This program is a production of WAMC News.
From Albany, this is the Legislative Gazette, a weekly half-hour review of New York State government and politics.
Your host is political scientist and syndicated columnist Dr. Alan Shartak of the State University.
In this edition of the Legislative Gazette we'll discuss Governor Cuomo's call for justice department probe of rising,
heating oil prices, also Fred Dicker on the flap over the top man in the New York National Guard.
New York's Court of Appeals, the highest court in the state, ruled this week that an application filed by Planned Parenthood to open two abortions to the state's state.
New York's Court of Appeals, the highest court in the state, ruled this week that an application filed by Planned Parenthood to open two abortion clinics had been processed properly.
The case had been brought by the Albany Roman Catholic diocese and had been supported in two lower courts.
Courts' decision means that the two clinics in Albany and Hudson will be free to offer the operation once basic health department certification is received.
Leslie Brokaw has more.
The case originally had been brought by the Roman Catholic diocese against the Upper Hudson Planned Parenthood and the New York State Health Department.
The diocese had sought to prevent Planned Parenthood from offering onsite abortion operations at their established clinics in Albany and Hudson.
It's believed that this was the first attempt nationwide to prevent the opening of an abortion clinic by the Roman Catholic Church by using the court system this way.
Tuesday's decision by the Court of Appeals overturned two lower court decisions against the state.
The case went like this, when Planned Parenthood made their application to the health department for permission to offer abortions at the two clinics,
the Roman Catholic diocese challenged the application on the basis of a procedural technicality.
The diocese said that the health department approval of the application was improper because there was an incorrect procedure used in the evaluation of a need for the clinic.
The health department had used an informal criteria that if less than 50% of the abortions in an area were performed in health clinics rather than hospitals, then there was probably a need for an abortion clinic.
The diocese argued that the 50% evaluation was improper since it was not in the formal procedures of the application process.
Father Michael Ferrano, spokesman and chancellor for the Albany Roman Catholic diocese.
We brought this sooju, must remember, because of specifics that are circumstances, namely that the public's right to know and participate in the health planning of the community was not respected.
That's why we went to court. It's no secret that the Catholic Church in the person of the Roman Catholic diocese of Albany is theologically philosophically and ethically and morally opposed to abortion.
The fact that that wasn't the issue that we brought to court doesn't monitor that now. However, we went to court because of the public's right to know and participate in a process.
We feel that that was frustrated and intentionally frustrated.
The health department, which was represented by the State Attorney General's office, countered the diocese with several arguments.
Debra Bakrack is the attorney who argued the case for the state.
The state had two arguments. First, that these petitioners did not have standing to challenge the Department of Health's decision.
The second aspect of our argument was that the department correctly decided that there was a public need for a low cost out of hospital abortion services in the Albany County area.
According to Attorney Bakrack, the court did not rule on the first issue, only saying that they would assume in this case that the diocese did have standing to bring the case against the health department.
Bakrack says the court did not specifically discuss or determine the issue of the diocese standing and that the diocese's role in bringing this case does not necessarily present a precedent to do so in the future.
However, the court of appeals did rule unanimously that the health department's procedure was adequate and that the application's approval was proper. Attorney Bakrack.
The Department of Health is charged with determining whether or not there's a public need for additional health services.
In making that determination here, one of the factors that the Department looked at is the percentage of abortions currently being performed in hospital versus out of hospital in the Albany County area.
The court of appeals found that it was appropriate for the Department to look at that factor and in looking at it, the Department of Health found that more than 80% of abortions in the Albany County area are provided in hospital.
And this stands in stark contrast to the situation in other parts of the state where a far larger percentage of abortions are performed out of hospital. That is in clinical settings.
Clinics, I assume, are cheaper than hospital care?
Yes, and that was in fact one of the factors that the Department considered in this case that Planned Parenthood proposed to offer the clinical provision of first-time
extra-bortion services had a cost of less than $200 and currently hospitals were charging between I think it's $700 and $1000.
With their arguments, the state convinced the court of several things that there is a need for clinic services that the health department used that needs test as part of its assessment of the application that the state has the right to make regulatory decisions and that the assessment reached a reasonable concourse.
That is to allow the Planned Parenthood clinics to offer abortion services. Attorney Bakrack says that the decision wasn't a surprise even though it overturned two lower court decisions.
