Breastfeeding House Bill

March 23, 2006

Transcript:

Michael Grant:
Tonight on Horizon, the state's top education official is suing over the way a federal judge has distributed fines paid by the state over the English Language Learner issue. We'll hear from the education chief about that suit. A new report shows that it's cheaper for the state to run prisons than for private companies to run them. We'll hear from both sides on the issue. And it successfully passed in the state house and it will soon be put to a vote in the senate. Arizona may become the 16th state in the country to exempt breastfeeding from indecent exposure laws. More on all that, next, on Horizon.

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Michael Grant:
Good evening. Welcome to Horizon. I'm Michael Grant. Democratic state senator Harry Mitchell of Tempe quit the legislature today to run for the congress seat currently held by republican J.D. Hayworth. Before serving in the legislature, Mitchell was mayor of Tempe and on the city council there. Mitchell will seek the district five democratic congressional nomination. A federal judge has ruled that the state immediately give $21 million in fines to schools who have students learning English. Tom Horne, the state superintendent of public instruction, has sued over that decision. Horne, a republican, would like the money to go to a republican-backed bill passed to resolve the English Learner funding issue. Here now to talk about his lawsuit is Tom Horne. Tom, what's involved in the appeal? It's to the 9th circuit, correct?

Tom Horne:
We've appealed to the 9th circuit all aspects of what the judge has done. Mike, you know I've been reemphasizing emphasis of history in our schools. And we teach that in the revolution we fought for independence. I think we're still smart enough to rule ourselves through our elected representatives and we don't need federal judges ruling over us and taking over our government and dictating the details of how we do our education system.

Michael Grant:
Check me on this. One of the things I think came out of the revolution, however, was a federal-state system where you have federal law, which is declared to be the supreme law in the constitution.

Tom Horne:
Right.

Michael Grant:
And then you have state components. Here you have a federal judge saying, hold it, state of Arizona, rightly or wrongly you've been violating federal law for 5 or 6-years and you need to remedy that. What do you say to that?

Tom Horne:
Well, with respect to federal-state relations? The 10th amendment of the constitution says those powers not expressly delegated to the federal government are reserved to the states. And there is nothing in the constitution about the federal government taking over the state's education system. So that's one of the things that I think is reserved to the states and is something the people rule themselves, how much they want to tax themselves, how many they want to spend through their elected officials, not a lifetime federal judge deciding he's smarter than everybody else and he's going to dictate to people the way the British used to do.

Michael Grant:
All right. We can kick around constitutional theories sometime when we have more time. Let me read you Governor Napolitano's response to your appeal. I think it is said when the superintendent of public instruction is appealing a ruling that would actually put more money into classrooms, I think the superintendent of public instruction ought to be helping to get more funding in to teach English, not opposing it at every turn. What's your response?

Tom Horne:
Mike, you've known me for a lot of years and now know there's nobody in Arizona who's fought harder over the years for adequate funding of public education than I have. Going back to 1978, my yells on the school board and years on the legislature and specifically a passionately committed to teaching kids English. No one has been more passionate about that than I have and doing whatever we need to do to teach them English quickly. But if you do accept the jurisdiction of the court the court has said we must do it scientifically. And that means the bill adopted by the legislature where we determine the needs of the schools scientifically, we allocate money according to those needs not haphazardly spreading the money out as the plaintiff has requested, at the point where the governor instead of say, we have disagreement got a little personal there, I just want to prove what a good person I am by saying that I forgive the governor and the next time I see her I'll be nice as usual.

Michael Grant:
Why not just inject, though, I don't know that there's a-- there's a lot of debate on how much and when and how and those kinds of things. But I don't know there's a whole lot of debate on the issue of-- well, the system does need some more money. So why not inject 20 million or so into the system?

Tom Horne:
Well, the court itself has been saying you don't do it arbitrarily. You must do it scientifically. You must have a scientific basis for what you do, do it systematically, scientifically. Have a task force with the legislatures to set up models how to teach English properly, have the schools show how they're doing that, how much it'll cost, how much they already have available, how much money they need, aggregate those amounts. Have the legislature appropriate it. That's a scientific way of going about it and not just haphazardly spreading the money out.

