Trouble Is Coming

Saratoga Springs Public Safety Commissioner James Montagnino and Mayor Ron Kim’s thirst for media coverage has prompted them to use the most intemperate language in their continuing conflict with Saratoga County District Attorney Karen Heggen. This last week (December 18-24), they have been especially shrill.

Their willingness to throw thousands of dollars into vanity suits instead of accepting repeated offers from the DA to meet is emblematic of their thoughtless mismanagement of our city and taxpayer dollars.

A Lost Opportunity To Resolve The Controversy Between the DA’s Office And Mayor Kim and Commissioner Montagnino

In contrast, Saratoga County DA Karen Heggen’s remarks to the media have been temperate and professional, and she has repeatedly reached out to Mayor Kim and the City Council to try to resolve their differences.

Regrettably, her efforts have been ignored in spite of a December 6, 2022, resolution passed unanimously by the Council that directed Commissioner Montagnino, Deputy Mayor Angela Rella, and City Attorney Tony Izzo to meet with her as she had asked. The purpose of the meeting was to be to discuss the temporary restraining order issued against them after Kim and Montagnino held a controversial press conference following the shootings on Broadway. Readers may remember that at that Council meeting, the Mayor announced that he would write to the DA to arrange the conference.

The Poorly Timed Letter

Several weeks later, it came to light that not only had no meeting taken place as directed by the Council, but no one had even contacted the DA. This should have been embarrassing to the Mayor.

On December 19, 2022, some two weeks later, and with just three days until the hearing before the judge to review the temporary restraining order, Tony Izzo sent the letter below, finally asking for a time for the meeting.

Unfortunately, it was sent via the U.S. Postal service. Not surprisingly, it arrived at the DA’s office on December 23, which, of course, was the day after the scheduled hearing before Judge Freestone for the temporary restraining order.

Given how late this letter was in being drafted, one would have expected that it would have been sent via email or hand-delivered. That, of course, would have implied that there was a serious interest in actually meeting.

Here is a copy of the letter.

Mayor Kim’s New Explanation

In the December 23, 2022, edition of the Daily Gazette, Mayor Kim offered yet another explanation as to why they had not met with the DA in spite of the direction of the Council to do so.

“Kim said Wednesday evening the city was unable to have discussions with Heggen because it needed to secure outside counsel first which is a “difficult process.” - Daily Gazette

So he alleges they could not meet without a lawyer? Of course, the city has an attorney. In fact, all three representatives of the city who were to meet with Heggen are attorneys.

Readers may recall that at the December 6 Council meeting, where the Council directed that the meeting be set up, not only was there no mention of the need for outside counsel, the discussion emphasized the need for an informal and non-confrontational approach to try to resolve their differences.

If the Mayor had advised his colleagues on a timely basis that he would be unable to arrange the meeting due to a lack of counsel, this recent explanation might enjoy some credibility. He didn’t. In fact, he never communicated this rationale to the Council at all –unless you consider the story in the Gazette a legitimate vehicle for updating his colleagues.

There’s A Consistent Theme Here

I wrote about the failure of Mayor Kim and Commissioner Montagnino to carry out the wishes of the Council in a previous post, so I am not going to go through the full history again here.

I can only observe that, whether officially directed to or not, typically, most officials would have felt impelled to respond to the DA’s repeated requests to meet to at least maintain the appearance of being reasonable and civil, even if they had no intention of really engaging in a productive dialog at the meeting. It is a testament to both Kim and Montagnino’s narcissism that they have instead simply ignored the requests.

Heggen Shifts

In the meantime, the DA’s office has hired outside counsel and altered its legal strategy. They notified Supreme Court Judge Dianne Freestone that they would allow the temporary restraining order to expire. They have now brought a new action called an article 78.

This new action narrows the focus to just Kim and Montagnino rather than all city employees and Council members. The restrictions on Kim and Montagnino would end in 60 days or once a grand jury has completed its work in determining whether to charge anyone in the November 20 shootout.

Heggen’s Offer

In addition to bringing the Article 78 lawsuit, attorney Karl Sleight on behalf of the DA, sent a letter to the city dated December 20, 2022, offering a simple solution to resolve the DA’s concerns.

Basically, it requested that the city follow the police department’s manual, which requires that the police chief have the sole responsibility to manage the release of information to the media during ongoing investigations.

Prior commissioners have uniformly followed this policy and supported this role for the police chief.

Montagnino has responded by attempting to confuse the issue by asserting that the police department manual is only relevant to the internal workings of the police department. As an elected official, even though he oversees the police department, he asserts that it does not cover him. He claims the right to disregard the manual.

The real question, which he would like to avoid, is not whether he is personally required to follow the manual but whether the requirement that the chief manages the release of information of an ongoing investigation is a good policy that should be followed.

Sleight’s letter again stated the DA’s desire to meet with representatives of the city.

The Belittling Of The Police Chief

Unfortunately, none of the media has asked the basic question, which is, why not allow the police chief to assume his historic role as the gatekeeper for information regarding ongoing investigations? Our chief has decades of experience to draw on.

What is the problem? Why not honor the DA’s request?

At the risk of sounding snarky, I believe the primary reason that Montagnino and Kim marginalize the city’s police chief is that they want the media coverage for themselves. They also have an exaggerated faith in their own expertise. Who needs a police chief when you have Montagnino and Kim available?

Being Right Legally Does Not Mean Litigation Is The Best Way Forward

When Jane and I built the addition to our home, the company that was supposed to tile the floor did a miserable job. The tiles were canted and uneven. The resin they used failed (fortunately), and the tiles were not secured to the floor.

We considered suing the company, but the cost of a lawsuit exceeded the cost of redoing the floor.

