Regular Session - March 9, 1993
914
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9 ALBANY, NEW YORK
10 March 9, 1993
11 3:39 p.m.
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14 REGULAR SESSION
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18 SENATOR JAMES J. LACK, Acting President
19 STEPHEN F. SLOAN, Secretary
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915
1 P R O C E E D I N G S
2 ACTING PRESIDENT LACK: The
3 Senate will come to order.
4 Please rise for the Pledge of
5 Allegiance.
6 (The assemblage repeated the
7 Pledge of Allegiance to the Flag.)
8 The prayer this afternoon will be
9 given by the Reverend Tom Stiles, Pastor of the
10 First Baptist Church in West Seneca. Reverend?
11 REVEREND TOM STILES: Heavenly
12 Father, I thank You for a beautiful day. We
13 have to confess that we are a strange people
14 though. We take Your many blessings for
15 granted. We take a beautiful day for granted
16 until there's bad weather. We take our health
17 for granted until we're sick. Electricity is
18 something we're used to and take advantage of
19 every day, but then when the power is off we are
20 quick to complain.
21 And so, Father, I pray that today
22 we be a thankful people. I pray that freedom
23 would be something that we would be very
916
1 thankful for today, the liberty that we enjoy
2 because our forefathers had a vision and a dream
3 of a country of liberty. As we look at the
4 world scene, we see all these problems, Father,
5 and so we're thankful that we live in America.
6 I thank You for these men and
7 women that lead our great state, and I pray,
8 Father, that You give them wisdom today that
9 they might know what to do about the complex
10 issues that are facing our state. Help them to
11 understand that the purpose of government is to
12 punish evil, to promote goodness, to protect the
13 innocent, including the most innocent of all,
14 the unborn, to provide services for the general
15 well-being of our citizens.
16 Grant them Your blessing today.
17 Give them Your wisdom and guidance that the
18 decisions they make might be good. Thank You
19 for the privilege of liberty. May we always
20 protect it and defend it. In Jesus' name.
21 Amen.
22 ACTING PRESIDENT LACK: Thank you
23 very much.
917
1 Reading of the Journal.
2 THE SECRETARY: In Senate,
3 Monday, March 8th. The Senate met pursuant to
4 adjournment, Senator Farley in the Chair upon
5 designation of the Temporary President. The
6 Journal of Friday, March 5th, was read and
7 approved. On motion, Senate adjourned.
8 ACTING PRESIDENT LACK: Hearing
9 no objection, the Journal stands approved as
10 read.
11 Motions and resolutions. Senator
12 Present, we have a Resolution Calendar.
13 SENATOR PRESENT: Mr. President,
14 I move the adoption of the Resolution Calendar.
15 SENATOR GOLD: Yeah. Can we hold
16 Senator Larkin's 619, or at least open it up for
17 membership in the entire house?
18 SENATOR LARKIN: We can.
19 SENATOR GOLD: Don't need to hold
20 it, but you want to -- hold on. If I can just
21 point out to the chamber, this is a resolution
22 asking that a day of remembrance for the victims
23 of the Holocaust in the Warsaw ghetto uprising
918
1 and I know I and I assume many people would want
2 to be on it, so you want to put them all. Why
3 don't you take care of it? It's yours.
4 ACTING PRESIDENT LACK: Senator
5 Larkin.
6 SENATOR LARKIN: Mr. President,
7 on this Legislative Resolution 619 which was
8 asked by a constituent of mine who is a
9 Holocaust survivor, we put this resolution in,
10 and I would like to ask the members to please
11 join us so that we don't forget something that
12 will be a mark in international history.
13 ACTING PRESIDENT LACK: May I see
14 the hands of those Senators who would like to go
15 on Resolution Number 619? And, Senator Larkin,
16 with your permission and that of Senator Present
17 and Senator Gold, for those members who are not
18 here, the resolution will stay at the desk until
19 after session and, as you come to session, if
20 you'd like to be on Resolution 619, so indicate
21 so the desk, and you'll be placed on the
22 resolution until the end of the day.
23 Senator Present, is that all
919
1 right with you?
2 (Senator Present nods head.)
3 ACTING PRESIDENT LACK: On the
4 resolution -- with that understanding, on the
5 Resolution Calendar, all those in favor signify
6 by saying aye.
7 (Response of "Aye.")
8 Contrary nay.
9 (There was no response. )
10 The Resolution Calendar is
11 adopted.
12 Senator Cook.
13 SENATOR COOK: Mr. President, I
14 offer up the following privileged resolution,
15 waive its reading and ask its immediate
16 adoption.
17 ACTING PRESIDENT LACK: Secretary
18 will read its title.
19 THE SECRETARY: Legislative
20 Resolution, by Senator Cook, proclaiming the
21 month of March as Music in our Schools Month in
22 Sullivan County.
23 ACTING PRESIDENT LACK: All those
920
1 in favor, aye.
2 (Response of "Aye.")
3 Contrary nay.
4 (There was no response.)
5 The resolution is adopted.
6 Senator Mega for a privileged
7 resolution.
8 SENATOR MEGA: Mr. President, I
9 offer up the following privileged resolution and
10 ask that it be read in its entirety.
11 ACTING PRESIDENT LACK: Secretary
12 will so read.
13 THE SECRETARY: Legislative
14 Resolution, by Senators Mega, Marino and other
15 members of the Senate: Legislative Resolution
16 commending the city of New York, its citizens,
17 servants, police, firefighters, and emergency
18 medical personnel for their superlative efforts
19 during the bombing of the World Trade Center.
20 WHEREAS, consistent with the
21 duties of this legislative body to recognize the
22 contributions and achievements of the citizens
23 of this Empire State, we pay just tribute to the
921
1 men, women and children of the city of New York
2 for their response during the aftermath of the
3 bombing of the World Trade Center;
4 Attendant to such duty and fully
5 in accord with our long-standing traditions, we,
6 the elected representatives of the citizens of
7 the state of New York, duly assembled in this
8 legislative body, pause in our deliberations to
9 convey our deepest gratitude to the emergency
10 services personnel and our highest praise to the
11 people of the city of New York for the
12 unparalleled skill and impressive adeptness with
13 which they handled this terrible tragedy;
14 During the afternoon of Friday,
15 February 26th, a bomb of tremendous force and
16 unknown origin, was detonated in the parking
17 garage under the Twin Towers at the World Trade
18 Center, killing at least five people, injuring
19 more than a thousand and forcing the closing of
20 the Twin Towers;
21 As a nation watched, thousands
22 fled down smoke-filled stairways emerging from
23 New York's most prominent landmark overcome by
922
1 smoke, covered in soot and breathing fumes;
2 Thanks to the timely response of
3 emergency and volunteer personnel, including
4 police, fire and rescue personnel from
5 Manhattan, Brooklyn, Queens, Staten Island and
6 New Jersey, the injuries were mercifully kept to
7 a minimum and most, if not all, could be treated
8 at local hospitals and released within hours;
9 The dedication to duty and
10 unwavering devotion displayed by these
11 individuals reflect proudly upon themselves,
12 their communities and this state, proving once
13 again the true character of all New Yorkers and,
14 in turn, this great nation;
15 The toll in human suffering is
16 only outweighed by the acts of extraordinary
17 courage and heroism shown by those who were
18 unwittingly caught by a savage act of cruelty;
19 We, the duly assembled members of
20 this legislative body, are compelled to pause
21 and honor but a few of those acts of courage
22 knowing that in doing so they symbolize all the
23 selfless acts performed this day, too numerous
923
1 to mention, and so we praise the Fire Lieutenant
2 and the Port Authority Police Lieutenant who
3 rescued the children of two Brooklyn public
4 schools, who were trapped in an elevator near
5 the observation deck; we praise the
6 teachers and parents of those children who,
7 trapped in that elevator for over five hours,
8 were able to overcome their own anxiousness to
9 keep the children calm and entertained until
10 they were rescued; we praise those who, by
11 helicopter in high winds and limited visibility,
12 evacuated a pregnant woman from the roof of one
13 of the towers; we praise those firefighters and
14 paramedics who carried a second pregnant woman
15 down 44 flights of stairs to deliver her baby at
16 St. Vincent's Hospital; and, in addition, we
17 praise all those whose acts of heroism are
18 unknown due to the modesty of those who
19 performed them;
20 We commend the Police
21 Commissioner, Raymond Kelly, Fire Commissioner
22 Carlos Rivera, Deputy Mayor for Public Safety
23 Fritz Alexander, Executive Director Stanley
924
1 Brezenoff of the Port Authority and
2 Superintendent of the Port Authority Police,
3 Charles Knox, whose personnel performed so
4 superbly in the City's time of need;
5 Because we can not forget the
6 memory of those whose senseless murder must not
7 go unpunished, it is the intent of this
8 legislative body to express our deepest
9 condolences to the families of Stephen Knapp of
10 Staten Island; John DiGiovanni of Valley Stream;
11 Monica Smith of Seaford; Robert Kirkpatrick of
12 Suffern; William Macko of Bayonne, New Jersey
13 and to the family of Wilfredo Mercado, who we
14 hope and pray is found alive;
15 The Twin Towers serve as a symbol
16 of our, and indeed the nation's industriousness
17 and high aspirations, and this shocking act of
18 desperation should only serve to strengthen our
19 resolve against the methods of terror;
20 We cannot allow ourselves to
21 submit to those whose actions are motivated by
22 fear, hatred and disregard for human life for,
23 if we do, we have surrendered more than they
925
1 could ever take from us;
2 NOW, THEREFORE, BE IT RESOLVED
3 that this legislative body pause in its
4 deliberations and commend the city of New York
5 and its citizens, the police, fire and emergency
6 services personnel for their outstanding conduct
7 during the tragedy at the World Trade Center,
8 fully confident that such pause indicates our
9 shared commitment to the ideals of community
10 service and the preservation of human life,
11 which are our American heritage; and
12 BE IT FURTHER RESOLVED that our
13 devotion to the security and safety of these
14 United States, conjoined with our national
15 government's commitment, shall shield our
16 citizens from further peril and reinforce their
17 peace of mind, and
18 BE IT FURTHER RESOLVED that
19 copies of this resolution, suitably engrossed,
20 be transmitted to the office of the Mayor of the
21 city of New York, Police Commissioner Raymond
22 Kelly, Fire Commissioner Carlos Rivera, Deputy
23 Mayor for Public Safety Fritz Alexander,
926
1 Executive Director of the Port Authority Stanley
2 Brezenoff, and Superintendent Charles Knox of
3 the Port Authority Police.
4 ACTING PRESIDENT LACK: Senator
5 Mega.
6 SENATOR MEGA: Mr. President.
7 Thank you, Mr. President and my colleagues.
8 That was a long resolution, and I thank you for
9 the attentiveness that you showed in listening
10 to the resolution.
11 The resolution really states all
12 that has to be stated as far as that incident
13 that occurred in New York City that was both at
14 the same time a tremendous, tremendous tragedy,
15 and yet it was something that was good, if I
16 could put it that way, as far as New Yorkers
17 were concerned because, you know, New York City
18 most times takes a bad rap.
19 We have our problems in New York
20 City. We have our problems in all the large
21 cities in this country, but the people of New
22 York City rose to the occasion individually and
23 as a group, and I'm proud to say that I am a New
927
1 Yorker and I'm proud of all the individuals that
2 were involved in doing what had to be done to
3 make that day a less onerous day than it was,
4 and I would ask that all my colleagues join in
5 this resolution.
6 Thank you, Mr. President.
7 ACTING PRESIDENT LACK: Senator
8 Goodman.
9 SENATOR GOODMAN: Mr. President,
10 I very much appreciate Senator Mega's thought
11 fulness in introducing this resolution and,
12 obviously, the full body will subscribe to it in
13 its entirety.
14 I would like to say very briefly,
15 Mr. President, that as chairman of the Senate
16 Investigations Committee, I paid a visit for
17 purposes of inspecting the site with four
18 members of my staff last Friday, to the World
19 Trade Center, and we had the opportunity to
20 observe at close range the damage which was
21 caused by the bomb that went off at the center.
22 I would have my colleagues know
23 that we really should be deeply thankful that
928
1 only five people, possibly six, lost their lives
2 in this incident, because the sheer physical
3 magnitude of this damage was absolutely
4 staggering. We were taken through the F.B.I.
5 lines to inspect the crater which was at least
6 six stories in its total depth, and enormously
7 wide, and metal beams and metal doors were
8 crumpled like tin foil, and the sheer and
9 extraordinary scope of this blast was absolutely
10 astounding.
11 I rise at this moment to say not
12 only that, of course, we subscribe to Senator
13 Mega's resolution, but also that the investigat
14 ive arm of this body will be doing its utmost to
15 try to explore the basis on which the safety
16 precautions which were lacking in the World
17 Trade Center can be cured so that we will not
18 have a recurrence of the type of incident that
19 developed in this situation, specifically, as I
20 dare say my colleagues are aware, there were no
21 lights in the stairwells. There is no pressuri
22 zation of the stairwells nor any venting to
23 avoid the rising to the 110th floor of black
929
1 acrid smoke within ten minutes after the blast.
2 There was no public address system so that
3 instructions could be issued to those who were
4 in the building at the time, and it is an
5 extraordinary testament, particularly to those
6 who had to evacuate the building, that despite
7 the lack of any safety instructions of any kind,
8 they were able in a reasonably orderly way to
9 depart.
10 Some did it by descending; some
11 did it by ascending to the roof including, as
12 you know, a group of school children who were
13 taken off by helicopter. It is my belief, Mr.
14 President, that this body can and will render a
15 service when the report of the Investigations
16 Committee is -- comes through for the purpose of
17 highlighting the minimal safety precautions
18 which must be taken in high rise buildings like
19 this, especially those which may be subject to
20 terrorist attack.
21 There'll be more said about this
22 later, but I did want the body to know that its
23 investigative arm will be very much involved in
930
1 an attempt to avoid a recurrence of the enormous
2 potential hazards which, thank God, were not
3 realized in this case.
4 ACTING PRESIDENT LACK: On the
5 resolution, all in favor aye.
6 (Response of "Aye.")
7 Contrary, nay.
8 SENATOR GOLD: Mr. President.
9 ACTING PRESIDENT LACK: Excuse
10 me, Senator Gold. With Senator Goodman's
11 permission, would all those who are -- Senator
12 Mega's permission, I should say. I'm sorry.
13 SENATOR MEGA: Thank you.
14 Senator Goodman may have spoken a little longer
15 than I did, but it is my resolution. Thank you.
16 ACTING PRESIDENT LACK: My
17 apologies, Senator Mega.
18 For those members who are not -
19 there are over 40 members already on that reso
20 lution. As with Senator Larkin's resolution,
21 for those members who are not on the resolution,
22 please indicate now or by the end of session.
23 On the resolution, all in favor
931
1 signify by saying aye.
2 (Response of "Aye.")
3 Contrary nay.
4 (There was no response. )
5 The resolution is adopted, and it
6 will remain in the chamber until the end of
7 session for all those who wish to co-sponsor it
8 but have not yet had the opportunity to do so.
9 Senator Present, we're ready for
10 the Calendar.
11 SENATOR PRESENT: Mr. President,
12 let's take up the non-controversial calendar,
13 please.
14 ACTING PRESIDENT LACK: Third
15 reading, non-controversial, Secretary will read
16 please.
17 THE SECRETARY: On page 7,
18 Calendar Number 134, by Senator Skelos, Senate
19 Bill Number 950, an act to amend the Family
20 Court Act and the Criminal Procedure Law.
21 ACTING PRESIDENT LACK: Last
22 section.
23 THE SECRETARY: Section 2. This
932
1 act shall take effect -
2 ACTING PRESIDENT LACK: Call the
3 roll.
4 (The Secretary called the roll. )
5 THE SECRETARY: Ayes 48.
6 ACTING PRESIDENT LACK: The bill
7 is passed.
8 THE SECRETARY: Calendar Number
9 138, by Senator Saland, Senate Bill Number 2363,
10 an act to amend the Social Services Law.
11 SENATOR SALAND: Mr. President,
12 lay that aside for the day, please.
13 ACTING PRESIDENT LACK: Lay it
14 aside all day, please.
15 THE SECRETARY: Calendar Number
16 151, by Senator Saland, Senate Bill Number 1554,
17 an act to amend the Criminal Procedure Law.
18 ACTING PRESIDENT LACK: Last
19 section.
20 THE SECRETARY: Section 2. This
21 act shall take effect immediately.
22 ACTING PRESIDENT LACK: Call the
23 roll.
933
1 (The Secretary called the roll. )
2 THE SECRETARY: Ayes 49.
3 ACTING PRESIDENT LACK: The bill
4 is passed.
5 THE SECRETARY: Calendar Number
6 152, by Senator Volker, Senate Bill Number 2025,
7 an act to amend the Civil Practice Law and
8 Rules.
9 ACTING PRESIDENT LACK: Last
10 section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT LACK: Call the
14 roll.
15 (The Secretary called the roll. )
16 THE SECRETARY: Ayes 49.
17 ACTING PRESIDENT LACK: The bill
18 is passed.
19 THE SECRETARY: Calendar Number
20 153, by Senator Present, Senate Bill Number
21 2063, an act to amend the Criminal Procedure
22 Law.
23 ACTING PRESIDENT LACK: Last
934
1 section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT LACK: Call the
5 roll.
6 (The Secretary called the roll. )
7 THE SECRETARY: Ayes 50.
8 ACTING PRESIDENT LACK: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 154, by Senator Johnson, Senate Bill Number
12 2153, an act to amend the Criminal Procedure
13 Law.
14 ACTING PRESIDENT LACK: Last
15 section.
16 THE SECRETARY: Section 2. This
17 act shall take effect immediately.
18 ACTING PRESIDENT LACK: Call the
19 roll.
20 (The Secretary called the roll. )
21 THE SECRETARY: Ayes 49, nays
22 one, Senator Gold recorded in the negative.
23 ACTING PRESIDENT LACK: The bill
935
1 is passed.
2 THE SECRETARY: Calendar Number
3 155, by Senator Mega, Senate Bill Number 2157,
4 an act to amend the Penal Law.
5 ACTING PRESIDENT LACK: Last
6 section.
7 THE SECRETARY: Section 2. This
8 act shall take effect immediately.
