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Monday, July 6, 2009

Gov. Paterson Asks NYS Treasurer To Stop Senators' Paychecks


State Sens. Dean Skelos, R-Rockville ,left, and Thomas Libous, R-Binghamton look excited yesterday as the extraordinary session of the state Senate got underway. The session lasted three minutes.

Paterson Talks Tough, Albany Circus Nears Month Mark
Governor may be learning to love Espada however

By MICHAEL GORMLEY
LINK

Gov. David Paterson said yesterday that he'll use a statewide tour this week to turn up the heat on senators who remain gridlocked in a monthlong power struggle.

"I have taken advantage of my travel to speak to New Yorkers directly," Paterson said after the Senate adjourned again following another extraordinary session he called.

He said in separate events over the weekend that New Yorkers' message was clear: "Don't let them off the hook. Make them stay and work."

The tough talk comes as it was reported that the governor may be closer to accepting turncoat Democrat Bronx Sen. Pedro Espada Jr. as the leader of the divided Senate.

"Whatever you think of [Espada], he has been given the highest position on the coalition side," Paterson told the Daily News. "You may not like him, but you have to respect him. That is where he is."

No bills were debated or passed in Sunday's session, which wrapped up in a record three minutes..

Two Senate factions continue to refuse to recognize each other's leaders so no legislative action was made on critical bills, including some that would extend laws that expired during the standoff.

Paterson, a Democrat, said he doesn't see either side budging in the conflict, which began with a coup June 8 by a Republican-dominated coalition versus the Democratic majority.

Since that meeting, both sides have sought to first work out the mechanics of a power-sharing arrangement, such as reworking the committee system and how to assign bills to a vote.

In an interview Sunday, Paterson called that "avoidance behavior."

"You can't do anything until you settle the leadership," he said.

Paterson said he will continue to act as a mediator if asked, but he again was critical of both sides and said he continues to push to withhold their paychecks and expense checks until they return to a working session. Paterson, who plans to run for election in 2010, has seen his record-low poll numbers rise when he was sharply critical of the senators, who he said have "ground government to a halt."

The jammed Senate is now evenly split after one of the dissidents defected back to the Democratic conference. Action on critical bills has been stymied for weeks.

Senators' staffs are trying to negotiate a compromise in closed-door talks begun after Paterson met with leaders from both sides on Thursday to start mediating a power-sharing solution. Senators from both sides welcomed the offer to mediate and said they were pleased Paterson had stopped criticizing the Senate for the standoff, which consumed the last two productive weeks of the 2009 regular legislative session.

"Talks are continuing, and our goal remains the same: Come to a workable solution that allows the Senate to get back to passing critical legislation," said Austin Shafran, a spokesman for the Democratic conference.

Mark Hansen, a spokesman for the GOP coalition, said Sunday evening that talks continue, but he had no further comment.

Senate Democrats meanwhile have managed to pull together support for a bill that would extend mayoral control over schools. But, of course, that legislation is contingent upon the divided Senate agreeing upon a method of sharing power, according to the New York Post.

Senate Democrats have agreed to drop a provision that Mayor Bloomberg's appointees to the Panel for Education Policy.would serve fixed terms -- instead of at the mayor's pleasure. For now, the Senate appears poised to adopt a measure similar to the one that passed in the state Assembly, according to the Post.

No Paychecks for You Paterson tells state treasurer to freeze senators' direct-deposit pay
By JENNIFER MILLMAN, Jul 6, 2009
Associated Press
LINK

Enough is enough.

Gov. David Paterson has had enough of state senators' clownish refusal to get back to business – so much so that he's launching a direct assault on their bank accounts.

Here's a look at some of the key players behind the Albany power struggle.

Paterson has asked the state treasurer to block direct-deposit payments to the senators' accounts, and plans to ask a judge Monday whether they should be paid at all, according to The New York Daily News.

Efforts to stop paying the boorish senators have already been set in motion, with State Controller Thomas DiNapoli asking a court to determine whether his office has the authority to withhold their paychecks beginning on Wednesday.

While DiNapoli is asking a judge whether his office has the power to block payment, Paterson is taking things to a higher level.

"We want a direct ruling on whether it's right or wrong for them to be paid when our position is they have abdicated their role," the governor told the Daily News.

The Senate has remained deadlocked 31-31 for nearly a month since two dissident Democrats joined a Republican-backed coup. Sen. Hiram Monserrate, of Queens, switched back to his party a few days later, leaving the chamber in a state of paralysis from which it has yet to recover. The senators haven't conducted any real state business since June 8.

"It's also our contention that they have been derelict in their duties," Paterson said, according to the Daily News. "Government has been shut down by the Senate. Cities and counties are losing money off of this."

The lame duck Senate has left some key pieces of legislation on the table, including bills to increase the sales tax in several locales, which would provide communities millions of dollars in much needed tax revenue.

Paterson's argument is simple: If the senators can't reach an accord on who presides over the chamber, there's no one to sign off on their paychecks.

Apparently undeterred by the threat of losing their cash flow (or intent to keep it for doing nothing), senators argue that Paterson and DiNapoli are way out of line – that their jobs include much more than voting on legislation and that both parties have worked together when a judge ordered them to, according to the Daily News. They admit, however, that they refused to work together when Paterson was the one telling them to do so.

Paterson says the senators' argument has no merit whatsoever.

"They come in for two minutes, stare at the ceiling, wish each other happy birthday, salute the flag for Independence Day and go home," he said. "We see that as they're convening, but not deliberating. They're present, but not working. No work, no pay."

Pointing to the fact that the state can stop paying senators if they don't pass a budget by April 1, Paterson says the same should hold when it comes to failure to meet local monetary deadlines.

Both parties continued to negotiate yesterday, although the leaders of the warring factions did not meet directly with Paterson, who had arbitrated the discussions last week. Senators from both sides say they plan to meet more in the coming days, but none say a deal is imminent.

From Betsy Combier:

Dear Governor -

How come you gave huge raises to your staff in February?

Just Asking.

Thursday, July 2, 2009

Fire Joel I. Klein, the Snake Oil Salesman Without a Contract



Smug with his success at creating a public school administrative structure that denied anyone who disagreed with his policies a chance to speak and that openly violated every law and regulation designed to protect children, teachers, and all personnel in NYC public schools, Joel I. Klein has, for seven years, fearlessly and arrogantly walked amidst a daily hailstorm of anger and opposition from parents and stakeholders because he is immune to all public criticism. Indeed, on Wednesday July 1, 2009, a few hours after the shamelessly fake and deliberately harmful Department of Education went out of existence, Klein was re-appointed unanimously to his position as "Chancellor" in name only (he has no contract - see the letter he was given by Bloomberg which I received after filing a freedom of information request) by the new members of the instantly created New York City Board of Education. I contacted a friend of mine who is an Attorney specializing in contract law, and he told me that all contracts need an expiration date. He said that this letter is not a contract. Somebody file a complaint with the Bar Association and get him disbarred. Please!!!!. General Counsel Michael Best and Special Commissioner of Investigation Richard Condon also must go.

But that's not enough. We must mobilize the entire city to fight what happened on Wednesday July 1, 2009: the undemocratic re-establishment of dictatorial leadership of the NYC public schools under Mayor Michael Bloomberg, with a new gang at the helm appointed to MAKE SURE that the Mayor continues his control. Congratulations to Jane Hirschmann from Time Out From Testing for her statement at this meeting.

On tuesday June 30 at 12 midnight Education Law 2590 (scroll down to 2590 -Editor)expired, and the "old" decentralized Board of Education was re-instated. Or so the law said. However, there has been no law-abiding top official at the pseudo city agency, the NYC Department of Education, since its inception in 2002, nor was there anyone who would squeak up about the runaway, fast moving train that ran through all regulations and rights in the law books and threw all of these guides and rules away. It was that bad, folks.

Any opposition or question about what was happening inside and outside of Tweed (NYC BOE headquarters) was met with threats, deliberate harm of the individual making the inquiry, and, if neither of these tactics "worked" to silence the person, then a strategy was put into place to pursue immediate separation of this person from gainful employment. The NYC BOE must protect its' house of straws from any wind.