So the point is that being right legally does not always make it smart to litigate. The cost/benefit issue does not seem to concern Kim and Montagnino when it’s the public’s money they are spending.

Montagnino and Kim Are Happy To Spend Your Tax Dollars

I do not know who will prevail in the most recent lawsuit between the city and the DA.

Among the DA’s arguments are that improperly releasing evidence jeopardizes the right of defendants to a fair trial as required by our Constitution. She argues that such actions jeopardize her ability to enforce the law to protect our citizens from criminals.

Montagnino and Kim contend that elected officials have the authority to determine what the citizens need to know and that they were simply exercising their Constitutional right to free speech by releasing evidence and discussing the shootout.

Who would legally prevail is important, but if the central issue is, as they claim, the need to inform the public regarding the shootout, which I think it should be, then why not allow the police chief to carry out his duties as proscribed in the police manual and move on? Is the police chief not capable of carrying out his duties?

Adding to the dubious need to litigate is that DA Heggen is only seeking restraint until the grand jury completes its work on the case which should be in the near future.

I know that Montagnino and Kim were stung and embarrassed by the judge’s decision to issue a restraining order. They would very much like to prove to the public that they were right and the DA and the judge were wrong. It is now clear that they are ready to spend as much as it may cost of city money to litigate.

I doubt very much that they would indulge themselves in this kind of litigation if they had to pay for it themselves, but they are perfectly happy to spend the public’s money.

As Finance, Commissioner Minita Sanghvi is supposed to be the gatekeeper for the city’s money. As such, she should at least have urged caution in pursuing litigation while other options were available. Unfortunately, she was the swing vote to authorize Kim and Montagnino to engage yet another law firm to pursue their vanity suits.

Other Damage To Consider

During all of this, the DA has demonstrated professional restraint. Her correspondence to the Council has been sober and conciliatory. Her comments to the press have been free of invective.

In contrast, Kim and Montagnino have engaged in the most intemperate, shrill personal attacks on DA Heggen.

Consider these remarks by Montagnino as reported by the television station WRGB.

“This is a shameless abuse of our legal system and an embarrassment for the people of Saratoga County. More than a month has past since the shooting incident on Broadway. Despite the fact that the crime was captured by multiple high-definition cameras, not a single arrest has been made and not a single charge has been filed. It’s time for the DA to end the partisan political sideshow and either do her job or ask that a special prosecutor be appointed to do it for her.” - Commissioner Montagnino to WRGB

Mayor Kim has made similar statements.

Commissioner Montagnino and Mayor Kim, There Is Something Called a Grand Jury.

Would that it were all as easy as Montagnino and Kim would have us think.

In the state of New York, grand juries are required in cases where a person is charged with a felony.

This is from the New York State Unified Court System’s website:

Indictments are handed down by the Grand Jury. As the jury of inquiry, the Grand Jury hears the evidence against the defendant presented by the prosecutor and decides if the evidence presented is sufficient for an indictment. - NYS Unified Court System

Both Kim and Montagnino are attorneys. Montagnino lists in his biography that at some point in his career, he was actually a prosecutor of some kind.

They should know that to pursue a felony case, a grand jury must first issue an indictment.

The cynicism of his and Kim’s attacks on Heggen is breathtaking both in terms of their vitriol and in terms of their cavalier misrepresentations. What makes great sound bites does not make responsible law enforcement.

Securing an indictment and then a conviction that will withstand an appeal is a serious and demanding business that takes time. It involves the methodical gathering of evidence and the interviewing of witnesses. It involves the careful and challenging determination of what specific charges to bring before the grand jury once the investigation has been completed. Haste must be restrained in the interest of thoroughness to be successful.

We know very little about exactly what occurred the night of the shootout, as Montagnino should well realize. While the video evidence makes clear who fired the guns, it does not tell us how this all arose. Was the deputy sheriff defending himself, or did his actions precipitate the violence? Who was involved in this altercation, if anyone, beyond the two men who fired the guns? Were the men properly permitted to carry guns?

Both men involved in the shootout have been seriously injured. They represent no ongoing threat to public safety.

Of course, Kim and Montagnino never entertain the possibility that their actions in holding a press conference within 12 hours of the shooting might have contributed to how long the process of getting an indictment takes.

Accusing Heggen of some kind of malfeasance because there have not as yet been charges and arrests, as Montagnino and Kim have done, is the worst kind of cheap politics.

A responsible prosecutor is not bullied into rushing, and a responsible elected official would not exploit people’s ignorance by pressing for actions, which for the case to be successful, he knows must be done properly and take time. A responsible city official would urge the public to be patient and let law enforcement do its job.

Yet More Money For Outside Counsel

I understand that Mayor Kim has now asked the outside counsel who the city has hired to work on this case to pursue recovering their attorney fees. Attorneys I have spoken with are skeptical as regards the city’s chances for success in this.

Of course, the city is now paying for this legal work as well.

These Chickens Are Going To Come Home

This is not the first time Kim has squandered public money on unnecessary litigation and engaged, along with Montagnino, in intemperate public rants. This pattern, coupled with the attack on the city’s insurance carrier by trying to block the settlement in the Wales case and refusing to pay them the deductible the city owed, sends the worst possible message to the insurance companies who underwrite the city.

What insurance company would want to underwrite a city that demonstrates the excesses of Montagnino and Kim?

Actions have consequences, and I believe that this city is going to find that convincing future insurers to underwrite the city is going to become increasingly challenging.

Trouble is on the way.

Poisoning Public Discourse

Most people would like their public officials to act with dignity and grace. Our politics are already stressed, as evidenced by the culture wars in Washington, D.C.

Taunting the DA through the media, as Montagnino and Kim have been doing, may get them on television, but it only contributes to the deterioration of our political discourse.

This city needs less drama and better governance.