Monday, May 15, 1995

5628 1 2 3 4 5 6 7 8 9 10 11 12 ALBANY, NEW YORK 13 May 15, 1995 14 3:01 p.m. 15 16 17 REGULAR SESSION 18 19 20 21 SENATOR JOHN R. KUHL, JR., Acting President 22 STEPHEN F. SLOAN, Secretary 23 5629 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The 3 Senate will come to order; members please take 4 their chairs, staff find their seats. I'd ask 5 all the members and everybody in the chamber to 6 rise and join with me in saying the Pledge of 7 Allegiance to the Flag. 8 (The assemblage repeated the 9 Pledge of Allegiance to the Flag. ) 10 We're very pleased to be joined 11 today by the Reverend Peter G. Young of the 12 Blessed Sacrament Church of Bolton Landing. 13 REVEREND FATHER YOUNG: Thank 14 you, Senator. 15 ACTING PRESIDENT KUHL: Father 16 Young. 17 REVEREND FATHER YOUNG: Let us 18 pray. We pray today for all of our Senators 19 that we might be delivered from any delusion, 20 from all pretense of righteousness and from all 21 arguments or hardness of heart, that we might 22 know the meaning of compassion in all of our 23 elected duties and that we may serve all of 5630 1 those people in New York State, that their 2 wealth and their power might become a course for 3 peace rather than conflict, a source of hope 4 rather than discontent, an agent of friendship 5 rather than enmity. May the actions of this 6 Senate be the example for all. We ask You this 7 in Your name now and forever. Amen. 8 ACTING PRESIDENT KUHL: Reading 9 of the Journal. 10 THE SECRETARY: In Senate, Sunday 11 May 14th. The Senate met pursuant to 12 adjournment, Senator Farley in the Chair upon 13 designation of the Temporary President. The 14 Journal of Saturday, May 13th, was read and 15 approved. On motion, Senate adjourned. 16 ACTING PRESIDENT KUHL: Hearing 17 no objection, the Journal stands approved as 18 read. 19 Presentation of petitions. 20 Messages from the Assembly. 21 Any messages from the Governor? 22 Reports of standing committees. 23 Communications -- reports of 5631 1 select committees. 2 Communications and reports from 3 state officers. 4 Motions and resolutions. The 5 Chair recognizes Senator Present. 6 SENATOR PRESENT: Mr. President, 7 on page 78, on behalf of Senator Cook, I offer 8 the following amendments to Calendar Number 497, 9 Senate Print 3223A, ask that after, it retain 10 its place on the Third Reading Calendar. 11 ACTING PRESIDENT KUHL: 12 Amendments are received and adopted to Calendar 13 Number 497. The bill will retain its place on 14 the Third Reading Calendar. Senator Present. 15 SENATOR PRESENT: Mr. President, 16 on page 78, I offer the following amendments to 17 Calendar Number 496 on behalf of Senator Cook, 18 Senate Print 3157, and ask that it retain its 19 place. 20 ACTING PRESIDENT KUHL: 21 Amendments to Calendar Number 496 will be 22 received and adopted. Bill will retain its 23 place on the Third Reading Calendar. 5632 1 Senator Present. 2 SENATOR PRESENT: Mr. President, 3 on behalf of Senator Skelos, on page 47, I offer 4 the following amendments to Calendar Number 260, 5 Senate Print 2337A, and ask that it retain its 6 place on the Third Reading Calendar. 7 ACTING PRESIDENT KUHL: 8 Amendments to Calendar 260 will be received and 9 adopted. Bill will retain its place on the 10 Third Reading Calendar. 11 Chair recognizes Senator Sears. 12 SENATOR SEARS: Yes, Mr. 13 President. Would you place a sponsor's star on 14 Calendar Number 471 and 599 on today's calendar. 15 ACTING PRESIDENT KUHL: Calendar 16 stars will be placed on Calendar Number 471 and 17 599 at the request of the sponsor. 18 SENATOR SEARS: Also, Madam 19 President -- Mr. President, I wish to call up 20 Calendar 759, Assembly Print 3998. 21 ACTING PRESIDENT KUHL: Secretary 22 will read the title. 23 THE SECRETARY: Calendar Number 5633 1 759, by member of the Assembly Stringer, 2 Assembly Print 3998, an act to amend the General 3 Business Law, in relation to licenses of persons 4 engaged in the practice of nail specialty. 5 ACTING PRESIDENT KUHL: Senator 6 Sears. 7 SENATOR SEARS: I now move to 8 reconsider the vote by which this Assembly bill 9 was substituted for my bill, Senate Print 5057 10 on 5-10. 11 ACTING PRESIDENT KUHL: Secretary 12 will call the roll on reconsideration. 13 (The Secretary called the roll on 14 reconsideration. ) 15 THE SECRETARY: Ayes 40. 16 ACTING PRESIDENT KUHL: Senator 17 Sears. 18 SENATOR SEARS: I now move that 19 Assembly Bill 3998 be recommitted to the 20 Committee on Consumer Protection and my Senate 21 bill be restored to the order of Second Report 22 Calendar. 23 ACTING PRESIDENT KUHL: Assembly 5634 1 bill will be recommitted. The Senate bill will 2 be restored to Third Reading Calendar. 3 Senator Sears. 4 SENATOR SEARS: Mr. President, on 5 page 55, I offer the following amendments to 6 Calendar 499, Senate Print Number 1663A. 7 ACTING PRESIDENT KUHL: 8 Amendments received. 9 SENATOR SEARS: And ask that said 10 bill retain its place on the Third Reading 11 Calendar. 12 ACTING PRESIDENT KUHL: 13 Amendments to Calendar Number 499 are received 14 and adopted. Bill will retain its place on the 15 Third Reading Calendar. 16 Senator DiCarlo. 17 SENATOR DiCARLO: Mr. President, 18 on behalf of Senator Farley, I'd like to place a 19 sponsor's star on Calendar 262, Senate 1601. 20 ACTING PRESIDENT KUHL: Sponsor's 21 star will be placed on Calendar Number 262 at 22 the request of the sponsor. 23 Senator DiCarlo. 5635 1 SENATOR DiCARLO: Mr. President, 2 on behalf of Senator Lack, on page 45, I offer 3 the following amendments to Calendar 182, Senate 4 1307 and ask said bill retain its place on the 5 Third Reading Calendar. 6 ACTING PRESIDENT KUHL: 7 Amendments to -- amendments to Calendar 182 are 8 received and adopted. Bill will retain its 9 place on the Third Reading calendar. 10 Senator DiCarlo. 11 SENATOR DiCARLO: Mr. President, 12 on behalf of Senator Velella, on page 53, I 13 offer the following amendments to Calendar 442, 14 Senate Print 3777, and ask that bill retain its 15 place on Third Reading Calendar. 16 ACTING PRESIDENT KUHL: Calendar 17 Number 442 will be amended; bill will retain its 18 place on the Third Reading Calendar. 19 Senator Seward. 20 SENATOR SEWARD: Yes, Mr. 21 President. On behalf of Senator Leibell, on 22 page number 62, I offer the following amendments 23 to Calendar Number 606, Senate Print Number 5636 1 3681, and ask that the said bill retain its 2 place on the Third Reading Calendar. 3 ACTING PRESIDENT KUHL: 4 Amendments to Calendar Number 606 are received 5 and adopted. Bill will retain its place on the 6 Third Reading Calendar. 7 Senator Seward. 8 SENATOR SEWARD: Yes. On behalf 9 of Senator Volker, I wish to call up his bill, 10 Print Number 2444, recalled from the Assembly 11 which is now at the desk. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the title. 14 THE SECRETARY: Calendar Number 15 181, by Senator Volker, Senate Print 2444, an 16 act to amend the Real Property Law, in relation 17 to disclosure obligations. 18 ACTING PRESIDENT KUHL: Senator 19 Seward. 20 SENATOR SEWARD: Yes, Mr. 21 President. I now move to to reconsider the vote 22 by which this bill was passed. 23 ACTING PRESIDENT KUHL: Motion is 5637 1 to reconsider vote by which the bill passed the 2 house. Secretary will call the roll on 3 reconsideration. 4 (The Secretary called the roll on 5 reconsideration. ) 6 THE SECRETARY: Ayes 40. 7 ACTING PRESIDENT KUHL: The bill 8 is before the house. Senator Seward. 9 SENATOR SEWARD: Yes, Mr. 10 President. I now offer the following 11 amendments. 12 ACTING PRESIDENT KUHL: 13 Amendments are received and adopted. 14 Senator Seward. 15 SENATOR SEWARD: Also on behalf 16 of Senator Volker, I move that his bill, Senate 17 Bill Number 3694 be discharged from its 18 respective committee and be recommitted with 19 instructions to strike the enacting clause. 20 ACTING PRESIDENT KUHL: Without 21 objection, the bill is recommitted; enacting 22 clause is stricken. 23 Chair recognizes Senator Cook. 5638 1 SENATOR COOK: Page 31, move to 2 star Calendar Number 899. 3 ACTING PRESIDENT KUHL: Calendar 4 Number 899 will be starred at the request of the 5 sponsor. 6 Senator Larkin. 7 SENATOR LARKIN: Mr. President, 8 I'd like to place a sponsor's star on my bill, 9 Senate Bill 4268, Calendar Number 641. 10 ACTING PRESIDENT KUHL: Calendar 11 Number 641 will be starred at the request of the 12 sponsor. 13 The Chair recognizes Senator 14 Solomon. 15 SENATOR SOLOMON: Yes, Mr. 16 President. I'd like to put a star on my bill, 17 Senate Calendar Number 705, Bill Number 4223. 18 ACTING PRESIDENT KUHL: Calendar 19 Number 705 is starred at the request of the 20 sponsor. 21 Senator Bruno, we have some 22 substitutions at the desk. Would you like to 23 take those now? The Secretary will read the 5639 1 substitutions. 2 THE SECRETARY: On pages 34, 3 Senator Trunzo moves to discharge from the 4 Committee on Investigations, Taxation and 5 Government Operations Assembly Bill Number 2225, 6 and substitute it for the identical Senate bill, 7 Calendar 926. 8 On page 36, Senator Kuhl moves to 9 discharge from the Committee on Corporations, 10 Authorities and Commissions Assembly Bill Number 11 6345A, and substitute it for the identical 12 Calendar Number 940. 13 On page number 62, Senator Spano 14 moves to discharge from the Committee on Civil 15 Service and Pensions Assembly Bill Number 2334 16 and substitute it for the identical Calendar 17 Number 613. 18 On page 62, Senator Trunzo moves 19 to discharge from the Committee on Civil Service 20 and Pensions Assembly Bill Number 6194 and 21 substitute it for the identical Calendar Number 22 617. 23 ACTING PRESIDENT KUHL: 5640 1 Substitutions are ordered. 2 The Chair recognizes Senator 3 Bruno. 4 SENATOR BRUNO: Mr. President, 5 there's an immediate meeting of the Finance 6 Committee in Room 332. 7 ACTING PRESIDENT KUHL: There 8 will be an immediate meeting of the Finance 9 Committee in the Majority Conference Room, Room 10 332. Immediate meeting of the Finance 11 Committee. 12 SENATOR BRUNO: And, Mr. 13 President, can we at this time take up the 14 non-controversial calendar. 15 ACTING PRESIDENT KUHL: Secretary 16 will read the non-controversial calendar. 17 THE SECRETARY: On page 42, 18 Calendar Number 72, by Senator Skelos, Senate 19 Print 1117, an act to amend the Business 20 Corporation Law and the Civil Practice Law and 21 Rules, in relation to shareholder derivative 22 suits. 23 SENATOR PATERSON: Lay it aside. 5641 1 SENATOR LEICHTER: Lay it aside. 2 ACTING PRESIDENT KUHL: Lay the 3 bill aside. 4 THE SECRETARY: Calendar Number 5 234, by Senator Johnson, Senate Print 1638, an 6 act to amend the Penal Law, in relation to 7 possessing an obscene sexual performance by a 8 child. 9 SENATOR PATERSON: Lay it aside. 10 ACTING PRESIDENT KUHL: Lay the 11 bill aside. 12 THE SECRETARY: Calendar Number 13 236, by Senator Velella, Senate Print 1851, an 14 act to amend the Penal Law and the Criminal 15 Procedure Law, in relation to forgery and 16 illegal possession of vehicle identification 17 numbers. 18 ACTING PRESIDENT KUHL: Secretary 19 will read the last section. 20 THE SECRETARY: Section 5. This 21 act shall take effect on the first day of 22 November. 23 ACTING PRESIDENT KUHL: Call the 5642 1 roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 47. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 378, by Senator Hannon, Senate Print 944, an act 8 to amend the Civil Practice Law and Rules, in 9 relation to statement of damages. 10 ACTING PRESIDENT KUHL: Lay the 11 bill aside. 12 THE SECRETARY: Calendar Number 13 381, by Senator Levy, Senate Print 1410, an act 14 to amend the Penal Law, in relation to the 15 offense of assault. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside. 18 THE SECRETARY: Calendar Number 19 431, by Senator Cook, Senate Print 565A, an act 20 to amend the Correction Law and the Civil 21 Practice Law and Rules, in relation to the 22 repayment by inmates of the cost of college 23 education. 5643 1 SENATOR PATERSON: Lay it aside. 2 ACTING PRESIDENT KUHL: Lay the 3 bill aside. 4 THE SECRETARY: Calendar Number 5 448, by Senator Trunzo, Senate Print 3314, an 6 act to amend the Real Property Tax Law, in 7 relation to exemption from real property 8 taxation for foster parents age 65 years of age 9 or older. 10 SENATOR PATERSON: Lay aside. 11 ACTING PRESIDENT KUHL: Lay the 12 bill aside. 13 THE SECRETARY: Calendar Number 14 453, by Senator Levy, Senate Print 359, an act 15 to amend the Vehicle and Traffic Law, in 16 relation to criminal history checks on school 17 bus attendants. 18 SENATOR PATERSON: Lay aside. 19 ACTING PRESIDENT KUHL: Lay the 20 bill aside. 21 THE SECRETARY: Calendar Number 22 471, by Senator Sears, Senate Print 3545, an act 23 to amend the Environmental Conservation Law, in 5644 1 relation to hooking, snatching or snagging of 2 Pacific salmon. 3 ACTING PRESIDENT KUHL: Bill is 4 starred earlier today. Secretary will continue 5 to call the non-controversial calendar. 6 THE SECRETARY: Calendar Number 7 503, by Senator Hannon, Senate Print Number 8 3467, an act to amend the General Business Law, 9 in relation to unauthorized or improper use of 10 debit cards. 11 SENATOR FARLEY: Mr. President. 12 ACTING PRESIDENT KUHL: Senator 13 Farley. 14 SENATOR FARLEY: I spoke to the 15 sponsor. Could you lay that aside for the day. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside for the day. 18 THE SECRETARY: Calendar Number 19 507, by Senator Lack, Senate Print 3775, an act 20 to amend the Family Court Act, in relation to 21 the duty to support recipients of public 22 assistance. 23 ACTING PRESIDENT KUHL: Secretary 5645 1 will read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 47. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 524, by Senator Volker, Senate Print 3180A, an 12 act to amend the Civil Practice Law and Rules 13 and the Public Authorities Law, in relation to 14 personal service upon public authorities and 15 commissions. 16 ACTING PRESIDENT KUHL: Secretary 17 will read the last section. 18 THE SECRETARY: Section 3. This 19 act shall take effect on the 90th day. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 47. 5646 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 529, by Senator Volker, Senate Print 3803, an 5 act to amend the Criminal Procedure Law, in 6 relation to the period of time which must be 7 excluded in computing the time within which the 8 people must be ready for trial. 9 ACTING PRESIDENT KUHL: Secretary 10 will read the last section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 47. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 535, by Senator Cook, Senate Print 291, an act 21 to amend the Real Property Tax Law, in relation 22 to statements of taxes by school districts 23 related to library purposes. 5647 1 ACTING PRESIDENT KUHL: Secretary 2 will read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Ayes 47. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 545, by Senator Bruno, Senate Print 1859, an act 13 in relation to authorizing the village of Round 14 Lake, county of Saratoga, to reduce the speed 15 limit on its highways. 16 ACTING PRESIDENT KUHL: There's a 17 home rule message at the desk. Secretary will 18 read the last section. 19 SENATOR PATERSON: Lay aside, 20 please. 21 ACTING PRESIDENT KUHL: Lay the 22 bill aside. 23 THE SECRETARY: Calendar Number 5648 1 548, by Senator Farley, Senate Print 2415, an 2 act to amend the Real Property Tax Law, in 3 relation to permitting certain assessing units 4 to require that a property be owner-occupied. 5 ACTING PRESIDENT KUHL: Secretary 6 will read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT KUHL: Call the 10 roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 47. 13 ACTING PRESIDENT KUHL: The 14 bill's passed. 15 THE SECRETARY: Calendar Number 16 568, by Senator Levy, Senate Print 350, an act 17 in relation to requiring the Governor's Traffic 18 Safety Committee to study rear seat safety belt 19 usage. 20 ACTING PRESIDENT KUHL: Secretary 21 will read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 5649 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll. ) 4 THE SECRETARY: Ayes 47. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 574, by Senator Goodman, Senate Print 911, an 9 act to amend the Vehicle and Traffic Law, in 10 relation to allowing parking violation bureaus 11 to increase the fine for illegal parking. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect on the 90th day. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 47. 20 ACTING PRESIDENT KUHL: The 21 bill's passed. 22 THE SECRETARY: Calendar Number 23 577, by Senator DeFrancisco, Senate Print 2937, 5650 1 an act to amend the Highway Law, in relation to 2 including within the state highway system, 3 certain roads in the village of Camillus. 4 ACTING PRESIDENT KUHL: There's a 5 home rule message at the desk. Secretary will 6 read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect on the 1st day of April. 9 ACTING PRESIDENT KUHL: Call the 10 roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 47. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 580, by member of the Assembly Feldman, Assembly 17 Print 290 an act to amend the Vehicle and 18 Traffic Law, in relation to making a certain 19 technical correction with respect to the tow 20 truck advisory board. 21 ACTING PRESIDENT KUHL: Secretary 22 will read the last section. 23 THE SECRETARY: Section 2. This 5651 1 act shall take effect immediately. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 47. 6 ACTING PRESIDENT KUHL: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 584, by Senator Levy, Senate Print 4147, an act 10 to amend the Transportation Law, in relation to 11 authorizing the Commissioner of Transportation 12 to approve funding for improvements to certain 13 airports. 14 ACTING PRESIDENT KUHL: Secretary 15 will read the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 47. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 5652 1 THE SECRETARY: Calendar Number 2 600, by Senator Trunzo, Senate Print 2920, an 3 act to amend the Election Law, in relation to 4 the order of offices listed on ballots. 5 ACTING PRESIDENT KUHL: Secretary 6 will read the last section. 7 SENATOR DOLLINGER: Lay the bill 8 aside, please. 9 ACTING PRESIDENT KUHL: Lay the 10 bill aside at the request of Senator Dollinger. 11 THE SECRETARY: Calendar Number 12 601, by Senator Larkin, Senate Print 2963. 13 Election Law, in relation to the hours for 14 voting at primary elections within the county of 15 Orange or Ulster. 16 SENATOR PATERSON: Lay aside. 17 ACTING PRESIDENT KUHL: Lay the 18 bill aside. 19 THE SECRETARY: Calendar Number 20 619, by Senator Levy, Senate Print 2969, an act 21 to amend the Retirement and Social Security Law, 22 in relation to transfers of certain eligible 23 members from improved career retirement plans to 5653 1 optional 20-year retirement plans. 2 ACTING PRESIDENT KUHL: There's a 3 home rule message at the desk. Secretary will 4 read the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 47. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 620, by Senator Volker, Senate Print 3135, an 15 act to permit the re-opening of the optional 20 16 year retirement plan to Tracey O'Donnell. 17 ACTING PRESIDENT KUHL: There's a 18 home rule message at the desk. Secretary will 19 read the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT KUHL: Call the 23 roll. 5654 1 (The Secretary called the roll. ) 2 THE SECRETARY: Ayes - 3 ACTING PRESIDENT KUHL: Announce 4 the results when tabulated. 5 THE SECRETARY: Ayes 46, nays 6 one, Senator Leichter recorded in the negative. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 621, by Senator Trunzo, Senate Print 3821A, an 11 act to amend the Retirement and Social Security 12 Law, in relation to retirement of sheriffs, 13 undersheriffs and deputy sheriffs. 14 SENATOR LEICHTER: Lay aside, 15 please. 16 ACTING PRESIDENT KUHL: Lay the 17 bill aside. 