A. Agreements with a private independent contractor for the operation of a jail or for the incarceration of prisoners shall be made for a period of up to five years, but those agreements may allow for additional one-year, two-year or three-year extensions not to exceed a total of six extensions. Agreements binding on future governing bodies for construction, purchase or lease of a jail facility for not more than fifteen years are authorized.
B. All agreements with private independent contractors for the operation or provision and operation of jails shall include a performance bond and be approved in writing, prior to their becoming effective, by the local government division of the department of finance and administration and the office of the attorney general. Disapproval may be based on any reasonable grounds, including adequacy or appropriateness of the proposed plan or standards; suitability or qualifications of the proposed contractor or the contractor's employees; absence of required or desirable contract provisions; unavailability of funds; or any other reasonable grounds. No agreement shall be valid or enforceable without prior approval.
C. All agreements with private independent contractors for the operation or provision and operation of jails shall provide for the independent contractor to provide and pay for training for jailers to meet minimum training standards, which shall be specified in the contract.
D. All agreements with private independent contractors for the operation or provision and operation of jails shall set forth comprehensive standards for conditions of incarceration, either by setting them forth in full as part of the contract or by reference to known and respected compilations of those standards.
E. All agreements with private independent contractors for the operation or provision and operation of jails shall be approved in writing, prior to their becoming effective, by the risk management division of the general services department. Approval shall be conditioned upon contractual arrangements satisfactory to the risk management division for:
(1) the contractor's assumption of all liability caused by or arising out of all aspects of the provision and operation of the jail; and
(2) liability insurance covering the contractor and its officers, jailers, employees and agents in an amount sufficient to cover all liability caused by or arising out of all aspects of the provision and operation of the jail. A copy of the proposed insurance policy for the first year shall be submitted for approval with the contract.
F. All agreements with private independent contractors for the operation or provision and operation of jails shall provide for termination for cause by the local public body parties upon ninety days' notice to the independent contractor. A termination shall be allowed for at least the following reasons:
(1) failure of the independent contractor to meet minimum standards and conditions of incarceration, which standards and conditions shall be specified in the contract; or
(2) failure to meet other contract provisions when the failure seriously affects the operation of the jail.
The reasons for termination set forth in this subsection are not exclusive and may be supplemented by the parties.
G. Venue for the enforcement of any agreement entered into pursuant to the provisions of this section shall be in the district court of the county in which the facility is located or in Santa Fe county.
History: 1978 Comp., § 33-3-27, enacted by Laws 1984, ch. 22, § 18; 2001, ch. 153, § 1; 2007, ch. 222, § 1; 2015, ch. 137, § 1.
ANNOTATIONSCross references. — For the risk management division, see 15-7-2 NMSA 1978.
The 2015 amendment, effective June 19, 2015, provided that agreements with private independent contractors for the operation of a jail may be extended for up to three but may not exceed a total of six extensions; and in Subsection A, after "additional one-year", deleted "or" after "two-year", added "or three-year", and after "exceed a total of", deleted "five" and added "six".
The 2007 amendment, effective June 15, 2007, increased the term of additional extensions from one year to two years.
The 2001 amendment, effective July 1, 2001, extended the number of years that an agreement may be made with an independent contractor from no more than three years to five years with the option adding one-year extensions, not to exceed five extensions.
County liability. — Where a county has contracted with a private, independent contractor to operate a county jail, but pursuant to Section 33-3-4 NMSA 1978, the county retains oversight responsibilities over the operation of its detention center and has, therefore, not delegated complete authority to the contractor for the operation of the jail, the county retains liability under 42 U.S.C.S. § 1983 for any unconstitutional policies or customs the contractor may have adopted or created. Herrera v. County of Santa Fe, 213 F. Supp. 2d 1288 (D.N.M. 2002).
Exemptions from Procurement Code. — A construction agreement that is entered into as part of an overall agreement for operation and provision of a jail pursuant to this section and Section 33-3-26 NMSA 1978 is exempt from the Procurement Code's requirements. The "financing and design" of a jail facility are also exempt from the Procurement Code, as long as the local public body does not have a direct contractual relationship with the parties responsible for designing and financing the facility. 1987 Op. Att'y Gen. No. 87-47.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 60 Am. Jur. 2d Penal and Correctional Institutions § 188.
72 C.J.S. Prisons and Rights of Prisoners §§ 124 to 129.