Tuesday, January 25, 2005

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 January 25, 2005 11 11:14 a.m. 12 13 14 REGULAR SESSION 15 16 17 18 LT. GOVERNOR MARY O. DONOHUE, President 19 STEVEN M. BOGGESS, Secretary 20 21 22 23 24 25

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(518) 371-8910 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 please come to order. 4 I ask everyone present to please 5 rise and repeat with me the Pledge of 6 Allegiance. 7 (Whereupon, the assemblage recited 8 the Pledge of Allegiance to the Flag.) 9 THE PRESIDENT: With us this 10 morning to give the invocation is Reverend Ken 11 Lombardo, associate pastor at Resurrection 12 Life Church in Cheektowaga. 13 REVEREND LOMBARDO: Can we please 14 bow our heads. 15 Father, we come to You in the name 16 of Jesus and want to thank You for this 17 awesome country that You have blessed us with. 18 We thank You for this fine state of New York. 19 And we thank You for each legislator that's 20 represented here today. 21 Lord, we ask that they would seek 22 Your wisdom and Your guidance on decisions to 23 be made regarding the State of New York. We 24 pray that discretion will guard them in all 25 their ways.

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(518) 371-8910 1 Lord, we pray for Your hand to 2 continue to bless this state in the 3 advancement and the economic development of 4 New York. We also pray, Lord, that the 5 prevalent needs of the needy will be satisfied 6 throughout our state. 7 We pray, Lord, for Your continued 8 hand of protection to watch over our state, 9 that Your hand would watch us and keep us 10 safe. 11 And we especially thank You for our 12 military that has been so faithful in 13 sacrificing their lives, laying their lives 14 down so that we can experience freedom, 15 independence and liberty. 16 Lord, we pray that You would keep 17 them safe, that You would watch over them, 18 that You would meet every need that they have, 19 that You would help them to fulfill their 20 mission and bring them home safe. 21 We ask now, Lord, that You would 22 just bless this session, that you would cause 23 it to be productive, and that much would be 24 accomplished. 25 We ask this in Jesus' name. Amen.

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(518) 371-8910 1 THE PRESIDENT: Reading of the 2 Journal. 3 THE SECRETARY: In Senate, 4 Monday, January 24, the Senate met pursuant to 5 adjournment. The Journal of Friday, 6 January 21, was read and approved. On motion, 7 Senate adjourned. 8 THE PRESIDENT: Without 9 objection, the Journal stands approved as 10 read. 11 Presentation of petitions. 12 Messages from the Assembly. 13 Messages from the Governor. 14 Reports of standing committees. 15 The Secretary will read. 16 THE SECRETARY: Senator Johnson, 17 from the Committee on Finance, reports the 18 following bills: 19 Senate Print 85, by Senator Skelos, 20 an act to amend the Limited Liability Company 21 Law and the Partnership Law; 22 215A, by Senator Volker, an act to 23 amend the Tax Law; 24 216A, by Senator Volker, an act to 25 amend the Tax Law;

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(518) 371-8910 1 And Senate Print 752, by Senator 2 McGee, an act to amend the Tax Law. 3 All bills ordered direct to third 4 reading. 5 THE PRESIDENT: Without 6 objection, all bills directed to third 7 reading. 8 Reports of select committees. 9 Communications and reports from 10 state officers. 11 Motions and resolutions. 12 Senator Skelos. 13 SENATOR SKELOS: Madam President, 14 I move that we adopt the Resolution Calendar, 15 with the exception of Resolution 199. 16 THE PRESIDENT: All in favor of 17 adopting the Resolution Calendar, with the 18 exception of Resolution 199, please signify by 19 saying aye. 20 (Response of "Aye.") 21 THE PRESIDENT: Opposed, nay. 22 (No response.) 23 THE PRESIDENT: The Resolution 24 Calendar is adopted. 25 Senator Skelos.

