Florida Senate - 2023                   (PROPOSED BILL) SPB 7016
       
       
        
       FOR CONSIDERATION By the Committee on Criminal Justice
       
       
       
       
       
       591-02247-23                                          20237016pb
    1                        A bill to be entitled                      
    2         An act relating to the Department of Corrections;
    3         amending s. 944.35, F.S.; providing criminal penalties
    4         for any volunteer or employee of a contractor or
    5         subcontractor of the Department of Corrections who
    6         engages in sexual misconduct with specified inmates or
    7         offenders; providing for a type two transfer of
    8         private correctional facilities from the Department of
    9         Management Services to the Department of Corrections;
   10         amending ss. 287.042, 957.04, 957.06, 957.07, 957.08,
   11         957.14, 957.15, and 957.16, F.S.; conforming
   12         provisions to changes made by the act; providing
   13         effective dates.
   14          
   15  Be It Enacted by the Legislature of the State of Florida:
   16  
   17         Section 1. Effective October 1, 2023, subsection (3) of
   18  section 944.35, Florida Statutes, is amended to read:
   19         944.35 Authorized use of force; malicious battery and
   20  sexual misconduct prohibited; reporting required; penalties.—
   21         (3)(a)1. Any employee of the department who, with malicious
   22  intent, commits a battery upon an inmate or an offender
   23  supervised by the department in the community, commits a
   24  misdemeanor of the first degree, punishable as provided in s.
   25  775.082 or s. 775.083.
   26         2. Any employee of the department who, with malicious
   27  intent, commits a battery or inflicts cruel or inhuman treatment
   28  by neglect or otherwise, and in so doing causes great bodily
   29  harm, permanent disability, or permanent disfigurement to an
   30  inmate or an offender supervised by the department in the
   31  community, commits a felony of the third degree, punishable as
   32  provided in s. 775.082, s. 775.083, or s. 775.084.
   33         (b)1. As used in this paragraph, the term:
   34         a. “Female genitals” includes the labia minora, labia
   35  majora, clitoris, vulva, hymen, and vagina.
   36         b. “Sexual misconduct” means the oral, anal, or female
   37  genital penetration by, or union with, the sexual organ of
   38  another or the anal or female genital penetration of another by
   39  any other object, but does not include an act done for a bona
   40  fide medical purpose or an internal search conducted in the
   41  lawful performance of the employee’s duty.
   42         2. Any employee of the department or a private correctional
   43  facility as defined in s. 944.710 or any volunteer or employee
   44  of a contractor or subcontractor of the department who engages
   45  in sexual misconduct with an inmate or an offender supervised by
   46  the department in the community, without committing the crime of
   47  sexual battery, commits a felony of the third degree, punishable
   48  as provided in s. 775.082, s. 775.083, or s. 775.084.
   49         3. The consent of the inmate or offender supervised by the
   50  department in the community to any act of sexual misconduct may
   51  not be raised as a defense to a prosecution under this
   52  paragraph.
   53         4. This paragraph does not apply to any employee of the
   54  department or any employee of a private correctional facility
   55  who is legally married to an inmate or an offender supervised by
   56  the department in the community, nor does it apply to any
   57  employee who has no knowledge, and would have no reason to
   58  believe, that the person with whom the employee has engaged in
   59  sexual misconduct is an inmate or an offender under community
   60  supervision of the department.
   61         (c) Notwithstanding prosecution, any violation of the
   62  provisions of this subsection, as determined by the Public
   63  Employees Relations Commission, shall constitute sufficient
   64  cause under s. 110.227 for dismissal from employment with the
   65  department, and such person shall not again be employed in any
   66  capacity in connection with the correctional system.