18 THE SECRETARY: Calendar Number 19 623, by Senator Cook, Senate Print 3139, an act 20 to amend the Facilities Development Corporation 21 Act, in relation to definitional provisions. 22 ACTING PRESIDENT KUHL: Secretary 23 will read the last section. 5655 1 THE SECRETARY: Section 3. This 2 act shall take effect immediately. 3 ACTING PRESIDENT KUHL: Call the 4 roll. 5 (The Secretary called the roll. ) 6 THE SECRETARY: Ayes 47. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 THE SECRETARY: Calendar Number 10 624, by Senator Kuhl, Senate Print 3235, an act 11 to amend the New York State Urban Development 12 Corporation Act, the Omnibus Economic 13 Development Act of 1987 and the Economic 14 Development Law, in relation to including 15 firms. 16 ACTING PRESIDENT KUHL: Secretary 17 will read - 18 SENATOR LEICHTER: Lay aside. 19 ACTING PRESIDENT KUHL: Lay the 20 bill aside. 21 Senator Lack, why do you rise? 22 SENATOR LACK: Mr. President, I 23 am informed that Calendar 507, S. 3775, just 5656 1 passed within the last couple minutes. 2 ACTING PRESIDENT KUHL: Senator 3 Lack, your information is correct. Calendar 507 4 did pass earlier on, on the non-controversial 5 calendar. 6 SENATOR LACK: My apologies, sir, 7 but could I ask that the vote be reconsidered by 8 which that passed, and lay it aside for amend 9 ment. 10 ACTING PRESIDENT KUHL: The bill 11 is still in the house. The motion is to recon 12 sider the vote by which 507 passed the house. 13 Secretary will call the roll on reconsideration. 14 (The Secretary called the roll on 15 reconsideration.) 16 THE SECRETARY: Ayes 47. 17 ACTING PRESIDENT KUHL: Senator 18 Lack, the bill is before the house. 19 SENATOR LACK: Please lay it aside 20 for the day. 21 ACTING PRESIDENT KUHL: Bill is 22 laid aside for the day. Secretary will continue 23 to call the non-controversial calendar. 5657 1 THE SECRETARY: Calendar Number 2 629, by Senator Wright, Senate Print 3183, an 3 act to amend the Navigation Law, in relation to 4 boating on the St. Lawrence River. 5 ACTING PRESIDENT KUHL: Secretary 6 will read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect on the 1st day of 9 November. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll. ) 13 THE SECRETARY: Ayes 49. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 632, by Senator DeFrancisco, Senate Print 3608, 18 an act to amend the Parks, Recreation and 19 Historic Preservation Law, in relation to 20 authorizing the sale of advertising or corporate 21 sponsorship. 22 SENATOR LEICHTER: Lay aside. 23 ACTING PRESIDENT KUHL: Lay the 5658 1 bill aside. 2 THE SECRETARY: Calendar Number 3 669, by Senator Saland, Senate Print 3501, an 4 act to amend the Environmental Conservation Law, 5 in relation to the definition of the term 6 "municipality" for purposes of the Environment 7 al Protection Act. 8 ACTING PRESIDENT KUHL: Secretary 9 will read the last section. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 ACTING PRESIDENT KUHL: Call the 13 roll. 14 (The Secretary called the roll. ) 15 THE SECRETARY: Ayes 49. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 Senator Bruno, that completes the 19 non-controversial calendar. What's your 20 pleasure, sir? 21 SENATOR BRUNO: Mr. President, 22 can we at this time return to reports of 23 standing committees. I believe there's a report 5659 1 there from the Finance Committee. 2 ACTING PRESIDENT KUHL: We'll 3 return to reports of standing committees. There 4 is a report from the Finance Committee. I'll 5 ask the Secretary to read. 6 THE SECRETARY: Senator Stafford, 7 from the Committee on Finance, offers up the 8 following bills directly for third reading: 9 Senate Budget Bill 5166, making 10 an appropriation for the support of government. 11 Budget Bill, Senate Number 5167, 12 making an appropriation for the support of 13 government. 14 Budget Bill, Senate Number 5168, 15 an act to provide for payments to vendors under 16 the Women, Infants and Children's program. 17 Budget Bill, Senate Print Number 18 5169, an act to provide for payments to 19 municipalities and to providers of medical 20 services. 21 All bills directly for third 22 reading. 23 ACTING PRESIDENT KUHL: Without 5660 1 objection, the bills are reported directly to 2 third reading. 3 Senator Bruno, that brings us to 4 the controversial calendar. What's your 5 pleasure, sir? 6 SENATOR BRUNO: Mr. President, 7 can we at this time take up Calendar Number 8 996. 9 ACTING PRESIDENT KUHL: Secretary 10 will read the title of Calendar Number 996. 11 THE SECRETARY: Calendar Number 12 996, Budget Bill, Senate Print 5166, an act 13 making appropriation for the support of 14 government. 15 ACTING PRESIDENT KUHL: Secretary 16 will read the last section. 17 THE SECRETARY: Section 6. This 18 act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 49. 23 ACTING PRESIDENT KUHL: The bill 5661 1 is passed. 2 Senator Bruno? 3 SENATOR BRUNO: Mr. President, 4 can we at this time take up Calendar Number 5 997. 6 ACTING PRESIDENT KUHL: Secretary 7 will read the title to Calendar Number 997. 8 THE SECRETARY: Calendar Number 9 997, Budget Bill, Senate Print 5167, an act 10 making appropriation for the support of 11 government. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 4. This 15 act shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 ACTING PRESIDENT KUHL: Senator 20 Leichter, why do you rise? 21 SENATOR LEICHTER: May I explain 22 my vote, please. 23 ACTING PRESIDENT KUHL: Senator 5662 1 Leichter to explain his vote. 2 SENATOR LEICHTER: I believe I 3 have the right bill, if this is the one making 4 appropriation for the Legislature and the 5 Judiciary. 6 ACTING PRESIDENT KUHL: I think 7 that's the wrong bill that you're referring to. 8 SENATOR LEICHTER: If you will 9 bear with me just one second, I'm sorry. 10 ACTING PRESIDENT KUHL: Senator 11 Leichter, I'm informed - 12 SENATOR LEICHTER: I think - 13 ACTING PRESIDENT KUHL: Senator 14 Leichter, I'm informed by counsel at the desk 15 that this bill deals with Social Security 16 contribution. Would you like to explain your 17 vote on that bill? 18 SENATOR LEICHTER: I'll wait for 19 a later bill. Thank you. 20 ACTING PRESIDENT KUHL: Announce 21 the results when tabulated. 22 THE SECRETARY: Ayes 51. 23 ACTING PRESIDENT KUHL: The bill 5663 1 is passed. 2 Senator Bruno? 3 SENATOR BRUNO: Mr. President, 4 can we at this time take up Calendar Number 5 998. 6 ACTING PRESIDENT KUHL: Secretary 7 will read the title of Calendar Number 998. 8 THE SECRETARY: Calendar Number 9 998, Senate Budget Bill, Senate Print 5168, an 10 act to provide for payments to vendors under the 11 Women, Infants and Children's program. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 3. This 15 act shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 51. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 Senator Bruno. 23 SENATOR BRUNO: Can we at this 5664 1 time take up Calendar Number 999. 2 ACTING PRESIDENT KUHL: Secretary 3 will read the title of Calendar Number 999. 4 THE SECRETARY: Calendar Number 5 999, Senate Budget Bill, Senate Print 5169, an 6 act to provide for payments to municipalities 7 and to providers of medical services. 8 ACTING PRESIDENT KUHL: Secretary 9 will read the last section. 10 THE SECRETARY: Section 3. This 11 act shall take effect immediately. 12 ACTING PRESIDENT KUHL: Call the 13 roll. 14 (The Secretary called the roll. ) 15 ACTING PRESIDENT KUHL: Senator 16 Leichter to explain his vote. 17 SENATOR LEICHTER: Yes. Thank 18 you, Mr. President. Actually, I would have 19 wanted to direct my comments more at Senate 20 5166, but I think my comments are equally 21 appropriate for all these bills. 22 I don't know how many days it is 23 now past April 1st and we haven't passed a 5665 1 budget. I know negotiations are going on. I 2 know people are working hard to try to resolve 3 the disputes. My point is that the whole notion 4 of not paying certain officials, including 5 members of the Legislature, obviously had no 6 effect whatsoever. It was really just a 7 diversion. Fortunately, we're now paying 8 legislative employees because of a decision by a 9 very perceptive, forthright and fair-minded 10 judge. 11 But I do regret that legislators 12 are not being paid, and one of my colleagues 13 told me he went to a meeting. He thought he'd 14 make some points and he got up at this meeting 15 and somebody said, "How about the budget?" and 16 the legislator said very proudly, "Well, we're 17 not getting paid." Somebody from the audience 18 yelled out saying, "I still think you're over 19 paid." 20 So my point is, we know that it's 21 red meat for the public to say you're not going 22 to pay legislators, but I really think it's 23 wrong. It's certainly shown that it doesn't 5666 1 facilitate the budgetary process. On the 2 contrary, it makes it, I think, more difficult 3 to reach agreement. We now at least, fortun 4 ately, are paying the legislative employees. I 5 think the Governor should be paid, the 6 Comptroller should be paid, the Attorney General 7 should be paid. They're all working hard, the 8 Lieutenant Governor, I'm sure, is working hard. 9 We don't see her, but I know she's working 10 hard. Certainly the members of the Legislature 11 are working hard, and we should remove that sort 12 of threat on legislators which in some way seeks 13 to impair their integrity and their 14 independence. 15 Having said this, Mr. President, 16 I vote in the affirmative. 17 ACTING PRESIDENT KUHL: Senator 18 Leichter will be recorded in the affirmative. 19 Secretary will announce the results. 20 THE SECRETARY: Ayes 51. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 The Chair recognizes Senator 5667 1 Bruno. 2 SENATOR BRUNO: Can we now go to 3 the controversial calendar in regular order. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the controversial calendar beginning 6 with Calendar Number 72, in regular order. 7 THE SECRETARY: Calendar Number 8 72, by Senator Skelos, Senate Print 1117, an act 9 to amend the Business Corporation Law and the 10 Civil Practice Law, in relation to shareholder 11 suits. 12 SENATOR SKELOS: Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Skelos, Senator Paterson has asked for an 15 explanation of Calendar Number 72. 16 Senator Skelos. 17 SENATOR SKELOS: Mr. President, 18 Senator Paterson, this bill would discourage 19 baseless shareholder derivative suits while 20 preserving the opportunity to shareholders to 21 bring meritorious derivative suits. 22 ACTING PRESIDENT KUHL: The Chair 23 recognizes Senator Paterson. 5668 1 SENATOR PATERSON: Thank you, Mr. 2 President. 3 Would Senator Skelos be willing 4 to yield for a question? 5 ACTING PRESIDENT KUHL: Senator 6 Skelos, do you yield to Senator Paterson? The 7 Senator yields. 8 SENATOR SKELOS: Yes, I do, 9 Senator Paterson. 10 SENATOR PATERSON: Thank you, Mr. 11 President. 12 One of the particular aspects of 13 this legislation is the description of the 14 effect by which a derivative shareholder suit 15 would be brought by receiving a certain majority 16 of the independent board members. I was just 17 wondering if Senator Skelos would share with us 18 what the definition of an "independent board 19 member" is? 20 SENATOR SKELOS: Well, first of 21 all, as I'm sure you know, Senator Paterson, 22 derivative suits on behalf of the shareholders 23 and the corporation and any benefits that are 5669 1 derived go back to the corporation. What this 2 legislation intends to do in terms of 3 independent directors would say they would make 4 a determination under the business judgment 5 doctrine as to whether a -- a lawsuit would be 6 meritorious and in the best interests of the 7 corporation, rather than frivolous lawsuits, 8 many of which occur in this area where the 9 attorneys are getting enormous fees and the 10 corporation is getting no benefit. 11 In terms of how you would define 12 "independent", quite honestly, I think it's al 13 most like how do you define "pornography". It's 14 very vague. I don't think you can put an exact 15 definition to it, but I believe a judge, in his 16 discretion, would know whether a person - 17 whether the shareholders were independent or 18 not, and I don't think you can put a precise 19 definition. I believe other states have 20 attempted to do so, but it has just not worked. 21 ACTING PRESIDENT KUHL: Senator 22 Paterson. 23 SENATOR PATERSON: I think that's 5670 1 right, Senator Skelos. It's hard. I'm not 2 trying to be euphemistic when I ask you to give 3 us a definition of the word "independent", but 4 what I think I'm really getting at is that there 5 is really kind of a fiduciary relationship if 6 not other types of relationships that exist 7 between board members and, therefore, to try to 8 get that kind of majority seems difficult when 9 you have a number of shareholders right now who 10 they haven't -- they aren't always the individ 11 uals who, and rarely are they the individuals 12 who are actually bringing the lawsuit. 13 Their interest is, as you stated, 14 the best interests of the corporation, and so I 15 was just wondering that, since the perusal we 16 made showed only 13 of these such suits within 17 the last year, and this is kind of one of the 18 last vestiges of corporate democracy, why you'd 19 be interested in changing the law at this time. 20 SENATOR SKELOS: Well, there's 21 been an attempt to change this law for several 22 years. This bill, which was sponsored by 23 Senator Daly in the past, passed unanimously in 5671 1 the Senate in 1993 and 1994, so it isn't a first 2 time; but the bottom line is it is part of our 3 effort, I believe, to make New York State more 4 receptive and more hospitalable to corporations 5 so that they stay in this state rather than 6 fleeing to Delaware and other states and, as you 7 know from looking at the legislation, the group 8 that is seeking to bring the derivative lawsuit 9 can challenge in front of a judge whether, in 10 fact, the directors -- the independent directors 11 were, in fact, independent or not. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: I guess my 15 question to Senator Skelos is - 16 ACTING PRESIDENT KUHL: Senator 17 Skelos, do you continue to yield to Senator 18 Paterson? 19 SENATOR SKELOS: Yes, I do. 20 ACTING PRESIDENT KUHL: Senator 21 continues to yield. 22 SENATOR PATERSON: I would 23 imagine there may have been a time, Senator, 5672 1 when Senator Daly, our colleague, introduced 2 this legislation when there was a real need. 3 Being that perhaps even the desire to create 4 legislation might even have influenced the 5 circumstances -- I don't know whether it did or 6 it didn't -- but what I guess I'm just asking 7 you there doesn't -- there don't seem to me to 8 be that many derivative lawsuits that are being 9 created this way now and so, since it is an 10 option that a shareholder can take and it isn't 11 being used to an extent I don't think that we 12 would consider to be outlandish, I don't know 13 how many of those suits were frivolous, but 14 there couldn't have been that many of them, I 15 just wondered why we would want to change the 16 law. 17 Now, I think you have, in a 18 sense, answered that question but the part of 19 the question I'm still looking for an answer to 20 is can you tell us what the damage has been to 21 the state or even corporations that want to do 22 business in the state from these derivative 23 lawsuits? 5673 1 SENATOR SKELOS: Mr. President, 2 if I could respond. 3 ACTING PRESIDENT KUHL: Senator 4 Skelos to respond to Senator Paterson's 5 question. 6 SENATOR SKELOS: First of all, 7 there have been studies that have been conducted 8 by different universities which indicate that 9 most of the lawsuits that are brought end up 10 with plaintiff not accepting a judgment 11 favorable to their cause of action, but the 12 corporation is saddled with the cost of 13 attorneys' fees which many times are 14 extravagant. 15 Many of these derivative suits 16 are brought against the larger corporations and 17 it would be very similar to something like pain 18 and suffering, let's say, in a medical 19 malpractice case. There may not be a lot of 20 lawsuits or judgments with pain and suffering, 21 but corporations have to anticipate that 22 possibly their corporation is going to be hit 23 with an enormous legal fee in one of these 5674 1 derivative actions; so what we are trying to do 2 here is strike a balance to make sure that, yes, 3 derivative suits can be brought but to 4 discourage frivolous derivative lawsuits. 5 ACTING PRESIDENT KUHL: Senator 6 Paterson. Senator Skelos, you continue to yield 7 to Senator Paterson? 8 SENATOR SKELOS: Yes, Mr. 9 President. 10 ACTING PRESIDENT KUHL: The 11 Senator continues to yield. 12 SENATOR PATERSON: Senator, I 13 just want to get a point of fact cleared up 14 here. Just a moment ago, you said the court 15 had the option inevitably to rule on whether or 16 not the independent board members were 17 independent, but my reading of it is that 18 actually it's the corporation that makes the 19 decision as to whether or not the suit can go 20 before a judge itself. Am I wrong? 21 SENATOR SKELOS: A judge 22 ultimately would make a determination that -- if 23 the attorneys for those who are bringing the 5675 1 derivative suit, if the independent directors 2 indicated that there is no basis for this 3 lawsuit. Shouldn't say "basis", that it's not 4 in the best interests of the corporation, then 5 the plaintiff's attorneys can challenge whether, 6 in fact, these independent -- these directors 7 are, in fact, independent or not, period. 8 ACTING PRESIDENT KUHL: Senator 9 Paterson. 10 SENATOR PATERSON: Thank you, 11 Senator. My last question. 12 ACTING PRESIDENT KUHL: Senator 13 Skelos, do you yield for one more question? 14 SENATOR SKELOS: Yes, Mr. 15 President. 16 ACTING PRESIDENT KUHL: Senator 17 yields. 18 SENATOR PATERSON: What would you 19 suggest is the option for the shareholder if the 20 board rules that it is not in the interest of 21 the corporation now that this bill is passed? 22 SENATOR SKELOS: Well, they have 23 -- they can -- they can challenge that again in 5676 1 front of a judge and certainly what we are doing 2 with this part of the legislation is codifying 3 the case of Auerbach vs. Bennett which indicated 4 that the business judgment doctrine would stand 5 in New York State and that the directors would 6 make the judgment -- the independent directors 7 -- as to what is in the best interests of the 8 corporation. Rather than a court subjecting it 9 to what its business judgment is, it would be 10 the directors injecting what their business 11 judgment is. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: Thank you. 15 It's a very good answer. Senator Skelos, I 16 don't want to sound like Lt. Columbo, but I'm 17 going to ask you one more question. 18 ACTING PRESIDENT KUHL: The 19 Senator yields. 20 SENATOR PATERSON: I want to go 21 back to the -- the majority of the board 22 deciding that the lawsuit is not in the 23 interests of the corporation. 5677 1 My reading of your bill is that 2 the court must dismiss the lawsuit. In other 3 words, the court does have an action as you have 4 described, but if the action is sanctioned, it 5 must dismiss the lawsuit as a result of the 6 passage of this bill, so in other words, the 7 court is not making a meritorious rejection of 8 the action. It is just going through the 9 process of dismissing it, unlike what I thought 10 that you were saying which was that the court 11 could still rule on whether or not these board 12 members were independent. 13 SENATOR SKELOS: But the court 14 would not -- would not have to dismiss it if 15 they found that the board was not independent, 16 was not acting in the -- was not acting in an 17 informed manner. They then, at that point, 18 would not have to dismiss the suit, but if, in 19 fact, they found them to be independent, to be 20 informed of the facts concerning this lawsuit, 21 then they would have to dismiss the lawsuit and 22 not -- not subject the corporation to what their 23 business judgment would be. 5678 1 ACTING PRESIDENT KUHL: Senator 2 Paterson. 