The Florida Senate

957.01  Short title.

957.02  Definitions.

957.03  Correctional Privatization Commission.

957.04  Contract requirements.

957.05  Requirements for contractors operating private correctional facilities.

957.06  Powers and duties not delegable to contractor.

957.07  Cost-saving requirements.

957.08  Capacity requirements.

957.09  Applicability of chapter to other provisions of law.

957.11  Evaluation of costs and benefits of contracts.

957.12  Prohibition on contact.

957.125  Correctional facilities for youthful offenders.

957.13  Background checks.

957.14  Contract termination and control of a correctional facility by the department.

957.15  Funding of contracts for operation, maintenance, and lease-purchase of private correctional facilities.

957.16  Expanding capacity.

957.01  Short title.--This chapter may be cited as the "Correctional Privatization Commission Act."

History.--s. 40, ch. 93-406.

957.02  Definitions.--As used in this chapter:

(1)  "Commission" means the Correctional Privatization Commission.

(2)  "Department" means the Department of Corrections.

History.--s. 40, ch. 93-406.

957.03  Correctional Privatization Commission.--

(1)  COMMISSION.--The Correctional Privatization Commission is created for the purpose of entering into contracts with contractors for the designing, financing, acquiring, leasing, constructing, and operating of private correctional facilities. For administrative purposes, the commission is created within the Department of Management Services. The commission may enter into contracts with contractors for the designing, financing, acquiring, leasing, and constructing of private juvenile commitment facilities.

(2)  MEMBERS; QUALIFICATIONS.--The commission shall consist of five members appointed by the Governor, none of whom may be an employee of the Department of Corrections or the Department of Juvenile Justice, one of whom must be a minority person as defined in s. 288.703(3), and four of whom must be employed by the private sector. A commissioner may not have been an employee or a contract vendor of or a consultant to the department or the Department of Juvenile Justice, or an employee or a contract vendor of or a consultant to a bidder, for 2 years prior to appointment to the commission and may not become an employee or a contract vendor of or a consultant to the department or the Department of Juvenile Justice, or an employee or a contract vendor of or a consultant to a bidder, for 2 years following the termination of the appointment to the commission.

(3)  TERMS, ORGANIZATION, AND MEETINGS.--

(a)  The term of office for a member of the commission is 4 years.

(b)  A vacancy shall be filled in the same manner as the original appointment and shall be for the remainder of the unexpired term only.

(c)  The Governor shall appoint from among the members a chair and a vice chair for terms of 2 years each.

(d)  Members of the commission shall serve without compensation but are entitled to reimbursement for per diem and travel expenses pursuant to s. 112.061.

(e)  The commission may employ an executive director and such staff as is necessary, within the limits of legislative appropriation. The commission may retain such consultants as it deems necessary to accomplish its mission. Neither the executive director nor any consultant retained by the commission may have been an employee or a contract vendor of or a consultant to the department or the Department of Juvenile Justice, or an employee or a contract vendor of or a consultant to a bidder, for 2 years prior to employment with the commission and may not become an employee or a contract vendor of or a consultant to the department or the Department of Juvenile Justice, or an employee or a contract vendor of or a consultant to a bidder, for 2 years following termination of employment with the commission.

(f)  The commission shall meet upon the call of the chair or a majority of the members of the commission. A majority of the members of the commission constitutes a quorum.

(g)  In accordance with all provisions of law, the commission may lease such office space as is necessary, within the limits of legislative appropriation.

(4)  DUTIES.--

(a)  The commission shall enter into a contract or contracts with one contractor per facility for the designing, acquiring, financing, leasing, constructing, and operating of that facility or, if specifically authorized by the Legislature, separately contract for any such services. The commission shall not enter into any contract to design, acquire, finance, lease, construct, or operate more than two private correctional facilities without specific legislative authorization.

(b)  In its request for proposals, the commission shall invite innovation and shall not require use of prototype designs of state correctional facilities specified or designed by or for the department or of state juvenile facilities specified or designed by or for the Department of Juvenile Justice. The commission shall not require the use of any prototype design that specially advantages any contractor.