   67         (d) Each employee who witnesses, or has reasonable cause to
   68  suspect, that an inmate or an offender under the supervision of
   69  the department in the community has been unlawfully abused or is
   70  the subject of sexual misconduct pursuant to this subsection
   71  shall immediately prepare, date, and sign an independent report
   72  specifically describing the nature of the force used or the
   73  nature of the sexual misconduct, the location and time of the
   74  incident, and the persons involved. The report shall be
   75  delivered to the inspector general of the department with a copy
   76  to be delivered to the warden of the institution or the regional
   77  administrator. The inspector general shall immediately conduct
   78  an appropriate investigation, and, if probable cause is
   79  determined that a violation of this subsection has occurred, the
   80  respective state attorney in the circuit in which the incident
   81  occurred shall be notified.
   82         Section 2. All powers, duties, functions, records, offices,
   83  personnel, associated administrative support positions,
   84  property, administrative authority, and administrative rules
   85  relating to private correctional facilities are transferred by a
   86  type two transfer, as defined in s. 20.06(2), Florida Statutes,
   87  from the Department of Management Services to the Department of
   88  Corrections. Any binding contract or interagency agreement
   89  entered into and between the Department of Management Services
   90  concerning private correctional facilities and any other agency,
   91  entity, or person continues as a binding contract or agreement
   92  with the Department of Corrections for the remainder of the term
   93  of the contract or agreement.
   94         Section 3. Subsection (17) of section 287.042, Florida
   95  Statutes, is amended to read:
   96         287.042 Powers, duties, and functions.—The department shall
   97  have the following powers, duties, and functions:
   98         (17)(a) To enter into contracts pursuant to chapter 957 for
   99  the designing, financing, acquiring, leasing, constructing, or
  100  operating of private correctional facilities. The department
  101  shall enter into a contract or contracts with one contractor per
  102  facility for the designing, acquiring, financing, leasing,
  103  constructing, and operating of that facility or may, if
  104  specifically authorized by the Legislature, separately contract
  105  for any such services.
  106         (b) To manage and enforce compliance with existing or
  107  future contracts entered into pursuant to chapter 957.
  108  
  109  The department may not delegate the responsibilities conferred
  110  by this subsection.
  111         Section 4. Section 957.04, Florida Statutes, is amended to
  112  read:
  113         957.04 Contract requirements.—
  114         (1) A contract entered into under this chapter for the
  115  operation of private correctional facilities shall maximize the
  116  cost savings of such facilities and shall:
  117         (a) Be negotiated with the firm found most qualified.
  118  However, a contract for private correctional services may not be
  119  entered into by the department of Management Services unless the
  120  department of Management Services determines that the contractor
  121  has demonstrated that it has:
  122         1. The qualifications, experience, and management personnel
  123  necessary to carry out the terms of the contract.
  124         2. The ability to expedite the siting, design, and
  125  construction of correctional facilities.
  126         3. The ability to comply with applicable laws, court
  127  orders, and national correctional standards.
  128         (b) Indemnify the state and the department, including their
  129  officials and agents, against any and all liability, including,
  130  but not limited to, civil rights liability. Proof of
  131  satisfactory insurance is required in an amount to be determined
  132  by the department of Management Services.
  133         (c) Require that the contractor seek, obtain, and maintain
  134  accreditation by the American Correctional Association for the
  135  facility under that contract. Compliance with amendments to the
  136  accreditation standards of the association is required upon the
  137  approval of such amendments by the commission.
  138         (d) Require that the proposed facilities and the management
  139  plans for the inmates meet applicable American Correctional
  140  Association standards and the requirements of all applicable
  141  court orders and state law.
  142         (e) Establish operations standards for correctional
  143  facilities subject to the contract. However, if the department
  144  and the contractor disagree with an operations standard, the
  145  contractor may propose to waive any rule, policy, or procedure
  146  of the department related to the operations standards of
  147  correctional facilities which is inconsistent with the mission
  148  of the contractor to establish cost-effective, privately
  149  operated correctional facilities. The department of Management
  150  Services shall be responsible for considering all proposals from
  151  the contractor to waive any rule, policy, or procedure and shall
  152  render a final decision granting or denying such request.