3 SENATOR PATERSON: Well, thank 4 you, Senator Skelos. 5 ACTING PRESIDENT KUHL: Senator 6 Paterson, on the bill. 7 SENATOR PATERSON: Mr. President, 8 on the bill. 9 That was why I asked Senator 10 Skelos what the definition of "independent" 11 actually was, because that became -- that is 12 pertinent proof that the plaintiff must reach. 13 So without a very clear definition of what that 14 is, I just think it makes it very difficult. 15 Other than that, the -- the 16 court's ruling, I would suppose, is the way 17 Senator Skelos says it is. 18 ACTING PRESIDENT KUHL: Chair 19 recognizes Senator Leichter. 20 SENATOR LEICHTER: Yeah, Mr. 21 President. 22 This bill goes in the wrong 23 direction, but it's part of the direction that 5679 1 this Majority is going towards in so many areas, 2 which is to protect the strong, the wealthy, and 3 to hurt those people, the vast majority who need 4 some resort for remedies. 5 What you're doing here by this 6 bill is really curtailing corporate democracy. 7 What is fairer and more appropriate than to 8 allow shareholders to go and to challenge the 9 acts of corporate directors who stand in 10 relation to them in a fiduciary status? 11 That relationship or that nexus 12 is being cut by this bill, and it's hard for me 13 to understand why you would want to do it. If 14 Senator Skelos says, Well, there have been 15 abuses, well, there are protections. There are 16 protections if you bring frivolous suits, but I 17 think Senator Paterson rightly pointed out that 18 there had been very few of these lawsuits. 19 It happens it's extremely 20 difficult and complex to bring a shareholder's 21 derivative action. It isn't that anybody can 22 just bring one of these actions and, by limiting 23 to this extent the ability of shareholders to 5680 1 challenge the acts of corporate directors, 2 you're really making it impossible for thousands 3 and millions of shareholders to try to bring 4 some responsibility to corporate directors. 5 We've had any number of examples 6 in the last few years of corporations that have 7 acted not in the interest of the shareholders. 8 Corporate directors have often acted in the 9 interests of the corporate directors. We've 10 seen these enormously high salaries. We've seen 11 where corporations have had the leveraged buy 12 outs. We've seen all number of abuses where 13 shareholders have really been placed at a 14 disadvantage, and the only remedy that they have 15 now is to go into court. 16 Senator Skelos says, Well, we 17 want to keep corporations from fleeing New York 18 State because otherwise they'll get a Delaware 19 charter. That makes no sense. Some of the 20 corporations that have been associated with New 21 York State for a long period of time have a 22 Delaware charter. You can have a charter and 23 you can have your corporate headquarters 5681 1 wherever you want it. I think Exxon, as an 2 example, had a Delaware charter. I'm fairly 3 certain that U. S. Steel, which was at one time 4 in New York City -- I don't believe they are any 5 longer -- had a corporate charter, so that 6 that's not a reason for this bill. I think 7 that's a -- that's a weak excuse. 8 Senator Skelos also says, Well, 9 we're trying to keep attorneys from getting 10 large fees. Senator, I know you're a 11 distinguished member of the bar and I'm sorry to 12 see you join in this attorney bashing which has 13 been popular as we know since the days of 14 Shakespeare, but I think it's wrong. I don't 15 think there's any example of lawyers taking 16 unfair advantage, and very often their fees 17 are -- are checked by the courts. 18 All right. 19 SENATOR SKELOS: Mr. President, 20 would Senator Leichter yield for a question? 21 SENATOR LEICHTER: Yes. 22 ACTING PRESIDENT KUHL: Senator 23 Leichter, do you yield to Senator Skelos? 5682 1 Senator yields. 2 SENATOR SKELOS: Just for 3 historical purposes, because I'm sure everybody 4 is following this debate very closely, since 5 this bill passed unanimously in 1993 and '94, I 6 assume you voted for it in 1993 and 1994. What 7 has occurred that you would suddenly consider 8 this bill so bad that you would attack it so 9 viciously, as people are looking to record this 10 debate for historical purposes? 11 SENATOR LEICHTER: Senator, 12 that's an extremely good question, one I've been 13 asking myself, and I didn't know whether it was, 14 well, it had a different sponsor last time. 15 Maybe he was more eloquent, and I -- I consid 16 ered -- I considered that, but I rejected it. 17 Secondly, I wondered, was I in 18 the house when this bill came up. Thirdly, 19 maybe I was asleep. Fourth, maybe Senator 20 Stachowski was speaking to me and had my atten 21 tion, but it's a good question, and I'm sure 22 it's happened to you, Senator, that you see a 23 bill and you say, Oh, this is terrible, and then 5683 1 somebody points out you voted for it. I've 2 gotten up at public meetings and said, This is a 3 terrible bill, and so on. I'd never support it, 4 and then somebody says, Well, wait a second. 5 I've got the voting record here of a couple 6 years ago and you did vote for it. 7 Unfortunately that happens, and 8 I'd like to say that was the only bad vote I 9 ever cast in this Legislature, but if I voted 10 for it and was here, I think that I was mistaken 11 and now that I look at it, maybe also memos that 12 were sent to me that opened my eyes to it, but I 13 think the basis of this bill -- and that's 14 really what I wanted to address, Senator, is 15 that independent directors really serve in a 16 sense as a prophylactic for everyone else, but 17 the independent directors, Senator, you and I 18 know that very often, who do they take, they 19 take college presidents. The president of City 20 University system serves on a number of boards 21 of directors, the president of Columbia 22 University used to serve on a lot of boards of 23 directors. 5684 1 These happen to be extremely busy 2 individuals. I just don't believe that they can 3 really inform themselves sufficiently about the 4 affairs of the corporation and besides that, as 5 you know, all that information comes from those 6 directors who are part of management, who are 7 associated with the corporation. 8 So that's really no protection 9 whatsoever. It -- it's nice cosmetics for the 10 corporation. Oh, we have President So-and-So, 11 they like to put priests on, sisters, rabbis, I 12 mean it looks good, but in point of fact these 13 independent directors, I don't mean to say that 14 they don't try to do a good job, but they're 15 really not in a position to protect the 16 shareholders, and I think it's for that reason, 17 if you read the memoranda in opposition, I think 18 they make this point very well, and they say 19 that you are eliminating this last bit of 20 corporate democracy, and that's why the notes 21 that I have and the memoranda I have here show 22 that NYPIRG opposes it; the New York Bar 23 Association opposes it, the National Association 5685 1 of Securities and Commercial Attorneys, New York 2 State AFL-CIO, I believe the trial lawyers have 3 opposed it, and I don't think it's selfishness. 4 I don't think it's self-interest. Maybe some of 5 that enters into it, but I think if you look at 6 it, I think the issue really is whether 7 corporate shareholders should not have the right 8 to challenge actions of corporate directors, 9 particularly when we have seen so many acts in 10 recent years that raise so many questions 11 whether it's of interest to the shareholders. 12 Don't deny them this right. 13 Mr. President, this bill should 14 be defeated. 15 ACTING PRESIDENT KUHL: Chair 16 recognizes Senator Waldon. 17 SENATOR WALDON: Thank you very 18 much, Mr. President. 19 Would Senator Skelos yield to a 20 question? 21 ACTING PRESIDENT KUHL: Senator 22 Skelos, do you yield to Senator Waldon? 23 SENATOR SKELOS: Yes, Mr. 5686 1 President. 2 ACTING PRESIDENT KUHL: Senator 3 yields. 4 SENATOR WALDON: Thank you very 5 much, Mr. President. 6 Senator, when you came up with 7 the idea for this bill, had something occurred 8 or was there a base of information that you 9 viewed which inspired you to write it? Was - 10 you know, were you on the road to Damascus and 11 something happened? 12 SENATOR SKELOS: I think what 13 happened when I introduced this bill, Senator 14 Daly was leaving the Senate. He thought it was 15 a very good bill for me to introduce, which I 16 agreed upon, and I looked at the record and saw 17 that probably, since you voted for it, it was a 18 great bill and passed unanimously that I would 19 -- I would put the bill in. 20 SENATOR WALDON: I appreciated 21 very much your observation, Senator. May I ask 22 another question? 23 ACTING PRESIDENT KUHL: Senator 5687 1 Skelos, do you continue to yield to Senator 2 Waldon? 3 SENATOR SKELOS: Absolutely. 4 ACTING PRESIDENT KUHL: Senator 5 yields. 6 SENATOR WALDON: Senator, in your 7 research prior to accepting the bill from 8 Senator Daly and introducing same, did you find 9 any information which showed that there was an 10 abundance of suits by shareholders which caused 11 great pain and suffering of a financial nature 12 to the corporations of the state of New York? 13 SENATOR SKELOS: There was a - 14 well, first of all, again I thought basically 15 the bill was good and, since I had studied it in 16 prior years when I voted yes like everybody else 17 who voted yes for it in the Senate in '93 and 18 '94, I thought it would be good to be 19 consistent and to continue to vote for it now 20 and that it was a good bill. 21 SENATOR WALDON: Well, Senator, I 22 accept your analysis. I accept your thought 23 process, but you didn't respond to the 5688 1 question. 2 SENATOR SKELOS: Well, in the 3 Senate -- Mr. President. 4 ACTING PRESIDENT KUHL: Senator 5 Skelos. 6 SENATOR SKELOS: If I could, I 7 believe you asked the question, and I'm going to 8 respond as I wish, but there have been a number 9 of cases, many cases where the suits are 10 dismissed and the lawyers get big bucks and 11 that's what I'm trying to avoid. 12 SENATOR WALDON: May I ask the 13 learned Senator just a few more questions, Mr. 14 President? 15 ACTING PRESIDENT KUHL: Senator 16 Skelos, do you yield to Senator Waldon for 17 another question? Senator yields. 18 SENATOR WALDON: In the 19 information base that you have discovered or 20 that you were advised about, Senator, by Senator 21 -- I should say, Senator Daly, was there 22 anything which showed that shareholders had 23 voted themselves enormously interesting perq's, 5689 1 plane rides free of charge charged to the 2 corporation, big vacations charged to the 3 corporation, other benefits, annuities and 4 money, monetary benefits voted by the 5 shareholders to themselves in that information 6 base that you discovered regarding this bill? 7 SENATOR SKELOS: The independent 8 directors that would make a determination as to 9 this -- under the business judgment doctrine 10 would determine whether, in fact, the share 11 holder bringing a derivative, or the attorney 12 bringing the derivative action for the 13 shareholder, whether in fact whatever the board 14 voted was proper or not. If you can't find 15 independent directors, then the derivative law 16 suit is going to proceed. 17 SENATOR WALDON: Last question, 18 Mr. President. 19 ACTING PRESIDENT KUHL: Senator 20 Skelos, do you yield to one more question? 21 SENATOR SKELOS: Absolutely. 22 ACTING PRESIDENT KUHL: Senator 23 yields. 5690 1 SENATOR WALDON: Senator, in 2 helping to educate those of us who may have made 3 a mistake in the past or may have, as history 4 will dictate, did the right thing with our vote 5 on this bill in previous years, is there a 6 dollar amount from these so-called frivolous 7 actions brought by shareholders characterized, 8 if I may use my own statement, causing pain and 9 suffering, crippling corporations, is there a 10 dollar amount that you have or have had that you 11 can share with us as to the amount of money 12 negatively impacting corporations because of 13 these derivative actions? 14 SENATOR SKELOS: The lawyers in a 15 study that I have here got fees averaging 16 $350,000 from settlements in 60 percent of 17 derivative suits recently studied. It's by a 18 Yale Professor Romano. The other 40 percent 19 were dismissed or settled without fees. Not a 20 single one of the 55 suits resulted in a 21 judgment for the plaintiff. 22 SENATOR WALDON: Thank you very 23 much, Senator Skelos. 5691 1 Mr. President, if I may, on the 2 bill. 3 ACTING PRESIDENT KUHL: Senator 4 Waldon, on the bill. 5 SENATOR WALDON: I'm a little 6 concerned about the responses that I received. 7 I would have appreciated it, and I'm sure my 8 colleagues would have appreciated it if it could 9 have been more on point, but that's my personal 10 observation. 11 In regard to the bill, I think 12 that we're -- we're witnessing in this country, 13 not just in our Legislature but in this country, 14 a move to make the strong stronger, to diminish 15 the ability and capability of those who are in 16 lesser positions to rail up, to rise up against 17 those who are strong, and we're creating a 18 situation that is clearly a class struggle 19 personified. 20 We're creating a situation which, 21 in my opinion, will cause those who have, in the 22 past, had little hope to become even more hope 23 less. This is ridiculous. It's ridiculous that 5692 1 those who are raping corporations should have a 2 need to be complimented for the rape that they 3 are doing and eventually the rape hurts all of 4 us. It hurts the shareholder right away, but it 5 hurts all of us who participate in this economy 6 that is America eventually. 7 I don't see a need for it. I 8 don't see why we have to make the strong 9 stronger. I don't see why there's such a move 10 to ensure that those who are less strong become 11 weaker, so I will have to vote this year, and I 12 think that this vote this year is the right vote 13 in the negative. 14 Thank you, Mr. President. Thank 15 you, my colleagues. 16 ACTING PRESIDENT KUHL: Chair 17 recognizes Senator Abate on the bill. 18 SENATOR ABATE: Yes. Senator 19 Skelos, I never had the privilege of voting up 20 or down on this bill, so I can take a look at 21 this piece of legislation in a new way in the 22 first instance, and my concern is that, if you 23 look at the words of this legislation, it does 5693 1 not seem to try or attempt to relieve the 2 financial burden on corporations, but is, in 3 fact, eliminating shareholder derivative 4 lawsuits and, if you look at the basis for the 5 demonstrated need as I'm sure you have, have you 6 looked at the court's review of these cases in 7 the past? 8 It's my understanding that the 9 courts have viewed these cases very favorably in 10 most instances when the board of directors have 11 refused to uphold the lawsuits. The courts have 12 ruled in the favor of the board. Please tell me 13 if I'm -- if I have misinformation on that. 14 It's my understanding that the 15 courts have been very favorable towards the 16 corporations in these instances. 17 ACTING PRESIDENT KUHL: Senator 18 Skelos to respond to the question posed by 19 Senator Abate. 20 SENATOR SKELOS: Yes, I do, Mr. 21 President. 22 Senator Abate, what this 23 legislation does, it does not eliminate 5694 1 shareholder derivative lawsuits. It seeks to 2 eliminate frivolous shareholder derivative 3 lawsuits, many of which are settled for nuisance 4 value just to get rid of the case by the 5 corporations. 6 SENATOR ABATE: But it's my 7 understanding, if I'm a shareholder - 8 ACTING PRESIDENT KUHL: Senator 9 Abate, excuse me. You're asking Senator Skelos 10 to yield? 11 SENATOR ABATE: Yes. Will you 12 yield for another question? 13 SENATOR SKELOS: Yes, Mr. 14 President. 15 ACTING PRESIDENT KUHL: Senator 16 Skelos yields. 17 SENATOR ABATE: Thank you very 18 much, Mr. President. 19 It's my understanding that, if 20 I'm a shareholder and I believe that the board 21 of directors has or the corporation has engaged 22 in fraud or malfeasance or misfeasance, the only 23 way I can get involved in a court, I could ask 5695 1 the court to review it on two bases, on 2 procedural grounds and secondly, whether the 3 board members, the two board members that 4 aren't - 5 SENATOR SKELOS: Mr. President. 6 ACTING PRESIDENT KUHL: Your 7 point, Senator Skelos, is very well taken. It 8 has been a little noisy all day. If we could 9 have the staff who are having conversations 10 please take their conversations out of the 11 chamber, the same is true of the members. That 12 way Senators can engage in a meaningful debate. 13 SENATOR ABATE: I'll repeat the 14 question. 15 My concern is this legislation 16 does virtually eliminate derivative shareholder 17 lawsuits because, if I'm a shareholder and I 18 believe the corporation is engaged in fraud or 19 malfeasance or misfeasance, I can go to the 20 court after the board -- two independent members 21 have ruled and say one, the two board members 22 aren't independent, or they didn't follow 23 certain procedural guidelines. 5696 1 There's nothing that would 2 mandate that the court would review whether my 3 claim is meritorious, so on substance, as a 4 shareholder, you're taking away my right to ask 5 the board to pursue certain remedies on my 6 behalf. 7 SENATOR SKELOS: Mr. President, 8 if I could respond -- if I could respond, Mr. 9 President. 10 ACTING PRESIDENT KUHL: Senator 11 Skelos, the floor is yours. 12 SENATOR SKELOS: Again, in my 13 judgment, this does not eliminate shareholders' 14 lawsuits. It eliminates shareholders' frivolous 15 lawsuits. They may have other options and they 16 can eliminate the directors, so they can vote 17 out the board if they're not happy with that 18 board. 19 SENATOR ABATE: But, Senator, 20 you're talking, if you could yield to another 21 question. 22 ACTING PRESIDENT KUHL: Do you 23 yield to another question, Senator Skelos? 5697 1 SENATOR SKELOS: Yes, Mr. 2 President. 3 ACTING PRESIDENT KUHL: Senator 4 yields. 5 SENATOR ABATE: But you're not 6 talking about an equitable relationship where 7 the board of directors have all the infor 8 mation and access to policies. There are 9 legitimate claims that can be made by a 10 shareholder and they don't have also the ability 11 to organize to elect or not reelect a board of 12 directors. 13 So by virtually taking away this 14 lawsuit, you are disenfranchising thousands of 15 what I would call little shareholders that will 16 not have access to the courts. So, Senator, 17 would you agree with me that there are many 18 meritorious claims that won't be addressed by 19 the court because they'll only be looking at 20 procedural guidelines, not for the substance of 21 the claim? 22 That's what's written in the bill 23 unless I'm reading it differently. 5698 1 SENATOR SKELOS: Mr. President, 2 if I could respond that the meritorious lawsuits 3 will be brought and, as Senator Leichter pointed 4 out, we could get an independent board. As he 5 mentioned, many times there are rabbis, priests 6 and college professors, and I'm sure a rabbi, a 7 priest and a college professor would be very 8 independent and would consider the best 9 interests of the corporation in making their 10 determination. 11 SENATOR ABATE: Senator, would 12 you yield to another question? 13 SENATOR SKELOS: Absolutely. 14 SENATOR ABATE: Would you agree 15 that, by the virtue of who pays the stipend of 16 the board, the fact that they get perq's and 17 other kinds of bonuses, they're there to 18 represent the corporation's interest, there will 19 be some compelling forces that will cause a 20 board of directors, and they will describe 21 themselves as independent but would reject these 22 law suits? 23 SENATOR SKELOS: Well, 5699 1 determinations are made by the board just like 2 so often in the Legislature, if we make a bad 3 decision and the legislation is held 4 unconstitutional, except under extraordinary 5 circumstances that we find ourselves right now, 6 we continue to get paid too until we face the 7 day of reckoning, the November that we run for 8 reelection, so you have -- in no way does this 9 bill eliminate all shareholder derivative 10 actions. 