9 ACTING PRESIDENT LACK: Call the
10 roll.
11 (The Secretary called the roll. )
12 THE SECRETARY: Ayes 50.
13 ACTING PRESIDENT LACK: The bill
14 is passed.
15 THE SECRETARY: Calendar Number
16 156, by Senator Volker, Senate Bill Number 2173,
17 an act to amend the Penal Law.
18 ACTING PRESIDENT LACK: Last
19 section.
20 THE SECRETARY: Section 2. This
21 act shall take effect immediately.
22 ACTING PRESIDENT LACK: Call the
23 roll.
936
1 (The Secretary called the roll. )
2 THE SECRETARY: Ayes 50.
3 ACTING PRESIDENT LACK: The bill
4 is passed.
5 THE SECRETARY: Calendar Number
6 157, by Senator Johnson, Senate Bill Number
7 661.
8 SENATOR GOLD: Lay aside.
9 ACTING PRESIDENT LACK: Lay the
10 bill aside.
11 THE SECRETARY: Calendar Number
12 158, by Senator Johnson, Senate Bill Number 783,
13 Environmental Conservation Law.
14 ACTING PRESIDENT LACK: Last
15 section.
16 SENATOR GOLD: Lay it aside,
17 please.
18 ACTING PRESIDENT LACK: Lay the
19 bill aside.
20 THE SECRETARY: Calendar Number
21 159, by Senator Stafford, Senate Bill Number
22 955, Environmental Conservation Law.
23 ACTING PRESIDENT LACK: Last
937
1 section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT LACK: Call the
5 roll.
6 (The Secretary called the roll. )
7 THE SECRETARY: Ayes 51.
8 ACTING PRESIDENT LACK: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 160, by Senator Johnson, Senate Bill Number
12 1303, Environmental Conservation Law.
13 ACTING PRESIDENT LACK: Last
14 section.
15 THE SECRETARY: Section 2. This
16 act shall take effect immediately.
17 ACTING PRESIDENT LACK: Call the
18 roll.
19 (The Secretary called the roll. )
20 THE SECRETARY: Ayes 51.
21 ACTING PRESIDENT LACK: The bill
22 is passed.
23 THE SECRETARY: 161, by Senator
938
1 Johnson, Senate Bill Number 1326, Environmental
2 Conservation Law.
3 ACTING PRESIDENT LACK: Last
4 section.
5 THE SECRETARY: Section 2. This
6 act shall take effect immediately.
7 ACTING PRESIDENT LACK: Call the
8 roll.
9 (The Secretary called the roll. )
10 THE SECRETARY: Ayes 51.
11 ACTING PRESIDENT LACK: The bill
12 is passed.
13 THE SECRETARY: 162, by Senator
14 Johnson, Senate Bill Number 1795, Environmental
15 Conservation Law.
16 ACTING PRESIDENT LACK: Last
17 section.
18 THE SECRETARY: Section 2. This
19 act shall take effect immediately.
20 ACTING PRESIDENT LACK: Call the
21 roll.
22 (The Secretary called the roll. )
23 THE SECRETARY: Ayes 51.
939
1 ACTING PRESIDENT LACK: The bill
2 is passed.
3 THE SECRETARY: Calendar Number
4 165, by Senator Maltese, Senate Bill Number
5 2114.
6 SENATOR GOLD: Lay that aside.
7 ACTING PRESIDENT LACK: Lay the
8 bill aside.
9 THE SECRETARY: Calendar Number
10 166, by Senator Holland, Senate Bill Number 34,
11 authorize the Broad Acres Golf Company,
12 Incorporated, to have a right of first refusal.
13 ACTING PRESIDENT LACK: Last
14 section.
15 SENATOR SMITH: Lay the bill -
16 lay that bill aside.
17 ACTING PRESIDENT LACK: Lay the
18 bill aside, please.
19 THE SECRETARY: Calendar Number
20 167, by Senator Farley, Senate Bill Number 372,
21 an act to amend the Alcoholic Beverage Control
22 Law.
23 ACTING PRESIDENT LACK: Last
940
1 section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT LACK: Call the
5 roll.
6 (The Secretary called the roll. )
7 THE SECRETARY: Ayes 51.
8 ACTING PRESIDENT LACK: The bill
9 is passed.
10 168.
11 THE SECRETARY: Calendar Number
12 168, by Senator Stafford, Senate Bill Number
13 441, an act to amend the Tax Law.
14 ACTING PRESIDENT LACK: Local
15 fiscal impact note at the desk. Last section,
16 please.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT LACK: Call the
20 roll.
21 (The Secretary called the roll. )
22 THE SECRETARY: Ayes 51.
23 ACTING PRESIDENT LACK: The bill
941
1 is passed.
2 THE SECRETARY: Calendar Number
3 171, by Senator Spano, Senate Bill Number 1533,
4 an act to amend the Penal Law.
5 ACTING PRESIDENT LACK: Last -
6 last section.
7 THE SECRETARY: Section 2. This
8 act shall take effect immediately.
9 ACTING PRESIDENT LACK: Call the
10 roll.
11 (The Secretary called the roll. )
12 THE SECRETARY: Ayes 52.
13 ACTING PRESIDENT LACK: The bill
14 is passed.
15 THE SECRETARY: Calendar Number
16 176, by Senator Hannon.
17 SENATOR GOLD: Lay aside.
18 ACTING PRESIDENT LACK: Lay it
19 aside.
20 THE SECRETARY: Calendar Number
21 177, by Senator Hannon.
22 SENATOR GOLD: Lay it aside,
23 please.
942
1 ACTING PRESIDENT LACK: Laid
2 aside.
3 Senator Present, that completes
4 the non-controversial calendar.
5 SENATOR PRESENT: Mr. President,
6 let's take up the controversial calendar,
7 please.
8 ACTING PRESIDENT LACK:
9 Controversial calendar, Secretary will read.
10 THE SECRETARY: On page 8,
11 Calendar Number 157, by Senator Johnson, Senate
12 Bill Number 661, Environmental Conservation Law,
13 in relation to state employee use of electric
14 vehicles.
15 SENATOR GOLD: Can we have a
16 quick explanation.
17 ACTING PRESIDENT LACK: Senator
18 Johnson, Senator Gold has requested a quick
19 explanation.
20 SENATOR GOLD: No, never mind.
21 Last section.
22 ACTING PRESIDENT LACK: Last
23 section. Thank you, Senator Johnson. That was
943
1 pretty quick.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT LACK: Call the
5 roll.
6 (The Secretary called the roll. )
7 THE SECRETARY: Ayes 53.
8 ACTING PRESIDENT LACK: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 158, by Senator Johnson, Senate Bill Number 783,
12 Environmental Conservation Law, in relation to
13 state employee vehicle efficiency.
14 SENATOR GOLD: Explanation.
15 ACTING PRESIDENT LACK: Senator
16 Johnson, once again an explanation requested by
17 Senator Gold.
18 SENATOR JOHNSON: Mr. President,
19 this -- this bill would help to advance the
20 objective of the federal Clean Air Act, in which
21 employers of a hundred or more have to put in
22 place employer trip reduction programs.
23 This would provide the same thing
944
1 for New York State except that they would have
2 to begin this program and put in place where
3 there's 50 or more employees in their trip
4 reduction program.
5 SENATOR GOLD: Senator yield to a
6 question?
7 ACTING PRESIDENT LACK: Senator,
8 will you yield?
9 SENATOR JOHNSON: Yes.
10 ACTING PRESIDENT LACK: Senator
11 Gold.
12 SENATOR GOLD: Senator, what I
13 don't understand, we're talking about the use of
14 a vehicle -- God bless you. Are these private
15 vehicles of employees we're talking about?
16 SENATOR JOHNSON: That's correct.
17 SENATOR GOLD: And these are
18 vehicles that the private individuals use to get
19 to work?
20 SENATOR JOHNSON: That's correct.
21 SENATOR GOLD: Now, the word
22 "required" is used, isn't it? How do you -- I
23 mean I don't understand what they're supposed to
945
1 really do in this situation. If you have a
2 hundred employees and they live in various
3 directions and they all drive to work, what is
4 supposed to happen? The agency, is it supposed
5 to put out lists of who is to pick up who or
6 drive together; how does it work?
7 SENATOR JOHNSON: Well, that is
8 the -- well, there are, of course, federal
9 regulations going into effect for all private
10 enterprises requiring them to do this same
11 thing, trip reduction, of roughly 25 percent.
12 SENATOR GOLD: Well, what do they
13 do, I mean? I'm just trying to find out.
14 SENATOR JOHNSON: Well, there are
15 various techniques that could take place. For
16 example, you could do car pooling. People could
17 use public transportation. The employer could
18 have a van picking up ten people at a time and
19 satisfy the requirement, various methods by
20 which to achieve this reduction in accordance -
21 SENATOR GOLD: Will the Senator
22 yield to a question?
23 SENATOR JOHNSON: Yes.
946
1 SENATOR GOLD: What I'm just
2 curious about is, I mean I'm an employee and,
3 for whatever reason, I -- I drive to work. Can
4 the employer take away my job if I don't carpool
5 or use a van or public transportation?
6 SENATOR JOHNSON: Well, that's
7 very interesting. That's a question we have to
8 ask as well about the public program. Do we
9 fire you if you refuse to use a carpool? I don't
10 think all of the details have been worked out
11 yet, and the reason we thought New York State
12 ought to take a lead in this is that we could
13 help to work out the details of these
14 programmatic changes that would have to take
15 place in order to achieve the objectives of the
16 federal Clean Air Act.
17 SENATOR GOLD: Will the Senator
18 yield to one more question?
19 SENATOR JOHNSON: Yes.
20 SENATOR GOLD: Is this bill the
21 implementation of a mandate?
22 SENATOR JOHNSON: Well, there's a
23 federal mandate that's coming down on all
947
1 employers of a hundred or more. What we're
2 saying is the state should take the lead in
3 trying to implement a program like this and work
4 out the kinks before it's required for all the
5 general employers in the state.
6 SENATOR GOLD: Senator, when is
7 it required; as of what date will it be required
8 of private employers?
9 SENATOR JOHNSON: 1996, and we're
10 moving this up one year. We're saying the state
11 should do it by 1995. The general employers in
12 the state have to do it by 1996. The state
13 would gain valuable experience during that year
14 in determining how this program could be
15 implemented.
16 SENATOR GOLD: Will the Senator
17 yield to one more question?
18 Senator, have any other states
19 passed similar legislation?
20 SENATOR JOHNSON: I'm not aware
21 of it, Senator.
22 SENATOR GOLD: Senator
23 Oppenheimer.
948
1 ACTING PRESIDENT LACK: Senator
2 Oppenheimer.
3 SENATOR OPPENHEIMER: I would
4 like to speak in favor of the bill and answer a
5 question Senator Gold raised.
6 There are various techniques that
7 are being suggested to decrease the amount of
8 vehicle trips to an office park, an office
9 building, and most of them are carrots, but some
10 of them are sticks, and they -- they include
11 things like providing for those people who drive
12 more than one in a car to have parking spaces
13 close in to the office building, whereas if you
14 drive by yourself you may be a mile away down
15 the road.
16 There are just a lot of different
17 techniques that are being looked at, including
18 jitney services and, at any rate, this is
19 definitely the direction we have to take. We
20 have to cut down the single drivers in cars
21 that's a plague to New York City and its
22 environs and absolutely essential if we're going
23 to try and comply with the Clean Air Act, and
949
1 the Environmental Planning Lobby has given this
2 two trees, so that's very high on their priority
3 list, not quite three trees, but two trees.
4 So I would recommend for our -
5 our health as well as the health of this area of
6 New York City and surrounding environment, as
7 well as the health of the planet, that we
8 approve this.
9 ACTING PRESIDENT LACK: Last
10 section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT LACK: Call the
14 roll.
15 (The Secretary called the roll. )
16 THE SECRETARY: Those recorded in
17 the negative on Calendar Number 158 are Senators
18 Kuhl, Paterson and Smith. Ayes 51, nays 3.
19 ACTING PRESIDENT LACK: The bill
20 is passed.
21 THE SECRETARY: Calendar Number
22 165, by Senator Maltese, Senate Bill Number
23 2114, an act to repeal section 114-a of the
950
1 Correction Law.
2 ACTING PRESIDENT LACK: Senator
3 Maltese, Senator Hoffmann has requested an
4 explanation.
5 SENATOR MALTESE: Mr. President,
6 section 114-a of the Correction Law requires
7 correctional facilities superintendents to keep
8 daily facility records regarding rule
9 infractions by employees, punishments inflicted
10 upon inmates, and inmate complaints regarding
11 food, clothing or cruel and unusual punishments.
12 Section 114-a would be repealed to eliminate
13 duplication of facility record-keeping
14 requirements.
15 This was a departmental request
16 that we acceded to. Their information to us
17 indicates that this provision, which was orig
18 inally enacted in 1929, well before computers,
19 was intended for specific use by the
20 Commissioner of Correctional Services, and they
21 indicate that all type -- all the types of
22 incidents required to be recorded in this daily
23 record are recorded, number one, via the inmate
951
1 disciplinary process, the inmate grievance
2 process, and the unusual incident file and are
3 accessible by computer in those official
4 department records.
5 SENATOR HOFFMANN: Would Senator
6 Maltese yield for a question?
7 ACTING PRESIDENT LACK: Senator,
8 will you yield?
9 Senator.
10 SENATOR HOFFMANN: Senator
11 Maltese, was there any change to this bill from
12 the form that we saw it in when it came before
13 the Crime and Corrections Committee?
14 SENATOR MALTESE: No, there was
15 not, Senator.
16 SENATOR HOFFMANN: Thank you,
17 Senator Maltese. On the bill, Mr. President.
18 ACTING PRESIDENT LACK: On the
19 bill.
20 SENATOR HOFFMANN: I'm disturbed
21 by this apparent desire by the Department of
22 Corrections to eliminate some of its record
23 keeping. I don't think that it's cumbersome at
952
1 all for the Department of Corrections to
2 maintain a daily log. This has been standard
3 operating procedure and should continue to be.
4 The suggestion that the same in
5 formation is already available under separate
6 incident reports evades the important fact that
7 it would require a very complicated search and
8 cross-reference to determine what incidents, or
9 what pattern of incidents occurred under a
10 specific watch at a specific institution.
11 In the computer age, in which we
12 find ourselves it should be relatively simple to
13 adjust the computer technology to afford a short
14 title, if you will, or a short version of the
15 daily log to be automatically indexed through
16 the incidents report keeping. Rather than
17 eliminating the daily log, there should be a way
18 to simply allow the duplication of that log to
19 take place in the normal course of reporting the
20 other event, but it would not be in the interest
21 of accountability for this legislative body to
22 pass a measure that would allow the elimination
23 of daily logs as we now know them.
953
1 I'll vote no.
2 ACTING PRESIDENT LACK: Senator
3 Waldon.
4 SENATOR WALDON: Would the
5 Senator yield to a question or two?
6 ACTING PRESIDENT LACK: Senator,
7 will you yield?
8 SENATOR MALTESE: Yes.
9 ACTING PRESIDENT LACK: Senator.
10 SENATOR WALDON: Mr. President,
11 Senator Maltese, this record -- this daily log
12 record, is it handwritten?
13 SENATOR MALTESE: Is it
14 handwritten?
15 SENATOR WALDON: Yes.
16 SENATOR MALTESE: My
17 understanding is that it's fed into a computer.
18 There was a representative of the Department
19 present at the committee meeting at which
20 Senator Hoffmann was present, and he seemed to
21 indicate that there was a handwritten record in
22 addition to the computer record.
23 SENATOR WALDON: But the daily
954
1 log, by virtue of definition, the daily log, as
2 is a police blotter, as is a log in the
3 correctional facility, is it not handwritten?
4 SENATOR MALTESE: Yes, by
5 definition it would be handwritten.
6 SENATOR WALDON: And then -
7 SENATOR MALTESE: Although my
8 understanding, as you probably know better than
9 I, Senator, is that, in addition it is fed into
10 the computer as a Department record.
11 SENATOR WALDON: Yes, Senator, I
12 understand that. Mr. President, if I may
13 continue.
14 ACTING PRESIDENT LACK: Senator.
15 SENATOR WALDON: Senator, the
16 recording of these incidents, as in normal
17 business records and when handwritten, is it at
18 your -- is it your understanding or do you have
19 information which indicates differently that as
20 the incident occurs, it is written into the log,
21 then there's an extrapolation from the log and
22 that is what is -- that information is then
23 placed on the computer?
955
1 SENATOR MALTESE: That's my
2 understanding, Senator.
3 SENATOR WALDON: Would it be also
4 your understanding that the log itself could not
5 be easily erased or somehow changed, as could
6 the computer record that is supplemental to the
7 log?
8 SENATOR MALTESE: Well, I guess
9 it couldn't be any more easily replaced than any
10 written record or as easily changed as any
11 written record that -- I guess it depends,
12 Senator, on whether it's in a permanent binder
13 or whether it's in some looseleaf type of
14 arrangement, and I couldn't answer your question
15 as to which it's in.
16 I imagine it's in a permanent
17 binder but I don't know that to be a fact.
18 SENATOR WALDON: Thank you very
19 much, Senator.
20 Mr. President, if I may, on the
21 bill.
22 ACTING PRESIDENT LACK: Senator
23 on the bill.
956
1 SENATOR WALDON: It is my
2 understanding that these books are similar to
3 police blotters which I have some awareness of,
4 and they are permanent. We don't just tear out
5 the sheets of paper.
6 The overwhelming majority of the
7 people who work for the Department of
8 Correctional Services, both on the state level
9 and the city level, are outstanding human
10 beings, good citizens who are there to do their
11 job in the most professional manner. However,
12 there have been instances throughout the last
13 years that I've been up here, where people have
14 been abused or at least alleged that they were
15 abused by correctional personnel, and it is my
16 feeling that once something is handwritten into
17 a log, it is much more difficult to eliminate,
18 to erase, to alter, and so that I can see the
19 protection need for not only the correction
20 officers, but certainly the inmates. If the
21 record is there, it cannot be destroyed. The
22 officer's protected; the inmate is protected.
23 Based on that alone, I'll have to
957
1 vote in the negative on this bill.
