Regular Session - January 22, 1996
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9 ALBANY, NEW YORK
10 January 22, 1996
11 3:01 p.m.
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14 REGULAR SESSION
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18 SENATOR JOHN R. KUHL, JR., Acting President
19 STEPHEN F. SLOAN, Secretary
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1 P R O C E E D I N G S.
2 ACTING PRESIDENT KUHL: The
3 Senate will come to order.
4 Will all the members and staff
5 find their places. Ask you all to rise and join
6 with me in saying the Pledge of Allegiance to
7 the Flag.
8 (The assemblage repeated the
9 Pledge of Allegiance to the Flag.)
10 We're very pleased to have with
11 us today the Honorable Monsignor Michael J.
12 Cantley, of St. Anastasia's Roman Catholic
13 Church of Douglaston, New York. Father
14 Cantley.
15 REVEREND MICHAEL J. CANTLEY:
16 Members of the Senate, I'm very pleased to be
17 with you today and thank you very much for the
18 invitation to offer this opening prayer for your
19 session.
20 Almighty and eternal God, You
21 have revealed Your mind and nature, history, in
22 the prophets You have sent into the world. The
23 prophet is one who speaks in Your name and for
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1 You, one who orders society to the accomplish
2 ment of Your will. In that sense, prophetism
3 continues throughout history.
4 They were prophets who forged the
5 founding documents of our nation and state, and
6 they are prophets today who sit in the
7 assemblies of government to apply constitutional
8 guarantees, to enact laws to create a climate of
9 justice, peace and respect for our life,
10 offering protection for the weak and opportunity
11 to serve to the strong.
12 Gathered here in this Senate are
13 women and men elected by their peers and
14 burdened with the awesome responsibilities to
15 temper justice with mercy, peace with strength
16 and to assure that the most fundamental value be
17 that without which neither justice nor peace of
18 meaning is protected from the moment of its
19 existence 'til You and no other call it home.
20 Assist this Senate with your gift of wisdom that
21 its deliberations and all of its members may see
22 through the bars of conflicting opinions to the
23 common good that all just law is intended to
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1 serve.
2 Give them the gift of knowledge
3 and the urgency to seek truth and righteousness
4 that may lie hidden in particular agendas. May
5 ultimate value never be sacrificed to paliate
6 short-term but popular goals. Infuse them with
7 counsel and understanding that will reach beyond
8 party and local constituency to serve the
9 legitimate needs and desires of every citizen,
10 balancing particular concerns and the welfare of
11 the whole state.
12 Accord to them the gift of
13 strength. Allow principle to be the constant
14 prism through which they view the issues they
15 deliberate within this chamber. We pray that
16 every and each member of this Senate will
17 deserve the title "honorable" that precedes
18 his/her name. Let personal integrity which will
19 respect honest opinion and selfless service,
20 self-sacrificing love for all whom they
21 represent, be evident in every moment they serve
22 in their representative office.
23 May their families who have
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1 generously supported their aspirations to public
2 life be proud of the positions they take and the
3 service they render. We pray, finally, that the
4 citizenry of this state will respect the service
5 these women and men give and appreciate the
6 sacrifice the position imposes on them.
7 Accord them support, trust, the
8 benefit of doubt and unwavering courtesy. The
9 prophets who sit in this Senate are fallible.
10 May they, we, and all of us together work humbly
11 in the common cause that the political process
12 may actualize the potential of all citizens of
13 good will, offering each the opportunity to be
14 all she/he can be. Amen.
15 ACTING PRESIDENT KUHL: Reading
16 of the Journal.
17 THE SECRETARY: In Senate,
18 Friday, January 19th. The Senate met pursuant
19 to adjournment, Senator Bruno in the Chair. The
20 Journal of Thursday, January 18th, was read and
21 approved. On motion, Senate adjourned.
22 ACTING PRESIDENT KUHL: Hearing
23 no objections, the Journal stands approved as
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1 read.
2 Presentation of petitions.
3 Messages from the Assembly.
4 Messages from the Governor.
5 Reports of standing committees.
6 Secretary will read.
7 THE SECRETARY: Senator Marchi,
8 from the Committee on Corporations, Authorities
9 and Commissions, offers up the following bills
10 directly for third reading:
11 Senate Print 1720, by Senator
12 LaValle, an act to amend the Public Authorities
13 Law, in relation to the financing and
14 construction of certain facilities;
15 Senate Print 2198-B, by Senator
16 Marchi, an act to amend the Not-for-Profit
17 Corporation Law, in relation to not-for-profit
18 corporations formed to construct, develop, plan,
19 site, lease, operate or own municipal
20 facilities;
21 Senate Print 3367, by Senator
22 Marchi, an act to repeal Section 630 of the
23 Business Corporation Law, relating to the
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1 liability of shareholders;
2 Senate Print 3431, by Senator
3 Marchi, an act to amend the Public Authorities
4 Law, in relation to the construction and
5 financing of facilities for certain public
6 libraries;
7 Senate Print 5183, by Senator
8 Marchi, an act to amend Chapter 590 of the Laws
9 of 1993, amending the Public Authorities Law;
10 All bills directly for third
11 reading.
12 ACTING PRESIDENT KUHL: Without
13 objection, all bills are ordered directly to
14 third reading.
15 Reports of select committees.
16 Communications and reports from
17 state officers.
18 Motions and resolutions. The
19 Chair recognizes Senator Marcellino.
20 SENATOR MARCELLINO: Mr.
21 President, I move that the following bills be
22 discharged from their respective committees and
23 be recommitted with instructions to strike the
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1 enacting clause: Bill Senate Numbers 899-A,
2 901-A, 902-A, 1281, 3395, 3410, 4459, 4885,
3 4889, 4890, 5101-A, 5276-A, and 5447.
4 ACTING PRESIDENT KUHL: Without
5 objection, so ordered.
6 Senator Marcellino.
7 SENATOR MARCELLINO: Mr.
8 President, on page number 12, I offer the
9 following amendments to Calendar Number 81,
10 Senate Print Number 2010, and ask that said bill
11 retain its place on the Third Reading Calendar.
12 ACTING PRESIDENT KUHL:
13 Amendments are received and adopted. Bill will
14 retain its place on the Third Reading Calendar.
15 Senator Marcellino.
16 SENATOR MARCELLINO: Mr.
17 President, I move the following bill be
18 discharged from its respective committee and be
19 recommitted with instructions to strike the
20 enacting clause, and that is Bill 4530.
21 ACTING PRESIDENT KUHL: The
22 enacting clause will be stricken.
23 Senator Present.
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1 SENATOR PRESENT: Mr. President,
2 on behalf of Senator Stafford, on page 11, I
3 offer the following amendments to Calendar
4 Number 79, Senate Print 624, and ask that it
5 retain its place on the Third Reading Calendar.
6 ACTING PRESIDENT KUHL:
7 Amendments are received and adopted. Bill will
8 retain its place on the Third Reading Calendar.
9 SENATOR PRESENT: Mr. President,
10 on page 11, I offer the following amendments to
11 Calendar 78, Senate Print 621, and ask that it
12 retain its place on the Third Reading Calendar.
13 ACTING PRESIDENT KUHL:
14 Amendments to that bill will be received and
15 adopted. Bill will retain its place on the
16 Third Reading Calendar.
17 Senator Present.
18 SENATOR PRESENT: Mr. President,
19 on page 9, I offer the following amendments to
20 Calendar 61, Senate Print 1261-B, and ask that
21 it retain its place on the Third Reading
22 Calendar.
23 ACTING PRESIDENT KUHL:
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1 Amendments to that bill are received and
2 adopted. The bill will retain its place on the
3 Third Reading Calendar.
4 Senator Present.
5 SENATOR PRESENT: Mr. President,
6 on behalf of Senator Levy, on page 7, I offer
7 the following amendments to Calendar Number 39,
8 Senate Bill Number 319, and ask that the bill
9 retain its place on the Third Reading Calendar.
10 ACTING PRESIDENT KUHL:
11 Amendments to that bill are received and
12 adopted. Bill will retain its place on the
13 Third Reading Calendar.
14 I understand we have a
15 substitution at the desk. Senator Bruno, is it
16 O.K. if we have that read at this time?
17 SENATOR BRUNO: Substitution, Mr.
18 President.
19 ACTING PRESIDENT KUHL: Secretary
20 will read the substitution.
21 THE SECRETARY: Senator Volker
22 moves to discharge from the Committee on
23 Investigations, Taxation and Government
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1 Operations Assembly Print 8222 and substitute it
2 for the identical Calendar Number 36.
3 ACTING PRESIDENT KUHL: Without
4 objection, substitution is ordered.
5 The Chair recognizes Senator
6 Bruno.
7 SENATOR BRUNO: Mr. President,
8 can we at this time ask for an immediate meeting
9 of the Finance Committee in Room 332.
10 ACTING PRESIDENT KUHL: For those
11 members who are in the reception of my voice,
12 there will be an immediate meeting of the
13 Finance Committee in the Majority Conference
14 Room, Room 332. Immediate meeting of the Senate
15 Finance Committee in Room 332.
16 Senator Bruno, that brings us to
17 the calendar if you're ready for that, sir.
18 SENATOR BRUNO: Can we at this
19 time take up the non-controversial calendar, Mr.
20 President.
21 ACTING PRESIDENT KUHL: Secretary
22 will read the non-controversial calendar.
23 THE SECRETARY: Calendar Number
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1 13, by Senator Kuhl, Senate Print 514-A, an act
2 to amend the Agriculture and Markets Law, in
3 relation to the duties of the Commissioner of
4 Agriculture and Markets.
5 SENATOR ONORATO: Lay it aside.
6 ACTING PRESIDENT KUHL: Lay the
7 bill aside.
8 THE SECRETARY: Calendar Number
9 35, by Senator Saland, Senate Print 4009-B, an
10 act to amend the Tax Law, the Labor Law, the
11 General Municipal Law, the State Finance Law,
12 the Executive Law, relating to the rate of
13 interest to be paid by certain corporations.
14 SENATOR PATERSON: Lay the bill
15 aside.
16 ACTING PRESIDENT KUHL: Lay the
17 bill aside.
18 THE SECRETARY: Calendar Number
19 51, by Senator Trunzo, Senate Bill 3653-A,
20 Retirement and Social Security Law, in relation
21 to permitting pensioners who enter into a
22 marriage.
23 ACTING PRESIDENT KUHL: Secretary
426
1 will read the last section.
2 THE SECRETARY: Section 5. This
3 act shall take effect immediately.
4 ACTING PRESIDENT KUHL: Call the
5 roll.
6 (The Secretary called the roll. )
7 THE SECRETARY: Ayes 44.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 52, by Senator Trunzo, Senate Print 5779.
12 ACTING PRESIDENT KUHL: Lay the
13 bill aside.
14 SENATOR TRUNZO: Lay aside for
15 the day.
16 ACTING PRESIDENT KUHL: Lay the
17 bill aside for the day at the request of the
18 sponsor.
19 THE SECRETARY: Calendar Number
20 53, by Senator Skelos, Senate Print 1741, an act
21 to amend the Social Service Law, in relation to
22 access to certain conviction records.
23 ACTING PRESIDENT KUHL: Secretary
427
1 will read the last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect on the 120th day.
