Monday, March 25, 1996

2533 1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 March 25, 1996 11 3:03 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 LT. GOVERNOR BETSY McCAUGHEY ROSS, President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 2534 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 come to order. Would everyone please rise and 4 join with me in the Pledge of Allegiance. 5 (The assemblage joined in the 6 Pledge of Allegiance to the Flag.) 7 The invocation today will be 8 given by Reverend Peter G. Young of the Blessed 9 Sacrament Church of Bolton Landing. 10 REVEREND PETER G. YOUNG: Let us 11 pray. May we pray for all of the people of New 12 York State that their wealth and their power 13 might become a force for peace rather than 14 conflict, a source of hope rather than 15 discontent, an agent of friendship rather than 16 enmity. May the actions of this Senate thus be 17 dedicated. 18 THE PRESIDENT: The reading of 19 the Journal, please. 20 THE SECRETARY: In Senate, 21 Sunday, March 24th. The Senate met pursuant to 22 adjournment, Senator Farley in the Chair. The 23 Journal of Saturday, March 23rd, was read and 2535 1 approved. On motion, Senate adjourned. 2 THE PRESIDENT: Without 3 objection, the Journal stands approved as read. 4 Presentation of petitions. 5 Messages from the Assembly. 6 Messages from the Governor. 7 Reports of standing committees. 8 Reports of select committees. 9 Communications and reports from 10 state officers. 11 Motions and resolutions. 12 Senator Farley. 13 SENATOR FARLEY: Thank you, Madam 14 President. 15 On page 22, I offer the following 16 amendments to my bill, Calendar Number 482, 17 Senate Print 2083, and I ask that that bill 18 retain its place on the Third Reading Calendar. 19 THE PRESIDENT: Amendments 20 received. 21 SENATOR FARLEY: On behalf of 22 Senator Skelos, on page 10, I offer the 23 following amendments to Calendar Number 296, 2536 1 Senate Print 6072, and I ask that that bill 2 retain its place. 3 THE PRESIDENT: Amendments 4 received. 5 SENATOR FARLEY: On behalf of 6 Senator Skelos again, on page 27, Calendar 7 Number 520, Senate Print 6112, I ask that that 8 bill retain its place on the Third Reading 9 Calendar. 10 THE PRESIDENT: Amendments 11 received. 12 SENATOR FARLEY: Madam President, 13 on behalf of Senator Goodman, I wish to call up 14 his bill, Print Number 1695-A, which was 15 recalled from the Assembly which is now at the 16 desk. 17 THE PRESIDENT: The Secretary 18 will read. 19 THE SECRETARY: By Senator 20 Goodman, Senate Print 1695-A, an act to amend 21 the Transportation Law, in relation to 22 increasing penalties for violating a motor 23 carrier certificate. 2537 1 SENATOR FARLEY: Madam President, 2 I now move to reconsider the vote by which this 3 bill was passed. 4 THE PRESIDENT: Call the roll on 5 reconsideration, please. 6 (The Secretary called the roll on 7 reconsideration. ) 8 THE SECRETARY: Ayes 41. 9 SENATOR FARLEY: I now offer the 10 following amendments. 11 THE PRESIDENT: Amendments 12 received. 13 Senator Saland. 14 SENATOR SALAND: Madam President, 15 I'd like to remove a star please: Sponsor's star 16 from Calendar Number 447, Senate 5104-A. 17 THE PRESIDENT: The star is 18 removed. 19 Senator Velella. 20 SENATOR VELELLA: Madam 21 President, there will be an immediate meeting of 22 the Civil Service Committee in Room 332. 23 THE PRESIDENT: There will be an 2538 1 immediate meeting of the Civil Service Committee 2 in Room 332. 3 SENATOR VELELLA: Madam 4 President, could we proceed to the 5 non-controversial calendar, please. 6 THE PRESIDENT: The Secretary 7 will read. 8 THE SECRETARY: Calendar Number 9 18, by Senator Cook, Senate Print 4875-A, an act 10 to amend the Agriculture and Markets Law, in 11 relation to agricultural practices. 12 SENATOR PATERSON: Lay it aside, 13 please. 14 THE PRESIDENT: Lay it aside, 15 please. 16 THE SECRETARY: Calendar Number 17 43, by Senator Levy, Senate Print Number 429-A, 18 an act in relation to authorizing the 19 Commissioner of Transportation and others to 20 develop an implementing uniform statewide 21 system. 22 THE PRESIDENT: Read the last 23 section, please. 2539 1 THE SECRETARY: Section 3. This 2 act shall take effect on the 90th day. 3 THE PRESIDENT: Call the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 47. 6 THE PRESIDENT: The bill is 7 passed. 8 THE SECRETARY: Calendar Number 9 110, by Senator LaValle, Senate Print 5765-A, an 10 act to amend the Highway Law, in relation to the 11 Long Island Suburban Highway Improvement 12 Program. 13 SENATOR PATERSON: Lay aside. 14 THE PRESIDENT: Lay it aside, 15 please. 16 THE SECRETARY: Calendar Number 17 249, by Senator Marcellino, Senate Print 4529 18 D, an act to amend the Environmental 19 Conservation Law, in relation to the harvest and 20 shipment of shellfish. 21 THE PRESIDENT: Read the last 22 section, please. 23 THE SECRETARY: Section 8. This 2540 1 act shall take effect on the first day of 2 September. 3 THE PRESIDENT: Call the roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 48. 6 THE PRESIDENT: The bill is 7 passed. 8 THE SECRETARY: Calendar Number 9 281, by Senator Kuhl, Senate Print Number 2314, 10 an act to amend the General Obligations Law, in 11 relation to the liability for negligence of 12 owner. 13 THE PRESIDENT: Read the last 14 section, please. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 THE PRESIDENT: Call the roll. 18 (The Secretary called the roll. ) 19 THE SECRETARY: Ayes 48. 20 THE PRESIDENT: The bill is 21 passed. 22 THE SECRETARY: Calendar Number 23 345, by Senator Holland, Senate Print Number 2541 1 206, an act to amend the Public Health Law, in 2 relation to notification to local social 3 services departments. 4 THE PRESIDENT: Read the last 5 section, please. 6 THE SECRETARY: Section 2. This 7 act shall take effect on the 120th day. 8 THE PRESIDENT: Call the roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 48. 11 THE PRESIDENT: The bill is 12 passed. 13 THE SECRETARY: Calendar Number 14 370, by Senator Seward, Senate Print Number 15 4301, an act to amend the Public Service Law, in 16 relation to information provided to telephone 17 subscribers. 18 THE PRESIDENT: Read the last 19 section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 THE PRESIDENT: Call the roll. 23 (The Secretary called the roll. ) 2542 1 THE SECRETARY: Ayes 49. 2 THE PRESIDENT: The bill is 3 passed. 4 THE SECRETARY: Calendar Number 5 383, by Senator Velella, Senate Print Number 6 498, an act to amend the Alcoholic Beverage 7 Control Law, in relation to credit card sales. 8 SENATOR PATERSON: Lay it aside, 9 please. 10 THE PRESIDENT: Lay it aside, 11 please. 12 THE SECRETARY: Calendar Number 13 428, by Senator Seward, Senate Print Number 14 5949, an act to amend the Abandoned Property Law 15 and Cooperative Corporations Law, in relation to 16 disposition of certain unclaimed property. 17 THE PRESIDENT: Read the last 18 section, please. 19 THE SECRETARY: Section 3. This 20 act shall take effect immediately. 21 THE PRESIDENT: Call the roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 49. 2543 1 THE PRESIDENT: The bill is 2 passed. 3 THE SECRETARY: Calendar Number 4 434, by Senator Volker, Senate Print Number 5 2445, an act to amend - 6 SENATOR PATERSON: Lay aside. 7 THE PRESIDENT: Lay aside. 8 THE SECRETARY: Calendar Number 9 435, by Senator Skelos, Senate Print Number 10 3450-A, Civil Practice Law and Rules, in 11 relation to the method of commencing an action 12 or special proceeding. 13 THE PRESIDENT: Read the last 14 section, please. 15 THE SECRETARY: Section 4. This 16 act shall take effect on the first day of 17 September. 18 THE PRESIDENT: Call the roll. 19 (The Secretary called the roll. ) 20 THE SECRETARY: Ayes 50. 21 THE PRESIDENT: The bill is 22 passed. 23 THE SECRETARY: Calendar Number 2544 1 436, by Senator Volker, Senate Print Number 2 3695-A, an act to amend the Civil Practice Law 3 and Rules, in relation to the jurisdictional 4 limit in relation to the arbitration of certain 5 claims. 6 THE PRESIDENT: Read the last 7 section, please. 8 THE SECRETARY: Section 2. This 9 act shall take effect July 1st, 1996. 10 THE PRESIDENT: Call the roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 50. 13 THE PRESIDENT: The bill is 14 passed. 15 THE SECRETARY: Calendar Number 16 437, by Senator Volker, Senate Print Number 17 3768, an act to amend the Civil Practice Law and 18 Rules, in relation to objections to service. 19 THE PRESIDENT: Read the last 20 section, please. 21 THE SECRETARY: Section 2. This 22 act shall take effect on the first day of 23 January. 2545 1 THE PRESIDENT: Call the roll. 2 (The Secretary called the roll. ) 3 THE SECRETARY: Ayes 50. 4 THE PRESIDENT: The bill is 5 passed. 6 THE SECRETARY: Calendar Number 7 488, by Senator Leibell, Senate Print Number 8 5201, an act to amend the Public Authorities 9 Law, in relation to loan insurance. 10 THE PRESIDENT: Read the last 11 section, please. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 THE PRESIDENT: Call the roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 50. 17 THE PRESIDENT: The bill is 18 passed. 19 THE SECRETARY: Calendar Number 20 490, by Senator Leibell, Senate Print Number 21 6134, an act to amend the Public Authorities 22 Law, in relation to the power of the state of 23 New York Mortgage Agency. 2546 1 THE PRESIDENT: Read the last 2 section, please. 3 THE SECRETARY: Section 3. This 4 act shall take effect immediately. 5 THE PRESIDENT: Call the roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 51. 8 THE PRESIDENT: The bill is 9 passed. 10 THE SECRETARY: Calendar Number 11 513, by Senator Padavan, Senate Print 6433, an 12 act to amend Chapter 399 of the Laws of 1995, 13 amending the Education Law, relating to making 14 community school board members ineligible. 15 SENATOR GOLD: Lay it aside. 16 THE PRESIDENT: Lay it aside, 17 please. 18 That completes the 19 non-controversial calendar. 20 SENATOR VELELLA: Madam 21 President, can we proceed to the controversial 22 calendar, please. 23 THE PRESIDENT: The Secretary 2547 1 will read. 2 THE SECRETARY: On page 4, 3 Calendar Number 18, by Senator Cook, Senate 4 Print 4875-A, an act to amend the Agriculture 5 and Markets Law, in relation to agricultural 6 practices. 7 SENATOR PATERSON: Explanation. 8 SENATOR COOK: Madam President, 9 thank you. I believe there's a -- there's 10 certain types of legal actions in which it says 11 the truth is an absolute defense, and I raise 12 the truth as an absolute defense against a 13 certain memorandum that we have in opposition to 14 this bill, and I would simply ask members to 15 read the bill as opposed to the memorandum, in 16 which they will note that the Section 1, 17 paragraph (b) of the Agriculture and Markets Law 18 says: 19 "1 (a) The Commissioner shall, 20 in consultation with the State Advisory Council 21 on Agriculture, issue opinions upon request from 22 any person as to whether a particular 23 agricultural practice -- particular agricultural 2548 1 practices are sound." In other words, the 2 Commissioner issues an opinion. 3 The (b) part of the bill, the 4 portion being amended, says then: "Examples of 5 activities which entail practices the 6 Commissioner may consider include but are not 7 limited to operation of farm equipment, proper 8 use of agricultural chemicals and other types of 9 protection methods, construction and use of farm 10 structures," to which we are adding, "including 11 aerial application performed in accordance with 12 accepted standards." 13 ACTING PRESIDENT KUHL: Senator 14 Paterson. 15 SENATOR PATERSON: Thank you, Mr. 16 President. If the Senator would yield for a 17 question. 18 ACTING PRESIDENT KUHL: Senator 19 Cook, do you yield to Senator Paterson? 20 SENATOR COOK: Yes. 21 ACTING PRESIDENT KUHL: Senator 22 yields. 23 SENATOR PATERSON: Senator, most 2549 1 of the standards of farming or particular 2 practices that are used are such that when we 3 limit the ability to bring lawsuits, what we are 4 really saying is that they may be nuisances but 5 they don't rise to the threshold that a lawsuit 6 would bring forth any damages that would be 7 equal to the sufferance that many farmers might 8 endure, and in cases such as the odor of manure 9 or the audible levels of tractors or perhaps the 10 cannons that go off to frighten deer away from 11 farming that may be true, but we're talking 12 about aerial spraying in this particular case 13 which connotes a lot of different chemicals and 14 techniques that may be used that can be 15 extremely harmful, and there are parts all over 16 the state, particularly on Long Island, where 17 serious questions are being raised about the use 18 of these substances. 19 So at a later date, if we were to 20 find that some of the aerial sprays were equal 21 to what we found in the early '50s about DDT, 22 I'm suggesting to you that this could be 23 extremely dangerous. 2550 1 The Environmental Protection 2 Lobby thinks it's dangerous, gives it two smoke 3 stacks, and many Senators voted against this 4 bill last year. 5 My question is, don't you think 6 we should be drawing a distinction between the 7 regular farming practices that we would want to 8 limit, and aerial spraying which has been found 9 in many quarters to be quite dangerous? 10 SENATOR COOK: Mr. President, I'd 11 have to observe that I think the Environmental 12 Protection Agency sometimes thinks it's a hazard 13 if you eat onions and exhale. But anyway 14 relative to the points that you make, Senator, 15 there are really two points, the first being 16 that this really doesn't relate to the use of 17 particular pesticides because you can presumably 18 apply those same pesticides on the ground under 19 correct conditions. 20 That's not addressed in the 21 bill. Where that is addressed is in the 22 Environmental Conservation Law, and aerial 23 spraying is probably the most regulated and 2551 1 controlled activity that takes place on a farm 2 and there are certain conditions under which it 3 is practically necessary. If you have, for 4 example, the black loam areas where the soil is 5 very soft, you can't get heavy vehicles on that 6 ground if it is -- if it is wet. Then you 7 really don't have any alternative except to be 8 able to spray them aerially; or if you have a 9 crop of corn, let's say, or some other crop that 10 is -- that is tall, that has grown, that is half 11 grown or mostly grown, and you need to make some 12 applications, you simply can't put ground-based 13 machinery through there, and the only possible 14 way in some cases is to use aerial applications. 15 This bill doesn't say, O.K., 16 under any circumstance you just get an airplane 17 and dump anything you will on the ground. It 18 says first the Commissioner shall consider 19 whether it is an appropriate agricultural 20 activity and (b) it does not address at all the 21 very, very stringent regulations that have 22 existed and continue to exist in the 23 Environmental Conservation Law which require 2552 1 licensure of the people who would do the 2 application, which require on-site inspections 3 in some cases which are very, very stringent. 4 So we really aren't adding any 5 more hazard if you even consider it a hazard 6 than would currently exist. 7 ACTING PRESIDENT KUHL: Senator 8 Paterson. 9 SENATOR PATERSON: Thank you, Mr. 10 President. I'm better informed after listening 11 to Senator Cook's answer. However, I am still 12 concerned, as are many of us, about the 13 confusion that may arise from the passage of 14 this legislation. This is something that the 15 Department of Environmental Conservation has a 16 certain amount of jurisdiction over, but what we 17 are concerned about in responding is what the 18 remedy is to the individual who is afflicted, to 19 someone who would like to bring a lawsuit and if 20 the Commissioner of Agriculture and Markets is 21 in the situation where this judgment may 22 conflict with what DEC is doing, we feel that it 23 lends a great deal of confusion and certainly 2553 1 conflict to the entire issue when the issue may 2 be very serious. Perhaps in some of the other 3 things, it might not be that way, but with the 4 tremendous fear to such an extent as Senator 5 Cook points out, that DEC does have some very 6 strict regulations and at times there is a 7 strict necessity to use aerial spraying, the 8 fact is that in the end we don't want to delay 9 or in any way minimize what remedies an 10 individual who may feel that they have suffered 11 harm may endure at a point that they want to 12 bring an action, and we see a tremendous 13 difference between aerial spraying and some of 14 the other practices in which perhaps in the past 15 we have been a little bit excessive and have at 16 times raised undue concern. 17 Aerial spraying is something that 18 is still not totally understood and in some 19 respects we have past evidence that misuse of 20 certain chemicals has caused great damage to our 21 land and certainly to our people and certainly 22 to individuals who have suffered as a result of 23 it. 2554 1 We are recommending a no vote on 2 this, and we usually don't do this, Mr. 3 President, but we're going to ask for a slow 4 roll call so that all of those individuals who 5 are registering opposition may stand and do so 6 at this time. 7 ACTING PRESIDENT KUHL: Is there 8 any other Senator wishing to speak on the bill? 9 Seeing and hearing none, the Secretary will read 10 the last section. 11 SENATOR VELELLA: Mr. President. 12 ACTING PRESIDENT KUHL: Senator 13 Velella. 14 SENATOR VELELLA: Mr. President, 15 while you're preparing for that roll call, I'd 16 ask that all members on the Civil Service 17 Committee please go to Room 332. The meeting is 18 taking place right now and we need the members 19 in that room immediately. 20 ACTING PRESIDENT KUHL: For the 21 benefit of the members on the Civil Service 22 Committee, there is a meeting of that committee 23 taking place at this moment in the Majority 2555 1 Conference Room, Room 332. Would they please go 2 there to participate. 3 Secretary will call or read the 4 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 SENATOR PATERSON: Slow roll 11 call. 12 SENATOR SMITH: Slow roll call. 13 ACTING PRESIDENT KUHL: Are there 14 five members in the chamber requesting a slow 15 roll call? If they are, would they please 16 stand. I see one, two, three, four, five. Slow 17 roll call has been requested. I'll ask the 18 Secretary to call the roll slowly. 19 THE SECRETARY: Senator Abate. 20 SENATOR ABATE: No. 21 THE SECRETARY: Senator Alesi. 22 SENATOR ALESI: Yes. 23 THE SECRETARY: Senator Babbush. 2556 1 (There was no response. ) 2 Senator Bruno. 3 (Affirmative indication. ) 4 Senator Connor. 5 (Negative indication. ) 6 Senator Cook. 7 SENATOR COOK: Yes. 8 THE SECRETARY: Senator 9 DeFrancisco. 10 SENATOR DeFRANCISCO: Yes. 11 THE SECRETARY: Senator DiCarlo. 12 SENATOR DiCARLO: Aye. 13 THE SECRETARY: Senator 14 Dollinger. 15 SENATOR DOLLINGER: No. 16 THE SECRETARY: Senator Espada. 17 SENATOR ESPADA: No. 18 THE SECRETARY: Senator Farley. 19 SENATOR FARLEY: Aye. 20 THE SECRETARY: Senator Gold. 21 SENATOR GOLD: No. 22 THE SECRETARY: Senator 23 Gonzalez. 2557 1 (There was no response. ) 2 Senator Goodman. 3 SENATOR GOODMAN: No. 4 THE SECRETARY: Senator Hannon. 5 SENATOR HANNON: Nay. 6 THE SECRETARY: Senator Hoblock. 7 (Affirmative indication. ) 8 THE SECRETARY: Senator 9 Hoffmann. 10 (There was no response. ) 11 Senator Holland. 12 SENATOR HOLLAND: Yes. 13 THE SECRETARY: Senator Johnson. 14 (There was no response. ) 15 Senator Kruger. 16 SENATOR KRUGER: No. 17 THE SECRETARY: Senator Kuhl. 18 SENATOR KUHL: Aye. 19 THE SECRETARY: Senator Lachman. 20 SENATOR LACHMAN: No. 21 THE SECRETARY: Senator Lack. 22 SENATOR LACK: No. 23 THE SECRETARY: Senator Larkin. 2558 1 SENATOR LARKIN: Aye. 2 THE SECRETARY: Senator LaValle. 3 SENATOR LAVALLE: No. 4 THE SECRETARY: Senator Leibell. 5 SENATOR LEIBELL: No. 6 THE SECRETARY: Senator 7 Leichter. 8 (There was no response. ) 9 Senator Levy. 10 SENATOR LEVY: No. 11 THE SECRETARY: Senator Libous. 12 SENATOR LIBOUS: Aye. 13 THE SECRETARY: Senator Maltese. 14 SENATOR MALTESE: Aye. 15 THE SECRETARY: Senator 16 Marcellino. 17 SENATOR MARCELLINO: No. 18 THE SECRETARY: Senator Marchi. 19 SENATOR MARCHI: Aye. 20 THE SECRETARY: Senator 21 Markowitz. 22 SENATOR MARKOWITZ: No. 23 THE SECRETARY: Senator Maziarz. 2559 1 SENATOR MAZIARZ: Aye. 2 THE SECRETARY: Senator Mendez. 3 SENATOR MENDEZ: No. 4 THE SECRETARY: Senator 5 Montgomery. 6 SENATOR MONTGOMERY: No. 7 THE SECRETARY: Senator Nanula. 8 SENATOR NANULA: No. 9 THE SECRETARY: Senator 10 Nozzolio. 11 (There was no response. ) 12 Senator Onorato. 13 SENATOR ONORATO: No. 14 THE SECRETARY: Senator 15 Oppenheimer. 16 (There was no response. ) 17 Senator Padavan. 18 SENATOR PADAVAN: Yes. 19 THE SECRETARY: Senator 20 Paterson. 21 SENATOR PATERSON: No. 22 THE SECRETARY: Senator Present. 23 SENATOR PRESENT: Aye. 2560 1 THE SECRETARY: Senator Rath. 2 (There was no response. ) 3 Senator Saland. 4 SENATOR SALAND: Aye. 5 THE SECRETARY: Senator 6 Santiago. 7 (There was no response. ) 8 Senator Seabrook. 9 SENATOR SEABROOK: No. 10 THE SECRETARY: Senator Sears. 11 SENATOR SEARS: (Affirmative 12 indication. ) 13 THE SECRETARY: Senator Seward. 14 SENATOR SEWARD: Yes. 15 THE SECRETARY: Senator Skelos. 16 SENATOR SKELOS: Yes. 17 THE SECRETARY: Senator Smith. 18 SENATOR SMITH: No. 19 THE SECRETARY: Senator Spano. 20 SENATOR SPANO: Aye. 21 THE SECRETARY: Senator 22 Stachowski. 23 SENATOR STACHOWSKI: Yes. 2561 1 THE SECRETARY: Senator 2 Stafford. 3 SENATOR STAFFORD: Mr. President, 4 may I have my name called. 5 ACTING PRESIDENT KUHL: Senator 6 Stafford to explain his vote. 7 SENATOR STAFFORD: Mr. President, 8 I hope one of these days, in supporting Senator 9 Cook, that we'll learn that the produce that we 10 have doesn't come from the back room of the 11 supermarket. It doesn't. These people are 12 regulated that use this, and I mean they're 13 regulated, and unless we get sensible and allow 14 our agricultural industry to practice 15 agriculture as it should be today, the first 16 thing we know we're not going to have an 17 agricultural industry and on top of that, we're 18 not going to have anything to eat. 19 I vote aye. 20 ACTING PRESIDENT KUHL: Senator 21 Stafford will be recorded in the affirmative. 22 Secretary continue to call the 23 roll slowly. 2562 1 THE SECRETARY: Senator 2 Stavisky. 3 (There was no response. ) 4 Senator Trunzo. 5 SENATOR TRUNZO: Yes. 6 THE SECRETARY: Senator Tully. 7 SENATOR TULLY: Nope. 8 THE SECRETARY: Senator Velella. 9 SENATOR VELELLA: Yes. 10 THE SECRETARY: Senator Volker. 11 SENATOR VOLKER: Yes. 12 THE SECRETARY: Senator Waldon. 13 SENATOR WALDON: Yes. 14 THE SECRETARY: Senator Wright. 15 SENATOR WRIGHT: Aye. 16 SENATOR COOK: Mr. President. 17 ACTING PRESIDENT KUHL: Senator 18 Cook, why do you rise? 19 SENATOR COOK: Would you please 20 withdraw the roll call and lay the bill aside. 21 ACTING PRESIDENT KUHL: Bill will 22 be laid aside. 23 SENATOR COOK: Thank you. 2563 1 ACTING PRESIDENT KUHL: Secretary 2 will continue to call the controversial 3 calendar. 4 THE SECRETARY: Calendar Number 5 110, by Senator LaValle, Senate Print Number 6 5765-A, an act to amend the Highway Law, in 7 relation to the Long Island Suburban Highway 8 Improvement Program. 9 SENATOR PATERSON: Explanation. 10 ACTING PRESIDENT KUHL: Senator 11 LaValle, an explanation of Calendar Number 110 12 has been requested by the acting Minority 13 Leader, Senator Paterson. 14 SENATOR LAVALLE: Mr. President, 15 this bill would allow the Department of 16 Transportation to use what we call "SHIP's" 17 monies or other monies that they have for 18 improvements at the ferry terminal on Shelter 19 Island, and the bill is very, very straight 20 forward in that regard. 21 The reason for this -- and this 22 goes back to the days when Hugh Carey was 23 Governor and lived on Shelter Island, and 2564 1 periodically I think everyone knows that Shelter 2 Island is completely surrounded by water, has no 3 bridges, and the only way you can get to and 4 from the island is from North Haven, which is 5 just up a little bit from Sag Harbor, or on the 6 North Shore from Greenport. 7 The ferries, of course, with the 8 increased cost of petroleum and other costs, the 9 fee for transit across to the island has become 10 more and more expensive, and we in government 11 have tried to find ways of stabilizing the fares 12 to Shelter Island. 13 In the days when Commissioner 14 Bill Hennessy was the Transportation 15 Commissioner and Governor Carey was governor, 16 the thought came up that we could stabilize the 17 fare by utilizing state monies to improve the 18 ferry terminal staging area. That was a cost 19 that presently the ferries incur on their own 20 and obviously by being relieved of those costs 21 they can use the monies for fare stabilization. 