Accusing legislative leaders of violating the state Constitution, the Florida Police Benevolent Association asked a judge Thursday to block a plan aimed at privatizing 29 prison facilities.
Leon County Circuit Judge Jackie Fulford heard about three hours of arguments and indicated she likely would rule late Thursday or Friday.
Attorneys for the union and three correctional officers argued that legislative leaders — attempting to avoid a debate about the controversial issue — sidestepped legal requirements by sticking the privatization plan in the fine print of the state budget.
They contended that the constitution bars the use of the budget fine print, known as proviso language, to make such potentially far-reaching policy decisions. Also, they said lawmakers ignored an already-existing law that gives the Department of Corrections a key role in developing and requesting privatization projects.
“Prison privatization of 29 facilities in 18 counties is something that has never been done before,” said Kelly Overstreet Johnson, an attorney for the union. “It is (a) huge public policy change.”
But Jonathan Glogau, chief of complex litigation in the Attorney General’s Office, defended the Legislature’s actions. He said the law dealing with the department’s role does not bar lawmakers from otherwise deciding to seek privatization.
“That turns the system on its head, your honor,” Glogau told Fulford. “Agencies don’t tell the Legislature what to do.”
Also, Glogau argued that the privatization is not assured, as the proviso language calls for the department to solicit proposals from private companies and then submit a plan to the Legislative Budget Commission. The department would have to provide an analysis showing that the privatization would save a minimum of 7 percent in annual costs.
Fulford did not indicate how she would rule in the case. But appearing to follow up on Glogau’s point about privatization not being assured, she asked about part of the proviso language that says the department “may” award a contract after getting approval from the Legislative Budget Commission.
“It says may” — not that the department must enter into a contract, Fulford said.
Whatever Fulford’s ruling, the case could get appealed to higher courts. Prison privatization has long been a controversial issue in Florida, with the PBA fighting efforts to transfer state jobs to private companies.
On the other side of the issue, prison-management firms such as The Geo Group and Corrections Corporation of America hire lobbyists to try to sway lawmakers.
If ultimately carried out, the proviso language would affect prisons, work camps and other types of correctional facilities in 18 counties across the southern part of the state. The Department of Corrections is supposed to submit a plan to the Legislative Budget Commission by Dec. 1.
Proviso language typically provides nitty-gritty details about how budget line items should be carried out. Legislative leaders have a significant amount of power over what goes into those details.
M. Stephen Turner, an attorney for the PBA, said decisions about privatization are not supposed to be made in “the backroom” late in the legislative session. But he said legislative leaders used the proviso language because the privatization idea faced opposition.
“They’re doing it this way because they can’t do it the right way,” Turner said.
Overstreet Johnson said Sen. Mike Fasano, a New Port Richey Republican who chairs a criminal-justice budget committee, was not aware that legislative higher-ups were adding the privatization plan to the proviso language.
But Glogau said the House and Senate have leeway in determining how they operate, which makes it irrelevant that Fasano did not know about the privatization plan.
“Whether Sen. Fasano got his day to have his say in the halls of the Legislature is not an issue for this court,” Glogau said.
by Jim Saunders
