  Time to move on.

So let’s put this silly city attorney matter to rest once and for all with an objective, non-partisan analysis.

Even a casual review of the relative merits of the full-time v. part-time city attorney model argues in favor of the part-timer. 

Perhaps the greatest, and most overlooked, benefit of the part-time paradigm is its positive economic impact on the legal profession and, in turn, the community at large.  

Since 2019, when the then city council first elevated the city attorney to full-time status, there has been a precipitous and dangerous decline in the amount of public dollars spent on outside legal services.  This must stop!   

Indeed, that city council, in an apparent rush to create a more disciplined, responsible, and cost-effective office, failed to consider its negative impact on many local law firms.  

Compare, for instance, the $294,846 then Mayor Johnson spent in 2009 on outside legal services to the $29,593 spent in 2020, the year following the institution of a full-time city attorney.  Not even a fool could fail to grasp how such economies would injure the legal community.  Is it any wonder then why the government is held in such low esteem today!

In fact, the 2018 council did not even prepare a Fiscal Impact Analysis Statement prior to its action.  Its move to a full-time city attorney was nothing more than a cynical and politically motivated attempt to reduce the cost of city government, increase efficiency and accountability and promote transparency. 

For many years prior to 2019, the city appropriated large sums to hire private, outside law firms.  Often those appropriations had to be supplemented during the course of the budget year to cover legal cost overruns or to make whole deliberately low balled cost projections.

For instance, the original 2008 budget appropriated $175,000 for outside legal services but the then-mayor spent $249,846 that year.  These costs were, of course, in addition to the $58,000 and $53,000 salaries of the part-time city attorney and part-time assistant city attorney.

In 2010 the city attorney’s office overspent its original appropriation of $150,000 for outside legal services by $59,735.  In 2011 $96,000 was originally budgeted but a total of $187,400 was spent.  

In 2012 the mayor’s office allowed the cost of outside counsel to jump from the $75,000 budgeted to $163,606, an $88,606 overrun. 

Thus, the then-mayor again demonstrated his commitment to promoting employment opportunities for private attorneys while not depriving the city attorney and the assistant city attorney of their aggregate salaries of $111,000 plus benefits.  Truly a “win-win” for all.

So the part-time city attorney proved to be a significant economic benefit to private law firms.  In turn, those firms undoubtedly spent some of that largesse at local businesses and further stimulated the local economy by contributing to their benefactor’s re-election campaigns.

For example, many of the members of the firms retained by the city may have had lunch at a local restaurant, tipped the server, and paid the city sales tax on their meal.  All of that adds up.

Let’s assume, for a moment, that two lawyers from the firm Dewey, Cheathem, and Howe, while working on a case for the city, have lunch at  Compton’s on Broadway. The check comes, in this example, to $20.  The lawyers leave a 15% or $3.00 tip and also pay $1.40 in sales tax, 30 cents of which is returned to the city.

Thus, the part-time model stood as a powerful manifestation of trickle-down economics.  The reinstatement of the part-time model will restore such economic stimuli.

Of course, the part-time city attorney remained busy by attending city council meetings, itself worthy of his $58,000 stipend. In fact, some even tore themselves away from their private practices to occasionally spend an hour or two in city hall during the day.

Naysayers will no doubt ask what these outside firms did, in the false hope of finding cause to criticize the part-time system. Critics may ask why the part-time city attorney and assistant city attorney could not represent the city or give legal advice to the land use boards or zoning amendments or even provide “oversight” of the defense team in Anderson v. City in 2010.  So much nitpicking.

Well, the following representative example of firms hired and the matters they dealt with should dispel their fallacious arguments.