(c)  The commission must report to the Speaker of the House of Representatives and the President of the Senate by December 1 each year on the status and effectiveness of the facilities under its management. Each report must also include a comparison of recidivism rates for inmates of private correctional facilities to the recidivism rates for inmates of comparable facilities managed by the department.

(5)  ADOPTION OF RULES.--The commission may adopt rules necessary to carry out its contracting and monitoring duties provided under this chapter.

(6)  SUPPORT BY DEPARTMENT OF MANAGEMENT SERVICES.--The commission shall be a separate budget entity, and the executive director shall be its chief administrative officer. The Department of Management Services shall provide administrative support and service to the commission to the extent requested by the executive director. The commission and its staff are not subject to control, supervision, or direction by the Department of Management Services in any manner, including, but not limited to, personnel, purchasing, and budgetary matters, except to the extent as provided in chapters 110, 216, 255, 282, and 287 for agencies of the executive branch. The executive director may designate a maximum of two policymaking or managerial positions as being exempt from the Career Service System. These two positions may be provided for as members of the Senior Management Service.

History.--s. 40, ch. 93-406; s. 1, ch. 94-148; s. 55, ch. 96-312; s. 21, ch. 96-422; s. 26, ch. 97-296.

957.04  Contract requirements.--

(1)  A contract entered into under this chapter for the operation of private correctional facilities shall maximize the cost savings of such facilities and shall:

(a)  Be negotiated with the firm found most qualified. However, a contract for private correctional services may not be entered into by the commission unless the commission determines that the contractor has demonstrated that it has:

1.  The qualifications, experience, and management personnel necessary to carry out the terms of the contract.

2.  The ability to expedite the siting, design, and construction of correctional facilities.

3.  The ability to comply with applicable laws, court orders, and national correctional standards.

(b)  Indemnify the state and the department, including their officials and agents, against any and all liability, including, but not limited to, civil rights liability. Proof of satisfactory insurance is required in an amount to be determined by the commission, following consultation with the Division of Risk Management of the Department of Financial Services. Not less than 30 days prior to the release of each request for proposals by the commission, the commission shall request the written recommendation of the division regarding indemnification of the state and the department under this paragraph. Within 15 days after such request, the division shall provide a written recommendation to the commission regarding the amount and manner of such indemnification. The commission shall adopt the division's recommendation unless, based on substantial competent evidence, the commission determines a different amount and manner of indemnification is sufficient.

(c)  Require that the contractor seek, obtain, and maintain accreditation by the American Correctional Association for the facility under that contract. Compliance with amendments to the accreditation standards of the association is required upon the approval of such amendments by the commission.

(d)  Require that the proposed facilities and the management plans for the inmates meet applicable American Correctional Association standards and the requirements of all applicable court orders and state law.

(e)  Establish operations standards for correctional facilities subject to the contract. The commission may waive any rule, policy, or procedure of the department related to the operations standards of correctional facilities that are inconsistent with the mission of the commission to establish cost-effective, privately operated correctional facilities.

(f)  Require the contractor to be responsible for a range of dental, medical, and psychological services; diet; education; and work programs at least equal to those provided by the department in comparable facilities. The work and education programs must be designed to reduce recidivism, and include opportunities to participate in such work programs as authorized pursuant to s. 946.523.

(g)  Require the selection and appointment of a full-time contract monitor. The contract monitor shall be appointed and supervised by the commission. The contractor is required to reimburse the commission for the salary and expenses of the contract monitor. It is the obligation of the contractor to provide suitable office space for the contract monitor at the correctional facility. The contract monitor shall have unlimited access to the correctional facility.

(h)  Be for a period of 3 years and may be renewed for successive 2-year periods thereafter. However, the state is not obligated for any payments to the contractor beyond current annual appropriations.

