In a Kafkaesque special meeting on Monday, November 28, the Saratoga Springs City Council attempted to pass a resolution crafted by Public Safety Commissioner James Montagnino that, in the most bravura rhetoric, denounces Saratoga County's District Attorney Karen Heggen.
At the end of this blog is the full text of his resolution, along with a video documenting the confusion and ignorance on display at this meeting, something that seems endemic to the current Council. Montagnino's resolution will be up again for discussion and vote at yet another special Council meeting this Friday (12/2) at 3PM.
There are many problems with the substance of Montagnino's resolution, as well as the manner in which he tried to get it adopted by the Council.
Montagnino's resolution was prompted by a court restraining order issued on November 23 restricting Council members and city employees in their official capacities from further releasing certain information regarding the November 20 shootings on Broadway. The order was issued after Kim and Montagnino held a press conference less than twelve hours after the shootings occurred, where they released footage of the incident and commented extensively on the event.
In his resolution, Montagnino focuses on DA Heggen, condemning her "in the strongest terms" for seeking the temporary order (TRO).
Item #4 of Montagnino's resolution states the following:
"District Attorney Heggen knows, or has reason to know, that seeking a TRO which precludes every public employee of the City of Saratoga Springs, including elected officials, from exercising their free speech rights under the First Amendment of the United States Constitution is a gross violation of her Oath of Office."
While it is true that the order imposes significant restraints on the city's elected officials' and employees' right to speak in their official capacity, I don't think that it was unintentional on Montagnino's part to add drama by adopting language that would lead people to believe that the order was all-encompassing. The order does not impose limits on the city's officials or employees from privately talking about the case. In fact, even in their official capacities, it does not bar them from discussing the case except as regards comments associated with evidentiary issues.
The actual language in the restraining order states:
"Ordered, that the Mayor of Saratoga Springs, the Public Safety Commissioner of Saratoga Springs, and all other elected or public employees of Saratoga Springs acting in their official capacity [my emphasis] shall refrain from making any further public comments characterizing any
· speculating as to the quality, quantity, or clarity of any evidence,
· and presenting opinions or legal conclusions as to the ongoing investigation."
ORDERED, that the Mayor of Saratoga Springs, the public Safety Commissioner of Saratoga Springs, and all other elected or public employees of Saratoga Springs, acting in their official capacity, shall refrain from releasing any further
· street camera footage
· police officer body camera footage
· surveillance footage
· private video footage
· audio footage
· audio transcript
· or any other information that would tend to identify witnesses, their statements to law enforcement, or describe in detail any physical evidence or resulting scientific tests associated with the ongoing investigation
There is a very real and thorny issue here of free speech on the one hand and disclosing information that might be harmful to individuals and endanger the 6th amendment right to a fair trial with an impartial jury on the other. How should the right of elected officials to discuss ongoing criminal investigations without restraint be balanced against the need to effectively bring to justice those who violate the law?
This is the kind of issue that courts often must deal with.
Unfortunately, rather than addressing these issues soberly and professionally to seek accommodation between the city and the county District Attorney, Montagnino, Kim, and some of the other members of the Council have gone into attack mode.
It is important for the city's police to be able to work cooperatively with the county's District Attorney. The police rely on the county DA to prosecute the criminals they apprehend. A thoughtful City Attorney would have reminded Kim and Montagnino of the importance of this relationship. I expect such a lawyer would have advised sitting down with the DA and trying to find a way to work together constructively rather than raising the temperature by publicly denouncing the DA using the most extreme language. And, of course, city officials would then have had to listen to such a lawyer.
To begin with, while DA Heggen applied for the restraining order, it was Supreme Court Justice Dianne N. Freestone who issued the restraining order and is responsible for its content, not DA Heggen.
I am not sure why, in his resolution, Montagnino has selectively attacked only Heggen, and not Freestone. It might be tactical, as it is unwise to verbally abuse a judge. Given his history of vindictive behavior and misogyny, Montagnino may simply be angry that DA Heggen, a woman, had the temerity to ask him not to release the videos just before his press conference. It could, of course, be both.
In response to a question by the Daily Gazette, Montagnino indulged in this sexist comment, reinforcing the personal and unprofessional nature of his conflict with DA Heggen.
...oh well, it’s under investigation and now are we going to have the DA step in and stomp her foot and say, ‘you can’t talk about that either?'”
Daily Gazette November 29, 2022
It is worth noting that DA Heggen, in contrast, has demonstrated a much higher level of professionalism by not indulging in similar statements.
Ignoring the City Charter's Transparency Requirements
Equally problematic was the way Montagnino brought this resolution before the Council.
