Saratoga Springs Mayor Ron Kim, his Deputy Angela Rella, and Public Safety Commissioner James Montagnino have violated the city's purchasing policies in the hiring of attorneys to pursue their fight with Saratoga County District Attorney Karen Heggen. [ see the previous post for background on this dispute ]
This post is based on documents received from the city using the Freedom of Information Law (FOIL).
The Solicitation
City purchasing policy requires that the city seek at least three quotes from law firms when seeking to hire outside counsel.
A Request For Quotes (RFQ) was sent out on November 29, 2022,to hire counsel to represent the city to appeal a restraining order issued against city officials after Kim and Montagnino held a press conference in the wake of a shooting on Broadway . The RFQ included a deadline of December 1, 2022, by which time all proposals had to be delivered to city hall.
According to the documents I received, there were only two responses to the RFQ by the deadline. One of the respondents withdrew, citing a conflict of interest. That left only one respondent, a law firm located in New York City.
I contacted that law firm, Benno & Associates, asking if they had heard from the city regarding their proposal. They emailed back, saying they had heard nothing.
As apparently the city did not award work to the single respondent, best practices would have required the city to record internally why the proposal was rejected. Assuming the city provided all the FOIL documents to me, there is no record explaining why the Benno offer wasn't accepted.
Kim and Montagnino Conveniently Ignore Required Deadline
In the February 1, 2023 edition of the Foothills Business Daily, Mayor Kim alleged that as the RFQ requires quotes from three vendors, and as the city received only two, that they were "required" to find a third. In the article, Montagnino concurs with Kim.
This conveniently ignores the fact that the city has established procedures addressing this situation which were ignored.
I spoke to the city's purchasing agent. According to her, the requirement is that the city "seek" at least three quotes. Even if the city receives less than three responses to their solicitation, if one of them is fully responsive to the requirements in the RFQ, the city can still make an award.
The purchasing agent was quite emphatic that no proposals submitted after the deadline could be considered.
I was told that if no proposals received prior to the deadline are deemed acceptable, the city must issue a new RFQ and start the process again.
The purchasing agent told me that no one sought her advice on how to handle the RFQ.
Based on the FOIL documents, on December 9, 2022, some eight days after the deadline, James Montagnino wrote to James Knox of the law firm E Stewart Jones, Hacker, Murphy as follows:
"Hi Jim!"
"Here’s the RFQ and related paperwork. The quicker we could get this the quicker we could move forward. Many thanks, Jim."
A reasonable person would deduce from this that Montagnino not only disregarded the deadline requirement, but he had also already made up his mind to hire the law firm before they even submitted their proposal, which would have included, among other things, the hourly rate they planned to charge the city.
The RFQ also required that all questions be directed to Angela Rella in the Mayor's office. The RFQ process strictly limits communications with bidders to avoid improper favoritism. The reason that all questions regarding the RFQ have to be in writing is that this allows the city to inform all bidders of information provided by the city in a consistent and fair manner. Any question the city would answer would have to be shared with all the potential bidders.
It seems clear from the email that Montagnino engaged in exclusive discussions about the potential work with E Stewart Jones, Hacket, Murphy.
On December 13, 2022, E Stewart Jones, Hacker, Murphy submitted their proposal. At that point, it was twelve days beyond the deadline.
It is unclear if the failure to properly adhere to the city's purchasing policies was due to ineptitude or a calculated act meant to deliberately circumvent those policies.
A Bungled RFQ Raises Questions Of Basic Competence
The actual RFQ put together by the Mayor's office is a study on how not to solicit bidders.
The RFQ was sent by email to fifteen bidders. According to an interview Kim gave to the Foothills Business Daily, Kim's office believed they needed a law firm that specialized in first amendment issues before the federal courts.
This explains why all but two of the solicitations went to law firms in New York City, Chicago, and Buffalo even though there are firms in the capital district that practice in the federal courts and that could address first amendment issues.
The problem is that the city did not need a law firm that would represent them in federal court because the due date referred to by Kim and Montagnino was to appear before a New York State court, not a federal court.
Five of the solicitations went to different lawyers at two law firms. Why one might ask, would you send more than one request for a quote to the same law firm?
The RFQ included that the total for the work could not exceed $15,000.00.
This would explain why almost all the law firms solicited did not bother to respond. The cost of travel would have made effectively representing the city for $15,000.00 problematic.
It is hard to understand how the person who crafted the RFQ didn't see that it was unlikely to get bids from firms as far away as Chicago.
A Further Oddity
One of the solicitations went to a not-for-profit photo journalist organization.
The Usual Silence
I wrote to Kim, Rella, and Montagnino, asking if they could explain the RFQ process they followed. They never responded.
A Problematic Assertion
At the December 16, 2022, City Council meeting, Kim and Montagnino pressed their fellow City Council members to approve the hiring of E Stewart Jones et al. They claimed that the court date was looming, and if they didn't secure a lawyer immediately, the city would have to "default."
Courts routinely adjourn court dates for a variety of reasons. If the city had advised the court of their lack of counsel, it would be highly likely that the court would have set a new date to allow them time to seek representation. Montagnino, who is an attorney, had to be fully aware of this. This is not the first time that Montagnino has tried to exploit the public's and his fellow Council members' limited understanding of the law and how the courts operate to get what he wants.
An Investigation
I have submitted a formal request to the New York State Comptroller's office asking that they investigate what appears to me to be a blatant violation of the city's purchasing requirements.
Why This Is Important
City Purchasing policies are our bulwark against the misuse of city funds.
This is such a blatant violation of the financial controls of Saratoga Springs' government that it raises the obvious question as to whether this is an anomaly or is part of a broader problem.
There is also the issue of a precedent. Even if this is the first time city officials have violated the city's purchasing practices, it is reasonable to be concerned about future abuses.
The Documents
From: Ameer Benno This email address is being protected from spambots. You need JavaScript enabled to view it.
Sent: Sunday, January 22, 2023 6:12 PM
To: trout21
Subject: Re: Proposal
Sent: Sunday, January 22, 2023 6:12 PM
To: trout21
Subject: Re: Proposal
I have no idea
On Sun, Jan 22, 2023 at 4:34 AM trout21 This email address is being protected from spambots. You need JavaScript enabled to view it. wrote:
I have a local news website covering Saratoga Springs events.
I FOILed the city for documents related to an RFQ issued on November 29, 2022 for legal services.
Only two proposals were submitted by the deadline. One was submitted by Harris Beach, a local law
firm. They withdrew their proposal citing a conflict of interest issue. That left your firm as the only
respondent.
I have a local news website covering Saratoga Springs events.
I FOILed the city for documents related to an RFQ issued on November 29, 2022 for legal services.
Only two proposals were submitted by the deadline. One was submitted by Harris Beach, a local law
firm. They withdrew their proposal citing a conflict of interest issue. That left your firm as the only
respondent.
Do you know why the city did not accept your proposal?
Thank you,
JK
JK