We know that Mayor Bloomberg demands total allegiance to every decision, whim, policy, and statement. He brought Joel Klein from Washington D.C. because Klein was an excellent protector of Bill and Hilary Clinton's public and private lives while Bill was President. Joel Klein took Vincent Foster's office the day after Foster committed suicide. On wikipedia is this:

"Wrestling with clinical depression, Foster was prescribed the mild sleeping aid/anti-anxiety pill Trazodone over the phone by his doctor, though he only had taken a few before he died. The next day, Foster was found dead in Fort Marcy Park, a federal park in Virginia. He was found with a gun in his hand and gunshot residue on that hand. An autopsy determined that he was shot in the mouth and no other wounds were found on his body. A suicide note of sorts, actually a draft of a resignation letter, was found torn into 27 pieces in his briefcase, a list of complaints specifically including, "The WSJ editors lie without consequence" and lamenting, "I was not meant for the job or the spotlight of public life in Washington. Here ruining people is considered sport."

Linda Tripp, of Monica Lewinsky fame, told Congress that there was only one person she was afraid of in the Washington government: Joel Klein. When asked why, she answered that he kept files on anyone who crossed his path, and went after the person who committed this "crime":

" Printed from JudicialWatch.org
Nov 9, 1999 Contact: Press Office
202-646-5172

JOEL KLEIN'S ENEMIES LIST
CLINTON ANTITRUST CHIEF IN WHITE HOUSE COUNSEL'S OFFICE DURING FILEGATE

Tripp Says He Kept "Files on Others," Including Starr's Office
Link

(Washington, D.C.) Joel Klein, the Clinton Justice appointee and Assistant Attorney General prosecuting the Microsoft antitrust case was in The White House Counsel's Office around the time period that Republican FBI files were illegally gathered by the Clinton White House. Indeed, after the death of Vince Foster, Klein filled Foster's job and occupied his office. Linda Tripp, (pictured at right) who worked with Klein, testified in the Judicial Watch Filegate lawsuit that she understood that these FBI files were being uploaded into a computer in the White House Counsel's Office. In the least, Mr. Klein was at "the scene of the crime" around the Filegate time period. Tripp testified that Klein kept files on others, including Ken Starr's office, for intimidation purposes.

Tripp recounted in her testimony how Klein said that being a good lawyer wasn't enough, "that in order to survive, we have to be good politicians too." Tripp also testified that Klein "scared" her.

"Is the Microsoft case a matter of the Clinton Administration once again doing favors for selected Clinton/Gore donors - this time Microsoft's competitors in Silicon Valley and elsewhere?" asked Larry Klayman, Judicial Watch Chairman and General Counsel. Klayman was a trial lawyer on the famous AT&T case for the Justice Department's Antitrust Division in the Carter and Reagan administrations.

"The past news that Joel Klein had breakfast at the home of Netscape's CEO just before the suit against Microsoft was filed raises significant questions about Mr. Klein's possible involvement in a political payback," stated Klayman.

Judicial Watch believes the involvement of the Clinton Justice Department's "tainted" political operatives such as Joel Klein has pushed the ongoing antitrust action against Microsoft. The group filed a request for documents under the Freedom of Information Act to see if politics and campaign contributions have influenced its actions against Microsoft. When the Clinton Justice Department failed to respond, Judicial Watch filed suit. The case remains pending and active.

Video and transcripts of Ms. Tripp's testimony about Mr. Klein are available upon request. Ms. Tripp's deposition testimony about Mr. Klein can be found at pages 375-77, 400-05, 485-90, and 798-803 from her testimony of January 5, 1999 and January 22, 1999. The transcripts are available on the Judicial Watch Internet site at www.judicialwatch.org.

© Copyright 1997-2002, Judicial Watch, Inc."


Joel was appointed "Chancellor" pursuant to Education Law 2590, and clause "H" states that he "must have a contract". He never had one. He became head of the new Board of Education, re-named the Panel For Educational Policy, (pictured below at the May 2009 meeting) to provide an alias for the group as they violated Open Meetings Law and their own Bylaws. For example, teachers were terminated behind the closed doors of Executive Sessions held before the public PEP meetings began. This violates Open Meetings Law Section 105. Another example of the PEP members' disdain for the rule of law is that the PEP Bylaws require a Secretary (Section 1.5) - who happens to have been General Counsel Michael Best - who must write the minutes. There are no minutes.(I filed a freedom of information "FOIL" request).

The By-Laws state that every year there will be a "review, evaluation, and assessment of the Panel's role and functions for the purpose of identifying and implementing changes that will improve its effectiveness." (Section 1.6, p. 5). In answer to FOIL requests made for these assessments, Michael Best wrote that the PEP has no official or administrative function, and there are no reviews of the PEP or of the performance of Joel Klein. So in March, 2004, I wrote what I thought Joel Klein's Performance Review should look like.

Patrick Sullivan told me on September 18 2008 at a meeting with Senator Liz Krueger on a third term for Bloomberg that there was a RAND report given to all PEP members (indeed, he had it in his hand as he told me about it) that Mr. Klein had told him and all PEP must not be given to anyone. I asked Patrick for a copy of this report as a member of the public and a concerned citizen, but he refused, and said that he would check with the Manhattan Borough President Scott Stringer, the person who appointed him. Neither Stringer or Sullivan ever replied to my request. Stringer susequently made his support of Mike Bloomberg publicly known by appointing his Attorney Jimmy Yan to the "new" Board of Education on July 1, 2009. The NYC BOE answered my FOIL for the RAND document with "sorry, this request is denied". I'm appealing.

Scott Stringer is now on the list for removal from office by the parents and teachers of the NYC public schools.

I am a proud voter, and one of the most outrageous policies of the 2002-2009 Department of Education was the removal of participation by anyone "outside" of the clique of Bloomberg/Klein teletubbies. We, the general public, have no vote, and therefore we have no representation of our interests at Tweed. The Community Education Councils are, in my opinion, entities full of people who want to look good and act like they have power but dont. CEC members are elected by "selectors" picked from the positions of President, Secretary, and Treasurer of Parent Associations. The people "represented" by the "selectors" are not similar to the diversity of New York City public school parents/guardians. The lawsuit brought by a man named Kramer in 1969 to the U.S. Supreme Court, Kramer v Union Free School District won the right of all taxpayers to vote for their district school board. NYC has no elected school board, and the general public now has to take the "new" Board of Education as valid until we as a class action or as a critical mass of concerned citizens get our legislature to change this. Teacher Hipolito Colon sued Joel Klein, and others (NYSUT has since been removed as a Defendant) in October 2006, and this case now has survived two motions by the City of New York to dismiss. New York State Supreme Court Judge Eileen Rakower has said "no" to dismissal, twice. The public thanks her for her stand against all odds.

Beth Fertig of WNYC wrote the follwing about the PEP:

"WNYC News Blog
Mayor’s School Panel: An Advisor or Rubber Stamp?
By Beth Fertig
May 18, 2009

