Another day of dodging in Senate
Monserrate talks, walks; judicial merry-go-round
By ROBERT GAVIN AND RICK KARLIN, Staff writers
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First published: Friday, June 12, 2009

ALBANY -- The battle for the state Senate remained in stalemate Thursday despite numerous political and legal developments, as breakaway Democrat Hiram Monserrate continued to keep both sides wondering where his shifting loyalties will settle.
Republicans had hoped to receive a final answer to that question at the first legislative session to be gaveled in since Monday's dramatic coup, in which Monserrate and fellow Democrat Pedro Espada Jr. joined the chamber's 30 Republicans to elect GOP Sen. Dean Skelos as majority leader and Espada as president pro tem.

But after Republican members managed to make their way past angry protesters and enter the chamber, the session lasted less than 20 minutes.

Addressing the chamber, Monserrate -- the last member to arrive -- stood with Espada amid a sea of empty chairs on the Democratic side of the hall. "My understanding and agreement to coalition government was under certain criteria," Monserrate said. "I also understood the following: that for us to be an effective, bipartisan body, we need cooperation from both sides.'

"I spent the last two and a half days speaking to several of my Democratic colleagues, and it is unfortunate that they have decided not to join us," he continued. "But the reality is that we need to continue to give them the opportunity to participate. This chamber must not remain divided."

Monserrate is under intense pressure statewide and in his Queens district to rejoin the larger Democratic conference; recruiting additional members of the Democratic conference to the insurgent coalition would provide a degree of political cover to him as well as Espada, whose Bronx district is also heavily Democratic.

"I still remain committed to my party as a loyal Democrat, and I will continue to ask them to work with us," Monserrate said.

When he was done speaking, Monserrate walked out -- leaving the Republicans and Espada one vote shy of the 32 members required to enact legislation.

Monserrate's conflicted loyalties continued to be on display outside the chamber, where he refused to tell reporters whether he supports Skelos as majority leader.

After his departure, the Republicans adjourned after noting that the desk containing the legislation scheduled for debate had been locked by ousted Democratic staffers. The next session was scheduled for 3 p.m. Monday.

Although Senate Democrats stayed away from the chamber on Thursday, they remained active in two different courtrooms.

Just before the abortive legislative session began around 11 a.m., a state Supreme Court justice in Troy denied a motion filed by lawyers for Democratic Leader Malcolm Smith for an injunction to resolve the leadership standoff.

Andrew Celli, representing Smith, said the senator was elected to a two-year term as leader in January. He said no resolution was made in committee to replace him, nor did insurgent senators make a "privileged" request.

"There is no vacancy. Sen. Smith remains the temporary president," Celli said, referring to the opposition as "Sen. Espada and his confederates."

Celli also told the judge that Sen. Neil Breslin, the Democrat who was presiding over the Senate at the time of the coup, said Republican Sen. Tom Libous was out of order when Libous called for a change in leadership on the Senate floor. He said Libous never tried to challenge Breslin's statement.

John Ciampoli, a lawyer for Espada, told the judge that the majority of the Senate voted for the change in leadership, adding, "What Malcolm Smith is asking you to do is step in and substitute yourself for the 32 senators who represent the majority of the Senate."

Saying he doesn't have the authority in the issue, Supreme Court Justice George B. Ceresia criticized both sides for not being able to work out an agreement. "I think the people of the state of New York are the ones suffering from this," he said. "It's not indicative of good government -- it's indicative of anything but good government."

The question arose in court of the possibility of a senator without ties to either Smith or Espada opening the session. During a break, lawyers for both sides met behind closed doors, but failed to reach an agreement.

"There's not one person that they both liked -- is that what you're telling me?" Ceresia asked Ciampoli.

"Maybe not enough," the attorney replied.

In the afternoon, the Democratic legal team appealed their complaint in Kingston before state Supreme Court Justice Karen Peters of the Appellate Division, who issued a temporary restraining order removing Espada from the line of succession that would make him governor in the event that David Paterson becomes incapacitated.

Smith's marginal legal relief may be short-lived: A state Supreme Court justice will hear arguments at 9 a.m. today in Albany.

James M. Odato, Irene Jay Liu and Casey Seiler contributed to this report.

CHAOS in New York Senate, as Two Senators Become Republican "Allies" and Change Senate Leadership; Malcolm Smith Seeks Injunction

Bold coup upsets Senate
It seemed like a routine day, but a well-planned GOP attack ousts stunned Democrats after a brief stint in power
By JAMES M. ODATO, Times Union Capitol bureau, First published: Sunday, June 14, 2009
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Correction: There were two errors in an earlier version of this story. First, Democratic Senate Deputy Majority Leader, Jeff Klein, represents Queens. Also, the date Sen. George Maziarz met with Secretary of Senate Angelo Aponte was incorrect. The meeting took place on June 8th.
The overthrow of the state Senate that shocked the Capitol on Monday unfolded with a multitude of people playing critical roles in a drama unparalleled in state history.

