Wednesday, March 23, 1994

1473 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 March 23, 1994 11 11:56 a.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR HUGH T. FARLEY, Acting President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 1474 1 P R O C E E D I N G S 2 ACTING PRESIDENT FARLEY: Senate 3 will come to order. Senators will please find 4 their seats. 5 Please rise for the Pledge of 6 Allegiance to the Flag. 7 (Whereupon, the Senate joined in 8 the Pledge of Allegiance to the Flag.) 9 Today, in the absence of visiting 10 clergy, we will bow our heads for a moment of 11 silent prayer. 12 (Whereupon, there was a moment of 13 silence.) 14 Secretary will begin by reading 15 the Journal. 16 THE SECRETARY: In Senate, 17 Tuesday, March 22. The Senate met pursuant to 18 adjournment. Senator Farley in the chair upon 19 designation of the Temporary President. The 20 Journal of Monday, March 21, was read and 21 approved. On motion, Senate adjourned. 22 ACTING PRESIDENT FARLEY: Hearing 23 no objection, the Journal will stand approved as 1475 1 read. 2 The order of business: 3 Presentation of petitions. 4 Messages from the Assembly. 5 Messages from the Governor. 6 Reports of standing committees. 7 Reports of select committees. 8 Communications and reports from 9 state officers. 10 Motions and resolutions. 11 SENATOR COOK: Mr. President. 12 ACTING PRESIDENT FARLEY: Senator 13 Cook. 14 SENATOR COOK: On page 10 of 15 today's calendar, Calendar Number 416, Senate 16 Bill 2970, would you please place a sponsor star 17 on that bill? 18 ACTING PRESIDENT FARLEY: The 19 bill is starred at the request of the sponsor. 20 Senator DiCarlo. 21 SENATOR DiCARLO: Mr. President. 22 On page 20, I offer the following amendments to 23 Calendar Number 463, Senate Print Number 7068, 1476 1 and ask that the bill retain its place on the 2 third reading of the calendar. 3 ACTING PRESIDENT FARLEY: Without 4 objection the bill will retain its place on the 5 Third Reading Calendar. 6 Are there any other motions on 7 the floor? 8 (There was no response.) 9 We have a couple substitutions. 10 The Secretary will read those. 11 THE SECRETARY: On page 4 of 12 today's calendar, Senator Goodman moves to 13 discharge the Committee on Investigations, 14 Taxation and Government Operations from Assembly 15 Bill Number 4537A and substitute it for the 16 identical Calendar Number 426. 17 ACTING PRESIDENT FARLEY: 18 Substitution is ordered. 19 THE SECRETARY: On page 18, 20 Senator Daly moves to discharge the Committee on 21 Environmental Conservation from Assembly Bill 22 Number 9628A and substitute it for the identical 23 Calendar Number 400. 1477 1 ACTING PRESIDENT FARLEY: 2 Substitution is ordered. 3 Senator Present. 4 SENATOR PRESENT: Will you 5 recognize Senator DeFrancisco? 6 ACTING PRESIDENT FARLEY: Senator 7 DeFrancisco. 8 SENATOR DeFRANCISCO: I have a 9 privileged resolution at the desk and request 10 that it be read. That's Resolution 2956. 11 ACTING PRESIDENT FARLEY: Title 12 or its entirety? 13 SENATOR DeFRANCISCO: In its 14 entirety. 15 ACTING PRESIDENT FARLEY: Read 16 Senator DeFrancisco's resolution in its 17 entirety. 18 THE SECRETARY: Legislative 19 Resolution 2956, by Senator DeFrancisco: 20 Legislative resolution commending the Valley 21 Babe Ruth All-Stars. 22 Whereas, the 1993 Valley Babe 23 Ruth All-Star baseball team accomplished what no 1478 1 other local baseball team ever has by earning 2 the opportunity to compete in the Babe Ruth 3 World Series held in Springdale, Arkansas; 4 The Valley Babe Ruth All-Stars 5 made four games in the Series for thirteen and 6 under baseball players, finishing an impressive 7 four out of the more than 1900 teams that 8 qualified for the national competition; 9 This extraordinary feat was 10 accomplished only after the Valley All-Stars 11 first captured the district title in Auburn with 12 three ten-run wins; 13 The Valley All-Stars then 14 advanced to the regional competition in New 15 Jersey where they emerged with 13 consecutive 16 victories against other all-star teams from 17 across the Northeast, qualifying them for the 18 World Series; 19 Along the road to the World 20 Series, the Valley All-Stars had to first raise 21 money for the trip to Arkansas; 22 The Valley All-Stars also 23 garnered many honors on the way to the World 1479 1 Series, including a send-off by the Syracuse 2 Chiefs and their fans at MacArthur Stadium; 3 The dream of competing in the 4 Babe Ruth World Series was only realized through 5 the teamwork and talent of fifteen 13-year-olds, 6 Richard Adamczyk, Eric Cohen, Ian Cuthbert, Jon 7 Downs, Mike Erwin, Lauren Fitzpatrick, Steve 8 Haryan, Jeff Machan, Matt Marsallo, Andy Myatt, 9 John Pennisi, Brian Thompson, Ed VanSlyke, 10 Jordan Weismore and Mike Wohenski; 11 These young players were expertly 12 managed by Bob Weismore and skillfully coached 13 by John Pennisi and Jay Downs; 14 The team members were faithfully 15 supported by their parents and the local 16 community who delighted in their wins and the 17 individual accomplishments of each player; now, 18 therefore, be it 19 RESOLVED, that this legislative 20 body pause in its deliberations to celebrate the 21 outstanding achievements of the Valley Babe Ruth 22 All-Stars; and be it further 23 RESOLVED, that we take this 1480 1 opportunity to applaud the spirit of solidarity 2 and sportsmanship that distinguishes these young 3 men and women from their peers, and congratulate 4 them for attaining a level of excellence that 5 most young people can only dream about; and be 6 it further 7 RESOLVED, that a copy of this 8 resolution, suitably engrossed, be transmitted 9 to the Valley Babe Ruth All-Stars in care of 10 Robert Weismore, Manager. 11 ACTING PRESIDENT FARLEY: Senator 12 DeFrancisco on the resolution. 13 SENATOR DeFRANCISCO: Mr. 14 President. I rise to congratulate the Valley 15 Babe Ruth All-Star team. It's truly an honor 16 for me to recognize these outstanding 17 individuals in this body. 18 Having played baseball a few 19 times in my life, I recognize how impossible the 20 dream that they recognized was to accomplished. 21 To be fourth out of 1900 teams in the nation is 22 truly amazing. Winning 13 consecutive games in 23 playoffs in order to get to the World Series, 1481 1 makes the final four basketball tournament pale 2 in comparison. The odds were truly against 3 them. 4 But what's more important about 5 this group -- and, unfortunately, in this day 6 and age, we hear about the bad kids, the people 7 who are violent out on the streets, the people 8 who are doing things that shouldn't be done. 9 Here's a group of individuals who are doing the 10 right thing, learning sportsmanship, teamwork 11 and responsibility, which we don't see across 12 the board. 13 And it points up the need, as 14 Chairman of the Tourism, Recreation, and Sports 15 Development Committee in the Senate, to promote 16 programs that allow children to participate in 17 these types of activities, to promote not only 18 teamwork but good character, and I want to point 19 out, you might have missed it in the resolution 20 when it was being read, that there is young lady 21 on this baseball team. So, we have a truly 22 unique team, not only in the victories but the 23 fact that it's a team that did not exclude 1482 1 anyone in their activities. 2 The coach and -- the manager and 3 the coaches have to be commended at an 4 outstanding, truly outstanding accomplishment, 5 and we applaud you and I applaud you as the 6 Senator that represents your district. 7 ACTING PRESIDENT FARLEY: On the 8 resolution, all those in favor, aye. 9 (Response of "Aye.") 10 Those opposed, nay. 11 (There was no response.) 12 The resolution is unanimously 13 adopted. 14 Congratulations to an outstanding 15 team. We're delighted to have you visit the 16 Senate and, on behalf of the Senate, again, 17 congratulations. 18 (Applause.) 19 Senator DeFrancisco. 20 SENATOR DeFRANCISCO: With 21 another privileged resolution to be read, the 22 49th Senate District is truly the district of 23 champions, and that's privileged Resolution 1483 1 2957. 2 ACTING PRESIDENT FARLEY: 3 Secretary will read it. 4 THE SECRETARY: Legislative 5 resolution by Senator DeFrancisco, 6 congratulations to the Westhill Lady Warriors 7 Varsity Soccer Team as Class C state champions. 8 Whereas, the 1993-94 Westhill 9 Lady Warriors Varsity Soccer Team accomplished 10 what no other team has done in the history of 11 the Westhill High School girls' soccer program 12 by capturing the Class C State Championship; 13 The Lady Warriors finished their 14 season with an impressive record of 23 wins, one 15 tie and just one loss; 16 In order to attain the State 17 title, the Lady Warriors initially captured 18 first place in their own high school league; 19 The Warriors then advanced to the 20 quarterfinal round where they trounced Altmar 21 Parish-Williamstown 9-0, and progressed to the 22 semi-finals where they easily defeated Clinton 23 6-1; 1484 1 Westhill took the Class C Section 2 III Championship by outplaying Cooperstown in 3 the Carrier Dome and went on to secure the 4 regional title by routing Elmira-Notre Dame and 5 Bloomville and tying Cold Spring Harbor; 6 The dream of capturing the State 7 title was only realized through the teamwork of 8 23 young ladies, Captains Robin Arnold, Toby 9 Johnson and Adriane Smith, and Meghan Edwards, 10 Kristin Halsey, Amy Kelly, Holly Klamm, Kristen 11 Banach, Janine DeStefano, Meghan Erwin, Tina 12 Gaspe, Katy Palmer, Lindsay Ryan, Kendra Smith, 13 Katie Kirsch, Saral Ungerer, Kristen Parody, 14 Carolyn Butler, Katie Williams, Sarah Thornton, 15 Julie Donahue, Julie Guinn, and Jennifer Kirsch; 16 These talented players were 17 expertly coached by Ann Riva, who was also named 18 Class C Coach of the Year; 19 Many of the teams members 20 received individual recognition for their 21 athletic acts including Sarah Ungerer, who was 22 selected to the State Girls Soccer Coaches 23 All-Star Team and the First Team of the State 1485 1 Section III All-Star Team, and Toby Johnson, 2 Adriane Smith and Kristen Banach who were named 3 to the first, second and third teams, 4 respectively, of the State Section III All-Star 5 Team; 6 The Lady Warriors were also 7 winners off the field, garnering the Scholar 8 Athletic Team Award by the New York State Public 9 High School Athletic Association, because the 10 combined scholastic average of the top 12 11 players was 91.2 percent; 12 The team members were faithfully 13 supported by their parents and the entire West 14 hill community which delighted in their wins and 15 the individual accomplishments of each player; 16 now, therefore, be it 17 RESOLVED, that this legislative 18 body pause in its deliberations to celebrate the 19 outstanding achievements of the Westhill Lady 20 Warriors Varsity Soccer Team; and be it further 21 RESOLVED, that we take this 22 opportunity to applaud the spirit of solidarity 23 and sportsmanship that distinguishes these young 1486 1 women from their peers and congratulate them for 2 attaining a level of excellence that most young 3 people can only dream about; and be it further 4 RESOLVED, that a copy of this 5 resolution, suitably engrossed, be transmitted 6 to the Westhill Lady Warriors Varsity Soccer 7 Team. 8 ACTING PRESIDENT FARLEY: Senator 9 DeFrancisco, on the resolution. 10 SENATOR DeFRANCISCO: I thank you 11 again for allowing me the privilege to take the 12 time to recognize the Lady Warriors. I'm a 13 little concerned that there's no men on your 14 team, but we will overlook that because of the 15 other fine points in this resolution. 16 I think the one that just jumps 17 out at me -- it's the same thing that I pointed 18 out with respect to the Babe Ruth team; and that 19 is, people on your team are an example to 20 everyone. It is not only sports but a 91.2 21 average among the top 12 players. You are 22 recognized as scholar athletes as well. To win 23 a national championship and also attend to your 1487 1 studies, that shows what you mentioned before, 2 responsibility, and you are all going to show, 3 I'm sure, great promise in the future for your 4 communities. 5 I also want to make a special 6 point that, a couple of people, I played sports 7 with their fathers, and which is kind of 8 interesting. It's Kristen Banach. Len Banach I 9 played baseball with as did I play baseball with 10 Joseph Smith. His two daughters are on the 11 team. 12 And I want to congratulate them 13 and everybody on the team for the outstanding 14 year but, most of all, for being role models for 15 the people in the community, to show that young 16 people can do what's right and can have fun 17 while doing it. 18 We honor you today. 19 ACTING PRESIDENT FARLEY: On the 20 resolution. Everyone in favor, please say aye. 21 (Response of "Aye.") 22 Those opposed, nay. 23 (There was no response.) 1488 1 The resolution is adopted. 2 Again, in the gallery, we're 3 fortunate to have with us so many outstanding 4 athletes. I don't ever recall so many athletes 5 up in the gallery. Congratulations. We're 6 honored to have you here with us today and come 7 back and see us next year as winners, too. 8 (Applause.) 9 Senator Present. 10 SENATOR PRESENT: Mr. President. 11 I believe Senator Cook has an announcement. 12 ACTING PRESIDENT FARLEY: Senator 13 Cook for an announcement. 14 SENATOR COOK: Mr. President. I 15 would like to announce an immediate meeting of 16 the Education Committee in the Majority 17 Conference Room. 18 ACTING PRESIDENT FARLEY: The 19 Education Committee will be meeting immediately 20 in Room 332, the Senate Majority conference 21 room. 22 Senator Present. 23 SENATOR PRESENT: Mr. President. 1489 1 Can we take up the noncontroversial calendar, 2 please? 3 ACTING PRESIDENT FARLEY: 4 Secretary will read the noncontroversial 5 calendar, starting on page 11. 6 THE SECRETARY: Calendar Number 7 13, by Senator Levy, Senate Bill Number 1313, an 8 act to amend the Penal Law. 9 THE SECRETARY: Lay it aside. 10 ACTING PRESIDENT FARLEY: Lay it 11 aside. 12 THE SECRETARY: Calendar Number 13 88, by Senator Levy, Senate Bill Number 191, an 14 act to amend the Vehicle and Traffic Law, in 15 relation to criminal history checks on school 16 bus attendants. 17 ACTING PRESIDENT FARLEY: Lay it 18 aside. 19 THE SECRETARY: Calendar Number 20 116, by Senator Skelos, Senate Bill Number 21 6523A, an act to amend the Education Law, 22 Executive Law, and the Public Health Law. 23 ACTING PRESIDENT FARLEY: Read 1490 1 the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT FARLEY: Call 5 the roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 47. 8 ACTING PRESIDENT FARLEY: The 9 bill is passed. 10 THE SECRETARY: Calendar Number 11 276, by Senator Skelos, Senate Bill Number 12 6540A, an act to amend the Education Law. 13 ACTING PRESIDENT FARLEY: Read 14 the last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT FARLEY: Call 18 the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 47. 21 ACTING PRESIDENT FARLEY: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 1491 1 293, by Senator Levy. 2 SENATOR PRESENT: Lay it aside 3 for the day, please. 4 ACTING PRESIDENT FARLEY: Lay it 5 aside for the day, did you say? 6 SENATOR PRESENT: Yes. 7 THE SECRETARY: Calendar Number 8 298, by Senator Volker, Senate Bill Number 3385, 9 an act to amend the Penal Law and the Criminal 10 Procedure Law. 11 SENATOR LEICHTER: Lay it aside. 12 ACTING PRESIDENT FARLEY: Lay it 13 aside. 14 THE SECRETARY: Calendar Number 15 328, by Senator Skelos, Senate Bill Number 16 6567B. 17 ACTING PRESIDENT FARLEY: Lay 18 that aside. 19 THE SECRETARY: Calendar Number 20 342, by Senator Kuhl, Senate Bill Number 3182, 21 Agriculture and Markets Law. 22 ACTING PRESIDENT FARLEY: Lay it 23 aside. 1492 1 THE SECRETARY: Calendar Number 2 358, by Senator Hannon, Senate Bill Number 280, 3 Real Property Tax Law, in relation to the sale 4 of vacant real property. 5 SENATOR GOLD: Lay it aside. 6 ACTING PRESIDENT FARLEY: Lay it 7 aside. 8 THE SECRETARY: Calendar Number 9 371, by Senator Present, Senate Bill Number 10 6372A, Real Property Law. 11 ACTING PRESIDENT FARLEY: There 12 is a home rule message here at the desk. 13 You can read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT FARLEY: Call 17 the roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 47. 20 ACTING PRESIDENT FARLEY: The 21 bill is passed. 22 THE SECRETARY: Calendar Number 23 375, by Senator Volker, Senate Bill - 1493 1 SENATOR GOLD: Lay it aside. 2 ACTING PRESIDENT FARLEY: Lay it 3 aside. 4 THE SECRETARY: Calendar Number 5 401, by Senator Skelos. 6 SENATOR PRESENT: Lay it aside 7 for the day. 8 ACTING PRESIDENT FARLEY: Lay it 9 aside for today. 10 THE SECRETARY: Calendar Number 11 413, by Senator Marino, Senate Bill Number 12 3828A, amends Chapter 576 of the Laws of 1975. 13 SENATOR GOLD: Lay it aside. 14 ACTING PRESIDENT FARLEY: Lay it 15 aside. 16 THE SECRETARY: Calendar Number 17 415, by Senator Holland, Senate Bill Number 18 6308, an act to amend the Education Law. 19 ACTING PRESIDENT FARLEY: Senator 20 Holland -- lay the bill aside. 21 I can't hear you, Senator. 22 SENATOR GOLD: I'm sorry, sir. I 23 was confused as to two bills. 1494 1 ACTING PRESIDENT FARLEY: Read 2 the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT FARLEY: Call 6 the roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 47. 9 ACTING PRESIDENT FARLEY: The 10 bill is passed. 11 Senator Present. 12 SENATOR PRESENT: Mr. President. 13 Let's take up the controversial calendar, 14 please. 15 ACTING PRESIDENT FARLEY: The 16 controversial. The Secretary will read, page 17 11. 18 THE SECRETARY: Calendar Number 19 13, by Senator Levy, Senate Bill Number 1313, an 20 act to amend the Penal Law, in relation to 21 including the theft of dogs and cats within the 22 crime of grand larceny. 23 ACTING PRESIDENT FARLEY: 1495 1 Explanation has been asked for. 2 Senator Levy. 3 SENATOR LEVY: Senator Gold, we 4 have, as I'm sure you recall, discussed this 5 bill in previous years. What the bill seeks to 6 do and will do if enacted into law would be to 7 remove the unintended distinction today that 8 occurs under the larceny statute when someone 9 steals a non-pedigreed dog or cat. If there is 10 a theft -- if there is a theft of a pedigreed 11 dog or cat, because of the value of the dog or 12 the cat, that would be a felony. And for pet 13 lovers like myself whose dogs and cats are part 14 of my family, we put the same value on a non 15 pedigree as we would put on a pedigree. So what 16 this statute would do would be to make it a 17 felony, regardless of value, to steal a dog or a 18 cat. 19 ACTING PRESIDENT FARLEY: Read 20 the last section. 21 Whoops! Senator Dollinger. 22 SENATOR DOLLINGER: No, go ahead, 23 Senator Leichter. I'll yield to Senator 1496 1 Leichter. 2 SENATOR LEICHTER: Well, I -- Mr. 3 President. Let me ask Senator Levy one 4 question, if you would yield, Senator? 5 SENATOR LEVY: Yes, certainly. 6 SENATOR LEICHTER: Senator, I 7 believe we had that bill last year and I believe 8 I -- at least I think I voted against it. I see 9 I did. I have problems with making a Class E 10 felony the stealing of a pet irrespective of its 11 value, and I agree that maybe we shouldn't make 12 any distinction between a pedigreed dog or 13 mongrel because they are both loved as much by 14 their owners. I just think making it a Class E 15 felony, to my mind, is too severe. 