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What you need to know for 06/23/2017

News leak cited in testimony on dismissal of city clerk

News leak cited in testimony on dismissal of city clerk

In an e-mail he wrote the day before he and council allies formally voted on Jan. 2 of last year

In an e-mail he wrote the day before he and council allies formally voted on Jan. 2 of last year to fire veteran city clerk Gary Margiotta, former Councilman Lance Gundersen said one of the “biggest” reasons for the decision was a belief that Margiotta was leaking information to reporters.

The explanation differs from a public version he provided two months before he was defeated for re-election in 2007. In that version, which he said had been cleared by the city’s law firm, he said Margiotta’s job performance was weak.

Contents of that e-mail and others in which Gundersen said he felt used and considered actions in this matter by at least one council ally as devious were revealed in the recent deposition testimony filed with the court by Margiotta’s attorney, Robert Elmer Keach III.

Margiotta filed suit last year in U.S. District Court seeking unspecified compensation for wrongful dismissal. He served in the clerk’s office for almost 17 years until Mayor Tim Hughes and Councilman-at-large James Handy unexpectedly went to his office Dec. 29, 2006, and had a police officer escort him from the building. Handy and his three council allies, who conferred on the telephone Dec. 28, took a formal vote Jan. 2 to dismiss Margiotta.

Keach declined comment on the contents of Gundersen’s deposition. The city’s lawyer, Gregg T. Johnson of the Albany firm of Girvin & Ferlazzo, said he cannot discuss the deposition but added that he considers Keach’s release of the document a violation of the protective order issued in federal court. Johnson said he will complain in motion papers before Judge George H. Lowe.

In the deposition, Keach asks Gundersen about his e-mail explanation for the firing. “I recall putting forward a portion of it, but I’m not really sure it was complete … I was a little anxious during that time period,” he testified. Gundersen said he was also troubled by what he called Margiotta’s outbursts, later citing an incident in which Margiotta protested the council’s decision to reject his request for a new copier.

When Gundersen said he had no proof Margiotta ever disclosed information to reporters, Keach responded: “this reason you put forward in your email for firing Mr. Margiotta after 16 and a half years of service … was just supposition and speculation on your part.”

Gundersen did not concede that point, but said, “the basis would be the fact that information was finding its way into the media that should not have been finding it there … and there was only one real person who could provide that information.”

It is Keach’s contention that Margiotta was fired because he continued to fill the numerous freedom of information requests filed with him by former councilwoman Shirley Savage, who often used the information to criticize officials and policies.

Gundersen’s testimony clarified what transpired Dec. 28 when Handy called former council members Gundersen, Cynthia Morey and Lou Ann Warren to reach a consensus on Margiotta’s future.

Gundersen recalled getting the call on his cellphone while heading home from work. He pulled over on Route 29A to take the call in which he said Handy asked him if he were planning to vote to reappoint Margiotta.

He recalled Handy saying it appeared Margiotta might not keep his job. “And I said, ‘well, if I had to vote today, my vote would be no.’ ”

Gundersen said he asked Handy if he were going to call the other three council members [the opposing voting block] “because it looked pretty bad if he was only contacting those that he normally gets along with … and he said, yes, yes he was planning on contacting everybody.”

Handy never called the other three, and to this day they have not been given an explanation about what led to the firing, they have said.

Gundersen said he and Morey were a bit surprised when they learned that Handy and Hughes used the telephone consensus as the basis to remove Margiotta on Dec. 29.

“I got the impression that both of us had a sense of impending doom … that it was a decision that probably was going to have some fatal consequences.”

In other e-mails, Gundersen revealed his anguish over the negative public reaction to the firing. He blamed the media, related that he and Morey discussed attributing the decision to concern over Margiotta’s health and said he suggested to colleagues that they reconsider and reappoint Margiotta on a probationary basis.

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