Legislators have spent much of this year holding hearings on the issue. Supporters of the mayor credit him with school improvement; but critics claim he’s abusing his authority. Much of the controversy has to do with an obscure panel that meets once a month. In the summer of 2002, Albany gave Mayor Bloomberg something previous mayors had only dreamed about: control over the nation’s largest school district. Finally, the mayor could appoint the Chancellor, not the Board of Education. He wouldn’t have to fight any more with board members who could reject his proposals. The board was replaced with a new Panel for Educational Policy, an advisory body. And most of its 13 members would be appointed by the mayor and answer directly to him.
Bloomberg was in great spirits that July when he announced the seven educators and business leaders he’d appointed to the panel.
“Let me remind you that unlike the past Board of Ed, these members are all volunteers. They do not get a salary. They do not get a car and driver. They don’t get all of those other perks (laughter). We didn’t tell you that?”
It was a light-hearted moment. But the mayor grew serious when a reporter asked him how much independence his panel members would be allowed to exercise.
“Their job is to give advice to the chancellor. Not advice to the press. I do not expect to see their names ever in the press answering a question either on the record or off the record. That’s exactly what’s wrong with the current system right now. And it’s not going to happen. It has not happened elsewheres in this system and I would not tolerate it for 30 seconds.”
The mayor was true to his word. In 2004, Bloomberg removed three panel members right before they could vote against his plan to stop promoting third graders who scored poorly on state exams.
Since then, education groups and parents routinely refer to the panel as a rubber stamp for the mayor. But one former legislator who co-wrote the law putting Bloomberg in charge of the schools says that wasn’t its intention.
“While it was certainly the intent of the state legislature and the governor in 2002 to provide significant mayoral authority, it certainly was not the intent to provide mayoral autonomy.”
Steve Sanders is former Chairman of the State Assembly’s Education Committee. He’s now lobbying for the New York State School Boards Association, which worries about the precedent in giving a city mayor so much power. Sanders says the 2002 law was designed so the panel could provide real oversight of the mayor’s leadership. But he says Bloomberg is violating the spirit, if not the letter of the law, by not using the panel as a real sounding board.
A New York Times analysis found the mayor’s seven appointees miss, on average, a quarter of the monthly meetings. Three of them were absent at last month’s meeting in the Bronx, where several parents testified that there weren’t enough seats in the new construction and renovation plan. Josh Karan came from Washington Heights to address the meeting.
“Seven schools still have trailers, we have buildings without gyms, auditoriums, art rooms, lunch at 10 a.m.”
A few minutes later, the panel’s chairman, Chancellor Joel Klein, called for a vote on the $11.3 billion capital plan. It passed with only one dissenter, Patrick Sullivan.
Sullivan is the Manhattan Borough president’s appointee to the panel, and often the lone dissenter. Each borough president gets an appointee. Sullivan says the lopsided vote shows why the law needs to be clarified to give panel members more oversight over matters like contracts and the school construction budget.
“The key thing is everybody understands there’s limited resources and prioritization. But we have to have a real planning process with a real needs assessment and explain this is how we determine how many seats are needed in what parts of the city and it’s just not there.”
There are several proposals for strengthening the panel. The teachers union and a group called the Parent Commission believe the mayor should no longer appoint a majority of its members. Harlem State Senator Bill Perkins thinks this would be good for democracy.
“If you can’t but mimic the mayor then you are denying the public that alternative voice, that alternative idea, that kind of debate that our democracy is built on.”
But Mayor Bloomberg and his supporters argue the public schools are NOT a democracy. That was the problem with the old board of education, says Bloomberg, which was dominated by special interests.
“The bottom line is when you have these committees, what happens invariably is somebody doesn’t like change, change is scary. And with the more people you have more likely you’re going to have one person who doesn’t like any given change. And I can’t think of any change that would have passed if you go by committee if you go back to the old Board of Ed days.”
Bloomberg says the current system is working and the rising test scores are proof. He also notes that President Obama’s education secretary, Arne Duncan, has endorsed keeping mayoral control in New York.
But New York’s model of mayoral control has fewer checks and balances than in other cities. Boston, Chicago and Oakland, for example, all have mayoral control but their school boards get to pick the superintendent – and in Oakland some board members are elected. Joseph Viteritti, a professor of public policy at Hunter College, wrote a book called “When Mayors Take Charge.” Viteritti concludes that the mayor of New York should control the Panel for Educational Policy. But its members should have fixed terms, so they can debate issues without the fear of being removed.
“I think it’s important to have a board that reviews policies and that requires the chancellor to explain policies in a public forum and have an open discussion about them and have hearings about it. I mean, one of the things that the old Board of Education did right, and there weren’t many, was that there was always a public discussion about issues.”
Viteritti was on a committee appointed by the Public Advocate to study mayoral control. It also called for giving either the state or city comptroller more power to audit the school system. And it recommended that community education councils, or local school boards, have more power in approving superintendents and the opening and closing of schools. Parents have complained about feeling shut out.
Albany lawmakers will decide next month on whether to renew the law or amend it. Both Assembly Speaker Sheldon Silver and Senate Majority Leader Malcolm Smith have said they want to keep the mayor’s majority on the Panel for Educational Policy. But Queens Assemblyman Rory Lancman says lawmakers are considering other changes to provide more parental input because they’re getting an earful from their constituents.
“When parents call my office or talk with me about their child’s education it’s at a much greater intensity than it is when they’re talking about garbage pickup or state of their parks. And parents want an opportunity to be involved in the decision making process regarding their kids education.”
Lancman says that should be a warning to Mayor Bloomberg. If he doesn’t give some ground to parents, lawmakers could make a deal without him because local politicians are the ones most likely to feel the wrath of the voters."

Now, that's where we are at.- Betsy Combier, Editor


A second-grade student at Public School 130 in Chinatown working on an interactive chalk board. As annual school spending has risen to $22 billion, the Bloomberg administration has given principals more responsibility and control over their school budgets, as well as higher pay.

July 1, 2009
With More Money, City Schools Added Jobs
By JENNIFER MEDINA and ROBERT GEBELOFF, NY TIMES

In the seven years since Mayor Michael R. Bloomberg took the reins of the city’s schools, he has rolled out numerous statistics as proof of his accomplishments, including rising graduation rates and test scores.

But one of the clearest ways to see what he and his schools chancellor, Joel I. Klein, have done with public education is to track what they have done with its money.

They have overseen a large expansion in annual school spending, to $22 billion from $13 billion, with the additional money pumped in from Mr. Bloomberg’s budget and from the state. And that has allowed them to reshape the system to reflect the central elements of the mayor’s philosophy: smaller schools, relentless assessments of progress, and higher salaries for administrators to attract top talent.

A New York Times analysis of seven years of education spending has found a number of changes in how dollars are allocated. There are now 1,075 more principals and assistant principals, even as overall student enrollment has fallen, largely because the city has broken up a number of underperforming schools into smaller schools. There are more administrators, like academic coaches who track test scores, and more support staff, with tasks like patrolling hallways and monitoring attendance.

And more administrators are earning top dollar. The number of employees making more than $150,000 has risen to 240, up from 175 in 2002, when those salaries are adjusted for inflation. The number earning at least $125,000 has more than tripled, to 1,935.

Some shifts were driven by necessity. While the number of teachers in regular classrooms has dropped, hundreds more special education teachers were added to keep pace with a 26 percent jump in students needing those services. There are also thousands more special education assistants and therapists.

Much of the increase in the overall budget has been used to pay for rising teacher salaries, pensions and benefits, as well as the growing debt for new school construction.

But in many ways the spending patterns reflect the Bloomberg administration’s mindset that money attracts people who can bring business-world success to the public arena. Mr. Klein has supported salaries reaching nearly $200,000 for several of his deputies, saying that the pay reflects their qualifications and responsibilities, and that they could be earning far more in the private sector.

Education Department officials say that the size of the teaching corps is in line with the student population, which dropped to 1,029,459 in 2008 from 1,091,717 six years earlier, and that having more support staff frees teachers to concentrate on the classroom.

Mr. Klein has also pushed principals to take on greater responsibility, and his ideal, he has often stated, is to allow principals to spend their money as they see fit. They can decide, for example, whether to hire another math teacher or to use the money for after-school programs instead. In concert with this philosophy, many of the highest-salaried employees today are principals, not administrators: 53 principals made $150,000 or more last year, whereas none were earning that much as recently as 2006, when those salaries are adjusted for inflation. That does not include performance bonuses of up to $50,000 for principals of schools that perform well on standardized tests.

“There is absolutely a priority to attract and keep the best talent, and there is no doubt better pay helps us with that,” Mr. Klein said, adding, “When I tell people that they can earn $200,000 for being a principal in New York City, that really gets them paying attention.”

In line with the mayor’s affinity for using numbers to judge success, one of the largest areas of growth in the central administration has been in the department’s accountability office, which measures performance on state tests and issues school report cards.

But as legislators decide whether to keep city schools under the mayor’s control, one of the major criticisms is that the school system itself could be more accountable, particularly in the way it spends money.

Since 2002, the department has remained in a gray area of being technically neither a state nor city agency. It has come under repeated criticism from the city comptroller, who is Mr. Bloomberg’s likely opponent in the November mayoral election, and other officials for awarding contracts without bidding, a practice generally prohibited in other city agencies.

“Right now, we don’t have all the information we need,” said Ronnie Lowenstein, the director of the city’s Independent Budget Office. “People come to us and say, what does this mean, how much are we really spending, what are other ways of looking at this?”

Legislation passed by the State Assembly would hand oversight of the department’s budget to the Independent Budget Office, which could have the ability to independently assess other numbers, like graduation rates and school-level spending. The change has not been opposed by the mayor, and Mr. Klein has said that he would welcome an outside agency looking more closely over the department’s numbers.

“I think much of this is politics,” Mr. Klein said in an interview last week. “We have always been open to oversight and we have been audited repeatedly.”

