A Leon County judge could soon decide just how far the Legislative Budget Commission can go in rewriting the state budget, paving the way for a potentially precedent-setting decision on the authority of the panel.
The issue is emerging as a central one in a lawsuit brought by the American Federation of State, County and Municipal Employees and the Florida Nurses Association in an effort to block the privatization of health-care services at state prisons.
There are two parts of the lawsuit, the first arguing that the Department of Corrections doesn't have the authority to privatize the services without legislative approval, and the second saying that even if the agency can do so, the LBC can't free up the money to pay for the contracts in a budget amendment, as it did in September.
Circuit Judge John Cooper didn't say for certain whether he would get to the LBC issue, but hinted at it when an attorney for one of the companies that would take over in the privatization pointed out that Cooper would only rule on that issue if the unions lost on the question of the Department of Corrections' power.
"Without ruling, let me say it's worth our time to spend our time on these issues," Cooper said.
Cooper conceded that there is relatively little case law on the issue, and asked attorneys on both sides to file new briefs to address it in more detail by next Wednesday. Whatever Cooper rules, it could spark a set of significant rulings on just how far the LBC can go in revising the state budget when the Legislature is out of session.
"In plain English, it seems to me that the Constitution and the Legislature are saying we can do a little, you know, touch up here and there, but we can't allow a small group of the Legislature to establish new policy or to eliminate policy just by the LBC," Cooper said.
Lawyers representing the unions saw that as a potential victory even as it looked like they might lose on the question of whether the department could contract out the health services without prior legislative approval.
"What's important is that the judge recognizes that the LBC is a stopgap, and that it is not an opportunity for the Legislature to play it fast and loose with the lives of state employees or with what happens in programming in the state," said Alma Gonzalez, special counsel for AFSCME Florida Council 79.
But losing on the question of the department's authority could still cause complications for the unions. William Williams, representing the company expected to take over health-care services for three of Florida's four regions, argued that the unions might not "have a dog in a budget hunt" if the department has the authority to make the contracts.
He said that made the issue of the LBC less significant to the unions and could undermine their standing to bring the lawsuit.
"What this is about is how a vendor gets paid for services, assuming we get past the issue of whether the services can be provided by that private vendor in the first place," said Williams, who represented Corizon Inc.
Corrections officials say they are authorized to contract with Corizon and Wexford Health Sources Inc., because of a provision of state law allowing the department to farm some jobs out to "counties, municipalities, nonprofit corporations, and other entities capable of providing needed services."
But Thomas Brooks, an attorney for the opponents, said allowing the wholesale privatization of inmate services goes too far.
"We're not just talking about contracting out for this or that where it's needed," he said. "We're talking about lock, stock and barrel, the whole operation."