A sampling of “Outside” Law Firms Hired: January 2010 – June 2011

Miller, Mannix, Schachner & Hufner, LLC, to provide legal services to City land use boards, $160/hr., $20,000 yearly cap, Motion 10-13, Jan. 19, 2010

Bailey, Kelleher & Johnson, to advise City Council on the then city attorney’s workplace violence incident, $170/hr., $1,000 cap, Feb. 16, 2010

Miller, Mannix, Schachner & Hufner, LLC, to provide legal services to City regarding zoning ordinance amendments, $160/hr. Motion 10-186, June 6, 2010

Unidentified “outside counsel” to provide oversight of defense team in Anderson v. City trial.  The council authorizes the mayor to retain counsel at $200/hr.  June 15, 2010

Harris Beach, Mayor failed to properly requisition for a monthly retainer fee of $10,000 for period Feb. 2010 through June 2010 for “general labor advice.”  To honor the $10,000 invoice the mayor had to go to the Council.  The accounts commissioner voted against the expenditure because “proper procedure was not followed.”

Fitzgerald, Morris, Baker, and Firth at $170 per hour, no cap, to provide the City with legal counsel on the actions undertaken by the Civil Service Commission in modifying the job responsibilities and abilities within the Building Department.   Motion 10-219, July 26, 2010

Fitzgerald, Morris, Baker, and Firth at $170 per hour, no cap, to provide the City with legal counsel on the recent actions undertaken by the City Civil Service Commission in restricting the ability of the assistant building inspectors to issue building permits.  Motion 10-220, July 26, 2010

Fitzgerald, Morris, Baker, and Firth, LLC at $200 per hour, no cap referenced, to defend the City in an Article 78 proceeding, matter of Saratoga Citizen, Inc., against City Clerk of the City of Saratoga Springs, Motion 10-265, August

Brown and Weinraub as legal counsel for the proposed charter revision at $200 per hour, no cap referenced. Motion 10-222, July 26, 2010

Fitzgerald, Morris, Baker, and Firth, LLC at $200 per hour to defend the City in an Article 78 proceeding in the Matter of Saratoga Citizen, Inc., against City Clerk of the City of Saratoga Springs,  Motion 10-265, August 25, 2010

Miller, Mannix, Schachner & Hufner, LLC, to provide legal services to City land use boards, $160/hr., $20,000 yearly cap, Motion 11-23, Jan. 18, 2011

Discussion and Vote:  Right to Appeal from Saratoga Citizen vs. the City of Saratoga Springs Court Decision, Motion 11-51, Feb. 15, 2011, no firm named, no $ amount specified. The mayor moved to give himself permission and authorization to direct outside legal counsel to file a notice of appeal by February 17, 2011, in the matter of Saratoga Citizen, Inc. vs. the City of Saratoga Springs. 

Discussion and Vote:  Permission to Perfect Appeal in Saratoga Citizen vs. Saratoga Springs. Motion 11-81, March 15, 2011. Mayor to proceed with the appeal as filed; to perfect the appeal and present it to the Appellate Court for determination, no specific firm named, no hourly fee referenced.

Of course, this is simply a representative sample.  But it includes the hiring of the firm of Bailey, Kelleher, and Johnson to aid the council in determining if the surveillance film of the then city attorney hitting a member of the city council in the head with a bunch of layoff notices had to be provided to the media.

Clearly, the $170 per hour fee for that service was money well spent and underscores the necessity of maintaining appropriate funds for such emergencies.

I trust that this will dispel the myth many of your readers are perpetuating, correct the misinformation abroad, and encourage an honest, fact-based public debate of such matters.  Lawyers have to eat too.

Publius

BLM Activists’ Illusions Will Not Survive This Administration

---

---

The Saratoga Springs Black Lives Matter activists have been living an illusion that with new officeholders on the City Council, the Civilian Review Board (CRB)would be established quickly and that they would be central to its operation. The slate of Democrats who won this fall cynically exploited this fantasy in their quest for office.

BLM , having invested in the newly elected Democrats, continue to cling to this illusion. That dream is already in jeopardy.

It is likely that the Democrats will eventually adopt a CRB, and it may actually have merit, but it won’t be soon and its design will, in all likelihood, be a bitter pill for the BLM activists to swallow.

Adopt All the Police Reform Task Force’s Fifty Recommendations!

Promotion By MLK Saratoga In 2021

In the year running up to the November election, the BLM activists’ message to the City Council was simple. They wanted the Police Reform Task Force’s fifty recommendations all adopted exactly as written and fully implemented. A particular emphasis was put on adopting the plan for a Civilian Review Board contained in the document.

