CSHB 53(JUD): "An Act relating to the authority of the Department of Corrections to contract for facilities for the confinement and care of prisoners, and annulling a regulation of the Department of Corrections that limits the purposes for which an agreement with a private agency may be entered into; authorizing an agreement by which the Department of Corrections may, for the benefit of the state, enter into one lease of, or similar agreement to use, space within a correctional facility that is operated by a private contractor, and setting conditions on the operation of the correctional facility affected by the lease or use agreement; and giving notice of and approving a lease-purchase agreement or similar use-purchase agreement for the design, construction, and operation of a correctional facility, and setting conditions and limitations on the facility's design, construction, and operation."
00CS FOR HOUSE BILL NO. 53(JUD) 01 "An Act relating to the authority of the Department of Corrections to contract 02 for facilities for the confinement and care of prisoners, and annulling a regulation 03 of the Department of Corrections that limits the purposes for which an agreement 04 with a private agency may be entered into; authorizing an agreement by which 05 the Department of Corrections may, for the benefit of the state, enter into one 06 lease of, or similar agreement to use, space within a correctional facility that is 07 operated by a private contractor, and setting conditions on the operation of the 08 correctional facility affected by the lease or use agreement; and giving notice of 09 and approving a lease-purchase agreement or similar use-purchase agreement for 10 the design, construction, and operation of a correctional facility, and setting 11 conditions and limitations on the facility's design, construction, and operation." 12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 13 * Section 1. AS 33.30.031(a) is amended to read: 14 (a) The commissioner shall determine the availability of state correctional
01 facilities suitable for the detention and confinement of persons held under authority of 02 state law or under agreement entered into under (e) of this section. If the 03 commissioner determines that suitable state correctional facilities are not available, the 04 commissioner may enter into an agreement with a public or private agency to provide 05 necessary facilities, subject to the following: 06 (1) the commissioner may not enter into an agreement with an 07 agency unless the agency demonstrates the qualifications and experience necessary 08 to provide a degree of custody, care, and discipline to the extent required by the 09 laws of this state; 10 (2) correctional [. CORRECTIONAL] facilities provided through 11 agreement with an [A PUBLIC] agency for the detention and confinement of persons 12 held under authority of state law may be in this state or in another state; 13 (3) correctional [. CORRECTIONAL] facilities provided through 14 agreement with an [A PRIVATE] agency 15 (A) may provide for the detention and confinement of all 16 persons held by the commissioner under authority of state law, whether 17 charged with or convicted of felonies or misdemeanors, without regard to 18 the custody classifications for prisoners as determined by the 19 commissioner, unless the security of the facility is inconsistent with those 20 custody classifications; and 21 (B) may not by regulation be restricted or limited by the 22 commissioner to use only for prisoners involved in certain rehabilitative or 23 treatment programs authorized by law [MUST BE LOCATED IN THIS 24 STATE UNLESS THE COMMISSIONER FINDS IN WRITING THAT (1) 25 THERE IS NO OTHER REASONABLE ALTERNATIVE FOR DETENTION 26 IN THE STATE; AND (2) THE AGREEMENT IS NECESSARY BECAUSE 27 OF HEALTH OR SECURITY CONSIDERATIONS INVOLVING A 28 PARTICULAR PRISONER OR CLASS OF PRISONERS, OR BECAUSE AN 29 EMERGENCY OF PRISONER OVERCROWDING IS IMMINENT. THE 30 COMMISSIONER MAY NOT ENTER INTO AN AGREEMENT WITH AN 31 AGENCY UNABLE TO PROVIDE A DEGREE OF CUSTODY, CARE, AND
01 DISCIPLINE SIMILAR TO THAT REQUIRED BY THE LAWS OF THIS 02 STATE]. 03 * Sec. 2. AS 33.30.031(c) is amended to read: 04 (c) An [NOTWITHSTANDING AS 36.30.300, AN] agreement with a private 05 agency to provide necessary facilities under (a) of this section must, notwithstanding 06 AS 36.30.300, be based on competitive bids. The commissioner may not enter into 07 an agreement with a private agency to provide necessary facilities in this state 08 unless the agency 09 (1) posts an adequate performance bond and payment bond; 10 (2) demonstrates to the commissioner's satisfaction the capability 11 to provide the necessary qualified personnel to implement the terms of the 12 contract; and 13 (3) provides a bond or certificate of insurance sufficient to defend 14 and indemnify the state and a municipality in which the facility is located against 15 claims or liability arising from the operation of correctional facilities by the 16 contractor. 