Regular Session - July 17, 2001
11061
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
July 17, 2001
1:34 p.m.
REGULAR SESSION
SENATOR RAYMOND A. MEIER, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT MEIER: The
Senate will come to order. I ask everyone to
take your place in the chamber.
May I ask everyone to please rise
and repeat with me the Pledge of Allegiance to
the Flag.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT MEIER: In the
absence of clergy, may we bow our heads in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT MEIER: Reading
of the Journal.
THE SECRETARY: In Senate,
Monday, July 16, the Senate met pursuant to
adjournment. The Journal of Sunday, July 15,
was read and approved. On motion, Senate
adjourned.
ACTING PRESIDENT MEIER: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
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Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Mr. President. On behalf of Senator Libous, I
wish to call Senate Print Number 5492,
recalled from the Assembly, which is now at
the desk.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: Calendar Number
1219, by Senator Libous, Senate Print 5492, an
act authorizing the Commissioner of
Transportation.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: I now move to
reconsider the vote by which the bill was
passed.
ACTING PRESIDENT MEIER: Call the
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roll on reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
SENATOR FUSCHILLO: I now move to
recommit the bill to the Committee on Rules.
ACTING PRESIDENT MEIER: So
ordered.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Mr. President.
On behalf of Senator Kuhl, I wish
to call up Senate Print Number 4154, recalled
from the Assembly, which is now at the desk.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: Calendar Number
880, by Senator Kuhl, Senate Print 4154, an
act to amend the Education Law.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: I now move to
reconsider the vote by which the bill was
passed.
ACTING PRESIDENT MEIER: Call the
roll on reconsideration.
11065
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: I now move to
recommit the bill to the Committee on Rules.
ACTING PRESIDENT MEIER: So
ordered.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Mr. President.
On behalf of Senator Leibell, I
wish to call up Senate Print Number 4943,
recalled from the Assembly, which is now at
the desk.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: Calendar Number
1091, by Senator Leibell, Senate Print 4943,
an act to authorize the Town of Putnam Valley.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: I now move to
reconsider the vote by which the bill was
passed.
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ACTING PRESIDENT MEIER: Call the
roll on reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 45.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: I now move to
recommit the bill to the Committee on Rules.
ACTING PRESIDENT MEIER: So
ordered.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Mr. President.
And on behalf of Senator Bruno, I
move that the Senate not concur on said
amendments and move to reconsider the vote by
which the bill was passed.
ACTING PRESIDENT MEIER: Call the
roll on reconsideration.
Can we have some order in the
chamber, please.
The Secretary will read the title.
THE SECRETARY: Calendar Number
1362, by the Senate Committee on Rules, Senate
Print 5667B, an act to amend the Election Law.
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ACTING PRESIDENT MEIER: Call the
roll on reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 45.
ACTING PRESIDENT MEIER: Senator
Fuschillo.
SENATOR FUSCHILLO: I further
move that said bill be recommitted to the
Committee on Rules.
ACTING PRESIDENT MEIER: So
ordered.
SENATOR FUSCHILLO: Thank you.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Mr. President,
there will be an immediate meeting of the
Finance Committee in the Majority Conference
Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Finance Committee in
the Majority Conference Room.
Senator Skelos.
SENATOR SKELOS: Mr. President,
may we please adopt the Resolution Calendar,
with the exception of Resolution 2744.
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ACTING PRESIDENT MEIER: All
those in favor of adopting the Resolution
Calendar, with the exception of Resolution
2744, signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
Resolution Calendar, with exception, is
adopted.
Senator Skelos.
SENATOR SKELOS: Mr. President,
we'll stand at ease pending the return of the
report of the Finance Committee.
ACTING PRESIDENT MEIER: The
Senate will stand at ease pending the report
of the Finance Committee.
(Whereupon, the Senate stood at
ease at 1:39 p.m.)
(Whereupon, the Senate reconvened
at 1:46 p.m.)
ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Mr. President,
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can we at this time return to the reports of
standing committees. I believe there's a
report of the Finance Committee at the desk.
I ask that it be read at this time.
ACTING PRESIDENT MEIER: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Stafford,
from the Committee on Finance, reports the
following bill direct to third reading:
Senate Print 5704, by the Senate Committee on
Rules, an act making appropriations for the
support of government.
ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Mr. President,
can we at this time take up Senate 5704.
ACTING PRESIDENT MEIER: Without
objection, the bill is reported to third
reading.
The Secretary will now read.
THE SECRETARY: Calendar Number
1404, by the Senate Committee on Rules, Senate
Print 5704, an act making appropriations for
the support of government.
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ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Mr. President, is
there a message of necessity and appropriation
at the desk?
ACTING PRESIDENT MEIER: There is
a message at the desk.