The City Charter clearly states:
“Agendas for regular meetings shall be finalized and filed in the City Clerk's office for public review no later than noon the day preceding such meeting.”
Article 2.2 City Charter
In addition, the charter states that new items cannot be added to the city’s agenda during a Council meeting without the following actions:
“Matters not listed on the agenda for a meeting may not be finally acted on at that meeting, unless one or more Council members shall propose an unlisted matter be finally acted upon and shall state on the record the reason why such matter was not listed on the agenda, and the Council shall, by motion and vote, find that immediate final action on the matter is necessary.”
Article 2.2 City Charter
There is a good reason the charter established these requirements. It makes for a reasonable time frame in order to inform citizens about what the Council plans to discuss and act on.
Both of these provisions have routinely been violated by this City Council. The procedures followed (or rather not followed) by Montagnino at this special meeting were no exception.
Commissioner Golub Raises Concerns
The special meeting called for November 28 was supposed to primarily be to vote on Commissioner Sanghvi's 2023 proposed budget, but that night Commissioner Montagnino added his resolution to the agenda. When Public Works Commissioner Jason Golub expressed concern at this last-minute addition to the agenda, Commissioner Sanghvi casually observed that the Council had routinely amended the agenda during Council meetings. She didn’t see what the problem was. (see video)
Golub observed that because the resolution had not been included in the Council's published agenda, not only was the public unaware of what Montagnino was proposing, it was unaware that the issue would even be discussed.
Golub told his colleagues that he had not had an opportunity to properly review Montagnino's resolution as it had only been handed to him that afternoon, and there were some serious accusations made against Heggen. In the course of the discussion, it was revealed that not only had the City Attorney, Tony Izzo, not read the resolution, but Izzo had not been consulted at all about the crafting of it. (see video)
Commissioner Sanghvi oddly asked Izzo if he would like to comment on Montagnino's resolution. As he had just told her and the rest of the Council that he had not read it, it was hardly surprising that he said: "no." (see video).
Golub asked Montagnino to table the resolution until the next meeting.
Mayor Kim then offered a rambling commentary about why it was urgent to pass Montagnino’s resolution immediately. As best I could make out, the gist of his argument was that it would somehow strengthen the city’s case by demonstrating how quickly the city objected to the court order.
He argued that delaying adopting Montagnino's resolution would undermine the city's argument that it was an emergency to have the temporary restraining order lifted.
I asked a number of attorneys about Kim's argument. They uniformly dismissed Kim’s claim as without foundation. They noted that the court would only be interested in the strength of the city's legal arguments and whether any legal action the city took was timely as required by law.
As Commissioner Golub had asserted that he could not vote for Montagnino's resolution without further review, the Council agreed to table the motion and to consider it at yet another special meeting they scheduled for Friday, December 2, at 3:00 PM. in spite of the fact that there is already a regularly scheduled Council meeting on Tuesday, December 6.
In defending Montagnino's resolution, Mayor Kim was dismissive of withholding information from the public on the basis of an ongoing investigation. As the video shows, Kim was adamant that the right of the public to know trumps concerns about investigations.
In April, the city received a FOIL request asking for documents associated with an alleged forged signature on one of Kim's petitions for mayor. It was denied. The reason for the denial? "There is currently an open investigation." Below is the denial letter.
Montagnino's Resolution Denouncing DA Heggen
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SARATOGA SPRINGS:
That the actions of Karen Heggen, District Attorney of Saratoga County, in seeking a Temporary Restraining Order (TRO) directing that "The Mayor of Saratoga Springs, the Public Safety Commissioner of Saratoga Springs, and all other elected or public employees of Saratoga Springs acting in their official capacity, shall refrain from making any further public comments characterizing any evidence, speculating as to the quality, quantity, or clarity of any evidence, and presenting opinions or legal conclusions as to the ongoing investigation [into the events of Sunday, November 20, 2022]," are condemned in the strongest terms for the following reasons:
1. District Attorney Heggen obtained the TRO illegally, in violation of 22 NYCRR §202.7(f), by failing to provide the City with notice and an opportunity to be heard;
2. District Attorney Heggen acted improperly in presenting the proposed TRO to a Judge in the afternoon of the day before Thanksgiving, thereby depriving the City of the opportunity to respond in a timely fashion;
3. District Attorney Heggen acted improperly in seeking to prevent the City from being heard on the TRO for a full month; and, most importantly,
4. District Attorney Heggen knows, or has reason to know, that seeking a TRO which precludes every public employee of the City of Saratoga Springs, including elected officials, from exercising their free speech rights under the First Amendment of the United States Constitution is a gross violation of her Oath of Office.