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Close the Gaps In Open Government Law

Close the Gaps In Open Government Law

The continual struggle for open government
By
Editorial

This edition of The Star arrives during Sunshine Week, a once-a-year effort by the journalism profession to focus attention on the continual struggle for open government. Unfortunately, the last 12 months have not been good ones for the cause. Notable problems include the revelation that Hillary Clinton used a personal email server for official messages as secretary of state and may have destroyed important records.

In Albany, news that many, if not most, state employees’ email messages are to be automatically destroyed after 90 days angered critics. Gov. Andrew Cuomo is said to be reconsidering that directive, but 52 state organizations are reported to have already upgraded and consolidated emails into one new cloud-based system that permanently carries out the 90-day deletion policy.

Locally, compliance with the Freedom of Information Law is spotty, with requests from the public often languishing unfilled and overly expansive closed meetings the norm. Elected officials, from fire department commissioners to those in the nation’s capital, should do better. The White House requires that emails be retained for seven years.

In New York State, the law on official meetings and document access are a mixed bag, confirming the concept that government must operate on a presumption of openness but failing to impose penalties for noncompliance. This leaves the courts as a recourse for the news media and interested citizens, which may be too expensive or too daunting — and don’t doubt that local officials and their legal advisers know that.

For those who are unfamiliar with how it works, New York’s open government law covers two general areas. One concerns meetings by elected or appointed boards and basically means that any time a majority of a voting body gathers anywhere, for any purpose, it constitutes a meeting that the public is able to attend and at which minutes must be taken.

Limited exemptions allow for private strategy sessions during litigation or discussion of certain personnel matters, but these are roundly and frequently abused. Moreover, closed-door sessions themselves are supposed to be part of regularly convened public meetings, at which a majority must vote to close the doors and offer reasons why. This means that regularly scheduled executive sessions are really an oxymoron because they skirt these requirements, though we see them all the time.

The other realm of the state’s open government law involves records, basically anything at all, whether on paper or in an electronic form. With very limited exceptions, more or less any communication created or received by a government official is public and can be requested. But therein lies the problem: Many officials know there is little to no personal risk if they fail to comply and they sometimes do so so slowly that the information sought loses its value. Undermining this is the fact that state legislators’ records are not subject to this law; they should lead by example, as should the governor.

Reform is needed and must come from Albany. Points to be addressed include improving the appeals process when a document request is denied and putting an immediate halt to the 90-day automatic email purges. Better and more forceful limits on closed-door meetings would also be a help, as would efforts to inform elected officials and staff about what the law requires. But it also means that the public needs to figuratively pound on those closed doors and demand those records that should be available.

Citizens’ awareness of government is a fundamental part of a free society. Officials, whether through ill intent or simple ignorance of the law, cannot be allowed to block the people’s right to know.

 

Trouble in the Harbors

Trouble in the Harbors

Personal watercraft are not just another kind of small boat
By
Editorial

The East Hampton Town Board has tested the waters, so to speak, on allowing the operators of personal watercraft to launch them in several harbors where until now they had been prohibited. The East Hampton Town Trustees, who have an interest in some of the water bodies covered under the existing ban, are sure to weigh in, but the view in favor of allowing Jet Skis, WaveRunners, and the like to use town launching ramps centers on the observation that they are entitled to the same access afforded other small craft. This list might include kayaks, canoes, and increasingly popular stand-up paddleboards.

But personal watercraft are not just another kind of small boat. Rather, they are fast, loud, dangerous, smelly, and their operators too often push the limits. Consider that no matter where they are launched in East Hampton Town, they have to be held to five miles per hour until they are at least 500 feet from shore. Still, the drone they produce when being run flat-out even in the middle of a bay can be a nuisance, bringing to mind the annoyance rained down by the helicopters the town board is now trying to curtail.

For boaters, the sometimes inexperienced or thoughtless personal watercraft operators could add another hazard to already busy harbor channels. Add to that the question of increased trailer and vehicle parking at town launching ramps.

