IN THE DISTRICT COURT OF APPEALS FIRST DISTRICT, STATE OF ...
E-Copy Received Mar 28, 2012 4:23 PM
IN THE DISTRICT COURT OF APPEALS FIRST DISTRICT, STATE OF FLORIDA CASE NO. 1D11-5935 PAMELA JO BONDI, in her capacity as Attorney General of Florida, Appellant, v. JAMES BAIARDI, JOHN MCKENNA, SHANEA MAYCOCK, AND FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Appellees.
On Appeal From a Final Judgment of The Second Judicial Circuit APPELLANT’S REPLY BRIEF
PAMELA JO BONDI ATTORNEY GENERAL Jonathan A. Glogau Chief, Complex Litigation Fla. Bar No. 371823 PL-01, The Capitol Tallahassee, FL 32399-1050 850-414-3300, ext. 4817 850-414-9650 (fax) [email protected]
Table of Contents Table of Contents ...................................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii SUMMARY OF ARGUMENT .................................................................................1 ARGUMENT .............................................................................................................2 Art III, § 14 ............................................................................................................5 Art III, § 19 ............................................................................................................7 Art VII, § 1(c) ........................................................................................................9 CONCLUSION ........................................................................................................12 CERTIFICATE OF COMPLIANCE .......................................................................12 CERTIFICATE OF SERVICE ................................................................................13
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TABLE OF AUTHORITIES Cases Amalgamated Transit Union, Local 1593 v. Hillsborough Area Regional Transit Authority, 742 So.2d 380 (Fla. 1st DCA 1999) ........................................................7 American Home Assur. Co. v. National Railroad Passenger Corp., 908 So.2d 459 (Fla. 2005)................................................................................. 10, 11 Arnold v. State ex rel. Mallison, 2 So.2d 874 (Fla. 1941)..............................................................................................6 Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla. 1991)................................................................................. 10, 11 City of Monticello v. Monticello Professional Fire Fighters Ass'n, Local 3095, 565 So.2d 364 (Fla. 1st DCA 1990) ..........................................................................6 Environmental Confederation of Southwest Florida, Inc. v. State, 886 So.2d 1013 (Fla. 1st DCA 2004) ........................................................................3 Fla. Dev. Comm’n v. Dickinson, 229 So. 2d 6 (Fla. 1st DCA 1969) .......................10 Ison v. Zimmerman, 372 So.2d 431 (Fla. 1979)..........................................................................................5 State ex rel Kurz v. Lee, 163 So. 859 (Fla. 1935) ......................................... 9, 10, 11 State v. Fla. Police Benevolent Ass'n, Inc., 613 So.2d 415 (Fla.1992).........................................................................................11 Statutes and Laws § 11.90(6), Fla. Stat. ...............................................................................................8, 9 § 447.209, Fla. Stat. ...............................................................................................1, 7 § 944.105, Fla. Stat. ......................................................................................... passim iii
§ 944.105(1), Fla. Stat............................................................................................2, 9 Art. III, § 14, Fla. Const. ................................................................................... 1, 5, 7 Art. III, § 19, Fla. Const. .................................................................................. 1, 2, 7, Art. III, § 19(c)(3), Fla. Const. ...................................................................................8 Art. III, § 19(j), Fla. Const. ........................................................................................8 Art. VII, § 1, Fla. Const. ........................................................................................1, 2 Art. VII, § 1(c), Fla. Const. ..................................................................................9, 11
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SUMMARY OF ARGUMENT Appellees’ main argument boils down to the assertion that the Legislature can provide for private operation of prison facilities in the budget if the DOC requests such a contract in its Legislative Budget Request pursuant to § 944.105, but that the Legislature cannot provide the same dollars for the same contract of its own accord. There is no authority for the proposition that the appropriations power (or any power) of the Legislature is in any way limited by Executive agency requests. In this case, the Legislature appropriated funds in specific line items for the private operation of the Region 4 facilities and directed the agency to engage the procurement processes to obtain such a contract. Stripped of the inflammatory rhetoric, this is nothing more than the legislature appropriating money and specifically directing the agency how it must be spent. The proviso is constitutional. None of Appellees’ secondary arguments have merit. The proviso does not violate either Art. III, § 14; Art. III, § 19; or Art. VII, § 1, Fla. Const. As to Art. III, § 14, the proviso was adopted in good faith for reasons of economy. The record is devoid of evidence of retaliation against the union or bad faith of any kind. This contracting for services is a management prerogative under § 447.209 and is not a violation of the constitution or any civil service statutes.