It is still unclear whether the State Senate, stuck in a leadership battle, will pass the Assembly’s bill or press for more changes to the law. Mr. Bloomberg’s control of the schools was set to expire at midnight Tuesday, meaning that the schools could revert to supervision by an independent Board of Education, although most officials believe the mayor would be able to maintain stewardship until an agreement in Albany is reached.

Shifting Responsibility

The new billions result partly from Mr. Bloomberg’s spending decisions, and partly from a lawsuit filed by a group called Campaign for Fiscal Equity, which successfully argued that Albany was shortchanging the city’s schools. But the group is not necessarily pleased with the results.

“You would think that the school of today compared to the school of yesterday compared to the school of seven years ago would be a richer environment, that there would be a rich art curriculum or more intimate experiences,” said Helaine Doran, the deputy director of the group. “There is just no tactical feeling that things are any better.”

The sheer size of the department’s budget makes it unlike any other city agency. The city’s next largest agency, the Human Resources Administration, which administers welfare, has about $9.2 billion, less than half of the education budget, according to the Independent Budget Office. The Police Department spends $7.3 billion.

Mr. Bloomberg has spoken proudly of trimming the central administration. “You can’t say, ‘Let’s cut the bureaucracy,’ ” he said in January, amid budget negotiations in Albany. “We have taken $250 million out of the bureaucracy and moved it into the classroom. We have streamlined everything we possibly can.”

The overall increase in school spending is partly attributable to increased teaching salaries and pensions as well as paying off debt for school construction, which has more than doubled in the last six years. The mayor has raised teacher salaries 43 percent through contract negotiations, with the average salary now at $70,104.

Generous pensions have been won over many years by the teachers’ union, a consistently powerful force in Albany, where pension laws are passed. The mayor and the teachers’ union recently reached an agreement, which still needs legislative approval, to trim the cost of pensions for future hires.

Significantly, the Bloomberg administration has also shifted more responsibility and control over school budgets to principals.

Lily Woo, the principal of Public School 130 in Chinatown, said she has been able to take money that in other years would have been spent on hall supervisors and reallocate it to buy supplies like computers and smart boards, which combine technology with traditional chalk boards. Funds that would have been used for a single reading teacher have instead paid for extra hours for a teacher already on staff to work with small groups of children during their lunch time or a free period.

“If you asked schools to effect change without letting them control their money,” she said, “it would be like giving a cook a Bunsen burner and telling them to make a four-course meal.” The number of regular-classroom teachers has dropped by more than 1,600 to 61,549 since the Bloomberg administration took over, according to the Times analysis, which used seven years of payroll data, budget documents, audits and statistics produced by the department at the request of The Times.

Meanwhile, the costs of special education teachers, as well as their assistants and supplemental therapists, has soared along with the number of special education students: 103,228 last year, up from 81,268 in 2002.

There are 4,500 new school aides, who typically supervise lunchrooms and school yards. More than 2,000 secretaries who previously worked in district offices, which lost much of their role, now work in the schools, according to Education Department data.

Over all, enrollment has declined, and the average class size has shrunk about 5 percent from kindergarten through eighth grade, to 23.3 from 24.5. The department’s stated goal is 20 students per class for kindergarten through third grade, but it does not have a target class size for grades above third.

The teacher-to-student ratio, which includes teachers in areas like physical education or lab who are not assigned to particular classrooms, has decreased slightly: to 1 to 15 in 2008 from 1 to 16 in 2002.

The centralization of the school system has allowed the city to do away with administrators who once worked in regional or district offices. In their place, for example, the Education Department has increased the number of education analysts and education officers, to 724 from 415 in 2002. Lawrence E. Becker, the head of human resources for the Education Department, said that those titles could include everything from a central administrator looking at financial data to a school-based worker monitoring student test performance.

The number of lawyers has also nearly doubled, to 118. Education officials say the additional lawyers are needed to more aggressively pursue teacher discipline cases and to handle a growing number of lawsuits asking the city to pay private school tuition for special education students.

Efforts at Accountability

Chancellor Klein has attracted dozens of administrators who had little experience in public schools. Many came from careers in law or business, with hefty salary requirements. James Liebman, the department’s chief accountability officer, who also teaches part time at Columbia Law School, made just more than $196,000 in 2007, when Chancellor Klein earned $250,000, the same salary he has received since he began in 2002.

“Many of these people could be earning far, far more in the private sector,” Mr. Klein said. Referring to the deputy chancellor who oversees political and labor relations, he added: “Somebody like Chris Cerf could be earning well over $1 million if he were out practicing law.” Mr. Cerf earned $196,575 in 2008.

Photeine Anagnostopoulos, the department’s chief operating officer, said her $177,000 salary was less than what she earned in her first job after graduating from business school 25 years ago.

Of all the changes Chancellor Klein has made during his tenure, perhaps none has attracted more attention than the power he has given to the Office of Accountability, which has created several systems to track and measure student performance and improvement in the schools. According to Education Department numbers, the office grew to about 110 people in 2008 from about two dozen in June 2001.

Officials say the growth reflects the fact that the office’s role has undergone big changes in the last several years. The office now issues annual letter grades for each individual school in addition to developing ways for principals and teachers to monitor student improvement. According to The Times’s analysis, the accountability office payroll totaled $9.4 million in 2008.

Critics have accused Mr. Klein of putting too much faith and money into the accountability office. Last fall, the Independent Budget Office released a report estimating that the department would spend more than $350 million on accountability-related measures from 2007-9. The department objected, saying that the audit included several costs that could not be directly attributed to the office. For example, according to the department, $17.6 million was spent on school inquiry teams, including school staff.

“This is the backbone of the system,” Mr. Klein said. “Without accountability, you spend all the time arguing over what you spent the money on, not what results you got for that money.”

KLEIN ON 'BEST YEAR': I'D GET A FOR EFFORT
By YOAV GONEN, Education Reporter, June 26, 2008 --
LINK

Schools Chancellor Joel Klein said it was the best year of his tenure. There were gains in state reading and math scores and incentive programs for teachers, principals and students. Klein touched on these issues, and some controversies, in an exclusive interview with The Post.

Q: You've talked about how smoothly the school year started - did it stay that way?

A: What surprised me was how smooth it was given all the changes we made. Remember, we eliminated the regions, downsized the bureaucracy, downsized central [administration] and brought in all the school support organizations. That's a lot of stuff, if you will, and compared to the first reorganization, there's no question that this was much smoother.

Q: What are some of the highlights of the school year?

A: I think the major highlight of the year is the [test] results. I'm a results guy, and the results were big. Probably the second major thing was the implementation of the accountability system, which I believe is long-term, big and meaningful . . . The charter scores were really dynamite. To have charter schools in the city of New York that are 92 percent African-American and Latino, 80 percent poverty, performing at the same level as the state of New York or even a little better is really a remarkable thing. [And] we got a pay-for-performance deal with the UFT [United Federation of Teachers].

Q: Speaking of charters, there is some opposition growing in District 22 to the Hebrew Charter School that could open there in 2009. Are you concerned at all that it's going to turn into a lightning rod the way [Arabic-themed school] Khalil Gibran did?

A: I hope not. We've done [dual language] schools with such success . . . I think [the Khalil Gibran issue] was a combination of two unfortunate things - a lot of misunderstanding about what Khalil Gibran was about and then a real focus on the principal, the original principal, and I think that created some noise. I hope this Hebrew charter school - which again will be dual language, which has got zero religion to it - will be successful, but I guess we have to stay tuned.

Q: Was there anything you wish had gone differently - like the teacher-tenure legislation [not allowing school districts to use student performance in tenure decisions] in Albany, for example?

A: I wish it hadn't occurred. On the other hand, I think it did surface the issue really at the national level . . . I clearly wish that the economy was otherwise and we wouldn't have to go through budget cuts. But by and large I thought this was a smooth year.

Q: What about complaints about the report-card grades for schools?

A: The report cards were probably one of the noisy periods. But . . . I can't tell you how many principals said to me, 'You know, chancellor, I didn't get the right grade but I promise you I won't get the same one next year,' so I think that had a big impact.

Q: Where do things stand on the budget cuts - is there any hope that Albany is going to loosen restrictions on the funds at this point?

A: I don't believe that's going to happen . . . We are looking at a variety of strategies.

Q: Like what?

A: I'd rather not get ahead of the story.

Q: If you had to assign a grade to yourself for the school year, what would it be?

A: This was in my view the best year we had. I always like to say the grade is 'A' for effort and other people can grade our performance.

Q: What's next?

