At yet another special Saratoga Springs City Council meeting, this one held on Friday afternoon, December 16, the law firm of E. Stewart Jones, Hackler, Murphy was hired to appeal the restraining order against the city growing out of the press conference Mayor Ron Kim, and Public Safety Commissioner James Montagnino held regarding the shoot out on Broadway the weekend before Thanksgiving. The law firm's partners bill at $400.00 an hour.
This occurred at a special meeting that was improperly noticed, where Kim refused to let Public Works Commissioner Jason Golub attend via zoom as he himself had done only two weeks before, and where it was revealed that Montagnino, City Attorney Tony Izzo and Deputy Mayor Angela Rella had not yet met with Saratoga County DA Heggen as they had been directed to do by the Council. That meeting had been intended to try to resolve the differences over the restraining order and avoid going to court.
Montagnino and Kim Show Contempt For Their Colleagues on the Council
As readers who follow this blog will know, at a previous meeting, the City Council balked at a resolution proposed by Public Safety Commissioner James Montagnino. The resolution would have condemned DA Heggen for successfully applying to the New York State Supreme Court for a temporary restraining order (TRO) blocking the city from releasing or commenting on evidence related to the recent shootout.
DA Heggen reached out to the Council, suggesting they meet to discuss the issues surrounding the restraining order. At their December 6, 2022, meeting, the Council directed Montagnino, City Attorney Anthony Izzo, and Deputy Mayor Angela Rella to meet with Heggen to try to find a way to resolve the TRO controversy. Kim told his colleagues he would write to DA Heggen to arrange the meeting.
That was at the December 6, 2022, Council meeting. The restraining order was scheduled to be reviewed by the court on December 22. So this allowed for sixteen calendar days before the hearing on the TRO for the city to meet with the DA to try to resolve their differences.
As it turns out, Kim never contacted Heggen, nor did anyone else from city hall.
Kim scheduled a special meeting for Friday, December 16, to review the State Environmental Quality Review form for the Liberty Affordable Housing project. The legal notice for the meeting was not published until the day of the meeting, giving the public little, if any, notice.
Worse, though, at the last minute, Kim added a resolution to the agenda that would authorize him to hire outside attorneys for "legal services related to response to the TRO."
In a Rush To Litigate, Kim and Montagnino Fail To Follow Proper Purchasing Requirements
On November 29, 2022, Kim sent out a Request For Quotes (RFQ) to area law firms to seek quotes for legal services to respond to the TRO. The deadline for responses was 5:00 PM, December 1, 2022.
A Request For Quotes required that the city receive a minimum of three proposals to make an award, and it appears that no firms responded by the deadline.
Undeterred, Kim and Montagnino apparently reached out to the law firm E Stewart Jones, Hacker, Murphy. That law firm then submitted a response on December 13, 2022, twelve days after the deadline. This was the proposal Kim and Montagnino pressed the Council to accept on December 16.
Did Montagnino and Kim Ever Intend To Carry Out The Wishes of the Council?
It was apparent that Kim and Montagnino never took seriously the Council's directive to meet with the DA to try to avoid litigation. At the December 16 meeting, Montagnino informed his colleagues that he had already been in discussions with the E Stewart Jones law firm on the case, even though the other Council members were not even aware that the law firm had been contacted after the December 1 deadline for the response to the RFQ. Montagnino announced to his colleagues that the law firm was awaiting his text advising the law firm that the Council had approved the contract so that the firm could work on the case over the weekend (at who knows what cost).
At one point, Commissioners Moran and Sanghvi asked what had happened with the meeting with Heggen. Kim offered a rambling response. Unfortunately, neither Accounts Commissioner Moran nor Finance Commissioner Sanghvi effectively pressed for a clear answer. Kim runs a chaotic meeting that makes securing answers to unfriendly questions challenging.
Using their usual legal gibberish about the need for representation, Montagnino and Kim successfully pressured Sanghvi and Moran to join them in voting to authorize the contract with the law firm.
Moran admitted later that he had failed to scrutinize the contract, which contained a vague clause that, in effect, gave the Mayor broad authority to use the law firm even beyond the TRO case. The agreement was for a full year and allowed "for other services as assigned."
Regrettably, Public Works Commissioner Jason Golub, the most reasonable and articulate voice on the Council, was not there due to a cynical maneuver by Kim.
Kim Blocks Golub from Joining City Council Meeting
The December 16, 2022, City Council meeting took place on a day when a snow emergency had been declared, and schools had been closed, necessitating that Commissioner Golub remain home with his kids.
Golub contacted the city about arranging for him to participate in the meeting via Zoom as many Council members had done over the past year. Much to his surprise, he was advised that it would be illegal for him to participate. The Mayor had received a legal opinion from City Attorney Tony Izzo that the law required the city to provide the public with notice before the meeting indicating that a Council member would be zooming in.