16 But looking at the bill now, 17 there was something, in addition, that troubled 18 me about it. As I understand, this bill would 19 apply only if the cat- or the dognapping 20 occurred from the premises of the owner or 21 within a certain distance - 22 SENATOR LEVY: Yes. 23 SENATOR LEICHTER: -- of the 1497 1 owner's premises? 2 SENATOR LEVY: Yes. Let me tell 3 you why. 4 First of all, let me respond to 5 your first thought, Senator, and that is, 6 present law today makes it a felony to take a 7 dog or a cat if the value is over $1,000. So 8 that's the law. We're not -- by this bill, 9 we're not making that a felony in the State of 10 New York. It's a felony right now. We're just 11 equating -- equating the theft of a non 12 pedigreed dog or a cat. 13 The language of this bill was 14 negotiated with the Assembly and a commitment 15 was made that the Assembly was going to pass 16 it. That is why we put the restrictions that 17 are in the bill as it relates to the proximity, 18 and then, as happens from time to time, the 19 Assembly did not pass the bill. 20 This was a negotiated piece of 21 legislation, and that's why that language is as 22 it is. 23 SENATOR LEICHTER: Good. 1498 1 Senator, if you would just 2 continue to yield for a moment, because I want 3 to really express through a question what I see 4 is some inconsistency in that bill, but I just 5 want to say I appreciate that there is presently 6 a felony, because if you -- I guess the taking 7 of any property and animals are considered 8 property; over a certain value makes it a 9 felony. My problem is that we are now extending 10 it. I'm not sure it should be a felony under 11 any circumstances, but I guess if you say taking 12 the property over the value of $1,000 means that 13 it's a Class E felony and you take some valuable 14 or pedigreed dog -- although you and I know that 15 you could love a mongrel as much as a pedigreed 16 dog -- and that's the reason for the law. 17 Maybe, you know, we ought to take a look to see 18 if there is a more rational way to punish the 19 taking of animals. 20 But if you're going to say that 21 taking an animal, irrespective of its value, is 22 a Class E felony, I don't know why it's less 23 damaging or injurious if you take that animal 1499 1 and it's a thousand yards from the owner's 2 property -- he is walking the dog in the park 3 and somebody lures the dog away -- than if he 4 takes it out of somebody's back yard. I don't 5 understand the logic of that. 6 SENATOR LEVY: Senator, there is 7 no logic to it other than the fact that we hope 8 to get this bill enacted into law, and the 9 Assembly told us, if you make it 501 feet, we 10 are not going to pass the bill, and as you 11 understand, Senator, we -- we move legislation 12 successfully by compromises, and that is the 13 compromise that was worked out with the 14 Assembly. 15 And let me also add -- and I know 16 Senator Dollinger has concern not related to 17 this bill, but part of the genesis of this bill 18 was work done by a sergeant in the city of 19 Rochester Police Department, and it related to 20 petnapping rings and petnapping rings that dealt 21 with the theft of dogs, and dogs were then 22 exported to the Far East where dog meat is a 23 delicacy. So that was another genesis for this 1500 1 legislation. 2 ACTING PRESIDENT FARLEY: Senator 3 Marchi. 4 SENATOR MARCHI: No, I just - 5 it's very edifying, I think, that Senator Levy 6 has taken this initiative. To be very blase and 7 to perpetuate the myth of a cast among our 8 domestic animals that are the object of the 9 affection and the protection of so many people 10 and that bite and that value is in the eyes of 11 the beholder, for him to stand up and pronounce 12 this ringing affirmation, a care affirmation, I 13 think really adds luster to his name. 14 He doesn't need my support, but I 15 think this is a very, very positive step and he 16 should be congratulated, and I would be very 17 disturbed if anybody voted against it. 18 SENATOR GOLD: Mr. President. 19 ACTING PRESIDENT FARLEY: Senator 20 Gold. 21 SENATOR GOLD: Will "Senator 22 Luster" yield to a question? 23 ACTING PRESIDENT FARLEY: Senator 1501 1 Levy. 2 SENATOR LEVY: I just wish you 3 were a pet lover. 4 SENATOR GOLD: Senator, I 5 understand the comments you made about the 6 significance of a loss regardless of whether the 7 dog is a pedigree or not, but I want to ask you 8 two questions in that regard. 9 Firstly, I know that you must 10 have a relative who has a ring or piece of 11 jewelry that was handed down from a grand 12 parent, or whatever, that has phenomenal, 13 phenomenal value, sentimental value, but is 14 under a certain amount of money. Do you 15 suggest, by legislation, that we should change 16 our larceny laws to include as an E felony any 17 piece of jewelry that may be undervalued in the 18 marketplace but because of emotional and family 19 ties has greater value to the person? 20 SENATOR LEVY: Senator, only if 21 it's a jewel that has a beating heart. 22 SENATOR GOLD: Okay. 23 Senator, the second question I 1502 1 have is, I understand how, for example, if you 2 had a back yard and you had a dog and your dog 3 means a lot to you and somebody passes by in the 4 street and grabs that dog, we talk about it 5 being a felony; you've got a relationship with 6 that dog -- Muggzy's been with you since 7 childhood and you love that Muggzy -- but now, 8 Senator, you have a dog in the back yard and it 9 gives birth to some puppies; and before you even 10 know the litter is there, somebody passes by and 11 seizes a dog and that is from a litter of 12 puppies and, wrongfully and in criminal intent, 13 they reach over, they grab one of these little 14 pups, and take it away. Senator, are you 15 suggesting that this phenomenal attachment that 16 you have for Muggzy since childhood also is 17 going to cause that same damage when that puppy 18 you don't even know about gets stolen, that that 19 -- that person who stole the dog -- we're 20 creating that person into a felon, also? 21 SENATOR LEVY: Senator, the 22 intent of this bill is clear; and that is, when 23 you steal -- when someone steals either a dog or 1503 1 cat within the prescriptions of the piece of 2 legislation, that is the crime. 3 Now, I would like to go beyond 4 this, Senator, but I have explained not only 5 this year but last year the limitations that the 6 Assembly put on going forward with this bill, 7 and we hope -- we hope we're going to be able to 8 have this bill enacted this year, and I don't 9 want to go beyond what that agreement was. 10 SENATOR GOLD: All right. Mr. 11 President. On the bill very briefly. 12 ACTING PRESIDENT FARLEY: On the 13 bill, Senator Gold. 14 SENATOR GOLD: Last year, Senator 15 Galiber and myself and Leichter and Mendez and 16 Montgomery, together with Senator DeFrancisco 17 and Senator Saland, voted in the negative. 18 You know, Senator Levy, in all 19 fairness, I know you have very good intentions, 20 but it is a little simplistic to say that if 21 someone had a larcenous intent, then that's it 22 and they are a felon, because that's not what 23 our law is. 1504 1 If somebody commits a larceny and 2 its below a certain value, it can be as venal 3 and as disgusting as any other larceny, but in 4 our laws we have said that if its below a 5 certain value, it's a different degree of 6 crime. Should that be? I don't know. 7 Maybe we should get rid of some 8 chapter and have one degree of crime. You steal 9 a diamond that's worth 25,000 or you steal a 10 pencil, it's a felony. You go to jail. But if 11 that's not what it is, Senator, then there's got 12 to be some logic to it. 13 And I appreciate, Senator, when 14 you say to me that it's a negotiated process. 15 We all understand that. As a matter of fact, my 16 distinguished colleagues, Senator Dollinger and 17 Senator Leichter, want to have a conference 18 committee set up so that we can have real 19 negotiations between the houses and open -- out 20 in the open people will see what the issues are 21 and how we get to it. 22 But I would suggest to you, 23 Senator, that the result of your compromise is a 1505 1 bill that just doesn't make any sense. It 2 doesn't make any sense. There's no logic to 3 whether the pet has been with you for year, 4 whether it's new, it's old, whether the pet ran 5 out in the street. If the pet is lured from the 6 yard into the street, now, you have a legal 7 argument as to whether the luring was part of 8 the taking. It goes just too far in a 9 direction. 10 And I would certainly urge those 11 people who were in the negative to stay there, 12 and maybe get some converts. 13 ACTING PRESIDENT FARLEY: Read 14 the last section. 15 SENATOR DOLLINGER: Mr. 16 President. 17 ACTING PRESIDENT FARLEY: Oh, 18 wait a second. 19 Senator Dollinger. 20 SENATOR DOLLINGER: Mr. 21 President. I commend Senator Levy. I think 22 this does raise an issue, but I have to agree 23 with Senator Gold. I think that the unfortunate 1506 1 consequence of this bill is that how is a 2 criminal to know that this is the valued pet 3 that you kept in the household or just a 4 mongrel, some mutt that walked in two weeks ago 5 and has taken up residence in your house? 6 I'm reminded of that dog from the 7 movie "Down and Out in Beverly Hills." The 8 family dog was a part of the family and then the 9 guy comes in from the outside and he's there for 10 a couple days and he takes over. It seems to me 11 we're drawing sort of artificial distinctions. 12 And then the next question I can 13 see -- and it's going to be like the debate we 14 had over the Ryan bill. Someone will raise the 15 defenses that he didn't know it was a valued dog 16 or a valued member of the family. He didn't 17 understand that this was the family pet of 18 longstanding. 19 One of the things that I have 20 done with this bill previously is, I've had 21 amendments on the table to put the assault 22 weapon ban on this bill, because my belief has 23 always been that instead of focusing on pets, we 1507 1 ought to focus on human beings, and while I 2 understand this is your pet project, I have a 3 pet project, too, and that deals with assault 4 weapons. 5 And I have been dogged in my 6 persistence on it because I think it would take 7 a big bite out of violence in this state. And I 8 think we ought to turn our attention to the big 9 issue of violence and crime and attack that 10 issue first. 11 I'm going to vote in favor of 12 this bill. My hope, however, is that the 13 priorities on the other side will change and 14 that we'll look at assault weapons and what that 15 means to crime and violence in this state and 16 recognize that while we have some obligation to 17 protect owners of pets, we also have an 18 obligation to protect a huge number of people 19 that are exposed to huge issues of violence. 20 I will vote in favor of this 21 bill. But, please, understand that the 22 priorities from my point of view should be that 23 at day 66, 66 days after the Martin Luther King 1508 1 holiday, we should get on with the issue of 2 restricting access to assault weapons which will 3 do something that will benefit everyone and not 4 just protect pet lovers. That will protect all 5 two-legged beings. Here we're protecting 6 four-legged creatures. Let's protect two-legged 7 beings first. 8 ACTING PRESIDENT FARLEY: Senator 9 Waldon. 10 SENATOR WALDON: Thank you, very 11 much, Mr. Speaker. 12 I recall, in 1961, I believe, 13 leaving the post office with my brother Robert 14 and seeing a junkman coming down the street at 15 Peck Slip -- the post office in lower Manhattan 16 -- and my brother remarking to the junkman, 17 would he consider letting the dog go that he had 18 sitting on the seat next to him, because the dog 19 was in such a state that Robert felt the dog 20 might do better on his own. 21 And I am wondering, if someone 22 would have stolen that dog, would he qualify 23 under this bill for this criminal penalty? And, 1509 1 furthermore, I'm wondering if that -- in the 2 South where I grew up, a sooner -- I don't know 3 if anyone understands that a sooner is a dog, 4 but I will tell you privately off the floor. If 5 someone were to steal a sooner, would that 6 person qualify in terms of this particular 7 bill? 8 And I'm also being very 9 facetious, Senator Levy. Permit me to do that. 10 We've been here too long. Sometimes in the 11 budget process suffering, trying to get out - 12 if I wish to steal the dog and leave the fleas, 13 what would the penalty be? 14 For all of those reasons, I will 15 have to vote in the negative on this, and I'll 16 have to withstand the heat of those who are pet 17 lovers, although I am a pet lover, but I think 18 this is stretching the dog lover a bit too far 19 in terms of what we should be doing here in this 20 chamber. 21 ACTING PRESIDENT FARLEY: Read 22 the last section. 23 THE SECRETARY: Section 3. This 1510 1 act shall take effect on the first day of 2 November next, succeeding the date on which it 3 shall have become a law. 4 ACTING PRESIDENT FARLEY: Call 5 the roll. 6 (The Secretary called the roll.) 7 SENATOR LEICHTER: Mr. President. 8 ACTING PRESIDENT FARLEY: Senator 9 Leichter to explain his vote. 10 SENATOR LEICHTER: Yes, Mr. 11 President. I'm prompted to get up because of 12 something Senator Marchi said, and I want to 13 agree with him to an extent. He talked about 14 the "luster" of Senator Levy, and I absolutely 15 agree with him; and, Senator, I think you have 16 that luster in spite of this bill, and I 17 appreciate your concern for pets and we all love 18 pets and I want to make that clear on the 19 record. 20 I had a dog, just a wonderful 21 friend, that is no longer with us. If there is 22 a dog heaven, that dog is certainly there, and I 23 appreciate your concern, and so on, but maybe 1511 1 you, Senator Levy, because of the philosophy 2 your party holds, Ohrenstein, anybody else, 3 ought to realize more than anybody else there's 4 some things that you can not always address 5 through legislation, particularly through the 6 Penal Law, and I think that some of the members 7 of this side of the aisle pointed out, I think, 8 some of the problems and inconsistencies with 9 this bill. 10 It also occurred to me, this 11 really discriminates among pets, because 12 somebody may love a python or a parakeet, and so 13 on, as much as a cat and a dog, and your bill 14 doesn't cover it. 15 I think we have made a fine 16 statement for pets, and maybe we ought to go on 17 to some better things. 18 I vote in the negative. 19 ACTING PRESIDENT FARLEY: Senator 20 DeFrancisco to explain his vote. 21 SENATOR DeFRANCISCO: I just 22 wanted to explain my vote. I voted -- I'm 23 voting in the negative. 1512 1 I listened very carefully to 2 Senator Dollinger's argument in voting in favor 3 of this bill. It had something to do with 4 Martin Luther King and something to do with 5 assault weapons. 6 Based upon that logic, if he is 7 voting in favor of it in that logic, I must vote 8 against it. I can't understand it. 9 ACTING PRESIDENT FARLEY: Senator 10 DeFrancisco, in the negative. 11 Senator Levy to explain his vote. 12 SENATOR LEVY: Senator Leichter, 13 let me refresh your recollection. The fervent 14 sponsor of this bill in the Assembly who worked 15 so hard to have it enacted into law is New York 16 State's Attorney General today. 17 I vote aye. 18 ACTING PRESIDENT FARLEY: Anybody 19 else? Will the negatives please raise their 20 hands. 21 Do you have them all, Mr. 22 Secretary? 23 THE SECRETARY: Those recorded in 1513 1 the negative on Calendar Number 13 are Senators 2 DeFrancisco, Galiber, Gold, Leichter, Mendez, 3 Montgomery, Saland and Waldon. Ayes 46. Nays 4 8. 5 ACTING PRESIDENT FARLEY: The 6 bill is passed. 7 Senator Stafford. 8 SENATOR STAFFORD: May I please 9 announce an immediate meeting of the Senate 10 Finance Committee in Room 332. 11 ACTING PRESIDENT FARLEY: The 12 Senate Finance Committee will meet immediately 13 in Room 332, the Senate Majority Conference 14 Room. 15 Calendar 88, Senator Present? 16 SENATOR PRESENT: May we return 17 to reports of standing committees, please? 18 ACTING PRESIDENT FARLEY: Report 19 of a standing committee. 20 Secretary will read it. 21 THE SECRETARY: Senator Cook from 22 the Committee on Education reports the following 23 bill directly for third reading: 1514 1 Senate Bill Number 7187, by 2 Senator Cook, an act to amend the Education Law, 3 in relation to payments of state aid to schools. 4 ACTING PRESIDENT FARLEY: Without 5 objection, the bill is reported directly to 6 third reading. 7 SENATOR PRESENT: Mr. President. 8 May have we have a vote on that bill now, take 9 it up. 10 ACTING PRESIDENT FARLEY: Senator 11 Present, we have a message. 12 SENATOR PRESENT: We accept the 13 message. 14 ACTING PRESIDENT FARLEY: All in 15 favor of accepting the message, please say aye. 16 (Response of "Aye.") 17 Those opposed nay. 18 (There was no response.) 19 You can read the last section 20 that bill. 21 ACTING PRESIDENT FARLEY: Read 22 the last section. 23 THE SECRETARY: Section 2. This 1515 1 act shall take effect immediately. 2 ACTING PRESIDENT FARLEY: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 54. 6 ACTING PRESIDENT FARLEY: The 7 bill is passed. 8 Senator Present, what is your 9 pleasure. 10 SENATOR PRESENT: Regular order, 11 please. 12 ACTING PRESIDENT FARLEY: Regular 13 order. Calendar Number 88, page 11. 14 THE SECRETARY: Calendar Number 15 88, by Senator Levy, Senate Bill Number 191, an 16 act to amend the Vehicle and Traffic Law, in 17 relation to criminal history checks on school 18 bus attendants. 19 SENATOR GOLD: Mr. President. 20 ACTING PRESIDENT FARLEY: Senator 21 Gold. 22 SENATOR GOLD: I have some 23 questions on this, but I notice the Finance 1516 1 Committee is leaving and that includes Senator 2 Galiber, who might want to be recorded in the 3 negative on this. Could we just either allow 4 that and read the last section and maybe go 5 back. 6 ACTING PRESIDENT FARLEY: I will 7 read the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 ACTING PRESIDENT FARLEY: Call 11 the roll. 12 THE SECRETARY: Senator Galiber. 13 SENATOR GALIBER: Nay. 14 SENATOR GOLD: Senator Galiber in 15 the negative. 16 SENATOR LEICHTER: May I be in 17 the negative. 18 SENATOR GOLD: And Senator 19 Leichter. 20 ACTING PRESIDENT FARLEY: 21 Leichter is in the negative. 22 Senator Nanula is in the 23 negative. 1517 1 SENATOR GOLD: Yes, Senator 2 Nanula in the negative. And then if we can 3 suspend the roll call. All right? 4 ACTING PRESIDENT FARLEY: Senator 5 Present, what's your pleasure on that? 6 SENATOR PRESENT: No objection. 7 Suspend the roll call. 8 ACTING PRESIDENT FARLEY: Suspend 9 the roll call. 10 SENATOR GOLD: Thank you. And at 11 this point if Senator Levy would give us a brief 12 explanation. 