Judge hears Fla. prison privatization challenge

Each side asked state Circuit Judge Jackie Fulford for a summary judgment in its favor. Fulford said she expected to decide later Thursday or Friday. The case is likely to be appealed regardless of how she rules.

Republican legislative leaders say privatization would cut spending on the South Florida prison facilities by at least 7 percent. The Police Benevolent Association says those claims are bogus, but even if true would save only $12 million out a $69.1 billion budget.

Union lawyers representing one of up to 3,800 guards who could lose their jobs due to the privatization plan argued the 23-page proviso violates state law and various provisions of the Florida Constitution.

That includes a ban on items in the state budget that don't relate to appropriations for current expenses.

The prison proviso covers a different subject and should have been filed as a separate bill because it changes existing law, said union lawyer Kelly Overstreet Johnson. She said it's a textbook example of what the constitution intended to prevent.

“A few powerful legislators pushed through significant policy changes to these statutes by proviso at the last minute, thus avoiding all possibility for public comment,'' Johnson said.

Assistant Attorney General Jonathan Glogau argued the proviso is valid because it's related to state spending and that existing law requiring cost-benefit analyses and other preliminary steps pertains to privatization proposals by the Department of Corrections, not those that originate in the Legislature.

“The agency didn't ask for it; so what,'' Glogau said. “Agencies don't tell the Legislature what to do.''

Glogau said lawmakers fund plenty of things agencies don't request including the Florida version of special interest spending known as “pork'' or “earmarks'' in the halls of Congress.

“In some instances we call them `turkeys,''' he said. “You can argue that's not a good idea, that's not a good way to do legislating, that's not a good way to make a budget, but there's nothing unconstitutional about it.''

Another union lawyer, M. Stephen Turner, said allowing the proviso to stand would set a precedent letting the Legislature use the budget to privatize “throughout government, anywhere, anytime.''

Turner also argued the proviso violated Gov. Rick Scott's constitutional line-item veto authority because it was not attached to a specific item in the budget.

Glogau acknowledged it doesn't have a line-item link but argued that's not necessary. He said Scott, who generally supports privatization, could have vetoed the entire Department of Corrections budget if he didn't like the proviso. He cited the Florida Supreme Court's 1980 opinion in Brown v. Firestone.

“Brown says that the Legislature and governor can play a high-stakes game of chicken over the budget and there is not a constitutional problem with that,'' Glogau said.

The union introduced pre-hearing testimony, which the state unsuccessfully tried to block, by former Corrections Secretary Edwin Buss. Scott forced Buss to resign in August only six months after hiring him from Indiana where he had headed that state's prison system.

Buss said he was asked to sign off on a business plan for the privatization two months after the budget was passed. He said he signed it but that he wouldn't say he approved it.

Fulford asked Glogau why a 1971 Supreme Court ruling that disallowed a proviso moving a data processing facility from one agency to another wasn't “on point'' as union lawyers had argued.

“We're not moving any entities,'' Glogau said. He argued that funding for the privatized prisons would remain under the Department of Corrections.