1
The proviso does not violate Art. III, § 19. Funds for this contract are specifically allocated in line items in the budget and the functions of the LBC in the process are prescribed by the legislature in the proviso. Adjustment of the amounts of each line item within the DOC budget to conform to the contract is well within the constitutional and statutory authority of the LBC. The budget as a whole was adopted consistently with the requirements of the constitution and the rhetoric about the political machinations in the committee process is inapposite. Finally, the proviso does not violate Art. VII, § 1, Fla. Const. The funds appropriated for the private operation of the region 4 facilities were appropriated for a purpose authorized by law. Section 944.105(1) authorizes private contracts for prison operations. All that is required for the expenditure of state funds is an appropriation for a purpose authorized by law. Those conditions are met here. This court should reverse the order of the court below and render an order finding that the proviso at issue is constitutional and enforceable. ARGUMENT Much of Appellees’ argument is a rehash of the arguments from the court below reflecting what the lower court’s order said. Those arguments were addressed in the initial brief and will not be repeated here. The fallaciousness of the order on appeal is patent. Appellees argue and the court below held that the legislature can provide for the private operation of these prison facilities in the 2
budget if the DOC complies with the procedures set forth in § 944.105 There is no authority for the proposition that the legislature can only appropriate money for specific purposes if and only if an agency requests it. The legislature cannot be limited by the actions of an executive agency, or even the governor. The governor’s only power in the appropriations process is the ability to exercise the line item veto. Much of Appellees’ argument is nothing more than inflammatory rhetoric addressing the wisdom of the Legislature’s decision. Whether this is a good idea, whether the contract will actually save money, whether the legislature based its decision on appropriate data – issues raised by Appellees and addressed in the lower court’s order – are not appropriate for judicial review. The courts have no authority to look behind legislation and determine if a lobbyist provided accurate information in the legislative process. As long as the appropriations act is read three times and complies with the 72 hour waiting period, the court has no authority to inquire into the political machinations of the committee process. Only the final product is subject to judicial review. Environmental Confederation of Southwest Florida, Inc. v. State, 886 So.2d 1013 (Fla. 1st DCA 2004) (When reviewing the constitutionality of legislation, it is a court's job to review the final product of the legislature rather than its internal operating procedures.)
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Stripped of its emotional baggage, this is a simple case. Can the Legislature appropriate funds to the Department of Management services for the cutting of the grass and direct by proviso that it be accomplished through a private contractor rather than with state employees? The answer is undoubtedly yes. Here, the legislature appropriated hundreds of millions of dollars for the operation of the Region 4 facilities in the 2011-12 fiscal year (line items 605, 616, 628, 638A, 649A, and 660A). By proviso, the agency was directed to spend that money through procurement of a contract. The difference between the two situations is one of degree, not kind and that difference is not significant in the constitutional analysis. Appellees rely on statutes that govern the process for the agency to propose such a contract to the legislature through its legislative budget request. The legislature directed that certain information should be presented in that request. Here, rather than waiting for the agency to propose private operation, the legislature got the ball rolling in the proviso. The agency is directed therein to provide the same information for the ultimate decision as is required by the statute for the agency LBR. Whether the momentum of the ball is initially imparted by the agency or the Legislature, it is the Legislature that must make the decision. Money must be appropriated for the contract, else it could not be funded. The
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basis upon which the Legislature makes that decision is not subject to judicial review.1 To say that the Legislature is unconstitutionally making policy decisions in the budget is also a fallacy. The policy decision to have private prisons was previously made by the legislature. Section 944.105 authorizes such contracts and it is undisputed that there are already private prisons operating in Florida. The budget is quintessentially a policy document; the decision to put a dollar in one program rather than another is deciding policy. Art III, § 14 Appellees argue that the proviso violates Art III, § 14 because the civil service positions at issue here can only be abolished “by law,” not in the budget. In Ison v. Zimmerman, 372 So.2d 431, 434 (Fla. 1979), the supreme court rejected an overly restrictive interpretation of the term “by law” in Art. III, § 14. Faced with an argument that “by law” meant only by general law, the court held “the meaning of “by law” . . . encompass[es] both “by general law” and “by special or local law.”” In this case, Appellees argue for a similarly cramped interpretation of that phrase that would not include the annual budget bill – certainly a “law” by any definition. 1