4 ACTING PRESIDENT KUHL: Call the
5 roll.
6 (The Secretary called the roll. )
7 THE SECRETARY: Ayes 44.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 67, by Senator Skelos, Senate Print 394, an act
12 to amend the Vehicle and Traffic Law, in
13 relation to increasing the period of time during
14 which driver's licenses are suspended for repeat
15 DWI offenses.
16 ACTING PRESIDENT KUHL: Secretary
17 will read the last section.
18 THE SECRETARY: Section 2. This
19 act shall take effect on the first day of
20 November.
21 ACTING PRESIDENT KUHL: Call the
22 roll.
23 (The Secretary called the roll. )
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1 THE SECRETARY: Ayes 44.
2 ACTING PRESIDENT KUHL: The bill
3 is passed.
4 THE SECRETARY: Calendar Number
5 69, by Senator Velella, Senate Print Number
6 1745, an act to amend the Vehicle and Traffic
7 Law, and the Criminal Procedure Law, in relation
8 to authorizing the discovery of blood samples.
9 ACTING PRESIDENT KUHL: Secretary
10 will read the last section.
11 THE SECRETARY: Section 5. This
12 act shall take effect on the first day of
13 November.
14 ACTING PRESIDENT KUHL: Call the
15 roll.
16 (The Secretary called the roll. )
17 THE SECRETARY: Ayes 45.
18 ACTING PRESIDENT KUHL: The bill
19 is passed.
20 THE SECRETARY: Calendar Number
21 80, by Senator Saland, Senate Print Number 688,
22 an act to amend the County Law, in relation to
23 enhanced telephone system surcharge.
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1 ACTING PRESIDENT KUHL: Secretary
2 will read the last section.
3 THE SECRETARY: Section 2. This
4 act shall take effect immediately.
5 ACTING PRESIDENT KUHL: Call the
6 roll.
7 (The Secretary called the roll. )
8 THE SECRETARY: Ayes 45.
9 ACTING PRESIDENT KUHL: The bill
10 is passed.
11 THE SECRETARY: Calendar Number
12 82, by Senator Tully, Senate Print Number 4514,
13 an act to amend Chapter 972 of the Laws of 1962,
14 relating to the Shelter Rock Public Library.
15 ACTING PRESIDENT KUHL: Read the
16 last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll. )
22 THE SECRETARY: Ayes 45.
23 ACTING PRESIDENT KUHL: The bill
430
1 is passed.
2 THE SECRETARY: Calendar Number
3 83, by Senator LaValle, Senate Print 5372, an
4 act to amend Chapter 311 of the Laws of 1920,
5 relating to the assessment and collection of
6 taxes in Suffolk County.
7 ACTING PRESIDENT KUHL: Secretary
8 will read the last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT KUHL: Call the
12 roll.
13 (The Secretary called the roll. )
14 THE SECRETARY: Ayes 45.
15 ACTING PRESIDENT KUHL: The
16 bill's passed.
17 THE SECRETARY: Calendar Number
18 84, by Senator Larkin, Senate Print Number 5803,
19 an act to amend Chapter 708 of the Laws of
20 1992.
21 SENATOR SKELOS: Lay the bill
22 aside.
23 SENATOR LARKIN: For the day.
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1 ACTING PRESIDENT KUHL: Lay the
2 bill aside for the day at the request of the
3 sponsor.
4 Senator Skelos, that completes
5 the non-controversial calendar, sir.
6 SENATOR SKELOS: Mr. President,
7 at this time, if we could take up the
8 controversial calendar.
9 ACTING PRESIDENT KUHL: Secretary
10 will read the controversial calendar.
11 THE SECRETARY: Calendar Number
12 13, by Senator Kuhl, Senate Print Number 514-A,
13 an act to amend the Agriculture and Markets Law,
14 in relation to the duties of the Commissioner of
15 Agriculture and Markets.
16 ACTING PRESIDENT MARCELLINO:
17 Senator Kuhl, an explanation has been asked
18 for.
19 SENATOR KUHL: Yes, Mr.
20 President.
21 Yes, Mr. President. This is a
22 bill that's not unfamiliar with this house.
23 It's a bill that quite simply allows and
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1 actually directs that the Commissioner of
2 Agriculture and Markets undertake a complete
3 review of all regulations that are currently in
4 existence as they might relate to a detrimental
5 impact regarding to the carrying on of an
6 agricultural industry in the state of New York.
7 ACTING PRESIDENT MARCELLINO:
8 Senator Paterson.
9 SENATOR PATERSON: Mr. President,
10 if Senator Kuhl would yield for a question?
11 SENATOR KUHL: Be happy to yield,
12 be happy to.
13 ACTING PRESIDENT MARCELLINO:
14 Senator Kuhl yields.
15 SENATOR PATERSON: Senator Kuhl,
16 I don't know anyone who plans to vote against
17 this bill but after coming down, you shouldn't
18 go back without a chance at least to express
19 yourself on this bill; and so, therefore, what
20 I'd like to ask, Mr. President, is in view of
21 the changes that the Governor has made in the
22 Department of Environmental Conservation, do you
23 feel that this bill still has -- has merit since
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1 this process is really being done anyway to
2 actually codify this into law since Agriculture
3 and Markets will now, the Commissioner will now
4 make that review? Do you think that that will
5 be done in a more fair way than you might have
6 thought in the past?
7 SENATOR KUHL: Senator Paterson,
8 I'm as pleased as anybody is, I think, in the
9 agricultural industry that there is an internal
10 review being conducted at the present time by
11 the new Commissioner of Agriculture and
12 Markets. I'm also ecstatic about the approach
13 that is being taken by the new Commissioner of
14 the Department of Environmental Conservation as
15 to the regulations that have been promulgated
16 within that department, particularly as they
17 might relate to some instances that might be
18 detrimental to agriculture, and when I decided
19 to bring this bill forward, I had to ask myself
20 the very question that you did, and that was, is
21 it necessary to continue this on in regard -
22 taking into regard what is actually going on
23 with the administration, and my answer was, to
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1 myself and to my staff people, because we talked
2 about this in quite some detail, and that was
3 yes, we think it is.
4 We think it's important for the
5 state to establish a policy recognizing that, as
6 Senator Pataki, taking him at his words, will
7 only serve two terms in the mansion which will
8 only take him through, I think, about 19... or
9 excuse me, the year 2002, and that there might
10 be somebody who might at that time enter the
11 Governor's Mansion who might not be as cognizant
12 of the importance of agriculture in the state as
13 is currently recognized by the current Governor.
14 So we thought it was absolutely
15 imperative that we establish a state outlook
16 that regulations can, in fact, be tremendously
17 detrimental to an industry and to actually
18 probably eliminate them, and that it was
19 important to bring this policy matter to this
20 Legislature so that that could be established on
21 a permanent basis. So while I'm encouraged
22 about what is going on with the current
23 administration, I'm not so sure that in the year
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1 2002 or thereafter, that a subsequent adminis
2 tration will look as fondly on agriculture as
3 the current Governor does.
4 SENATOR PATERSON: Thank you very
5 much, Senator.
6 Mr. President, that is a well
7 reasoned answer, and also if Senator Kuhl is
8 thinking about what's going to happen in 2003, I
9 guess, based on what's happening here in 1996,
10 he demonstrates seven years of foresight, and so
11 I'm amply convinced and would like to assure
12 Senator Kuhl that in the year 2003 that I would
13 be as cognizant as the previous Governor was.
14 ACTING PRESIDENT MARCELLINO:
15 Senator Leichter, why do you rise?
16 SENATOR LEICHTER: Mr. President,
17 if Senator Kuhl would be so good as to yield.
18 ACTING PRESIDENT MARCELLINO:
19 Senator Kuhl, would you be so good to yield to
20 Senator Leichter?
21 SENATOR KUHL: Yes.
22 ACTING PRESIDENT MARCELLINO:
23 Senator yields.
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1 SENATOR LEICHTER: Senator Kuhl,
2 I am sad to say I don't have the same perception
3 and understanding as my colleague, Senator
4 Paterson, has. As I understand it, you felt it
5 was important to tell the Commissioner of Agri
6 culture and the Pataki administration to make
7 this review so that he takes such action in
8 regard to what you consider or what he would
9 consider onerous regulations affecting agricul
10 ture and that these would be changed so that, in
11 the year 2001 when Governor Pataki leaves office
12 at the end of that year, assuming that he stands
13 for reelection or the voters decide that he
14 ought to be re-elected, that we would not have
15 these onerous regulations on the books.
16 Did I correctly understand your
17 reasoning?
18 SENATOR KUHL: Senator, I -- I
19 don't really think it's necessary to tell the
20 current Commissioner that he needs to review the
21 regulations. In my discussions with him,
22 speaking with Commissioner Davidson at our first
23 Agriculture Committee meeting this year, we
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1 talked about what the Department was doing
2 relative to the elimination of regulations that
3 might be disadvantageous and detrimental to the
4 actual industry, and he related to the Committee
5 and he related to me and in a number of other
6 conversations, that they are undertaking
7 internally a review of all those regulations and
8 they are, in fact, eliminating some of them.
9 Let me give you a for instance,
10 O.K.?
11 Up until -- I'm not sure what the
12 status of it is right now, but -- because I know
13 it's undergoing change, and it's in the process
14 of being eliminated. But let's take it back to
15 last year. Last year in the early part of the
16 year, it was necessary for every small farm
17 winery in the state of New York to not only be
18 licensed by the State Liquor Authority but also
19 to be licensed -- I should say to file a
20 certificate and get a permit from the Department
21 of Agriculture and Markets.
22 One of the things that came to
23 the forefront was that here we had a six-page
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1 application that had to be submitted to the
2 Department of Agriculture and Markets. There
3 was a permit that was issued. It cost each
4 winery, I believe it was $35, and there were
5 roughly, and there are roughly a hundred small
6 farm wineries, wineries totally in the state,
7 little bit more than that, so what we saw was
8 that there was revenue being generated anywhere
9 from 3- to 4,000, and the internal review of
10 this particular regulation and the cost of that
11 not only to the individual farm winery who had
12 to file that, but administratively to actually
13 review the application, to file it, to actually
14 issue the permit and send it out, it was costing
15 the Department 5- to $6,000 to actually process
16 it.
17 So we had a situation where there
18 was a regulation that was yielding information
19 that was already being submitted to the State
20 Liquor Authority and there was a permit being
21 processed for no reasonable reason that was
22 costing the people time and money at the local
23 level. That is, that whole possibility, that
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1 whole situation is now being eliminated.
2 Now, that is just one instance of
3 how the current Commissioner is undertaking a
4 total review of what is out there dealing with
5 the agriculture, the Department of Agriculture
6 and Markets.
7 Now, there is another review but
8 from a different aspect that's being taken on by
9 other Commissioners. This particular bill
10 directs that the Commissioner of Agriculture and
11 Markets look at all the other reviews, all other
12 regulations as they relate to other departments
13 and are being promulgated, and that there be a
14 review and, you know, and perhaps an elimination
15 of those.
16 What I'm saying to you is, and
17 what I said to Senator Paterson was or is that I
18 know that this is ongoing right now, and I have
19 every faith in this administration that they
20 will make the burden that is currently being
21 borne by our farmers considerably less so that
22 their chance of profitability and success is
23 going to be greater, but I'm not sure that
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1 that's going to continue ad infinitum into the
2 future, and why I think it's important for us to
3 establish that policy now and to create the
4 system so that it will go forward.
