WHITE PLAINS CITIZENETREPORTER 3,826,065 VISITS IN ONE YEAR—73,578 VISITS A WEEK BY 1,111,506 VISITORS

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The Common Council indicated willingness to accept the New York Presbyterian Hospital Draft Environmental Impact Statement on the Plan B under review, as early as their December 3 Common Council meeting Thursday evening under one condition.

Led by Council President Rita Malmud, the council indicated they would do so if New York Presbyterian Hospital put in writing that the pubic hearing on the project would not have to be completed within 45 days. Ms. Malmud pushed for March 4, 2002 as a more suitable timeframe.

A hospital executive, Constance Hildersley, said the hospital would consider “a reasonable extention,” but would not elaborate on what she deemed reasonable. Under the state regulation once the Council announces a DEIS “complete,” it has 45 days to conclude a public hearing on the matter.

The council heard from Michael B. Gerrard, and Nicholas Johnson of Arnold & Porter, the city-commissioned environmental lawyers reviewing the DEIS, that in the lawyers’ opinion the DEIS was in essence complete. Gerrard said he and Johnson had recommended several wording changes and requested the hospital undertake two investigations on two suspected hazardous waste sites.

Toxic Avenger Warning Heeded

Those sites were identified last June on a council tour of the hospital site, and highlighted illegally with yellow tape by the White Plains Toxic Avenger. The White Plains Toxic Avenger is the WPCNR nickname for an unidentified trespasser who snuck onto hospital property and strung yellow crime scene tape around the suspected toxic dumps.

Apparently based on this information, and secret testimony given Arnold & Porter’s Gerrard by the Toxic Avenger himself, these two sites were highlighted in recommendations to the hospital to have excavations conducted to determine whether toxic wastes exist. Gerrard reported Thursday night, the hospital was conducting those soil tests this week and should have the borings completed in time to be included in the DEIS early next week.

No hazardous radioactive waste stored on Loma Linda site

Nicholas Johnson and Mr. Gerrard visited the Loma Linda proton accelerator facility in Loma Linda, California, in person with a nuclear physicist consultant retained for the purposes of reviewing the accelerator facility. The nuclear consultant was Professor Lawrence Jones of the physics department of the University of Michigan. Gerrard reported that they and a New York Presbyterian Hospital representative on “a thorough tour of the facility.”

Gerrard said the three saw all safety records. Nicholas Johnson reported that there was “no hazardous radiative waste stored on the site,” and that the facility generated none. Johnson added that the accelerator emitted radiation at the nozzle. However, he said this radiation had a life of only two weeks and did not exceed that experienced by x-ray technicians.

Malmud concerned about getting adequate public opportunity to comment over holiday period.

Taking the point on the “time-to-review” issue, Council President Rita Malmud expressed concern about the holiday season curtailing the public ability to comment, if the Common Council were required to close the public hearing within 45 days. (Approval of the DEIS as complete on Monday, would put 45 days falling on January 17, 2002.) Ms. Malmud suggested the March 4 Common Council meeting as the ideal date that would allow the public adequate time to comment on the DEIS(91 days).

Councilpersons Boykin and Greer and Delgado agreed that if the hospital were to prove to be flexible on the 45 period, extending it somewhat, they could see approving the DEIS as complete on Monday.

Constance Hildersley, Vice President of Real Estate, for New York Presbyterian Hospital said she felt the hospital could agree to a “reasonable” extension, and would report back to the Council by Monday. Ms. Malmud said she would appreciate confirmation of such an extension in writing.

Hildersley does not comment on extension or private proton accelerator fund-raising

Upon leaving the work session, Ms. Hildersley told WPCNR when asked if the 90 days was agreeable that she wasn’t talking. When asked if fund-raising efforts towards the proton accelerator were underway, she said she was not talking about that, either.

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Attorneys for Glen Hockley and Larry Delgado agreed, based on a telephone conference call Wednesday with a voting machine expert, that Mr. Delgado’s vote total jammed at 39 in District 18. Both said no further inspection of the machine can shed further light on the crucial Delgado count.

Jeffrey Binder, the D-Team Lead Attorney plans a statistical recreation of the possible lost vote. The historic White Plains Council Election of 2001 continues Thursday at 2 in Supreme Court.
Wednesday afternoon, Mr. Binder requested permission of the court to present statistical evidence for a projected Delgado missing vote count. The judge may rule on the admission of this Thursday.

Conference Call agreed to Wednesday AM

An 8-minute conference call at the Board of Elections conducted with Sherwood Danielson, an expert repair supervisor of the Voting Machine Service Center in Jamestown, Erie County, New York, was arranged based on agreement in court Wednesday morning. The 5-way conversation shed light on what happened within the bowels of the District 18 voting machine at George Washington School Election Night.