Appellees’ argument about the per diem data being old is a red herring. As Richard Tallent testified, the 09-10 per diem rates referenced in the proviso were the most current numbers available. [Tallent depo p. 51, lines 20-21] 5
Appellees’ reliance on Arnold v. State ex rel. Mallison, 2 So.2d 874, 878 (Fla. 1941), is misplaced. In that case, the Plaintiff was employed in a position created by statute. A later enacted statute granted civil service protection for that position. The administrative board in charge abolished the position without granting the hearing required by the later enacted statute. The court held that: It appears to be settled law that a removal of an employee under the terms of Chapter 16866 supra must be made in good faith, or for reasons of economy, or where an office or position is abolished the same must be done in good faith, or on some general delinquency, such as misconduct, incompetency, inefficiency or insubordination or some other act affecting the general character and fitness of the employee, and then only upon written charges preferred according to the Act and after a hearing by the Civil Service Board. The case at bar does not involve an individual employee being removed under the referenced statute for reasons personal to the individual. Rather, the changes made here were made in good faith from motives of economy. Id. Neither can the Appellees make out a case for political retaliation like that addressed in City of Monticello v. Monticello Professional Fire Fighters Ass'n, Local 3095, 565 So.2d 364, 365 (Fla. 1st DCA 1990). There, the court affirmed a PERC order finding that there was competent substantial evidence to support the hearing officer's (1) rejection of the appellant's assertion that the decision to disband the fire department was done for purely economic reasons, without consideration of union activities, and (2) finding that the appellant's motivation for terminating the paid fire department was in retaliation for positions taken by appellee during negotiations and that 6
appellee would not have, in the absence of such anti-union motivation, replaced all bargaining unit employees with volunteers. (e.a.) No evidence was presented in this case to support a frivolous allegation of political retaliation against the union. The record fully supports the Legislature’s good faith intent to save substantial amounts of money by using private contracts for the region 4 facilities. Art. III, § 14, however, does not govern the outcome of this case. Rather, the contracting for services previously provided by state employees is governed by § 447.209 and is an employer prerogative, It is the right of the public employer to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the public employer to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons. Amalgamated Transit Union, Local 1593 v. Hillsborough Area Regional Transit Authority, 742 So.2d 380, 381 (Fla. 1st DCA 1999) (The right to subcontract is a management prerogative.) Art III, § 19 Appellees’ reliance on Art. III, § 19 is equally frivolous. They simply ignore the fact that the budget does allocate specific funds for the operation of region 4 under the proposed contract. (See line items 605, 616, 628, 638A, 649A, 7
and 660A) The function of the LBC in this process is well within constitutional limits. The Committee is not enacting a budget; it is simply reallocating certain sums within the DOC budget to account for the uncertainties of the procurement process. At the time of the budget approval, the time for completion of the transition to private operation and the exact amounts of the contracts were unknown. The Proviso requires that the DOC present the contract to the LBC so that the committee can determine whether the contract complies with the terms of the proviso and so that the DOC line items can be adjusted to account for the timing and amounts of the contract. Appellees make no allegation that the budget was not properly adopted. Their inflammatory arguments about the journey of the budget through the committee process is inapposite. The constitution has no requirements regarding this process and the internal political struggles of the legislature are not within the province of the courts to examine. Appellees argue that the proviso violates Art. III, § 19(c)(3) and (j). It does not. Appellees ignore the impact of the language of § 11.90(6), which provides, “In addition to the powers and duties specified in this subsection, the commission shall exercise all other powers and perform any other duties prescribed by the Legislature.” That statute does not, as stated by Appellees, “confer carte blanche authority on the LBC.” Rather, the duties delegated to the LBC in the proviso are specific and “prescribed by the 8