Michael Grant:
State school superintendent Tom Horne, we appreciate you showing up. Good luck.

Tom Horne:
Thank you, Michael.

Michael Grant:
Some republican lawmakers at the state capitol like the idea of private prisons. But a new study commissioned by the Arizona Department of Corrections shows it's cheaper for the state to run prisons. I'll talk to a proponent of private prisons and the director of the Corrections Department about the issue. But first, Mike Sauceda gives us details on that report.

Mike Sauceda:
The Arizona department of corrections retained maximus, an independent accounting firm, to do a study of the department's method of determining its per capita operating costs and to compare private prison costs to publicly run prison costs. The operating per capita costs report provides average daily operating costs to jail an inmate; it is also used to compare state versus private prison costs. Maximus determined that the cost report was including some expenses that should have been left out and excluding other costs. It cited transportation, inmate intake and expenses for caring for severely sick inmates as costs that should not be included in the operating per capita costs report. Private prisons benefit from transportation of inmates and intake services and private prisons cap inmate healthcare at $10,000 leaving the sickest inmates in the care of the state. Maximus also determined that support services provided by other government agencies to the Department of Corrections were not included in the department's cost report. The accounting firm concluded that the per capita cost report was not an accurate way to compare private and state run prison costs. In order to compare costs between the two, Maximus recommended a distinct report be developed that includes costs borne both by state and private prisons that excludes expenses not incurred by both. Based on its study, Maximus found that prisons with level 2 male inmate beds operated by the state in fiscal year 2003/2004 costs were 8.5 to 13.5% less than private prisons with the same level inmates. Based on that state-run prisons, it would save taxpayers 3.5 to $5 million in the year analyzed.

Michael Grant:
With me now to talk about the need for private prisons is republican representative Russell Pearce, a proponent of private prisons. The take-away point was right there at the end. This study says that basically in fiscal year a couple of years ago the state paid 3.5 roughly 5 million more than it should have because it used private prisons. What do you say?

Russell Pearce:
First of all, that's not true. And it's really deceiving and I'm very disappointed that they would come out with such a report. I read the Maximus report. It doesn't say that. And first of all, they're excluding several costs. In private prisons the capital cost is embedded in the cost of doing the bid. In the state prison that's a DOA cost that's not in their cost factors. A huge cost factor. Also --

Michael Grant:
Coming up shortly, I asked if capital costs were rolled into the stateside of the equation and the corrections director said yes, they were included in the maximum must report.

Russell Pearce:
According to Maximus, that's simply not true. Secondly they also didn't include the benefit package. Arizona has the richest benefit package in the nation in terms of retirement system benefit package. That also is not included. Several other things weren't included, either. Private prisons are required to have a 20% emergency bed factor. In other words, don't fill them. It's a huge cost to them. They must reserve 20 beds for emergencies that they don't allow to fill. Some of the other issues that aren't talked about sometimes is corporations are taxpayers. And so in addition to whatever profit they make, they pay a tax on that. So they're a very good corporate tax branch so they contribute back to the community part of their profit in taxes.

Michael Grant:
Are thee in-state Arizona corporation?

Russell Pearce:
Yes. Most of these are in state. We have some out of state now only because of a bed shortage and contracts. But one of the things that's interesting is the Arizona Department of Corrections uses the costs of about $53 per inmate. And we just have done some emergency beds with some of the privates at 26 to $36 per bed per inmate on bed. Secondly on a national level, the prisons-- private prisons saved the taxpayers 15 to 20%. And if you factored all the things in that we're talking about here, it will be a 15 to 20% savings to the taxpayer. And they ignore the fact that they build more efficient prisons, faster. They have-and, something that's really important, Michael, is it forces the state prison to do it even more efficiently because now you've embedded competition into the process. Arizona law requires them to operate cheaper and do a better job or they can't have the contract.