11 It eliminates or seeks to 12 eliminate frivolous ones, and also the board of 13 directors is still the entity that will run a 14 corporation and, as a shareholder, you have the 15 option to elect or not elect that board. 16 SENATOR ABATE: If, in fact - 17 would you yield to another question? 18 ACTING PRESIDENT KUHL: Senator 19 Skelos, do you yield to another question? 20 SENATOR ABATE: If, in fact - 21 ACTING PRESIDENT KUHL: Excuse 22 me, Senator Abate. Do you yield? 23 SENATOR SKELOS: Yes, Mr. 5700 1 President. 2 ACTING PRESIDENT KUHL: He's 3 desirous of yielding to your question, Senator 4 Abate. 5 SENATOR ABATE: If, in fact, your 6 legislation sought to eliminate frivolous 7 lawsuits, there would be language in this bill 8 that talked about meritorious lawsuits versus 9 frivolous lawsuits, and I do not see the 10 distinction, and I'm particularly troubled by 11 the fact that the board of directors do not have 12 to put in writing why they are rejecting the 13 lawsuits. 14 It says "good faith," they have 15 to be independent, but they can come up in their 16 mind with any reason and they don't have to 17 clearly articulate to those shareholders why the 18 rejection is occurring. To me, that leaves open 19 the opportunity to reject meritorious, maybe 20 costly to the corporation and the management, 21 but not in the best interests of the 22 shareholders. Do you agree, Senator? 23 SENATOR SKELOS: We have a basis 5701 1 of disagreement. 2 SENATOR ABATE: Again, on the 3 bill. 4 When we talk about reform, it's 5 one thing. In this case, we're totally 6 eliminating the opportunity, I believe, for 7 shareholders to bring their grievances in court 8 and many of them are meritorious and there has 9 been no demonstrated need other than perhaps in 10 some isolated cases where management have had to 11 pay for attorneys' fees, but then again, there 12 needs to be checks and balances on the 13 shareholders investing in these corporations. 14 Many people put life savings. These are middle 15 income individuals, many of them our 16 constituents. 17 What we're doing is taking them 18 out of any possibility of receiving relief from 19 the court. I think this will bring inequity, 20 injustice to the little guy that we are elected 21 to serve and also in a real world obviously we 22 have to provide fairness to the corporation, but 23 this goes overboard, and I can not support this 5702 1 legislation. 2 ACTING PRESIDENT KUHL: Senator 3 Dollinger. 4 SENATOR DOLLINGER: Yes, Mr. 5 President. 6 Will Senator Skelos yield to a 7 couple questions? 8 ACTING PRESIDENT KUHL: Senator 9 Skelos, do you yield to Senator Dollinger? 10 SENATOR DOLLINGER: My concern, 11 Senator -- did he yield? O.K. My concern is 12 with -- and this is a very complicated bill, but 13 I've looked at some of the memos really for the 14 first time today. As I understand it, if there 15 is an action brought and it's rejected by the 16 board of directors, the court would be required 17 to dismiss the action assuming, one, that the 18 directors were independent, is that -- that's 19 correct? 20 And again through you, Mr. 21 President, the way it would work is that the 22 plaintiff would have the opportunity to litigate 23 whether or not they were truly independent; 5703 1 that's also correct? 2 SENATOR SKELOS: It is. 3 SENATOR DOLLINGER: Then the 4 question is whether those independent acting 5 directors were at the time they rejected the 6 lawsuit, acting in good faith in the best 7 interests of the corporation; and is it my 8 further understanding that the question of good 9 faith, that is the process by which they reach 10 the decision would be part of the review by the 11 court? 12 SENATOR SKELOS: Yes. 13 SENATOR DOLLINGER: And then your 14 question of whether it was in the best interests 15 of the corporation, and I assume that that best 16 interest would require some financial gain or 17 other gain for the corporation as a result of 18 the lawsuit, is that correct? 19 SENATOR SKELOS: Foreseeably it 20 could. I think it's more in terms of whether 21 they're acting with good faith, but I think that 22 could be part of it. 23 SENATOR DOLLINGER: O.K. But my 5704 1 -- the reason I focus on that question is 2 because - 3 ACTING PRESIDENT KUHL: Are you 4 asking Senator Skelos to continue to yield? 5 SENATOR DOLLINGER: Continue to 6 yield. 7 ACTING PRESIDENT KUHL: Senator 8 Skelos, do you continue to yield? 9 SENATOR SKELOS: Yes. 10 ACTING PRESIDENT KUHL: Senator 11 continues to yield. 12 SENATOR DOLLINGER: I assume that 13 if it's -- if a shareholder can show an action 14 of financial benefit to the corporation of some 15 significance, not a dollar for the pot machine 16 but some significance, that under those circum 17 stances, if the independent directors had 18 rejected, it would not be in the best interests 19 of the corporation and the law suit would be 20 sustained. 21 Now, my critical question, Mr. 22 President, if Senator Skelos will continue to 23 yield is, are you familiar with the business 5705 1 judgment rule in New York State, and my question 2 is, is that decision of the board of directors 3 shielded from review by the business judgment 4 rule, or would the court have the de novo power 5 to analyze whether they acted in good faith in 6 the best interests of the corporation? 7 SENATOR SKELOS: Senator 8 Dollinger, under Auerbach vs. Bennett which is 9 law in New York State, the business judgment 10 doctrine would prevail, and we are now trying to 11 codify that with this legislation that the - 12 the corporate -- the directors will make a 13 judgment what is in the best business interests 14 of the corporation. 15 SENATOR DOLLINGER: And that's my 16 exact point, Mr. President, is that -- on the 17 bill. 18 ACTING PRESIDENT KUHL: Senator 19 Dollinger, on the bill. 20 SENATOR DOLLINGER: Auerbach 21 against Bennett is exactly the rule announced by 22 the Court of Appeals that establishes the 23 business judgment rule. The one danger of the 5706 1 business judgment rule is that it gives 2 tremendous weight to the corporate directors, 3 and it doesn't allow the corporate -- the court 4 to review de novo the underlying decisions of 5 best interest, and it doesn't allow them to 6 decide de novo whether it's been of financial 7 benefit to the corporation, and that's my 8 concern with Auerbach against Bennett. I'm 9 concerned about that provision. 10 I voted for this bill twice in 11 the past. I'm going to vote for it again today 12 because I think it does many good things, but I 13 do think we need to look closely perhaps again 14 at that issue because, if the board is totally 15 shielded by the business judgment rule, the 16 scope of review by the court will be so limited 17 that the issue of good faith could be resolved 18 in the board of directors and not by the court. 19 As I understand it, the intention 20 of the sponsor today is that the court would 21 have the ability to decide that good faith best 22 interest analysis and would not necessarily be 23 completely bound by the corporate board which 5707 1 makes that decision in rejecting or accepting 2 the lawsuit. 3 So, although I'm concerned about 4 that, I've voted for this in the past. I think 5 there are some good changes in it, and I'm going 6 to vote in favor of it again, but I remain 7 concerned about that application of the business 8 judgment rule. I hope that if there proves to 9 be a problem in the next couple of years if this 10 bill becomes law, we'll take a closer look at 11 that. 12 ACTING PRESIDENT KUHL: Secretary 13 will read - 14 Senator Leichter. 15 SENATOR LEICHTER: Mr. President, 16 would Senator Skelos yield, please? 17 ACTING PRESIDENT KUHL: Senator 18 Skelos, do you yield to Senator Leichter? 19 SENATOR SKELOS: Yes. 20 ACTING PRESIDENT KUHL: Senator 21 yields. 22 SENATOR LEICHTER: Senator, I'm 23 confused by your answers to Senator Dollinger. 5708 1 It is my understanding of this bill that, if you 2 challenge the action of the directors, that you 3 need to plead with specificity the acts that 4 they've done which have hurt the corporation but 5 also to -- you would have to plead and show that 6 independent directors did not act in good faith, 7 is that correct? 8 SENATOR SKELOS: You would 9 challenge. If the independent board made a 10 determination that, in the best interests of 11 this corporation, this lawsuit should not be 12 brought, you could then show that they were not 13 an independent board or they were not acting in 14 good faith, and I think also that they were not 15 properly informed. 16 SENATOR LEICHTER: All right. 17 But if you failed to establish that, at that 18 point the business judgment rule which concerned 19 Senator Dollinger, and rightly so, would not 20 come into play until and unless you overcome 21 that hurdle of establishing that the board was 22 not independent as such and did not act in good 23 faith. You never reach the business judgment 5709 1 rule, isn't that correct? 2 SENATOR SKELOS: This codifies 3 the business judgment rule. 4 SENATOR LEICHTER: Well, Senator, 5 I don't know, if you continue to yield. 6 ACTING PRESIDENT KUHL: Senator 7 Skelos, do you continue to yield to Senator 8 Leichter? Senator yields. 9 SENATOR LEICHTER: I don't know 10 if you codify it or not. It's my understanding 11 if I bring a derivative shareholder suit, unless 12 I overcome that first hurdle -- very significant 13 substantial hurdle of the independence of the 14 board and acting in good faith, I don't get to 15 the business judgment rule. 16 SENATOR SKELOS: The benefit of a 17 derivative lawsuit flows to the corporation; it 18 will not go directly to the shareholder although 19 the attorneys' fees go directly to the attorney. 20 Once it is found that these independent direct 21 ors were, in fact, independent and acting in 22 good faith, they are then acting in the best 23 interests of the corporation which is their job 5710 1 as directors, and then the business judgment 2 doctrine would prevail in the sense that they 3 are -- the courts are not going to substitute 4 what their judgment is as good business judgment 5 for the corporation, but rather it's the job of 6 the directors to do so. 7 SENATOR LEICHTER: Thank you very 8 much. 9 If I may again, on the bill, 10 because I - 11 ACTING PRESIDENT KUHL: Senator 12 Leichter, on the bill. 13 SENATOR LEICHTER: This is an 14 important issue, and I think, Senator Dollinger, 15 if I understood the purport of your question 16 which was that you wanted to see that the court 17 was still in a position to apply the business 18 judgment rule, I think the last answer that was 19 made by Senator Skelos makes it clear that that 20 test is never reached unless you establish that 21 the board was not independent and didn't act in 22 good faith, which is a terribly difficult burden 23 to establish. 5711 1 I just want to read from the 2 memorandum of the New York State Bar 3 Association, and I think it's an excellent 4 memorandum, and I call it to your attention, but 5 it says: "The majority" -- that's the majority 6 of the committee -- "would also note that 7 Assemblyman Feldman, one of the original 8 sponsors of the bill, has withdrawn his support 9 because he has come to the view," quote, "'that 10 the independent committee as set forth by the 11 bill would indeed operate as a shield protecting 12 corporate malfeasors against legitimate 13 shareholders' derivative lawsuits'," unquote. 14 So when Senator Skelos says you 15 can still bring a lawsuit, yeah, you can still 16 bring a shareholders' derivative suit, but you 17 just can't win. You'll always lose because you 18 can't really, except in very rare instances, 19 show that the independent directors did not act 20 in good faith. They may have used terrible 21 judgment, they may not have known what they were 22 doing, and these -- I didn't mean to make light 23 of the independent directors when I said they're 5712 1 college presidents and priests, and so on, but 2 very often you'll find somebody like that on the 3 board for cosmetic purposes, and these are good 4 people, they're smart people, but they don't 5 have the business background. They're usually 6 terribly overextended and, if you show or the 7 corporation shows, well, they have used their 8 best judgment, they were independent, they 9 weren't bribed, they weren't drunk when they 10 were sitting at the corporate table, they've 11 established good faith. 12 You're never going to overcome 13 that burden, and that's why this bill really 14 makes it almost impossible for shareholders to 15 challenge acts that ought to be challenged, 16 salaries of 70-, $80 million, stock options that 17 are worth millions, "golden parachutes." If you 18 finally do get rid of inept management. They 19 walk out of there with an enormous bounty from 20 the corporation. 21 We ought to let democracy rule. 22 We ought to let the courts decide whether, in 23 fact, these acts were done in the best interests 5713 1 of the corporation or not and, with this bill, 2 you're going to be precluded from doing that. 3 It protects, as Senator Waldon rightly said, the 4 powerful and it takes away a small weapon and, 5 believe me, stockholders derivative actions is a 6 very small weapon, but it takes even that weapon 7 away from the majority of people who invest in 8 corporations with the idea of getting a fair 9 return and often do not because of the acts of 10 corporate directors to allow those acts to be 11 challenged. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 4. This 15 act shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll. ) 19 ACTING PRESIDENT KUHL: Announce 20 the results when tabulated. 21 THE SECRETARY: Those recorded in 22 the negative on Calendar Number 72 are Senators 23 Abate, Connor, Leichter, Markowitz, Montgomery, 5714 1 Onorato, Paterson, Smith, Stachowski and 2 Waldon. Ayes 41, nays 11. 3 ACTING PRESIDENT KUHL: The 4 bill's passed. 5 THE SECRETARY: Calendar Number 6 234, by Senator Johnson, Senate Print 1638, an 7 act to amend the Penal Law, in relation to 8 possessing an obscene sexual performance by a 9 child. 10 ACTING PRESIDENT KUHL: Senator 11 Hoblock. 12 SENATOR HOBLOCK: Mr. President, 13 at the request of the sponsor, will you lay that 14 bill aside for the day. 15 ACTING PRESIDENT KUHL: At the 16 request of the sponsor, Senate Calendar Number 17 234 is laid aside for the day. 18 Secretary will continue to call 19 the controversial calendar. 20 THE SECRETARY: Calendar Number 21 378, by Senator Hannon, Senate Print 944, an act 22 to amend the Civil Practice Law and Rules, in 23 relation to statements of damages and tort 5715 1 actions. 2 SENATOR HOBLOCK: Mr. President, 3 at the request of the sponsor, may the bill be 4 laid aside for the day. 5 ACTING PRESIDENT KUHL: Calendar 6 Number 378 will be laid aside for the day at the 7 request of the sponsor. 8 Secretary will continue to call 9 the controversial calendar. 10 THE SECRETARY: Calendar Number 11 381, by Senator Levy, Senate Print 1410, an act 12 to amend the Penal Law, in relation to the 13 offense of assault. 14 ACTING PRESIDENT KUHL: Senator 15 Levy, an explanation has been asked for by 16 Senator Paterson. 17 SENATOR LEVY: Yes, Senator 18 Paterson. I originally initiated this bill a 19 number of years ago. It's subsequently been 20 adopted and made part of NYSUT's legislative 21 program and it tries to respond to the ever 22 escalating number of assaults on teachers and 23 other staff and, to give you an idea of the 5716 1 magnitude of the problem, based upon figures we 2 just received that were released today by the 3 United Teachers, in the four-year period 4 beginning in September of 1990, there were - 5 there were 14,300 assaults on teachers and other 6 staff, and just last year there were 3,785 7 teachers and staff assaulted in connection with 8 their work in the public schools, and thumbing 9 through NEWSDAY on Long Island on Saturday, a 10 page 3 story of an assault on a school teacher 11 in the Amityville School District where the 12 teacher had to go to the emergency room. 13 ACTING PRESIDENT KUHL: Chair 14 recognizes Senator Paterson. 15 SENATOR PATERSON: Thank you, Mr. 16 President. 17 We really need to thank Senator 18 Levy for bringing this legislation forward. It 19 is alarming the increases of attacks on 20 teachers. 21 What I wanted to know, if Senator 22 Levy would yield for a question is, Senator 23 Levy, a "D" felony, where you have a possible 5717 1 seven-year term, I just wanted to know what 2 would be the benefit that is served by 3 designating a "D" felony to coordinate with 4 these types of crimes, and the reason that I ask 5 the question, just for some clarification, is 6 the fact that if the punishment is for a 7 retribution, then I can understand it. 8 We don't want teachers to be 9 harmed and we want people to know that, if they 10 harm teachers, that they are going to pay for 11 the suffering they cause these individuals, but 12 in terms of the deterrence aspect itself, aren't 13 many of these types of crimes in a situation 14 where the young people probably wouldn't even 15 know what the penalty actually is and at a point 16 they are going to continue in the anti-social 17 conduct that is prescribed by this kind of 18 behavior, we would probably wind up punishing 19 them again down the road. 20 I know we would hope that this 21 would teach them the lesson but I'm sure, 22 Senator Levy, you know and I know we may wind up 23 punishing them again. But in those instances 5718 1 where you have a first time offense and perhaps 2 an individual that doesn't -- that learns from 3 it, do we want to put a "D" felony on the backs 4 of people who are so young in this instance? 5 SENATOR LEVY: Senator Paterson, 6 the genesis of this bill is a provision of the 7 Penal Law that says that, if there is any type 8 of an assault on a police officer, it is a Class 9 D felony, and the intention of this bill is to 10 raise the teachers and other staff in our 11 schools to the level of a police officer. 12 Now, Senator, you and I know, 13 depending on the age, the age of the person that 14 is involved, many of these people would receive 15 youthful offender treatment. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson. 18 SENATOR PATERSON: I want to 19 thank Senator Levy for the answer and I just 20 would like to add that what I really do like 21 about the bill is that there are certain pillars 22 of our society, the police and I suppose 23 teachers and others, where the attack on them is 5719 1 more than just an attack on an individual. It's 2 really in some respects an attack on our 3 society, so I don't oppose the raising of the 4 penalty in specific cases where the -- the 5 teacher is one that serves society in a special 6 way, as do the police. 7 I would just like to point out 8 that Class E felony status that's associated 9 with the automatic assault on a police officer 10 kind of assumes that those who are committing 11 the assault know better, and whether we should 12 assume that the young people should know better, 13 they are younger, they are given at times to 14 more anti-social behavior, and I just would like 15 not to see them be saddled with that kind of a 16 penalty so early in their lives. 17 If Senator Levy is correct and 18 the youthful offender status is granted, I think 19 that would be the best way to resolve it. 20 ACTING PRESIDENT KUHL: Chair 21 recognizes Senator Mendez. 22 SENATOR MENDEZ: Mr. President, I 23 wonder if Senator Levy would yield for a couple 5720 1 of little questions? 2 SENATOR LEVY: Yes, certainly, 3 Senator. 4 ACTING PRESIDENT KUHL: Senator 5 yields. 