§ 20-805 — CONTRACTS WITH A PRIVATE PRISON CONTRACTOR

(1) A board of county commissioners or the governing body of a city, may enter into a contract with a private prison contractor for the site selection, design, design/building, acquisition, construction, construction/management, financing, maintenance, leasing, leasing/purchasing, management or operation of private prison facilities or any combination of these services, subject to the following requirements and limitations:
(a) Any request for proposals, any original contract, any contract renewal, any price or cost adjustment or any other amendment to any contract for the incarceration of individuals in a private prison facility shall be reviewed and approved by the contracting authority. The contract shall be in a form as provided for by the department of administration in consultation with the department of correction;
(b) No contract authorized by the provisions of this section shall be awarded until the private prison contractor demonstrates to the satisfaction of the contracting authority that the contractor possesses the necessary qualifications and experience to provide the services specified in the contract; that the contractor can provide the necessary qualified personnel to implement the terms of the contract; that the financial condition of the contractor is such that the terms of the contract can be fulfilled; that the contractor has the ability to comply with applicable court orders and meet corrections standards; and that the proposed private prison facilities or the correctional services proposed by the contractor meet constitutional minimums;
(c) The contract shall provide for the assumption of liability by the private prison contractor for all claims arising from the services performed under the contract by the private prison contractor;
(d) No contract authorized by the provisions of this section shall be awarded until the private prison contractor provides a policy of insurance for all claims satisfactory to the contracting authority specifically including, but not limited to, insurance for civil rights claims as determined by a risk management or actuarial firm with demonstrated experience in public liability for state governments. The insurance policy shall provide coverage for the private prison contractor and its officers, guards, employees and agents as well as insure the state, including all state agencies, and all political subdivisions of the state with jurisdiction over the facility or in which a facility is located against all claims arising from the services performed under the contract by the private prison contractor, its officers, guards, employees and agents. The private prison contractor shall immediately provide written notification of cancellation of insurance to the state department of correction and the contracting authority. The private prison contractor may not self-insure. Proof of insurance shall be provided on or before January 1 of every year to the state department of correction and the contracting authority;
(e) If the contract includes construction or renovation, the contract shall require a performance bond approved by the contracting authority that is adequate and appropriate for the proposed construction or renovation contract;
(f) Except as otherwise permitted under the constitution or laws of the state of Idaho, no contract awarded pursuant to this section shall provide for the encumbrance of funds beyond the amount available for a fiscal year;
(g) The contract shall require the private prison contractor to be licensed by the department of correction pursuant to the provisions of this chapter.
(2) Any contract between a contracting authority and a private prison contractor, whereby the contractor provides for the housing, care, and control of prisoners in a facility operated by the contractor, shall contain, in addition to other provisions, terms and conditions:
(a) A requirement that the private prison contractor provide the services in a facility which meets correctional standards satisfying constitutional minimums, state and federal laws, rules and regulations and applicable court orders, including, but not limited to, all sanitation, food service, safety and health regulations;
(b) A requirement that the private prison contractor send copies of reports of inspections completed by appropriate authorities regarding compliance with laws, rules and regulations of the type described in subsection (2)(a) of this section to the governing authority of the local public entity in which the correctional facility is located;
(c) If a private prison contractor enters into a contract with a board of county commissioners for a private prison facility to be located on private land within the limits of any city, it shall be required that the contractor obtain written authorization from the governing body of the city in which the facility is to be located;
(d) A requirement that the private prison contractor provide training to its personnel to a level acceptable to the contracting authority. The provisions of this section shall not be construed to confer peace officer status upon any employee of the private prison contractor or to authorize the use of firearms. A private correctional officer or other designated employee of a private prison contractor may carry and use firearms in the course of the officer’s or employee’s employment only if the officer or employee is certified as having satisfactorily completed a training program approved by the department of correction and only if used to prevent escape from the facility or from custody while being transported to or from the facility or to prevent an act which would cause death or serious bodily injury to any person. The provisions of this section shall not be construed to confer county or city employee status upon any employee of the private prison contractor;
(e) A requirement that the private prison contractor will not employ any person at the private prison facility until after the private contractor has submitted to the bureau of criminal identification, on a form prescribed by the bureau, a request that the bureau conduct a criminal records check of the person and a requirement that the private prison contractor will not employ any person at the facility if the records check or other information possessed by the contractor indicates that the person has a criminal history or record, regardless of the form of judgment;
(f) A requirement that the private prison facility be staffed at all times to ensure supervision of prisoners and maintenance of security within the private prison facility and to provide for appropriate programs, transportation, security and other operational needs. In determining security needs for the private prison facility, the private contractor and the contract requirements shall fully take into account all relevant factors including, but not limited to, the proximity of the facility to neighborhoods and schools;
(g) A requirement that the private prison contractor, its officers, guards, employees, and agents immediately notify the county sheriff and any other law enforcement or other governmental entities, agencies or personnel named in the contract or required to be informed as provided in this chapter of any riot, rebellion, escape, crime or other emergency situation occurring inside or outside the facility, and a requirement that the private prison contractor reimburse costs as provided in section 20-809, Idaho Code. Notification shall be made by telephone and in writing. The written notice may be made by facsimile transmission or mail;
(h) A requirement that the private contractor adopt and use in the private prison facility a drug testing and treatment program that meets the standards of any drug testing and treatment program the department of correction uses for its prisoners in state correctional institutions;
