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The Florida Senate

2012 Florida Statutes

Title XLVII CRIMINAL PROCEDURE AND CORRECTIONS
Chapter 957
CORRECTIONAL PRIVATIZATION
CHAPTER 957
CHAPTER 957
CORRECTIONAL PRIVATIZATION
957.01 Short title.
957.02 Definitions.
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.
957.13 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 Act.”
History.—s. 40, ch. 93-406; s. 10, ch. 2004-248.
957.02 Definitions.—As used in this chapter, “department” means the Department of Corrections.
History.—s. 40, ch. 93-406; s. 11, ch. 2004-248.
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 Department of Management Services unless the Department of Management Services 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 Department of Management Services.
(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. However, if the department and the contractor disagree with an operations standard, the contractor may propose to waive any rule, policy, or procedure of the department related to the operations standards of correctional facilities which is inconsistent with the mission of the contractor to establish cost-effective, privately operated correctional facilities. The Department of Management Services shall be responsible for considering all proposals from the contractor to waive any rule, policy, or procedure and shall render a final decision granting or denying such request.
(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 Department of Management Services. The contractor is required to reimburse the Department of Management Services 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 Department of Management Services, 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 Department of Management Services must include substantial minority participation unless demonstrated by evidence, after a good faith effort, as impractical and must also include any other requirements the Department of Management Services 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 Department of Management Services if the Department of Management Services finds that there is a need to expedite the lease-purchase.
(7)(a) Notwithstanding s. 253.025 or s. 287.057, whenever the Department of Management Services 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 Department of Management Services 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 Department of Management Services 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.
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; s. 13, ch. 2004-248; s. 23, ch. 2006-2; s. 3, ch. 2006-32.
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 Department of Management Services, the contractor, and 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 Department of Management Services, 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.
(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; s. 14, ch. 2004-248.
957.07 Cost-saving requirements.—
(1) The Department of Management Services may not enter into a contract or series of contracts unless the department 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 Department of Management Services 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 of Corrections, including administrative costs associated with central administration. Services that are provided to the Department of Corrections 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 Department of Management Services to be included in the request for proposals.
(5)(a) At the request of the Speaker of the House of Representatives or the President of the Senate, the Prison Per-Diem Workgroup shall develop consensus per diem rates for use by the Legislature. The Office of Program Policy Analysis and Government Accountability 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 and any other fixed costs of the department;
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) The consensus per diem rates determined by the workgroup may be used to assist the Legislature in determining the level of funding provided to privately operated prisons to meet the 7-percent savings required of private prisons by this chapter.
(d) If a private vendor chooses not to renew the contract at the appropriated level, the Department of Management Services shall terminate the contract as provided in s. 957.14.
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; s. 15, ch. 2004-248; s. 152, ch. 2005-2; s. 4, ch. 2006-32; s. 49, ch. 2010-117.
957.08 Capacity requirements.—The Department of Corrections shall transfer and assign prisoners 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 Department of Management Services. The prisoners transferred by the Department of Corrections 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; s. 16, ch. 2004-248.
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 is 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 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.
(4) The provisions of this chapter do not apply to contracts between the department and county and municipal entities, other states, political subdivisions of another state, or correctional management service vendors in another state for the transfer and confinement of state inmates.
History.—s. 40, ch. 93-406; s. 13, ch. 2009-63.
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.
957.13 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, provide for the exchange of state, multistate, and federal criminal history records of individuals who apply for employment at a private correctional facility for the purpose of conducting background checks as required by law or contract.
History.—s. 7, ch. 94-148; s. 17, ch. 2004-248.
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 Department of Management Services 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 Department of Management Services. 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; s. 18, ch. 2004-248.
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 Department of Management Services for the operation, maintenance, and lease-purchase of the private correctional facilities authorized by this chapter shall be made by the Department of Management Services 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 Department of Management Services without change. After an appropriation has been made by the Legislature to the department for the private correctional facilities, 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 Department of Management Services.
History.—s. 23, ch. 95-325; s. 19, ch. 2004-248.
957.16 Expanding capacity.—The Department of Management Services 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; s. 20, ch. 2004-248.