Judge rules prison privatization plan unconstitutionalby Dara Kam | September 30th, 2011
A Tallahassee circuit court judge has ruled that the prison privatization plan included by lawmakers in the state budget is unconstitutional.
Tallahassee Judge Jackie Fulford agreed with the Florida Police Benevolent Association, the union representing correctional workers that filed the lawsuit, that the way the legislature ordered the privatization violated state law.
The privatization of 29 prisons in the southern portion of the state from Manatee County to Indian River County to the Florida Keys should have been mandated in a separate bill and not in proviso language in the budget, as lawmakers did in the must-pass budget approved in May and signed into law by Gov. Rick Scott, Fulford ruled.
“This Court concludes that if it is the will of the Legislature to itself initiate privatization of Florida prisons, as opposed to DOC, the Legislature must do so by general law, rather than ‘using the hidden recesses of the General Appropriations Act,’” Fulford wrote in her order issued Friday morning.
Lawmakers ordered the Department of Corrections to request bids for a single contract for the 18-county region, requiring that the winning vendor spend 7 percent less than current costs to operate the prisons, an estimated $22 million annual savings.
But under existing law, Fulford wrote, lawmakers must include a specific amount of money for the contract “after a decision to outsource is made and evaluated by DOC for feasibility, cost effectiveness, and efficiency, before DOC proceeds with any outsourcing of services.”
Former DOC secretary Ed Buss testified that he had created no such plan and was relying on the proviso language in the budget to move the privatization forward before he was fired by Scott last month.
“As 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,” Fulford wrote.
In the proviso language, lawmakers also ordered that a private vendor take over the prisons by Jan. 1.
“From the record, it appears that the rush to meet the deadlines in the proviso has resulted in many shortcomings in the evaluation of whether privatization is in the best public interest as it relates to cost savings and effective service,” Fulford wrote.
Fulford made it clear that the state – which already has six privately-run prisons, including one in Palm Beach County – can expand prison privatization.
But, she ruled, “the Legislature may not change existing substantive law by a proviso in an appropriations act.”