Mayor Kelly’s administration’s caution over elements of the Task Force’s recommendations, including concerns over the legality of some of the proposals, was dismissed as racist stonewalling.

Chandler Hickenbottom, a young Black woman who has helped organize Black Lives Matter asserted:

“They [JK: The Task Force] worked seven months to give you [JK: the City Council] a plan that was flawless! A Hail Mary! And you don’t even know how to take it gracefully. It’s disgusting, honestly.

WAMC March 31, 2021

“If the city council doesn’t ratify all 50, here’s what’s gonna happen – we’re gonna get sued. The city is going to get sued…We’re going to have to hire lawyers and the taxpayers are essentially going to be on the hook for essentially not following the law. We need to follow the law here,” said [Ron] Kim. [JK: Of course, the lawsuits never materialized]

WAMC March 31, 2021

From MLK Saratoga “Tell the City Council to ADOPT the task forces recommendation (sic) AS IS!

While the Counci voted to accept a majority of the Task Force’s recommendations, it singled out some provisions for further study including the Civilian Review Board proposal. Mayor Kelly subsequently established an Independent Advisory Committee to review these items and make recommendations to the Council for implementation.

Task Force Chairman Jason Golub served on the Advisory Committee and developed a proposal for a CRB with Commissioner of Public Safety Robin Dalton. Their proposal was presented to the Council in October and was heavily criticized by BLM and their supporters. It failed to gain the support of the Council.

The Democratic slate in the November City Council election cynically played to BLM’s desire to establish a CRB in the city. On his campaign page, for instance, Ron Kim stated that he “fully supports the recommendations of the City Police Reform Task Force, including the Civilian Review Board and will implement these recommendations.”

On election night BLM members joined in the celebration of the newly elected Democratic members of the Council.

Montagnino’s Remarks: It’s Complicated

At the February 1, 2022, City Council meeting, newly elected Commissioner of Public Safety James Montagnino offered reservations about several aspects of the Police Reform Task Force’s Civilian Review Board provisions.

Commissioner Montagnino is intelligent, well-spoken, and as a retired attorney, enjoys a broad knowledge of New York State law.

He cited a serious problem with a stipulation in the Task Force’s proposal that would have required complainants to engage in mediation. He also expressed reservations about the requirement that the proceedings of the CRB would be based on “standard rules of evidence.”

These concerns were thoughtful and compelling.

This is a video of his remarks.

Of all the members of the Council, Commissioner Montagnino seems the ablest to craft an ordinance to bring the concept of a CRB into existence. His work will no doubt require, however, the assistance of a City Attorney who is familiar with how to craft local laws and is familiar with aspects of the city charter that may come into play.

The central point here, though, is that Montagnino’s reservations subvert the myth that the Police Reform Task Force’s recommendations can simply be adopted whole, as written, as BLM demanded and the candidates promised. So much for campaign promises.

A Sad Excuse For A Public Hearing

In an earlier post, I reported that Commissioner Montagnino had ignored emails inquiring about what specific CRB proposal the hearing was about. Not surprisingly, in contrast to all other Council hearings on CRB proposals, that went on for an hour or more as dozens spoke, this hearing was poorly attended and brief. A total of five people spoke. Only three of them were BLM activists, and they had little to say except that they wanted the CRB established quickly. BLM member Angela Kaufman urged the inclusion of a homeless person and a formerly incarcerated person on the board.

The BLM speakers appeared oblivious to the contradiction between their past stance that all the recommendations from the Task Force be adopted as is and the fact that changes were now under serious consideration.

It Ain’t That Easy

Now that they are in office the newly elected Council members have lost their rush to action. Montagnino is planning more hearings and has yet to present a specific proposal for the Council and the public to consider.

In fact, just as City Attorney DeLeonardis had warned, crafting an effective ordinance turns out to be very complicated. The reality of New York State Municipal Law along with union contracts, the city charter, and privacy issues may not produce a CRB that meets the expectations of BLM in the timeframe BLM is expecting.

Mayor Kim and Commissioner Montagnino actually tried to enlist Jason Gollub to write an ordinance. Gollub chaired Mayor Kelly’s Police Reform Task Force and had helped craft Commissioner Dalton’s failed proposal. He declined.