(2)  Each contract entered into for the design and construction of a private correctional facility or juvenile commitment facility must include:

(a)  Notwithstanding any provision of chapter 255 to the contrary, a specific provision authorizing the use of tax-exempt financing through the issuance of tax-exempt bonds, certificates of participation, lease-purchase agreements, or other tax-exempt financing methods. Pursuant to s. 255.25, approval is hereby provided for the lease-purchase of up to two private correctional facilities and any other facility authorized by the General Appropriations Act.

(b)  A specific provision requiring the design and construction of the proposed facilities to meet the applicable standards of the American Correctional Association and the requirements of all applicable court orders and state law.

(c)  A specific provision requiring the contractor, and not the commission, to obtain the financing required to design and construct the private correctional facility or juvenile commitment facility built under this chapter.

(d)  A specific provision stating that the state is not obligated for any payments that exceed the amount of the current annual appropriation.

(3)(a)  Each contract for the designing, financing, acquiring, leasing, constructing, and operating of a private correctional facility shall be subject to ss. 255.2502 and 255.2503.

(b)  Each contract for the designing, financing, acquiring, leasing, and constructing of a private juvenile commitment facility shall be subject to ss. 255.2502 and 255.2503.

(4)  A contract entered into under this chapter does not accord third-party beneficiary status to any inmate or juvenile offender or to any member of the general public.

(5)  Each contract entered into by the commission must include substantial minority participation unless demonstrated by evidence, after a good faith effort, as impractical and must also include any other requirements the commission considers necessary and appropriate for carrying out the purposes of this chapter.

(6)  Notwithstanding s. 253.025(7), the Board of Trustees of the Internal Improvement Trust Fund need not approve a lease-purchase agreement negotiated by the commission if the commission finds that there is a need to expedite the lease-purchase.

(7)(a)  Notwithstanding s. 253.025 or s. 287.057, whenever the commission finds it to be in the best interest of timely site acquisition, it may contract without the need for competitive selection with one or more appraisers whose names are contained on the list of approved appraisers maintained by the Division of State Lands of the Department of Environmental Protection in accordance with s. 253.025(6)(b). In those instances when the commission directly contracts for appraisal services, it shall also contract with an approved appraiser who is not employed by the same appraisal firm for review services.

(b)  Notwithstanding s. 253.025(6), the commission may negotiate and enter into lease-purchase agreements before an appraisal is obtained. Any such agreement must state that the final purchase price cannot exceed the maximum value allowed by law.

(8)  Buildings and other improvements to real property which are financed under paragraph (2)(a) and which are leased to the Correctional Privatization Commission are considered to be owned by the Correctional Privatization Commission for the purposes of this section whereby the terms of the lease, the buildings, and other improvements will become the property of the state at the expiration of the lease. For any facility that is bid and built under the authority of requests for proposals made by the Correctional Privatization Commission between December 1993 and October 1994 and that is operated by a private vendor, a payment in lieu of taxes, from funds appropriated for the Correctional Privatization Commission, shall be paid until the expiration of the lease to local taxing authorities in the local government in which the facility is located in an amount equal to the ad valorem taxes assessed by counties, municipalities, school districts, and special districts.

History.--s. 40, ch. 93-406; s. 2, ch. 94-148; s. 56, ch. 96-312; s. 13, ch. 96-420; s. 22, ch. 96-422; s. 124, ch. 99-3; s. 26, ch. 99-4; s. 6, ch. 99-271; s. 12, ch. 2001-242; s. 1939, ch. 2003-261.

957.05  Requirements for contractors operating private correctional facilities.--

(1)  Each contractor entering into a contract under this chapter is liable in tort with respect to the care and custody of inmates under its supervision and for any breach of contract. Sovereign immunity may not be raised by a contractor, or the insurer of that contractor on the contractor's behalf, as a defense in any action arising out of the performance of any contract entered into under this chapter or as a defense in tort, or any other application, with respect to the care and custody of inmates under the contractor's supervision and for any breach of contract.

