Analysis

Synopsis:

 House Bill 352 (HB 352) enacts the Private Detention Facility Moratorium Act and removes authorization to enter into contracts or agreements with private independent contractors for the operation of detention facilities. It provides for recommended termination of contracts for operation of jails under certain circumstances and makes the operation of a private detention facility unlawful. HB 352 prohibits public funding of private detention facilities. It creates the Detention Facility Economic Development Assistance Fund and the Detention Facility Displaced Worker Assistance Fund. It requires annual reports and repeals sections 33-1-17 and 33-3-26 NMSA 1978.  HB 352 declares an emergency.

3/4/2021
The House Consumer and Public Affairs Committee introduced a committee substitute for HB 352 (CS/HB 352 HCPAC) that enacts the Private Detention Facility Moratorium Act. It removes authorization to enter into contracts or agreements with private independent contractors for the operation of detention facilities and creates the Private Detention Facilities Transition Task Force. CS/HB 352 HCPAC repeals Sections 33-1-17 and 33-3-26 NMSA 1978 and declares an emergency.

Analysis:

 House Bill 352 (HB 352) enacts the Private Detention Facility Moratorium Act (Moratorium Act) and removes authorization of the state, governmental entity, or county sheriff, including any officer, employee or agent, to enter into contracts or agreements with private independent contractors for the operation of detention facilities. It specifies the prohibition applies to renewals and modifications and the payment, reimbursement or subsidization of these private facilities including sale, purchase, and construction.

HB 352 grandfathers in existing facilities until the end of the current agreement period. However, it allows for extension until 31 December 2026 under certain conditions. HB 352 designates four exceptions based on the facility’s primary function, thus allowing a facility whose principal function, for example, is rehabilitation, education or medical services, to continue to operate.

HB 352 creates the non-reverting Detention Facility Economic Development Assistance Fund whose purpose is to diversify and promote an affected community's economy by fostering economic development opportunities unrelated to private detention facilities. The secretary of finance and administration disperses the funds after the secretary of economic development signs eligible vouchers. It charges the Economic Development Department (EDD) with developing an economic d diversification and development plan in cooperation with the affected community’s Community Advisory Committee or with the appropriate entity under the State-Tribal Collaboration Act. It requires a public input process and specifies the types of expenditures allowed from this fund.

HB 352 establishes the non-reverting Detention Facility Displaced Worker Assistance Fund which the Workforce Solutions Department (DWS) will administer. The secretary of finance and administration disperses the funds after the secretary of the DWS signs eligible vouchers. It tasks the DWS with developing a displaced worker development plan in cooperation with the affected community’s Community Advisory Committee or with the appropriate entity under the State-Tribal Collaboration Act. It requires at least three public meetings in the affected community and specifies the types of expenditures allowed from this fund.


HB 352 provides three definitions: detention facility; operate; and private detention facility.

HB 352 mandates the establishment of a Community Advisory Committee with criteria for appointment of conveners; the conveners’ authority to appoint members to the CAC with political party limitations, and requirements for diverse economic and cultural perspectives and indigenous representation. The CAC operates under the Open Meetings Act and requires the CAC to make recommendations to the appropriate department within sixty days of that department’s request for such recommendations. It defines affected community and displaced worker for the purpose of this section.

HB 352 eliminates the word private from Section 31-20-2 NMSA 1978 to conform to the changes in the Moratorium Act when the state Corrections Department commits an offender to a detention facility. It makes other technical changes.

It creates a new section of Chapter 33, Article 3 NMSA 1978 to define jail administrator as an individual employed by a county, municipality or a combination of these, who supervises the entire operation of a jail and reports directly to the administrative head of the local governmental entity or local governing body.

HB 352 modifies the operation of common jails in Section 33-3-1 NMSA 1978 to reflect the phasing out of contracts with private independent contractors no later than 31 December 2026 under certain circumstances and to incorporate the relevant prohibitions pursuant to the Moratorium Act. It eliminates dated provisions in this section. 

It modifies Section 33-3-2 NMSA 1978 concerning joint agreements for the construction, management and operation of correctional and detention facilities and jails to comply with the restrictions and prohibitions in the Moratorium Act. It deletes inapplicable statutory cross-references and makes technical changes.

HB 352 requires the annual report made concerning inspection of jails and detention facilities in Section 33-3-4 NMSA 1978 that is presented to the legislature at a regular meeting to be provided to Risk Management Division (RMD) of the General Services Department (GSD), the Local Government Division (LGD) of the Department of Finance and Administration (DFA) and the Office of the Attorney General (AG). It requires these divisions and the AG to review each inspection report for compliance with each private detention agreement and to recommend termination of the agreement within ninety days of notice to the contractor if the contractor fails to meet the provisions of the agreement or fails to meet certain contractual arrangements pursuant to Section 33-3-27 NMSA 1978; if the divisions or AG determines that the failure; seriously impairs the availability or operation of the facility; and if the recommended termination is consistent with the termination provisions of the agreement.

HB 352 conforms Section 33-3-18 NMSA 1978 (Counties without Jails—Arrangements with other Counties) by removing the term independent contractor and makes technical changes.

It modifies Section 33-3-27 NMSA 1978 (Jail Agreements-Approval-Liability-Termination) to comply with the restrictions and prohibitions in subsection 3 of the Moratorium Act unless Section 33-3-1NMSA 1978 specifically authorizes the agreement. 

HB 352 clarifies that boards of county commissioners are authorized to enter into agreements and to do any and all things to carry out the provisions of Chapter 33, Article 6 NMSA except to contract with a private independent contractor for the operation or management of a juvenile detention home.

It repeals Sections 33-1-17 and 33-3-26 NMSA1978.

HB 352 declares an emergency.

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