Regular Session - March 19, 2001
2314
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 19, 2001
3:07 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
2315
P R O C E E D I N G S
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: In the absence of
clergy, may we bow our heads in a moment of
silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Sunday, March 18, the Senate met pursuant to
adjournment. The Journal of Saturday,
March 17, 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.
2316
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Bruno.
SENATOR BRUNO: Madam President,
I believe I have a privileged resolution at
the desk. I ask that it be read in its
entirety and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator Bruno,
Legislative Resolution Number 906,
commemorating Good Joes Day, 2001.
"WHEREAS, Saint Joseph is
everyone's Patron Saint and not just the
Patron Saint of those who are fortunate to
bear his name; and
"WHEREAS, The New York State
Legislature is appreciative of the vital
contributions of those good members known as
Joseph; and
"WHEREAS, The Society of Good Joes
2317
is celebrating its 43rd year in memory of the
late Joseph Addonizio, and its members have
banded together under a common name in the
spirit of camaraderie and good fellowship; and
"WHEREAS, Tradition holds that
Saint Joseph is the Patron Saint of the
working person, of all those who labor with
the dignity that only true humility imparts;
and
"WHEREAS, On Saint Joseph's Day, in
March, the swallows return to Capistrano,
heralding the conclusion of a long, cold
winter and the advent of a new spring; now,
therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations and recognize
this great day, Monday, March 19, 2001, in
commemoration and deliberation of all Good
Joes in the State of New York, to be
celebrated on Tuesday, March 20, 2001, in the
honor of all Good Joes of this Empire State;
and be it further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to Mrs. Rose Addonizio."
2318
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 Bruno.
SENATOR BRUNO: Madam President,
I think it's appropriate that I might say a
word or two about Good Joes.
And I say that very humbly, because
there are some good Joes and there are some
great Joes. And Joe Addonizio was one of the
great Joes that 43 years ago started the
tradition of Good Joe Day in the Legislature.
And we have some Good Joes now in
the Assembly -- Joe Lentol, Joe Robach. Who
else? Joe Morelle. Joe Crowley, in Congress,
presently serving.
And, Madam President, they're all
Democrats. But they're still good Joes.
(Laughter.)
SENATOR BRUNO: And I am proud
2319
that I represent this side of the aisle in the
Legislature as a Joe.
Whether I'm a good Joe a great Joe,
Senator Paterson, I'm going to leave to your
good judgment. And I wouldn't ask for a vote
on it.
But St. Joseph is a patron saint to
all hard-working people. And Joes are known
to be objective, impartial, well-intentioned,
committed, and, in the Legislature, excellent,
outstanding legislators.
So, Madam President, thank you for
your attention, and my colleagues, thank you
for your support on Good Joes Day. And I
believe there are some refreshments in
Assemblyman Lentol's office, and everyone is
invited to participate. Thank you.
And we're opening up this
resolution to all of you non-Joes who are Good
Joes today.
THE PRESIDENT: Any of the
members who do not wish to be included on the
resolution, please notify the desk.
Senator Paterson.
SENATOR PATERSON: Madam
2320
President, on behalf of the Minority Leader,
Senator Connor, we believe the Majority Leader
to be a Great Joe. And we're hoping that he
will demonstrate it as time goes on, and we
gladly would like to be on this resolution for
all the great Joes in Albany.
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Madam President,
is there any housekeeping at the desk that we
can take up at this time?
THE PRESIDENT: Yes, there is,
Senator Bruno. Thank you.
SENATOR BRUNO: Could we take it
up at this time, Madam President.
THE PRESIDENT: Yes, we will.
Senator Meier.
SENATOR MEIER: Thank you, Madam
President.
On page Number 19, I offer the
following amendments to Calendar Number 191,
Senate Print 1302, and I ask that said bill
retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
2321
place on the Third Reading Calendar, Senator.
SENATOR MEIER: Thank you, Madam
President.
On behalf of Senator Balboni, I
request that on page Number 9, I offer the
following amendments to Calendar Number 44,
Senate Print Number 859A, and I ask that said
bill retain its place on the Third Reading
Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR MEIER: Thank you, Madam
President.
THE PRESIDENT: Senator Bruno, we
have a substitution.
SENATOR BRUNO: Can we take the
substitution up at this time, Madam President.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 21,
Senator Stafford moves to discharge, from the
Committee on Finance, Assembly Bill Number
7121, and substitute it for the identical
Senate Bill Number 3456, Third Reading
2322
Calendar 220.
THE PRESIDENT: The substitution
is ordered.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we ask for an immediate meeting of the
Housing Committee in Room 332.
THE PRESIDENT: There will be an
immediate meeting of the Housing Committee in
Room 332.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time take up the
noncontroversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
106, by Member of the Assembly Lentol,
Assembly Print Number 1437, an act to amend
the Civil Practice Law and Rules, in relation
to requiring.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
2323
146, by Senator Saland, Senate Print 587, an
act to amend the Family Court Act, in relation
to extensions.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
147, by Senator Saland, Senate Print 588 -
SENATOR PATERSON: Lay it aside.
THE SECRETARY: -- an act to
amend the Family Court Act, in relation to
procedures.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
158, by Senator Wright, Senate Print 1087, an
act to direct the Department of Public
Service.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
162, by Senator Meier, Senate Print 1449, an
act to amend the Social Services Law and
others, in relation to penalties.
2324
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
163, by Senator Morahan, Senate Print 833, an
act to amend the Education Law, in relation to
certain BOCES programs.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
195, by Senator LaValle, Senate Print 2082, an
act authorizing the Office of Real Property
Services.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
200, by Senator Trunzo, Senate Print 2032, an
act to amend Chapter 672 of the Laws of 1993.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
2325
220, substituted earlier today, Assembly
Budget Bill, Assembly Print Number 7121, an
act to amend Chapters 50, 53, and 55 of the
Laws of 2000.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Madam President,
if we could start with the controversial
calendar, starting with Calendar Number 220.
THE PRESIDENT: The Secretary
will read Calendar 220.
THE SECRETARY: Calendar Number
220, substituted earlier today, Assembly
Budget Bill, Assembly Print Number 7121, an
act to amend Chapters 50, 53, and 55 of the
Laws of 2000.
SENATOR STACHOWSKI: Explanation.
THE PRESIDENT: Senator Stafford.
SENATOR STAFFORD: Madam
President, thank you. I apologize for talking
to one of my colleagues. I usually am right
here.
2326
THE PRESIDENT: An explanation
has been requested, Senator.
SENATOR STAFFORD: I believe I
explained this the other day, so I'll be very,
very brief. And possibly there may be some
discussion, because I remember there was some
discussion last Tuesday.
So what I will say, Madam
President, complimenting all those involved in
the Executive branch, including yourself and
the Governor, in my years here, which aren't
few, this is one of the smallest, if not the
smallest deficiency appropriation, deficiency
budgets that I've seen here in the Capitol.
And it certainly shows that everyone involved
is being very frugal.
Now, this budget does provide for
some appropriations that do not affect our
bottom line; in other words, call for no state
appropriations from the General Fund. And
these are the appropriations concerning the
Retirement System. And this is an
appropriation that is of three -- a little
over $3 million. And it's for administrative
costs associated with the pension reform
2327
measures enacted last year.
Also, we have an appropriation for
$420 million, which involves the Internal
Service Fund.
And they gave me a new memo. I
wish I had the same memo that I had from last
Tuesday, but I'll work through it. I'll work
through it.
Also for the General Fund, however,
we have a $23.5 million appropriation. That
involves the workmen's compensation -- now
they're giving me the one from Tuesday.
They're going to confuse me. This involves
the Workmen's Compensation Fund, and that is
from a court order, or results from a court
order. And we're going to have to pay back
money to the insurance funds.
And also, we have a $96.8 million
appropriation for the State University
Hospital income reimbursement account. And
that, of course, involves funds that have been
collected but we have to appropriate. But
that does not involve the General Fund.
And finally, we have a
$19.6 million appropriation for extraordinary
2328
costs, and this is for snow and ice control.
And of course I'm pleased to see this
necessary, because of course we live on snow
up where I come from.
And we're having a very good year,
I might add. Some would almost say too good,
but I wouldn't. Even in Lake Placid, where
they were going to possibly call a state of
emergency, everyone was smiling. And in
Plattsburgh, they weren't smiling quite as
much. But, yes, the people who are selling
snow tires and galoshes were having a good
day.
So with that, I would conclude my
remarks. And I see that Senator Stachowski
has worked over the weekend.
THE PRESIDENT: Senator
Stachowski.
SENATOR STACHOWSKI: Madam
President, I'd just like to briefly speak on
the bill.
I asked Senator Stafford a series
of questions last week. And even though, as
much as I would like to take up everybody's
time with those same questions, I'm just going
2329
to make a few remarks so that if there were
people on my side that didn't get an
opportunity to ask the questions they had in
mind last week, maybe my comments will refresh
their memories and they'll think about the
questions they maybe weren't quite clear on.
But I recall asking Senator
Stafford about the hospital money and how that
would -- why we had to do that. And he
pointed out it was because of the charges the
hospitals had, and without this movement of
appropriation they couldn't spend this money
and therefore be in a position to continue
operating.
And as we pointed out last week, in
a large area -- for example, up here, and
since we are in Albany and upstate, that with
Syracuse Med being such a major hospital for a
lot of Central New York -- and it affects so
many people's districts because they have
smaller hospitals that may not have some of
the procedures or equipment necessary to do
some of the more difficult procedures that may
come into their hospital. Oftentimes people
are Medivacked to Syracuse Med to handle those
2330
kind of cases.
I know that's a common practice in
Oneonta, for example; people at Fox Hospital
will be sent to Syracuse for heart procedures
of certain types. And I would imagine from
Senator Meier's area, too, that they would be
sent to Syracuse if there was a more difficult
type of procedure. So that it's important
that we keep those hospitals operating.
I know that the insurance part we
discussed at length, because Senator Stafford
pointed out that by giving this money back, we
will be saving money. And how we'll save
money is that the reserve will get bigger and
that the next round of workmen's comp fees
should be less as a result of this court case,
giving money back.
So that hopefully we'll see that in
the near future, and that the businesses that
are constantly calling all of us complaining
about their high cost of workmen's
compensation coverage will somewhat be
lessened, again, by this part of the
deficiency budget.
And in DOT, obviously, most of us
2331
have seen more snow and ice than maybe we'd
care to see.
In Buffalo this weekend we had a
lot of snow that, quite frankly, I wasn't
ready for. I had figured, well, St. Patrick's
Day parade coming. But it seems like God has
an interesting sense of humor.
Every year in Buffalo, right around
the St. Patrick's Day parade, He has a storm.
I don't know why. Maybe because all the
snakes are out of Ireland. I'm not sure. But
He has a snowstorm or an ice storm almost
every year.
And so we're glad that there's more
money to remove the snow and ice. And we saw
all the plows out on the Thruway, cleaning up
that western New York section all the last
weekend.
So those are the things we're
paying for. And obviously the first part is
another piece; the Department of Audit Control
needed some funding to take care of some of
the additional workload they had because of
the retirement and the elimination of the
3 percent contribution by various employees.
2332
And I'd like to again thank Senator
Stafford for all the wonderful answers he gave
to me last week. And that's why I didn't feel
that it was necessary for myself personally to
ask that whole series of questions again,
because I remembered all his answers. And
hopefully I did a good job in somewhat
repeating them today, rather than taking us
all through those questions. Because I
assumed that some other members from my side
would have questions for him, and I didn't
want to take their time with my repetitive
questions, so I just figured I'd do a slight
summation of what our conversation was last
week so that if they had any questions and
maybe they didn't think of them off the top of
their head, that would rekindle the memory of
the question they had and therefore they could
ask them themselves.
And thank you, Madam President.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: Madam
President, I have a couple of questions
dealing with the deficiency aspects of the
SUNY hospital problem. If the Senator would
2333
respond to -- is it a coincidence that -
THE PRESIDENT: Senator, do you
yield, first of all, Senator Stafford?
SENATOR STAVISKY: Oh, sorry.
THE PRESIDENT: Senator Stafford,
do you yield, sir?
SENATOR STAFFORD: Yeah.
THE PRESIDENT: Thank you.
Go ahead, Senator.
SENATOR STAVISKY: There's a
close correlation between the $96.8 million
and the $116 million in the deficit aspect.
Is that coincidence?
SENATOR STAFFORD: I didn't
get -- I'm sorry, I didn't hear your question.
SENATOR STAVISKY: My question,
Madam President, involves the number -
involves the $116 million deficit compared to
the $96.8 million sudden windfall we have.
