HF 1338

as introduced - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to corrections; regulating the privatization 
  1.3             of correctional facility services; providing for 
  1.4             contract review for nonsecurity institutional 
  1.5             contracts; placing restrictions on inmate work for 
  1.6             private employers; requiring a report; proposing 
  1.7             coding for new law in Minnesota Statutes, chapter 241.
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  [241.266] [CONTRACTING FOR CORRECTIONAL 
  1.10  SERVICES.] 
  1.11     The legislature finds that the operation of correctional 
  1.12  facilities involves functions that are inherently governmental.  
  1.13  The state must not contract with a private contractor for the 
  1.14  provision of services relating to the operation of a 
  1.15  correctional facility or the incarceration of a person in the 
  1.16  custody of the department of corrections except as provided in 
  1.17  sections 241.266 to 241.2691. 
  1.18     Sec. 2.  [241.267] [RESTRICTIONS ON PRIVATIZATION.] 
  1.19     (a) A state agency must not enter into a contract with a 
  1.20  private vendor for the delivery of: 
  1.21     (1) security functions at a state correctional institution, 
  1.22  except for those functions that are being provided by a private 
  1.23  vendor as of the effective date of this section; 
  1.24     (2) correctional institution food services and commissary 
  1.25  services provided by nonmanagement employees that are being 
  1.26  provided by the state as of the effective date of this section, 
  2.1   unless the requirements of section 241.268 are satisfied; and 
  2.2      (3) food services and commissary services provided by 
  2.3   nonmanagement employees in any new correctional institution, 
  2.4   unless the requirements of section 241.268 are satisfied. 
  2.5      Nothing in clauses (2) and (3) shall be construed to 
  2.6   prohibit a state agency from entering into a contract with a 
  2.7   private vendor for management-level services. 
  2.8      (b) For the purposes of sections 241.267 to 241.2691, 
  2.9   "private vendor" means an entity not owned or operated by a 
  2.10  state or political subdivision that delivers or offers to 
  2.11  deliver services.  
  2.12     Sec. 3.  [241.268] [CONTRACT REVIEW FOR NONSECURITY 
  2.13  INSTITUTIONAL CONTRACTS.] 
  2.14     Subdivision 1.  [REVIEW GUIDELINES.] (a) Except as provided 
  2.15  in paragraph (g), the commissioner of corrections must not 
  2.16  recommend approval of a contract with a private vendor unless 
  2.17  the commissioner of corrections determines that the requirements 
  2.18  in paragraphs (b) to (f) are met. 
  2.19     (b) The private vendor must provide financial statements 
  2.20  for the previous three years or for each of the years the 
  2.21  private vendor has been in operation, if fewer than three years, 
  2.22  or provide other financial information to enable the 
  2.23  commissioner to determine the financial strength of the private 
  2.24  vendor.  
  2.25     (c) The private vendor must provide an adequate plan of 
  2.26  insurance, specifically including insurance for civil rights 
  2.27  claims, as determined by an independent risk management firm 
  2.28  with demonstrated experience in state government liability 
  2.29  issues.  The firm shall be selected by the commissioner of 
  2.30  commerce.  In determining the adequacy of the plan, the firm 
  2.31  shall determine whether the insurance is adequate to: 
  2.32     (1) protect the state from legal actions by a third party 
  2.33  against the private vendor or the state as a result of the 
  2.34  contract; 
  2.35     (2) protect the state against claims arising as a result of 
  2.36  any occurrence during the term of the contract; 
  3.1      (3) ensure the private vendor's ability to fulfill its 
  3.2   contract with the state in all respects, and to ensure that the 
  3.3   private vendor is not limited in this ability because of 
  3.4   financial liability which results from judgments; and 
  3.5      (4) satisfy other requirements specified by the independent 
  3.6   risk management/actuarial firm.  
  3.7      (d) In cooperation with appropriate bargaining 
  3.8   representatives, the commissioner of corrections shall compare 
  3.9   the cost of continuing to operate the nonsecurity institutional 
  3.10  service as a public function to the cost of contracting with a 
  3.11  private vendor for the service.  The commissioner shall provide 
  3.12  information on public and vendor costs to the union.  The 
  3.13  comparison must show that the bid of the private vendor will be 
  3.14  at least 15 percent below the best available cost the state can 
  3.15  expect to achieve if it provides the service.  The comparison 
  3.16  must include in the cost of contracting with a private vendor 
  3.17  the amount of the bid plus contract administration, monitoring, 
  3.18  and transition costs.  
  3.19     (e) The commissioner of corrections must determine that 
  3.20  inmate labor is being used to the greatest extent feasible, with 
  3.21  consideration given to the commissioner's authority to employ 
  3.22  all administrative, supervisory, and other skilled workers 
  3.23  necessary to the proper instruction of the inmates and the 
  3.24  profitable and efficient operation of the industrial and 
  3.25  commercial activities authorized by section 241.27. 
  3.26     (f) The commissioner of corrections must determine that the 
  3.27  private vendor provides its employees with a total compensation 
  3.28  and benefit package of similar value to that provided by public 
  3.29  employers to similarly situated employees. 
