Regular Session - March 8, 1999
789
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 8, 1999
3:07 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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THE PRESIDENT: The Senate will
come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: With us today to
say the invocation is Reverend David Miracle,
Rector, All Saints Episcopal Church in
Brooklyn.
REVEREND MIRACLE: Heavenly
Father, we give You thanks and praise for the
blessings of this day. We thank You, Lord,
for providing so well for our needs and for
giving us another day to love and serve You.
As we serve You, Lord, let us
always keep in mind the people that we have
accepted to serve. Let us seek Your wisdom,
Oh Lord, in decision-making, and not be
governed by the whims of society or by the
almighty dollar, but base our decision on Your
truth and word, which You have made known to
us in the scriptures. And we ask, Lord, for
forgiveness when we do not obey Your word.
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And, Lord, I ask for Your special
blessing on the Governor of this state and for
each person who shares in the tremendous
responsibility of making and carrying out the
necessary policies to govern it.
And, Lord God Almighty, in whose
name the founders of this country won liberty
for themselves and for us and lit the torch of
freedom for nations then unborn, grant that we
and all the people of this land may have grace
to maintain these liberties in righteousness
and peace.
In Jesus's name, amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Friday, March 5th, the Senate met pursuant to
adjournment. The Journal of Thursday,
March 4th, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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SENATOR SKELOS: Madam
President -
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: -- may I
interrupt for a minute?
Have we received the resolution
from the Assembly establishing a time for the
election of members of the Board of Regents?
THE PRESIDENT: Yes, Senator, we
have.
SENATOR SKELOS: Thank you.
THE PRESIDENT: Messages from the
Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Libous.
SENATOR LIBOUS: Thank you, Madam
President. I'd like to star one of my bills,
Calendar Number -- or, actually, two of them,
204 and 223. And -
THE PRESIDENT: So ordered,
Senator.
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SENATOR LIBOUS: Thank you, Madam
President.
I have one other. On page 16 I
offer the following amendments to Calendar
Number 224, Senate Print Number 2101, and ask
that said bill retain its place on the Third
Reading Calendar.
THE PRESIDENT: So received. And
the bill will retain its place on the Third
Reading Calendar.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
On behalf of Senator Skelos, I wish
to -- on page 9, I offer the following
amendments to Calendar 118, Senate Print 11.
I ask that that bill retain its place on Third
Reading Calendar.
THE PRESIDENT: Amendment
received. And the bill will retain its place
on the Third Reading Calendar.
SENATOR FARLEY: On behalf of
Senator Johnson, I move that the following
bill be discharged from its respective
committee and be recommitted with instructions
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to strike the enacting clause. That's Senate
Print 1611.
THE PRESIDENT: So ordered.
Senator Skelos.
SENATOR SKELOS: I believe
there's a privilege resolution at the desk by
Senator Holland. I ask that the title be read
and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Holland, Legislative Resolution Number 574,
commemorating the 87th anniversary of the
founding of the Girl Scouts of the USA, on
March 12, 1999.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: If we could take
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up the noncontroversial calendar, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
114, by Senator Volker, Senate Print 1455, an
act to amend the Private Housing Finance Law,
in relation to a limited profit housing
company.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
139, by Senator Padavan, Senate Print 1888, an
act to amend the Agricultural and Markets Law,
in relation to spectators at exhibitions of
animal fighting.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
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act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 45; nays 1.
Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
148, by Senator Lack, Senate Print 1143, an
act to amend the Labor Law.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
151, by Senator Wright, Senate Print 1881, an
act to amend the Workers' Compensation, Law in
relation to granting civil immunity.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 47.
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THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
154, by Senator LaValle, Senate Print 1067, an
act to amend the Education Law -
SENATOR ONORATO: Lay it aside.
THE SECRETARY: -- and the Public
Officers Law.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
155, by Senator LaValle, Senate Print 1068, an
act to amend the Education Law, in relation to
the Board of Regents.
SENATOR ONORATO: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
156, by Senator Balboni, Senate Print 1737, an
act to amend the Education Law, in relation to
authorizing memorial awards.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect April 1st, the year of
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2000.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 47.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
177, by Senator Marcellino, Senate Print 1325,
an act to amend the Penal Law, in relation to
including the theft of dogs and cats.
SENATOR PATERSON: Lay that
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
201, by Senator Velella, Senate Print 1734, an
act to amend the General City Law and the
Penal Law in relation to creating the crimes
of urinating or defecating in public.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: If we could take
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up the controversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
148, by Senator Lack, Senate Print 1143, an
act to amend the Labor Law.
SENATOR PATERSON: Lay it aside
temporarily.
THE PRESIDENT: The bill will be
laid aside.
THE SECRETARY: Calendar Number
154, by Senator LaValle, Senate Print 1067, an
act to amend the Education Law and the Public
Officers Law in relation to the Board of
Regents.
SENATOR PATERSON: May we have an
explanation, please.