The fact that the two numbers are not that far
apart, is that a -- I assume that is a
coincidence.
SENATOR STAFFORD: Well, Senator,
you'll find -- and of course I realize you've
been here a number of years and you've learned
2334
a great deal, and you'll continue to. You'll
find that one man's floor is often another
man's ceiling. Now -
SENATOR STAVISKY: As long as
it's not a glass ceiling.
(Laughter.)
SENATOR STAFFORD: I won't go
there.
(Laughter.)
SENATOR STAFFORD: I think you
could say that probably there is a
possibility, but the numbers aren't the same.
And I would say that this that's being asked
to be appropriated is what we feel is
available and what we feel is necessary.
SENATOR STAVISKY: Is this a
one-shot revenue feature or is this -- Madam
President, if the Senator would yield for
another question.
THE PRESIDENT: Senator Stafford,
do you yield, please?
SENATOR STAFFORD: I do.
SENATOR STAVISKY: My question
is, how do you explain the sudden windfall of
monies?
2335
SENATOR STAFFORD: Well, you
mentioned "one-shot." I don't use those
terms. Because often what people say is a
one-shot, you can debate that. Because they
often say it's not going to be coming back, we
won't get it next year, we won't -- you
just -- that just is a phrase that I think is
overused and I think is sometimes used just to
convenience those who are trying to possibly
put forth an agenda, so to speak. None of us
have agendas, of course.
But I think, again, the money's
available there, and we are appropriating
these funds. We're so fortunate that we can.
These hospitals, as has been
mentioned -- Senator Stachowski and I agree on
the importance of these hospitals, teaching
hospitals. And as a matter of fact, we have
always found that we keep them going.
But as I mentioned here, when I was
here 36 years ago, we would have the hearing
for the State University and a fellow by the
name of Murphy who was here from the -- had
been with HEW, and he came to work for
Chancellor Gould, and he would sit and explain
2336
our hospitals, explain the problems we were
having, and no one understood him. Because he
of course was an expert, because he came from
Washington. And he came here, and he would
tell us why we were -- needed these
expenditures.
We agreed with him then, I agreed
with him then. I agree still that it's so
necessary. And the Governor has provided this
legislation. And I would say that it's
certainly money, when we pass it, very well
spent, and we should be very proud of the
hospitals that these funds affect.
SENATOR STAVISKY: I think we're
all very proud of the SUNY hospitals,
particularly since they encompass the entire
state.
How is the $96.8 million going -
if the Senator would yield for another
question.
THE PRESIDENT: Senator, do you
yield for a question?
SENATOR STAFFORD: I certainly
do.
THE PRESIDENT: Thank you. You
2337
may proceed with your question.
SENATOR STAVISKY: Thank you.
How are the monies going to be
appropriated? Is there a formula, or does it
all go to one hospital, or is it a third, a
third, and a third?
SENATOR STAFFORD: I think one
thing that the Governor has done, and all the
people who work with him, they've moved toward
allowing the individuals, the officials
responsible, to make the appropriate
decisions.
I know we were always concerned
years and years ago that we would have a
budget and the first thing you knew, you had
someone making a decision that had little
experience in the field, and the decision was
made without all of the information being
provided.
Now we have a situation where we
have the Chancellor and his staff and we have
the hospitals and their staff -- the hospitals
have a staff, and I should say the presidents
of the hospitals, the presidents of the
universities where the hospitals are, having
2338
dialogue, information exchanged, decisions
made.
And we've always found that the
decisions have been objective in the past few
years and have been decisions that were
professional. And I would suggest that this
is going to continue.
SENATOR STAVISKY: On the bill,
Madam President.
I commend both Senator Stachowski
and Senator Stafford for their explanation of
the entire deficiency appropriation,
particularly as it refers to the SUNY
hospitals.
I sincerely hope that people are
not getting sicker all of a sudden, that we
have the additional revenues, that the trend
continues in terms of additional enhanced
revenue.
And I commend both the Finance
Committee for coming up with the revenues, and
I certainly intend to support the bill.
THE PRESIDENT: Senator Onorato.
SENATOR ONORATO: Madam
President, will the Senator yield for one
2339
question from me.
THE PRESIDENT: Senator, do you
yield?
SENATOR STAFFORD: By all means.
THE PRESIDENT: Thank you.
You may proceed, Senator.
SENATOR ONORATO: Senator
Stafford, does this represent the entire
deficiency budget of last year, or is there
any further ones coming out after this one?
SENATOR STAFFORD: Well, once
again -- I hate to go back to what I mentioned
earlier, but I will again go back and -- from
my experience, one thing in government you
never say is never. If you do, you'll find
that sometimes that wasn't exactly right.
But my suggestion here would be
that there will be one deficiency
appropriation, and it would appear that this
is the bill.
SENATOR ONORATO: Thank you,
Senator.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
2340
President, if the sponsor will yield to a
question.
THE PRESIDENT: Senator, do you
yield?
You may proceed, Senator Dollinger.
SENATOR DOLLINGER: I'm
concerned, Senator Stafford, about the
provision dealing with workers' compensation
and the rebate of the excess assessment on
premiums that we collected and now we are
reimbursing to the state's insurance carriers.
Through you, Madam President, my
question is, have you seen a copy of the
memorandum of understanding that's referred to
in the bill? And if so, could you make a copy
of that available to me on the floor now, so I
could just take a look at it?
SENATOR STAFFORD: Now, you know
better than that, Senator, to be asking me
that. Now, I'll be glad to sit down with you
and we can discuss this and we'll see what's
available.
But let me first answer your
question this way. Where we were in workmen's
compensation six years ago and where we are
2341
today, I think we both have to agree that a
great deal of work has been put into the
field -- oh, do you have the memorandum?
SENATOR DOLLINGER: No, I don't
have the memorandum. I have the bill, Senator
Stafford. It refers to the memorandum.
That's why I asked.
I didn't mean to interrupt. Please
continue.
SENATOR STAFFORD: No, I
interrupted.
Now -- don't scowl. Don't scowl.
Now, we just have done such -- we.
The Governor and all involved in the Executive
branch, and the Legislature has been a part of
it.
Do you remember -- in fact, we even
had a late budget once when one of the issues
was workmen's compensation, and we were able
to pass legislation. The Governor, with his
leadership, has made our system more efficient
and has also provided the necessary benefits
to those involved.
Now, the companies receiving the
rebates, so to speak, will be of course
2342
required from the court case -- again, see, I
say that, from the court case, because I think
you're interested in the judiciary.
SENATOR DOLLINGER: I am,
Senator, as you properly surmised.
SENATOR STAFFORD: Right. But
following the decision of the judge, the funds
will be, of course, made available to the
appropriate companies.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Stafford will
continue to yield.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Does the
memorandum of understanding between the State
of New York's Insurance Department and these
carriers, does it include any additional
prospective relief, Senator? Is there
anything beyond the refund of the $23 million
that we are also required to do for these
carriers in the future?
SENATOR STAFFORD: Well, once
again, being a person who is interested in the
judiciary and who knows how important it is
2343
when you're negotiating a case, you find that
it would be wrong to go much further than
making a broad stroke with a conceptual brush
here. Because if we were to get into
specifics, we wouldn't, of course, be doing
our job.
But the answer is no.
SENATOR DOLLINGER: And again
through you, Madam President, if Senator
Stafford will continue to yield.
SENATOR STAFFORD: Correct.
THE PRESIDENT: Senator, do you
yield? I think that was a yes I heard.
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President, through you.
Is there anything in the memorandum
of understanding between the State Insurance
Department and certain workers' compensation
insurance carriers that requires that the
amount of the repayment to these carriers be
rebated to the people that paid the premiums
on these policies?
Is there anything that in essence
takes the benefit of this settlement and makes
2344
sure that it goes back to the policy payors
rather than to the insurance companies?
SENATOR STAFFORD: I -- actually,
I will go back to an answer that I gave to
Senator Stachowski last Tuesday.
He was very, very perceptive, as
you are, and got right to the heart of the
matter and got right to the point and asked,
just as you are, about the benefits going back
to those who are covered by workmen's
compensation.
And as I mentioned to him, that
with these refunds -- and by the way, one of
the reasons that the memorandum can't be
available too is because of the negotiations
And I should, in courtesy, point that out to
you. I meant to.
But when the companies receive
these benefits, then of course there will be
actuarial work done, and the people receiving
benefits will benefit from these changes.
SENATOR DOLLINGER: Through you,
Madam President, just one final question, if I
may.
THE PRESIDENT: You may proceed.
2345
SENATOR DOLLINGER: Thank you.
Through you, Madam President, the
bill language says that the agreement is
between the State Insurance Department and
certain workers' compensation carriers. It's
my understanding that the memorandum of
understanding does not include the State
Insurance Fund, which insures about 50 percent
of the total workers' compensation premiums in
this state.
My question is, does this
description of certain workers' compensation
carriers include every other workers'
compensation carrier that paid into this fund,
or is it only a group of them, which would
then leave us open to the option that the
carriers who haven't sued us would at some
point sue us to reclaim their portion of the
fund?
I'm trying to find out whether this
is the exclusive settlement with all the
non-State Insurance Fund carriers in the
state, so that we'd have a complete settlement
of this entire dispute.
SENATOR STAFFORD: Well, once
2346
again, I certainly understand your asking
questions here. And they're good questions.
And it shows a keen insight into the problems,
so to speak. But once again, it would be
wrong for me to get into real detail here
because of these negotiations.
But I will answer your question.
SENATOR DOLLINGER: Thank you.
SENATOR STAFFORD: And under the
law, any company that is not part of the
litigation, there is a provision in the law
whereby there would be audits and then
decisions would be made.
SENATOR DOLLINGER: Through you,
Madam President, I want to thank Senator
Stafford -- as always, cogent, on the nose. I
appreciate the what appears to be complete
response to my questions.
However, Madam President, I'm still
going to vote against this measure, despite
Senator Stafford's comments, because at least
from my point of view, I would have felt more
comfortable having seen the memorandum of
understanding between the Insurance Department
and the workers' compensation carriers in
2347
order to determine the possible prospective
additional relief that might be available.
I appreciate the fact that Senator
Stafford has suggested that once there's a -
this rebate or this premium is repaid to the
carriers that there would be a reauditing of
their expenses and then the State Insurance
Department could make an adjustment in the
rates they charge.
I would, however, suggest that the
better approach would be to simply require, in
the memorandum of understanding, that the
total amount of the additional funds
erroneously paid to the State of New York
would then be rebated back directly to the
people that paid the premium.
These are not necessarily the
current customers of the insurance carriers,
but they were the customers of the insurance
carriers during the last four or five years
when these assessments were, as Senator
Stafford properly points out, and I think we
were told by the courts, we erroneously
imposed them.
So from my point of view, Madam
2348
President, I think there are a number of other
questions about various aspects of this, but I
think to have the memorandum of understanding,
to be able to be absolutely assured that we
have no prospective problems with this relief
package, and to be assured that the rebate of
these premiums ends up in the hands of the
premium holders, I would like to see those
additional protections. They may be in the
memorandum of understanding. I don't know; I
haven't even seen it.
But in the absence of that, Madam
President, I'm uncertain about where this
money actually ends up. It ought to go back
to the people that paid it. And so therefore
I will be voting in the negative, Madam
President.
Thank you.
THE PRESIDENT: Senator Smith.
SENATOR MALCOLM SMITH: Thank you
very much, Madam President. Through you,
Madam President, if the sponsor would yield
for a couple of questions.
THE PRESIDENT: Senator, do you
yield? Thank you.
2349
You may proceed, Senator Malcolm
Smith.
SENATOR MALCOLM SMITH: I
believe -- through you, Madam President -- the
sponsor indicated sometime last week that in
the last I guess his ten years of experience,
this has been the lowest deficiency budget
that we had to vote upon.
SENATOR STAFFORD: Madam
President, I would ask for the question again.
I didn't hear it.
SENATOR MALCOLM SMITH: I believe
the sponsor -- through you, Madam President, I
believe the sponsor, in part of his
explanation last week, discussed the fact that
in his ten years, this has been the lowest
deficiency budget that he's been involved
with.
SENATOR STAFFORD: No, I said 36
years, Madam President.
SENATOR MALCOLM SMITH: Madam
President, through you. Would the sponsor
explain whether or not this is roughly around
the same period in time each year that a
deficiency budget is put forward?
2350
SENATOR STAFFORD: Oh, no. I
have -- as far as doing anything the same time
here in Albany, I've never found that to be
the case. I've found it varying from various
times.