22 We thought in -- in one of the 23 budgets that we had this all put together, that 2565 1 we could use SHIP monies, but it was felt until 2 we spelled this out statutorily that that would 3 be the best and clearest route for everyone, and 4 that's what this bill does. 5 ACTING PRESIDENT KUHL: Senator 6 Paterson. 7 SENATOR PATERSON: Thank you, Mr. 8 President. If Senator LaValle would yield for 9 just a couple questions. 10 SENATOR LAVALLE: Yes, sir. 11 ACTING PRESIDENT KUHL: Senator 12 LaValle yields. 13 SENATOR PATERSON: Senator, I'm 14 just curious to ask whether or not these - 15 whether or not Shelter Island is already on the 16 list for SHIP's funding. In other words, what's 17 confusing me - 18 SENATOR LAVALLE: The answer is 19 -- the answer is yes, the -- I believe the 20 memorandum of understanding should have Shelter 21 Island as designated as having received or being 22 eligible to receive monies. That would -- they 23 were put on the list very specifically for the 2566 1 purpose that I just enunciated, Senator 2 Paterson. 3 ACTING PRESIDENT KUHL: Senator 4 Paterson. 5 SENATOR PATERSON: Mr. President, 6 if the Senator would continue to yield. 7 SENATOR LAVALLE: Yes. 8 ACTING PRESIDENT KUHL: Senator 9 continues to yield. 10 SENATOR PATERSON: I certainly 11 believe that you have made the case for the fact 12 that the area needs assistance. What I'm just 13 asking is for clarification of why we need a 14 bill when it would appear that there has already 15 been assistance provided or, if you feel that 16 you've already answered that, I guess what 17 I'm - 18 SENATOR LAVALLE: Yes, Senator, 19 I'd be happy to answer that. 20 As you well know, there are 21 always people in the bureaucracy who feel that 22 you need some sort of clarification that this - 23 that we are being somewhat creative and that 2567 1 this has not been spelled out any place else 2 before and people would feel more comfortable. 3 In the legislation, Senator, what 4 you should know is that Route 114 that starts at 5 Sag Harbor on one side of the island, on the 6 south side, and in Greenport on the north side, 7 goes across the island and when you get off the 8 ferry -- one of the ferries, either on the south 9 side or the north side, there's a big sign 10 stares you in the face, says Route 114; and so 11 the thought was many years ago that the ferry 12 terminal really is part of the State Route 114, 13 but in essence, there is the property when you 14 get off the ferry in the most immediate way in 15 what we call the ferry terminal or staging area, 16 actually belongs to the ferry company and not 17 the state. So we want to make sure that we are 18 not proscribed in any other section of law and 19 that we are very specifically saying that 114 is 20 a continuum, and we can use the monies for this 21 -- for this purpose. 22 So we are spelling it out very 23 specifically so that people in the bureaucracy 2568 1 feel more comfortable and that it has the seal 2 of approval of the Legislature and if it reaches 3 the Governor's desk, his approval. 4 ACTING PRESIDENT KUHL: Senator 5 Paterson. 6 SENATOR PATERSON: Thank you, 7 Senator. That's really quite clear, and so I 8 think we can end this. Is it safe to assume 9 that there will be no loss of any funding from 10 any other project or any other area? 11 SENATOR LAVALLE: Yes, Senator, 12 that's correct. 13 SENATOR PATERSON: All right. 14 Thank you very much, Senator LaValle, and, Mr. 15 President, on the bill. 16 ACTING PRESIDENT KUHL: Senator 17 Paterson, on the bill. 18 SENATOR PATERSON: Since I'm on a 19 roll now, I'm not calling for a slow roll call. 20 I'm going to let this one go. 21 ACTING PRESIDENT KUHL: Secretary 22 will read the last section. 23 THE SECRETARY: Section 3. This 2569 1 act shall take effect immediately. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 57. 6 ACTING PRESIDENT KUHL: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 383, by Senator Velella, Senate Print 498, an 10 act to amend the Alcoholic Beverage Control Law, 11 in relation to credit card sales. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 2. 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 Paterson. Senator Paterson, why do you rise? 21 SENATOR PATERSON: May we have an 22 explanation of that bill, Mr. President? 23 ACTING PRESIDENT KUHL: Senator 2570 1 Velella, an explanation of Calendar Number 383 2 has been asked for by the acting Minority 3 Leader, Senator Paterson. 4 SENATOR VELELLA: This bill, 5 Senator, would allow package stores to set 6 minimum standards or minimal amounts for which 7 liquor could be charged in a liquor store on a 8 credit card. When we allowed liquor stores to 9 charge wines and spirits and taking credit cards 10 and make sales on credit cards, there was an 11 unwritten understanding that we would not allow 12 them to have sales made for very small amounts, 13 one pint or two pints of a wine or something of 14 that nature. 15 The credit card companies now 16 have instituted a system whereby if you refuse 17 to accept the credit card for a minimum sale 18 they are penalizing the owners of the stores for 19 the first violation 2,000, for the second 20 violation 5,000 and for the third violation 21 25,000. That money is automatically 22 electronically transferred from their account 23 and imposed by the credit card companies. 2571 1 Other states have had this 2 problem. North Carolina has led the way in 3 passing legislation similar to this and we are 4 proposing that there be a minimum charge of 5 $15. 6 ACTING PRESIDENT KUHL: Senator 7 Paterson. 8 SENATOR PATERSON: Thank you, Mr. 9 President. If Senator Velella from the corn 10 growing region of the Bronx would yield for a 11 question. 12 ACTING PRESIDENT KUHL: Senator 13 Velella, do you yield? 14 SENATOR VELELLA: Certainly. 15 ACTING PRESIDENT KUHL: Senator 16 yields. 17 SENATOR PATERSON: Senator, why 18 in this legislation are we giving an advantage 19 to these retailers as opposed to any others whom 20 we have in the past restricted from setting a 21 credit card limit where there must be a minimum 22 purchase? 23 SENATOR VELELLA: Well, one of 2572 1 the reasons that I think we should set this 2 minimum is that we don't want to encourage 3 people to come in and buy a small amount of wine 4 on a daily basis or small amounts of spirits on 5 a daily basis putting them on credit cards and 6 getting in over their heads to feed their habit 7 continuously out of a credit card. 8 Secondly, there's been a lot of 9 experience in the industry where stolen credit 10 cards have been brought in and small amounts of 11 liquor have been bought. That doesn't trigger 12 the system of checking with the credit card 13 company for the status of the card as it would a 14 larger sale, so that we're trying to prevent 15 people from coming in and making these small 16 purchases, whether it be because of the fact 17 that that would feed a habit that would be not 18 in the best interests of the community. 19 When we did pass the original 20 bill allowing credit cards part of the debate 21 included the fact that the shop owners 22 voluntarily agreed to set minimum standards on 23 what would be charged. It's only the action of 2573 1 the major credit card companies now in imposing 2 a fine on store owners that has forced us to 3 follow suit with North Carolina and pass this 4 minimum legislation. 5 ACTING PRESIDENT KUHL: Senator 6 Paterson. 7 SENATOR PATERSON: Thank you, Mr. 8 President. If the Senator would continue to 9 yield. 10 SENATOR VELELLA: Yes. 11 ACTING PRESIDENT KUHL: The 12 Senator continues to yield. 13 SENATOR PATERSON: Through you, 14 Mr. President, it's known that in the research 15 and development of the treatment of alcoholism 16 that there is a process that has a lot of 17 different names. Some people call it tipping, 18 where an individual goes into a store and is 19 continually purchasing small amounts of alcohol 20 because in some way they are psyching themselves 21 into believing that it's not that much, and I 22 guess if there was a way to stop it, this would 23 certainly be an attempt at it, but I don't think 2574 1 it works because rather than -- once the 2 individual is using a credit card, once the 3 minimum is raised from say $5 to where they 4 won't be able to spend $5, now they'll have to 5 spend $15, it would be my assumption that what 6 they will do is they will charge $15. No one is 7 going to say that because -- because they 8 already have a credit card, whatever the amount 9 that we have set it at, they'd be likely to 10 charge it and also given the fact that the 11 credit card check for stolen credit cards or 12 phony credit cards starts at a minimum of $50, I 13 just don't understand that there would be a real 14 result in this bill having a positive effect, 15 even though it's a good attempt. 16 My question is, why would we want 17 to set up a system that would probably encourage 18 individuals to spend more money on alcohol when 19 our concern is that they are over-consuming? 20 SENATOR VELELLA: Well, Senator, 21 if I can respond, I would just like to point out 22 that if you and I could agree on the way to 23 handle the problem of alcoholism or drug 2575 1 addiction or cigarette addiction, we would 2 probably be very wealthy men. Reasonable minds 3 will differ on the approach. 4 I've been told by various groups 5 of Alcoholics Anonymous, various people who are 6 concerned about this, that in fact the small 7 purchasing on credit cards or the small purchase 8 availability of making these small purchases 9 will continue to have people be addicted to or 10 be dependent on alcohol. 11 Now, whether that's right or 12 wrong, I'm not qualified to say, but I rest on 13 some of the experts that advised me. Perhaps 14 you may be right, but certainly the larger 15 purchases on the credit cards will cause for a 16 store owner to double check possibly on his 17 own. It's not an automatic checking for a 18 stolen credit card, but at $50, as you indicate, 19 is when the automatic checking of the stolen 20 credit card would go into place, but a $15 21 minimum might prompt the person to question 22 whether or not that is a legitimate credit 23 card. 2576 1 ACTING PRESIDENT KUHL: Senator 2 Paterson. 3 SENATOR PATERSON: Thank you very 4 much, Senator. 5 Mr. President, on the bill. 6 ACTING PRESIDENT KUHL: Senator 7 Paterson, on the bill. 8 SENATOR PATERSON: I think 9 Senator Velella aptly points out that there is a 10 concern by professionals who treat this rampant 11 disease and very serious disease that these 12 small purchases of alcohol are contributing 13 really to what is a major problem in our society 14 today. 15 What I'm suggesting is that this 16 piece of legislation, its result is just to 17 increase the price, and I just cannot imagine a 18 person suffering with this addiction leaving the 19 liquor store and not making the higher purchase 20 price because they think the price is too high. 21 They're already over-consuming. They're already 22 addicted. I think it is the natural order of 23 their process that since all they have to do is 2577 1 just write down a higher number on their own 2 credit card, that it will actually be the effect 3 in a way to create the situation where larger 4 amounts of money are spent on alcohol. 5 I think the real negative to this 6 piece of legislation, as the retailers may see 7 it, is just the fact that a number of these 8 small purchases cause a lot of administrative 9 paperwork and a lot of problems with credit 10 cards, and I understand that, but this would 11 contradict what we have set as a policy for all 12 retailers and to assert the issue of alcoholism 13 as if it's going to be of assistance just based 14 on the fact that what exists right now is in 15 many respects a catalyst for the continuation of 16 the disease that many suffer from, is not really 17 the point. 18 The point is that by passing this 19 piece of legislation, I don't believe that one 20 person that goes into a liquor store will be 21 dissuaded from making the purchase because the 22 price is higher when all they have to do is 23 write it down on a credit card, nor do I think 2578 1 that anybody who is coming into a store with an 2 illegal credit card will be the slightest bit 3 intimidated, particularly if we're suggesting 4 that they're being driven there because of an 5 addiction and an abuse, to not make the 6 purchase. 7 So I just think that the real 8 effect of this bill would be to make it easier 9 for the retailers to give them an advantage over 10 other retailers. I don't think that's fair, and 11 I certainly don't think the use of alcoholism as 12 a subject is going to be, you know, particularly 13 effective in thwarting the thought that we would 14 not want to pass this bill. 15 ACTING PRESIDENT KUHL: The 16 Secretary will read the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll. ) 22 ACTING PRESIDENT KUHL: Announce 23 the results when tabulated. 2579 1 THE SECRETARY: Ayes 56, nays 2 one, Senator Paterson recorded in the negative. 3 ACTING PRESIDENT KUHL: The bill 4 is passed. 5 Secretary will continue to call 6 the controversial calendar but before that, 7 Senator Libous, did you wish to make a request 8 at this point? 9 SENATOR LIBOUS: Thank you, Mr. 10 President. 11 Last Wednesday, March 20th, I was 12 out of the chamber when Senate 2068 had a roll 13 call. Had I been in the chamber -- I was out on 14 legislative business -- I would have asked to be 15 recorded in the affirmative. 16 ACTING PRESIDENT KUHL: Senator 17 Libous, the record will reflect that had you 18 been in the chamber last Wednesday when a roll 19 call on Senate Bill 2046 was called that you 20 would have voted in the affirmative. 21 Secretary will continue to call 22 the controversial calendar. 23 THE SECRETARY: Calendar Number 2580 1 434, by Senator Volker, Senate Print 2445, an 2 act to amend the Civil Practice Law and Rules, 3 in relation to limitations on certain actions 4 against professional engineers. 5 SENATOR PATERSON: Explanation. 6 ACTING PRESIDENT KUHL: Senator 7 Volker, an explanation of Calendar Number 434, 8 Senate Print 2445, has been asked for by the 9 Acting Minority Leader, Senator Paterson. 10 SENATOR SKELOS: Mr. President. 11 ACTING PRESIDENT KUHL: Senator 12 Skelos, why do you rise? 13 SENATOR SKELOS: If we could, 14 with the consent of Senator Volker, lay his bill 15 aside temporarily and return to motions and 16 resolutions. I believe there is a resolution by 17 Senator Bruno, Senator DeFrancisco and Senator 18 Maltese. If we could have Senator DeFrancisco 19 -- have the title read. 20 ACTING PRESIDENT KUHL: The 21 Calendar Number 434 will be laid aside 22 temporarily. We'll return to motions and 23 resolutions, and I'll ask the Secretary to read 2581 1 the title of the privileged resolution by 2 Senator DeFrancisco which is at the desk. 3 THE SECRETARY: By Senator 4 DeFrancisco, Legislative Resolution, honoring 5 Andrew Loia of L. Pearl Palmer Elementary School 6 upon the occasion of his selection as New York 7 State second place winner in the U. S. Savings 8 Bonds 1996 National Student Poster Contest. 9 ACTING PRESIDENT KUHL: Senator 10 Skelos. 11 SENATOR SKELOS: Do you mind if 12 we have the titles read on the three resolu 13 tions. I believe we have some young people here 14 who would like to hear the titles read and some 15 comments made on them. 16 ACTING PRESIDENT KUHL: Secretary 17 will continue to read the titles. Read the 18 titles of the two remaining resolutions at the 19 desk. 20 THE SECRETARY: Legislative 21 resolution honoring Seth Deutchman of Lake 22 Avenue School upon the occasion of his 23 designation as New York State first place winner 2582 1 in the U.S. Savings Bond 1996 National Poster 2 Contest. 3 Also, by Senator Maltese, 4 Legislative Resolution honoring Lawrence Lee of 5 I.S. 73 upon the occasion of his selection as 6 New York State's third place winner in the U. S. 7 Savings Bonds 1996 National Student Poster 8 Contest. 9 ACTING PRESIDENT KUHL: The Chair 10 recognizes Senator DeFrancisco on the 11 resolution. 12 SENATOR DeFRANCISCO: Mr. 13 President, we were trying to time this so all 14 three Senators would be in here at the same time 15 because I know Senator Bruno and Senator Maltese 16 also wanted to say something, but both of them 17 are on business, and it's just impossible to get 18 us here together, so on behalf of both Senator 19 Maltese and our Majority Leader, Senator Bruno, 20 I would like to congratulate the three 21 participants in the U. S. Savings Bond Poster 22 Contest, and basically this was put on by the 23 United States Department of Treasury and each of 2583 1 these individuals did posters and won savings 2 bonds of quite a substantial amount, I might 3 add, and are being honored here by the state 4 Senate for their creativity and their effort in 5 this regard, and on behalf of each of the 6 Senators, I would like to congratulate all of 7 them, especially Andrew Loia, who is from the 8 county of Onondaga, the home of the Syracuse 9 Orange men, who I had to put that in somehow 10 today on the floor, who will be in New Jersey 11 soon along with some of us here, and I want to 12 congratulate each of them for being fine young 13 citizens and for being very successful in what 14 they do, and wish them the best in all of their 15 future endeavors, and the three young gentlemen 16 are standing right in front of us in the 17 gallery. 18 (Applause) 19 ACTING PRESIDENT KUHL: Senator 20 DeFrancisco, the Chair didn't understand you. 21 Were you inviting these three young gentlemen to 22 New Jersey with you? 23 SENATOR DeFRANCISCO: I can get 2584 1 them to New Jersey. Whether I can get tickets 2 for everybody is another story. 3 ACTING PRESIDENT KUHL: Is there 4 any other Senator wishing to speak on the 5 resolutions? Hearing none, the question is on 6 the resolutions. We'll do all three of them at 7 the same time. 8 All in favor say aye. 9 (Response of "Aye.") 10 Opposed nay. 11 (There was no response.) 12 The resolutions are adopted. 13 Seth, Andrew and Lawrence, we 14 appreciate your being with us. Keep up your 15 ingenuity. Keep the good work going on and 16 we'll have bigger rewards for you than just 17 United States Savings Bonds, and thank you for 18 joining us in the state Senate here today. 19 Senator Skelos. 20 SENATOR SKELOS: Mr. President, 21 if we could return to the controversial 22 calendar. 23 ACTING PRESIDENT KUHL: We'll 2585 1 return to the controversial calendar, beginning 2 with Calendar Number 434, by Senator Volker. 3 THE SECRETARY: Calendar Number 4 434, by Senator Volker, Senate Print 2445, in 5 relation to limitations on certain actions 6 against professional engineers. 7 SENATOR VOLKER: Mr. President. 8 ACTING PRESIDENT KUHL: Senator 9 Volker. 10 SENATOR VOLKER: This is a bill 11 that establishes a 7-year statute of limitations 12 on professional -- on personal injury or wrong 13 ful death actions brought against professional 14 engineers, architects, surveyors or construction 15 contractors. 16 The accrual date for this 17 limitation period would be the date of comple 18 tion of the project. The term "completion" or 19 rather the bill also includes a one-year 20 extension of time should the injury or death 21 occur during the seventh year after completion 22 of the project. 23 As we discussed last year on the 2586 1 floor, by the way, another thing is that if the 2 project is -- continues to be under the direct 3 control and possession of the person who 4 developed the project, then this limitation 5 would not apply. In other words, that's a 6 situation where you have somebody who actually 7 may have designed it, the architect or whatever, 8 a contractor, if that person continues to be in 9 direct control and supervision over that proper 10 ty, in that case this statute of limitations 11 wouldn't apply. 12 There is also a provision in this 13 bill which would extend a provision which is now 14 found in medical malpractice, I believe it is, 15 and what's the other -- psychiatry and several 16 other medical people, that would provide that 17 the requirement of a certificate of merit -- and 18 Senator Dollinger and I had a discussion about 19 this last year -- and there are provisions in 20 the bill that would allow a person to move ahead 21 if there was any attempt by the defendant to 22 prevent someone from getting a certificate of 23 merit which, for instance, would require that 2587 1 someone get an engineer or an architect or 2 someone merely to verify that there was some 3 sort of cause of action. 4 This bill, by the way, passed the 5 Senate last year by a vote of 51 to 9, and we - 6 Senator Paterson, would you like to ask any 7 questions? 8 SENATOR PATERSON: Mr. President. 9 ACTING PRESIDENT KUHL: Senator 10 Paterson. 11 SENATOR PATERSON: Thank you, Mr. 12 President. 13 Senator, in the other states that 14 have created the statute of repose, I notice 15 that the people are told that 92 percent of the 16 claims actually involve incidents where the 17 deaths occurred in the first nine years. So I 18 was wondering what is the average time of a 19 statute of repose that has been established in 20 the other states? 21 SENATOR VOLKER: I think that, 22 Senator, you're right, that there are 32 states 23 that have some sort of statute of limitations, 2588 1 and it seems to me that something close to 85 2 percent of the deaths and injuries occur prior 3 to the 7-year -- prior to the time of the 4 extension of seven years and, in fact, one of 5 the reasons for the extra year was that a number 6 of extra claims appeared to have occurred in 7 that seventh year, and that's why there is the 8 -- in effect, the extender which I believe 9 moves it up to somewhere in the 90 percent 10 category. 11 So as I -- as I understand it, 12 this bill should cover on an average for those 13 states that have a statute of limitations, that 14 this bill would cover about 92 percent or better 15 of the cases that have been reported; that is, 16 death or injury cases that are claimed for 17 professional engineers, architects, and so 18 forth. There are states, as you say, that have 19 longer statutes of limitations. I think there 20 are a couple that have even shorter statutes but 21 it depends, of course, as you know, on the 22 language of how you are able to bring the 23 action. 2589 1 One of the things that I did 2 mention here that is not, I do not believe, in a 3 number of statutes across the country is that if 4 you are in direct control of the property; that 5 is, if you're the owner or whatever of the 6 property, this would not apply because you are 7 not in direct -- even though you designed it or 8 you're the architect or whatever, the old rules 9 would still apply because you would not be able 10 to assert this as an affirmative defense. 11 ACTING PRESIDENT KUHL: Senator 12 Paterson. 13 SENATOR PATERSON: This applies 14 specifically to the design of the architect. 15 SENATOR VOLKER: Right. 16 SENATOR PATERSON: Not the owner 17 of the property. 18 SENATOR VOLKER: Exactly. It's 19 conceivable you could be the architect or the 20 engineer of your own property and you could be 21 in control of it long after seven years or 20 22 years or 30 years. As you know, there are some 23 famous people that that's occurred not on a 2590 1 regular basis, but there are a number of people, 2 so those people would not be covered by this 3 statute. 4 SENATOR PATERSON: Thank you, 5 Senator. 6 Mr. President, if the Senator 7 would continue to yield. 8 ACTING PRESIDENT KUHL: Senator 9 Volker, do you continue to yield? 10 SENATOR VOLKER: Sure. 11 ACTING PRESIDENT KUHL: Senator 12 continues to yield. 13 SENATOR PATERSON: Senator, the 14 construction of the statute of repose in this 15 particular case as it's applied, is that the 16 statute begins to run at the signing of the 17 certificate of occupancy, so at the point that 18 the building is actually ready there would be a 19 7-year time period for these claims and then we 20 kind of throw in the extra year because, as you 21 pointed out, there seem to be a number of claims 22 coming up after the first seven years. 23 In many consumer injuries, the 2591 1 statute of limitations actually starts to run at 2 the point of the injury which could be years 3 later. It's really saying that the person did 4 not know of the defect and, therefore, the 5 statute runs at the point of the time that the 6 person should know of the defect which is, of 7 course, when the injury actually takes place. 