  3.30     (g) Paragraphs (b) to (f) do not apply to minority or small 
  3.31  business contractors under chapter 16B, nor to contracts for 
  3.32  delivery of goods or services with a value of less than $100,000.
  3.33     Subd. 2.  [BIDS.] If competitive bids must be sought under 
  3.34  chapter 16C for the contract, affected public employees must be 
  3.35  given 30 days' advance notice that a contract will be advertised 
  3.36  for bid and public employees must be allowed to participate in 
  4.1   the bid process, notwithstanding section 16C.04.  For purposes 
  4.2   of this subdivision, "public employee" has the meaning given in 
  4.3   section 179A.03, subdivision 14. 
  4.4      Subd. 3.  [REPORT.] On or before January 1 of each year, 
  4.5   the commissioner of corrections shall submit a written report to 
  4.6   the committees of the senate and the house of representatives 
  4.7   with jurisdiction over corrections policy that identifies and 
  4.8   explains all affirmative contracts that were awarded in the 
  4.9   preceding 12 months and all contract proposals that were 
  4.10  considered and rejected.  The commissioner shall also report on 
  4.11  the status of the labor-management process in subdivision 1, 
  4.12  paragraph (d). 
  4.13     Subd. 4.  [IMMUNITY.] Any immunity available to the state 
  4.14  does not apply to a private vendor.  Neither the private vendor 
  4.15  nor the insurer of the private vendor may plead the defense of 
  4.16  an immunity that is available to the state in any action arising 
  4.17  out of the performance of the contract. 
  4.18     Subd. 5.  [LIABILITY LIMITS.] Any limits on liability or 
  4.19  limits on damages that may be asserted by the state do not apply 
  4.20  to the private vendor, except a nonprofit entity, or the insurer 
  4.21  of the private vendor. 
  4.22     Subd. 6.  [CLASSIFICATION OF DATA.] When a state agency 
  4.23  enters into a contract with a private vendor for the delivery of 
  4.24  services at or for a correctional facility, that contract does 
  4.25  not affect the availability to the public of data that is 
  4.26  classified as public data while maintained by the commissioner 
  4.27  of corrections, and the data shall be available from the private 
  4.28  vendor as public data.  For purposes of this subdivision, 
  4.29  "public data" has the meaning given in section 13.02, 
  4.30  subdivision 15.  
  4.31     Sec. 4.  [241.269] [INMATE EMPLOYMENT.] 
  4.32     (a) The commissioner of corrections must not allow any 
  4.33  individual committed to the commissioner's custody to 
  4.34  participate in an industrial or commercial activity under 
  4.35  section 241.27 or to work for a private employer, unless: 
  4.36     (1) security functions at the place of employment are 
  5.1   provided by the state; 
  5.2      (2) the private employer provides its noninmate employees 
  5.3   with a total compensation and benefit package that is of similar 
  5.4   value to that provided by public employers to similarly situated 
  5.5   employees; 
  5.6      (3) the commissioner certifies in writing to the 
  5.7   appropriate bargaining unit that the inmate's work will not 
  5.8   result in the displacement of currently employed workers or 
  5.9   workers on seasonal layoff, including partial displacement such 
  5.10  as reduction in hours of nonovertime work, wages, or other 
  5.11  employment benefits; and 
  5.12     (4) the commissioner determines that, to the maximum extent 
  5.13  possible, fixtures, equipment, and materials that are necessary 
  5.14  to allow an inmate to participate in an industrial or commercial 
  5.15  activity under section 241.27 or to work for a private employer 
  5.16  are furnished by an entity not owned or operated by a state or 
  5.17  political subdivision. 
  5.18     (b) This section does not apply to those inmates seeking or 
  5.19  engaged in private employment under section 241.26. 
  5.20     Sec. 5.  [241.2691] [RESTRICTIONS ON MANAGERIAL EMPLOYEES.] 
  5.21     (a) Managerial employees of the department of corrections 
  5.22  must not: 
  5.23     (1) disclose or use confidential information for the 
  5.24  purpose of personal gain that the person obtained as an 
  5.25  employee, either during or following employment with the 
  5.26  department of corrections; or 
  5.27     (2) work for a private vendor, as defined in section 
  5.28  241.267, paragraph (b), for one year following termination of 
  5.29  the employee's employment with the state. 
  5.30     (b) For the purposes of this subdivision, "managerial 
  5.31  employees" are employees described in section 43A.18, 
  5.32  subdivision 3. 
  5.33     Sec. 6.  [241.272] [SENTENCE TO SERVE.] 
  5.34     When offenders are assigned for the purpose of work under 
  5.35  agreement with a state department or agency, local unit of 
  5.36  government, or other governmental subdivision, the state 
  6.1   department or agency, local unit of government, or other 
  6.2   governmental subdivision must certify in writing to the 
  6.3   appropriate bargaining agent that the work performed by the 
  6.4   inmates will not result in the displacement of currently 
  6.5   employed workers or workers on seasonal layoff or layoff from a 
  6.6   substantially equivalent position, including partial 
  6.7   displacement such as a reduction in hours of nonovertime work, 
  6.8   wages, or other employment benefits.