Right now just about the only place personal watercraft can be launched within East Hampton Town is at the open bay and sound beaches, where their trailers can be backed down to the water’s edge. During the late 1990s complaints about Jet Skis at Navy Beach in Montauk led to a summertime ban on four-wheel-drive vehicles there. If beach launches are now seen as a problem elsewhere, it is difficult to see how the solution would be to simply move them to the inner harbors.

There is a certain irony in the town’s entertaining adding more noise to the tranquil harbors at the same time that it is working on quieting the skies. East Hampton seems to be saying that it wants a quieter community in its support for limits at the airport and stronger quality-of-life enforcement. Promoting more noisemakers, ones that could create waterway traffic hazards at that, seems a big step in the wrong direction.

Why Montauk Matters

Why Montauk Matters

A capitulation to political expediency and a failure of leadership from Town Hall to Albany and Washington
By
Editorial

As the starting date nears for a United States Army Corps of Engineers project to build a giant artificial dune reinforced at its core with thousands of massive sandbags, it is critical that the public and policymakers understand what is really at stake.

The question is not whether to protect the handful of private and commercial properties believed to be at most immediate risk. What matters most in Montauk is whether hard-won regulations concerning the environment and management of the coastal zone will be ignored by officials at every level of government. What is unfolding in the rush to do something, anything, is a capitulation to political expediency and a failure of leadership from Town Hall to Albany and Washington.

Setting aside the opinion of a number of coastal experts that the project is doomed to failure and will leave downtown Montauk without a beach to spread a blanket upon, the way the plan has been handled undermines local and state law and, by setting a giant-sized precedent, virtually assures the collapse of meaningful environmental review of projects along the shore.

Time was that the State Environmental Quality Review Act, or SEQRA, was the first line of defense. However, in a September decision, the New York State Department of Environmental Conservation announced its view that the 3,100-foot-long project that would depend on nearly 200,000 tons of trucked-in sand will have no environmental impact.

Time was, too, that East Hampton Town’s own prohibition on coastal structures of this sort along the ocean was strictly upheld. But in an August memo, a senior town planner gave state officials all the cover they needed to dance around the ban. This throws into jeopardy not only East Hampton’s laws, but those of most East End towns and villages that adopted similar regulations. It was as if we all woke up and it was the 1960s all over again, when anything went.

Also not thought through is that the Montauk seawall is predicated on the idea that the Army Corps’s far larger Fire Island to Montauk Point Reformulation Plan will happen. This is dangerous for two reasons. Congressional approval of the money it would take is far from a sure thing, and, more significantly, it binds future leaders to a follow the Corps’s stand and fight approach, rather than admit that the only realistic course is retreat.

It can only be speculated why officials have been so willing to bend the law to make the Army Corps Montauk plan a reality. It could be that once the previous town board cast the die, the current members thought that they had to go along. That is no excuse.

 

A Brighter Energy Vision

A Brighter Energy Vision

The Reforming the Energy Vision plan is part of the Cuomo administration’s effort to radically modernize the New York power grid and reduce greenhouse gasses
By
Editorial

Close observers are seeing significant progress in New York State’s recent moves on alternative, nonpolluting energy. In late February the state’s Public Service Commission issued an outline for its Reforming the Energy Vision plan, with an aim of making New York’s electric grid cleaner, resilient in the face of natural disasters, and cheaper for consumers. This is extremely good news and dovetails nicely with a goal set by the Town of East Hampton to supply all of the community’s electric needs from renewable sources by 2020.

The Reforming the Energy Vision plan is part of the Cuomo administration’s effort to radically modernize the New York power grid and reduce greenhouse gasses. If brought to fruition, it will vastly improve electricity technology and reduce energy consumption.

Importantly, the plan reinforces rules that have been around since the 1990s that block the state’s utilities from owning their own generating plants. This will help ensure private, widely distributed systems, such as rooftop solar and wind, and encourage innovation through strong, free market competition. For Long Island ratepayers, this would leave PSEG to manage the electricity delivery system but allow residents and local governments to continue to explore green alternatives and continue to block utilities’ monopolistic tendencies. Think of PSEG and Con Ed and the like as the retailers, while a range of independent producers, from homeowners to local governments, will be the wholesalers.