Michael Grant:
Okay. Good. You took a breath.

Russell Pearce:
I did. I did.

Michael Grant:
Now, I'm going to Ms. Schriro in just a few minutes, whether this was truly an apples-to-apples comparison. And she's going to say yes. And she says, well, there are certain costs they incur that we don't and certain costs that we incur that they don't so it was a give away and take away process.

Russell Pearce:
Michael, it's simply not true. Again, they've ignored the capital, they've ignored the benefit package, they've ignored the emergency beds, they've ignored the fact that these folks pay taxes and give part of their profit back to the state in taxes. And I've read the Maximus report. It doesn't say that. The data they've used is the data that they chose to invent to use because Maximus never said that. Gave some suggestions but it never gave that data. That's their extrapolation of that data. They're anti-privatization. The governor has fought us on it from day one. I understand the philosophy and I'm okay to debate that. But I'm disappointed they would come out with misinformation when all the data nationally shows that there's a 15 to 20% benefit to the taxpayer. That's not talking about DOC costs, let's talk about the costs to the taxpayer. When you factor in all the costs, DOC may be able to give you data that sounds really good but the cost to the taxpayer is huge. It is cheaper and better.

Michael Grant:
What about the risk element here? As I understand it, the state contracts with the private prison operations on a per deem, per prisoner basis.

Russell Pearce:
Right.

Michael Grant:
Does that make the state's risk less?

Russell Pearce:
Well, let me tell you. Because it does. Because in any kind of a contract basis, you become indemnified to some degree. They're the primary person that would be sued; the state would only be secondary. So it does indemnify the state to some degree. So it does minimize the state's liability.

Michael Grant:
Does it also minimize it from a financial standpoint though, I guess is what I'm asking. In other words, corrections department I suppose could return for a supplemental appropriation.

Russell Pearce:
They do every year.

Michael Grant:
There seems to be, here you have a contract, which says, if I deliver a body to you I'll pay you $100 a day, whatever it is.

Russell Pearce:
Fix the price, right. So you're right.

Michael Grant:
Can they seek relief from that?

Russell Pearce:
You know, no they don't. In fact, there has been some where they've maintained because of an unanticipated kind of costs, they're additional costs. But if you have a riot of other things the state doesn't factor those in. So many factors involved to get an apples-to-apples. It's very difficult. But I can tell you, you're right. But the point you brought up is the state even this year is coming back in for millions of dollars in supplemental. The private prisons haven't come in for any supplemental. They stick to the costs they bid that with, and they do it. Now, when it comes to contract renewal we may negotiate a new price.

Michael Grant:
Okay. Representative Russell Pearce, thank you very much for the information.

Russell Pearce:
Thanks for having me.

Michael Grant:
As I mentioned, I talked to corrections director Dora Schriro about the Maximus study on private versus public prison costs. Here is that interview.

Michael Grant:
Ms. Schriro, we have a Maximus report. Tell me why.

Dora Schriro:
By statute, the department is permitted to contract for private prison beds, but it must only- it may only do so if it can establish a cost savings. And so we retain the services of Maximus, a national firm, to develop the methodologies so that we could carry out the statute.

Michael Grant:
And what is, as I understand it, a driving force here is there is some contemplation for two more private prison facilities for fiscal year '07, that would be the next fiscal year?

Dora Schriro:
Well that certainly enters into the mix. We would be required to make the historical comparison after fact, every 5 years about public versus private costs. But now that there is contemplation in the legislature to expand privatization, the import of the Maximus study certainly takes on extra standing.

Michael Grant:
As I understand it, what Maximus tried to do here was to create an apples-to-apples comparison. Take costs that perhaps may be associated with a prisoner but that the private prison does not bear, add those costs up and then attempt to compare the two.

Dora Schriro:
It attempted to capture all costs both direct and indirect, which the department incurs, either to house inmates themselves or to identify the costs that it pays to private providers to do the same for the state. And in the course of that analysis there was some adding of cost to the department ledger and also the taking away of some costs currently attributed to the department.

