1997 Regular Session
To: Local and Private; Corrections
By: Senator(s) Carlton
Senate Bill 3192
(As Sent to Governor)
AN ACT TO AUTHORIZE THE GOVERNING AUTHORITIES OF THE CITY OF HOLLANDALE TO CONSTRUCT A SPECIAL NEEDS CORRECTIONAL FACILITY LOCATED IN THE CITY; TO AUTHORIZE THE CITY TO CONTRACT WITH THE UNITED STATES AND ANY STATE OR STATES OR POLITICAL SUBDIVISIONS THEREOF FOR THE HOUSING OF OFFENDERS IN THE CUSTODY OF THOSE JURISDICTIONS; TO AUTHORIZE THE CITY TO CONTRACT WITH A PRIVATE ENTITY FOR THE OPERATION AND MANAGEMENT OF THE CORRECTIONAL FACILITY; TO PRESCRIBE OTHER POWERS AND DUTIES OF THE CITY; TO PRESCRIBE RULES AND REGULATIONS FOR THE OPERATION AND MANAGEMENT OF THE FACILITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. As used in this act, unless the contest otherwise requires:
(a) "American Correctional Association Standards" means standards promulgated by the American Correctional Association as in effect from time to time.
(b) "Governing authorities" means the Mayor and Board of Alderman of the City of Hollandale, Mississippi.
(c) "City" means the City of Hollandale, Mississippi.
(d) "Equipment" means any personal property which the city determines is necessary or helpful for the operation of a facility.
(e) "Facility" means a correctional facility for "special needs" inmates as defined by Section 47-5-1103, Mississippi Code of 1972, located in the city which is constructed, acquired or operated pursuant to this act.
(f) "Management contract" means a contract between the city and a private contractor for the operation and management of a facility by a private contractor.
(g) "Private contractor" means a person or legal entity which leases or subleases a facility from the city or has entered into a management contract with the city pursuant to this act.
(h) "State" means the State of Mississippi.
SECTION 2. The city shall have all the powers necessary or convenient to effectuate and carry out the provisions of this act, including the following powers in addition to others granted in this act:
(a) To make and execute contracts and all other instruments necessary or convenient for the performance of its duties and the exercise of its powers under this act;
(b) To employ architects, engineers, contractors, developers, attorneys, inspectors, accountants, financial advisors and any other advisors, consultants and agents as may be necessary, in its judgment, to carry out its powers under this act, and to fix their compensation;
(c) To procure insurance against any loss in connection with its property and other assets, in amounts and from insurers as it may deem advisable, and to pay premiums on any such insurance;
(d) To construct, purchase, receive, lease, lease-purchase, or otherwise acquire, own, hold, improve or use a facility or any item of equipment, and to enter into agreements relating thereto, including, but not limited to, guaranteed price design-build contracts, and agreements relating to the sale and issuance of certificates of participation, which may extend for a period of time, notwithstanding any provision or rule of law to the contrary, and provide for the consideration and other terms and conditions that are acceptable to the city and are not in conflict with the provisions of this act, without regard to any general laws of the state regulating public purchases and acquisitions or restricting the time periods of agreements;
(e) To lease a facility or any item of equipment to a private contractor for rentals and upon the terms and conditions that are acceptable to the city and are not in conflict with the provisions of this act, without regard to any general laws of the state regulating the disposition or conveyance of an interest in public property;
(f) To operate and manage a facility in accordance with the provisions of this act and to take all actions necessary in connection therewith, or alternatively to contract for a primary term not to exceed thirty (30) years with a private contractor to operate and manage a facility in accordance with the provisions of this act;
(g) To contract for a primary term not to exceed thirty (30) years with a public or private contractor to operate and manage the health care facilities and employees of a facility constructed, acquired or operated pursuant to this act;
(h) To borrow money and issue its obligations therefor for the purpose of carrying out its powers under this act, at rates of interest and upon terms and conditions that are acceptable to the city and are not in conflict with the provisions of this act, without regard to any general laws of the state regulating the borrowing of money or issuance of obligations by public bodies, provided that any obligations issued by the city shall be payable solely out of revenues received by the city in connection with the operation or lease of a facility and shall never constitute a debt or obligation of the city, Washington County or the state;
(i) In connection with borrowing money and the issuance of obligations as set forth in this act, the city may pledge or assign its property, assets and revenues, enter into trust indentures, deeds of trust, mortgages and security agreements, contract for bond insurance and other credit enhancement devices, and take any other action and enter into any other agreements as the city deems necessary or appropriate, all on terms and conditions that are acceptable to the city and are not in conflict with the provisions of this act, without regard to any provision or rule of law which would otherwise be applicable thereto;
(j) To make application to and contract with the United States or any department thereof for any grants or loans that may be applied to the costs of construction, operation or management of a facility, and to comply with the terms and conditions of such grants and loans;
(k) To contract with the United States and its territories or any state or states or any political subdivision thereof to provide for housing, care and control in a facility of special needs offenders (as defined in Section 47-5-1103, Mississippi Code of 1972) who are in the custody of the jurisdiction, who do not have histories of escape, and who are sentenced to terms of incarceration by a court of competent jurisdiction, to enter into agreements relating thereto which may extend for time periods that are acceptable to the parties, notwithstanding any provision or rule of law to the contrary, and to exercise all powers necessary or desirable in connection with the operation of a facility, including, but not limited to, the power to incarcerate offenders described above. The city and the state, by and through the Mississippi Department of Corrections, may enter into agreements providing for housing, use and control of "special needs" inmates provided such agreements must be in accordance with the requirements of Sections 47-5-1101 through 47-5-1121, Mississippi Code of 1972.
