Last month, the Florida Police Benevolent Association, a union that represents prison guards and other corrections officers, filed a lawsuit calling for a judge to strike down budget language that would privatize prisons in 18 South Florida counties. The union’s complaint is embedded below.

The union has long questioned the financial benefits of privatization and the calculus behind the 7 percent savings mandated by Florida statutes. The lawsuit contends that by inserting the privatization measure into the budget, legislative leaders avoided a rigorous public debate on the merits of privatization, and in the process violated legal and constitutional provisions intended to keep budgetary and policy-making measures separate.

The thrust of the first argument is that the privatization scheme is a policy change that should have been enacted through separate legislation, not budget proviso language. The complaint also contends that by tying the privatization proviso to the entire set of budget items for the Department of Corrections, lawmakers essentially made the change veto-proof, because if Gov. Rick Scott had vetoed the privatization scheme, he would have struck down the department’s entire budget, a situation Article 3, Section 12 of the state constitution was designed to prevent.

Here’s part of the prison privatization language in S.B. 2000, this year’s state budget (the full section dealing with the Department of Corrections is embeded below):

From the funds in Specific Appropriations 570 through 759, the Department of Corrections shall issue a request for proposal, or multiple requests for proposal, as defined in section 287.057(1)(b), Florida Statutes, for the management and operation of the correctional facilities and assigned correctional units, including annexes, work camps, road prisons and work release centers currently operated by the Department of Corrections in Manatee, Hardee, Indian  River, Okeechobee, Highlands, St. Lucie, DeSoto, Sarasota, Charlotte, Glades, Martin, Palm Beach, Hendry, Lee, Collier, Broward, Miami-Dade and Monroe counties, excluding Glades Correctional Institution and Hendry Correctional Institution. The request for proposal shall provide for a contract commencement date of no later than January 1, 2012.

The union lawsuit also contends that the proposal violates a statutory requirement that state agencies draw up a “business plan” for any outsourcing arrangement worth more than $10 million, and submit the plan through the legislative budget request process.

Here’s the process called for in the budget language:

If after engaging in the competitive solicitation process, the Department of Corrections determines that the process has yielded responses that meet all current statutory requirements, the department shall develop and remit a transition plan and recommended revisions to its operating budget to the Legislative Budget Commission by December 1, 2011. The department also must submit a cost-benefit analysis which delineates the department’s current costs of providing the services and the savings that would be generated by the transition plan yielding a minimum annual savings of 7 percent. Upon approval by the commission, the department may award the contract. Additional budget amendments may be submitted during the 2011-2012  fiscal year as necessary for the proper alignment of budget and positions.

The complaint also points to this section of Florida law, which stipulates that contracts with private prison operators must save the state money and receive specific appropriations from the Legislature (as opposed to budget proviso language tied to one department’s entire budget):

(1) The Department of Corrections is authorized to enter into contracts with private vendors for the provision of the operation and maintenance of correctional facilities and the supervision of inmates. However, no such contract shall be entered into or renewed unless:

(a) The contract offers a substantial savings to the department, as determined by the department. In determining the cost savings, the department, after consultation with the Auditor General, shall calculate all the cost components that contribute to the inmate per diem, including all administrative costs associated with central and regional office administration. Services which are provided to the department by other government agencies without any direct cost to the department shall be assigned an equivalent cost and included in the per diem. The private firm shall be assessed the total annual cost to the state of monitoring the contract;
(b) The contract provides for the same quality of services as that offered by the department; and
(c) The Legislature has given specific appropriation for the contract.

PBA Complaint

2011 Florida General Appropriations Act, pages 103-123

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