2021 Regular Session
By: Representative Horan
AN ACT TO BRING FORWARD SECTIONS 47-5-533 THROUGH 47-5-575, MISSISSIPPI CODE OF 1972, WHICH RELATE TO THE MISSISSIPPI PRISON INDUSTRIES, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 47-5-533, Mississippi Code of 1972, is brought forward as follows:
47-5-533. (1) It is the finding of the Legislature that prison industry programs of the State Department of Corrections are uniquely different from other programs operated or conducted by other departments in that it is essential to the state that the prison industry programs provide inmates with useful activities that can lead to meaningful employment after release in order to assist in reducing the return of inmates to the system.
(2) It is further the finding of the Legislature that the mission of a prison industry program is:
(a) To reduce the cost of state government by operating prison industries primarily with inmate labor, which industries do not seek to unreasonably compete with private enterprise;
(b) To serve the rehabilitative goals of the state by duplicating as nearly as possible, the operating activities of a free-enterprise type of profit-making enterprise; and
(c) To serve the security goals of the state by reducing the idleness of inmates and by providing an incentive for good behavior while in prison.
SECTION 2. Section 47-5-535, Mississippi Code of 1972, is brought forward as follows:
47-5-535. (1) Except as otherwise specifically provided by law, it is the intent of the Legislature that a nonprofit corporation be organized and formed, within sixty (60) days from April 4, 1990, to lease and manage the prison industry programs of the Mississippi Correctional Industries. The corporation created and established shall be a body politic and corporate, may acquire and hold real and personal property, may receive, hold and dispense monies appropriated to it by the Legislature of the State of Mississippi received from the federal government, received from the sale of products, goods, and services which it produces, and received from any other sources whatsoever.
(2) Except as otherwise specifically provided by law, it is the further intent of the Legislature that the nonprofit corporation shall create any additional prison industry program as it deems fit, and any such program shall be created in compliance with the provisions of Sections 47-5-531 through 47-5-575.
(3) Except as otherwise specifically provided by law, it is the further intent of the Legislature that such nonprofit corporation shall have exclusive rights to operate any prison industry program and when such corporation is lawfully formed, no other public or private entity shall be allowed to carry out the provisions of Sections 47-5-531 through 47-5-575.
(4) It is the further intent of the Legislature, that the nonprofit corporation which is required to be organized and formed under Sections 47-5-531 through 47-5-575 shall locate and operate prison industries at any state correctional facility with the approval of the Commissioner of Corrections. It is the intent of the Legislature that the nonprofit corporation locate and operate such industries in an orderly and expeditious manner. Such corporation may locate and operate prison industries at other prison satellites, at community work centers in the state, at any private correctional facility which houses state inmates and at any regional correctional facility as authorized under Section 47-5-931. No industrial prison program shall be located at a site other than state prison facilities approved by the commissioner.
(5) It is the further intent of the Legislature that the nonprofit corporation shall not have any rights to operate a program under the prison agricultural enterprises and shall not create a prison industry program that duplicates a prison agricultural enterprises program or product.
(6) It is the further intent of the Legislature that the department retain exclusive rights to conduct all prison agricultural and related enterprises.
SECTION 3. Section 47-5-537, Mississippi Code of 1972, is brought forward as follows:
47-5-537. The Secretary of State, or his designee, shall assist the Department of Corrections and the Department of Finance and Administration in the formation of the nonprofit corporation, and within sixty (60) days after the formation of the corporation, the corporation shall apply for exemption from federal tax under the provisions of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. Any program of the Division of Vocational Rehabilitation of the State Department of Human Services shall not be classified as prison industries under the provisions Sections 47-5-531 through 47-5-575.
SECTION 4. Section 47-5-539, Mississippi Code of 1972, is brought forward as follows:
47-5-539. For the purposes of Sections 47-5-531 through 47-5-575, the following terms shall have the following meanings unless the context shall provide otherwise:
(a) "Corporation" means the private nonprofit corporation which is required to be organized and formed to carry out the provisions of Sections 47-5-531 through 47-5-575 regarding prison industries.
(b) "Department" means the State Department of Corrections.
(c) "Inmate" means any person incarcerated within any state correctional facility.
(d) "Prison industry program" means any program which is considered to be a part of any prison industry in this state.
(e) "Prison agricultural enterprises" means all agricultural endeavors as defined in Section 47-5-353.