Bear in mind that on December 2, 2022 (just fourteen days earlier), the Mayor used Zoom to participate in a Council meeting. There was no prior notice to the public advising them that he would be video conferencing as required according to Izzo's opinion. At the time, Kim assured the public that his participation was legal and appropriate. So two weeks later, somehow, Tony Izzo provides Mayor Kim with a legal opinion that he can use to block Golub from doing the very same thing.
Here is Mayor Kim on December 2:
The reality is that Golub had been instrumental in blocking a previous resolution by Montagnino condemning DA Heggen and, more importantly, had played a key role in convincing the Council to meet with the DA to discuss their differences. Kim and Montagnino did not want Golub present as it risked disrupting their plans to do what they had wanted which was to litigate.
I contacted the New York State Committee on Open Government for an opinion on both Kim's and Golub's right to have Zoomed.
The email correspondence with the Committee on Open Government (COOG) is included at the end of this post. They confirmed Izzo's opinion that prior notice to the public is required for any council member to vote via Zoom.
Apparently, the way other municipalities deal with the problem of how to deal with unexpected and last-minute Zooming is to include in all notices for meetings that there will be "video conferencing" whether or not there actually will be video conferencing. Strange, but that is the law.
By affirming Izzo's opinion, it also established that Kim's December 6, 2022 Zoom violated the Open Meetings Law.
A Little Late...
Apparently, Kim, Montagnino, and Izzo learned that criticism was on its way for Kim's failure to write to DA Heggen requesting a meeting as the Council directed. So today (December 19, 2022), City Attorney Izzo sent a letter to Heggen asking to set up the meeting. I cannot keep from asking, "Is this crazy?" Kim had agreed to send the letter on December 6. So now, sixteen days later, with the TRO hearing only three days away and the city spending money on legal fees, the letter is finally sent.
A Self-Inflicted Fiasco
This whole mess was unnecessary. Montagnino and Kim circumvented their colleagues on the Council and disregarded established city policy when they held their press conference about the shootout on Broadway. They have resisted every effort to address the ensuing restraining order without resorting to litigation. They may prevail in a court challenge of the restraining order, but this will be at great and unnecessary expense to the city. They have put their own egos before the city's interests.
According to the city's police manual, all contacts with the media regarding ongoing investigations must go through the police chief. This had served the city well. Had Montagnino and Kim followed this policy, the city would not be in the position it is in today.
Perhaps if they agreed to follow this policy in all investigations in the future, it would address the DA's concerns.
Unfortunately, the bottomless appetite of Montagnino and Kim for media exposure blinds them from doing what is good for the city.
Grim!
This level of deceit and manipulation by city leaders is hard to watch. I feel badly for the city's employees who have to endure the same kind of behavior directed at them.
I have to admit covering local Saratoga Springs politics is beginning to take its toll on your blogger. I usually maintain a certain amused distance to maintain my sanity in observing and writing about our Council. Regrettably, watching the toxic carrying on of these people and the damage they are doing to our city and enduring listening to the self-serving and grandiose speeches is, to say the least, wearing me down a bit.
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The Opinion From The Committee On Open Government
Assuming that a public body held a public hearing and adopted a resolution and procedures, Section 103-a permits members to attend and participate in a meeting through purely remote means under very limited circumstances. Relevant to your first question emailed on December 17, Section 103-a(f) states that for any meeting where a member will be attending remotely due to extraordinary circumstances, “the public notice for the meeting shall inform the public that videoconferencing will be used, where the public can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location for the meeting where the public can attend.” Notice of meetings that are scheduled at least one week in advance must be posted 72 hours before the meeting. §104(1). Therefore, if the notice did not inform the public that videoconferencing would be used and did not include a link for the public to access the meeting in that same way, the advice provided by the attorney was, in my opinion, consistent with the requirements of the OML.
Remote attendance is permissible under Section 103-a only when a member experiences an extraordinary circumstance. While the body has some discretion in defining what qualifies as an extraordinary circumstance, it appears that the Saratoga City Council defines “extraordinary circumstances” to include “disability, illness, caregiving responsibilities, non-routine events or responsibilities of family or personal business, or any other significant or unexpected factor or event which precludes the Member’s physical attendance at such meeting.” In my opinion, a family wedding would fit within this definition.
While the OML does not require a public body to publish a legal notice informing the public of open meetings, it must produce a public notice (i) setting forth the time, physical location and remote access link (if a member attends remotely), and (ii) that notice must be sent to the news media, (iii) “conspicuously posted in one or more designated public locations,” and (iv) posted to the webpage, if the body has the ability to do so. § 104. Since I am unable to locate a copy of the meeting notice, I cannot offer an opinion regarding whether the notice seems consistent with these requirements.
If you believe that the City Council has not complied with the requirements of the OML, you have the right to initiate a Civil Procedure Law and Rules, Article 78 proceeding in state Supreme Court.
Christen L. Smith
Senior Attorney
Pronouns: she/her/hers
New York State Committee on Open Government
One Commerce Plaza, Albany, NY 12231
(518) 474-2518
