Florida court strikes down prison privatization again

Lawmakers can't delegate the job, says judge.

from the Miami Herald

Leon County Circuit Court Judge John Cooper on Tuesday struck down an attempt by the Florida Legislature to privatize prison health care by using a budgetary process instead of making the change through a full vote of lawmakers.

Governor Rick Scott and the Department of Corrections said they will appeal the ruling, warning that the state now faces a $90 million deficit because they had counted saving that much over the next two years by having private contractors provide prison health care.

Cooper said that the Legislature had the power to contract its prison health services to private, for-profit companies, but it went about it the wrong way. Rather than put the issue up for a full vote — and face likely defeat — legislative leaders chose to rely on the 14-member Legislative Budget Commission to authorize the change during its September meeting.

“While the State of Florida does have authority to privatize prison health care throughout the state, the full Legislature must do so by passing the appropriate funding mechanism specifically directed to that goal,’’ Cooper wrote in his 12-page ruling.  

.The ruling is the second rebuke to legislative leaders in just over a year as they have struggled to usher in prison privatization without putting the controversial concept to a full vote. Unions and legislators from rural counties, where the prison industry is strong, have been the most vocal opponents.

In October 2011, Leon County Judge Jackie Fulford ruled unconstitutional an attempt to privatize prisons in 18 South Florida counties after legislators tucked the provision in budget proviso language and failed to use a separate bill.

Faced with the court’s slap down, the Florida Senate returned with a bill in February 2012, but it failed on a 21-19 vote as nine Republicans joined with Democrats to defeat it.

Rather than force another difficult vote, legislative leaders included a line item in the 2012-13 budget authorizing the privatization of the prison healthcare system for only the South Florida region. A contract with Wexford Health System is pending approval for that program.

Legislative leaders then waited until the September meeting of the Legislative Budget Commission to propose an amendment that would expand the program from just South Florida to the rest of the state. The LBC adopted a budget amendment that allowed for a $259 million contract to hire Nashville-based Corizon Correctional Health Care to handle prison healthcare in regions I, II and III.

Cooper ruled the Corizon contract was invalid because it was not authorized by the Legislature and did not fall under the requirement that amendments by the LBC be “limited” adjustments to the budget.

“Whether to privatize some of all of this state’s prison operations is a significant policy decision,’’ Cooper wrote. “…It is the duty of the full legislature, not a small group of select legislators to make policy decisions on spending.’’

He said the law requires that changes to the budget approved by the LBC follow the Legislature’s intent, “not new policy/spending priority decisions that could have been but were not passed by the full Legislature. Otherwise, the exception swallows the rule, allowing a small handful of legislators to rewrite the [budget.]”

Florida Department of Corrections Deputy Secretary Mike Crews said Tuesday that the state will appeal the ruling and that it creates an anticipated budget shortfall of up to $90 million over the next 18 months.

“This will jeopardize other department needs and legislative budget priorities which could include additional reductions in staffing and program services,’’ Crews said. “While we work to resolve this issue the department will continue to provide constitutionally required healthcare services to inmates."

Melissa Sellers, spokeswoman for the governor, warned that the budget shortfall could affect funding for critical priorities such as increasing K-12 education funding.

The unions will seek an injunction asking the court to immediately order the state to halt the contracts, said Alma Gonzalez, lawyer for AFSCME.

The ruling could have precedent-setting implications for future budget decisions, she said.