2 ACTING PRESIDENT LACK: Senator
3 Dollinger.
4 SENATOR DOLLINGER: Mr.
5 President, I just rise to echo the sentiments
6 expressed by my colleague, Senator Waldon.
7 I have represented at court
8 request on a pro bono basis inmates who have
9 been -- who have alleged civil rights violations
10 against either in this case -- in the cases that
11 I've represented them, against inmates and
12 correction officers in the state of New York.
13 I litigated both of those cases
14 and, in large measure, the only way I could
15 track what had gone on in the facility was
16 through the use of the daily log system in the
17 Special Housing Unit and other places in the
18 correctional facilities.
19 I think Senator Waldon's point is
20 very good, well taken, because the documents
21 proved to be an asset both to the corrections
22 officer in detailing their conduct inside the
23 facility, and they were an asset to the
958
1 plaintiff or to the potential claimant against
2 the state, if they believed their rights had
3 been violated because they would have a method
4 to be able to trace what happened in the
5 facility or what happened in the Special Housing
6 Unit or in the correction facility itself.
7 So my experience suggests and,
8 frankly, I have poured through these little
9 books many, many hours in representing on a pro
10 bono basis in federal court claimants in these
11 cases, and I think they're valuable. I think
12 that those handwritten notes can be important in
13 both prosecution and defense, so that we make
14 sure that our criminal justice system is exactly
15 that, a place of justice, and I will concur in
16 voting with my colleague in the negative.
17 ACTING PRESIDENT LACK: Senator
18 Gold.
19 SENATOR GOLD: Will Senator
20 Maltese yield to a question?
21 SENATOR MALTESE: Yes.
22 ACTING PRESIDENT LACK: Will you
23 yield? Senator.
959
1 SENATOR GOLD: Senator, I
2 understand that this bill was given to you by
3 the Department and you're trying to help the
4 Department. But the term "duplication" keeps
5 coming up.
6 I understand that, under the
7 present procedures, if there was an infraction
8 by an employee or a punishment inflicted on an
9 inmate, under the existing system, that gets put
10 in the inmate's file or in the employee's file
11 so there is a record.
12 But the argument that I'm hearing
13 from the three Senators who already spoke is
14 that a different kind of file is necessary to
15 protect some rights. Now, if we eliminated this
16 file that you're talking about, would there be
17 any file that is a true duplicate; in other
18 words, anything that the Department would be
19 keeping which could track chronologically what
20 happened on any particular day?
21 SENATOR MALTESE: My
22 understanding, Senator, and as you've correctly
23 pointed out, the information and the bill was
960
1 given to us as a departmental bill. They
2 indicated that the inmate grievance procedure is
3 a separate and distinct procedure with a
4 separate writing, and that file would still be
5 there.
6 The unusual incident file is an
7 additional file, which it would also have a
8 written copy.
9 SENATOR GOLD: Will the Senator
10 yield to a question?
11 SENATOR MALTESE: Yes.
12 ACTING PRESIDENT LACK: Senator
13 Maltese will yield.
14 SENATOR GOLD: Senator, let me
15 put it by way of example. A policeman in the
16 city of New York says that he responded to a
17 certain address because there were gunshots or
18 whatever. You look at the policeman's book and
19 you find that there's a marking, but you also
20 find that there's a marking before it and a
21 marking before that which starts to explain the
22 routing and what that officer did, and it may or
23 may not turn out that he told the truth. I know
961
1 of one specific case where the officer did not
2 tell the truth and his own book bore that out.
3 Now, if that book had been
4 destroyed which gave a chronological listing of
5 what happened that day, all we would know is
6 that, yes, the officer reported that at 11:00
7 o'clock there was a shot, and he went some
8 place.
9 Now, by way of analogy, if we
10 don't have a chronological record in the
11 Corrections Departments, we wouldn't know, for
12 example, from what you are saying that at a
13 certain time there was an incident with a
14 certain inmate that took place and someone was
15 involved. But it might be important for the
16 Department itself or maybe the Commission on
17 Correction, which we all know is a separate
18 agency, or a private lawyer, to know that maybe
19 an hour before that, the same guard had an
20 incident with a different inmate or that same
21 guard had five incidents, and you wouldn't know
22 that unless you had a chronological report of
23 what happened on that specific day.
962
1 You'd have five incidents
2 reported under five inmates, but how do you get
3 that information and tie it up the same way?
4 That, I think, is the concern of Senator Waldon
5 and Senator Hoffmann and Senator Dollinger, and
6 I'm sure you're concerned with it also.
7 Would we -- would there be any
8 kind of a duplication of that record or are we
9 correct in our assumption that we would be
10 destroying that chronological record?
11 SENATOR MALTESE: Mr. President,
12 in view of the objections and the concerns
13 expressed by my colleagues in the Minority, I
14 would respectfully lay aside this bill so that I
15 could have a representative of the Department
16 advise me on some of these facts that
17 unfortunately were not done up until today.
18 SENATOR GOLD: Mr. President, let
19 the record reflect that Senator Maltese is still
20 a gentleman. Thank you.
21 ACTING PRESIDENT LACK: The
22 record will so reflect. The bill is laid
23 aside.
963
1 Regular order.
2 THE SECRETARY: Calendar Number
3 166, by Senator Holland, Senate Bill Number 34,
4 authorize the Broad Acres Golf Club,
5 Incorporated to have the right of first refusal
6 on the lease of lands.
7 SENATOR GOLD: Explanation,
8 please.
9 ACTING PRESIDENT LACK: Senator
10 Holland, Senator Gold has requested an
11 explanation.
12 SENATOR HOLLAND: Mr. President,
13 Broad Acres Golf Club is a golf club
14 approximately 50 years old on the Rockland
15 Psychiatric -
16 SENATOR GOLD: Pardon me.
17 SENATOR HOLLAND: Mr. President,
18 to start over: Broad Acres Golf Course is a
19 nine-acre golf course on the Rockland
20 Psychiatric Center hospital grounds and is
21 approximately 50 years old.
22 It was built, I believe, by the
23 German and Italian prisoners who were brought
964
1 over here during the second World War and were
2 kept at Camp Shanks. Nonetheless, for the last
3 seven years, there's been a not-for-profit
4 organization that has operated Broad Acres.
5 They have spent a lot of money. They have paid
6 their own dues. They have improved the golf
7 course, and they are leasing it year by year
8 from OGS.
9 OGS, at this point, says they
10 want to put the -- a five-year lease out to open
11 up the bidding. All this bill says is, can the
12 non-profit organization that has improved the
13 golf course and operated the golf course for the
14 last seven years have the right of first
15 refusal. That means no cost to the state. They
16 will pay whatever the high bid is on the lease.
17 SENATOR GOLD: Anything else?
18 ACTING PRESIDENT LACK: Last
19 section. Senator Gold.
20 SENATOR GOLD: Senator Kuhl, do
21 we have a problem? Senator Onorato, do we have
22 a problem?
23 SENATOR ONORATO: It's a good
965
1 bill.
2 ACTING PRESIDENT LACK: Last
3 section.
4 THE SECRETARY: Section 2. This
5 act shall take effect immediately.
6 ACTING PRESIDENT LACK: Call the
7 roll.
8 (The Secretary called the roll. )
9 THE SECRETARY: Ayes 55.
10 ACTING PRESIDENT LACK: The bill
11 is passed.
12 THE SECRETARY: Calendar Number
13 176, by Senator Hannon, Senate Bill Number 277,
14 an act to amend the Administrative Code of the
15 city of New York.
16 SENATOR PRESENT: Lay it aside.
17 SENATOR GOLD: Next week?
18 ACTING PRESIDENT LACK: Laid
19 aside.
20 SENATOR GOLD: Lay it aside.
21 THE SECRETARY: Calendar Number
22 177, by Senator Hannon, Senate Bill Number 644,
23 Emergency Tenant Protection Act.
966
1 ACTING PRESIDENT LACK: Last
2 section.
3 SENATOR GOLD: No, no.
4 Explanation. Give me one second. Lay it aside
5 for the day. Lay it aside. It's being laid
6 aside, I believe.
7 ACTING PRESIDENT LACK: Lay it
8 aside.
9 Senator Present, that completes
10 the Calendar.
11 SENATOR GOLD: Mr. President.
12 ACTING PRESIDENT LACK: Senator
13 Gold.
14 SENATOR GOLD: Mr. President, if
15 that's the end of the Calendar, I believe that
16 Senator Dollinger has a motion which is now in
17 order, and I'd like to go to that order of
18 business and yield to Senator Dollinger.
19 ACTING PRESIDENT LACK: Motions
20 to discharge and to amend the rules.
21 Senator Dollinger.
22 SENATOR DOLLINGER: Mr.
23 President, I have a motion to discharge from the
967
1 Finance Committee a resolution that I've
2 sponsored. I believe it should be passed up to
3 the -- to the President.
4 I speak on the motion, Mr.
5 President?
6 ACTING PRESIDENT LACK: You'd
7 like the Secretary to read the title?
8 SENATOR DOLLINGER: Yes, please.
9 ACTING PRESIDENT LACK: Secretary
10 will read the title of the motion.
11 THE SECRETARY: By Senator
12 Dollinger, in relation to Legislative Resolution
13 Number 524, directing the Secretary of the
14 Senate to comply with the February 18th, 1993
15 order and decision of the New York State Supreme
16 Court, which will make public certain
17 information regarding Senate mailings.
18 SENATOR DOLLINGER: I move that
19 resolution. Is a motion in order at this time?
20 ACTING PRESIDENT LACK: On the
21 resolution. Do you wish to speak on the motion?
22 SENATOR DOLLINGER: I'll speak on
23 the motion.
968
1 Mr. President, I rise today
2 because as a newcomer to this body, I believe
3 that the issue that is poised for our
4 consideration by that resolution is a critical
5 one to the issue of governing this state.
6 The issue, it seems to me, is a
7 very simple one: Are we going to disclose to the
8 public what we do in the mailings that are
9 financed by that very same public?
10 The resolution stems from a very
11 simple principle, and that is the disclosure and
12 open government is in the best interests of
13 everyone. The more people know about our
14 government, the more they'll understand and,
15 frankly, the more public confidence in us they
16 will have.
17 There's an old principle that was
18 heard at the time of the Revolutionary
19 government that there would be no taxation
20 without representation. I'd simply offer to all
21 my colleagues a minor variation of all that
22 which is a rule in the 1990s and I hope for the
23 rest of our democratic future, and that is there
969
1 should be no taxation without disclosure; and I
2 offer two or three simple reasons for supporting
3 this bill, or this resolution and the motion
4 that accompanies it.
5 First of all, I'd ask that the 22
6 members of this body who were here 17 or 15
7 years ago, when the Freedom of Information Law
8 was enacted, I'd simply ask you to reaffirm that
9 vote. It passed this body unanimously. It
10 passed the Assembly. Many of you were members
11 of the Senate and Assembly at the time.
12 Judge Canfield, in his opinion in
13 this case in the Supreme Court, simply quoted
14 the declaration, the legislative declaration at
15 the front of that act, and it's one that 22
16 members of this body agreed with.
17 The other thing, I think, that
18 passing this resolution will do is, it will
19 allow us to continue to do what we do well.
20 SENATOR LEICHTER: Mr.
21 President.
22 ACTING PRESIDENT LACK: Senator
23 Leichter, why do you rise?
970
1 SENATOR LEICHTER: Yeah. Would
2 Senator Dollinger yield for a question?
3 SENATOR DOLLINGER: Sure.
4 ACTING PRESIDENT LACK: Senator
5 will yield. Senator Leichter.
6 SENATOR LEICHTER: Senator, could
7 you explain and set forth to us exactly what
8 your resolution does and the context, what
9 brought -- what brought you to make or bring
10 this resolution before us?
11 SENATOR DOLLINGER: Exactly,
12 Senator. I perhaps should have done that. I'm
13 assuming familiarity with my colleagues.
14 As most of you, I'm sure, know,
15 there was a lawsuit brought by a man named
16 Siris, who was running in a campaign for the New
17 York State Senate. He had filed a Freedom of
18 Information request with this body, with the
19 Secretary of this body, asking for a disclosure
20 of mailings undertaken by his incumbent opponent
21 during the course of the -- I believe the year
22 prior to the date of the election. He filed
23 that request with this body. It was denied. He
971
1 filed an appeal with this body under the rules
2 of the Temporary President, and that appeal was
3 also denied.
4 In the wake of the denial of both
5 of those appeals -- both of the request and the
6 appeal, he commenced a lawsuit in the New York
7 State Supreme Court. That lawsuit was decided,
8 I assume, and I don't know this for actual fact,
9 but I assume on motion for summary judgment and
10 judgment was granted to Mr. Siris to require
11 this body to disclose to him the mailings that
12 he had requested in his initial Freedom of
13 Information Law request.
14 When I became aware of that court
15 decision, and it was discussed, it was my
16 conclusion that this body should choose to abide
17 by that and forego an appeal, that we should not
18 be in the position of taking the taxpayers'
19 money to finance an appeal when the purpose of
20 the appeal was to simply keep secret the issue
21 of what this body was spending the taxpayers'
22 monies to promote in terms of mailings to our
23 constituents.
972
1 That is the motion that is the
2 basis behind the resolution that I submitted to
3 this body.
4 SENATOR DALY: Mr. President.
5 ACTING PRESIDENT LACK: Senator
6 Daly, why do you rise?
7 SENATOR DALY: Would the Senator
8 yield to a question?
9 ACTING PRESIDENT LACK: Senator,
10 will you yield?
11 SENATOR DOLLINGER: I will to my
12 colleague.
13 ACTING PRESIDENT LACK: Senator
14 Daly.
15 SENATOR DALY: Mr. President,
16 would the Senator answer the following question?
17 According to the resolution filed, the court has
18 determined that the Secretary of the Senate has
19 acted in an arbitrary and capricious ***
20 contrary to the law, and abused his discretion.
21 Does the Senator mean to tell us
22 that the Secretary of the Senate, who's been
23 accused of doing something contrary to the
973
1 law, should be denied the right of appeal?
2 SENATOR DOLLINGER: I think the
3 answer to that question is that, based on Judge
4 Canfield's opinion, he had -- in fact, he had
5 violated the law by failing to abide by the
6 wishes of this body as expressed 15 years ago in
7 the Freedom of Information Act.
8 I come here today to simply ask
9 the Secretary of the Senate and all of my
10 colleagues to abide by the same spirit of that
11 Act.
12 SENATOR DALY: Mr. President,
13 will the Senator answer the question?
14 ACTING PRESIDENT LACK: Senator
15 Daly.
16 SENATOR DALY: Should the
17 Secretary of the Senate be denied the right to
18 appeal if he's been accused of doing something
19 contrary to the law?
20 SENATOR DOLLINGER: And the
21 answer to that question, Mr. President, and I'll
22 cite it again, is this body employs the
23 Secretary of the Senate. We can decide whether
974
1 this body will abide by the terms of the
2 legislative declaration that unanimously passed
3 this Senate 15 years ago. We can direct our -
4 the Secretary of the Senate as to whether or not
5 he should comply with the law as we see it.
6 That's the power we have as lawmakers.
7 SENATOR DALY: Mr. President,
8 would he yield to one more question?
9 ACTING PRESIDENT LACK: Senator,
10 will you yield to one more question?
11 SENATOR DOLLINGER: Certainly.
12 SENATOR DALY: According to the
13 Constitution, we've established -
14 ACTING PRESIDENT LACK: Senator
15 Daly.
16 SENATOR DALY: -- an Appellate
17 Division to hear appeals. We have a case where
18 a person, representative of the Senate, has been
19 charged with doing something contrary to the
20 law. How dare anyone deny that person the right
21 to appeal?
22 Mr. President, I'm not a lawyer;
23 my honored colleague is, and he still hasn't
975
1 answered my question. He's walking around the
2 question; he must have majored in sophistry.
3 Answer the question, sir: Should
4 -- should we deny that man the right to
5 appeal? It is the Secretary of the Senate.
6 SENATOR GALIBER: Point of order.
7 SENATOR DOLLINGER: Mr. President,
8 can I answer the question? I'll even be more
9 direct than I was.
10 ACTING PRESIDENT LACK: Senator
11 Dollinger, excuse me. Senator Galiber, you have
12 raised a point of order. Yes, Senator.
13 SENATOR GALIBER: Mr. President,
14 I think on two occasions, the question was
15 answered, and it would seem to me that my
16 colleague and good friend is attempting to
17 solicit what he calls an answer.
18 The question has been asked and
19 it has been answered. That's my -- my point of
20 order.
21 ACTING PRESIDENT LACK: Thank
22 you, Senator Galiber.
23 Senator Daly, Senator Dollinger
976
1 has the floor.
2 SENATOR DALY: Yes, sir.
3 ACTING PRESIDENT LACK: Senator
4 Dollinger.
5 SENATOR DOLLINGER: The -- the
6 reason -- other reason why I think -- two other
7 reasons actually why I think we should abide by
8 this resolution and pass it, is I point to my
9 colleague, Senator Sheffer.
10 I sat at a hearing on minor
11 league baseball in which we brought in people
12 from all over New York State, asked them all
13 kinds of questions about the future of minor
14 league baseball, a very, very well conducted
15 hearing. We got tons of information that we
16 need to be able to make effective decisions. I
17 dare say that we found out more about minor
18 league baseball than we know about the mailings
19 from this very body that are financed by
20 taxpayers.
21 We're doing good things in other
22 areas. We're investigating and finding out
23 information from third parties, but we can't
977
1 seem to find it out about ourselves, and we're
2 not prepared to tell the public what we're
3 doing. It seems to me that, when we send people
4 mail, when we offer mail to them, when we use
5 their money to send the mail to them, regardless
6 of the message it conveys, we should also be
7 able to tell them how much it costs and how
8 frequently they have to pay for it.
9 I guess I'm amazed that, in this
10 whole process, as we've looked at the process of
11 public disclosure of mailings, one of the
12 questions I asked, is there any more secret
13 operating governments in the world, at least the
14 United States as we know it, that doesn't
15 disclose its information on how it spends its
16 taxpayers' money, and the answer is there is.
17 It's called the Central Intelligence Agency.
18 It's the truly secret branch of the federal
19 government.
20 I dare say, gentlemen, that
21 without the kind of public information about
22 mailings, we're operating the second most secret
23 government to the tune of $180 million.
