As reported in my previous blog, I recently received an email from the Department of State (DOS) definitively affirming that, contrary to Mayor Ron Kim’s many assertions, the City Attorney is a public official and therefore subject to a residency requirement. We reported earlier that the residency requirement could be waived by the passage by the NY State Legislature of a Home Rule bill as had been done many times for many municipalities throughout the state.

Foothills Business Daily followed up with the New York State DOS and spoke with someone in the DOS press office.

That office did not dispute their department’s earlier determination that, contrary to Mayor Kim’s assertions, the City Attorney is a public officer. The office, according to the story, “seemed” to agree with Mayor Kim, though, that the residency requirement could also be changed through the passage of a local law. They hedged on this, recommending that the New York State Attorney General should be contacted for further clarification of its opinions on this issue

All of this prompted me to do more research.

I knew that recently the city of Mechanicville similarly wanted to remove the residency requirement for their City Attorney. They enlisted the help of Assemblywoman Carrie Woerner and Senator Daphne Jordan to get the state legislature to pass a Home Rule bill that would exempt the city from the requirement. The bill was passed just seven months ago on June 11, 2021. As noted in an earlier post, Section 3 has many similar additions exempting the residency requirement for other municipalities.

It was interesting to me that Mechanicville chose not to take the seemingly simpler route of passing a local law. What I found in my research, consistent with the caution shown by the DOS press secretary, was that the history of the Public Officers Law on residency is marked by conflicting opinions and court cases. Attorneys that I spoke with offered that the conservative approach was to opt for the state legislative solution Mechanicville chose rather than a local law.

The Path Forward

As people may recall, Mayor Kim originally crafted a resolution that was submitted for the pre-agenda meeting of the City Council regarding the City Attorney. The resolution included a whereas clause that incorrectly asserted that the City Attorney was not a Public Officer. Apparently, Mayor Kim simply assumed that if he asserted that the City Attorney was not a public officer, there was no need to even address the residency obstacle.

While Mayor Kim has steadfastly held to his position that the City Attorney is not a public officer, at Tuesday night’s meeting he allowed for its possibility and offered that a local law could circumvent the problem.

A local law is different from a simple resolution. I don’t understand all of the distinctions except that it requires a public hearing and must be registered with the state upon adoption.

I can only say that had the Mayor enjoyed the assistance of the two attorneys who he chose not to reappoint, he might have avoided the torturous and prolonged process he has followed and Saratoga Springs might now have a City Attorney.

I know he believes he is saving money by personally providing legal counsel to the city. One might hope that this experience would humble him to acknowledge that whatever his background as a bankruptcy attorney, it is not sufficient when it comes to municipal law. He would be better served by focusing on his role as Mayor and relying on an attorney with expertise in municipal law.

At Tuesday (January 18, 2022) night’s Saratoga Springs City Council meeting, Mayor Kim dug his heels in on the City Attorney issue. Even in the light of overwhelming evidence to the contrary, he continued to insist that the position is not a “public officer” and therefore not subject to a residency requirement, offering yet more odd rationales for his opinion. Kim’s pursuit of this issue seems to be related to his desire to appoint a resident of Middle Grove to be the City Attorney. This person has since indicated she is no longer interested in the position making it strange that Kim is doubling down on this issue.

Even more troubling, though, was watching him gain support from his three Democratic colleagues on the Council for a vote that violated the Open Meetings Law and another vote that potentially violated the City Charter.

A Promise Not Kept

Readers following this blog may remember that Mayor Kim promised to answer two questions I put to him regarding how he determined that the City Attorney is not a public officer:

Who at NYSCOM provided you with the opinion that the city attorney is not a public officer?

Could you cite the actual language in section 3 of the NY State Public Officers Law supporting your position.

At Tuesday night’s meeting, he answered neither question.

Instead, he oddly offered a new piece of evidence he thought supported his claim: the case of Fischer vs Mechanicville.

That evening I looked up the case. It turned out that the case went back to 1916 when Mechanicville was transitioning from a village to a city. There has been considerable legislation and case law over the subsequent one hundred and five years since this decision. It is troubling that now this is the only specific the Mayor is offering to support his claim.

Mayor Kim then went on to assert that among other things he believed the City Council had the authority to ignore state laws such as the Public Officers Law and draft their own local law. He stated:

“even if we were hemmed in by this Public Officers Law it is very clear that we as a city council have the authority to enact a local law that would vary this [sic]. There are, as I said, several attorney general opinions on this dating back to the 1970s that sort of resolve this issue. In other words, every city council has to wrestle with whether or not they have the authority to change certain laws as opposed to whether or not only the legislature could do it. It’s very clear we could do it. So we think it’s very clear the City Attorney is not a public officer. The criteria that this case goes through so to set that out [sic]. They don’t take an oath like a district attorney.”

If in fact there were opinions issued by Attorney Generals in the 1970s, Kim never cites one that would allow the City Council to ignore state law and declare that the City Attorney is not a public officer.

In fact in 1997 the NY State Attorney General issued this opinion:

“While there is a lack of uniformity in judicial decisions as to whether municipal attorneys are public officers, in our view, a municipal attorney who is the head of the municipality’s law department, serves as the chief legal officer of the municipality, and is responsible for offering advice to municipal officials and defending and commencing actions on behalf of the municipality is a public officer.”  [my emphasis].

Here is a link to a video of his remarks.

Kim’s claim that our City Attorneys don’t take oaths is simply not true. One wonders what source he relied on for this assertion.

I contacted the previous City Attorney Vince DeLeonardis, Sarah Burger, and current City Court Judge Jeff Wait. Mr. DeLeonardis told me he had taken the oath when originally hired by Joanne Yepsen and then at the beginning of each term during Mayor Kelly’s tenure. Judge Wait told me he had taken the oath twice when serving as City Attorney under Ken Klotz for two terms. Ms. Burger served under Mayor Yepsen and took the oath.

As far as I can determine, every City Attorney has taken the oath. I have FOILed for copies of these oaths covering the last thirty years.