  153         (f) Require the contractor to be responsible for a range of
  154  dental, medical, and psychological services; diet; education;
  155  and work programs at least equal to those provided by the
  156  department in comparable facilities. The work and education
  157  programs must be designed to reduce recidivism, and include
  158  opportunities to participate in such work programs as authorized
  159  pursuant to s. 946.523.
  160         (g) Require the selection and appointment of a full-time
  161  contract monitor. The contract monitor shall be appointed and
  162  supervised by the department of Management Services. The
  163  contractor is required to reimburse the department of Management
  164  Services for the salary and expenses of the contract monitor. It
  165  is the obligation of the contractor to provide suitable office
  166  space for the contract monitor at the correctional facility. The
  167  contract monitor shall have unlimited access to the correctional
  168  facility.
  169         (h) Be for a period of 3 years and may be renewed for
  170  successive 2-year periods thereafter. However, the state is not
  171  obligated for any payments to the contractor beyond current
  172  annual appropriations.
  173         (2) Each contract entered into for the design and
  174  construction of a private correctional facility or juvenile
  175  commitment facility must include:
  176         (a) Notwithstanding any provision of chapter 255 to the
  177  contrary, a specific provision authorizing the use of tax-exempt
  178  financing through the issuance of tax-exempt bonds, certificates
  179  of participation, lease-purchase agreements, or other tax-exempt
  180  financing methods. Pursuant to s. 255.25, approval is hereby
  181  provided for the lease-purchase of up to two private
  182  correctional facilities and any other facility authorized by the
  183  General Appropriations Act.
  184         (b) A specific provision requiring the design and
  185  construction of the proposed facilities to meet the applicable
  186  standards of the American Correctional Association and the
  187  requirements of all applicable court orders and state law.
  188         (c) A specific provision requiring the contractor, and not
  189  the department of Management Services, to obtain the financing
  190  required to design and construct the private correctional
  191  facility or juvenile commitment facility built under this
  192  chapter.
  193         (d) A specific provision stating that the state is not
  194  obligated for any payments that exceed the amount of the current
  195  annual appropriation.
  196         (3)(a) Each contract for the designing, financing,
  197  acquiring, leasing, constructing, and operating of a private
  198  correctional facility shall be subject to ss. 255.2502 and
  199  255.2503.
  200         (b) Each contract for the designing, financing, acquiring,
  201  leasing, and constructing of a private juvenile commitment
  202  facility shall be subject to ss. 255.2502 and 255.2503.
  203         (4) A contract entered into under this chapter does not
  204  accord third-party beneficiary status to any inmate or juvenile
  205  offender or to any member of the general public.
  206         (5) Each contract entered into by the department of
  207  Management Services must include substantial minority
  208  participation unless demonstrated by evidence, after a good
  209  faith effort, as impractical and must also include any other
  210  requirements the department of Management Services considers
  211  necessary and appropriate for carrying out the purposes of this
  212  chapter.
  213         (6) Notwithstanding s. 253.025(9), the Board of Trustees of
  214  the Internal Improvement Trust Fund need not approve a lease
  215  purchase agreement negotiated by the department of Management
  216  Services if the department of Management Services finds that
  217  there is a need to expedite the lease-purchase.
  218         (7)(a) Notwithstanding s. 253.025 or s. 287.057, whenever
  219  the department of Management Services finds it to be in the best
  220  interest of timely site acquisition, it may contract without the
  221  need for competitive selection with one or more appraisers whose
  222  names are contained on the list of approved appraisers
  223  maintained by the Division of State Lands of the Department of
  224  Environmental Protection in accordance with s. 253.025(8). In
  225  those instances when the department of Management Services
  226  directly contracts for appraisal services, it shall also
  227  contract with an approved appraiser who is not employed by the
  228  same appraisal firm for review services.