A: Now that we have so much information . . . we're going to be able to really home in on what schools made real progress. We're going to [focus] on which schools are really moving the English-language learners, which schools are moving in special education.

Q: What's in store for you after Bloomberg's term ends - would you like to stay on as chancellor?

A: I would like to keep serving . . . I think education is going to be a part of my life. I'm now doing this national [equality] project, which I'll continue to push on . . . I've got many, many things that I want to do - not the least of which is to write a hell of a book about my 7½ years as chancellor.

yoav.gonen@nypost.com

Wednesday, July 1, 2009

The United States Supreme Court Makes It Harder To Prove Age Discrimination

GROSS v. FBL FINANCIAL SERVICES, INC. (No. 08-441)
526 F. 3d 356, vacated and remanded.

GROSS v. FBL FINANCIAL SERVICES, INC.
certiorari to the united states court of appeals for the eighth circuit
No. 08–441. Argued March 31, 2009—Decided June 18, 2009

LINK

Petitioner Gross filed suit, alleging that respondent (FBL) demoted him in violation of the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age,” 29 U. S. C. §623(a). At the close of trial, and over FBL’s objections, the District Court instructed the jury to enter a verdict for Gross if he proved, by a preponderance of the evidence, that he was demoted and his age was a motivating factor in the demotion decision, and told the jury that age was a motivating factor if it played a part in the demotion. It also instructed the jury to return a verdict for FBL if it proved that it would have demoted Gross regardless of age. The jury returned a verdict for Gross. The Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U. S. 228 , for cases under Title VII of the Civil Rights Act of 1964 when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed-motives” case.

Held: A plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Pp. 4–12.

(a) Because Title VII is materially different with respect to the relevant burden of persuasion, this Court’s interpretation of the ADEA is not governed by Title VII decisions such as Price Waterhouse and Desert Palace, Inc. v. Costa, 539 U. S. 90 . This Court has never applied Title VII’s burden-shifting framework to ADEA claims and declines to do so now. When conducting statutory interpretation, the Court “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U. S. ___, ___. Unlike Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action, see 42 U. S. C. §§2000e–2(m) and 2000e–5(g)(2)(B), the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it added §§2000e–2(m) and 2000e–5(g)(2)(B) to Title VII, even though it contemporaneously amended the ADEA in several ways. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally, see EEOC v. Arabian American Oil Co., 499 U. S. 244 , and “negative implications raised by disparate provisions are strongest” where the provisions were “considered simultaneously when the language raising the implication was inserted,” Lindh v. Murphy, 521 U. S. 320 . Pp. 5–6.

(b) The ADEA’s text does not authorize an alleged mixed-motives age discrimination claim. The ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U. S. 604 . To establish a disparate-treatment claim under this plain language, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. ___, ___. It follows that under §623(a)(1), the plaintiff retains the burden of persuasion to establish that “but-for” cause. This Court has previously held this to be the burden’s proper allocation in ADEA cases, see, e.g., Kentucky Retirement Systems v. EEOC, 554 U. S. ___, ___–___, ___–___, and nothing in the statute’s text indicates that Congress has carved out an exception for a subset of ADEA cases. Where a statute is “silent on the allocation of the burden of persuasion,” “the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims.” Schaffer v. Weast, 546 U. S. 49 . Hence, the burden of persuasion is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. Pp. 7–9.

(c) This Court rejects petitioner’s contention that the proper interpretation of the ADEA is nonetheless controlled by Price Waterhouse, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims. It is far from clear that the Court would have the same approach were it to consider the question today in the first instance. Whatever Price Waterhouse’s deficiencies in retrospect, it has become evident in the years since that case was decidedthat its burden-shifting framework is difficult to apply. The problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36 . Pp. 10–11.

526 F. 3d 356, vacated and remanded.

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.

The United States Supreme Court makes it harder to prove age discrimination

In a 5-4 decision issued on Thursday, the United States Supreme Court made it much harder for plaintiffs in cases under the Age Discrimination in Employment Act (“ADEA”) to prove discrimination. The Court held in Gross v. FBL Financial Servs, Inc., that a plaintiff in an age discrimination case must prove, by a preponderance of the evidence, that age was the “but for” cause of the challenged adverse employment action.

6/23/2009
An employee claiming age discrimination as a result of an adverse action must now show that age was the sole or “but for” reason for the adverse action. In a 5-4 decision issued on Thursday, the United States Supreme Court made it much harder for plaintiffs in cases under the Age Discrimination in Employment Act (“ADEA”) to prove discrimination. The Court held in Gross v. FBL Financial Servs, Inc., that a plaintiff in an age discrimination case must prove, by a preponderance of the evidence, that age was the “but for” cause of the challenged adverse employment action. The Court in Gross found that the familiar burden-shifting approach to liability set forth in Price Waterhouse v. Hopkins, does not apply to cases brought under the ADEA. In Price Waterhouse, the Court held that when an employee in a case brought under Title VII of the Civil Rights Act of 1964, proves that illegal discrimination played a part in an employment decision—even if other, legitimate factors also motivated the decision—the employer could win only by proving that it would have made the same decision even if it had not taken into account the employee’s protected trait (gender, race, etc). The Court rejected this burden-shifting approach in Gross. This case is welcome victory for employers to be sure, given the increased number of age discrimination charges as a result of the economic environment, but a pro-employee Congress could reverse the result before employers even finish celebrating.

FBL Financial Services, Inc. (“FBL”) reassigned Jack Gross, who had worked for more than thirty years for FBL, and transferred his duties to a younger coworker. At trial in district court, Mr. Gross presented evidence suggesting that FBL reassigned him in part because of his age. The district court instructed the jury that it should find for Mr. Gross “if he proved, by a preponderance of the evidence, that FBL demoted him . . . and that his age was a motivating factor in FBL’s decision.” The court said that age was a “motivating factor if it played a part or a role in FBL’s decision.” Lastly, the court instructed the jury that FBL should prevail if it proved, by a preponderance of the evidence, that it would have demoted the plaintiff regardless of his age. After a verdict for Mr. Gross, FBL appealed to the Eighth Circuit, which ordered a new trial, holding that the jury instructions were incorrect under the Price Waterhouse standard. The Court of Appeals held that Price Waterhouse permitted burden-shifting in ADEA cases only when direct evidence of discrimination was produced.

The Supreme Court disagreed with both the district court’s jury instructions and the Eighth Circuit’s decision. The Court reasoned that because Price Waterhouse decided Title VII claims, and not ADEA claims, it did not control Mr. Gross’s suit. First, the Court noted that, unlike Title VII, the ADEA’s text does not permit claims in which age is a “motivating factor” in the employer’s adverse decision.

The Court noted that Congress amended Title VII and the ADEA contemporaneously, and while it added specific language to Title VII permitting mixed-motive claims, it failed to add the same language to the ADEA. This omission, the Court reasoned, demonstrated Congress’ intent to preclude ADEA claims where age was simply a “motivating factor.” In addition, the Court held that cases like Price Waterhouse and Desert Palace, Inc. v. Costa, which interpreted Title VII provisions, were inapplicable to ADEA claims. Thus, the burden-shifting analysis developed in Price Waterhouse, requiring an employer to present evidence that its decision would have been the same regardless of a discriminatory motive, did not apply to ADEA claims, even when the plaintiff presented some evidence that age played a role in the employer’s adverse decision.

Citing Supreme Court precedent interpreting similar language, the Court held that “because of” an employee’s age meant that a plaintiff must present “but for” evidence of causation in order to win. In other words, the plaintiff must show that the employer would not have done what it did absent age discrimination. The Court held that the burden of persuasion in any ADEA case—mixed motive or otherwise—is that a plaintiff must prove by a preponderance of the evidence (which may be direct evidence or circumstantial evidence) that age was the “but for” cause of the employer’s challenged conduct or decision.

Lastly, the Court criticized the Price Waterhouse decision, concluding that “it is far from clear that the Court would have the same approach were it to consider the question today” and calling the Price Waterhouse burden-shifting framework “difficult to apply” such that “the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims.”

The Court’s decision in Gross makes it much harder for plaintiffs to prove age discrimination in cases in which the employer presents evidence that its decision was motivated by legitimate business considerations. Plaintiffs must now prove, by a preponderance of the evidence, that but for the plaintiff’s age, he or she would not have been subject to the employer’s adverse decision. Since the last elections, several pieces of pro-employee legislation, like the Lilly Ledbetter Fair Pay Act and the Employee Free Choice Act, have continued winding their way through the United States Congress. Under the current pro-employee climate in Congress, the Gross decision may well instigate an amendment to the ADEA’s language that mirrors that of Title VII, permitting age discrimination claims to be brought in which age is a “motivating factor” for the employer’s decisions.