5 As you know, and to some degree I
6 think some people find this objectionable, I
7 don't particularly, but the Governor has by
8 executive order set up a new system by which new
9 rules and regulations are promulgated and
10 there's a criteria that they have for that.
11 What this does, I think, is to set up a system
12 that will ensure ad infinitum, those years
13 after, long after you and I have since left this
14 chamber and can't be the watchdogs in the
15 positive aspects of this industry, that we'll
16 have a system in place that we can assure our
17 people out there that only those things that are
18 necessary and right and that are positively
19 aimed at the long-term adoption and development
20 of their industry actually are occurring.
21 So I wouldn't say that this says
22 to the Commissioner that you have to do this.
23 This simply sets up a system that allows him to
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1 do it. They're already doing it, but again, it
2 ensures that we will into the future.
3 SENATOR LEICHTER: Mr. -- Madam
4 President, I thank my good friend for his full
5 some and germane answer, but Senator, if you'd
6 be good enough to yield.
7 SENATOR KUHL: I continue to
8 yield to the Senator.
9 SENATOR LEICHTER: Senator, in
10 spite of your saying all this faith you have in
11 Commissioner Davidson, and he was a -- a trusted
12 colleague of yours, I believe.
13 SENATOR KUHL: And yours. He
14 served in the Assembly for five years.
15 SENATOR LEICHTER: And absolutely
16 mine. But I'm a little concerned about, you
17 know, how trustworthy you are of him because
18 you're the one who's putting forth a bill here
19 which is requiring him to do things that I think
20 he should do anyhow. Now, either you have faith
21 in him or you don't have faith in him.
22 If he has, let me ask you this,
23 Senator: Does the Commissioner now have the
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1 power to do everything that's provided in this
2 bill?
3 SENATOR KUHL: I'm not exactly
4 sure it does, Senator, and I just can't. I'd
5 have to -- it would take me some time to pull
6 out the differences for you, but I think it sets
7 forth a format with interaction with some of the
8 other Commissioners that would give him some
9 powers that he doesn't necessarily have.
10 SENATOR LEICHTER: Senator, if
11 you'd -
12 SENATOR KUHL: Now, the other
13 thing that I was going to mention to you is, you
14 know, this is -- and you may not have been in
15 your chair when we first brought this up and
16 when Senator Paterson and I started on this
17 discussion, but I indicated to him when I was
18 asked to give a brief explanation of the bill, I
19 indicated to him that this is not the first time
20 that this bill is before this house. This is
21 the first time that this bill has been before
22 this house when Commissioner Davidson has been
23 Commissioner. As you may remember, there were
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1 some other Commissioners who, when we passed
2 this bill, that were of the same political
3 affiliation as you are that were appointed under
4 a previous Governor. They did not care and did
5 not participate into the undertaking of the same
6 kind of review that this Commissioner is
7 undertaking, so what I'm saying to you again and
8 what I said to Senator Paterson, I'm delighted
9 with what this current administration is doing
10 relative to the review of regulations and in
11 particular as they may be detrimental to the
12 agricultural industry.
13 I've been trying for the nine -
14 this is the tenth year that I've been chairman
15 of the Senate Agriculture Committee, to get that
16 review done and it was never done by the
17 previous administration during the nine years
18 that I was that chairman. So I am a little bit
19 skeptical that, if we don't put something like
20 this before and put it into statute, that
21 should, during -- after the time that Governor
22 Pataki decides to not run as he said he wouldn't
23 after two terms, that there might be some other
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1 Commissioner, be he Republican or be she
2 Republican or Democrat, that might not have the
3 same familiarity with the detrimental aspects of
4 rules and regulations as they relate to the
5 agricultural industry.
6 So I want to put something there
7 that says this is something we should consider
8 not just today or not -- maybe we should not
9 consider just because it's being done today. I
10 think it's important to us to establish long
11 term state policy because that's what our job
12 is, I believe, and we should do it as it relates
13 to this industry.
14 SENATOR LEICHTER: Madam
15 President, if Senator Kuhl would be good enough
16 to continue to yield.
17 SENATOR KUHL: I continue to
18 yield.
19 SENATOR LEICHTER: Senator, I'm
20 getting more and more nervous about what I see,
21 frankly, as seeming -- some seeming lack of
22 trust that you have in this administration
23 because, you know, while the words are very
445
1 good, the bill is something different and I can
2 understand if you, coming from your political
3 persuasion, didn't have faith in the Democratic
4 administration.
5 Now you've got a Republican
6 administration. You have got your good friend,
7 you tell us, your good friend as Commissioner of
8 Agriculture. The reason you seek to give is
9 that you're really looking to the year 2003 but
10 your bill requires that all of this be done and
11 that a report should be forwarded to the
12 Secretary of State by July 1st, 1998.
13 Is it that you think that
14 Governor Pataki is not going to serve out his
15 full first term?
16 SENATOR KUHL: No, actually,
17 Senator, it's because I know that the Governor
18 is doing such great and wonderful things that I
19 think he ought to file this report to tell
20 everybody what he's doing. That's why -- that's
21 one of the reasons why we're passing this bill.
22 THE PRESIDENT: Senator
23 Leichter.
446
1 SENATOR LEICHTER: If Senator
2 Kuhl would be good enough to continue to yield.
3 SENATOR KUHL: I'd be happy to
4 yield.
5 SENATOR LEICHTER: Yeah, and I
6 take it your conclusion is that without your
7 prodding the Commissioner and the administra
8 tion saying, You better do this, that they're
9 not going to do their job as you think it should
10 be done.
11 THE PRESIDENT: Senator Kuhl.
12 SENATOR KUHL: Senator, I have
13 seen and known, as you have, I have known for
14 two years now Governor Pataki. I served with
15 him when he was in the Assembly, and I've always
16 noted that he probably -- he was probably one of
17 those more conservative individuals who was not
18 quick to pat himself on the back about all the
19 good things that he's done, and I think it's
20 just one of those things that, you know, this is
21 positive information that the agriculture
22 community ought to know about, you ought to know
23 about, the people in this chamber ought to know
447
1 about, and it's one of those things that I'm
2 sure if he sets the precedent the right way,
3 that the successor administration will probably
4 follow suit and they'll do the right thing too.
5 THE PRESIDENT: Senator
6 Leichter.
7 SENATOR LEICHTER: Madam
8 President, I thank my good friend for his
9 persuasive answer, almost persuasive answer, but
10 frankly I'm a little -- I'm a little surprised
11 and maybe, and it certainly happens to me, maybe
12 it's happening to Senator Kuhl, you just sort of
13 go by reflection.
14 Well, you had this bill in for
15 nine years and suddenly we have to remind him,
16 Well, wait a second, these are your guys now
17 running the show. Why do you have to tell them
18 what they have to do? Aren't they doing their
19 job?
20 I was against this bill in the
21 past because I felt the Commissioner of
22 Agriculture ought to know how to do his or her,
23 or if it's a she, she ought to know how to do
448
1 the job. I had faith in the previous
2 Commissioners. Some of them maybe didn't do
3 everything we wanted. Well, if they didn't do
4 the job, they shouldn't hold the job, but I
5 don't think it's the role and function of this
6 Legislature to nitpick Commissioners and tell
7 them, Be at your desk at 9:00 a.m., issue this
8 report, issue that report, and particularly -
9 frankly, I didn't know Assemblyman Davidson very
10 well, but I'm sure he was a competent person.
11 I'm sure he's doing a good job. I trust him. I
12 don't think that I, as a legislator or that we
13 as a Legislature, have to tell him, Do this, do
14 this, do that, and for that reason, I've got
15 more faith obviously in this respect at least
16 with Commissioner Davidson and this
17 administration that I don't find it necessary
18 for us to pass this bill.
19 So I'm going to vote in the
20 negative, as I have in the past.
21 THE PRESIDENT: Senator Dollinger.
22 SENATOR DOLLINGER: Madam
23 President, will the sponsor yield to just a
449
1 couple of questions?
2 THE PRESIDENT: Senator Kuhl.
3 SENATOR KUHL: I'd be happy to
4 yield to Senator Dollinger.
5 SENATOR DOLLINGER: Thank you,
6 Senator.
7 I just want to follow up on one
8 of the points that Senator Leichter made. Is it
9 my understanding that the current Article
10 25-(aa) of the Agriculture and Markets Law
11 requires all state agencies to review all their
12 regulations to determine whether they serve the
13 industry that you're talking about today, the
14 very important agricultural industry in this
15 state?
16 THE PRESIDENT: Senator Kuhl.
17 SENATOR KUHL: You're asking,
18 Senator, if in fact current law requires a
19 review of all rules and regulations as it
20 relates to their impact on agriculture?
21 SENATOR DOLLINGER: Yes.
22 SENATOR KUHL: I don't believe
23 that -- that's correct, Senator.
450
1 SENATOR DOLLINGER: Well, again
2 through you, Madam President, if the Senator
3 would continue to yield. The bill recites that
4 Article 25(aa) of the Markets -- Agriculture and
5 Markets Law provides that it shall be the policy
6 of all state agencies to encourage the
7 maintenance of viable farming in agricultural
8 districts and to modify their administrative
9 regulations and procedures to this end.
10 Isn't that exactly what this bill
11 requires them to do? Aren't we telling them to
12 do it twice?
13 SENATOR KUHL: I don't believe
14 so, Senator.
15 SENATOR DOLLINGER: Well, perhaps
16 for the record -
17 THE PRESIDENT: Senator
18 Dollinger.
19 SENATOR KUHL: You're talking -
20 are you're saying Article 25 requires that?
21 Where are you reading from in the proposed bill
22 that says they're required to review all
23 proposed rules and regulations now? I don't see
451
1 that in the bill, and I'm not familiar with that
2 aspect. If that were the case, I wouldn't be
3 presenting the bill.
4 SENATOR DOLLINGR: Well, perhaps
5 maybe I've got the wrong document in front of
6 me. I'm looking at the actual bill itself,
7 Number 13 on the calendar, lines 11 through 13,
8 15, doesn't it say Section 25 of the Agriculture
9 and Markets Law provides it shall be the policy
10 of all state agencies?
11 SENATOR KUHL: Right, the
12 maintenance of viable farming. Doesn't say
13 anything -- and this is just under a section
14 which just talks about legislative finding which
15 is the purview of the actual sections of the law
16 that we're adding to the current existing
17 statute, but what we're trying to do is
18 establish that there is policy out there right
19 now that says we're supposed to try to encourage
20 agriculture in the state, but there's nothing in
21 the statute that I'm aware of, Senator, that
22 requires a total review of all rules and
23 regulations as they relate to agriculture and
452
1 how they they may be related to some other
2 agency that may promulgate them.
3 THE PRESIDENT: Senator
4 Dollinger.
5 SENATOR DOLLINGER: Through you,
6 Madam President, if Senator Kuhl will continue
7 to yield?
8 SENATOR KUHL: Be happy to yield.
9 SENATOR DOLLINGER: Article 25
10 (aa) says "***instructs agencies to modify their
11 regulations and procedures to this end; that is,
12 to the end of encouraging viable farming
13 consistent with the protection of public health
14 and safety." Isn't that the same kind of
15 balancing that you want to require under this
16 act? Aren't we asking them to do the same thing
17 twice?