6 SENATOR MENDEZ: You mention - 7 thank you. 8 Senator Levy, you mention that 9 you received a report today stating how the 10 incidence of attacks on teachers have 11 increased. Do you have any data to the effect 12 as to what has provoked those attacks, what has 13 been the provoking incident that has made that 14 student lose total control and engage in such a 15 terrible act as hitting a teacher or doing 16 whatever? 17 SENATOR LEVY: Violence in our 18 schools throughout our state. 19 SENATOR MENDEZ: Well, certainly 20 there must be, if that data comes, that data 21 could be just an indication of one incident 22 after another, or that data could be used to 23 really use rational ways of dealing with 5721 1 violence in schools, because if -- if all those 2 incidents that are reported are analyzed by 3 people in the behavioral fields, then we could 4 see the kinds of commonality among them and then 5 we could deal in a more structured, let's put 6 it, way or a more rational way with the violence 7 in schools. 8 What this bill-- will the Senator 9 yield for another question? 10 SENATOR LEVY: Yes, Senator. Let 11 me just further respond to your question. I'm 12 not suggesting with this legislation that this 13 is the only route to go to deter students who 14 would assault teachers. It's part of a 15 comprehensive legislative program that NYSUT, 16 among other people, have put together to deal 17 with this problem. 18 This is -- this route is but one 19 piece in trying to deter violence in our schools 20 and the simple type of assaults on teachers and 21 other personnel in the school system. 22 SENATOR MENDEZ: Will the Senator 23 yield? 5722 1 ACTING PRESIDENT KUHL: Senator, 2 do you yield? 3 SENATOR LEVY: Yes. 4 ACTING PRESIDENT KUHL: The 5 Senator yields. 6 SENATOR MENDEZ: Senator, I know 7 very well, and all of us here do know very well 8 that you keep on trying to find ways of dealing 9 with serious problems, and violence in the 10 schools is one such serious problem, as well as 11 drunken driving and everything else, so I, for 12 one, do not question your motivations at all 13 because you are -- you have proven -- you have a 14 proven track record. 15 Now, my question is, will this 16 bill apply to what age students? 17 SENATOR LEVY: Well, Senator, 18 this would apply to students over the age of 16 19 because under the age of 16, they would be 20 treated as juvenile delinquents, and this bill 21 that -- this bill that relates to the Penal Law 22 would not apply here. 23 SENATOR MENDEZ: Kids over 16 5723 1 years of age. Thank you, Senator Levy. 2 Last time that this bill was 3 presented before us, Mr. President, I didn't 4 support it. In the meantime, there has been a 5 series of articles that have come out studying 6 the question as to why we do have so many 7 violent youth and the increasing criminality 8 actually by very, very young adults. 9 It was mentioned that the very 10 first time that one youngster is -- goes into 11 the criminal justice system, that life is going 12 to be in a sense terminated forever, that person 13 will not have very few, very, very few will have 14 an opportunity to develop whatever talents they 15 have and become law-abiding citizens. 16 I think -- I was a teacher 17 myself, high school level, many, many years ago 18 and -- and I am sorry, if a child doesn't learn 19 in school, Mr. President, in my view the proof 20 of the pudding is what do you do in that 21 classroom to make sure that the knowledge is 22 transferred to the students. 23 I think that this bill is too 5724 1 severe, much too severe, much too determinative 2 of the future life of that young man or young 3 woman and, therefore, I think I can not possibly 4 support it. 5 Thank you. 6 ACTING PRESIDENT KUHL: The Chair 7 recognizes Senator DiCarlo. 8 SENATOR DiCARLO: Thank you, Mr. 9 President. 10 Last year I voted against this 11 bill, and I'm going to vote against the bill 12 this year, not because I don't believe in 13 increasing the penalties for assault. If this 14 had said we're going to increase the penalties 15 for all assaults against all citizens of this 16 state, I would gladly support it. I am for 17 increasing the penalties of assault, but not 18 when it eliminates a large portion of the state 19 of New York and the population who, in my 20 opinion, are deserving of our protection as much 21 as any other group and, for that reason, I'm 22 going to vote no, not because I'm against 23 increasing penalties, but philosophically I 5725 1 disagree with the impetus of this bill. 2 ACTING PRESIDENT KUHL: Secretary 3 will read the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect on the 1st day of 6 November. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll. ) 10 ACTING PRESIDENT KUHL: Announce 11 the results when tabulated. 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 381, Senators 14 Connor, DiCarlo, Mendez, Montgomery. Ayes 48, 15 nays 4. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 Secretary will continue to call 19 the controversial calendar. 20 THE SECRETARY: Calendar Number 21 431, by Senator Cook, Senate Print 565A, an act 22 to amend the Correction Law and Civil Practice 23 Law and Rules, in relation to the repayment by 5726 1 inmates of the cost of college education. 2 SENATOR ONORATO: Explanation. 3 ACTING PRESIDENT KUHL: Senator 4 Cook, an explanation has been asked for by 5 Senator Onorato. 6 SENATOR COOK: Well, let us be 7 clear that this bill does not deny college 8 education to prisoners. It does put them on the 9 same status as anyone else, says that if they 10 are going to receive a college education while 11 they are incarcerated, that they will be 12 responsible for paying the cost of that college 13 education to the state. 14 It doesn't seem to me that this 15 is any more unfair than it is for anyone else to 16 have to pay for their college education. It is 17 a reasonable bill and I think ought to be 18 passed. 19 ACTING PRESIDENT KUHL: Senator 20 Onorato. 21 SENATOR ONORATO: Mr. President. 22 Senator Cook, will you yield for a question? 23 ACTING PRESIDENT KUHL: Senator 5727 1 Cook, do you yield to a question? 2 SENATOR COOK: Certainly. 3 ACTING PRESIDENT KUHL: Senator 4 yields. 5 SENATOR ONORATO: Senator Cook, I 6 think I had some discussion about this bill last 7 year. I'm fully in support of the concept but 8 knowing full well what the difficulty that lies 9 ahead for any youngster even today that isn't a 10 prison inmate coming out of college, getting a 11 job today is very difficult. 12 I'd ask you if you would change 13 -- I don't know if you changed it or not in any 14 way, shape or form simply by amending the bill 15 to indicate that, if the individual coming out 16 of the prison getting their education, is gain 17 fully employed, that he must pay but if he's not 18 employed, what are we going to do about him? How 19 is he going to pay -- he or she going to pay for 20 their education? 21 SENATOR COOK: Senator, I guess 22 that they find themselves in the same situation 23 as anyone does that graduates from college and 5728 1 doesn't have a job, and there might be some 2 people in the sound of our voice here today who 3 are about to graduate from college and don't 4 have -- don't have jobs and who are going to 5 have to pay off college loans. I don't think 6 prisoners ought to be in a favored position or 7 in any better position than any other student. 8 ACTING PRESIDENT KUHL: Senator 9 Onorato. 10 SENATOR ONORATO: When you make 11 it as specific as this, is there an additional 12 penalty for those if they don't pay it? What is 13 the time frame that they have to make the 14 payments? 15 SENATOR COOK: Senator, there is 16 a ten-year repayment period. The -- the penalty 17 is the same penalty that exists for anyone else 18 on an unpaid bill and you've probably had some 19 experience, and I have to admit that that 20 penalty is almost non-existent because what 21 happens is, you have a -- a lien, a judgment 22 against the individual but at some point they 23 have to repay, but until such time as they try 5729 1 to borrow money or do something, that judgment 2 really doesn't click in. There is no penalty 3 per se on here except the penalty that exists at 4 any time that somebody doesn't pay a bill. 5 ACTING PRESIDENT KUHL: The Chair 6 recognizes Senator Abate. 7 SENATOR ABATE: Yes, on the bill. 8 ACTING PRESIDENT KUHL: Senator 9 Abate, on the bill. 10 SENATOR ABATE: While I agree 11 with Senator Cook, on its face this bill seems 12 absolutely fair and rational, I believe it will 13 produce negative results that will hurt all of 14 us and all of our communities. 15 There's an oft-stated phrase 16 called pennywise/pound foolish, cutting off our 17 nose to spite our face. I think this is what 18 this legislation does. I believe right now 19 there are, what is there, about 3,000 inmates 20 currently attending college, and there's this 21 argument and myth that if we take the grant 22 monies, and obviously we don't even know if 23 these grant monies will exist in the future, 5730 1 whether TAP will be available, but let's assume 2 they will be, let's say we say to all these 3 3,000 inmates, the awards will not be available 4 to you, will that mean more students in our 5 communities going to college and, according to 6 the existing rules and regulations, everyone 7 who's eligible for a TAP award will receive it? 8 It's just a question of how much. 9 So if we eliminate all 3,000 10 inmates attending college, because I believe 11 this is what this bill will virtually do, that 12 would mean we would put in every student's 13 pocket in the community an additional $24, and I 14 would suggest that would be a bad investment. 15 The better investment is to 16 create incentives within prisons so that inmates 17 become law-abiding citizens. They educate 18 themselves, they learn skills. They make up 19 their minds that there's another life that they 20 can lead that's positive so that when they leave 21 prison, they do not revictimize. There's not 22 another victim created, and that we have to pay 23 for additional expenses when they return to 5731 1 prison or jail. 2 So, one, if this bill goes 3 through, I believe many of the inmates will not 4 go to school because they know that they will 5 never have the capacity, at least not for a long 6 time, to pay off these loans, and many of the 7 students and, if you talk to the colleges, many 8 of the inmates who go to school are very serious 9 students, they want to do better for themselves. 10 That's why they've decided to not just do idle 11 time, but take advantage of their time in 12 prison. 13 So what we're doing is, by and 14 large, we're talking about an inmate population 15 that's indigent. They make a dollar a day. 16 They're already paying $150 surcharge; they're 17 paying a crime victims penalty surcharge. If 18 they're on work release they have to pay for 19 their room and board. They have to pay $25 20 towards their GED. 21 What I'm suggesting is we already 22 are taking much out of their commissary accounts 23 so it will be very unrealistic that they can 5732 1 work during their prison stay and be able to pay 2 off some of these loans. 3 Now, the question is, if fewer 4 people are going to school while they're 5 incarcerated, how will that benefit us as a 6 society? It certainly will not benefit the 7 Department of Corrections. They will tell you 8 over and over again, DOCS, that the more inmates 9 that are involved in school, the less violence. 10 These are the inmates that become peers and 11 positive role models to the other inmates. Many 12 of them are utilized as counselors, substance 13 abuse counselors, teachers. They reduce the 14 violence, they will reduce the injury to 15 correction officers. They provide a much better 16 climate within the correction system and they 17 reduce tension. Certainly this is not a benefit 18 to DOCS. 19 In terms of the benefit to 20 society, we want to do everything we can in a 21 prison situation so individuals leave, pay their 22 taxes, become productive citizens. If we do 23 that for them, we are doing it for ourselves. 5733 1 It makes common sense. It's economically bene 2 ficial and the stat's show that the recidivism 3 rate, the return to prison, is much less for 4 those individuals who have completed a college 5 education. 6 This small investment of allowing 7 these 3,000 inmates to go to school compared to 8 the cost of reincarcerating them, the cost to 9 the future victims far -- is far less than that 10 future cost. So again I say this bill is penny 11 wise/pound foolish. It's -- may not be a 12 popular position to take, but it's a position 13 that makes good sense in terms of public safety, 14 long-term public safety and long-term savings to 15 the Correction Department. It reduces tension 16 inside and will produce long-term public safety 17 in the long term. 18 We have to be a society that says 19 even though someone is incarcerated, we need to 20 do everything possible so that when they leave 21 prison and jail, they're productive and they do 22 not commit the next crime. That's part of our 23 or should be part of our criminal justice 5734 1 policy. 2 This is a step backward, and I 3 ask this body to reject this legislation. 4 ACTING PRESIDENT KUHL: The Chair 5 recognizes Senator Nozzolio. 6 SENATOR NOZZOLIO: Mr. President, 7 on the bill. 8 ACTING PRESIDENT KUHL: Senator 9 Nozzolio, on the bill. 10 SENATOR NOZZOLIO: Thank you, Mr. 11 President. 12 My colleagues, there are over $64 13 billion of expenditure that the state of New 14 York taxpayers fund, some of which we agree 15 with, some of which we may not agree with, but I 16 can dare say that the expenditure which this 17 bill ceases to or attempts to eliminate is, in 18 my opinion, free college tuition for prison 19 inmates, the most ridiculous expenditure that we 20 have of those 64-plus billion dollars of our 21 state taxpayers' money. 22 Senator Cook is to be applauded 23 for this effort. I believe that each of those 5735 1 young students sitting behind us in the chamber 2 today that attend college, that are here on 3 internships, should be asked how many of you 4 receive free college education, should ask you 5 how many of you are convicted felons, because if 6 you were a convicted felon, if you were sent to 7 prison, you would receive a free college 8 education at taxpayers' expense. Not free, a 9 college education at taxpayers' expense. 10 Each and every one of you, I 11 know, worked very hard to pay for your college 12 education, but right now being convicted of a 13 crime and sentenced to a prison term in New York 14 State is like being awarded a college 15 scholarship. Thousands of law-abiding young 16 citizens are prevented from attending college 17 each year for lack of money. Thousands more 18 must work, one, two, three jobs, to attend 19 college. Thousands more must see their parents 20 work long and hard so that their children can 21 attend college. Yet in this state we have 22 criminals going to college for free. 23 Just as the student who pays for 5736 1 college with a student loan must pay back that 2 student loan, this bill says that the inmates of 3 this state must pay the state back upon their 4 release from their prison college. What's worse 5 about this expenditure is that we see in this 6 state, those of you who claim this is a -- an 7 incidence of rehabilitation. 8 I need only to point out to you 9 that there are lifers in this state who are 10 getting two and three master's degrees at 11 taxpayers' expense. We have the most educated 12 lifers of any state in the Union, yet we are not 13 doing enough to ensure that those law-abiding, 14 God-fearing college students are able to attend 15 school at the least amount of cost. 16 How can we value -- how can we 17 establish values, and how can we justify to our 18 young people the value of obeying the law, 19 studying hard and paying for their education 20 when their peers in some cases making fistfuls 21 of money dealing drugs finally get caught and 22 are rewarded with a free college education? 23 The current practice is sending 5737 1 an entirely wrong message to the young people of 2 this state and, worse, it's establishing a 3 terrible message to the taxpayers of this state 4 who are working very hard to support services 5 that are needed. 6 We're not denying in this 7 legislation a college education to any prison 8 inmate. We're saying that those inmates must 9 share the responsibility that everyone in this 10 state has to share when they seek a higher 11 educational opportunity. They must pay for it. 12 We're only saying that the inmates must pay for 13 it. Every student of this state not in prison 14 has to pay for it. Let's level the playing 15 field and make those who have obeyed the law on 16 the same field as those who have not. 17 Mr. President, I applaud Senator 18 Cook in the establishment of this legislation. 19 It sends the right message. I believe it is the 20 right signal, and it must be adopted. 21 ACTING PRESIDENT KUHL: The Chair 22 recognizes Senator Oppenheimer. 23 SENATOR OPPENHEIMER: I'm -- I 5738 1 voted for this bill in the past and I will vote 2 for it again, but I -- I really question -- I 3 would like to ask a question of Senator Cook. 4 SENATOR COOK: Yes. 5 SENATOR OPPENHEIMER: Senator 6 Cook, I don't know if this is yesterday's 7 legislation or the year before or the year 8 before. All I know is that in my -- the 9 prisoners in my district, we do not have at the 10 present time college education courses being 11 provided. They have all been decimated. Is 12 that the situation, do you know, around the 13 state? 14 SENATOR COOK: Senator, I -- I am 15 not familiar. The statistics that I have 16 indicate that there are about 25 colleges 17 currently providing courses at various - 18 various prisons, and that may be stale 19 information, but that's the information I have. 20 SENATOR OPPENHEIMER: Thank you, 21 Senator. 22 I feel very badly about this 23 because we had some wonderful education courses 5739 1 going in Westchester in some of our prisons and 2 they have now been terminated. We have no 3 education, not even GED, going on now in our 4 prisons, and we do know and we have been able to 5 track that if a prisoner has -- sorry, if a 6 prisoner has a four-year college education, 7 they're X likely to return to prison, two years 8 this likely, GED this likely and, of course, 9 with higher education goes to say that the 10 likelihood of them coming back to prison is much 11 diminished, and we do have the statistics to 12 prove that. 13 I feel that the alternative to 14 this, and I support, if they have a job after 15 they get out of prison, of course, they should 16 pay part of the tuition cost, but to me 17 education is the only way to make a dent in the 18 hard, hard core prison population because 19 without this, the alternatives in my way of 20 thinking are merely building more prisons and 21 we've already tried that one. We did that for a 22 decade, and we increased our prison population 23 three times by a multiple of three from 20,000 5740 1 to 66,000; so building prisons didn't seem to 2 work, and I think without adequate recreation 3 and alternatives to just sitting in with your 4 friends and plotting, the alternative I think is 5 riots in the prison which, of course, is 6 something none of us want to see. 7 So I'm a great supporter of 8 education in the prison, and I also wanted to 9 mention that a previous speaker said something 10 about law-abiding and God-fearing prisoners or 11 non-prisoners. I think there are people who are 12 law-abiding who may not be God-fearing. I don't 13 feel that that reference is necessary nor is it 14 synonymous to have the two linked. 15 At any rate, I will support this 16 bill and, you know, hopefully, if the prisoner 17 has gotten sufficient education, they would be 18 able to find a job when they come out, though 19 that seems to be a major problem in our state 20 with an inadequate number of jobs and more 21 people seeking to -- to fill them. 22 I mentioned, I think, on the 23 floor earlier that we had an opening in 5741 1 Westchester County for just a six-month job at 2 our General Motors plant in North Tarrytown due 3 to a variety of reasons, and there were no 4 benefits offered, and the wage was below the 5 wages of the regular factory workers. It was 6 only minimum wage, and for these few hundred 7 jobs we had people lining up from 5:00 a.m. in 8 the morning and they totaled 5,500 people. 