We were quite pleased we had felt from the beginning and it's the reason why we took it to the highest court in the state that the Department of Health had well correctly in this instance and had appropriately looked at all the circumstances surrounding the Planned Parenthood proposal and the state of the state.
And again correctly determined that there was a public need for out-of-hospital abortion services.
The executive director of Planned Parenthood of Upper Hudson, Ruth Clemper says that she's also pleased with the decision but she says that the months that it's taken to get to this point have not been without their toll.
In the meantime there were people, fanatical anti-abortionists who were pleased that hundreds of women were forced to go elsewhere, face delays, pay more money.
To them that was their victory. We don't see it that way women were really put to a disadvantage.
There is no place in the Albany area where a woman on Medicaid for instance can get our Medicaid accepted except the hospital.
By mid-summer the hospital was running three, four weeks delay for an appointment hospitals do a lot of other times of medical care.
They only schedule abortions one or two days a week. So to put a woman simply because she is poor through almost a month's delay is unconscionable.
Ruth Clemper says that Planned Parenthood does not plan to announce when the abortion clinic will begin operation. The clinics must first receive basic health department certification.
Father Michael Faranos of the Albany diocese says that their group is reviewing the court decision and has not yet decided whether to appeal it to the U.S. Supreme Court.
He said that if they think any good could come from appealing the decision they would do so without hesitation. In Albany, unlessly broke off.
Reports have been circulating that Governor Cuomo wants his top military adviser to resign.
A story appeared in the New York Post that quoted a senior Cuomo aide is saying that Major General Vito Castelano will be replaced.
Leslie Broca spoke to Fred Dicker who wrote the post story.
You reported that Major General Vito Castelano in the words of a senior aide that you spoke with is history that he'll be fired or more likely asked to resign.
Can you explain who Castelano is and what this is all about?
Sure, Leslie. For about 10 years now, General Castelano has been head of the New York State National Guard. He also holds several other titles including Chief of Staff to the Governor and Director of Civil Defense for the State.
Castelano over a period of time has gotten involved in some controversial affairs which have produced some embarrassment for the Governor.
The most recent and probably best highlighted events were twofold or two events rather.
They included Castelano's failure to return back from a trip to Italy before Hurricane Glorious struck in the New York in September.
The Governor felt he should have come back because Castelano as I had said is head of civil defense preparedness for the State.
Number two, the issue that's gotten I think probably the most press has involved a sweetheart bill that a couple of influential legislators have tried to get through the New York State legislature which would have upped Castelano's retirement pay or his pension by about $41,000 a year, not an inconsiderable amount.
While the bill can be justified in some ways, the Governor is known to have been unhappy that this General Castelano apparently went to the legislature on his own to lobby for a bill that the Governor didn't support and in fact the Governor has said he's going to veto the measure.
There's been an accumulation of incidents that was the lobster new bird case that was recently revealed in which some National Guard aviators brought a planeload of lobsters back to a new bird airport base or Air Force Base.
There's been an ongoing scandal under investigation in the New York National Guard armories in New York City.
And while Castelano himself hasn't been directly tied to what could be viewed as a scandalous behavior, the Governor nevertheless has not been happy with him.
My story on Monday said, as you noted, quoting a top aid to the Governor, that Castelano would be fired or hopefully would resign before that came about and we stand by that story.
Now you call this an uncharacteristically tough decision. What do you mean by that?
Yes, I mean it both from my own judgment and from a popular judgment down here at the Capitol.
It's very unusual for the Governor to be seen in a position of firing anybody.
The Governor prods himself on humanitarian attitude towards the staff and has not been known over the years while Governor or as Lieutenant Governor for just sort of systematically wiping people out firing them as it's pretty common in a lot of places.
And it was common with Governor Cuomo's predecessors. So the Governor for him to conclude that someone should be fired or really run out of office is an uncharacteristically tough position for him to take and that's why I noted it.
Now what has the Governor's public reaction to your story been? I understand he's been questioned about it.
Yes, in not a surprising manner from where I sit, the Governor has not confirmed my story but I would note that he hasn't denied it either.
If you listen closely to what he says, I think you'll hear him saying he doesn't like to fire.