And I think, generally speaking,
we're in the ballpark, you know, as far as the
time that the deficiency budget comes up. But
no, it -- there are many vagaries and
vicissitudes, you know, when it comes to
legislation.
SENATOR MALCOLM SMITH: Madam
President, through you.
THE PRESIDENT: Senator M. Smith,
do you have another question?
SENATOR MALCOLM SMITH: Yes.
If in fact this is -- there have
been many others, and I understand from
counsel that there have been some times when
there's been no deficiency budget, could the
sponsor -- or would the sponsor explain
whether or not there is any cost above and
beyond the deficiency budget they are asking
for right now?
And basically, Madam President, in
2351
order to prepare this deficiency budget, is
there a cost associated with the preparation
of this deficiency budget or is it already
built into the agency's budget from the prior
year?
SENATOR STAFFORD: Well, first
let me -- Madam President, let me mention
about not having a deficiency budget. About
the only times I can remember us not having a
deficiency budget is when we had such a big
deficiency I don't think they wanted to send
it up. And that was before the last six
years. That wasn't during this period.
And as far as the costs, they're
regular costs. And I would say there's no
additional costs, really, what we would say,
as far as government is concerned.
SENATOR MALCOLM SMITH: Madam
President, through you, I guess what I'm
trying to find out from the sponsor is in
business you can anticipate what your costs
would be, based on prior experiences, whether
it's four years or five years behind that.
My question to the sponsor is, in
the preparation of this deficiency budget,
2352
does the agency or the agencies build in the
prior year what it's going to cost them to
then do an analysis and preparation of this
deficiency budget? Or is it now built into
the deficiency amount in which they are now
requesting?
SENATOR STAFFORD: Well, I hear
your question. And now that it's clear in my
mind, I can even be more helpful and explain
that, really, the preparation of the budget,
of the deficiency budget, is done by those who
work in this field. And I don't think this
involves any real additional work that would
cost more for the state.
And actually, I would point out
that I don't think there's much more cost in a
deficiency budget than there is in the bills
that we all introduce. And some of the bills
that I see introduced here, I sometimes wonder
whether we should have had the expense of
those bills being printed.
I have to say, Madam President,
that I used to introduce a lot more bills
myself, though. I -- let me make that clear.
SENATOR MALCOLM SMITH: Madam
2353
President, through you. If we could approach
the State University of New York -- and this
is Item 3 in the budget -- we talk about forms
of revenue which the State University of
New York feels that they have to -- or they
cannot spend, so therefore there is need for
this additional appropriation. Could the
sponsor give us a description of what those
categories are in which the revenue is
generated from.
SENATOR STAFFORD: This gets
confusing. And of course it's very easy for
me to get confused.
But I would suggest to you what
this is, it's money that has -- no, don't,
you'll get me confused. What this is is money
that's been collected but it takes a law in
order for it to be spent.
SENATOR MALCOLM SMITH: Madam
President, through you. I believe the sponsor
was explaining to me that the $96 million
that's being requested is exactly what has
been received.
SENATOR STAFFORD: This is what
the Executive branch, which of course includes
2354
the State University, includes the presidents
of the units that have the hospitals, those
responsible, it's an appropriation of what
they thought was reasonable and what makes
sense to spend from this fund.
SENATOR MALCOLM SMITH: Madam
President, through you.
THE PRESIDENT: Senator, do you
continue to yield? Senator Stafford?
SENATOR MALCOLM SMITH: Let me
ask the question a different way.
THE PRESIDENT: Just a minute,
please.
Senator, do you continue to yield,
please?
SENATOR STAFFORD: Yes.
THE PRESIDENT: Thank you.
Go ahead, Senator.
SENATOR MALCOLM SMITH: Perhaps I
could ask the sponsor the question a different
way. And that is assuming -- assuming the
estimators, as he put it, that generated this
estimate of $96 million, if for any reason
that appropriation isn't spent or more than
what they estimated is spent, how do we handle
2355
that?
SENATOR STAFFORD: I also should
have mentioned -- you know, when I talk about
my memos here, it's the exact memo that I had
last week, except I don't have my notes on it.
So I thought it was a different one. So I
want to make it, in fairness to these good
people that support me.
And I would also point out, this -
these funds come from a higher patient volume,
and of course they have additional funds. If
any additional funds are spent other than what
we're appropriating, we would have to have a
budget bill to appropriate those funds.
SENATOR MALCOLM SMITH: Madam
President, through you, if the sponsor would
continue to yield.
THE PRESIDENT: You may proceed,
Senator.
SENATOR MALCOLM SMITH: If in
fact we would have to have an additional
budget bill passed, Madam President, through
you, perhaps in the 36 years that the sponsor
indicated we've had these many budgets, could
he give me an idea of what the cost has been
2356
associated with producing a second deficiency
budget?
And in fact, if efficiency is where
we're looking to go with it, would it not be
better to do an estimate, using whatever kind
of econometric model he wishes to come up with
a number, so we don't have to be doing this
over and over again every year?
SENATOR STAFFORD: Madam
President, I believe I can really give a good
answer toward what your question is. And that
is, we could also do this in the regular
budget, so that would of course not have a
deficiency.
But let me go back to the
deficiency budget again. I think in fairness
I should respond. And I hear exactly what
you're saying: Here we are, having to have
more additional work and additional costs.
As I said before, the numbers are
there. And those that are working in this
field really do this as part of their work.
And it doesn't take any additional hours or
any additional costs to do this.
And once again, to emphasize my
2357
point, really, it's not much more than
printing the bill. And I point out again, all
of us here, I find, introduce bills. And,
really, the costs of each bill, I think
sometimes we would have less costs if less
bills were introduced. But of course I'm
saying this to explain it's really just
another bill.
SENATOR MALCOLM SMITH: Madam
President, through you, one final question.
THE PRESIDENT: You may proceed,
Senator.
SENATOR MALCOLM SMITH: What I'm
trying to understand from the sponsor -- and I
know he indicated it does not cost any
additional money in the preparation there of
this bill.
I guess my only question is, if in
fact we have to take time away from these
particular budget analysts doing what is
necessary for the current year's budget, to
take time and, as one would call it in
business, downtime to go back to a prior
year's budget, couldn't there and shouldn't
there be a more efficient way to project what
2358
a potential deficiency budget may be and
actually build that into the bill and, at such
time as it is needed, it can then be utilized?
As opposed to coming back and doing the
paperwork and having to go through this
process all over again.
SENATOR STAFFORD: Madam
President, this is administration. And what
you do here, and what's done so well -- and
this is what our Executive branch, Governor
Pataki and all those working with him, they're
able to, I'm sure, have those that work in the
budget field make decisions in the ordinary
course of the day -- or evening, or night, as
is often the case -- and then have the bill
printed.
And as far as additional costs, I
would suggest that really what we're doing
here is looking for something that isn't
there.
SENATOR MALCOLM SMITH: Madam
President, through you. Just going down to
DOT Item 4, I note that on the bill it talks
about extra costs for snow and ice control
incurred by DOT. Is this deficiency amount -
2359
again, $19 million, it says, appropriated for
operations. Does that preclude or exclude
potential damages that may have come through
the expense of dealing with snow and ice
control?
SENATOR STAFFORD: Well, what I
believe this is, again, is the additional ice
and snow that we've had.
And as I mentioned to you, I am
very pleased to have this additional snow. We
have had crowds up in the North Country this
past weekend, and of course that's really so
important to us as far as our economy goes.
But again, you do have to have
reasonable care as far as ice and snow
control, and that's what that funding is for.
SENATOR MALCOLM SMITH: Madam
President, through you, one final question.
And perhaps -- Madam President, through you,
if the sponsor will yield.
THE PRESIDENT: Do you have a
question, Senator?
SENATOR MALCOLM SMITH: Yes.
THE PRESIDENT: Senator, do
you -
2360
SENATOR STAFFORD: Yes.
THE PRESIDENT: All right, that
was a yes. You may proceed, Senator Smith.
SENATOR MALCOLM SMITH: Thank
you, Madam President. If the sponsor could -
I understand the sponsor's response to the
prior question. I guess what I'm also trying
to determine is whether or not we will in fact
have to go back and allocate some additional
funds toward DOT if in fact there was not a
projected cost or there was not some
accountability for damages that may have
occurred during the time that snow and ice
control occurred by DOT.
Because on a regular basis during
the time in which snow was removed, whether
it's through vehicles or tractors, that from
time to time there is damages associated with
that. And I guess what I'm trying to find out
is in fact are we appropriating enough funds
to make sure all is covered so that we don't
have to come back this way again.
SENATOR STAFFORD: Well, Madam
President, this is something I learned even
before I got here. And that's that if you
2361
tell me how much snow we're going to get next
year and you're sure of it, you're certainly
doing something that I can't do.
SENATOR MALCOLM SMITH: Madam
President, if -
SENATOR STAFFORD: If you're
going to tell me that we're going to get a
certain number of days that we have to provide
for ice on the roads, I'm afraid that, again,
you're doing something that I can't do.
Now, I will say this. I think that
we have very, very efficient and capable
people working in this field. And of course
we found that we had 3 feet of snow in
Plattsburgh, 4 feet of snow in Lake Placid,
about 2½ feet in Albany. Buffalo, we had
12 feet -
(Laughter.)
SENATOR STAFFORD: No? They said
it. They said 12 feet.
But we had much more snow this
year, and therefore this was the requirement.
As far as saying will we need any more, this
is March. And remember, those of us who live
in this area -- in fact, any area. Some of
2362
the worst storms in New York City have been in
March. We're now -- the blizzard of 1899,
that I remember well -
(Laughter.)
SENATOR STAFFORD: And you know
how -- what it was like. Senator Stachowski
was there too.
But actually, I would say that this
has been well thought out. And now, you think
I'm going to say I hope that we don't need any
more. That's not the case. If it continues
to snow and we keep our ski areas open until
June, we're in all favor of that.
So I probably have given you a
roundabout answer to a -- well, I'll leave it
at that.
SENATOR MALCOLM SMITH: Madam
President, through you, I have to ask one more
question.
THE PRESIDENT: You may proceed,
Senator.
SENATOR MALCOLM SMITH: And I
will tell you, Madam President, I have always
been enamored by the verbal intellect of the
sponsor as well as his ability to manage
2363
different professions. And meteorology is one
that I was never good at.
But I can tell you there's one
thing that I do have a concern about, and that
is numbers. And the question that I do have
and I still have, Madam President -- and
perhaps I didn't explain myself well, and from
time to time I know I have a deficiency in
doing so -- and that is on the DOT
appropriation of $19 million, there is
discussion around operations for snow and ice
removal. And I will try to be a little more
clear about my question.
In the $19 million that is
appropriated, is there also appropriate funds
to cover the cost of damages that may have
ensued through the operations of snow and ice
removal? And maybe that's a question that's a
little bit more clear to the sponsor.
SENATOR STAFFORD: Madam
President, as far as verbal intellect, you'll
find that some of us are merchants of words.
And I see some who have gone to that school
behind you, and other -
As far as damages go, once again,
2364
we're dealing -- and please excuse me for
using these words again, but we're bringing up
vagaries and vicissitudes again. Because when
it comes to damages, I suppose you're
wondering whether or not there are going to be
causes of action brought out by the snow and
the ice.
And if that is the question, you
never for sure know exactly what will result.
But I will say usually they're between parties
that don't really -- that it doesn't affect
the state budget.
And if that does not answer the
question, I would have to answer the question
with a question. We'd have to define really
what we mean by damages. But since it's the
last question, maybe we can't do that, I don't
know.
SENATOR MALCOLM SMITH: Madam
President, on the bill.
Let me first thank the Senator for
indulging a freshman to the degree that you
have. I appreciate your patience with my line
of thought, which I know from time to time may
be difficult to follow.
2365
But the concern that I do have -
and I'm not clear where I will be on this
bill, Madam President. I'm hoping that with
the debate that ensues from my other
colleagues, I will then be educated enough to
know where my vote will lie.
But what I'm having some difficulty
with is the fact that if we have gone through
this process, as the sponsor has said, 36
years in a row, or 36 years, then it would
seem to me that I would have some semblance of
understanding of what I can anticipate down
the road.
You know, recently I heard the
President talk about his tax program, and he
wanted to sort of ask people to bet their
entire career or their entire income for ten
years. Which tells me that there are some
people in some form of this budget life that
understands numbers and how to project what
costs will be down the road.
And I just find it difficult to
believe that after 36 years, we still take the
time to go through the analysis. And although
the sponsor feels as though there is no money
2366
lost by doing so, the fact of the matter is
there has to be. There's no question about
it. Anytime I take a staff person and put
them four hours to do something else, it means
that they're not doing something that they
could be doing on the affirmative side. So
there's definitely a loss in some time.
