After criticism, APA backs down on public comment restrictions

Agency contends it exceeds requirements of Open Meetings Law

By Gwendolyn Craig

After receiving hundreds of comments lambasting the Adirondack Park Agency for proposals to limit its public comment opportunities and shorten the review of policies, staff and board members back-tracked.

The agency has been in the spotlight over its transparency – making strides in some areas by releasing more information on its website, and falling behind in others, including a recent scolding from a state Supreme Court judge over its “one-sided” presentations.

Its latest round of critiques came after staff proposed removing public comment at the start of its full-day meetings and shortening the deadline of when it could consider written comments, among other changes.

APA Counsel Chris Cooper suggested the board vote on the changes in March when they were originally proposed, but board members were confused and concerned about the public’s reaction. In their monthly meeting Thursday, they instead chose to send the revisions out for a 30-day public comment period.

Some staff and board members bristled at the deluge of criticism. Brad Austin, an APA board member and the state’s Economic Development Department designee, asked Cooper to tell the board how the “agency probably exceeds” requirements of the state’s Open Meetings Law. He praised how much information is now available online. 

Minutes before Austin spoke, APA staff struggled to get the webcast of the meeting working and announced that the building’s Wifi was down. Later, the agency not only excluded the public from an executive session, but locked out the Explorer and others attending the meeting from the APA building. It was the third meeting in a row the agency cast the public out of its Ray Brook headquarters while the board met for a combined lunch and executive session to discuss pending litigation.

Previously, the agency notified a former employee he must stop including information he picked up while employed in his public comments.

“I feel like it would be good context to say we don’t have to do public comments at the start and end of the meeting,” Austin said. “We already go above and beyond what we’re required to do.”

Cooper said no public comment period is required of the agency. According to the Open Meetings Law, “a public body shall provide an opportunity for the public to attend, listen and observe meetings in at least one physical location at which a member participates.”

“It’s been around throughout the history of the agency to recognize the public input. Yes, it’s not absolutely required under the law, but it’s definitely good practice and something this board has done consistently because of that.”

— APA Counsel Chris Cooper

Public comment changes

The public may now continue, as usual, to comment at the start and end of APA meetings. Originally staff had proposed nixing the first public comment section to simplify the process and prevent ex parte issues, Cooper said. 

Written public comment submissions were also clarified. The APA will post its agenda two weeks ahead of a meeting rather than one. Written public comments that the board will consider before an upcoming meeting must be submitted by 4:30 p.m. on the Monday before. Cooper said this deadline is “a fallout from the Lake George Association litigation” over the agency’s issuance of an herbicide permit to the Lake George Park Commission. 

“We got a lot of public comments at the last minute,” Cooper said. “The court then criticized the board for not reviewing that. … It’s a catch 22, and we’re trying to fix that by making sure that staff and you as board members have the time to truly consider that comment coming in.”

Policy changes

The board unanimously passed changes to its policy on policy making. Cooper said the original goal of shortening the three-meeting review to one meeting was to simplify the process. 

Now, the policy on policies clarifies two scenarios. One is for “ministerial changes,” such as editing meeting minutes or changing the name of a policy. Those changes may now be made in one meeting instead of three.

“Non-ministerial changes” are those that “affect the substantive rights of the public under the laws and regulations administered by the agency.” Those policies will be reviewed over two meetings instead of three, allowing for a public comment period in between. The board still has the discretion to increase the amount of time to consider “non-ministerial” policy changes.

Transparency

Jerry Delaney, executive director of the Adirondack Park Local Government Review Board, said the policy proposals and feedback provided APA “a lesson on how important the people of this country take their public comment.” He thought the board could have been more prepared in March when the proposal was first brought (the board had no April meeting). 

Since Gov. Kathy Hochul announced state agencies should work on transparency plans, the APA has made notable improvements to its website.

Project site plans for applications undergoing public comment are now posted online. Application records for projects the APA board is slated to vote on are posted prior to the meeting. Full presentations and meeting materials are available to the public. As with most state agencies, Freedom of Information Law records requests may now be made through an online portal.

Board members noted how in the past, they received thick paper packets of meeting materials and very little was available online. Board member Art Lussi recalled getting print-outs of public comments as the monthly meeting was underway.

But the board and staff have also been under fire for not releasing the agency’s historical records pertinent to another policy question discussed at several meetings. It involves what constitutes a material increase of roads in wild forest areas. After receiving several letters from former APA staff, current APA staff released one 1996 memo.

Peter Bauer, executive director of Protect the Adirondacks, thanked Chairman John Ernst on Thursday for directing staff to do that. He called on Ernst to release even more information.

“Meeting, after meeting, after meeting we’ve listened to the board members recite factual errors,” Bauer said. “They’re not corrected by the staff, the capable staff at the APA or the DEC. That’s very frustrating for the public to watch this, when we know the legal expertise is there and the historic documents are there that could shed light on this.”