There is a strong economic argument for dispersed private power production that centers on keeping more dollars in New York State, or even right here on Long Island. Coal, oil, and natural gas electric plants tend to be far from the areas of highest use, and the fossil fuels on which they depend come from even farther away. Though solar panels might be manufactured elsewhere, they represent a one-time expense. The installation and maintenance, particularly of home and small commercial systems, is nearly entirely a local affair and could be a job producer.

From an environmental perspective, the move toward nonpolluting power sources is imperative. Problems linked to generating plants include respiratory and other health concerns for their immediate neighbors, often people at the lower end of the income scale. Coal-fired plants are a major cause of the ocean acidification that is widely threatening marine species, including those in South Fork waters. And electricity generation accounts for about a third of emissions linked to anthropogenic climate change. Here on the narrow end of a rapidly eroding island, anything that can help reduce global warming and its attendant sea level rise should be strongly supported.

Summertime peak demand makes this is a very big deal in East Hampton Town. PSEG Long Island recently announced that it was seeking proposals for new South Fork power plants to help with surging use during the hot-weather months. The Reforming the Energy Vision plan, if quickly put into place, could force PSEG and the Long Island Power Authority, which oversees it, to look for nonpolluting options. This might include reversing a rejection last year of several large solar projects at town-owned sites and looking again at offshore wind.

The Reforming the Energy Vision plan indicates a long-sighted approach to electricity production and use in New York. We hope that its goals are speedily implemented.

A Different Noise

A Different Noise

By all appearances, the problem is a manufactured one in which some members of the subcommittee, those aligned with aviation interests, deliberately derailed the calculations in an effort to depict the proposed changes as costly to taxpayers
By
Editorial

The East Hampton Town Board should look beyond an apparent impasse on the airport’s budget and finance advisory subcommittee, which has stymied a financial review of planned limits on the noisiest kinds of aircraft.

By all appearances, the problem is a manufactured one in which some members of the subcommittee, those aligned with aviation interests, deliberately derailed the calculations in an effort to depict the proposed changes as costly to taxpayers. In fact, according to other members, the group tried to accommodate the dissenters’ demands for a minority report, among other things. However, when it became clear to the aviation side that a separate analysis would have had to be based on massaged assumptions that would not stand up under scrutiny, they just walked away from the process altogether.

As if on cue Tuesday, a lawyer hired by some of the helicopter companies that stand to lose a lucrative East Hampton route issued a statement. In it, he mischaracterized the deadlock, which, he said, “confirms the true economic hazards of the plan.” But this claim was based on no numbers whatsoever and should be suspect anyway, considering the source.

What is known and was previously acknowledged by the subcommittee as a whole is that the town’s plan to sharply limit helicopter flights would not result in financial Armageddon. In fact, the subcommittee told the town board late last year that fees would cover the expenses of running the airport and that long-term bonds could still be issued to pay for improvements.

One wild card described in that initial report, and repeated this week, was that legal challenges to new restrictions were likely and could be substantial. However, it is safe to say that town residents would be willing to shoulder the costs of litigation if quieter skies were the ultimate goal, and that the money need not come entirely from airport receipts.

In advance of a hearing on the proposed restrictions to begin this afternoon at LTV Studios in Wainscott, the East Hampton Town Board should not be dissuaded from the path it has set toward meaningful reduction in the number and frequency of the noisiest aircraft. This latest objection is just noise of a different sort.

 

Troubling Approach On State Email

Troubling Approach On State Email

In a world that now runs on email, it is difficult to imagine anything more immediately destructive to the interests of government oversight and an open society
By
Editorial

The latest in a string of shockers out of Albany came this week when it became known that the Gov. Andrew M. Cuomo administration had begun automatically purging the computers of state workers of email messages more than 90 days old.

In a world that now runs on email, it is difficult to imagine anything more immediately destructive to the interests of government oversight and an open society. For the news media and the courts, as well as ordinary citizens, the right of access to official documents and communications is absolutely fundamental to the separation of democracy from the siren temptations of authoritarianism. Other than those eager to cover up malfeasance or embarrassment, as well as to scrub the record in the face of a prospective presidential bid at some point by their boss, few could see this as even a remotely good idea.