And, as we continue to go through
our questioning, the sponsor couldn't tell me
whether or not there's been an appropriation
in this bill or in their former appropriation,
the current year, to cover the cost for that
new time or that downtime that would occur for
them now working on this deficiency budget.
It just seems to me that it is
pretty clear that a deficiency budget is a
normal thing. So either there is something in
the spirit of efficiency that we are not doing
as legislators to make sure that we know where
our money is going to be spent and how it's
going to be spent, or there is some new model,
there's some new theories we need to
incorporate.
So I would just hope, Madam
President, as the debate ensues, that perhaps
2367
those answers would come out. Because I don't
think it takes a rocket scientist to
understand that once, twice, three, four times
you do something, clearly it's time, then a
pattern has developed, that you know it is not
necessary to try to figure out what to do
every year but you can project it and then, if
necessary, put that in the budget. And if in
fact you have to use it, so be it. And if you
don't have to use it, then that goes back to a
surplus, it goes back to the General Fund.
But I think there might be a more
efficient way of coming up with a deficiency
budget. Thank you.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. If the sponsor would yield,
please.
THE PRESIDENT: Senator Stafford,
will you yield?
SENATOR STAFFORD: Thank you,
Madam President. I don't want my smiling and
trying to provide collegiality here to mistake
that my patience possibly is being tested a
little. Thank you.
2368
THE PRESIDENT: You will yield
for a question?
All right. You may proceed,
Senator Duane.
SENATOR DUANE: Thank you, Madam
President. I notice that the majority of the
deficiency funding is for PS -- personnel
services -- funding. I'm wondering whether or
not that means that we should have -- that the
Retirement System should have hired new
employees, or is this -- is that money to go
for overtime?
SENATOR STAFFORD: Well, as far
as the Retirement System is concerned, once
again, this is not a cost to the General Fund.
And this has resulted not from
inadequate work, so to speak, it really came
about -- as I said, it's due to the fact that
it's additional costs, really, from those who
have retired that were -- it was not
anticipated. But I don't think it was
inefficiency.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
2369
THE PRESIDENT: Senator, do
you -- that was a yes, I believe.
You may proceed, Senator Duane.
SENATOR DUANE: I understood the
sponsor to say that this would have no cost to
the General Fund or it's not General Fund
money. But couldn't it mean, then, that the
money could have been retained in the system
and spent in 2001-2002? Why do we have to do
it now?
SENATOR STAFFORD: Well, let me
attempt to explain here, in a general way
here, what a deficiency budget is. Really,
these are funds that are being appropriated
and it was not actually foreseen that these
costs would be necessary or it would be
possible to appropriate these funds.
And if you're asking whether this
had been foreseen, I think that the fund is
being well-run, I think it's being
well-managed. And I don't think that it would
have been -- if I understood your question,
would have been something where you would have
wanted to see additional people hired.
SENATOR DUANE: Through you,
2370
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Senator, you do
continue to yield for -- you have a few
questions, Senator Duane?
SENATOR DUANE: A few would be
accurate, yes, Madam President.
THE PRESIDENT: All right. You
may proceed with a few questions.
SENATOR DUANE: I just want to
preface my next question by saying that I'm
not claiming inefficiency in the spending by
any means.
However, it's mid-March, and I'm
wondering why we're doing this in the
deficiency budget now rather than just waiting
until the budget that we're actually preparing
at this moment for the next fiscal year.
SENATOR STAFFORD: I'm always
pleased when what I'm thinking is what I'm
being advised, because it always makes me feel
that I'm on target here.
These were -- we provided increased
pension benefits last year also in
legislation. This has now come due. And
2371
we're just providing the funds which provide
for those benefits from last year.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: You have
authorization for a few questions, Senator.
You may proceed.
SENATOR DUANE: Thank you, Madam
President. I'm just trying to do it
correctly.
THE PRESIDENT: This is being
done correctly, Senator. You may proceed.
SENATOR DUANE: I may come back
to that, because I'm still not sure I'm
getting the answer to the question I'm asking.
But I know that the veterans'
retirement credit buy-back provisions were
enhanced. And I'm wondering if there's a
savings for the veterans -- which I assume
there is, which is why we're doing this -- but
what the savings would be to veterans.
SENATOR STAFFORD: Madam
President, 22,000 people have applied for the
buy-back. And it's almost impossible to
2372
specifically get into detail exactly what it
would mean for one category.
SENATOR DUANE: Through you,
Madam President, I'm just wondering why that
is.
SENATOR STAFFORD: Because it's
very complex, Madam President.
SENATOR DUANE: Through you,
Madam President. Does anyone know this, or do
we just have to wait and see how it plays out?
SENATOR STAFFORD: Madam
President, until all the applications are
reviewed, I think you've used very, very good
verbiage and I think you're right on the track
when you say it has to play out.
SENATOR DUANE: Through you,
Madam President, I'm hoping the sponsor could
tell me how the extra-year credits are going
to work for Tier One and Tier Two members, how
the extra-year credits for Tier One and Tier
Two workers would work.
SENATOR STAFFORD: Madam
President, I'd be more than pleased to sit
down with the Senator and discuss that field.
However, that really doesn't have anything to
2373
do with this legislation.
SENATOR DUANE: Through you,
Madam President, I was under the impression
that there would be an enhanced benefit for
Tier One and Tier Two members.
THE PRESIDENT: Do you have a
question, Senator Duane?
Senator Stafford.
SENATOR DUANE: Is my impression
correct?
THE PRESIDENT: I didn't hear a
question, sir. If you could ask a question.
SENATOR DUANE: Is it not correct
that there are enhancements, through
extra-year credits, for Tier One and Tier Two
members?
SENATOR STAFFORD: There is.
And, Madam President -- that, Madam President,
was automatic. And that's no additional
legislation. And of course it's not in this
legislation.
SENATOR DUANE: Through you,
Madam President, I actually don't believe that
that's true.
THE PRESIDENT: Senator Stafford,
2374
first of all, do you continue to yield for a
question, Senator?
SENATOR STAFFORD: By all means.
THE PRESIDENT: If you have a
question, you may proceed, Senator Duane.
SENATOR DUANE: I agree that
legislation isn't needed. But extra money is
needed for the enhancements; is that correct?
SENATOR STAFFORD: The extra
money for that field is not in this bill,
Madam President.
SENATOR DUANE: Okay. Okay. I'm
not sure I agree with that, but -- then I just
want to go back and ask a question that I had
asked before, because I'm still mystified
about why it is that we're doing this today
and not doing it in a few months. What
difference does it make, why does it have to
be part of a deficiency budget?
SENATOR STAFFORD: I think you
will be interested in -- Madam President,
excuse me, interested. The Comptroller
requested this legislation. It was necessary
to appropriate this money, as is always done
in deficiency budgets. This is money that
2375
is -- for last year was really not reasonable
to foresee, and therefore we have this
deficiency appropriation.
SENATOR DUANE: Thank you, Madam
President. Thank you.
SENATOR STAFFORD: Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 58. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
SENATOR MARCELLINO: Madam
President.
THE PRESIDENT: Senator
Marcellino.
SENATOR MARCELLINO: Can we call
up Calendar 146.
THE PRESIDENT: The Secretary
will read Calendar 146.
THE SECRETARY: Calendar Number
2376
146, by Senator Saland, Senate Print 587, an
act to amend the Family Court Act, in relation
to extensions of child placement.
SENATOR HASSELL-THOMPSON:
Explanation.
THE PRESIDENT: Senator Saland,
an explanation has been requested.
SENATOR SALAND: Thank you, Madam
President.
This bill merely says that under
Section 1055, the disposition section of the
Family Court Act, where a child is before the
court pursuant to an abuse and neglect
petition and the parents of that child have
passed away, the court will have continuing
jurisdiction over that child for purposes of
supervising and extending that placement.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Yes,
thank you, Madam President. If the Senator
will yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
2377
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Thank
you, Senator. I had a series of questions,
and I hope you will indulge me.
To what extent does the death of a
parent render the replacement issue moot?
SENATOR SALAND: Madam President,
what this section does is it takes a situation
in which a child is currently before the court
for purposes of disposition, the parents have
died, the court, like in other sections of the
Family Court and Social Services Law, requires
the jurisdiction -- to be able to continue to
have jurisdiction over the child and determine
what's in the best interests of that child.
SENATOR HASSELL-THOMPSON: Madam
President, if the Senator will continue to
yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed.
2378
SENATOR HASSELL-THOMPSON: Thank
you. Upon the death of both parents,
shouldn't the child then be placed in adoption
rather than foster care?
SENATOR SALAND: Madam President,
there is nothing that would prevent a child
under these circumstances from being eligible
for adoption. The court, in the course of its
continuing its jurisdiction, would be able to
make an extended placement. Or, if there was
someone who wished to intervene for purposes
of an adoption, that person or persons could
make an application to terminate the extended
placement.
But the court, as it's required to
do in these situations, acting in the best
interests of the child, would be the
appropriate repository for making that
decision as to whether to continue the
placement or accept an application to
terminate the placement for purposes of
permitting the child to be adopted.
SENATOR HASSELL-THOMPSON: Madam
President, if the Senator will continue to
yield.
2379
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR HASSELL-THOMPSON: Thank
you, Senator. I was looking at the
justification, and it speaks to clarifying the
court's authority to continue supervision and
by necessary extension.
Does -- by necessary extension to
the child's placement in foster care, doesn't
that preclude what you just said?
SENATOR SALAND: No, it doesn't
preclude. Again, there is an extended
placement. That does not prevent someone from
making application, assuming there's the
justification for the application to terminate
that placement.
And certainly were there parents,
whether it be a parent or parents or whether
there be a family member or a non-family
member that had an interest in the adoption,
and if the court determined that that
particular prospective adoption was in the
2380
best interests of the child, I would assume
any court would agree to terminate the
placement and resume whatever steps would be
appropriate for purposes of an adoption
proceeding.
And there are children who are
placed in foster care who are effectively
placed in preadoption settings. They're
placed in foster care for adoption purposes,
and this is a preadoption placement.
SENATOR HASSELL-THOMPSON: Madam
President, if the Senator will continue to
yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: If
both parents die without this amendment,
Senator, what happens to the case?
SENATOR SALAND: Could I -- with
that door open, Senator, could -- if I could
just -- I'll ask you to repeat that question.
2381
SENATOR HASSELL-THOMPSON:
Certainly, yeah.
In the event that both parents die
without this amendment being in place, what
then happens to those cases?
SENATOR SALAND: There is really
a question as to whether or not the court has
the authority to continue without some
language that basically enables them to do so.
I think, on the whole, courts today
have been continuing to proceed as if they had
that jurisdiction. There has been some
questions raised as to whether or not they do.
SENATOR HASSELL-THOMPSON: Just a
couple more questions, if the Senator will
continue to yield.
THE PRESIDENT: Senator, will you
yield for a couple of questions?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator, with your questions.
SENATOR HASSELL-THOMPSON: Thank
you.
You allude to Article 10, that's
2382
silent. But doesn't Article 6 of the Social
Services Law give the presumption of
continuance of jurisdiction to the Family
Court when both parents die?
SENATOR SALAND: No, what -
what -- depending on what portion of Article 6
you're talking about -- I believe there are a
number of titles in Article 6 -- I think what
it says there, in two or three different
places, is that in order for there to be some
type of action with regard to a child who is
currently in foster care, there must be an
application to the court.
And I'm looking -- my counsel has
just given me a copy of the Social Services
Law, and I'm looking at Section 383C, which is
entitled "Guardianship and Custody of Children
in Foster Care." And if you look at that
section, (1)(d) says if both parents of such
child are dead, it goes on to say that the
action would be taken by the guardian of the
person of such child lawfully appointed with
the approval of the court, or officer which
appointed such guardian to be entered of
record.
2383
Which basically says that if you
want something to happen in that circumstance,
you still have to go back to the court, and
the court will make whatever determination it
believes, again, to be in the best interests
of the child.
And it would seem to me that what
we're proposing to do in the bill that's
currently before us is to harmonize the
language in the disposition section, 1055,
really with a number of other sections in the
existing Social Services Law or Family Court
Act.
SENATOR HASSELL-THOMPSON: Would
the Senator continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR HASSELL-THOMPSON: I
listened to that, and I tried to read that
with you. But by virtue of the fact that they
have to go back to court, it automatically
gives the court the jurisdiction to make that
2384
determination. Hence I don't -- I still don't
understand the specific reason for this
legislation.