978
1 Lastly, I offer one other
2 thought. I'm new to this body. I'm new to the
3 gentlemen on the other side of the aisle. I'm
4 just getting to know some of you, but I've been
5 impressed with conviction and I've been
6 impressed with your commitment: Senator Volker
7 during the death penalty debate, obviously an
8 important issue for him, obviously one that he
9 has strong personal opinions about; Senator
10 Saland, in his comments on the death penalty,
11 strong conviction for the people of this state,
12 as we deal with the crime problem. I mentioned
13 Senator Sheffer and his work in the minor league
14 baseball. I've worked with my colleague,
15 Senator Daly, on the lake shore issue, as we try
16 to deal with other problems. I think -- and
17 I've worked with, add one other, Senator Mega in
18 his handling of the Judiciary Committee as we
19 deal with problems of creating new laws and
20 their effect on our judicial system.
21 I see all of this good will, and
22 yet I see myself standing up today to criticize
23 my colleagues and to criticize a practice that
979
1 has been too long a part of the way we've
2 operated. I think that the people of good will
3 on all sides of this chamber can come together
4 and deal with the critical problems that we face
5 of crime and drugs and all those other things
6 that our constituents are demanding that we do,
7 and we can get over the silliness of whether or
8 not we're going to disclose the cost of our
9 mail.
10 It seems to me that we owe it to
11 this state to get beyond this issue, to put it
12 behind you. The last thing anyone needs is
13 people from this side of the aisle carping about
14 your failure to disclose. It's my hope that
15 this resolution will pass, that we will instruct
16 our employee, the Secretary of the Senate, who
17 is employed by all of us, and we will instruct
18 him to comply with the law as we believe it
19 should be, and that we will disclose to the
20 people of this state how we spend their money.
21 It's the most important thing we can do.
22 I'd ask all of you to join hands
23 across that aisle. Let's restore people's
980
1 confidence in government. Let's give them the
2 confidence we're spending their money properly
3 and let's tell them, by disclosing the cost of
4 mail, tell them that the message is that we
5 believe in disclosure, we believe that there
6 should be no taxation without disclosure, and
7 that we're prepared to get on to more serious
8 business of financing this state, attacking our
9 problems, and restoring people's confidence in
10 government.
11 ACTING PRESIDENT LACK: Senator
12 Volker.
13 SENATOR VOLKER: Mr. President.
14 Senator Dollinger, I was here 15 years ago. In
15 fact, just to recollect my memory, I talked to
16 the sponsor of the Freedom of Information
17 legislation, which was none other than Ralph
18 Marino. I believe, in fact, I was a co-sponsor,
19 it's a long time ago, but I think I was.
20 The ironic twist is that,
21 Senator, you're -- by the way this, is a reso
22 lution; it's not a bill. You're proposing a
23 resolution, and a motion to discharge of the
981
1 resolution, to the television people who this is
2 sort of aimed at to a certain extent. What that
3 means is that there's no bill here to do this.
4 This is just a resolution which tells the -- as
5 I understand it, would tell the Secretary of the
6 Senate that he should not attempt to uphold a
7 piece of legislation that we passed here, the
8 Freedom of Information Law, so many years ago.
9 Where you're wrong, Senator, is
10 this. Your resolution does not at all attempt
11 to uphold that act. In fact, it is totally in
12 contradistinction to it. Judge Canfield ignored
13 the legislation. In fact, the interesting thing
14 about it is, I spoke with Senator Marino about
15 this, and the reason that the exclusion was put
16 into the Assembly or into the Legislature, in
17 fact, the Senate was more inclined at the time
18 to be more forgiving. We were inclined at the
19 time to allow more latitude, but there was
20 opposition at the time from some people in the
21 Assembly who made a good point. They said, How
22 much do we disclose? How far do we go in
23 disclosing communications with our constituents?
982
1 You know, you're seizing on one
2 area, which is the area of cost and funding
3 which, by the way, is in the budget, but I don't
4 want to get into that. You're failing to
5 recognize something: Judge Canfield made a
6 decision. He said, based on the top part of the
7 bill, he said the intent, he ignored the bill
8 itself, which clearly says the Legislature is
9 excluded.
10 If you want to change that,
11 Senator -
12 ACTING PRESIDENT LACK: Excuse
13 me, Senator Volker. Senator Gold is
14 interrupting. Senator Gold.
15 SENATOR GOLD: Senator, would the
16 Senator yield to one question?
17 SENATOR VOLKER: Certainly.
18 ACTING PRESIDENT LACK: Senator,
19 will you yield? Senator Gold for your question.
20 SENATOR GOLD: Senator Volker, I
21 understand your argument except I'd like to ask
22 you a question. Isn't it a fact that Steve
23 Sloan, the Secretary of the Senate -
983
1 SENATOR VOLKER: M-m h-m-m.
2 SENATOR GOLD: -- is an employee
3 of the Senate?
4 SENATOR VOLKER: Right.
5 SENATOR GOLD: Meaning an
6 employee of all of us, specifically recommended
7 by the Majority, but he is our employee; isn't
8 that correct?
9 SENATOR VOLKER: That's correct.
10 SENATOR GOLD: All right. Well,
11 Senator, isn't it also a fact that in every
12 single litigation in this state the law provides
13 an appellate process, but in every single
14 litigation there isn't an appeal; it is up to
15 the litigants whether or not, in a particular
16 case, they want to appeal or whether they want
17 to accept the decision of the court, isn't that
18 a fact?
19 SENATOR VOLKER: That's a fact,
20 Senator.
21 SENATOR GOLD: All right. So
22 Senator, isn't it also a fact, and then I'll sit
23 down, that while this is a resolution, and if we
984
1 in a resolution, ask the Congress to do
2 something or ask any other party to do
3 something, that might have one effect, but in
4 this resolution, if we, as a Senate, voted to do
5 it, that we would have the capacity to have our
6 employee withdraw from this litigation and look
7 at the world and say, We are going to abide -
8 whatever the statute said, whatever the
9 resolution said, we choose as a body of 61
10 persons, to abide by the judge and open our
11 books? Isn't that our capacity? Can't we do
12 that?
13 SENATOR VOLKER: In other words,
14 what you're saying, Senator, is we should ignore
15 a statute passed by this Legislature many years
16 ago, passed by the other house, signed by the
17 Governor, which clearly says that Judge
18 Canfield's decision was out of line, clearly and
19 unequivocally?
20 SENATOR GOLD: No, Senator.
21 SENATOR VOLKER: Wait a minute,
22 Senator, I'm answering you.
23 SENATOR GOLD: You're right; go
985
1 ahead.
2 SENATOR VOLKER: Clearly says
3 it's out of line, and says that we should let a
4 judge make a decision which flies in the face of
5 what the sponsor of the bill understood the bill
6 to be, which the meaning of the bill is pretty
7 clear, and just say that we won't take an appeal
8 because somebody thinks that the law is wrong.
9 Senator, that is not what we are
10 elected here to do. What we are elected here to
11 do is make decisions. We made a decision with
12 the Freedom of Information legislation. If
13 Senator Dollinger wants to repeal that section
14 of the law, then he has every right to put in
15 legislation to do that and this body can make a
16 decision on whether we want to repeal that
17 section of the law or not.
18 But this is a resolution aimed
19 at, in my opinion, saying that a judge's
20 decision which flies in the face of legislation
21 that was passed by both houses, we should tell
22 the Secretary of the Senate, Don't appeal it; by
23 the way, an appeal which is going to be handled
986
1 by the Attorney General, which is not a cost to
2 the taxpayers as other actions that have been
3 done in this place have been at times when we
4 have upheld the right of the Legislature like,
5 if you remember, we upheld the Legislature here
6 some several years ago at a fairly substantial
7 cost, because a member of this body was attacked
8 from the outside, and both sides of this aisle
9 were willing to stand up at that time, because
10 we felt this body was being attacked; and,
11 Senator, I'm saying to you that I think this
12 legislation, this resolution, says forget what
13 this Legislature passed; forget the fact that
14 the judge ignored the law and don't appeal, and
15 I think that's completely wrong.
16 SENATOR GOLD: Mr. President.
17 ACTING PRESIDENT LACK: Senator
18 Gold.
19 SENATOR GOLD: Will the Senator
20 yield to a question?
21 SENATOR VOLKER: Certainly.
22 ACTING PRESIDENT LACK: Senator,
23 will you yield again to a question? Senator
987
1 Gold for your question.
2 SENATOR GOLD: Senator, we have
3 created laws which say that, if an individual
4 lends money to another individual, that if it's
5 not paid back, that individual can enforce that
6 debt. Wouldn't you agree with me that we have
7 no capacity as a legislature to put in a private
8 bill saying that Jones does not have to pay back
9 Smith a particular debt? Isn't that true?
10 SENATOR VOLKER: That's true.
11 SENATOR GOLD: All right.
12 Similarly, Senator, if somebody owes somebody a
13 debt, we have created by statute a statute of
14 limitations, which means that if a debt isn't
15 sued upon in a certain period of time, the
16 individual has a defense. Isn't it a fact that
17 the individual who is sued can waive the defense
18 and elect to pay the debt anyway because somehow
19 they feel morally they should pay that amount of
20 money; isn't that true?
21 SENATOR VOLKER: What you're
22 saying, Senator, is that even though we know and
23 are convinced that a piece of legislation we
988
1 pass has been unjustly decided upon by a judge
2 in a -- and a member of the judiciary, Manny,
3 and you many times have said to me, We have to
4 uphold the right of the Legislature; we have to
5 make sure that the Legislature takes care of
6 itself.
7 I happen to agree with you,
8 Senator Gold, and what I'm saying to you,
9 Senator Gold, is we can't just change this world
10 for political purposes. If you want to change
11 that statute, you or Senator Dollinger or any
12 other person in this chamber can put in the
13 legislation to do it and do it that way.
14 SENATOR GOLD: Fine.
15 SENATOR VOLKER: You don't do it
16 by allowing a bad judicial decision to be
17 upheld.
18 SENATOR GOLD: And will the
19 Senator yield to one more question?
20 ACTING PRESIDENT LACK: Senator,
21 will you yield?
22 SENATOR VOLKER: Yes.
23 ACTING PRESIDENT LACK: Senator
989
1 Gold.
2 SENATOR GOLD: Senator, I'm glad
3 that you see where I'm going because there's no
4 tricks to these questions. So the bottom line
5 in that understanding that someone can waive the
6 statute of limitations in their own one case is
7 the following -- God bless you -- the following:
8 This legislation, Senator, is not
9 legislation that is affecting the world. It's
10 legislation affecting us. We are the parties.
11 We are the parties, and assuming you're right,
12 which I don't, I think the judge was absolutely
13 right, but assuming you're right, and the
14 legislation gives us the right to withhold this
15 information, isn't it a fact, Senator Volker,
16 that we have a right by resolution, as proposed
17 by Senator Dollinger, to give up that right and
18 say the public wants the books open, the press
19 wants the books -- at least the editorial boards
20 of the press want the books open.
21 SENATOR VOLKER: You got it.
22 Thank you, Senator. I appreciate it.
23 SENATOR GOLD: And, therefore, we
990
1 will comply.
2 SENATOR VOLKER: Senator, we
3 represent the people. Sometimes I think we
4 forget, I think we should, that we are elected
5 by the people. The people elect us. They don't
6 elect, by the way, editorial boards and they
7 don't elect the press.
8 SENATOR GOLD: Will you yield to
9 a question?
10 SENATOR VOLKER: And, Senator -
11 ACTING PRESIDENT LACK: No,
12 excuse me Senator Volker, Senator Gold.
13 SENATOR VOLKER: You're right.
14 ACTING PRESIDENT LACK: Senator
15 Volker has the floor.
16 SENATOR GOLD: I apologize. I
17 haven't finished yet.
18 SENATOR VOLKER: Let me -- let's
19 keep in mind here, Senator, yes, we can give up
20 our rights, but this house over the years has
21 assiduously refused to do that. We have refused
22 to give up our rights when challenged by
23 decisions that we have felt have been improper,
991
1 and it seems to me clearly in this case the
2 decision was improper, a decision by the way and
3 keep in mind, we realize that there's a lot of
4 politics involved here. The decision was a
5 decision made by a Democratic judge ruling on
6 Democratic challengers, and we understand all
7 that.
8 As I've said many, many times, we
9 have to understand what we're dealing with
10 here. What we're dealing with here is an issue,
11 though, of the credibility of the Legislature
12 and, Manny, I think you were here 15 years ago.
13 SENATOR GOLD: Unfortunately.
14 SENATOR VOLKER: And -- if I'm
15 not mistaken, and maybe you don't remember, but
16 I think a number of people on your side, in
17 fact, argued about this very provision and said
18 we should go farther, and we should include the
19 Legislature but it's not in this bill, and I
20 would bet you that, if we could get the
21 transcript of that debate, and looking at my
22 colleagues to the left here, I would presume
23 probably that my colleague Senator Leichter
992
1 probably would have been one of those people who
2 said, You know, the legislature should have been
3 included. But it wasn't.
4 So what I'm saying to you,
5 Senator, is that this resolution says to this
6 body, Don't follow the law, don't do what the
7 law said. Just tell Steve Sloan that he
8 shouldn't uphold the right of this Legislature,
9 and I think that's wrong.
10 SENATOR GOLD: Will you yield to
11 a question now, sir?
12 SENATOR VOLKER: Sure.
13 ACTING PRESIDENT LACK: Senator,
14 will you yield? Senator Gold.
15 SENATOR GOLD: Senator -
16 Senator, you started by saying we don't get
17 elected by the editorial boards, we get elected
18 by the people. You can't be saying with a
19 straight face that our responsibility to the
20 people means we keep our books closed. I
21 haven't gotten one letter from a constituent
22 that said, For God's sake, Senator, whatever you
23 do, don't tell the public how you're spending
993
1 your money.
2 SENATOR VOLKER: Senator, that -
3 SENATOR GOLD: Yeah.
4 SENATOR VOLKER: May I respond to
5 that?
6 SENATOR GOLD: Want to get to the
7 bottom of that?
8 SENATOR VOLKER: Yeah. May I
9 respond to that, Senator?
10 SENATOR GOLD: Of course.
11 SENATOR VOLKER: I mean I'll -
12 he's proud of that, no -
13 SENATOR GOLD: Of course.
14 SENATOR VOLKER: What we're
15 really saying here is, give us this mail, this
16 mail that only went out to thousands and
17 thousands of people. I mean, yeah, we're really
18 hiding the mail. Remember what this fellow was
19 asking for was, he wanted distribution of the
20 mail, not just, as I understand it, not just the
21 dollar amounts and all that; he wanted copies of
22 the mail that was sent out to every constituent
23 in whatever Senator's district it was. So it
994
1 wasn't a very good case of being secretive since
2 the darned thing went out to thousands and
3 thousands of people.
4 So I mean when you're talking
5 about secretive here, let's look at what we're
6 really talking about here.
7 SENATOR GOLD: Mr. President,
8 last question.
9 SENATOR VOLKER: This is a
10 different kind of thing. These are defeated
11 candidates complaining about they couldn't get
12 some information they could easily have gotten
13 anyway.
14 SENATOR GOLD: May I ask one last
15 question?
16 SENATOR VOLKER: Certainly.
17 ACTING PRESIDENT LACK: Senator
18 Volker, one last question from Senator Gold.
19 SENATOR VOLKER: Sure.
20 ACTING PRESIDENT LACK: Senator
21 Gold.
22 SENATOR GOLD: Senator -- isn't
23 it a fact, Senator, that there is no statute on
995
1 the books that prohibits this Legislature from
2 disclosing the amounts of money we spend on mail
3 or giving a more detailed statement to the
4 public of the money that we spend? And isn't it
5 a fact, sir, that without debasing any prior
6 legislatures, without -- without violating the
7 rights of that lovely gentleman known as Steve
8 Sloan, who is not evil -- he only works for
9 us -- that this Legislature can pass a
10 resolution saying the judge may be right, he may
11 be wrong, but there is an outcry, the public
12 wants to know what we're doing with their money
13 and, therefore -- therefore, since there is no
14 statute prohibiting us from opening our books,
15 we do it because it's the right thing to do.
16 SENATOR VOLKER: Senator, I say
17 to you, once again, what you're saying to me is
18 that two wrongs make a right in your -- in your
19 way of looking at things. What you're saying is
20 that we should ignore the fact that we want to
21 uphold a statute passed by this body with a
22 resolution, by the way -- this is not the way
23 this body operates; we operate by bills, bills
996
1 that are decided on by votes, and that's where
2 this statute came from in the first place.
3 Section 88 of the Freedom of Information Law is
4 pretty clear and unequivocal.
5 I say to you that this is not the
6 way to do this. You can argue if you want to
7 that there should be changes in the way this
8 body operates. You have a right to do that;
9 Senator Dollinger has a right to do that, but,
10 Senator, we have a great right also to make sure
11 that statutes that are passed by this body, by
12 both houses and by the governor, are upheld and
13 the fact that -
14 ACTING PRESIDENT LACK: Excuse
15 me, Senator Volker. Why do you rise, Senator
16 Hoffmann?
17 SENATOR HOFFMANN: Would Senator
18 Volker yield to a question, please?
19 SENATOR VOLKER: Yeah, I'll
20 yield; I will yield, yes.
21 ACTING PRESIDENT LACK: Senator.
22 SENATOR HOFFMANN: Thank you.
23 Senator Volker, you made earlier reference to an
997
1 issue that came up some years ago -
2 SENATOR VOLKER: M-m h-m-m.
3 SENATOR HOFFMANN: -- where
4 another member of this body found himself in a
5 court action. Could you tell me, please, what
6 was the disposition of this body in terms of its
7 show of unity behind that individual? Was it a
8 bill, or was it a resolution?
9 SENATOR VOLKER: Senator, I think
10 it was a bill, if I'm not mistaken.
11 SENATOR HOFFMANN: No. Senator
12 Volker, it was a resolution.
13 SENATOR VOLKER: No, I think it
14 was a bill.
15 SENATOR HOFFMANN: I remember it
16 very well, because I voted against it at the
17 time, so there is a very clear precedent. I
18 just want to establish for some of my newer
19 colleagues that resolution is, in fact, a
20 correct way for this body to assert itself in
21 reaction to a court case.
