2011.09.30 -- Ruling on Prison Privatization

8/3/2019 2011.09.30 -- Ruling on Prison Privatization

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IN THE CI~.CU rr COURT OF THESECOND JUDIC IA L C IRCU IT. IN ANDFO R LEO]\. COUNTY, FLORIDA

JAMES BAIA RI)I, JO HN MCKENNA ,SHANEA MAYCOCKandFLORlDA POLICE BENEVOLENTASSOCIATION, INC.,

Plaintiffs, CASE NO.: 2 011 CA. 1 83 8

v,

KENNETH S. TUCKER, in his capacityas THE SECRETARYOF TH E FLORIDADEPARTMENT OF CORRECT IONS ,

Defendant,

l ' 1N ,A , J ,D ECL ,t.\RATORY AND IN .J ljNCTlVE .JUD J3MENT

THIS CAUSE came on for hearing on September 29, 2('11, on the parties' cross Motions

for Summary Judgment. There are no disputed issues of fact and thus this Court need only

address pure issues of law. The Court having considered the pleadings, evidence, written and

oral arguments of the parties. and being otherwise fully advised in the premises. finds that there

are no genuine issues of material fact. and further finds and rules as follows:

At the outset the Court makes clear that the issue before it is not whether the prisons in

Florida may be privatized. The answer to that question is yes, and was already answered by the

enactment of Section 944.105, Florida Statutes. which gives ele Department of Corrections

("DOC") the authority to initiate and enter into contracts with private vendors tor the operation

and maintenance of correctional facilities and the supervision cf inmates, Under existing

substantive law, a specific legislative appropriation must be made for a proposed privatization

contract after a decision to outsource is made and evaluated b). DOC for feasibility, cost


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January 1,2012>1< >I < *

The proviso directs specific contract terms including performance measures, and then

concludes:

If after engaging in the competitive solicitation process. -he [DOC] determines

that the process has yielded responses that meet all current statutory requirements.the IDOC] shall develop and remit a transition plan andrecommended revisionsto its operating budget to the Legislative Budget Cornmi ssion by December 1,2011. The [DOC] also must submit a cost-benefit analysis which delineates [its]current costs of providing the services and the savings that would be generated bythe transition plan yielding a minimum actual savings of7 percent. Uponapproval by the commission, the [DOC] may award the contract, Additionalbudget amendments may be submitted during the 2011-2 fiscal year as necessaryfor the proper alignment of budget and positions. '

C ount I

The proviso, which mandates that DOC privatize numerous facilities in a single

procurement, is unconsti tutional under Art. Ill . Sections 6 and 12 of the Florida Constitution.

The proviso changes the statutory process for privatizing prism: facilit ies and directs DOC to

replace state employees at particular prisons with private operators, and is not rationally related

to the appropriations for DOC generally. See Brown v, Firestone, 382 So.2d 654, 663-64 (Fla.

1980) (appropriation provisos arc invalid if they either alter substantive law or address subjects

not directly and rationally related to the specific appropriation item or are not a major motivating

factor for the appropriation). See also Dickinson v. Stone, 251 So.2d 268 (Fla. 1971) (a proviso

transferring a data processing program from one state department to another was invalid , as

changing substantive law that had assigned the data processing to the former department): Dep 't

ofAdmin. V Horne, 269 So.Zd 659, 662 (Fla. 1(72) (the Legislature cannot, under the guise of

an appropriation, insert designations that establish new agencies or projects incidental to the

I There is no dispute that if the Legislature makes the appropriation, DOC must enter intothe contract for privatization.


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appropriation, without the be~efit of vital independent considera.ion by legislative committees

and the general body as to the validity and need for such agencies that may extend beyond the

fiscal year in question. noting that "such indirect enactment of law is contrary to OlU' principles of

representative government"); Florida Defenders ofEnvironmem, Inc. v. Graham, 481 So.2e1

1196 (Fla. 1(85) (a proviso to fund a land purchase without corr.pliance with statutory procedure

for selecting lands to be purchased, tacitly amends statute and is. invalid); Dep t of Education v.

Lewis, 4] 6 So.2d 455, 459-61 (Fla. 1982) (a proviso conditioning state funds for education

institutions on the institution providing no support for particular organizations or viewpoints

conflicted with statutes that allowed institutional direction, and was invalid); Chiles v. Milligan,

659 So.2d 1055 (Fla. 1995) (proviso creating incentive for school districts to cut administrative

personnel and hire more classroom teachers is policy decision and is invalid).

Count II

Plaintiffs allege in Count n that DOC is proceeding unlawfully as not in compliance with

the above cited statutes. DOC admits that it is proceeding under the proviso rather than under

the statutory process for contracting with private providers. A E such, the Legislature has by-

passed the very safeguards it built into the process that DOC is required to follow when DOC

initiates privatization pursuant to substantive law.

