ASSEMBLY, No. 1735

 

STATE OF NEW JERSEY

 

INTRODUCED MARCH 18, 1996

 

 

By Assemblyman BODINE, Assemblywoman BARK and Assemblyman O'Toole

 

 

An Act concerning county correctional facilities and supplementing chapter 8 of Title 30 of the Revised Statutes.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. This act shall be known and may be cited as the "County Correctional Facilities Private Management Act."

 

    2. As used in this act, "correctional services" shall include:

    a. The general management, administration, and operation of the facility, including the responsibility for the security of the facility and the custody of the inmates incarcerated therein;

    b. Responsibility for providing basic services, including, but not limited to, food and commissary services; health, dental and medical services; clothing and household services; and facility maintenance and equipment services;

    c. Treatment and counseling services, including, but not limited to, substance abuse treatment and counseling; individual and group therapy and counseling; community integration programs; life and family skills programs; and specialized psychological treatment programs;

    d. Education and training programs, including, but not limited to, remedial skills training; adult basic skills programs; General Equivalency Diploma programs; vocational skills and technical training programs; interpersonal skills programs; and job placement and retention programs; and

    e. Ancillary services, including, but not limited to, recreational, cultural and religious activities and programs.

 

    3. a. The governing body of any county, by ordinance or resolution, as appropriate, may enter into a contract with a qualified private entity to provide correctional services, or any part of those services, at the county correctional facility. The contract shall be for a term of not more than five years and, at the discretion of the governing body of the county, be renewed for an additional term of not more than five years.

    b. Prior to entering into any such contract, the governing body shall publicly advertise for bids and conduct the bidding therefor. The public advertising for bids and bidding required under this subsection shall be in accordance with the provisions of the "Local Public Contracts Law," P.L.1978, c.198 (C.40A:11-1 et seq.).

    c. To qualify as a bidder to provide correctional services, or any part of such services, under the provisions of this act, a private entity shall certify that:

    (1) It has the operational experience, managerial expertise, and qualified, supervisory personnel available to provide the correctional services required to meet the specifications set forth in the public advertisement for bids;

    (2) In providing correctional services in other jurisdictions, it has:

    (a) achieved compliance with appropriate American Correctional Association's standards;

    (b) received accreditation from the American Correctional Association, if required; and

    (c) received certification for its facility medical services from the National Commission on Correctional Health Care, if appropriate;

    (3) It is capable of providing appropriate insurance and indemnification coverages, including, but not limited to:

    (a) civil rights liability coverage;

    (b) general liability coverage; and

    (c) claims relating to a breach of contractual obligations.

    d. In addition to the certifications required under subsection b. of this section, each entity seeking qualification as a bidder shall submit a statement indicating whether the entity has ever been a litigant in any litigation, or a defendant in any criminal action, relating to the operation, administration or management of a correctional facility. The knowing failure to disclose such information shall be grounds for disqualification.

 

    4. The contract to provide correctional services shall include, but not be limited to:

    a. Specifications of the correctional services to be provided;

    b. The insurance coverage and indemnification to be provided;

    c. A schedule identifying those American Correctional Association certifications, accreditations or compliances the entity is to be required to achieve and maintain;

    d. Any other such certifications, accreditations or compliances relating to the provision of the correctional services to be provided under the contract which the entity is required to achieve and maintain;

    e. Any surety or bond the entity is to furnish for claims arising from a breach of contract;

    f. A provision assuring the county's contract compliance officer 24-hour access to the contract site and to designated managers and officers of the entity; and

    g. A provision prohibiting the entity from accepting defendants or offenders from another jurisdictions for incarceration in the correctional facility without the written consent of the governing body of the county.

 

    5. a. The entity under contract to provide correctional services under the provisions of this act shall be liable for any and all claims relating to the provision of those services or arising from its supervision, care, custody or control of the inmates incarcerated in that facility.

    b. An entity under contract to provide correctional services under the provisions of this act shall not be deemed a public entity for the purposes of the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq. and shall not be entitled to any of the immunities, protections and defenses accorded public entities therein.

    c. An employee of an entity under contract to provide correctional services under the provisions of this act shall not be deemed a public employee for the purposes of the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq. and shall not be entitled to any of the immunities, protections and defenses accorded public employees therein.

 

    6. a. An employee of an entity under contract to provide correctional services under the provisions of this act, while in the actual performance of his duties, may exercise, pursuant to the provisions of subsection c. of N.J.S.2C:3-7 and N.J.S.2C:3-4, the justifiable use of force, including deadly force, to prevent an inmate's escape from custody and, if that employee reasonably believes that such force is necessary, to protect himself or others against death or serious bodily harm.

    b. Any offense committed by an inmate against any employee of an entity under contract to provide correctional services under the provisions of this act shall be deemed to be an offense against a duly appointed county corrections officer, and the offender shall be subject to the penalties which may be imposed for such an offense being committed against such an officer.

 

    7. The officers and employees of an entity under contract to provide correctional services under the provisions of this act shall not be construed to be employees of the contracting county or any agency thereof and shall not be entitled to any of the benefits, rights and privileges afforded such public employees by State law.