First described by The Albany Times-Union, mass deletions of email messages began last week at as many as 27 state agencies and departments. In a statement already chilling to open-government activists, the governor’s new chief information officer wrote that the goal was a new, centralized, easy-to-clear email record “making government work better.” Nonsense. This is an attempt to make Albany more secretive than it already is and to help officials evade scrutiny when things go awry.

Few public initiatives take less than three months to complete, so getting rid of records at that point could well make the state’s work less efficient, not more, as important documents slip away. Allowing wholesale clearing of in-boxes will only make state officials’ jobs more difficult. Imagine the chaos as regulators have to think months back, perhaps to find out who may have received something of interest when a difficult task was tackled, and then circle around to get a replacement copy.

The state put out a list of categories of email that should be saved manually, as reported by ProPublica, but they covered conclusive or final actions rather than the process or reasoning behind them. In addition, the rules ran to an impossible 188 pages, itemizing 225 different types of records. Most troubling for the news media, plaintiffs, and outside groups, messages concerning administrative analysis, planning, and the development of procedures can be tossed out as soon as they’re “obsolete.”

The impulse for secrecy and to dodge accountability appears endemic on the American political scene from top to bottom. Former Secretary of State Hillary Clinton used a private account for much of her communication while in that post. Former East Hampton Town Councilwoman Theresa Quigley maintained a personal gmail address from which she circulated board agendas to a select group of supporters. In each case, they appeared able to skirt document-retention rules.

It is only by hindsight that the importance of some messages can even be known. Consider a recent example in the State of New Jersey, where, five months after an unexplained lane closure on the George Washington Bridge, the discovery of a brief email exchange pointed to its political nature. The details of this scandal could not have been lost on Albany’s executive chamber. Under the new Cuomo retention policy, had that email emanated from a New York office, it would likely have been deleted well before it and other damning communications could have come to light.

With regard to open government, New York State officials at all levels already find it almost impossible to comply with Freedom of Information requests. Allowing massive quantities of email to dissolve into the ether will make things worse. For example, The East Hampton Star has been seeking without success a key document from August sent to the State Department of State that apparently laid out a suspect legal rationale for the planned Army Corps of Engineers downtown Montauk erosion-control project. Could that have been among the records deemed not worthy of preservation?

The new state rules also contain a disturbing Catch-22. Although those that might be subject to a Freedom of Information request are to be preserved, such requests must be filed within the allotted 90 days. Seek something on day 91, and it will be gone, in most cases. Moreover, those seeking information from government often do not know exactly what documents they want, only the subject and approximate date. It would therefore make sense to save everything. Certainly, the Microsoft system the state uses has the capacity — up to 30 years’ worth of email, according to reports. Federal policy is to hold on to email for at least seven years, and permanently for executive staff.

If the wholesale destruction of email is allowed to continue, it will leave huge gaps in the record, diminish confidence in government, and hide wrongdoing. The policy must be reversed, ideally by the New York Legislature’s passing a bill that forces Mr. Cuomo’s hand.

Money Needed for Water Quality

Money Needed for Water Quality

Environmental damage from failed or inadequate systems is a problem that spans municipal borders
By
Editorial

Officials in the East End towns and villages are taking a new look at water pollution and suggesting that a regional approach might be the solution. They have proposed seeking as much as $100 million from the state for rebates on private septic systems or tax credits, acknowledging that environmental damage from failed or inadequate systems is a problem that spans municipal borders.

There have been other efforts too, and they are welcome. Suffolk County has initiated a test of new and improved nitrogen-removal units for home effluent. East Hampton Town is deep into a wastewater study of its own. The Town of Southampton has been an early leader, helping secure $2 million for a Stony Brook University program to develop new, effective wastewater systems.

The main problem with household and commercial wastewater, as well as fertilizer runoff, is its elevated nitrogen and phosphorus content. Both are essential elements, but when levels are too high, the environmental consequences are significant. They can cause harmful algae blooms, like those linked to shellfish collapses in the Peconic Estuary, and bacteria that can cause illness in humans.