The coup was over in short order. Based on numerous interviews, minutes were like hours for those involved.

Sen. George Maziarz circled Monday, June 8, on his calendar for two important appointments. He had an anxious feeling waiting for that day.

The Niagara County Republican had been called the end of the prior week by Angelo Aponte, the powerful, micromanaging secretary of the Senate. Aponte, Democratic leader Malcolm Smith's chief operating officer, asked Maziarz to show up at his office for a meeting at 11 a.m. that Monday.

Maziarz planned to be in the Senate chamber for a session at 3 p.m. to take part in a change of power that had been planned in secret for weeks. The details were sealed the previous Wednesday, with Maziarz recommending immediate action before word leaked out.

He worried that Aponte had wind of the plot.

It turned out the secretary wanted to discuss the need for civility during chamber debates, noting that Maziarz had gotten a bit personal during budget arguments.

"I shook his hand knowing he had no idea," Maziarz recalled. He smiled broadly in his office in the Legislative Office Building, much smaller than the one he used his previous 15 years in the Senate, when Republicans held control. "I knew we were going to catch him off guard."

Sen. Neil Breslin of Bethlehem had Monday scheduling issues, too. He had accepted fellow Democrat David Valesky's request to switch weeks of duty as chairman of the Senate session. "I wasn't supposed to be up there," Breslin said later.

Sen. Thomas Libous was on schedule, but he was starting to feel pain. He upset his cranky back gardening at his home in the Southern Tier. Known as "Rambo" as a young city councilman in Binghamton who challenged a popular Democratic mayor, Libous had been the choice of Senate Majority Leader Warren Anderson to succeed him in Albany.

In the chamber, Libous' eyes darted to Steve Pigeon and his boss, Rochester billionaire Tom Golisano, seated in the gallery above. Golisano, who last fall spent $4 million to help Democrats win elections, was an essential partner in the plot.

Libous saw Breslin assume the chairman's post, and thought his luck had taken a hit. Breslin, a veteran of the chamber and a lawyer for 35 years, took turns officiating with two more junior Democrats. Either of them presiding, Libous thought, would have made his job easier. "I'm an observer," Libous said. "I see who's good on the floor. I thought Breslin would have been tougher."

But Libous had been rehearsing and was confident. He knew he had 32 of 62 votes, including Democrats Pedro Espada and Hiram Monserrate of New York City. He rose from his Senate seat and asked Breslin for a "privileged resolution" to be voted on at the start of session.

Republican lawyer Adam Richardson delivered the resolution document to Journal Clerk Thomas Testo. A Republican holdover and state employee since 1976 who is considered excellent at his job, Testo was said to be in his last session -- perhaps involuntarily.

Testo, who had read thousands of resolutions during hundreds of session days, could tell by a glimpse that this one was different.

He took the document as Richardson delivered a copy to Deputy Majority Leader Jeff Klein, an ambitious Queens Democrat and, as Libous put it, a "worthy adversary." Klein thought his biggest order of business that day would be the resolution prepared by Aponte identifying the $85 million in member-item grants the senators would hand out in their districts this year -- $77 million for the 32 Democrats, $8 million for the 30 Republicans.

Without looking at Libous' resolution, Breslin directed it be read. Testo enunciated: "By senators Libous, Monserrate and Maziarz, providing for the election of Pedro Espada Jr. as temporary president of the Senate and Dean Skelos as vice president pro-tem and majority leader."

As the noise level in the chamber rose, Klein jumped up and asked a halt the proceedings. Breslin agreed. Libous argued that he held the floor and would not sit down.

Breslin turned to fellow Albany County Democrat Keith St. John, a lawyer and former Albany Common Council member who ascended to parliamentarian in January when Democrats took over.

Not known for his political savvy, St. John huddled with Breslin and Michael Fallon, the Democrats' top lawyer on the floor and a seasoned legal operative but not considered a wartime consigliere.

Libous demanded a vote to overrule Breslin. Minutes passed.

When Breslin allowed a vote, every Republican senator, plus Espada and Monserrate, stood to raise their hands. Klein called for adjournment, Breslin confirmed it and the Democrats fled, not sticking around to see Espada and Sen. Dean Skelos sworn in as the new leaders.

In the huddle, Breslin revealed later, he had asked Fallon and St. John how to get out of the jam.

"I've been a lawyer for 35 years," Breslin said. "I've been in a courtroom ... You have to react."

Some legal critics say Breslin should have used his gavel to ignore Libous, grant Klein's motion and buy time. "Ultimately, we can talk and dance," Breslin said. "Whoever has the majority rules."