SECTION 5. Section 47-5-541, Mississippi Code of 1972, is brought forward as follows:
47-5-541. (1) The corporation shall be governed by a board of directors. The board of directors of the nonprofit corporation shall be composed of the following eleven (11) members who shall be appointed by the Governor with the advice and consent of the Senate: one (1) representative of the manufacturing industry, one (1) representative of the agriculture industry, one (1) representative of the banking and finance industry, one (1) representative of the labor industry, one (1) representative from the marketing industry and six (6) members from the state at large. In addition, the State Commissioner of Corrections and the President of Mississippi Delta Community College shall be ex officio members of the board of directors with full voting privileges. In making initial appointments, three (3) members shall be appointed for a term of two (2) years; four (4) members shall be appointed for a term of three (3) years; and four (4) members shall be appointed for a term of four (4) years; to be designated by the Governor at the time of appointment; and all succeeding terms shall be for four (4) years from the expiration date of the previous term. Initial appointments shall be made within thirty (30) days after passage of Sections 47-5-531 through 47-5-575. Any vacancy shall be filled by the Governor, with the advice and consent of the Senate. The officers of the corporation shall consist of a chairman, vice chairman and a secretary-treasurer. The officers shall be selected by the members of the board. However, the Commissioner of Corrections and the President of Mississippi Delta Community College shall not be eligible to serve as an officer of the corporation.
(2) The board of directors shall select and employ a chief executive officer of the corporation who shall serve at the pleasure of the board. The board shall set the compensation of the chief executive officer. The chief executive officer shall be responsible for the general business and entire operations of the corporation, and shall be responsible for operating the corporation in compliance with the bylaws of the corporation and in compliance with any provision of law. The board shall be authorized and empowered to do only those acts provided by law and by the bylaws of the corporation. Except as otherwise specifically provided by law, such board shall have the authority to establish prison industries, to cease the operation of any industry which it deems unsuitable or unprofitable, to enter into any lease or contract for the corporation and it shall have the full authority to establish prices for any industry good.
(3) No member of the board of directors shall vote on any matter that comes before the board that could result in pecuniary benefit for himself or for any entity in which such member has an interest.
(4) In addition to the board of directors, an advisory board may be set up for the benefit of each industry which is established pursuant to the provisions of Sections 47-5-531 through 47-5-575. Such boards shall be advisory only, and may be set up in the discretion of the board of directors of the corporation.
(5) Each member of the board of directors of the corporation shall receive per diem as provided in Section 25-3-69 for each day or fraction thereof spent in actual discharge of his official duties and shall be reimbursed for mileage and actual expenses incurred in the performance of his official duties in accordance with the requirements of Section 25-3-41, Mississippi Code of 1972.
(6) The board of directors shall make and publish policies, rules and regulations governing all business functions, including but not limited to accounting, marketing, purchasing and personnel, not inconsistent with the terms of Sections 47-5-531 through 47-5-575, as may be necessary for the efficient administration and operation of the corporation.
(7) The chief executive officer of the corporation shall:
(a) Employ all necessary employees of the corporation and dismiss them as is necessary;
(b) Administer the daily operations of the corporation;
(c) Upon approval of the board of directors, execute any contracts on behalf of the corporation; and
(d) Take any further actions which are necessary and proper toward the achievement of the corporation purposes.
(8) A member of the board of directors of the corporation shall not be liable for any civil damages for any personal injury or property damage caused to a person as a result of any acts or omissions committed in good faith in the exercise of their duties as members of the board of directors of the corporation, except where a member of the board engages in acts or omissions which are intentional, willful, wanton, reckless or grossly negligent.
SECTION 6. Section 47-5-543, Mississippi Code of 1972, is brought forward as follows:
47-5-543. (1) Within sixty (60) days after the formation of the corporation pursuant to the provisions of Section 47-5-535, the State Department of Corrections shall lease to the corporation all existing prison industries including the buildings, land, furnishings, equipment and other chattel used in the operation of such industries. Such lease shall be agreed upon by the State Department of Corrections, State Department of Finance and Administration and the corporation. The initial term of such lease shall not exceed six (6) years, provided that such lease may be renewed for additional successive terms of years not to exceed six (6) years in any one (1) renewal. No sublease to the corporation shall be in excess of that amount for which the department is obligated to pay under any lease agreement with any other state agency. Any receivable and remaining funds shall be transferred to the corporation after the payment of any existing liabilities. No operating loss of any type shall be transferred to the corporation. The State Department of Corrections shall continue to manage and operate the prison industries until such industries are leased to the corporation. When leasing any prison industry program to the corporation, the corporation shall exercise a reasonable effort to employ any personnel of the State Department of Corrections who are currently involved in any prison industry program being leased to the corporation. Before the leasing of the prison industries, buildings, lands and other items mentioned herein to the corporation, the State Auditor of Public Accounts shall perform a comprehensive audit of all the items and things mentioned herein which are to be leased by the department to the corporation. The corporation may expand, eliminate, suspend or alter any of its industries as it sees fit.
(2) Any lands, buildings, equipment, furnishings, livestock, supplies and vehicles used in the department's farming operations which were leased or transferred to the nonprofit corporation under subsection (1) shall be transferred to the department. Any personnel in the department's farming operations employed by the nonprofit corporation who desire to be reassigned to the department and who are under state service may be reassigned to the department.