22 In that instance, I opposed the
23 position taken by, I believe, every one of my
998
1 colleagues and said we should accept the ruling
2 of the court in that case and should not appeal
3 as a legislative body, a ruling relative to
4 employment of some of our other Senate
5 employees. But it was very -- it was very clear
6 in my mind, because I still remember how the
7 press accounts handled it.
8 It was a resolution, so I really
9 wanted to rise to ask you that question to make
10 sure that I could correct on the record that
11 there is clear precedent for resolutions of this
12 sort.
13 ACTING PRESIDENT LACK: Senator
14 Volker.
15 SENATOR VOLKER: Senator, you're
16 wrong, and let me tell you how you're wrong.
17 The resolution you're talking about was a
18 different issue. The resolution was the
19 prosecution of the appeal, but the actual dollar
20 amount was in statute that was passed as part of
21 the budget, and let me point that out to you.
22 SENATOR HOFFMANN: Senator Volker
23 yield for one other question?
999
1 SENATOR VOLKER: Yes, Senator.
2 ACTING PRESIDENT LACK: Senator?
3 Senator Hoffmann.
4 SENATOR HOFFMANN: The process by
5 which the ball began rolling was a resolution,
6 was it not, Senator Volker?
7 SENATOR VOLKER: I'm not even
8 sure that's true, Senator, but this is not a
9 process to get the ball rolling. This is a
10 resolution do say, Forget a statute.
11 SENATOR HOFFMANN: Well, that was
12 a resolution that said, Ignore this judge; we'll
13 go on about our own business. It was a
14 resolution, as is this a resolution. We were at
15 a process at a similar point in time in reaction
16 to a court decision.
17 SENATOR VOLKER: Except -
18 SENATOR HOFFMANN: I just wanted
19 to make sure the record was clear on that.
20 SENATOR VOLKER: Let me make the
21 record clear on that, Senator.
22 ACTING PRESIDENT LACK: Senator
23 Volker.
1000
1 SENATOR VOLKER: The record is
2 clear, Senator, that we passed a statute here, a
3 statute that said -- that set up freedom of
4 information and now, by a resolution, we are
5 saying we should not uphold that statute.
6 Once again, I say I think that's
7 wrong, no matter what your opinion is of the
8 issue of freedom of information. The statute is
9 clear. If you're going to change that, it ought
10 to be changed by legislation and not by some
11 resolution.
12 ACTING PRESIDENT LACK: Senator
13 Halperin. Excuse me. There is a list: Senator
14 Halperin, Senator Hoffmann, Senator Leichter,
15 Senator Dollinger.
16 Senator Halperin.
17 SENATOR HALPERIN: Thank you, Mr.
18 President.
19 There's a certain irony that
20 strikes me in listening to this debate, because
21 what we're really talking about is, should we be
22 spending the public's money to prevent the
23 public from knowing how we're spending its
1001
1 money, and whether the court is correct or not
2 -- and I do believe that the court is correct
3 -- I think that for those of you who think that
4 the court is correct, that we should be willing
5 to give up our rights when our rights are
6 wrong.
7 There's no substantive argument
8 that I've heard on the floor today explaining
9 justification as to why we as a public body
10 should not disclose to the public how we're
11 spending the public's money. I haven't heard a
12 single argument. I don't think there is an
13 argument for it, and I think that everyone
14 within earshot should know that the Assembly
15 which was alluded to as the other body that
16 voted to pass this into law, in fact, does
17 exactly what this court decision says that we
18 ought to do.
19 SENATOR VOLKER: Mr. President,
20 Mr. President.
21 ACTING PRESIDENT LACK: Senator
22 Volker, why do you rise?
23 SENATOR VOLKER: Will Senator
1002
1 Halperin yield to a question?
2 ACTING PRESIDENT LACK: Senator
3 Halperin, will you yield?
4 SENATOR HALPERIN: I would yield
5 to a -- to a question, if I could just complete
6 my thoughts a little more.
7 ACTING PRESIDENT LACK: In a
8 moment, I think, was the answer. Senator
9 Halperin.
10 SENATOR HALPERIN: Would be
11 fine. My thought processes are so fragile, I
12 wouldn't want them disrupted by your question,
13 sir.
14 The other body of this
15 Legislature discloses this information to the
16 public, because it's the right thing to do. The
17 Congress of the United States discloses
18 information in far greater detail than this
19 judge has told us to do, because it's the right
20 thing to do. Legislatures across this country
21 disclose this information. Local government,
22 governmental legislatures disclose this
23 information. My own city of New York, the City
1003
1 Council, discloses information. There's nothing
2 wrong with this information.
3 It does not make sense for us as
4 a body to be spending money to prevent something
5 from happening that's the right thing to
6 happen. Whether or not we can win on some
7 technical issue is not really the question here
8 and what the court did is it pointed out the
9 hypocrisy of our position here. I say "our" as
10 a body, not my personal position.
11 The court pointed out language
12 that was in the intent of the law that we then
13 went on to ignore in carrying out our own
14 responsibilities and in keeping our own house in
15 order. The court said that the more -- pointed
16 out that the more open a government is with its
17 citizenry, and this is the language from the
18 legislation, the greater the understanding and
19 participation of the public in government.
20 Maybe you disagree with that.
21 Maybe we don't want the citizens to understand
22 how we spend their monies. The court went on to
23 point out other language. It is incumbent upon
1004
1 the state, and this is language that those of us
2 who are here voted on. "It is incumbent upon
3 the state and its localities to extend public
4 accountability wherever and whenever feasible."
5 Well, what's not feasible about
6 providing this information to the public? It's
7 very simple to do. We can do it.
8 The court went on to point out
9 that "access to such information should not be
10 thwarted by shrouding it with the cloak of
11 secrecy or confidentiality." What's wrong with
12 any of the language that the court pointed out?
13 Maybe we could end up reversing
14 this decision at the Appellate Division; I don't
15 know. I don't think it should be reversed. But
16 why would we want to? What would be the purpose
17 of it? What would we be accomplishing? I see no
18 reason to proceed to appeal this decision.
19 So far as our good Secretary is
20 concerned, I have no doubt that he did not
21 intentionally violate the law, and once again,
22 as has been stated, it's really not his decision
23 what the policy of this body should be. He is
1005
1 supposed to carry out the policy.
2 We can make it very clear that
3 our policy is open government, and Steve Sloan
4 can walk out of here with his head high knowing
5 that he's always carried out his responsibil
6 ities in a proper manner. So there's really no
7 need whatsoever to appeal this.
8 And now, Senator Volker, I gladly
9 yield to your question.
10 ACTING PRESIDENT LACK: Senator
11 Volker.
12 SENATOR VOLKER: Yes, I wouldn't
13 have, but I just wanted to ask a question. I
14 assume you realize that the Assembly policy is
15 not quite what this resolution says. The
16 Assembly has all sorts of caveats in their
17 policy that does not allow for totally open and
18 free disclosure.
19 In fact, they, as I understand it
20 -- tell me if I'm wrong -- they even have an
21 officer over there that tells people what can be
22 disclosed, and I think there's a policy clause
23 that says something like, and it shall be not
1006
1 subject to the Freedom of Information Act; isn't
2 that correct?
3 SENATOR HALPERIN: Well, there -
4 there may be such language and, once again, if
5 this house were serious about implementing a
6 rational policy, there might be a way to
7 negotiate with the plaintiffs in the case and to
8 come up with some kind of agreement. But what's
9 really at issue here is an ongoing attempt by
10 this body to stonewall any effort whatsoever to
11 bring to the public's knowledge the -- a way
12 that we spend their money.
13 SENATOR DALY: Mr. President.
14 SENATOR HALPERIN: Now, I mean we
15 are going to be holding a hearing tomorrow on
16 the legislative budget because I made an effort
17 to have hearings held on the legislative
18 budget. It was -- these efforts were ignored
19 and so tomorrow the members, the Minority
20 members of the Senate Finance Committee and some
21 other members of the Minority are going to be
22 holding a hearing on the legislative budget
23 doing the best we can to bring to the public's
1007
1 knowledge how we spend their money.
2 ACTING PRESIDENT LACK: Excuse
3 me, Senator Halperin.
4 SENATOR HALPERIN: Yes.
5 ACTING PRESIDENT LACK: Will you
6 yield to a question from Senator Daly?
7 SENATOR HALPERIN: Yes.
8 ACTING PRESIDENT LACK: Senator
9 Daly.
10 SENATOR DALY: I have a copy of
11 the Assembly rules, and perhaps I can shed a
12 little light on that question.
13 Senator Volker is right. The
14 Assembly rules begin and then go directly into a
15 number of exceptions, and I think the final
16 sentence sums it up. It says: The
17 determination of the Assembly records access
18 appeals officer with respect to the denial of
19 access to any material to which access is
20 voluntarily available under the provisions of
21 this statement, shall be final and not subject
22 to further review.
23 ACTING PRESIDENT LACK: Senator
1008
1 Halperin.
2 SENATOR HALPERIN: Well, once
3 again, I would be most pleased, even though I'm
4 not sure that the Assembly rules do go as far as
5 they should. I'd be most pleased if we in this
6 house would be willing to accept the Assembly
7 rules.
8 But what's really happening here
9 is that a case that was brought without my
10 knowledge for sure -- I don't know that any
11 other member of this house knew about it on
12 either side of the aisle until after it was
13 brought -- happens to have catapulted this issue
14 into the public view, and has really thrown into
15 question our policy here.
16 So this is a very convenient way
17 to deal with this issue in our own house. The
18 issue is before us. It's before us in the
19 courts, and we're going forward spending money,
20 and the other irony is that, if anybody ever
21 wanted to find out how much money we're spending
22 on this case, they couldn't even do it unless
23 through the munificence of those that control
1009
1 the Senate, we're going ahead and spending the
2 money in the cloak of secrecy which is what we
3 said when we passed the public -- the public
4 information law, that we didn't want to do.
5 Now, this resolution affects the
6 Senate only. I think that our policy should be
7 not to challenge this, and if you do have
8 specific concerns about the decision itself,
9 then instead of appealing it, I think it would
10 make sense to try to work out with the
11 plaintiffs in the case, a reasonable policy,
12 maybe a little bit unreasonable, at least if it
13 moves us in the right direction, but to once
14 again just try to stone wall this thing, I don't
15 think is the right way to go.
16 ACTING PRESIDENT LACK: Senator
17 Hoffmann.
18 SENATOR ONORATO: Mr. President.
19 ACTING PRESIDENT LACK: Senator
20 Onorato, why do you rise?
21 SENATOR ONORATO: Senator
22 Halperin, would you yield to a question?
23 I believe you were here -
1010
1 ACTING PRESIDENT LACK: Senator
2 Onorato.
3 SENATOR ONORATO: I believe you
4 were here 15 years ago when this bill was
5 passed.
6 SENATOR HALPERIN: Yes.
7 SENATOR ONORATO: At that
8 particular time -- I'm not an attorney -- do you
9 believe it was the legislative intent when we
10 enacted the Freedom of Information Act, that it
11 was meant to exclude the legislative body from
12 disclosing the finances that we spend of the
13 taxpayers' money?
14 SENATOR HALPERIN: I think in
15 asking in terms of intent, it was my
16 understanding that the intent was to open up
17 government, not part of government, not other
18 people's parts of government, but to open up
19 government.
20 There's nothing wrong with
21 opening it up in the way that this court
22 decision would suggest. So it was my intent
23 when I voted for the bill, I can't speak for
1011
1 anyone else, to open up government to the public
2 scrutiny.
3 SENATOR ONORATO: Thank you.
4 ACTING PRESIDENT LACK: Senator
5 Hoffmann.
6 SENATOR HOFFMANN: Thank you, Mr.
7 President.
8 I'm pleased to rise in support of
9 my colleague's resolution, and I want to
10 compliment Senator Dollinger for having the
11 common sense to bring such a matter before our
12 house and to bring it in the only way that was
13 available to him. He has been criticized now
14 several times by another colleague for bringing
15 a resolution. In fact, he's not even actually
16 bringing the resolution. He's doing the very
17 best he can under the arcane rules of this house
18 by attempting to discharge a resolution that is
19 locked in the grips of the Majority Leader, so
20 that it can actually be voted on on the floor.
21 Let's make no mistake about what
22 the limitations are here. Because of the
23 absolute control over bills and resolutions in
1012
1 this house, then Senator Dollinger's resolution
2 is not even before us at this moment, only his
3 urgent plea that we consider this resolution
4 that would prevent the use of taxpayer dollars
5 by having an appeal of the very logical court
6 ruling which requires the members of this body
7 through the leadership to publicize the amount
8 of money that we spend on mailings.
9 What could really be more logical
10 than that? We are elected by people across this
11 state to do their bidding. If, in the course of
12 communicating with them, we spend umpteen
13 dollars in writing to them, isn't it perfectly
14 logical for us to explain how much money we
15 spent? Nobody is censoring our right to
16 communicate. Nobody is even suggesting that we
17 don't have an obligation to sometimes
18 communicate to our constituents.
19 What is being suggested here
20 through the courts is that we do have an
21 obligation to list the dollars that we spend on
22 such communication. I have no problem with
23 that. The people I represent think it's
1013
1 imminently logical.
2 What actually frustrates me in
3 this whole process, I must confess, is the fact
4 that I can not even say to my constituents how
5 much money I have spent on mailings because of
6 the secrecy with which mailing in this house is
7 handled. I don't even know how much money I
8 spent last term or two terms or the last four
9 terms.
10 I did do this bit of accounting.
11 I found out that, because I had decided at the
12 beginning of my fourth term, that I would not do
13 any newsletters -- I just made a little personal
14 decision that I would try my own little bit of
15 economizing. I knew we were in terrible fiscal
16 straits as a state, and I just called my staff
17 together back in January of 1991, and I said,
18 Don't anybody bother me about newsletters; we're
19 not going to do any. Several people thought
20 that was not a good decision, that we should be
21 writing often to people in the district. I
22 said, Well, I'm really not comfortable doing
23 that now; we have to show some place where we're
1014
1 personally economizing.
2 I never made a press announcement
3 about it. I never made any big announcement;
4 didn't sent out a newsletter saying I wasn't
5 going to send any newsletters. I just didn't
6 send any.
7 Now, if it costs $25,000 to send
8 a newsletter counting the printing, the mailing
9 and the labels, which is the only estimate
10 available to me, if it cost $25,000, and I
11 didn't send six of them, then it goes to figure
12 that I should have saved the taxpayers in the
13 48th Senate District about $150,000 in news
14 letters.
15 And then I didn't send any
16 targeted first class mailing. I didn't write to
17 the realtors association; I didn't write to the
18 bankers; I didn't write to presidents of
19 insurance agencies, all the lists that are
20 available. I didn't do any of that stuff. I
21 just didn't send any targeted first class
22 mailings. So let's take a modest figure and say
23 maybe that was $50,000 that I saved for the
1015
1 people of my district.
2 Now, I find out through a court
3 decision that another Senator, maybe several
4 other Senators in other parts of this state, may
5 have used that money that I saved. I didn't
6 save it at all. It was just moved through this
7 big slush fund that is used as the Senate
8 mailing allowance, it was just shifted over to
9 somebody else, and possibly even to somebody who
10 may have sent as many as 14 newsletters in a
11 given district.
12 Now, there's just something wrong
13 with a system that allows that much maneuvering
14 internally and refuses to be publicly account
15 able about taxpayers' spending.
16 I'm not suggesting that it's
17 appropriate to limit everybody to one or to two
18 newsletters or that we should say, new members
19 are entitled to a whole bunch and older members
20 don't have to do as many. I'm sure there is
21 some flexibility, but let's at least do it
22 openly.
23 The public has every reason to be
1016
1 suspicious of us if we will make decisions in
2 secret and if we refuse to divulge what we do
3 with their dollars. And to Senator Volker, I
4 must say how surprised I am at your comment
5 addressed to Senator Dollinger about the cameras
6 here today in the chamber. You said he was
7 speaking to the cameras.
8 Well, I have -- I've seen you,
9 Senator Volker, speak at length on an issue that
10 you feel very committed to when the death
11 penalty comes up, and I have sometimes debated
12 alongside you on that, and I vote with you in
13 favor of a death penalty in this house. Do you
14 think that the cameras are here for some other
15 reason today than they are when you debate on
16 the death penalty?
17 I want you to understand some
18 thing that Senator Dollinger understands. The
19 cameras are here because this is newsworthy.
20 When men and women who are elected to safeguard
21 taxpayers' dollars refuse to divulge how they
22 spend them on their own benefit, that is news,
23 and sadly it supersedes news about almost
1017
1 anything else we do which could be for the
2 public good.
3 I want to pass this resolution.
4 I want to bring it to the floor and then pass
5 this resolution so we can put it behind us. I
6 believe there is much good that comes out of
7 this chamber, and I want to see us get on about
8 the business that we are elected to be here for
9 and not have to make excuses about our internal
10 communications activities and how we evade ques
11 tions, sensible questions, about expenditures of
12 taxpayer dollars.
13 ACTING PRESIDENT LACK: Senator
14 Leichter.
15 SENATOR LEICHTER: Yes. Mr.
16 President, one hears much talk in this Capitol
17 about public financing of campaigns. The
18 Assembly talks about it. The Governor talks
19 about it, but only the Senate Republicans
20 practice it. You practice public financing.
21 You're using public monies to finance the
22 campaigns of some of your members.
23 Now, let's talk what this is all
1018
1 about. What is this resolution? Why is it be
2 fore us? It's before us because this body has a
3 rule that a member can send out three district
4 wide mailings a year plus a hundred thousand
5 dollars in first class mail -- a hundred
6 thousand pieces.
7 We have found out, we have pretty
8 strong evidence, that in the past campaign, that
9 some members of the Majority were given
10 additional mailing rights in clear violation of
11 the rules of this house in an obvious attempt to
12 use public monies to help their reelection
13 campaign. That's wrong.
14 Now, an effort was made to find
15 this out. It wasn't of interest only to a
16 defeated candidate. It was of interest to the
17 public, and it was of interest, let me say, to
18 me as a member of this house, because if you're
19 limiting me to three newsletters and you're
20 giving somebody else eight or nine or ten or
21 even more newsletters, I want to know about
22 that.