SENATOR BRUNO: Move to accept
the message.
ACTING PRESIDENT MEIER: All
those in favor of accepting the message of
appropriation and necessity signify by saying
aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
message is accepted. The bill is before the
house.
Read the last section.
THE SECRETARY: Section 51. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
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(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Mr. President, by
way of explaining my vote and, of course, the
appropriation bill that's before us, this is
what we in this house have been voting on as
an emergency appropriation bill.
What is different about this one
versus the last couple we have done is that
this is for approximately one week. It is for
$2.1 billion. We will have passed, with the
passage of this -- and I see by the show of
hands that we have the support to pass this,
so that we can keep the state funding in sort
of this emergency mode and not create any pain
for all the agencies that deliver the services
of the state to the people of this state.
This will make $31 billion of our budget that
we will have passed in this year in this
fashion.
Now, the reason why we're here, all
of us, in the middle of July doing an
emergency appropriation bill is because we
could not publicly negotiate and get a budget
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done for the people of this state.
Now, why can't we get a budget done
for the people of this state? Why are we 108
days late in getting a budget done? Why are
we 18 days away from setting an infamous
record for late budgets in this state? Why?
Because you on the left side of the aisle -
my left -- and the Assembly Democrats refuse
to get together in a public forum to negotiate
a budget. You have refused.
We have met eight weeks in a row
with our general conference committee trying
to get the Democrat representation to the
table in a public forum, that we all agreed,
we agreed three years ago that this would be
the way we would negotiate a public budget, do
it through conference committees.
Let me just review. We have named
all of our members to the conference
committees, "we" being the Republicans.
Senator Connor, to his credit, has named his
members to the conference committees in
preparation to convene those committees to
negotiate a budget. The only members not
named are the Democrats in the majority in the
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Assembly.
So why am I here talking in a loud
voice? Because I want you, if you will, I'm
asking you to talk to your colleagues in the
other house. Suggest to them that we
understand that we have legitimate differences
of opinion on how much is available to spend.
They have their numbers in their resolution;
we have ours. They passed theirs, we passed
ours. The Governor submitted the budget in
the middle of January, two weeks earlier than
he should constitutionally. And still we're
108 days late. 108.
And what's worse, there's no relief
in sight. We're prepared to stay tonight,
we're prepared to stay tomorrow, we're
prepared to stay the next day if we can get
the conference committees convened and talk
about our differences. That's what
legislation is about: talking, negotiating,
compromising, reaching a solution. What's
wrong with that? You don't have to answer.
But I have feeling somebody will.
There is nothing wrong with that.
It's the way we govern. But we cannot in the
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Senate -- and I thank you for your support of
these emergency bills. You're doing the
prudent, realistic thing, keeping government
functioning. But it's not the answer.
Schools are facing deadlines. In August
they're going to be submitting their budget -
their budget bills will come up in August.
They're going to be sending out bills to your
constituents and to mine. And how will they
bill them? They'll bill them by guessing. By
guessing, by estimating what they think we
will end up providing in school aid.
The Governor's got $382 million in
school aid increase over last year. We have
$925 million. The Assembly has $1.7 billion
this year, $1.7 billion next year. Not going
to happen. The money is not there; it's not
going to happen.
So, Mr. President, it's important
that we do this emergency bill. The Article 7
language will follow. It's important to keep
government functioning. We all recognize
that. So I thank you for your support.
But I again am asking you, the
Democrats who are representative of the people
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in your districts, to talk to your colleagues
in the Assembly and ask them to name their
conference committee members and to get
engaged in the general conference committee to
see if we can't publicly resolve our
differences and do a budget for the people of
this state. So the schools that you
represent, the young people that get educated,
their parents will know what the expectation
is in terms of state aid, the most important
thing that will be happening.
Hospitals, nursing homes, road
contractors, bridge contractors, the MTA are
all waiting to see what the cash flow will be.
It's up to us. It's our move.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman, to explain his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I don't think anyone would argue
that Senator Bruno is not one of the parties
who is prepared to negotiate and prepared to
get moving on this. However, I would
respectfully suggest that if we're not playing
11076
games of ego here, the Assembly has made it
clear they will come to the table and
negotiate if the third party also does,
Governor Pataki.
And as everyone here knows, the use
of the Governor's veto has been and will
again, I guess, be the subject of litigation
as to how he's exercised it and whether it was
proper.
We're getting this late, why not
get the Governor to the table also? I mean,
if that's what it takes to get the Assembly to
the table, why not get the Governor to the
table? He's not here. I don't know where he
is, I don't know who he's meeting with. It's
an abdication of his responsibility.