13 SENATOR LEVY: Sure. Senator 14 Gold, as you know, a number of years ago, we 15 passed legislation which became law that 16 required the fingerprinting of school bus 17 drivers. We did that bill, though it was in the 18 legislation that we passed in the Senate as a 19 compromise to have that bill enacted into law, 20 we removed from the bill fingerprinting of 21 school bus attendants, not only on Long Island 22 but other parts of the state, and the reason 23 that I have introduced that bill, this bill 1518 1 since then, is that we had an incident on Long 2 Island where a developmentally disabled child 3 was raped and sodomized by a school bus 4 attendant working on a bus who was on parole. I 5 believe that if anyone is going to be working on 6 a school bus transporting our most valuable 7 asset, our most precious commodity, our 8 children, we ought to insure that they meet the 9 same standards someone has to meet if they are 10 going to drive a bus as relates to not having 11 been convicted of a crime, of a felony. 12 So this bill would treat school 13 bus attendants the same way that we treat school 14 bus drivers and require them to be fingerprinted 15 so that those who employ them know what their 16 records are and that they would be disqualified 17 if they were convicted of certain felonies. 18 SENATOR JONES: Would Senator 19 Levy yield for a question? 20 ACTING PRESIDENT FARLEY: Senator 21 Levy would you yield? 22 SENATOR LEVY: Sure. 23 SENATOR JONES: I'm not familiar, 1519 1 Senator, with school bus attendants other than 2 on special handicapped buses. Are there a lot 3 of them throughout the state? Is this an issue 4 downstate? 5 SENATOR LEVY: It's an issue 6 across the state. State Education estimates 7 there are 2500 statewide. 8 SENATOR JONES: Are these people 9 ever left alone with children? I'm not of the 10 opinion that they are. 11 SENATOR LEVY: Certainly we can 12 all envision circumstances where they would be 13 alone with children when the bus driver is not 14 on the bus, and it is not only children that are 15 developmentally disabled. 16 SENATOR JONES: All right. Would 17 the sponsor yield to another question? 18 ACTING PRESIDENT FARLEY: Senator 19 Levy. 20 SENATOR JONES: Does current law 21 allow school districts to require these checks 22 if they so choose? 23 SENATOR LEVY: Yes. But when we 1520 1 did the original law -- and incidentally, since 2 we have done that law, 584 school bus drivers 3 have been disqualified because of felony 4 convictions. When we did the original law, 5 school districts at that point could have 6 required fingerprinting of school bus drivers, 7 but based upon what the law has shown us, 584 8 disqualifications of drivers that shouldn't be 9 behind a wheel. Certainly given the facts of 10 the situation I told you about and there is more 11 than one on Long Island with attendants, 12 certainly gives us the same justification for 13 learning whether those people who work as 14 attendants have a disqualifying felony 15 conviction. 16 SENATOR JONES: Will the sponsor 17 just yield to one more question? 18 SENATOR LEVY: Yes, certainly. 19 ACTING PRESIDENT FARLEY: Senator 20 Levy. 21 SENATOR JONES: Would this be a 22 cost to the school districts? And if so, then 23 is this an unfunded mandate? 1521 1 SENATOR LEVY: Senator, when we 2 did the original legislation, it was the same 3 type of requirement. Yes, there is a cost 4 involved, but I can tell you that 5 notwithstanding those costs, the school boards 6 association, the big five and so on, are all 7 actively supporting this piece of legislation. 8 The only ones that are opposed to this piece of 9 legislation are the employee representatives. 10 Their unions are opposed to this legislation, 11 not the school districts. 12 SENATOR JONES: On the bill. 13 ACTING PRESIDENT FARLEY: On the 14 bill, Senator Jones. 15 SENATOR JONES: As I said, 16 Upstate, school bus attendants are not the 17 norm. They are more unusual, and I really do 18 not know of any incidents where they would be 19 alone with children, but I'm certainly 20 supportive of anything that is going to provide 21 for the safety of our children, so I will accept 22 what you're saying about this. I would just 23 hope that we have also covered every other, I 1522 1 guess, issue within the school -- everyone else 2 who might be in the same position, would be 3 alone with children, because I think it is 4 critical that we protect the children in our 5 state. So I will vote for it, although I am 6 concerned about imposing something on the 7 district. 8 ACTING PRESIDENT FARLEY: Senator 9 Dollinger. 10 SENATOR DOLLINGER: Will the 11 sponsor yield to one question, Mr. President? 12 ACTING PRESIDENT FARLEY: Senator 13 Levy. 14 SENATOR DOLLINGER: Senator, as I 15 understand your response to Senator Jones, 16 there's current legislative authority for a 17 school district to do this if they wanted to. 18 SENATOR LEVY: Yes. 19 SENATOR DOLLINGER: My question 20 is, if they can do it by themselves without any 21 further authority for themselves, if they are 22 close to the situation, they are operating the 23 buses, they know who they are putting on, 1523 1 they've got people responsible, why wouldn't we 2 let them do it by themselves? Why do we have to 3 tell them to do it? They've got the law. They 4 can choose to do it themselves. 5 SENATOR LEVY: Senator, I have 6 listened since you have served in the Senate - 7 I've watched and listened to you speak about 8 such great justifiable pride about your own 9 children and the reason that we've got to do 10 this legislation is for kids like yours, 11 Senator, when they are on the bus with a school 12 bus attendant, that if your school district did 13 not fingerprint that attendant and that 14 attendant had a disqualifying felony that your 15 children should be protected when they ride on 16 that bus. That's why we have to do this 17 legislation. 18 ACTING PRESIDENT FARLEY: Senator 19 Dollinger. 20 SENATOR DOLLINGER: On the bill, 21 Mr. President. I agree with Senator Levy that 22 someone should be protecting my children on the 23 school buses, but I hope you have also heard me 1524 1 talk, perhaps not as eloquently, about the 2 separation of power, about the distribution of 3 power, about the distribution of power to the 4 courts, about the distribution of power to the 5 legislature, because in my training as a lawyer 6 I'm very sensitive to those issues from a 7 constitutional or legislative scheme. I'm also 8 sensitive for the need to determine who makes 9 decisions. 10 In my view, there is a lot of 11 justification for doing exactly what you 12 suggest, but that argument is best made to the 13 people in the trenches, to the school boards. 14 They can clearly decide to do this all by 15 themselves. And the argument that parents, 16 myself or other parents, would make should be 17 made to the school boards. If they are going to 18 have to pay the cost, they should make the 19 decision. Why should we mandate it from the 20 top? 21 I voted for this legislation last 22 year. Frankly, in looking at it in terms of a 23 mandate -- and we're requiring every school 1525 1 district to do it where they may not see it as a 2 problem. In my own home town of Brighton, they 3 may not see this as a problem. I hold them 4 accountable at the ballot box for how they deal 5 with my children when they are on a bus. I will 6 hold them accountable if they fail to take this 7 measure if in their opinion it is not wanted, 8 not justified, and they don't want to pay the 9 cost. I think that's a reasonable judgment on 10 their part, could be a reasonable judgment on 11 their part. But they're clearly -- under our 12 system, they should be the ones who make the 13 decision. 14 SENATOR LEVY: Senator, if you 15 were a parent of that child that was raped and 16 sodomized because that attendant shouldn't have 17 been on that bus, you would want to do more with 18 that school district than to hold them 19 accountable at the ballot box. Now, we have 20 already made the decision in this house and in 21 the Assembly and the Governor signed the bill 22 into law to have the same type of fingerprinting 23 for a school bus driver, and that was a mandate 1526 1 on a school district, and as I've indicated, the 2 School Boards Association is in support of this 3 legislation and requiring school districts to 4 take this action. 5 SENATOR DOLLINGER: On the bill, 6 Mr. President. 7 ACTING PRESIDENT FARLEY: On the 8 bill. Senator Dollinger. 9 SENATOR DOLLINGER: I've taken a 10 look at this. I voted in favor of this last 11 year. I am now convinced that this is a mandate 12 in its true and unabashed form. 13 It does serve a good purpose, 14 Senator. I acknowledge that it does, but the 15 question is who ought to make the decision, and 16 it seems to me we've got school boards who are 17 elected by people, who have liability policies, 18 who have liability exposure in the event that 19 they don't properly account for my children. 20 They are elected to make these decisions. This 21 is exactly the decision, the kind of decision 22 they should make. 23 But the question becomes why 1527 1 should we tell them they have to do it if they 2 decide they don't want to? Seems to me that is 3 the fundamental proposition of a mandate. I 4 don't -- have not heard, frankly, a clamor from 5 the districts that I represent for this 6 legislation, and it seems to me that in the 7 distribution of power in this state, of what 8 authority we give to local school boards, one of 9 the clear authority we give them is to take care 10 of my children and let them make that decision. 11 The importance of who is making 12 the decision in this case is the reason I'm 13 going to change my vote from last year voting in 14 favor to vote against it. The argument that you 15 make, Senator, you can come to the Brighton 16 school district where I live and make that 17 argument and they may be convinced that it's the 18 right thing to do, but to tell them that we've 19 decided here to do it, when I haven't heard from 20 them, I haven't heard any information that this 21 is a significant problem in my district and that 22 they would want to do it, I feel that we're 23 telling them to do something that they 1528 1 necessarily haven't asked us to do and that they 2 have the clear power to do themselves. 3 For that reason, because it's a 4 distribution of power issue for me, I'm going to 5 change my vote and vote against it this year. 6 SENATOR LEVY: Senator Dollinger, 7 will you yield to a question? Have you heard 8 from your school district that they are opposed 9 to this legislation? 10 SENATOR DOLLINGER: No, I haven't 11 heard either side of this. 12 SENATOR LEVY: Have you heard 13 from the School Boards Association that they are 14 opposed to this legislation? 15 SENATOR DOLLINGER: I have not 16 heard from them one way or another on this 17 issue. I'm not aware of any memos. I just 18 point out that I don't have any memos from the 19 school board in favor of this bill. 20 SENATOR GOLD: Mr. President. 21 ACTING PRESIDENT FARLEY: Senator 22 Gold. 23 SENATOR GOLD: Yes, will the 1529 1 sponsor yield to a question? 2 SENATOR LEVY: Certainly, Senator 3 Gold. 4 ACTING PRESIDENT FARLEY: Senator 5 Levy. 6 SENATOR GOLD: Senator, you 7 indicated you said the big five are for this; is 8 that correct? 9 SENATOR LEVY: Yes. 10 SENATOR GOLD: Today, do the big 11 five use their discretion and get fingerprints 12 in these cases? 13 SENATOR LEVY: Senator, I can not 14 tell you whether they are in fact finger 15 printing or not. I can tell you that they are 16 supporting the legislation. 17 SENATOR GOLD: All right. And 18 secondly -- will the Senator yield to a 19 question? 20 SENATOR LEVY: Yes, Senator. 21 ACTING PRESIDENT FARLEY: Senator 22 Levy will yield, I'm confident. 23 SENATOR GOLD: Senator, do we 1530 1 fingerprint employees of the school systems who 2 do janitorial services? 3 SENATOR LEVY: We do not, 4 Senator. 5 SENATOR GOLD: Do we fingerprint 6 people who do maintenance work. 7 SENATOR LEVY: No, Senator Gold. 8 SENATOR GOLD: On the bill, Mr. 9 President. 10 ACTING PRESIDENT FARLEY: On the 11 bill, Senator Gold. 12 SENATOR GOLD: Mr. President. We 13 have on our calendar throughout the year a 14 number of pieces of legislation where we are 15 asked to give authority to either schools or to 16 district attorneys or to local governments who 17 don't have the authority to do a certain thing 18 that they think is important in the operation of 19 their functions. 20 The big five, Senator Levy says, 21 is in favor of this legislation, but we don't 22 even know if they do it today, and they have the 23 power to do it. Now, are they saying to the 1531 1 Legislature, "It's a great idea. I'd like to do 2 it. Make me do it. But if you don't make me do 3 it, I won't do it even though I can do it"? 4 I mean that just doesn't make any 5 sense. Either it's something that should be 6 done and these people are doing it wherever they 7 can possibly do it and maybe there's a place or 8 two in the state that aren't doing it, so they 9 should be doing it, so Senator Levy wants this 10 legislation to make sure that in those few 11 places in the state that are not doing it, they 12 must do it. But without that, Senator Levy, 13 there is no logic to this bill. 14 They have the power to do it. 15 The Legislature is not strapping the hands of 16 the school districts at all. And the thing that 17 I find more interesting, Senator Levy, we are 18 doing this for school bus drivers and now we're 19 talking about attendants who, I assume, work on 20 some bus with a school bus driver who has been 21 approved. And yet we allow people to do 22 janitorial services in the schools, walk around 23 the schools, go into bathrooms perhaps where one 1532 1 youngster is there alone, unprotected; we allow 2 maintenance people around the schools working 3 outside where some stray youngster may be, and 4 you don't fingerprint them. Seems to me that 5 they are a greater danger, if you want to create 6 that danger, than a school bus attendant who 7 happens to be there under the jurisdiction, if 8 you want to use that word, of a school bus 9 driver. 10 So I don't understand it. I also 11 want to point out, as I think you may have done, 12 that the American Federation of State, County 13 and Municipal Employees strongly opposes 14 passage, as does CSEA, and they point out they 15 do not know why these people are being singled 16 out for fingerprinting. 17 And while that is a legitimate 18 argument, I think the Dollinger argument is 19 still the best. If people have the power - 20 they have the power -- to come to the 21 Legislature and then say we must order them to 22 use this power in a situation where you are 23 dealing with generally responsible people 1533 1 running a school district makes one wonder. 2 Last year, Senator Connor and 3 Galiber and Gold and Hoffmann, Jones, Leichter, 4 Markowitz, Montgomery, Ohrenstein, Smith and 5 Stavisky voted in the negative. 6 Last section. 7 ACTING PRESIDENT FARLEY: Senator 8 Mendez. 9 SENATOR MENDEZ: Mr. President. 10 Statistics show that one out of four children 11 are abused sexually in schools. That is a 12 tremendous task in protecting our children that 13 we have to look at. I think that I am 14 supporting this bill, Mr. President, because at 15 least it starts to do something, whether or not 16 the present school system does have the power to 17 fingerprint the bus attendants. That in my mind 18 is irrelevant. Do you know why? Because this 19 legislation will remind everybody that we don't 20 want our children -- we want our children to be 21 safer. 22 Also, the maintenance individuals 23 and the janitors and what have you, they should 1534 1 also be fingerprinted, because they are every 2 single day enclosed near our children. 3 So I think this is a good bill, 4 Mr. President. I support it. 5 ACTING PRESIDENT FARLEY: On the 6 bill. 7 Read the last section. 8 THE SECRETARY: Section 2. This 9 act shall take effect on the 90 day after it 10 shall have become a law. 11 ACTING PRESIDENT FARLEY: Call 12 the roll. 13 (The Secretary called the roll.) 14 ACTING PRESIDENT FARLEY: Senator 15 Jones to explain her vote. 16 SENATOR JONES: Yes. My vote, 17 too, represents a change but for a different 18 reason. I am going to accept -- certainly up my 19 way it is not an issue. I have complete faith 20 in the school boards that I deal with that they 21 are taking precautions and, as I said, bus 22 attendants -- most people are lucky to have a 23 bus and a driver, far less an attendant. 1535 1 But apparently this is an issue. 2 I have listened to what Senator Mendez said, and 3 apparently it is an issue in downstate areas. 4 So I will support it on the basis of the 5 statistics you have given me today, because I 6 think we do have to protect our children first. 7 ACTING PRESIDENT FARLEY: 8 Results. 9 THE SECRETARY: Those recorded in 10 the negative on Calendar Number 88 are Senators 11 Daly, Dollinger, Galiber, Gold, Leichter, 12 Markowitz, Montgomery, Nanula, Ohrenstein and 13 Smith. Ayes 46. Nays 10. 14 ACTING PRESIDENT FARLEY: The 15 bill is passed. 16 THE SECRETARY: Calendar Number 17 298, by Senator Volker, Senate Bill Number 3385, 18 an act to amend the Penal Law and the Criminal 19 Procedure Law. 20 SENATOR GOLD: May we lay this 21 aside for Senator Galiber? 22 ACTING PRESIDENT FARLEY: Is that 23 your pleasure, Senator Present? 1536 1 SENATOR PRESENT: (Indicating 2 "Yes.") 3 ACTING PRESIDENT FARLEY: Lay it 4 aside. 5 THE SECRETARY: Calendar Number 6 328, by Senator Skelos, Senate Bill Number 7 6567B, Education Law. 8 ACTING PRESIDENT FARLEY: There 9 is a local fiscal impact note here at the desk. 10 You can read the last section. 11 SENATOR GOLD: What is the bill? 12 ACTING PRESIDENT FARLEY: That's 13 328. 14 SENATOR GOLD: Last section. 15 ACTING PRESIDENT FARLEY: Read 16 the last section. 17 Did you want to speak, Senator 18 Dollinger? 19 SENATOR DOLLINGER: Explanation, 20 please. 21 ACTING PRESIDENT FARLEY: 22 Explanation. Senator Skelos. 23 SENATOR SKELOS: Senator 1537 1 Dollinger, this legislation, under existing law, 2 school districts if the parents of a child or a 3 guardian so desire must notify the family that 4 their child has not been in school that day. 5 Under this legislation, if the parents so 6 desire, it would require that parents notify 7 them within three hours of that child not being 8 in school -- the school notifies the parents. 9 SENATOR DOLLINGER: Mr. 10 President. 11 ACTING PRESIDENT FARLEY: Senator 12 Dollinger. 13 SENATOR DOLLINGER: I got a 14 chance to read this. First of all, in the back 15 in Section 2, which deals with the requirements 16 that if they are absent for more than five 17 consecutive days, there will be notification 18 of - 19 SENATOR SKELOS: That's an 20 additional part of this legislation. It would 21 state that if the child has been missing for 22 five days and the school district has not been 23 able to verify where that child is or contact 1538 1 the parents, then the school district would 2 notify the local authorities that this child was 3 missing. 4 SENATOR DOLLINGER: Okay. In the 5 prior two sections of the law, there's 6 exculpatory language in the event that the 7 school district doesn't comply with the 8 directive. It says that no criminal or civil 9 liability will an attach. 