17 * Sec. 3. AS 33.30.031 is amended by adding new subsections to read: 18 (f) The commissioner may not enter into an agreement to provide necessary 19 facilities under (a) of this section as a correctional facility that is to be constructed in this 20 state after the effective date of this Act unless the commissioner initiates and completes 21 a site selection process. The site selection process must provide the public reasonable 22 opportunity to comment about sites to be considered for the location of the correctional 23 facility. In addition, if, on the basis of the site selection process, the commissioner 24 determines to enter into an agreement to contract for provision of necessary facilities at 25 a correctional facility that is to be located at a site within a municipality of the state, the 26 correctional facility may not be constructed at the site unless approved by a majority of 27 the voters within the "affected area" at an election conducted by the municipality. In this 28 subsection, "affected area" means the area within two miles of the external perimeter of 29 the proposed correctional facility. 30 (g) In conducting the site selection process required by (f) of this section, the 31 commissioner may solicit proposals from private entities by publishing a request for
01 proposal in a newspaper of general circulation. The commissioner shall accept proposals 02 for six months after initial publication of the request for proposals. Each proposal shall 03 certify in a manner prescribed by the commissioner that 04 (1) the facility to be constructed will meet the department's requirements 05 as described by the commissioner in the request for proposals or other documents; 06 (2) the facility will be operated at a cost to the state below the state's 07 cost to operate a comparable facility, that cost to be described by the commissioner in 08 the request for proposals or other documents; and 09 (3) the entity submitting the proposal owns or has an option to buy at a 10 fixed cost the land on which the proposed facility would be located, and the entity agrees 11 that the state may purchase the land at a price fixed at the time of entering into the 12 contract if the state assumes ownership or control of the facility under a statute or 13 provision of contract. 14 (h) In order for the certification of compliance with (g) of this section to be 15 valid, the approval process must meet the following requirements: 16 (1) not more than one month after initial publication of the request for 17 proposals, the private entity shall publish in a newspaper of general circulation notice of 18 intent to make a proposal, including a description of the location to be proposed; 19 (2) not more than one month after initial publication of the request for 20 proposals, the private entity shall deliver by certified mail to all voters residing within 21 two miles of the proposed site notice of intent to make a proposal, including a 22 description of the location to be proposed; 23 (3) at least three months prior to the bid closure date published on the 24 request for proposals, the municipality of the state conducting the election shall at the 25 expense of the entity deliver by certified mail to all voters residing within two miles of 26 the proposed site a mail-in ballot approved by the commissioner that voters may use to 27 signify approval of the proposed site; and 28 (4) the approval process may not last more than three months from the 29 mailing of the ballots and indication of approval may not be counted after the close of 30 this period. 31 (i) If the proposed site lies within the boundaries of a municipality of the state,
01 the entity making the proposal may, at the expense of the entity, contract with the 02 administrator of the municipality to count ballots prepared under (h) of this section, 03 publish the results in a newspaper of general circulation, and make all ballots received 04 available for inspection by parties with reasonable interest in the proposal. The entity 05 making the proposal shall pay for the cost to count the ballots, publish the results in a 06 newspaper of general circulation, and make all ballots received available for inspection 07 by parties with reasonable interest in the proposal. 08 * Sec. 4. AS 33.30 is amended by adding a new section to article 1 to read: 09 Sec. 33.30.043. Lease of or agreement to use space within municipal 10 correctional facility. (a) If the commissioner determines that it would be in the best 11 interest of the state, the commissioner may enter into an agreement with a municipality 12 of the state for the lease by the state of a correctional facility or a part of it or for the 13 use and operation of a correctional facility or a part of it for the benefit of the state. 14 (b) An agreement executed by the commissioner under (a) of this section must 15 provide that 16 (1) the state has the right to detain or confine a prisoner held under 17 authority of law in the correctional facility; 18 (2) the administrator of the correctional facility agrees to implement an 19 order concerning a prisoner issued by a court of the state; 20 (3) the administrator of the correctional facility shall comply with the 21 law and with regulations adopted by the commissioner relating to the custody, care, 22 and discipline of a prisoner detained or confined in the correctional facility; and 23 (4) the commissioner may inspect the correctional facility at any time 24 to determine the conditions under which a prisoner is detained or confined. 