June 2021 TCCOG Report

Monthly Report

Tompkins County Council of Governments

for June 9, 2021

by Councilperson Robert Lynch, Enfield TCCOG Representative

The Tompkins County Council of Governments (TCCOG) has not met since our May report.  However, TCCOG’s Broadband Committee held a special meeting Friday, June 4th specifically to discuss the extent to which confidentiality should apply to the County-sponsored, yet municipally-funded research by the Southern Tier Network (STN) and Fujitsu consultants, including those findings included in the final report that consultants may hand up later this year.

On May 18th, Interim County Administrator Lisa Holmes, County Attorney Jonathan Wood, and Katie Borgella, the County’s Commissioner of Planning and Sustainability, wrote a memo to TCCOG Broadband Committee members.  The memo urged strict nondisclosure of the study’s evolving work product, as disclosure might infringe upon STN’s eventual ability to construct a county-wide broadband network.  The memo included as items subject to nondisclosure:  (1) the proposed miles of new infrastructure STN might build, (2) maps of where these new cables might be run, (3) whether the lines would be overhead or underground, (4) the “proposed network architecture and technology specifications,” and (5) the project’s design, engineering and construction costs.  The memo indicated that consultants would not even share such details with the Broadband Committee.

In the memo, County Attorney Wood argued that the County’s “memo of understanding” with the consultants had specified “which aspects of the study would be shared with the public and which aspects are considered proprietary and confidential between the County and the Consultants.”  Wood had maintained such nondisclosures are both “common practice” and “necessary” in consultant negotiations so as to protect the consultants’ “legitimate confidential business concerns.” 

I specifically requested the June 4th Broadband Committee meeting to discuss whether the County’s circumspect preferences might run contrary to New York’s public disclosure and open meetings laws.  With the County preferring Broadband Committee meetings be closed to the public, and neither publicized nor recorded, I questioned whether the County and the consultants expected me and other Committee members to keep secret—and share with neither the public nor this Town Board—key elements of the unfolding consultants’ research, facts that we would otherwise subject to public oversight.   For an hour and twenty minutes, the Broadband Committee weighed the limits of proper disclosure, but failed to reach a unified position on going forward.

As background, last October the Enfield Town Board, like most other rural municipal boards, allocated $5,000 toward an $80,000 County-commissioned study aimed at extending broadband Internet to currently unserved or underserved areas.   Enfield has not yet paid this money.  And for reasons I will later discuss, we may not.  The consultants’ study would include a market assessment, design analysis, and a financial plan, though not an actual buildout.

However, in recent weeks, municipal representatives have come to question the study’s thoroughness.  Both the Towns of Lansing and Newfield have commissioned road-by-road surveys as to where broadband cables exist and where they do not.  On May 27th, the Newfield Town Board appropriated up to $4,000 for its survey.  To provide STN/Fujitsu sufficient specificity, Enfield would likely need to spend an equivalent amount.

At the Broadband Committee’s June 4th meeting, Commissioner Borgella suggested that once STN and Fujitsu had finished their work, their report might go directly to the County Legislature and avoid public release.   The County Legislature might then hold the report in confidence until such time that it announced a Request for Proposals (RFP) to build out the governmentally-run system.

Questions raised at the Friday meeting took several directions.  Given the consultants’ penchant for confidentiality, I questioned whether the parties’ primary goal here was to facilitate broadband expansion or “to enhance STN’s business model.”   I received no clear answer, most officials implying the goals were likely one and the same.

Joe Wetmore of Lansing urged that consultants inform municipal officials of their ongoing findings even if those officials could not inform their constituents.  County officials responded that keeping secrets among a group as large as the Broadband Committee could prove difficult.  I responded to Wetmore that municipal nondisclosure could run contrary to Open Meetings Law requirements and governmental obligations under FOIL.

County Attorney Wood acknowledged that “the drafting of the law is imperfect” as to what a municipal board can hold in confidence and what it cannot.  Wood maintained that public disclosure laws, relevant to FOIL, allow nondisclosure of information that might inflict upon a party “substantial injury.”  Open meetings laws, in contrast, provide very few and limited exceptions to public officers’ obligations to discuss matters in public.  Nonetheless, those officers can be sanctioned—or presumably, even sued—for publicly sharing confidential information.  Wood conceded that the two pertinent laws do not mesh very well.  His explanation left us with few bright line rules.

Perhaps most significant was Danby County legislator Dan Klein’s observation.  Klein argued that a study into broadband expansion should be a county-wide obligation, not one assigned to—or even necessarily funded by—the various towns.  Klein suggested that if any town felt uncomfortable with the confidentiality policy or with the study’s overall objectives and progress, the municipality could withdraw its funding commitment and County Government could—and should—pick up that municipality’s share.  I responded to Klein that Enfield might be among those municipalities accepting Klein’s offer.

Based on both the course of Friday’s discussion and the potential need to underwrite supplemental road-by-road field work as Newfield has done, I would suggest that our Enfield Town Board weigh its options to determine whether we choose to proceed as a continued partner in the STN/Fujitsu study and whether we should pay the $5,000 previously promised as our Town’s share.

Nick Helmholdt of the County Planning Staff admitted the consultants’ study stands “a little behind its initial time line,” an ambitious one.  STN and Fujitsu in April had predicted a mere 120 days to finish their work.  Helmholdt now predicts work will be “wrapped up by the end of the year.”

But as Lansing’s Wetmore remarked as Friday’s meeting closed, “Where do we go from here, since I don’t think that we resolved anything at this meeting.”

Respectfully submitted,

Robert Lynch, Councilperson

Enfield TCCOG Representative