DOJ: News Release

McGrath: DOC Meth Treatment Project Not Subject to Privatization Review

HELENA – In a formal opinion issued Tuesday, Montana Attorney General Mike McGrath held that a Department of Corrections plan to contract with a private nonprofit corporation to provide drug treatment is not subject to a “privatization plan process.”

The question arose from the passage in 2005 of House Bill 326. HB 326 added community-based residential treatment as a sentencing option for people convicted of a second or subsequent offense of methamphetamine possession. The bill also directed the Department of Corrections to establish such residential meth treatment programs through contracts with private, nonprofit corporations.

Montana law sets forth an administrative process for proposals to “privatize” government functions, and department director Bill Slaughter asked whether that process was applicable to the DOC project.

In finding that it was not, the attorney general noted that HB 326 dictated that the Department of Corrections “shall” contract with private nonprofit Montana corporations to establish and maintain the residential treatment programs. The use of “shall” implies a mandatory duty – rather than a discretionary one – McGrath held.

“In the absence of some statutory language qualifying … the terminology the legislature used, I am unable to find a legislative intent to subject this program to privatization review,” the AG said in the opinion.

Opinions of the attorney general carry the weight of law unless a court overturns them, or the legislature modifies the laws involved.

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