And I am sure that while our
influence with our colleagues in the Assembly
may not be great enough to get them to do what
we want, I'm sure that Senator Bruno and our
Republican colleagues here could probably
persuade the Governor to do something.
Although, you know, certainly I am prepared to
stand corrected on that, since he seems to
spend more of his time with Democrats these
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days than Republicans.
But it's clear we're not going to
get going unless he comes to the table, or at
least comes to Albany and makes an effort.
We're this late; let's not play an ego game,
let's get all three parties here.
I'm going to vote no. I think we
should be here all the time. A lot of people
have said to me, as we've been talking in the
last few hours, "We're not moving because
people don't care." Well, we have to set an
example. And if we don't act like we care in
the Legislature, then we can't expect anyone
else to care. We should stay here. We should
get to the Governor to the table. We should
get this done.
I'm voting no. I think enough with
the extenders. There are a lot of people
paying a price, a lot of programs paying a
price for this process. And I think it's up
to the Governor to step up to the plate and
get things moving.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman will be recorded in the negative.
11078
Senator Mendez, to explain her
vote.
SENATOR MENDEZ: Thank you, Mr.
President.
I just have to rise up and express
again, like many of us here do feel, our
frustration because there is no budget in
place. However, it is my understanding -- and
if I am wrong, I would like people to say to
me, "You are wrong, Olga," and that's fine.
I think that in terms of the
process of budget making, the Legislature is
supposed to be the mechanism through which
budget is worked. The Governor presents it,
then the Assembly and the Senate work on the
budget proposal, on the Governor's proposal,
and then we send it back to him. And he has
the option, a constitutional right either to
veto or not to veto. And if he does veto,
then it is our right in the Legislature to
override his veto.
So in terms of what people learn in
political science in the first course, I think
that there is something wrong in here.
Because we are being told that if the Governor
11079
doesn't come to the table, then there is no
budget.
So I must tell you, Mr. President,
I've been serving here for 23 years. And the
first time, 17 years ago, when I realized that
the constitution expects all of us to have a
budget in place on April the 1st and I saw how
that constitutional mandate was thrown out the
window, I was really shocked.
So I think that the Assembly and
the Senate, in my mind, should come together
and discuss their differences and arrive at a
compromise, send it to the Governor. If he
doesn't like it, veto it, and then we can
always override. So I don't see that this is
an overwhelming problem. I think that that's
what we should proceed to do. Otherwise,
we're going to be here to the end of the year
just with budget resolutions to ensure that
government keeps on its pace.
And I think it's a disservice to
all of our constituents out there. It is a
disservice to the school districts that we all
want to favor. It's a disservice to the kids
that we want them to have their school budget
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in place so they could be there and learn.
So what I'm saying is I don't
believe in rationalizations. If the Governor
doesn't want to come to the table, let it be.
But then it is the responsibility of the
Assembly and the Senate to get together and
work it out.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Mendez, how do you vote?
SENATOR MENDEZ: Yes.
ACTING PRESIDENT MEIER: Senator
Mendez will be recorded in the affirmative.
Senator Dollinger, to explain his
vote.
SENATOR DOLLINGER: Thank you,
Mr. President.
I've been doing some reading and
watching this summer in my time away. I went
to a couple of Shakespearian plays. I would
suggest that the fifth act has started, the
final scene has started, and it's time for the
simple Shakespearian formula to take place
right here in New York.
You know what happens in the
11081
Shakespearian comedies. All the lovers wander
around in the dark, in the night, and they
can't seem to find one another. And then in
the last scene, up shows the duke, Prospero -
pick your character out of Shakespeare -- up
shows the final deus ex machina character, the
person with all the power, the person who you
could say is elected by everyone. He or she
shows up, casts their magic wand, and the play
is over, everything has been brought together.
I would suggest that the solution,
Senator Bruno, to this midsummer's nightmare
is to simply ask the Governor of this state,
who not only represents you, Senator Bruno,
but me as well, and all the people that I
represent -- have him come in. The final
curtain has gone up. We're ready to play the
final act, but we're all waiting for that one
character who can make it happen.
I tell you, Governor Pataki, your
love's labor will not be lost and all will be
well that ends well. But come to the table
and do this budget.
It's his absence, Senator Bruno,
that has brought this to the final act without
11082
a conclusion. Bring him to the table and we
will have a solution.
ACTING PRESIDENT MEIER: Senator
Dollinger doth protest and voteth in the
negative.
(Laughter.)
ACTING PRESIDENT MEIER: Any
other Senator wish to explain his or her vote?
Could we see the negatives again by
a show of hands so the Secretary can have all
of them.