8 In your opinion, what disting 9 uishes these types of situations involving the 10 architects and building construction from the 11 regular consumer procedure that's followed in so 12 many other cases with appliances and other items 13 with which consumers come in contact? 14 SENATOR VOLKER: Well, Senator, 15 as I think you're aware that there are very, 16 very infrequently -- there is a design defect or 17 something that -- something wrong with a 18 building or a bridge or whatever it is. The 19 defects generally show up virtually immediately 20 or are under the -- are under the aegis of 21 someone else who assumes that project. 22 I think that the difference here 23 is, and I think the problem that we are facing 2592 1 here is that most of the -- virtually all the 2 time, in fact, there are almost no claims that 3 have been maintained against architects, 4 engineers, and so forth, other than the fact 5 that they are brought into these suits because 6 some sort of defect has occurred which probably 7 -- which virtually in every case is not under 8 their direct control, and the -- as you know, 9 the problem with these cases is that the cost of 10 insurance has escalated dramatically, the cost 11 of these projects, and has created a huge 12 problem for the people who do the designing, the 13 engineering work, and so forth, and so what 14 we're -- what we're doing here is that we're 15 saying that there is a remedy for someone that 16 should not be ad infinitum against those people 17 who merely do the design work or the surveying 18 or whatever and are put in a situation where 19 they can never avoid the possibility of some 20 lawsuit down the line when they may have 21 absolutely no contact or no -- no liability at 22 all but are drawn in simply because of the fact 23 that there's nothing that says that there's any 2593 1 kind of termination. They're in a position 2 where they have no connection with the 3 property. Someone else owns the property, 4 someone else has been -- has been dealing with 5 that property for a long time, and that any 6 design defect or anything that was wrong with 7 the property as a result of what they have done 8 should long since have been determined to -- to 9 have been -- to have been involved. 10 So I think the difference is here 11 that you're dealing with professional people who 12 have been in a position to do a job and have 13 done the job and a long period of time has 14 occurred in which no kind of liability has been 15 determined and now people who have been 16 controlling the building, although they're being 17 sued also, the people who are very remote from 18 what is occurring in these lawsuits are drawn in 19 also, and the cost to the public for insurance 20 is huge. 21 I think we just don't -- I think 22 we have trouble realizing how much this really 23 does cost the public, and I'm not talking about 2594 1 the individuals involved. I'm talking about the 2 public-at-large, because a good deal of the 3 liability problems that we're seeing occurs 4 because of situations like this where 99 and 5 99/100ths percent of the time there's absolutely 6 no liability or even hint of liability but 7 they're merely drawn into the lawsuits because 8 they're not excluded from being in the 9 lawsuits. 10 ACTING PRESIDENT KUHL: Senator 11 Paterson. 12 SENATOR PATERSON: Thank you, Mr. 13 President. 14 Mr. President, I've advised 15 colleagues in this chamber from time to time 16 against legislating for the exception, and so I 17 don't want to turn the table now and suggest 18 that we ought to legislate because of the 19 exception. But there are 8 percent of the 20 claims that the industry admits are coming after 21 this, say, 7- to 9-year period for which we are 22 legislating and in those 8 percent of the cases, 23 I'm concerned about the courtroom door being 2595 1 closed to what may be some of the valid claims. 2 If I might, I want to present an 3 example that I think came up in this discussion 4 over the past couple years, had to do with a 5 building that had a firewall running up through 6 and to the top of the building except that the 7 firewall did not move to the top floor. There 8 was a wall there, but nobody could see that it 9 wouldn't protect against fire. When a fire 10 broke out on the top floors of the building, it 11 was prevented by the firewalls on the floors 12 immediately below, but it spread over the top on 13 this top floor that offered no protection. 14 Because of that, it was considered that the fire 15 spread throughout the building. 16 This would have been, I would 17 suppose, a defect in the architecture of the 18 actual building, but because it took place after 19 the ten years would be barred by the statute of 20 repose. 21 My question is, aren't these the 22 type of cases that we will find replicated even 23 though they are few, in comparison to the claims 2596 1 in which we, as a result of passing this 2 legislation, have denied the victim the 3 opportunity to be a plaintiff in a civil suit 4 against all of those who were involved in the 5 negligence? 6 SENATOR VOLKER: Senator, the - 7 first of all, the eight percent that we're 8 talking about, by no means necessarily means the 9 fact that those claims were in any way valid. 10 What we're talking about here, as you know, is 11 the ability after that time to -- to make the 12 claim. That's all. 13 The example you give, I suppose, 14 could be considered to be an example of what you 15 just said. Of course, you have to take into 16 consideration that the -- the interesting 17 question is shouldn't that have been detected 18 long before that, and otherwise interesting is 19 to whether that really was the designed defect 20 or not, but whether the owner of the building 21 may have added something on or something of that 22 necessity, but you make a point, I think, that 23 the lawsuit, by the way, in that case, as you 2597 1 know, would be against the building owner if 2 that were such, and an action could still be 3 maintained against the owner and/or the lessee 4 of the building because you still would be in a 5 position where you should have known that that 6 kind of a situation would occur, and so you 7 would have someone to bring an action against 8 because there's always the possibility, as I 9 say, that in that kind of a case that the owner 10 was as much responsible for that occurring as 11 the person who did the building anyways. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: Thank you, Mr. 15 President, and thank Senator Volker for his kind 16 responses. 17 Mr. President, on the bill. 18 ACTING PRESIDENT KUHL: Senator 19 Paterson, on the bill. 20 SENATOR PATERSON: I was citing 21 the statistics of V.O. Schinnerer who in 1987 22 conducted a study. They are the largest 23 insurers of the design professionals. An 2598 1 updated survey in 1994 shows that 95 percent of 2 those who received claims -- because the way I 3 phrased it before -- in other words, received 4 damages -- 95 percent of those who received 5 damages received their damages within nine years 6 of the construction of the building. 7 What I think I certainly implied 8 was that they would adjust the claims. 9 ACTING PRESIDENT KUHL: Excuse 10 me, Senator Paterson. 11 Senator Padavan, why do you 12 rise? 13 SENATOR PADAVAN: Would Senator 14 Paterson yield to a question? 15 ACTING PRESIDENT KUHL: Senator 16 Paterson, do you yield to Senator Padavan? 17 SENATOR PADAVAN: Senator, the 18 study you referred to, is that a national 19 study? 20 SENATOR PATERSON: Yes, yes. 21 SENATOR PADAVAN: That would 22 include all the states, many of which do not 23 have a building code? 2599 1 SENATOR PATERSON: Yes, it would. 2 SENATOR PADAVAN: Okay. Has any 3 study been done in New York State where we have 4 a state building code and in the city of New 5 York, an even more strict code involving fire 6 safety as an example? 7 SENATOR PATERSON: I think the 8 architects could probably answer the question 9 better than I could, Senator, but I don't know 10 of such a study. 11 SENATOR PADAVAN: All right. 12 Thank you, Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Paterson, the floor is still yours. 15 SENATOR PATERSON: I think what 16 I'm trying to say is that perhaps the figure 17 might be lower, if Senator Padavan is correct, 18 that the proper code enforcement might bring 19 down the number of claims, but what we are just 20 trying to put on the record is that there are 21 individuals who have recovered after the period 22 of time that the statute of repose would expire, 23 and what we're just saying is that the usual 2600 1 procedure of tolling the statute of limitations 2 until such time as the injury occurs and then 3 using the statute period to determine whether or 4 not the injured party wants to bring a claim is 5 probably the one that we would best prefer 6 because of the fact that there are individuals 7 who have received damages and they weren't just 8 identifiable exceptions as in a scintilla, but a 9 large representative group of individuals who 10 were injured due to some misfeasance of conduct 11 in the construction of the building, either 12 through the architecture or some other defect. 13 So we're just pointing out that 14 it has happened that there is a number that may 15 not be significant, but it still is a 16 representative amount of people who the 17 courtroom door would be closed if we passed this 18 law. 19 ACTING PRESIDENT KUHL: Senator 20 Volker. 21 SENATOR VOLKER: Mr. President, 22 just for the record and since we are talking 23 about for the record here, I'm just looking at 2601 1 -- New York State is the only state in the 2 Union which has never had a statute of repose 3 for third-party suits. 47 states currently have 4 statutes of repose or limitation of varying 5 lengths with completion of the projects serving 6 as the actual date for the cause of action. Two 7 other states, by the way, have had their 8 statutes declared unconstitutional, Ohio and 9 Vermont, and are appealing or addressing it 10 legislatively. I just wanted to point that out. 11 The other item I might mention, 12 and we were talking about numbers and the 13 seven-year period plus one year was selected, by 14 the way, because of insurance claims against 15 design professionals, which is preferred - 16 prepared by the American Institute of 17 Architects. It was first done in 1987 and 18 updated in 1995, and they found that by seven 19 years from substantial completion, 91.67 percent 20 of claims resulting in indemnity payments had 21 been made and by ten years from substantial 22 completion, there were almost no claims. In 23 fact, apparently they had found none that had 2602 1 actually surfaced prior to 1995. 2 ACTING PRESIDENT KUHL: The Chair 3 recognizes Senator Abate. 4 SENATOR ABATE: Yes. I would 5 like to bring -- on the bill. I would like to 6 bring to the attention of this body a memo that 7 was drafted by the Association of the Bar of the 8 city of New York which made certain 9 recommendations which they felt would improve 10 this proposed legislation. 11 They are not opposed per se to a 12 statute of repose, and they looked and studied 13 the existing law in other states, and they came 14 to the conclusion, while there is no one right 15 limitation period because the other states have 16 adopted anywhere from five to fifteen years as a 17 statute of repose, they felt that the seven-year 18 plus one year grace period was too short, and 19 they adopted a nine-year plus one year, a total 20 of ten-year statute of repose, and the reason I 21 am voting against this legislation -- and I hope 22 Senator Volker in the future will consider a 23 change -- is to extend the seven-year to 2603 1 somewhere between the ten- to fifteen-year to 2 take into consideration maybe ten years is 3 sufficient. Maybe twelve years is better. To 4 take into consideration what Senator Paterson 5 said, there is a body of plaintiffs that could 6 not seek remedy when the statute of repose is as 7 short as seven years, and the Bar Association of 8 the city of New York did a study, looked at this 9 carefully, and so I hope in the future to be 10 able to support this if the statute of repose is 11 lengthened beyond the seven and one and thereby 12 provide a better balance of addressing the needs 13 of the potential plaintiffs and those of the 14 potential defendants in these cases. 15 So if this bill comes to the 16 floor again, I hope there could be a compromise 17 that could be rendered, and I think it would 18 receive more support from both sides of the 19 aisle. 20 ACTING PRESIDENT KUHL: The 21 Secretary will read the last section. 22 THE SECRETARY: Section 6. This 23 act shall take effect on the first day of 2604 1 January. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 ACTING PRESIDENT KUHL: Senator 6 DeFrancisco to explain his vote. 7 SENATOR DeFRANCISCO: I'm going 8 to vote in the negative again this year, and I 9 just want to put on the record my reasons why. 10 I have no problem with the concept of the 11 statute of repose, but the concept of this 12 certificate of merit, I think is a bad one. I 13 know we have it for doctors and podiatrists, and 14 I think we should remove that requirement in 15 those litigated matters as well. 16 Anybody who's practiced law 17 recognizes that the certificate of merit simply 18 is another step in the legal process that 19 requires somebody to come forward and say that 20 there's merit to the claim before a lawsuit can 21 be brought. There is no plaintiff who is going 22 to bring a lawsuit that could cost substantial 23 money and time without having an opinion from 2605 1 somebody at some point that this lawsuit has 2 some merit, and to require another step for only 3 certain preferred classes of individuals in 4 order to find redress in the court, I think is 5 wrong, whether it's doctors, architects or for 6 that matter, lawyers. So I think that the 7 certificate of merit concept is a wrong one, and 8 I'll vote no. 9 ACTING PRESIDENT KUHL: Senator 10 DeFrancisco will be recorded in the negative. 11 Announce the results. 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 434 are Senators 14 Abate, Babbush, Connor, DeFrancisco, Espada, 15 Gold, Lachman, Markowitz, Onorato, Seabrook, 16 Stavisky and Waldon. Also, Senator Paterson. 17 Also, Senator Smith. Ayes 43, nays 14 -- ayes 18 42, nays 14. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 The Secretary will continue to 22 call the controversial calendar. 23 THE SECRETARY: Calendar Number 2606 1 513, by Senator Padavan, 6433, an act to amend 2 Chapter 399 of the Laws of 1995, amending the 3 Education Law, relating to making community 4 school board members ineligible for election or 5 appointment to district offices in certain 6 cases. 7 ACTING PRESIDENT KUHL: Senator 8 Padavan, an explanation of Calendar Number 513 9 has been asked for by Senator Paterson. 10 SENATOR PADAVAN: Thank you, Mr. 11 President. 12 In 1969, the state Legislature 13 dealt with a very complex, very important issue 14 known as decentralization of the school system 15 within the city of New York. It went into 16 effect on July 1st of 1970. Part of that body 17 of law provided certain powers for the 18 chancellor of the city of New York with regard 19 to the newly created community school boards. 20 Such authority as covered by Section 2590 (l) 21 allowed for - 22 SENATOR GOLD: Mr. President. 23 SENATOR PADAVAN: Please, 2607 1 Senator, let me explain the bill, as Senator 2 Paterson asked for. 3 ACTING PRESIDENT KUHL: Senator 4 Gold, why do you rise? 5 SENATOR GOLD: Could I just ask 6 one procedural question, Senator Padavan, 7 nothing - 8 SENATOR PADAVAN: All right. 9 SENATOR GOLD: Mr. President, I 10 heard talk today about an amendment -- or 11 chapter amendment on this bill, and obviously 12 from the point of view of some people, if there 13 is such a chapter, it might affect thinking, and 14 I just thought maybe before getting into the 15 merits of this bill - 16 SENATOR PADAVAN: I would like to 17 address that, Senator, at the appropriate time. 18 SENATOR GOLD: -- if you don't 19 mind - 20 SENATOR PADAVAN: Sure. 21 SENATOR GOLD: When? 22 SENATOR PADAVAN: I said before I 23 sit down, I will address that issue. 2608 1 SENATOR GOLD: Oh. 2 ACTING PRESIDENT KUHL: Senator 3 Padavan, on the bill. 4 SENATOR PADAVAN: As I started to 5 say, Section 2590 (l) of the decentralization 6 law gave certain powers to the chancellor as it 7 related to these newly created community school 8 boards. Among those powers was the ability to 9 suspend individuals or school boards for 10 specific reasons as articulated in the statute. 11 The situation we are presented 12 with at this moment in time, 26 years later, is 13 that we have an election scheduled for our 14 community school boards on May 7th. Four of 15 those school boards have been superseded or 16 suspended and trustees appointed by the 17 chancellor to deal with the problems within 18 those community school districts. Problems that 19 range from issues of corruption to mismanagement 20 have, frankly, an adverse impact on the 21 education of the children in those districts. 22 What we are trying to prevent is 23 a situation where on May 7th, many of the same 2609 1 people on those school boards will run for 2 re-election, and the suspensions that are 3 currently in effect and the trustees have been 4 appointed will become null and void and those 5 boards will be sanitized by virtue of an 6 election. 7 The original recommendation was 8 to delay the community school board elections 9 for a year to deal with that problem. In the 10 minds of many, myself included, that was not the 11 right thing to do, because by and large, our 12 community school boards work very effectively, 13 made up of volunteers, people who are unpaid, 14 dedicated to the education of the children in 15 their districts. It seemed to us that such 16 individuals should not be denied the opportunity 17 of either seeking election, and in some cases, 18 people wishing to retire having put in what they 19 considered good service and to be replaced by 20 others; in other words, allow the process to 21 continue. 22 At the same time, it was felt 23 that those boards and individuals who are 2610 1 currently under the suspension or supersession 2 by the chancellor should not continue, at least 3 not for a year, and so the bill before you 4 provides for that mechanism. It allows the 5 election to go forward. It maintains the 6 suspension on those boards. It allows the 7 trustees to continue their work. It allows for 8 an appeal process within 15 days thereafter. It 9 puts a time limit of one year on the suspension. 10 It allows the chancellor to lift the suspension 11 if reasons are there to do so. An example might 12 be the entire board is new and in his view, the 13 situation has changed -- whatever. It's a 14 balanced approach to an existing problem. It 15 provides the necessary safeguards. It allows 16 the elections to go forward. It's consistent 17 with the law of decentralization, and I think 18 you should also know who it's supported by. 19 It's supported by the Board of 20 Education of the city of New York, the boards of 21 the five big cities, the state Commissioner of 22 Education, the chancellor, the African-American 23 Leadership Summit, the UFT and the Council of 2611 1 Supervisors. 2 Now, with regard to the issue 3 raised by Senator Gold, a suggestion was made by 4 certain members of this house, and I presume 5 elsewhere, that there ought to be a sunset 6 provision. Such a chapter amendment is being 7 drawn and will be before this house and the 8 Assembly within, I assume some time this week, 9 if not within a day or so. So those of you who 10 have a concern in that regard will have an 11 opportunity to vote for that chapter amendment 12 which will provide for a three-year sunset. 13 ACTING PRESIDENT KUHL: Senator 14 Paterson, any further - 15 SENATOR PATERSON: No, Mr. 16 President. Asked and answered. What I was 17 going to ask was exactly what Senator Gold was 18 asking about the chapter amendment which would 19 have made it a little more comfortable for 20 people to -- to vote for the bill. 21 ACTING PRESIDENT KUHL: The Chair 22 recognizes Senator Stavisky. 23 SENATOR PATERSON: Well, Mr. 2612 1 President - 2 ACTING PRESIDENT KUHL: Senator 3 Paterson. 4 SENATOR PATERSON: That's all 5 right. I'll tell him off the record. 6 ACTING PRESIDENT KUHL: Senator 7 Stavisky. 8 SENATOR STAVISKY: Would Senator 9 Padavan yield for a few questions? 10 SENATOR PADAVAN: Yes. 11 ACTING PRESIDENT KUHL: The 12 Senator yields. 13 SENATOR STAVISKY: Senator 14 Padavan, can you cite any other example under 15 law in New York State where a dually-elected 16 official may be removed by an appointed official 17 without charges being proven and without due 18 process being guaranteed? 19 SENATOR PADAVAN: The state 20 Commissioner of Education can take action 21 against school boards anywhere in this state 22 under current law, and that same authority was 23 given to the chancellor and it's been on the 2613 1 books since 1970. As I recall, Senator 2 Stavisky, you were chairman of the Education 3 Committee in the Assembly for a number of years. 4 SENATOR STAVISKY: Not when 5 decentralization - 6 SENATOR PADAVAN: That's not my 7 point. That's not my point, and not any period 8 of time during those years where you chaired 9 that committee or, to my knowledge, in this 10 house have you introduced legislation to amend 11 2590 (l), to take away the authority given to 12 the chancellor. Now, maybe that's something 13 this body ought to consider, but you certainly 14 haven't proposed it, to my knowledge, in your 15 former capacity or as a member of this house, 16 nor has anyone else that I'm aware of, but to 17 answer your first question, the state 18 Commissioner of Education has that authority. 19 SENATOR STAVISKY: Senator 20 Padavan, you are completely incorrect on my 21 record. I introduced legislation to remove this 22 power granted to this appointed official, the 23 commissioner -- the chancellor of the New York 2614 1 City school system because I believed that a 2 chancellor should not have the power to remove 3 elected members. 4 Your school district and one that 5 I have represented also has been superseded by 6 previous chancellors because they did the 7 outrageous thing of declaring a snow day when 8 children or the teachers were unable to reach 9 the schools, and I thought it was wrong. I 10 cited that to former Chancellor Macchiarola, and 11 I did introduce legislation which I will be 12 happy to furnish to you if you would care to 13 read it. 14 Now, my question is this: Can 15 you remove an elected member of this Legislature 16 under the ground rules spelled out in the 17 chancellor's existing power, or would you need a 18 conviction on a violation of a felony before 19 that is done? Could a member of this house be 20 removed on the basis of an allegation? 21 SENATOR PADAVAN: Is that a 22 question? 23 SENATOR STAVISKY: Yes. 2615 1 SENATOR PADAVAN: Senator, we sit 2 in this house by virtue of the state Constitu 3 tion. We're created in that -- within the 4 framework of that Constitution. Decentraliza 5 tion and the powers of the commissioner are by 6 statute. Therefore, to draw an analogy between 7 a constitutionally created body, namely this 8 Senate, and a community school board created in 9 1970 within the framework of that law and the 10 authorities given to the chancellor at that time 11 -- and perhaps you did introduce a bill but I'm 12 unaware of any such bill passing the Assembly 13 during your tenure as chairman of the Education 14 Committee to remove those powers from the 15 chancellor, and I'm aware of the snow day 16 issue. 17 You may be aware of a bill that I 18 passed in this house year after year allowing 19 community school boards to have that prerogative 20 as it relates to snow days. In answer to your 21 question, again, the state Commissioner of 22 Education has this administrative power over 23 school boards. 2616 1 SENATOR STAVISKY: Senator 2 Padavan, no member of this house would be 3 removed in the absence of a demonstrated 4 violation of law, a serious demonstrated 5 violation of law, a felony, and it would be 6 unwise and unreasonable to have a member of this 7 house or any other elected official removed on 8 the basis of allegation. 9 Senator Padavan, what due process 10 is guaranteed to the community school board 11 members who are superseded, suspended or 12 removed? 13 SENATOR PADAVAN: I would be glad 14 to share that with you, Senator, and I'm 15 surprised that you asked because I think you 16 know the answer. It's rhetorical on your part. 17 First, they have the right to 18 appeal within 15 days to the Board of Education 19 of the city of New York, any ruling by the 20 chancellor that would relate to this issue. 