23 I didn't have a part of bringing
1019
1 this lawsuit. I didn't know the lawsuit was
2 brought, but it was, and it raised a very simple
3 basic proposition which is, does the public have
4 a right to know how public monies are spent?
5 And not surprisingly the judge said, of course.
6 In fact, to state the opposite is really to
7 state a proposition that cannot be believed by
8 anybody who has any sense, and I -- I must say
9 that anybody who would listen to the debate here
10 would say that we are -- that this Legislature
11 is out of touch with reality.
12 To hear Senator Volker say that
13 we're upholding the right of the Legislature!
14 What right? We have a right to keep from the
15 public how we spend public monies? We have a
16 right to say that we're in favor of public
17 financing of campaigns -
18 ACTING PRESIDENT LACK: Senator
19 Paterson, why do you rise? Excuse me, Senator
20 Leichter. Senator Paterson, why do you rise?
21 SENATOR PATERSON: Mr. President,
22 might you establish for me whether or not
23 Senator Leichter would be willing to yield for a
1020
1 question?
2 ACTING PRESIDENT LACK: Senator
3 Leichter, would you yield to Senator Paterson?
4 SENATOR LEICHTER: Frankly,
5 Senator, I would prefer if I could yield in just
6 a few minutes even to as good a friend as you.
7 I would, if I could -
8 SENATOR PATERSON: This is -
9 SENATOR LEICHTER: -- just to make
10 some of the points that I was in the midst of
11 making.
12 SENATOR PATERSON: This is -- I
13 don't know if I can hold out a few minutes,
14 Senator.
15 ACTING PRESIDENT LACK: Senator
16 Leichter, Senator Paterson has denoted some
17 urgency in his remarks.
18 SENATOR LEICHTER: Senator,
19 keeping in mind the great impatience and
20 obviously the very pertinent question you're
21 going to ask, I will try to make this point very
22 brief, buff I do want -
23 ACTING PRESIDENT LACK: One
1021
1 moment, Senator Paterson. Senator Leichter will
2 be with you after a brief moment. Senator.
3 SENATOR LEICHTER: But I -- but I
4 I do want to make this point because I just want
5 you for a moment to take a look at what Senator
6 Volker said, and I love Senator Volker; he's a
7 great Senator, but you know, maybe in this
8 chamber, we have developed our own logic.
9 We are out of touch. That's why
10 the public is so angry at not only this
11 Legislature, but public officials to say, we are
12 upholding the right of the Legislature. What
13 right? The right to keep the public from
14 knowing how their money is being spent? He said,
15 you know, we sometimes forget that we represent
16 the public, as if the public is saying, you go
17 and spend public money so that I, the public,
18 may not know how you're spending money. That's
19 what I sent you up to do. Senator Volker!
20 Then he says it involves the
21 credibility of the Legislature. I say to you,
22 that if the public knew and understood what you
23 are doing in, one, using monies surreptitiously
1022
1 for campaigns, secondly, refusing to disclose
2 it, thirdly, spending public money to fight a
3 court decision which says you got to disclose
4 it, we would have no credibility. I don't know
5 whether we have any credibility now, but we
6 would have -- they would drive us out of
7 office.
8 I mean that's what this appeal is
9 about, and to argue about, we can't have the
10 Secretary of the Senate be found to have
11 violated the law. My God, this is the due
12 process, the civil rights of poor Steve Sloan
13 are involved here. They're not civil rights.
14 He's not being found guilty of any crime. He's
15 not being sent off to jail.
16 The question is whether the
17 Senate, that's what this is involved, not Steve
18 Sloan, whether the Senate, as a body, should
19 spend public money to keep the public from
20 knowing what the public is entitled to know.
21 How can you stand up here and, with a straight
22 face, maintain that the public should not know
23 what mailings are being sent out? That's all
1023
1 that we ask for. Doesn't the public have a
2 right to know? Aren't we talking about monies
3 that's not our money? Belongs to the public,
4 and we are the stewards of the public. We are
5 the fiduciary. Fiduciary's have an obligation
6 to account and, indeed, every other level of
7 government must account.
8 If -- if an executive agency
9 said, We will not tell the Legislature how much
10 we spend on mailings, and so on, there'd be an
11 outcry. We'd say outrageous! Undemocratic! We
12 would fight that executive order or that
13 executive agency that sought to carry -- to hide
14 this from the public, I could see how outraged
15 my good friend, Senator Daly, would be under
16 those circumstances, and he'd be right.
17 How can we maintain that the
18 Legislature has a different right? Are we above
19 the law? Are we not subject to the rules that
20 ought to apply to everybody else? I must say,
21 listening to Senator Volker's argument, I think
22 if he had been in Congress at the time that the
23 House banking scandal occurred, he would say
1024
1 that money should be spent to keep the public
2 from knowing what members used that privilege in
3 a fashion which some people have criticized.
4 Isn't the public entitled to
5 know? And that didn't -- by the way, that
6 wasn't even public money. That was their own
7 private monies, and I think the public had a
8 right to know, and certainly they have a right
9 to know if there were mailings sent on behalf of
10 members of the Majority in campaigns, and we
11 have pretty strong evidence that it was -- that
12 that indeed occurred.
13 Somebody sent me some 16 or, I
14 don't know, 14 newsletters that Senator Goodman
15 sent out. I don't know, by the way, I don't
16 know why you guys need it. You in the Majority,
17 you've got so much money anyhow, the PACs, the
18 unions and this, they've given you all this
19 money. Senator Goodman, you can't go on
20 campaign time if you live in Manhattan, you
21 can't walk the streets without seeing buses with
22 enormous signs on it, saying "the Statesman of
23 the Senate." He sends it all over Manhattan, in
1025
1 my district. There's all these buses, and some
2 of the upstaters may not know who I'm referring
3 to, Senator Goodman. He says it, so it must be
4 so. He says he's the Statesman of the state
5 Senate.
6 In my district, people come up to
7 me because these buses are all over Manhattan,
8 and they say, "Leichter, you're not a statesman,
9 you've been up there 20 years and you're still
10 not a statesman?" I said, "I don't have enough
11 money. You're a statesman if you have enough
12 money to say you're a statesman."
13 So I don't know why he needed 16
14 mailings, but you know, this is really what it
15 comes down to. I don't know why you don't
16 reveal that information. I don't know why you
17 take positions that are utterly in defensible,
18 and that really brings, I think, disgrace to a
19 body that we all love and that I think, by and
20 large, that we serve honestly, intelligently,
21 with good faith, but every once in a while, we
22 do -- and I'm not just saying it's the Senate
23 Republicans; it happens in the other house;
1026
1 we've done things -- but at this moment we're
2 talking about a principle that you're trying to
3 establish, which is that you can keep the public
4 from knowing how you're spending the taxpayers'
5 money, and that's an indefensible principle, and
6 that's what's involved in this resolution, not
7 if it's legal, not if it's, as I said, the civil
8 rights of poor Steve Sloan, or if we've got to
9 uphold the sanctity, the integrity of the
10 Legislature, by saying that we can do things
11 that the public, if they understood, you know,
12 would scream with anguish.
13 What this is all about is that
14 the public has a right to know this, and you've
15 got to reveal it, and I -- I think the sooner
16 that you give up a position that you know is
17 wrong, I think the sooner we can go on to more
18 productive things. And Senator Halperin said,
19 we're going to hold a hearing tomorrow on the
20 legislative budget. You've heard me talk about
21 it. Usually it's at 3:00 or 4:00 a.m., in the
22 morning, and everybody is moaning and groaning,
23 and it's wrong, and we don't need to do this.
1027
1 We don't need to do this, and we shouldn't
2 maintain this appeal.
3 Give the public this information;
4 it has a right to know. That's what Senator
5 Dollinger is saying. And it's good to get a new
6 voice here, a new look because I think these new
7 members come in, and they say, "My God, the
8 emperor has no clothes."
9 ACTING PRESIDENT LACK: Senator
10 Leichter, Senator Paterson is still holding it
11 in.
12 SENATOR LEICHTER: My God, I
13 forgot about him.
14 SENATOR PATERSON: Mr. President,
15 I don't remember the question. But, Senator
16 Leichter, what I would ask you is, have you
17 noticed that the temperature in this chamber has
18 dropped severely in the last half hour since we
19 started this?
20 So being that the Calvin scale is
21 measured by minus 270 degrees Celsius or minus
22 459 degrees Fahrenheit, I was wondering if you
23 had an explanation for why the temperature has
1028
1 dropped so severely in this chamber.
2 SENATOR LEICHTER: Senator, it
3 was partly in recognition of this that I tried
4 to put a lot of heat into my comments.
5 Obviously I didn't do well enough.
6 SENATOR PATERSON: Mr. President,
7 on the -
8 ACTING PRESIDENT LACK: Senator
9 Paterson, I hate to interrupt you, but there is
10 a list of several Senators before you. I
11 recognized you to ask a question of Senator
12 Leichter. I'm afraid you're going to have to
13 hold it in a little bit longer.
14 Senator Gold.
15 SENATOR GOLD: Pardon me?
16 ACTING PRESIDENT LACK: You asked
17 to be recognized.
18 SENATOR GOLD: No, I asked my
19 questions. I'll wait for Senator Paterson.
20 ACTING PRESIDENT LACK: Senator
21 Dollinger.
22 SENATOR DOLLINGER: I'll waive at
23 this time too.
1029
1 ACTING PRESIDENT LACK: Senator
2 Daly.
3 SENATOR DALY: I'll waive.
4 ACTING PRESIDENT LACK: Senator
5 Jones.
6 SENATOR JONES: Yes. I would
7 like to rise and join my colleagues in support
8 of this resolution. I understand that I have
9 been referred to as the naive one here. Ordin
10 arily, one might be insulted by that kind of
11 comment. Today, frankly, I feel kind of good
12 about it. I'm glad I'm naive and that I don't
13 understand all these intricacies or whatever
14 went into this.
15 As you all know, I taught
16 elementary school, so to me it's fairly simple,
17 two plus two is four. In this case, the way I
18 look at this is there's money, I'm assuming it's
19 public money because no one asked me to
20 contribute when I came here, so I assume the pot
21 of money we're working with must belong to the
22 taxpayers. As a result, that makes one part of
23 the equation.
1030
1 The second part is, the tax
2 payers, at least the ones I've heard from, are
3 asking me, what are we doing with that money?
4 We're sitting here asking the Governor day after
5 day, what is he doing with the money? We ask our
6 school districts at home what are they doing
7 with the money, and everyone seems to have an
8 answer but us.
9 So I guess what I'm left with is,
10 as an educator, I also am a lifelong learner, so
11 I would hope that one of my colleagues could
12 help me learn. I did -- I didn't steal it, must
13 be something public about it. I do have here
14 the Assembly mailing totals and everything that
15 I asked for, and no one made me sign an
16 affidavit or whatever. I was able to get it. I
17 have my Congresswoman's -- here this fills up 50
18 pages, and I really don't care that she sent a
19 $1.98 letter, but I think it's nice that I know
20 that and everywhere I go I find that, and I
21 guess what I'm asking my colleagues, any one of
22 them, is could you just tell me why; what was
23 the rationale that we can't do these same
1031
1 things?
2 ACTING PRESIDENT LACK: Senator
3 Marchi.
4 SENATOR MARCHI: Yes, Mr.
5 President.
6 It's a rather unusual course of
7 events that bring us here today, and I don't
8 think it's anybody's fault in this chamber, but
9 we do have -- we do live in a land that's
10 governed by law. The Latins had a saying, Nola
11 pena sensa sine lege, no pain without a law. So
12 you can't -- you can't, by reason of under
13 inclusion supply that which is not in the law.
14 So if we're going to discharge
15 our responsibilities in a responsible way, then
16 we have to recognize that fact. The judge that
17 made the decision spoke exclusively in terms of
18 the declaration of intent. The declaration of
19 intent.
20 Now, if that were descriptive of
21 the whole law, there are any number of under
22 inclusions that skillful people could avail
23 themselves of for good reasons and for poor
1032
1 reasons, and that is why it is, I think, very
2 necessary for us to be in the position that we
3 are in to sustain the law. I mean that's basic
4 to our civilization.
5 As a matter of fact, there are
6 penalties provided for, if you deny -- if you
7 deny and you violate any reportage failure under
8 the Public Officers Law. Section 79 provides,
9 and there's no scienter provided, a fine of $250
10 upon the officer or member who has refused or
11 neglected to be paid to the treasurer of the
12 state.
13 So that this can be very
14 serious. Section 195 of the Penal Law has
15 provisions addressed to that. I'm not sure
16 whether they apply the question of scienter or
17 not, under 195 of the Penal Law, but they do
18 have -- they do have also those provisions, and
19 the judge didn't get very far because, after he
20 left the declaration of intent, he says that, of
21 course, the intent seeks to realize the greatest
22 and most profound information that you possibly
23 can elicit from a public agency, but he -- he
1033
1 goes on to say that it's not correct of the
2 Senate to go -- to take this course of action,
3 because it denies petitioners access to
4 information in light of the proclaimed
5 legislative purpose of FOIL, the Freedom of
6 Information Law, and in consideration of the
7 fact that other branches of government would be
8 routinely compelled to produce the requested
9 records. Other branches of government. Of
10 course, he got up to Section 87, agency
11 records. Agency records.
12 ACTING PRESIDENT LACK: Excuse
13 me, Senator Marchi. Senator Gold has risen for
14 a question, Senator.
15 SENATOR MARCHI: When I -- when
16 I'm completed, Senator.
17 SENATOR GOLD: Fine, sure.
18 ACTING PRESIDENT LACK: When he
19 finishes.
20 SENATOR MARCHI: He got as far as
21 Section 87. Had he continued to Section 88, he
22 would have read that the state Legislature
23 shall, in accordance with its published rules,
1034
1 make available for public inspection and copying
2 (a) bills and memorandums and (b), (c), (d),
3 (e), (f), (g). There's a whole list of specific
4 mandates where this is to be exercised, and he
5 distinguishes that, but he doesn't distinguish
6 here. He doesn't touch Section 88. It's not
7 mentioned in the decision, but he does -- he did
8 get as far as 87. He said it's routinely
9 required of all other agencies, and he's correct
10 in that statement, I believe.
11 So that we all know that there
12 are penalties that are attached where there's a
13 transgression of a right, that it's all in
14 derogation of the common law. There are many,
15 many of you are lawyers, very fine lawyers, and
16 you know that it has to be strictly construed.
17 You can't apply these lax rules of under
18 inclusion and, by that, sweep into -- into the
19 stream of our jurisprudence matters which were
20 never addressed in a statute, matters which
21 could -- now, I understand you're holding
22 hearings, and you're doing some cogitation on
23 this, but that could be embodied into law, a
1035
1 proposal, a bill that is introduced that
2 addresses certain issues.
3 I'm not prepared to say how I
4 would react to that one way or the other, but I
5 do say that there is an irregularity in the law
6 in which we are pursuing it in this particular
7 exercise. I don't think it's a waste of time
8 because it gives you an opportunity to discuss
9 an issue publicly, but it -- but its adoption
10 and its intrusion into a process that has
11 already gone to the courts should be addressed
12 by the courts, because there are -- it leaves
13 unanswered questions of the propriety of the
14 Secretary of the Senate in discharging the
15 responsibilities which were -- with total
16 fidelity to the provisions that were in the
17 Public Officers Law.
18 So you may make very good use of
19 the time to propose something, but I submit that
20 this is not -- not the way, and certainly I
21 don't -- I don't know what the public -- I
22 believe that the Attorney General is not viewing
23 this with disfavor. I don't believe he is, if
1036
1 anybody can help me out on that, but I believe
2 that he is involved in these proceedings.
3 So I -- I think it's improper at
4 this point other than to have it serve as a
5 vehicle for discussion on certain elements that
6 may or may not be included in a proposal or may
7 be adjudicated with reasoning that is not
8 apparent to any of us yet, but certainly was not
9 apparent to the judge that drafted this
10 decision, not even citing the sections which he
11 thought were violated. Didn't mention them at
12 all.
13 I -- I believe that it would be
14 -- it would serve no useful purpose to accede
15 to the thrust of this resolution, although I'm
16 sure it was offered in good faith and with the
17 hope that it might make a contribution.
18 ACTING PRESIDENT LACK: Senator
19 Marchi, Senator Gold had a question.
20 SENATOR MARCHI: I'm sorry.
21 SENATOR GOLD: Will you yield,
22 sir?
23 ACTING PRESIDENT LACK: Senator
1037
1 Gold.
2 SENATOR MARCHI: Yes.
3 SENATOR GOLD: Senator, you used
4 a phrase "under-inclusion" in your debate and I
5 think you inferred that as a result of under
6 inclusion or as a result of not being included
7 in some way, we should not be involved in the
8 process. Senator -
9 SENATOR MARCHI: Well, sometimes
10 it's not -
11 SENATOR GOLD: Senator, my
12 question -- my question is, I know you are a
13 distinguished lawyer and a law-abiding citizen
14 of this state, but are you saying to me that, if
15 John Marchi, Senator John Marchi, were to make
16 public the amount of money that you spent in
17 your mailings or to make public how many times a
18 year you sent newsletters and all of that, that
19 you would be a law violator?
20 SENATOR MARCHI: No, I wouldn't
21 be a law violator. I'm saying what I am -- what
22 I do voluntarily and what I'm required to do,
23 and the subject of the action I assume is the
1038
1 Secretary of the Senate who is discharging the
2 public responsibility and faces penalties.
3 SENATOR GOLD: Right.
4 SENATOR MARCHI: Under the terms
5 of the Public Officers Law.
6 SENATOR GOLD: Right. So,
7 Senator, if you yield to one more question. You
8 said there is a difference between what you're
9 mandated to do and what you do voluntarily. So
10 am I right in understanding, Senator, that
11 Senator John Marchi could voluntarily make these
12 disclosures, that Senator Chris Mega could join
13 you, that Senator Oppenheimer could join you and
14 that, in fact, we all could join with each other
15 and make this information public? As a matter
16 of fact, I got a fabulous idea, maybe we could
17 all pass a resolution and go on a public record
18 that we all want to do it and then we do it.
19 There would be nothing illegal about that; isn't
20 that true, Senator?