18 THE PRESIDENT: Senator Kuhl.
19 SENATOR KUHL: That's not true,
20 Senator. If you look at the other areas of the
21 statute, let me see if I can find the
22 appropriate section for you. Yes, up on page 2,
23 it's lines 7, 8 and 9, you'll see that the new
453
1 section that we add here relates to just more
2 than public health and safety, O.K. We're now
3 talking about rules and regulations that are
4 being promulgated in departments like the
5 Department of Environmental Conservation,
6 Department of Health, Department of Labor and
7 the Department of Transportation.
8 So we're not just talking about
9 the areas of public health and safety, we're
10 talking about the overview and the complete
11 carrying on of the conduct of an agricultural
12 employment situation in the state and how any
13 regulations in those various departments may
14 impact negatively.
15 Now, there again, you're -
16 you're kind of inferring something that's there,
17 but it's not there specifically and that's what
18 this bill does specifically is add, to direct
19 this Commissioner to review those regulations
20 and to make a filing with the Secretary of State
21 and to -- and then try to process through
22 eliminating those regulations that may be
23 detrimental to the industry.
454
1 That we have never done. That,
2 and following up with our conversation with
3 Senator Leichter, that is being done to some
4 degree, but there is not a procedure that
5 there's a filing with the Secretary of State and
6 reviewing specifically each one of those
7 departments.
8 That, as far as I know, there
9 is -- there are two processes going on right now
10 with the current administration. One is that
11 there's an internal review by each department of
12 their own departmental regulations, and then
13 there's an overview being done by Bob King as a
14 person whom you know, from your area, the
15 Director of the Bureau of Regulatory Affairs is
16 his title, and that is being done but I think
17 that to some degree that's being done as a
18 result of some sort of an initiation by people
19 from the outside, people like myself or somebody
20 else who maybe find some -- some concern, and
21 it's not just a total overview, reading statutes
22 or regulations just for the sake of reading
23 them, so what I'm saying and what this does is
455
1 it specifies particular areas that are done and
2 that include other agencies and, as far as I
3 know, that's not being done and that's where I
4 indicated to Senator Leichter that I thought
5 this was a little bit something different than
6 is being done at the present time. It's
7 something that needed to be dealt with on a
8 long-term basis.
9 SENATOR DOLLINGER: Again through
10 you, Madam President, if the sponsor will
11 continue to yield.
12 THE PRESIDENT: Senator
13 Dollinger.
14 SENATOR KUHL: Be happy to
15 continue to yield.
16 SENATOR DOLLINGER: Are you
17 implying, Senator, that the current standard
18 under Article 25 (aa) is providing that viable
19 farming is consistent with the requirement of
20 public health and safety? Does this bill
21 eliminate the requirement that it consider
22 public health and safety in reviewing these
23 regulations?
456
1 SENATOR KUHL: No, it ampli... it
2 augments that, I should say, amplifies the
3 approach that we're now looking at in other
4 areas, Senator. We're not eliminating that
5 public health and safety under the current
6 legislation applies.
7 SENATOR DOLLINGER: All right. So
8 what we're doing is requiring all state agencies
9 to look at whether or not their regulations
10 affect the viability of farming in the state,
11 the importance of the agricultural industry?
12 SENATOR KUHL: No, no, not
13 exactly. We're directing that the Commissioner
14 of Agriculture do that as it relates to other
15 agencies and their potential impact on his
16 industry which he's charged to have this
17 oversight over, and then he -- the process is to
18 engage them if he finds a negative kind of
19 implication, O.K.? That's when they get pulled
20 in.
21 We're not directing each one of
22 those departments to review for agricultural
23 purposes, no.
457
1 SENATOR DOLLINGER: I'm -
2 THE PRESIDENT: Senator
3 Dollinger.
4 SENATOR DOLLINGER: On the bill.
5 I have voted for this in the
6 past. I think I'll continue to vote for it
7 although, frankly, it seems to me we're
8 restating perhaps the same instructions we've
9 previously given to the Commissioner, and to all
10 state agencies to continue to protect our vital
11 farming and agricultural industry and at the
12 same time to promote public health and safety.
13 I also am concerned because I
14 guess everybody, once you get into the
15 regulatory reform movement, I guess everybody
16 gets in the act, but it seems to me that poor
17 Mr. King, who is from my district, who's the
18 czar of regulatory reform, is cut out of this -
19 this process, and I have a feeling that his
20 position is going to end up redundant because
21 all these commissioners are going to be doing
22 all the regulatory work, and he'll have nothing
23 to do, which means he might be one of those non
458
1 essential people that, in a good regulatory
2 environment, we'd just stop paying him and say,
3 We don't need it because the Commissioner can do
4 it. I'd hate to think that someone from my
5 district, from Monroe County, would end up
6 unemployed as a consequence of this move, and
7 I'm concerned about jobs and job employment and
8 certainly, Mr. King who has been a forceful
9 advocate for regulatory reform, why put him out
10 of business? Why not let him do it? Instead,
11 we're going to have the Commissioners do it.
12 I just see a certain redundancy
13 here. I just hate to see someone lose their
14 job, but I'll vote in favor of it.
15 THE PRESIDENT: If everyone who
16 wished to be heard on this bill has been heard,
17 would the Secretary please read the last
18 section.
19 THE SECRETARY: Section 3. This
20 act shall take effect immediately.
21 THE PRESIDENT: Call the roll,
22 please.
23 (The Secretary called the roll. )
459
1 THE PRESIDENT: Senator Leichter
2 is raising his hand for negative. Yes.
3 THE SECRETARY: Ayes 50, nays
4 one, Senator Leichter recorded in the negative.
5 THE PRESIDENT: O.K. That's -
6 the bill is passed.
7 Senator Farley.
8 SENATOR JOHNSON: Madam
9 President. You want to introduce that?
10 SENATOR FARLEY: Can I do my
11 motion?
12 SENATOR JOHNSON: Yeah. Madam
13 President, we'll have one motion made and then
14 we're going to return to reports of standing
15 committees.
16 THE PRESIDENT: Senator Farley.
17 SENATOR FARLEY: Thank you, Madam
18 President.
19 On page 4, I offer the following
20 amendments to Calendar Number 4, Senate Print
21 5436, and I ask that this bill which is mine
22 retain its place on the Third Reading Calendar.
23 THE PRESIDENT: Amendments
460
1 received.
2 Senator Johnson.
3 SENATOR JOHNSON: May we return
4 to reports of standing committees. I believe
5 there is a report of the Finance Committee at
6 the desk.
7 THE PRESIDENT: The Secretary
8 will read.
9 THE SECRETARY: Senator Stafford,
10 from the Committee on Finance, offers up the
11 following bill directly for third reading:
12 Senate Print 5817, by Senator
13 Trunzo, an act to amend the Civil Service Law,
14 State Finance Law, in relation to compensation
15 benefits and other terms and conditions of
16 employment.
17 THE PRESIDENT: All bills,
18 without objection -- all bills will go directly
19 to third reading.
20 Secretary will read.
21 SENATOR JOHNSON: Madam
22 President, may we now at this time take up
23 Calendar Number 85.
461
1 THE PRESIDENT: The Secretary
2 will read.
3 THE SECRETARY: Senator Trunzo
4 moves to discharge from the Committee on Civil
5 Service and Pensions Assembly Bill Number 8520
6 and substitute it for the identical Calendar
7 Bill Number 85.
8 THE PRESIDENT: Substitution
9 ordered.
10 THE SECRETARY: Calendar Number
11 85, by member of the Assembly Vitaliano,
12 Assembly Print 8520, an act to amend the Civil
13 Service Law and the State Finance Law, in
14 relation to compensation, benefits and other
15 terms and conditions of employment.
16 SENATOR JOHNSON: Is there a
17 message of appropriation at the desk?
18 THE PRESIDENT: Yes, there is.
19 SENATOR JOHNSON: Madam
20 President, I move to accept the message of
21 appropriation.
22 THE PRESIDENT: All those in
23 favor of accepting the message of appropriation
462
1 say aye.
2 (Response of "Aye.")
3 Opposed nay.
4 (There was no response. )
5 The message is accepted. Read
6 the last section, please.
7 THE SECRETARY: Section 2. This
8 act shall take effect immediately.
9 THE PRESIDENT: Call the roll.
10 (The Secretary called the roll. )
11 THE SECRETARY: Ayes 54.
12 THE PRESIDENT: The bill is
13 passed.
14 Senator Leichter.
15 SENATOR LEICHTER: Yeah, can I
16 just -- no, there was a reference, Madam
17 President, I think you made to a message of
18 appropriation. Was that a message of necessity?
19 THE PRESIDENT: Appropriation.
20 SENATOR LEICHTER: Is that the
21 same thing? Has that changed its name?
22 THE PRESIDENT: No.
23 SENATOR LEICHTER: I mean, Madam
463
1 President, I just asked learned counsel who are
2 here, I must say I've never heard message of
3 appropriation and, as I look at the type it
4 seems to be the old -- same old message of
5 necessity. If we change -- if we changed the
6 name, certainly it wasn't done by the
7 Constitution which provides for this.
8 SENATOR STAFFORD: I think a
9 very, very good question.
10 THE PRESIDENT: Senator
11 Stafford.
12 SENATOR STAFFORD: My counsel has
13 provided a very good explanation. I think that
14 all of us can see where we are here.
15 The budget has not passed yet
16 and, therefore, when you pass a bill that
17 includes an appropriation, you have to have the
18 message of appropriation.
19 THE PRESIDENT: Thank you,
20 Senator Stafford.
21 SENATOR STAFFORD: Thank you.
22 THE PRESIDENT: Senator Johnson.
23 SENATOR JOHNSON: Read the last
464
1 section, please.
2 THE PRESIDENT: Oh, the bill is
3 passed.
4 SENATOR JOHNSON: Senator -
5 THE PRESIDENT: Would you like to
6 return to the controversial calendar?
7 SENATOR JOHNSON: Yes, Madam
8 President. Please call up Calendar Number 35,
9 Bill Number 4009-B.
10 THE PRESIDENT: The Secretary
11 will read.
12 THE SECRETARY: Calendar Number
13 35, by Senator Saland, Senate Bill 4009-B, an
14 act to amend the Tax Law, the Labor Law, the
15 General Municipal Law, the State Finance Law,
16 the Executive Law, relating to the rate of
17 interest to be paid by certain public
18 corporations.
19 SENATOR PATERSON: Explanation.
20 THE PRESIDENT: There is a local
21 fiscal impact notice at the desk.
22 Senator Saland. Senator Saland.
23 SENATOR SALAND: Thank you, Madam
465
1 President.
2 Madam President, this is the
3 Omnibus Mandate Relief Act. As the name would
4 imply, it's an endeavor to do away with unfunded
5 mandates, an endeavor to in effect give more
6 than lip service to the term of local/state
7 partnerships.
8 The bill deals not only with some
9 40 mandates currently on the books but attempts
10 to deal prospectively with imposition of
11 subsequent mandates.