10 In this section, that language is 11 absent. Is it your intention to put -- to make 12 a school district liable or increase its 13 exposure if for some reason they don't report to 14 the law enforcement agency - 15 SENATOR SKELOS: No. 16 SENATOR DOLLINGER: -- within 17 five days? 18 SENATOR SKELOS: No. 19 SENATOR DOLLINGER: Shouldn't 20 that language be included to provide exculpation 21 for the district in the event they don't comply 22 with the law? 23 SENATOR SKELOS: I believe the 1539 1 other section would cover that. 2 SENATOR DOLLINGER: The prior 3 section? Which section the - 4 SENATOR SKELOS: There is that 5 language in another section of the law. 6 SENATOR DOLLINGER: Okay. I just 7 point out that in both of the prior sections 8 when it says "notification upon absence" and 9 "notification when deemed absent," there is 10 exculpatory language that says the school 11 district isn't criminally or civilly liable, but 12 yet in that provision there isn't, and I just 13 wonder. Your intention is to create no greater 14 exposure for the school district under this 15 section either. Isn't that correct? 16 SENATOR SKELOS: What this 17 legislation does, it extends the existing law 18 and just adds this section concerning notifying 19 the police authority. So I think the language 20 that you're talking about would cover it and the 21 school district would not be criminally or 22 civilly liable. 23 SENATOR DOLLINGER: Okay. I 1540 1 guess I -- and I don't mean to create a problem 2 but it seems to me that it's explicitly referred 3 to in the prior paragraphs; in C and D, it 4 contains exculpatory language and applies to 5 those specific paragraphs. And if the intention 6 is not to create any further liability to the 7 school district, the language should be in that 8 paragraph, as well. I don't know whether it's 9 worthy of amendment, perhaps, at a later time. 10 I'm going to vote in favor of the 11 bill. I have one other question, though. 12 As I understand it, this language 13 only applies to elementary schools? 14 SENATOR SKELOS: Yes. 15 SENATOR DOLLINGER: And, again, 16 through you, Mr. President. I apologize. 17 SENATOR SKELOS: Yes, elementary 18 schools. 19 SENATOR DOLLINGER: In the 20 definition of elementary school, does that 21 include middle schools as well? 22 SENATOR SKELOS: It would be K 23 through 5 or K through 6, I believe, depending 1541 1 on the school district. 2 SENATOR DOLLINGER: Okay. Again, 3 Mr. President. On the bill. 4 ACTING PRESIDENT FARLEY: On the 5 bill, Senator Dollinger. 6 SENATOR DOLLINGER: I think this 7 is a good idea. I would urge the sponsor, 8 however, to consider including the middle 9 schools as well. My recollection is that many 10 of the pupils who are actually abducted or have 11 been killed are pupils who were beyond 12 elementary school and what happens is you 13 suddenly turn 11 or 12 and you think that you 14 can be very independent and that you can go out 15 and walk down streets or walk through your 16 town. Third and fourth graders aren't quite 17 that ambitious because they aren't quite that 18 old, and it's that little sense of independence 19 that can often times expose a child to a very, 20 very dangerous situation. 21 And I guess I would encourage the 22 sponsor to look to perhaps an amendment at a 23 later time to include this provision, which has 1542 1 good language, to include middle school students 2 as well so we extend that protection up to 8th 3 grade. 4 SENATOR SKELOS: Very good 5 suggestion, Senator. Thank you. 6 ACTING PRESIDENT FARLEY: Read 7 the last section. 8 SENATOR MONTGOMERY: Mr. 9 President. 10 ACTING PRESIDENT FARLEY: Oh, I'm 11 sorry. Senator Montgomery. 12 SENATOR MONTGOMERY: Yes, thank 13 you. Mr. President. I would just like to 14 comment on this legislation. 15 I think Senator Skelos has an 16 extremely important issue that is being raised 17 here; and that is, when children are absent, we 18 want to make sure that their parents know that 19 and that someone is aware. However, Senator 20 Skelos, I'm not sure how this is going to work 21 particularly for New York City, and I'm just 22 reading the memo which says, "It requires the 23 school to notify parents within three hours of 1543 1 the commencement of the school day and if the 2 whereabouts of the child remains unknown, such 3 notification, a search must be made by an 4 attendance official." 5 Now, in New York City where we 6 have already a tremendous budget deficit and a 7 substantial percentage of that deficit has 8 fallen upon our school -- public school 9 department, the board of education, we don't 10 have attendance people to go out looking for 11 children. We don't have people to make those 12 phone calls to track down 200,000 children who 13 are absent on an average daily basis. 14 So is this a mandate that is now 15 going to require the board of education or is 16 going to support parents agitating for this kind 17 of service where we don't have -- we have 18 classes with 29 and 30 children in the class and 19 not enough teaching staff? 20 SENATOR SKELOS: Let me 21 explain - 22 ACTING PRESIDENT FARLEY: Senator 23 Skelos. 1544 1 SENATOR SKELOS: -- Senator 2 Montgomery. First of all, school districts are 3 required under existing law if the parents so 4 desire -- number 1, they are required to notify 5 the parents that if you want us to, we will 6 notify you when your child is missing from 7 class. So you need the parents under existing 8 law to say to the school district, yes, notify 9 me. If they say this, then the school district 10 is required to notify the parents, but there 11 really are no standards on how you do this. It 12 can be by a letter. It can be by a phone call. 13 We go back to the case of Eaton Pates of several 14 years ago. Many police authorities felt that if 15 the parents had been notified within a few hours 16 that perhaps they could have caught his abductor 17 and saved him. We still do not know what 18 happened to him. 19 But the requirement is there 20 already in existing law that this be 21 accomplished. So all we're saying is if the 22 school districts notify the parents and the 23 parents so desire to be notified, then there 1545 1 must be a call back to them within three hours 2 of this child being missing. 3 SENATOR MONTGOMERY: And I think, 4 Mr. President - 5 SENATOR SKELOS: Just one other 6 point, Senator Montgomery, if I can. 7 SENATOR MONTGOMERY: Yes. 8 SENATOR SKELOS: Is I have a 9 piece of legislation which, hopefully, we'll be 10 voting on in the near future that would allow 11 the senior citizens who are part of the RSVP 12 program, one of their priorities would be on a 13 voluntary basis to work in the schools as part 14 of this program, to assist the school districts 15 in doing these type of call back programs. But 16 this is not a new requirement on school 17 districts. It is there right now that there be 18 some sort of notification to the parents and 19 again if they request it. 20 SENATOR MONTGOMERY: Yes, and 21 thank you for that explanation, but I still 22 maintain, Mr. President, that what Senator 23 Skelos has done is in fact given a three-hour 1546 1 limit and required that phone calls be made 2 based on the parent's request and so there has 3 to be someone there physically making those 4 phone calls, and if there are 50 or 100 children 5 absent on any given day and the parents have 6 required and requested that they be called, we 7 have to have a person there, somebody has to 8 make those phone calls. 9 And if the parent says I don't 10 know why Johnny is not in schools, then we are 11 also requiring that there be someone to go out 12 looking for them. Now, I would love to have 13 that happen. I think that is important. It is 14 extremely important. But by the same token, we 15 don't have guidance counselors in schools right 16 now. We don't have -- our classes are too, too 17 large. We don't have money to make the classes 18 smaller. We don't have librarians in the 19 schools. We don't have -- never mind attendance 20 teachers or any of that. 21 So we are requiring one more 22 thing to happen in the school during the school 23 day by personnel who are in fact not going to be 1547 1 in the classroom. So, Mr. President, I just 2 think that this makes a lot of sense, but I 3 certainly would not want this imposed on the 4 board of education where we are already right 5 now -- the Chancellor as we speak is having to 6 reach out into each district and require of each 7 district superintendent that they cut their 8 staff. So I just think this is the wrong time 9 to do this kind of a mandate of an increase in a 10 service that is non-classroom related, when we 11 are talking about improving the education for 12 children. 13 So I'm going to vote no on it, 14 not because it's a bad bill, but I just think 15 there are so many other pressing, pressing other 16 needs and issues of our board of education, that 17 we need not do this at this time. 18 Thank you until. 19 ACTING PRESIDENT FARLEY: Read 20 the last section. 21 THE SECRETARY: Section 3. This 22 act shall take effect on the first day of 23 September next succeeding the date on which it 1548 1 shall have become a law. 2 ACTING PRESIDENT FARLEY: Call 3 the roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 56. Nays 6 1. Senator Montgomery recorded in the negative. 7 ACTING PRESIDENT FARLEY: The 8 bill is passed. 9 ACTING PRESIDENT FARLEY: Senator 10 Stavisky. 11 SENATOR STAVISKY: Mr. President. 12 Without objection - 13 ACTING PRESIDENT FARLEY: The 14 bill is passed. 15 SENATOR STAVISKY: I should like 16 to be recorded in the negative on Calendar 17 Number 88. 18 ACTING PRESIDENT FARLEY: Without 19 objection, Senator Stavisky is in the negative 20 on Calendar 88. 21 SENATOR CONNOR: Mr. President. 22 ACTING PRESIDENT FARLEY: Senator 23 Connor. 1549 1 SENATOR CONNOR: Thank you, Mr. 2 President. If there is no objection, I would 3 also like to be recorded in the negative on 4 Calendar Number 88. 5 ACTING PRESIDENT FARLEY: Without 6 objection. 7 Regular order. 8 THE SECRETARY: Calendar Number 9 342, by Senator Kuhl, Senate Bill Number 3182, 10 an act to amend the Agriculture and Markets Law. 11 SENATOR GOLD: Explanation. 12 ACTING PRESIDENT FARLEY: 13 Explanation has been asked for. Senator Kuhl. 14 SENATOR KUHL: Yes, Mr. 15 President. This is a bill that is probably best 16 explained by reading the first four lines of the 17 bill language, and it says, "No solid waste 18 management facility shall be located on land 19 used in agricultural production, located within 20 an agricultural district, or upon land receiving 21 an agricultural assessment pursuant to this 22 article and taken through the exercise of the 23 eminent domain." 1550 1 Simply put, this would ban the 2 power of local governments to take lands by 3 eminent domain which is included in an 4 agricultural district or receiving agricultural 5 assessments for the purpose of solid waste 6 landfill or solid waste management facilities. 7 SENATOR LEICHTER: Mr. President. 8 ACTING PRESIDENT FARLEY: 9 Senator. 10 Simply put, this would ban the 11 power of local governments to take lands by 12 eminent domain which is included in an 13 Agricultural District or receiving agricultural 14 assessments, for the purpose of solid waste 15 landfill or solid waste management facilities. 16 SENATOR LEICHTER: Mr. President. 17 ACTING PRESIDENT FARLEY: Senator 18 Leichter. 19 SENATOR LEICHTER: Yes, Mr. 20 President, we debated this bill in the past. 21 I'm going to try to be very brief, just state 22 the reasons I think this bill is a mistake. 23 I think to fix by legislation 1551 1 land where you can not site any solid waste 2 facility, I think is going to create a lot of 3 problems. There's suburban land that is very 4 valuable; there is urban land that is very 5 valuable. I think we all appreciate the value 6 of agricultural land, but let me just say 7 Senator Kuhl, I have, as some of you know a 8 place that I love and cherish very much in Essex 9 County, represented by my good friend here, 10 Senator Stafford. I know that maybe two or 11 three years ago they developed a solid waste 12 management site for the whole county, Senator 13 Stafford, in the Town of Lewis. While I'm not 14 positive, I suspect that that is classified as 15 agricultural land. You do have counties in this 16 state where most of the land is agricultural, 17 either classified as such or assessed as such, 18 where the localities may decide that that is 19 still the land that they want to use because 20 they are under pressure to come up with a solid 21 waste management facility, and I think to 22 preclude them by this legislation from doing it 23 under any circumstances, I respectfully submit 1552 1 is a mistake. 2 SENATOR GOLD: Mr. President. 3 ACTING PRESIDENT FARLEY: Wait a 4 second. Senator Oppenheimer, I think, is 5 first. 6 SENATOR OPPENHEIMER: Right. As 7 all of us know, it is very difficult to site a 8 solid waste management facility. It is 9 difficult in all sections of our state. Upstate 10 much of the land is agricultural land. If you 11 say you can't site a facility on agricultural 12 land, you are in effect taking out almost all 13 the land which could potentially be sited. It 14 is difficult enough. There are prohibitions 15 enough on the siting and protections enough 16 under our environmental law that I think to 17 create further hardships in the siting would 18 make it exceedingly difficult for a 19 municipality. 20 And, therefore, I'm going to be 21 voting no. 22 ACTING PRESIDENT FARLEY: Senator 23 Gold. 1553 1 SENATOR GOLD: Mr. President. 2 There is a memorandum in opposition by the New 3 York State Department of Environmental 4 Conservation. It says "strongly opposed." And 5 their arguments are -- there are two arguments 6 they set forth which really I think bear some 7 significant consideration. 8 Firstly, they point out that the 9 governmental taking of agricultural land for 10 solid waste management facilities represents 11 only an extremely small portion of loss of these 12 valuable lands for agriculture. A worse case 13 analysis shows that in any year less than 100 14 acres of actual active agricultural land will be 15 used for landfill. The number is compared to 16 the annual loss of 40,000 to 60,000 acres of 17 urban and suburban development. 18 Furthermore, they point out, the 19 bill does not place any restrictions on the use 20 of agricultural land for private landfill 21 facilities. 22 The other point they make is a 23 point that when I came here as a younger person 1554 1 in the early 1700s, I thought that the 2 constitution meant something. I want to 3 congratulate all of you because as pigheaded as 4 I am, you have convinced me that the 5 constitution never interferes between friends. 6 But the fact is that Article 9, Section 1, of 7 the New York State Constitution provides that 8 "Local governments shall have the power to take 9 land for public purposes and such excess lands 10 as are necessary to provide for public use, 11 subject to legislative regulation over the 12 exercise of the power of eminent domain and 13 excess combination by local government outside 14 of its boundaries." Therefore, assuming we even 15 pass it, it would be probably declared 16 unconstitutional because that very locality that 17 was referred to so eloquently by Senator 18 Leichter, which might have no other choice but 19 to use a small piece of agricultural land in 20 order to abide perhaps by a federal court order, 21 would take that land, ignore this legislation, 22 point to the constitution, and then maybe some 23 pigheaded person outside the Legislature that 1555 1 you haven't convinced that the constitution 2 doesn't mean so much may shock all of us and 3 uphold the constitution. 4 So I do not think it is a great 5 idea. Do I respect Senator Kuhl and his 6 commitment to the agriculture community? I 7 certainly do. But this bill may be well 8 intentioned but it is unconstitutional and it 9 would create more problems than it would solve. 10 ACTING PRESIDENT FARLEY: Senator 11 Kuhl. 12 SENATOR KUHL: Just not to 13 belabor this, Mr. President, but I think there's 14 something that Senator Leichter and also Senator 15 Oppenheimer have missed, and that is that the - 16 when we talk about prohibiting the taking in an 17 Agricultural District, we're talking about a 18 very small segment of land across the state. 19 And it is not true, Senator Leichter, that every 20 county or some counties are totally encapsulated 21 within an Agricultural District. That is just 22 not the case. 23 There is a whole formulation 1556 1 process that was created by a law adopted by 2 this Legislature, and I know Senator Gold was 3 here because of his extended service, but you 4 may have been here, too, and it occurred back in 5 1971 when the Agricultural District Law was 6 adopted. 7 But there is a process where a 8 group of individuals -- and there is a minimum 9 acreage involved -- has to make an application. 10 Application has to be approved by a local county 11 board and then an Ag District can be created. 12 Those are reviewable every eight years, so there 13 is an annual kind of review process that each 14 county goes through. 15 Now, what does that do for a 16 local farmer? It puts a local farmer in a 17 position where he can have an assessment based 18 on his actual production situation. It's not 19 based necessarily on fair market value. So in 20 some cases that can be a significant tax 21 advantage to him. This bill as posed doesn't 22 deal with the situation where a farmer says if 23 he is in an Agricultural District that he wants 1557 1 to voluntarily enter into arrangements with a 2 local municipality and sell his farm or a 3 portion of his farm for a planned management 4 facility. Doesn't deal with that. What this 5 deals with is the taking involuntarily of this 6 parcel of land against the wishes of a farmer. 7 And what you are failing to miss 8 and what we're seeing out in areas of my portion 9 of the state -- and I know down in the Mid 10 Hudson area -- we are seeing what we call the 11 critical mass of agriculture, that cumulative 12 acreage that will allow for a continued 13 production of the agricultural arena to 14 continue, being essentially decimated because 15 it's being picked off. As Senator Gold said, 16 40,000 to 60,000 acres are being lost to urban 17 sprawl, to suburban development, and that's 18 being captured up in this whole agricultural 19 arena. 20 What we're talking about -- and I 21 agree with Senator Gold -- is that maybe we're 22 only looking at 100 acres here on an annual 23 basis of taking, but that hundred acres can be 1558 1 critical to the development and to the 2 continuation of this critical mass of 3 agriculture. 4 So by a one taking for a land 5 management facility, you can essentially 6 undermine the whole agricultural arena in one 7 particular area. That's what's so important. 8 And if it is only 100 acres, then certainly 9 there ought to be a hundred acres somewhere else 10 within this nearby region that ought to be able 11 to be voluntarily obtained so that we don't 12 undermine agriculture. 13 Also as a portion of that 1971 14 Agriculture Districts Law, there was a 15 commitment by this Legislature, by the State of 16 New York, saying that it was a major fundamental 17 underlying principle that we would substantiate 18 and support agriculture because we thought it 19 was so important to the fabric of our society 20 out our way, to the needs of our constituents in 21 this state, that we set forth on this process of 22 creating Agriculture Districts that essentially 23 would support agriculture. What this bill does 1559 1 is to recognize that we can undermine that 2 process. We can undermine that process if we 3 allow individual communities to select, on their 4 own basis and not on a statewide general basis, 5 the site selection for these land management 6 facilities. 