25 (c) The agreement executed by the commissioner under (a) of this section may 26 require the administrator of the correctional facility to comply with requirements that 27 the commissioner considers necessary for the protection of the public or for the quality 28 of care and programs for prisoners required by this chapter and regulations adopted by 29 the commissioner. 30 * Sec. 5. AUTHORIZATION TO LEASE, OR FOR USE OF, CORRECTIONAL 31 FACILITY SPACE WITH THIRD-PARTY CONTRACTOR OPERATION. (a) To relieve
01 overcrowding of existing correctional facilities, the Department of Corrections may enter into 02 no more than one agreement to lease space or for use of space within a correctional facility 03 that will house persons who are committed to the custody of the commissioner of corrections. 04 The agreement to lease or for use entered into under this section is predicated upon and must 05 provide for an agreement under which a private third-party contractor operates the facility by 06 providing for custody, care, and discipline services for persons held by the commissioner of 07 corrections under authority of state law. 08 (b) The authorization given by (a) of this section is subject to the conditions of (c) 09 - (e) of this section and to the further limitation that the total payments for the full term of 10 the agreement to lease or for use may not exceed $150,000,000 and the anticipated annual 11 amount of the rental obligation to be paid by the Department of Corrections under the 12 agreement to lease or for use must be reasonably commensurate with that total. 13 (c) A lease of space or agreement for use of space authorized by (a) of this section 14 may not involve a correctional facility that 15 (1) contains a total population of less than 500 or more than 800 prisoners; or 16 (2) is to be operated by the state or a municipality except that the state or a 17 municipality may operate the correctional facility temporarily if, in a correctional facility that 18 is to be operated by a third-party contractor with whom the state or a municipality has entered 19 into an agreement to operate the correctional facility, the private third-party contractor with 20 whom the state or a municipality has entered into the agreement to operate the correctional 21 facility defaults in performance under the contract and operation of the correctional facility 22 by the state or the municipality is reasonably necessary to ensure the facility's continued 23 operation. 24 (d) If required by the commissioner of corrections as a condition of the correctional 25 facility's operation, in the award of a contract for the operation of the correctional facility to 26 be operated under the authorization set out in (a) of this section, the Department of 27 Corrections shall require that persons employed by the contractor as correctional officers in 28 the facility meet the requirements of AS 18.65.130 - 18.65.290 that are applicable to 29 correctional officers. 30 (e) The Department of Corrections may not, under this section, enter into an 31 agreement to lease space or for the use of space in a correctional facility if, under sec. 6 of
01 this Act, the Department of Administration, on behalf of the Department of Corrections, enters 02 into a lease-purchase agreement, use-purchase agreement, or other agreement to use a facility 03 that has a nominal purchase option. 04 * Sec. 6. NOTICE AND APPROVAL OF LEASE-PURCHASE AGREEMENT OR 05 SIMILAR USE-PURCHASE AGREEMENT. (a) To provide for the design, construction, and 06 operation of a new correctional facility in order to relieve overcrowding of existing 07 correctional facilities, the Department of Administration, on behalf of the Department of 08 Corrections, may enter into an agreement under AS 33.30.031, in the form of a lease-purchase 09 agreement, use-purchase agreement, or other agreement to use a facility that has a nominal 10 purchase option, for the design, construction, and operation of a correctional facility that will 11 house persons who are committed to the custody of the commissioner of corrections. The 12 project approval given by this subsection is subject to the conditions of (b) - (e) and (g) of 13 this section and to the following limitations: 14 (1) the anticipated total construction, acquisition, and related costs of 15 establishing the correctional facility may not exceed $90,000,000; 16 (2) the total lease or use payments for the full term of the agreement may not 17 exceed $180,000,000 and the anticipated annual amount of the rental obligation to be paid by 18 the Department of Corrections under the lease or use agreement must be reasonably 19 commensurate with that total; and 20 (3) at the end of the term of the lease-purchase agreement or use-purchase 21 agreement, the state shall own the correctional facility. 22 (b) The correctional facility to be designed, constructed, and operated under the notice 23 and approval given in (a) of this section 24 (1) must be designed and constructed so as to house, in separate housing, 25 female prisoners and male prisoners; 26 (2) may not contain a total population of more than 1,000 prisoners, but must 27 be designed and constructed so as to allow expansion of the facility to a greater capacity; and 28 (3) may not be operated by the state except temporarily when 29 (A) the private third-party contractor with whom the state has entered 30 into an agreement to operate defaults in performance under the contract and state 31 operation is reasonably necessary to ensure the facility's continued operation; or