 

    8. a. No contract entered into pursuant to the provisions of this act shall be construed to grant, extend or delegate to the contracting entity any distinctly judicial or governmental function, authority or power relating to:

    (1) the determination of the offenders to be incarcerated and the term, conditions and place of that incarceration;

    (2) the parole, probation or release of any inmate;

    (3) the temporary or conditional release of an inmate on furlough or to participate in a work release program;

    (4) the establishment and implementation of any system or program which would involve the awarding, denying or revoking of credits which would in any way reduce or extend an inmate's term of incarceration or change the date on which an inmate becomes eligible for parole; and

    (5) the formulation and implementation of any program or system of rules governing inmate behavior or discipline, and imposing sanctions for violations thereof.

    b. Notwithstanding the provisions of subsection a. of this section, the county may provide in the provisions of the contract that the contracting entity may file with the appropriate county authority:

    (1) requests that an inmate be transferred to another correctional facility or disciplined for a violation of the rules governing inmate behavior; and

    (2) recommendations relating to an inmate's parole, probation, work release or furlough; the granting, denying or revoking of credits that may alter the inmate's term of incarceration or parole eligibility; a change in an inmate's conditions of custody; or any changes in or amendments to the rules governing an inmate's behavior within the correctional facility.

 

    9. A county that enters into a contract with a private entity to provide correctional services under the provisions of this act shall designate a contract compliance officer. The contract compliance officer shall have 24 hour access to the contract site and to designated officers and managers of the contracting entity. The contract compliance officer shall submit biannual reports on the entity's performance to the governing body of the county, along with any recommendations he may have.

 

    10. a. Nothing in R.S.30:8-17 concerning a sheriff's responsibility to provide for the care and custody of the inmates or detainees in a jail under his control shall be construed to prohibit, restrict or otherwise hinder the county from entering into a contract with a public entity, in accordance with the provisions of P.L. , c. (C. )(now pending before the Legislature as this bill), to provide correctional services at that jail.

    b. Nothing in R.S.30:8-19 concerning the county governing body's responsibility to provide for the custody and care of the inmates or detainees in a jail under its control shall be construed to prohibit, restrict or otherwise hinder the county from entering into a contract with a public entity, in accordance with the provisions of P.L. , c. (C. )(now pending before the Legislature as this bill), to provide correctional services at that jail.

 

    11. The Attorney General, in consultation with the Commissioner of Corrections, shall promulgate advisory guidelines to assist the governing bodies of those counties that wish to exercise the authority afforded them under this act to enter into contracts with private entities for the provision of correctional services at county correctional facilities.

 

    12. This act shall take effect on the first day of the fourth month following enactment.

 

 

STATEMENT

 

    This bill, the "County Correctional Facilities Private Management Act," would permit the privatization of county correctional facilities.

    Under the provisions of the bill, the governing body of any county is authorized to enter into a contract with a private entity to provide all or some of the correctional services at the county correctional facility. Correctional services are defined in the bill to include the general management, administration and operation of the facility; basic facility services, such as food, medical, household and maintenance services; treatment and counseling programs; education and training programs; and ancillary service programs, such as recreational and cultural programs.

    The contracts, which could run for terms of up to five years and could be extended by the governing body for an additional term of up to five years, would be awarded after public advertisement and bidding.

    To qualify as a bidder, the entity must certify that it:

    (1) has the operational experience, managerial expertise and supervisory personnel necessary to meet the specifications of the contract;

    (2) has, in its other contractual agreements, met American Correctional Association compliance and accreditation standards; and

    (3) is capable of providing appropriate insurance coverages and indemnifications.

    The bill also requires potential bidders to submit a statement indicating whether they have ever been a litigant in any litigation, or a defendant in any criminal action, relating to the operation, administration or management of a correctional facility. While having been a litigant or a defendant is not necessarily grounds for disqualification, an entity which knowingly failed to provide such information would be disqualified.

    In addition to specifying the services to be provided at the correctional facility, the contract is to include provisions concerning required insurance coverages and indemnifications; surety or bond covering breach of contract; and the American Correctional Association certifications and compliances the entity is required to achieve and maintain. The bill also specifies that the contract is to contain provisions prohibiting the entity from accepting inmates from other jurisdictions without the approval of the county and to assure the county contract compliance officer has 24-hour access to the site and to designated officers and managers of the entity.

    The bill clarifies that the contracting entity and its employees are not to be construed to be a public employer and public employees and, therefore, are not afforded any protections or defenses under the "New Jersey Tort Claims Act" (N.J.S.59:1-1 et seq.) and are not accorded any of the benefits, rights and privileges available to public employers and employees under State law.

    Provided it is consistent with the provisions of subsection c. of N.J.S.2C:3-4 and N.J.S.2C:3-7, the bill permits the employees of the contracting entity to exercise the justifiable use of force, including deadly force, to prevent an inmate's escape and to protect himself or others.

    Most importantly, the bill provides that a contractual arrangement for correctional services should not be construed to grant, extend or delegate to a private entity any distinctly judicial or governmental function, authority or power relating to the determination of the offenders to be incarcerated, and the terms conditions and location of their incarceration; the parole, probation or release of any inmate; the temporary or conditional release of an inmate on furlough or to participate in a work release program; or any disciplining of an inmate. The bill does provide, however, that the county may, as part of the contract, provide for the entity to file various reports, requests and recommendations concerning the disciplining of inmates; the conditions of their incarceration; and their parole, probation, furlough, and release with the appropriate county authorities.

    Finally, the bill directs the Attorney General, in consultation with the Commissioner of Corrections, to prepare advisory guidelines to assist county governing bodies that wish to privatize services at their correctional facilities.

 

 

                             

 

Permits privatization of county correctional facilities.