THE SECRETARY: Those recorded in
the negative on Calendar Number 1404 are
Senators Brown, Connor, Dollinger, Duane,
Hassell-Thompson, Montgomery, Oppenheimer,
Paterson, Schneiderman, A. Smith, and
Stavisky. Ayes, 46. Nays, 11.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we have an immediate meeting of the Rules
Committee in the Majority Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Rules Committee in
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the Majority Conference Room.
The Senate will come to order.
Can I ask that people who are
conducting conversations in the back of the
room to either stop them or take them outside,
please.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
committees, I believe there's a report of the
Rules Committee at the desk. I ask that it be
read at this time.
ACTING PRESIDENT MEIER: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bill direct to third reading:
Senate Print 3148B, by Senator Saland, an act
to amend the Education Law.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Move to accept
the report of the Rules Committee.
ACTING PRESIDENT MEIER: All
11084
those in favor of accepting the report of the
Rules Committee signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Those
opposed, nay.
(No response.)
ACTING PRESIDENT MEIER: The
report is accepted.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could take up that bill at this time.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: In relation to
Calendar Number 223, Senator Saland moves to
discharge, from the Committee on Rules,
Assembly Bill Number 8898A and substitute it
for the identical Senate Bill Number 3148B,
Third Reading Calendar 223.
ACTING PRESIDENT MEIER:
Substitution ordered.
The Secretary will read.
THE SECRETARY: Calendar Number
223, by the Assembly Committee on Rules,
Assembly Print Number 8898A, an act to amend
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the Education Law.
ACTING PRESIDENT MEIER: Read the
last section.
SENATOR HEVESI: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Saland, an explanation has been requested by
Senator Hevesi.
SENATOR SALAND: Thank you, Mr.
President.
Mr. President, this bill is an
agreed-upon bill, which certainly would be
indicated by the substitution that we just
had. What the bill does is it attempts to
deal with the issue of conditional hiring.
As you will recall, last year we
passed legislation which was signed into law
which required the fingerprinting of school
employees, prospective school employees. That
bill was effective July 1 of this year.
We were advised, it was certainly
brought to our attention that there were
certain mechanical difficulties that schools
were going to undergo in terms of dealing with
both summer schools and filling positions for
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September of this coming year. In order to
accommodate that problem, we created a
mechanism of conditional employment or
conditional screenings.
What this bill would do would be to
effectively say that all prospective employees
who are candidates for conditional employees
will undergo a certain process. Each school
district will have to make a determination:
(a) do they want to hire conditional
employees. It may well be possible that in
some smaller, stable districts there may be
little turnover and perhaps won't be any need
for conditional employees.
If they decide that they want to
hire conditional employees, what they will
then have to do is establish a policy, a
policy that deals with the safety of students
who are in the presence of conditional
employees. Again, that's a discretionary
decision for each school district to make.
Once they make that decision, each
prospective or proposed conditional employee
would have to complete an affidavit in which
he or she indicated that they had no criminal
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record or, if in fact they did, what that
criminal record consisted of. Not only would
the execution of a false statement in
affidavit form be the filing of a false
statement which would result in a criminal
charge, but it would also serve as grounds for
immediate dismissal.
Secondly, each of those employees
would have to be fingerprinted. Upon being
fingerprinted, taking it to that stage,
there's effectively a divergence. A
conditional employee who is not considered to
be an emergency employee would have to wait
for clearance from the State Education
Department. That clearance would reasonably
be expected to occur in some 10 to 14 days.
A person who is deemed to be an
emergency employee -- and that is a
determination made by a school board; the
language is set out in the bill -- that person
again would have provided an affidavit, would
have been fingerprinted. If the school board
made a determination that it was absolutely
necessary that in fact this was essential to
provide a compliance with law to provide for
11088
the safety or health of students and staff,
that school board could elect to hire on an
emergency basis.
And in doing that, that emergency
employee would immediately begin to serve in
whatever capacity he or she was hired in.
That service would be available or could
continue for 20 business days, after which
they could no longer serve in that particular
capacity or no longer serve.
The difficulty in providing
expedited review for purposes of conditional
hiring is not necessarily within the State of
New York. Our DCJS, I'm told, can run these
checks in as little as four days. The
turnaround through SED, as I said earlier,
probably should take no more than 10 to 14
days. The problem is the FBI clearance. The
FBI clearance would take, we're told, anywhere
from 30 to 45 days and perhaps could even be
longer.
So this is an attempt to arrive at
an accommodation, an accommodation between the
policy that we established here in this
Legislature last year when we said that it was
11089
critically important that school employees be
fingerprinted, fingerprinted so we could
determine whether in fact they had criminal
records that made them inappropriate
candidates to be working with schoolchildren,
and recognition of the fact that, particularly
in year one of the effective date of this
bill, that school districts could be caught
short in terms of filling slots, putting
people into positions necessary to provide the
services that one would reasonably expect,
whether they be educational services or
support or maintenance services.