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(518) 371-8910 1 SENATOR SKELOS: Madam President, 2 if we could take up Resolution Number 199, by 3 Senator Meier, have the title read and move 4 for its immediate adoption. 5 THE PRESIDENT: The Secretary 6 will read. 7 THE SECRETARY: By Senator Meier, 8 Legislative Resolution Number 199, celebrating 9 the first annual Susan B. Anthony Day of 10 Commemoration in the State of New York on 11 February 15, 2005. 12 THE PRESIDENT: The question is 13 on the resolution. All in favor please 14 signify by saying aye. 15 (Response of "Aye.") 16 THE PRESIDENT: Opposed, nay. 17 (No response.) 18 THE PRESIDENT: The resolution is 19 adopted. 20 Senator Skelos. 21 SENATOR SKELOS: Would you please 22 take up Calendar Number 6, Senate Print 216A. 23 THE PRESIDENT: The Secretary 24 will read. 25 THE SECRETARY: In relation to

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(518) 371-8910 1 Calendar Number 6, Senator Volker moves to 2 discharge, from the Committee on 3 Investigations, Assembly Bill Number 1500 and 4 substitute it for the identical Senate Bill 5 Number 216A, Third Reading Calendar 6. 6 THE PRESIDENT: Substitution 7 ordered. 8 The Secretary will read. 9 THE SECRETARY: Calendar Number 10 6, by the Assembly Committee on Rules, 11 Assembly Print Number 1500, an act to amend 12 the Tax Law. 13 THE PRESIDENT: Senator Volker. 14 SENATOR VOLKER: Madam President, 15 this is an -- I think, given the nature of the 16 situation under our new rules here, I would 17 just like to explain quickly what this bill 18 is. 19 This is an extender of the Erie 20 County sales tax, which would make the Erie 21 County sales tax 8 percent, or 8 and a 22 quarter, because of our quarter, which we 23 expect to let drop after the first of the 24 year. 25 But this extender is the extender

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(518) 371-8910 1 relating to what I call a Rutkowski tax. 2 There is another bill, which we do not have a 3 home rule for, which is the Giambra tax, we 4 call it, which is the request for another 5 1 percent. 6 This bill does not have any sharing 7 in it, which I think Senator Brown has a 8 problem with. The next bill does, the other 9 bill, which will not move today because it 10 does not have a home rule. 11 The problem is if we don't do this 12 bill -- and what we're doing here today is 13 enabling the Erie County Legislature to do the 14 1 percent. If we don't do it, there will be a 15 huge hole in the Erie County budget. I don't 16 have to explain it to everybody. 17 So that's what this bill is. We 18 are not doing a tax. This is an enabling 19 legislation. The tax will actually be done by 20 the Erie County Legislature. And we do have a 21 home rule with 10 votes, which is two-thirds 22 of the Erie County Legislature. 23 THE PRESIDENT: Senator 24 Stachowski. 25 SENATOR STACHOWSKI: Madam

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(518) 371-8910 1 President, if Senator Volker would yield for a 2 question. 3 SENATOR VOLKER: Yeah, I can. 4 Okay. Sure. 5 THE PRESIDENT: This is the 6 noncontroversial calendar, Senator. 7 SENATOR STACHOWSKI: Oh, I 8 thought we were -- can we lay this aside to 9 the controversial, because I have a couple of 10 questions. 11 THE PRESIDENT: Senator Skelos. 12 SENATOR SKELOS: Lay the bill 13 aside. 14 And if we could then go to the 15 controversial calendar. 16 THE PRESIDENT: The bill is laid 17 aside. 18 Senator Skelos, that completes the 19 reading of the noncontroversial calendar. 20 SENATOR SKELOS: Then if we could 21 ring the bells and go to the controversial 22 calendar. 23 THE PRESIDENT: The Secretary 24 will read the controversial calendar. 25 THE SECRETARY: Calendar Number