No contract for the incarceration of state inmates shall be entered into unless the cost of the incarceration, including the state's cost for monitoring the incarceration, offers a cost savings of at least ten percent (10%) to the Mississippi Department of Corrections for at least the same level and quality of service offered by the Mississippi Department of Corrections. If the facility houses Mississippi inmates, the facility shall not displace Mississippi inmate beds with federal or another state inmate beds unless the facility has obtained prior written approval from the Commissioner of Corrections.
SECTION 3. (1) A facility shall be designed, constructed, operated and maintained in accordance with American Correctional Association Standards or standards satisfactory to the jurisdiction sentencing the offenders described in Section 2(k) of this act. The facility shall meet the percentage of standards required for accreditation of a facility by the American Correctional Association, except where a contract with a private contractor requires compliance with a higher percentage of nonmandatory standards.
(2) The facility shall comply with all constitutional standards of the United States and the state and with all court orders applicable to the facility.
(3) Notwithstanding any provision of law to the contrary, the construction, operation and management of a facility shall not require a certificate of need pursuant to the provisions of Title 41, Chapter 7, Mississippi Code of 1972.
SECTION 4. (1) Any person who has been convicted of a felony under the laws of any jurisdiction shall not be employed at the facility.
(2) A person shall not be employed as a corrections officer at the facility unless the person has been trained in the use of force and firearms in accordance with American Correctional Association Standards or has satisfactorily completed the training program of the Mississippi Department of Corrections. If a person is employed as a corrections officer by a private contractor that is operating a facility pursuant to a management contract, the private contractor shall cause the required training to be provided.
(3) A corrections officer employed at the facility shall not use force or firearms except while on the grounds of a facility or while transporting offenders of a facility and then only under the circumstances set forth in subsections (4) and (5) of this section.
(4) A corrections officer shall not use force except such nondeadly force as is reasonably necessary in the following situations:
(a) To prevent the commission of a felony or misdemeanor, including escape;
(b) To defend himself or others against physical assault;
(c) To prevent serious damage to property;
(d) To enforce facility regulations and orders; and
(e) To prevent or quell a riot.
(5) A corrections officer shall not use firearms or other deadly force except as a last resort when reasonably necessary to prevent the commission of a violent felony, to prevent the escape of a convicted felon from custody, or to defend the officer or any other person from imminent danger of death or serious bodily injury.
(6) A private contractor shall have the same standing, authority, rights and responsibilities as the city in any agreement, formal or informal, with local law enforcement agencies concerning the latter's obligations in the event of a riot, escape or other emergency situation involving the facility. To the extent provided in any management contract, a private contractor may exercise the powers granted to the city under this act or powers pursuant to the general laws of the State of Mississippi insofar as they pertain to the incarceration of offenders.
SECTION 5. Any offense which would be a crime if committed within a correctional institution operated by the state shall be a crime if committed in the facility.
SECTION 6. (1) Neither the state nor the city shall assume jurisdiction or custody of any federal offenders or offenders from other states or political subdivisions thereof who are incarcerated in the facility. The offenders shall remain subject to the jurisdiction of the United States or another state or political subdivision, as applicable. Neither the state nor the city shall be liable for loss or injury resulting from the acts of the offenders, nor shall the state or the city be liable for any injuries to the offenders.
(2) Neither the state nor the city may be liable for any actions taken by a private contractor in connection with the facility, nor shall the state be liable for any debt incurred or obligations issued by the city.
SECTION 7. (1) The facility shall at all times be operated and managed by a private contractor pursuant to a management contract. The terms and conditions of a management contract shall be approved by the governing authorities.