Nitrogen is also seen as a leading cause of so-called dead zones, coastal areas where oxygen levels are so low that almost nothing can survive. This is known as hypoxia, and it has been identified as a culprit in the nearly complete loss of the essential eelgrass habitat in most East End bays and harbors. Perhaps less well understood, but of potentially massive impact, are changes in the oceans’ nitrogen cycle, which have the potential to alter the marine environment on a global scale. We are, in short, killing the seas with every flush.

Enhanced treatment of wastewater is seen as the solution. But improved septic systems can be prohibitively expensive for homeowners, and competing demands for funding are a constant for the operators of municipal sewage treatment plants. A recent study in East Hampton Town alone found at least 1,700 individual septic systems in need of correction and that number is likely to climb when examination of additional watershed properties is completed. The cost to retrofit a single private system to curb nitrogen and phosphorus could be as much as $40,000, according to the study’s author.

One idea for dealing with wastewater pollution has been to take money from the community preservation fund. As we have argued before, this should be a last resort. History has shown that when public officials begin to dip into dedicated funds, they will seek to raid them again and again for all manner of purposes. Think of former East Hampton Town Supervisor Bill McGintee’s bleeding of the C.P.F. to secretly balance the town’s budget, and Suffolk Executive Steve Bellone’s refusal to repay money owed to the county’s drinking water protection program.

The 2-percent C.P.F. tax on real estate transactions should remain out of bounds, and alternate funding found. Tapping the preservation fund for septic system rebates, which could have the unintended effect of increasing residential density by reducing groundwater contamination on individual sites, would be a net loss for the region. On the flip side, using C.P.F. money to buy land and prevent development in important watersheds, as East Hampton has done around Lake Montauk, for example, is the right approach.

Because East Hampton’s wastewater consultant also sells name-brand septic upgrade equipment, we have to wonder about his advice against hoping for money from state or federal sources to fight water pollution. On the contrary, while East End town and village officials should seek to fund interim work at home, we believe a collective effort to obtain state and federal funding is warranted.

 

Battle for Beer

Battle for Beer

The bros are fine; the beer not so much
By
Editorial

Of all the battles the East Hampton Town Trustees could be joining, the one in which a majority appears to be fighting for the right of bros to drink at Amagansett’s Indian Wells Beach is one on which they should have taken a pass.

If you are uncertain what bros means, the term comes from the millennial vernacular and describes young men who can put good times and camaraderie above common sense and courtesy. This is not to disparage the bros; in fact, we were them at one time too. The problem is that in summers past there have been too many at that particular beach and their alcohol-lubricated presence has made many longtime beachgoers feel unwelcome. The bros are fine; the beer not so much.

Over at Town Hall, there is a sense that a trial daytime alcohol ban put into place last August at Indian Wells should be revived for the coming summer. From what we hear, some trustees oppose the idea and may object. This feels misguided.

The trustees need to remember that this is not Daytona Beach at spring break. East Hampton is a second home to many of the voters who put the trustees in office, and their wish for a family-friendly, safe, and inviting beach must take precedence over what may be an anachronistic idea about liberty and the freedom to enjoy a beer wherever and whenever one wants. Maybe the trustees never actually saw Indian Wells in full swing, before the trial alcohol ban. We did on several occasions, and let us tell you, it was crazy and not all that nice to be around.

Frankly, it may be time for the town board to look at prohibiting alcohol on the Montauk beaches as well. Early morning there last summer often revealed unacceptable heaps of empty beer cans and other debris. And, as the trustees have said, clamp down at Indian Wells and the party will just move elsewhere.

Town officials, whether on Pantigo Road or in the trustees’ headquarters in the Lamb Building in Amagansett, must again ask in whose interest they should govern. Promoting daytime bacchanals on our glorious beaches is not of broad public benefit.