The NY Department of State Weighs In

Following the City Council meeting, I wrote to the New York Department of State’s Office of Local Government.

My email was brief. I asked whether the City Attorney position was considered a public office. I received the following response:

Hello John:

Thank you for your email. 

Yes, a city attorney would be considered a public officer.

Ebony Mapp, AICP

Local Government Specialist

NYS Department of State

Local Government Services

One Commerce Plaza
99 Washington Avenue, 10^th Floor

Albany, NY 12231

O: 518-992-6463

E: ebony.mapp@dos.ny.gov

W: https://dos.ny.gov/

A Violation of the Open Meetings Law

Mayor Kim’s doubling down on the City Attorney’s residency requirement was not the only troubling part of Tuesday’s City Council meeting, however. If a public body is to conduct business in private in an executive session, the NY State Open Meetings Law (OML)requires a statement identifying the specific subject that will be discussed prior to the executive session. Before going into the executive session at Tuesday’s meeting, Mayor Kim instead just read a list of all the possible subjects that New York allows to be covered in the executive session. Conspicuously missing was a statement by Mayor Kim as to the subject of that night’s session as required under the OML. He and all three of his Democratic colleagues on the Council voted for this illegal resolution. Commissioner of Public Works Skip Scirocco was not present.

A Violation of the City Charter

Title 3. Item E of the City Charter requires that “The Mayor shall submit in writing to the Council and the public a State of the City Message on or before the first regularly scheduled Council meeting in February each year.” This would require Mayor Kim to deliver, in writing, the State of the City message no later than the next City Council meeting on February 1.

Mayor Kim acknowledged this part of the City Charter at Tuesday’s meeting but noting the COVID threat and his desire to have the public physically present at the event, he offered a resolution allowing the event to occur any time prior to March 19. He received unanimous support again from his three Democratic colleagues on the Council.

I know this change in the State of the City Message may seem a petty issue to many, but the Mayor and the Council do not enjoy the privilege of cavalierly ignoring the provisions in our charter. This is simply not healthy. A thoughtful lawyer (or simply a thoughtful person) could find a better solution for this. For instance, the charter does not require a public event. It only requires that the mayor “submit in writing to the Council and the public a State of the City message ….” The Mayor therefore could have provided such a document within the time restrictions of the charter and then organized some later event for him and the members of the Council to convene with the public to review the city’s “state.” Why have he and his fellow Council members taken this action which they were clearly not authorized to do?

The City’s Business Requires A City Attorney

It appears unlikely that the City Attorney position will be filled this month. Mayor Kim has told the media that as he and his deputy, Angela Rella, are attorneys so there is no rush. He and Ms. Rella are handling the city’s legal matters.

I am not sure what exactly they have been doing, but I do know that they have not been representing the city in court. The City Attorney handles matters involving code enforcement violations and parking issues in city court. It is my understanding that those matters have had to be adjourned.

Citing the fact that he is a lawyer, Mayor Kim has also told the media that he doesn’t need a City Attorney “looking over his shoulder” in dealing with municipal matters.

I do not think it is unfair to observe that the mishandling of issues at Tuesday’s City Council meeting does not inspire confidence in Mr. Kim’s and Ms. Rella’s legal advice to the Council.

The Wider Implications

The management of this city and its Council should involve a fastidious adherence to the laws and rigorous acknowledgment of facts. These are the essential guardrails of democracy. People will make mistakes. It is the nature of being human but those should hopefully be rare and they should be acknowledged so they do not become endemic.

Mayor Kim has been openly contemptuous of the previous city administration, but he should acknowledge the rigorousness of how it did the city’s business. This was because Mayor Kelly and attorneys Vince DeLeonardis and Tony Izzo crossed their t’s and dotted their i’s when preparing for Council meetings. In a litigious age, without that fastidiousness bad things can happen.

Consider that Mayor Kim sought to employ as City Attorney someone who was legally ineligible because she did not live in the city. Had he succeeded in doing this, it potentially would have put the city at risk in any legal proceedings this person was involved in.

I am sure that Mayor Kim has nothing but the best intentions in serving the city. At $14,500.00 he is not doing it for the money. Unfortunately for him, after the City Attorney fiasco, it will make finding a skilled lawyer to serve the city that much harder. I worry about his plan to reduce the hours of the City Attorney (more about that in a later post). Hopefully he will find the right person who will help him, the Council, and the city move forward.

A revised agenda for Tuesday night’s City Council meeting has been posted on the city’s website. The problematic resolution on the proposed City Attorney that had been an item on Mayor’s Kim’s agenda has been pulled. Instead, there is now an item on his agenda called “Announcement: City Attorney.”

Mayor Ron Kim will be submitting a resolution for Council action on Tuesday, January 18, 2022, regarding the hiring of a City Attorney. The resolution has multiple problems but all of them pale before the fact that it asserts that the City Attorney is not a public officer as defined in the New York State Public Officers Statute.

Here is the relevant text. The full resolution can be found at the bottom of this post.

The purpose of this clause appears to be an attempt to circumvent the New York State Public Officers Law which would require that the City Attorney reside in the municipality in which they would serve. Mayor Kim has previously announced that he plans to hire an attorney who, like him, specializes in bankruptcy law but who does not live in Saratoga Springs.

On January 15, 2022, I wrote to Mayor Kim and copied the other members of the Council:

Mayor Kim:

In the resolution regarding a City Attorney that will come before the Council Tuesday, you claim “the City Attorney is not a local officer as defined by New York Public Officers Law 3.”  I am familiar with section 3 and I do not find the language that would support your determination.

You also allege that someone from NYSCOM told you that the city attorney is not a public officer.

If, as I believe, the city attorney is a public officer, and you were to hire someone who does not reside in Saratoga Springs, you would potentially create numerous liabilities for our city. 

