and under the same terms and conditions and with the same effect as if conducted and completed by the division of probation or the division of criminal justice services. Continuation of rules and regulations. All rules, regulations, acts, determinations and decisions of the director of probation, the division of probation, division of criminal justice services, or the commissioner thereof, pertaining to the functions herein transferred and assigned, in force at the time of such transfer, assignment, assumption or devolution shall continue in force and effect as rules, regulations, acts, determinations and decisions of the state division of probation and correctional alternatives, in accordance with the context thereof, until duly modified or abrogated by the state director of probation and correctional alternatives in the executive department. § 37. Terms occurring in laws, contracts and other documents. Whenever the director of probation, or the division of probation, or the division of criminal justice services, or the commissioner of the division of criminal justice services is referred to or designated in any law, contract or documents pertaining to the functions, powers, obligations and duties hereby transferred to and assigned to the state division of probation and correctional alternatives such reference or designation shall be deemed to refer to the state division of probation and correctional alternatives. § 38. Existing rights and remedies preserved. No existing right or remedy of any character shall be lost, impaired or affected by reason of this act. § 39. Pending actions and proceedings. No action pending at the time when this act shall take effect, brought by or against the division of probation, the director thereof, the division of criminal justice services, or the commissioner thereof, shall be affected by any provision of this act, but the same may be prosecuted or defended in the name of the state director of probation and correctional alternatives or the division of probation and correctional alternatives in accordance with the applicability of the subject matter of the action to the functions transferred to such division or director, as the case may be, and the proper party shall, upon application to the court, be substituted as party. a § 40. Transfer of appropriations heretofore made to the divisions of probation and criminal justice services. All appropriations or reappropriations heretofore made to the division of probation, and to the division of criminal justice services for alternatives to incarceration programming, or segregated pursuant to law, to the extent of remaining unexpended or unencumbered balance thereof, whether allocated or unallocated and whether obligated or unobligated, are hereby transferred to and made available for use and expenditure by the state division of probation and correctional alternatives for the same purposes for which originally appropriated or reappropriated and shall be payable on vouchers certified or approved by the state director of probation and correctional alternatives, on audit and warrant of the comptroller. Payments for liabilities for expenses of personal service, maintenance and operation heretofore incurred by the divisions of probation and criminal justice services, and for liabilities incurred and to be incurred in completing its affairs shall also be made on vouchers or certificates approved by the state director of probation and correctional alternatives on audit and warrant of the comptroller. § 41. Separability clause. If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section, or part thereof directly involved in the controversy in which such judgment shall have been rendered. § 42. Application of certain amendments, repeals or additions to the executive law. (a) An act of the legislature of the year in which this act shall have become a law which, in form, amends or repeals or purports to amend or repeal any provision or provisions of the executive law, as in force immediately prior to the date that this act shall take effect, shall be legally effective notwithstanding the amendment of the provisions of such law by this act and shall be construed as an amendment, or repeal, as the case may be, of the corresponding provision or provisions of this act irrespective of whether such provision or provisions are contained in this act in one or more than one article, section, subdivision or other part thereof and such corresponding provision or provisions shall be deemed and construed to be amended, modified, changed or repealed as though the same had been expressly and in terms so amended or repealed. (b) An act of the legislature of the year in which this act shall have become a law which adds or purports to add a new article, section, subdivision or other provision of law to the executive law, as in force and effect immediately prior to the date that this act shall take effect, shall be legally effective notwithstanding the amendment of provisions of such law by this act and shall be construed as having been added to this act and shall be given full effect according to its context as if the same had been added expressly and in terms to this act and shall be deemed and construed to have been inserted in this act in juxtaposition to and as modifying the effect of the corresponding provision or provisions of this act. § 43. This act shall take effect April first, nineteen hundred eightyfive and except that upon approval by the governor of this act, the director of the division of probation and commissioner of the division of criminal justice services are hereby authorized to take such steps as are necessary to prepare for an orderly transfer of functions, powers and duties from their respective divisions to the state division of probation and correctional alternatives. CHAPTER 135 AN ACT to amend the alcoholic beverage control law and chapter five hundred two of the laws of nineteen hundred eighty-four, amending the alcoholic beverage control law relating to permitting the sale of wine products in grocery stores, in relation to the definition of wine product; effectiveness of certain provisions Became a law May 30, 1985, with the approval of the Governor. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Subdivision thirty-six-a of section three of the alcoholic beverage control law, as added by chapter five hundred two of the laws of nineteen hundred eighty-four, is amended to read as follows: 36-a. "Wine product" means a beverage containing wine [produced exclusively from grapes grown in New York state] to which is added concentrated or unconcentrated juice, flavoring material, water, citric acid, sugar and carbon dioxide and containing not more than six per centum alcohol by volume, to which nothing other than such wine has been added to increase the alcoholic content of such beverage. § 2. Section seven of chapter five hundred two of the laws of nineteen hundred eighty-four, amending the alcoholic beverage control law relating to permitting the sale of wine products in grocery stores, as amended by chapter five hundred four of the laws of nineteen hundred eighty-four, is amended to read as follows: § 7. This act shall take effect immediately and shall be in full force and effect until [June thirtieth, nineteen hundred eighty-six] February first, nineteen hundred eighty-seven at which time the amendments made by sections one through five of this act shall be deemed to be repealed. EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law § 3. This act shall take effect immediately; provided, however, that the provisions of section one of this act shall be subject to the provisions of section two hereof. CHAPTER 136 AN ACT to amend the public officers law, in relation to the applicability of the open meetings law to deliberations of political committees, conferences and caucuses Became a law May 31, 1985, with the approval of the Governor. The People of the State of New York, represented in Senate and Assembly, do enact as follows: are Section 1. Legislative declaration. The legislature hereby reaffirms that the public business of public bodies of the state of New York should generally be conducted at open and public meetings. Nonetheless, as recognized by the court of appeals of the state of New York in Matter of Orange County Publications v. Council of the City of Newburgh, 45 NY 2d. 947, 949 "neither public nor private meetings of governmental bodies inherently desirable or undesirable. Whichever kind of meeting is permitted or required there are ... offsetting losses or gains. When enacting the open meetings law, the legislature intended and provided that the "deliberations of political committees, conferences and caucuses" should be exempt from the coverage of such law. Such exemption was enacted in furtherance of the legislature's recognition that the public interest is well served by the political party system in legislative bodies because such parties serve as mediating institutions between disparate interest groups and government and promote continuity, stability and orderliness in government. The performance of this function requires the private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies. Recent judicial decisions have, however, eroded this exemption by holding that it applied only to discussions of political business. Accordingly, the legislature hereby declares its adherence to the original intent of the legislature, that the provisions of the open meetings law are not applicable to the deliberations of political committees, conferences and caucuses of legislative bodies regardless of (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations. § 2. Subdivision two of section one hundred eight of the public officers law, as added by chapter five hundred eleven of the laws of nineteen hundred seventy-six and such section as renumbered by chapter six hundred fifty-two of the laws of nineteen hundred eighty-three, is amended to read as follows: 2. a. deliberations of political committees, conferences and caucuses. b. for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or of the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations; and § 3. This act shall take effect immediately. CHAPTER 137 AN ACT to amend the labor law, the lien law and the state finance law, in relation to prevailing wage compliance for public works projects Became a law May 31, 1985, with the approval of the Governor. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Legislative findings. The enactment of chapter four hundred forty-seven of the laws of nineteen hundred eighty-three served to significantly revamp and update the process and procedure for prevailing wage compliance for public works projects in New York state. In a further effort to safeguard the rights of the workers of the state provided by article eight of the labor law, the legislature finds it necessary to supplement and reorganize the state's enforcement capabilities with respect to such article. § 2. The two undesignated paragraphs of subdivision three-a of section two hundred twenty of the labor law are designated paragraphs a and b and a new paragraph c is added to read as follows: said c. The fiscal officer may require any person or corporation performing such public work to file with the fiscal officer within ten days of receipt of said request, payroll records, sworn to as to their validity and accuracy, requested by the fiscal officer, for said public work or for any public or private work performed by said person or corporation during the same period of time as said public work. In the event person or corporation fails to provide the requested information within the allotted ten days, the fiscal officer shall, within fifteen days, order the department of jurisdiction to immediately withhold from payment to said person or corporation up to twenty-five percent of the amount, not to exceed one hundred thousand dollars, to be paid to said person or corporation under the terms of the contract pursuant to which said public work is being performed. Said amount withheld shall be immediately released upon receipt by the department of jurisdiction of a not ice from the fiscal officer indicating that the request for records had been satisfied. § 3. Section two hundred twenty of such law is amended by adding a new subdivision seven-a to read as follows: 7-a. The fiscal officer must make an inquiry as to the willfulness of the alleged violation which is the subject of a compliance investigation pursuant to subdivision seven of this section. In