THE PRESIDENT: An explanation
has been requested.
SENATOR SKELOS: Lay it aside
temporarily.
THE SECRETARY: Calendar Number
155, by Senator LaValle, Senate Print 1068, an
act to amend the Education Law, in relation to
the Board of Regents.
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SENATOR DUANE: Explanation.
SENATOR SKELOS: Lay it aside
temporarily.
THE PRESIDENT: Laid aside
temporarily, as with the prior bill.
THE SECRETARY: Calendar Number
177, by Senator Marcellino, Senate Print 1325,
an act to amend the Penal Law, in relation to
including the theft of dogs and cats.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 48.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
201, by Senator Velella, Senate Print 1734, an
act to amend the General City Law and the
Penal Law.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Velella,
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an explanation has been requested.
SENATOR VELELLA: Madam
President -- yes, Madam President.
Those who asked for the explanation
are certainly familiar with this bill that we
have passed a number of times. I might point
out, the last time 13 members of the
Democratic side of the aisle voted against it,
and three of them didn't return. So be
careful what you do.
(Laughter.)
SENATOR VELELLA: But this does
allow -- this does allow for a city or
municipal government -- not only the City of
New York, but statewide -- to pass legislation
in their own local legislative body which
would give them the opportunity to address the
qualify-of-life issues that are so important
to our cities.
The first part of a three-part bill
would be that they would be able to have
commercial zones. And this originally came to
me as a result of the actions of our good
former mayor, Mayor Dinkins.
If you could remember back to the
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Democratic Convention when Mayor Dinkins said,
"We're going to clean up the streets and get
these vagrants that are laying in the
storeways and on the sidewalks off the
streets, and we're going to let the Democratic
delegates see a good, clean New York City."
And I said that was an excellent
idea that Mayor Dinkins had, so why not have
commercial zones in the City of New York where
we can put signs up that this is a commercial
zone and stop people from laying in doorways,
laying on the streets during the hours that
are posted, after they've been warned by a
police officer to move out of the way, so that
we could have a city, as Mayor Dinkins
envisioned it, free of these people sleeping
in our doorways. And this bill would provide
for that.
The second part is just a little
bit of a health problem, I guess, within the
city. It provides for criminalizing, in a
sense, the public urination or defecation on
the streets of the city of New York. That I
think speaks for itself. I can't see anybody
who would be against that. I don't think
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anybody in this chamber would dare to say that
they are supportive of it. And certainly we
have debated that issue a number of times.
The last part of the bill, the
third part, would allow cities to establish a
law against aggressive begging. And that is
where someone approaches you and puts you in
fear of imminent bodily harm that you may be
injured if you don't turn over some property
to them.
Those are the three parts of the
bill. I think most of you are familiar with
them. And I urge its passage.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes. Thank
you, Madam President.
I'm not going to ask the sponsor
any questions, because I've asked the
questions beforehand. And the main question
that I have asked in the past is whether or
not there are laws that we -- that already
exist on the books that would allow for the
arrest of someone who was participating in
this kind of behavior and that the law
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enforcement felt that it was warranted that
they be arrested.
And in the past -- I have my notes
here from the last time that we debated this
bill, and I'm assuming that that is still the
case -- Senator Velella has said unequivocally
yes, that we do have that on the books. And
that -- so that the localities already have
that capacity. So that's -- that's -- that
question, I think, is not necessary to be
asked.
What I want to say is that as I
have said in the past, Senator Velella, Madam
President, this bill is simply a bill which
would criminalize homelessness.
If you are a person who has -- a
person of means, you have a job, you have a
home to go to, you are comfortable. When you
need to go to the bathroom, you have a
restroom in your place of work, a restroom, a
bathroom in your home. There is no need for
you to go and defecate or urinate on the
streets. There is no need for you to go and
beg for nickels and pennies and quarters at
the -- at the corner -- the corner, in the
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streets and what have you.
But if you are a person who is
destitute -- and as we have a number of people
who are working every day who have no place to
live in the city of New York. They live in
shelters. There are working people, thousands
of working people who live in shelters because
they have no home. They have been priced out
of their homes and so forth and so on.
So that means that with this
legislation, the meanness of it is that we're
going to criminalize the people who find
themselves in that position.
So Senator Velella knows how I feel
about this. I talk about it all the time. We
live in the same city. I live in the same
city as Senator Velella. And he knows that I
certainly don't want someone doing that in my
front yard or in -- where I live. I
understand you don't want that to happen in
your yard or your neighborhood. I really
deplore seeing people sleeping -- in front of
City Hall, people are sleeping under their
blankets or in their box -- in their boxes
that they've made into houses and what have
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you.
So yes, we have a problem. It's an
issue that we have to deal with. But I don't
think that the solution is criminalizing them.
So I urge my colleagues to vote
against this, because it really sends a
message that I don't think we want to send to
poor, homeless people in our state, that we
don't care anything about them, the only thing
that we -- only answer we have to their
problem is to put them in jail.
Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 8. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Results. The
Secretary will read.
THE SECRETARY: Those recorded in
the negative on Calendar Number 201 are
Senators Breslin, Connor, Duane, Montgomery,
Paterson, Santiago, Schneiderman, and Waldon.
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Ayes 45; nays 8.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
148, by Senator Lack, Senate Print 1143, an
act to amend the Labor Law, in relation to
direct sellers.
SENATOR SKELOS: Lay it aside for
the day, please.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
154, by Senator LaValle, Senate Print 1067, an
act to amend the Education Law and the Public
Officers Law, in relation to the Board of
Regents.
THE PRESIDENT: Senator LaValle.
SENATOR LAVALLE: Yes. Madam
President, Senator Paterson has asked for an
explanation. And I'd like to just talk about
1067 and 1068 at the same time.
These are two bills that we have
considered in this house on certainly last
year and the year before. And the two bills
are basically to reform a system that just is
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not working in how we select members of the
Board of Regents, the time in the legislative
session that we consider members of the Board
of Regents, and what the members of the Board
of Regents do and how they interact with the
Legislature and the stakeholders in the
various areas that they are involved in.
And just to remind everyone that
the Board of Regents -- who are volunteers, do
not receive a salary -- have an enormous
number of areas on their plate. They deal
with elementary and secondary education,
higher education, the libraries, the museums,
the professions, and the archives. And they
are the policymakers for this broad range of
areas.
We in this legislation talk about
how we elect members to the Board of Regents.
Right now we have codified here in the
Legislature, by agreement, that the four
chairs get together and hold meetings or
hearings with members of the respective
committees to ask questions of the prospective
members that we are considering.
And I would tell you that probably
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no one in this body can tell me how any of the
three candidates who we will be considering
tomorrow for the Board of Regents got into the
process. You would be hard-pressed.
I am calling for a similar process
to how we elect members to our Court of
Appeals. And that is by a bipartisan,
blue-ribbon commission that would screen
various applicants and then send to the
Legislature, for hearings, the members that
the blue-ribbon commission would send to us.
We would consider those members on
the third Tuesday in May. That's the same day
that school districts vote on a school budget
and elect school board members. Hopefully -
and I say hopefully -- far away from the
budget process that we are currently involved
in.
Members of the Board of Regents
should be treated very, very seriously because
they play very important roles -- very
important roles -- in our government. And yet
we are considering it at one of the busiest
times of the year, the time of the year when
we do the budget.
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That may have been great years ago
when the Legislature was a part-time
Legislature, dealt with the state budget and
actually passed the state budget -- many
times, before the April 1st deadline -- and
then before they left town would consider
electing members of the Board of Regents.
Today our budget is a much busier
process, a much more intense process than it
was years ago. And so members of the Board of
Regents deserve a point in time in the
legislative process that is less hurried,
where we can give those members that would
like to be Regents -- an important position -
greater scrutiny, greater attention that it -
that it deserves.
The process of how you elect a
chancellor and a vice chancellor needs to be
revised and reviewed. I think we -
regardless of who the Governor is, or what
party, the Governor is disconnected totally
from the process of the Board of Regents and
the state Education Department.
One wonders why -- whether the
governor is Mario Cuomo, Hugh Carey, or George
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Pataki -- when we look at the budget for the
state Education Department, why that budget,
Governor's budget, looks kind of lean for the
department. Because it's the only way an
executive can get some attention from the
bureaucracy, some attention from the members
of the Board of Regents.
And so we would involve the
Governor in the selection of the chancellor
and the vice chancellor, with the advice and
consent of the Senate.
While those members of the Board of
Regents, because our debates and our
discussions here on this floor -- in more
recent years, I believe the members have been
of a higher quality, have been better
motivated, have been more focused on their
position. However, I still feel a disconnect
between members of the Board of Regents and
those who serve, those 14 members who serve -
12 members who serve in a judicial district.
And so we say that there needs to
be some sort of a hearing process, some sort
of members, stakeholder members, that come
together with that Regent to discuss issues
812
pertaining to elementary and secondary
education, higher education, the libraries,
the professions, the archives, and the
museums. Locally. And so we make for such a
recommendation.
We also ask that the chancellor and
the commissioner come before the Legislature
to discuss their education plan, to have an
intense debate and discussion over what is
taking place.
And lastly, Madam President, and
the last bill really -- the second bill really
brings together in a concurrent way the terms
of the members of the Board of Regents and
those that are elected to the local boards of
education, where their term begins on
July 1st. So that there is a compatibility in
what is happening above in the system, with
the election of the Board of Regents, down to
the local school board members.
I believe that there is a
disconnect between what goes on in the
selection process of the Board of Regents,
what they do -- and what they do is very
important to the future of our children, those
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that are going on, higher education
institutions, those who practice in the 38
professions, and the libraries and the museums
and the archives.