 As you have stated that transparency is of utmost importance to you, I hope you will respond to the following questions:

1. Could you provide a written opinion to me, your colleagues on the Council, and the public identifying the specific language in section 3 upon which you based your determination that the City Attorney is not a local public officer?
2. Could you identify who at NYSCOM told you the city attorney is not a public officer?  If there is some kind of documentation such as an email, could you please provide it?

Thank you for your attention to this matter.

John Kaufmann

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Mayor Kim responded later that day:

“This information will be provided at the City Council meeting.”

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I responded:   

“Great.  I look forward to it”

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On January 16, 2022, I followed up with this email:

Mayor Kim:

This is a follow-up to our earlier email exchange regarding your proposal for a City Attorney.  I was very pleased to learn from you that you would be addressing my two questions at Tuesday night’s Council meeting.
As background for you and the other Council members, I am including references supporting my contention that the City Attorney is a public officer.
Item #1
From an opinion from the New York State Attorney General:

“While there is a lack of uniformity in judicial decisions as to whether municipal attorneys are public officers, in our view, a municipal attorney who is the head of the municipality’s law department, serves as the chief legal officer of the municipality, and is responsible for offering advice to municipal officials and defending and commencing actions on behalf of the municipality is a public officer.”

Item #2

The following is from the Public Officers Law 3.  Note, you cited this section in your resolution claiming that the City Attorney is not a public officer.  The section includes some seventy exemptions made to the requirement that a particular, local position requires local residency.  These were all home rule bills.

11. In the city of Salamanca the provisions of this section requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall not prevent a person regularly admitted to practice as an attorney or counsellor in the courts of record of this state from holding the office of city attorney or city justice of the city of Salamanca, if such person resides in the county in which such city is located. 

The simple logic here is that Salamanca would not have had to be granted an exemption for its city attorney regarding his/her residency were this position not a public office.

Item #3

The individual becoming the City Attorney has always taken the same oath of office as the members of the City Council.  This is because, in order to take public office, Public Officers Law requires this oath to be taken. (see item #4)

Item #4

The following text is from the Comptroller’s office addressing who is a public officer:

Public officers are eligible for membership in NYSLRS. This applies regardless of whether individuals are elected or appointed as public officers. You must give them the opportunity to join NYSLRS.

A public officer is a person either elected or appointed to a governmental position with the following general characteristics:

• 1. The position is authorized by statute, resolution or charter to exercise part of the sovereign power of the governmental entity.
• 2. The duties of the position involve the exercise of discretion on behalf of the governmental entity. If the duties of the position are routine, subordinate, advisory, or directed, then the position is more likely to be a position of employment, rather than a public office.
• 3. The State or local enactment creating the position refers to it as an “office.”
• 4. The position has a fixed or definite term.
• 5. The person holding the position files an oath of office. [my emphasis]
• 6. The compensation for the position does not depend on the number of hours worked.
• 7. Incumbents of the position may be compensated either through the employer’s payroll system or by voucher.
• 8. Incumbents of the position generally must reside in the jurisdiction they are serving.

Section 10 of the Public Officer’s Law requires every public officer to take and file an oath or affirmation prior to the discharge of any of their official duties. Public officers are authorized to act in their capacity as an officer for their established term. Any public officer who is re-appointed should take and file an oath or affirmation at the beginning of each new term. In addition, these oaths of office shall be provided to the Office of the State Comptroller if requested as part of an employee/independent contractor review.

Some positions considered public offices are members of planning boards, Town or Village Justice, County Attorney and District Attorney. Other positions that may be considered public offices are Town, Village, and City Attorney. [my emphasis]—————————————I

I have spoken to a number of attorneys who have extensive knowledge of municipal-related law and every one of them was unequivocal that the City Attorney is a public officer.

I am always willing to acknowledge points that I have missed.  It all seems clear to me, but your answer to my questions in the previous email would be helpful in better understanding how you arrived at your determination that the City Attorney is not a public officer.

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

[JK: The best solution to resolving this issue would be to table the resolution and seek an opinion from the New York State Comptroller’s office.]

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Resolution

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[JK: This is a correction. Strictly speaking, the Simpsons were not forced to sell.

They had two options as provided by City Court – 1) repair the buildings or 2) seek approval for demolition by the DRC. They chose to sell rather than make repairs.]

The city has a problem. We have no City Attorney. Nor does Mayor Ron Kim seem to have any immediate plans to appoint one in the near future even though section 8.1 of the City Charter reads “There shall be a City Attorney….”

This situation is already causing problems for the city and its residents.

City Court regularly hears cases regarding parking violations and city code enforcement on designated dates each month. The City Attorney or someone from that office designated by the City Attorney is required to be in court to represent the city in these cases.

As we have no City Attorney, cases that have come before the court since Mayor Kim took office have been adjourned.

One of the important cases about to go before the court involves violations associated with Caroline Street properties owned by Helen and Case Simpson. The Simpson’s have gained notoriety over the two properties they owned on Phila Street that had been racking up violations for years and were the focus of the Saratoga Springs Preservation Foundation’s effort to save those properties from demolition. The Simpson’s ended up being forced to sell them. The city has been working for over two years on the case involving the Caroline Street properties they own. It is finally scheduled to go to court; but without a City Attorney to represent the city in prosecuting this case, it is unclear what the fate of this issue will be.

Why The Delay in Appointing a City Attorney?

As reported in a previous blog post, Mayor Kim announced upon taking office that he would not be reappointing Vince DeLeonardis who had served under the two previous mayors nor Tony Izzo who had been the city’s Assistant City Attorney for over three decades. Instead, he announced he was going to appoint Elizabeth Fletcher-Banks, a bankruptcy attorney who lives in Middle Grove to this position. The city’s Human Resource Department informed Kim, however, that the City Attorney must be a resident of Saratoga Springs.

Mayor Kim told the Times Union and Gazette that he was advised by the New York State Conference of Mayors (NYSCOM) that the City Attorney was not a “public officer” and was therefore not subject to the requirement that he/she reside in the city.

The readers of this blog will pardon my skepticism, but I find it more than difficult to believe that someone from NYSCOM would make such a gross error in the matter. As cited in my previous blog, the New York State Comptroller’s Office states clearly: “some positions considered public offices are…Town, Village, and City Attorney.”

