Considering the fact that I am the only one who has been speaking upon the issues of privatization for at least a decade, I believe I am in the position to provide my 2 cents.
This was such a missed opportunity to raise many legitimate legal questions and put them in the public record in dealing with things such as the privatization of education, but, at least it is a start.
The Bill, itself, demonstrates a lack of sophistication in the legal area of privatization.
The simplest issue which should have been raised is one of civil rights and access to justice, but hey, who am I to speak, at great length, on the ills of privatization?
Consistency is a highly sought trait. This is why I shall be using the traditional fuchsia for my lively castigation.
HOUSE BILL No. 4271
February 23, 2017, Introduced by Reps. Jones, Green, Durhal, Love, Pagan, Scott, GayDagnogo, Phelps, Peterson, Dianda, Liberati, Chirkun, Zemke, Greig, Schor and Lasinski and referred to the Committee on Appropriations.
A bill to amend 1984 PA 431, entitled
"The management and budget act,"
(MCL 18.1101 to 18.1594) by adding section 282a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
SEC. 282A. (1) BEFORE SEEKING APPROVAL FROM THE CIVIL SERVICE COMMISSION FOR PRIVATIZING ANY SERVICES THAT REPLACE SERVICES PERFORMED BY STATE EMPLOYEES, while ignoring any other issues with services that have already been privatized,
A STATE AGENCY SHALL SUBMIT A DETAILED PREPRIVATIZATION COST-BENEFIT ANALYSIS "A state agency?" What is this supposed to mean? Is it to be the state agency which will be outsourcing public services or a designated agency like the Auditor General who will analyze, with accounting certification, these predictive costs?
What in the world is a "pre-privatization cost-benefit analysis? If a state agency submits this "pre-privatization analysis, would this not be considered to be an operational review of the state agency to find areas for improvement in the delivery of services, which, in turn, would be used as policy recommendations? How about a pre-privatization legal analysis considering the fact that privatization is devoid of any civil rights protections?
Will there be an open bidding process? Will there be opportunity for public comment?
TO THE APPROPRIATIONS COMMITTEES OF THE SENATE AND HOUSE OF REPRESENTATIVES. What about the Attorney General for review of legal liabilities the state may face? What about conflicts of interests (i.e. campaign contributions, personal inurement) between elected/administrative officials and the contractual entities?
THE ANALYSIS MUST BE PREPARED UTILIZING ACCURATE, RELIABLE, AND OBJECTIVE DATA How is one to verify the utilization of "accurate, reliable and objective data? What exactly are these data and what is the venue of recordkeeping to ensure validity of such data? Is this another one of those "self-reporting" data mechanisms which has led to a culture of false claims and fraudulent billing of privatized services?
AND MUST USE THE SOUNDEST ACTUARIAL TECHNIQUES THAT ARE AVAILABLE TO THE STATE AGENCY. How about just saying that GAAS will be used since it is the general acceptable accounting standards. How about expanding the powers of the Auditor General, considering the fact Michigan chased out McTavish.
THE ANALYSIS MUST INCLUDE A DETAILED COMPARATIVE ESTIMATE OF THE COSTS THAT THIS STATE WOULD INCUR FOR THE PERIOD OF THE PROPOSED CONTRACT UNDER THE FOLLOWING CIRCUMSTANCES: Ok, you mean like an external audit or since this would be prima facie, how can one discern from a manipulated cost comparison to an actual, predictive modeling estimate or will there be avid use of crystal balls?
(A) IF STATE EMPLOYEES WERE TO CONTINUE TO PROVIDE THE SERVICES.
(B) IF A PRIVATE CONTRACTOR WERE TO PROVIDE THE SERVICES. THE COST ANALYSIS OF PRIVATIZING THE SERVICES MUST INCLUDE ALL OF THE FOLLOWING COSTS:
(i) ALL NECESSARY MONITORING AND OVERSIGHT OF THE PRIVATE ENTITY BY THE STATE. Currently, under the culture of deregulation, privatized entities are immune from monitoring and oversight and here is why:
A privatized, contracted entity in child welfare is, now, independent of the state, where oversight would be addressed in a court of law. Anything dealing with the efficacy in the delivery of services in social welfare programs, or more intuitively, programs for "The Poors" can only be challenged in a court of law. There are no civil rights protections in privatization, meaning, the state is off the hook for anything which goes wrong. This transfer of liability through privatization creates a stronger layer of immunity, under the scope of the "breach of public trust" doctrine.
A state agency does not have the qualified staff to perform forensic audits. This is why there is an Auditor General. Where are the mechanisms for mandatory referral to the Attorney General if there is suspected violation of law and/or policy? Will the state agency have a fraud hotline to refer to the Attorney General?
(ii) UP-TO-DATE COST ESTIMATES FOR USING COMPANIES THAT HAVE A PREVIOUS HISTORY OR REPUTATION FOR PROVIDING QUALITY SERVICES AND THAT WILL PROVIDE SERVICES COVERED BY PERFORMANCE BONDS. Performance bonds!?! This is social impact investment. How can one rely upon up-to-date cost estimates when the state does not even maintain an exclusionary database for any corporation with a history of questionable cost-reimbursement activities?
(2) A STATE AGENCY SHALL NOT PROCEED WITH PRIVATIZATION OF SERVICES UNDER THIS SECTION UNTIL IT RECEIVES COST ESTIMATES AND RECOMMENDATIONS FOR CHANGES IN WORK PROCESSES FROM THE STATE EMPLOYEES WHO ARE PERFORMING THE SERVICES OR THEIR REPRESENTATIVES AND GIVES FULL AND FAIR CONSIDERATION OF THE REVISED COST ESTIMATES AND RECOMMENDATIONS FOR CHANGES IN WORK PROCESSES. This means that the state wants to see how much it could save in cutting civil servants by reducing the size of government. That would not be such a bad idea, if the state had a clue on its current privatized operations, and, of course, I always refer to the privatization of child welfare services.
(3) THE STATE AGENCY SHALL PUBLISH A COPY OF THE DETAILED PREPRIVATIZATION COST-BENEFIT ANALYSIS ON THE STATE AGENCY'S WEBSITE. Instant public access to any state cost-benefit analysis of privatized services is like having an bottomless box of decedent dark chocolate at my beckoned whim.
This Bill, if it even makes it to the committee agenda, is a good place to open public discussions, but,this is Michigan where "The Elected Ones" like to keep their "desperate to stay in power to keep a paycheck", I am quite sure no other external sources will be conferred and fully expect the bill to die, quietly, sine die.
I have a better ides. Hold on. I will craft legislation since everyone likes to be crude to me, too.
Until I get around to doing just that, here is a Bill I wrote some time ago to deal with one of the issues of privatization and here is the link to the post.