12 There are six major components of
13 this bill. It would reduce local fiscal
14 burdens. It would permit localities greater
15 flexibility, reduce the burden of state
16 regulations, eliminate unnecessary state
17 reporting and approval requirements, reform
18 municipal liability and encourage fiscal
19 consolidation and cooperation.
20 The sum total of the savings to
21 local governments that are anticipated by
22 enactment of this bill would be approximately
23 $1.5 billion. Not only would that apply to
466
1 local municipalities. It would apply to local
2 school districts as well.
3 Prospectively, what the bill does
4 is, it says that if there is a proposal that is
5 enacted at the state level, if that proposal
6 would result in a cost of $10 million to any
7 municipality -- $10,000, excuse me, to any
8 municipality, 10,000 or more, the state must
9 provide the funds. If it would result in the
10 aggregate of an expenditure of $1 million or
11 more being required by all the affected
12 municipalities, municipalities of that same
13 class or school districts, the state again must
14 fund the cost.
15 We, in this house, have passed
16 this measure or a similar measure previously.
17 We have the overwhelming support of various
18 municipal organizations, NYSAC, the New York
19 State Association of Towns, the New York
20 Conference of Mayors.
21 The bill certainly is timely and
22 it's particularly timely in two respects: Number
23 one, there have been occasions in which this
467
1 bill has come out late in the session and has
2 met with criticism that, in fact, it's coming
3 out too late to have any meaningful negotiations
4 with the second floor and with the Assembly.
5 Suffice it to say that the
6 Governor has emphasized on more than one
7 occasion, Governor Pataki, the importance to him
8 of mandate relief, and he also has matched his
9 words with his deeds by passing the Executive
10 Law 20 which provides for our regulatory reform
11 intended to provide mandate relief.
12 On another level, in addition to
13 the actions by the Governor, certainly we're all
14 well aware of the difficult fiscal times not
15 only we are experiencing, but local government
16 and county government is experiencing as well,
17 and the provision of this type of relief
18 certainly will be well received at every level
19 of local government, whether it be urban,
20 suburban or rural.
21 Madam President, thank you.
22 THE PRESIDENT: Thank you,
23 Senator.
468
1 Senator Dollinger.
2 SENATOR DOLLINGER: Will Senator
3 Saland yield to a question?
4 THE PRESIDENT: Senator Saland?
5 SENATOR SALAND: Yes, Madam
6 President.
7 SENATOR DOLLINGER: Does this
8 apply to -- Senator, does this bill apply to any
9 state mandate, whether it comes from the
10 Executive Department or from this Legislature?
11 SENATOR SALAND: This bill would
12 apply to any proposal, regardless of whether it
13 was statutory, or I believe regulatory, and I'd
14 have to check the exact language that would
15 require an imposition on any individual unit of
16 a particular type of government, whether it's
17 school district, the town, the village or, as I
18 mentioned earlier in my earlier remarks, in the
19 aggregate a million dollars or more.
20 SENATOR DOLLINGER: Again through
21 you, Madam President, if Senator Saland would
22 yield to another question?
23 SENATOR SALAND: Certainly.
469
1 THE PRESIDENT: Senator Dollinger.
2 SENATOR DOLLINGER: Are you
3 familiar with the Governor's proposed budget
4 that he sent to this Legislature and what it
5 does to disabled children in the pre-K phase and
6 how it takes a program that is now a hundred
7 percent funded by the state and, instead,
8 transfers the cost of that funding to the local
9 school districts and how it changes the standard
10 for what constitutes a disabled child and,
11 therefore, transfers the cost of those programs
12 to local communities? Are you familiar with
13 that?
14 SENATOR SALAND: I am familiar
15 with that.
16 SENATOR DOLLINGER: O.K. If we
17 vote for this bill, can I assume that everybody
18 who votes for this bill will vote against any
19 budget that has that kind of unfunded mandate in
20 it which would saddle our school districts with
21 increased costs? And that's one question. I
22 guess my second question -
23 SENATOR SALAND: I would think
470
1 that that issue is far from resolved, and I
2 would think had the other house been cooperative
3 enough as we have labored in the vineyards with
4 this bill for some two or three -- on two or
5 three separate occasions, had they been willing
6 to join us in this effort, we certainly would
7 have rendered the question which you raise
8 academic or moot. We are dealing within the
9 framework that we currently have and certainly I
10 would think if we could get this bill to the
11 Governor's desk, I think that would certainly
12 impart a message that he would welcome as much
13 as he's already given certainly his efforts
14 through his executive orders to try and curb
15 unfunded mandates.
16 SENATOR DOLLINGER: Again through
17 you, Madam President, if Senator Saland will
18 yield to a question.
19 THE PRESIDENT: Senator Saland?
20 SENATOR SALAND: Yes, Madam
21 President.
22 SENATOR DOLLINGER: I'm just
23 intrigued by what you see as the Governor's
471
1 motivation. I mean he obviously sent us a
2 budget which creates unfunded mandates for
3 special education for disabled children, pre-K,
4 and yet he issues executive orders saying we're
5 not going to have unfunded mandates.
6 Perhaps you could enlighten me:
7 What's the Governor's position on unfunded
8 mandates since he has them in his budget but he
9 issues executive orders and at least proclaims
10 to be interested in ending unfunded mandates?
11 Why would he put that in the budget?
12 SENATOR SALAND: I think the
13 Governor certainly has been more than direct in
14 his comments on unfunded mandates. I certainly
15 think that the issue is far from a dead issue
16 vis-a-vis the expenditure that you're talking
17 about, and I suspect that the Governor, as this
18 legislation progresses certainly will lend
19 himself to supporting this legislation although
20 in all candor, I haven't spoken with him about
21 the particulars of this piece.
22 THE PRESIDENT: Senator
23 Dollinger.
472
1 SENATOR DOLLINGER: Madam
2 President, on the bill.
3 I appreciate the sponsor's candor
4 with respect to that program. It's certainly
5 one that I'm going to be looking at very
6 carefully in the context of the budget because I
7 don't want to shift a cost that's been borne by
8 the state and shift that to local communities
9 and still require that that education occur, and
10 I agree with Senator Saland, it probably is an
11 issue that we need to discuss further.
12 I know there may be strong
13 sentiments on the other side of the aisle
14 against shifting those kinds of costs, but it
15 strikes me as somewhat anomalous for a governor
16 to proclaim Executive Law change or, excuse me,
17 changes through executive orders to eliminate
18 unfunded mandates and to talk a great game about
19 unfunded mandates, but yet the budget that we
20 see in front of us could transfer, based on my
21 estimate, as much as a billion and a half
22 dollars of additional cost to local communities
23 which we're not going to have to pay for because
473
1 things that we've paid for in the past the
2 Governor has said we're not going to pay for
3 because we're going to take care of our budget
4 problems and give all of the rest of the fund
5 ing problems to local communities.
6 Now, I'm concerned because I hear
7 the Governor on the second floor saying that
8 this is something that they don't want to do,
9 but yet when the budget hits our desks, and it's
10 already hit our desks, there are enormous shifts
11 of costs from state finance to local community
12 finance and no relief from the mandates to do it
13 and I just -- I hear one thing, and I see
14 another and although I'm going to vote in favor
15 of this bill -- I've voted for it in the past -
16 I think if we could have a legitimate debate
17 about what the state ought to pay for and what
18 local communities ought to pay for and what's
19 the best way to raise taxes to pay for it, the
20 fairest and most equitable way to do it, we'd go
21 a long way in this state to solving our long
22 term fiscal problems.
23 So I've voted for this in the
474
1 past. I think it's something that has appeal
2 out there, but I think the underlying issue of
3 how we ought to pay for these things, how we
4 ought to tax to pay for them, is one we ought to
5 debate into the future so that we can have a
6 legitimate debate about how we can raise those
7 taxes and how to pay for tax programs that
8 benefit everybody.
9 THE PRESIDENT: Senator
10 Paterson.
11 SENATOR PATERSON: Thank you,
12 Madam President. If Senator Saland would yield
13 for a question.
14 THE PRESIDENT: Senator Saland?
15 SENATOR SALAND: Yes, Madam
16 President.
17 SENATOR PATERSON: Thank you,
18 Madam President.
19 Senator Saland, Senator Dollinger
20 just raised an issue about the unfunded mandates
21 and to follow up on that -- I'm not here -- to
22 follow up on that, I'd like to ask you, Senator
23 Saland, in Section 23 of the legislation, you
475
1 set forth that the Governor can, by executive
2 order, exercising his emergency powers, in a
3 sense exact an unfunded mandate, and I think you
4 also have some language in there that allows for
5 court order.
6 With respect to anything that is
7 agreed upon in a legislative process such as the
8 budget, have you not in this legislation given
9 the Governor, the executive branch, a new
10 authority that it did not have before based on
11 your distinction of it and your acceptance of
12 those mandates that are forced through executive
13 order?
14 SENATOR SALAND: May I request of
15 you that you point to the particular line or
16 lines that -
17 SENATOR PATERSON: It's in
18 Section 23.
19 SENATOR SALAND: I have section
20 23, but what lines?
21 SENATOR PATERSON: It says ***
22 the Governor, exercising executive order through
23 emergency powers.
476
1 SENATOR SALAND: You're talking
2 over on page 10?
3 SENATOR PATERSON: Yes.
4 SENATOR SALAND: I don't think
5 that there is any effort here to expand the
6 ability of any executive to indiscriminately or
7 capriciously impose additional mandates, and let
8 me address your -- your question and hopefully
9 simultaneously Senator Dollinger's concluding
10 remarks.
11 I think it's unfair to portray
12 Governor Pataki as somehow or other not being an
13 advocate of mandate relief. I think any view of
14 this particular budget that he's proposed, when
15 one looks at what the Governor is proposing to
16 do in areas of welfare reform, what the Governor
17 is proposing to do in areas of Medicaid reform,
18 he certainly is dealing with mandates and -
19 mandates which impose heavy burdens on our local
20 and county governments.
21 So I think it's certainly an
22 unfair characterization to somehow or other come
23 up with a number of some amount of dollars that
477
1 I believe Senator Dollinger had said something
2 in the area of a billion and a half dollars. I
3 don't think that that actually reflects what the
4 Governor has managed to do and has accomplished
5 here.
6 They're certainly -- we don't
7 have the ability, and I think you and I could
8 agree, to negate a requirement that's been
9 imposed by court order and that is the first
10 provision which is set forth within the
11 exemptions.
12 Secondly, there's provision where
13 in fact there is an emergency of some kind for
14 the Governor to enact through his emergency
15 powers. Now, those emergency powers may require
16 local law enforcement, in the case of the flood
17 perhaps, to close off state highways. That -
18 those emergency powers can include any number of
19 different types of things which would occur only
20 under those situations that were very much out
21 of the ordinary.
22 There are just not many
23 situations in which the Governor or any -- any
478
1 executive resorts to the imposition of emergency
2 powers.
3 THE PRESIDENT: Senator
4 Paterson.
5 SENATOR PATERSON: Thank you very
6 much, Madam President, and I want to thank
7 Senator Saland for that answer.
8 It was hard to interpret from
9 what Section 23 revealed and that's cleared up.