And so I think reform, reform is
the operative way. Whether every detail in my
bills is perfect, I think not. But I would
hope that at some juncture the Assembly would
join us in an effort to reform a system that
really doesn't work very well. And if we are
to remain the Empire State in the areas that I
have repeatedly mentioned, then I think we
need to have a process of inclusion rather
than exclusion.
This house and this body should be
involved in the process. We are irrelevant to
what goes on tomorrow. We are not needed to
form a quorum. We are not needed to elect, by
a majority vote, members to the Board of
Regents.
And so this process really says the
joint session should not take place. Like
every other endeavor that we have, whether
it's the budget or a piece of legislation, the
bicameral process, by a majority vote in each
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house, should be the process in which we
select members to the Board of Regents.
And I think that is very critical
and the underpinning through all of the
reforms that I try to make in how we select
members of the Board of Regents and what they
do.
Thank you, Madam President.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: Yes. With due
deference to the -- my distinguished
colleague, the chairman of the Higher
Education Committee of the New York State
Senate, I would have to vote against these
measures.
And I would have to vote against
them because I also believe, Senator LaValle,
that reform is necessary. But not through
this process. Not a day before the electoral
process takes place for the selection of the
members of the New York State Board of
Regents.
And we've gone through this for the
last three or four years since I've been here,
and it ends up with no reform whatsoever.
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Now, I know and you know -- and in
fact, it was the one governor that you did not
mention -- that there was a governor 30 years
ago -- whose name I will not mention, but
whose edifices adorn the Capitol -- who would
send one day the name or names of members of
the Board of Regents to this chamber, and
within 24 to 48 hours, those names would be
approved.
Now, this process, as imperfect as
it is, is an improvement over the last
process, of that governor. I would still like
to see, as you would, Senator LaValle, an
improvement of this process. But the only way
that can take place is if the majorities as
well as the minorities of both chambers of
this Legislature sit down together -- not 24
hours before a selection process, but months
before that process -- and iron out
differences and create a vehicle by -- a means
by which we can truly reform the process that
exists today. Which is imperfect but better
than what existed 30 years ago.
And I am looking forward to a real
reform involving the majorities of both houses
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of the state Legislature in the near future.
Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 12. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 154 are
Senators Breslin, Connor, Duane, Kruger,
Lachman, Markowitz, Montgomery, Nanula,
Onorato, Oppenheimer, Paterson, Schneiderman,
Smith, Stachowski, Stavisky, and Waldon.
SENATOR LACHMAN: Two more.
THE SECRETARY: Also Senators
Rosado, Hevesi, Seabrook, and Santiago.
Ayes 34; nays 20.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
155, by Senator LaValle, Senate Print 1068, an
act to amend the Education Law, in relation to
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the Board of Regents.
THE PRESIDENT: Read the last
section -- Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator LaValle would come back,
would he yield for a question or two?
THE PRESIDENT: Senator LaValle,
do you yield for a question?
SENATOR LAVALLE: Yes.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: I'm sorry,
Senator. I know that you explained basically
the text of both bills in your original
statement.
But if we could just turn to the
bill at hand. By changing the date, you don't
have any provision at all for what should
happen, where the bill right now is clear. It
says that there should be a concurrent
resolution of both houses if the two houses
can't agree by concurrent resolutions.
Your remedy is not to -- is to have
the legislative mandate be silent on the
issue. And I was wondering if you thought
818
that was -- how that could be a better way,
since now there's actually no explanation, so
that our different houses of government can
fight over it presumably for another few
years.
SENATOR LAVALLE: Senator, this
bill was filed, I think, with some input from
your side on the fact that there was
recognition that there was a better time to
have this discussion than in the middle of the
budget process.
And so this, as other measures that
I've talked with Senator Lachman -- Senator
Lachman and I were sponsors on one bill
together. We pulled out various pieces to try
and make -- go from making big changes, major
reforms, to smaller things that seem to make
some sense.
You know, as I have said, the most
important underpinning is to move away from
the unicameral session, to do it by concurrent
resolution. That's the period, end of story.
But I feel just as strongly that it's madness
to be -- to talk about selecting members of
the Board of Regents at this time.
819
I mean, if we took -- went around
this room and asked who are the three
candidates that people are going to be voting
on tomorrow, I think we would have very few
answers from the members, the 61 members in
this house. And that is not because of a lack
of interest; it's because the members are very
involved in the budget process. That's number
one on everyone's agenda, as it should be.
So what we're merely saying here is
that taking an imperfect process, we should at
least consider members who are very, very
important to the people of this -- of this
state, and at least do it at a more sober
time.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: I hope that
Senator LaValle is aware that we have the
deepest respect for the amount of work that he
did, and that we agree with a great deal of
it.
Speaking to the previous bill that
we just passed, if I might just for a moment,
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he has a lot of interesting reforms in
there -- open meetings, advisory committees,
what I think is a new view of how government
should interact with people, particularly in
the area of education, a process that is far
more inclusive.