Legislature.” There is nothing unusual about the duties of the LBC in the proviso. All the Commission will do is adjust the line item amounts based on the timing and amounts required by the contract. This adjustment will align the specific appropriations in the budget with the needs of the contract. Appellees have not alleged that § 11.90 is unconstitutional, they therefore cannot complain about the LBC’s responsibilities under the proviso. Art VII, § 1(c) Appellees argue that privatization of these facilities can only be accomplished “by law,” which they argue must be a stand-alone statute rather than the budget.2 They argue that the DOC appropriation for the private operation of the Region 4 facilities is not made “by law” as necessitated by the provisions of Art. VII, § 1(c), as if the DOC was not authorized by law to operate those facilities. The funds for the private operation of the facilities are appropriated in line items 605, 616, 628, 638A, 649A, and 660A and the authorization for private operation of prisons is found in § 944.105, which provides: “The Department of Corrections is authorized to enter into contracts with private vendors for the provision of the operation and maintenance of correctional facilities and the supervision of inmates.” Consistent with the dictates of State ex rel Kurz v. Lee, cited by
2
Of course, this is entirely inconsistent with the idea that the agency could request privatization in its LBR and at that point it can be accomplished in the budget. 9
Appellees, the money is appropriated to a task for which there is statutory authority. The same is true of Fla. Dev. Comm’n v. Dickinson. Appellees’ reliance on American Home Assur. Co. v. National Railroad Passenger Corp., 908 So.2d 459, 474 -475 (Fla. 2005) and Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla. 1991) is misplaced. Neither of these cases remotely addresses the issues raised in this case. In Chiles, the court was addressing the ability of the legislature to delegate to an executive agency the ability to reduce appropriations. Because of separation of powers issues and the constitutional requirement that appropriations be made by law, it was unconstitutional to delegate that power to the executive. Again citing Kurz, the Chiles court stated: The object of a constitutional provision requiring an appropriation made by law as the authority to withdraw money from the state treasury is to prevent the expenditure of the public funds already in the treasury, or potentially therein from tax sources provided to raise it, without the consent of the public given by their representatives in formal legislative acts. Such a provision secures to the Legislative (except where the Constitution controls to the contrary) the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government. Id. at 265. The proviso is entirely consistent with these doctrines. The legislature is directing, by law in the appropriations act, when, where and how the funds will be spent.
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American Home Assur. is no different. There the court made several important statements: Florida's Constitution provides that “[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law.” Art. VII, § 1(c), Fla. Const. The state may not employ state funds unless such use of funds is made pursuant to an appropriation by the Legislature. See State v. Fla. Police Benevolent Ass'n, Inc., 613 So.2d 415, 418 (Fla.1992) (“[E]xclusive control over public funds rest solely with the legislature.”); Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260, 265 (Fla.1991) (“[T]his Court has long held that the power to appropriate state funds is legislative and is to be exercised only through duly enacted statutes.”) After again citing to Kurz, the court held: Therefore, Florida's Constitution expressly limits the state's ability to expend funds and enter contracts by requiring specific statutory authority. Several laws do grant various state agencies the express authority to execute contracts. American Home Assur., 908 So.2d at 474 -475. Again, the proviso only specifically directs the expenditure of funds appropriated by the Legislature for a purpose authorized by § 944.105. Contrary to Appellees’ contention, the import of these cases is only that no money can be spent from the public treasury except pursuant to an appropriation by the Legislature. The law referenced is the appropriations act. The language in American Home Assur. Refers to the authority to contract; here the authority to enter into contracts for private operation of prisons is specifically granted in § 944.105.
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CONCLUSION The Legislature properly provided for the operation of the region 4 DOC facilities by appropriating funds for that purpose and directing the agency how to implement that appropriation in a proviso. The proviso is constitutional and the order finding otherwise should be reversed. This court should then render an opinion finding the proviso constitutional and enforceable. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing document complies with the requirements of rule 9.210, Fla.R.App.P. Respectfully Submitted, PAMELA JO BONDI ATTORNEY GENERAL s/ Jonathan A. Glogau Jonathan A. Glogau Chief, Complex Litigation Fla. Bar No. 371823 PL-01, The Capitol Tallahassee, FL 32399-1050 850-414-3300, ext. 4817 850-414-9650 (fax) [email protected]
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing document was served by U.S. mail or e-mail this 28th day of March, 2012, on: M. Stephen Turner Kelly Overstreet Johnson Michael A. Gross BROAD AND CASSEL 215 S. Monroe Street, Suite 400 (32301) P. O. Drawer 11300 Tallahassee, FL 32302
Gene L. "Hal" Johnson Stephanie Dobson Webster Florida Police Benevolent Assoc., Inc. 300 E. Brevard Street Tallahassee, FL 32303
s/ Jonathan A. Glogau Attorney
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IN THE DISTRICT COURT OF APPEALS FIRST DISTRICT, STATE OF FLORIDA CASE NO. 1D11-5935 PAMELA JO BONDI, in her capacity as Attorney General of Florida, Appellant, v. JAMES BAIARDI, JOHN MCKENNA, SHANEA MAYCOCK, AND FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Appellees.