SENATOR SALAND: Well, as I said
in my earlier remarks and in my opening
remarks -- and perhaps I just didn't say it as
clearly as I should have -- what we're really
talking about here is enabling a court to have
unquestioned jurisdiction to extend a
placement where a child who is the subject of
the dispositional hearing has lost both of his
or her parents.
SENATOR HASSELL-THOMPSON: Right.
SENATOR SALAND: It's -- it fills
what some may view, at the very least,
technically as a gap and some may view
substantively as a gap.
And again, as I said earlier, it's
in complete harmony with other relevant
sections of both the Social Services Law and
the Family Court Act.
SENATOR HASSELL-THOMPSON: Thank
you, Senator.
On the bill. Thank you, Madam
President.
2385
Now, my concern was that in first
reading and trying to spend some time looking
at the legislation, I needed to be sure that
the language of the legislation did not
presume automatically that necessary extension
meant foster care. Particularly because our
foster-care homes and facilities already
experience overcrowding. We're getting all
kinds of concerns coming out of foster care in
terms of how children are being cared for.
I just received a letter, and it
was very interesting that this letter came at
the exact time that I was reviewing this
legislation, that talked about a parent who
had voluntarily, based upon her own
considerations, had given up her children on a
temporary basis to foster care and in her
contact with them was citing the kinds of
conditions that exist in the foster care
situations.
And because those children are
experiencing extreme trauma by separation, we
continually want to be sure that if we can
keep families together and if we can utilize
extended families, as opposed to foster care,
2386
as the presumption of care services, I needed
to be sure that that was not the language of
this legislation.
Because as a person who comes out
of something called family preservation, we
always look to extended families, as opposed
to foster care, as a mode of caring for
children in the death of parents.
So that I appreciate your
opportunity to explain this legislation to me
and to help me to be clearer as I consider the
vote on this piece.
Thank you, Madam President.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: If the
sponsor would yield for a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR OPPENHEIMER: Well,
actually my concern has already been voiced by
the prior Senator, Senator Thompson. And if I
2387
accept, which I do, your explanation that we
are not foisting more on -
SENATOR SALAND: Madam President,
could I ask for a little bit of order? It's
hard for me to hear Senator Oppenheimer.
SENATOR OPPENHEIMER: I have
heard what you said. And as long as my
concern was Senator Thompson's concern, that
we weren't foisting onto foster care, which is
so overloaded right now, and taking away the
option of returning to -- well, in this case,
it's if both -- this is if both -- okay, the
question is, are both parents dead in this
legislation?
SENATOR SALAND: This
specifically addresses a situation in which
both parents are deceased.
SENATOR OPPENHEIMER: Okay. Now
I have another question, then, if you will
yield.
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR OPPENHEIMER: Why in the
world -- it certainly sounds very logical to
2388
me. I don't understand -- I may be running
into something that is beyond the issue. I
don't understand why this hasn't passed in the
Assembly.
SENATOR SALAND: Perhaps we're
more enlightened than the Assembly. I don't
understand why it hasn't either, Senator
Oppenheimer.
SENATOR OPPENHEIMER: Oh, come
on. If the Senator will yield. A little more
technical explanation, Senator Saland.
SENATOR SALAND: Well, thank you,
Senator. But truly, I'm baffled. I mean, to
me this is a no-brainer.
And I -- while we may have
differences of opinions, I'm assuming there's
brains over there well enough to realize that,
you know, this is something that just
basically would address a limited number of
cases and make sure that the jurisdiction of
the court can't be an issue and that the court
can proceed in the best interests of the
child.
It's something that should not, I
think, really have taken as long as it has.
2389
It's something which I would hope at long
last -- and perhaps your posing the question
may help us to get this done in both houses.
SENATOR OPPENHEIMER: Okay.
Thank you, Senator Saland.
SENATOR SALAND: You're welcome.
SENATOR OPPENHEIMER: Just on the
bill.
I think this is a good bill. It
doesn't affect enormous numbers of children,
since hopefully, you know, both parents will
not have died. And as long as we keep in mind
that the optimal is to keep the family
together, intact, with the support services
that are necessary for them to live healthy
lives. But that is not the issue involved in
this bill.
And this bill has passed the
Senate, I see, five times. And I think it's a
good bill, and I'm going to support it. And I
may speak to some of my colleagues on the
other side, in the other house.
THE PRESIDENT: Senator Breslin I
believe is next.
SENATOR BRESLIN: Thank you,
2390
Madam President.
THE PRESIDENT: You're welcome.
SENATOR BRESLIN: Would the
sponsor yield to a question or two.
THE PRESIDENT: Senator, do you
yield to some questions?
SENATOR SALAND: Yes.
THE PRESIDENT: You may proceed
with your questions.
SENATOR BRESLIN: Is it true,
Senator, through you, Madam President, that
there's two natural precedents -- one, that
both parents must be dead, and, two, that
there's a dispositional hearing in place at
the time of their death? Is that correct?
SENATOR SALAND: This is in
Section 1055, which is a dispositional
section. So what happens, I believe the
initial placement can be for up to 18 months,
and then there are subsequent placements which
the court can order for up to a year.
And this assumes a situation in
which the court -- or the child is before the
court for dispositional purposes and both
parents have passed away.
2391
SENATOR BRESLIN: Again through
you, Madam President, if the sponsor would
continue to yield.
THE PRESIDENT: You had
authorization for your couple of questions,
Senator.
SENATOR BRESLIN: Thank you. Do
we have any idea of how many cases arise in
this situation during a given year?
SENATOR SALAND: I wish, Senator
Breslin, that I could quantify that for you.
We certainly believe it's a limited number of
cases.
It was brought to my attention by a
prior counsel who had served the Children and
Families Committee, who's currently a Family
Court judge hereabouts.
SENATOR BRESLIN: And doing a
good job, I might add.
Again through you, Madam President,
if the Senator would continue to yield.
In that situation, when both
parents die who would understandably have an
interest in their child, would it be advisable
to have any sort of notification to the next
2392
of kin of the process for their involvement to
either foster care and/or adoption?
SENATOR SALAND: Let me come at
it two ways. First, I would assume that next
of kin would probably be aware of the
circumstances and might communicate their
interest -- and I assume they would have
interest -- either to the agency or to the
court.
Secondly, and perhaps I put the
cart before the horse, I would assume that
they would be -- next of kin would be notified
either by the foster care agency or by the
court that the circumstances surrounding the
standing of the child before the court, now
without parents, had changed, and there would
be some form of notice.
SENATOR BRESLIN: Thank you,
Madam President. On the bill. And thanks to
the sponsor.
I think the bill, as evidenced by
the discussion, is a good bill. I do have
that one modest and minor concern that when we
assume that people in Family Court know what
they're doing, sometimes that those
2393
assumptions are incorrect.
And I think that possibly in the
future, if we could add on to this bill some
sort of a process where there's a defined
statutory process for next of kin to know how
to wind their way through the Family Court
process, to either involve themselves at the
dispositional level or at the subsequent
appearances and parts of Family Court, to
their rights under either foster care or
adoption.
Thank you very much.
THE PRESIDENT: Senator
Montgomery, I believe you're next.
SENATOR MONTGOMERY: Yes, Madam
President. If the sponsor would yield for a
couple of questions.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: Yes.
Senator Saland, the bill, as I read it, the
2394
part that is not underlined on line 4,
starting on line 4, it says: "Placements
under this section may be for an initial
period of up to one year, and the court in its
discretion may make successive extensions for
additional periods of up to one year each."
So it sounds to me like the
language allows the court to make an infinite
number of extensions based on its discretions.
Is that the case, or is there a limited number
of extensions that the court will make based
on a finding of neglect and -
SENATOR SALAND: The court has
the ability to continue to extend the
placements at one-year intervals.
SENATOR MONTGOMERY: Okay. Now,
you say that -- your new language is "the
death of all respondents during the time of
placement." Does that mean even if one parent
who has -- who is not in the picture, has
not -- you know, is not really a -- though
that person may be alive someplace, but is out
of the picture, does that also -
SENATOR SALAND: No, that -
Senator, they would have to have been a named
2395
party in the proceeding.
SENATOR MONTGOMERY: Both of
them?
SENATOR SALAND: Correct.
"Respondent" is a term to indicate
a party to the proceeding.
SENATOR MONTGOMERY: Okay. So if
it's a single parent who's for -- a child for
who has only had one parent identified, if
that parent dies, the same -- this bill
applies in that case as well?
SENATOR SALAND: Correct.
SENATOR MONTGOMERY: Okay. Madam
President, if I may continue my asking of
questions.
I think that in the late '70s,
maybe early '80s, late '70s, one of the major
issues -- if Senator Saland will continue to
address this -- one of the major issues was an
urgency to encourage placement, permanent
placement of children as quickly as possible,
Madam President.
Because at that time, prior to that
time, there was an increasing concern that we
had children who languished in foster care for
2396
years and years, and so we -- before the
agency that was supervising them would be
willing to in fact aggressively seek
placement. So we tried to put in place some
circuit-breakers for that, some incentives,
essentially, for foster care agencies to be
more aggressive about placing children.
So my question is, under this
particular legislation and this particular
section, maybe -- it's not just your bill that
is problematic, Senator Saland. But I'm
wondering if this does not in fact encourage
the courts to extend this status of being in
foster care, which is what I consider to be
being in purgatory for children, because it
does not in fact give any incentive for the
court to end this status and in fact seek a
permanent placement. Since we know that both
parents are dead, so that's not the issue
anymore.
SENATOR SALAND: As you pointed
out in your earlier remarks where you read
from the existing language, this bill does
nothing to change the extension mechanism
other than to make it clear that in those
2397
limited number of cases where you have
deceased parents, that the court maintains
jurisdiction of their -- whatever happened in
the '70s certainly has at the very least been
buttressed by, if not superseded by, ASFA,
which really requires that this foster care
process move along in a more timely fashion,
plus that children be freed up for adoption in
a more timely fashion.
There is nothing here that is
inconsistent with that whatsoever.
SENATOR MONTGOMERY: Thank you,
Madam President. Just one last question that
I would like to ask, if Senator Saland would
yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR MONTGOMERY: Okay. Thank
you.
Senator, as you know, there is a
very large and growing problem with AIDS,
particularly with babies and young people who
2398
are going to be at some point without their
parents because their parents, both of -- many
of them have either one or both parents who
are with active AIDS.
And I know that you have tried
to -- you and the Assembly have tried to -- I
should say we have tried to address this to
some extent by allowing parents to plan ahead
of time for the placement of their own
children. But nonetheless, there will be a
larger and larger number of children who are
going to really fall into the category of this
particular legislation.
So my question to you is, what do
we do to ensure that those -- and maybe
they've been neglected because the parents are
ill and dying.
SENATOR SALAND: I caught up to
the last part, what do we do, and then if
you'd -
SENATOR MONTGOMERY: What do we
do to ensure that those children don't become
the new generation of children who languish in
foster care, even though their parents are
deceased? Because it's going to be a problem
2399
that we're going to be confronted with in
larger numbers, and that the court may not
have sort of direction in terms of the intent
from us as to what should be done with those
children.
SENATOR SALAND: In all candor,
Senator, certainly that was one of the driving
forces behind the legislation which you
referred to that we did at the end of last
session to try and provide a mechanism whereby
families could plan for this very, very
difficult if not horrible eventuality.
That, however, again doesn't really
have any bearing on what we're attempting to
do here, because all we're doing here is
reaffirming the jurisdiction of the court in
these particular situations.
We do nothing, as I indicated
earlier, that would prevent another family
member, an intimate of the family, perhaps a
parent who had never stepped forth to have an
order of paternity established, to come
forward, seek to terminate the placement, and
accept the responsibilities of rearing the
child who is the subject of this extension
2400
under 1055.
SENATOR MONTGOMERY: All right.
Thank you, Senator.
Madam President, just briefly on
the bill.
I certainly appreciate Senator
Saland's concern that we do have a large
number and growing number of children who are
going to fall into this category. I just hope
and want to encourage Senator Saland to also
look at the companion, which makes it very,
very clear that we intend for the court to
supervise these children but at the same time
to make sure that there is an aggressive
attempt to locate parents through the -
either family members or other appropriate
placements as quickly as possible, so that
they don't languish in foster care, as we've
had in prior years when we did not address
this problem of really rewarding agencies for
keeping children in foster care rather than
providing incentive for them to actively and
aggressively seek placement.
So I'll be voting for the
legislation but just would like to suggest,
2401
Madam President, that there is, I think, a
companion bill, and I hope that Senator Saland
and we can work together on that one.
Thank you.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. If the sponsor would yield,
please.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Thank you. What
happens if prior to the parent's death there's
been a permanency plan put in place? Would
this trump that, or would the permanency plan
go forward?