LITIGANTS LISTEN IN TO EXPERT ON FACT-FINDING CALL at Board of Elections Wednesday. Shown are Carolee Sunderland, Commissioner of Board of Elections, Jeffrey Binder, Delgado attorney, and Adam Bradley, attorney for Glen Hockley.WPCNR PHOTO.

Trouble getting the conference call started

The conference call was about to begin (suggested by Judge Francis Nicolai), at around 12:30, when Adam Bradley, Glen Hockley’s attorney began protesting to the Board of Elections Commisioners. He expressed concern that the expert about to be called was a Delgado attorney-supplied expert. Two reporters waiting outside the open office could clearly see Mr. Bradley stalking around Reginald LaFayette’s desk in front of the two Board of Elections Commissioners, Carolee Sunderland and Mr. LaFayette.

Communications Break Down

When the conference call was ready to be placed, it could not be set up to work on the phone in Mr. LaFayette’s office. Ms. Sunderland said she could do it on her phone. After the entourage trooped down to Ms. Sunderland’s office, she could not get the conference feature to work either.

BINDER FINALLY GETS THROUGH. Jeffrey Binder is finally able to put together the conference call. He is shown coordinating the call with his New York office which set up the call with their Verizon equipment.WPCNR PHOTO.

Mr. Binder, Mr. Delgado’s attorney, with Mr. Bradley agreeing, set up the call finally through his law offices in New York which got all three parties and the conference call listeners on line in about 2 minutes.

Technicians lead off the questions

At approximately 1:30 PM Thursday afternoon, Steve Schoengold and Frank Luiso, the Board of Elections technical experts who conducted the inspection of the voting machine Tuesday, began the call, explaining to Danielson what they had discovered.

TALKING TECH TO TECH: Board of Elections Technicians, Steve Schoengold, foreground and Frank Luiso explained what they found to Danielson and asked his opionion.WPCNR PHOTO.

Danielson said “It sounds like failure in that counter station.”

Mr. Schoengold, saying he and Mr. Luiso had given their opinions in court on this question, asked Danielson if the counter could have counted past 39 to 100 and somehow rolled back to 39 when it jammed. Danielson, replied, “No. No. Un-Un. No way.”

Nothing more in the machine to indicate vote

Jeffrey Binder, Mr. Delgado’s representative, jumped in, asking if there “was anything in there (inside the machine) we might find that might tell us if the (Delgado) count had gone past 100?”

Danielson said, “There’s no way I could determine that. I would not know (by examining the gears) how many more times it (may have) turned. I don’t know there’s anyone who could determine this. There’s nothing (inside) to indicate the count. (An examination) will show you where the breakage is. In my opinion it broke at 39.”

Gears on the “1’s” wheel cannot turn the 100’s wheel

Binder asked if the gear moving the “10” wheel (the second numbered wheel counter), could move the 100 counter. Danielson indicated this was impossible, saying, “when the 1’s wheel gets to 9, it transfers to zero, moving the 10s wheel (WPCNR NOTE: in this case moving the 3 to a 4). The 10s wheel is moved by a separate gear from the 100’s wheel. The 3 (changing to 4) would not move zero (in the 100’s wheel) to 100. No way.”

Binder replied, “O.K.”

Bradley establishes agreement between experts

Adam Bradley asked, “It’s fair to say your expert opinion is the same as the technical experts (of the Board of Elections)?”

Danielson said, “Yes.”

Binder asked an earlier question in a different way, asking “if there was any possible indicia (of the count inside the machine), no indicia to that effect?” And was told no.

A Man Who Knows Voting Machines

Matthew Gallagher, legal counsel from the Westchester County Attorney’s office asked Mr. Danielson what his experience was.

Danielson said he was presently an instructor for his company training repairers of voting machines, that he had started at the company in 1981.

He said, “I can tear down machines, do major repairs, minor repairs, in-field service. You name it I can do it.”

On that note, the call was concluded.

The Litigants Who Listened In.

Helping conduct the call were the two technicians executing the Tuesday inspection, Steve Schoengold and Frank Luiso, Mr. Bradley and Mr. Binder, Carolee Sunderland, Commissioner of the Board of Elections, Reginald A. LaFayette, Commissioner, Board of Elections, Mr. Delgado, Mr. Hockley, Matthew Gallagher of the County Attorney office, Steve Levy and Jeannie Palazola, Deputy Commissioners of the Board of Elections.

