Two unions representing nurses and other state employees were back in court this morning, arguing that efforts by the Florida Department of Corrections (DOC) to privatize prison health services violate state law.
The case was heard at 11:05 a.m. by Judge Kevin Carroll of the 2nd Judicial Circuit Court.
But the prison privatization saga is nowhere near over. The parties will be back in court in a couple of weeks, when Carroll will decide whether to let the case proceed, or else dismiss it and tell the unions they need to start from scratch and file a new lawsuit.
The suit by the Florida Nurses Association and American Federation of State, County, and Municipal Employees (AFSCME) had been dismissed by Carroll on July 2, when he found the matter moot after a provision in an appropriations bill authorizing the privatization expired on June 30.
The unions contended that the provision was a violation of the state Constitutions single-subject rule, according to which a single bill can cover only one issue or subject. The principle, codified in Article III, Section 6 of the Florida Constitution, is intended to make state laws easier for voters and legislators to understand and to prevent legislative log-rolling -- i.e., getting unpopular legislation passed through the Legislature by piggy-backing it onto more popular measures.
Although the contested budgetary provision expired over a month ago, the DOC insists it has an alternative legal basis for proceeding with the privatizations: Section 20.315(12) of the Florida Statutes, which allows the DOC to contract for the provision of services by counties, municipalities, nonprofit corporations, and other entities capable of providing needed services, if services so provided are more cost-efficient, cost-effective, or timely than those provided by the department or available to it under existing law. DOC maintains that the words other entities allow it contract even with for-profit corporations.
On Wednesday, counsel for the unions argued that the issue of independent statutory authority for the privatization contracts had already been tried by consent i.e., that the issue had been raised in previous filings to the court and in the course of previous oral arguments, and the state had implicitly conceded it had no such authority when it failed to rebut assertions by the unions insisting that such did not exist.
Carroll adjourned court after less than 30 minutes of oral arguments, directing both parties to submit to him, by the end of next week, supporting statutory and judicial authority on each sides interpretation of the trial by consent principle, and whether a new lawsuit might be called for, since the present one is proceeding pursuant to the potentially poisoned fruit of the now-expired provisions of the appropriations bill.
"It is clear that this issue of privatization can and will be litigated. The question is whether it will be in this suit, or in one down the road, he said.
Carroll said he would try to get something out directly after the litigants submit their documentation to him. Im trying to get this right, guys, he assured them.
In an interview after the hearing with Sunshine State News, attorney Tom Brooks, who is one of the lawyers representing the AFSCME, said the DOC is misconstruing Florida law. He said the language and context of Section 20.315 makes it clear that the Legislature never intended it to apply to for-profit entities.
Theres a principle of statutory construction which says that when a bunch of items are listed before a catch-all expression like and other entities, its to be understood that the expression refers to of like things, and that for-profit corporations are fundamentally unlike governmental or nonprofit entities.
Brooks further insisted that Section 20.315 needed to be read in light of the more explicit provisions of Section 945.6033 of the Statutes, which allows the DOC to contract with licensed health care providers. He says the corporation the DOC is contracting with in the instant case is not a licensed provider as defined by state law.
Even if lawful, DOC Secretary Ken Tucker's proposed privatization plan would have to be approved by the 14 House and Senate members that make up the Joint Legislative Budget Commission.
Tucker insists his plan, if implemented, would reduce state prison costs by well over 7 percent.
Reach Eric Giunta at egiunta@sunshinestatenews.com or at (850) 727-0859.