10 I would like to refer you to
11 Section 4, Senator Saland, which exempts the
12 OSHA requirements for volunteer firefighters,
13 and I would like to really aver that there is
14 certainly an understanding of why you might want
15 to do that as a lot of the local governments
16 can't afford the -- the effect of reaching the
17 standard that OSHA calls for, but at the same
18 time we do not think that it is in many respects
19 at the risk of the volunteer firefighter who may
20 not be prepared for the emergency, and then the
21 individual who is in the position of being
22 victimized not only by the fact that they're in
23 a fire but by the fact that people who they
479
1 think are skilled and trained to help them
2 actually don't have the skills, the training or
3 often the equipment that they might need.
4 SENATOR SALAND: Well -
5 THE PRESIDENT: Senator Saland.
6 SENATOR SALAND: Thank you, Madam
7 President.
8 Well, this particular section of
9 the bill really responds to one of the
10 priorities that many, if not most -- in fact, I
11 would say most local volunteer fire companies
12 would like to see enacted. Some number of years
13 ago, the Department of Labor enacted or perhaps
14 more appropriately, in effect, proclaimed that
15 volunteer firefighters were municipal employees
16 and, therefore, were required to be subject to
17 OSHA.
18 Now, volunteer firefighters, for
19 insurance purposes and really by reason of
20 compliance with our state's particular
21 requirements, do receive training. They are
22 people who are at risk. They are people who
23 understand risk. They are people who are
480
1 saying, We can't comply other than at great
2 expense and extraordinary difficulty with these
3 OSHA requirements, whether they're equipment
4 requirements, whether they're such things as
5 physicals or retaining records on-site.
6 Now, there are a number of
7 volunteer fire companies who, while they go
8 ahead and have the required physicicals, don't
9 have a full-time clerk or don't have somebody
10 on-site who would retain these records and
11 they're in violation by merely having them at a
12 physician's office, and if my memory serves me
13 correctly, when we debated this particular point
14 it was either last year or the year before,
15 Senator Cook pointed out to you because he has a
16 bill which is a free-standing bill somewhat
17 substantially like this bill, that he had run
18 into a number of difficulties within his
19 district within which he has a number of small
20 volunteer fire companies.
21 The firefighters, volunteer
22 firefighters, are not troubled in the main by
23 this provision. In fact, they are the ones who
481
1 want it.
2 THE PRESIDENT: Senator
3 Paterson.
4 SENATOR PATERSON: Thank you.
5 Thank you, Madam President.
6 Section 5 of this legislation
7 which calls for a relaxation of the standards of
8 asbestos removal on state buildings to
9 coordinate it with that of a number of other
10 facilities, the issue here, Senator Saland, is
11 that many of the old state facilities are
12 actually the ones that have been shown by
13 research to have high levels of asbestos so; to
14 relax these standards and, in a sense, not keep
15 the current standard that we have for asbestos
16 removal, in my opinion, would jeopardize workers
17 and jeopardize those members of the public that
18 frequent those buildings quite often.
19 Would you explain for us why you
20 have chosen to leave this section in the
21 legislation after last year?
22 SENATOR SALAND: Well, number
23 one, this particular section of the bill deals
482
1 only with the exterior of buildings. We're
2 talking about roofs, and what we're saying
3 within this bill, within this particular section
4 of the bill, is that the current standards which
5 are controlled by Department of Labor, are so
6 difficult and so costly, costing local
7 governments and school districts somewhere in
8 the area of $175 million, and I'm told by
9 representatives of roofing contractors that they
10 think the figure is closer to $400 million, that
11 what we could do is use the very same standard
12 that the private sector uses, the same standard
13 that they use when they do a major industrial
14 job, the same standard that I believe is the
15 prevalent standard in other states which is the
16 OSHA standard, the same standards that we were
17 talking about with regard to the fire section of
18 the bill. Certainly OSHA is not renowned for
19 being insensitive to regulatory enactments,
20 regulatory enforcement, and the private sector
21 certainly has not had any horror stories -- I'm
22 not aware of any stories of illnesses occurring
23 to people who are complying with the OSHA
483
1 requirements. I'm not aware of any tragedies of
2 any kind.
3 We're talking about really major
4 savings every level of government, every type of
5 government, whether it's municipal, whether it's
6 county, whether it's school district. This
7 would be, I'm sure, thoroughly embraced inas
8 much as the vast majority of that conserva
9 tively $175 million is coming directly from real
10 property taxes, certainly outside of the major
11 urban areas that's the case.
12 THE PRESIDENT: Senator
13 Paterson.
14 SENATOR PATERSON: How are you
15 holding up, Senator?
16 SENATOR SALAND: Very well. I
17 recall last time you told me there would be
18 about 250, so I'm assuming you're just warming
19 up?
20 SENATOR PATERSON: Yes, we're
21 just getting warmed up. You should feel like a
22 contestant on a quiz show, and this preparation
23 was not fixed in any way, and we move on to
484
1 Section 6.
2 This would allow for a variable
3 interest rate to be set by the Commissioner of
4 Taxation on awards that are won against a
5 municipality. My first question is, how does
6 the Commissioner arrive at what the interest
7 rate will be and, if you want to go on from
8 there, the second question would be why would we
9 allow for really what would be such a subjective
10 standard to be applied to a recovery that was
11 already won in court, and wouldn't that, in a
12 sense, constitutionally limit the recovery or,
13 in a sense, even put somewhat of a cap on the
14 recovery?
15 SENATOR SALAND: What this -
16 currently, the interest rate in the state of New
17 York on judgments is 9 percent. What this
18 section does is, it proposes to create a
19 floating rate, a variable rate, which I believe
20 has a minimum of 6 percent, a maximum of 9
21 percent, and the bill language, I believe,
22 refers to the current authority of the
23 Commissioner to fix this rate. I think he does
485
1 it by publication through the State Register,
2 and I'm not quite sure if I could even hazard a
3 guess as to what that mechanism is, but it makes
4 reference to the existing law. There is
5 something on the books by which the Commissioner
6 is governed.
7 I have not received any memos or
8 any expressions of concern that somehow or other
9 the Commissioner was delinquent in his
10 responsibility in fixing that rate.
11 SENATOR PATERSON: Madam
12 President, if Senator Saland would continue to
13 yield.
14 Therefore -
15 ACTING PRESIDENT MARCELLINO:
16 Senator Paterson, there's been a slight change.
17 SENATOR PATERSON: Sorry. You
18 look just like her from here.
19 Senator Saland, therefore, you're
20 not sure what the actual -- what the actual
21 mechanism is that's used to make the
22 determination?
23 SENATOR SALAND: What I'm telling
486
1 you, in all candor, is that we're merely hooking
2 into what the existing mechanism is. I could
3 not define that mechanism. There is an existing
4 mechanism.
5 SENATOR PATERSON: Mr. President,
6 if Senator Saland would continue to yield.
7 ACTING PRESIDENT MARCELLINO:
8 Senator, will you continue to yield?
9 SENATOR SALAND: Yes, Mr.
10 President.
11 ACTING PRESIDENT MARCELLINO: He
12 yields, sir.
13 SENATOR PATERSON: What disturbs
14 me then is, if a person wins a judgment at the
15 rate of 9 percent at the time that the judgment
16 is reached, how can the Commissioner, therefore,
17 reduce the rate and, therefore, reduce the
18 recovery? In other words, isn't that kind of
19 post hoc, ergo propter hoc meaning after the
20 fact, therefore, before the fact?
21 SENATOR SALAND: I would think
22 that that would be a strained interpretation of
23 the ability of the Commissioner. I don't think
487
1 we could, in an ex post facto fashion go back
2 and reduce that interest. If the judgment had
3 been docketed, then the determination of the
4 amount of interest to be paid would, in fact, be
5 whatever was the rate fixed at the time and, if
6 it was 9 percent, it would be 9 percent
7 notwithstanding the fact that it might be
8 reduced later. If it was 8 percent, it would be
9 8 percent, and similarly if it was 6 percent and
10 the rate was subsequently higher, the 6 percent
11 rate would be the controlling rate. It would
12 not apply to judgments, again, already
13 docketed. The rate that prevailed at the time
14 it was docketed would be the prevailing rate.
15 SENATOR PATERSON: That's very
16 good, Senator. I now understand that.
17 My problem is that it doesn't say
18 that in the bill. You're telling me that.
19 Would it not be a little more foresighted to
20 make that clear because that actually changes my
21 feeling about the whole thing? If you want to
22 adjust the rate variably over time, I understand
23 that, but what it appears from the legislation
488
1 and maybe I'm just misreading it, is that it
2 would allow for the Commissioner to adjust after
3 the fact and it does not indicate that this is a
4 standard that's being set, not something that
5 would apply to any previous jurisdictional
6 procedures that had actually taken place.
7 SENATOR SALAND: I'm a little
8 reluctant to respond. I'm not quite sure if
9 that was a question or a statement.
10 SENATOR PATERSON: Oh, it was a
11 question. The question is, don't you think this
12 needs to be made clearer by the writing of the
13 bill more than as of the interpretation that
14 you've given me which does make me understand
15 what you're trying to do a lot better? What I'm
16 saying is, I would never have come to that
17 conclusion having just read this.
18 SENATOR SALAND: Well, Senator
19 Paterson, what I will have my office do is take
20 a look at the controlling language which is in
21 the Tax Law and see if that sheds any light on
22 our dilemma. I'm comfortable with this language
23 and don't feel that it imposes any particularly
489
1 onerous burden and, in fact, I think what it
2 does is, again says to local government that -
3 well, county government or city government, that
4 they're not going to pay artificially high
5 interest rates at times when they truly would be
6 in excess of markets rates or prevailing rates.
7 SENATOR PATERSON: Thank you very
8 much, Senator. That would actually be very
9 helpful. It could be just me. I'm having
10 enough trouble trying to determine the gender of
11 the presiding officer. It could just be me, but
12 I'd like you to know that the Trial Lawyers
13 Association pointed that out in its memorandum,
14 they do not think it's set forth clearly. Maybe
15 this is something that we can work on later.
16 I would like to move to Section
17 32.
18 SENATOR SALAND: Pheeew! I
19 breathe a sigh of relief, Senator Paterson. I
20 was concerned we were going to do this a section
21 at a time. And this is not a challenge.
22 SENATOR PATERSON: We -- what I'm
23 going to do to expedite the process, I'm going
490
1 to link Section 32 to Section 36 and 37, Section
2 32 relating to the imposition of payment for
3 parole by those who are seeking it, and Section
4 36 and 37 has to do with medical services and
5 the like that non-indigent inmates would be
6 paying for. This is basically in the same
7 spirit, and so I thought I would link it just to
8 ask you the question again, how do we
9 objectively determine who can and cannot pay for
10 services when they are an inmate?
11 It's not as if, if you can't pay
12 for services and you're an inmate, we're going
13 to throw you out of the prison. It's more what
14 I think you're trying to accomplish is that
15 those individuals who can afford to pay for
16 those services should be paying for them and the
17 crime they've committed against society should
18 not absolve them of that responsibility, but the
19 situation at hand is that it's very hard to make
20 that determination since we are actually holding
21 the person because of the fact that they are
22 accused or have committed a crime or they're now
23 on parole, and we're asking them to pay for
491
1 services.
2 SENATOR SALAND: May -- again,
3 may I ask if you could conclude that with a
4 question. I may have missed it because I was
5 trying to read the sections as you were
6 talking.