After the Call, Back to Court.

The two attorneys and their entourage returned to court at 2:30 PM Wednesday afternoon to report their findings to Judge Nicolai in Supreme Court.

It should be noted that Mr. Danielson was arranged for at the order of Judge Nicolai’s Principal Law Clerk, Diane Lundin. Acting on instructions from Judge Nicolai, she had asked the Board of Elections to find a voting machine expert to shed a third opinion the previous Tuesday evening after the inspection had been completed. Mr. Bradley was reported present when this instruction to the Board of Elections Deputy Commissioners, Mr. Levy and Ms. Palazola, was given.

Levy calls Board of Elections service company for expert

Steven Levy, Deputy Commissioner, contacted Dale Marshall of Voting Machine Service Center, which maintains the Westchester County voting machines to find an expert. Mr. Marshall arranged for Mr. Danielson’s availability for a Wednesday morning call.

Parties Return to Court for 2:30 Session to Discuss Call.

Judge Nicolai called the session to order and asked if the call had been made.

Mr. Binder, Mr. Delgado’s counsel said it had, and that “my client (Mr. Delgado) is completely satisfied there will be nothing to be gained by further examination of the machine.”

The judge queried Mr. Bradley. Mr. Bradley said, “I sat here and heard from two Board of Elections technicians. My understanding was this gentleman confirming what they said.”

After this fact-finding that nothing more was to be found by further machine breakdown was agreed to on the record by both attorneys counsel Binder requested a new avenue of inquiry.

Binder Suggests Statistical Projection

Binder then asked Judge Nicolai for the opportunity to bring in an expert statistician’s analysis of the votes Mr. Delgado most likely would have received.

Judge Francis A. Nicolai raised his dark eyebrows, advising Mr. Binder, “It can’t be too much longer. We’re already into December 1. They (the candidates) need some time to prepare.”

Binder said the statistical analysis he is suggesting could give Judge Nicolai information that would suggest “it may be reasonable to adjust the canvas.”

The Judge asked “Who and What?” and that the analysis had to allow time for Mr. Bradley to be heard and react to the analysis.

Binder stated dramatically, “A 99% probability of over 140 votes (for Delgado) on that line.”

Judge Nicolai rose in his seat knitted his brows, and said he needed to know “on what theory he is presenting? I disagree completely with your expert.”

Binder, in his quiet, unruffled voice, said, “Certainly a strong case could be made.”

The Judge said he would have to see an Offer of Proof from Binder explaining the credentials of the expert, what he/she intends to say, and the methods of his analysis before he would agree to allow the statistician’s testimony to be heard.

His Honor, expressing skepticism, remarked, “seems like more speculation than mathematical certainty.”

Judge Nicolai moved swiftly, summing things up: “There is no further need to redo the voting machine. You must prepare a written Offer of Proof, serving this to Mr. (Adam) Bradley not later than 11 o’clock tomorrow (Thursday) AM.”

Bradley Reasserts Objections to the Show Cause Order.

Adam Bradley repeated his assertion that the original Delgado complaint should have not been heard because it had not been given an index number by the County Clerk. Judge Nicolai, who had sternly refused to dismiss on this ground Monday morning roared: “It’s nonsense. I am not going to dismiss a case of this importance on a technicality.”

Bradley repeated his complaint about the way the original documents was written. Judge Nicolai said “Why are you having a problem with it? What don’t you understand?” rising and pounding his desk and saying “Exception is all. You object to my ruling. You’re wasting time.”

In a third complaint, Bradley raised the issue of not being notified by Delgado’s attorneys (when he requested by letter to be notified) that there was no need to appear in court on November 9, when the original show cause order was called.

Judge Nicolai did not give this much credence because he pointed out the letter wording in Bradley’s own words said “no petition at this time,” indicated Bradley was expecting a petition and might have checked before he arrived.

Bradley raises “remedy” issue.

Taking a deep breath, Mr. Bradley then attempted to plunge into what was obviously on everyone’s mind. He said he wanted to focus on an issue of tremendous importance, the remedy.

Judge Nicolai held up a hand, smiling with teeth not showing, brows knitted, tightlipped, “You’re being premature. That’s assuming I find a need for a remedy.”

Bradley protested, “So much is occurring and we keep doing things.”

Judge Nicolai, taking firm control in a sublime manner, defended what he called the fact-finding process:

“At every phase, that next step was helpful. It may not be your point. But it’s my point. You have an adversary role, and I have a neutral role. We have very different roles.”

Bradley responded, “This is a process of speculation. We are prolonging it, delaying the reality here: A tremendous issue about the remedy.”