(3) The department is not required to lease land, buildings, equipment, furnishings or other chattel used in its prison agricultural enterprises.
SECTION 7. Section 47-5-545, Mississippi Code of 1972, is brought forward as follows:
47-5-545. Except as otherwise specifically provided by law, after the commissioning and implementation of a marketing feasibility study for any proposed new prison industry, the corporation may establish such prison industry. Before any new industry is established, the corporation shall hold a hearing to determine the impact such industry may have on the private sector market. The corporation shall provide adequate and advance notice regarding the nature, time, date and place of such hearing. After the hearing which is required under this section, the corporation may commence negotiations with the State Department of Corrections, with the Secretary of State, or his designee, serving as a mediator, regarding the leasing of land and other chattels for the purpose of establishing any new industry.
SECTION 8. Section 47-5-547, Mississippi Code of 1972, is brought forward as follows:
47-5-547. Except as otherwise specifically provided by law, any training program or auxiliary program associated with any existing prison industry shall be transferred to the corporation. The corporation is empowered and authorized to establish in participation with the Mississippi Delta Community College, any training or auxiliary program for existing prison industries or for any industries which the corporation might create. Mississippi Delta Community College shall provide assistance in business planning, marketing and analysis of existing or projected industries. These industrial services shall be contracted with appropriate community colleges when these industries are developed at other correction sites.
SECTION 9. Section 47-5-549, Mississippi Code of 1972, is brought forward as follows:
47-5-549. Any service or item manufactured, processed, grown or produced by the corporation from its prison industries may be furnished or sold to any legislative, executive or judicial branch of the state, any political subdivision or any governing authority of the state, any other state, any school, college or university of the state, any foreign government, any agency of the federal government or to any private entity. The corporation shall make reasonable efforts to purchase raw materials from in-state vendors. The prices for industry-made products shall be established by the board of directors of the corporation or its designee.
SECTION 10. Section 47-5-551, Mississippi Code of 1972, is brought forward as follows:
47-5-551. In the event the corporation is dissolved or its lease of any prison industry program expires or is otherwise terminated, all property relating to such prison industry program which ceases to function because of such termination or dissolution, including all funds, buildings, land, furnishings, equipment and other chattels subsequently purchased or otherwise acquired by the corporation in connection with its continued operation of that program, automatically reverts to full ownership by the department.
SECTION 11. Section 47-5-553, Mississippi Code of 1972, is brought forward as follows:
47-5-553. Before any prison industry may commence operations, the chief executive officer of the corporation must communicate with the Commissioner of Corrections regarding the proper security for the facility. If at anytime the Commissioner of Corrections recognizes a need for improvement in the security at any facility, then he or she shall communicate to the corporation regarding what improvements are needed for the facility to be properly secured. The corporation shall furnish its own security within the parameters of any prison industry work area.
SECTION 12. Section 47-5-555, Mississippi Code of 1972, is brought forward as follows:
47-5-555. The department shall, subject to the necessary security requirements and the needs of the corporation, provide to the corporation sufficient inmate labor for the various prison industry programs. The department may adopt rules and regulations as may be necessary to govern the use of inmates by the corporation. The corporation shall establish policies and procedures, subject to the approval of the department, relating to the use of inmates in the prison industry programs.
SECTION 13. Section 47-5-557, Mississippi Code of 1972, is brought forward as follows:
47-5-557. Any inmate who performs work for the corporation, except those inmates employed by the corporation in the Prison Industry Enhancement Program under Section 47-5-1251, shall not be deemed an agent, employee or involuntary servant of the corporation while performing such work or while going to and from work or other specified areas.
SECTION 14. Section 47-5-559, Mississippi Code of 1972, is brought forward as follows:
47-5-559. The corporation shall submit to the Governor and the Legislature, on or before January 1 of each year, a report on the status of the correctional work programs, including but not limited to the programs and funds which have been transferred to the corporation, the programs and funds to be taken over within the next year and the proposed use of the profits from such programs, a breakdown of the amount of noninmate labor used, work subcontracted to other vendors, use of consultants, finished goods purchased for resale, and the number of inmates working in the correctional work programs at the time of the report. In addition, the corporation shall submit to the department, the Governor and the Legislature an annual independently audited financial statement and such other information as may be requested by the Legislature together with recommendations from the corporation relating to provisions for reasonable tax incentives to private enterprises that employ inmates, parolees or former inmates who have participated in correctional work programs. The department shall include, as a portion of its annual report, a report on post-release job placement and the rate of subsequent contact with the correctional system for those inmates who have participated in the correctional work programs operated by the corporation and by the department. Beginning January 1, 1991, the State Auditor shall conduct an annual financial audit of the corporation in conjunction with an independent audit conducted by the corporation's auditors. The State Auditor and the legislative PEER committee shall also conduct a biennial performance audit of the corporation for the period beginning January 1, 1991, through January 1, 1993, and thereafter upon the joint request of the Senate Corrections Committee, House Penitentiary Committee, Senate Finance Committee, and House Ways and Means Committee.