On Appeal From a Final Judgment of The Second Judicial Circuit APPELLANT’S REPLY BRIEF
PAMELA JO BONDI ATTORNEY GENERAL Jonathan A. Glogau Chief, Complex Litigation Fla. Bar No. 371823 PL-01, The Capitol Tallahassee, FL 32399-1050 850-414-3300, ext. 4817 850-414-9650 (fax) [email protected]
Table of Contents Table of Contents ...................................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii SUMMARY OF ARGUMENT .................................................................................1 ARGUMENT .............................................................................................................2 Art III, § 14 ............................................................................................................5 Art III, § 19 ............................................................................................................7 Art VII, § 1(c) ........................................................................................................9 CONCLUSION ........................................................................................................12 CERTIFICATE OF COMPLIANCE .......................................................................12 CERTIFICATE OF SERVICE ................................................................................13
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TABLE OF AUTHORITIES Cases Amalgamated Transit Union, Local 1593 v. Hillsborough Area Regional Transit Authority, 742 So.2d 380 (Fla. 1st DCA 1999) ........................................................7 American Home Assur. Co. v. National Railroad Passenger Corp., 908 So.2d 459 (Fla. 2005)................................................................................. 10, 11 Arnold v. State ex rel. Mallison, 2 So.2d 874 (Fla. 1941)..............................................................................................6 Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla. 1991)................................................................................. 10, 11 City of Monticello v. Monticello Professional Fire Fighters Ass'n, Local 3095, 565 So.2d 364 (Fla. 1st DCA 1990) ..........................................................................6 Environmental Confederation of Southwest Florida, Inc. v. State, 886 So.2d 1013 (Fla. 1st DCA 2004) ........................................................................3 Fla. Dev. Comm’n v. Dickinson, 229 So. 2d 6 (Fla. 1st DCA 1969) .......................10 Ison v. Zimmerman, 372 So.2d 431 (Fla. 1979)..........................................................................................5 State ex rel Kurz v. Lee, 163 So. 859 (Fla. 1935) ......................................... 9, 10, 11 State v. Fla. Police Benevolent Ass'n, Inc., 613 So.2d 415 (Fla.1992).........................................................................................11 Statutes and Laws § 11.90(6), Fla. Stat. ...............................................................................................8, 9 § 447.209, Fla. Stat. ...............................................................................................1, 7 § 944.105, Fla. Stat. ......................................................................................... passim iii
§ 944.105(1), Fla. Stat............................................................................................2, 9 Art. III, § 14, Fla. Const. ................................................................................... 1, 5, 7 Art. III, § 19, Fla. Const. .................................................................................. 1, 2, 7, Art. III, § 19(c)(3), Fla. Const. ...................................................................................8 Art. III, § 19(j), Fla. Const. ........................................................................................8 Art. VII, § 1, Fla. Const. ........................................................................................1, 2 Art. VII, § 1(c), Fla. Const. ..................................................................................9, 11
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SUMMARY OF ARGUMENT Appellees’ main argument boils down to the assertion that the Legislature can provide for private operation of prison facilities in the budget if the DOC requests such a contract in its Legislative Budget Request pursuant to § 944.105, but that the Legislature cannot provide the same dollars for the same contract of its own accord. There is no authority for the proposition that the appropriations power (or any power) of the Legislature is in any way limited by Executive agency requests. In this case, the Legislature appropriated funds in specific line items for the private operation of the Region 4 facilities and directed the agency to engage the procurement processes to obtain such a contract. Stripped of the inflammatory rhetoric, this is nothing more than the legislature appropriating money and specifically directing the agency how it must be spent. The proviso is constitutional. None of Appellees’ secondary arguments have merit. The proviso does not violate either Art. III, § 14; Art. III, § 19; or Art. VII, § 1, Fla. Const. As to Art. III, § 14, the proviso was adopted in good faith for reasons of economy. The record is devoid of evidence of retaliation against the union or bad faith of any kind. This contracting for services is a management prerogative under § 447.209 and is not a violation of the constitution or any civil service statutes.