7 One of the things that Senator 8 Gold mentioned in his argument was the question 9 of constitutionality. And certainly anybody who 10 wants to try to defeat a bill like this will 11 talk about the constitutionality of this 12 provision. You know, local governments 13 certainly get their power to take land by 14 eminent domain from Section 1, Article 9 of the 15 constitution, and it does specifically state, 16 the Legislature may authorize and -- and I 17 underline -- and regulate the power of eminent 18 domain. 19 Section 3 of that same article 20 goes onto say, okay, that other than the 21 property -- affairs of property and of the local 22 government that the Legislature reserves the 23 power to limit that. 1560 1 Now, what I point out to you is 2 that there have not been a great deal of cases 3 that deal with this particular issue, but there 4 was one in the early years of our current 5 governor. Back in 1984, there was the Town of 6 Islip versus Cuomo, and the Court of Appeals 7 upheld the constitutionality of a section of 8 Environmental Conservation Law which restricted 9 the disposal of solid waste in landfills in 10 Nassau and Suffolk County. That's the only 11 case, really, that's on record dealing with this 12 issue. And, again, they upheld the 13 constitutionality of that limitation. 14 You know, again Senator Gold's 15 argument about the constitutionality, one of the 16 things that's in that memo that he noted that 17 comes from DEC is that by regulation - 18 regulation -- not by the act of this Legislature 19 with the consignment of the Governor, they have 20 precluded the taking of land by eminent domain 21 when there are soils in what they call 22 Classification 1 and 2. Now, I would say to you 23 that that is an argument in support that it is a 1561 1 constitutional provision that we are seeking 2 here today. 3 So I'm fully in support of this 4 bill as you probably noticed in regard to my 5 argument. I think it's vital if we're going to 6 look to the long-term preservation of 7 agriculture. Agriculture certainly is under 8 tremendous strain in this state, certainly in 9 this country today, and I think if you want to 10 see the communities in Upstate New York just 11 fade away, you want to see that fabric 12 destroyed, then you continue to allow the things 13 that are happening in communities across this 14 state and you would vote against this bill. But 15 if you feel that agriculture is a necessity, is 16 absolutely essential for this state to have a 17 piece of that to provide free products -- I 18 should say products of -- some of them are free. 19 I think that's what the farmers tell us from the 20 prices they are getting paid for them. But if 21 you think this state ought to support an 22 industry that in fact is necessary for the 23 nutritious evolvement of our citizenry, then in 1562 1 fact you will support this bill. 2 Now, I know you will make the 3 right decision, Senator Leichter, and I know 4 Senator Oppenheimer probably has revisited her 5 thought on this. Senator Gold, I know has been 6 here so long that he has probably voted against 7 an act like this so he is not so likely to do 8 that. But I certainly would encourage all of 9 you to rethink your opposition if you have that, 10 and I ask you to support the bill. 11 SENATOR GOLD: Mr. President. 12 ACTING PRESIDENT FARLEY: Senator 13 Gold. 14 SENATOR GOLD: Will Senator Kuhl 15 yield to one question? 16 SENATOR KUHL: Certainly. 17 SENATOR GOLD: First of all, 18 Senator, I don't know about -- whether I 19 appreciate that last remark, but as someone who 20 has heard you declare your handicap and then see 21 you putt, I - 22 At any rate, Senator, you made a 23 comment, and I'm curious whether you're able to 1563 1 address this. You said that without this 2 legislation, communities could themselves take 3 action which could have an affect on agriculture 4 and without any state oversight on what the 5 general plan was. I think you said something 6 along those lines. Does your bill -- couldn't 7 we draft a bill or does your bill take into 8 account, maybe there should be some oversight so 9 that in a particular area we could save some 10 agricultural land by doing something else. But 11 I gather from your bill it doesn't do anything 12 like that at all. You merely mandate you can't 13 use the agricultural land even if there was some 14 general state plan that protected agriculture in 15 general, but still suggested that this one 16 particular site might be valuable. 17 SENATOR KUHL: No, I didn't say 18 exactly what you said, Senator. Again, I don't 19 want you to use the word just agricultural land, 20 because that's an improper reference to the 21 bill. 22 The bill only deals with land 23 that's situated in an Agricultural District 1564 1 under production, and that really limits the 2 number of acres that are out there -- or that is 3 receiving an agricultural assessment, which 4 doesn't expand it much more, because they don't 5 get the assessment unless it's under production 6 and in an agricultural district. 7 So, it's very, very limited, but 8 this is our answer to that indiscriminate type 9 of activity by communities who really aren't 10 looking for the general good. And as I said, 11 this State Legislature, years ago, decided that 12 it was the general good to protect agriculture. 13 So this is just a reaffirmation of that process, 14 that dedication by this Legislature and a 15 further indication of where we want agriculture 16 to be in the next century. 17 ACTING PRESIDENT FARLEY: Read 18 the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect immediately. 21 ACTING PRESIDENT FARLEY: Call 22 the roll. 23 (The Secretary called the roll.) 1565 1 ACTING PRESIDENT FARLEY: Senator 2 Oppenheimer to explain her vote. 3 SENATOR OPPENHEIMER: To explain 4 my vote, please. Local officials do have the 5 best interest of their immediate communities in 6 mind. And if they are under a mandate to site 7 such a facility as this, they are doing the best 8 job they can, and I think this makes it unduly 9 onerous for the municipal officials who are 10 trying I think to do the best they can. They 11 have the home rule with them in our state. 12 Certainly, it's a very strong influence in my 13 county, and we believe that land use is the 14 ultimate home rule of the municipal decision 15 making. So I vote against this. 16 ACTING PRESIDENT FARLEY: Senator 17 Oppenheimer in the negative. 18 THE SECRETARY: Those recorded in 19 the negative on Calendar 342 are Senators Gold, 20 Leichter and Oppenheimer. Ayes 55. Nays 3. 21 ACTING PRESIDENT FARLEY: The 22 bill is passed. 23 THE SECRETARY: Calendar Number 1566 1 358, by Senator Hannon, Senate Bill Number 280, 2 an act to amend the Real Property Tax Law. 3 ACTING PRESIDENT FARLEY: Read 4 the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the 90 day. 7 ACTING PRESIDENT FARLEY: Call 8 the roll. 9 (The Secretary called the roll.) 10 ACTING PRESIDENT FARLEY: Senator 11 Gold. 12 SENATOR GOLD: May I have my name 13 called? 14 ACTING PRESIDENT FARLEY: Senator 15 Gold to explain his vote. 16 SENATOR GOLD: Yes, I just wanted 17 to point out we have had this discussion 18 before. The Citizens Housing and Planning 19 Council is opposed to it, the New York City 20 Mayor's Office -- this year? Last year. That's 21 why they clarified it. Last year's Mayor was 22 opposed to it in the City of New York. And 23 Senator Connor and Gonzalez, Halperin, -- that's 1567 1 not going to help much -- Markowitz, Mendez, 2 Montgomery, Ohrenstein, Onorato, Solomon, 3 Weinstein and Senator Goodman voted in the 4 negative. 5 ACTING PRESIDENT FARLEY: Last 6 section. 7 Negatives raise your hands. 8 THE SECRETARY: Those recorded in 9 the negative on Calendar Number 358 are Senators 10 Connor, Galiber, Goodman, Kruger, Leichter, 11 Markowitz, Mendez, Montgomery, Nanula, 12 Ohrenstein, Onorato, Santiago and Solomon. Ayes 13 45. Nays 13. 14 ACTING PRESIDENT FARLEY: The 15 bill is passed. 16 Senator Present. 17 SENATOR PRESENT: Mr. President. 18 Is there a report of the standing committee at 19 the desk? 20 ACTING PRESIDENT FARLEY: There 21 is. 22 SENATOR PRESENT: Can we have it 23 read? 1568 1 ACTING PRESIDENT FARLEY: 2 Secretary will read the report of the standing 3 committee. 4 THE SECRETARY: Senator Stafford 5 from the Committee on Finance reports the 6 following bill directly for third reading: 7 Senate Budget Bill, Bill Number 6688A, an act to 8 amend Chapters 50, 51, 52, 53, 54 and 74 of the 9 Laws of 1993, making appropriations for the 10 support of government. 11 ACTING PRESIDENT FARLEY: The 12 bill is reported directly to third reading. 13 Senator Present. 14 SENATOR PRESENT: Mr. President. 15 Is there a message of necessity at the desk for 16 that bill? 17 ACTING PRESIDENT FARLEY: There 18 is a message of necessity here at the desk. 19 SENATOR PRESENT: May it have its 20 third reading at this time? 21 ACTING PRESIDENT FARLEY: All in 22 favor of accepting the message of necessity, 23 please say aye. 1569 1 (Response of "Aye.") 2 Those opposed, nay. 3 (There was no response.) 4 Read the last section of this 5 bill. 6 SENATOR GOLD: Mr. President. 7 Would Senator Stafford yield to a question on 8 the bill? 9 ACTING PRESIDENT FARLEY: Senator 10 Stafford, would you yield? 11 SENATOR GOLD: Senator Stafford, 12 this is the so-called deficiency budget; is that 13 correct? 14 SENATOR STAFFORD Right. 15 SENATOR GOLD: Senator, is there 16 a reference in this bill at all to the 17 legislative portion of last year's budget? Was 18 there any deficiency necessity in this bill? 19 SENATOR STAFFORD: I don't 20 believe there is, Senator. 21 SENATOR GOLD: Will the Senator 22 yield to one more question? 23 ACTING PRESIDENT FARLEY: Senator 1570 1 Stafford. 2 SENATOR STAFFORD: Yes. 3 SENATOR GOLD: Senator, I know 4 you wouldn't know this off the top of your head 5 and I certainly wouldn't either, but perhaps in 6 your notes or counsel. Do you know what the 7 legislative budget was as enacted for the year 8 1993, 1994? 9 SENATOR STAFFORD: I would have 10 to look that up. 11 SENATOR GOLD: Do we have that 12 available? 13 SENATOR STAFFORD: Get it. 14 SENATOR LEICHTER: 167 million. 15 SENATOR GOLD: I think it was 16 $167 million. Does that sound right? 17 SENATOR STAFFORD: I'm sure my 18 Senator over the summer wouldn't be wrong. 19 SENATOR GOLD: Will Senator yield 20 to another question? 21 ACTING PRESIDENT FARLEY: Senator 22 Stafford. 23 SENATOR GOLD: Senator, it is my 1571 1 understanding that the legislative budget as 2 enacted by us last year about this time was 3 167-plus million and that we actually spent 4 175.2 million or 7 million-some-odd dollars more 5 than was appropriated. Now, Senator, wouldn't 6 that have to be covered today by an item in the 7 supplemental budget -- deficiency budget, 8 rather? 9 SENATOR STAFFORD: You are 10 referring to the legislative budget? 11 SENATOR GOLD: Yes, sir. 12 SENATOR STAFFORD: As soon as I 13 get the information, I certainly will discuss it 14 with you. There could be, and we will find the 15 answer for you. But there, for instance, could 16 be reappropriations, and we really wouldn't need 17 this. 18 SENATOR GOLD: Senator, if you 19 will yield for another question? I think that 20 you got the - 21 ACTING PRESIDENT FARLEY: Senator 22 Stafford? 23 SENATOR GOLD: I think that is 1572 1 the answer, Senator. My understanding -- and I 2 just want to make sure I'm correct -- is that 3 last year, in addition to the 167 million that 4 we appropriated for a legislative budget, that 5 we, in fact, did reappropriate perhaps some $60 6 million or someplace in that area -- I certainly 7 take a correction from your staff -- of money 8 that has been carried in the legislative budget 9 and not spent from the prior year. Is that the 10 source? 11 SENATOR STAFFORD: Yes. 12 SENATOR GOLD: Senator, if you 13 will yield to one other question. 14 I understand, Senator, that as we 15 examine the budget of the State of New York, 16 there are many places where we find 17 reappropriations. There are buildings that we 18 are going to fund that aren't built. There are 19 other situations where money was set up for a 20 program that didn't start that year; and, 21 therefore, it has to be reappropriated. Do you 22 know if any state agency or any place else in 23 the budget, Senator, where we reappropriate 1573 1 fifty or sixty million dollars of money that's 2 meant to be on a cash basis expenditure of these 3 agencies as we do with the Legislature? 4 SENATOR STAFFORD: Well, I would 5 start with the education capital project. I 6 would have to get documentation for further 7 examples. 8 SENATOR GOLD: I understand that 9 is capital. I understand that in captal 10 projects, where the project is not built on time 11 or not finished on time, we carry that money 12 forward. But the legislative budget, if I may, 13 Senator, is not building anything. It's 14 employees' salaries; it's paper, paper clips, 15 mailings, telephone, and things which happen as 16 a regular day-to-day expenditure of money. 17 Any place else where we carry a 18 fund for a department of that kind of money? 19 SENATOR STAFFORD: I believe 20 there are reappropriations. I think, in my 21 years here, I've seen them, and I will get some 22 examples. 23 SENATOR GOLD: On the bill, Mr. 1574 1 President. 2 ACTING PRESIDENT FARLEY: Senator 3 Gold on the bill. 4 SENATOR GOLD: Senator Stafford. 5 Let me suggest the following to you, Senator, 6 that what we do in terms of the legislative 7 budget is an outrage -- outrage. Now, when you 8 have a state department under the Governor and 9 that department comes in with a budget and we 10 negotiate the budget back and forth and then 11 comes March of the following year, such as we 12 are here now, and they have acquired additional 13 money, they must come to us and we determine 14 whether it's right or wrong, and we vote on a 15 deficiency budget. 16 It is only within the Legislature 17 that we give ourselves a $60 million slush 18 fund. So, you don't find the Legislature in a 19 deficiency budget because we don't have to. We 20 not only pass for ourselves a non-itemized 21 budget, but we give ourselves a cushion. 22 Now, if you realize that the 23 budget is about 167-, 170- million dollars and 1575 1 then you have a slush fund of 60 million, I mean 2 that's basically a capacity of -- I do the math 3 real quick -- maybe 25 percent or a third more 4 in the budget, undocumented as we go along. I 5 mean what an outrage! 6 But I tell you what's a worse 7 outrage. There were people in to see me 8 yesterday, university professors from SUNY. 9 They indicated that in order to keep SUNY the 10 viable, wonderful system it is, they would like 11 $10 million to specifically replace 250 12 professors. They didn't say, "Give me $10 13 million and maybe I will mow the lawn or maybe I 14 will put in a better here or there." They said, 15 line by line, "250 professors, $10 million." 16 Now, in the budget negotiation 17 right now, we are trying to balance a budget. 18 Now, that budget is money that's going to be new 19 money, money to go here and there, and 20 reappropriations. By the Legislature hogging - 21 hogging -- $60 million off to the side, we have 22 to find $60 million someplace else or ignore the 23 need. 1576 1 Now, if you want to forget the 60 2 million, we could give it back to the taxpayers, 3 as I have heard the Republican Party say over 4 and over ad nauseam, but you never do it; or we 5 could use that money, instead of holding it 6 aside dormant, to give it to State University. 7 That's $10 million. We could give it to your 8 local school districts and cut the property 9 taxes. I don't see any of you doing that. We 10 could give it to drug programs; we could give it 11 to pre-K programs; we could give it to women 12 going back into the work force. That would help 13 our tax base. 14 We could do a lot of things, but 15 the chutzpah of holding $60 million in a secret 16 drawer so that we don't have to come forward in 17 the deficiencies -- and I love this, too, you 18 know. I can just see the Finance Committee 19 saying to Commissioner X or Y, "How come we gave 20 you a budget and you didn't stick within the 21 budget, and you gotta come back for a 22 deficiency?" You never see the Legislature 23 coming for a deficiency, and the reason is you 1577 1 got 60 million in your back pocket. Now, that 2 really ought to stop. It ought to stop. 3 If we budget ourselves for 167 4 million or 171 million this year without even 5 telling the people where we're spending it, that 6 ought to be enough. It ought to be enough. 7 There is no possible logical or moral 8 justification for hiding that kind of money from 9 the public. 10 Senator Stafford, I can tell you 11 this. I respect your position and I -- but I 12 can tell you that this issue does not stop today 13 with the deficiency budget, and we can have all 14 the budget negotiations you want. 15 As far as I'm concerned, this is 16 going to be an issue right through the budget 17 process. I think that this Legislature is 18 composed of a huge group of hypocrits if we tell 19 other departments how to tow the line and to be 20 careful of every penny and we talk about the 21 economic health of this state and we treasure 22 the economic health of our residents and we're 23 concerned about their property tax level and we 1578 1 sit on $60 million of their money without 2 explanation and without need. 3 Now, I understand 4 reappropriations, and please don't insult the 5 press and don't insult the public by saying, 6 "Well, sure. Look, Senator, we have a ten 7 million reappropriation for this hospital, and 8 we have a five million reappropriation for this 9 school. Forget about that nonsense. We 10 understand that. Those are programs that are 11 going to be built. The money has to be held 12 aside. 13 You want to take a look at the 14 judiciary budget. I admit, all right, you got 15 me. They had a reappropriation of money there. 16 You got me. 180,000 - 17 SENATOR LEICHTER: 50. 18 SENATOR GOLD: 50? -- 150,000. 19 But those reappropriations are understandable. 20 Now, we have reappropriations 21 where, as a result of the actions of one of our 22 members, there is going to be a senior center 23 opening and it's not ready, so we reappropriate; 1579 1 or we've given money to some local organization 2 and the money didn't get approved on time, so it 3 gets reappropriated. We understand that. 4 We, in the Legislature, do 5 something we allow no one else to do. We 6 reappropriate a sum of money that is earmarked 7 for nothing other than the whim of the leaders 8 of the Legislature. We don't allow any other 9 branch of government to do it, and thank God we 10 don't. It's a disgrace. But it's a double 11 disgrace that we do it within our own body, and 12 it ought to stop. 13 ACTING PRESIDENT FARLEY: Read 14 the last section. 15 SENATOR VOLKER: Mr. President. 16 ACTING PRESIDENT FARLEY: Senator 17 Volker. 18 SENATOR VOLKER: Mr. President. 