The Judge serenely replied, “I don’t care. We have to establish facts…Your view is at midnight election’s over, we won, good-bye. You don’t want a factual foundation to establish a remedy. It’s fair to explore the issue, then we have a factual foundation. I’m not convinced there’s a need for a remedy.”

Public belief in election, the Judge’s goal

The judge somberly entoned his overriding concern he stated at the beginning of this winding litigatory journey Monday morning: that the public must have confidence in the integrity of the election process.

Noted No-Shows

Tom Roach and Rita Malmud who had been in court Monday and Tuesday supporting Mr. Hockley, were not in court Wednesday. Mr. Roach and Ms. Malmud were essentially cleared for certification by Judge Nicolai’s ruling Tuesday morning.

Judge Nicolai adjourned proceedings to resume Thursday afternoon at 2 PM in State Supreme Court in the Westchester County Court House.

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At noon on Tuesday, Judge Francis A. Nicolai of New York State Supreme Court ordered the Board of Elections to conduct an inspection of the District 18 voting machine, to determine if the Larry Delgado voting lever has a malfunction, which might have caused Councilman Delgado’s vote total to be off by 100 votes. The inspection is scheduled for 3 PM Tuesday afternoon at the Ferris Avenue Fire House where the voting machine has been impounded.

The Judge also ordered effectively the certification of the election of Rita Malmud and Tom Roach to the Common Council, by excluding them from being effected by any future remedy to the Delgado-Hockley vote count dilemma, should Delgado’s lever on the machine be found to be malfunctioning. (More to Come on this story)
The inspection will take place by an official Board of Elections technician who trains the District Machine inspectors, and will consist, as ordered by the judge of 100 pulls of the Delgado lever. The inspection will be observed by the candidates and legal representatives.

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The Westchester, White Plains “signature” mall dedicated their first-ever holiday tree Friday, giving post-Thanksgiving giftseekers an opportunity to sponsor living poinsettia plants pyramided magically to form a 15-foot Poinsetta Tree at the entrance to Nieman Marcus. Before the dedication at 12 noon, the effort had already raised several thousand dollars from corporate and individual sponsors of the event for St. Mary’s Rehabilitation Center for Children in Ossining.

FIRST EVER “POINSETTIA TREE” gives shoppers opportunity to sponsor a plant for a $25 donation to purchase rehabilitation and therapy equipment for the children of St. Mary’s Rehabilitation Center for Children in Ossining. Mayor Joseph Delfino joins in the dedication cermonies of The Westchester’s first Poinsettia Tree Friday. Visitors, teens over 14 are being sought for interactive work with children at the center and can sign up at the Tree. Shoppers can also register Free to win $350 in merchant-sponsored and donated services at The Westchester. WPCNR PHOTO.

Eileen Chisari, Vice President of Administration of St. Mary’s Rehabilitation Center for Children told WPCNR the donations will be used to purchase respiratory equipmen, rehabilitation devices and a combination of capitol requests. She said approximately 30 corporate sponsors had teamed together to establish the tree, already providing several thousand dollars to St. Mary’s.

Chisari said the 44-bed nonprofit pediatric healthcare facility in Ossining serves chronicly ill chidlren from birth to age 16, providing intensive rehabilation with the aim of stabilizing their illnesses. The children are primarily physcially handicapped, and they and their families are offered counseling services as well, as their stays are extended.

First Holiday Tree for The Westchester

Deborah Scates, Marketing Director of The Westchester said they were approached by Thompson & Bender, the Westchester public relations consultants, with the idea for the Holiday Tree, and she said, “We thought it would be a great opportunity. It just seemed time to do a tree.”

Scates arranged a raffle of $350 of services and merchandise, donated by fourteen merchants based in The Westchester which persons visiting the Westchester can register to win, absolutely free.

The Poinsettia Tree from a distance looks like a typical Christmas Tree, decorated with gay red finery. You would never know that it is made up of 400 individual poinsettias set on wooden platforms, which are completely invisible to the passerby.

Sponsors Already donate at least $10,000 to start. Volunteers Also Invited to Apply.

Corporate, individual and community sponsors have donated $25 or more for the plants to create the Tree. Shoppers can donate $25 and hae their names entered on the growing board of sponsors displayed at the Tree.

Ms. Chisari of St. Mary’s said she hoped the tree would inspire teen and adult volunteers to donate their time to visit the children at St. Mary’s.

Ms. Chisari advised that persons over the age of 14 interested in volunteering at St. Mary’s in Ossining were needed for therapeutic play, to accompany residents on special trips, to play with babies in the 11-bed nursery unit. Call 914-333-7019 if you are interested in volunteer service.