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The proviso does not violate Art. III, § 19. Funds for this contract are specifically allocated in line items in the budget and the functions of the LBC in the process are prescribed by the legislature in the proviso. Adjustment of the amounts of each line item within the DOC budget to conform to the contract is well within the constitutional and statutory authority of the LBC. The budget as a whole was adopted consistently with the requirements of the constitution and the rhetoric about the political machinations in the committee process is inapposite. Finally, the proviso does not violate Art. VII, § 1, Fla. Const. The funds appropriated for the private operation of the region 4 facilities were appropriated for a purpose authorized by law. Section 944.105(1) authorizes private contracts for prison operations. All that is required for the expenditure of state funds is an appropriation for a purpose authorized by law. Those conditions are met here. This court should reverse the order of the court below and render an order finding that the proviso at issue is constitutional and enforceable. ARGUMENT Much of Appellees’ argument is a rehash of the arguments from the court below reflecting what the lower court’s order said. Those arguments were addressed in the initial brief and will not be repeated here. The fallaciousness of the order on appeal is patent. Appellees argue and the court below held that the legislature can provide for the private operation of these prison facilities in the 2
budget if the DOC complies with the procedures set forth in § 944.105 There is no authority for the proposition that the legislature can only appropriate money for specific purposes if and only if an agency requests it. The legislature cannot be limited by the actions of an executive agency, or even the governor. The governor’s only power in the appropriations process is the ability to exercise the line item veto. Much of Appellees’ argument is nothing more than inflammatory rhetoric addressing the wisdom of the Legislature’s decision. Whether this is a good idea, whether the contract will actually save money, whether the legislature based its decision on appropriate data – issues raised by Appellees and addressed in the lower court’s order – are not appropriate for judicial review. The courts have no authority to look behind legislation and determine if a lobbyist provided accurate information in the legislative process. As long as the appropriations act is read three times and complies with the 72 hour waiting period, the court has no authority to inquire into the political machinations of the committee process. Only the final product is subject to judicial review. Environmental Confederation of Southwest Florida, Inc. v. State, 886 So.2d 1013 (Fla. 1st DCA 2004) (When reviewing the constitutionality of legislation, it is a court's job to review the final product of the legislature rather than its internal operating procedures.)
3
Stripped of its emotional baggage, this is a simple case. Can the Legislature appropriate funds to the Department of Management services for the cutting of the grass and direct by proviso that it be accomplished through a private contractor rather than with state employees? The answer is undoubtedly yes. Here, the legislature appropriated hundreds of millions of dollars for the operation of the Region 4 facilities in the 2011-12 fiscal year (line items 605, 616, 628, 638A, 649A, and 660A). By proviso, the agency was directed to spend that money through procurement of a contract. The difference between the two situations is one of degree, not kind and that difference is not significant in the constitutional analysis. Appellees rely on statutes that govern the process for the agency to propose such a contract to the legislature through its legislative budget request. The legislature directed that certain information should be presented in that request. Here, rather than waiting for the agency to propose private operation, the legislature got the ball rolling in the proviso. The agency is directed therein to provide the same information for the ultimate decision as is required by the statute for the agency LBR. Whether the momentum of the ball is initially imparted by the agency or the Legislature, it is the Legislature that must make the decision. Money must be appropriated for the contract, else it could not be funded. The
4
basis upon which the Legislature makes that decision is not subject to judicial review.1 To say that the Legislature is unconstitutionally making policy decisions in the budget is also a fallacy. The policy decision to have private prisons was previously made by the legislature. Section 944.105 authorizes such contracts and it is undisputed that there are already private prisons operating in Florida. The budget is quintessentially a policy document; the decision to put a dollar in one program rather than another is deciding policy. Art III, § 14 Appellees argue that the proviso violates Art III, § 14 because the civil service positions at issue here can only be abolished “by law,” not in the budget. In Ison v. Zimmerman, 372 So.2d 431, 434 (Fla. 1979), the supreme court rejected an overly restrictive interpretation of the term “by law” in Art. III, § 14. Faced with an argument that “by law” meant only by general law, the court held “the meaning of “by law” . . . encompass[es] both “by general law” and “by special or local law.”” In this case, Appellees argue for a similarly cramped interpretation of that phrase that would not include the annual budget bill – certainly a “law” by any definition. 1