  229         (b) Notwithstanding s. 253.025(8), the department of
  230  Management Services may negotiate and enter into lease-purchase
  231  agreements before an appraisal is obtained. Any such agreement
  232  must state that the final purchase price cannot exceed the
  233  maximum value allowed by law.
  234         Section 5. Subsection (2) of section 957.06, Florida
  235  Statutes, is amended to read:
  236         957.06 Powers and duties not delegable to contractor.—A
  237  contract entered into under this chapter does not authorize,
  238  allow, or imply a delegation of authority to the contractor to:
  239         (2) Choose the facility to which an inmate is initially
  240  assigned or subsequently transferred. The contractor may
  241  request, in writing, that an inmate be transferred to a facility
  242  operated by the department. The Department of Management
  243  Services, the contractor, and the department shall develop and
  244  implement a cooperative agreement for transferring inmates
  245  between a correctional facility operated by the department and a
  246  private correctional facility. The department, the Department of
  247  Management Services, and the contractor must comply with the
  248  cooperative agreement.
  249         Section 6. Section 957.07, Florida Statutes, is amended to
  250  read:
  251         957.07 Cost-saving requirements.—
  252         (1) The department of Management Services may not enter
  253  into a contract or series of contracts unless the department
  254  determines that the contract or series of contracts in total for
  255  the facility will result in a cost savings to the state of at
  256  least 7 percent over the public provision of a similar facility.
  257  Such cost savings as determined and certified by the Auditor
  258  General Department of Management Services must be based upon the
  259  actual costs associated with the construction and operation of
  260  similar facilities or services as determined by the department
  261  of Corrections and certified by the Auditor General. The
  262  department of Corrections shall calculate all of the cost
  263  components that determine the inmate per diem in correctional
  264  facilities of a substantially similar size, type, and location
  265  that are operated by the department of Corrections, including
  266  administrative costs associated with central administration.
  267  Services that are provided to the department of Corrections by
  268  other governmental agencies at no direct cost to the department
  269  shall be assigned an equivalent cost and included in the per
  270  diem.
  271         (2) Reasonable projections of payments of any kind to the
  272  state or any political subdivision thereof for which the private
  273  entity would be liable because of its status as private rather
  274  than a public entity, including, but not limited to, corporate
  275  income and sales tax payments, shall be included as cost savings
  276  in all such determinations. In addition, the costs associated
  277  with the appointment and activities of each contract monitor
  278  shall be included in such determination.
  279         (3) In counties where the department of Corrections pays
  280  its employees a competitive area differential, the cost for the
  281  public provision of a similar correctional facility may include
  282  the competitive area differential paid by the department.
  283         (4) The department of Corrections shall provide a report
  284  detailing the state cost to design, finance, acquire, lease,
  285  construct, and operate a facility similar to the private
  286  correctional facility on a per diem basis. This report shall be
  287  provided to the Auditor General in sufficient time that it may
  288  be certified to the Department of Management Services to be
  289  included in the request for proposals.
  290         (5)(a) At the request of the Speaker of the House of
  291  Representatives or the President of the Senate, the Prison Per
  292  Diem Workgroup shall develop consensus per diem rates for use by
  293  the Legislature. The Office of Program Policy Analysis and
  294  Government Accountability and the staffs of the appropriations
  295  committees of both the Senate and the House of Representatives
  296  are the principals of the workgroup. The workgroup may consult
  297  with other experts to assist in the development of the consensus
  298  per diem rates. All meetings of the workgroup shall be open to
  299  the public as provided in chapter 286.
  300         (b) When developing the consensus per diem rates, the
  301  workgroup must:
  302         1. Use data provided by the department of Corrections from
  303  the most recent fiscal year to determine per diem costs for the
  304  following activities:
  305         a. Custody and control;
  306         b. Health services;
  307         c. Substance abuse programs; and
  308         d. Educational programs;
  309         2. Include the cost of departmental, regional,
  310  institutional, and program administration and any other fixed
  311  costs of the department;
  312         3. Calculate average per diem rates for the following
  313  offender populations: adult male, youthful offender male, and
  314  female; and
  315         4. Make per diem adjustments, as appropriate, to account
  316  for variations in size and location of correctional facilities.