19 I normally don't get into these political 20 discussions, but the issue of budgeting has 21 become of much greater facination to me after 22 the last few years when I read some of the 23 nonsense that's been reported in the paper, for 1580 1 instance, about member items and things like 2 that, because I began to realize that some of 3 the numbers that have been thrown around by some 4 of these organizations outside the Legislature 5 have occurred because they don't realize the 6 reappropriation system. 7 Let me give you some agencies who 8 reapprop millions and millions of dollars every 9 year: Mental Hygiene, Mental Retardation. 10 Member items, some of which are reapproped from 11 years ago, and you know the reason why if you 12 look at the system. The truth is the system 13 doesn't work the way outsiders think; and that 14 is, a lot of projects are thrown out. Projects 15 take several years. 16 SENATOR LEICHTER: Mr. President. 17 SENATOR VOLKER: I would like to 18 continue, if I might. 19 ACTING PRESIDENT FARLEY: He 20 doesn't want to yield. 21 SENATOR VOLKER: I will yield 22 later. 23 By the way, I don't know where 1581 1 the $60 million came from. I understand, it's a 2 nice figure, and it may or may not be correct. 3 And remember, we -- the deficiency budget is 4 used to redirect money that is already there. 5 We don't necessarily -- we use that primarily 6 for things that are going to be done or have 7 been done already, in many cases, within the 8 foreseeable past. To suggest that that money is 9 going to be lost is absolutely not true, because 10 the money, in fact, could be used to offset next 11 year's budget. 12 I'm sure you know that. If the 13 money has not been spent, it could be used to 14 offset next year's budget. There is a whole 15 series of ways it could be done. 16 I know it sounds good. And 17 it's -- I think it's part of the problem. For 18 instance, last year, there was talk about $60 19 million worth of member items, and I'm told that 20 the cash behind it was a very much smaller 21 amount, and the reappropriations in the budget 22 are what people total up over the years. 23 Budgeting is a very complicated 1582 1 process, and you can make arguments about 2 whether we should make different changes, and so 3 forth; but the argument that somehow there is 4 this huge pool of money that the legislature 5 gathers up and just could be used for something 6 else, I don't think either the Governor or the 7 Legislature would really allow that to happen. 8 So, I realize it makes for good 9 press, and I understand. The Minority, 10 obviously, its job is to -- is to look at the 11 Majority and try to come up with things that are 12 irritating, but I would also suggest that, to a 13 certain extent, it is part of the budget 14 confusion. 15 Senator, I would say to you that 16 you probably will have a better argument when 17 the main budget comes out, not with the 18 deficiency budget, because you can't use the 19 deficiency budget to argue that. There is no 20 new money in the deficiency budget at all, but 21 that doesn't necessarily mean that every dollar 22 of changed money is going to be in the 23 deficiency budget. That's not the way the 1583 1 operation works. 2 ACTING PRESIDENT FARLEY: Senator 3 Leichter. 4 SENATOR LEICHTER: I yield to 5 Senator Gold. 6 ACTING PRESIDENT FARLEY: Senator 7 Gold. 8 SENATOR GOLD: Will Senator 9 Volker yield to a question. 10 SENATOR VOLKER: Sure. 11 SENATOR GOLD: Senator, you 12 mentioned member items, and I did, too. Isn't 13 it a fact, Senator Volker, that a member item is 14 an item that you know what the item is? It can 15 be for a school district, it can be for a drug 16 program, but it is a specific item earmarked for 17 a specific thing. 18 SENATOR VOLKER: But, Senator - 19 SENATOR GOLD: Isn't that true or 20 not? 21 SENATOR VOLKER: No. 22 SENATOR GOLD: No? 23 SENATOR VOLKER: Senator, the 1584 1 money in the budget is lump sum, as you well 2 know. And the reappropriations are listed in 3 there in their lump sums. They are not listed 4 as specific items. They are listed in joint 5 reapprops. The items themselves are 6 individual. That's true. And things are 7 submitted to the Comptroller and everyone and so 8 forth, but not directly in the budget. 9 SENATOR GOLD: Will the senator 10 yield to a question? 11 SENATOR VOLKER: Certainly. 12 ACTING PRESIDENT FARLEY: Senator 13 Volker. 14 SENATOR GOLD: Senator Gold. 15 ACTING PRESIDENT FARLEY: No, I 16 asked if Senator Volker would yield. 17 SENATOR GOLD: Will you yield? 18 SENATOR VOLKER: Yes. 19 SENATOR GOLD: Senator Volker, we 20 all know that there used to be this famous 21 "green book" which took the supplemental member 22 items and listed them out, and in recent years 23 we've gotten lazy, but the fact is, Senator, 1585 1 that we have a member item group and members 2 submit specific lists, and the reappropriations 3 part of that, Senator, are items that did not 4 get funded or paid out during that first year. 5 Isn't that true? 6 SENATOR VOLKER: In the first or 7 second and third year, in some cases. 8 SENATOR GOLD: Yeah, but that's 9 true. 10 SENATOR VOLKER: That's true. 11 SENATOR GOLD: It's earmarked 12 money. 13 SENATOR VOLKER: Yes. 14 SENATOR GOLD: All right. 15 Senator -- Senator Volker, you said -- if you 16 would you will yield to another question -- that 17 this reapprop, of course, it's there but it can 18 be used to offset next year's budget. Why can't 19 it be used to offset this year's budget, 20 Senator, if, in fact, I'm right? All right, 21 Senator? If, in fact, I'm right and there is 60 22 million -- maybe it's 55 million. But if there 23 is that kind of money sitting around that hasn't 1586 1 been spent by the Legislature and is not 2 earmarked for "Well, we have a computer system 3 coming in and we haven't seen it yet," or vice 4 versa, or something like that, would you agree 5 with me, Senator Volker, that we should use that 6 money this year rather than talk about Keno in 7 the stores or talk about other things? Couldn't 8 we use that 60 million this year? 9 SENATOR VOLKER: Assuming that 10 were true, which I don't necessarily know it's 11 true, who's saying that we're not? 12 SENATOR GOLD: Senator, that's a 13 great question. I'm asking you today would you 14 be willing to commit to me that that money be 15 used to balance this year's budget? 16 SENATOR VOLKER: Senator, let 17 me tell you something. First of all, I don't 18 know that your calculations as to how much money 19 is left over is correct. Be interesting if it 20 was. I suppose it would show that we are doing 21 a much better job of conserving money than a lot 22 of people would give us credit for. 23 And I don't think you realize 1587 1 that, Senator, what you are really saying is 2 that we are not spending anywhere near as much 3 money as we have been purported to spend. So, I 4 think that's fine. I think you're probably 5 right. If we have a lot of money left over and 6 we don't need to finish up anything, then I 7 suppose we should use it to cut down the new 8 budget. That would be fine. 9 SENATOR GOLD: Thank you. 10 On the bill, Mr. President. 11 Senator Gold on the bill. 12 SENATOR GOLD: Senator Volker, I 13 thank you. I always like to deal with an honest 14 man because you get an honest answer. And, 15 Senator Volker, you're going to have a chance to 16 answer those questions again on a day, I hope, 17 not too long in the future. 18 First of all, Senator, the 60 19 million does not come because we are so 20 terrific, because the bottom line is, Senator, 21 that while a few years ago we ran maybe some 22 small edges and a little bit under what the 23 Legislature was appropriating, the fact is that 1588 1 last year we ran over by some $8 million, so 2 let's not break our arms patting us on the 3 back. 4 The other thing, Senator, is when 5 you say that we accumulated this money because 6 we're such great managers, let me tell you 7 something. That is nonsense, and I'll show you 8 how it's nonsense. 9 You have a business like the 10 Legislature that ought to run on a 130 million a 11 year. So you come out with a budget, an honest 12 budget at 130 million and you spend 130 million 13 and you came out even. But then you get a group 14 like us who want to show everybody how smart we 15 are, so we appropriate 135 million, we spend 130 16 and tell people we saved 5 million. Well, we 17 never told people how we were going to spend the 18 money in the first place because we don't 19 itemize our budgets. 20 So, for example, in 1985-86, we 21 appropriated 130 million. We spent 122-. What 22 we're not telling the public is we probably 23 should have spent 110-, but we didn't itemize 1589 1 the 122-, so we don't know whether we were so 2 terrific when we saved $8 million. And we don't 3 return it, as Senator Leichter said. All we did 4 was put it in this pot that we keep collecting. 5 Now, if you want to take two 6 people, give them each $20, tell them to go 7 shopping and see who does the best with their 8 $20. You can do that. But you can't 9 appropriate a sum of money to yourself without 10 having a hearing, such as the hearings that are 11 conducted by this body with regard to every 12 other state agency, you see, and we say to them, 13 "What do you mean out of your billion dollars 14 you were going to buy 17 pencils? Can't you get 15 away with 16 pencils?" 16 I mean we do that to everybody, 17 but we don't do it to ourselves. We come in 18 with an unitemized budget and we tell people 19 that in a few years we spent under that, so 20 we're terrific managers. You are not terrific 21 managers unless you're willing to say how it was 22 spent, and then somebody else can say, "Well, 23 yeah, you only spent $122 million, but if you 1590 1 really weren't wasting it on this mailing and 2 that and making this one look good and that one 3 look good, you could have spent 110-." That 4 would be an honest count. 5 So, Senator Volker, that answers 6 that. 7 But on the other side of it, 8 Senator, I am telling you that I will be the 9 happiest person if you prove me wrong. When we 10 have that legislative budget to actually vote on 11 this year, if there is no reappropriation, 12 Senator Volker, and we have an honest 13 legislative budget and you tell Senator Stafford 14 and Senator Marino to go to meetings with the 15 Governor and with the Speaker and tell them, 16 "Don't you worry about raising another 60 17 million by annoyance taxes and by going after 18 business and by going after local property, et 19 cetera, but we, the Senate, the Senate led by 20 the Republicans, want to take that $60 million 21 slush fund and help balance the budget, and now 22 we'll be honest brokers like everybody else," 23 Senator, I will salute you. And you can even 1591 1 say that -- put it in the Rochester papers, the 2 Senate Republicans, led by Senator Dale Volker, 3 said, "Give back the money." Dollinger was 4 right. Mary Ellen Jones was right. And I'm 5 accepting that. Give them back the money. 6 Senator Hoffmann was right. I want to see 7 Senator DeFrancisco stand up in Syracuse and 8 say, "By God, that Senator Hoffmann is 9 terrific. She's right. We're giving back the 10 $60 million." Why don't you do it? 11 But, Senator, those questions are 12 going to be asked. It may be 3:00 in the 13 morning when you hide that legislative budget 14 and finally sneak it out on the table, but those 15 questions are going to be asked. 16 And the reason that I brought it 17 up on the deficiency, Senator, is because if we 18 did not have the slush fund, if it wasn't in 19 existence last year, we would have this 20 deficiency budget in front of us, which included 21 a request for $7.8 million for the Legislature, 22 because that's what we did. We spent $7.8 23 million more than we told the people a year ago 1592 1 we would spend. 2 ACTING PRESIDENT FARLEY: Read 3 the last section. 4 Senator Dollinger. 5 Don't read the last section. 6 SENATOR DOLLINGER: Did Senator 7 Leichter - 8 ACTING PRESIDENT FARLEY: He has 9 yielded. 10 SENATOR DOLLINGER: Mr. 11 President. One question for the sponsor. I'm 12 not quite sure I fully understand the budgeting 13 process. But could you just tell me are we 14 spending more money or less money in the 15 deficiency budget? If I were to tally all the 16 increases in income and the extra expenses in 17 here, what's the bottom line of that document. 18 SENATOR STAFFORD: We're not 19 spending more. This is really appropriation 20 only -- authority. Appropriation authority to 21 be spent. 22 SENATOR DOLLINGER: I just didn't 23 hear it, Mr. President. 1593 1 ACTING PRESIDENT FARLEY: He said 2 we're not spending any more. This is 3 appropriating authority. 4 SENATOR DOLLINGER: So the actual 5 dollar amount in the state budget doesn't go up 6 by this document. 7 SENATOR STAFFORD: Correct. 8 SENATOR DOLLINGER: And we're 9 just shifting money. These are transfers around 10 in accounts; is that a fair statement? 11 SENATOR STAFFORD: Exactly. 12 SENATOR DOLLINGER: Senator Gold, 13 actually spoke perfectly for me, Mr. President. 14 I have nothing to add. 15 ACTING PRESIDENT FARLEY: Read 16 the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT FARLEY: Call 20 the roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes 57. Nays 23 2. Senators Dollinger and Jones recorded in the 1594 1 negative. 2 ACTING PRESIDENT FARLEY: The 3 bill is passed. 4 Senator Present. 5 SENATOR PRESENT: Mr. President. 6 Can we continue with the report of the Finance 7 Committee? 8 ACTING PRESIDENT FARLEY: Yes, we 9 can. 10 Secretary will read the report of 11 the Finance Committee. 12 THE SECRETARY: Senator Stafford, 13 from the Committee on Finance, reports the 14 following nominations: 15 Member of the Taconic State Park 16 Recreation and Historic Preservation Commission, 17 Donald B. Derr of Somers; and Sally Siegrist 18 Sypher of Putnam Valley. 19 Member of the Niagara Frontier 20 State Park, Recreation and Historic Preservation 21 Commission, Jack A. Gellman of Niagara Falls; 22 and Paul A. Schoellkopf of Buffalo. 23 Members of the Palisades 1595 1 Interstate Park Commission, J. Martin Cornell of 2 West Nyack. 3 Member of the Central New York 4 State Park, Recreation and Historic Preservation 5 Commission, Ruth S. Kerr of Homer. 6 Member of the Board of Trustees 7 of Cornell University, Sol M. Linowitz of New 8 York City. 9 Member of the Board of Trustees 10 of the New York State Higher Education Services 11 Corporation, Howard T. Ford of Buffalo. 12 Banking member of the State 13 Banking Board, Daniel J. Hogarty, Jr., of Troy. 14 ACTING PRESIDENT FARLEY: On the 15 nominations, all in favor, say aye. 16 (Response of "Aye.") 17 Those opposed, nay. 18 (There was no response.) 19 The nominees are confirmed. 20 Senator Present. 21 SENATOR PRESENT: Can we go back 22 to recognize order, please. 23 ACTING PRESIDENT FARLEY: Regular 1596 1 order. 2 THE SECRETARY: Calendar Number 3 375, on page 17, by Senator Volker, Senate Bill 4 Number 6734, Estates, Powers and Trusts Law. 5 SENATOR GALIBER: Explanation. 6 ACTING PRESIDENT FARLEY: 7 Explanation. Senator Volker. 8 SENATOR VOLKER: Mr. President. 9 This is a bill that was originally sponsored by 10 Assemblyman Bill Hoyt and myself, who, of 11 course, is deceased, and now by Assemblyman Sam 12 Hoyt and I -- from the Assembly. It resulted 13 from a case some years ago in Surrogate's Court 14 in Erie County, where a fellow was tried for an 15 axe murder of his mother and father. He 16 acknowledged that he killed both his mother and 17 father, a rather gruesome and brutal killing, 18 and then went into Surrogate's Court to attempt 19 to collect the estate from both his mother and 20 father. 21 The surrogate objected. At 22 first, refused to allow him the estate. Oh, by 23 the way, he was declared innocent by reason of 1597 1 insanity. He then was able after -- the case, I 2 believe, may have gone to the Court of Appeals. 3 I'm not sure, but it was finally decided that 4 the surrogate was required to allow the person 5 who killed these people but was declared 6 innocent by reason of insanity to collect the 7 money. 8 He then moved to Pennsylvania 9 with his uncle and aunt. In Pennsylvania, 10 several years later, he repeated the crime 11 killing his uncle and aunt in a very similar 12 fashion; and, after doing that, he was tried 13 again and again found innocent by reason of 14 insanity. 15 But the Pennsylvania courts, my 16 understanding is, work under the common law 17 rules, would not allow him to be able to inherit 18 the estates of both his uncle and aunt. 19 What this bill very simply says 20 is -- and this is only, by the way, for murder. 21 This is not -- somebody asked me a question. 22 And we have gone over, by the way, a series of 23 questions on this. This is only if a parent 1598 1 kills a child or a child kills a parent, that if 2 that parent or child is found innocent by reason 3 of insanity, that they cannot collect from the 4 estate. The law right now, by the way, is if 5 you kill either one you can't collect because 6 under the law you can't collect by reason of 7 your wrong. Under common law, as I understand 8 it, it was very strict. Whether there was 9 insanity involved or anything else, you could 10 not collect. 11 One issue that has come up and we 12 have been trying to figure some sort of way in 13 which -- for instance, a wrongful death action. 14 And Senator Galiber, I think, has brought it up, 15 and several other Senators, about the 16 possibility that somehow someone might sue 17 through the estate and the person who was found 18 innocent by reason of insanity and might have to 19 sue through that person for wrongful death. We, 20 very honestly, have had difficulty figuring out 21 that kind of scenario because, normally, the 22 people who would sue for the wrongful death 23 would the distributees, which in this case would 1599 1 be the children or the parents, or whoever, and 2 those would be the very people who presumably 3 would benefit from the fact that the person who 4 committed the killing and was found innocent by 5 reason of insanity would now not be able to 6 inherit. 7 I suppose there would be some way 8 in which some sort of collateral heir could 9 potentially become involved, but I guess our 10 thought is -- and we're still researching it, by 11 the way -- our thought is that it would be so 12 remote, we just can't -- it's very difficult to 13 even find a case in which that would be so. 14 ACTING PRESIDENT FARLEY: Read 15 the last section. 16 THE SECRETARY: Section 3. 17 SENATOR LEICHTER: Mr. President. 18 ACTING PRESIDENT FARLEY: Senator 19 Leichter. 20 SENATOR LEICHTER: Mr. President, 21 just briefly on the bill. Senator Volker, I 22 have a certain amount of sympathy for what you 23 are trying to achieve, but I'm also troubled 1600 1 about the fact that what we say under this bill 2 is that in all instances where there was a 3 homicide of an infant by a parent or a parent by 4 an infant that the one who is found to be guilty 5 of the act but innocent by reason of insanity 6 can not inherit. 7 We're dealing, obviously, with 8 the most terrible and the most tragic of 9 circumstances. What's worse than a parent 10 killing an infant or an infant killing a parent, 11 and certainly this fills us with enormous 12 revulsion. But, mind you, these are people that 13 are found innocent by reason of insanity, and I 14 just wonder whether in some instances we're not 15 really going to perpetuate or enhance that 16 terrible tragedy by saying this person who 17 committed the crazy act not knowing what he or 18 she were doing now they can not even inherit. 