Westerlo rejects report, sets hearing for hydrofracking moratorium

WESTERLO — The clerk in charge of releasing town information to the public said yesterday she is getting conflicting messages about whether or not to release a committee report on hydrofracking.

“I would ask counsel on it, because I’m not sure,” town Clerk Kathleen Spinnato told The Enterprise Wednesday of whether or not she would grant Freedom Of Information Law requests for the report. “I’m getting conflicting things from both sides.” Spinnato handles FOIL requests for the town.

Councilman William Bichteman suggested during the July 2 town board meeting the report of what a committee appointed to study hydrofracking is recommending to the town not be released to the public until revised, calling it puzzling and, in parts, suggesting opinion. Requests for the report already granted, he said, were done so in error.

Bichteman told The Enterprise yesterday, however, that he believes requests for the report should be honored. The associate director for the state’s Committee on Open Government says the report should be available.

The town board voted, 3 to 2, during its July 2 board meeting to reject the report. It also scheduled, for July 25, a public hearing on extending a gas-drilling moratorium. The July date was made to avoid the expiration of a current year-long moratorium in effect since August 2012.

“The section about the Berne scenario is not factual,” Bichteman said, describing his reservations about the report, which he called informative overall.

“It’s hard to tell what is a resource material and what is a summation of the facts,” he said. Supervisor Richard Rapp and Councilman Anthony Sherman voted with Bichteman to revise and not accept the report. Theodore Lounsbury and Alfred Field, who chaired the committee charged with creating the document, opposed the motion. All of them are Democrats.

A year-long moratorium on gas-drilling, passed in August 2012, describes the committee’s purpose: “To assemble factual and scientific information regarding the hydrofracking process and all its related activities, and to report to the Board with a recommendation regarding gas drilling and, in particular, hydrofracking.” The board, it says, must then make a determination on the issue within the town; state law does not allow a public referendum on the matter.

The recently proposed moratorium describes a 148-page report that provided “objective data,” on hydrofracking and its impacts.

Hydraulic fracturing uses sand, chemicals, and large volumes of water under high pressures to break apart shale formations, releasing natural gas thousands of feet underground. Westerlo is located on part of the Marcellus shale formation.

Several residents have frequently questioned the board on the report and the issue during town meetings.

“I find the report to be substantially biased in favor of the industry,” said Dianne Sefcik, who has spoken critically at town board meetings of hydraulic fracturing and the process by which the report was created. She has also expressed these views in letters to The Enterprise editor. Sefcik submitted a document to the board at its July meeting, requesting that it be made part of the record.

Sefcik obtained a copy of the Westerlo report through a Freedom of Information Law appeal. Her initial request for the report was given a denial similar to the one given to The Enterprise for its June 21 request:

“As announced at the June fourth town board meeting, the town board is currently in the process of reviewing the report before any distribution of the document, therefore I am unable to complete your request at this time,” wrote the town’s records officer, Town Clerk Kathleen Spinnato, in response to The Enterprise’s request.

Sefcik declined to share her copy of the report with The Enterprise, writing in an e-mail that the board’s July 2 vote “seems to me a significant step in the right direction.”

Bichteman explained on Wednesday that he felt requesting the report was “a disservice” when it is not complete.

“The status of the document as ‘draft,’ or as ‘something we haven’t yet reviewed’ is irrelevant to the analysis,” assistant director Camille Jobin-Davis of the Committee on Open Government told The Enterprise. “What is important is whether or not there is factual or statistical information in the document.”

The law allows requests for intra-agency materials to be denied if the materials are not “statistical or factual tabulations, or data; instructions to staff that affect the public; final agency policy or determinations; or external audits.” Jobin-Davis considered the Westerlo report an intra-agency document accessible to the public and said that any opinion in it can be redacted before making the report available.

Spinnato told the board at its July meeting that the town did not have a designated FOIL appeals officer. The Enterprise has appealed its denied request, which Jobin-Davis advised.

“You can’t just label it private; there has to be basis in law for denying the record,” she said.

Bichteman said Wednesday releasing the report to the public before it is revised could cause views on fracking to be formed on misrepresented information.

“I take offense that the FOIL requests were there; it becomes a stick in your face,” said Bichteman at the meeting. He later added that it is difficult to dedicate enough time to all the work of a council member. “It’s almost like it should be a full-time job,” he said at the meeting.

Bichteman said the board has found relief in its twice-monthly work meetings established in April, where residents don’t “legislate from the gallery.”

“The truly representative way to do it is to contact your representative,” he said.