7 SENATOR PATERSON: I'm very
8 sorry. The question is what is determining the
9 ability of an individual to pay for medical care
10 or other services that they would require while
11 incarcerated?
12 SENATOR SALAND: I believe those
13 elements, the factors to be considered are
14 enumerated as financial resources, assets and
15 expenses, health, age, current child support and
16 maintenance, court orders, outstanding court
17 orders, fines or restitution, current income
18 executions or income deduction orders and any
19 other factor which the court shall expressly
20 find to be just and proper.
21 SENATOR PATERSON: Well, Senator,
22 for instance, if I could put this question on
23 the table. You're not just saying that a person
492
1 can afford it. You're saying that if we
2 determine that they're non-indigent and I'm
3 saying that it's not a hard determination to
4 make to tell a person that you shouldn't be
5 indigent as opposed to telling them that they
6 are indigent, and what I'm saying is, I don't
7 understand how we make that determination or
8 couldn't that be a standard that would apply to
9 everybody who is incarcerated and needs medical
10 care or other services?
11 SENATOR SALAND: I think the
12 court, in the first instance, would determine
13 whether or not the person was possessed of
14 sufficient assets so as to be the subject of
15 this particular section. If, in fact, the
16 determination of indigency was made, then this
17 section would not apply.
18 SENATOR PATERSON: Well, you've
19 got some ability to earn, "such means" language
20 in here, and so it wouldn't necessarily be a
21 standard determined by the person's current
22 position. It sounds to me that it could be
23 determinative of the conclusion that this
493
1 individual may not now, but can in the future,
2 and therefore, theoretically would it not be
3 correct to -- to ask the person to pay and to
4 pay back after they have left the facility? And
5 I'm just saying, I just think it opens the door
6 in such a way that it's very hard to make that
7 determination. That's my point, and -
8 SENATOR SALAND: Well, I think
9 what we've endeavored to do with this language
10 is to provide, in effect, general standards and
11 certainly the -- the catch-all provision and any
12 other factor is one that's sufficiently general
13 to permit each case to turn on its own facts and
14 circumstances.
15 We obviously don't have the
16 ability to -- as legislators, to review each and
17 every one of these types of applications and
18 make the kinds of determinations that you would
19 defer to a court on, and I'm comfortable with
20 the language. It seems to me that it's well
21 within the realm of what courts do and what
22 courts should do.
23 SENATOR PATERSON: Thank you,
494
1 Senator Saland.
2 I want to move to Section 40
3 which relates to non-polluting landfills. In
4 this particular section, though the non
5 polluting landfill is called that because it has
6 not met the threshold of what would be
7 determined to be a polluter, the fact that it
8 can remain may be, in a sense, the catalyst for
9 an environmental standard that exceeds the
10 pollution threshold in the future, and so what I
11 would like to know is how do we make the
12 determination that a non-polluting landfill
13 today is not a hazard tomorrow if we're not
14 going to pay any more attention to it, as
15 Section 40 reveals in this legislation?
16 SENATOR SALAND: Well, among the
17 requirements that are imposed by this section
18 are that the site in which the -- the landfill
19 site would be equipped with monitoring wells
20 which are consistent with DEC regulations and
21 demonstrate that the landfill is not releasing
22 contaminants that exceed whatever would be
23 permissible under the Department's guidelines,
495
1 that it has only received solid waste, that it
2 no longer is receiving solid waste, that it is
3 not listed on DEC's registry of inactive
4 hazardous waste sites and has not received any
5 financial assistance to close, if at any time
6 the monitoring well indicates pollution levels
7 that threaten the surrounding community -- the
8 municipality -- and DEC, the Department of
9 Environmental Conservation, shall establish a
10 time frame within which that municipality would
11 have to close its landfill.
12 SENATOR PATERSON: Senator,
13 obviously, the landfill has been cited for clos
14 ure and that's exactly the point that I'm making
15 that it didn't really have the funds to close
16 the facility, but it is considered to be non
17 polluting, so what I'm saying is, at a point in
18 the future, if the site becomes a hazard, how is
19 DEC going to monitor this?
20 SENATOR SALAND: DEC would mon
21 itor it in the very same fashion that it cur
22 rently monitors. The well is being monitored.
23 There -- by definition, it has to be monitored
496
1 and if, in fact there are environmental
2 problems, there's a requirement that they be
3 remedied, and I would assume that that would
4 begin the process anew.
5 If, in fact, the condition is
6 such that it required immediate remediation,
7 then that particular municipality would, based
8 upon a determination by the Department of
9 Environmental Conservation -- Department of
10 Environmental Conservation, would have to
11 remediate.
12 If, in fact, in the opinion of
13 DEC, who is in charge of enforcement, that
14 particular landfill site did not constitute the
15 kind of threat that required closure, there
16 might be some type of mitigating action that the
17 town could take or the village or the city.
18 This is a particularly onerous
19 and burdensome requirement that has really
20 caused many communities in this state, partic
21 ularly smaller communities great financial dis
22 tress, burdened their taxpayers immeasurably.
23 We're not saying that there should not be
497
1 compliance. What we're saying is where, in
2 fact, we have non-polluting landfill sites that
3 are being monitored and there are no hazardous
4 wastes at the site, then we're going to permit
5 you, subject to continuing monitoring and the
6 commitment that you're going to remedy or
7 mitigate should, in fact, there be a problem,
8 not to have to go through with the closure.
9 SENATOR PATERSON: Therefore,
10 Senator, if you would yield for another
11 question, there's no change in the monitoring
12 procedure? In other words, after this
13 determination is made, it will still be
14 monitored the same way.
15 The only reason I ask this
16 question is because what you've just said seems
17 to make a lot of sense to me, but it almost
18 seems to be contradicted in Section 85 of the
19 legislation later on where you seem to be
20 diminishing the responsibility of local
21 governments.
22 SENATOR SALAND: Well, that's an
23 entirely different question. 85 deals with a
498
1 different issue.
2 SENATOR PATERSON: O.K. Then
3 leave that alone. My question is here that we
4 can really expect that there's no change in what
5 DEC's monitoring requirements are after they've
6 declared the land to be a non-polluter.
7 SENATOR SALAND: There will be
8 monitoring wells that are required on-site and
9 as long -- monitoring of wells that are required
10 on-site and as long as there is no polluting
11 condition and the well is being monitored, they
12 will, in effect, have the closure deferred.
13 They will not have to close the site. It may
14 well be at some point further down the road that
15 those monitors will indicate the presence of a
16 condition that requires, as I said earlier,
17 either mitigation or remediation.
18 85, Senator Paterson, is an
19 entirely different proposition.
20 SENATOR PATERSON: O.K. I
21 understand that. I just thought that it was the
22 spirit of it.
23 Senator Saland, you'll be happy
499
1 to know that I hold in my hand the envelope that
2 holds the last question.
3 SENATOR SALAND: Thank you, sir.
4 SENATOR PATERSON: Section 130 of
5 the legislation which allows for alternative
6 procedures to be used in adopting state regu
7 lations, here there is a great concern that
8 there is a time period in which the local
9 governments can come back and ask for clarifi
10 cation. When the time period expires apparently
11 from your legislation, the local government can
12 adopt some of their own alternative procedures.
13 If that's the case -
14 SENATOR SALAND: Senator
15 Paterson, I'm sorry. Did you say 130 or 131?
16 I'm just looking for the language as you're
17 speaking?
18 SENATOR PATERSON: It starts at
19 130; I think it goes into 131.
20 SENATOR SALAND: Thank you.
21 SENATOR PATERSON: I'll check
22 myself.
23 Senator Saland, the question I
500
1 asked you was about Section 131, but it starts
2 at 130.
3 SENATOR SALAND: I see.
4 SENATOR PATERSON: Relating to
5 the alternative procedures.
6 SENATOR JOHNSON: Senator
7 Paterson, could I interrupt you for a moment?
8 ACTING PRESIDENT MARCELLINO:
9 Senator Johnson.
10 SENATOR JOHNSON: Would you
11 please read the last section so Senator Gold can
12 vote?
13 ACTING PRESIDENT MARCELLINO: Read
14 the last section.
15 THE SECRETARY: Section 3. This
16 act shall take effect immediately.
17 SENATOR JOHNSON: Senator Gold,
18 how do you vote?
19 SENATOR GOLD: No.
20 SENATOR JOHNSON: All right.
21 Withdraw the roll call, proceed with the
22 debate.
23 ACTING PRESIDENT MARCELLINO:
501
1 Senator Paterson, please.
2 SENATOR PATERSON: Senator
3 Saland, Section 131 sets forth the logistics of
4 how this would be arrived at. Section 130 just
5 has the alternative procedures for implementing
6 what would be a state mandate, and my question
7 to you is, isn't this a way that the community
8 can avoid the implementation by throwing up a
9 lot of questions, hoping the state misses the
10 response time and then implementing their own
11 procedures that probably don't reach the spirit
12 of what the legislation was intended for in the
13 first place, or what the mandate calls for?
14 SENATOR SALAND: Well, Senator
15 Paterson, I do not believe it to be so. You may
16 recall in my opening remarks I said something to
17 the effect that what we wanted to do is truly
18 create a mechanism that -- that provided for a
19 local/state partnership.
20 (The Minority Leader's phone
21 rings.)
22 Bring home the milk and don't
23 forget to get a dozen eggs.
502
1 SENATOR PATERSON: Thank you,
2 Senator.
3 SENATOR SALAND: And what we've
4 -- what we're -- what we're attempting to do
5 here is basically provide -
6 (The Minority Leader's phone
7 rings.)
8 That was a question analogous to
9 "is the moon high".
10 Senator, the statement you made
11 in the beginning, I think does reflect that the
12 spirit of this legislation which I think is
13 designed to save local governments a lot of
14 money including a billion dollars, what I would
15 suggest is that it touches on so many different
16 issues that it makes it very difficult to
17 address them singularly since they affect so
18 many citizens in so many different ways. They
19 affect workers; they affect agencies. They
20 affect the relationship between state and local
21 governments, in spite of the fact that there are
22 really some rather innovative procedures here.
23 That's why I asked you about
503
1 Section 130 and Sections 130 and 131 rather,
2 because of the importance that we feel to the
3 information transferred through this entire
4 legislation. There are local governments that
5 often oppose state mandates and this, I think,
6 gives them an option.
7 I want to thank you for being as
8 willing to answer all these questions and as
9 gracious as you always are and, on the bill, Mr.
10 President.
11 ACTING PRESIDENT MARCELLINO:
12 Senator Paterson, on the bill.
13 SENATOR PATERSON: For the
14 reasons previously stated, we wanted to oppose
15 the bill, but would want to encourage Senator
16 Saland in the future that perhaps by bifurcating
17 the process and splitting these legislations
18 maybe even into the six areas that he defined in
19 his preamble, it might make it a little easier
20 for us to vote on it because many of the members
21 here like some of the innovative changes and
22 respect them, but there are some issues here
23 relating to the asbestos removal, relating to
504
1 the -- relating to the Occupational Safety and
2 Health Act as it applies to volunteer
3 firefighters, what seems to be a sort of
4 revolving tax rate for the recovery of
5 judgments, and also with respect to the
6 responsibility of those who are in the criminal
7 justice system to pay for some of their
8 incarceration.
9 For those and other reasons I'd
10 like to oppose this legislation. Thank you.