19 Now, you and I know that there 20 are some instances where juries find insanity. 21 There was a case in California -- I didn't 22 follow it that closely -- of these Menendez 23 brothers where frankly just reading in the paper 1601 1 if they are found not guilty by reason of 2 insanity -- I think they had a hung jury -- if 3 they were found not guilty by reason of 4 insanity, you might have some question about 5 having these people inherit their parents' 6 money. 7 And, therefore, Senator Volker, 8 what I wanted to ask you or suggest to you that 9 possibly we ought to provide in the law that 10 this is a matter that the surrogate -- give some 11 discretion. Because you and I can postulate a 12 case where we would say, "Yes, this was a 13 terrible thing. A father killed a child, just 14 horrible" or the other way around. But you are 15 just making it that much worse by saying that 16 the -- let's say if it's a son who killed his 17 father that the son can not inherit and the 18 father probably under those circumstances, you 19 know, would say, "Yes, I don't want my son hurt 20 even more." 21 So, I think that rather than 22 trying to impose a rigid rule, I think that 23 maybe we ought to give a power to the surrogate 1602 1 to determine based on evidence that in that 2 particular case the one who did the act and who 3 was found innocent but innocent only by reason 4 of insanity can not inherit or can inherit based 5 on the equities in the situation. I think that 6 might be a better way to approach it. 7 ACTING PRESIDENT FARLEY: Senator 8 Gold. 9 SENATOR GOLD: Would Senator 10 Volker yield to just one question on that. 11 SENATOR VOLKER: Sure. 12 ACTING PRESIDENT FARLEY: Senator 13 Volker, I presume you will yield. 14 SENATOR GOLD: Senator, I think 15 as Senator Leichter pointed out, we're trying to 16 help in the legislative process not be 17 confrontational. But, Senator, under your bill 18 I think even the grandchildren couldn't 19 inherit. Isn't that true? 20 SENATOR VOLKER: No, that's not 21 true. 22 SENATOR GOLD: All right. 23 SENATOR VOLKER: No, because 1603 1 they're distributees. The issue would be 2 whether they were distributees under the -- do 3 you understand what I'm saying? 4 SENATOR GOLD: Yes, yes. What I 5 meant -- Sorry, I will take it back. In other 6 words, if their father, let's say, was the one 7 who was insane they couldn't even get that 8 portion from the father. 9 SENATOR VOLKER: Oh, sure, they 10 could. 11 SENATOR GOLD: It would pass 12 through. 13 SENATOR VOLKER: No. Yes, they 14 could because they would then become the only 15 distributees, because they would also be the 16 distributees of the mother. 17 SENATOR GOLD: Hold it. If the 18 Senator would yield. I'm not being very artful 19 about asking the question. 20 The point I'm getting at -- yes, 21 you're right, if they were the only ones. But 22 if there were numerous children and numerous 23 grandchildren, whatever was going to go to their 1604 1 father, let's say, would be eliminated and they 2 would basically be cut out of that, even though 3 the grandfather, so to speak, who was killed 4 might very well have had very strong feelings 5 for those grandchildren. 6 SENATOR GOLD: I think you must 7 be referring to two sets of children because 8 there's no other way, otherwise - 9 SENATOR GOLD: Yes. 10 SENATOR VOLKER: I suppose it's 11 possible, but -- by the way, they wouldn't 12 inherit directly because, remember, the person 13 who is declared innocent by reason of insanity, 14 unless he was also killed, he wouldn't be 15 allowing anybody to inherit directly until he 16 dies. 17 SENATOR GOLD: Yes, true. 18 SENATOR VOLKER: So you are 19 talking about a remote consequence later on. 20 And, by the way, in the meantime, he could have 21 a will, for instance, and will it to somebody 22 else anyways. 23 SENATOR GOLD: All right. Will 1605 1 the Senator yield to just one more question? 2 ACTING PRESIDENT FARLEY: I'm 3 sure he will. 4 SENATOR VOLKER: Yes. 5 SENATOR GOLD: I'm just really 6 lobbying for the Leichter approach to give a 7 little discretion. 8 But, Senator, let's say there 9 really was a substantial estate and maybe $2 10 million would go to this insane person, isn't it 11 possible that if the person was allowed to 12 inherit and was really insane and was being kept 13 that the person might be using that money to 14 repay the state for what the cost of the 15 confinement were? Whereas, under your bill, the 16 person would have no money; the sisters and 17 brothers get all the money, and then the state 18 has to pay for what might be years of 19 incarceration of a mentally ill person who might 20 otherwise be able to pay their own way. 21 SENATOR VOLKER: That's a 22 possibility, Senator, but the more likely 23 scenario is the children would inherit the 1606 1 entire estate and actually would then receive 2 more money. And the argument is that those 3 children would receive at least some money to 4 take care of them if they were -- as you know, 5 if they are juveniles, it would come in trust 6 because the guardian would have to be appointed 7 in their behalf and so forth. 8 I think I understand what you're 9 saying. The problem here, I think, is a 10 question whether you go back to the common law. 11 Because I think you would agree, Senator 12 Leichter, Senator Gold, that the old common law 13 was that even if you were declared mentally ill, 14 or whatever, you still couldn't inherit under 15 the old common law, under the strict common 16 law. 17 I suppose this is going back to 18 the old strict common law, and that's something 19 I think we'll look at, but I just think -- at 20 least initially, it seems to me, that this is 21 the better way. 22 We are going to look at that. In 23 fact, we are going to look at more of what you 1607 1 are saying, anyways, to see if there is some way 2 in which there might be a possibility that 3 somebody might come through on a wrongful death. 4 We are going to look at that. 5 ACTING PRESIDENT FARLEY: Read 6 the last section. 7 Senator Galiber. 8 SENATOR GALIBER: Just one 9 question. 10 ACTING PRESIDENT FARLEY: Senator 11 Volker, would you yield again? 12 SENATOR VOLKER: Yes. 13 ACTING PRESIDENT FARLEY: Senator 14 Galiber, I'm going to ask you to speak into the 15 microphone because the stenographer is having 16 trouble hearing you. 17 SENATOR GALIBER: I can't here 18 you. 19 (Laughter.) 20 ACTING PRESIDENT FARLEY: You 21 were talking while I was. 22 SENATOR GALIBER: Mr. President. 23 Senator Volker, when we discussed this 1608 1 yesterday, I had some of the same concerns, and 2 you were kind enough to look into them, and you 3 have some of the same concerns today. And added 4 to those concerns were an approach by Senator 5 Leichter and Senator Gold. 6 And since we have three persons 7 now that you agree have some question about it, 8 would it be asking too much to have the bill 9 laid aside? We have a bit longer to go in the 10 session. Maybe you can check on those things. 11 SENATOR VOLKER: Aren't we going 12 to finish tomorrow, Senator? 13 Senator, are you asking me to lay 14 this aside and check it further? Is that what 15 you're saying? 16 SENATOR GALIBER: Yes. 17 SENATOR VOLKER: Okay. Lay it 18 aside. 19 SENATOR GALIBER: Thank you. 20 ACTING PRESIDENT FARLEY: Read 21 the last section. 22 SENATOR GOLD: No, we're laying 23 it aside. 1609 1 ACTING PRESIDENT FARLEY: Lay the 2 bill aside. 3 Senator Levy. 4 SENATOR LEVY: Yes, I would like 5 to star Calendar 293, Mr. President. 6 ACTING PRESIDENT FARLEY: 293 is 7 starred at the request of the sponsor. 8 THE SECRETARY: On page 19, 9 Calendar Number 413, by Senator Marino, Senate 10 Bill Number 3828A, an act to amend Chapter 576 11 of the Laws of 1975. 12 SENATOR GOLD: Can we ask the 13 sponsor for one day? Senator Stachowski - 14 SENATOR LAVALLE: Yes. 15 SENATOR GOLD: With the consent 16 of the sponsor, one day on this. 17 ACTING PRESIDENT FARLEY: Senator 18 LaValle, give them a day? 19 SENATOR LAVALLE: Yes. 20 ACTING PRESIDENT FARLEY: Lay it 21 aside. 22 We have a substitution, Senator 23 Present. 1610 1 SENATOR PRESENT: Do the 2 substitution. 3 ACTING PRESIDENT FARLEY: 4 Secretary will read it. 5 THE SECRETARY: On page 12 of 6 today's calendar, Senator Stafford moves to 7 discharge the Committee on Finance from Assembly 8 Bill Number 8651A and substitute it for the 9 identical Third Reading 222. 10 ACTING PRESIDENT FARLEY: The 11 bill is substituted. 12 Senator Present. 13 SENATOR PRESENT: Is there any 14 housekeeping? 15 ACTING PRESIDENT FARLEY: Any 16 motions or housekeeping from the floor? 17 Seeing none, Senator Present. 18 SENATOR PRESENT: Well, we'll 19 just hold it a moment. 20 ACTING PRESIDENT FARLEY: Senator 21 Santiago. 22 SENATOR SANTIAGO: I ask 23 unanimous consent to be recorded in the negative 1611 1 on Calendar 88. 2 ACTING PRESIDENT FARLEY: Senator 3 Santiago will be in the negative on Calendar 88, 4 without objection. 5 SENATOR GOLD: Mr. President. 6 ACTING PRESIDENT FARLEY: Senator 7 Gold. 8 SENATOR GOLD: Could you please 9 recognize Senator Leichter on a motion, please. 10 ACTING PRESIDENT FARLEY: I can 11 do that. 12 Senator Leichter. 13 SENATOR LEICHTER: Mr. 14 President. I have a motion to discharge up on 15 the desk. I believe appropriate notification 16 was given, and there will be three other motions 17 and, Mr. President, so at this time, let me call 18 up my bill, 1342A, for purpose of a motion to 19 discharge. 20 ACTING PRESIDENT FARLEY: 21 Secretary will read the title of it. 22 THE SECRETARY: By Senator 23 Leichter, Senate Bill Number 1342A, an act to 1612 1 amend the State Finance Law, in relation to 2 requiring that budget bills making 3 appropriations or reappropriations to the 4 Legislature contain specific categories and 5 amounts of expenditures. 6 ACTING PRESIDENT FARLEY: Senator 7 Leichter. 8 SENATOR LEICHTER: Yes. Mr. 9 President. This bill is not a new one or a 10 stranger to us, and certainly the issue isn't. 11 In fact, earlier today, Senator Gold very 12 eloquently addressed some of the issues that my 13 bill addresses which, simply stated, provides 14 for a detailed budget by the Legislature and 15 provides for hearings on the legislative budget 16 as we have hearings on the budget of all other 17 state agencies as well as the judiciary. 18 Mr. President. I'm really 19 somewhat saddened that I have to rise and make 20 this motion, because, frankly, the case for a - 21 Mr. President. Can we have some 22 order, please. 23 ACTING PRESIDENT FARLEY: Your 1613 1 point is well-taken. Please would you listen 2 carefully to Senator Leichter. 3 SENATOR LEICHTER: Because, Mr. 4 President, I'm saddened because the case for a 5 detailed legislative budget is obviously so 6 clear and so indisputable, and we have sought to 7 make it so forcefully, and I think we have 8 certainly raised the issue in a clear, rational 9 way over the last few years, that I thought that 10 we would finally get a detailed budget. 11 But I must say to find that, once 12 again, we're going to be asked to vote on a 13 legislative budget which is a model of 14 obfuscation, of secrecy, of deception, of 15 misleading, I think it shows on the part of 16 those who are pushing that budget, who are 17 presenting it to us in this fashion a hubris, a 18 shamelessness that I'm really amazed at. 19 Now, earlier today, Senator Gold 20 pointed out how the obscurity of the legislative 21 budget and the shenanigans that the legislative 22 leaders engage in with the budget leads to a 23 situation where the Legislature never has to go 1614 1 for deficiency budget because we've set up a 2 slush fund, but the situation in some respects 3 is even worse than he stated it. 4 It's hard to believe it could be 5 worse than that the Legislature, which includes 6 such self-proclaimed paragons of fiscal 7 conservatism who want to cut spending have 8 actually built up this $60 million slush fund 9 which they reappropriate year after year, dip in 10 whenever they want to because, "We don't need a 11 deficiency budget; we've got our own slush 12 fund." 13 But what makes it worse is and 14 why this is really a classic for slush fund is 15 that there is no detail. You don't even know 16 what the reappropriation does because it falls 17 into the same vague, ambiguous, obscure 18 categories as are contained in the legislative 19 budget. Let me tell you. This is the phoniest 20 of the phoniest of the phoniest budgets that you 21 could possibly have. It is an absolute fraud on 22 the people of the State of New York, and it 23 makes such hypocrisy of the Legislature, I don't 1615 1 know how anybody who has any role in putting 2 this budget together and who votes for it can 3 get up with a straight face and talk about 4 responsibility, fiscal conservatism and cutting 5 waste. 6 We don't know what's in this 7 budget, and the fact of the matter is that my 8 friends on the other side of the aisle have no 9 idea. They know as little as I do. There is 10 only one person who knows what is in that budget 11 and how that budget is going to be used and 12 that's the Majority Leader in this house and the 13 Speaker in the Assembly. 14 Let me make it very clear. This 15 is not an issue between Democrats and 16 Republicans because we are as critical of our 17 colleagues and friends in the Majority in the 18 Assembly as we are of you who are in the 19 Majority here. In fact, the other day I went to 20 the Assembly chamber, and I heard a very 21 eloquent speech about the abuse of mailing 22 privileges, and it was the distinguished county 23 leader from Erie County, the Republican County 1616 1 Leader Assembly Member Tom Reynolds. He was 2 brilliant. I wanted to bring him in here. I 3 saw him here earlier. I was hoping I would have 4 his same eloquent support. So it's not a 5 political issue, but it's an institutional 6 issue. 7 And let me say that while I'm 8 highly critical of what we do with the 9 legislative budget, I do so out of sorrow 10 because I have real regard for the Legislature 11 and I have great regard, fondness and respect 12 for my colleagues. So if I'm sounding sort of 13 harsh and bitter and maybe pejorative, it is 14 certainly not meant at any individual because 15 we're also dealing with an institutional 16 practice that obviously precedes Senator Marino 17 and Speaker Silver or Weprin and so on. 18 But it is time that we take a 19 look at what we do; and, you know, what makes it 20 to my mind so amazing that we continue with this 21 obscurity and with this obvious and blatant 22 fraud is that if you wanted to maintain this 23 level of spending, you wanted to do other 1617 1 things, you could probably do it and still come 2 up with a budget that at least meets the 3 guidelines of what is correct budgeting. You've 4 got the votes. You've got the power. But I 5 guess what you are afraid of is that somebody is 6 going to look at the legislative budget and is 7 going to say, "Wait a second. How come you guys 8 are spending so much?" Why is it that Senator 9 Goodman has a staff allowance of over a million 10 dollars and -- and -- and other instances, and 11 people may well raise those questions. 12 So to avoid that and to keep the 13 sort of latitude that you're able to have when 14 you have such a vague budget, you continue to 15 present something which is not a budget at all. 16 It shouldn't be called a legislative budget. 17 So, what we're trying to do with 18 this bill is to make the Legislature detail and 19 explain how it spends the public money. It's 20 not your money. It's not my money. It's the 21 public's money, and I think they've got a right 22 to see how that money is being spent. 23 Now, we had quite some 1618 1 contretemps of the mailing, abuse really of the 2 mailing privilege, and I think we showed very 3 clearly -- the Senate Democrats did -- that 4 there was an abuse; that we had some members of 5 the Majority who were able to send out mail that 6 far exceeded the rules. We got up what we 7 identified as a Million Mailer Club. One of our 8 colleagues, good friend, somebody I respect, was 9 very much offended, because mistakes were made 10 so that in a relatively minor respect the amount 11 mail that he sent out was overstated. He talked 12 about this as a malicious attack, and he wanted 13 investigation and so on. I just want to say to 14 my friend -- he is not here -- I'd love to have 15 an investigation of all of the mailing that is 16 put out by this house. And why not? How can 17 you justify it? 18 And I say to my friend here, you 19 want an investigation, the first thing you ought 20 to do is show how much mailings you sent out. 21 Why shouldn't the public know the mailings that 22 you sent out? But you can't find out under this 23 particular budget. 1619 1 And what makes the budget -- even 2 obscure as it is and uninformative as it is, 3 what makes it totally ridiculous is that both 4 the Speaker and the Majority Leader have the 5 right and the power to change allocation. 6 You've only got about four or five categories, 7 but they can change those. So even if we 8 appropriate $3.5 million for mailings as was 9 done in past years, you can spend much more. 10 And in some years, the Senate Republicans have 11 indeed spent much more than $3.5 million for 12 mailings. 13 This year the mailing in the 14 legislative budget is scheduled to be 4.5 15 million, but it's really a meaningless figure 16 because you can spend however much or however 17 little that you want to. You're under no 18 constraint whatsoever. If you don't use the 19 full amount, you roll it over next year. If you 20 decide you've got an incumbent whose got some 21 problems, you'll send out more mail for him, and 22 you just take the money either from the 23 reappropriation or shift it from another 1620 1 category. 2 In other words, it's not a 3 budget, not a budget at all and it cannot be 4 defended. And if you just take a look at what 5 other legislative bodies do. For instance, I 6 have here -- this is the budget for the 7 Legislature in Maryland. House of Delegates, 8 Annapolis, Maryland. This shows what their 9 budget is. Open up to a page. "Office of 10 Majority Leader." Tells you exactly how much 11 that office is going to spend. He has got an 12 administrative aide. He's got a secretary. He 13 has other personnel. The other than personal 14 expenses also set forth. Why shouldn't that be 15 the case here? 16 Congress -- Congress -- which is 17 not anybody's model of a perfect legislative 18 body, but they have a detailed budget, and the 19 public wants that, has a right to expect it. 20 Why not here? 21 Not only is the budget not 22 detailed, but there is no backup material. Take 23 a look at the judiciary. I've here on my desk 1621 1 -- I'd pick it up but my back isn't strong 2 enough to pick up what must be 10 or 12 pounds 3 of documents. This is just to support what the 4 judiciary asked for, and the Legislature has 5 hearings on it. Senator Stafford sits there, 6 and he asks very searching questions, and he's 7 working hard to protect our money to see that 8 the judiciary doesn't come in with requests that 9 are unreasonable. 