(2)(a)  The training requirements, including inservice training requirements, for employees of a contractor that assumes the responsibility for the operation and maintenance of a private correctional facility must meet or exceed the requirements for similar employees of the department or the training requirements mandated for accreditation by the American Correctional Association, whichever of those requirements are the more demanding. All employee training expenses are the responsibility of the contractor.

(b)  Employees of a contractor who are responsible for the supervision of inmates shall have the same legal authority to rely on nondeadly and deadly force as do similar employees of the department.

(3)  Any contractor or person employed by a contractor operating a correctional or detention facility pursuant to a contract executed under this chapter shall be exempt from the requirements of chapter 493, relating to licensure of private investigators and security officers.

History.--s. 40, ch. 93-406; s. 57, ch. 96-312.

957.06  Powers and duties not delegable to contractor.--A contract entered into under this chapter does not authorize, allow, or imply a delegation of authority to the contractor to:

(1)  Make a final determination on the custody classification of an inmate. The contractor may submit a recommendation for a custody change on an inmate; however, any recommendation made shall be in compliance with the department's custody classification system.

(2)  Choose the facility to which an inmate is initially assigned or subsequently transferred. The contractor may request, in writing, that an inmate be transferred to a facility operated by the department. The commission, the contractor, and a representative of the department shall develop and implement a cooperative agreement for transferring inmates between a correctional facility operated by the department and a private correctional facility. The department, the commission, and the contractor must comply with the cooperative agreement.

(3)  Develop or adopt disciplinary rules or penalties that differ from the disciplinary rules and penalties that apply to inmates housed in correctional facilities operated by the department.

(4)  Make a final determination on a disciplinary action that affects the liberty of an inmate. The contractor may remove an inmate from the general prison population during an emergency, before final resolution of a disciplinary hearing, or in response to an inmate's request for assigned housing in protective custody.

(5)  Make a decision that affects the sentence imposed upon or the time served by an inmate, including a decision to award, deny, or forfeit gain-time.

(6)  Make recommendations to the Parole Commission with respect to the denial or granting of parole, control release, conditional release, or conditional medical release. However, the contractor may submit written reports to the Parole Commission and must respond to a written request by the Parole Commission for information.

(7)  Develop and implement requirements that inmates engage in any type of work, except to the extent that those requirements are accepted by the commission.

(8)  Determine inmate eligibility for any form of conditional, temporary, or permanent release from a correctional facility.

History.--s. 40, ch. 93-406; s. 3, ch. 94-148; s. 49, ch. 95-283.

957.07  Cost-saving requirements.--

(1)  The commission may not enter into a contract or series of contracts unless the commission determines that the contract or series of contracts in total for the facility will result in a cost savings to the state of at least 7 percent over the public provision of a similar facility. Such cost savings as determined by the commission must be based upon the actual costs associated with the construction and operation of similar facilities or services as determined by the Department of Corrections and certified by the Auditor General. The Department of Corrections shall calculate all of the cost components that determine the inmate per diem in correctional facilities of a substantially similar size, type, and location that are operated by the department, including administrative costs associated with central administration. Services that are provided to the department by other governmental agencies at no direct cost to the department shall be assigned an equivalent cost and included in the per diem.

(2)  Reasonable projections of payments of any kind to the state or any political subdivision thereof for which the private entity would be liable because of its status as private rather than a public entity, including, but not limited to, corporate income and sales tax payments, shall be included as cost savings in all such determinations. In addition, the costs associated with the appointment and activities of each contract monitor shall be included in such determination.

(3)  In counties where the Department of Corrections pays its employees a competitive area differential, the cost for the public provision of a similar correctional facility may include the competitive area differential paid by the department.

(4)  The Department of Corrections shall provide a report detailing the state cost to design, finance, acquire, lease, construct, and operate a facility similar to the private correctional facility on a per diem basis. This report shall be provided to the Auditor General in sufficient time that it may be certified to the commission to be included in the request for proposals.