We believe we've struck that medium
here and provided the mechanism for those
school districts that do wish to hire
conditionally and in a fashion that attends to
both the question of continued security for
children and at the same time provides the
ability of school districts to continue to do
what they're supposed to do, which is to
provide an educational environment for our
young people.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
11090
Hevesi.
SENATOR HEVESI: Thank you, Mr.
President. Would the sponsor please yield?
ACTING PRESIDENT MEIER: Senator
Saland, do you yield for a question?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HEVESI: Thank you, Mr.
President.
We had a fairly lengthy debate
about this issue a few weeks back. I'm not
going to repeat the specifics of that
discussion. But I do have a question if you
could enlighten us as to what the specific
differences are between the legislation that's
before us right now and the specific bill
which we debated some weeks ago.
SENATOR SALAND: Primarily -- and
unfortunately, I don't have the other bill
with me -- but primarily I think it would be
safe to say that the use of some of the time
limits that are contained in this legislation
would be the principal differences.
11091
And one other thing, the definition
of emergency. The definition of emergency for
purposes of emergency hiring certainly is far
more substantial in terms of detail than was
the prior emergency hiring language.
SENATOR HEVESI: Mr. President,
would the sponsor continue to yield?
ACTING PRESIDENT MEIER: Senator
Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
SENATOR HEVESI: The 20-day limit
on the emergency category, that is new also;
is that the case?
SENATOR SALAND: I believe that
that is one of at least two specified time
periods. And I believe the other one, there's
a 15-day time period as well for the
commissioner of the State Education Department
to do a clearance.
SENATOR HEVESI: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Hevesi, on the bill.
SENATOR HEVESI: Thank you, Mr.
11092
President. I thank the sponsor for his
patience and a very thorough explanation.
This is, I believe, the third time
we are seeing legislation on this floor to
address this issue. And I guess I'm gratified
to say that each time, this legislation gets
better. It gets much more restrictive in
scope and, by my standards and my assessment,
it much better protects the children in
schools in New York State, which is the
purpose.
But I'm against this bill, as I was
against the bill that we did a few weeks ago,
because I have the luxury of taking a position
on this that under absolutely no
circumstances -- none, no circumstances -
should there ever be an individual in a school
system in New York State who has direct
contact with children which is unsupervised
contact if that individual has not undergone a
criminal background check, including
fingerprints. That is an ironclad position
irrespective of the difficulties that any one
particular school district may have, hiring
difficulties or what have you.
11093
And I would point out that none of
Senator Saland's bills -- and they're
carefully crafted bills, and I appreciate his
work on them -- none of them include the City
of New York, and I'm glad they don't. But I
just want to point out, New York City has the
most acute overcrowding problem of any
district in New York State. And we wouldn't
even think about doing this, allowing for this
emergency exemption for conditional hires in
New York City, primarily because the very
notion of it would be ludicrous on its face.
And I'll use the anecdotal evidence
that we know that in New York City, one out of
every five applicants for a position in the
school system has a criminal background.
Okay? Twenty percent. Which is much higher
than anywhere else. In New Jersey it's about
5 percent. I think in the State of Washington
it's about 4.5 to 5 percent.
But 20 percent of all applicants in
New York City for positions in the school
system are later rejected because they showed
up -- by the way, what they did was they
certified, as this legislation would mandate
11094
for all the prospective hirees, it mandates
that they sign a form saying that they don't
have a criminal record. Well, every single
one of those 20 percent in New York City who
were ultimately rejected because they had a
criminal background also signed that form,
which is currently mandated in law. So we
don't have the protection.
And the last reason why I'm against
this is if -- I would consider supporting this
if we don't leave it up to individual school
districts to adopt their own policies to
safeguard students if they choose the exercise
the rights that we give them in this bill to
hire people without having gone through the
entire criminal background process. But what
we're doing -- and, consequentially, if we
also not only mandate what the process is but
mandate that that process provides for direct
supervision by another employee for that
20-day period or however long it is when the
person who has not been cleared is in a
classroom with a child.
Not only do we not do that, we give
the individual districts the policy discretion
11095
to come up with their own way of going about
protecting the kids. And if you think or
conceive that these districts are going to go
the fullest step -- the fullest step, I think
we all agree, would be for anyone hired under
emergency conditions like this to be directly
supervised by somebody else -- it's
counterintuitive.
And it's counterintuitive because
the school districts who would need the
emergency hirees, those are the school
districts who have the most acute shortage of
professional education personnel, so they
would be the least likely to come up with a
policy that says to SED, If you let us hire
somebody without the background check, we'll
provide somebody else in the classroom to
supervise. It's not going to happen. It's
flat out not going to happen. So I'm against
this.