Underground Loophole In the Village Code

Underground Loophole In the Village Code

Vast underground warrens
By
Editorial

In an interesting development, the Village of East Hampton’s code enforcement officer and fire inspector has suggested taking a hard look at basements. The issue Ken Collum identified and asked the village board to consider regulating is that a growing number of property owners are including vast underground warrens in building or reconstructing houses. They can do so because the village code does not require basement square-footage to be calculated in the size of a house. The loophole is resulting in bedrooms and other amenities beyond what would be allowed if they were aboveground.

Why this matters may not be immediately obvious, but it is. Land is finite here, as is the ability to handle growth. Infrastructure needs increase with every additional person that is shoehorned onto the South Fork. This includes water use, electricity, waste flow, and the traffic generated by the service personnel needed to keep it all tidy and in working order. And the impacts can extend far beyond the village boundaries. Think for a moment of the slow-moving “trade parade” of vehicles, which is now year round. Though some in real estate and those looking to profit from “flipping” ever-larger houses may disagree, limits are in everyone’s best interest over the long term.

Knowing Mr. Collum as we have for quite a few years, we can say with confidence that if he says something is a problem, it really is a problem. During a village board meeting on Feb. 5, he described residential rebuilding projects being taken to legal limits in terms of floor area and basements that defy the traditional understanding of the word, including some that extend out under lawns and driveways.

The village board plans to appoint an informal group to study the big-basement trend and perhaps write new rules to confront it. Central to the undertaking will be an honest look at just how many people and how much traffic the village can reasonably accommodate. The battle for preserving East Hampton Village may now be moving underground.

 

Public Support Needed For Lofty Ocean Plan

Public Support Needed For Lofty Ocean Plan

New York’s Department of Environmental Conservation is accepting written responses to the draft until March 9
By
Editorial

The world may be undergoing a sixth great wave of extinctions, as recently examined in a book by Elizabeth Kolbert, and this phenomenon may well extend to the seas, including those off our own shores. Symptoms include coral reef degradation, finfish population crashes, toxic algae blooms, and the slow loss of once-familiar and economically vital species. New York State has responded by drafting a 10-year Ocean Action Plan, but the document, while extensive, offers no source for the money needed to address its ambitious goals.

New York’s Department of Environmental Conservation is accepting written responses to the draft until March 9. Hearings at which the public can comment in person will be held on Tuesday at Operation Splash in Freeport and next Thursday at the Long Beach Public Library.

Though billed as a plan for the state’s ocean waters, the draft’s authors describe an integrated ecosystem that extends from upland watersheds to streams and brackish estuaries, into inshore bays and harbors, and then to the Atlantic itself. In this vast and varied environment, the authors set 61 goals for ensuring ecological integrity and sustainable development, avoiding commercial exploitation, and responding to climate change while involving the public in decision-making.

The missing funding is no minor matter. New York’s budget for the environment has been gutted at a time when pressures on it from all sides have multiplied. Among the projects contained in the draft for which money has yet to be set aside are removing impediments that block fish spawning runs, controlling pesticide runoff, and evaluating sewage outfalls. Determining the cause and what can be done about plummeting lobster catches is also on the list, as is a study to understand the impact of ocean acidification on shellfish.

Also on the to-do list, but not yet paid for, are a study of winter flounder declines, deep-water coral and sponge management, a study of seabirds, a baseline ocean monitoring system for the New York Bight, removal of marine debris, and better dredging oversight, as well as public education. One key area for which money is needed is an effort to update local planning practices to include coastal resiliency strategies to minimize the impacts of extreme weather events and sea-level rise.

Key tasks for which money has only partially been secured involve reducing the accidental bycatch of marine mammals, turtles, sea birds, and the endangered Atlantic sturgeon, for one. A horseshoe crab study needs more funding, as does work on underwater noise. The 18 areas the report’s authors consider already paid for tend in most cases to be more advisory than actually occurring. The heavy lifting on saving the marine environment has yet to be done.

The failure to find the needed money cannot be put onto the Ocean Action Plan’s authors. Rather, it is the responsibility of Gov. Andrew M. Cuomo and the State Legislature. As the threat of climate change increases and coastal development continues without adequate restraint, the will must be found in Albany to do more. A strong public outcry that the Ocean Action Plan must be made a priority for New York would help.