11 ACTING PRESIDENT MARCELLINO:
12 Senator Abate.
13 SENATOR ABATE: Yes. Would
14 Senator Saland yield to a couple questions?
15 SENATOR SALAND: Certainly,
16 Senator.
17 ACTING PRESIDENT MARCELLINO:
18 Senator Saland, do you yield? He yields,
19 Senator.
20 SENATOR ABATE: Senator, I'm sure
21 you're aware that this year probation -- aid to
22 probation has received about a $13 million cut
23 under the Governor's proposal, and I make the
505
1 assumption that this mandate relief for
2 probation is done in order to save the
3 localities and the probation departments some
4 money. Would not that be a fair assumption?
5 SENATOR SALAND: I'm sorry.
6 Would you repeat again?
7 SENATOR ABATE: Yes. Does the
8 mandate relief as envisioned under Section 32
9 which would require convicted felons to
10 reimburse the department for their probation
11 supervision, it would be a fair assumption that
12 this provision was put in place because there
13 was some recognition this would save the
14 localities some dollars and the probation
15 department could, in fact, collect from the
16 probationers; is that a fair assessment?
17 SENATOR SALAND: It's -- yeah,
18 it's an effort where resources are available to
19 permit the probation department, whether it be
20 the county or the City, to access -- the ability
21 to access those dollars.
22 SENATOR ABATE: O.K. Are you
23 aware that many of the probation departments
506
1 around the state do not support this provision
2 and, in fact, would like it to be optional, let
3 it be an optional determination made by the
4 locality? Are you aware of that?
5 SENATOR SALAND: I'm not aware of
6 that, but I -- I would be hard-pressed to figure
7 out why, where there are assets available, a
8 probation department would not wish to access
9 those dollars.
10 SENATOR ABATE: Is that a
11 question being posed? Can I answer the
12 question?
13 SENATOR SALAND: Oh, no, I just
14 pose it rhetorically; that's all.
15 SENATOR ABATE: Well, it's my
16 understanding, and maybe you can refute it, that
17 there are some probation departments who have
18 the majority of the people under their
19 supervision who are indigent and earn, even
20 though they know that it may be only a tiny
21 percentage, I mean a very tiny percentage of the
22 people under probation could they ever collect
23 money from, they would have to put in place an
507
1 entire administrative apparatus to get that
2 information in every pre-sentence investigation
3 report. They'd have to collect information.
4 They'd have to investigate those cases to give
5 the court information to show whether someone is
6 indigent or whether they're capable of paying.
7 So there are many departments have reached the
8 conclusion the cost of doing the analysis, doing
9 the investigation, would exceed any possibility
10 they would have of collecting any revenue from
11 these probationers.
12 SENATOR SALAND: I know, I
13 believe, in a former life, I won't say -- I
14 believe in a former life you were an assistant
15 district attorney?
16 SENATOR ABATE: Well, I was the
17 Commissioner of Probation.
18 SENATOR SALAND: Oh, Commissioner
19 of Probation.
20 SENATOR ABATE: But that could
21 happen, and also I've heard from the
22 Commissioner of Probation in New York City again
23 that they don't support this, and I've spoken to
508
1 probation departments around the state. Some
2 feel that they're only going to be able to
3 collect these fees from a very small portion of
4 that -- of the population they supervise and,
5 therefore, they believe they're going to lose
6 money again under this proposal.
7 SENATOR SALAND: It's -- I must
8 tell you it's inconceivable to me that a
9 probation department, in the course of doing its
10 pre-sentence determination -- and you certainly
11 would have more experience than I -- doesn't
12 include factors such as health, age, outstanding
13 child support maintenance orders, outstanding
14 court ordered fines, financial resources. That
15 -- I'm assuming that's pretty routine stuff,
16 some of which has been pre-screened already
17 because the defendant may well have made an
18 application to be -- to be either serviced by
19 assigned counsel or to be serviced by -
20 represented by a public defender's office or its
21 equivalent in the City -- I forget, Legal
22 Services?
23 SENATOR ABATE: DJA, Division -
509
1 SENATOR SALAND: I don't think
2 you're talking that large of a universe here, I
3 really don't.
4 SENATOR ABATE: Well, my under
5 standing is that those kinds of investigations
6 in depth are not being done and so there would
7 be a need to develop more resources in order to
8 carry out this function, and the fear of many
9 departments, particularly when now they're going
10 to be operating with less revenue, that they
11 will take needed critical resources away from
12 supervision functions and they're now
13 supervising tens of thousands of people on the
14 streets and need more monitoring, more
15 supervision.
16 It's a public safety issue, and
17 my concern, and I ask you if you share my
18 concern, if the Senator will yield to another
19 question?
20 ACTING PRESIDENT MARCELLINO:
21 Senator, do you continue to yield?
22 SENATOR ABATE: -- that these
23 probation departments are undergoing enormous
510
1 stress. They're being asked to receive even
2 less dollars from the state. The reimbursement
3 will be going from 32 percent, I believe, to 25
4 percent. They'll be receiving less state
5 dollars, to demand of them to take on an
6 additional function that will not necessarily
7 reap additional revenue, is that an appropriate
8 mandate for us to pass in this Legislature?
9 SENATOR SALAND: Well, I'm
10 assuming then -
11 SENATOR ABATE: If, in fact, this
12 is the case.
13 SENATOR SALAND: I'm assuming
14 then that, if that amount of money, the $13.4
15 million, is restored that you would support this
16 provision and that the probation departments,
17 the various and sundry probation departments to
18 which you make reference, would also support
19 this provision, so I -- I would think we could
20 render that academic by merely being successful
21 in our efforts to restore those dollars.
22 SENATOR ABATE: Well, I agree
23 with you. I think there is a need to restore
511
1 that $13 million, but I also believe that we
2 should be looking to the probation department to
3 see if, in fact -- and I don't mean just New
4 York City, I mean statewide -- to see if, in
5 fact, this is mandate relief.
6 Many of the people under their
7 supervision who are misdemeanants, particularly
8 Nassau County and Suffolk County, they believe
9 they can collect these revenues if it were
10 misdemeanants, people who are charged with the
11 traffic infractions. I don't know whether this
12 will reap any positive impact on many of the
13 departments.
14 Having no knowledge otherwise -
15 on the bill. There are -
16 ACTING PRESIDENT MARCELLINO:
17 Senator Abate, on the bill.
18 SENATOR ABATE: There are a
19 number of provisions I could support and a
20 number I can't. These are ones that I have not
21 heard any information that it will help
22 probation statewide. In fact, I believe it will
23 hurt them. It's not a mandate relief and, for
512
1 this and other reasons, I can not support the
2 bill.
3 Thank you.
4 ACTING PRESIDENT MARCELLINO:
5 Read the last section.
6 THE SECRETARY: Section 133.
7 This act shall take effect immediately.
8 ACTING PRESIDENT MARCELLINO:
9 Call the roll.
10 (The Secretary called the roll. )
11 SENATOR LEICHTER: Mr.
12 President.
13 ACTING PRESIDENT MARCELLINO:
14 Senator Leichter.
15 SENATOR LEICHTER: Mr. President,
16 may I explain my vote, please.
17 ACTING PRESIDENT MARCELLINO:
18 Senator Leichter to explain his vote.
19 SENATOR LEICHTER: Yeah, Mr.
20 President. I was going to debate this bill but
21 I think it was well covered by Senator Paterson,
22 Senator Abate, Senator Dollinger and others.
23 Somehow, when I see this bill
513
1 being presented, Senator Saland, what comes to
2 mind is some guy at a bar putting down his tenth
3 shot of whiskey and saying, Nobody ought to
4 drink. I don't mean that as a literal metaphor,
5 but this Majority when -- since I've been here
6 has imposed mandate after mandate after
7 mandate.
8 I wonder how many mandates we're
9 going to see this year. I know you're always
10 imposing mandates on the city of New York and
11 telling us how to run our police department, and
12 so on. Then you come up with this bill, and "I
13 am so pure, I'm never going to take another
14 drink. I am against all mandates."
15 But this bill goes beyond -- I
16 looked through it, and I find all of Senator
17 Bruno's old bills for the last five years or ten
18 years, like the landfill and the other bills. I
19 mean this is sort of like "the Senator Joe Bruno
20 grab bag."
21 But all kidding aside, I'm always
22 suspicious and uneasy when we put up a bill
23 which says, "I'm not going to do it any more."
514
1 I don't think we should do it if it's wrong.
2 But I have enough faith in the membership here,
3 and there may be times when we will impose a
4 mandate. There certainly are too many mandates
5 that we have imposed and maybe we ought to keep
6 in mind that, when we impose a mandate, at the
7 same time we ought to provide the money, but to
8 have a blanket bill in this fashion besides all
9 the other things you throw in, on prisoners,
10 major change in the way we handle tort cases
11 involving municipalities, the firefighters now
12 denied OSHA protection, it's too much.
13 I mean I'd have sympathy with
14 Senator Bruno for all these bills that haven't
15 become law over the years. Maybe he can do them
16 one at a time. He's got a friendly governor
17 now, but to make this sort of a grab bag, I
18 think, is a real mistake.
19 I vote in the negative.
20 ACTING PRESIDENT MARCELLINO:
21 Announce the results, please.
22 THE SECRETARY: Those recorded in
23 the negative on Calendar Number 35 are Senators
515
1 Abate, Connor, Gold, Kruger, Leichter,
2 Markowitz, Montgomery, Nanula, Onorato,
3 Paterson, Smith and Waldon. Ayes 42, nays 12.
4 ACTING PRESIDENT MARCELLINO: The
5 bill is passed.
6 SENATOR JOHNSON: Mr. President,
7 is there any housekeeping at the desk?
8 ACTING PRESIDENT MARCELLINO:
9 There is a substitution at the desk, sir.
10 Secretary will read.
11 THE SECRETARY: Senator Farley
12 moves to discharge from the Committee on Banks
13 Assembly Print 8229-C and substitute it for the
14 identical Calendar Number 4.
15 ACTING PRESIDENT MARCELLINO:
16 Substitution is ordered.
17 Senator Johnson.
18 SENATOR JOHNSON: Mr. President,
19 may we stand in place for a moment. We may have
20 to call up a previous bill for a vote.
21 ACTING PRESIDENT MARCELLINO:
22 Senate will stand at ease for one minute.
23 SENATOR JOHNSON: Mr. President,
516
1 Senator Mendez has called down and indicated her
2 interest in being here to cast a negative vote
3 on this bill. I would say if she doesn't show
4 up in a minute, Senator, then we will proceed
5 with announcing the vote and she can take the
6 floor tomorrow and inform everyone that, had she
7 been here, she would have been in the negative
8 on this bill.
9 (Short pause)
10 Mr. President, I'd say announce
11 the results.
12 ACTING PRESIDENT MARCELLINO: We
13 announced the results earlier. The bill
14 passed.
15 SENATOR JOHNSON: O.K. Then, Mr.
16 President, there being no further business, I
17 move we adjourn to Tuesday, January 23rd at 3:00
18 p.m., sharp.
19 ACTING PRESIDENT MARCELLINO:
20 Without objection, the Senate stands adjourned
21 until Tuesday, January 23rd at 3:00 p.m.
22 (Whereupon at 4:40 p.m., the
23 Senate adjourned.)