21 Secondly, as is the case right 22 now, they could go into any court of competent 23 jurisdiction. As I recall, one of the school 2617 1 boards, perhaps one of the members in that 2 particular part of the city can speak to it with 3 more clarity, but one of the school boards is in 4 court on that issue. So, therefore, 5 administratively and judicially, there are ways 6 for a community school board to deal with this 7 particular issue should they choose to. 8 ACTING PRESIDENT KUHL: Senator 9 Stavisky. 10 SENATOR STAVISKY: In view of 11 that question, if Senator Padavan would yield - 12 ACTING PRESIDENT KUHL: Senator 13 Padavan, do you yield? 14 SENATOR PADAVAN: Yes. 15 ACTING PRESIDENT KUHL: The 16 Senator yields. 17 SENATOR STAVISKY: Shouldn't that 18 be prior to the suspension, supersession or 19 removal? Shouldn't there be a requirement of 20 due process and of proof that a serious 21 violation of law occurred? What proof of a 22 serious violation of law is needed in order to 23 suspend, supersede or remove under the present 2618 1 law or the continuation in this form before us? 2 SENATOR PADAVAN: First, as you 3 know, the chancellor sits by virtue of having 4 been placed in that position by the Board of 5 Education. If any chancellor were to use his 6 powers in a manner that was inappropriate, in a 7 fashion that was both destructive, or as I think 8 you tried to put it, totally outrageous, then 9 the Board of Education could step in on its own 10 and take action in one or more ways, one of 11 them, obviously removing the chancellor, but the 12 overriding issue here is that we're dealing with 13 the education of children. We're dealing with 14 community school boards who have an important 15 responsibility. We're dealing with a Board of 16 Education and a chancellor that has even a more 17 important responsibility, and the crafters of 18 decentralization felt there had to be those 19 safeguards when it relates to children within 20 the framework of that law, and so they provided 21 for us something that's been in existence for 26 22 years, a methodology for the chancellor to step 23 in when he or she feels it's necessary to take 2619 1 appropriate action when it relates to the 2 education and the well-being of children in the 3 Board of Education in the city of New York. If 4 we want to take that power away, then it's 5 something we can do, but this particular bill 6 deals with an existing situation that must be 7 addressed by May 7th and in a fashion that I 8 think provides for a balance, due process and is 9 most equitable in my view. 10 There are major differences when 11 we talk about education and the powers we give 12 appointed individuals such as the chancellor as 13 opposed to anything else we might consider. We 14 give those same powers to the state Commissioner 15 of Education, and I'm sure if we wanted to go 16 through the body of law that governs this state, 17 we would find other examples. 18 ACTING PRESIDENT KUHL: Senator 19 Stavisky. 20 SENATOR STAVISKY: On the bill. 21 ACTING PRESIDENT KUHL: Senator 22 Stavisky, on the bill. 23 SENATOR STAVISKY: Senator 2620 1 Padavan and I have a basic disagreement. Before 2 an action is taken, there should be some 3 demonstrable proof. No demonstrable proof is 4 required. Before an action is taken, there 5 should be due process, not after the action is 6 taken but before. Maybe there should be a 7 hearing. Maybe it should be out in the open, in 8 public, but there has to be a way of separating 9 the whim and will of a chancellor, regardless of 10 the academic credentials, from all standards of 11 fairness, and I think standards of fairness have 12 to be observed by the Legislature of the state 13 and by an educational system where I assure you, 14 Senator Padavan, every advocacy group in the 15 field of education relies on the same excuse. 16 "We're doing it in the best interests of the 17 children." Have you ever seen the legislative 18 agendas and the lobbying materials submitted by 19 the Central Board of Education, the community 20 school boards, the chancellor, the 21 superintendents' association, the teachers, the 22 supervisors? Very often they contradict each 23 other with remedies, and they are all doing it 2621 1 to protect the best interests of the children. 2 I think they can't all be 3 protecting the best interests of the children if 4 they regularly contradict each other, and we 5 would not wish to be subject to that kind of 6 non-proof. We would not wish to be subject to 7 that kind of lack of due process before the ax 8 falls. It's bad enough that the powers already 9 exist, but to extend this flawed concept to new 10 elections about to be held belies all rational 11 consideration. 12 How do you know who's going to be 13 elected? Will the new boards be prevented from 14 taking their place and seeking their positions 15 if the new board members have never been charged 16 with anything? What will happen if thoroughly 17 clean board members are chosen and they cannot 18 function in the absence of a quorum? There may 19 not be five members who are able to vote and 20 make decisions. What do we do to the education 21 of the elementary and junior high school pupils 22 when we entrust to one person a chancellor who 23 may have decent motives but who may be abusing 2622 1 the power? 2 You would not wish to have that 3 power as the first line of action taken against 4 your elected boards of education. I can hear 5 the complaints that would come from all parts of 6 the state if somebody suggested that this 7 haphazard, non-proven series of allegations 8 would be sufficient to remove your Board of 9 Education members, your local school board 10 members after they have been elected. You would 11 be saying denial of home rule. You will be 12 saying it's unfair. 13 We have had members of 14 legislative bodies and we have had mayors who 15 have served in their offices after they have 16 been convicted. We've had cases of members of 17 this house who have continued to serve sometimes 18 in another legislative body after they have been 19 convicted of felonies. We have had a mayor of 20 another city able to serve while he was spending 21 the election in jail behind bars. That's 22 wrong. It's wrong to have crooks in charge of 23 community school boards and it's wrong to have 2623 1 legislation which doesn't understand fairness 2 and decency and due process masquerading as the 3 law of New York State. 4 If you know the background under 5 which decentralization was accomplished, compet 6 ing groups descended upon the Legislature. 7 Members of the Legislature couldn't decide 8 whether they wanted community control or central 9 control. Different advocacy groups argued for 10 different remedies, and in order to get out from 11 under, the Legislature adopted a so-called 12 compromised decentralization law which includes 13 some unreasonable and flawed provisions, such as 14 the one we're now discussing. 15 I don't want to perpetuate it. I 16 don't want to make it worse. I don't want to 17 have a prior decision affecting a newly-elected 18 board for an entire year; and by the way, I have 19 reason to believe that the chancellor is not 20 going to stop with the removal or suspension of 21 four boards, that he has in his agenda the 22 desire to suspend other boards -- other 23 community school boards which may be in some of 2624 1 your districts, ladies and gentlemen. I think 2 that is too much power. Rudy Crew may be a fine 3 chancellor. The power is not an appropriate one 4 for any appointed official to remove elected 5 school board members. 6 And for these reasons and others, 7 I would be voting against the bill, and I hope 8 there will be some who take the same stand. The 9 fact that it will sunset doesn't mean that a 10 flawed system will go out of existence. Sunsets 11 have been extended. We've had multiple 12 sunsets. We have had sunset upon sunset upon 13 sunset reconsidered and extended, and I honestly 14 believe we will be making a mistake if we go to 15 this unfair and flawed piece of legislation. 16 ACTING PRESIDENT KUHL: The Chair 17 recognizes Senator Montgomery. 18 SENATOR MONTGOMERY: Thank you, 19 Mr. President. 20 I just want to, first of all, 21 compliment and thank Senator Padavan for 22 bringing this legislation to the floor, and it's 23 unfortunate, I usually am certainly in agreement 2625 1 with Senator Stavisky because I consider him our 2 guru on education, but I must disagree with him 3 on this particular issue. 4 I have two of those districts 5 that have already been suspended in my Senate 6 District, Mr. President, and one of those 7 districts is one of the largest, if not the 8 largest in the City, has the largest number of 9 children and both of those have had a very long 10 history of trouble, not only in terms of the 11 school board's dysfunctioning, but because they 12 have had a very long history of school failure 13 for children. 14 One of those schools -- one of 15 those districts have three surschools, which 16 means that the Commissioner of Education of the 17 state -- the state commissioner and the Board of 18 Regents has been evaluating those schools over a 19 period of time and in the last ten years, they 20 have continued to decline in the level of 21 performance of the students in those schools 22 despite the fact that the commissioner has gone 23 in with a team of experts to work with the 2626 1 principal, with the teachers, with the people in 2 the district. Those schools have continued to 3 fail. So something is clearly wrong, and we 4 have three of those in one district. 5 I note that while we point out 6 that some of us in the Legislature are not 7 supporting this -- this bill and we're very 8 concerned about superseding an elected board, I 9 want to note for your record that the community, 10 the parents, the educators, the teachers in the 11 schools, the administrators in the schools, the 12 Board of Ed', the chancellor, the -- even some 13 community school board members themselves, in 14 addition to the state Commissioner of Education, 15 are definitively in support of this measure. 16 And why are they in support of this measure? 17 Because the parents of the children in those 18 schools understand what it means to have 19 children on an ongoing basis, year in and year 20 out, be involved in a system that fails them, 21 and there is nothing more heartbreaking than to 22 see 12-year-olds and 13-year-olds the size of 23 men in this room who are struggling with -- with 2627 1 elementary readers. 2 If you have ever seen that, 3 ladies and gentlemen, it will make you 4 understand why, of all the things that we do 5 today, this is a significant thing and that we 6 should not -- we should not be satisfied at all 7 with the system. 8 ACTING PRESIDENT KUHL: Excuse 9 me, Senator Montgomery. 10 Senator Mendez, why do you rise? 11 SENATOR MENDEZ: Would the 12 Senator yield for a question? 13 ACTING PRESIDENT KUHL: Senator 14 Montgomery, do you yield to a question from 15 Senator Mendez? 16 SENATOR MONTGOMERY: Yes. 17 ACTING PRESIDENT KUHL: The 18 Senator yields. 19 SENATOR MENDEZ: You stated that 20 parents in that school in your district are 21 very - 22 SENATOR MONTGOMERY: Supportive. 23 SENATOR MENDEZ: Because they see 2628 1 that year after year their children are learning 2 and are struggling with -- with primary 3 readers. Are you implying that the board in 4 that district that has been suspended is the one 5 that has to be blamed for the lack of 6 achievement of the kids in that school 7 district? 8 SENATOR MONTGOMERY: Senator 9 Mendez, let me just answer your question by 10 saying this: That there must be someone in that 11 system who is responsible for making it work, 12 and that in my mind is the chancellor and so, 13 yes, we should empower the chancellor to move in 14 any school in that system, in any district in 15 that system and take whatever actions are 16 necessary to change that situation, and what I'm 17 supporting today is this legislation which 18 allows the chancellor to continue a board 19 suspension while he hopefully is able to make 20 some changes, some significant changes and 21 maintain the stability in that district. 22 So, yes, I support the 23 chancellor's being able to do that. 2629 1 SENATOR MENDEZ: The question 2 was - 3 ACTING PRESIDENT KUHL: Senator 4 Mendez, are you asking Senator Montgomery to 5 continue to yield? 6 SENATOR MENDEZ: Yes. 7 ACTING PRESIDENT KUHL: Senator 8 Montgomery, do you continue to yield? 9 SENATOR MONTGOMERY: I will 10 yield. 11 ACTING PRESIDENT KUHL: The 12 Senator yields. 13 SENATOR MENDEZ: The question was 14 because those 12-year-olds are not performing 15 academically, let's say in the area of reading, 16 at least at grade levels, if you say that the 17 local Board of Education is responsible for - 18 for the lack of achievement of those 19 12-year-olds, are the members the deciders of 20 the curriculum? Are the members of the board 21 the ones that are implementing that curriculum 22 in the classroom? This is what I'm saying to 23 you. So they have to be responsible for the 2630 1 education of the children because they do 2 establish policy, not implementation of policy. 3 Thank you. 4 SENATOR MONTGOMERY: Absolutely. 5 Let me just say to you, Senator Mendez, that one 6 of the other reasons why I'm supporting this is 7 that Chancellor Crew, along with Chancellor 8 Cortines, along with Chancellor -- the 9 chancellor before -- Fernandez, have all -- have 10 all said very clearly that the standard for 11 measuring the performance of community school 12 boards needs to be raised to the level of 13 educational performance and outcome. 14 So while we have traditionally 15 measured them based on malfeasance and criminal 16 activity, I think this brings the issue of 17 educational standards into the formula for 18 measuring and determining whether or not a 19 community school board should continue, and I 20 support that, and I believe that we should use 21 that standard for every part of the system and, 22 yes, Senator Mendez, you are correct. This is 23 only one -- one small part of the beginning to 2631 1 improve that system, but I think it is an 2 important one, and furthermore, I am all in 3 favor of the chancellor's role being 4 strengthened permanently. I don't think this 5 should sunset. I think that we should just 6 accept the fact that without someone in that 7 system who is a strong leader committed to the 8 system, working with the power and authority to 9 make decisions when it's not working as to the 10 consequences for it not working, then we are 11 failing our children. 12 So, Mr. President, I am very much 13 in favor of this legislation. It is timely. I 14 think -- I hope that my colleagues will 15 certainly vote for it, and I am applauding the 16 chancellor for -- at this point in time in the 17 history of education in New York City for saying 18 very clearly, very succinctly without 19 equivocation that educational standards is the 20 measure and nothing less. 21 Thank you. 22 ACTING PRESIDENT KUHL: The Chair 23 recognizes Senator Espada. 2632 1 SENATOR ESPADA: Thank you, Mr. 2 President. 3 There has existed and continues 4 to exist a state of emergency in our school 5 system. In that context, this bill is no 6 cure-all. It does not deal with the fundamental 7 issues of fairness in funding. It does not deal 8 specifically with standards or textbooks or 9 curriculum, and if this bill is all we do this 10 session about educational reform in this state, 11 then maybe the same fate that is being debated 12 that would be conferred upon those people that 13 would mismanage school boards should befall us. 14 Maybe something should intercede here in this 15 institutional paralysis here so that we can do 16 something about what ought to be done from the 17 ground up. 18 It is a multi-layered, long-term 19 problem that we're dealing with here, and I'm 20 the first one to agree that we shouldn't have 21 piecemeal tinkering with something so severe. 22 Yet, we have concerns about disenfranchising 23 voters. We have concerns about due process, and 2633 1 we have concerns about the Voting Rights Act, 2 but we're talking about 26 years here. This is 3 not something that just came upon us, 26 years, 4 and I agree totally with what Senator Montgomery 5 has said, of a failed system, of a failed 6 approach. It sought to involve parents. 7 Two of these school boards 8 districts are in my state Senatorial District. 9 I speak from personal experience here. We're 10 talking about a couple hundred votes out of 11 100,000 people. Has this really empowered 12 parents? We're talking about asking about 13 demonstrable proof, due process for people that 14 I know -- let me tell you about the people I 15 know. They're worried about the aroma of 16 corruption that somehow this thing will follow 17 the aroma of corruption. The aroma of 18 corruption? These people, the stench and 19 degradation that they have fallen into for so 20 many years is what we're dealing with here, not 21 all of them, no, but you know what? I'm sick 22 and tired of talking about the bad apple here 23 and the bad apple there. It gives rise -- this 2634 1 system gives rise to these bad apples that 2 control the fate of these children. 3 You're absolutely right, Senator 4 Montgomery. It pains the heart to see grown-ups 5 now not able to read the third and fourth grade 6 levels. You want demonstrable proof? I have no 7 sealed indictments or anything to render, but 8 you look in the eyes of those children. They'll 9 tell you about a failed system. 10 You know, last year we took over 11 a school district, Roosevelt Island. We took it 12 over. Two months after that takeover, the 13 Roosevelt Island -- I'm quoting from the New 14 York Times report on March 4th on that matter. 15 It says, "there is hope -- there is more hope 16 than doubt as a result of intervention. Two 17 months into the school year, they talked about 18 teachers and students seeing signs of 19 improvement, visible signs of improvement. 20 Since then change" -- by the way, that same 21 school board resisted the intervention. They 22 were ousted, appropriately so, in my view, and 23 "Since then change has come quickly. Safety 2635 1 and fire code violations at the high school have 2 been corrected. Classrooms now have supplies, 3 new textbooks, fire extinguishers." They didn't 4 have any new money. No new money was 5 allocated. They dealt with existing resources 6 that dealt responsibly with it but change came 7 from outside. We are desperate, desperate for 8 change. 9 This is no panacea. It is no 10 cure-all, but it is a measure born out of 11 desperation, and so it must be supported, it 12 must be applauded. Some will cry out, as well 13 they should, about some concerns they have for 14 those members that have been doing a good job, 15 but we're talking about a system here, a system 16 in need of repair. We're talking about a bill 17 here, a bill here that balances the need to take 18 strong action against corruption, strong action 19 against incompetence and at the same time, 20 weighing the rights of dually-elected officials. 21 In my view, it is a good 22 compromise and I urge its adoption. 23 Thank you, Mr. President. 2636 1 ACTING PRESIDENT KUHL: Senator 2 Mendez, why do you rise? 3 SENATOR MENDEZ: Mr. President, I 4 wondered if Mr. Espada would yield for a 5 question. 6 ACTING PRESIDENT KUHL: Senator 7 Espada, do you yield to Senator Mendez? 8 SENATOR ESPADA: Of course. 9 ACTING PRESIDENT KUHL: The 10 Senator yields. 11 SENATOR MENDEZ: Senator Espada, 12 you mentioned that in your district, these two 13 community school boards, they are full of 14 corruption and, in fact, they are suspended at 15 the present time. Tell me how many of those 16 individuals who are being alleged to be 17 corruptive, how many of them have been found to 18 be guilty? 19 SENATOR ESPADA: I am less 20 interested in what their day in court will bring 21 them. As the state Senator for the area, I am 22 not given to theoretical kind of gamesmanship 23 about what their outcome will be. Some of them 2637 1 are under investigation now. Some of them in 2 the past have been indicted, have been 3 convicted, only to seek to continue to influence 4 those outcomes that we talked about which 5 generally speaking only takes a couple hundred 6 votes. 7 And so I tell you that when I 8 talk to them, they don't talk to me about 9 educational policy. They talk to me about the 10 power that they will have to turn out a vote and 11 change an election or get a job, and I'm telling 12 you after years and years of this, that's all 13 they talk about. So what their concerns are and 14 what those misplaced priorities are is what this 15 is about. Due process is imbedded in this 16 legislation. It is a matter of their right. 17 Their outcome will be whatever their outcome 18 is. All we're talking about here is empowering 19 an outside agent, a strong chancellor to act on 20 the children's behalf. 21 SENATOR MENDEZ: Senator, if, in 22 fact - 23 ACTING PRESIDENT KUHL: Senator 2638 1 Mendez, excuse me, are you asking Senator Espada 2 to continue to yield? 3 SENATOR MENDEZ: Thank you. 4 ACTING PRESIDENT KUHL: Senator 5 Espada, do you continue to yield? 6 SENATOR ESPADA: Yes. 7 ACTING PRESIDENT KUHL: Excuse me 8 just a minute. 9 Senator Montgomery, why do you 10 rise? 11 SENATOR MONTGOMERY: Mr. 12 President, I would like to ask Senator Mendez a 13 question, if you would yield. Is that 14 appropriate? Am I out of order? 15 ACTING PRESIDENT KUHL: That's a 16 little bit out of order, Senator Montgomery. 17 SENATOR MONTGOMERY: I wanted to 18 ask her a question while she was - 19 ACTING PRESIDENT KUHL: You would 20 really get Senator Gold chomping at the bit if 21 we allowed that to happen, but we'll get to 22 that. 23 SENATOR MENDEZ: Senator 2639 1 Espada - 2 SENATOR ESPADA: Yes. 3 SENATOR MENDEZ: -- You mentioned 4 that some of those board members in your 5 district were indicted and found guilty, and I 6 understand, guilty of malfeasance of funds. 7 What kind of charges? Didn't they go to jail? 8 SENATOR ESPADA: The chancellor 9 had to intervene to stop them from retaking 10 their office after they were indicted. After 11 they were indicted and convicted, they ran again 12 and won again. 13 SENATOR MENDEZ: Did they serve 14 jail terms? 15 SENATOR ESPADA: I'm not 16 familiar, again, but how bad does it need -- how 17 bad does it have to get here? These people were 18 indicted and convicted. 19 SENATOR MENDEZ: You think - 20 SENATOR ESPADA: They should have 21 served time, but I don't know if they did. 22 ACTING PRESIDENT KUHL: Senator 23 Mendez, are you asking Senator Espada to 2640 1 continue to yield? 2 SENATOR MENDEZ: Senator Espada, 3 so you think that this bill is an act of 4 desperation and because it is an act of 5 desperation, then it is worthwhile to go -- to 6 dismiss completely some of those concepts that 7 are supposed to be so dear to our hearts in our 8 system of government like due process, like a 9 person is innocent until proven guilty. So you 10 think that because this is such a desperate 11 situation, even the rights of the voters should 12 be dismissed? After all, they are, as you know, 13 public elected officials as we are. Are we 14 going to provide them a different set of measure 15 to the public elected officials at the local 16 level? 17 SENATOR ESPADA: Senator Mendez, 18 this bill, when it becomes law, will not run a 19 foul of the Constitution. It will tilt what has 20 been going on for 26 years. It has been a 21 disaster. This bill and this law will tilt 22 things in favor of children for once. 23 SENATOR MENDEZ: Thank you. 2641 1 SENATOR ESPADA: I feel proud 2 that we will do justice by these children. I 3 feel proud that I am a co-sponsor of this bill, 4 and I'm not so proud that it addresses the 5 desperate conditions in my district, but 6 something needs to happen and this is but a 7 beginning. 8 SENATOR MENDEZ: So my last 9 question, Mr. President - 10 ACTING PRESIDENT KUHL: Senator 11 Espada - 12 SENATOR MENDEZ: -- Senator 13 Espada - 14 ACTING PRESIDENT KUHL: Excuse 15 me, Senator Mendez. 16 Senator Espada, do you continue 17 to yield? 18 SENATOR ESPADA: Yes, of course. 19 ACTING PRESIDENT KUHL: The 20 Senator continues to yield. 21 SENATOR MENDEZ: Senator Espada, 22 then you do believe that it is these boards of 23 education who are responsible for the academic 2642 1 failure of children in those schools? Are they 2 also besides the deciding policy, deciding the 3 curriculum and implementing that curriculum in 4 the classrooms? Are they doing that, the board 5 members? 