And certainly we all know that. And number two, he has said that people do resign now and again strongly hinting that that's where he expects Costalano to do.
Well, he hasn't, as I said, confirmed my story, hasn't denied it. And as I said earlier, I certainly stand by it.
I think he's trying to be kind to Costalano publicly and nudge him out. The key question here I think that has to be asked in assessing his reaction is did the Governor say that he has full faith and confidence in General Costalano?
And the answer to that is no. And sure of that kind of a comment, I feel that my prediction is certainly going to come about.
Fred Dicker is Albany Bureau Chief for the New York Post.
A spokesman for General Costalano, Captain Dennis Nelson, says that the General has no plans to resign. He had no comment on the post report.
Governor Mario Cuomo was asked the Federal Justice Department to investigate why home heating oil prices have risen rapidly in New York, especially on Long Island.
Cuomo says there's no justification for the higher prices and his consumer protection chief agrees. I asked Richard Kessel what it's all about.
Well, the price of heating oil, unfortunately, particularly on Long Island is going up at a time when it shouldn't be. The average price of home heating oil on Long Island right now is around $1.23 a gallon, which is about $0.15 higher than it is upstate.
We have now found consumers who are paying as high as $1.28 a gallon here in New York State. And at a time when inflation is down, oil is plenty full. And the winter is not unseasonably cold. I see no reason for this.
Well, what are the variables? One of the things that I found very interesting in reading the newspapers was that an incredible consumption of oil versus gas on Long Island is that is that competition between the oil and the gas.
Something that tends to keep oil prices down in other locales. Well, I think that the Long Island is, of course, a particular interest. You do have approximately 80% of the homes heating by oil.
And there are dozens and dozens of companies on Long Island who do supply oil. I don't think there is any reasonable reason why the prices though are where they are.
Unfortunately, Long Island seems to be picked on more than any other region of the state. And to see that people on Long Island are now paying an average of $1.23 a gallon for fuel oil. I mean, that is ridiculous. Those prices are 5 and 6 and higher than they were at the peak of last winter. And some of the prices are as high as they have ever been in history.
And there is no reason for it in my mind. I think the consumers on Long Island are being ripped off. Richard, you and I both know that there is always a reason for everything. So what are some of the possible reasons?
Well, some of the possible reasons are number one that the oil companies got together either formally or informally several months ago and kept inventories down.
We followed these numbers in October and we warned the U.S. Department of Energy that the inventories for the oil industry for heating oil were down.
And anytime inventories are down and the winter starts, supply and demand is going to raise those prices. So certainly that has got to be a major factor in there.
Another factor could be the fact that the winter is ahead may not be as cold as the oil companies would like if it's not as cold people don't use as much oil.
The only way to make up for that to make sure that profits are there at the end of the winter is to raise prices now and then let them come down somewhat.
So there is certainly some reason for it that I don't agree with them and I certainly think that the Governor Cornwall's move to the Justice Department is the correct thing to do because we've got to find out exactly why this is happening here in New York.
So if he's moving to the Justice Department and these guys get together if they are in fact doing that, aren't you accusing them of collusion?
Well we're not accusing them of collusion. What we're saying is that prices are high. They shouldn't be there. And we're asking the Justice Department to find out exactly why those prices are high.
Why is it that almost every consumer on Long Island is paying the same price for home heating oil? It just doesn't make any sense.
We're not accusing anyone of anything but we certainly think that the Justice Department ought to find out exactly why that is happening right now because the end result is that consumers are having difficulty paying their bills.
Okay let's back up for a minute. The OPEC countries have just gotten through beating each other's brains out. There's a surplus of oil, the British are fighting with the OPEC's and the Norwegians and everybody else.
Now why in the world should this be happening if not from what we would call a planned scarcity?
Well I think Alan you bring up a very good point. Right now the oil market is a glut. There is more oil than we know what to do with. OPEC is in disarray and there have been predictions that the price of a barrel of oil could actually fall in the near future to under 20 dollars a barrel.
Clearly you can't blame it on OPEC. You've got to look here domestically. I think the thing that the Justice Department needs to look at carefully at the request of the governor is the supply, the inventories.
The fact is that we have been in constant touch with the American Petroleum Institute and we knew six to eight weeks ago that the inventories of home heating fuels and distillerates were lacking.