SENATOR SALAND: My assumption is
that if the plan had been established, the
plan would go forward.
SENATOR DUANE: The same is true
with a -- if there was a standby guardianship?
SENATOR SALAND: I would say the
2402
same would hold true similarly.
It's almost like being an assignee
in a contract case. It doesn't change. You
can't -- you step into the shoes of whatever
preceded you.
SENATOR DUANE: You know, one of
the things that happens sometimes when there's
more than one child involved in a family is
that they are separated and placed in
different -- and have different placements.
And I'm wondering if thought was given to
making sure or making best efforts that they
would be placed together and putting that in
the law.
SENATOR SALAND: I do believe
that there already is a presumption that there
should be a placement so long as it's in the
best interests -- or unless it isn't in the
best interests of children.
SENATOR DUANE: Thank you, Madam
President. Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
2403
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
would you call up Calendar Number 147, by
Senator Saland.
THE PRESIDENT: The Secretary
will read Calendar 147.
THE SECRETARY: Calendar Number
147, by Senator Saland, Senate Print 588, an
act to amend the Family Court Act, in relation
to procedures for the temporary removal of a
child with consent.
SENATOR BRESLIN: Explanation.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Saland,
Senator Breslin and Senator Paterson have both
requested explanations.
SENATOR SALAND: Thank you, Madam
President.
What this bill does is it deals
with the section of the Family Court Act
2404
wherein there's a temporary removal with
consent, as distinguished from, obviously,
without consent. And it changes the provision
in the existing law which says that you have
to be in court within three days to three
court days.
THE PRESIDENT: Senator Breslin.
SENATOR BRESLIN: Yes, Madam
President. Would the sponsor yield to a
couple of questions.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Breslin.
SENATOR BRESLIN: In a case where
there would be a long holiday weekend, would
it be possible that a child could be removed
from the home and a petition wouldn't be filed
for a period of up to six days?
SENATOR SALAND: That certainly
would be conceivable, Senator Breslin.
But let me just suggest to you that
this is a consent situation in which the
2405
parent or parents of the child have consented.
And if anything, I would imagine that it would
afford the opportunity for some type of a -
either a disposition with additional services
or supportive services, as distinguished from
turning to the court for some type of a
court-enforced remedy.
So I don't -- I'm not troubled by
the idea that there might be some additional
amount of time to enable this consenting
parent or parents to work out with the agency
some type of a resolution before the court
intervenes.
SENATOR BRESLIN: Again through
you, Madam President, has there been any
groundswell of support from the Family Court
judges or from other aligned organizations for
this bill?
SENATOR SALAND: It would be a
stretch for me to say there's been some kind
of a groundswell, Senator.
SENATOR BRESLIN: Again, through
you, Madam -
SENATOR SALAND: It is an effort
to try and make some of these provisions
2406
consistent. As I'm sure you're aware,
because, you know, I'm familiar with your
expertise as a member of the committee, that
the court-day language already exists in the
removal situations as distinguished from the
consent situations.
SENATOR BRESLIN: Again, one
final question, through you, Madam President.
I note that this bill has been
coming in this house for a number of years -
since, I believe, 1993 -- and nothing has been
done in the Assembly. Is there any rationale
or reason why -
SENATOR SALAND: You know,
Senator Breslin, I had a similar request
earlier from one of our colleagues.
To me, it's -- this is logical. If
anything, I think it's something that would be
considered to be pro-family. What you would
be doing with this type of proposal is perhaps
avoiding the necessity for a court appearance
by enabling, in these consent situations in
which a family recognizes, assumedly, that
there are some difficulties that have to be
addressed, enabling them by giving them
2407
another day, another two -- in the worst case,
perhaps three days, in your extended weekend
scenario -- to work out differences to avoid
the necessity of having the court impose any
type of a sanction, and to perhaps resolve
what might otherwise be a very difficult
situation in a fashion that's mutually
satisfactory and avoids the need for any court
intervention.
So I'm baffled, truly, as to why
this would be a problem. Again, not unlike
the bill we just debated, it's consistent with
other provisions in which the law talks in
terms of three court days as distinguished
from three days.
SENATOR BRESLIN: Thank you. On
the bill.
I commend Senator Saland for again
filling a loophole in our Family Court Law.
That I've seen you, in the five years I've
been here, diligently and conscientiously
review and analyze the Family Court Law and
come up with small -- small, sometimes,
solutions, but albeit solutions that work.
Thank you, Madam President.
2408
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, I concur with the feelings of
Senator Breslin about the work that Senator
Saland has done on this subject and, as
Senator Breslin said, his creativity in terms
of putting together some solutions to what
really are very difficult problems -- fathers'
rights problems and the like.
And if the Senator would be willing
to yield on this issue.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Certainly,
Senator Paterson.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Senator, I
didn't quite hear Senator Breslin's last
question when he was asking about passage in
the Assembly, since this bill first passed the
Senate in 1993.
Does this bill have a cosponsor in
the Assembly? Because I just don't see one
right here.
SENATOR SALAND: You know, off
2409
the top of my head, I'm not absolutely
certain, Senator. Let me just check with my
staff and I'll let you know.
I'm being told by my counsel that
he does not believe so. We could certainly
confirm that for you. But I suspect you know
the answer if you asked the question.
SENATOR PATERSON: No, no, Madam
President, I really don't know the answer.
SENATOR SALAND: If we don't have
a sponsor, your words have certainly
encouraged me to make sure that we do have
one, Senator.
SENATOR PATERSON: Thank you,
Madam President. Thank you, Senator Saland.
If the Senator would continue to yield.
SENATOR SALAND: Yes, Madam
President.
SENATOR PATERSON: Senator,
again, in your discourse with Senator Breslin
I wasn't particularly clear on what you would
think would be the most -- or what you think
would be the most beneficial circumstance.
Would you think that the number of days should
be increased anyway, rather than three days to
2410
perhaps five or seven days?
And I ask the question because I
thought that one of the reasons that when the
bill was first -- and we're talking about the
Section 1021 of the Family Court Act, that
when it was first proposed in 1970, and then
when it was amended in 1990, that one of the
reasons that they stuck to three days is that
they wanted to encourage cooperation between
the parents and the agency.
And by allowing the child to be
removed from the home without any presumption
against the parent, it's kind of like those
situations in law where you can't hold the
proprietor responsible if someone slips and
falls in their restaurant, if they then take
the wax off the floor, that can't be used as
evidence against them in a civil court case
because it's considered to be a kind of
just-in-case action. Just in case they are
liable, you wouldn't want anyone else to get
hurt.
And in this situation, I think it's
analogous where, just in case there has been
abuse or there has been some violation, we
2411
want to get the child out of the home and we
want to get the parental consent. But in
getting the parental consent, we want to make
sure that in as timely a fashion, in as
seasonable a fashion as possible that the
parent gets to come back into court, that if
there is an allegation of abuse, it will be
filed.
So my question to you is, wouldn't
it be more foresighted, even if it's on a
Friday, to make the agency come into court
Monday or to make the agency come into court
as soon as possible so as, in the future, to
make sure that parents cooperate?
SENATOR SALAND: If by your
question you're asking me if I want to change
the dynamic with regard to these situations in
which a parent consents to the child being
removed, the answer is no, I don't want to do
that.
If you're saying by the example
that you gave do I want to extend by amount of
days the number of days which a -- the
requirement for the agency to respond in
court, again, the answer would be no.
2412
What I would like to do is avoid
what I would consider to be an anomaly which
permits a situation in which it's conceivable,
particularly in this world of three-day
weekends -- and we have a number of them, for
various and sundry holidays -- a person on a
Friday who agrees to a placement almost has
the impossibility of performance, because you
then have the weekend and the Monday holiday
in which to appear.
And as I said, I believe, a bit
earlier -- I don't think I said it to you, I
may have said it to Senator Breslin -- I
believe that time, certainly not elaborate
extensions of time, but I believe that time in
these situations can only inure to the benefit
of those who are genuinely interested in a
workable solution that avoids them having to
proceed in court.
The fact that there might be
another day or two days appended on because of
the way the calendar falls I don't think
prejudices anybody, and I think may in the
long run assist some people in working out
service-type solutions, working with the
2413
agency, as distinguished from finding
themselves in front of a court with some type
of an extended proceeding.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
SENATOR PATERSON: That is, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Saland continues to yield.
SENATOR PATERSON: And please let
the record note that I know that it's
Mr. President.
ACTING PRESIDENT MEIER: Okay.
SENATOR PATERSON: Senator, that
was why I asked you the question about the
additional time. What I infer from what
you're saying is that it's not that you
think -- and I would have perhaps been
persuaded if you thought a couple more days
would be helpful to try to work out an
2414
arrangement.
But if -- but what I'm to take is
that what you really meant was that a couple
of extra days is not going to change the
dynamic of the situation and is in a sense
ministerial?
SENATOR SALAND: Yeah, I -- I
think if it's going to change, it's going to
change to the benefit of the consenting parent
or parents. Because with the extension of
time, it may well be possible that there is
some type of a solution involving supportive
services that can be applied to avoid the need
to go through a full-blown neglect or abuse
hearing in Family Court.
I think time is an ally in these
situations, as long as it's not a protracted
period of time. Recognizing, of course, the
rights of the parents and their interest in
being reunited with their child.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: If Senator
Saland would continue to yield.
2415
ACTING PRESIDENT MEIER: Senator
Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Having not
known that you felt that way, Senator, my
premise was that what would be immediately
ameliorated by passing this legislation is the
fact that it would be very difficult for the
agency to come into court, if the action was
brought on a Friday afternoon and then they
have to come back in on Monday, and that
really, for relief to the work that the
institution does, that it would be a lot
easier if it's three court days, giving them
until Wednesday. Is that not correct?
SENATOR SALAND: I believe I
acknowledged that in my earlier remarks when I
made reference to, you know, the anomalous
situation of having a three-day weekend. I
don't know how many times a year that occurs,
but certainly for virtually every major
holiday you're going to wind up with a
2416
three-day weekend.
And what this attempts to do, I
think, is balance the rights of the child, the
interests of ensuring that the best interests
of the child are protected, and at the same
time recognizing the rights of consenting
parents.
SENATOR PATERSON: Thank you, Mr.
President. I don't know if I totally agree
with what Senator Saland is saying, because I
would think that to create the cooperation
that as quickly as the agency comes into court
with whatever finding or whatever they are
seeking would be the better.
But I tend to agree with Senator
Saland that the difference between a couple of
days is really rather ministerial.
And I'm going to resist the attempt
to ask him what he considers to be the apt
three-day weekends and why there aren't enough
of them. Like Good Joes Day, that might have
might have been a good three-day weekend.
But I'm not going to ask Senator
Saland about that, and I'm going to vote for
the bill. Thank you, Mr. President.
2417
ACTING PRESIDENT MEIER: Senator
Gentile.
SENATOR GENTILE: Yes, Mr.
President. If the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Saland, do you yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Senator, just
following up a little bit on Senator
Paterson's line of questioning, in the Penal
Law, or I should say in the Criminal Procedure
Law, the law is very strict about the amount
of time in which a defendant could be held
without any formal proceedings taking place.
And both in 170-70 and 180-80 of
the Criminal Procedure Law, there are very
strict requirements put upon prosecutors as to
presenting formal charges in each of those
cases. And certainly those -- that time
period covers weekends, covers holidays.
And in that criminal setting, in
2418
that criminal setting, prosecutors are
required to work around the time limit with
holidays, so to speak. If there was a Monday
holiday and the time ran out on a Sunday, a
prosecutor would have to present formal
charges by Friday, by the previous Friday, not
wait till the next Tuesday. So the law is
very strict on that in the State of New York.
I'm curious, Senator, since this is
a taking of liberty in another sense -- not in
a strictly criminal sense, but still in
another sense a taking of liberty -- why it is
that in this case we're actually adding days
and going around holidays rather than making
it as strict as the Criminal Procedure Law and
say that you have a certain amount of time to
bring formal charges, to do an investigation
and, if not, then the taking has to be undone,
so to speak.
SENATOR SALAND: I certainly,
with regard to your analysis of the CPL,
couldn't disagree with you. And you may want
to look at Article 3 of the Family Court Act
which deals with JD petitions, which treats
them more in the nature of the way which you
2419
feel that this should be done. Which
basically says 72 hours or the next court
date, whichever is sooner.
So this, however, Article 10, is
still in the nature of a civil proceeding.
Although in some instances it may smack of
something that sounds like a criminal charge,
if in fact there's a criminal charge, it's
going to be handled in a criminal court. This
is a civil proceeding.