Michael Grant:
Give me an example of an adding to cost of private prison and then I'll ask you-- well, and then give me an example of a taking away.

Dora Schriro:
Well, for example we incur all of the high-cost inmates. Private prisons pretty much cherry pick. They don't have high-risk or high-need inmates. So we bear all that extra cost. Maximus has directed us to identify that cost and then to subtract it from the department so as to make more level the playing field, to achieve that apples-to-apples comparison. It also directs the department to identify those costs that are not appropriated to the department but are spent on behalf of housing prisoners. For example, including the cost of asset depreciation over time. So all that is encompassed in this state versus private comparison. It is indeed at the end of the day a Macintosh-to-Macintosh/apples-to-apples comparison.

Michael Grant:
Okay. State of Washington, eh? Placing that to one side, bottom line here, there was an estimate of 3.5 to 5 million or so.

Dora Schriro:
For fiscal years '03 and '04 the department had an opportunity and lost the opportunity to save between 3.5 and $5.3 million. That is the difference in costs had the state delivered those beds in comparison to the private prisons actually having provided that housing. That's a difference of between 8.5 and 13.5% that the state overspent by privatizing.

Michael Grant:
All right. And again, these are rolled in costs. For example, if the state had not gone with a private prison it would have had capital costs, it would have had to actually build the facility which obviously there would be costs associated.

Dora Schriro:
Maximus did two kinds of cost comparisons for us, both to satisfy statutory requirements. It developed a state versus private comparison so as to make those analogies after the fact, as is the finding we're talking about today. Secondarily, where statutes contemplate future expansion of private prison beds the state must also pursue a prospective comparison of those costs. And in both instances, the Maximus report identifies for the department the indirect and direct costs that need to be included and the method by which they are included in those comparisons.

Michael Grant:
Does this also factor-- I guess for lack of a better term I would call a risk factor in that I understand the private prison will contract on a per deem basis with the state and say, okay. You send us a prisoner, we will house that prisoner for a fixed amount. Where as with the Department of Corrections, if something got supplemental appropriations are a possibility, the Department of Corrections if certain costs came up or whatever might go back to the legislature and say, well, we need a little bit more money for this fiscal year. Does it factor that kind of a risk factor?

Dora Schriro:
It factors all costs that are actually spent. And indeed, privates routinely go back to the department and to the legislature mid-contract cycle and say, we need more money. And so whatever the spending is, that is the basis for the comparison.

Michael Grant:
Okay. We're almost out of time. But a few weeks back we talked about a salary plan that you were trying to get through to increase base salary. What's the status of that?

Dora Schriro:
Well, pretty much the same, which is not very good, but it could be worse. We have more inmates than ever before. We have exceeded the 34,000 mark. And unfortunately fewer officers than ever to supervise them. We're hovering at a 22% vacancy rate today. We are seeking a $39 million comprehensive pay package, which will provide competitive wages and ensure that all people in that series receive equitable compensation. We believe that this is a good business plan that we have put forward. Right now we're going to spend over $60 million just to keep the current system together between overtime expenditures, stipends and the cost of recruiting and training replacement officers. So this new pay plan would actually represent a savings of $21 million that we otherwise would be spending.

Michael Grant:
Corrections director Dora Schriro, thank you very much for joining us.

Dora Schriro:
You're very welcome.

Michael Grant:
The House has passed House bill 2376 and it is now in the Senate. The bill would change the law so that breastfeeding would not be indecent exposure. It would allow mothers to feed their young in public and private places. Here to talk about the bill, and the issue at large, is Amy Milliron, the mom behind the bill, and Senator John Huppenthal. Amy, it's been a long and winding road for you from Chandler to 1700 West Washington.

Amy Milliron:
Well yes. Although I've been told it's actually quite short. Bills usually don't make it through this fast. So we're pretty excited that we're at this point.

Michael Grant:
Actually that is true. It is referred to as the gestation period. And I hadn't thought about that. Briefly-- it actually is referred to as the gestation period. Briefly refresh our recollection of what first brought you to the public attention last fall.