6 SENATOR ESPADA: Senator Mendez, 7 I stated in my opening remark that if this is 8 the only bill that we enact into law, if this is 9 the only remedial action that we take on behalf 10 of children in this state, then we -- the same 11 fate that will befall those school board members 12 that have mismanaged educational opportunity 13 should befall us. 14 SENATOR MENDEZ: Thank you. 15 ACTING PRESIDENT KUHL: Senator 16 Gold, you had indicated a willingness or a want 17 to speak. It's your time on the list. 18 SENATOR GOLD: I just want to - 19 ACTING PRESIDENT KUHL: Senator 20 Seabrook, you want to be on the list too? 21 Senator Oppenheimer, Senator 22 Markowitz, Senator Smith. 23 SENATOR GOLD: Mr. President, I 2643 1 just -- what did I do wrong? 2 ACTING PRESIDENT KUHL: You 3 detained, apparently, Senator Oppenheimer from 4 asking Senator Espada a question. Now she wants 5 to go ahead of you to ask Senator Espada a 6 question. 7 Do you have any objection, 8 Senator Gold? I didn't think so. 9 Senator Espada, do you yield to a 10 question from Senator Oppenheimer? 11 SENATOR ESPADA: Of course. 12 ACTING PRESIDENT KUHL: The 13 Senator yields. 14 SENATOR OPPENHEIMER: Thank you. 15 Thank you, Senator Gold. 16 I'm not from the City, so 17 sometimes I feel that I ought not to ask some 18 questions because, you know, not -- being an 19 upstater, although I live 35 minutes from Grand 20 Central, but I'm an upstater. 21 The question I have is, is 22 removal possible if, instead of there being 23 indictments, if merely the people who are 2644 1 supposed to be concerned with the welfare of the 2 children are simply not doing their job? They 3 haven't taken care of, as you just mentioned, 4 the fire equipment. In other words, they are 5 not performing the duties that they're supposed 6 to be performing. If they're totally ignoring 7 the children, is that -- does that constitute a 8 reason to have them superseded? 9 SENATOR ESPADA: I think that 10 there's a careful balance that's been given to 11 so-called corruption and infighting and 12 mismanagement, and I think issues of that type 13 would fall under the realm of mismanagement, 14 institutional paralysis. Not taking care of 15 fire and safety issues is a major, major 16 concern. 17 SENATOR OPPENHEIMER: Because we 18 hear much about due process and indictments, but 19 I would think that taking care of the children's 20 needs is, you know, maybe not just as important 21 but certainly almost as important as whether 22 you're stealing money. If you're not taking 23 care of the children, you ought to be replaced. 2645 1 SENATOR ESPADA: Absolutely. You 2 only have to think about the Happy Land 3 disaster, people dancing and having a great 4 time, and it was a fire trap. It was a fire 5 hazard. So I think issues having to do with 6 facility issues while they shouldn't all totally 7 be the responsibility of a mismanaged -- even a 8 mismanaged board, it's our responsibility. I 9 said that before, that if we -- we have the 10 ability to address some of these issues. We'll 11 hopefully get that opportunity this session. We 12 can't just blind our eyes and punt away some of 13 these problems of school boards but if, in fact, 14 they have a fiduciary responsibility to do so 15 and to act and they haven't, that falls under 16 mismanagement in my class of definitions, yes. 17 SENATOR OPPENHEIMER: Thank you. 18 I just wanted to make sure it didn't have to be 19 a criminal action. 20 Thank you. 21 ACTING PRESIDENT KUHL: Senator 22 Gold. 23 For the benefit of the members - 2646 1 SENATOR GOLD: Mr. President - 2 ACTING PRESIDENT KUHL: Senator 3 Gold, before you start, for the benefit of the 4 members, I do have a list of those people who 5 are wondering whether or not a list has been 6 established, and after Senator Gold there will 7 be Senator Lachman, Senator Waldon, Senator 8 Mendez, Senator Leichter, Senator Seabrook, 9 Senator Markowitz and Senator Smith. So -- and 10 the debate started, for those of you who are 11 interested, at 4:18. 12 SENATOR GOLD: Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Gold. 15 SENATOR GOLD: Would Senator 16 Padavan yield to a question? 17 ACTING PRESIDENT KUHL: Senator 18 Padavan, do you yield to a question from Senator 19 Gold? 20 SENATOR PADAVAN: Yes, I will. 21 ACTING PRESIDENT KUHL: The 22 Senator yields. 23 SENATOR GOLD: Senator, I had 2647 1 heard earlier today, as I indicated to you, that 2 apparently there was some discussion of an 3 amendment or a chapter amendment to this that 4 would, in effect, change the dates or sunset the 5 bill. I heard about that. What I -- and you 6 made some reference, but what I would like to 7 know, Senator, is for those of us who may have a 8 problem with the bill as it's written, as we 9 have in other years with other bills, usually 10 you see the chapter or you see the amendment, 11 and you have a chance to put them together and 12 vote. Is the chapter in existence? 13 SENATOR PADAVAN: Senator, I'm 14 going to repeat what I said to you before. 15 There's complete agreement by the Minority 16 Leader, the Majority Leader, the Speaker of the 17 Assembly, that a chapter amendment will be 18 presented to both houses, and you can take that 19 to the bank. Now, it's being printed. A 20 discussion took place over the last two working 21 days, and it will be before us, probably within 22 a day, certainly before we leave. That is a 23 fact. 2648 1 SENATOR GOLD: Mr. President, if 2 the Senator will yield to another question. 3 ACTING PRESIDENT KUHL: Senator 4 Padavan, do you yield to another question? 5 SENATOR PADAVAN: Yes. 6 ACTING PRESIDENT KUHL: The 7 Senator yields. 8 SENATOR GOLD: Senator, we have 9 had two occasions this year where I think we 10 have done something we had never done before. 11 We had Conference Committees between the two 12 houses working things out. Now, the reason is 13 that each house passed a label. It passed 14 something that said it deals with a subject, but 15 as you and I both know, we don't pass labels 16 into law. There are words that are a specific 17 bill, and what I'm concerned about, Senator, is 18 that there is, quotes, "agreement", which I 19 heard a million times around here, but people 20 may not agree with the particular language or 21 how the particular bill works itself out and, 22 therefore, the Senate will pass something. The 23 Assembly may pass something, or it may be that 2649 1 the bill that comes in to be the chapter 2 contains some other provisions because now 3 there's an opportunity to do some other things, 4 and we may not buy into that, but then you're 5 told you either buy into that or take the whole 6 chapter or you get nothing. 7 Wouldn't it be more prudent, 8 Senator, if it's going to be nothing more than 9 an extender -- and I don't know -- or a sunset, 10 which I don't know why it couldn't have been 11 written in ten minutes, that we hold this bill 12 and vote on them both together? If it's going 13 to be a chapter amendment, I assume they're 14 going to go to the Governor together. I assume 15 the Governor is going to handle them together 16 and as a matter of fact, if it hasn't been put 17 in print yet and we're going to send something 18 to the printer, why don't you send this bill to 19 the printer with the amendment in it so it's in 20 one piece of paper? 21 SENATOR PADAVAN: Senator, I have 22 given you a very direct, for the record, 23 representation. I assume you've asked that same 2650 1 question of your leader. I'm sure -- if you 2 have not, I would urge you to do so. If you 3 did, you got the same answer. 4 The chapter amendment which is 5 being drawn and being printed will be addressed 6 in a very simple fashion. It will sunset this 7 law in three years, nothing more, nothing less. 8 I don't want to hold up debate and final 9 conclusion of this bill. I don't want to do 10 this on another day. This bill has to pass both 11 houses. There will undoubtedly be a requirement 12 for review by the Justice Department on the 13 Voting Rights Act and whatever other reviews 14 take place. I think what I've said to you 15 answers your question very fairly, directly. I 16 see no reason to lay this bill aside and have to 17 do this on another day. The request for a 18 sunset was made. It was accepted. It'll be 19 dealt with, and that ought to be enough. 20 ACTING PRESIDENT KUHL: Senator 21 Gold, the floor is yours. 22 SENATOR GOLD: Yes, on the bill. 23 ACTING PRESIDENT KUHL: Senator 2651 1 Gold, on the bill. 2 SENATOR GOLD: Senator Padavan, I 3 don't want my remarks to be interpreted as any 4 question upon your integrity or your honesty in 5 dealing with this subject. Maybe it's that you 6 get to a point when you have been around long 7 enough where you have either been educated or 8 tainted, depending upon how you want to describe 9 it, but you do get to be suspicious. 10 I've heard too many times, 11 Senator Padavan, that there's a simple chapter 12 amendment and then things get added in, or the 13 chapter doesn't come about, or the Governor 14 signs a bill and they don't -- they veto the 15 chapter, and all I'm saying to you, Senator, is 16 that if something has to be printed, it's easy 17 enough to reprint this bill, get a message from 18 the Governor, pass it tomorrow and what have we 19 lost, 24 hours? 20 Senator, if you -- as you know, 21 if this bill passes in both houses, it's got to 22 go to the Governor. I assume that the two will 23 go to the Governor. We're talking about things 2652 1 which do not take time, not the kind of time 2 you're talking about. You want to send it to 3 the Justice Department? Send it to the Justice 4 Department tomorrow with an amended bill that 5 deals with the sunset. 6 All I'm saying to you is that I 7 appreciate your assurances. I think you're an 8 honest man, Senator, and that's fine, but in 9 this place -- in this place and in the place 10 across the building from us, there are people 11 not elected -- and I don't want to make 12 disparaging remarks about staff, but they have 13 their own ideas, and while they're doing this, 14 they throw something in, and there are some 15 staff people who think they are bigger than 16 legislators. There are some legislators who 17 make their staffs bigger than them. 18 All I'm saying to you is I think 19 it's prudent to see what you're voting on as a 20 package. That's my belief, Senator, and I've 21 got my questions about the bill as it is. I 22 think there are some significant issues that 23 have been raised. I think that the rights of 2653 1 people -- the rights of people who are elected 2 are serious rights and that this bill, in my 3 opinion, makes some serious changes. 4 Would I vote yes if I knew that 5 there was a sunset? Would I vote to give Rudy 6 Crew a year as people have suggested? Maybe, 7 but, Senator, all I know is that you're asking 8 for a vote today that's asking me to change a 9 law and that's forever. 10 SENATOR PADAVAN: Mr. President, 11 may I interrupt Senator Gold with his - 12 SENATOR GOLD: Yes, of course. 13 ACTING PRESIDENT KUHL: The 14 Senator yields to a question. 15 SENATOR PADAVAN: Senator, maybe 16 I didn't make something clear. This bill stands 17 or falls on its own before us now. People will 18 either vote for it or against it. They will do 19 the same thing with the chapter amendment. Some 20 people, myself included, don't think that we 21 should sunset. I think I heard Senator 22 Montgomery say the same thing. You asked me 23 whether or not there would be a chapter 2654 1 amendment before us, and I gave you an honest, 2 fair answer. There will be. However, I think 3 people in this chamber and in the Assembly ought 4 to have the prerogative of deciding on each 5 issue on its own. You'll have that opportunity 6 probably tomorrow. 7 SENATOR GOLD: Mr. President, 8 Senator Padavan just fell into the trap. I 9 accused him of being honest and he stood up and 10 proved it. 11 Senator Padavan, you're exactly 12 right. You are an honest man and you are saying 13 there's a chapter out there, but nobody knows 14 whether it will pass and, gee whiz, supposing 15 the chapter comes up and people defeat it or 16 whatever. Well, Senator, I understand that and, 17 therefore, when you take a bill and you take a 18 chapter and you do some things, you have a 19 patchwork, and maybe you don't know where that 20 patchwork is going to come out, and all I'm 21 saying, Senator Padavan, is that's too easy for 22 me. 23 You're saying, well, I can vote 2655 1 for this because I heard there was a chapter and 2 then if there's no chapter, I can say to people, 3 "Hey, I got the best of both worlds. If you 4 like the bill, I voted for it. If you don't 5 like the bill, I only did it because I heard 6 there was a chapter." Maybe politically that's 7 a terrific place to be, but I don't want to be 8 in that position. 9 I really believe I owe it to the 10 people that elected me to know what I'm doing 11 and, therefore, Senator, in the present form, I 12 will not vote for the bill. I do think that it 13 invades in areas and does it in a way that 14 violates rights and I'm not going to do that, 15 and while I tell you on the record, I might have 16 considered certain things if the chapter was 17 here and may have voted differently if the 18 chapter was here, I cannot deal without that. 19 I also will tell you that there 20 have been a number of bills this year which 21 affect the city of New York, not only in the 22 educational structure but in other ways, and I 23 haven't had one representative from the city of 2656 1 New York visit my office to discuss it with me 2 and to tell me that one thing or another was 3 important to the City. 4 I will tell the mayor of the city 5 of New York on the record that he has done some 6 fine things for the City. He has also done some 7 things that I don't agree with, but I'm not 8 going to represent the City by taking his 9 opinions from the newspapers. He has a right to 10 issue press releases and he has a right to speak 11 out in public, and I respect that, but as a 12 legislator if there's a matter before the 13 Legislature and he wants me to know about it, I 14 think he could send somebody around to my 15 office, as well as to some of the other offices, 16 and if that does not happen, I can only assume 17 that the matter does not rise to a certain level 18 of concern as far as the City's office is 19 concerned. 20 As this stands now, I will vote 21 no. 22 ACTING PRESIDENT KUHL: The Chair 23 recognizes Senator Lachman. 2657 1 SENATOR LACHMAN: Mr. President, 2 as a new member of this body, after listening to 3 this discussion and previous discussions, I have 4 to say that I am very proud of the fact that I 5 am a member of a deliberative body which has so 6 many differences of opinion that I respect, even 7 differences within my own political party, and 8 if I may explain to my colleagues why I am 9 supporting this bill, I would like to do so at 10 this point. 11 Even though the community school 12 boards in question are sometimes larger than the 13 school boards of Rochester or Syracuse and 14 Albany and other upstate cities, they are not 15 school boards. They are not LEAs. In legal 16 parlance, in education law, they are not 17 considered to be local educational authorities. 18 The Local Educational Authority 19 for the city of New York is the Central Board of 20 Education of the city of New York. So the 21 question is why do we have these community 22 school boards in the first place? We have these 23 community school boards because in 1969, this 2658 1 Legislature created a decentralization law, 2 shortly after the great dispute and strike at 3 Oceanhill-Brownsville in New York City, and 4 rather than choosing between community control 5 or non-community control, the Legislature, in 6 its infinite wisdom, decided to compromise and 7 brought out a bill that stressed modified 8 decentralization. 9 Now, what does this mean in 10 reality? It means that the community school 11 boards do not have the power of the purse. They 12 do not have the power over the budget. The 13 Central Board of Education has that power, and 14 that is a major power of any Board of Education 15 in the city of New York. 16 It also means that the community 17 school boards are not boards of education. They 18 are subdivisions of the New York City Board of 19 Education, and the reason why some of you who 20 were here 25 years ago, unlike me, changed the 21 name of the superintendent of schools to 22 chancellor is because you wanted to give him 23 extraordinary powers to monitor oversight in the 2659 1 New York City Board of Education, which you did, 2 and which the chancellors, through the years, 3 have attempted to do. 4 Unfortunately, that law in 1969 5 was an imperfect law, just as this law that 6 we're about to vote upon is also an imperfect 7 law, and I am told by people wiser than me that 8 there are few perfect laws this side of heaven. 9 However, I am also told by others that we can 10 change and make the '69 decentralization law 11 more perfect if we attempt to reorganize and 12 restructure the governance of education in the 13 city of New York, either this year or in the 14 coming year. 15 Now, I would like to comment on 16 some things that were mentioned before. The 17 appellate process is even broader than Senator 18 Padavan mentioned, if I may. Not only do the 19 members of the community school boards who are 20 affected have the right to appeal within 15 days 21 to the chancellor; they also have the right to 22 appeal the decision of the chancellor to the 23 Central Board of Education after another 15 days 2660 1 when a decision has been rendered, and then they 2 have the right to go above the Board of 3 Education to the state Commissioner of Education 4 within another 15 days, and the state 5 Commissioner of Education in the state of New 6 York has quasi-judicial powers. He does have 7 the right to remove boards of education 8 throughout the state of New York. Even though 9 he is an appointed official, he can remove 10 elected boards. He, in turn, can be removed by 11 the state Board of Regents. The ultimate 12 authority in education law rests upon us, the 13 state Legislature in the state of New York, to 14 make the changes that we deem appropriate to 15 attempt to perfect and eliminate the 16 imperfections in education law. 17 So what we are voting upon now - 18 and I would prefer to have this sunset law 19 incorporated in the law, Senator Padavan, as my 20 colleague, Senator Gold, has said, but I'm 21 willing to go along with the law based upon the 22 assumption that there will be a corollary law 23 dealing with sunset provisions, and also based 2661 1 upon the premise that the civil liberties that 2 are very important that Senator Stavisky has 3 enumerated might be incorporated in a broader 4 law dealing with reorganization of a governance 5 of education law in the city of New York. 6 And why am I willing to go along 7 with this? Because I had served at the tender 8 age of 33 as president of the New York City 9 Board of Education. I inherited the law that 10 our predecessors adopted, which we discovered to 11 have 175 technical -- technical inaccuracies, 12 which was a combination of six or seven 13 different bills brought together, but that is, I 14 am told, how legislation is crafted, by 15 legislative bodies, imperfectly, to deal with - 16 with solutions that don't have perhaps absolute 17 variances but relatively we can resolve. 18 So at this point in history, I 19 think it is essential, as Senator Montgomery and 20 Senator Espada have said and Senator Padavan has 21 said -- and this is a non-partisan issue -- that 22 we allow the chancellor and the Board of 23 Education to have the power that they 2662 1 desperately need in order to continue and 2 improve education in the city of New York. 3 ACTING PRESIDENT KUHL: Excuse 4 me, Senator Lachman. 5 Senator Mendez, why do you rise? 6 SENATOR MENDEZ: Will the good 7 Senator yield for a question? 8 SENATOR LACHMAN: It is my 9 pleasure to yield, Senator Mendez. 10 ACTING PRESIDENT KUHL: The 11 Senator yields. 12 SENATOR MENDEZ: Thank you. 13 You mentioned that the 32 local 14 community boards are not boards as the rest of 15 the state and that the delegated board -- the 16 one in - 17 SENATOR LACHMAN: Local 18 Educational Authority is the Central Board of 19 Education in the city of New York. 20 SENATOR MENDEZ: So then does - 21 the Commissioner of Education of the state of 22 New York has the authority to supersede - 23 SENATOR LACHMAN: Sure. 2663 1 SENATOR MENDEZ: -- a local 2 community borough - 3 SENATOR LACHMAN: Absolutely. 4 SENATOR MENDEZ: -- without - 5 SENATOR LACHMAN: Absolutely. 6 During the Oceanhill-Brownsville crisis, the 7 state -- then state Commissioner of Education 8 superseded the Oceanhill-Brownsville 9 experimental district and made it part of his 10 office and sent an assistant commissioner there 11 to administer that board. 12 SENATOR MENDEZ: Now, because 13 you're so very well versed in education law, my 14 question is, it is my understanding that at the 15 present time, the -- at the present time, the 16 chancellor, under the law, has the right, as 17 he's been doing, to supersede local community 18 school boards. 19 SENATOR LACHMAN: Yes. 20 SENATOR MENDEZ: So in the -- in 21 the case of this legislation, don't you think it 22 would be most appropriate not to violate the 23 rights of people that have been elected, the 2664 1 wish of the voters, and then just let them sit 2 on the boards and then go through the same 3 process that he has done before? 4 SENATOR LACHMAN: Senator Mendez, 5 I do, but in a democratic society, we 6 unfortunately have to choose between two rights 7 or three rights given to our citizens. Which 8 right is stronger? Which right is more 9 important? Which right is most essential? And 10 I think this right is the most essential right. 11 SENATOR MENDEZ: Thank you. 12 SENATOR LACHMAN: Now, let me 13 just conclude, Senator Mendez, if I may, that 14 the -- these people can go- 15 ACTING PRESIDENT KUHL: Senator 16 Lachman, let me just interrupt you a minute. 17 Senator Marcellino, why do you 18 rise? 19 SENATOR MARCELLINO: Mr. 20 President, may we have the last section read on 21 this particular piece of legislation so that 22 Senator Seward and Senator Saland can -- and 23 Senator Rath can vote? 2665 1 ACTING PRESIDENT KUHL: The 2 Secretary will read the last section. 3 THE SECRETARY: Section 4. 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: Senator 9 Seward, how do you vote? 10 SENATOR SEWARD: I vote aye. 11 ACTING PRESIDENT KUHL: Senator 12 Saland, how do you vote? 13 SENATOR SALAND: Aye. 14 ACTING PRESIDENT KUHL: Senator 15 Rath, how do you vote? 16 SENATOR RATH: Aye. 17 ACTING PRESIDENT KUHL: Senator 18 DeFrancisco, how do you vote? 19 SENATOR DeFRANCISCO: Yes. 20 ACTING PRESIDENT KUHL: The roll 21 call is withdrawn -- the roll call is 22 withdrawn. We're back on debate. 23 Senator Lachman, now you'll have 2666 1 a chance to respond to the question posed to you 2 by Senator Mendez. 3 SENATOR LACHMAN: I just wanted 4 to say that the ultimate appeal -- the people 5 who object to this, the people who support the 6 position that a board that is elected cannot be 7 removed by an appointed official, have the 8 ultimate authority of going into the courts and 9 the courts will then decide, and they have done 10 that through many appeals in many years in New 11 York City, as well as in communities in 12 Connecticut and New Jersey. 13 ACTING PRESIDENT KUHL: Next on 14 the list is Senator Waldon. 15 SENATOR WALDON: Thank you very 16 much, Mr. President. 17 Would Senator Dollinger yield to 18 a question or two? 19 ACTING PRESIDENT KUHL: Senator 20 Waldon, I'd have to at this point point out to 21 you that the rules of our house don't allow you 22 to call upon a member who has not at this point 23 spoken on the issue, so you would be in 2667 1 violation of the rules of the house by asking 2 Senator Dollinger to yield when he is not a 3 sponsor of the bill, nor has he spoken on the 4 issue. 5 SENATOR WALDON: I appreciate 6 your correction, Mr. President. 7 Did Senator Paterson speak on the 8 bill earlier? 9 ACTING PRESIDENT KUHL: Senator 10 Paterson, I believe did. I think he asked the 11 question of information from Senator Padavan. 12 SENATOR WALDON: My purpose would 13 be satisfied if the good Senator from the 14 village of Harlem would step into the batter's 15 box in place of hammering Rick Dollinger from 16 the Rochester area. Would the good Senator 17 please - 18 ACTING PRESIDENT KUHL: Senator 19 Paterson, do you yield? 