So what we are doing here is again
trying to make this consistent with these
types of proceedings that are not
quasi-criminal, if I can refer to a JD
petition as being perhaps quasi or a little -
somewhere between the criminal law and
wherever else we'd like to define it. There,
there's a recognition of the very thing that
concerns you about the CPL, and that's totally
appropriate. I believe that's the way it
should be. And if it's a matter of a day, if
it's the next day, you get in the next day.
But this is more services-oriented.
The JD situation really doesn't start off that
way. Here we're talking more intervention,
2420
we're talking more types of either protective
services, the kinds of things that social
service agencies deliver, and we're not really
talking about things that sound in the
criminal law.
SENATOR GENTILE: If the Senator
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: I thank you for
that answer.
Just following up, even though it's
not a criminal proceeding, wouldn't you agree,
Senator, though, it's a quasi-taking of
someone's liberty -- the child, in this case,
and placing them outside the home? Even if it
may be for good reasons and in the end is the
right decision, nevertheless it's somewhat of
a quasi-taking of someone's liberty.
SENATOR SALAND: The -- what the
law, when you're dealing with the neglect and
2421
abuse section of the law, attempts to do is to
respond in the best interests of the child.
We've had it reinforced by the adoption of the
ASFA bill that we did, I think it was a year
ago this past -- I guess it would be two years
ago now this February, in which we recognize
that the interests of the child are what
drives our child protective system.
It's not in the nature of a taking,
in a criminal sense, of the child. It's
viewed -- and obviously the court makes the
final decision with regard to that taking -
as a means by which the child is being
protected in his or her best interests in the
situation in which there's a removal, at least
until such time as the court can determine
that the removal is appropriate.
If the court determines that the
removal is appropriate -- isn't appropriate,
it's the end of the ballgame. If the court
determines that the removal is appropriate,
you then proceed from there.
But it's a child-protective device.
And it's not -- insofar as the child is
concerned, there's nothing there that smacks
2422
of a crime. Whether in fact there are
criminal proceedings brought against whomever
the respondent may be is another story. But
again, those proceedings would not occur in
the Family Court. If they were going to occur
at all, they would occur in the appropriate
criminal court.
So I don't view the intervention on
the child's behalf as smacking of a criminal
proceeding.
SENATOR GENTILE: If the Senator
would continue to yield for -
ACTING PRESIDENT MEIER: Senator
Saland, do you yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Thank you, Mr.
President.
I stepped out, so that you may have
answered this. But it says here in the law
that if the -- under the current law, if the
child is not returned within three days,
taking out your addition of "court," if the
2423
child is not returned within three days, the
procedure required in Part 3 of this article
shall be applied.
I'm just curious as to what is the
procedure in that case as it stands today.
SENATOR SALAND: Senator, the
section that you referred to refers back to
Part 3, which I believe deals with the
emergency removals. And what it says is that
the court may, upon good cause shown -- I'm
sorry. The court may order extension only
upon good cause shown of up to three court
days from -- and my copy is cut off -- from
the child's removal.
That's an effort, I believe, to
harmonize that section with the emergency
removal section.
SENATOR GENTILE: So if the
Senator would yield for an additional
question.
ACTING PRESIDENT MEIER: Senator
Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
2424
sponsor yields.
SENATOR GENTILE: Through you,
Mr. President. So what you're saying is that
the law right now allows the petitioner to
make an application to the court for an
additional three days of the proceeding?
SENATOR SALAND: For an
additional three court days, upon application
for good cause shown.
Which obviously then, I would
think, would become more of an adversarial
situation than the one that's assumed by a
consent order.
SENATOR GENTILE: Okay. If the
Senator would continue to yield, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Saland, do you yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: I'm just
curious, then, Senator, would -- we're
speaking of three-day weekends, three-day
2425
holidays. Would this necessarily, Senator,
have to be a statewide-recognized holiday in
order for this provision to add an extra day
to the removal?
SENATOR SALAND: I would believe
that it would have to be an OCA-recognized -
Office of Court Administration-recognized
holiday.
I'm not aware of any of those that
are anything other than statewide-recognized
holidays. But I wouldn't want to say with
absolute certainty that there might not be
one.
SENATOR GENTILE: Through you,
Mr. President, if the Senator would
continue -
ACTING PRESIDENT MEIER: Senator
Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Through you,
Mr. President, I can think of at least one,
maybe two that are very local. For example,
2426
on June 6th, which is a Thursday, the people
of Brooklyn celebrate Brooklyn Day.
And my good colleague from Staten
Island in the Assembly, as Senator Marchi
knows, is now advocating that we create a
Staten Island Day, so that people can have the
day off and celebrate those days.
And indeed, in Brooklyn, the night
of June 5th is a celebration, because everyone
knows the next day is Brooklyn Day.
Now, in that situation, if we had a
proceeding in Brooklyn, would that add a day?
Would that be the recognized, Brooklyn Day,
under this?
SENATOR SALAND: Does OCA close
the courts on Brooklyn Day?
SENATOR GENTILE: Yes, they do.
SENATOR SALAND: Then I would
think it would -
SENATOR GENTILE: Then it would
be a recognized holiday. Okay, great. Thank
you, Senator.
SENATOR SALAND: You're welcome.
SENATOR GENTILE: On the bill,
Mr. President.
2427
ACTING PRESIDENT MEIER: Senator
Gentile, on the bill.
SENATOR GENTILE: I again join my
colleagues in thanking Senator Saland for his
thorough explanations and certainly his
willingness to review this legislation in all
its aspects.
I believe, in the questioning and
listening to the debate, Senator Saland has
convinced me of the difference between this
type of proceeding and the proceeding that I
questioned him about which involves more
criminal -- which is more criminal in nature.
Given that, and given the answers
that Senator Saland has so willingly provided
me and my colleagues here, I will vote in the
affirmative.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Mr.
President, just for the record, I was not in
the house when the vote was taken on the
deficiency budget bill, and I would ask for
unanimous consent to be recorded in the
2428
negative on that bill.
ACTING PRESIDENT MEIER: Without
objection, Senator Dollinger will be recorded
in the negative on Calendar Number 220.
SENATOR DOLLINGER: Yes. And,
Mr. President, could we call a quorum of the
house, please.
ACTING PRESIDENT MEIER: The
Secretary will call the roll.
SENATOR LARKIN: Mr. President,
will the Secretary please ring the bell.
ACTING PRESIDENT MEIER: The
Secretary will ring the bells.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Present.
THE SECRETARY: Senator Balboni.
(No response.)
THE SECRETARY: Senator Bonacic.
(No response.)
THE SECRETARY: Senator Breslin.
SENATOR BRESLIN: Present.
THE SECRETARY: Senator Brown.
(No response.)
THE SECRETARY: Senator Bruno.
(Senator Bruno was recorded as
2429
being present.)
THE SECRETARY: Senator Connor.
(Senator Connor was recorded as
being present.)
THE SECRETARY: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Here.
THE SECRETARY: Senator
Dollinger.
SENATOR DOLLINGER: Here.
THE SECRETARY: Senator Duane.
SENATOR DUANE: Here.
THE SECRETARY: Senator Espada.
SENATOR ESPADA: Here.
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Present.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Present.
THE SECRETARY: Senator Gentile.
SENATOR GENTILE: Here.
THE SECRETARY: Senator Gonzalez.
SENATOR GONZALEZ: Here.
THE SECRETARY: Senator Goodman.
SENATOR GOODMAN: Present.
2430
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Here.
THE SECRETARY: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Here.
THE SECRETARY: Senator Hevesi.
(No response.)
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Here.
THE SECRETARY: Senator Johnson.
SENATOR JOHNSON: Here.
THE SECRETARY: Senator Kruger.
(No response.)
THE SECRETARY: Senator Goodman.
SENATOR GOODMAN: Present.
THE SECRETARY: Senator Balboni.
SENATOR BALBONI: Here.
THE SECRETARY: Senator Kuhl.
SENATOR KUHL: Present.
THE SECRETARY: Senator Lachman.
SENATOR LACHMAN: Here.
THE SECRETARY: Senator Lack.
SENATOR LACK: Present.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Present.
2431
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Present.
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Present.
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Present.
THE SECRETARY: Senator Maltese.
(No response.)
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Present.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Present.
THE SECRETARY: Senator
Markowitz.
(No response.)
THE SECRETARY: Senator Maziarz.
(No response.)
THE SECRETARY: Senator McGee.
SENATOR McGEE: Present.
THE SECRETARY: Senator Meier.
SENATOR MEIER: Present.
THE SECRETARY: Senator Mendez.
(No response.)
THE SECRETARY: Senator
2432
Montgomery.
(No response.)
THE SECRETARY: Senator Morahan.
SENATOR MORAHAN: Present.
THE SECRETARY: Senator Nozzolio.
(No response.)
THE SECRETARY: Senator Onorato.
SENATOR ONORATO: Here.
ACTING PRESIDENT MEIER: A quorum
is present.
SENATOR SKELOS: Read the last
section.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2 -
ACTING PRESIDENT MEIER:
Senator -
SENATOR DOLLINGER: Mr.
President, would you recognize Senator
Schneiderman.
ACTING PRESIDENT MEIER:
Senator -- well, I'm capable of presiding, and
I see Senator Schneiderman.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
2433
Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: If I could just
have a clarification, is it Senator Paterson
that is going to handle the procedural matters
sitting in that chair, or is it going to be
Senator Dollinger jumping up on occasion as to
if somebody is being recognized or not being
recognized?
SENATOR DOLLINGER: Point of
order -
SENATOR SKELOS: I think it's
totally appropriate -
SENATOR DOLLINGER: Point of
order. I move to declare Senator Skelos out
of order. I mean, what does he have to add to
the debate? I believe Senator Schneiderman
has the floor.
ACTING PRESIDENT MEIER: One -
one second -- one second, Senator Dollinger.
Senator Skelos has the floor.
SENATOR SKELOS: Mr. President,
can I also point out the rules require a
Senator to be sitting in his seat when they're
2434
asking questions or debating a bill.
The last time I looked at the back
of that chair, it said "Senator Paterson" on
the back of it.
ACTING PRESIDENT MEIER: Your
point is well-taken, Senator Skelos.
SENATOR DOLLINGER: Does it say
"Senator Skelos" on the back of that chair,
Mr. President?
ACTING PRESIDENT MEIER: Senator
Dollinger -
SENATOR DOLLINGER: I believe it
says "Senator Bruno."
ACTING PRESIDENT MEIER: Senator
Dollinger, please. Senator -
SENATOR DOLLINGER: I'm ruled out
of order because I'm in the wrong chair and he
isn't.
ACTING PRESIDENT MEIER: Senator
Dollinger. He's the designee of the Majority
Leader, as you well know, under the Rules,
sir. You're out of order.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. If the sponsor would yield for
2435
a question.
ACTING PRESIDENT MEIER: Senator
Saland, do you yield for a question?
SENATOR SALAND: Yes, I do. Yes,
sir.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
It seems apparent from the
discussion here so far today that this
additional time in some instances may be in
the best interests of the child, and there's a
concern that in some instances it may not. It
may extend things for five or six days under a
long weekend situation.
In the other portions of this
chapter or this part of the law, there are a
whole variety of different factors and
circumstances taken into account when you're
removing a child without parental consent.
But this seems to impose a very rigid
standard. And my question is, why couldn't we
provide the court discretion to either grant
the additional days or not, depending on the
circumstances?
2436
I mean, there may be times when
it's in the interests of the child to have it
shorter, and it may not be. There's no reason
to require an absolute limit of three court
days.
SENATOR SALAND: First, if I may,
Mr. President, I just want you to be clear,
Senator. This does not add five or six days.
It may extend the period to as many as five or
six days, but it doesn't add five or six days.
My concern would be, and I suspect
that many folks would be discomforted -
particularly, I would think, a number of folks
on your side of the aisle -- were we to give
broad discretion to the judge to make those
decisions instead of defining some type of
parameters.
I think there would be a level of
discomfort when it came to having a child
removed even with consent and permitting the
court the discretion to make a decision as to
whether that child should continue for another
two or three days, depending upon how much
more time might be provided, or whether the
parent should in fact know that on a day
2437
certain they would know whether in fact the
proceeding was going to be discontinued and
the child returned or whether there were going
to be any further proceedings.
SENATOR SCHNEIDERMAN: Through
you, Mr. President, if the sponsor would
continue to yield.
ACTING PRESIDENT MEIER: Senator
Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
Is there no provision in the
current law for an additional extension of
time upon application for the current three
days?
SENATOR SALAND: I'm not sure if
there's a provision on consent, Senator.