They were far behind what they were last year or the year before and again there's no reason for that to have occurred.
Well that's fascinating because what OPEC was saying to its members in terms of taking the oil out of the ground was hey look why don't we keep more oil in the ground, take less out the prices will go up but they couldn't do that.
They couldn't make that happen. So now it may be that instead of creating the scarcity in the ground that OPEC wanted it's the distributors or the manufacturers who have the problem.
Well I think clearly the problem is here in this country if you talk to the different sectors the retailers blame the distributors and the refiners they say that they've been getting hit with price increases since late September or early October and that initially they absorb the increases now they can no longer do that.
The wholesalers and the refiners their contention is that yeah we've been raising the price but that's because there are a lot of uncertain factors including what the weather conditions are going to be, what the supply picture is, how much is going to be needed etc.
So one side seems to shuffle it off to another side and that is certainly not an answer to the consumer on low-neighlin who pays a dollar 24 or a dollar 25 a gallon for a commodity that someone upstate is paying a dollar 6 or a dollar 7.
Well even assuming it's a dollar 8, a dollar 9 or a dollar 10 isn't that too much considering that that's what people paid last year and the changes in the total marketplace aren't being reflected even in that dollar 10.
Well I think it's directional and I certainly think that the price of how heating wealth throughout the state of New York should be going down not up and I think that whether you're looking at upstate, downstate, long island, the fact that prices this year are higher than last year.
At a time when inflation is less, oil is more plentiful and OPEC is in disarray, it doesn't make any sense and the excuse that the oil company is given that some give is that well prices are going to begin to come down next month.
My answer to that is so lot, they should never have gone up to begin with as far as I'm concerned based upon current market conditions.
The price of how heating oil in oil areas of New York state should have been decreasing from the beginning of the winter heating season. Unfortunately the reverse has been true.
Now Richard you are the chief of the governor's consumer protection board. Tell me this, you seem to have no fear. You go after everybody and the governor seems to be giving you very high marks.
Do you ever wake up in the middle of the night saying maybe I've gone too far this time?
Well I don't, I don't make it a practice to go after people. I try to help consumers. My job is to represent the consumers the best way I know how.
And if I see people on Long Island paying $1.25 a gallon for home heating oil when they should be paying a lot less, I'm going to say something about it.
And I think that we're fortunate in the state that we've got a governor who is so consumer-oriented, who is himself a consumer advocate.
And I think that says a lot for the governor that he could take someone like myself who has been a consumer activist out in the street for nine to ten years and put them inside of government.
I think it shows a tremendous commitment to consumers. And certainly I think that it benefits all of the people of the state of New York.
Sometimes you pick on people that are a lot bigger than you, but I have a job to do and that's to represent consumers. And I'm going to do that to the best of my ability.
But what about the politics of the situation? Clearly if this governor wins bigger or as big as many people expect him to do, he'll have to do well on Long Island in Westchester.
He's been paying a lot of attention to Long Island. We have Shoram, we have the opening of this nuclear plant, which he has opposed.
We have this other question now about heating oil. Some people might say he's grandstanding it and so are you.
Well let me assure the people that the governor Klamau is concerned for the people of Long Island.
I certainly wouldn't call it grandstanding to stand up for the safety of the future of Long Island. And that of course being his position on the Shoram nuclear power plant.
In terms of fuel oil, the fact is that the governor is responding to a crescendo of complaints. Complaints from dozens of people of Long Island who have written in complaining about the high cost of heating oil from state legislators.
Yes, both Democrats and Republicans who want to know why the prices are going up. And I think what the governor is doing is the governor is not worrying about politics.
He's standing up for the people of Long Island and he would do it for the people in other areas of the state. And he has done it for the people in other areas of the state.
I think that really as far as I have been concerned as long as I've been associated with him, he's never said not to do something for consumers or to do something because it is politically expedient.
He does it because he believes in it and because he wants the consumers to be well protected.
Now there's always been this speculation that the assembly tends to be consumer oriented but that the Senate tends to side with business more.
Do you think that that's a fair generalization?
Well I think that's an unfair characteristic. Is the state assembly more likely to adopt a consumer legislation? Yes.
But let's not forget something. Under Governor Cuomo and his working with the legislature in the last two years we've had some major advances in consumer law.