20 SENATOR DOLLINGER: Mr. 21 President, does that mean that I have been 22 removed from the lineup? 23 ACTING PRESIDENT KUHL: The 2668 1 Senator yields, Senator Waldon. 2 SENATOR WALDON: Thank you very 3 much, Mr. President. 4 Senator Paterson, I'm concerned 5 about the intent of the founding fathers of this 6 nation in regard to creating our democracy and 7 the real intent underlying philosophically 8 everything that they did. So I would ask you 9 three questions: 10 One, what does the separation of 11 powers, as implemented by the founding fathers, 12 mean to you. Two, what does the decision 13 rendered by Chief Justice John Marshall in 14 Marbury v. Madison mean to you regarding who 15 will interpret the law and, three, to your 16 personal knowledge, is there any precedent 17 ongoing in this state or any state, whereby 18 removal of elected bodies and/or persons is the 19 common rule by appointive authorities? And we 20 could have the stenographer read that back. One 21 was separation of powers. 22 SENATOR PATERSON: Mr. President, 23 New York State was originally founded by the 2669 1 Dutch in 1626. 2 SENATOR MONTGOMERY: Correction, 3 Mr. President. The native Americans were 4 already here, Mr. President. 5 SENATOR PATERSON: I'm sorry 6 about the slur, Senator Mendez. 7 The answer to the first question, 8 the issue of separation of powers, what I infer 9 from that, Senator Waldon, is that there is a 10 definite separation between the executive, the 11 judicial and the legislative branches of 12 government that there was an intent that there 13 not be any interference in the ambit of control 14 of one by any of the others and that there were 15 clearly defined roles. 16 The second question, which is the 17 Marbury v. Madison case, the case that 18 established Supreme Court Justice Marshall and 19 in a sense, it defined judicial review when the 20 Supreme Court upheld the decision of President 21 Jefferson, I believe, who appointed Marbury and 22 then it was appealed by President Madison. In 23 this particular case, what it definitely 2670 1 established was the control of existing power. 2 The third question was the 3 question of -- what was the third question, 4 Senator Waldon? 5 SENATOR WALDON: Whether, to your 6 personal knowledge, in this state or in any of 7 the states of the United States, there is a 8 common, ongoing precedent that appointive 9 authorities can remove elected bodies and/or 10 persons. 11 SENATOR PATERSON: I think in 12 this particular debate, there is a question as 13 to what the actual status of elected officials 14 is based on the legislation. It's a very apt 15 question. It probably cuts to the basic issue 16 that we are -- that we are discussing, which I 17 wonder why Senator Padavan is sitting there. 18 SENATOR PADAVAN: You're doing a 19 great job. You keep it up. 20 SENATOR PATERSON: Okay. And it 21 is whether or not we consider these particular 22 school boards as separate entities or, as 23 Senator Lachman pointed out, if they are 2671 1 actually, in a sense, subsidiaries of what is a 2 larger entity, which is actually the 3 identifiable one that is run by the chancellor 4 of the city of New York. 5 What Senator Lachman was trying 6 to say is that by raising and changing the name 7 "superintendent" to "chancellor", that we were 8 creating what would sort of be a -- an election 9 in the local school districts which would be 10 more advisory. It's the reason that we allow 11 legal permanent residents to vote in those 12 particular elections where we don't allow them 13 to vote in the regular elections of our general 14 elected officials, but in answer to your 15 question, Senator Waldon, I think you've raised 16 an excellent question, which is that even though 17 this may be the specifically delineated path 18 that we've taken in this particular legislation 19 -- and we're being advised now by another 20 Senator -- but the point is that what may 21 actually be the end product is a perception 22 which becomes the reality that these are elected 23 officials. We've tried to drum up support. 2672 1 We've thought of changing the days to have these 2 school board officials to be elected, and if 3 they're going to be elected, as I think you're 4 driving at, Senator Waldon, then we have to 5 treat them with some kind of respect, or if we 6 do not, it certainly opens the door to the 7 general violation of what would be the 8 Democratic principles that elected officials 9 would then be challenged by those individuals 10 who are appointed, and so this is a -- an 11 ongoing discussion that we're having in the 12 state right now, even in respect to the decision 13 made just the other day to relieve an elected 14 official under Article IV, Section 2 of the 15 Constitution that provides that under broad 16 supervisory powers that the Governor, in certain 17 cases, can appoint a special prosecutor under 18 Executive Law 63, Section 2. 19 SENATOR WALDON: Senator, I'm 20 getting to that point. Don't jump ahead of me, 21 please, Senator. If you would permit me, I had 22 a purpose in standing up. You jumped. You 23 leapfrogged. I don't want to do that just yet, 2673 1 and I -- suffer the interruption, please. I did 2 not mean to be disrespectful to - 3 SENATOR PATERSON: No, not at 4 all. 5 SENATOR WALDON: -- The Deputy 6 Minority Leader. So that's the point that I 7 want to get to, but let me get there, please, 8 sir. You're working wonders now. You're 9 helping me. 10 Senator, respectfully -- if the 11 Senator continues to yield. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson, are you finished with your answer at 14 this point? 15 SENATOR PATERSON: I'm finished 16 with my answer. I yield to the noble Senator. 17 ACTING PRESIDENT KUHL: Senator 18 Waldon, you have the floor. 19 SENATOR WALDON: Thank you very 20 much, Mr. President. 21 Senator Paterson, in your 22 understanding -- reflecting back to the founding 23 fathers, in your understanding of what they did 2674 1 -- in your understanding of what they did, I'm 2 -- I'm assuming now from what you've said and 3 from my awareness of your philosophy in regard 4 to constitutional law, is it that you believe 5 that they created the separation of powers which 6 has lasted so well in this nation is because 7 they feared a majority in power being abusive to 8 all the other branches of government and, 9 therefore, using an expression from a learned 10 colleague of mine, they created hands with 11 fingers so that one finger would not be superior 12 to any of the other fingers, but that the hand 13 itself would work to do the greatest good for 14 the greatest number. 15 SENATOR PATERSON: Yes. 16 SENATOR WALDON: Thank you. 17 SENATOR PATERSON: Actually, 18 Senator, I agree with you, and I think that what 19 is most precious in our Constitution was the 20 protection where the majority in a particular 21 area, such as a local district or perhaps even 22 in a local school board, is protected from what 23 may be the greater majority in that city or that 2675 1 state, such that the decisions that are made by 2 the few in that particular area but the 3 decisions made in an election where the majority 4 rules in that particular area are not superseded 5 by a greater majority on scale throughout the 6 state. So I think the point is well taken, and 7 I thank you for raising it, and I hope I've 8 provided, without any preparation, at least some 9 answers that have assisted. 10 ACTING PRESIDENT KUHL: Senator 11 Waldon. 12 SENATOR WALDON: Mr. President, 13 let me first thank -- on the bill, Mr. 14 President. 15 Let me first thank Senator 16 Paterson who is, in my opinion, one of the 17 brightest, if not the brightest person in this 18 chamber, and with such short notice, to stand up 19 and to be the foil for the path that I wished to 20 take, I think speaks to his courtesy, speaks to 21 the gentle character of the learned gentleman 22 from Harlem and also speaks to his brilliance. 23 I believe that this proposal, 2676 1 which is not yet law but will become law if it's 2 passed this law and in our other house and then 3 signed by the Governor, is a dangerous 4 precedent. I believe that it is usurping the 5 will and intent of the people and undermining 6 what the founding fathers of this nation 7 intended when they created this great 8 democracy. 9 I believe this is an example of 10 that behavior. I believe when an executive 11 imposes his will on a district attorney, as was 12 done in Bronx County, the same parallel occurs. 13 I believe that is dangerous conduct. I believe 14 even though you may feel that a judge is wrong, 15 as some feel that Judge Baer was wrong, that 16 even our President is wrong in interfering with 17 the prerogatives of the judiciary. There are 18 bodies set up to handle those undertakings. 19 There's a body set up, the Office of Court 20 Administration, to deal with the judge in 21 Brooklyn who may have done some things which 22 angered people and which, in your personal 23 opinion, are outside of the pale of acceptable 2677 1 behavior for those who sit upon the bench. I 2 believe all of these are dangerous precedents 3 and are not drifting us towards the loss of the 4 beauty of this great nation, but careening us 5 towards a path which will one day wake us up and 6 say, Gee whiz, we no longer have the democracy 7 that so many sacrificed their lives for. 8 I would encourage you to think 9 about that. I don't think anyone here will 10 dramatically change their vote on what Senator 11 Paterson and I have done, but I want you to 12 think about the fact that we are chipping away, 13 chipping away, chipping away at the fabric of 14 this great nation and its democracy with bills 15 like this, with actions like what happened in 16 Bronx County, with actions like what happened 17 surrounding Judge Duckman, with actions which 18 surround what's happening with Judge Baer. 19 I will vote no on this particular 20 bill, and I thank you, Mr. President, and I 21 thank my colleagues for listening to me. 22 ACTING PRESIDENT KUHL: Next on 23 the list is Senator Mendez, but I don't see her 2678 1 in the chamber. 2 Then she's followed by Senator 3 Leichter. I don't see Senator Leichter in the 4 chamber. 5 Next is Senator Seabrook. 6 SENATOR SEABROOK: Yes. Thank 7 you, Mr. President. 8 This bill that we have here today 9 has been described by some as a panacea and by 10 others as a state of emergency that we have to 11 move and do these things. 12 I think we already have a bill to 13 do all of the things that we desire, and I am 14 looking at the law that created decentralization 15 in 1969, and all of the things that we talk 16 about that we really want to do, the chancellor 17 had the right to do it by law in this bill, but 18 what we're doing now is giving the chancellor 19 the right to do something that's fundamentally 20 going against the principles and tradition of 21 the American society. I think here when we talk 22 about school districts and -- people get a 23 little confused and get caught up into believing 2679 1 that we're talking about the same situation 2 outside of New York City. 3 The Senator from Brooklyn 4 indicated that the central board is the legal 5 elected board, or which is considered the legal 6 elected board of the city of New York, and 7 that's a board that's appointed. That's a board 8 that is actually appointed, but in the original 9 intent of the bill in 1969, they were supposed 10 to be elected, but they were appointed, never 11 elected, appointed. 12 We have here now all of the 13 rights -- and I was just reading some of the 14 rights of the chancellor that was given in 1969, 15 and all of the responsibility of educating, 16 contracting, assignments, even to signing off on 17 teachers' aides is the chancellor's. 18 So when we talk about giving all 19 of this power and "he needs this to do this and 20 that", he already has that power. He already 21 has the power. What he's asking us to do is to 22 cover up something that we refuse to do, is to 23 actually dust off the law in 1969 that's on the 2680 1 books. He's asking us to do away with what we 2 consider fundamental principles in the American 3 society, the whole sense of due process. 4 I had the opportunity to be in 5 the Bronx Court listening to the argument the 6 other day about the chancellor superseding 7 District 7 and 9, and I heard some of my 8 colleagues here make some statements about 9 people were indicted, and that they were 10 convicted. Not one person in District 7 is 11 indicted. Not one person in District 9 is 12 indicted. So these people should actually go to 13 their districts and find out what's actually 14 happening. Not one person. 15 The judge asked the attorney for 16 the Board of Education, "What crimes have been 17 committed by this board?" The attorney said, 18 "There was no crime that was committed. There 19 was no crime that was committed." That's what 20 the Board of Education's attorney told the 21 judge. The judge said, "Then, in other words, 22 you're telling me that you are responding to a 23 newspaper article", and he said that these were 2681 1 allegations that were brought by the newspaper 2 and the media, not by any authority that could 3 bring about any indictment or any convictions. 4 He said that there was a, quote-unquote 5 "integrity hearing" that is appointed by the 6 Borough President, and we saw the tapes, and 7 people made allegations, and he said, "So are 8 you telling me again, there is no crime 9 committed", and the answer was "There was no 10 crime committed." 11 This bill that we have here says 12 if the chancellor feels or gets moved by the 13 "daily blues", that he can make a decision to 14 supersede and say "Well, you can't sit on the 15 board even if you are elected", and some people 16 raise the issue about the percentage of how 17 school board people are elected. Well, let's 18 put it in context: The percentage of how some 19 of us are elected. 20 So the reality is if it's one 21 vote that elects the individual, then the people 22 have spoken. The issue should be what happens 23 to the board who has the responsibility over the 2682 1 budget, responsibility over curriculum, 2 responsibility over facilities, because we talk 3 about surschools. They don't only just talk 4 about curriculum. They talk about facilities 5 that's bad. They do a whole gamut of what makes 6 a surschool. All of that is controlled by the 7 Central Board of Education unelected, by law 8 should have been elected but appointed, and they 9 make the decision as to how the community school 10 board is the whipping boy here today. Some of 11 us say that they are the solution to solving all 12 the problems while they found corruption, 13 indictment, possibly indictments by custodians. 14 Less than ten days ago, local 15 school boards write no contract for custodians 16 in the school. Those contracts are controlled 17 by the central board, should have been elected, 18 appointed. 19 So the issue of class sizes, the 20 issue of teachers who are uncertified, the issue 21 of libraries that don't have updated books, 22 that's not the local board. The responsibility 23 is by a board that should have been elected but 2683 1 was appointed, and in their appointment, who 2 removes them? Who has the responsibility to 3 remove the central board, an unelected board? 4 People who appoint central board members can't 5 even recall them. Ask the Borough President of 6 the Bronx. He said he couldn't recall it. Who 7 removes them when we talk about the lack of 8 education? It is written here in 1969 that said 9 the chancellor has all the responsibility, even 10 training the local school boards. He has a 11 responsibility to see that parents and teachers 12 associations are established in statute, his 13 responsibility. 14 This is a joke. This is a fraud, 15 and this is going to come back to haunt elected 16 -- elected individuals that we are allowing 17 selected individuals to control budgets in 18 districts that they know nothing about. That's 19 what this is all about. 20 The chancellor worked for a board 21 and he's hired a board that should have been 22 elected but is appointed, and he's in 23 competition for the funds that's allocated to 2684 1 all the districts in direct opposition to local 2 boards, and now the local boards will lose their 3 control over the budget aspect and he, as an 4 appointed official, and he being hired by 5 appointed officials, will have control over all 6 of the dollars. That's what this play is all 7 about. It has nothing to do with reform. 8 You want to talk about reform. 9 Let's redraw some district lines. That's 10 reform. Haven't been redrawn since 1969. 11 That's when we talk about justice, state of 12 emergency, and we talk about abide by the 13 rules. We got districts that don't even have 14 enough students in it by law that we put 15 together in 1969. That's guts. That's guts, to 16 talk about those districts that don't even meet 17 up to the number required to be a district. 18 Who's responsible for dealing with them? The 19 board that we do not elect but selected, make 20 that decision. 21 Read the bill that was passed in 22 this house in 1969. The chancellor got all the 23 power he needs, but when he decides to do what's 2685 1 right -- if you get the gang of five, that we 2 didn't elect, that was selected -- the 3 chancellor's got -- so I think that we need to 4 understand this -- the chancellor's got all the 5 power he needs. All he's got to do is do his 6 job, but when five folks control, what he has to 7 do is their tune, and for all the folks who talk 8 about the problem of corruption in their 9 districts, well, that's your fault. That's your 10 fault. You have a responsibility as an elected 11 official to be responsible for the people in 12 which you serve to get out and do what has to be 13 done so that those people wouldn't be elected. 14 So I say that it is our job, but 15 we need to dust off the board in 1969. Was it 16 perfect? No, but read what rules and rights we 17 gave to the chancellor if you want to change the 18 educational system. 19 Right now you're asking the 20 chancellor to do away with the Constitution, the 21 fundamental principles of America, America's 22 fundamental principle. We still live here, and 23 people say that we've got this state of 2686 1 emergency. Well, that's what they said about 2 the guy that said he was going to make the 3 trains run on time. 4 We better be very careful about 5 this, allowing selected people, not elected, to 6 make a decision about people who are elected 7 even if it's by one. Merely just newspaper 8 stories. I mean, an indictment is merely an 9 accusation. Not even an indictment, a newspaper 10 story drove this, and we're -- our rush to 11 judgment, do something, do something. Read the 12 bill, and if we read the bill, we would 13 understand that we've done something in 1969. 14 Was it perfect? No, but it'll work if we follow 15 the blueprint here. 16 So I will say that this whole 17 rush to judgment, this whole idea about state of 18 emergency, this whole question about, "Well, you 19 know they're not really legal boards", well, 20 hell, the Board of Ed' ain't legal. Who elected 21 them? 22 So what I'm saying, the 23 fundamental principles -- let's not get confused 2687 1 and say that, "Well, you know, it worked over in 2 Roosevelt." Roosevelt is different. Each of 3 those are one school district, separate. All of 4 New York City is one with a central board and 5 local board, and I say to you that, when you 6 decide to take this away, there will be an 7 element that will decide to say that we need to 8 get rid of elected officials even if we think 9 they're doing something wrong, and then the 10 question is going to be, "Mr. Senator, how do 11 you vote?" 12 On this one, I vote no. 13 ACTING PRESIDENT KUHL: Senator 14 Waldon, why do you rise? 15 SENATOR WALDON: I would like to 16 know if the learned Senator from the Bronx would 17 yield to a question or two. 18 ACTING PRESIDENT KUHL: Senator 19 Seabrook, do you yield to a question from 20 Senator Waldon? 21 SENATOR SEABROOK: Yes, sir. 22 ACTING PRESIDENT KUHL: The 23 Senator yields. 2688 1 SENATOR WALDON: Thank you very 2 much, Mr. President. 3 Senator, I heard you say earlier 4 that the lines had not been redrawn since '69, 5 and that there were districts where there were 6 not enough students to really reach the 7 threshold requirement for having a school 8 district. 9 I believe I read or heard 10 somewhere that also within the city of New York, 11 there are districts which do not meet federal 12 guidelines in terms of students of color in 13 comparison to students which in this country are 14 traditionally called majority students. To your 15 personal knowledge, is there any gerrymandering 16 or things which are wrong in regard to the 17 student base distribution in the City based on 18 racial lines? 19 SENATOR SEABROOK: Well, I can't 20 answer that, but I can tell you this: In -- the 21 city of New York is probably one the most 22 segregated school systems in America. 85 23 percent of all the children who are classified, 2689 1 quote-unquote, "white", attend school in 17 2 percent of the school district in the city of 3 New York. You can't get no more segregated than 4 that. We have yet to redraw lines, and if a 5 chancellor had guts -- because every time we 6 passed a bill here -- don't do a redistricting. 7 We got a new chancellor. Let him get his feet 8 wet. Richard Greene got his feet wet and he 9 died. Cortines, he's new. He can't do it. 10 Let's wait. We haven't have redistricting since 11 we redrew the first lines. We redraw lines here 12 every ten years. We haven't had a redrawing of 13 lines since we instituted the first. That's 14 reform. That's guts. 15 ACTING PRESIDENT KUHL: Senator 16 Waldon. 17 SENATOR WALDON: Thank you very 18 much, Mr. President. 19 Thank you, Senator. 20 ACTING PRESIDENT KUHL: Senator 21 Markowitz? 22 (There was no response.) 23 Senator Leichter, why do you 2690 1 rise? 2 SENATOR LEICHTER: I thought -- I 3 know I was out of the house when you called my 4 name, but I was hoping - 5 ACTING PRESIDENT KUHL: As was 6 Senator Mendez, and I'll come back to you if you 7 wish to speak. 8 The Chair recognizes Senator 9 Marchi who's next on the list, then Senator 10 Mendez, then Senator Leichter. 11 SENATOR LEICHTER: Okay. 12 ACTING PRESIDENT KUHL: And then 13 Senator Markowitz, if he's in the chamber. 14 SENATOR MARCHI: I certainly 15 think that we should all be impressed with the 16 vivacity with which these considerations have 17 been advanced, very spirited remarks of Senator 18 Seabrook, because there is a burning desire to 19 honor the democratic process, with a small "d", 20 in structuring our school systems, our school 21 system here in the city of New York, and to 22 bring it as close as possible to the people on a 23 -- on a viable level. We've attempted to do 2691 1 that with community boards with respect to other 2 matters where they are advisory. 3 I believe that the genesis and 4 the description of the present structure of the 5 school system of the state of New York and the 6 city of New York was lucidly and with the 7 greatest precision, described by Senator 8 Lachman. 9 We go to the chancellor -- we go 10 to the Commissioner of Education in the state of 11 New York who was put in place by a Board of 12 Regents and is not elected by the people. This 13 is not a singular phenomenon in the state of New 14 York because we also have done the same thing 15 with the Court of Appeals, and notwithstanding 16 the fact that I sometimes have had very serious 17 differences with them, I would not advise us to 18 go back to an elective board of Court of 19 Appeals. 20 What do we have in the city of 21 New York? In the city of New York, we did have 22 local boards that were appointed by the mayor. 23 They were not bad boards. A lot of the problems 2692 1 that helped -- that occurred did not happen 2 because of a failure of those local boards. By 3 and large, the mayor -- mayors -- at that time, 4 it was Mayor Wagner, although there were serious 5 failings in the -- in the educational system 6 structure, the boards were by and large good 7 citizens, but they did not -- they were not the 8 expression of any vote. 9 I remember in 1961 being invited 10 to address a school in Arrochar, New York, 11 Staten Island, and I arrived there, and much to 12 my surprise, I saw that it was the object of 13 very rigorous attention. They were changing 14 broken panes of glass. They were painting. 