10 And we say, "We want backup 11 material." Don't come to us and say you're 12 going to spend so and so much money. Prove that 13 it's necessary. Show how it's going to be 14 spent. Show the benefit to the people of the 15 State of New York. And they come up with this 16 12 pounds of documents, and our staff pours 17 through it. We look at it. We say, but wait a 18 second. You don't need this secretary, and you 19 got too many stenographers, and so on. 20 And that's our job. We ought to 21 be doing that. We do it for every executive 22 agency because, by God, our job is to protect 23 the taxpayers money. But when it comes to the 1622 1 legislature, no hearing, no backup material, no 2 searching inquiry. It's just voted on. 3 Whatever you want, you get. How do we justify 4 it? 5 Aren't you ashamed of this sort 6 of hypocrisy? And, indeed, there are members 7 who joined our body last year, Senator Pataki, 8 Senator Nozzolio, and others, who said I'm for a 9 detailed budget. But I frankly haven't seen you 10 do very much to carry out that promise you made, 11 although you are going to have the opportunity 12 in a few minutes to vote on the motion to 13 discharge, and maybe you'll say, "Oh, I never 14 vote for motions to discharge. I'm doing that 15 through the committee system." Well, you know 16 that's bunk. 17 This is the only chance to do it, 18 and I hope that you're gonna cast your vote 19 where your mouth was. But it shouldn't only be 20 those members who maybe in the heat of battle 21 decided to do the right thing. All of us ought 22 to decide to do the right thing here as regards 23 the legislative body. 1623 1 The fact is, really, that we run 2 here -- I say "we". I'm not responsible for any 3 of this, certainly not for running this 4 legislature. But we have, in New York State, 5 the most secretive legislative body I think in 6 the whole nation, and it's utter disgrace. It's 7 abuse ridden because we have a basic inherent 8 flaw, and that is the legislative budget. 9 That budget is not a budget in 10 any sense of the word. It's a phony baloney of 11 the worst order. We ought to end it, because it 12 detracts from what I think we're really about 13 and from what I think everybody here wants to 14 do, which is, to meet our responsibilities. 15 So I plead, I beg you, I ask of 16 you, I implore you, I will cojole you, and I 17 will continue to get up on this floor and speak 18 on it; and that is, join us in supporting a bill 19 that will give us a legislative body with a 20 detailed legislative budget. 21 If you don't want to do it 22 through a motion to discharge, then do it. 23 Let's see it. But you haven't done it yet. 1624 1 This at this moment is the only vehicle that we 2 can do it, and I ask the members of this body. 3 Do the right thing. Support a detailed 4 legislative budget. 5 ACTING PRESIDENT FARLEY: All in 6 favor of Senator Leichter's motion to discharge. 7 SENATOR GOLD: Party vote in the 8 affirmative. 9 SENATOR PRESENT: Party vote in 10 the negative. 11 ACTING PRESIDENT FARLEY: Call 12 the roll on a party vote. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 24. Nays 15 35. 16 ACTING PRESIDENT FARLEY: The 17 motion fails. 18 Senator Jones. 19 SENATOR JONES: Mr. President. I 20 believe I have a motion to discharge up there, 21 and I'd like to call up bill 6531. 22 ACTING PRESIDENT FARLEY: 23 Secretary will read the title of Senator Jones' 1625 1 motion to discharge. 2 THE SECRETARY: By Senator Jones, 3 Senate Bill Number 6531, an act to amend the 4 Legislative Law, State Finance Law, and the 5 Public Officers Law, in relation to requiring 6 disclosure of the manner in which public funds 7 have been expended for personnel or property by 8 the legislative and executive branches of state 9 government. 10 ACTING PRESIDENT FARLEY: Senator 11 Jones. 12 SENATOR JONES: Well, I would 13 probably be safe in making the assumption if 14 we're not willing to do an itemized budget we're 15 probably not willing to do the quarterly 16 accounting, either. 17 The budget is the plan. I am 18 asking for an accounting of how we did spend the 19 money. It at least would allow you to see how 20 well we followed the plan. 21 It's clearly not new and unique. 22 We've been asking for this long before I came 23 here, and I know it's not something we won't 1626 1 continue to ask for. It's not as though 2 everybody else isn't doing it. I have in front 3 of me the Congressional quarterly report, you 4 know, which I spoke about last year; and, you 5 know, people laughed, but you open up and you 6 find out that your Congresswoman spends 32 cents 7 on August 21st. Well, I'm sure the public 8 doesn't need to know those kind of small 9 numbers; but, certainly, there's something in 10 between. What California does, the state of 11 Wisconsin also has, quarterly -- or reporting, 12 at least, on expenditures; and I guess I fail to 13 see why the State of New York isn't willing to 14 do the same. 15 This bill doesn't only require 16 us, it asks for a work location report, and it 17 obligates agencies to do the same. I don't see 18 any reason why the public isn't entitled to know 19 the work location, how many people work there, 20 what their salaries are, equipment, and why they 21 aren't able to see that on a list of 22 expenditures. 23 So, again, I just see this as 1627 1 another way of doing the right thing. We should 2 be doing this. The public are entitled to have 3 this information at their hands. We personally 4 have to disclose, as I said earlier. You just 5 filed or will be filing your income tax. You 6 are going to have to show how you spent your 7 money if you're claiming it on your tax. Why 8 are we exempt as a body when we are spending 9 other people's money not our own? 10 ACTING PRESIDENT FARLEY: On 11 Senator Jones' motion to discharge, do you wish 12 a party vote? 13 SENATOR GOLD: Party vote. 14 ACTING PRESIDENT FARLEY: Senator 15 Present? 16 SENATOR PRESENT: Party vote. 17 ACTING PRESIDENT FARLEY: Call 18 the roll on a party vote. 19 THE SECRETARY: Ayes 24. Nays 20 35. Party vote. 21 ACTING PRESIDENT FARLEY: The 22 motion fails. 23 SENATOR JONES: I believe I have 1628 1 another motion up there. 2 ACTING PRESIDENT FARLEY: Would 3 you read the title to Senator Jones' - 4 SENATOR JONES: 3704. 5 ACTING PRESIDENT FARLEY: 3704. 6 THE SECRETARY: 3704, by Senator 7 Jones, an act to amend the Public Officers Law, 8 the General Municipal Law, and the Education 9 Law, in relation to restricting mass mailings by 10 certain elected state and local officials. 11 SENATOR JONES: I can't quite 12 believe I'm standing up here again mentioning 13 the word "mail." Prior to coming here, I used 14 to go to my mailbox and look for a letter from a 15 friend or bills from my creditors or, even 16 better, advertisement for a sale that I could 17 rush out and spend money on. 18 Mail, thanks to all of you, has 19 taken on a really new dimension for me. I will 20 never look at it the same. The word "mail" will 21 always mean to me -- and I assure you I will 22 scrutinize all of it in the future to see if it 23 does have a political connotation. You know, it 1629 1 seems silly that we need to be talking about 2 this; and yet it's such a simple issue when you 3 look at it straightforward. 4 We put out some guidelines last 5 year, and those guidelines -- remember I said 6 the word "guidelines," because that's what they 7 were. They weren't a law. And I remember one 8 of my colleagues describing the debt reform we 9 did last year as being comparable to Swiss 10 cheese and full of holes. Well, so were our 11 guidelines because, if you read the fine print, 12 there's lots of reasons to exclude or change, 13 all within the power of Senator Marino. 14 We don't trust the school 15 districts. We sat here today, and we said we 16 don't trust our local school districts to do the 17 right thing, so let's make a law and make them 18 do the right thing. 19 We say all the time we don't 20 trust local governments do the right thing. 21 Let's give them a mandate to make them do what 22 we think is the right thing. 23 Well, I'm asking you today let's 1630 1 not trust ourselves either. Let's put it into 2 law and force ourselves to do the right thing. 3 It's very simple, three 4 newsletters, 100,000 pieces of bulk mail, the 5 same rule for everybody. Forty-five day cutoff 6 prior to election. 7 It's simple. It's not 8 complicated and there's no loopholes. So I'm 9 saying, you know, if we want to impose standards 10 on everybody else, then I don't see how you can 11 do that without being willing to stand up and 12 impose standards on yourself. 13 So I would ask you to look at 14 this bill. Senator Leichter already told you 15 this, as you well know, is our only avenue to 16 even discuss these things. So I guess I'm 17 asking let's put this to rest. I'm as tired of 18 mail as you are. Let's put it to rest and do 19 the right thing. 20 ACTING PRESIDENT FARLEY: Call 21 the roll on a party vote for Senator Jones' 22 motion to discharge. 23 (The Secretary called the roll.) 1631 1 THE SECRETARY: Ayes 24. Nays 2 35. Party vote. 3 ACTING PRESIDENT FARLEY: Motion 4 fails. 5 Senator Dollinger. 6 SENATOR DOLLINGER: There is a 7 motion to discharge at the desk with appropriate 8 notice given, and I'd ask that my bill, Senate 9 Print 3705, be called up. 10 ACTING PRESIDENT FARLEY: 11 Secretary will read Senator Dollinger's title. 12 THE SECRETARY: By Senator 13 Dollinger, Senate Bill Number 3705, an act to 14 amend the Public Officers Law, in relation to 15 disclosure of records of the state legislature. 16 SENATOR DOLLINGER: Mr. 17 President. 18 ACTING PRESIDENT FARLEY: Senator 19 - 20 SENATOR DOLLINGER: I would ask 21 that my colleagues join me in an affirmative 22 vote to get this bill onto the floor of the 23 Senate so we can talk about the one thing I 1632 1 think we all agree on, and I've sat in this 2 chamber now for fifteen months. I've never 3 heard anybody from this side of the aisle and 4 I -- although I haven't heard a lot of debate 5 from the other side of the aisle, I don't think 6 I've heard anybody on the other side of the 7 aisle say I believe in the concept of secret 8 government. 9 I mean I'm willing to even 10 conduct a little poll. I'm doing this without 11 the concurrence of our Deputy Minority Leader, 12 but maybe we can conduct a little poll. Does 13 anybody on the other side of the aisle believe 14 in secret government? I mean raise your hand. 15 I'm borrowing from Senator Jones' 16 first grade class. She's told me that she used 17 to do that when she wanted to find out how her 18 pupils were thinking. Maybe I can ask. Is 19 there anybody in the chamber who feels that 20 secret government ought to be the way we do 21 business in this state? 22 Okay. So we don't see any hands 23 raised. I guess we all agree that the best way 1633 1 to do it is through an open process of 2 government and through providing as much 3 information as we can to our constituents about 4 how we spend their money. 5 Well, this bill provides you with 6 the perfect tool to do that. I'd point out that 7 I'm only following the footsteps of an already 8 lauded leader, the President of the New York 9 State Senate, who in 1974 authored a bill called 10 the Freedom of Information Act, which was a bill 11 that required everybody in the state, every 12 other level of government, to open their books 13 to allow the taxpayers to have access to their 14 books. 15 In school districts, school 16 districts couldn't spend money on themselves 17 without disclosing it to the people. They 18 couldn't take travel vouchers and fly around the 19 world without having their vouchers subject to 20 freedom of information. They couldn't spend 21 money and hire staff without that being subject 22 to freedom of information. They couldn't send 23 out newsletters to their constituents advocating 1634 1 yes votes on budgets without telling their 2 constituents how much they spent for postage and 3 printing. 4 All of that was required by this 5 law for local governments, every other level of 6 government be it counties or cities or school 7 districts or fire districts or water districts. 8 Everybody in the state had to buy into the 9 concept of open government because this 10 Legislature, this Senate, lead by the current 11 President of this body, said that that was the 12 right thing to do. 13 Except -- except -- we left a 14 little tiny part uncovered, that little tiny 15 part of state government called the State 16 Legislature. Sort of a clever little thing to 17 do. We mandate that everybody else open their 18 books. We tell them they've got to do it, but 19 we also send them one other message. You do it 20 but we don't have to do it. 21 We don't have to do it. That's 22 the way the law was written. Then all of a 23 sudden, there is a court challenge last year. 1635 1 Someone sues, asks for information, as Senator 2 Jones described, about the mailings. They want 3 to know is this mailing being used for political 4 purpose? 5 The New York State Senate says 6 no, we're not going to tell you what that 7 mailing is. We're not going to tell you how we 8 spend your money. We don't have to. 9 The lower court in this case held 10 that they did. But this body, with the aid of 11 taxpayer dollars, went off to the Appellate 12 Division and defended the concept of secret 13 government. Can't believe that we did it. We 14 brought up a motion to deny the access -- the 15 funds to do that. 16 But, no, we spent our money going 17 to the State's Appellate Division and saying, 18 "Uh-Uh Uh-uh, the rule of open government does 19 not apply to us. We can keep our deliberations, 20 we can keep our spending, all in secret. 21 Sure enough, it went to the 22 Appellate Division, and the Appellate Division 23 read the law drafted by Senator Marino, and they 1636 1 concluded, "Oh, the Legislature has exempted 2 itself." We don't have to disclose. 3 The amazing thing about it is, we 4 sat here yesterday when the Ryan case came down, 5 and the Court of Appeals in interpreting the New 6 York State Constitution gave the benefit to a 7 defendant of an inartful drafting of that 8 statute and said, "Because their constitutional 9 rights and their liberty interests are at stake, 10 we're going to put a heavier burden on 11 prosecutors." This Legislature jumped to the 12 opportunity to redefine that legislation, draft 13 it again, make it clearer, so that we could 14 achieve the beneficial public purpose of not 15 allowing a lot of people who were charged with 16 drug offenses from walking out of jails or 17 walking out of prosecutions. 18 What I am amazed at is that when 19 the Appellate Division, Third Department, said 20 to everybody in this state the State Senate can 21 keep its deliberations in secret and spend your 22 money in secret, no one from the other side of 23 the aisle jumped up and said, "That's wrong. We 1637 1 can't let that happen. We ought to change that 2 law and open up the process of deliberation, 3 open up the disclosure of records, because 4 that's a public wrong." 5 It's wrong for the public to be 6 excluded. It's wrong for us to tell the public, 7 "You want our records? You can't have them. 8 We're going to spend your money, and you can't 9 find out how we do it." 10 It's wrong to do that. Nobody on 11 the other side of the aisle is justifying that 12 approach. I don't hear anyone debating that we 13 should keep things in secret. I don't hear 14 anyone debating that we should close our books 15 and never let anyone see. But, yet, that's the 16 effect of the law that's been in place since 17 1974. It's time to change it. 18 This bill will accomplish that 19 change. What we have now in the State 20 Legislature is a form of hide-and-seek 21 government. We hide records. We don't disclose 22 the records, and we send everybody else off to 23 seek them in any other form that they can, be it 1638 1 through the Comptroller's Office, or as the 2 Legislative Task Force on Reform has tried to do 3 through the United States Post Office, to try to 4 pry off the lid of secrecy that is tightly 5 wrapped on the top of this body. 6 It seems to me this bill raises a 7 very simple fundamental question. What does 8 freedom of information mean? It means that the 9 information that you pay for, that a taxpayer 10 pays for, ought to be available in a free way to 11 the people who pay the bill. The message from a 12 no vote on this bill is that the Majority in 13 this house doesn't believe in freedom of 14 information. You don't believe in it, you don't 15 want it, you don't want to be held accountable 16 to the same standard that every other elected 17 official in this state is held to, and it seems 18 to me it becomes the cruelest mandate of all to 19 tell everybody else that they got to buy into 20 the concept of freedom of information but we 21 don't. 22 By voting against this motion, it 23 seems to me that this body is declaring itself 1639 1 in favor of the tyranny of secrecy rather than 2 the access of freedom of information. It will 3 continue. It is not right. It's not fair. I 4 defy everyone in this room to go back to your 5 constituents and tell them that you believe in 6 the tyranny of secrecy in the State Senate and 7 not in the freedom of information. 8 We bought into the concept in 9 1974, twenty years ago. The virtual 10 anniversary, the twentieth anniversary of the 11 Freedom of Information Act. Let's celebrate 12 that anniversary. Let's celebrate the work of 13 the Majority of this body twenty years ago, the 14 work of the draftsman Senator Marino, by passing 15 a Freedom of Information Act that declares that, 16 at this level of government, we are supportive 17 of an open process of access to information. 18 We will freely give our 19 information away so that the taxpayers and the 20 citizens of this state will know how their money 21 is being spent and have greater confidence in 22 our ability in spending that money. 23 It seems to me that this bill 1640 1 inevitably flows from everything that has gone 2 before. We would celebrate the twentieth 3 anniversary of the Freedom of Information Act 4 and do the entire state a great service by 5 passing this legislation. 6 I will ask for your vote in the 7 affirmative so that it can be put on the floor, 8 and then I will ask for your vote in the 9 affirmative so that we can send a message to 10 everybody in this state that we're not 11 hypocrits, and we don't believe in one rule for 12 everybody else and another rule for ourselves, 13 but, instead, we are consistent and committed to 14 the concept of freely making information 15 available to the taxpayers and citizens of this 16 state. 17 Mr. President. I urge a vote in 18 the affirmative on the motion to discharge. 19 ACTING PRESIDENT FARLEY: 20 Secretary will call the roll on the motion to 21 discharge. Party vote. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 24. Nays 1641 1 35. Party vote. 2 ACTING PRESIDENT FARLEY: The 3 motion to discharge fails. 4 SENATOR PRESENT: Any house 5 keeping? 6 ACTING PRESIDENT FARLEY: Any 7 housekeeping? Any motions on the floor? 8 (There was no response.) 9 Seeing none - 10 SENATOR PRESENT: Mr. President. 11 There being no further business, I move that we 12 adjourn until tomorrow at 11:00 a.m. 13 The Senate will stand adjourned 14 until tomorrow, Thursday, at 11:00 a.m. 15 (Whereupon, at 2:43 p.m., Senate 16 adjourned.) 17 18 19 20 21 22 23