And we are particularly impressed
with the organized and certainly specific way
that he's documented these changes. Our
objection to the last legislation was that we
just felt that regardless of who the governor
is, that to give the executive branch the
choice of picking the head of the Board of
Regents politicizes the process.
Now, in the current bill, we agree
completely the third Tuesday in May would be a
far more apt time. Unfortunately, too many of
our budgets have even passed that period of
time. But hoping that we can come to an
agreement on a budget and with our new
remedies that the Speaker and the Majority
Leader have brought in with the conference
committees, bringing us all together,
hopefully after the experience last year, our
budget process will be shorter.
821
And Senator LaValle is right, and
we should commend him. The third Tuesday in
May would be an apt time to pick the Regents'
chair.
And I'm certainly glad because I
know two of them, but I couldn't name all
three of tomorrow's candidates. So, Senator
LaValle, I want to go on record and say that
you were quite gracious with me, because you
could have asked me what their three actual
names were. And I think that further affirms
how correct you are.
But what I was pointing out -- and
this is leading up to my question, Madam
President, for Senator LaValle -- is that by
putting in this new statute, we are removing
the language that allowed for a concurrent
resolution of the two houses of government,
settled, if there's some disagreement, by a
joint session.
And even before our disagreement
about how that process should work, Senator
LaValle, you haven't replaced it with
anything. And as specific and detailed and
organized as you were in writing both bills, I
822
was just asking why you didn't at least put
your solution into the legislation.
SENATOR LAVALLE: Senator, I
thought I answered that the first time.
I would have loved to have put my
solution into the -- into the mix. But I
think here we're just basically focusing on
the time of the year. That's the -- that's
the thrust of this bill.
SENATOR PATERSON: Madam
President -- Madam President, if the Senator
would continue to yield.
THE PRESIDENT: Senator LaValle,
do you yield for an additional question?
Senator LaValle -
SENATOR LAVALLE: Yes, I -- yes,
I do, Madam President.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR LAVALLE: Senator, I see
what you're talking about with -
THE PRESIDENT: Senator Paterson,
do you have an additional question? Senator
LaValle has yielded. Go ahead.
SENATOR PATERSON: Yes. I think
823
Senator LaValle is answering my question.
SENATOR LAVALLE: Yeah.
THE PRESIDENT: All right. Go
ahead, Senator LaValle.
SENATOR LAVALLE: Yeah. We kept
in the concurrent resolution, and then we took
out in brackets all the language on the first
Tuesday. And then the joint ballot, we took
that out.
SENATOR PATERSON: Senator, my
question is -- even before we get to our
perhaps disagreement -- is that it's my
opinion that there's a technical flaw in the
bill itself, in that you've removed the
concurrent session to be followed, if an
agreement can't be reached, by a joint
session, and you haven't replaced it with
anything. So now the law is silent on the
issue. And I -
SENATOR LAVALLE: No, no,
Senator. This is -- this is -- this is what I
have said, you know, over and over again, that
the period should be after the concurrent
resolution. Because that allows for the
bicameral process. That allows for the
824
majority votes in each of the houses.
And what we're trying to get away
from is what I feel is unconstitutional, is to
go into a unicameral legislative session.
SENATOR PATERSON: Thank you,
Madam President.
Senator, I stand corrected. You
are right. The joint session is removed, but
the concurrent resolution stands.
My question is, in the case of
Regents as opposed to other areas of
government, how do we resolve that situation?
In other words, if we have a budget and the
two houses don't agree, along with the
Governor, then we just don't have a budget.
But in the case of the Board of Regents, the
Board of Regents is still acting, what is the
way to resolve a concurrent -- two concurrent
resolutions that don't have any agreement, and
then at that point we're just going to go on
ad infinitum without anyone being placed on
the Board of Regents?
In other words, how do we break the
tie? How do we resolve that problem?
SENATOR LAVALLE: Senator, I
825
would say to you if you look back in history,
the members of the Board of Regents from 1784
to 1904 were elected for life. So the only -
the only time that you really had a vacancy in
the Board of Regents was upon death.
And at a much kinder time -- I
think from 1904 into the 1970s -- the
Legislature pretty much agreed by concurrent
resolution.
One of the years, however -- and
that's how we got into March -- the leaders
could not agree by concurrent resolution. And
the people at that time said, Well, we can't
agree. And then rather than just let the
deadline go -- because legislatures at that
time, dates were very important to them. When
you said something was to happen on
such-and-such a date, the members at that time
believed it had to happen at that time or you
changed the date.
And that's how we got into March,
by the way. We changed it from February into
March. And the reason I know that is because
I was director of the Education Committee that
was called up to write that statute to change
826
the date.
So people changed the date. And
that's how they -- that's how they did things
back -- up until the '70s. As we got into the
'80s, we became more contentious, and of
course we relied more on the joint session
than we did by concurrent resolution.