9 So I think we have to get to work 10 on providing more jobs and maybe this inmate, 11 when he comes out, will be able, with his 12 education to find one of those jobs. 13 I vote yes. 14 ACTING PRESIDENT KUHL: The Chair 15 recognizes Senator Larkin. 16 SENATOR LARKIN: Mr. President, 17 on the bill. 18 First of all, I'd like to join in 19 congratulating, commending Senator Cook for 20 doin' it, and I think we ought to read one part 21 of his support memorandum. It's very clear. 22 "Inmates should also receive no better 23 treatment than many students in our state who 5742 1 must pay for their education." 2 Those of us who are parents and 3 had children in college spent a lot of money to 4 see that our children received a great educa 5 tion be it in the private or public institu 6 tions. Now, maybe if we look around the halls 7 here and the side here and think about people in 8 our offices, some of our people that work for us 9 whether they're interns or now part of our 10 staff, owe 60-, 70-, $80,000. No one's wiping 11 out those loans. 12 This bill does not say we will 13 deny anyone an education. It just says in plain 14 English, we're all going to play off the same 15 ball field. I have three prisons adjacent to my 16 district and at one time in the Assembly I had 17 five prisons. The biggest complaint I had then 18 and now is the free benefits that the inmates 19 receive. 20 I've heard some people here say 21 that by going to school they won't be 22 rambunctious and we give them exercise and we 23 don't do this. What do we tell a student who is 5743 1 going to college and says, "I can't go back to 2 my junior year because I owe too much money? I 3 have to start paying it. I don't have money for 4 this and I don't have money for that. My 5 parents can't afford it." Well, what you got to 6 say is, "Heck, let's go out and rob a store. 7 We'll go to prison. We'll get the next two 8 years free." 9 Sounds childish, but that's 10 exactly the message we're sending. This is very 11 serious, and I -- for those who are going to 12 vote no and in the other house the same way, 13 it's plain unadulterated garbage. This program 14 denies no one of a college education. This 15 program says you want an education, we're going 16 to provide the access to you, but you are going 17 to have to reimburse the state just like someone 18 who borrows money from a bank to meet their 19 educational requirements is required to pay it 20 back. 21 So I think we ought to stop 22 espousing liberal philosophies about take the 23 inmates here and take the inmates there. Maybe 5744 1 what we ought to do is to tell the people that 2 are paying the freight around here that we 3 support you as taxpayers and that what we want 4 to do is to see everybody have an opportunity 5 for an education and an opportunity for a job, 6 but when I see hard working parents working two 7 jobs to help pay the educational costs of their 8 children and then I hear people on the floor 9 saying, Oh, we should be doing this for the 10 inmates, ladies and gentlemen, maybe we ought to 11 do something for the taxpayers. 12 I commend you, Senator Cook. I 13 only wish we could get enough people to take 14 this on. 15 ACTING PRESIDENT KUHL: The Chair 16 recognizes Senator Stavisky. 17 SENATOR STAVISKY: You talk about 18 garbage. Let me tell you some of the garbage 19 that I've heard just in a few minutes in this 20 chamber. 21 What will you say to your 22 constituents when the tuition at the SUNY 23 institutions rises perhaps $1,000 a year or 5745 1 $1500 a year? I am not directing it to anyone. 2 I am just raising this as a question for all of 3 us to consider. 4 By the action we take here, the 5 Legislature may be triggering an increase in the 6 cost of tuition for our constituents to the tune 7 of $1,000 or $1500 a year. By the action we 8 take here in reducing the state's contribution 9 to the cost of higher education, we will throw 10 additional burdens upon the shoulders and the 11 backs of the students and their families; and 12 what do we say to that when a budget comes out 13 that proposes that kind of increase in tuition 14 in the public higher educational institutions? 15 What do we say to our constituents whose young 16 people and older people attend independent 17 colleges where TAP funding may be curtailed? 18 What do we say then? 19 And what do we say on the very 20 issue we're talking about now? What do we say 21 about the cost to the taxpayers for incarcera 22 tion in prison? 23 I am a believer that someone who 5746 1 has committed a crime should go to jail, should 2 be tried and convicted, if guilty. I am not in 3 favor of letting them loose, but each time some 4 one goes to a state correctional institution, 5 you know what the cost is to your taxpayers and 6 mine? $25,000 a year, sometimes $30,000 a year, 7 just to keep them in a state correctional 8 facility, and that is a very great burden on our 9 constituents, the taxpayers. 10 There have been studies 11 undertaken of the consequences of educating 12 someone who has done the wrong thing to society, 13 someone who has committed a crime and has been 14 incarcerated. Those people who have not 15 received higher educational benefits are likely 16 to return, according to this study taken by the 17 Department of Correctional Services of the state 18 of New York, and I'll share it with you. 19 46 -- 44.6 percent of those who 20 did not improve their educational qualifications 21 will return to prison according to the official 22 records of the Department of Correctional 23 Services. That's a hit to your taxpayers and 5747 1 your constituents of 25- to $30,000 a year, and 2 what are you going to say on that issue? 3 The rate of recidivism or return 4 based upon those who are given the opportunity 5 for an education, including a college education, 6 is significantly lower, nearly half below the 7 cost and below the percentage of recidivism of 8 those who were given a chance. 9 Our economy is miserable. With 10 your governor or the previous governor, it 11 hasn't made much difference. There are no jobs 12 to speak of for the untrained. There are 13 private corporations that are letting people 14 go. Haven't we noticed the state of New York 15 and all levels of government are also reducing 16 the work force? And if law-abiding people 17 cannot get jobs in the private or the public 18 sector, where will someone untrained, unskilled 19 be put to work and have an opportunity in the 20 public or private sector? There isn't a great 21 demand for people when they're released from 22 prison to find employment making license 23 plates. That's not a high demand type of 5748 1 occupation. 2 So here we have a choice. They 3 commit a crime, they go to prison, and they 4 learn nothing except how to be more effective 5 prisoners and more effective criminals in the 6 future. They learn -- and it's our decision as 7 to what they learn, an advanced course on how to 8 be a better criminal or an opportunity to turn 9 them around and make them law-abiding, perhaps 10 productive members in society; and there's a 11 fiscal price tag, and we don't save any money 12 when we don't make this opportunity available. 13 It only costs us more and more as more and more 14 inmates upon their release come back the next 15 year, or even sooner, to be treated in prison at 16 our expense. There is no higher educational 17 opportunity that will cost 26- or $30,000 a 18 year, none that I know of, unless they're going 19 for an advanced program in medicine. 20 So where are we saving money and 21 where are we wasting money? For those who speak 22 in favor of this bill are decently motivated, 23 but in speaking in favor and voting in favor of 5749 1 this bill, may we, in fact, be wasting the 2 taxpayers' money, and I suggest to you, consider 3 the benefits to society. If we turn around some 4 of these people from a life of crime, we'll be 5 sparing our constituents from becoming victims 6 of criminals who continue to prey on them, and 7 we will be saving money on the cost of 8 investigation, arrest, prosecution and 9 incarceration. All of these costs will be saved 10 if we prevent someone from returning to a life 11 of crime. 12 Those who are espousing this bill 13 should be rising in opposition to this concept, 14 because truly, it's self-defeating; and if you 15 look at that cost/benefit, you look in terms of 16 the consequences, you should, in the interest of 17 your constituents, be opposed to this type of 18 legislation. 19 ACTING PRESIDENT KUHL: The Chair 20 recognizes Senator Waldon. 21 SENATOR WALDON: I saw Senator 22 Cook raise his hand. Was it for a purpose? 23 SENATOR COOK: Mr. President, I 5750 1 will be recognized at some point, but go ahead. 2 SENATOR WALDON: Thank you very 3 much, Mr. President. 4 ACTING PRESIDENT KUHL: The Chair 5 recognizes Senator Waldon. 6 SENATOR WALDON: I have some 7 notes in front of me, my colleagues, which state 8 that New York spends in excess of $4.5 million 9 per day to incarcerate its prison population 10 now, round figure of 68,000 people. 11 The cost to educate all of those 12 people who are in prison on an annualized basis 13 if this information that I have is accurate 14 would be about $4.5 million. So for one day of 15 the cost of incarceration, we can allow those 16 who desire to be educated with the state paying; 17 and we're in a very difficult fiscal situation, 18 but if we can afford to give $4 million to AASCO 19 -- and I don't know if I'm pronouncing it 20 correctly, the salt mine in western New York - 21 to build a rail spur when it is, as I'm told, 22 the largest rock salt mine on earth -- if we can 23 give $440 million to, I believe it was GE - 5751 1 they had a $4 billion profit last year -- if we 2 can give a $950 million surcharge -- business 3 surcharge relief to the business sector, if we 4 can give a personal income tax reduction of $720 5 million, 60 percent of that benefits five 6 percent of the people of this state, then we can 7 give this paltry sum of $4.5 million so that 8 prisoners can be educated so that ladies like 9 the one in Brooklyn, 80 years of age, beaten to 10 death with her own cane, may not occur; so that 11 multiple murders may not occur when someone has 12 no skills, they have been raped -- if you saw 13 the Shawshank Redemption, that is very 14 indicative of what happens in prison -- when 15 they are made to be worse than they are when 16 they arrive, when they leave without any 17 redemptive process occurring in prison, if you 18 take away the education. 19 There's a mind-set now, I'm told 20 which says, "We're not going to allow them to 21 pump iron. We're not going to allow them to 22 have any recreation. We're not going to allow 23 them to have any television. We're going to cut 5752 1 down on conjugal visits. We're going to make 2 prison the worst experience humanly possible." 3 What happens with that situation for those of us 4 who have been in law enforcement and who have 5 gone into the prisons and who have interviewed 6 the prisoners is that they become more violent, 7 more vicious, more angry, more vindictive when 8 they're released. It doesn't work stacking them 9 like cord wood, giving them no sense of help. 10 This educational program is one 11 which has hope, meaning that someone -- and I've 12 made some of these guys -- Elijah Ingram is an 13 example -- who have gone to prison, who have 14 gone through their GED process, their higher 15 education process all the way to a Master's 16 degree and some have even gotten points towards 17 their Ph.D. who I have met personally. I think 18 it's a mistake. I think we're being pennywise 19 and pound foolish if we decimate this 20 opportunity, deny people a chance to have an 21 education without cost. It just doesn't make 22 any kind of sense to me, and when we think of 23 what we're doing to the educational system with 5753 1 all of these giveaways to the business sector, 2 we're forcing middle class families to have to 3 work two jobs because the cost of education is 4 being driven up by our actions. 5 There is no one here who is 6 sacrosanct. None of us are sacred cows, and I 7 think that it is wrong to punish these people, 8 these people who may turn out to be a decent 9 citizen if given the chance for rehabilitation 10 while inside, and I would hope that somewhere in 11 our mind's eye, somewhere in our heart of 12 hearts, we can recognize the positive value of 13 an education. 14 Everyone here is educated and had 15 you not been educated, I don't know if you would 16 be the same person you are today. I encourage 17 us to give the opportunity to prisoners to be a 18 better person than they are, to change the 19 actions which took them into the criminal 20 justice cycle and have caused them to create all 21 kinds of pain and suffering for people around 22 this state, many of them in the district I 23 serve. 5754 1 Thank you, Mr. President. 2 ACTING PRESIDENT KUHL: The Chair 3 recognizes Senator Montgomery. 4 SENATOR MONTGOMERY: Yes. Thank 5 you, Mr. President. 6 Would the sponsor yield for a 7 question? 8 ACTING PRESIDENT KUHL: Senator 9 Cook, do you yield to Senator Montgomery? 10 SENATOR COOK: Yes. 11 ACTING PRESIDENT KUHL: The 12 Senator yields. 13 SENATOR MONTGOMERY: Thank you. 14 Senator Cook, this legis... could 15 I just ask you how many prisons are in your 16 district and - 17 SENATOR COOK: How many prisoners 18 involved? 19 SENATOR MONTGOMERY: Yes, in your 20 own - 21 SENATOR COOK: Statistics, I 22 have, Senator, are about 3400. 23 SENATOR MONTGOMERY: 3400 in your 5755 1 district? 2 SENATOR COOK: Yes. 3 SENATOR MONTGOMERY: 3400 -- you 4 have 3400 prisoners in your district? 5 SENATOR COOK: Oh, I'm sorry. 6 No, I apologize. Don't -- 3400 statewide 7 involved in the programs. 8 SENATOR MONTGOMERY: All right. 9 How many -- which prisons are in your own 10 district? 11 SENATOR COOK: Well, I have nine 12 prisons - 13 SENATOR MONTGOMERY: You have 14 nine prisons. 15 SENATOR COOK: -- altogether. 16 SENATOR MONTGOMERY: Are any of 17 those the so-called secure ones; is that how you 18 say it? 19 SENATOR COOK: Yes. 20 SENATOR MONTGOMERY: You have 21 several secure facilities? 22 (Senator Cook nods head.) 23 SENATOR MONTGOMERY: Isn't it a 5756 1 fact that the programs we're talking about, the 2 prisoners that we're talking about are more 3 likely to be long term? 4 SENATOR COOK: Probably. They 5 have to take the program within ten years of 6 release, so they quite have to be long-term 7 prisoners. 8 SENATOR MONTGOMERY: So they 9 would be considered relatively long term? 10 (Senator Cook nods head.) 11 SENATOR MONTGOMERY: Now, one of 12 the reasons I ask, Senator, is that -- Mr. 13 President, if the Senator will continue to 14 yield. 15 ACTING PRESIDENT KUHL: Senator 16 Cook, do you continue to yield? The Senator 17 continues to yield. 18 SENATOR MONTGOMERY: I have a 19 number of requests from people -- from inmates 20 to transfer from the non-secure facilities to 21 the secure ones because -- simply because they 22 want to have access for programs to advance 23 themselves. So I'm just wondering, is there a 5757 1 disproportionate number of the secure facilities 2 in your own district? 3 SENATOR COOK: Well, I have a - 4 I have a more than average number of prisons in 5 my district, Senator. 6 SENATOR MONTGOMERY: Okay. 7 Senator, if you would continue to yield. What 8 would be the difference in the cost that an 9 inmate would have to repay versus the cost to a 10 student who -- as was referred to prior in 11 another Senator's debate, a regular student who 12 would have to pay back, a non-inmate student? 13 SENATOR COOK: Well, Senator, the 14 calculation of this would depend upon the 15 individual student, but there would be some 16 areas in which it would be more and some areas 17 in which it would be less. 18 For example, a TAP award that 19 would be reimbursable for the prisoner, is not 20 reimbursable for other people because it's money 21 that's provided. On the other hand, the 22 prisoner is receiving free room and board which 23 the other student is paying for, so that the 5758 1 room and board, I assume, would be more than the 2 TAP award would be so, therefore, the prisoner 3 actually is getting a greater benefit even 4 though that prisoner would be responsible for 5 repaying a TAP award. 6 SENATOR MONTGOMERY: So just this 7 straight-out -- if you'll continue to yield, Mr. 8 President. 9 ACTING PRESIDENT KUHL: Senator 10 Cook, do you continue to yield? The Senator 11 continues to yield. 12 SENATOR MONTGOMERY: This 13 straight-out tuition, comparing what one person 14 pays versus what another person pays, one being 15 an inmate, one being not an inmate, but they're 16 both receiving TAP awards, the inmate pays back, 17 even though it's a TAP award, the other person 18 does not pay back that part which is strictly 19 part of the TAP award? 20 SENATOR COOK: That's correct, 21 but remembering that the inmate is also not 22 paying for his room and board which is a larger 23 -- if they're in a public institution, is a 5759 1 larger amount of money than the tuition. 2 SENATOR MONTGOMERY: Okay. Thank 3 you. 4 One last question, Senator. In 5 terms of the colleges that participate in the 6 program for the -- for the prisoners, are any of 7 those also in your own district? 8 SENATOR COOK: I assume there 9 are, Senator, yes. 10 SENATOR MONTGOMERY: Okay. All 11 right. 12 Thank you, Senator Cook. 13 On many, many issues, I certainly 14 agree with Senator Cook. I think that, were he 15 a Democrat, we would probably agree on most 16 things, but this is one of his strictly 17 Republican mistakes, and it's a mistake, I 18 think, because this really -- you know, it, as 19 Senator Abate says, goes backward, in a way 20 that, I think, does not save us money, and it 21 sends out a message that we do not, in fact, 22 want to rehabilitate people or, in fact, 23 habilitate them if they need that in our prison 5760 1 system to any extent, no one, and even though 2 that may not be the ultimate result, that 3 certainly is the message, I believe, that we 4 send, and we just passed a law which is 5 targeted, I believe -- Senator Levy's law - 6 targeted to youthful offenders because it says 7 if you assault a teacher, you -- you can receive 8 an arrest as a felony, and we passed legislation 9 a few weeks ago to increase the crime of assault 10 against a police officer to a felony, and I 11 believe we're going to see legislation which 12 reduces or raises -- I guess you would say the 13 juvenile offense lowers it to the age of 13. 14 That is one proposal that I have 15 seen, and so we passed legislation to widen the 16 net that catches particularly certain young 17 males in there, and we reduce all -- all 18 supports for them on the preventive end, and 19 Senator Cook is now saying we also want to 20 eliminate the habilitative end once people are 21 in the judicial system for a long period of 22 time. 23 So there's a message here, 5761 1 Senator Cook, that I keep receiving from that 2 side of the aisle, especially around this issue, 3 and I must say it's very troubling. It 4 certainly does not fall on idle ears. I pay a 5 lot of attention to it, and I just see this as 6 one more statement along those lines and it's 7 very, very troubled -- troubling. 8 I vote no, but I certainly think 9 that we need to rethink a lot of what we're 10 doing as it relates to the criminal justice 11 system, how it's targeted, who it's targeted 12 for, what it's targeted to do and ultimately the 13 outcome. Besides the fact that it costs so much 14 money, we're also not serving the purpose that 15 we would hope or that we say we want, and that 16 is to reduce crime. 