In particular, DOC has not prepared an y cost comparison study, cost-benefit analysis, or

business case analysis, It has not consulted the Auditor General. It did not include a business

case analysis with the RFP, The RFP describes the advantages and disadvantages of outsourcing

with the designation "n/a," for "not applicable." DOC did not study Of consider other options.

Its RFP, issued on .Iuly 25, 201 J, seeks one contract for a private operator for all 29 faci l ities,

rather than offering options to operate individual facilities or groups of facilit ies. which limits the


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n umb er o f v ia h Ie compe tito rs, an d p oten tial ly in crea ses t he sta te s risk s an d l im its co st sav in gs.

Th e d ecision to issu e on ly on e R FP an d on ly on e con tract f or all 29 prison f acil ities w as b ased on

co nv en ie nce a nd sp eed , to m eet th e pro viso d ea dl in es, rat he r th an o n a ny d em on stra ted sa vin gs

or b en ef it ad van tag e. In ad ditio n, th e v ery m an n er in w hich DO ::' m u st attempt to cal cu late t he

savings10 b e rea lize d f rom p riv atizatio n a pp ea rs f la wed in se vera l resp ec ts an d is n ot l ik el y to

pro vid e an a ccu rate m easu re th at w il l h av e an y m ean in g to DOC, th e L egisl atu re , o r th e g en eral

public .

F rom th e re co rd , it ap pe ars th at th e ru sh to m eet th e d ea dl in es in th e p rov iso b as resu lted

in m an y sh ortc om in gs in th e ev al ua tio n o f w he th er priv atiza tio n is il l th e b est pu b lic in terest a s it

rel at es t o co st sav in gs an d ef fec tiv e serv ice. DOC d id n ot f ol lo w th e st atu to ril y req uire d p roc ess

t o stu d y an d an al yz e th e rea listic e xpe ctation o f an y ex istin g f acil ity , m u ch l ess f or 2 9 su ch

f ac il it ie s, u n d er S ec tio n s 9 44 .J 05 , 2 87 .( )5 7, 2 87 .0 57 1, a nd 2 J6 .0 23 , F lo rid a S ta tu t es , s o t he

s ol ic it at io n is u n lawf u l a nd in v al id .

Conclusion and Relief

In so ru lin g, th e C ou rt reitera tes th at DOC c ou ld h av e p riv atized th e p riso ns u n der

ex istin g l aw, so l on g as DOC a cted c on sisten t w ith e xistin g l aw, or th e L eg isl atu re co ul d h ave

p asse d a n ew l aw pe rm ittin g p riv atization . T his C ou rt m erel y l eac hes th e sim pl e co ncl usio n th at

th e L egisl atu re m ay n ot ch an ge e xistin g su b stan tiv e l awby a p 'OVi30 in a n a pp ro pr ia tio n s a ct .

P lain tif fs arc e ntitl ed to d ecl ara to ry re lief : an dh ave n o ad eq uate rem ed y at l aw if th e

DOC sol icita tion p ro cess is al lo wed to co nt in u e an d th e co ntract is aw ard ed .It is therefore

O RD ERED an d ADJUDGED th at th e m aterial f acts are n ot in d ispu te, an d P lain tiff s are

en titled to f in al su mm ary ju dgm en t on b oth C ou nt I a nd C ou nt II as a m atter of law . The su bject

pro viso is h ereb y d ecl are d to b e u n co nstit ution al in v io lation o f F la. C on st.Art. H I, S ec tio ns 6


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an d .1 2. D ef en d an t h as p ro ce ed ed w ith ou t st at ut ory au th orit y an d co n tra ry t o st at ut ory a ut ho rity

in im pl em en tin g th e proviso. A ction s taken to d ate are d ecl ared il legal an d w ith ou t au th ority in

violation of law.

It is FU RTHER ORDER ED an d ADJUDGED that D efen dan t an d his officers an d agen ts

are en join ed f rom takin g f urth er steps to con tract u n der th e prov iso or oth erw ise im pl em en t th e

p riv at iz at io n o f t he s ta te co rre ct io na l f ac i lit ies in th e 1 8 c ou n tie s p u rsu an t t o p ro viso o r

otherwise.

DO NE an d ORD ERED this_ 3 0 1 a yo f S ep temb er, 2 011, a t Tal lah ass ee, L eo n Cou n ty,Florida.

I~~

ULFORDCircuit Jucae

Copies fu rn ished to: ~JonathanA. Glogau , Ass is ta n t A tt or n ey Gene ra lM. S te ph en Tu rn er, P.A .Kel ly Over st re et J ohn son , P.i\ .Gene L. "H al" Joh nson , G en eral C ou n sel , P BAS te ph an ie Dob so n Web st er, A ssist an t G en eral C ou n se l, PBA

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2011.09.30 -- Ruling on Prison Privatization