Appellees’ argument about the per diem data being old is a red herring. As Richard Tallent testified, the 09-10 per diem rates referenced in the proviso were the most current numbers available. [Tallent depo p. 51, lines 20-21] 5
Appellees’ reliance on Arnold v. State ex rel. Mallison, 2 So.2d 874, 878 (Fla. 1941), is misplaced. In that case, the Plaintiff was employed in a position created by statute. A later enacted statute granted civil service protection for that position. The administrative board in charge abolished the position without granting the hearing required by the later enacted statute. The court held that: It appears to be settled law that a removal of an employee under the terms of Chapter 16866 supra must be made in good faith, or for reasons of economy, or where an office or position is abolished the same must be done in good faith, or on some general delinquency, such as misconduct, incompetency, inefficiency or insubordination or some other act affecting the general character and fitness of the employee, and then only upon written charges preferred according to the Act and after a hearing by the Civil Service Board. The case at bar does not involve an individual employee being removed under the referenced statute for reasons personal to the individual. Rather, the changes made here were made in good faith from motives of economy. Id. Neither can the Appellees make out a case for political retaliation like that addressed in City of Monticello v. Monticello Professional Fire Fighters Ass'n, Local 3095, 565 So.2d 364, 365 (Fla. 1st DCA 1990). There, the court affirmed a PERC order finding that there was competent substantial evidence to support the hearing officer's (1) rejection of the appellant's assertion that the decision to disband the fire department was done for purely economic reasons, without consideration of union activities, and (2) finding that the appellant's motivation for terminating the paid fire department was in retaliation for positions taken by appellee during negotiations and that 6
appellee would not have, in the absence of such anti-union motivation, replaced all bargaining unit employees with volunteers. (e.a.) No evidence was presented in this case to support a frivolous allegation of political retaliation against the union. The record fully supports the Legislature’s good faith intent to save substantial amounts of money by using private contracts for the region 4 facilities. Art. III, § 14, however, does not govern the outcome of this case. Rather, the contracting for services previously provided by state employees is governed by § 447.209 and is an employer prerogative, It is the right of the public employer to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the public employer to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons. Amalgamated Transit Union, Local 1593 v. Hillsborough Area Regional Transit Authority, 742 So.2d 380, 381 (Fla. 1st DCA 1999) (The right to subcontract is a management prerogative.) Art III, § 19 Appellees’ reliance on Art. III, § 19 is equally frivolous. They simply ignore the fact that the budget does allocate specific funds for the operation of region 4 under the proposed contract. (See line items 605, 616, 628, 638A, 649A, 7
and 660A) The function of the LBC in this process is well within constitutional limits. The Committee is not enacting a budget; it is simply reallocating certain sums within the DOC budget to account for the uncertainties of the procurement process. At the time of the budget approval, the time for completion of the transition to private operation and the exact amounts of the contracts were unknown. The Proviso requires that the DOC present the contract to the LBC so that the committee can determine whether the contract complies with the terms of the proviso and so that the DOC line items can be adjusted to account for the timing and amounts of the contract. Appellees make no allegation that the budget was not properly adopted. Their inflammatory arguments about the journey of the budget through the committee process is inapposite. The constitution has no requirements regarding this process and the internal political struggles of the legislature are not within the province of the courts to examine. Appellees argue that the proviso violates Art. III, § 19(c)(3) and (j). It does not. Appellees ignore the impact of the language of § 11.90(6), which provides, “In addition to the powers and duties specified in this subsection, the commission shall exercise all other powers and perform any other duties prescribed by the Legislature.” That statute does not, as stated by Appellees, “confer carte blanche authority on the LBC.” Rather, the duties delegated to the LBC in the proviso are specific and “prescribed by the 8