the event a formal hearing is held pursuant to subdivision eight of this section, the fiscal officer, upon a review of the entire record and a finding of credible evidence, must make a determination, as to the willfulness of said violation. No finding of willfullness made pursuant to the provisions of this subdivision shall be dispositive for the purposes of section one hundred ninety-eight-a of this chapter or of the last undesignated paragraph of subdivision three of this section. § 4. Subdivision eight of section two hundred twenty of such law, as separately amended by chapters six hundred ninety-five and six hundred ninety-six of the laws of nineteen hundred eighty, is amended to read as follows: 8. Hearings. Before issuing an order or determination as provided in subdivision seven, the fiscal officer shall order a hearing thereon at a time and place to be specified, and shall give notice thereof, together with a copy of such complaint or the purpose thereof, or a statement of the facts disclosed upon such investigation, which notice shall be served personally or by mail on any person or corporation affected thereby; such person or corporation shall have an opportunity to be heard in respect to the matters complained of at the time and place specified in such notice, which time shall be not less than five days from the service of the notice personally or by mail. The fiscal officer in such hearing shall be deemed to be acting in a judicial capacity, and EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law shall have the right to issue subpoenas, administer oaths and examine witnesses. The enforcement of a subpoena issued under this section shall be regulated by the civil practice law and rules. Such hearing shall be expeditiously conducted and upon such hearing the fiscal officer shall determine the issues raised thereon and shall make and file an order in [his office] the office of the fiscal officer stating such determination, and forthwith serve a copy of such order, with a notice of the filing thereof, upon the parties to such proceeding, personally or by mail. Such order shall direct payment of wages or supp plements found to be due, including interest at [a rate not less than six per centum per year and not more than] the rate of interest then in effect as prescribed by the superintendent of banks pursuant to section fourteen-a of the banking law per annum from the date of the underpayment to the date of the payment, provided, however, that such interest rate shall not apply to subdivision eight-c of this section. [In determining the rate of interest to be imposed the fiscal officer shall consider the size of the employer's business, the good faith of the employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non-wage requirements. ] In addition to directing payment of wages or supplements including interest found to be due, such order may direct payment of a further sum as a civil penalty in an amount not exceeding twenty-five percent of the total amount found to be due. In assessing the amount of of the penalty, due consideration shall be given to the size of the employer's business, the good faith of the employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non-wage requirements. Where the fiscal officer is the commissioner, the penalty shall be paid to the commissioner for deposit in the state treasury. Where the fiscal officer is a city comptroller or other analogous officer, the penalty shall be paid to said officer for deposit in the city treasury. Upon the entry of such order_[affecting either the hours of labor or rate of wages or the supplements] any party to the proceeding aggrieved thereby may review the said proceeding pursuant to article seventy-eight of the civil practice law and rules within thirty days from the notice of the filing of the said order in the office of the fiscal officer. Said appeal shall be directly to the appellate division of the supreme court. If such order is not reviewed, or is so reviewed and the final decision is in favor of the complainant and the order involves or relates to the rate of wages paid or the supplements provided on such public work, the complainant or any other person affected may within six months after the service of notice of the filing of said order, or the notice of entry of said final decision on review, institute an action against the person or corporation found violating this act for the recovery of the difference between the sum actually paid or provided and the amount which should have been paid or provided, together with interest at the rate of interest provided herein, as determined by said order or decision, as the case may be, from and after the date of the filing of said verified complaint, with the fiscal officer or of the filing of the fiscal officer's report of investigation made on his own initiative. § 5. Subdivision two of section two hundred twenty-b of such law, as separately amended by chapters six hundred ninety-five and six hundred ninety-six of the laws of nineteen hundred eighty, is amended to read as follows: 2. When any interested person shall file a written complaint with the fiscal officer, as herein defined, alleging unpaid wages or supplements due for labor performed on a public improvement for which a contract has been entered into, and said labor is alleged to have been performed within the three-year period immediately preceding the date of the filing of said complaint, or if, on the fiscal officer's own initiative, unpaid wages or supplements appear to be due, the fiscal officer shall immediately so notify the financial officer of the civil division interested, who shall withhold from any payment on account thereof, due the contractor or subcontractor executing said public improvement, sufficient moneys to satisfy said wages and supplements, including interest at the rate provided herein, and any civil penalty that may be assessed as provided herein, pending a final determination. The fiscal officer shall then cause an investigation to be made to determine whether any amounts are due to the laborers, workmen or mechanics, or on their respective behalves, on such public improvement, for labor performed afthe commencement of the three-year period immediately preceding the ter |