And let me just, you know, caution
everybody here. If we do this today -- and I
understand there are needs that school
districts have, and it's very pressing. And I
said in the last debate that I would even be
11096
willing to have students sit in a classroom
and not learn, as opposed to be in a classroom
potentially with somebody with a criminal
background.
Let me say this. If we do this
here today -- and I'm not trying to be
dramatic, but if we do it here today, I can
almost guarantee that at some point some
school district is going to hire an emergency
employee without having done a criminal
background check on them, and then this
individual with a criminal background who
otherwise would not be permitted in a
classroom with a child is going to be in a
classroom with a child and one of those
individuals at some point is going to do
something bad. Okay? Hopefully that will not
be of serious physical harm to another
student, but it could be.
So not only for the moral
imperative of protecting children, but just
from your own perspectives as state senators,
if that crisis occurred in your school
district, if that happens in one of the
districts that you represent, forgetting the
11097
fact that you will feel terrible that this was
able to happen, the press is going to come to
your door and say to you you voted in favor of
a piece of legislation that provided a
loophole that allowed a teacher to come into a
classroom who had not been criminally
background checked and that teacher then went
and perpetrated a crime on a student. What
will be your response to that?
Your argument today that we need it
because we have an overcrowding problem, we
need to hire people quickly, will seem just a
silly argument to make when the press is
beating down your door for an explanation as
to why you voted in favor of a bill that
provided this loophole.
So I caution everybody as you cast
your votes today, this is serious stuff. You
should never have a situation where a teacher
or anybody else comes into contact with a
student without any other supervision before
we know that that individual is not a criminal
or has a criminal background. This bill moves
in the opposite direction even though it's
well-intended.
11098
And so many times we have in this
chamber very well-intended bills that in their
practical application create problems. And
this one creates a very unlikely yet
conceivable and possible eventuality which
compromises the safety of children in
classrooms. And for that reason, I'm against
it, and I hope my colleagues here today on
both sides of the aisle vote against this
bill.
ACTING PRESIDENT MEIER: Senator
Mendez.
SENATOR MENDEZ: Thank you, Mr.
President. Will Senator Saland yield for
question?
ACTING PRESIDENT MEIER: Senator
Saland, do you yield for a question from
Senator Mendez?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MENDEZ: It seems to me
that the intention of this bill could be
achieved if the different school districts
11099
would in fact maintain a list of people that
are interested in working way ahead of time,
and for them to be also, you know,
credentialed, so to speak, prior to the
emergency of the crisis.
So why -- don't you think that that
could be done?
SENATOR SALAND: It's hard for me
to hear, Senator Mendez. Let me -- I think
what you were saying is that should there not
be a list in advance.
SENATOR MENDEZ: Yes.
ACTING PRESIDENT MEIER: Excuse
me, Senator Saland.
Can we have some order in the
chamber so the members who are debating this
bill can hear each other.
Go ahead, Senator Saland. Excuse
me.
SENATOR SALAND: The major impact
of this bill will probably be in this, its
first year, because we're starting this new
process that as of the 1st of July required
people to be fingerprinted.
And let me suggest to you -- I know
11100
you're a senator from the City of New York -
this is more restrictive than the current
practice in the City of New York,
notwithstanding the comments a bit earlier by
Senator Hevesi, because in the City of
New York what they do is they fingerprint and
then it stays open-ended indefinitely as a
conditional.
Here, the city doesn't have the
ability to hire even -- they have no emergency
category -- to hire in an emergency fashion
and limit that to some 20 days. So I would
certainly want us to be well aware of that.
What will happen in year one is as
so many of these people are coming through the
process for the first time, there's really no
pool to draw on. You're really talking about
a pool, a pool of people who have already been
processed. By the time we get to next year,
there will be a larger pool. And the year
after, there'll be an even larger pool.
There may well be times when, on
short notice, someone has had an accident of
some kind and can't serve in whatever capacity
they're serving the school district, someone
11101
is unexpectedly called away for a prolonged
period of time in which a school district may
have to hire someone conditionally, and it may
also be an emergency situation.
But by the time you get two and
three years down the road, there will be, in
effect, a base of people who have been
processed and fingerprinted who will readily
be able to be hired. This is the biggest
year, or biggest challenge, because it didn't
start until a couple of weeks ago, on the 1st
of July.
ACTING PRESIDENT MEIER: Senator
Mendez.
SENATOR MENDEZ: I understand the
zealousness and the preoccupation that Senator
Saland has to resolve that problem in upstate
school districts.