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White Plains Superintendent of Schools Dr. Saul Yanofsky told this reporter Wednesday, he had “indicated” to Donna McLaughlin, President of the Board of Education he’d be willing to extend his contract for one year beyond June 2002, as early as the last week of October or the beginning of November. His offer was apparently on the table within two weeks of the district announcement of his departure, and has been ignored by the Board during the growing public furor over the Board decision not to renew his contract.
Two members say he was unwilling to come back.

Yanofsky said he was moved to call WPCNR by assertions from two
Board of Education members this week.

One statement may have been from Dorothy Schere. Schere said so in a public statement at the Board of Education Monday night. Her statement transcript can be read in a separate article.

The other member was Larry Geiger who indicated similar sentiments to WPCNR.

The Yanofsky statement

Yanofsky said he felt compelled to set the record straight about his willingness to “come back” and issued this statement Wednesday personally to WPCNR Wednesday at 4:45 PM:

“Three weeks or so, ago, in conversation with the Board President (Donna McLaughlin), I indicated I’d be willing to sign a one year contract. The Board decided not to change their mind. That was clear Monday night when they decided to go ahead (and search for a new superintendent). I was surprised to see two Board members say I had not (offered to come back).”

Dr. Yanofsky said he was moved to clarify his statement to WPCNR Monday evening after reading statements to the contrary.

Reaction trigger

For the record, WPCNR had asked Dr. Yanofsky a routine question as he was departing White Plains High School Monday evening. We asked if he’d be willing to come back if asked by the Board.

His response then: “That does not appear to be an option at this time.” Yanofsky amplified this comment late Wednesday afternoon:

“I said that does not appear to be an option at this time” he said, “in light of the Board vote Monday night. I wanted to set the record straight.”

Board had chance to patch things up.

What Yanofsky’s Wednesday statement reveals is the Board of Education has had the opportunity for three weeks to keep Dr. Yanofsky on a short-term one year basis on the table. They so far have apparently chosen to stay their course, in spite of public opposition, and search for a superintendent now.

Publicly they have been defending their decision to relieve Yanofsky of his duties last April on the basis of differences over test scores, program evaluation and quality of District-wide communications and public relations.

Negotiations loomed large in Board’s thinking

The unsolicited information provided by Dr. Yanofsky today makes clear that the Board of Education worry over a teachers union contract that expires in June 2003, has had far more impact on their decision not to renew Yanofsky’s contract than they have stated publicly.

Board of Education President Donna McLaughlin admitted as much to WPCNR Monday evening as she was leaving the Board of Education meeting. WPCNR sympathized with her, saying “You were between a rock and a hard place in light of those teacher negotiations.” Ms. McLaughlin said “yes.”

As outlined by WPCNR previously, the scenario the Board saw developing was this: If Yanofsky was extended for only one year, from 2002 to 2003, the new superintendent would be taking over in July 2003.

The teachers union would be negotiating in early 2003 with a lame-duck superintendent (Yanofsky). The union would have, in WPCNR’s analysis, a negotiating edge over Dr. Yanofsky: his own haste to settle the contract to give the new superintendent a clean, fresh start with the district, avoiding an ugly confrontation with teachers over wages in his or her first months on the job.

Yanofsky’s remarks Monday evening.

In his remarks to the public at the Board of Education meeting, Yanofsky did not reveal his offer to stay for one year. He described his approach to the Board of Education last spring as being a case where he did not ask for either a two or three year contract. He said “I did not say I wanted 2 or 3 years, just that we needed to talk about how best to transition (to a new superintendent). I felt it was time to have that conversation. That conversation (with the Board) never took place.”

Answers Board Criticism

In response to the Board criticism in their letter of last week of his position on testing, Yanofsky said Monday evening: “I never suggested that these tests weren’t important. I said that we needed to do all we could do to convince the state Education Department that it does not report results that stand education well and we tried to convey that to the community. State tests are a reality, and we as a district have to do all we can to improve the performance.”

Yanofsky shed light Monday on the Board request of him for a plan to improve test scores. Yanofsky indicated that there were six work sessions in which he and the Board discussed “what the nature of that plan might be.” It became clear, he said, that the Board wanted to “quantify” goals in such a plan, setting standards by which test scores should improve a certain percentage each year. He said he opposed such an approach.

The Board of Education will meet with Hazard, Young, Attea & Associates next Tuesday to discuss profiling the new Superintendent of Schools candidate they seek.

The next work session of the Board of Education is Monday, November 26 at Education House at which they will begin budget discussions and review technology needs of the district.