There is pressure on the Council to at least appear to be doing something. Nothing like a poorly defined public hearing to create the appearance of action.

Transparency Is About Responding To Reasonable Inquiries

In hopes of getting greater clarity on what the path ahead to a CRB and other BLM concerns looks like, I have written to Commissioner Montagnino asking the following questions:

1. What is your projected timeline for creating the CRB?
2. Who will write the ordinance establishing it?
3. When do you anticipate releasing your report on the Darryl Mount case?

These are obvious and basic questions. Everyone from the police union to Black Lives Matter would agree that these deserve an answer.

So far, Commissioner Montagnino has not responded to my email, but he has told the print media that his report on the Mount case will be out shortly.

Commissioner Montagnino’s failure to respond to these basic questions is disappointing.

I do not offer this lightly. In a truly disturbing series of events, Saratoga Springs Mayor Ron Kim has committed a number of acts that raise serious doubts about his competence and ethics as an attorney in his role as both Mayor and his claim to be the city’s Attorney.

Excellent stories on this have appeared in the Daily Gazette and in the Foothills Business Daily Review.

On January 20, 2022, there was a scheduled evidentiary hearing in City Court over a local contractor, Jeffrey Dumont’s, failure to secure a building permit prior to work he performed on a local building he owns. The matter, City v Church Street Trust, was to be heard by Judge Jeffery Wait in City Court.

Earlier on that day, Mayor Kim appeared in Judge Francine Vero’s court attempting to act as the city’s Attorney in another code violation hearing. Judge Vero ruled that only a duly appointed City Attorney or other attorney authorized by the City Council could represent the city. She advised him that, in his role as Mayor, he could request an adjournment by citing the fact that the city did not have a duly authorized attorney. He protested her decision and she advised him to provide her with a legal basis for his challenge.

Returning to his office, at 11:52AM Kim sent an email to the City Court clerk, claiming that the “opposing counsel” in the Dumont case had consented to an adjournment.

The problem was that in the numerous hearings on this case, Mr. Dumont had never been represented by counsel. Further, the email included no cc to any alleged representative attorney for Mr. Dumont.

This prompted the City Court clerk to call Mayor Kim’s office and inquire as to the identity of Mr. Dumont’s attorney.

The person who answered the call told the clerk that Mr. Dumont had no attorney. The new story, the clerk was told, was that Mayor Kim had contacted Mr. Dumont and asked if he would agree to an adjournment. Allegedly Mr. Dumont had agreed and Mayor Kim then told him it was unnecessary for Mr. Dumont to appear at the hearing.

This prompted the court to contact Mr. Dumont to advise him that there had been a misunderstanding, that the case had not been adjourned, and that he would need to appear.

When the court convened that afternoon, Mr. Dumont appeared, but no one representing the city was present.

Mr. Dumont told the court that he had received a call from “some guy named Ron.” Mr. Dumont could not recall whether the person had given a last name. Dumont told the court that he assumed the caller was an attorney representing the city. Mr. Dumont told Judge Wait that the person he spoke to told him he did not have to appear in court.

Citing the numerous improprieties exercised by the city, the absence of an attorney to represent the city, and the fact that Mr. Dumont had been in compliance since November 2021, Judge Wait ruled that “the conviction for failure to obtain a building permit is vacated and the information is dismissed.”

Parsing Out The Mess

As part of preparing this post, I consulted a number of experienced attorneys. This analysis draws heavily from my conversations with them.

The Call

It was improper for Mayor Kim to have contacted Mr. Dumont, the defendant in the case. Professional ethics required that only the “city attorney” who is a public officer authorized to represent the city or an attorney hired by the City Council for the purpose of representing the city in this matter, had the professional authority to directly contact the defendant.

Just as disturbing, Mayor Kim had no authority to tell the defendant that he did not have to show up in court. While it is fairly common for a judge to adjourn a case at the request of both parties, it is not a given. More centrally, the only person with the authority to grant an adjournment is the court.

The attorneys I spoke with were stunned that Mayor Kim would presume to tell the defendant that he did not have to show up for his hearing.