Later in the July 2 meeting, Sefcik commented, “I really appreciate the way Supervisor Rapp conducts these meetings, giving everyone a chance to speak.” Resident Anita Marrone agreed and the score of people in the gallery applauded.

Other business:

In other business, the town board:

— Voted, 5 to 0, to advertise for a new member of the board of assessment review, which hears grievances from property owners in town;

— Postponed the approval of the training of town Assessor Peter Hotaling.

“I want to wait,” Bichteman said. “I’ve never met the man. I’d like to at least talk to him”;

— Voted, 5 to 0, to hire Doug Story as a water district operator. Story oversees the water treatment for the neighboring town of Rensselaerville. He will receive $26,000 for the part-time position with no benefits. Bichteman said this is $9,000 less than the town’s current cost.

“We don’t have to pay the shared cost for certification and credits,” he said. Story would also work on repairs to the system for a separate $45 per hour;

— Voted to accept the resignation, effective on July 31, of Robert E. Fisher, financial auditor for the town for 21 years;

— Heard Councilman Bichteman speak about the town’s attorney, Aline Galgay, and her presence at meetings, which residents have requested. In the three other Hilltowns, town attorneys attend meetings.

“The town attorney’s not an elected official,” said Bichteman, stating the town board asked Galgay not to attend for the sake of having more productive meetings.

Prior to a year ago, Galgay attended regular town board meetings and frequently spoke. Bichteman said residents questioned her instead of board members.

“You expect her to represent the town,” Bichteman said to the gallery. “All you hear is that she’s running things. You can’t have both.”

If the town’s attorney isn’t present during board meetings, resident Leonard Laub asked, how can she advise the board of the legal consequences created by its decisions during meetings?

“Generally, I haven’t seen anything the town signs contractually,” said Bichteman.

“If we were concerned that we were changing the legality of it,” Councilman Anthony Sherman said, responding to Laub, “we would hold open the public hearing and ask for a meeting with the town attorney.”

From the gallery, resident Anita Marrone suggested the town use a second attorney to be present at meetings.

“The questions were directed to the entire board and she would intercede and interrupt,” Marrone said of when Galgay was present.

Edwin Stevens, who sits on the planning board, said he prefers meetings without Galgay.

“I didn’t need somebody to try to mediate what I had to say to the board,” said Stevens.

— Heard from Highway Superintendent Keith Wright that a 1973 Champion 710 grader from the town of Durham was set aside for Westerlo at a price of $30,000 until Consolidated Highway Imporvement Program’s aid arrives in August. The board voted, 5 to 0, to approve the purchase;

— Was asked by resident Eugene McGrath to comment on Westerlo’s low score of 3.3, compared to 43.3 for neighboring Greenville, in a fiscal stress rating from the state’s comptroller.

“I have no idea what you’re talking about,” Rapp responded. He later said the Federal Emergency Management Agency has yet to pay $400,000 of the town’s borrowed money for post-Irene projects;

— Heard resident Patrick Kosorek ask about a “Second Amendment preservation ordinance” he submitted to the board in April. Bichteman asked, if the board passes the ordinance, which claims to nullify existing federal and state laws more restrictive than the Second Amendment, how would the town afford to defend its law in court against the state?

“It’s beyond our means; it’s beyond our scope,” said Bichteman;

— Heard Marrone suggest members of the public be allowed “to interject” at the work meetings the town board has held twice each month for the past few months, and that they be a little longer.

Bichteman responded, saying the board has been discussing employees in executive session. “It involves personal privacy and some things we can’t talk about.” He also said the board has been dealing with “pending potential litigation.”

Bichteman said Wednesday the issue involves a town employee, but would not comment further; and

— Voted, 5 to 0, that newly hired employees will be subject to pending changes to the town’s employee handbook being revised in work meetings. The motion, made by Sherman, prevented new employees from being subject to the town’s handbook from 1997.

More Hilltowns News

  • The Berne-Knox-Westerlo Board of Education is putting up for a Nov. 2 vote two propositions for capital projects — for $15 million and $5 million. After a lengthy debate over whether the capital project was a “blank check” or a means of improving student education, three board members voted yes, one voted no, and one abstained.

  • At Berne-Knox-Westerlo, a new program will teach students the many aspects of agriculture, from water pH to horse care.

  • Following the closure of Rensselaerville Volunteer Ambulance, the Albany County Sheriff’s Office has had to offer an ambulance with an emergency medical provider as well as a paramedic in a fly car. This has led to an increase in the costs for the three Hilltowns served: Berne, Westerlo, and Rensselaerville.