In spite of his insistence that he could appoint Ms. FLetcher-Banks, Kim has not done so. Instead, he has now pivoted to telling the press that he questions how much there is a need for a City Attorney since both he and his Deputy are attorneys.

His announced plan now is to reorganize the City Attorney’s Office. He has given no timeline as to how long the review of that office might take. In the meantime, his assumption that he and his Deputy can pick up some of the legal work the city requires seems unrealistic at best. He seems to be unaware of the amount of work involved in being Mayor and how much work the City Attorney actually does. As Kim also supposedly has an active law practice to run, his plate could be quite full.

There is also the issue that, according to the city charter, the City Attorney, while appointed by the Mayor , “shall serve as general legal advisor and shall be responsible for providing legal services and guidance to the City and all its departments and entities.” [section8.1] Without a City Attorney, to whom do other Council members turn for advice if they have a question about the legality of an action by the Mayor?

The other plan Kim has hinted at is to engage outside counsel to serve the city in certain situations. This is allowed under the charter.

For example, the city contracts with Mark Schachner to support the Council and the land use boards regarding zoning issues. Lawyers with expertise in the field do not come cheap. He bills at $230.00 per hour. Costly as that is, poor legal advice is more expensive as it invariably leads to further litigation.

As far as I can remember, the city has never hired a city attorney that already had expertise in municipal law. They have all had to learn on the job with the assistance of Tony Izzo who had been the assistant city attorney for over three decades. Putting off the hiring of a City Attorney only delays whoever is selected from getting up to speed both on municipal law and on cases the city has been working on for some time such as the Simpson case.

Mayor Kim feels that as he and his deputy are attorneys, he sees no urgency in filling the City Attorney position.

Apparently, he is not familiar with the adage traced to an old Italian proverb: “the man who is his own lawyer has a fool for his client.”

The city has sent the following letter to Saratoga County District Attorney Karen Heggen.

I have a corollary. The more a politician appears in the newspapers and the more committees they establish, the less actually gets done.

Too often citizens are most impressed by the charm of their elected official or by the simple fact that a politician knows their name and are oblivious as to what they are actually achieving. This is hardly surprising. People live busy lives just getting the basics of job and family maintained. They have little time to monitor their government the way this blog attempts to do.

Meg Kelly was the unpolitician. She was not one to schmooze. She did not spend much time going to social events that did not require her presence.

While in a one-on-one situation she could be quite warm and charming, her public persona was all business. She had an austere manner of running Council meetings. More than once, I was the subject of her stern command that my two minutes at the microphone were up during the public comment period. City Council meetings were all business. They were not a social event.

I know that many people were put off by her style of dealing with the public. Not me. What I look for in an elected official is how much do they actually achieve. Most people also have little idea how much work is required by elected officials such as the mayor to get things done. Most people take for granted the fact that the city is so attractive and liveable.

I asked Mayor Kelly to make a list of the things that she and the Council were able to achieve in the last four years.

Quite a few of the projects on her list had languished for years uncompleted by previous administrations. Patiently working with all the parties Mayor Kelly was able to find solutions that allowed these long sought-after projects to move forward to fruition.

An eastside Fire/EMS station is one example of a project that was routinely identified as a priority by city officials for years. Chris Matthiesen, when he was the Public Safety Commissioner, made the most serious effort to pursue it but without success. During her time in office, Mayor Kelly brought together the New York Racing Authority and representatives of the state and finally made a deal in which NYRA agreed to allow the city to build its facility on their land at no significant charge. This was quite an achievement.

During her predecessor’s time in office, the city’s plan for a Geyser Road bike/pedestrian trail was hobbled by conflicts between the city and property owners and the town of Milton. These conflicts curdled into litigation that basically suspended the project. Here again, Mayor Kelly patiently worked with the parties to resolve their concerns and today we have our new bike path.

Then there were the nitty-gritty, unsexy changes in the city like improving the Board of Plumbing Examiners, something most Saratogians don’t know even exists. The state requires that the city have a board that sets up exams for certifying plumbers. The city statute for this board had not been revised in some thirty years.

State law requires that plumbing services be done by a certified plumber. There is a wrinkle. In addition to state licensing procedures, each municipality is required to establish a written and a practical test in order for an individual to get what is called a “master plumber” certification. The benefit of passing the local test is that fees the city charges for a project are radically discounted if the job is overseen by a “master plumber.”

The city had bumbled along with an outdated statute with confusing language and dubious requirements. For example, an applicant to become a master plumber used to be required to have a brick-and-mortar facility in the city.

Under Mayor Kelly’s watch the city established more appropriate tests and procedures to facilitate the ability of new plumbers to do business in the city.

I highlight this because it is an example of the kind of rigor with which Mayor Kelly went about strengthening the city’s internal operations. It’s not a very high-profile change, but if you were a plumber wanting to work in Saratoga Springs it was important and something the city had not properly addressed in years.

There were, of course, the larger multiple challenges she faced with COVID, the fire in city hall, and the street demonstrations by Black Lives Matter and their volatile participation at City Council meetings.

Perhaps the most impressive achievement by the Mayor during her tenure was the way the city dealt with the crisis brought on by the fire in City Hall. The city operations had to be reorganized and moved to other locations and then, following the rehabilitation of City Hall, moved back. The swiftness with which this was successfully done was a credit to both her leadership and the teamwork of her colleagues on the Council.