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(518) 371-8910 1 6, substituted earlier today by the Assembly 2 Committee on Rules, Assembly Print Number 3 1500, an act to amend the Tax Law. 4 THE PRESIDENT: Senator 5 Stachowski. 6 SENATOR STACHOWSKI: Madam 7 President, if Senator Volker would yield for a 8 question. 9 THE PRESIDENT: Senator Volker, 10 do you yield for a question? 11 SENATOR VOLKER: Certainly. 12 THE PRESIDENT: Proceed, Senator 13 Stachowski. 14 SENATOR STACHOWSKI: Senator 15 Volker, every year for years the conversation 16 in Western New York and Erie County in 17 particular has been, you know, why don't you 18 change the makeup of this 1 percent of the 19 sales tax. And the standard reason for always 20 doing it on noncontroversial calendar was 21 because the Erie County budget was done. 22 But from everything I've seen in 23 the papers and -- it still isn't done. So if 24 ever there would be a time to discuss this 25 1 percent, even before we ever get to the

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(518) 371-8910 1 additional 1 percent, you know, the easy way 2 for a county executive to balance his budget 3 without ever having to raise property taxes or 4 do any hard choices and still keep all your 5 friends on, this would be it. This would be 6 our chance to discuss that and see if that's a 7 better way of doing government or sharing with 8 everybody else and making them more stable. 9 And maybe someday when we think of 10 our option, instead of a Buffalo-Erie County 11 merger that we've all been reading about, we 12 could maybe go back to a system that worked 13 successfully, the old board of supervisors, 14 which would save an awful lot of money. 15 Because then the board of supervisors would be 16 doing the meeting and they would be agreeing 17 on what should be done in a municipal 18 agreement kind of way, and we wouldn't have to 19 worry about creating new municipal zones, et 20 cetera. 21 So wouldn't this properly be the 22 time to maybe discuss this 1 percent? Albeit 23 I know that in reality this would really put 24 him in a head-scratching mode. But with his 25 background as the City of Buffalo comptroller,

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(518) 371-8910 1 I would think that if anyone is capable of 2 finding a way out without losing any of his 3 friends, he might be able to do it. 4 SENATOR VOLKER: That's a lot to 5 answer, Senator. 6 I do have to admit to you that it 7 is a rather odd situation. Technically, the 8 budget is passed in Erie County, although it 9 is being challenged, if I understand. The 10 county legislature has not been able to get 11 the 10 votes to do the next sales tax. 12 It is true that the county real 13 property tax is 30 percent below what it was 14 six years ago, which is not well known, I 15 think, in Erie County. But there has not been 16 an increase in the Erie County real property 17 tax in many years. 18 But I think the problem is if we 19 don't do this 1 percent here -- which, by the 20 way, there's already a home-rule message 21 for -- we put the county in a position where 22 they would automatically be in a default 23 situation. And quite frankly, as I've 24 mentioned, possibly in a control board 25 situation. Because there's really, at this

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(518) 371-8910 1 point in January, not a great deal, I suppose, 2 that could be done. It would be awfully 3 difficult. 4 Frankly, you talk about 5 dysfunctional, unfortunately the county looks 6 a little bit dysfunctional right now because 7 here we are trying to patch holes in a budget. 8 But I think the problem really is if we don't 9 do this, they are in a total disaster 10 situation. So I would ask that we give them 11 the authority. 12 And by the way, they could do -- 13 could technically do something else, I 14 suppose, than this, although we don't seem to 15 have enough votes to do anything else. 16 SENATOR STACHOWSKI: Madam 17 President, if the Senator would yield for one 18 more question. 19 THE PRESIDENT: Senator Volker, 20 will you wield to another question? 21 SENATOR VOLKER: Certainly. 22 THE PRESIDENT: You may proceed, 23 Senator Stachowski. 24 SENATOR STACHOWSKI: Senator -- 25 and at the risk of being not germane, because