Mike Wants To Keep Control of the NYC School System

July 1, 2009
As Law Expires, Bloomberg Moves to Keep Authority Over Schools
By JAVIER C. HERNANDEZ

Mayor Michael R. Bloomberg was set to lose control of the New York City school system at midnight Tuesday, but despite dire predictions of chaos from the mayor and others, it appeared that the nation’s largest school district would continue to operate largely as usual.

The shift of power, from Mr. Bloomberg’s hands to the clutches of a yet-to-be-appointed Board of Education, came after an impasse between Republicans and Democrats in the State Senate thwarted attempts to renew mayoral control of schools, which the Legislature authorized in 2002. The law set June 30, 2009, as the day the mayor’s control would end if it was not renewed.

At a videoconference with Gov. David A. Paterson in Albany, Mr. Bloomberg said the expiration of the law would mark a “nightmare flashback” to the days of the old Board of Education, which had a reputation for constant friction.

But while authority over schools now technically rests with the seven-member board, the mayor is expected to retain his authority by persuading at least two borough presidents to appoint people favorable to his policies. The mayor picks two board members and each borough president names one.

Mr. Bloomberg’s allies were reaching out to borough presidents on Tuesday in hopes of earning their support. The Manhattan borough president, Scott M. Stringer, and the Staten Island borough president, James P. Molinaro, have said they expected their appointees to be philosophically in tune with the mayor and to support the ideals of mayoral control. Mr. Stringer said he would appoint his legal counsel, Jimmy Yan, to the board on an interim basis as he conducted a search for a permanent member, if one was needed.

“Maintaining the system has got to become paramount, not political expediency, not political gamesmanship,” Mr. Stringer said. “You can’t let education issues be driven by the courts.”

Ruben Diaz Jr., the Bronx borough president, said he expected his appointee, the former Hostos Community College president Dolores Fernandez, to challenge the idea of retaining the schools chancellor, Joel I. Klein, and he said she might seek to overturn the mayor’s policies.

“Whether it’s existing policy or future policy,” he said, “you can anticipate that will be challenged.”

Marty Markowitz, the Brooklyn borough president, said he planned to appoint his chief of staff, Carlo A. Scissura. Mr. Stringer and Mr. Markowitz called for an immediate meeting of the reconstituted Board of Education on Wednesday.

Under the old system, 32 neighborhood school boards were responsible for overseeing middle and high schools in their districts and for hiring superintendents. Since Mr. Bloomberg took control in 2002, those boards have been turned into parent councils and stripped of their power. The chancellor now appoints superintendents.

Mr. Bloomberg said there was no clear way to resurrect the old system when summer school is beginning and schools are contemplating staffing and curricular options.

“Every decision, from personnel decisions to policy decisions, will be subject to litigation and uncertainty,” he said. He added that he would try to keep Mr. Klein, the man he appointed chancellor, in office, because Mr. Klein is under contract. The mayor’s staff has also considered going to court to seek an extension of mayoral control until Albany votes on the matter.

As the prospects of Senate action dimmed on Tuesday, supporters of mayoral control — including the City University of New York, Harlem community groups and charter schools — flooded reporters’ inboxes with statements of support.

The crisis in the chamber showed few signs of resolution.

The Assembly passed a bill in June that retains the core elements of mayoral control but adds several limits on the mayor’s authority, like curbing his ability to close schools and approve contracts.

Many Senate Democrats, however, have made clear their intention to challenge the bill and push for more parental input in education decision-making. While the Assembly’s bill most likely has enough support from Republicans and Democrats to pass, it faces the obstacle of Senator John L. Sampson of Brooklyn, the Democrats’ new leader and a critic of mayoral control, who could prevent it from being debated.

In a statement, Mr. Sampson said Democrats “have real concerns which should be discussed and addressed before passage of this legislation.”

Tuesday, June 30, 2009

History is Made: Mayoral Control of NYC Public Schools Ends

Almost all day today citizens of New York who were at all interested in the babies elected to run around the Senate heard that several bills were voted in by the Democrats because Frank Padavan entered the Senate chamber to get a drink.

Dream on, Democrats. Why you would think that citizens of New York State would want to vote for people who see a person entering the room for a minute to get a drink (was it really a V-8??) and use this person to establish that there was a quorum and vote on legislation? Does anyone give debate and review any value?

Never has anyone seen the mess that the Senate of New York State is in at this very moment.

Political Memo
Blame Panic in G.O.P. For Standoff in Albany
By DANNY HAKIM, NY TIMES

ALBANY — Why can’t New York’s feuding senators act like grown-ups?

Nearly a month into the Senate’s bitter leadership struggle, there are few signs that the Republican and Democratic voting blocs, deadlocked in a 31-to-31 tie, are close to a deal to get back to work.

To outsiders, it is hard to imagine why the Senate cannot come together in the face of rising public criticism, withering news coverage and a schedule that has Gov. David A. Paterson forcing them to spend summer weekends in the capital.

But inside the Capitol, interviews with lawmakers on both sides reveal deeper reasons for the standoff, and the stubbornness that has accompanied it. Senate Republicans know the state’s voters, demographically speaking, are moving away from them. The electorate is growing more diverse in New York City and its suburbs, a trend that is likely to favor the Democrats, while the upstate region, a Republican base, has suffered a population drain. At the same time, the Republican caucus is all white and almost entirely male, with half its members 62 or older.

Republicans privately acknowledge that they face an uphill battle in regaining control of the Senate in the election next year. They are claiming that they should lead the Senate for the next year and a half. But they are also trying to take steps now — during what may turn out to be a fleeting moment of power — to undo the worst of what life in the minority party means in Albany.

Their first act after staging a coup on June 8 was to institute rules changes to guarantee that administrative budgets be divided equitably. They have also said they want to guarantee that member items, the earmarks that are perhaps Albany’s most precious commodity, are split equally.

Legitimizing those rules changes is seen as critical to giving Republicans a voice in a future Senate that most believe will be ruled by Democrats. Democrats could always rewrite the rules if they claimed a clear majority, but reversing changes meant to establish fairness would be a controversial step for a party that bills itself as progressive.

“For myself, this is very much about the rules changes,” said Senator Tom Libous, (pictured above) a Binghamton Republican who directed the coup last month from the Senate floor. “These rule changes will make every senator relevant and effective so he or she can pass legislation and have equitable resources for their district in the future.”

Of course, Mr. Libous acknowledged that his party was asking for an equality that it never contemplated when it controlled the Senate, which it did for more than four decades until last November’s election changed that.

“I’m not justifying the way we ran the house,” Mr. Libous said. “I’m telling you it’s wrong and we should change it. What we did to the Democrats all those years was not right.”

For Democrats, agreeing to any power-sharing accord would almost certainly mean they have to dismantle their new administration and fire scores of staffers, or more, because they will have to divide the chamber’s administrative budget. They would also have to come to terms with the fact that their political victory that came last year was ultimately hollow.

Democrats are trying to avoid any arrangement in which they give up their claim to the majority, and are pushing hard for a temporary accord under which senators would meet for a day, under presiding officers from each side, take up the most urgent bills and then leave town.

Under that proposal, the two sides would then probably spend several more months locked in a battle to determine who has the rightful claim to control of the Senate, preserving the status quo while the Democrats’ far larger staff continued to collect its paychecks.

Senator Eric T. Schneiderman, (at right) a Manhattan Democrat, said there was a simpler motivation behind his caucus’s strategy and insisted there was no attempt to preserve power.

“That’s a perspective that ignores the traumatized state of the Senate right now,” he said. “It would be a remarkable accomplishment if the two sides could just agree to a bipartisan operating agreement to pass a couple hundreds bills to keep our state and local governments moving.”

And there are other motives at work.

Democrats loathe Pedro Espada Jr., the Bronx Democrat who abandoned his caucus and joined the Republicans, who then appointed him Senate president. Many Democrats simply cannot countenance the idea of Mr. Espada in such a position, a job that would have him become governor if Mr. Paterson were incapacitated.

Mr. Espada is facing state and local investigations over whether, among other things, the Soundview HealthCare Network, a nonprofit organization he founded, misappropriated funds.