I asked Mayor Kelly if she would provide me a list of accomplishments and they are as follows:

1. Changed format of State of the City event. Rather than simply limit presentations to the Mayor’s office, Kelly structured the event to allow all members of the Council to address the public and share their department’s achievements and goals for the coming year.
2. Eight months into Kelly’s first term the city was faced with a monumental disaster. A lightning strike set off a fire that made city hall uninhabitable. Working with her colleagues on the Council they were able to reopen city operations within five days using the Recreation Center. This also required the Recreation Department to move its programming across the city with the help of the School District, Skidmore College, the YMCA, and Gavin Park.
3. The City Center had set a goal to construct a parking facility for event vendors and participants that would also address some of the parking needs of downtown merchants. The project languished due to an acrimonious lawsuit. Kelly, working with the stake holders, facilitated a deal to resolve the suit which led to the construction of the facility.
4. The proposed Geyser Bike and Pedestrian Trail had been in the works for 15 years and was bogged down in three separate lawsuits. Mayor Kelly facilitated an agreement by all parties to end the lawsuits. The trail was successfully completed.
5. Secured land for 3^rd EMS station on Henning Rd, working with NYRA, NYS and FOB.
6. Create bike lanes on Henry Street
7. Created many affordable housing units: Finished Intrdata (158), Finished Promenade (87), Finished additional units at Terrace (240)
8. Canceled gun shows at City Center.
9. Gun buy back , 85 guns taken in, (Tom Roohan raised $10,000.00 for program).
10. Organized Police Reform Task Force under Governor’s executive order.
11. Created homeless court with Judge Vero.
12. Helped organize and promote food drives for Mother Anderson, Franklin Community Ctr and Snacpac. Fed hundreds for several months.
13. Secured more parking (45 spots) at the recreation center. Developer donated land to city.
14. New Playgrounds at Northside and Westside Parks. New equipment at Eastside Rec
15. Juneteenth Holiday
16. Reinstated Plumbers Board (Years went by without one)
17. Railroad Run Connector Haller Lane (between path and Alger Street, named for Doug Haller. I worked to get land donated by Empire State College)
18. Secured 1.9 Million Grant for Missing Sidewalks
19. Submitted State legislation to allow Deputies to live in the county not the city, giving a larger pool of applicants.
20. Secured temporary housing for Code Blue at the Holiday Inn during outbreak of COVID (not one person came down with COVID)
21. All 7 city unions’ contracts are up to date (negotiations traditionally dragged on for years)
22. Negotiated all unions to not take 2% increase for 2021
23. Testified in Albany to save Video Lottery Funding 2020 & 2021(Both times funds were fully restored)
24. Dedicated MaryLou Whitney Park at Union and Circular
25. Progressed with the Downtown Connector for the greenbelt
26. Introduced RISE to Mackey Ford (new van to transport homeless) donated a vehicle (related to homeless court).
27. Secured picnic tables for Congress Park from NYRA at no cost
28. 2019 Completed Recreation Master Plan
29. City is now recognized as a Bronze Certified Climate Smart Community.
30. 2018 The final sidewalk section of “Safe Routes to School” was completed on Geyser Road
31. Bikeshare was successfully launched and has continued with great success.
32. In 2018 The City was awarded $2.7M in grant funds for projects like the Greenbelt Downtown Connector project, Electric Vehicle (EV) stations and a Natural Resource Inventory
33. Land use board applications are now submitted electronically on the City’s website
34. Helped facilitate Code Blue temporary home through strong working relationships among city, county leaders.
35. 2019 The City’s Zoning Map brought into compliance with the 2015 Comprehensive Plan, as required by law.
36. Completed UDO

In its January 4, 2022 edition, The Daily Gazette reported that the following day (January 5, 2022), Black Lives Matter activist and Schenectady School Board member Jamaica Miles was due in court to face charges over her actions in a July 14,2021, protest in downtown Saratoga Springs. The Gazette coverage of Ms. Miles’ court appearance was extensive and differed significantly from the brief and inaccurate account in the Times Union.

Miles complained to the Gazette that she was not offered an adjournment in contemplation of dismissal (ACOD) by the Saratoga County District Attorney who had offered this to others arrested for their actions at the same event. An ACOD basically offers a defendant the dismissal of the charge if they are not re-arrested for a specific period of time.

The Gazette reporter, Brian Lee, followed up with Saratoga County District Attorney Karen Heggen who told him that Ms. Miles had been offered an ACOD by Saratoga Springs City Court Judge Francine Vero but had turned it down.

Lee reported that “Heggen questioned why it would matter that her office hadn’t offered an outcome that Miles had already rejected.”

Miles nevertheless continued to insist that since Heggen had not offered her an ACOD she was being treated differently from other defendants because of her politics even though she had already rejected the same offer from the judge.

Miles alleged that the District Attorney’s office was somehow part of a campaign launched by retiring Assistant Police Chief John Catone to shut down Black Lives Matter.

“It is consistent with the statement that was made by the assistant chief of police, and it is consistent with the idea that the DA’s office is possibly even supportive of the notion of preventing other people from exercising their First Amendment rights by intimidating the leaders of the Black Lives Matter movement locally, and that’s myself and Lexis Figuereo,” Miles said.

“I’ve done my research and talked to lawyers and other folks,” she said. “The unlawful imprisonment charge is ridiculous, and the DA refuses to drop it, which I believe is politically motivated.”

Daily Gazette January 4, 2022

Follow up Story

There was a follow up story in the January 5, 2022, edition of the Daily Gazette that included a video of Ms. Miles attacking both the police and the District Attorney’s office for what she alleged was retaliation.

The story reported that Judge Vero, for the second time, tried to resolve the matter with an Adjournment in Contemplation of Dismissal (ACOD).

Assistant District Attorney Joseph Frandino, representing the Saratoga County District Attorney’s office, declined Judge Vero’s offer. Instead, he offered to reduce the charge against Miles from unlawful imprisonment down to disorderly conduct. Miles declined that deal.

Judge Vero asked the prosecutor why he had turned down the ACOD. The Gazette quoted Frandino who said, “it is my understanding that neither side would be willing to consent to an adjournment in contemplation of dismissal.”

Mile’s attorney, Thomas Keefe, responded that since the county didn’t consent, any response from the defendant was irrelevant.

According to the story, the reporter asked Miles whether she would accept an ACOD if the assistant District Attorney changed his position. Miles responded, “I’m not willing to discuss that right now.”