(5)(a)  By February 1, 2002, and each year thereafter, the Prison Per-Diem Workgroup shall develop consensus per diem rates to be used when determining per diem rates of privately operated prisons. The Office of Program Policy Analysis and Government Accountability, the Office of the Auditor General, and the staffs of the appropriations committees of both the Senate and the House of Representatives are the principals of the workgroup. The workgroup may consult with other experts to assist in the development of the consensus per diem rates. All meetings of the workgroup shall be open to the public as provided in chapter 286.

(b)  When developing the consensus per diem rates, the workgroup must:

1.  Use data provided by the Department of Corrections from the most recent fiscal year to determine per diem costs for the following activities:

a.  Custody and control;

b.  Health services;

c.  Substance abuse programs; and

d.  Educational programs;

2.  Include the cost of departmental, regional, institutional, and program administration;

3.  Calculate average per diem rates for the following offender populations: adult male, youthful offender male, and female; and

4.  Make per diem adjustments, as appropriate, to account for variations in size and location of correctional facilities.

(c)  It is the intent of the Legislature that the consensus per diem rates determined by the workgroup shall be used to determine the level of funding provided to privately operated prisons, which must reflect at least a 7-percent savings when compared to the Department of Corrections.

(d)  If a private vendor chooses not to renew the contract at the appropriated level, the commission shall terminate the contract as provided in s. 957.14.

(e)  This subsection supersedes the proviso language immediately following Specific Appropriation 570 in the Conference Report on CS for SB 2-C.

History.--s. 40, ch. 93-406; s. 5, ch. 94-148; s. 58, ch. 96-312; s. 135, ch. 2001-266; s. 2, ch. 2001-379.

957.08  Capacity requirements.--The department shall transfer and assign prisoners, at a rate to be determined by the commission, to each private correctional facility opened pursuant to this chapter in an amount not less than 90 percent or more than 100 percent of the capacity of the facility pursuant to the contract with the commission. The prisoners transferred by the department shall represent a cross section of the general inmate population, based on the grade of custody or the offense of conviction, at the most comparable facility operated by the department.

History.--s. 40, ch. 93-406.

957.09  Applicability of chapter to other provisions of law.--

(1)(a)  Any offense that if committed at a state correctional facility would be a crime shall be a crime if committed by or with regard to inmates at private correctional facilities operated pursuant to a contract entered into under this chapter.

(b)  All laws relating to commutation of sentences, release and parole eligibility, and the award of sentence credits shall apply to inmates incarcerated in a private correctional facility operated pursuant to a contract entered into under this chapter.

(2)  The provisions of this chapter are supplemental to the provisions of ss. 944.105 and 944.710-944.719. However, in any conflict between a provision of this chapter and a provision of such other sections, the provision of this chapter shall prevail.

(3)  The provisions of law governing the participation of minority business enterprises are applicable to this chapter.

History.--s. 40, ch. 93-406.

957.11  Evaluation of costs and benefits of contracts.--The Office of Program Policy Analysis and Government Accountability shall develop and implement an evaluation of the costs and benefits of each contract entered into under this chapter. This evaluation must include a comparison of the costs and benefits of constructing and operating prisons by the state versus by private contractors. The Office of Program Policy Analysis and Government Accountability shall also evaluate the performance of the private contractor at the end of the term of each management contract and make recommendations to the Speaker of the House of Representatives and the President of the Senate on whether to continue the contract.

History.--s. 40, ch. 93-406; s. 136, ch. 2001-266.

957.12  Prohibition on contact.--A bidder or potential bidder is not permitted to have any contact with any member or employee of or consultant to the commission regarding a request for proposal, a proposal, or the evaluation or selection process from the time a request for proposals for a private correctional facility is issued until the time a notification of intent to award is announced, except if such contact is in writing or in a meeting for which notice was provided in the Florida Administrative Weekly.

History.--s. 40, ch. 93-406; s. 6, ch. 94-148.