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(518) 371-8910 1 I want to ask you a question on the second 2 bill that we're not doing today. But it will 3 enable me with a clear conscience to support 4 this, because I hate to put him in a bigger 5 hole than he already has. 6 Isn't it true that the bill we have 7 at their request for 1 percent and has taken 8 well over a -- this is a couple of months late 9 now, isn't it true that that might not even be 10 the bill that they may request? Because 11 they're now talking about 3/4 of a percent 12 instead of a 1 percent, and then not giving 13 aid to the localities but yet to get some of 14 the votes he's going to still have to give aid 15 to the localities, et cetera. 16 So don't we -- I mean, for that 17 reason alone, I will probably vote for this. 18 But isn't it true that they don't even know if 19 they want 1 percent or .75 percent? 20 SENATOR VOLKER: That is true. 21 Although, you know, I believe -- and I may be 22 wrong on this, but I think that if they wanted 23 to do .75 or whatever it is, three quarters, I 24 don't think they would actually need another 25 bill. Because this enables them to enact 1

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(518) 371-8910 1 percent. But -- my counsel says they would 2 need another bill. I'm not so sure about 3 that. 4 It's never happened before. But 5 think about it. If we have a bill that says 6 you can add 1 percent and they pass a 7 resolution that says three-quarters of that, 8 we probably would have to reaffirm it, maybe. 9 But they probably could do it. 10 But you're right, they're now 11 arguing again over whether it should be less 12 than the 1 percent. 13 The other bill, as you know, has a 14 sharing provision in it which was agreed to by 15 the county legislature when they passed it 16 initially. 17 SENATOR STACHOWSKI: I'm sorry, 18 Madam President, I actually have one -- 19 absolutely one last question. 20 THE PRESIDENT: Senator Volker, 21 will you yield for one last question? 22 SENATOR VOLKER: I certainly 23 will. 24 THE PRESIDENT: You may proceed, 25 Senator.

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(518) 371-8910 1 SENATOR STACHOWSKI: Senator, 2 while you spoke you triggered something else 3 in my mind. 4 Do you think any of the money from 5 this extra 1 percent is the county money that 6 our county executive used to put on 7 commercials bashing all of state government 8 for their ineffectiveness and their not able 9 to do anything about Medicaid and it's because 10 of their ineffectiveness? 11 And this is now a bill that -- this 12 is now a budget that's not really settled that 13 was due on November 1st, but we're -- do you 14 think any of this money was used to pay for 15 those TV commercials? Because we do know he 16 used taxpayers' money. 17 SENATOR VOLKER: No, actually, 18 the TV commercials, as I understand it, were 19 monies that he -- were from his campaign fund. 20 And I think the only money I know of that was 21 county money was the money that was used to 22 send around slingers and so forth claiming 23 that with the extra penny it would take care 24 of Medicaid. 25 There was no television or anything

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(518) 371-8910 1 of that nature. That came, I think, out of 2 his campaign fund and from some money that was 3 raised from the business community in Buffalo, 4 from what I understand. 5 SENATOR STACHOWSKI: Thank you. 6 THE PRESIDENT: Does any other 7 member wish to be heard? 8 Senator Brown. 9 SENATOR BROWN: Thank you, Madam 10 President. 11 On the bill. 12 THE PRESIDENT: You may proceed 13 on the bill, Senator. 14 SENATOR BROWN: I'm going to be 15 voting against this increase in the Erie 16 County sales tax, this additional 1 percent 17 from 7 percent to 8 percent. 18 I've voted against increasing the 19 Erie County sales tax in the past. And the 20 reason I have voted against it is because this 21 additional 1 percent is not shared with the 22 City of Buffalo. The City of Buffalo, the 23 second-largest city in the State of New York, 24 the largest municipality in Erie County, the 25 City of Buffalo is still roughly a third of

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(518) 371-8910 1 the county population. 2 And when I look at the sales-tax 3 sharing in Monroe County with the City of 4 Rochester and I look at the sales-tax sharing 5 in Onondaga County with the City of Syracuse, 6 both of those counties share more of their 7 sales tax with their largest municipalities, 8 their largest cities. And those cities are 9 not the percentage of those counties that the 10 City of Buffalo is of Erie County. 11 So for that reason, I will be 12 voting against this additional 1 percent tax. 13 Senator Stachowski and Senator 14 Volker addressed the other bill that deals 15 with yet an additional 1 percent tax in Erie 16 County. That will raise our sales tax to 9 17 and a quarter percent, one of the highest 18 sales taxes in the entire state. 19 And when that comes before us 20 formally -- if it comes before us, if the 21 executive and the legislature can get their 22 acts together and it comes before us, I will 23 be voting against that tax as well. Because 24 even though there is some sharing of that 25 additional 1 percent tax with the City of