17 So, Senator Cook, I disagree with 18 you. I think this is a bad bill and I will vote 19 no again this year and I hope that many more of 20 my colleagues will also join me in voting no. 21 Thank you, Mr. President. 22 ACTING PRESIDENT KUHL: The Chair 23 recognizes Senator Abate. 5762 1 SENATOR ABATE: Yes. On the 2 bill. I want to rise - 3 ACTING PRESIDENT KUHL: Senator 4 Abate on the bill. 5 SENATOR ABATE: -- just to 6 respond to some of the information I've heard 7 today. 8 It's suggested by some people 9 that if you oppose the bill that one does not 10 feel an inmate has to pay their debt to society, 11 and clearly, that's not the case. Whether an 12 individual repays the cost of their education is 13 not necessarily paying one's debt to society. 14 An inmate pays their debt to society when they 15 pay restitution, have to provide community 16 service, are removed from society, the fact that 17 they lose their freedom. 18 I've heard today that students 19 have a better -- inmates have a better deal than 20 students. I believe an inmate pays their debt 21 to society when they don't have access to their 22 family; they have to leave their communities and 23 have to potentially spend years in jail. That 5763 1 is one way of repaying their debt to society. 2 Also, when they're in prison, 3 they have to work. They're told what to do, 4 where to go, how to behave, and if they don't, 5 they spend longer times in jail. So there are 6 many ways for an inmate to pay their debt to 7 society. 8 I also heard today about the 9 wrong message we give to students. By creating 10 disincentives to inmates, we're giving them the 11 wrong message. We tell them -- particularly our 12 young inmates, we tell them power is not guns. 13 We tell them power is not dope, and what we do 14 tell them is power is their ability to make 15 choices and how they use their minds. 16 How are we going to give them the 17 instruments to better use their minds when we 18 say to them, "Well, we're going to make it a lot 19 harder for you to get an education and you're 20 going to -- even though you only make a dollar a 21 day, you're going to have to pay for this 22 education for years to come and there will be 23 penalties attached by giving you free education 5764 1 today." 2 I say that's the wrong message to 3 give to inmates. It's counterproductive. We 4 want to create every opportunity we can to 5 change the minds of people that are misdirected 6 to make them into a positive force in our 7 communities. 8 And the last thing I want to 9 address, it was suggested today, if you're 10 opposed to this bill, you care more about 11 inmates than you care about students, and I 12 would suggest if you oppose this bill because 13 you care more about the civilians and the 14 uniform staff that work in prisons than you care 15 about law-abiding citizens, I want to say to one 16 of my constituents who I meet a year from now 17 who's been victimized by someone who gets out of 18 prison and they ask me, "Did you do everything 19 you could in prison to prevent that person from 20 assaulting me or robbing me or burglarizing my 21 home", we should be in a position to say, "Yes. 22 We did everything in prison to turn this 23 individual around." 5765 1 So voting against this bill is 2 about saving dollars and saving lives. 3 ACTING PRESIDENT KUHL: The Chair 4 recognizes Senator Dollinger. 5 SENATOR DOLLINGER: Thank you, 6 Mr. President. 7 Will Senator Cook yield to a 8 couple of quick questions? 9 ACTING PRESIDENT KUHL: Senator 10 Cook, do you yield? 11 SENATOR COOK: Yes. 12 ACTING PRESIDENT KUHL: The 13 Senator yields. 14 SENATOR DOLLINGER: Through you, 15 Mr. President. Is it my understanding that the 16 intent of this bill is to treat inmates the same 17 way we would treat a normal college student in 18 the state of New York? 19 SENATOR COOK: In general terms, 20 Senator, that's the point. The point is that if 21 somebody is receiving a benefit such as a 22 prisoner receiving a college degree, that that 23 prisoner is going to pay for the college degree 5766 1 in the same manner that other students pay for 2 their college education, and it may be that the 3 computation is slightly different, but in all 4 candor, it's probably still going to cost the 5 inmate a heck of a lot less than it does anybody 6 else. 7 SENATOR DOLLINGER: Through you, 8 Mr. President. Could I call your attention to 9 Section B (3) of the bill, lines 26 through 28, 10 in which the bill says, "Any funds expended by 11 the department or any other state agency or any 12 public benefit corporation for tuition on behalf 13 of the inmate shall be deemed a loan to the 14 inmate." My question to you, Senator, we don't 15 finance higher education in this state that way, 16 do we? 17 SENATOR COOK: Senator, I think 18 that the point that I made earlier relative to 19 the computation of this is the answer to your 20 question. No, we don't calculate a TAP award to 21 students as a loan, but that student who is 22 receiving a TAP award is paying tuition, room 23 and board and all the other expenses of going to 5767 1 college, whereas this inmate is getting room and 2 board free. So there is a quid pro quo there 3 that is different, but it is still a -- in rough 4 equity to the same thing. 5 SENATOR DOLLINGER: Through you, 6 Mr. President. In fact, tuition only makes up, 7 I believe, less than 50 percent, in fact, in 8 some cases in some of our state institutions, of 9 the tuition cost. Forget room and board. I 10 think my understanding is that that generally 11 pays for itself, but the tuition cost that a 12 student pays in our institutions of higher 13 education is -- my understanding is less than a 14 third of the real per pupil cost; yet we don't 15 charge the students that go -- like the junior 16 in college who lives next door to him -- to me, 17 we don't charge them 8-, 9-, $10,000, which is 18 the per pupil education cost. We don't charge 19 him that. We charge him $2650. 20 So under your proposal, if we did 21 what this section provides, we would jump the 22 tuition in this state for that student by 5- or 23 $6,000 so that we make sure that he's paying the 5768 1 full per pupil cost, which is what you want to 2 do to inmates, isn't that correct? 3 SENATOR COOK: Senator, I think 4 you've -- I think somewhere you threw a switch 5 and went off the track, because you're really 6 not -- there are a lot of students who are 7 getting TAP awards which are based on their 8 income, and they're having to pay all of the 9 rest of their costs, whatever those costs may be 10 out of their pocket, whether it be tuition 11 costs, room and board, books, whatever; they're 12 paying for them out of their pocket. 13 Now, we're not -- all we're 14 saying in this bill is that the point -- to the 15 extent that the TAP awards and other kinds of 16 awards that the state is making to the prisoner, 17 that that is reimbursable but, Senator, the 18 person paying -- who is going -- the typical 19 college student is paying a heck of a lot more 20 on the bottom line after whatever TAP award they 21 receive than this college inmate will ever pay. 22 The college inmate is getting an extremely good 23 deal under this bill. 5769 1 SENATOR DOLLINGER: Through you, 2 Mr. President. 3 ACTING PRESIDENT KUHL: Senator 4 Cook, do you continue to yield? 5 SENATOR COOK: Yes. 6 ACTING PRESIDENT KUHL: The 7 Senator continues to yield. 8 SENATOR DOLLINGER: The way this 9 bill is drafted, what it says is that someone in 10 prison who takes a college course, the total 11 cost of that course paid by the department or 12 any public benefit corporation, is chargeable to 13 the inmate as a loan. If the total cost of the 14 course provided per student is $3,000, the 15 inmate then has to pay back $3,000, and I'll 16 agree with you that this bill leaves the 17 leverage to the Department of Correctional 18 Services to determine how you calculate that. I 19 think that's a prudent move. 20 My question is, in the current 21 state system, the per pupil cost of educating a 22 college student, my recollection is - 23 certainly, Senator Cook or Senator LaValle, 5770 1 Senator Stavisky would know better -- but my 2 understanding is the real per pupil cost is 3 somewhere between 8- and $10,000, of which the 4 total tuition that is financed by the student is 5 $2650. The other 6- or $8,000 is paid for by 6 you, by me, by the tax system, but we don't 7 charge that student -- we don't force them to 8 pay back 8- to $10,000. We only force them to 9 pay back the amount necessary to borrow to pay 10 his tuition for. 11 SENATOR COOK: Mr. President. 12 ACTING PRESIDENT KUHL: Senator 13 Cook. 14 SENATOR COOK: Senator, that is 15 precisely the point. The student pays that 16 amount out of their own pocket. That's exactly 17 the point that I'm trying to make. You're 18 talking as if somehow the state was paying the 19 room and board for all of these kids. It 20 doesn't. It makes a -- usually a TAP award and 21 maybe there's some kind of other financial aid 22 available, but these general costs are being 23 paid by the students and their families. 5771 1 SENATOR DOLLINGER: Through you, 2 Mr. President. I apologize, Senator Cook, but I 3 don't believe you understand the point of my 4 question. The tuition cost, the per pupil 5 tuition cost is $2650 in the state system. Put 6 room and board aside, all right? We could talk 7 about room and board, but the cost to educate 8 the child -- the college student is somewhere 9 between 8- and $9,000, $10,000 for the education 10 component, just for the instruction in the 11 classroom. 12 If this bill were law in the 13 state of New York, the tuition for everybody in 14 the institution, which means whatever we spend 15 in our college system, we have to give back in 16 the form of tuition, this means the tuition for 17 a student would jump from $2650 to 8- or $9,000, 18 because this bill says that the inmate has to 19 pay the total cost of his education, and what we 20 have in this state is we have a state in which 21 our higher education is largely subsidized by 22 the taxpayers, and the tuition is only a small 23 portion of the total education cost. 5772 1 My question to you is, if your 2 goal is to treat inmates the same way that you 3 treat every other college student, why shouldn't 4 this bill provide that we'll charge tuition and 5 that the taxpayer will underwrite two-thirds of 6 the cost as we do for every other student in 7 this state? 8 SENATOR COOK: Mr. President, 9 Senator, I listen to you a great deal and most 10 of the time you make awfully good sense, but I 11 can't for the life of me figure out what you're 12 talking about. 13 SENATOR DOLLINGER: What I'm 14 talking about is this: Senator, I appreciate 15 that. This is a complicated issue. 16 SENATOR COOK: You're telling me 17 that because a student doesn't pay tuition, that 18 if we're going to count -- if we're going to 19 make the inmate repay the prison, they ought to 20 pay for their room and board and that, because 21 we make the prisoners pay room and board, we 22 ought to charge the student -- other students in 23 the university for their room and board as a 5773 1 part of their tuition? That's all I'm hearing 2 you say. It doesn't make any sense to me. 3 ACTING PRESIDENT KUHL: Senator 4 Dollinger, would you like to explain that to 5 Senator Cook? 6 SENATOR DOLLINGER: I will, 7 Senator. 8 Set aside the room and board part 9 of the equation. The cost of educating the 10 student absent room and board is somewhere 11 between 8- and $10,000 per student. In this 12 state, we do not require that students in our 13 public universities pay the entire education 14 cost, correct? 15 SENATOR COOK: I'm sorry, 16 Senator, you'll have to repeat that sentence 17 again. 18 SENATOR DOLLINGER: Put room and 19 board aside. The cost is the cost of 20 instruction. My understanding -- and if I'm 21 incorrect on this, please, someone, correct me 22 -- the cost of instruction for a student in the 23 State University system per pupil is somewhere 5774 1 between 8- and $10,000. Whether they're 2 boarding there or not, that's the cost. You 3 take the total cost of the facilities, you 4 divide it by the number of students and that's 5 the per pupil cost, correct? 6 SENATOR COOK: You're saying that 7 the costs of running the college divided by the 8 number of students at some theoretical num... 9 okay. 10 SENATOR DOLLINGER: Right. It's 11 the education cost. It's not room and board. 12 It's just the education cost. Under our current 13 system, the tuition is $2650. So if it costs 14 $8,000 to send a student to college, the student 15 actually pays less than a third of the total 16 cost, correct, under our current system? The 17 boy who lives -- the boy or young man who lives 18 next door to me pays about a third of the total 19 cost, correct? 20 (Senator Cook nods head.) 21 SENATOR DOLLINGER: The other 22 two-thirds of the education cost is borne by his 23 parents, by me, by you and by everybody in this 5775 1 room as the taxpayer contribution to support the 2 public university system, correct? 3 SENATOR COOK: Up to that point. 4 SENATOR DOLLINGER: If that's the 5 case, under your bill, the inmate is required to 6 pay the -- his proportionate share of the entire 7 cost of educating him, so he's actually got to 8 pay at a rate of 100 percent of the cost of 9 education, whereas the students in our 10 universities only pay about a third of the cost, 11 isn't that correct? 12 SENATOR COOK: No, Senator, it's 13 not, because there's no one who contends that 14 someone attending SUNY, for example, that their 15 personal cost is $10,000. Their personal cost 16 is the total of their room and board, their 17 tuition, et cetera, et cetera, et cetera. 18 Senator -- I'm sorry -- we're 19 saying that if the inmate enrolls in a course 20 and there is a course cost that is the charge 21 that's traditionally made, that they are 22 responsible for repaying that charge, but it's 23 the same thing that anybody else does who 5776 1 enrolls in a college. It's not -- there's 2 nothing mysterious about that. No, we're not 3 trying to go back and count how much of the 4 endowment funds is -- what proportionate amount 5 is used to pay the professors. 6 I mean, if you really want to get 7 ridiculous about it, I guess you would have to 8 go in and find out how much each professor got 9 paid and slice it down as to how many hours that 10 professor spent with that student relative to 11 the whole university. 12 Well, of course, we don't do that 13 kind of thing. We're talking about using some 14 common sense and saying, "If you enroll in a 15 course, the tuition for that course is $1200, 16 that's what you owe." That's -- it's as simple 17 as that. 18 SENATOR DOLLINGER: Mr. 19 President. 20 ACTING PRESIDENT KUHL: Senator 21 Dollinger. 22 SENATOR DOLLINGER: On the bill, 23 Mr. President. 5777 1 ACTING PRESIDENT KUHL: Senator 2 Dollinger on the bill. 3 SENATOR DOLLINGER: If the sole 4 purpose of this was to reduce the availability 5 of TAP awards, I might look at it from a 6 different point of view, but what I see this 7 bill saying is that you're going to pay - 8 charge to the inmate the entire cost of a 9 program which, if he were enrolled in a state 10 university, he would only pay about a third of 11 the total cost, because that's all we charge 12 collecting tuition for the per pupil cost for 13 our students. 14 I voted against this bill in the 15 past. Senator Waldon and everybody else has 16 talked about what this bill means to the 17 rehabilitation of inmates. I saw this bill 18 paraded across the television screen in ads 19 against me because I voted against this bill. 20 I'll probably see it again, but I think if we're 21 really looking at the benefit of taking inmates 22 and providing them with more skills to get out 23 in the work force and have some means of 5778 1 subsistence, bare survival, providing them with 2 a college education in prison is not a bad 3 idea. 4 ACTING PRESIDENT KUHL: Senator 5 Cook, "some time" has arrived. You indicated 6 you wanted to speak on the bill some time. 7 SENATOR COOK: Yes. 8 ACTING PRESIDENT KUHL: You're 9 the last speaker, so if you would like to speak 10 to close debate. 11 SENATOR COOK: I will recognize 12 everybody's patience, Mr. President. 13 I'm going to break a couple of 14 rules, the first one being quit while you're 15 ahead and the second one being don't address 16 irrelevant issues, but I'm going to do that 17 because everybody is talking about what will 18 happen if we take away college educations. 19 That's not the subject of this bill. 20 The subject of this bill is the 21 cost of repaying that student -- that inmates 22 should repay the cost of that education which 23 they received. So, indeed, the bill assumes 5779 1 that they are going to receive the education, 2 otherwise the bill wouldn't exist. 3 But I think that we ought to 4 examine -- and Senator Stavisky apparently has 5 the same piece of paper I do or something very 6 like that, but I thought there was something 7 very interesting in the statistics, Senator, and 8 as a professor, you would appreciate the use of 9 these statistics because on the face it sounds 10 as if these college educations are doing 11 wonderful things for society because 44 percent 12 of the people who were released from prisons who 13 do not have college degrees are rearrested and 14 go back to prison. Only 26 percent of those who 15 do have college degrees go back to prison. So 16 it sounds like it it's a wonderful thing, except 17 that you considered two or three factors. 18 First, you've got the most 19 motivated group of prisoners who are undoubtedly 20 the ones who are going to enroll in this system, 21 and I would suspect that given any kind of group 22 of people in our society, if you took the most 23 motivated, they would be the people who would 5780 1 succeed at least to the degree of two to one 2 compared with anyone else. 3 But then there's another factor 4 that this doesn't take into consideration, and 5 that is how many times have these people been 6 back in prison? In other words, the rate, as I 7 understand it, of people returning to prison is 8 how many times has a person who completes a 9 sentence gone back to prison? Well, let's 10 assume somebody is arrested three times and they 11 go back to prison, they're counted three times 12 in the statistics because they have been 13 resentenced three times. So now you've got one 14 group over here and you count them three times 15 and they end up with 44 percent. You've got 16 another group over here who presumably only got 17 one college degree and they're only counted 18 once, and yet that group is only twice -- is 19 only half the size of the other one. 20 Statistically, Mr. President, 21 that leads me to the suspicion that you may, 22 indeed -- and I don't know that this is the case 23 -- but there may, indeed, be more people with 5781 1 college degrees that end up going back to prison 2 than there are people who don't have college 3 degrees, if you really got down to an actual 4 statistical account. 5 So, Mr. President, I think that 6 that whole argument about how wonderful this is 7 in preventing people from going back to prison 8 is rather specious. Then, indeed, Mr. 9 President, I would have to contend that any kind 10 of a rehabilitation program that has a 26 11 percent failure rate is not much of a 12 rehabilitation program. 13 ACTING PRESIDENT KUHL: Senator 14 Stavisky, why do you rise? 15 SENATOR STAVISKY: Mr. President, 16 will Senator Cook yield for a question? 17 SENATOR COOK: Yeah. 18 ACTING PRESIDENT KUHL: The 19 Senator yields. 20 SENATOR STAVISKY: I admire the 21 way in which you describe those who wish to 22 pursue their education as the most highly 23 motivated group within the prison population. 