01 (B) the state is unable to contract with a private third-party contractor. 02 (c) The lease-purchase or use-purchase agreement entered into under this section must 03 provide for 04 (1) an agreement under which the correctional facility is designed, constructed, 05 and, except for services to prisoners described in (2) of this subsection, operated by a private 06 third-party contractor; the agreement described in this subsection is made for the purpose of 07 acquiring, improving, and maintaining the correctional facility structure under AS 36.30.085, 08 and is exclusive of one or more agreements for the custody, care, and discipline of prisoners 09 housed in the facility as may be authorized by AS 33.30.031(a)(1) and (3); 10 (2) an operating agreement, separate from the agreement described in (1) of 11 this subsection, under which a private third-party contractor operates the facility by providing 12 for custody, care, and discipline services for persons held by the commissioner of corrections 13 under authority of state law; the operating agreement described in this paragraph shall 14 (A) for its initial period, not to exceed five years, be entered into with 15 a private third-party contractor that is the same person as the third-party contractor 16 described in (1) of this subsection; and 17 (B) for the duration of the period of the lease-purchase or use-purchase 18 agreement, be rebid or reoffered at intervals of not more than five years and may be 19 entered into with a private third-party contractor other than the person described in (A) 20 of this paragraph. 21 (d) In the evaluation of a bid submitted to construct and operate the correctional 22 facility described in this section, the Department of Administration may provide incentive to 23 the maker of a bid that pledges to employ state residents as far as practicable. 24 (e) If required by the commissioner of corrections as a condition of the correctional 25 facility's operation, in the award of a contract for the operation of the correctional facility to 26 be designed, constructed, and operated under the notice and approval given in (a) of this 27 section, the Department of Administration shall require that persons employed by the 28 contractor as correctional officers in the facility meet the requirements of AS 18.65.130 - 29 18.65.290 that are applicable to correctional officers. 30 (f) Subsection (a) of this section constitutes the notice and approval required by 31 AS 36.30.085.
01 (g) The Department of Administration, on behalf of the Department of Corrections, 02 may not, under this section, enter into a lease-purchase agreement, use-purchase agreement, 03 or other agreement to use a facility that has a nominal purchase option if, under sec. 5 of this 04 Act, the Department of Corrections enters into an agreement to lease space or for the use of 05 space in a correctional facility. 06 * Sec. 7. CONSTRUCTION OF CORRECTIONAL FACILITY UNDER PROJECT 07 LABOR AGREEMENT. (a) The purpose of this section is to enable the state to meet its 08 obligation to improve the care and custody of the prisoners for which it is responsible at an 09 early date through the completion of construction of a major correctional facility by structuring 10 labor relations at the job site of the correctional facility in the interests of industrial harmony 11 and in a way that makes optimal use of construction resources. 12 (b) Notwithstanding any restrictions that may be applicable under AS 36.30, the 13 correctional facility described in sec. 6 of this Act may be constructed only under a public 14 construction project labor agreement between the building construction contractor and one or 15 more building trade unions; the labor agreement must provide 16 (1) a no-strike and no-slowdown pledge by the union or unions; 17 (2) a commitment on the part of the construction contractor to hire through 18 local union hiring halls; and 19 (3) a provision allowing not more than 15 percent of the construction 20 contractor's workforce on the public construction project to be composed of persons who are 21 not members of the union or unions. 22 * Sec. 8. 22 AAC 05.300(e) is annulled. 23 * Sec. 9. APPLICABILITY. The provisions of AS 33.30.031(f), added by sec. 3 of this 24 Act, do not apply to construction within the perimeters of correctional facilities, as that term 25 is defined in AS 33.30.901, that are in existence on the effective date of this Act.