Amy Milliron:
Well, I was nursing my then 2-month-old baby at a Chandler city pool and a lifeguard approached me and told me I'd need to nurse him in the rest room. And I didn't find that to be appropriate. After going up through the chain of command within the city I ultimately asked the Chandler city council for clarification and it was brought to their attention by me and lots of other mothers that showed up at the council meetings that we needed to have something to protect us. And we had some real champions on that council and they helped us over four months develop a law that would protect us in that city. And here we are.

Michael Grant:
Have you been active in political and civic affairs prior to this?

Amy Milliron:
No, not at all. I am a former teacher; however, I was never involved in politics and my joke has always been that I need to pull out my old fifth grade social studies books to teach myself how a bill goes through the process because I really didn't remember. So it's been a learning experience.

Michael Grant:
Senator Huppenthal, how did you get involved in this effort.

Sen. John M. Huppenthal:
Amy is a constituent of mine and it's such a fantastic story about how a mom took on the city hall and then took on the state legislature. My primary role has been to encourage and to help guide her and to make sure the bill stayed fast tracked without any amendments.

Michael Grant:
Now, what does the bill do?

Sen. John M. Huppenthal:
The bill provides that exemption from indecent exposure law so that a mother can't be forced out of a public place. And I was a little outraged to think that a mother could be forced into a toilet stall to breastfeed their child. I think this will provide an absolute defense so that they aren't obliged to do that.

Michael Grant:
Amy, obviously one of the things that grows out of this bill is that you don't have to run around to the Flagstaff city council, the Scottsdale city council, the Phoenix city council, Tucson city council. There will be a uniform policy on this statewide.

Amy Milliron:
There will be. And actually, Chandler, Flagstaff, Tucson and as of just the other night or actually Chandler, Tempe and Tucson and just the other night Flagstaff did enact ordinances because, although we are very hopeful and very encouraged that this law is going to pass at the state level, just in case it doesn't we aren't going to stop going city by city, either.

Michael Grant:
Senator Huppenthal, what kind of feedback have you been getting adverse to the consent?

Sen. John M. Huppenthal:
Well, we get some. People do have some concerns about any time you change this kind of law, there are social norms out there. We're confident that it will be used modestly and it will protect moms. Now, the prosecution community was silently opposed to it but that was interesting because the moms caused them to knuckle under pretty fast. That was sort of interesting to watch them be intimidated out of that arena a little bit.

Michael Grant:
I'm sorry. Explain that to me. Prosecutors were opposed? Is that what I just heard?

Sen. John M. Huppenthal:
Well, never officially. It was always-- they were concerned about potentially this covering other kinds of behaviors. But we just couldn't see it that way. And they also made the point that there's never been a prosecution. But we made the point that there doesn't have to be a prosecution for a mom to be intimidated out of a public place.

Michael Grant:
Amy, we talked about this when you were on the program a few months back. Can you appreciate that some people are in fact uncomfortable with this in public? Perhaps for their children at various stages of development or whatever. Does any of that resonate with you?

Amy Milliron:
Oh, I am very appreciative of how people feel. But I feel that moms who choose to nurse understand the feelings of other people when they make that decision, too. But this isn't going to change how we go about our daily lives, just going to protect us. This isn't going to change. Mothers aren't going to expose themselves just for the sake of exposing themselves. They're just going to nurse like they always have. So I do appreciate it but I think education is the key and it's a matter of explaining why we choose to nurse in the first place.

Michael Grant:
All right. Amy Milliron, thank you very much for being here.

Amy Milliron:
Thank you.

Michael Grant:
Senator John Huppenthal, nice to see you again.

Sen. John M. Huppenthal:
Michael, it was great.

Michael Grant:
And always a pleasure to see you as well, thank you very much for joining us on this Thursday edition of Horizon. I hope you can join us for the Friday Roundtable. I'm Michael Grant. Have a great one. Good night.

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