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Missing a step; Fletcher should have known law on prisons

Lexington Herald Leader (Kentucky)
December 10, 2004

One of these days, Gov. Ernie Fletcher's administration may come to understand that there's more than one kind of waste in state government.

The surface waste -- the kind Kentuckians have seen from most every recent governor, including Fletcher -- includes such things as paying cronies highly to do little or nothing, awarding no-bid contracts to political contributors, having a pastry chef on the Governor's Mansion staff or even installing hidden doors in the Capitol.

But there's a less obvious kind of waste, too. It's the waste of resources involved when you don't look before you leap, and later find that you leaped the wrong way.

Take the administration's plan for privatizing the $92 million prison the state just built in Elliott County, for instance.

It turns out that all the time Fletcher's folks spent discussing this idea, all the effort they put into drafting a request for bids from private companies and all the hours spent evaluating those bids have been a complete waste of state money.

Why? Because privatizing this particular prison would be illegal.

Had administration officials bothered to check the law, they could have avoided all that waste because they would have found the same restrictions on the location of privatized prisons that Deputy Attorney General Pierce Whites found.

What Whites found when his office was asked for an opinion on the subject was KRS 197.505, which governs privatization of prisons.

One provision of that statute says, "Any adult correctional facility contracted for pursuant to this section shall be constructed only in a county with an established Kentucky State Police post or in a county in which at least two (2) state police officers reside as a result of a duty assignment or in a county with a full-time police department."

Elliott County has none of the above. Therefore, state law prohibits privatization of the new prison located there.

Whites also said KRS 197.505 allows for privatization of prisons only in cases where the contract builds its own facility. That part of his opinion may be open to a bit of debate, since it hinges on what lawmakers intended the word "establish" to mean.

But the provision restricting the location of private prisons is abundantly clear. So, we assume Fletcher and his staff were ignorant of these restrictions because they didn't bother to check the law.

We must assume that because the alternative is that they knew about the law and intentionally were going to violate it.

Surely that can't be the case because Gov. Ernie "Waste, Fraud and Abuse" Fletcher would never want to get a reputation as a willful lawbreaker.