957.125  Correctional facilities for youthful offenders.--

(1)  The Correctional Privatization Commission may enter into contracts in fiscal year 1994-1995 for designing, financing, acquiring, leasing, constructing, and operating three correctional facilities, notwithstanding s. 957.07. These three facilities shall be designed to have a capacity of up to 350 beds each and house inmates sentenced or classified as youthful offenders within the custody of the Department of Corrections under chapter 958. Two of these facilities shall be designed to house youthful offenders between the ages of 14 and 18, and one shall be designed to house youthful offenders between the ages of 19 and 24.

(2)  These youthful offender facilities shall be designed to provide the optimum capacity for programs for youthful offenders designed to reduce recidivism, including, but not limited to: educational and vocational programs, substance abuse and mental health counseling, prerelease orientation and planning, job and career counseling, physical exercise, dispute resolution, and life skills training. In order to ensure this quality programming, the commission shall give no more than 30 percent weight to cost in evaluating proposals.

(3)  Effective July 1, 1996, the authority to contract for the operation of two youthful offender facilities shall be transferred from the Correctional Privatization Commission to the Department of Juvenile Justice, and those facilities shall be used for male or female committed juvenile offenders. The Department of Juvenile Justice is authorized to modify any operational contract with the same contractor to whom the Correctional Privatization Commission awarded the contract for these facilities, without rebidding, in order to conform with the requirements of this subsection.

(4)  The commission shall specify the area in which each facility will be located and require that each be located in or near a different metropolitan area in areas of the state close to the home communities of the youthful offenders they house in order to assist in the most effective rehabilitation efforts, including family visitation.

History.--s. 107, ch. 94-209; s. 23, ch. 96-422.

957.13  Background checks.--

(1)  The Florida Department of Law Enforcement may accept fingerprints of individuals who apply for employment at a private correctional facility and who are required to have background checks under the provisions of this chapter.

(2)  The Florida Department of Law Enforcement may, to the extent provided for by federal law, exchange state, multistate, and federal criminal history records of individuals who apply for employment at a private correctional facility with the Correctional Privatization Commission for the purpose of conducting background checks as required by the commission.

History.--s. 7, ch. 94-148.

957.14  Contract termination and control of a correctional facility by the department.--A detailed plan shall be provided by a private vendor under which the department shall assume temporary control of a private correctional facility upon termination of the contract. The commission may terminate the contract with cause after written notice of material deficiencies and after 60 workdays in order to correct the material deficiencies. If any event occurs that involves the noncompliance with or violation of contract terms and that presents a serious threat to the safety, health, or security of the inmates, employees, or the public, the department may temporarily assume control of the private correctional facility, with the approval of the commission. A plan shall also be provided by a private vendor for the purchase and temporary assumption of operations of a correctional facility by the department in the event of bankruptcy or the financial insolvency of the private vendor. The private vendor shall provide an emergency plan to address inmate disturbances, employee work stoppages, strikes, or other serious events in accordance with standards of the American Correctional Association.

History.--s. 4, ch. 94-148.

957.15  Funding of contracts for operation, maintenance, and lease-purchase of private correctional facilities.--The request for appropriation of funds to make payments pursuant to contracts entered into by the commission for the operation, maintenance, and lease-purchase of the private correctional facilities authorized by this chapter shall be made by the commission in a request to the department. The department shall include such request in its budget request to the Legislature as a separately identified item and shall forward the request of the commission without change. After an appropriation has been made by the Legislature to the department for the commission, the department shall have no authority over such funds other than to pay from such appropriation to the appropriate private vendor such amounts as are certified for payment by the commission.

History.--s. 23, ch. 95-325.

957.16  Expanding capacity.--The commission is authorized to modify and execute agreements with contractors to expand up to the total capacity of contracted correctional facilities. Total capacity means the design capacity of all contracted correctional facilities increased by one-half as described under s. 944.023(1)(b). Any additional beds authorized under this section must comply with the cost-saving requirements set forth in s. 957.07. Any additional beds authorized as a result of expanded capacity under this section are contingent upon specified appropriations.

History.--s. 5, ch. 95-251.