(i) A requirement that the private prison contractor provide advance written notice to the county sheriff of the contracting authority and any other law enforcement or other governmental entities, agencies or personnel named in the contract, of its intent to provide for transport of any prisoners to or from the private prison facility and of the intended destination;
(j) A requirement that the private prison contractor shall be solely responsible for any damage caused by a prisoner in its custody and shall be solely responsible for security and all costs associated with transporting and housing prisoners to and from locations outside the private prison facility including, but not limited to, court, medical and sending facility locations. The private prison contractor’s responsibility for costs will include, but not be limited to, all costs which may be required by court officials for additional security for the prisoner provided by federal, state, county or city officials;
(k) A requirement that no prisoner shall be housed in a private prison facility pursuant to this chapter without the prior approval of the department of correction pursuant to the provisions of this chapter. Prior to housing any proposed prisoner in the private prison facility, all records in the possession of, or available to, the sending entity, including, but not limited to, classification, medical information, conduct and confinement history of the prisoner shall be provided to the department of correction for review and the department shall have the authority to approve or reject housing of the prisoner based on standards as set forth pursuant to this chapter. Provided however, that in lieu of providing the department of correction with medical information of a prisoner, a sending entity may elect to certify, by a physician licensed in this state and employed by, or under contract with, the private prison facility, that the prisoner under consideration for placement in the facility has been tested, and has not tested positive, for the presence of HIV antibodies or antigens, hepatitis B virus, hepatitis C virus and tuberculosis;
(l) A requirement that the private prison contractor, prior to housing any out-of-state prisoner in the private prison facility under the contract, enter into an agreement with the local contracting governmental entity that sets forth a conversion plan that will be followed if, for any reason, the facility is closed or ceases to operate. The conversion plan shall provide, in part, that the private prison contractor shall be responsible for housing and providing for the transportation of the prisoners who are in the facility at the time it is closed or ceases to operate and for the cost of such housing and transporting of those prisoners;
(m) A requirement that the private prison contractor conform to applicable standards, and obtain accreditation from, the American correctional association and the national commission on correction health care;
(n) A requirement that the private prison contractor indemnify and hold harmless the state, its officers, agents and employees and any local governmental entity in the state with jurisdiction over the place at which the private prison facility is located or that owns the private prison facility, and shall reimburse the state or local governmental entity for costs incurred defending the state or local governmental entity or any of its officers, agents or employees against all claims including the following:
(i) Any claims or losses for services rendered by the contractor, its officers, agents or employees, performing or supplying services in connection with the performance of the contract;
(ii) Any failure of the contractor, its officers, agents or employees to adhere to the laws, rules, regulations or terms agreed to in the contract;
(iii) Any constitutional, federal, state or civil rights claim brought against the governmental entity related to the facility operated and managed by the contractor;
(iv) Any claims, losses, demands or causes of action arising out of the activities in this state of the contractor, its officers, agents or employees;
(v) Any attorney’s fees or court costs arising from any habeas corpus actions or other prisoner suits that may arise from any event that occurred at the facility or was a result of such an event, or arise over the conditions, management or operation of the facility, which fees and costs shall include, but not be limited to, attorney’s fees for the governmental entity’s representation and for any court-appointed representation of any prisoner.
(o) A clear statement that provisions set forth within this chapter do not affect any immunity or defense that the state and its officers and employees or a contracting authority and its officers and employees may be entitled to under another section of the Idaho Code, including, but not limited to chapter 9, title 6, Idaho Code;
(p) A clear statement that no immunity from liability granted to the state, and no immunity from liability granted to political subdivisions pursuant to chapter 9, title 6, Idaho Code, shall extend to the private prison contractor or any of the private prison contractor’s employees;
(q) A requirement that the private prison contractor and its personnel comply with the provisions of this chapter, all laws of the state of Idaho, and all ordinances, policies and procedures of the contracting authority;
(r) A requirement that any ambiguities in the contract shall be construed against the private prison contractor and in favor of the contracting authority.
(3) Contracts awarded under the provisions of this section shall, at a minimum, comply with the following:
(a) Provide for internal and perimeter security to protect the public, employees and prisoners;
(b) Provide that the private prison contractor shall not benefit financially from the labor of prisoners nor shall any prisoner ever be placed in a position of authority over another prisoner. Any profits realized from the operation of a prison enterprise program shall revert to the contracting authority;
(c) Provide that the private prison contractor shall impose discipline on prisoners only in accordance with applicable rules, policies and procedures satisfying constitutional minimums, state and federal laws and applicable court orders;
(d) Require that the private prison contractor provide proper food, clothing, housing and medical care as provided for in the contract. The governmental entity contracting with the private prison contractor shall not be responsible for any costs associated with the medical care of prisoners in the custody of the private prison contractor.
(4) The contracting authority or its designee, as provided in the contract, shall monitor the performance of the private prison contractor. Included in the powers and responsibilities of the contracting authority or its designee, when acting as the contract monitor of the private prison contract are:
(a) A determination if the requirements of the contract are being satisfactorily performed;
(b) A determination whether the private prison contractor and its personnel are complying with the provisions of this chapter, all laws of the state of Idaho and any ordinances or written policies and procedures of the county or city governing the private prison facility;
(c) A determination if applicable ordinances, written policies and procedures of the contracting authority are being followed by the private prison contractor and its personnel;
(d) A determination whether the facility is being operated in a manner which adequately safeguards and protects the safety of the public;
(e) Approval of all prisoner releases on furlough or work release;
(f) The enactment of ordinances or the adoption of written policies or procedures interpreting or making specific application of the provisions of this chapter.

Legislative History

[20-805, added 1998, ch. 360, sec. 1, p. 1125; am. 2000, ch. 272, sec. 10, p. 792; am. 2001, ch. 335, sec. 4, p. 1181.]