Predictably, both side have couched their positions as being in the people’s interests, rather than their own, and attacked each other for all manner of treachery.

“To this date, the Republican party is completely fixated on discussing nothing other than controlling the State Senate,” Malcolm A. Smith, the leader of the Democratic caucus before the coup, said this week, while Senator Dean G. Skelos, leader of the Republican caucus, said, “There has to be an operating agreement through 2010, so we do not go through this gridlock again.”

For the moment, there is no end in sight. Senator Dale M. Volker, a Republican and former police officer from western New York, summed up the state of play best recently, when he quipped, “I might have to start carrying my sidearm again.”



July 1, 2009
Glimpsing a G.O.P. Passer-By, Senate Democrats Grab the Gavel
By NICHOLAS CONFESSORE and JEREMY W. PETERS, NY TIMES

ALBANY — The latest attempt to break the State Senate’s three-week-old stalemate began with a quest for caffeine.

Shortly before noon on Tuesday, as Democrats prepared to convene what they expected to be another fruitless one-party session, they saw Frank Padavan, a Queens Republican, walk through the rear of the chamber.

Mr. Padavan would later say he had simply been taking a shortcut to the members’ lounge to grab a cup of coffee. But to the 31 Democrats in the chamber, that did not matter. Claiming that Mr. Padavan’s brief presence gave them the 32-member quorum required to gavel the Senate into session, Democrats began ramming through dozens of measures, including sales tax extensions and bond authorizations that were set to expire at midnight.

By the time the Democrats adjourned, Mr. Padavan’s coffee run had thrust the Capitol into a new round of recriminations and legal debate. Democrats insisted that the bills had been lawfully passed, Republicans denounced the session as fraudulent and inappropriate, and Gov. David A. Paterson suggested that he would not sign the bills into law.

“Was the session valid? The answer to that question is yes,” said Malcolm A. Smith, (pictured above) the Democratic leader. “The other question is also, why would anyone go to disqualify the session given the significance of what we accomplished today?”

Senate Republicans had a ready answer for Mr. Smith.

“That is probably the most fraudulent, obnoxious, arrogant display of partisanship,” said Dean G. Skelos, the Republican leader, “and, quite frankly, a total disregard of the institution of the Senate that so many of us care about.”

The disputed session marked the third time in three weeks that either Republicans or Democrats had tried to vote on legislation amid a battle over which side controlled the chamber. With one Democrat, Pedro Espada Jr. of the Bronx, allied with the Republicans, the two sides each have 31 votes.

But with a quorum established in their eyes — and no Republicans remaining on the Senate floor to object — Democrats began passing legislation by unanimous consent. Because he was counted as present and did not seek to cast any votes, Mr. Padavan was recorded as a “yea” on each bill.

More controversial items, like a bill to reauthorize mayoral control of the New York City schools, were not taken up. But the Democrats did vote on a bill to increase the New York City sales tax. It failed, 19 to 13, but Republicans contended that the votes were irrelevant because they have technically controlled the chamber since June 8.

Speaking with reporters in a Capitol hallway, Mr. Padavan — who said that after reaching the lounge, he ended up getting a can of Coke — rejected the idea that he had officially been present.

“The session had not begun,” he said. “I was not there when it was gaveled in. I was not there during the prayer or the pledge.” He added that the session was “childish” and “totally fraudulent.”

In a sworn affidavit distributed to reporters, Mr. Padavan said that to have been counted as present, he would have had to signal affirmatively to the Senate clerk. In sworn affidavits of their own, eight Democratic aides and two senators, Diane J. Savino of Staten Island(at right) and Antoine M. Thompson of Buffalo, said they saw Mr. Padavan on the Senate floor right after they had gaveled the chamber into session and during the Pledge of Allegiance and the moment of silence, which normally precede other Senate business.

Mr. Paterson indicated that he would not sign any of the bills passed on Tuesday, citing the uncertainty about whether Mr. Padavan could be counted toward the quorum. He also implored the Republicans and Democrats to settle their differences and pass an extension of the law on mayoral control of the New York City schools before it expired at midnight.

“Once again the do-nothing Senate has exceeded our greatest fears and contempt,” Mr. Paterson said. “The Senate again is in turmoil, now about whether people were in or out of the chamber.”

Most of the legislation that the Democrats claimed to have passed on Tuesday was first approved by the Assembly. Under state law, the Assembly must now, in effect, accept those bills as legitimate before sending them to the governor for his signature.

Melissa Mansfield, a spokeswoman for the Assembly speaker, Sheldon Silver, said no final decision had been reached.

“We are anxious to see progress in this area,” Ms. Mansfield said, “and we are having conversations with the governor to avoid technical vetoes of bills, many of which would require new home-rule messages and another passage.”

Lawyers for Mr. Paterson, the Senate Democrats and the Assembly Democrats were discussing their options on Tuesday evening.

The governor said he would continue calling the two sides in the Senate into extraordinary sessions to force them to work out a power-sharing agreement. A series of court rulings on Monday and Tuesday upheld his ability to call the Senate alone, without the Assembly, into such sessions.

Bowing to one of those rulings, which held that all 62 senators were required to convene at the same time in the same place for extraordinary sessions, the Democrats and Republicans met together on Tuesday for the first time in a week. But as before, they gaveled out without conducting any business.

Dems claim GOP senator was in chamber, start passing bills
Padavan denies he gave Senate 32 members for quorum

Capitol bureau, 1:20 p.m., Tuesday, June 30, 2009
LINK

ALBANY -- A strange day in the state Senate just got stranger when Democrats, who gaveled in for a regular session just after noon, claimed that Sen. Frank Padavan, (at right) R-Queens, was in the chamber briefly after the session began, establishing a 32-member quorum and allowing the Democrats to begin passing time-sensitive legislation.

It is, however, unlikely that the tactic will result in a definitive break in the three-week legislative logjam.

Padavan, who has been a member of the Senate for more than 35 years, denied he was in the chamber after session began, and called the Democrats' move "a sham." Republican staffers said the conference was preparing legal documents to challenge all of the bills passed by the Democrats, who held a rush meeting of the Rules Committee on the floor of the chamber to move through additional bills.

The unexpected development in the Senate stalemate occurred as Gov. David Paterson was about to begin a press conference with dozens of New Yorkers who would be affected by the failure to pass the legislation. Paterson began by announcing the Democrats' move, to applause.

Nevertheless, the governor returned to the podium minutes later to announce that he would not be signing any of the legislation passed during the noon session, and issued a proclamation for another extraordinary session -- Tuesday's second -- at 7 tonight.

"I suggest that all senators be there," Paterson said.

Earlier in the day, a court order achieved what a week of political negotiation failed to pull off: The full Senate convened at this morning's 10 a.m. special session called by Gov. David Paterson. Although the session was markedly more collegial than the June 23 dueling session in which both parties claimed command of the chamber, this morning's appearance failed to move time-sensitive legislation forward.

The appearance by the 30 Republican members and breakaway Democrat Pedro Espada Jr. followed the unexpected denial of a stay of an order issued Monday by Supreme Court Justice Joseph Teresi.

State Supreme Court Justice Bernard J. "Bud" Malone Jr. has rejected a Republican-led effort to avoid going into session today, a day after another judge ordered the GOP and Senate Democrats to appear in the Senate today for a session.

"I'm not going to stay the order of Judge Teresi," Malone told GOP lawyers this morning.

The GOP's attorneys will go before the full five-member Appellate Division at 3 p.m. today.

Teresi ordered both sides to meet as a single body instead of conducting the 31-member sessions in sequence, a practice that had prevailed in the chamber every day since Thursday.

With Sen. Andrea Stewart-Cousins presiding, the Democrats conducted a quorum call and then began calling the absentees. In the middle of the absentee call, the GOP senators and Espada arrived en masse.

Democratic Leader Malcolm Smith immediately asked for the Senate to be at ease, at which point Republican Leader Dean Skelos stood up to speak, but was not recognized by the Stewart-Cousins.

Smith walked over to speak with Skelos and Republican Sen. Tom Libous.

Then Skelos stood and addressed Stewart-Cousins, saying he did not recognize her as the presiding officer -- a role that Espada claimed after the June 8 coup.

"You are not the appropriate person to be presiding at this time," he said.

Skelos then called on the Democrats' request for a public hearing to negotiate a power-sharing deal, for noon today.