This very likely was a breach of the New York Bar’s Professional Standards.

The Email

The email from Mayor Kim’s secretary to Judge Wait alleged that the Mayor’s office had consulted the attorney representing the defendant and that both parties had agreed to request an adjournment. In his decision, Judge Wait flatly characterized this as “untrue” because the defendant had no attorney representing him.

It cannot be stressed enough how serious sending a false statement to a judge is.

Mayor Kim blamed the error on his secretary who sent the email. He admits the error should have been corrected. He told the Daily Gazette, “I did not correct that because I didn’t actually see the email until later. That was a mistake but there [were] no misrepresentations.”

“…there [were] no misrepresentations…” How can Mayor Kim reconcile his statements that there was an error but that there were no misrepresentations?

First of all, there was no lawyer representing Mr. Dumont. How could that possibly not be a misrepresentation?

Second, where did his secretary come up with the idea that an attorney representing Mr. Dumont existed? After all, this was no simple typo. It begs credibility that the secretary was the sole author of this email.

Third, and most seriously, the letter came out of his office and both Mayor Kim and his Deputy, Angela Rella, who is also an attorney, were cc’d.

The attorneys I spoke with were flabbergasted by Mayor Kim’s response. He appears to believe that he can simply blame the error on his secretary and that he and Ms. Rella have no culpability in the matter.

Any correspondence coming out of an attorney’s office is his/her responsibility. Period…end of story.

All three of the attorneys I talked with basically told me that had an error been made by anyone in their office, they would have dropped everything to advise the court of the error and to apologize.

I cannot emphasize how egregious Mayor Kim and his deputy Angela Rella’s failure to take responsibility for this gross mistake is.

I have FOIL’d the city for all correspondence between the city and the court regarding this case. I suspect that Kim and Rella never acknowledged to the court their error let alone apologized.

This was an extremely grave violation of the New York State Bar’s Professional Standards.

The Court Does Not Work For The Mayor

The Mayor asserted to the Daily Gazette that he was going to appeal the dismissal of the case “on the premise the court hadn’t contacted his office to inform him that the evidentiary hearing on the permit dispute would take place on January 20. By not contacting him, the court denied the city the right to appear for the court matter.”

This argument is beyond strange. Why did he send an email to the court asking for an adjournment if he did not know there was going to be a hearing? Why did he call the defendant and tell him not to show up for the hearing that day if he didn’t know that a hearing was to take place? Did the Mayor believe that he had the authority to adjourn the hearing or that it was the court’s responsibility to contact him (the mayor) to tell him that the case was still on? How could Mayor Kim, who is a practicing attorney, believe that it was not his responsibility to check with the court to see if the judge had indeed granted the adjournment?

It borders on the comic that he complained to the Times Union that he was “right downstairs” but Judge Wait proceeded anyway. Of course, the judge proceeded anyway. He never granted the adjournment.

Nobody sprung this case on the city.

Did the Mayor think that telling this to the media would exonerate him with a public unaware of the legal issues and procedures?

As background, the court works with the city through the office of the City Attorney. The court routinely sends its calendar to the office of the City Attorney and not to the Mayor.

If Mayor Kim wanted to know what cases were pending on January 20, 2022, he should have consulted the secretary (the city has no Attorney) in the City Attorney’s office to check the calendar.

The Mayor Does Not Determine Whether A Case Will Be Adjourned

Dubious as even his call to the defendant was, Kim had no right to tell Mr. Dumont he did not have to appear in court. If, as alleged by Mayor Kim, Mr. Dumont had agreed to an adjournment, it still required an appeal to the court to accept their request. While requests by two parties in a case for an adjournment is routinely approved, the privilege to adjourn a hearing lies solely with the judge. Kim had not been notified that the judge had granted an adjournment when he told Mr. Dumont not to bother to show up in court.

I think it is fair to speculate that Kim went to these extremes to avoid appearing in court because of his earlier experience that day before Judge Vero.

The Mayor Didn’t Listen

Mayor Kim had been advised by Judge Vero that while he could not prosecute the code violation, he could as Mayor, request an adjournment.