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(518) 371-8910 1 Buffalo, I don't think the sharing is enough. 2 I think we have to look at 3 supporting the second-largest municipality in 4 our state with more resources. And the only 5 growth tax in Erie County is the sales tax. 6 And I think Erie County needs to do better by 7 the City of Buffalo. So I will be voting 8 against this additional 1 percent. 9 THE PRESIDENT: The debate is 10 closed. 11 Read the last section. 12 THE SECRETARY: Section 4. This 13 act shall take effect immediately. 14 THE PRESIDENT: Call the roll. 15 (The Secretary called the roll.) 16 THE PRESIDENT: Senator Maziarz, 17 to explain your vote. 18 SENATOR MAZIARZ: Thank you, 19 Madam President. 20 Just very briefly, I am reluctantly 21 voting in favor of this bill. Because to vote 22 against this bill is really to vote to lay off 23 hundreds of Erie County employees, which would 24 be devastating to the County of Erie. 25 That's what you're doing when

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(518) 371-8910 1 you're voting against this bill, and that's 2 why I'm reluctantly voting in favor of this 3 legislation. 4 Thank you. 5 THE PRESIDENT: You will be so 6 recorded as voting in the affirmative, 7 Senator. 8 Senator Skelos. 9 SENATOR SKELOS: Madam President, 10 this is our first vote on the controversial 11 calendar. 12 We'll keep the roll call open, 13 because I know that there are a number of 14 members on both sides of the aisle that are at 15 a Finance subcommittee meeting. They've been 16 notified that we are on a controversial 17 calendar vote, and they will be coming over 18 shortly. 19 (Pause.) 20 THE PRESIDENT: Senator Skelos. 21 SENATOR SKELOS: Madam President, 22 are we at that point of announcing the 23 results? 24 THE PRESIDENT: The Secretary 25 will announce the results.

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(518) 371-8910 1 (Pause.) 2 THE PRESIDENT: Senator Skelos. 3 SENATOR SKELOS: If you could 4 announce the results. 5 THE PRESIDENT: The Secretary 6 will announce the results. 7 THE SECRETARY: Ayes, 50. Nays, 8 1. 9 THE PRESIDENT: The bill is 10 passed. 11 Senator Skelos. 12 SENATOR SKELOS: Is there any 13 housekeeping at the desk? 14 THE PRESIDENT: No, Senator 15 Skelos. 16 SENATOR SKELOS: Please recognize 17 Senator Oppenheimer. 18 THE PRESIDENT: Senator 19 Oppenheimer. 20 SENATOR OPPENHEIMER: Thank you 21 very much. 22 I would like unanimous consent to 23 be recorded in the affirmative on Calendar 6. 24 THE PRESIDENT: You are so 25 recorded, Senator.

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(518) 371-8910 1 SENATOR OPPENHEIMER: Thank you. 2 THE PRESIDENT: Senator Skelos. 3 SENATOR SKELOS: Is there any 4 housekeeping at the desk? 5 THE PRESIDENT: No, Senator. 6 SENATOR SKELOS: There being no 7 further business to come before the Senate, I 8 move we stand adjourned until Monday, 9 January 31st, at 3:00 p.m., intervening days 10 being legislative days. 11 THE PRESIDENT: On motion, the 12 Senate now stands adjourned until Monday, 13 January 31st, 3:00 p.m., intervening days 14 being legislative days. 15 (Whereupon, at 11:37 a.m., the 16 Senate adjourned.) 17 18 19 20 21 22 23 24 25

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(518) 371-8910