Breslin said he did not want to take an illegal route, but Libous caught him off guard. He said Libous was "devious" in identifying his resolution. All privileged resolutions are first approved by the majority leader, so he assumed it was vetted. "I have always assumed that people in the chamber are honorable," Breslin said. He said he has full faith in Testo, St. John and Fallon, but he believes Libous was a bit underhanded.

Not so, said Libous, Maziarz and a slew of lawyers. Senate rules did not require prior approval of such a resolution.

"Sen. Breslin just walked into it," said Maziarz. "There were a lot of unplanned benefits." He said he wasn't surprised that Breslin let Testo read the resolution. Last year, Maziarz often filled the president's seat for both Sen. Joseph L. Bruno and Skelos when they were majority leaders. He said he always let Testo read the resolution immediately.

Together, Libous and Maziarz had sewn up the deal. It started about two months ago. Pigeon reached out to Maziarz. Enough is enough, he said: The Democrats, were making things worse. Maziarz took the Golisano camp to Libous and then to Skelos, the minority leader. Pigeon, the Erie County Democratic Committee chairman from 1995 to 2002, knew Espada and Monserrate. He had gone to the Bronx in December to make sure Espada and other dissident Democrats got behind Smith to secure the Democratic majority.

In the spring, Espada told Pigeon that working under Smith was impossible. He said Aponte was ordering around committee chairmen, specifically attempting to get Espada to run his Housing Committee with a favorable vote on a bill to control rents in New York City.

On April 28, Maziarz arranged a meeting among Pigeon, Libous, Skelos and himself. They drove around Albany looking for a place they wouldn't be recognized.

They found Red Square, "a biker bar" Maziarz said. "I went in, saw people with earrings. Headbanger music. I went back to the car: 'No one's going to know us here.'"

They hung out for an hour and agreed they would attempt to create a "coalition government" of all the Republicans and as many Democrats who would give them the majority and pledge to improve the Senate.

Republican lawyer Rob Mujica became a central figure. Mujica, the finance secretary for Skelos, had had his own confrontation with Aponte in the winter. Aponte wanted Mujica to brief the Senate Democrats on budget issues. When Mujica suggested that Skelos was his boss, Aponte fired him, although Mujica continued on the Republican payroll.

Mujica, a graduate of Albany Law School and part of the GOP central staff for years, is of Puerto Rican descent and understands the language and culture of Hispanics Monserrate and Espada. Mujica, with other Republican lawyers, carefully helped lay out the plan. Senators Kemp Hannon of Long Island and George Winner of Elmira prepared Libous for any pushback in the chamber.

Pigeon and Golisano assured the dissident Democrats that Golisano's Responsible New York, a political action committee fueled with a fraction of Golisano's immense wealth, would back candidates who support Golisano's vision of reform.

It was at Mujica's house that the final details were put together a week ago, including committee appointments. The planners ran through 15 scenarios as possible responses, and the Democrats reacted with what was the best-case scenario, Pigeon said, because they were ill-prepared. "Malcolm was an incompetent leader and he proved it on Monday," Pigeon said.

Mujica's home is on Eagle Street. It was the war room and Republican operatives and senators and representatives of Golisano and Espada were in and out. Across the street is the Executive Mansion, where Gov. David Paterson sometimes lays his head.

"We wouldn't have even tried to do it with a strong governor," Pigeon said. "We wouldn't even had considered it."

Golisano had become frustrated with Paterson as well.

Golisano said the Democratic leadership had failed. It became clear to him when he sought to get Smith to plan a property tax break in the state budget and got nowhere.

It became clearer after the $132 billion budget was passed with an enhanced income tax on wealthy New Yorkers.

He was angered when he met with Smith and the leader seemed more interested in his BlackBerry than in Golisano's message.

"Libous did a great job," Golisano said, warning there's more to do. "Success only lasts for a moment -- when you achieve it."

James M. Odato can be reached at 454-5083 or by e-mail at jodato@timesunion.com.


Coup, then chaos

Monday: Coup takes place, flipping control of the Senate to Republicans and two turncoat Democrats.

Tuesday: The Senate chamber is dark. Both camps meet privately.

Wednesday: The new "coalition government" cancels its proposed first session one of the turncoat Democrats, Hiram Monserrate, asks for time to woo more Democrats.

Thursday: "Coalition government" unlocks Senate doors and conducts a session without 30 Democrats; Monserrate makes a cameo appearance. Lawsuit by Senate Democrats begins.

Friday: State judge says he'll rule Monday on the legality of the change of control, but wants parties to work it out themselves.

Saturday: Senate Democrats weigh a leadership change within their conference and consider promoting Brooklyn's John Sampson.