(2) A management contract may authorize a private contractor to contract on behalf of the city for the incarceration of offenders in the facility as set forth in Section 2(k) of this act and shall grant the private contractor any other powers that are necessary or convenient for the operation and management of the facility and are consistent with the provisions of this act, including, but not limited to, the power to employ personnel who are needed for the operation and management of a facility and to provide or cause to be provided the training in the use of force and firearms required by Section 4(2) of this act.
(3) A management contract shall provide that any sovereign immunity of the state, any sovereign immunity of the county, any sovereign immunity of the municipality, or any public official immunity shall not extend to the private contractor. Neither the private contractor nor any insurer of the private contractor may plead the defense of sovereign immunity or public official immunity in any action arising out of or related to the performance of the management contract.
(4) A management contract shall provide that the private contractor shall be responsible for the reimbursement of all costs and expenses incurred by the state, the county or the city in connection with legal actions brought in the state by or on behalf of any offender incarcerated in the facility, including, but not limited to, court costs, sheriff's fees, witness fees, district attorney expenses, expenses of the Office of the Attorney General, indigent or public defender fees and expenses, judicial expenses, court reporter expenses and damage awards.
(5) A management contract shall provide that the private contractor shall indemnify and hold harmless the city, the county and the state, and any officers, members, employees or agents of the foregoing, for any claim or liability for damage or injury to any person or property related to or arising from the operation and management of a facility, including, but not limited to, liability for loss or injury resulting from the acts of offenders incarcerated at the facility and liability for any injuries to the offenders.
(6) A management contract may contain any other provisions the city deems necessary or appropriate, including, but not limited to, provisions that may be necessary to cause the management contract to comply with promulgations of the Internal Revenue Service applicable to the contract.
SECTION 8. Neither the state, the county nor the city, nor any members, officers, employees or agents of the foregoing, shall be liable for a private contractor's actions or failure to act while operating and managing a facility pursuant to a management contract.
SECTION 9. (1) The city may enter into lease agreements with a person or legal entity pursuant to which the city may agree to lease the facility or equipment for use by the city for a primary term not to exceed thirty (30) years. All lease agreements may contain terms and conditions as the governing authorities shall determine to be appropriate and in the public interest, including, but not limited to, any provision which a master lease-purchase agreement may contain pursuant to Section 31-7-10(5), Mississippi Code of 1972, may provide for the payment of lease payments which include an interest component computed at a rate or rates as shall be approved by the governing authorities, may include an annual allocation dependency clause, may contain an option granting to the city the right to purchase the leased property upon the expiration of the primary term, or upon an earlier date that may be agreed upon by the parties at a price as set forth in or computed in accordance with the lease agreement and may provide that all or any obligations thereunder are payable from specified revenues pledged as security therefor.
(2) The city may lease publicly owned real property to a person or legal entity for the purpose of enabling the person or legal entity to construct a facility on the property and to lease the facility to the city. A ground lease shall not be for a primary term in excess of twice the primary term of the lease with respect to the facility to be constructed on the real property. Any public body in the state may lease, sell or otherwise convey property to the city without consideration or for consideration as the governing body of the public body shall determine to be appropriate under the circumstances, and to enter into agreements with the city relating thereto, which agreements may extend over any period of time, notwithstanding any provision or rule of law to the contrary.
(3) This section shall be full and complete authority for the authorization, execution and delivery of lease agreements authorized under this act, and none of the restrictions, requirements, conditions and limitations of the general law of the state applicable to acquisition, construction and drawing of buildings or facilities shall apply to lease agreements under this section, and all powers necessary to carry out provisions of this section are conferred upon the city.
SECTION 10. All obligations, including, but not limited to, bonds, notes, lease-purchase agreements and other evidence of indebtedness issued by the city pursuant to this act or state law and all interest payable thereunder or with respect thereto, all leases, trust indentures, deeds of trust, mortgages, security agreements and other contracts or agreements entered into pursuant to this act or state law, and all purchases required to construct the facility or to acquire equipment shall be exempt from all taxation in the state, including, but not limited to, sales taxes and the contractor's tax imposed by Section 27-65-21, Mississippi Code of 1972. As provided by general law applicable to political subdivisions of the state, a facility and the revenues derived from its operation shall also be exempt from all taxation in the state, including, but not limited to, all ad valorem taxes levied by the state or any political subdivision thereof.
SECTION 11. This act shall be full and complete authority for the exercise of all powers and authority granted herein and no requirements or restrictions of law which would otherwise be applicable to acts of the city shall be applicable except as expressly provided herein.
SECTION 12. This act shall take effect and be in force from and after its passage.