  317         (c) The consensus per diem rates determined by the
  318  workgroup may be used to assist the Legislature in determining
  319  the level of funding provided to privately operated prisons to
  320  meet the 7-percent savings required of private prisons by this
  321  chapter.
  322         (d) If a private vendor chooses not to renew the contract
  323  at the appropriated level, the department of Management Services
  324  shall terminate the contract as provided in s. 957.14.
  325         Section 7. Section 957.08, Florida Statutes, is amended to
  326  read:
  327         957.08 Capacity requirements.—The department of Corrections
  328  shall transfer and assign prisoners to each private correctional
  329  facility opened pursuant to this chapter in an amount not less
  330  than 90 percent or more than 100 percent of the capacity of the
  331  facility pursuant to the contract with the Department of
  332  Management Services. The prisoners transferred by the department
  333  of Corrections shall represent a cross-section of the general
  334  inmate population, based on the grade of custody or the offense
  335  of conviction, at the most comparable facility operated by the
  336  department.
  337         Section 8. Section 957.14, Florida Statutes, is amended to
  338  read:
  339         957.14 Contract termination and control of a correctional
  340  facility by the department.—A detailed plan shall be provided by
  341  a private vendor under which the department shall assume
  342  temporary control of a private correctional facility upon
  343  termination of the contract. The department of Management
  344  Services may terminate the contract with cause after written
  345  notice of material deficiencies and after 60 workdays in order
  346  to correct the material deficiencies. If any event occurs that
  347  involves the noncompliance with or violation of contract terms
  348  and that presents a serious threat to the safety, health, or
  349  security of the inmates, employees, or the public, the
  350  department may temporarily assume control of the private
  351  correctional facility, with the approval of the department of
  352  Management Services. A plan shall also be provided by a private
  353  vendor for the purchase and temporary assumption of operations
  354  of a correctional facility by the department in the event of
  355  bankruptcy or the financial insolvency of the private vendor.
  356  The private vendor shall provide an emergency plan to address
  357  inmate disturbances, employee work stoppages, strikes, or other
  358  serious events in accordance with standards of the American
  359  Correctional Association.
  360         Section 9. Section 957.15, Florida Statutes, is amended to
  361  read:
  362         957.15 Funding of contracts for operation, maintenance, and
  363  lease-purchase of private correctional facilities.—The request
  364  for appropriation of funds to make payments pursuant to
  365  contracts entered into by the department of Management Services
  366  for the operation, maintenance, and lease-purchase of the
  367  private correctional facilities authorized by this chapter shall
  368  be made by the Department of Management Services in a request to
  369  the department. The department shall include such request in its
  370  budget request to the Legislature as a separately identified
  371  item and shall forward the request of the Department of
  372  Management Services without change. After an appropriation has
  373  been made by the Legislature to the department for the private
  374  correctional facilities, the department shall have no authority
  375  over such funds other than to pay from such appropriation to the
  376  appropriate private vendor such amounts as are certified for
  377  payment by the Department of Management Services.
  378         Section 10. Section 957.16, Florida Statutes, is amended to
  379  read:
  380         957.16 Expanding capacity.—The department of Management
  381  Services is authorized to modify and execute agreements with
  382  contractors to expand up to the total capacity of contracted
  383  correctional facilities. Total capacity means the design
  384  capacity of all contracted correctional facilities increased by
  385  one-half as described under s. 944.023(1)(b). Any additional
  386  beds authorized under this section must comply with the cost
  387  saving requirements set forth in s. 957.07. Any additional beds
  388  authorized as a result of expanded capacity under this section
  389  are contingent upon specified appropriations.
  390         Section 11. Except as otherwise expressly provided in this
  391  act, this act shall take effect July 1, 2023.