Instead, Miles told reporters that the DA’s office actions were simply an attack on Black Lives Matter and meant to intimidate people from exercising their rights.

The Charges

In some impressive reporting, the Gazette reporter, Brian Lee reviewed the charging document in the Miles case along with other related public documents.

Miles is charged with having “intentionally and unlawfully restrained the movement of another person by physically placing herself in front of a motor vehicle on Broadway and Phila Street.”

The Gazette stories are behind a paywall but the newspaper does allow a minimal number of stories to be read each month without charge. The story goes into some detail regarding the events that led to Ms. Miles’ arrest. I would encourage people interested in this to go to the Gazette website.

According to the Gazette, documents related to the case indicate that the passenger whose car was allegedly trapped by protesters had called 911 twice. Following this, the group retreated. According to the Gazette, the passenger statement included, “I thanked them and they continued to walk away.”

Briefly, Ms. Miles’s attorney argued that the “passenger hadn’t alleged that he had been ‘confined.'” The attorney argued that unlawful imprisonment requires restraint. Miles’ attorney requested that the case be dismissed on a motion “in the interest of justice.”

According to the Gazette, Miles’ attorney argued that there are eight elements to a motion to dismiss in the interest of justice. He argued that the seriousness of the offense is one of them, and it is in dispute.

The following is from the Wikipedia entry on “Motion in the interest of Justice” and it identifies the eight elements that must be met:

More recently, the statute has been employed to reach cases in which the court found for a variety of reasons that the ends of justice would be served by the termination of the prosecution.^[8] Indeed, it has been stated that the use of the statute depended only on principles of justice, not on the legal or factual merits of the charge or even on the guilt or innocence of the defendant.^[9]

The provisions of N.Y. Crim. Proc. Law §§ 210.40 and 210.45 require a hearing when either the prosecution or the defendant moves to dismiss the indictment in the furtherance of justice.

At the hearing the parties may, if they are so advised, present such evidence and arguments as may be pertinent to the interests of justice. Among the considerations which are applicable to the issue are (a) the nature of the crime, (b) the available evidence of guilt, (c) the prior record of the defendant, (d) the punishment already suffered by the defendant, (e) the purpose and effect of further punishment, (f) any prejudice resulting to the defendant by the passage of time and (g) the impact on the public interest of a dismissal of the indictment.

Wikipedia

The judge declined to take action on Miles’ attorney’s motion and an evidentiary hearing was set for January 20, 2022.

Miles held a press conference on the steps of city hall the video of which is available on the Gazette website.

The Times Union Misreports

The Times Union resident gossip columnist, Wendy Liberatore, published an article on the Miles case in the January 5, 2021 edition. She incorrectly wrote:

Accusing the Saratoga District Attorney’s Office of abusing its power and intimidating Black Lives Matter protesters a social justice advocate rejected an offer to ultimately dismiss her charges and is instead opting to go to trial. Jamaica Miles, co-founder of All of Us and a Schenectady Board of Education member, declined an adjournment in contemplation of dismissal on disorderly conduct and unlawful imprisonment charges in Saratoga Springs City Court on Tuesday morning.

Times Union January 5, 2021

As the story in the Gazette correctly reported, Ms. Miles did not reject an offer to dismiss her charges when she appeared in court on Tuesday. This offer was never made as the county Assistant District Attorney declined to sign off on that and only offered to reduce the unlawful imprisonment down to a charge of disorderly conduct.

When asked by the Gazette whether she would accept an ACOD if the Assistant DA changed his position, Ms. Miles responded that “I’m not willing to discuss that right now.” This seems inconsistent with the TU story which asserted she wanted a trial.

Support The Daily Gazette

I would like to urge the readers of this blog to subscribe to the Daily Gazette. The decline of newspapers is a threat to our democracy. Without local coverage of news, it is impossible to keep politicians honest.

The Daily Gazette is one of the last independent locally owned newspapers in the region. It has an outstanding history of fair and rigorously accurate reporting. Its latest reporter to cover Saratoga Springs, Brian Lee, follows on the heels of some really great reporters. At one time a reporter was assigned full-time to cover Saratoga County. Those of you old enough will remember the local coverage by Judy Patrick and Stephen Williams, both reporters of the highest caliber.

Unless we support papers like the Gazette, they will go the way of the Saratogian which now has almost no local news coverage.

Please consider subscribing.

This has been a busy week for Mayor Ron Kim as regards news media. Unfortunately, his unfiltered ruminations raise troubling signs for what is to come.

The first thing that stands out about his recent comments to the press is how ungracious the man is. He has used his interviews to regularly criticize his predecessors. For some odd reason, he seems particularly focused on Vince DeLeonardis who served as City Attorney. Traditionally it is considered good taste to simply thank one’s predecessors for their service and to say something along the lines of “we are going to head in a different direction.” In my circle, it’s called “class.” That was, however, pre-Trump.

It is impressive too, how, in his remarks to the media, Mr. Kim has been able to display such an extraordinary ignorance of state and municipal law along with city history and the city charter. It is truly impressive how much misinformation he is able to cram into so few words.

Here is a link to a Daily Gazette story. Brian Lee is an excellent reporter following in the footsteps of his predecessors at one of the last, good, local newspapers.

Ron Kim told the Daily Gazette:

Just to be clear, I am not appointing a city attorney at this point,” Kim said…”We are going to look at this whole office and then make a decision,” Kim said

Daily Gazette December 31, 2021

Citing the fact that he and his deputy are attorneys, he told the Gazette:

…there’s a lesser need to have a city attorney looking over our shoulder. I’m not saying we don’t have to have a city attorney. But I’m saying, maybe, we’re looking at a part time position. I haven’t made that conclusion.

Daily Gazette December 31, 2021

So at the moment, there is no City Attorney nor does it seem there will be one in the immediate future.

The city charter does, however, require a City Attorney.

The city attorney is the city’s legal officer whose services are required in a variety of circumstances . Just to cite one item from the city charter:

Title 8. Legal Matters, 8.2 Service of Papers On The City

All legal papers served on the City shall be immediately delivered to the City Attorney’s office.