21 SENATOR MARCHI: As expressive -
22 as expressive as a matter of policy, if we
23 wanted to -- if we wanted to -- to do it as a
1039
1 matter of public policy, we would amend the
2 rules so that it would provide for -- we would
3 have -- we have, let's see, a (j) -- (j) (k) all
4 the way up to, after (k) would be (l), section
5 (l) would provide for, and then you would have
6 the support of the Public Officers Law in
7 whatever you undertake to do, yes.
8 SENATOR GOLD: Well, Senator, of
9 course, we don't need the support of the Public
10 Officers Law; isn't that true? The Public
11 Officers Law doesn't bar us from giving the
12 information. It may be a mandate, as you read
13 the law, to others but it doesn't bar or forbid
14 this body from passing a resolution that says,
15 quote, Settle this darned case; get rid of it
16 and let us make it public.
17 Isn't it a fact that the Public
18 Officers Law does not bar us from doing that?
19 SENATOR MARCHI: If -- if we rest
20 on its enforcement on the basis of the
21 declaration of intent that the more you know,
22 the better it is. I don't like to go to a
23 reductio ad absurdum, going to the extreme to
1040
1 illustrate a problem, but if the constituent
2 comes with me and doesn't tell me anything
3 unlawful, but he wants confidentiality, I may
4 extend it to him because he has the right to
5 advance his problem as long as there's no
6 violation of the law, in -- in our constituency
7 relationships.
8 I don't want to see the law
9 prostituted or broadened in a way because this
10 business of routing it only to generalities that
11 are contained in a statement of intent and then
12 pointing you to the specifics and how agencies
13 will behave in response to it and how your
14 behavior will follow access to state legislative
15 records, then I think we're -- I think we have
16 to treat it with a certain amount of reverence
17 and respect, and I'm sure you'd join me on that.
18 SENATOR GOLD: Senator -
19 SENATOR MARCHI: But you've just
20 -- you just feel that -
21 SENATOR GOLD: But if you'll yield
22 to a question -
23 SENATOR MARCHI: I don't argue
1041
1 with you on that.
2 SENATOR GOLD: It's not a
3 question of respect. I mean I respect Steve
4 Sloan, I really do. I think he's a loyal
5 employee of the Senate. I don't think he's out
6 there on his own doing anything; he's a loyal
7 employee, and I respect him.
8 But, Senator, you know, you're a
9 practicing lawyer and I respect that, when I -
10 emphasis on the word "practicing". Isn't it a
11 fact, Senator, that the case is over and a jury
12 makes an award and every day in this state
13 people settle the awards even after the jury
14 cases because they don't want to go on an appeal
15 and so instead of paying $2 million, the
16 insurance company pays 1.7, or in another case,
17 there are mandates -- I had one case years ago,
18 I had a jury order the people had to turn over
19 property and the people decided after the jury
20 verdict that they were going to make a
21 settlement.
22 So, Senator, isn't it a fact that
23 there is nothing in the law that prohibits this
1042
1 body from meeting just as we are now, thanks to
2 Senator Dollinger and others, and saying, Let's
3 all talk it out. Our agent, Steve Sloan, was
4 named, not because he did anything other than
5 us, he -- that's the way you bring a lawsuit
6 against the Senate.
7 SENATOR DALY: Mr. President.
8 SENATOR GOLD: As soon as I
9 finish my question, Senator.
10 ACTING PRESIDENT LACK: Excuse
11 me, Senator Daly.
12 SENATOR GOLD: No, I'll yield.
13 That's all right.
14 ACTING PRESIDENT LACK: No,
15 excuse me, Senator Gold. It's Senator Marchi's
16 yield. Senator Marchi is yielding to a question
17 from you.
18 SENATOR GOLD: Oh. Any way you
19 want it, any way you want it.
20 ACTING PRESIDENT LACK: So,
21 Senator Daly, Senator Gold is supposed to be
22 asking a question.
23 SENATOR DALY: Will Senator
1043
1 Marchi allow me to question Senator Gold?
2 SENATOR GOLD: All right. The
3 answer is, I'll take you off the hook. All
4 right? I think I made the point. I'll withdraw
5 the question. Senator Marchi is finished. You
6 want to ask me to yield to a question?
7 SENATOR DALY: Yes, I do.
8 ACTING PRESIDENT LACK: Now,
9 Senator Daly, do you want Senator Gold to yield
10 to a question as a result of his earlier
11 question to Senator Marchi?
12 SENATOR DALY: Yes, I do, Mr.
13 President.
14 ACTING PRESIDENT LACK: Senator
15 Gold, will you yield to a question based on your
16 earlier question?
17 SENATOR GOLD: Piece of cake.
18 ACTING PRESIDENT LACK: Senator
19 Daly.
20 SENATOR DALY: Mr. Gold, I notice
21 on the resolution that you again, going back to
22 a point that I raised before, that the judge has
23 determined that the Secretary of the Senate has
1044
1 acted contrary to law. Do you think that we
2 should allow a decision like that to stand? In
3 other words, he's saying that Mr. Sloan wrongly
4 interpreted the law, wrongly interpreted the
5 law, that he acted contrary to law, that he
6 literally broke the law?
7 Mr. Gold, do you think that -
8 that Mr. Sloan acted contrary to law in this
9 case?
10 SENATOR GOLD: All right. I'm
11 glad you asked that question. Glad you asked
12 that question. If you will give me the
13 authority, and by "you" I mean every member of
14 your side and every member of my side, I'm
15 willing to bet you right now that I can enter
16 into a stipulation in this case which will say
17 the petitioner acknowledges that Stephen Sloan
18 is an agent of the Senate and did not willfully
19 in any way become a law violator but
20 irrespective of whether the law requires it or
21 not, this body settles the case by agreeing to
22 open up our books and make our payrolls and our
23 mailings -- sorry, our mailings public.
1045
1 In doing that, Senator, we will
2 have done a number of things. We will -
3 SENATOR DALY: Mr. President.
4 SENATOR GOLD: I'm not finished
5 with my answer.
6 SENATOR DALY: O.K.
7 SENATOR GOLD: In doing that, we
8 will have taken away the stigma from that great
9 gentleman, Steve Sloan, as to whether or not he
10 violated the law, and we would remove the stigma
11 from ourselves in the fact that we will not open
12 up our books. So there you go.
13 I won't even charge for it. I
14 won't -- don't submit a bill to Herzfeld & Rubin
15 at 40 Wall Street, New York 5...(212) 344-5500.
16 SENATOR DALY: Mr. President, I
17 don't need the address; I can always find them
18 in the book.
19 ACTING PRESIDENT LACK: Excuse me,
20 Senator Daly.
21 SENATOR DALY: Will you yield to
22 another question?
23 SENATOR GOLD: Yes.
1046
1 ACTING PRESIDENT LACK: Senator
2 Gold, will you yield another question? Senator
3 Daly.
4 SENATOR DALY: Are you a party to
5 this case? I'm not a lawyer, sir, so you'll have
6 to put up with me -
7 SENATOR GOLD: No, I -
8 SENATOR. You are not a party, I
9 gather?
10 SENATOR GOLD: No, I don't
11 believe that I'm directly a party except that
12 I'm affected because it blackens the name of the
13 Senate, and I'm a proud member of this body.
14 SENATOR DALY: Mr. President,
15 I'll come up -- I don't have the floor right
16 now. I will ask that my name be put on the list
17 so I can answer that properly.
18 ACTING PRESIDENT LACK: Senator
19 Paterson, it is now your time.
20 SENATOR PATERSON: Thank you, Mr.
21 President.
22 I have the Public Officers Law in
23 front of me, and I'm looking at Section 88,
1047
1 which applies to the records of state
2 legislators and under section 2, and actually
3 the subdivision (i) it just basically states
4 that the Legislature should make all those
5 records, papers and documents as decreed for
6 public copying and also for public information,
7 and I would tend to think that it was this that
8 the Judge Canfield referred to in his decision,
9 as what would have been the legislative intent
10 15 years ago when the Legislature passed the
11 Freedom of Information Act.
12 Now, that might not be right, but
13 I would tend to think that that was what the
14 decision of the Supreme Court justice was, and
15 it is certainly appealable and that's how our
16 judicial system works, that the judiciary has
17 review over the actions of the Legislature and
18 then there is review over the action of the
19 judiciary by appeal.
20 The fact that Senator Dollinger
21 would like to introduce a resolution at this
22 time calling for this body to make a decision as
23 to whether or not the Secretary of the Senate
1048
1 should exercise the option to appeal this
2 particular case is, in my opinion, I think, a
3 judgment that we might want to have made.
4 It would have better been
5 expressed in a bill. It would have been better
6 expressed in a resolution that was actually on
7 the floor. It was expressed in the best way
8 that Senator Dollinger could publicize the
9 issue, which was a motion to discharge this
10 resolution, which I support.
11 I think that I remember being
12 about 19 or 20 years old and getting the mail
13 one day and getting a newsletter from my state
14 Senator, and I remember thinking, and I think
15 this is probably closer to what the public
16 thinks, that it was very nice of my state
17 Senator to take time out to send me a record of
18 what the Senator was working on.
19 The fact is that the perception
20 that I had as of the time I read this news
21 letter that was sent to me, was a perception
22 that was extended to my value of how hard the
23 Senator was working. So I think it's time for
1049
1 somebody to get up around here and say that, in
2 a sense, legislative mailings as sincere as they
3 may be, are quasi-campaign literature, and that
4 those who read it may think very fondly of the
5 individuals who wrote it and may think very
6 fondly of them the next time they are up for
7 reelection.
8 In spite of the fact that I think
9 that the majority of legislators here try to use
10 the newsletters as catalysts for information,
11 that is inevitably the reason why people fight
12 so hard over how many news letters they're
13 getting, and I think it is the reason that we're
14 discussing this issue today.
15 I don't think that it is a
16 situation that necessarily needs to be changed,
17 but it is one that we have to be scrupulously
18 fair, if we -- about, if we are going to
19 maintain the public confidence in our ability to
20 make other decisions -- decisions that Senator
21 Mendez was saying earlier she would rather
22 discuss than discuss this, decisions relating to
23 housing, to substance abuse, to unemployment,
1050
1 under-employment, decisions relating to labor
2 relations, decisions relating to health care and
3 our educational facilities which really, at this
4 point, need a longer discussion than our
5 legislative mailings.
6 So only for the value of what our
7 perception is as a body and what our integrity
8 is, I think that we have to disclose as much
9 information as we can to the public so that it
10 is in the public interest that there not be any
11 misunderstanding of what the legislative news
12 letters are.
13 I think that any attempt to
14 resist the publication of how much money is
15 being spent which is a direct indication of how
16 serious this issue is being taken by this body,
17 really, is not acting in the public interest.
18 The fact that the Secretary wants
19 to appeal is fine. The Secretary might want to
20 exercise that option, but the elected officials,
21 61 of us in this chamber, also have an
22 opportunity to have our voices heard on this
23 issue, and I am thankful that Senator Dollinger
1051
1 used whatever was left of him within our rules
2 to at least put this information out, so that
3 the public may not ever get to find out how much
4 money is being spent on mailings but may get to
5 find out that there are a few people that think
6 that the process could be more fair.
7 ACTING PRESIDENT LACK: Senator
8 Oppenheimer.
9 SENATOR OPPENHEIMER: Thank you.
10 I want to say that I, for one, do
11 not think that Steve Sloan turned off the heat
12 so that we could freeze and move out of here
13 quickly. I know that was Senator Paterson's
14 question a half hour ago before he forgot it.
15 Now, I'm not a lawyer and I don't
16 know if that's beneficial or not beneficial, but
17 I am listening to what's going on here and it's
18 sort of sounding a lot like LaLa Land to me, and
19 I don't mean to be disrespectful, and I do want
20 to compliment the three Republican Senators who
21 have spoken up. They've been good soldiers;
22 they're trying to do the best they can, but this
23 is -- I can not see a higher law that exists
1052
1 than the people's right to know about what's
2 happening with their own government.
3 Almost every other legislative
4 body, I don't -- I can't say all but I believe
5 almost all, maybe all do provide this kind of
6 information and, while you mention the Assembly,
7 I believe the Assembly provides that information
8 concerning mailings twice a year, but that isn't
9 saying that they're doing enough.
10 I think both houses should be
11 doing more, and two wrongs wouldn't make a right
12 if they were doing, you know, less than us. It
13 still isn't right. It is the public's right to
14 know what we are doing, and what's happened in
15 recent years is, the public is questioning us.
16 They're suspicious of us. We are them. We have
17 nothing to hide from them. What we do is good
18 work. Why aren't we proud of it? Why don't we
19 open up everything and say the public should
20 know? We want to restore confidence and
21 certainly I feel that -- that to say that we
22 should spend the public's money so that the
23 public shouldn't know, I mean that I guess is
1053
1 why I said it's LaLa Land, just doesn't make
2 sense, and I don't think any reasoning mind
3 would say it makes sense.
4 ACTING PRESIDENT LACK: Senator
5 DeFrancisco.
6 SENATOR DeFRANCISCO: I think
7 there's two issues here and they seem to be
8 muddled together and I can understand why
9 because politically it's very easy to say the
10 public has a right to know. I mean who could
11 ever disagree with that, with the press writing
12 vigorously over there.
13 Of course, the public has a right
14 to know and issue number one, I think that's
15 true. I think if this was a resolution dealing
16 with disclosure of things like how much somebody
17 spent for mailing, that would be something
18 totally different, and I would vote in favor of
19 something like that, because I think the public
20 does have a right to know. I think -
21 SENATOR LEICHTER: Mr. President.
22 ACTING PRESIDENT LACK: Senator
23 Leichter, why do you stand?
1054
1 SENATOR LEICHTER: I wonder if
2 the Senator would yield?
3 SENATOR DeFRANCISCO: No, I'm not
4 going to yield for a filibuster because I heard
5 him for quite a while, and I'd just like the
6 opportunity to finish my thought.
7 ACTING PRESIDENT LACK: Not at
8 this moment, Senator.
9 SENATOR DeFRANCISCO: All right?
10 ACTING PRESIDENT LACK: Senator
11 DeFrancisco.
12 SENATOR DeFRANCISCO: The second
13 thought -- the second thought is this, that the
14 other issue is whether this lawsuit should be
15 appealed which, in my mind, is a totally
16 separate and distinct issue.
17 If we are going to use the
18 judge's ruling that the declaration of intent in
19 this piece of legislation is going to determine
20 all further questions under this legislation,
21 then it's going to open a very -- a lot of
22 different issues. Maybe you want them to be
23 opened, but I don't think you would if you
1055
1 thought about it.
2 For example, a constituent writes
3 a piece of mail, a letter to me, maybe a very
4 confidential thing, something about someone that
5 they don't want to have disclosed to the world.
6 I write a response back; a dialogue takes place
7 that leads to legislation. That may have been
8 the seed that placed the piece of legislation,
9 the thought in my mind.
10 If we're going to look to the
11 declaration of intent to this legislation that
12 the people have the right to know we've got to
13 disclose everything to the public about what our
14 thoughts are in the thought process as to how
15 the legislation starts from the inception to the
16 end, and this law -- and this case is still on
17 the books because we did not appeal, that is
18 precedent for another petitioner to say, Why did
19 Jane Jones send you a letter and why did you
20 respond in that fashion? We have a right to see
21 that communication because the public has a
22 right to know.
23 So my point is simply this, that
1056
1 if we do not appeal this decision that base all
2 decisions on the Freedom of Information Law on
3 the declaration of intent, it's a precedent that
4 could be used in a much broader fashion. So on
5 the legislation as if sits before us today, I'm
6 going to vote no.
7 But I just want to make clear
8 that I'm not saying the people don't have a
9 right to know on the issue that this judge
10 happened to decide or that the Assembly is wrong
11 in giving out the numbers for each mailing.
12 That's a different issue and, when that's
13 framed, I'll vote differently, but I think you
14 really ought to see what you're really doing and
15 think it through before we go forward with
16 passing something and leaving this on the
17 books.
18 The last -- and I better leave it
19 at that. So I'm going to vote no on this
20 specific legislation, but be very clear that
21 doesn't mean I don't want the public to know
22 about this particular issue.
23 ACTING PRESIDENT LACK: Senator
1057
1 Leichter, you had a question?
2 SENATOR LEICHTER: Senator, if
3 you -- if you will yield not for a filibuster
4 but because I -- I thought you made some
5 interesting comments, and I wanted to fully
6 understand it, and do I understand from your
7 comments that you would -- are in favor of the
8 right of the public to know the mailings that
9 are sent out by the Senate?
10 SENATOR DeFRANCISCO: And the
11 Assembly.
12 SENATOR LEICHTER: And the
13 Assembly, absolutely. You're in favor of that,
14 right?
15 SENATOR DeFRANCISCO: Generally,
16 yes.
17 SENATOR LEICHTER: Well, what
18 does "generally" mean?
19 SENATOR DeFRANCISCO: Well, when
20 the issue is framed in a piece of legislation, I
21 will explain my vote fully as I explained it
22 today. It depends upon what the specific piece
23 of legislation is, and I will -- I will react to
1058
1 it.
2 SENATOR LEICHTER: Senator, I'm
3 not referring to any specific legislation. I'm
4 asking you for the simple proposition. You got
5 up here and you obviously wanted to tell your
6 constituents. Wait a second, I'm not saying you
7 don't have a right to know.
8 Now, I'm asking you specifically,
9 do you favor the right of your constituents to
10 know what mailings are sent out by the Senate
11 and what the cost of those mailings are; in
12 other words, how their monies are being spent on
13 mailings?
14 SENATOR DeFRANCISCO: I have -- I
15 agree with the manner in which the Assembly
16 lists their mailings.
17 SENATOR LEICHTER: So you would
18 be in favor of disclosing the information?
19 SENATOR DeFRANCISCO: I would be
20 in -- I will tell you whether I'm in favor or
21 against a specific piece of legislation when I
22 see how it's framed. For example, this piece of
23 legislation is being touted as something that it
1059
1 really isn't. This is not a question of full
2 disclosure. It's a question of whether to
3 appeal a decision that could leave a bad
4 precedent. That's what I'm saying.