But history will show that
legislatures and those people that served in
the Legislature were much kinder and gentler
to one another, were much more respectful, and
were able to come to a decision easier,
despite whether the houses were controlled by
one political party or not.
And so I have -- and in the oral
arguments on the litigation that we've -- you
and I have talked about, it has been mentioned
that legislatures find methodologies but
agree, whether it's on the state budget or
other things, even though it goes beyond a
particular point in time, a particular date.
So I don't use -- and I know we had
this discussion last year, that the joint
session is the breaker, the tiebreaker of how
you get away from a disagreement. I would
827
rather think that if you just had a concurrent
resolution process and no joint session, we
would be forced into coming up with the
agreement on who should be seated on the Board
of Regents.
SENATOR PATERSON: Madam
President, if -
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: -- Senator
LaValle would continue to yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR LAVALLE: Madam
President, while he's wearing me down, I will
graciously concede, yes.
THE PRESIDENT: Senator Paterson,
you may proceed.
SENATOR PATERSON: Madam
President, my question to Senator LaValle is,
isn't it true, Senator, that when we come to
executive appointments, that quite often we
understand that there's a seasonalness, a
timeliness to legislative approval, and so
that we don't have this problem with respect
to other appointments made by the Governor -
828
that the Senate, this chamber, actually
resolves that by offering advice and consent
in confirming executive nominations?
So if you look at the whole picture
and not just how it is resolved when it is
applied to the Board of Regents, would it not
be fair to say that in this instance, the
concurrent resolution not being agreed upon,
that joint session -- which does, and I
concede, contain in it 150 Assembly members to
the 61 Senators -- but that that process is
more inclusive of the entire Legislature than
the confirmation of appointees by the Senate
where only we decide?
SENATOR LAVALLE: Senator, I'll
answer the last part of your question.
I guess I'm just an institutional
person. And I believe that the members of
this body deserve the respect of their office,
in the fact that close to 300,000 people send
us to Albany to represent them, and that we
have one vote, and that in our Senate
districts there are two and a half or more,
maybe more, Assembly members who have the same
vote as we do.
829
You do not need this body for a
quorum. You do not need this body to elect,
by a majority vote, members to the Board of
Regents.
The first part of your question,
getting into executive appointments, is that
the constitution crafts that out and says that
these appointments shall be done with the
advice and consent of the Senate. Whereas
members of the Board of Regents are elected.
And the methodology, by 202 of the Education
Law, a statute.
And so you're comparing apples and
oranges. One a constitutional basis, and the
other a statutory basis.
And so I really am, Senator,
concerned that this house does not really have
standing when it comes to the process of
selecting and electing members to the Board of
Regents.
And I would think you would be
equally concerned about that, from an
institutional perspective and from a
perspective of the people who send you to
Albany, that you should have a greater voice
830
in the selection process.
SENATOR PATERSON: Madam
President, if I was going to address all the
areas that I'd like to have a greater voice
here, that would be certainly on the list.
There are a number of concerns that
we have, particularly here in the Senate
minority, about representing 300,000 people
and not necessarily having a voice.
But that aside, on the bill -
THE PRESIDENT: Senator, are you
on the bill or do you have a question?
SENATOR PATERSON: No, I'm on the
bill. Thank you, Madam President.
THE PRESIDENT: Go ahead.
SENATOR PATERSON: Senator
LaValle does raise what I consider to be a
constitutional issue. He aptly describes
himself as an institutionalist. And he
graduates from some of the finer institutions
that we have in this state -- namely, Touro
Law School, which I have an affiliation with.
And way back when, I believe we're the only
two senators to graduate from the same high
school, neither of which represents that
831
district now.
So that's an open question. If
anyone can figure out the answer to it, we
might confer a gratuitous benefit on them.
But on the bill, I'd like to say
that when I used the comparison of executive
appointments, it was not necessarily to make a
direct comparison with this situation, but
rather to establish how the constitution might
speak on this issue. If anything, it was to
recommend to the Senator that there is
certainly a relationship and a dicta with
which the Constitution might give us some
bearing as to how to resolve this issue.
And it's my conclusion that both of
our houses of the Legislature -- which at the
time, the Senate was and Assembly were not of
the same party as it is right now -- they
nonetheless agreed that this would be a good
way to resolve a concurrent resolution process
where there was not agreement.
So hopefully one day, perhaps to
Senator LaValle's satisfaction, there will be
some judicial ruling on this matter. And
although I think that Senator LaValle might be
832
disappointed by what the ruling might be, I
still think that it is in our best interest to
include all the members of the Legislature at
some particular point.
The Senate and the Assembly are
separate bodies but do not have separate and
distinct points of view. We cannot assume
that the Assembly is going to have a similar
point of view to each other's when voting on
members of the Board of Regents.