He then asked for an adjournment -- an odd move, considering that he had previously said he doesn't recognize the chair.

Smith didn't take Skelos' challenge for a public meeting, and said instead that the Democrats would be in regular session at noon today.

Democratic Sen. Jeff Klein motioned to adjourn, and Stewart-Cousins adjourned sine die, or indefinitely.

Many members of the Senate GOP walked away angry.

"This is bulls----," said GOP Sen. Andrew Lanza as he walked out of the chamber.

Follow the day's developments at Capitol Confidential.

Paterson Won't Sign The Senate Dems' Bills
June 30, 2009
LINK

Even Gov. David Paterson is confused by what's going on right now in the Senate, where the Democrats are passing bills by claiming that GOP Sen. Frank Padavan's brief foray through the chamber was sufficient to provide them with a quorum.

Paterson at first announced triumphantly to reporters and staffers assembled in the Red Room that he had received word of Padavan's walk-through from the Democrats, who were engaged in approving their active list.

This sparked a round of enthusiastic applause.

(After three weeks, everyone - with the exception of certain members of the warring Senate factions, and, perhaps, Paterson himself, who is hoping for an approval rating bump out of this, just wants this to end).

But the mood changed 10 minutes later, when Paterson said he had gotten a call from Secretary of the Senate Angelo Aponte, who said Padavan is challenging the Democrats' claim that he had signed in by making eye contact with the Senate clerk.

A clearly frustrated Paterson insisted that what the Democrats are up to is different from the Republican/Sen. Pedro Espada Jr. coalition's efforts to pass bills last week:

"The Republicans did not have the gavel and were not in the presiding officer's seat when they attempted to pass their bills," Paterson said. "They did have 62 members in the chamber at that particular time."

"Here, the Senate Democrats had 31 Democrats and the question is whether or not Padavan's appearance in the chamber constitutes a 32nd vote."

"But because it is controversial, I don't want there to be any further controversy about passing these bills," the governor continued. "So I am looking to sign legislation if I feel that both parties agree or that it can be proven that the senator was in the chamber at the time when his vote could be recorded."

At first, Paterson said he didn't know whether he would sign the bills being passed at the moment into law.

He then left the room, and came back to say he had spoken to Padavan and decided to take the Queens Republican at his word that he didn't intend to give the Democrats' a quorum. (In a brief discussion with several LCA reporters, Padavan said he had merely cut through the chamber en route to the Senate lounge for a Coke cup of coffee).

Thus: No signing. (This was confirmed by Paterson spokeswoman Marissa Shorenstein).

Paterson called for another extraordinary session at 7 p.m. tonight.

The Republican/Espada coalition is going back to court at 3 p.m. to try to get a stay of state Supreme Court Justice Joseph Teresi's ruling.

DN Capitol Bureau Chief Ken Lovett pointed out that since the Democrats are passsing bills that were approved by the Rules Committee, they might be subject to yet another GOP lawsuit.

Sen. Malcolm Smith presided over the quickie Rules Committee meeting in the back of the chamber this afternoon, but the Republicans and Espada contend none of the old committee chairs are valid since the June 8 coup.

From Bad to Worse in the Senate Chamber
June 30th, 2009
LINK

Democrats just got a rude awakening. Sure, Gov. David Paterson (pictured at left) said that he won’t sign any bills they pass during the odd session started today by Republican Sen. Frank Padavan’s brief foray into the chamber, but that wasn’t their biggest problem.

Democrats were churning through legislation, passing measures 32-0 when Sen. Ruben Diaz stood up to loudly demand a bill be laid aside. The bill pending before the chamber would have allowed New York City to raise its sales tax to balance its budget. Liz Krueger said she had tried to mark the bill as “controversial” and in need of debate. But a vote was called and the bill was voted down.

Legislators including Malcolm Smith, John Sampson, Kevin Parker and Carl Kruger voted against the bill.

Diaz said ” the people of my district are paying too much taxes.” Other senators echoed his sentiment. Read the rest of this entry »

By David King on June 30, 2009, 2:31 pm

Every Senator Counts
June 30th, 2009
The fate of a number of key pieces of legislation — including the hike in the city sales tax — apparently now hinges on whether or not GOP Sen. Frank Padavan of Queens was or was not on the Senate floor today.

Padavan’s alleged — and clearly brief — presence on the floor, along with that of all 31 Democrats, gave the body a quorum. (Senators do not have to remain in the chamber for the entire meeting to be counted as being there.) That has enabled the Democrats to begin passing legislation.

It’s not over yet, though, Gov. David Paterson told a 12:30 p.m. briefing that the Republican conference maintains that Padavan never signed in and so cannot be counted as legally present. Referring to his eight years as a Senate floor leader, Paterson said,” Senators don’t sign in. They just walk in, and they’re recognized.” He did express reluctance, however, to sign legislation that may have been passed without a quorum.
Read the rest of this entry »

By Gail Robinson on June 30, 2009, 12:14 pm

Signs of Progress?
June 30th, 2009
There are indications that at least some members of the State Senate may be taking the today’s deadline for action seriously, David King reports from Albany. Under court order, Democrats and Republican gathered in the chambers this morning and quickly adjourned. But as the gavel (one for each party) fell, Republican Thomas Libous approached John Sampson, who has emerged as the Democratic leader. The two then went into the Democratic chamber to speak further.

Could a deal be in the works? There is, King says, a lot of chatter that it might finally be happening.

By Gail Robinson on June 30, 2009, 10:28 am

Judge Rules, Inaction Continues
June 29th, 2009
LINK

Supreme Court Judge Joseph Teresi has ruled that Democratic and Republican senators must report together for session tomorrow at 10 a.m. Teresi rejected the daily separate sessions both sides have been holding. “To come into session as separate groups is a fiction,” said Teresi.

So everyone is going to get right back to work then and that is that–not quite.

Republicans plan to file an appeal of the ruling at 9 a.m. tomorrow, thereby freezing Teresi’s order. Democrats have yet to announce whether they will seek an appeal–they may be setting up to vilify the Republicans for their appeal instead.

So it seems senators may not report to do their jobs yet again. Who would have guessed?

Meanwhile, power-sharing negotiations have gotten nowhere. Both sides tried their best to throw each other in front of the bus that is the looming June 30 deadline for renewing important pieces of legislation. Legislation scheduled to sunset tomorrow includes mayoral control of schools and measures to provide funding to municipalities across the state.

Democrats proposed holding a session at noon tomorrow if Republicans agree to their rules for a temporary power-sharing arrangement. Democrats put forward a slate of non-controversial legislation they feel must be acted on.

Supreme Court Judge Joseph Teresi has ruled that Democratic and Republican senators must report together for session tomorrow at 10 a.m. Teresi rejected the daily separate sessions both sides have been holding. “To come into session as separate groups is a fiction,” said Teresi.

So everyone is going to get right back to work then and that is that–not quite.

Republicans plan to file an appeal of the ruling at 9 a.m. tomorrow, thereby freezing Teresi’s order. Democrats have yet to announce whether they will seek an appeal–they may be setting up to vilify the Republicans for their appeal instead.

So it seems senators may not report to do their jobs yet again. Who would have guessed?

Meanwhile, power-sharing negotiations have gotten nowhere. Both sides tried their best to throw each other in front of the bus that is the looming June 30 deadline for renewing important pieces of legislation. Legislation scheduled to sunset tomorrow includes mayoral control of schools and measures to provide funding to municipalities across the state.

Democrats proposed holding a session at noon tomorrow if Republicans agree to their rules for a temporary power-sharing arrangement. Democrats put forward a slate of non-controversial legislation they feel must be acted on.

Absent from the slate is—who would have guessed it?–mayoral control of schools, as well as the sales tax increase the city needs to balance its budget. Democratic leader Sen. John Sampson finds the Assembly’s version of mayoral control quite controversial, as Sampson would like to strip down the mayor’s authority. It’s not yet clear why the sales tax measure was not included.

What is and is not included on the list is very likely irrelevant as Republicans say they are not itnerested in a short-term agreement.

Republicans say negotiations for a long-term solution have been disrupted by a rotating cast of Democratic representatives. Sens. Malcolm Smith and Sampson were negotiating for the Democrat up until last week. Now Democrats are representated by a number of Sens., including Jeff Klein, Neil Breslin, Tom Duane, Martin Dilan and Diane Savino.

Let the blame game continue.

By David King on June 29, 2009, 5:13 pm