However, I believe that to have 20
days go by and allowing somebody whose
criminal records have not been checked is
placing too many kids at risk. We know what's
happening in the New York City school system,
that finally, finally the school system is
doing something about the sexual abuse that
11102
has been occurring about so many good kids in
there.
And I know that this bill also,
Mr. President, is more restrictive than the
present policy in New York City.
However, I am going to vote against
this bill, because I don't want to have it on
my conscience that maybe -- I mean, it will
take two or three years to develop the pool
necessary to be able to have qualified people
with criminal records checked. But in those
20 days, and in those two or three years, I do
not want to have it upon my conscience, Mr.
President, that a child is sexually abused or
molested. Because those guys, those pederasts
belong in jail forever and ever and ever.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President. I would like to ask Senator Saland
a couple of questions.
ACTING PRESIDENT MEIER: Senator
Saland, do you yield to a question from
Senator Montgomery?
11103
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Senator
Saland, I just would like to ask you a couple
of questions regarding the law as it stands
now. When you ask for fingerprints from DCJS
and the FBI, does that also include people who
come from other countries? Are we able to
track a criminal record of a person who may be
coming from another country? Since they're
doing something -
SENATOR SALAND: If the FBI has
access to that, the answer is yes. If they
don't, then the answer would be no.
And I honestly don't know the
answer to that question, whether there's some
type of link through Interpol or however
they -- however they have any exchange
agreements that they may have. I honestly
don't know the answer to that question.
SENATOR MONTGOMERY: All right.
I have another question.
ACTING PRESIDENT MEIER: Senator
11104
Saland, do you yield for another question?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Senator
Saland, is there any type of limitation on,
one, the nature of a charge or the time frame
that we're talking about?
I.e., there have been some reports
recently of, I guess, 10-or-12-year-olds who
were so-called molesting 5-year-olds or
something to that effect, or a 6-year-old who
molests a 5-year-old. And my assumption is
that, based on the current law, that child is
charged as a sexual molester of some sort.
And if that young person carries
that through into adulthood, never does
anything else but nonetheless has a charge
like that, or a college student is charged
with assault because they are demonstrating at
college at 18 or 20 and they then want to
teach in some district, is there any
consideration for that sort of thing being
different from a person who is convicted of
11105
murder or some other heinous criminal act?
SENATOR SALAND: The first
example which you gave, that would be a
juvenile record. It would not be a criminal
record. It would not ever be part of the
consideration of either DCJS, the FBI, or,
ultimately, the State Education Department.
The second example which you gave
in which a crime of whatever nature was
committed by somebody who was an adult for
whom there could be a criminal record, that
would come up. There is, in the original
legislation, language that deals with -- and I
don't recall the section. It's a section of
the Corrections Law which basically says that
the crimes which are under consideration have
to be relevant to the position which the
applicant or individual is seeking to fill.
SENATOR MONTGOMERY: One last
question, Mr. President.
ACTING PRESIDENT MEIER: Senator
Saland, do you yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
11106
sponsor yields.
SENATOR MONTGOMERY: Senator
Saland, before I ask the question I would just
like to inform you that I have a number of
young people in my district who have talked to
me very recently, within the last few months,
who had juvenile charges, their records were
supposed to have been sealed and they have not
been. So those young people are not able to
be employed because their records are indeed
not sealed.
So I just wanted to inform you of
that. Even though it may be in law, in
practice it does not work. So I just want to
make sure you have that information.
But my question is, in New York
City there are also a number of after-school
programs, there are community-based
organizations who run programs in schools.
And in many of the after-school or the
extended-day programs, the teachers are
involved with those. Does this cover anything
that happens in the school, any adult? So, in
other words, even people who work in an
after-school program would be required to be
11107
fingerprinted as well?
SENATOR SALAND: If these are
school employees who have regular contact with
children, they would have to be fingerprinted.
Let me just suggest to you, with
regard to the situation that came up in your
district, juvenile records are not records
that are open records. There has been
legislation proposed at one time or another
where repeat offenders may have their record
accessed for purpose of sentencing, to
determine if in fact there has been a history
of committing similar or other crimes.
But if somebody had an incident
where they were handled as a juvenile
delinquent and that is the extent to which
they have ever had any contact with the law,
then I would suggest that you suggest to them
that they should be speaking with an attorney.
SENATOR MONTGOMERY: Thank you.
Certainly I will do that.
Just briefly on the bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Montgomery, on the bill.
11108
SENATOR MONTGOMERY: I think the
issues, the questions that I have raised with
Senator Saland are questions that are not
directly related to the legislation, although
they are questions that I would have as it
relates to the fingerprinting process in
general.
And certainly I think, I believe
that what Senator Saland is trying to do is to
give some latitude for people being able to be
hired if -- especially if there is an
emergency, and certainly if there is a
situation where a class is uncovered or a
group of children don't have an adult, I think
that's the purpose of this, it seems to me, is
to make sure that there is the capacity to
hire someone at least on a temporary basis.