So with that in mind, all of us
being individual legislators, the actual
weight of the vote, when it comes to comparing
the Senate and Assembly, may not really have
the relevance when one considers the fact that
it may in fact be better than this being voted
upon in one house or agreed upon by leadership
where presumably we haven't even been aware of
what all the votes of the members actually is.
And so this is the reason that many
of us are unable to support this legislation,
in spite of the fact, as I said before, that
we are very much in favor of changing the
date.
We feel that Senator LaValle has
833
absolutely hit the nail on the head, that the
middle of May is better than the middle of
March to resolve it. And his other measures
that he has put into the previous bill that we
discussed are really welcomed at this point -
opening up government, opening the process,
establishing public attendance at meetings,
which we wholeheartedly endorse.
Other than the issue of who would
appoint the chair of the Board of Regents and
which way the Regents would be elected, we
commend Senator LaValle for his work but must
urge a no vote on this legislation until such
time as it's understood that the joint session
of the Legislature is probably the best way to
elect members to the Board of Regents.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Madam President,
thank you very much. If the gentleman would
yield to just one question.
THE PRESIDENT: Senator LaValle,
do you yield to a question?
SENATOR LAVALLE: Yes, I do.
THE PRESIDENT: You may proceed.
SENATOR WALDON: Thank you, Madam
834
President.
Senator, I just want to make sure
that I am on the same page with you. It is my
understanding that 155 will eliminate the
process, as we understand and function now,
where we have a joint session to elect
Regents. Is that correct?
SENATOR LAVALLE: Yes.
SENATOR WALDON: Thank you very
much.
Thank you very much, Madam
President.
SENATOR LACHMAN: Madam Chair.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: Madam
President, I'd like to ask the Senator to
yield.
THE PRESIDENT: Senator LaValle,
do you yield?
SENATOR LAVALLE: Yes.
THE PRESIDENT: Go ahead, Senator
Lachman.
SENATOR LACHMAN: Senator
LaValle, the words in brackets this year, were
they in brackets last year which removed
835
the -
SENATOR LAVALLE: I'm sorry,
Senator, I can't hear you.
SENATOR LACHMAN: I'm sorry. Let
me get closer to my microphone.
The words that are in brackets in
this bill at the bottom of the page -
SENATOR LAVALLE: Yes.
SENATOR LACHMAN: -- were they
similarly in brackets last year, or is this
something new?
SENATOR LAVALLE: Last year it
was -- it was pointed out that -- in the
debate that the brackets should have taken out
what the brackets have taken out this year.
SENATOR LACHMAN: But they were
not there, it was pointed out in debate -
SENATOR LAVALLE: That's my
recollection, Senator, yes.
SENATOR LACHMAN: On the bill,
Madam Chair.
THE PRESIDENT: Go ahead, Senator
Lachman.
SENATOR LACHMAN: I commend the
Senator for moving in the right direction in
836
terms of achieving positive change. But
because of the language that is now removed by
the brackets, that there will not be a joint
session, I regret that I cannot support this
measure.
But I do hope in the future to work
with the distinguished chairman of the Higher
Education Committee and our colleagues in the
Assembly to really move towards a reforming of
the process that needs to be reformed.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: May I remain
seated, Madam President?
THE PRESIDENT: Yes, of course,
Senator. Go ahead from your seat.
SENATOR STAVISKY: Thank you.
I believe it is important to point
out that the method of resolving the impasse
has been taken out. Instead of having the
joint session, at which time members of both
houses would have the opportunity to vote,
that has been taken out of this bill.
Are we so enamored of the idea that
the Governor and the Majority of this house
shall have control over this process? Why do
837
we take out the method of resolving the
impasse? I think that that's a mistake. I
think that that causes me to be opposed to the
bill in the way it is drafted here.
There are a few things that the
Legislature has the primary role in dealing
with, and the election of Regents is one of
those. It's not a gubernatorial appointment
with confirmation by the Senate that we are
taking out. We are substituting selection by
the Governor and confirmation by the Senate,
the Majority of this house. Which means that
those of us who believe that there should be
the opportunity to resolve the issue in a
legislative way, through a joint session, have
been given short shrift.
I think that's a mistake. We are
not confirming a traditional gubernatorial
appointment. We are instead substituting the
Governor and the Majority of this house in
place of the existing procedure, which is for
a joint session that would enable everyone in
the Legislature to participate.
There are too many situations -
THE PRESIDENT: Senator, are you
838
on the bill or do you have a question, sir?
SENATOR STAVISKY: I'm on the
bill.
THE PRESIDENT: Go ahead, sir.
SENATOR STAVISKY: There are too
many situations where the Governor and the
Majority of this house control the process.
The Legislature is given short shrift by the
omission of the joint legislative session.
And I think that's a mistake. I think it's a
mistake for all of the members of the
Legislature.
It's a mistake that we should not
allow to happen. It is a mistake that causes
me grave concern that we are abdicating a
method of resolving the issue that is
presently in the law and we are substituting
the judgment of the Governor and the Majority
of this house without any input by the
Minority or the other house.