City Charter

Neither Mr. Kim nor his deputy, Angela Rella have a professional background in municipal law. While it is not unusual for incoming city attorneys to be new to municipal law, they enjoy the privilege of having no other duties (such as being Mayor) while updating their skills and representing the city. They also have had the advantage in the past of having Tony Izzo, who served as the city’s Assistant City Attorney for over three decades, as a resource. Mr. Kim, however, has now fired Mr. Izzo.

The prospect that Mr. Kim and Ms. Rella will handle city legal affairs while trying to learn their new roles as Mayor and Deputy is worrisome.

There is also this language in the city charter:

Title 8. Legal Matters 8.1 City Attorney

“There shall be a City Attorney who shall report to the Council regarding all legal matters affecting the City.”

“The City Attorney shall be responsible for providing legal services and guidance to the City and all its departments.

While the Mayor appoints the city’s attorney, the City Attorney serves the entire Council not just the Mayor.

How are the Mayor and his Deputy supposed to learn their jobs and run the city while providing legal support to the four other Commissioners and their departments? Also, it is not unusual for there to be conflicts between the Mayor and his/her colleagues. It is inappropriate and an obvious conflict of interest for the other Commissioners to have to rely on the Mayor and his Deputy for legal advice should there be a disagreement with any of his decisions.

This setup invites major conflict. It should not surprise the readers of this blog that a government for a city the size of Saratoga Springs constantly requires legal support. Mayor Kim’s cavalier approach to the need for substantive legal resources for the city seems especially ill-advised.

Modesty Has Its Virtues

Kim said he asked for but was told by the city’s human resources department that neither of the city attorney positions had job descriptions.

“That in itself is a problem in the sense that would seem to be a pretty basic thing,” Kim said.

Daily Gazette December 31, 2021

Mr. Kim seems overly eager to find ways to belittle the past administration and to highlight his own acumen. Here he believes he has exposed a case of long-standing negligence.

The simpler truth is that the duties of the City Attorney are spelled out in the city’s charter. The charter reads as follows:

There shall be a City Attorney who shall report to the Council regarding all legal matters affecting the City. The Mayor shall appoint the City Attorney, and the Council shall establish his or her compensation. The City Attorney shall serve as general legal advisor and shall be responsible for providing legal services and guidance to the City and all its departments and entities. The City Attorney shall maintain regular and updated records and shall report to the Council on the progress of all legal matters conducted by or on behalf of the City, as required.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.

Charter Title 8, 8.1 City Attorney

It is curious since Mr. Kim chaired the last charter change commission that he does not seem to be familiar with the provisions of the current charter.

It’s Best To Rely On The Actual Law

The Gazette article went on to report that:

Kim confirmed he is interested in appointing local bankruptcy attorney Elizabeth Fletcher-Banks as potential part-time city attorney, but that hiring doesn’t appear imminent.

Daily Gazette December 31, 2021

Ms. Fletcher-Banks does not live in Saratoga Springs.

Kim said DeLeonardis advised him that the city attorney had to live in Saratoga Springs, to which he obviously disagrees.

“We did the research,” Kim said, including confirmation from the New York Conference of Mayors.

“We’re talking about city attorneys,” Kim said. We’re not talking about the assistant district attorney, who are not a public officer. So here’s my final conclusion about it: Why would I hire somebody [JK:Vince DeLeonardis] who gave me that advice.

Gazette December 31, 2021

Mr. Kim conspicuously omits that he had been advised by the city’s Human Resource Department that there was a residency requirement as well.

I do not know who he spoke to at the New York Conference of Mayors. I do not know how he asked his question or the credentials of whomever he spoke with, but proof of the residency requirement can be easily found through a Google search.

At the bottom of this post is the definition of who is a public officer from the New York State Comptroller’s Office. It is extremely broad and any thoughtful reader can see that Mr. Kim is wrong and Mr. DeLeonardis was correct. This is now the third time Mr. Kim has slurred Mr. DeLeonardis. Mr. Kim might consider apologizing to Mr. DeLeonardis.

More telling evidence of Mr. Kim’s failure to understand the law, however, is contained in New York State Public Officers Law Section 3. It clearly spells out the residency requirement. It includes over seventy exceptions that have been made over the years as a result of home rule bills granting specific municipalities a waiver for hiring a particular person who lives outside of their jurisdiction. These waivers are allowed when a municipality can prove that they have been unable to find a qualified person to fill a position who lives within their jurisdiction.

Here are two examples of waivers:

The first example is a local one. It allowed Saratoga Springs to fill deputy commissioner positions with individuals from outside the city. I chose this because it shows just how broad the definition of a “public officer” is.

* 70. In the city of Saratoga Springs, in the county of Saratoga, the provisions of this section requiring a person to be a resident of thepolitical subdivision or municipal corporation of the state for which he or she shall be chosen or within which his or her official functions are required to be exercised, shall not prevent a person from holding the office of deputy mayor, deputy commissioner of finance, deputy commissioner of public works, deputy commissioner of public safety or deputy commissioner of accounts, provided that such person resides in Saratoga county; provided, however that any person performing such functions or holding such office in any other city shall be a resident of such city unless otherwise provided by law.

Public Officers Law Section 3 item 69

This waiver is more directly to the point as it involves a waiver specifically for a city attorney:

11. In the city of Salamanca the provisions of this section requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall not prevent a person regularly admitted to practice as an attorney or counsellor in the courts of record of this state from holding the office of city attorney or city justice of the city of Salamanca, if such person resides in the county in which such city is located.

New York State Public Officers Law Section 3, item 11

So, notwithstanding whoever it was who misinformed Mr. Kim, the City Attorney position is a public office and Ms. Fletcher-Banks will have to resolve the residency issue before the city could even consider hiring her.

Release of Police Records: Not So Simple Or Obvious

Mr. Kim also told the Daily Gazette that one of his first actions as Mayor will be to release records sought by fellow blogger Barbara Lombardo in her FOIL for all police excessive use-of-force complaints.