SECTION 15. Section 47-5-561, Mississippi Code of 1972, is brought forward as follows:
47-5-561. (1) In addition to its other powers, the corporation shall have the power to request, through the department, an appropriation of general revenue funds for the purposes of operation of, addition to or renovation of facilities or correctional work programs at the various correctional institutions; however, upon receipt of such appropriation, the rental paid by the corporation for the operation of or such new remodeled or renovated facilities or the operation of a correctional work program shall be sufficient to amortize its cost over a period of five (5) years.
(2) The corporation shall maintain those prison industries funds in excess of that amount necessary for sustaining quarterly or monthly operations of the corporation in an interest-bearing account best serving the proper management of corporation funds and earning the maximum amount of interest allowed by law. The corporation shall cause monies from the interest-bearing account to be deposited quarterly or monthly into the corporation's checking account in order to pay the legal debts of the corporation, approved for payment by the corporation.
SECTION 16. Section 47-5-563, Mississippi Code of 1972, is brought forward as follows:
47-5-563. (1) The department may adopt such rules as may be necessary to govern the use of inmates by the corporation; however, such rules shall be related only to the need for security, inmate projections, and efficient operation of each institution.
(2) The corporation, with the input of the department, shall establish policies and procedures subject to the approval of the department's legal counsel relating to the use of inmates in the correctional work programs.
(3) All such policies and procedures adopted by the department and the corporation shall be placed on file in the Office of the Secretary of State.
SECTION 17. Section 47-5-565, Mississippi Code of 1972, is brought forward as follows:
47-5-565. To carry out the provisions of Sections 47-5-531 through 47-5-575, the provisions of Sections 47-5-301 et seq., and 47-5-501 et seq., Mississippi Code of 1972, the corporation shall authorize the transfer and expending of monies from the Prison Industries Fund.
SECTION 18. Section 47-5-567, Mississippi Code of 1972, is brought forward as follows:
47-5-567. Except as otherwise specifically provided by law, no inmate shall be eligible for unemployment compensation or workmen's compensation whether employed by the corporation or by any other private enterprise operating on the grounds of a correctional institution or elsewhere where such employment shall be a part of a correctional work program or work release program of either the corporation or the department.
SECTION 19. Section 47-5-569, Mississippi Code of 1972, is brought forward as follows:
47-5-569. (1) Except as otherwise specifically provided by law, if the department leases a single correctional work program at any correctional institution to the corporation, the corporation shall lease all such correctional work programs at that institution. Any rent paid by the corporation to the department shall be deposited in a correctional programs trust fund for enhancement of education and training, post-release job placement, and other correctional purposes related to the purposes of Sections 47-5-531 through 47-5-575.
(2) All leases of department-owned land for the funding or operations of the corporation shall be subject to the approval of the corporation, the Mississippi Department of Corrections and the Public Procurement Review Board.
(3) This section shall not apply to any program within the prison agricultural enterprises operated by the department.
SECTION 20. Section 47-5-571, Mississippi Code of 1972, is brought forward as follows:
47-5-571. Except as otherwise specifically provided by law, no goods, wares, services or merchandise manufactured, mined or offered in whole or in part by prisoners shall be sold or offered by any person or other authority except by the corporation, as authorized by Sections 47-5-531 through 47-5-575.
SECTION 21. Section 47-5-573, Mississippi Code of 1972, is brought forward as follows:
47-5-573. (1) In adopting or modifying master plans for correctional work programs, and in the administration of the Department of Corrections, it shall be the objective of the department to develop a logical sequence of vocational training, employment by correctional work programs, and post-release job placement for inmates participating in correctional work programs.
(2) The Department of Corrections shall establish guidelines for the development of correctional work programs.
(3) The needs of the corporation shall be considered by the department when assigning and transferring prisoners to correctional institutions. The following criteria shall be used when assigning and transferring inmates:
(a) Skills of the inmate relevant to the corporation's industries;
(b) Security classification of the inmate relevant to the type of corporation's industry;
(c) Duration of availability of the inmate for employment by the corporation;
(d) Establishment of a concept of potentially rehabilitative inmate.
SECTION 22. Section 47-5-575, Mississippi Code of 1972, is brought forward as follows:
47-5-575. Any records or reports which relate to the financial aspect or operations of the corporation, with the exception of any trade secrets, shall be considered as public records and shall be subject to the provisions of the Mississippi Public Records Act of 1983.
SECTION 23. This act shall take effect and be in force from and after July 1, 2021.