I would say, however, that the
question of fingerprinting obviously, Senator
Saland, is a very serious issue. Especially
as it relates to the fact that we have more
and more categories where fingerprinting is
required and is contingent upon employment, we
will have a very large number of people who
for any other reason except that they have
11109
this fingerprint, this issue on their records,
would make excellent employees.
I have a number of very, very
productive and very expert programs being run
by former inmates in my district. I know it
sounds very strange, but it certainly is the
case. So if we are going to make it possible
for people to be able to ever make a
contribution once they have made a mistake,
done something antisocial, illegal -- if they
are able to ever again make a contribution, I
think that we must consider at some point that
those people must be given a chance.
So I'm going to support the
legislation, because I think it merits doing
something for those districts who don't have
the option. But certainly I hope that we can
visit this issue of fingerprinting. Because
while we want to protect people from
criminals, I think we also, on the opposite
side of that, want to make it possible for
people to have a second chance in life.
So with that, Mr. President, I'll
be voting yes on this bill.
ACTING PRESIDENT MEIER: Any
11110
other Senator wish to be heard on the bill?
The debate is closed.
Read the last section.
THE SECRETARY: Section 12. This
act shall take effect on the same date as
Chapter 180 of the Laws of 2000.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
SENATOR SKELOS: Mr. President,
to explain my vote.
ACTING PRESIDENT MEIER: Senator
Skelos, to explain his vote.
SENATOR SKELOS: I want to
congratulate Senator Saland on his fine work.
And certainly I'm going to support this
legislation, because I believe it gives the
school districts the flexibility they need to
run their own house.
And while talking about that, I
just want to mention that there are a number
of newly elected NYSUT local presidents here
today who have been of assistance in this
whole issue of protecting our children. So we
welcome them also.
11111
ACTING PRESIDENT MEIER: Senator
Skelos will be recorded in the affirmative.
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 223 are
Senators Duane, Fuschillo, Gentile, Hevesi,
LaValle, Mendez, Morahan, and Sampson.
Ayes, 50. Nays, 8.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there will be an immediate meeting of the
Rules Committee in the Majority Conference
Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Rules Committee in
the Majority Conference Room.
SENATOR SKELOS: We'll stand at
ease, Mr. President.
ACTING PRESIDENT MEIER: The
Senate will stand at ease pending the report
of the Rules Committee.
(Whereupon, the Senate stood at
ease at 2:54 p.m.)
11112
(Whereupon, the Senate reconvened
at 3:03 p.m.)
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Madam President,
if we could return to reports of standing
committees, I believe there's a report of the
Rules Committee at the desk. I ask that it be
read at this time.
ACTING PRESIDENT McGEE: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bill direct to third reading:
Senate Print 5707, by the Senate Committee on
Rules, an act to amend Chapter 20 of the Laws
of 2001.
ACTING PRESIDENT McGEE: Senator
Skelos.
SENATOR SKELOS: Move to accept
the report of the Rules Committee.
ACTING PRESIDENT McGEE: All in
favor of accepting the report of the Rules
Committee signify by saying aye.
11113
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
report is accepted.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up Calendar Number 1405,
Senate 5707.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
1405, by the Senate Committee on Rules, Senate
Print 5707, an act to amend Chapter 20 of the
Laws of 2001.
SENATOR SKELOS: Madam President,
is there a message of necessity at the desk?
ACTING PRESIDENT McGEE: Senator
Skelos, there is a message of necessity at the
desk.
SENATOR SKELOS: Move to accept.
ACTING PRESIDENT McGEE: The
motion is made to accept the message of
necessity. All in favor, aye.
11114
(Response of "Aye.")
ACTING PRESIDENT McGEE: Opposed,
nay.
(No response.)
ACTING PRESIDENT McGEE: The
message is accepted.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT McGEE: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 1405 are
Senators Brown, Dollinger, Duane,
Hassell-Thompson, and Schneiderman. Ayes, 53.
Nays, 5.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
ACTING PRESIDENT McGEE: There is
11115
no housekeeping at the desk.
SENATOR SKELOS: Thank you, Madam
President.
Following session, there will be an
immediate conference of the Majority in the
Majority Conference Room.
And there being no further business
to come before the Senate, I move we adjourn
until the call of the Majority Leader,
intervening days being legislative days.
ACTING PRESIDENT McGEE:
Conference of the Majority in the Majority
Conference Room.
There being no further business to
come before the Senate, I move we adjourn
until the call of the Majority Leader.
(Whereupon, at 3:05 p.m., the
Senate adjourned.)