I write the Adirondack Park Agency Reporter, an independent newsletter covering the actions and deliberations of that regional zoning agency. I have published it continuously and single-handedly every month since December 1991.

The newsletter does not take positions for or against projects, attempting only an accurate and complete portrayal of the APA's public discussions, data sources and history of past projects.

However, when it appeared that the Adirondack Club & Resort was headed into the totally secretive process of mediation, I felt it necessary to petition for party status in the interest of the right of the public, through the press, to be fully informed. The issue of secrecy is not a trivial and purely bureaucratic matter. Mediation as proposed disallows any media coverage, and all participants are sworn to complete confidentiality. Whatever one's position might be on the project, it can never be in the public interest to have it discussed and debated behind closed doors.

In my petition, I argued that the word "mediation" and any possible synonyms don't appear in the APA Act or its rules and regulations and that going into mediation would flout the APA commissioners' vote to direct it to a public hearing under its own laws and regulations.

I also pointed out that previous attempts to use mediation in public hearings had raised the same questions among some commissioners and staff about the APA's authority to use that process and in the end mediation had only served to confuse and delay those projects. The term "public hearing" says it very plainly, the operative word is "public."

The APA staff attorney opposed my petition, as did the applicant, and Administrative Law Judge (ALJ) Daniel O'Connell denied it. I then appealed the denial before the APA commissioners of whether mediation should be conducted in the context of a public hearing. My appeal was also denied, so mediation continues to go forward.

The word "mediation" might sound like something harmonious, that it means peacemaking and finding "common ground." It is nothing of the sort. Mediation is going to alter the course of this public hearing in a materially significant way, as pressures can too easily be brought to bear when attempting to resolve controversial aspects of the project out of public view. Since not even the agendas will be made public, if some aspect of the project comes up in which some member of the community or a different organization might want to intervene, they will have no way of knowing that the issue has been raised. This is also an issue that can affect the course of future public hearings, as it is sure to serve as an APA precedent.

At the March 11 pre-hearing, a number of additional disturbing provisions were added to the proposed mediation protocol. As if mediation in and of itself isn't secretive enough, it would allow "caucuses" whenever some party wanted to converse with one or more other parties, leaving out the other participants but possibly including the ALJ and APA staff. It would allow meetings outside of the mediation sessions, without having to include all parties.

Attempts are being considered to make an end run around the Freedom of Information Law (FOIL) by characterizing discussions as "trade secrets." Elaborate contortions are being proposed to gut the Open Meetings Law by finding a way to let local government bodies discuss the mediation in executive sessions. This puts into question whether local authorities would even be legally able to participate in the process, which would leave the outcome in entirely private hands. Finally, no records will be kept of the proceedings, and any notes taken by government bodies will either be destroyed or classed as "internal documents" or "work product" so not to be available under the FOIL statutes.

The role of APA staff is to "act as an advocate for a full and complete record upon which an informed decision can be made." APA commissioners are segregated from the process once they direct a project to public hearing and have no way of questioning this mediation protocol.

The APA commissioners should be allowed to hand off their decision-making role to parties who will negotiate in secret. Mediation cannot possibly "further the purpose of the hearing," as it privatizes what is supposed to be a public process. It is ironic that I wrote this during "Sunshine Week," dedicated to open government and an informed citizenry.