According to the story, the city had claimed the right to deny such requests if they involved a complaint that was internally investigated and determined to be unfounded.

Now I myself have an outstanding FOIL seeking to discover discipline records from the police department.

I have a real ambivalence about the issue. It seems unfair to allow unfounded accusations against an employee of the city to be publicized. On the other hand, there is the tendency of institutions to try to cover up their internal problems so I would personally support as much transparency as possible.

Having said that, the law that passed making such records available is currently being challenged in the courts. It remains to be seen whether the courts will narrow the scope of what can be FOILed.

In an example of Mr. Kim’s intemperate attacks, he told the Daily Gazette, “I’m not going to make an argument that is going to get shut down by a judge six months from now and $20,000.00 later in legal fees, that I know can’t be sustained.”

First, one might ask, how qualified is Mr. Kim to make such an assessment? How familiar is he with the controversial law and with the ongoing legal proceedings challenging the law? I would welcome knowing but, in spite of his public championing of transparency, he does not answer my emails.

It is reasonable to expect that the local police union would attempt to protect its members and might very well take the city to court to block the release of these documents. This might then subject the city to the same potential legal fees that Mr. Kim expresses concern over.

My understanding is that the caution the city has shown reflects their desire to see what the courts decide before acting.

Mayor Kim, Dial It Back

It would appear that Mayor Kim cannot get out of campaign mode. This community will welcome a leader who brings us all together. Focusing on constructive and achievable actions is what most of us are hoping for.

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Excerpt From The New York State Comptroller Regarding Who Is Public Officer

Public Officers

Public officers are eligible for membership in NYSLRS. This applies regardless of whether individuals are elected or appointed as public officers. You must give them the opportunity to join NYSLRS.

A public officer is a person either elected or appointed to a governmental position with the following general characteristics:

• The position is authorized by statute, resolution or charter to exercise part of the sovereign power of the governmental entity.
• The duties of the position involve the exercise of discretion on behalf of the governmental entity. If the duties of the position are routine, subordinate, advisory, or directed, then the position is more likely to be a position of employment, rather than a public office.
• The State or local enactment creating the position refers to it as an “office.”
• The position has a fixed or definite term.
• The person holding the position files an oath of office.
• The compensation for the position does not depend on the number of hours worked.
• Incumbents of the position may be compensated either through the employer’s payroll system or by voucher.
• Incumbents of the position generally must reside in the jurisdiction they are serving.

Section 10 of the Public Officer’s Law requires every public officer to take and file an oath or affirmation prior to the discharge of any of their official duties. Public officers are authorized to act in their capacity as an officer for their established term. Any public officer who is re-appointed should take and file an oath or affirmation at the beginning of each new term. In addition, these oaths of office shall be provided to the Office of the State Comptroller if requested as part of an employee/independent contractor review.

Some positions considered public offices are members of planning boards, Town or Village Justice, County Attorney and District Attorney. Other positions that may be considered public offices are Town, Village and City Attorney.

According to the Times Union newspaper, two attorneys have filed a complaint about the failure of newly elected mayor Ron Kim to submit his campaign financial disclosure data to the New York State Board of Elections. His report on donations and spending was due November 29, 2021.

This story appeared in the Times Union under Wendy Liberatore’s byline. It does not require a degree in journalism to see that there are some serious problems with the coverage of this story.

Obvious Questions Never Asked

According to the TU, Kim gave the following explanation about the missing report:

Kim said that he filed his post-election report, but a technical issue has prevented it from being viewed. 

“We submitted it,” Kim said. “I thought it was done. I just learned of the problem and we are working on it.”

Times Union December 30, 2021

This statement should have raised a number of questions.

First, it would seem obvious that the reporter would check with the New York State Board of Elections (NYSBOE) to see whether the failure for the data to appear on their website lay with the NYSBOE or with Mr. Kim. This blogger contacted the NYSBOE and was assured that if Mr. Kim had properly submitted his information, as he did in the previous reporting periods, it would be on their site.

For whatever reason, Ms. Liberatore found the time to research the campaign contributions of the lawyers bringing the complaint but saw no need to check with the NYSBOE as to whether the NYSBOE had received the required information from Kim.

Next, the obvious question to have asked Mr. Kim would have been, “what is the “technical issue” you referred to and what actions are you taking to correct it?” This line of questioning also was apparently never pursued by the reporter.

The article also reported that Kim had previously “…acknowledged in November that his final financial disclosure would be late because the deadline coincided with his father’s death.”

I can find no public record that Kim ever said this. The story includes no citation. Ms. Liberatore simply reports it as fact.

According to the obituary, Kim’s father, who had been ill for a long time, died on December 4, 2021. That was five days after the last filing date for the required report and thirty-six days after the actual election.

Every other candidate has filed with the exceptions of Tara Gaston (Supervisor-D) and Shaun Wiggins (Supervisor-D).

More importantly, New York State election law requires that for a campaign to accept donations it must have a treasurer. Standard practice is for the treasurer, not the candidate, to not only maintain records of contributions and expenditures, but to handle the reporting to the state.

I texted Pat Tuz, Saratoga Springs Democratic Committee chair, asking who Mr. Kim’s treasurer was. I did not get a reply.

Similarly, I emailed Mr. Kim, himself, with the same question and did not receive a response.

Blogger Urges Times Union To Hire A Reporter To Cover Saratoga Springs

There is a role in a newspaper for a gossip columnist. Everyone enjoys hearing the latest rumors and the more salacious the better. No one really expects accuracy or fairness from a gossip columnist. A gossip columnist is not a reporter.

Saratoga Springs deserves to have its news covered by someone with an independent eye who is rigorous in their reporting rather than someone whose stories, while occasionally entertaining, often sacrifice accuracy and fairness for sensationalism. The Times Union used to have a real reporter covering us. His name was Dennis Yusko. It would benefit our community for that newspaper to find someone of similar excellence to fill that role now.