5 I fully explained the vote. I
6 have explained to you that I would be in favor
7 of disclosure in the manner that the Assembly
8 did. Beyond that, I would like to see a
9 specific piece of legislation before I react
10 fully on it.
11 SENATOR LEICHTER: All right.
12 Then, Senator, I -- I gather and I'm sorry to
13 say this, do you mean when you say "generally,"
14 you mean it's a nice thing to tell people, but
15 when you get specific then you seem to have some
16 problem with it?
17 SENATOR DeFRANCISCO: No, no,
18 that's quite unfair. I said specifically, I
19 think some of your own members pointed up the
20 Assembly's version of disclosure, and I said,
21 just like some of them said, that that makes
22 sense to me.
23 If there was a piece of
1060
1 legislation in proper form, I'll react to it and
2 I'll tell you specifically the way I stand, but
3 to answer hypothetical questions when we're
4 dealing with a specific resolution here, I don't
5 think is very productive.
6 SENATOR LEICHTER: Senator, if you
7 would be so good as to yield to just one more
8 question.
9 SENATOR DeFRANCISCO:
10 Absolutely.
11 SENATOR LEICHTER: Thank you.
12 I didn't think I was being
13 hypothetical at all. I didn't think I could be
14 much more specific than talking about mailings
15 and I do appreciate your saying that you would
16 be at least willing to go as far as the Assembly
17 goes.
18 But, Senator, my question is, you
19 heard Senator Gold say that this case could be
20 easily settled on the basis, just give the
21 information as to the mailings and we would
22 forget -- there would be no precedent
23 whatsoever. You could withdraw the -
1061
1 SENATOR DeFRANCISCO: Let me just
2 ask you something.
3 SENATOR LEICHTER: Let me just
4 finish the question.
5 SENATOR DeFRANCISCO: O.K.
6 SENATOR LEICHTER: You could
7 withdraw the -- withdraw the decision. In
8 deed, Senator, there would have been no lawsuit
9 if the information had been supplied in the
10 first instance. Just say how many mailings were
11 sent out by a particular Senator during the
12 1992, I guess it was for a 12-month period, and
13 as I understand it, you seem to be in favor of
14 making that information available, so you ought
15 to support this resolution.
16 SENATOR DeFRANCISCO: Well, then,
17 you obviously didn't understand what I said, and
18 I'm not going to repeat it, because it's clear
19 on the record, but to to answer your question, I
20 listened to Senator Gold about his willingness
21 to enter a stipulation.
22 I don't know, maybe I went to the
23 wrong law school. I went to Duke; I think it's
1062
1 pretty good. But Duke Law School taught me that
2 in order to enter a stipulation you have to be a
3 party to the lawsuit; you have to be either the
4 plaintiff or the plaintiff's representative and
5 I don't believe -
6 SENATOR GOLD: Mr. President.
7 SENATOR DeFRANCISCO: May I
8 finish?
9 SENATOR GOLD: You didn't
10 understand what I said. I have said if this
11 body authorized me to be the attorney I'd take
12 it over, I'd settle it, and we'd all be out of
13 here, and you could buy lunch.
14 SENATOR DeFRANCISCO: That's
15 correct, but this body -- this body, all what
16 I'm suggesting to you is we cannot, whether you
17 want to enter a stipulation or not is not the
18 point. The point is presently at this time
19 there is a resolution on this -- on the floor
20 right now, and I think I was clear in saying
21 that all I'm concerned about, I don't think
22 anybody on either side of the aisle would want
23 the type of correspondence that I -- I was
1063
1 referring to disclosed and it's at a risk of
2 being disclosed in the event that this precedent
3 stays on the books.
4 ACTING PRESIDENT LACK: Senator
5 Daly.
6 SENATOR DALY: Mr. President, I
7 think it's clear that what we're taking strong
8 exception to truly is not the message as much as
9 the instrument, and the reason for the
10 instrument.
11 You know, I'm amazed that a group
12 of individuals who I know truly are defenders of
13 individual freedom, and I constantly hear from
14 Senator Gold and Senator Leichter about how
15 important it is that we defend individual
16 freedom, and then I look at a resolution that,
17 by the way, includes -- is so broad and to go
18 along with the points well made by both Senator
19 DeFrancisco and Senator Paterson, it includes
20 first class mailings. Again, a direct violation
21 potential of confidentiality.
22 But what gets me most of all is
23 that here you use the language in the resolution
1064
1 of a judge saying that the Secretary of the
2 Senate was arbitrary, capricious and contrary to
3 the law, and that's key, and an abuse of
4 discretion in interpreting the existing law -
5 the existing law, not the law that you feel we
6 should have, and I don't take -- I take no
7 exception to that, but not -- to deny that
8 person the right of appeal who has been accused
9 of that, to me, is something so undemocratic,
10 unconstitutional, and knowing you, and I'm
11 sincere, knowing how strongly you feel about the
12 rights of the individual, to come up with an
13 instrument, a resolution such as this, would
14 just throw out the appeals.
15 Again, as I said, I'm not an
16 attorney, but to me the Constitution, the
17 separation of powers, the establishment of the
18 appellate court, truly, truly, ladies and
19 gentlemen, indicates how important it is that we
20 maintain the process, the judicial process, that
21 we maintain the separation of powers and, most
22 importantly, that we maintain the right of
23 appeal.
1065
1 And I don't think this body -- I
2 don't think this body has the right really to
3 deny the Secretary of the Senate, who has been
4 accused, and you've mentioned again in your
5 resolution, of violating the law -- of violating
6 the law, which potentially -- potentially could
7 create serious problems for him. There is
8 potential.
9 Let us say that he released all
10 this information, and a member took exception to
11 it and said, You went well beyond; here, read,
12 read the Freedom of Information Act. You went
13 beyond your power, and, therefore, I'm going to
14 charge you, either procedurally inside the
15 Senate or even potentially in the court.
16 Now, you can't be serious; I know
17 you too well, I know you too well, and you
18 recognize this for what it is. I don't take any
19 exception. You've got a political instrument.
20 You're making a point. I respect that, I
21 understand it, but for goodness' sakes, when you
22 try to make that point, don't come up with a
23 resolution that literally deprives a person of
1066
1 his constitutional right because that's what
2 you're doing.
3 SENATOR DOLLINGER: Mr.
4 President, Senator Daly yield to one question?
5 ACTING PRESIDENT LACK: Senator,
6 will you yield?
7 SENATOR DALY: Yes, I will.
8 ACTING PRESIDENT LACK: Senator
9 Dollinger.
10 SENATOR DOLLINGER: Senator Daly,
11 if this body, determined by majority vote that
12 Steve Sloan should not appeal, would he still
13 have the power to appeal, in your opinion?
14 SENATOR DALY: On his own? I
15 don't know. I'm not -- you tell me.
16 SENATOR DOLLINGER: Well, simply
17 asked, isn't he our employee? He does what we
18 tell him; isn't that correct?
19 SENATOR DALY: Yes.
20 SENATOR DOLLINGER: So if we told
21 him to -
22 SENATOR DALY: Wait a minute. If
23 we tell him to do something illegal or wrong,
1067
1 no, he does not do it.
2 SENATOR DOLLINGER: Well, but if
3 we told him to do something because we thought
4 that was what was necessary to do to comply with
5 the law, I assume Mr. Sloan would do it,
6 wouldn't he?
7 SENATOR DALY: If he interpreted
8 -- if he interpreted the order to be a correct
9 and proper one, yes.
10 SENATOR DOLLINGER: O.K.
11 SENATOR DALY: If he interpreted
12 that to be incorrect and improper, hopefully
13 no.
14 SENATOR DOLLINGER: All right.
15 And if he decided that it was improper for him
16 to follow our direction, do you know where he
17 would get the money to finance the appeal?
18 SENATOR DALY: No.
19 SENATOR DOLLINGER: I assume he'd
20 get it from the taxpayers, wouldn't he?
21 Shouldn't we have to disclose where he gets the
22 money for the appeal?
23 SENATOR DALY: I'm sorry.
1068
1 SENATOR DOLLINGER: How he's
2 paying for the appeal?
3 SENATOR DALY: You're denying him
4 the right to the appeal in this resolution. If
5 we pass it as a body and because he is subject,
6 but he's -- I would -- I would gainsay that he
7 would not appeal.
8 SENATOR DOLLINGER: O.K. But he
9 is our employee and he does what we tell him,
10 does he not?
11 SENATOR DALY: Senator, believe
12 me, the point -- you're not getting my point.
13 I'm saying that basically this -- that in this
14 resolution that you sponsored, you mentioned the
15 word, you mentioned the language. You said the
16 judge has accused him of this. You put it in
17 resolution.
18 SENATOR DOLLINGER: That's
19 correct.
20 SENATOR DALY: And the appeal,
21 now, let's look at what the appeal is about. By
22 the way -
23 SENATOR DOLLINGER: Let me -
1069
1 ACTING PRESIDENT LACK: Excuse
2 me, Senator Daly and Senator Dollinger. Senator
3 Dollinger, in this chamber, all remarks are
4 addressed to the floor. You've asked the
5 question; Senator Daly is responding to it.
6 Until he finishes responding, Senator Daly has
7 the floor.
8 SENATOR DOLLINGER: That's
9 correct, Mr. President. I apologize.
10 SENATOR DALY: Mr. President, you
11 just made me forget the very important point I
12 was going to make, but just give me a second,
13 and I'm sure it will come back.
14 Basically the point I've been
15 making is that, in allowing -- in denying
16 someone the right to take exception in court of
17 being accused of acting contrary to the law is
18 something that I just cannot understand. I
19 certainly cannot accept it.
20 And again, going back to my basic
21 point, I take very strong exception to the
22 instrument you've used. I know what you're
23 doing. You know what you're doing. I respect
1070
1 it. You feel strongly about a given issue and
2 you're using this as a means of expressing it
3 but I'm saying when you do that, do that, please
4 don't put together a resolution that so
5 violently violates the Constitution that it's
6 abhorrent.
7 ACTING PRESIDENT LACK: Senator
8 Gold.
9 SENATOR GOLD: Thank you, Mr.
10 President.
11 We're going to close debate for
12 this side, and I have just a moment, and I'm
13 going to yield to Senator Dollinger.
14 First of all, I have a very
15 significant document here. I've heard people
16 talking all day about the Assembly, the Assembly
17 and the Assembly, and I don't know how we have
18 the nerve to criticize the Assembly on this
19 particular issue, because in my hand is a
20 document which specifically sets forth what each
21 Assemblyman spends for their mailing. It's got
22 first class, UPS, and telegrams, each Assembly
23 person, their name and the amount of money that
1071
1 they spend.
2 There's another part of this,
3 each Assemblyperson's name and under
4 "miscellaneous bulk" and "districtwide bulk"
5 the exact penny amount of what each person
6 spends. There's even something here which tells
7 you what the Speaker spends, what the Minority
8 Leader spends, so when we get to the point where
9 we do at least this, we ought to throw rocks at
10 the Assembly, but with all of the talk about
11 what they have to do, they should have done or
12 whatever, this is what they're doing.
13 Senator Daly says that what we're
14 doing is political and, of course, you know, you
15 have an answer to that. All you have to do is
16 the right thing and you take away the issue. If
17 you open up the books, you take away the issue,
18 and then you are politically right. You are the
19 ones who run this place, but the arguments that
20 I've heard today really are hogwash.
21 There is nothing illegal about us
22 settling a case. There is nothing illegal about
23 us opening our books. There's no statute that
1072
1 stops us from opening our books. There's no
2 statute that stops us from settling this case
3 with an honorable statement about Steve Sloan
4 and then this body saying, since there is no law
5 that prohibits us, and since it is the right
6 thing to do, we're going to do it.
7 I've heard people like Senator
8 DeFrancisco and others say they aren't opposed
9 to a new law. Why are we opposed to just
10 letting out the information? Enough of this
11 business. Enough of it. There isn't anyone
12 here, including Steve Sloan, whose ego is more
13 important than the rights of the people in this
14 issue.
15 I yield to Senator Dollinger.
16 SENATOR DOLLINGER: Thank you,
17 Senator Gold, and I appreciate the comments of
18 my colleagues pro and con on this -- this
19 resolution or this motion.
20 I think it's an important debate
21 to have had. I wish we could get into the
22 technical issues of what we spend on mailing and
23 how we account for it, because I think it would
1073
1 be important to have for the people of this
2 state a further debate if this res... motion to
3 discharge is approved. Then we can look at the
4 resolution, and I hope at some time we'll look
5 for the kinds of things that Senator Volker has
6 mentioned, Senator DeFrancisco, Senator Daly has
7 mentioned, to look at bills that will actually
8 put into law clearly and concisely exactly how
9 we should operate this body.
10 Let me just summarize a couple
11 quick things. One, people have talked about the
12 Assembly. We ought to set the standard for the
13 Assembly. We don't need the Assembly to set the
14 standard for us, and I'll tell everybody in this
15 room, if we do set a standard of disclosure,
16 I'll be the first to walk across the hall, find
17 sponsors and, frankly, take the same message to
18 them that I'm trying to get across to this body,
19 that disclosure is a good thing, and the people
20 who pay the bills ought to know what they're
21 paying for. I'll be right there. I'll join all
22 of you to do it.
23 Two, I can't believe we spend any
1074
1 time talking about government secrecy. This
2 isn't a secret government. We're not the
3 Central Intelligence Agency. We're the Senate
4 of the state of New York. We're spending the
5 people's money. We ought to tell them what
6 we're spending it for.
7 I drew a simple analogy when I
8 was sitting here. We are the board of directors
9 of the corporation. Would we call the marketing
10 department downtown -- downstairs in our
11 corporation and say, How's the marketing for the
12 corporation going, and the message we get back
13 is, We're not going to tell you. We're not
14 going to tell you who we're sending first class
15 mail to. We're not going to tell you who we're
16 sending bulk mail to. We're not going to tell
17 you who we're sending newsletters to. The
18 marketing department isn't going to tell us, the
19 board of directors, what we're doing in our
20 contact with our consuming public or, in our
21 case, our constituents and taxpayers.
22 I submit there isn't a person in
23 this room who would sit on a corporation and
1075
1 allow the marketing department to tell you,
2 We're not going to tell you what we spend your
3 money on.
4 I'll close on one lawyer point.
5 Senator Marchi and Senator DeFrancisco talked
6 about the law and the impact of the law. Well,
7 it's a combination of the law and a simple thing
8 that I'm used to saying to my children and they
9 oftentimes box me into a little corner, and the
10 corner is very simple, when they say to me,
11 "Listen, what you're telling us is, 'do as I
12 say, not as I do'."
13 If we don't support this
14 resolution, our message to the rest of this
15 state is exactly that. We want you to abide by
16 the Freedom of Information Act, but we're not
17 prepared to do it. We want to carry on in
18 secrecy. In that view, a Freedom of Information
19 Act becomes the cruelest hoax and the cruelest
20 mandate because we're telling every other level
21 of government to be open, but we're not open
22 ourselves.
23 I'll close on a very lawyer-like
1076
1 point. I'm sure my counsel -- my colleagues who
2 are attorneys will understand there's an old
3 rule of law called the "missing witness"
4 charge. When you go to trial, and you're
5 supposed to produce a witness and the witness
6 doesn't show up, the judge then turns around to
7 the jury and says, This party was required to
8 bring this witness to the podium and to the
9 witness stand. Because they failed to do that,
10 you, the members of the jury, can draw the most
11 adverse inference from their failure to appear.
12 My sense is, all of my
13 colleagues, you fall into the "missing Senate"
14 charge when you vote against this resolution
15 because, in essence, everyone in this state will
16 be able to assume what Senator Leichter assumes,
17 which is that this mailing budget is not used
18 for a legitimate government purpose, to take a
19 message of our achievements and our concerns to
20 our constituents, but instead it's used for
21 blatantly political purposes.
22 It's the taxpayers' money being
23 used by one political organization against
1077
1 another. That's the adverse inference that you
2 will all be subject to, the adverse speculation
3 that you're all going to be a part of unless you
4 vote in favor of disclosure.
5 I would ask all of you, don't
6 take our collective credibility and put it at
7 risk. Our credibility is dependent upon telling
8 the people what we buy and what we pay for and
9 what they're having to pay the bill for. That's
10 what this resolution is designed to do.
11 I understand from Senator Daly
12 and Senator DeFrancisco, I wish it were in a
13 different form. It can be in a different form.
14 I've drafted legislation to make the Freedom of
15 Information Act specifically expressly
16 applicable to the Legislature so there won't be
17 any question in anyone's mind. I'll circulate
18 the bill and those who've expressed support for
19 the concept, I hope you'll sign on.
20 Senator Halperin has already
21 circulated a bill to the members of this body
22 asking this body to support quarterly financial
23 accounting so that we can publish for our
1078
1 constituents the exact same thing that the House
2 of Representatives does. What's good for them
3 must be good for us.
4 We can change the process. The
5 process is already beginning to change. I would
6 simply ask all of you, we're not doing anything
7 that's too broad. We're simply shining a little
8 bit of light in one of those dark nooks and
9 crannies where the taxpayers deserve to have the
10 light turned on. This resolution begins to turn
11 on the first light bulb of what I hope will be a
12 process that will bring this organization from
13 out of the 17th Century and into the 21st
14 Century.
15 Please support this resolution.
16 ACTING PRESIDENT LACK: On the
17 motion to discharge, all those in favor, aye.
18 Contrary nay.
19 SENATOR GOLD: Party vote in the
20 affirmative.
21 ACTING PRESIDENT LACK: Party
22 vote.
23 (The Secretary called the roll. )
1079
1 THE SECRETARY: Ayes 23, nays
2 34. Party vote.
3 ACTING PRESIDENT LACK: The
4 motion fails.
5 Senator Present.
6 SENATOR PRESENT: Mr. President,
7 in behalf of Senator Levy, I'd like to announce
8 there will be a Republican Majority Conference
9 immediately following adjournment, in 332, and
10 there being no further business, I move we
11 adjourn until tomorrow at 11:30 a.m.
12 ACTING PRESIDENT LACK: There is
13 an immediate conference of the Senate Majority
14 in Room 332. There being no further business, I
15 move we stand adjourned until tomorrow at 11:30
16 a.m. The Senate is adjourned.
17 (Whereupon at 6:16 p.m., the
18 Senate adjourned.)
19
20
21
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23