This is a legislative function that
should not be abdicated by the deletion of the
existing language. And for that reason, I am
opposed to the bill in its present form. I
have no problem with other provisions of the
839
bill. But let's deal with the changing of the
date in a separate bill, a clean bill, one
that does not intrude upon the powers of the
Legislature to resolve a dispute.
And what is being done here is a
subterfuge to eliminate all participation by
the minority, all participation by those who
may have a different perspective than the
Governor and the Majority of this house.
And I believe that that is not the
intention. This is a legislative function,
one of the few occasions where the Legislature
has primary responsibility. And we should not
be abdicating that primary responsibility for
the Legislature. All the members of the
Legislature have a right to vote on the
settling of the impasse.
And for that reason, I will oppose
the bill and urge my colleagues to oppose it
as well.
Thank you, Madam President.
THE PRESIDENT: Senator Marchi.
SENATOR MARCHI: Madam President,
I went on for years under the system -- and
I'm not fully persuaded by Senator LaValle
840
yet -- that it is indeed a question that was
to be resolved by the Legislature. And it
functioned well, and then we came up to where
there was a split in the two houses.
And I remember that we brought up
the question of one-man-one-vote on a quorum
call; it was not squarely on the issue. And
Governor Wilson, your predecessor, ruled
against this house at that time and said that
under the plain significance of the language
that we have that governs us, each person,
each individual, was entitled to one vote
equally in the two houses. So that
effectively knocked out the Senate, where you
weren't able to establish a concurrence.
I'm going to support this bill,
because I believe that he has opened up the
question -- and I would hope a dialogue
generally -- that would accommodate the larger
view of how we dispose of it. And I'm still
of the opinion that it should be legislative.
But we are effectively locked out of that
process under the present circumstances.
So I understand how, you know, you
folks may oppose this legislation. And
841
perhaps you feel more secure that the decision
will be made over in the Assembly. But it
effectively negates meaningful participation
by this house. It's absurd. I don't know how
it -- we just circumvent this or get around
it.
But I compliment Senator LaValle on
at least opening up the question to other
alternatives. So I'm going to support it in
the hope that it engenders -- because
obviously we're not going anywhere here,
except as it expresses a deep-felt sentiment
of this house that we're not really wholly
satisfied with the present process, much as
you may agree with the results that will
probably follow.
So I do hope that we -- this bill
is supported by everyone and it opens the door
to what all of us desire, and -- which I
believe is Senator LaValle's primary aim, is
to open up the dialogue to the wider issue of
our exclusion.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
842
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Those record -
THE PRESIDENT: Senator Seabrook.
SENATOR SEABROOK: I'll wait
until the vote.
THE PRESIDENT: Thank you,
Senator.
The Secretary will announce the
results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 155 are
Senators Breslin, Connor, Duane, Gonzalez,
Hevesi, Lachman, Markowitz, Montgomery,
Nanula, Onorato, Oppenheimer, Paterson,
Rosado, Santiago, Schneiderman, Seabrook,
Smith, Stachowski, Stavisky, and Waldon.
Ayes 36; nays 20.
THE PRESIDENT: The bill is
passed.
Senator Seabrook.
SENATOR SEABROOK: Yes. Madam
843
President, with unanimous consent, I'd like to
be recorded in the negative on Calendar Number
201. That's Senate Bill 1734.
THE PRESIDENT: Without
objection, you are so recorded, Senator.
Senator Stavisky.
SENATOR STAVISKY: I too would
like to be recorded in the negative on
Calendar Number 201, Senate 1734.
THE PRESIDENT: Without
objection, you are so recorded in the
negative.
Senator Skelos, that completes the
controversial reading of the calendar.
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
THE PRESIDENT: Yes.
SENATOR SKELOS: Please recognize
Senator Smith.
THE PRESIDENT: I'm going to
recognize Senator Smith first.
Go ahead, Senator Smith.
SENATOR SMITH: Thank you, Madam
President. I request unanimous consent to be
recorded in the negative on Calendar Number
844
201.
THE PRESIDENT: Senator Smith,
without objection, you are so recorded.
We have two substitutions at the
desk, Senator Skelos.
SENATOR SKELOS: Please make the
substitutions.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 10,
Senator Maziarz moves to discharge, from the
Committee on Aging, Assembly Print 3480 and
substitute it for the identical third reading,
134.
On page 15, Senator Hannon moves to
discharge, from the Committee on Health,
Assembly Bill 5100 and substitute it for the
identical third reading, 205.
THE PRESIDENT: The substitutions
are ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
there being no further business, I move we
adjourn until Tuesday, March 9th, at 3:00 p.m.
THE PRESIDENT: On motion, the
845
Senate now stands adjourned until Tuesday,
March 9th, 3:00 p.m.
(Whereupon, at 4:15 p.m., the
Senate adjourned.)