5782 1 Why do you, Senator Cook, want to 2 punish those who are the most motivated and wish 3 to improve their education in order not to go 4 back to prison? Why would you punish these 5 people? 6 SENATOR COOK: Mr. President, the 7 very point, Senator, is that these people don't 8 tend, from anything I can see in that statistic 9 al study, that the prison -- the education 10 doesn't do a thing to rehabilitate them, but as 11 far as I can see, given the kinds of numbers 12 we've got here, they return to prison at 13 something which must be virtually the same rate 14 as people who don't have college educations. 15 SENATOR STAVISKY: Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 Stavisky. 18 SENATOR STAVISKY: Senator Cook 19 has added a new dimension to statistics 20 maintained by the educational study undertaken 21 by the Department of Correctional Services. He 22 does so without any documentation. He praises 23 with one breath the fact that these are the most 5783 1 motivated people and then with the next breath 2 would tell these people who are the most 3 motivated, who want to turn their lives around, 4 that they have to do something that may be 5 nearly impossible. 6 I don't know if even the 7 enlightened members of this chamber would go out 8 of their way to hire somebody who has just been 9 released from prison. I don't know. We've 10 never taken a survey of that, and yet, I believe 11 that a person discharged from prison, even with 12 the education, will have difficulty. Why then 13 are we requiring repayment within six months 14 after the completion of the course of study? I 15 believe that is in the bill, or six months after 16 their discharge? Nobody is running up to them, 17 offering them the opportunity. They will look 18 at this and they will view it as a trap that 19 they don't want to get an additional burden. 20 Maybe in Charles Dickens' time 21 when there were debtor prisons, maybe that would 22 be the appropriate course of procedure, but we 23 don't have debtor prisons and we have a lot of 5784 1 people, including some very well educated non 2 prisoners, who take all of the money to go to 3 medical school under the condition that they 4 serve in a community that has an underserved 5 public health population, and we don't go after 6 them. We don't put them in prison, and yet 7 these are very intelligent, highly qualified 8 people whose entire medical course of study has 9 been paid for by the taxpayers. 10 Are you prepared to introduce 11 legislation to go after these people, find out 12 where they're hiding from their responsibility 13 to the taxpayers of New York State? These are 14 people who know better, who should know better, 15 and they're escaping, and I don't see any 16 reference in your bill to that issue. When 17 somebody is willing to admit a mistake and try 18 to turn their life around, I think that's 19 commendable. 20 I learned a great deal 21 accompanying, not then Senator Abate, but New 22 York City Correction Commissioner Abate on a 23 journey to Rikers Island with a group of 5785 1 youngsters who were at risk, who were getting 2 into trouble with drug dealers, with peddlers of 3 violence, and we took these kids to Rikers 4 Island in what was similar to the Scared 5 Straight Program that New Jersey has at Rahway 6 Prison, and the prisoners there carefully 7 selected to speak to the young people, gave them 8 a harrowing experience as to what was going to 9 happen to them if they got into trouble with the 10 law the way these inmates did. 11 I learned a lot and so did these 12 youths, and I think it was a lesson worth 13 learning. If we can turn people around without 14 an education as they may have been at Rikers 15 Island, because they were there usually for less 16 than a year, or with an education -- because 17 this is the only time we will get them where we 18 can convince them, prevail upon them to do 19 something better with their lives -- what are 20 you going to do, run after them with a salt 21 shaker to put salt on their tails when they're 22 free, when you don't have them up on charges, 23 when you can't force them or convince them to 5786 1 turn their lives around, when they're running 2 around with guns and knives and maybe assault 3 weapons, when they're abusing elderly people and 4 children? We don't have much leverage with 5 these people to get them to go to college. Here 6 behind bars when they're presumably paying their 7 price to society, this is an opportune time to 8 convince them to turn their lives around, and 9 you should be joining in that effort. You 10 should be encouraging, not discouraging. You 11 should say it's well worth the cost and let us 12 see if we can expand and not curtail the 13 program. 14 As an Education Committee chair, 15 I would hope that would be your goal, to use 16 education as a tool for reforming the lives of 17 these people. 18 ACTING PRESIDENT KUHL: The 19 Secretary will read the last section. 20 THE SECRETARY: Section 3. 21 This - 22 ACTING PRESIDENT KUHL: Senator 23 Onorato. 5787 1 SENATOR ONORATO: If Senator Cook 2 -- you know, I have been hearing quite a bit of 3 conversation here regarding this, but I thought 4 it was going to go much sooner than that, but a 5 lot of the things have been brought out here 6 that's kind of confused me a little bit again 7 regarding the tuition. 8 I understood that your bill would 9 make them pay their tuition, but now I'm a 10 little confused as to what that tuition actually 11 is. I believe now if a SUNY student going to 12 college takes -- doesn't get any TAP or anything 13 else and has to pay -- outright pay someone in 14 the neighborhood of $2500 a year, so if he takes 15 a four-year course, he would owe $10,000 -- he 16 or she would owe $10,000 for their four-year 17 college education. Is that what your bill does, 18 charge them $10,000 or does it charge them 19 $10,000 plus what you're saying, room and board 20 is coming into this effect and whatever costs 21 for the college professors? What is the actual 22 figure, if the actual student fee is $10,000 for 23 four years without room and board? 5788 1 SENATOR COOK: Mr. President, 2 Senator, as you posed the question, it would be 3 $10,000. In actuality, there would be the -- it 4 would depend on the number of courses, the 5 number of credit hours a student was taking at a 6 given year because I believe those charges are 7 made per course or per credit hour as opposed to 8 being a flat amount, but in general terms, it 9 would be the $10,000. 10 SENATOR ONORATO: It would be the 11 same as the student that would be going to - 12 SENATOR COOK: It would be the 13 same as if you were a part-time student 14 attending that particular college. 15 SENATOR ONORATO: Thank you. 16 ACTING PRESIDENT KUHL: The 17 Secretary will read the last section. 18 THE SECRETARY: Section 3. This 19 act shall take effect on the 1st day of January. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll.) 23 ACTING PRESIDENT KUHL: Announce 5789 1 the results when tabulated. 2 The Chair recognizes Senator 3 Waldon to explain his vote. 4 SENATOR WALDON: Thank you very 5 much, Mr. President. 6 In the best of all worlds, those 7 who would be allowed to receive an education in 8 prison and turn their lives around would not 9 return to prison and, in effect, the prison 10 population would diminish eventually in the best 11 of all worlds. 12 If such is not the case, a way to 13 ensure that there's always a prison population, 14 that there's always a growing prison population 15 is to take away every modicum of human 16 sensitivity and concern which would allow people 17 to turn their lives around. If what we want to 18 do is to increase the prison population and 19 ensure that the prisons are bursting at the 20 seams, then you should vote yes on this bill. 21 If you have any other thoughts in mind, do as I 22 do and vote no. 23 I vote in the negative, Mr. 5790 1 President. 2 ACTING PRESIDENT KUHL: Senator 3 Waldon in the negative. 4 Senator DeFrancisco to explain 5 his vote. 6 SENATOR DeFRANCISCO: Yes, to 7 explain my vote. 8 If there was ever any wonder why 9 there's no budget in the state of New York, I 10 think you can -- judging from this debate, you 11 would probably get a clearer understanding. 12 There's two different 13 philosophies of government that you're hearing 14 today. One philosophy that I think Senator Cook 15 bill -- Cook's bill espouses is that individuals 16 are responsible for themselves. Whether you are 17 getting an education behind bars, you have to 18 pay for the education or whether you're getting 19 the education as a poor individual in the 20 community or a rich individual in the community, 21 you pay the tuition because that's your 22 responsibility. 23 The other philosophy is that 5791 1 government has a responsibility to take care of 2 everybody, even those who are getting a benefit 3 that others are paying for. Individuals who are 4 in prison taking free courses are getting a 5 benefit by being in prison over those who maybe 6 can't afford those same courses that are forced 7 to pay for them since they are -- happen to be 8 on the outside. 9 I feel that it would be punitive 10 to take away the opportunity of a college 11 education, but the college education opportunity 12 is not being taken away. The prisoner is simply 13 being put in the same position as that person on 14 the outside. If you have to borrow it or you 15 have to pay it some day in the future, that's 16 part of your responsibility; and we don't have 17 debtors prisons, so if you can't pay it, then 18 there's going to be an unsatisfied bill out 19 there, and there's many of those by many people 20 who have never gone to prison. 21 So for that reason, I vote yes on 22 this bill. 23 ACTING PRESIDENT KUHL: Senator 5792 1 DeFrancisco in the affirmative. Results? 2 THE SECRETARY: Those recorded in 3 the negative on Calendar Number 431, Senators 4 Abate, Connor, Dollinger, Leichter, Markowitz, 5 Mendez, Montgomery, Onorato, Paterson, Smith, 6 Stavisky, and Waldon. Ayes 42, nays 12. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 Senator Hoblock. 10 SENATOR HOBLOCK: Mr. President, 11 would you please call up Calendar Number 621, 12 Senate 3821-A, by Senator Trunzo? 13 SENATOR STAVISKY: Mr. President. 14 ACTING PRESIDENT KUHL: Senator 15 Stavisky. 16 Senator Hoffmann. 17 Senator Hoblock, Senator 18 Hoffmann's indicated at the desk that she'd like 19 to, without objection, be recorded on a vote. 20 Do you mind if we take that first? 21 SENATOR HOBLOCK: No, not at all. 22 SENATOR HOFFMANN: Thanks, 23 Senator. 5793 1 ACTING PRESIDENT KUHL: Senator 2 Hoffmann. 3 SENATOR HOFFMANN: Mr. President, 4 I was out of the chamber when Calendar 72 was 5 taken up. I request unanimous consent to be 6 recorded in the negative. 7 ACTING PRESIDENT KUHL: Without 8 objection. Hearing none, Senator Hoffmann will 9 be recorded in the negative - 10 SENATOR HOFFMANN: Thank you. 11 ACTING PRESIDENT KUHL: -- on 12 Calendar Number 72. 13 Senator Stavisky. 14 SENATOR STAVISKY: Mr. President, 15 for the same reason, I should like to be 16 recorded in the negative on Calendar 72. 17 ACTING PRESIDENT KUHL: Without 18 objection and hearing none, Senator Stavisky 19 will be recorded in the negative on Calendar 20 Number 72. 21 Senator DeFrancisco. 22 SENATOR DeFRANCISCO: Mr. 23 President, I was out of the chamber when a vote 5794 1 was taken on Calendar 381. I would request 2 unanimous consent to be recorded in the negative 3 on that bill. 4 ACTING PRESIDENT KUHL: Without 5 objection. Hearing none, Senator DeFrancisco 6 will be recorded in the negative on Calendar 7 Number 381. 8 Senator Cook. 9 SENATOR COOK: Mr. President, if 10 it's appropriate, I'd like to remove a star. Is 11 that appropriate? 12 ACTING PRESIDENT KUHL: 13 Certainly. 14 SENATOR COOK: Okay. Calendar 15 431, Senate Bill 565-A, if you could - 16 ACTING PRESIDENT KUHL: Sponsor's 17 star will be placed on Calendar Number 43... 18 SENATOR COOK: Remove it. 19 ACTING PRESIDENT KUHL: Excuse 20 me, removed from Calendar Number 431. 21 SENATOR COOK: Thank you. 22 ACTING PRESIDENT KUHL: Now, I 23 ask the Secretary to - 5795 1 SENATOR ONORATO: Point of 2 information. 3 SENATOR LEICHTER: Put a star on 4 it. 5 SENATOR ONORATO: Am I hearing 6 correctly, you wanted to remove a star from 7 Calendar Number 431? 8 ACTING PRESIDENT KUHL: Sen... 9 Senator -- Senator Onorato, Senator Cook 10 misspoke. He was referring not to Senate 431, 11 to 495. Is that correct, Senator Cook? 12 SENATOR COOK: I was referring to 13 Calendar Number 495, Senator. 14 ACTING PRESIDENT KUHL: That's 15 what I thought I heard you say. 16 Senator Onorato, you might want 17 to have your ears checked. They tell me they do 18 that at the nurse's office. 19 All kidding aside, the Secretary 20 will read the title of Calendar Number 621. 21 THE SECRETARY: Calendar Number 22 621, by Senator Trunzo, Senate Print 3821-A, an 23 act to amend the Retirement and Social Security 5796 1 Law, in relation to retirement of sheriffs, 2 undersheriffs and deputy sheriffs. 3 SENATOR LEICHTER: Explanation. 4 ACTING PRESIDENT KUHL: Senator 5 Trunzo, an explanation has been asked for by 6 Senator Leichter. 7 SENATOR TRUNZO: Senator 8 Leichter, this bill authorizes counties outside 9 the city of New York at local option to elect 10 special 25- or 20-year New York State and local 11 employee retirement system plans for sheriffs, 12 undersheriffs and deputy sheriffs engaged 13 directly in criminal law enforcement 14 procedures. 15 ACTING PRESIDENT KUHL: Senator 16 Leichter. 17 SENATOR LEICHTER: Yeah, Mr. 18 President, if Senator Trunzo would be so good as 19 to yield, please. 20 ACTING PRESIDENT KUHL: Senator 21 Trunzo, do you yield to a question from Senator 22 Leichter? 23 SENATOR TRUNZO: Yes. 5797 1 ACTING PRESIDENT KUHL: The 2 Senator yields. 3 SENATOR LEICHTER: Senator, a 4 general objection that I don't feel that 5 strongly about, although I find some merit in 6 the memorandum of opposition of the New York 7 State Association of Counties. I assume you've 8 seen that? 9 SENATOR TRUNZO: Yes. 10 SENATOR LEICHTER: Have they 11 withdrawn that objection? 12 SENATOR TRUNZO: No, they 13 haven't, but every county in this state has 14 written in favor of it. 15 SENATOR LEICHTER: Every county 16 in the state has written in favor of it? 17 SENATOR TRUNZO: The sheriff 18 departments of every county in the state. 19 SENATOR LEICHTER: Oh, the police 20 departments. 21 SENATOR TRUNZO: The sheriffs. 22 SENATOR LEICHTER: The sheriffs 23 who have benefited are in favor of this? 5798 1 SENATOR TRUNZO: That's right. 2 Yes, yes. 3 SENATOR LEICHTER: That's 4 amazing, Senator, really. 5 SENATOR TRUNZO: Okay. 6 SENATOR LEICHTER: But the county 7 executives have not written in favor of it? 8 SENATOR TRUNZO: Only the 9 Association of Counties - 10 SENATOR LEICHTER: Okay. Is 11 opposed to it but, Senator, you do provide for 12 local option and maybe that, you know, sort of 13 mitigates the -- the opposition, let the 14 counties decide, although, as you and I know, 15 very often county executives look to us to 16 protect them from pressures that otherwise may 17 be put on them as we sometimes look for somebody 18 to protect us from some pressures, but let me - 19 let me get to what is really my concern. 20 Is there in this bill the 21 provisions of what we call the "heart" bill? Do 22 we make that available for sheriffs, under 23 sheriffs, deputy sheriffs, assistant sheriffs? 5799 1 SENATOR TRUNZO: Yes, it is, 2 Senator Leichter. 3 SENATOR LEICHTER: Thank you, 4 Senator. 5 On the bill. 6 ACTING PRESIDENT KUHL: Senator 7 Leichter on the bill. 8 SENATOR LEICHTER: Yeah. My good 9 colleagues, I've often risen on this floor when 10 we deal with the "heart" bill and when we try to 11 provide the benefits of the "heart" bill for 12 certain public employees, and I point out, which 13 is particularly true in this case, there is no 14 medical evidence whatsoever that by reason of 15 performing the duties of a sheriff or assistant 16 sheriff or deputy sheriff that in any way this 17 could cause cardiovascular problems, that if you 18 should have any problem with your heart, that 19 there's a presumption that it's related to the 20 job, and really this costs the taxpayers a great 21 deal. 22 I know we all like to get up here 23 and talk about, you know, we got to protect the 5800 1 taxpayers, but then we put across bills of this 2 sort, and let me just say I, less often than 3 you, get up and talk about protecting the 4 taxpayers, because I think that, on balance, the 5 taxpayers at certain times need to be called 6 upon to pay for the cost of government, but they 7 don't need to be asked to call -- to be called 8 upon to pay a boondoggle. I mean this is just a 9 provision that has no basis in any medical 10 studies. We just shouldn't do this. 11 Now, we all want to be generous 12 to our police departments, our fire departments, 13 our sheriffs. They perform important functions, 14 but they get paid for it, and now Senator Trunzo 15 is going to give them a pension, but in addition 16 he gives them this presumption which has no 17 basis in fact and let me tell you, Senator, in 18 my city, the city of New York where we have a 19 "heart" bill it has cost us millions, hundreds 20 of millions of dollars. Every police officer 21 who has a heart problem because, one, it's 22 genetic, or because that police officer smokes a 23 great deal or he drinks or he does other things 5801 1 that aren't particularly healthy, he eats a lot 2 of fatty foods, and so on, that's why people get 3 heart attacks and have problems with their 4 hearts and not because of the jobs they have. 5 If the theory is, well, these 6 people have stressful jobs, the point is that 7 they're not that stressful. If you want to take 8 people who have stressful jobs, take correction 9 officers. I'll tell you somebody who has real 10 stressful jobs, they don't have the benefit of 11 the "heart" bill, legislators. It's a terribly 12 stressful job. I don't have to convince anybody 13 of that but, for good reasons, we don't have the 14 provisions of the "heart" bill available to us, 15 because that sort of stress is not shown to be 16 related to problems of the heart. 17 So, Senator, maybe this bill, in 18 spite of the objection of the Association of 19 Counties, is a good bill or bill that we ought 20 to let counties to decide, but don't add the 21 "heart" bill. If you add the "heart" bill, 22 then I think you taint the bill and I for one 23 cannot support it. 5802 1 ACTING PRESIDENT KUHL: The 2 Secretary will read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll.) 8 ACTING PRESIDENT KUHL: Announce 9 the results when tabulated. 10 THE SECRETARY: Those recorded in 11 the negative on Calendar Number 621 are Senator 12 -- Senator Leichter. Ayes 53, nays 1. 13 ACTING PRESIDENT KUHL: The bill 14 is passed. 15 Senator Montgomery, why do you 16 rise? 17 SENATOR MONTGOMERY: Yes, Mr. 18 President. I would like unanimous consent to be 19 recorded in the negative on Calendar Number 574. 20 ACTING PRESIDENT KUHL: Without 21 objection. Hearing no objection, Senator 22 Montgomery will be recorded in the negative on 23 Calendar Number 72. 5803 1 SENATOR MONTGOMERY: No. 2 ACTING PRESIDENT KUHL: I'm 3 sorry. My hearing is bad. I should go to see 4 the nurse. 574. 5 SENATOR MONTGOMERY: Thank you. 6 ACTING PRESIDENT KUHL: Thank 7 you, Senator Montgomery. 8 Senator Hoblock. 9 SENATOR HOBLOCK: Mr. President, 10 is there any housekeeping at the desk? 11 ACTING PRESIDENT KUHL: No 12 housekeeping at the desk. 13 SENATOR HOBLOCK: Mr. President, 14 there being no further business, I move we stand 15 adjourned until Tuesday, May 16, 1995, at 11:00 16 a.m. sharp. There will be a Majority Conference 17 immediately after session. 18 ACTING PRESIDENT KUHL: Without 19 objection, the Senate stands adjourned until 20 tomorrow, Tuesday, May 16th, at 11:00. Repeat 21 that, 11:00 a.m. Majority Conference to follow 22 immediately thereafter. 23 (Whereupon, at 5:50 p.m., the 5804 1 Senate adjourned.) 2 3 4