Why didn’t the Mayor take Judge Vero’s advice and appear in Judge Wait’s court simply as the Mayor, lacking a City Attorney, requesting an adjournment until such time as the city secured someone to represent the city?

The result of his not appearing was that the case was dismissed. The seriousness of losing this case lies firmly at the Mayor’s feet.

Mayor Claims He has Appeared In Court Before

Mayor Kim told the Daily Gazette that he had appeared in court before, implying that he had some sort of history of handling city cases. In fact court cases involving the city have been routinely adjourned since Mayor Kim took office because the city has no one to represent it. The appearance before Judge Vero when she informed him he could not act as the City Attorney in her court was his one and only appearance.

The Mayor Claims He Can Appoint Himself To Be City Attorney

Mayor Kim has claimed to the local media that he can appoint himself as the “City Attorney.”

This is a link to multiple documents that demonstrate that he is not allowed to do this.

This is just one of the opinions cited in the attachments:

It’s Vince DeLeonardis and Tony Izzo’s Fault

In the Daily Gazette article Mayor Kim blamed the city’s previous attorneys who handled these cases for the mishaps in the Dumont case. “For instance,” the Gazette reported, “Kim complained that the city doesn’t have an existing file on Dumont. The new mayor said he had to do research just to find his [Dumont’s] phone number.”

Pardon this snarky observation, “Wow!” There is a comprehensive file on the Dumont case ,and it can be found in the Code Enforcement Office. The idea that there is no file is such an extraordinary accusation. The Code Enforcement Office has been the repository for these kinds of cases through multiple administrations. The code enforcement officers need these records to do their jobs.

As an aside, without a City Attorney, Code Enforcement is now very limited in their ability to take action against code violators in the city as they cannot take these violations to court.

Adjourn, Adjourn, Adjourn

Kim complained to the Gazette:

“If it had been resolved in November, it would never have hit our calendar. That’s one of the problems with the former city attorneys — that they will just adjourn, adjourn, adjourn. That costs the city money. It’s not fair to taxpayers, and clearly the judge didn’t like it.”

Mayor Ron Kim January 29, 2022 Daily Gazette

Ironically, every case that has come before the court since Mayor Kim took office has been adjourned because the city has no City Attorney.

Who Leaked The Document To A Local New Site

The decision to dismiss a criminal hearing triggers the sealing of that case. The case in effect does not exist for anyone doing a search.

Copies of the decision went to the defendant, the City Attorney’s office, and the Mayor’s office.

The Foothills Daily Business Review ran a story in which they directly quoted from the document so someone provided it to them.

I spoke to the City Attorney’s office and was told I would need to FOIL for it.

I did some more investigation in light of the fact that in the past, either the City Attorney or the Assistant City Attorney reviewed documents before they were released to make sure they were covered by FOIL. The process of reviewing a FOIL can involve redacting (blacking out) sections of a FOIL’d document. Currently, the responsibility has been assigned to the Human Resources Department. Another reason why the city should not go so long without an attorney.

So the document did not come from the City Attorney’s Office.

I contacted Jeffery Dumont, the defendant in the proceedings. He told me that he knew nothing about the article in the Foothills Business Daily Review (FBDR). (I sent him a link).

So it appears that the document was provided to the FBDR from someone in the Mayor’s office.

I also did some further research about what kind of protections existed on a decision that is sealed.

According to New York State Law, only the defendant has the right to release such a document. Any other party would be subject to a suit for releasing it.

I don’t think it unfair to speculate that the Mayor released the opinion. He may have thought that he would get ahead of the events that would reflect badly on him. There is also the reasonable chance, given his history, that he was unaware that providing it would subject him and the city to liability.

No Playing Off Judges

When the Mayor’s Office contacted Judge Wait, they had an obligation to advise him about Judge Vero’s ruling that the Mayor could not represent the city in court.

Again, I was told by the lawyers I spoke to that this was another violation of New York State Bar Professional Standards.

Conclusion

As should be apparent, Saratoga Springs is in desperate need of a City Attorney.

It seems regrettably necessary to ask, what competent attorney would take the job of City Attorney in this kind of administration?