Attorneys spar over Legislative Budget Commission power

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Lawyers for the state told a Leon County judge Thursday that the Department of Corrections and Legislative Budget Commission had the authority to privatize health care for inmates across Florida, via Brandon Larrabee of the News Service of Florida.

The arguments before Circuit Court Judge John Cooper came in what could become a landmark case over the power of the LBC, a 14-member panel of House and Senate members that makes budget changes when the Legislature is out of session. At issue is whether the commission overstepped its bounds; the LBC is barred from creating new policy while amending the budget.

That’s precisely what two unions — the American Federation of State, County and Municipal Employees and the Florida Nurses Association — said the LBC did when it shifted money during a September meeting to pave the way for privatization across the state of Florida.

The Department of Corrections contends that it had the authority to authorize the privatization effort on its own and the LBC was just making sure the money was available.

“This is an executive branch decision,” said Jonathan Sanford, assistant general counsel for the agency. “We just need the budget.”

Sanford and William Williams, an attorney for the company expected to take over health-care services for three of Florida’s four regions, also said fine print in the budget for the fiscal year that ended June 30 and the current spending plan cleared the way for the move — indicating the legislative intent that would allow the LBC to authorize the money.

“It’s clear that … the Legislature intended for these services to be privatized,” said Williams, who represented Corizon, Inc. “There is no question about that.”

Williams said that, under the separation of powers doctrine, the LBC should be given broad latitude to decide whether moving the funds is in keeping with the policies the Legislature sets.

“There was never a question before the Legislative Budget Commission about the propriety of this,” Williams said.

However, Democrats did raise questions during the September meeting about whether the department’s reading of the law was correct and gave the agency and the LBC leeway to okay the change.

“Why then would you ever need to come to the Legislature for any appropriation or permission or authorization if you have the unbridled authority under ‘other entities’ to contract anywhere?” asked Rep. Darryl Rouson, D-St. Petersburg, at the time.

During Wednesday’s hearing, Cooper seemed skeptical of some of the state’s arguments, pointing out that the fine print dealing with Corizon’s potential regions were part of the 2011-12 budget, meaning it technically expired June 30. Another “proviso” dealing with health care for prisons in the southern third of the state was included in the budget.

Williams and Sanford contended that the Legislature showed its intent by counting the savings from the privatization in Corizon’s areas in the current year’s budget.

“But if they don’t say it, then how are they going to tell me what [their intent] is?” Cooper asked.

Thomas Brooks, an attorney for opponents of the privatization, also questioned whether that fine print could still be enforced.

“You can’t assume that one legislature intended something to happen in the next year,” he said.

And Alma Gonzalez, special counsel for AFSCME Council 79, said after the hearing that the state’s attorneys were asking Cooper to be a mind reader.

“It’s clear that what’s happening here is that the governor wants the court to become Carnac the Magnificent and put an envelope up to their head and figure out what it was that maybe somebody would have wanted in this political manipulation to continue to take profit out of prison health services,” she said.

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including SaintPetersBlog.com, FloridaPolitics.com, ContextFlorida.com, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.