15 They were fixing plumbing, and I said "Well, you 16 must be delighted", I said to the principal and 17 to some of the staff, "because other schools are 18 waiting patiently for some attention." He said 19 "Well, I would be delighted too, but in two 20 weeks from now, this school is scheduled for 21 destruction", and it was at that time that I 22 felt that we ought to get back a little closer 23 to the people so that at least one hand knows 2693 1 what the other is doing. 2 When we had a series of 3 experimentations that ended up in Oceanhill 4 Brownsville, as Senator Lachman mentioned, we 5 had some very, very serious difficulty, and I 6 remember going to Jim Allen who was then the 7 commissioner, am I correct, and Jim told me, he 8 said, "I have plenipotentiary powers, but if I 9 try to exercise them and I don't have an effect, 10 I have to be able to select my time and moment 11 within which I might exercise an impact on this 12 process", and obviously it was not available at 13 that time, but he did exercise responsibility, 14 in some respects, a little further down the 15 road. 16 When we finally formulated a 17 decentralization process, there were many 18 conflicting interests that had to be harmonized, 19 and you described it correctly. It couldn't 20 have been done better, as if we were just 21 reliving those moments, and I remember just how 22 much power could we devolve to elected boards 23 where there's no proven track record and 2694 1 experience, and the feeling generally was that 2 we would re-address this issue after some 3 experience. At that time, the deputy mayor of 4 the city of New York who was carrying the coals 5 for Mayor Lindsay, Bob -- he's on the federal 6 court right now. Somebody will help me out - 7 do you remember? Bob Sweet, exactly. And the 8 commissioner, Commissioner Allen, felt that some 9 positive powers should be given to the boards, 10 but they weren't the complete array, and your 11 characterization of a quasi-board was not 12 inaccurate. 13 We also -- at that time, the 14 question came up whether non-citizens could 15 vote. Well, it went into the courts and at one 16 district level, they said yes and at another 17 district level, they said no, and they decided 18 not to appeal, but those of you who don't come 19 from New York City, is it possible for someone 20 -- and I'm not saying that it was a -- it was a 21 noble experiment in New York, and I don't think 22 much happened that we can regret -- they were 23 parents and maybe it was a good treatment of it, 2695 1 but is there one Senator from outside the city 2 of New York who can tell me that non-citizens 3 can vote in the election of their boards? They 4 can't because it's in the law, and any follow-up 5 would have taken that right away in the city of 6 New York, but it was an attempt to accommodate 7 to the -- as much as possible, the people who 8 were involved in the school system and to 9 generate from that closer involvement by parents 10 and by districts with these parallel efforts 11 being made in community boards, so that we 12 achieve some degree of decentralization in a 13 city that was over-centralized, and that was the 14 purpose, but as Senator Lachman pointed out, we 15 were -- we did not track that -- we did not 16 track the system as some people have described 17 it. 18 Senator Stavisky, of course, has 19 made contributions that are enduring for 25, 30 20 years. He made mammoth contributions to the 21 educational system of this state, and they are 22 enduring contributions, but this situation, I 23 believe is totally accommodated by the 2696 1 legislation that's offered by Senator Padavan 2 and which has the support of the City in an 3 effort to proceed with the elections and at 4 least in those districts where there is a 5 feeling that there is a hemorrhaging with ample 6 rights to appeal and to seek justice and obtain 7 justice if it's necessary, not to let it fester 8 and continue. 9 So it makes -- it makes eminent 10 sense, I think, at this point to go forward. 11 I'm not quite sure that I can go along with my 12 colleague on the question of a sunset because I 13 agree with you, sir, that at some point I would 14 hope that a restructuring process proceeds. We 15 do need a restructuring process, and I wouldn't 16 want -- want it to be construed in any way as 17 being at odds with a restructuring that's 18 meaningful. 19 Do you think that I was quiet and 20 happy with circumstances as they were four or 21 five years following the -- I fully expected - 22 you know, when we started out, we had our first 23 chancellor, but not right away. It took 2697 1 considerable time, didn't it, Senator Lachman, 2 and you have a very -- we used to discuss these 3 things way back in those days. I knew him 4 personally, and we used to discuss these 5 matters. 6 I was very disturbed that we did 7 not revisit with a consensus and critique so 8 that we could take some of the burrs out. What 9 had happened, of course, initially, the Board of 10 Education became the chancellor. We conferred 11 that title for the precise reason you assigned. 12 We wanted someone who was strong and who would 13 exercise his responsibility with firmness. We 14 were looking for a strong name. That's how the 15 chancellor was born, and you brought it out in 16 public view, and you are absolutely correct. 17 That was the conversations we were having at 18 that time in trying to give it an appropriate 19 description, also with the substance that goes 20 with it, but it took a while before we could 21 find anybody to do that. 22 In the meantime, the Board of 23 Education became the chancellor. They were 2698 1 entertaining all the Mickey Mouse appeals and 2 everything else that was happening, didn't go to 3 a chancellor or to a channel that was 4 appropriate to the purpose. It was going to the 5 Board of Education, and they were struggling 6 manfully with this problem. They exercised 7 Herculean efforts to make sense, and it wasn't 8 easy. 9 I believe when I mentioned a 10 little earlier to you about Mr. Gross who came 11 in from Pittsburgh or Pennsylvania, he was a 12 front piece on Time Magazine as the savior 13 coming in. What happened? Some day I will 14 write a book. I'm not going to say all the 15 things that happened, but I will tell you there 16 was very serious impedance to a review of what 17 we had done, a review which I felt ab initio 18 should have been -- should have been implied and 19 said so at the time. 20 This is a system that had some 21 positive and dispositive powers granted to the 22 boards on restricted terms with residual 23 authority in the chancellor, who wasn't around 2699 1 at the time when it went into motion, but by 2 that time, groups, good groups who had the best 3 of intentions for the school system of the city 4 of New York, were learning how to live with it. 5 They were learning how to live with it. 6 I'll let you in on one thing and 7 some -- to some of my Hispanic friends, 8 proportional representation was very strong 9 there because they felt at that time -- and 10 that's not true today -- but the voting -- the 11 voting pattern of Hispanics in the city of New 12 York at that time, there were linguistic 13 difficulties; there were a lot of problems but 14 did not reach the level that exists today, and 15 they were very fearful that unless we did have 16 proportional representation, their 17 representation would have been minuscule. 18 At that time, Citizens Union 19 campaigned very heavily for that, and I remember 20 their unhappiness with the first election but 21 not with subsequent elections because virtually 22 no one made it, and that's the truth. The 23 record will bear me out. 2700 1 When we tackled that same problem 2 again finally with Angelo DelToro in the 3 Assembly, we had a very, very fine commission. 4 We made very positive -- we made a -- we made a 5 very positive offering to the people of 6 something that could fly, and I believe that it 7 would have, perhaps, and I'm not going to go 8 into the merits because some will say they were 9 right or they were wrong, but the rainbow 10 curriculum came along and everybody was 11 disoriented and diverted from the central. 12 There was no disposition at that point where I 13 could possibly get a group together to consider 14 restructuring of the City system while we were 15 being pulled and hauled and tugged by the debate 16 that was going on on this curriculum, rainbow 17 curriculum, and I'm not going to invite any 18 comment on that or point with pride or view with 19 alarm. I'm just saying the effect that it had 20 at that time, it provided so much -- so much of 21 a diversion, so much difference where this might 22 have been handled after we had solved the 23 problem of restructuring that we had difficulty 2701 1 reaching a solution. 2 This chancellor came in with a 3 school district smaller than the one on Staten 4 Island. The one on Staten Island isn't small, 5 mind you, because two years ago we said, "No. 6 You don't have to have a specific number." 7 There isn't a school district in the city of New 8 York that's so small that it compares poorly 9 with districts around the state. You have, 10 what, over 600 districts -- over 700 districts 11 in this state of New York. I would say 12 virtually all of them are smaller than the 13 average in New York City, and the chancellor 14 came from a very small district, smaller than 15 Staten Island's district, and he's struggling 16 manfully. There's not an evil, mean bone in his 17 body. He's trying very hard, and he recognizes 18 the fact that he can't have a festering wound 19 that continues to nourish and hurt people, 20 perhaps where the basis so eloquently described 21 by Senator Lachman is as slender as it is until 22 we redefine local governance. 23 We have a way here and it's 2702 1 supported also by the mayor to -- and it was 2 artfully presented, well presented by Senator 3 Padavan. The remedies are there, but it's 4 urgent that we act so that the elections can go 5 forward. 6 There was a critique made that 7 many times we -- we didn't reapportion. The 8 right was always in the board, but each and 9 every one of you know what the difficulty of 10 redrawing lines is going to mean, and I mean 11 about -- well, Staten Island -- Staten Island 12 doesn't want it. They just want to be Staten 13 Island. I said, "Well, you can have two 14 boards. You can have perhaps something even 15 better." "No, no. We like to be one island", 16 and they are one island for the Bar Association, 17 for almost anything that moves on Staten Island, 18 they like to think as an island, but let me tell 19 you when you start changing lines around the 20 city of New York, I don't care where whether 21 it's Republicans or Democrats, they don't like 22 it on their beat, and by this time there are 23 relationships that are built up and they're 2703 1 strong, and they know each other and they 2 interact on that basis, so that we have to - 3 the power is there, but it will have to be 4 defined, and we did have a system of definition 5 in the bill that -- and the legislation that was 6 recommended by the ones that -- the one that was 7 headed by myself and other fine members and 8 Angelo DelToro from the Assembly, but until we 9 get to that -- until we get to that point, it 10 makes eminent sense at this juncture to pass 11 this legislation, and I would hope -- I would 12 hope that we're earnest about restructuring, and 13 the systems that have been suggested of bi 14 house, if we have a bill here and they have a 15 bill in the other house, that we can't compose 16 them down the road. I don't want to see that 17 process impeded and certainly not slowed 18 forever. 19 We have to find ways -- I myself 20 have advocated the system of bringing the vote 21 to November where people really vote. They 22 really turn out. I don't know the people that 23 turned out that are turned out by someone, by 2704 1 some groups, but we don't have the joinder of 2 the greater public. 3 At this point, however, Mr. 4 President, I do hope that -- and I'm grateful to 5 the Senator over here for giving us -- for 6 starting this and bringing us back to the 7 genesis and the roots of the educational system 8 in this state and especially the city of New 9 York and describing it realistically in the 10 terms that it exists, but I do hope that this 11 bill does meet with the approbation of this body 12 and that we keep our eye on an early rejoinder 13 of the effort that had been made on the question 14 of school restructure, so that a lot of the 15 concerns -- and I haven't heard anything said 16 here that wasn't said with sincerity. I haven't 17 heard anything here that offended me in any way, 18 because all of you were attempting, with great 19 enthusiasm and intensity and commitment, to do 20 something worthwhile for the people you 21 represent, and whether any of us were accurate 22 in defining the solution, certainly the effort 23 that was being made in the spirit that it 2705 1 engendered, I think is helpful to the school 2 system of the city of New York. 3 ACTING PRESIDENT KUHL: Senator 4 Skelos, why do you rise? 5 SENATOR SKELOS: What time did 6 the debate start on this? 7 ACTING PRESIDENT KUHL: I am 8 informed by the Journal Clerk that it started at 9 4:18. 10 SENATOR SKELOS: Well, if we can 11 wrap up in about three minutes, which I'm sure 12 we can -- but, no, I know there are right now, I 13 believe three more speakers scheduled. 14 ACTING PRESIDENT KUHL: That's 15 correct. 16 SENATOR SKELOS: If we could try 17 to -- we'll extend the courtesy. If we could 18 try to wrap it up as quick as possible, it would 19 be wonderful. 20 ACTING PRESIDENT KUHL: The Chair 21 recognizes Senator Mendez. 22 SENATOR MENDEZ: Mr. President, I 23 will be very brief. The first question would be 2706 1 why are we considering this bill here today? We 2 recall that a few weeks ago, the chancellor of 3 the -- of New York asked all of us to postpone 4 the school board elections. We have done so 5 three years ago, but out of sheer cowardice, we 6 postponed it again and, therefore, in a hurry, 7 this so-called compromising bill -- bill with 8 compromises was arrived at. I think that - 9 what is being claimed that the school system is, 10 in fact, in a state of crisis, that is nonsense, 11 nonsense. 12 What we're trying to do with this 13 bill, Mr. President, is to give powers to the 14 already existing powers that the chancellor 15 has. We don't have to deny civil rights. We 16 don't have to deny the voters rights to -- to 17 elect whoever they want to. We don't have to do 18 that. All that we have to do is put aside this 19 bill, allow the elections to take place on May 20 7th, and then the chancellor, with all his 21 powers, could go back and go through the process 22 and suspend whoever he wants to. 23 What to me is very disturbing is 2707 1 all these allegations about corruptions, about 2 mismanagement of funds, that individuals whom I 3 do not even know are being accused of, and based 4 on allegations, to have the nerve to request 5 something -- a bill like this that denies rights 6 to everybody is something that, to me, is very 7 difficult to understand. 8 So I know that this bill is going 9 to pass. There is no justification at all in my 10 mind for this to take place if we're talking 11 about superseding, if we -- then we -- we, of 12 the Legislature, we could supersede the Central 13 Board of Education that has done such a very 14 nasty, bad job in administering the billions of 15 dollars that we send there, that has done such a 16 very bad job at educating our children, all 17 children because the public school system, Mr. 18 President, that has 40 percent of its student 19 body who drop out from school, there is 20 something rotten in Denmark when that occurs. 21 So as was mentioned before by 22 Senator Seabrook, ten days ago -- ten days ago, 23 a big scandal in terms of the custodians; what 2708 1 is going to be done about that? Nothing. 2 So this is a cop-out, like in 3 many other instances, not from the chancellor's 4 point of view, because the chancellor is truly 5 and genuinely interested in the education of 6 children, I believe, is a most decent and 7 competent man, but we are copping out because we 8 just did not dare suspend the school board 9 elections for three more years until the time 10 which it would come up with a good plan that 11 will benefit or make it possible for the system 12 to have teachers happily teaching in the school, 13 in the classroom and everybody in the system 14 working together, doing the most important thing 15 which is increase the achievement level of all 16 of the kids in the school system. 17 So this is sheer nonsense. Of 18 the ten years that I have served here, I have 19 never heard -- never known of such a nonsense, 20 such a horrible cop-out involving all people 21 related to the issue at hand. I vote no. 22 Thank you, Mr. President. 23 ACTING PRESIDENT KUHL: Senator 2709 1 Leichter. 2 SENATOR LEICHTER: I'll explain 3 my vote, Mr. President. 4 ACTING PRESIDENT KUHL: Senator 5 Markowitz. 6 SENATOR MARKOWITZ: Thank you 7 very much, Mr. President. 8 This afternoon, and I almost can 9 say this evening, I have witnessed and heard a 10 voice even louder than mine, Senator Seabrook. 11 So it's a pleasure to have another high pitched 12 voice here. 13 Secondly, as I look in the eyes 14 of my colleagues, I know you're hungry, so let 15 me be brief and say that District 17 is in the 16 heart of my district, and it's one of those that 17 the chancellor superseded. 18 Throughout the arguments, from 19 the historical perspectives of Senator Marchi to 20 the concerns that the Republicans challenged of 21 Senator Waldon, I have to tell you that the 22 thing I want to hear the most are the children. 23 What's happening with the kids? And, 2710 1 unfortunately, in some of the school districts 2 in New York City, those children that need it 3 the most, that need the best education are 4 oftentimes getting the worst, and so there has 5 to be an authority, someone that could step in 6 and give direction, to give these children hope 7 that tomorrow will offer them a better education 8 than today. 9 In my district, District 17, I 10 have to say that while corruption has not yet 11 surfaced and may not, nonetheless three 12 different political efforts were part, and so 13 the school board was not able to come up with 14 any working majority and, therefore, principals, 15 assistant principals and everything else that a 16 school board votes for went by the wayside and 17 nothing got done, and what happens then? It 18 translates into the failure of education 19 delivery to children. 20 And so, Chancellor Cortinez 21 superseded the board and appointed some 22 residents of the community and some of his staff 23 and they, in turn, appointed an outstanding 2711 1 administrator by the name of Barbara Byrd 2 Bennett. What has this wonderful woman done? 3 She has brought order. She has brought 4 educational excellence to a district that has 5 been crying for her for years. 6 What this bill would do would 7 allow her and others in a similar situation at 8 least another year to set the groundwork so that 9 when democracy is restored fully -- and it will 10 be, and it should be -- when the parents begin 11 voting, as they should be, when the parents 12 begin paying greater attention to what's going 13 on in the schools that they send their kids to 14 -- and it should be, and it will be -- when 15 that is restored, at least another year will be 16 given to these boards to set the standards so 17 that whoever is elected and takes office will 18 work on excellence in education, and that's what 19 I -- that is the reason why I support this bill. 20 ACTING PRESIDENT KUHL: Senator 21 Pad... excuse me. Senator Connor. 22 SENATOR CONNOR: Mr. President, 23 to close for the Minority. 2712 1 Mr. President, I admit that at 2 first reading of this bill, I was somewhat 3 appalled. It does offend our usual concepts 4 about democracy with a small "d". It's 5 certainly extraordinary to have people elected 6 in an election who will not take office for 7 another year because their powers would be under 8 suspension but, you know, compared to the 9 alternative, Mr. President, postponing the 10 election for all 32 districts -- which I would 11 have remained in support if the chancellor had 12 asked in early January, frankly, but I know that 13 -- I know people running for school board, they 14 have been out in the cold weather, getting 15 petitions, filing petitions, they're in the 16 middle of a process, and I think it would have 17 been damaging throughout the City in every dis 18 trict, damaging to the concept of participation 19 that this whole community school governance 20 scheme has worked so hard to increase. Parents 21 out there who got petitions, lined up friends 22 would have been told, "No. The election is 23 postponed. All your efforts didn't matter", and 2713 1 it seems to me that that would have been far 2 more discouraging to people participating in 3 school board elections, to people getting 4 involved and more confusing to the voters than 5 this rather extraordinary legislation which does 6 put a kind of dent in the normal theory we're 7 used to dealing with, and I know the press has 8 talked about, well -- and perhaps the chancellor 9 did mention it, "Oh, it's about corruption and 10 rooting out corruption". 11 Mr. President, the whole problem 12 with this governance system in New York City, we 13 know it was conceived and birthed in Albany 14 amidst great political turmoil and strife, much 15 conflict between communities, very intense, 16 emotional content to those debates, and we came 17 up with this system of community governance, and 18 frankly -- and I've seen community school board 19 elections. In a past life I've represented 20 candidates running for a community school board, 21 and we've seen it never quite live up to its 22 billing, and if I may, Mr. President, what we 23 did in this system ultimately is we gave certain 2714 1 powers to community residents and we didn't give 2 them what it took to back it up. 3 You know, we say to parents, 4 "Come forward. Get on a school board. Get 5 involved", and when they get on a school board, 6 we say, "Here, deal with this budget. There's 7 40- or $50 million in discretionary funds 8 there. Figure out what to do with it", and 9 we're handing it to people who perhaps have 10 never seen a budget in their life, in some 11 cases, and naturally depending on the level of 12 sophistication and economic status, in some 13 cases of different districts, there are 14 districts where we say to people on the school 15 board, "Go and interview. Pick principals - 16 pick principals who will make 60-, 70-, 75,000 a 17 year. Pick a superintendent who may make 100 18 some thousand a year. Here's a process. 19 Interview, report, evaluate", but did we ever 20 train these people how to interview, how to 21 evaluate? 22 There are many, many of our 23 citizens, fine people who could make a 2715 1 contribution, but they may not have had any 2 experience interviewing somebody, and they may 3 have succumbed to the best salesperson in the 4 interviews, the smoothest, most charming 5 candidate. 6 I know I made mistakes in my 7 early days when I first had to interview and 8 hire people. You know, it takes a while to get 9 a knack for it. We never gave the kind of 10 training to these community school board people, 11 and over the years we have had the horror 12 stories. This district or that district has a 13 reputation for corruption, and it pops up and it 14 recurs. How do they get there? "Oh, gee, 15 nobody votes in that district. It only takes a 16 few hundred votes. Little cliques take 17 control", and in other districts it becomes a 18 war between politicians. 19 So redistricting was never 20 accomplished. Paralysis -- political paralysis 21 in governance. We had Senator Marchi's 22 commission propose 50 more districts. We've had 23 other proposals, abolish the districts. Do 2716 1 this. Have school-based management. We have a 2 proposal the Assembly put out this year. 3 Nothing ever happens. Political paralysis in 4 this Legislature. Why? Because there are 5 political interests in the status quo. There 6 are people who have their captive district or 7 two and don't want to see things change, and we 8 fight this in a political arena, but what's it 9 really about? It's about the children. 10 Generations of school children in some of these 11 school districts have come into the schools and 12 graduated from the schools and another 13 generation has come in and graduated from the 14 schools while these fights have gone on, and the 15 second generation can't read or write any better 16 than the first generation that went through the 17 system. There is something wrong, Mr. 18 President. 19 What about chancellors? 