(Credit: Steve Thurston, file photo)
James Montagnino
Saratoga Springs Commissioner of Public Safety James Montagnino brought forward a resolution meant to pushback against a gag order issued by a Saratoga County judge, but it was tabled until a hastily-scheduled special meeting set for 3 p.m. Friday Dec. 2.
The resolution itself was brought forward during a special meeting of the city council, Monday evening Nov. 28. That meeting had been scheduled for the council to view and approve the city’s budget, which they did.
However, the meeting was co-opted by the shoot-out on Broadway on Nov. 20, that involved city police and left three people wounded.
The council had a number of resolutions and discussions on how to handle the violence in the city surrounding late-night drinking, but Montagnino had not included this resolution on the agenda, though his proposed law to amend city code Chapter 136 was listed.
[Read about the proposed law here.]
The resolution was an attempt to fight a Temporary Restraining Order that was issued by Supreme Court Justice Dianne Freestone on Wednesday afternoon Nov. 23, the day before Thanksgiving.
Montagnino said his resolution highlights the troubles he saw with the TRO, as the restraining order is called. Saratoga County District Attorney Karen Heggen convinced the judge that the restraining order was needed. Many news outlets have reported on this.
According to Montagnino’s resolution: The TRO was issued late on the Wednesday before Thanksgiving, which gave little time for the city to respond, and it was illegally obtained since the city was not notified before or given a chance to respond. The date, Dec. 22, for the city’s court hearing on the matter is very late, and the gag order is overly broad as it includes “every public employee of the City of Saratoga Springs, including elected officials," the resolution says.
For her part Heggen has said in published reports that the gag order came only after the city released police officer body camera video of the shooting. She said she feared the investigation would be compromised and that a fair trial, should one come, could also be harmed.
According to a CBS 6 TV report, the gag order precludes Saratoga Springs Mayor Ron Kim, Montagnino and any other elected or public city employee from releasing video, audio or transcripts of the Nov. 20 incident. Nor are they allowed to offer opinions, comments or speculation on the investigation.
“The breadth and depth of this order is incomprehensible,” Montagnino said.
[WRGB was the first to report the gag order. See their story here.]
Montagnino and Kim argued that the resolution condemning the gag order was necessary in order to “plant a marker” that says the city is unhappy with the order. They both argued that time is of the essence in these situations. Waiting only tells the court that the city is OK living under the TRO, the mayor said.
Commissioner of Public Works Jason Golub said he agreed with the need for the resolution and understood that the city wanted to move quickly, but he had only gotten Montagnino's resolution Monday afternoon himself and had not reviewed it.
Commissioner of Finance Minita Sanghvi asked city attorney Tony Izzo if he had seen the resolution to which he responded he had not. She asked if he could offer an opinion on it, and he said he could not.
Golub argued that the city was entering into a legal argument with the DA, the judge and the County, and they had to follow the law themselves if their legal arguments were to hold water. He added that the council was considering a resolution that was not on the agenda during a meeting that was not a regular city council meeting.
“There’s cutting corners, and then there’s really cutting corners,” he said to the council, adding that the vote on the resolution felt “irresponsible.”
At that point, the council agreed to another special meeting to consider this resolution. They will meet in the City Council Chamber at 3 p.m. Friday Dec. 2. By then, the city is hoping to have chosen an outside counsel to represent them in the hearing.
The full resolution...
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:
- 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;
- 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;
- District Attorney Heggen acted improperly in seeking to prevent the City from being heard on the TRO for a full month; and, most importantly,
- 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.