We've adopted a new kind of lemon law. We've adopted a used coal lemon law. We've adopted a new stricter item pricing law.
And so that doesn't get done without cooperation from both the assembly and or the Senate.
If you had to give yourself a grade for how you've done in the job, what would you give yourself?
Well I guess I have to give myself a grade of C. I'm coming along, I'm learning and I think I'm doing okay.
I think there are a lot of things that I could do better and I'm always trying to do better as a public official. I do the best I can. I'm not perfect. I certainly make mistakes like anyone else but I'd say I'm doing doing an okay job.
Consumer Protection Chief Richard Kessel.
Now we come to that part of the program that I love the most. I get a chance to talk this week not only with Bill Graulty but with associate producer Leslie Brokaw.
Bill, what's hot? Well there was quite a bit hot in the political arena with the decision by Senator Edward Kennedy of Massachusetts not to seek the presidency.
Which a lot of people are saying in a sense almost clears the way if you will for Mario Cuomo's presidential bid.
A lot of us are saying that there's no sure thing anywhere in politics but that certainly was one of the major stories this week.
It's terrific. It's just clear to me that the Cuomo peoples surrounding him are excited by this event.
I know that the press office is besieged with telephone calls on the second floor of the capital and it is just one of those things that he's going to have to manage very carefully.
He can't afford to get out front before that gubernatorial election and he can't afford to want it because if he wants it and doesn't get it he looks like a loser. What do you think Leslie?
What I'm wondering is what it means in terms of the money. Was there really a lot of money that was being held back to see what Kennedy was actually going to be doing that might then get put into Cuomo's coffers or hearts coffers or anybody else that might emerge in the next year?
I would like to be a fly on the wall on the Kennedy decision. I wonder how many pollsters were out there whether they were still looking at chapacritic, whether they were still a residual thing there,
or the recent articles about Kennedy and his love life and his divorce really made it almost impossible for him to do this.
But I must tell you one thing and that is that I think that the media on this, particularly television has been disgraceful in the kinds of assumptions they've made. It was his for the asking. He was clearly the anointed one. He was going to have it. Nobody was saying that two days ago.
There were a lot of major questions about Kennedy and I think in Kennedy's own mind and I also my understanding he's just gotten very comfortable in the Senate, which is one thing neither of his brothers ever was particularly comfortable as a United States senator and Kennedy statement seems to indicate that that's where he feels his future is.
Yeah, he had no free ride as Mario Cuomo will assuming Cuomo wins reelection. He gets to be governor even if he loses the presidency. Kennedy of course didn't do that. Leslie let me throw one to you.
What's the import of this major court of appeals decision that we see this week on abortion?
Well, it's it's hard to say. I think the interesting thing about that particular case was that in the two lower courts, they both ruled on the side of the Albany's Roman Catholic diocese and that it wasn't until it got to the higher court that the decision got turned around.
Maybe you could you could shed a little bit of light. You were saying before about how the two lower courts are elected and the upper court is an appointed court.
The elected court of course is now the Cuomo court and it's very interesting because we know that abortion is one of those very politicized subject that politicians really worry about and we do know that judges read newspapers, especially elected judges.
And let me tell you you get 10% of the people which is really what I estimate happens in something like an abortion case and they decide they're going to vote against you. You can lose your office very very very fast.
So here we have a situation in which the elected court rules the safe way politically because there are clearly more people will vote against you if you go quote bad on the abortion issue then if you go with it.
If you allow a woman to do with her body as she would under under our conventional thinking or under the rhetoric of the board.
You're saying that it's more it's more a salient issue for people that are anti abortion with people that are poor abortion.
Absolutely. Unless you have a good way of clarifying some fuzzy talk on my part but that is exactly what I meant. It's much more dangerous to oppose the church, to oppose those groups which are formed only only for the purpose of making the court.
Now you have a court or highest court in this state which comes along they are appointed much like the United States Supreme Court and they have much more freedom of latitude.
Well guys that's our show for this week. Join us again next week for another look at state government and politics.
Bill Walthe edits and produces this program. Leslie Broko is associate editor. Please address comments and questions to us at WAMC.
Box 13,000 I say 13,000 Albany New York 1 2 2 1 2. I'm Alan Shartock.
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