Legislature.” There is nothing unusual about the duties of the LBC in the proviso. All the Commission will do is adjust the line item amounts based on the timing and amounts required by the contract. This adjustment will align the specific appropriations in the budget with the needs of the contract. Appellees have not alleged that § 11.90 is unconstitutional, they therefore cannot complain about the LBC’s responsibilities under the proviso. Art VII, § 1(c) Appellees argue that privatization of these facilities can only be accomplished “by law,” which they argue must be a stand-alone statute rather than the budget.2 They argue that the DOC appropriation for the private operation of the Region 4 facilities is not made “by law” as necessitated by the provisions of Art. VII, § 1(c), as if the DOC was not authorized by law to operate those facilities. The funds for the private operation of the facilities are appropriated in line items 605, 616, 628, 638A, 649A, and 660A and the authorization for private operation of prisons is found in § 944.105, which provides: “The Department of Corrections is authorized to enter into contracts with private vendors for the provision of the operation and maintenance of correctional facilities and the supervision of inmates.” Consistent with the dictates of State ex rel Kurz v. Lee, cited by
2
Of course, this is entirely inconsistent with the idea that the agency could request privatization in its LBR and at that point it can be accomplished in the budget. 9
Appellees, the money is appropriated to a task for which there is statutory authority. The same is true of Fla. Dev. Comm’n v. Dickinson. Appellees’ reliance on American Home Assur. Co. v. National Railroad Passenger Corp., 908 So.2d 459, 474 -475 (Fla. 2005) and Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla. 1991) is misplaced. Neither of these cases remotely addresses the issues raised in this case. In Chiles, the court was addressing the ability of the legislature to delegate to an executive agency the ability to reduce appropriations. Because of separation of powers issues and the constitutional requirement that appropriations be made by law, it was unconstitutional to delegate that power to the executive. Again citing Kurz, the Chiles court stated: The object of a constitutional provision requiring an appropriation made by law as the authority to withdraw money from the state treasury is to prevent the expenditure of the public funds already in the treasury, or potentially therein from tax sources provided to raise it, without the consent of the public given by their representatives in formal legislative acts. Such a provision secures to the Legislative (except where the Constitution controls to the contrary) the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government. Id. at 265. The proviso is entirely consistent with these doctrines. The legislature is directing, by law in the appropriations act, when, where and how the funds will be spent.
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American Home Assur. is no different. There the court made several important statements: Florida's Constitution provides that “[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law.” Art. VII, § 1(c), Fla. Const. The state may not employ state funds unless such use of funds is made pursuant to an appropriation by the Legislature. See State v. Fla. Police Benevolent Ass'n, Inc., 613 So.2d 415, 418 (Fla.1992) (“[E]xclusive control over public funds rest solely with the legislature.”); Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260, 265 (Fla.1991) (“[T]his Court has long held that the power to appropriate state funds is legislative and is to be exercised only through duly enacted statutes.”) After again citing to Kurz, the court held: Therefore, Florida's Constitution expressly limits the state's ability to expend funds and enter contracts by requiring specific statutory authority. Several laws do grant various state agencies the express authority to execute contracts. American Home Assur., 908 So.2d at 474 -475. Again, the proviso only specifically directs the expenditure of funds appropriated by the Legislature for a purpose authorized by § 944.105. Contrary to Appellees’ contention, the import of these cases is only that no money can be spent from the public treasury except pursuant to an appropriation by the Legislature. The law referenced is the appropriations act. The language in American Home Assur. Refers to the authority to contract; here the authority to enter into contracts for private operation of prisons is specifically granted in § 944.105.
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CONCLUSION The Legislature properly provided for the operation of the region 4 DOC facilities by appropriating funds for that purpose and directing the agency how to implement that appropriation in a proviso. The proviso is constitutional and the order finding otherwise should be reversed. This court should then render an opinion finding the proviso constitutional and enforceable. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing document complies with the requirements of rule 9.210, Fla.R.App.P. Respectfully Submitted, PAMELA JO BONDI ATTORNEY GENERAL s/ Jonathan A. Glogau Jonathan A. Glogau Chief, Complex Litigation Fla. Bar No. 371823 PL-01, The Capitol Tallahassee, FL 32399-1050 850-414-3300, ext. 4817 850-414-9650 (fax) [email protected]
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing document was served by U.S. mail or e-mail this 28th day of March, 2012, on: M. Stephen Turner Kelly Overstreet Johnson Michael A. Gross BROAD AND CASSEL 215 S. Monroe Street, Suite 400 (32301) P. O. Drawer 11300 Tallahassee, FL 32302
Gene L. "Hal" Johnson Stephanie Dobson Webster Florida Police Benevolent Assoc., Inc. 300 E. Brevard Street Tallahassee, FL 32303
s/ Jonathan A. Glogau Attorney
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