SENATOR SCHNEIDERMAN: My
understanding is that upon application -- and
I may be wrong about this. It's not an area I
practice in. But my understanding is that
upon application, the three-day period as it
2438
exists can be extended.
And my concern is that that would
at least require some judicial review: Is
this the right amount of time, or should it be
extended for another three days. And I'm
just -- I'm wondering why we have to do it so
rigidly. It seems that we could set
parameters that would in effect keep the same
scrutiny by the court.
SENATOR SALAND: Senator, I
believe -- and it could be in the next
section, 1027, emergency removal does -- under
an emergency removal situation, the scenario
you describe can in fact occur, that there can
be an application for an extended period of
time. That's where there's been an
intervention without the consent of the
parents, and a removal.
SENATOR SCHNEIDERMAN: Right.
SENATOR SALAND: That requires an
application.
SENATOR SCHNEIDERMAN: So -- I'm
sorry, through you, Mr. President. So we're
not clear right now whether there is a
provision in situations where the parents
2439
consent for an extension on application?
SENATOR SALAND: The child would
either have to be returned or the court would
have to make a determination. Or the court
would have to make a determination.
SENATOR SCHNEIDERMAN: One last
question, through you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Saland, do you yield for a question?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: What would
be lost from this formulation if there was -
if the three court days were retained, as they
are in the statute, to ensure that in
circumstances where it is not in the interests
of the child they get returned as quickly as
possible, but that upon application for cause
shown, as operates throughout the rest of this
area of law, an extension for three additional
days or to make it three court days could be
granted? I'm not sure I understand what would
be lost.
2440
SENATOR SALAND: I'm not
exactly -- I understand your question, what
would be lost. But I'm not exactly sure what
preceded it to get me to what would be lost.
SENATOR SCHNEIDERMAN: Oh. I'm
just suggesting that it may be a better
solution to this problem, that addresses some
of these concerns that have been raised, to
retain the three days as they exist but to
allow, upon a showing -- and we can set the
standard for the showing, as we do throughout
the rest of this section and the following
sections -- upon a showing that additional
days would be in the best interests of the
child, that can be granted.
So that in situations where it was
not in the best interests of the child to have
additional time, you wouldn't automatically
have the additional days.
SENATOR SALAND: Well, what
you're describing is what exists in the
removal-without-consent section where there's
been an emergency removal. That is clearly a
more adversarial situation and one in which
there might be considerable concern about the
2441
well-being of the child, and the emergency
removal may require additional time in order
to perfect papers before the court and you're
given the opportunity to do that.
This is a nonconsent situation. By
its very nature, you would hope it wouldn't be
as adversarial. Although obviously once the
agency has presented itself to the parents and
said, We want to remove this child, do you
want to consent, or, Your choice is -
whatever the choice may be -- it may be less
than an ideal world for the parents.
But nonetheless, what the consent
situation attempts to do is to avoid, I
believe as best as possible, the idea of this
immediately confrontational adversarial
situation. Hoping that there is some way by
which the agency, which is charged with acting
in the best interests of the child -- and
that's obviously a factual question. We may
agree or disagree as to what constitutes the
best interests -- but nonetheless which is
charged with acting in the best interests of
the child, arranges for a consent.
And as I said earlier, and I don't
2442
recall to whom I said it, I don't believe that
there's any prejudice to anybody that occurs,
particularly in the situation in which you
have a Friday consent and a Monday holiday and
you don't have the ability, in effect, to be
in court at the end of the three days.
But again, as I said earlier -- and
I'm not sure, Senator, if you were in the
chamber or not -- I believe that the
additional period of time can only, and
certainly in the vast majority of cases, inure
to the benefit of the child and to the family.
Because if a disposition can be
arranged in which services are provided
instead of the adversarial situation that
results with the filing of the petition and
the perfecting of the petition and the seeking
of the order of disposition, then I think the
system has worked in a way that works best for
the child, by definition best for the parents,
and spares the court the need -- a very busy
court the need to go through some additional
proceedings.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, that very
2443
responsive answer, which I appreciate,
actually gave rise to another question. I
don't mean to suggest that good answers get
more questions. But if the sponsor will yield
for an additional question.
ACTING PRESIDENT MEIER: Senator
Saland, do you yield?
SENATOR SALAND: Certainly, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
The issue that that raises is one
that I think all of those of us who deal with
judicial proceedings are sensitive to. The
way the statute is drafted now, it really
creates a sort of a disincentive to the agency
to act and take a kid away from their parents
on a Friday, if you want to put it that way.
The circumstances that I'm
concerned about, and the reason that I think
that something that was a little more flexible
would be called for, is a situation that is
unfortunately not unknown in this state, where
parents consent but it was really not a
2444
consent -- you know, a police officer said,
I'm going to arrest you unless you give the
child up, or some circumstance like that
arises. The next day, they say: Oh, my God,
I got to -- want to get my child back.
And the difficulty with this is
that if that happens then on a Saturday, a
Sunday, a holiday Monday, then the Tuesday and
the Wednesday, in every circumstance the
parent is locked into the additional time.
And I understand your point. I
think that in some circumstances, though, the
extra time may not be a benefit and that it
would probably be a preferable course to make
it somewhat more flexible or arrange for an
application for it to be -- this time to be
reduced.
And I'm not sure, after all of
that, that I understand why that's not
possible. I am concerned about the removal of
the disincentive to take a kid away on a
Friday.
SENATOR SALAND: I suspect that
if an agency was compelled to act on a Friday,
given the alternatives of seeking a consent
2445
arrangement, if that Friday was followed by a
Monday holiday, what they probably would do
would be to err on the side of caution and to
seek an emergency removal.
I can only share with you my
experience when I handled these cases for my
county, which was a rather long time ago, my
general admonition to the CPS workers was
where you're in an emergency situation and
you're in doubt, if you don't get a consent,
then remove and seek an emergency application.
Because the last thing I want is to find the
following morning there's a child lying in a
pool of blood at the bottom of a stairwell.
That's the example I generally gave when I did
my tutorials, for lack of any other term, to
the CPS workers.
And I suspect that they will err on
the side of conservativism -- not in a
political sense, in terms of protecting the
child.
So -- and I still believe that
where you can get a consent order, it's the
best -- a consent arrangement, it's the better
way to go for all parties concerned, both the
2446
child and the parents.
SENATOR SCHNEIDERMAN: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I commend
Senator Saland for his effort to resolve this
problem.
I'm still a little bit
uncomfortable with the rigidity of the
procedure. I think that, you know, in the
counties that I represent, the Family Court
may not function quite as smoothly as perhaps
the lovely counties represented by Senator
Saland. And my concern is that in the City of
New York, we have often, unfortunately,
something that is really a very abusive
assembly-line procedure where there are
parents who give consent and then immediately
say "I really didn't want to give consent."
And my concern is in those
situations the extra time may work against the
interests of the family and the interests of
child, which obviously are the basis for this
bill. It's a difficult area, and I hope -- I
2447
guess, given the Assembly's record on this, we
may have a chance to make some adjustments
again.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Read the
last section.
SENATOR DOLLINGER: Mr.
President.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: I rise with a
point of order with respect to the instruction
to the clerk to read the last section. I call
the President's attention to Rule IX, Section
3, Section (c), which describes the method for
ending debate.
I would simply ask that the house
comply with the rules adopted by the Majority
of this house and repeat the rule that's set
forth there with respect to the close of
debate.
ACTING PRESIDENT MEIER: Senator,
no other Senator stood and asked to be
recognized, and therefore the chair asked the
Secretary to read the last section.
2448
Senator Dollinger.
SENATOR DOLLINGER: With all due
respect, Mr. President, the section approved
by the Majority of this house specifically
says when it appears that no Senator desires
to be heard further, the presiding officer
shall put the question: Does any Senator
desire to be heard further?
I believe, Mr. President, prior to
giving the instructions to the clerk to read
the last section, it's appropriate for the
Senate's presiding officer to ask that
question. Since it wasn't asked, I don't
believe that instructions to read the last
section are in order under the rules approved
by the Majority of this house.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: It has always
been a custom of this house that when the
presiding officer does not see another
person -- another Senator standing or seeking
to be recognized, that we ask that the last
section be read.
2449
In no event will the Senate
Majority -- let me finish, Senator
Dollinger -- deny anybody the opportunity to
be heard prior to a bill being brought to a
vote by just not recognizing them. If time
has elapsed on a bill for debate, we may go to
a vote. If there's a calling of the vote, we
may proceed. But certainly any Senator that
wishes to be recognized will be recognized.
If it would make Senator Dollinger
feel better, then why don't we just say, each
time, does any other Senator wish to be heard.
SENATOR DOLLINGER: Through you,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Mr.
President, I would ask that -- I would move
that Senator Skelos's comments be stricken
from the record. He had no place -- at least
as I understand the rules, since this is a
point of order that needs a ruling by the
house before there's any debate on the ruling.
With all due respect, Senator Skelos's
comments weren't in order. I didn't write
2450
these rules; he did. I'm just asking this
body to abide by the rules.
The point of order is raised; it
needs -- and I've been told this a number of
times by a number of presiding officers, I
believe including the current Senator in the
chair -- that this is a request for a point of
order. If the point of order is granted, then
the house will conform consistent with the
instructions of the chair. If it is not
granted, then it is subject to an appeal of
the ruling of the chair, at which time debate
over the appropriate ruling is appropriate,
including Senator Skelos's comments.
I again reiterate, Mr. President,
whatever custom may be in this house, these
rules specifically provide for a protocol for
ending debate. I would suggest whatever that
custom was when you passed these rules, you
overruled that custom, because you set a new
set of protocols for how we're going to handle
this house.
I sit here, Mr. President, simply
asking that the Majority's rules that it
adopted be applied. That's all, Mr.
2451
President. I would ask that my point of order
be sustained and that the house conform to the
rules.
ACTING PRESIDENT MEIER: Senator
Dollinger, it's the opinion of the chair that
the custom of this house has been that members
wishing to be heard are recognized. Indeed,
this presiding officer and others have
interrupted roll calls to permit other people.
If it will make you -- it -- you
know, we will ask on this bill does any other
Senator wish to be heard on the bill.
SENATOR DOLLINGER: Thank you.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Mr. President, I
wish to be heard on the point of order.
ACTING PRESIDENT MEIER: It's
already been ruled on, Senator. Unless you
wish to appeal the ruling of the chair.
SENATOR DUANE: No.
ACTING PRESIDENT MEIER: Does any
other Senator wish to be heard on the bill?
Read the last section.
THE SECRETARY: Section 2. This
2452
act shall take effect on the 90th day.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Duane, to explain his vote.
SENATOR DUANE: Thank you, Mr.
President. I understand from the sponsor's
discussion what the genesis of this bill had
been. However, I look at it in a different
way.
First of all, I don't think that
this is such a major problem now that it needs
to be addressed. I can't imagine that this
comes up that many times a year. I didn't get
any correspondence or memos from any advocates
or anyone in the Family Court or anyone, for
that matter, on this. So I'm wondering why it
is that this bill even came before us today.
But I'm going to say that the thing
that most concerns me is that despite what the
sponsor said the reasons were -- and I take
him at his word on it. But I don't think he
considered what this really looks like, which
is that we are sacrificing the needs of
2453
children so that the Family Court can have a
three-day weekend and enjoy a barbecue or
whatever it is.
It seems to me that the needs of a
child should take precedence over the weekend
plans of people who work in the Family Court
system. For a child who's involved in a
Family Court procedure, there probably won't
be any joy for an extended weekend. Chances
are there won't be any holiday barbecue or
long weekend at a lovely inn in the country or
anything like that. I think what this means
is that that child will just have to wait
longer for the disposition of what would
happen to them.
And so while I sympathize for the
difficulty of the proceeding going forward, I
just think that it's more important that we
take into account the needs of a child who
probably won't have a nice long weekend. You
know, we say to each other when we have a long
weekend coming up, Have a nice holiday
weekend. But unfortunately, there won't be a
long holiday weekend for children who are held
up because of the delay in these court
2454
proceedings.
And so again, I want to reiterate
that I understand what the intentions of the
bill are, what genesis of the bill is, but I
think it's unfortunate that we would sacrifice
the needs of a child in this system so that
the people who are getting a salary to be in
the Family Court get to enjoy their barbecue
or long weekend at some country inn.
Thank you.
ACTING PRESIDENT MEIER: Senator
Duane, how do you vote, sir?
SENATOR DUANE: No.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 59. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President, I
move we adjourn until Tuesday, March 20th, at
11:00 a.m.
2455
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Tuesday, March 20th, at 11:00 a.m.
(Whereupon, at 5:45 p.m., the
Senate adjourned.)