20 Chancellors have come and chancellors have 21 gone. Some have been great. Some have been 22 good. Some have had the misfortune to leave us 23 too soon because of illness. Some we've seen 2717 1 chased out of town by a mayor. We now have a 2 chancellor, Dr. Crew, seems to come in, wide 3 respect. I've met with him several times. I am 4 impressed. Parents report, they feel he is 5 concerned and has taken the right steps. 6 My first reaction to this bill, 7 Mr. President, was, No, we're not going to do 8 that. We're going to have elections and suspend 9 them, and then I met with Dr. Crew, and he made 10 his case, and his case -- he didn't talk, 11 Senator, about corruption, and I asked him the 12 hard questions like, well, if you get nine brand 13 new people elected to the board -- they weren't 14 part of the crew that either were negligent or 15 perhaps culpable or, as Senator Markowitz 16 pointed out, just totally immobilized and 17 neglectful because of their internal political 18 conflicts. These are brand new people, in 19 District 17, for example, and he said, "Well, I 20 hope we do", and I said, "So they win election 21 and you're going to tell them you can't take 22 your seat", and he said, "Senator, do you really 23 want to saddle a brand new school board of nine 2718 1 new people with the job of picking a 2 superintendent, 23 principals, 15 assistant 3 principals, all these things that were left 4 vacant?" It would take them their three-year 5 term just to go through the interviews, and 6 first they'd have to be trained how to conduct 7 an interview, what to look for in a principal or 8 a superintendent or whatever. He said, "I want 9 to give these people a chance. I want to work 10 with them for that year, but I want to have the 11 power to make sure that the structure is rebuilt 12 in that district so that these people can take 13 over and have a healthy, thriving district." 14 Mr. President, I couldn't help 15 getting the impression the four districts we're 16 all focused on, because I notice that here, the 17 members who represent the largest parts of these 18 four districts support this bill. 19 I can't help thinking there might 20 not be some other districts that will be 21 subjected to this provision, and at first I 22 thought, "That's terrible", and then I thought, 23 "Wait a minute. We have a chancellor. We want 2719 1 to hold him accountable. We want change. We 2 have to give him the tools to build the 3 educational infrastructure to have that kind of 4 change." 5 Now, I don't like this idea of 6 suspending these people after the election, but 7 for this year, for this chancellor, under these 8 circumstances -- and we all know he's only been 9 in office a relatively short time, and he came 10 in amidst a great deal of controversy. Frankly, 11 I'm surprised we got someone of his qualifica 12 tions, dedication and will to take that job 13 because after the last chancellor was, I believe 14 unfairly chased out of town, I thought no 15 reputable educator will take that job, and as 16 that so-called process that the Board of Ed' 17 went on about who would be the next chancellor, 18 I became even more convinced that we would end 19 up with no one, but we got Dr. Crew, and he's 20 doing a good job, and I say let's give him the 21 tools. Let's hold him accountable. Let's give 22 him his year to identify those districts that 23 just aren't making it, to set goals, to build 2720 1 that infrastructure and then to put the 2 community school boards into power with 3 something they can work with and deal with after 4 they've been trained and they have been handed a 5 working system in their community school 6 districts. 7 And I said to Dr. Crew, "You 8 know, I'm willing to go with you. What about 9 some future chancellor, some future school board 10 election", because I doubt in my lifetime this 11 Legislature will ever develop the will -- I 12 regret it but I doubt it -- will ever develop 13 the will to deal with school governance in an 14 appropriate way. I said, "What about some 15 future chancellor", and then it occurred to me, 16 I said, "Doctor, what if we sunset this? What 17 if we make it just now? This is your chance, 18 Rudy Crew's chance, to deliver for the people of 19 New York, for the children of New York, but it's 20 not a power we are going to invest in the 21 permanent education law." 22 And I'm happy to say, Mr. 23 President, he was receptive to the idea. Others 2721 1 in this Capitol were receptive to the idea. I 2 believe we shall see a chapter amendment that 3 will limit this so that it's only this school 4 board election it applies to, and under those 5 circumstances, given the fact that the Board of 6 Ed' for all those years failed to bite the 7 bullet and do what had to be done about 8 districting, that this Legislature, after 9 studies and commissions and experts has failed 10 to deal in any real way, in any serious way with 11 the needs of this system for revisions of the 12 governance, and the fact that through decades 13 and in many cases, Mr. President, precisely 14 those communities that the community system was 15 supposed to empower have been the communities 16 whose children have been cheated the very, very 17 most and whose children need education and that 18 -- and a good system the very, very most. 19 In view of all that, I'm prepared 20 to say, let's give Dr. Crew his chance. Let's 21 hold him accountable and let's do this bill. So 22 I am voting yes, Mr. President. 23 ACTING PRESIDENT KUHL: The Chair 2722 1 recognizes Senator Padavan to close debate. 2 SENATOR PADAVAN: Thank you, Mr. 3 President. 4 Anything I would say probably at 5 this juncture would be redundant, you all agree, 6 but I do want to take this opportunity to thank 7 Senator Lachman for his historical perspective. 8 The newest among us sometimes contributes a 9 great deal and, of course, Senator Marchi having 10 been involved way back in 1969 with the 11 decentralization law that we're now amending. 12 I hope that what Senator Connor 13 -- and I agreed with 99 percent of what he had 14 to say -- but I hope one thing that he said is 15 not true, in that before this session is over, 16 despite the fact that there are eight or nine 17 different recommendations as to how we should 18 restructure the Board of Education -- and this 19 house having passed one of those proposals, the 20 Marchi bill in '93, and I hope we do it again, 21 but in any event, I hope that both houses and 22 both sides and all of us and those down in the 23 City, the Board of Education and the mayor, and 2723 1 so on, can get together and do something that 2 restructures the entire system, and I hope his 3 prophecy fails in that regard because this bill 4 is simply a measure to deal with a short-term 5 situation that we're faced with. It doesn't 6 improve the system beyond that. It's never been 7 suggested. I certainly haven't, that it would. 8 It's something we have to do as a matter of 9 necessity. 10 So with that final point, Mr. 11 President, I would ask you to read the last 12 section. 13 ACTING PRESIDENT KUHL: The 14 Secretary will read the last section. 15 THE SECRETARY: Section 4. This 16 act shall take effect immediately. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll.) 20 ACTING PRESIDENT KUHL: The Chair 21 recognizes Senator Smith to explain her vote. 22 SENATOR SMITH: Thank you, Mr. 23 President. 2724 1 I've heard it said today that 2 this is an imperfect world and this is an 3 imperfect bill, but we cannot continue to 4 compound our mistakes. 5 I stand ready to work day and 6 night on the restructuring of school 7 governance. I pledge my support for reform - 8 for reform which would provide for quality 9 education for all of our children, but I'm not 10 ready to give up on the empowerment of 11 communities and the rights of people. I'm not 12 ready to give up on due process and voters' 13 rights which take precedence over expediency. 14 Therefore, I vote no. 15 ACTING PRESIDENT KUHL: Senator 16 Smith will be recorded in the negative. 17 The Chair recognizes Senator 18 Leichter to explain his vote. 19 SENATOR LEICHTER: Mr. President, 20 I am concerned that there's a lack of logic in 21 this bill and that we are, in some respects, 22 bending democratic and due process principles, 23 but I don't know if we have an alternative 2725 1 because we're dealing with a system that is so 2 badly flawed, a system that is so illogical, I 3 don't know how you correct it or how you deal 4 with the situation we face of a school board 5 election without taking an action of this sort, 6 and I want to say I'm certainly influenced by 7 comments of many of my colleagues, certainly 8 Senator Lachman, Senator Espada, Senator Connor 9 and others. I think we are dealing with a 10 particular situation which is an election that 11 is being held and with the responsibility that 12 we have to the school chancellor of giving him 13 the authority to act in districts where the 14 educational level, for many reasons and not just 15 due to the school board, is unfortunately 16 extremely low. 17 One theme that certainly was true 18 in all the comments of those that were for and 19 against the bill is strong dissatisfaction with 20 the present system and an agreement that I think 21 every member, not only in this house but in the 22 other house shares that this system that we have 23 now must be swept away. 2726 1 I was also here in 1969 and I 2 voted against the decentralization bill, and 3 since then I've seen all of the efforts to 4 change it. The one thing that's clear to me is 5 that there is no issue where fierce politics 6 intrudes as it does in school governance of the 7 city of New York and, frankly, I doubt -- I 8 doubt very much that this Legislature could come 9 up with a governance plan for the city of New 10 York that will work and serve the children of 11 that city. 12 I've urged for some time that we 13 set up a commission, that we recognize just as 14 the Congress did with school-based -- with 15 military base closings, that the politics are so 16 difficult that you need a commission to guide 17 the Congress, and I think we need the same thing 18 in school governance. I hope I'm wrong. I hope 19 by the end of this year we will see agreement 20 among the two houses; we will see a bill that 21 will be supported by the broader community, by 22 the mayor, by the chancellor. I doubt that very 23 much, and I would really say, if we can't do it 2727 1 this year rather than continue to fail the 2 children of the city of New York, to embarrass 3 ourselves by the inability to act in spite of 4 the fact that we have people such as Senator 5 Marchi and many others who have devoted so much 6 time in trying to deal with the problem that we 7 go the route of the commission, but to allow 8 this election to go forward, Mr. President, I 9 vote yes. 10 ACTING PRESIDENT KUHL: Senator 11 Leichter will be recorded in the affirmative. 12 Senator Gonzalez to explain his 13 vote. 14 SENATOR GONZALEZ: Yes, Mr. 15 President. I think that much has been debated 16 and it's -- part of this is that the whole 17 system needs to be changed, and we have been 18 passing it by, and we continue to pass it by, 19 but I'm concerned with -- that for the 27 years, 20 that we're going over on 30 years, that no 21 reapportionment, no nothing, and we keep going, 22 passing by and we're going to do a patch up 23 work. I want to stop corruption. I want to do 2728 1 what is necessary for the kids, but then let's 2 not have voting. Let's have appointment so that 3 we can remove people when we want to because the 4 basic fundamental rights on people voting and 5 having their rights protected. It is wrong to 6 not have the due process on each person who is 7 running for office or whatever they're doing, 8 any one of us, due process should take on them 9 if you stand accused and stand convicted, and 10 with that, I will vote in the negative. 11 ACTING PRESIDENT KUHL: Senator 12 Gonzalez will be recorded in the negative. 13 Senator Stavisky to explain his 14 vote. 15 SENATOR STAVISKY: Whenever there 16 is a frustration with regard to the delivery of 17 educational services and unhappiness over the 18 way that many children fail to avail themselves 19 of their right to a decent education, the 20 easiest thing in the world is to recommend that 21 we change the system of governance. That 22 becomes a distraction. That becomes an easy 23 course of action, to distract from the main 2729 1 point. 2 What is the relationship between 3 the method of selection of school board members 4 and a failure or lack of failure to deliver 5 educational services in a manner in which 6 children actually learn and improve their 7 performance in basic and also in advanced 8 skills? 9 That's the question we ought to 10 be asking. What is the relationship between 11 what we're doing tonight and what we hope to 12 achieve? If anyone could demonstrate that there 13 is a close relationship between school 14 governance and the ability of children to learn, 15 I would have no objection, but I think there are 16 deeper or diversified reasons for failure. 17 Is the state education aid 18 formula apportioned in a fair method by the 19 Legislature? Do the children of New York City 20 receive anything comparable to their numbers and 21 to the special needs that they have with regard 22 to families, in many cases, that are 23 dysfunctional, children for whom English is not 2730 1 the primary language, disabilities? What's the 2 relationship of governance to those issues? 3 What's the relationship of governance to the 4 ability to hire and keep competent educators? 5 I noticed the groups that were 6 supporting this bill. Would the groups 7 supporting this bill like to have this standard 8 of removal applied to them? I don't think that 9 the teachers would wish to be removed on the 10 basis of allegations that are not proven. I 11 don't think the supervisors who also have their 12 names identified with supporting this 13 legislation would wish to have their future 14 determined by an accusation that is not proven. 15 I don't think the Central Board of Education 16 members or the chancellor would wish to be 17 retained or dismissed on the basis of a - 18 flimsy reasons that have been cited. 19 I've looked carefully at Section 20 2590 (l), and there are no guidelines to speak 21 of with regard to proof, with regard to 22 wrongdoing and with regard to cause and effect. 23 I would like to see specific guidelines spelled 2731 1 out in the legislation which then would result 2 in a finding of guilt, violation of the law or 3 some other heinous lack of responsibility. 4 That's what the legislation needs, the existing 5 law. It doesn't need a blank check given to a 6 chancellor to remove everyone else. Maybe the 7 chancellor, in some case, at some future date 8 should be removed. Maybe the Central Board of 9 Education should be removed. 10 My colleague, Senator Lachman, 11 had a good judgment not to continue, but maybe 12 there are situations where the central board is 13 at fault. Why don't we examine the fact that 14 the Central Board of Education and the community 15 school boards are competitors -- are competitors 16 for scarce dollars, and it's in the best 17 interests of the central board and the 18 chancellor to have no competitor at the 19 community level. 20 ACTING PRESIDENT KUHL: How do 21 you vote, Senator Stavisky? 22 SENATOR STAVISKY: Under these 23 circumstances -- and I hope I haven't been 2732 1 reluctant to express my reservations -- under 2 these circumstances, I wish to be recorded in 3 the negative. 4 ACTING PRESIDENT KUHL: Senator 5 Stavisky will be recorded in the negative. 6 Senator Mendez to explain her 7 vote. 8 SENATOR MENDEZ: Yes, Mr. 9 President. 10 I happen to believe that 11 regardless of how critical a situation is, as it 12 has been alleged is the case in the public 13 school system of the city of New York, many 14 violating completely, those democratic ideas 15 under which this country was born and has 16 operated through the years, I think this bill 17 and the rationalizations that have been given to 18 sustain a vote in the affirmative for it brings 19 to my mind a clear realization that it is - 20 this is the process that is followed, 21 unfortunately, in many instances where fascist 22 governments are born. 23 So, once more, with great joy in 2733 1 my heart, I vote no. 2 ACTING PRESIDENT KUHL: Senator 3 Mendez will be recorded in the negative. 4 Senator Goodman to explain his 5 vote. 6 SENATOR GOODMAN: Mr. President, 7 for those Senators who were present at the 8 Education Committee meeting, my views on this I 9 think are now well-known, but I would like 10 briefly to reiterate them. 11 The condition of our schools in 12 certain school districts is lamentable. We have 13 corruption and we have mismanagement of a very 14 severe degree. Of that, there can be no 15 possible question. 16 It seems to me that our principal 17 task at this time is to equip the chancellor 18 with a set of tools to enable him to use his 19 good discretion and to try to clean up this 20 mess, and if we fall short of that responsi 21 bility, we're doing an enormous disservice to 22 students who desperately need their education as 23 keys to a better life which would otherwise be 2734 1 denied them. 2 Mr. President, the fiction that 3 this is a democratic procedure is at this point, 4 I think, amply exposed by virtue of the fact 5 that only five percent typically of the people 6 turn out for school board elections in the first 7 place. So this is an electoral system sadly in 8 need of repair so that it can truly be 9 democratic, but at this point it is certainly no 10 rape of democracy to have an imposition of a 11 good chancellor's discretion in cleaning up a 12 district. It certainly does not bring about 13 anything like a disjointing constitutionally of 14 a system that is supposedly reflective of the 15 will of the people. 16 The time is now, and the task is 17 immense. We should get on with it. I vote aye. 18 ACTING PRESIDENT KUHL: Senator 19 Goodman will be recorded in the affirmative. 20 Senator Dollinger to explain his 21 vote. 22 SENATOR DOLLINGER: Mr. 23 President, I'm not from the city of New York, 2735 1 but I have to respond briefly. 2 I guess I'm frightened by two 3 things. One is the notion that somehow the 4 number of people that vote in an election 5 determines the validity of the election. 6 Senator Goodman, we have school 7 board elections in Monroe County in which 40,000 8 people are eligible to vote and 1,000, 1500 9 people show up. We have fire commissions in 10 upstate New York that run fire budgets that have 11 huge numbers of people that they serve. In my 12 community, very politically active, we in many 13 cases get less than 100 people to vote. It 14 isn't so much how many people vote. It's the 15 fact that people do vote and they abide by 16 majorities. 17 It seems to me that what this is 18 all about, this debate is all about, is 19 something that I find scary, and that is the 20 notion that's embodied in the Board of 21 Education's memo, and it says that "the 22 chancellor's efforts to stabilize school 23 districts could be seriously jeopardized by 2736 1 upcoming elections." 2 Last time I saw that same line 3 was when Third World dictators were afraid of 4 democratic elections. Despite the fact, how 5 ever, that I believe that this is an experiment, 6 what we're doing today is an experiment in 7 anti-democracy, not an experiment in democracy, 8 I'm nonetheless, I guess, convinced by Senator 9 Connor, that under the unique circumstances 10 present here, under the circumstances of this 11 particular election, this particular circum 12 stance, based on a carefully thought out sunset 13 provision, I'm willing to do it for the kids 14 even though, in my judgment, the danger that 15 this poses is a very significant one. 16 Frankly, it may come back to 17 Rochester in New York. We have several schools 18 under review. We have had problems with our 19 parent boards in the city of Rochester and a 20 dispute between the parent boards which have the 21 same kind of quasi-elected status in some cases, 22 somewhat similar to these boards, but the notion 23 of governance is something that we've got to pay 2737 1 attention to. 2 Under the unique circumstances 3 present here, I will vote yes, but I think we're 4 marching down a road, Mr. President. We've got 5 to be very, very careful. 6 ACTING PRESIDENT KUHL: Senator 7 Dollinger will be recorded in the affirmative. 8 Announce the results. 9 Senator Onorato to explain his 10 vote. 11 SENATOR ONORATO: To explain my 12 vote. 13 I concur with a great deal of the 14 principles that the bill is trying to 15 accomplish, but I'm still concerned about the 16 lack of the sunset in the bill, and until -- I'm 17 one of the doubting Thomases that maybe it'll 18 come along and maybe it won't, and until such 19 time that it does, I will vote no on this bill, 20 and I will vote yes when the amendment arrives. 21 ACTING PRESIDENT KUHL: Senator 22 Onorato will be recorded in the negative. 23 Announce the results. 2738 1 THE SECRETARY: Those recorded in 2 the negative on Calendar Number 513 are Senators 3 Gold, Gonzalez, Mendez, Onorato, Seabrook, 4 Smith, Stavisky and Waldon. Ayes 52, nays 8. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 Senator Skelos. 8 SENATOR SKELOS: Mr. President, 9 if we could please return to reports of standing 10 committees, I believe there's a report from the 11 Civil Service and Pensions Committee at the 12 desk. 13 ACTING PRESIDENT KUHL: There is 14 a report. I'll return to reports of standing 15 committees and I'll ask the Secretary to read. 16 THE SECRETARY: Senator Trunzo, 17 from the Committee on Civil Service and 18 Pensions, offers up the following bills: 19 Senate Print 6378-A, by Senator 20 Hoblock, an act to amend the Civil Service Law, 21 in relation to volunteer transfer of state 22 personnel; 23 6624, by Senator Hoblock, an act 2739 1 to provide a retirement incentive for certain 2 public employees. 3 Both bills directly for third 4 reading. 5 ACTING PRESIDENT KUHL: The bills 6 are reported directly to third reading. 7 SENATOR LEICHTER: Mr. President. 8 ACTING PRESIDENT KUHL: Senator 9 Leichter, why do you rise? 10 SENATOR LEICHTER: Mr. President, 11 may I have unanimous consent to be recorded in 12 the negative on Calendar 434. 13 ACTING PRESIDENT KUHL: Without 14 objection. Hearing no objection, Senator 15 Leichter will be recorded in the negative on 16 Calendar Number 434. 17 Senator Skelos. 18 SENATOR SKELOS: Mr. President, 19 on behalf of Senator Bruno, I hand up the 20 following notice and ask that it be filed in the 21 Journal. 22 ACTING PRESIDENT KUHL: The 23 notice is received and will be filed. 2740 1 SENATOR SKELOS: Is there any 2 housekeeping at the desk? 3 ACTING PRESIDENT KUHL: Yes. We 4 need to return to reports -- or, excuse me - 5 motions and resolutions. 6 The Chair would recognize Senator 7 Marcellino. 8 SENATOR MARCELLINO: Mr. 9 President, on page number 25, I offer the 10 following amendments on behalf of Senator 11 Holland to Calendar Number 505, Senate Print 12 Number 6171 and ask that said bill retain its 13 place on third reading. 14 ACTING PRESIDENT KUHL: The 15 amendments to Calendar Number 505 are received 16 and adopted. The bill will retain its place on 17 the Third Reading Calendar. 18 The Chair recognizes Senator 19 Montgomery. 20 SENATOR MONTGOMERY: Mr. 21 President, a few days ago, the house voted on 22 Senate Bill 211, and had I been in the chamber, 23 I would have voted no. 2741 1 ACTING PRESIDENT KUHL: Senator 2 Montgomery, the record will reflect that had you 3 been in the chamber when the roll call was taken 4 on Calendar Number 211, you would have voted no. 5 SENATOR MONTGOMERY: Thank you. 6 SENATOR SKELOS: Mr. President. 7 ACTING PRESIDENT KUHL: Senator 8 Skelos. 9 SENATOR SKELOS: Is there any 10 other housekeeping? 11 (There was no response.) 12 Mr. President, for scheduling 13 purposes, session on Wednesday will be at 3:00 14 p.m. There will be a Majority Conference 15 tomorrow, Tuesday, at 2:00 p.m., and there being 16 no further business, I move we adjourn until 17 Tuesday, March 26th, at 3:00 p.m. sharp. 18 ACTING PRESIDENT KUHL: For the 19 benefit of the members, scheduling for session 20 has been changed on Wednesday, two days from 21 now, from 11:00 to 3:00 p.m. Tomorrow there 22 will be a Majority Conference at 11:00 -- excuse 23 me -- at 2:00 p.m. Without objection, the 2742 1 Senate stands adjourned until tomorrow at 3:00 2 p.m. 3 (Whereupon, at 6:55 p.m., the 4 Senate adjourned.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23