ARE ADMINISTRATIVE LAW JUDGES OFFICERS OF THE STATE? CONSTITUTIONAL CONSIDERATIONS IN THE SELECTION AND TENURE OF ADMINISTRATIVE LAW JUDGES.

• Author: Miller, Eric H.

One of the hallmarks of the Florida Administrative Procedure Act is the creation of a pool of hearing officers independent from any agency or the direct control of any political figure. Since its substantial revision in 1974, the statute has always provided for the selection and hiring of administrative law judges ("ALJ") by the Director of the Division of Administrative Hearings.

ALJs hear almost every type of case, from licensure denials to environmental permitting challenges. In most cases, the ALJ weighs the evidence and legal arguments before recommending findings of fact, conclusions of law, and proposed final disposition to the agency referring the case. However, ALJs also have statutory authority to enter final, binding orders in challenges to agency rulemaking. Entering a final, binding order, subject only to judicial appeal, is an exercise of the state's sovereign power and authority. Under longstanding Florida constitutional decisions, only an "officer, " not a public employee, may be delegated part of the sovereign power.

This Article first examines Florida law on the nature of offices, and officers, including the constitutional requirements for appointment or election and tenure. The analysis then turns to whether ALJs are officers or employees and, if they are officers, whether the present system of their employment should be reconsidered. This issue is timely, for in the 2017-2018 legislative sessions the Florida House of Representatives passed bills requiring ALJs to be appointed to four-year terms by the Governor and Cabinet from candidates nominated by an independent commission.

INTRODUCTION

In 1974, the Florida Legislature comprehensively revised the Administrative Procedure Act ("APA"), (2) carving out a national leadership role in state administrative law that continues to this day. A lynchpin of these changes was the creation of a central pool of administrative law judges ("ALJs," originally called hearing officers) (3) outside the influence of any one agency. ALJs are housed in the autonomous Division of Administrative Hearings ("DOAH"). (4) The director of DOAH, also serving as the chief administrative law judge, is appointed by the Administration Commission (5) upon the approval of the Florida Senate and acts as DOAH's agency head. (6) Categorized as career service employees, (7) ALJs are hired by DOAH, acting through the director, for no fixed terms. (8)

ALJs are authorized to render final orders in proceedings challenging whether an agency rule is an invalid exercise of delegated legislative authority. (9) Under this authority, each ALJ, not the chief judge on behalf of DOAH, renders a final order. Because a final order binds the parties unless reversed on appeal, this dispositive action is an exercise of the State's sovereign power. Under long-standing Florida precedent, when the Legislature creates a permanent position for a public purpose, and allocates to it a portion of the sovereign power to be exercised by the incumbent for a public purpose, that position is an "office" and those assigned to the position are "officers." Unless otherwise provided in the Florida Constitution, those selected to be officers typically are appointed by the governor, (10) either solely or with the confirmation of the Senate or approval of three members of the cabinet, (11) for terms of no more than four years. (12) State officers are distinguished from employees because they fill a continuing position having the responsibility to exercise a sovereign function for the public good. These principles raise questions about whether ALJs are officers of the state and, concomitantly, whether their manner of selection and employment are consistent with the Constitution.

During the past two legislative sessions, the Florida House of Representatives has considered and passed bills addressing these questions. Each bill would have revised the manner of selecting ALJs by requiring a special nominating panel to submit candidates to the governor and cabinet for final selection and appointment. The bills also would have limited the appointments of ALJs and the chief judge to terms of four years, requiring reappointment for continued service. (13) This Article examines the historical precedents for Florida's long-standing policy of what makes an official an "officer" and the implications of that policy on the selection and tenure of administrative law judges.

1. WHO ARE OFFICERS OF THE STATE?

   Florida historically has drawn a distinction between those employed by the government merely to perform certain tasks and those selected to fill offices responsible for exercising specific governmental powers. As noted in an article examining the constitutional prohibition against dual office holding:

   Most of the questions involving article II, section 5(a) of the current Florida Constitution have concerned what constitutes an "office." The constitution does not define the term, and the legislature has not sought to define the term to clarify the parameters of the constitutional provision. In the absence of such clarification, the courts and the Attorney General's Office have referred to several early Florida Supreme Court decisions generally considering what constitutes an "office" as opposed to an "employment." (14). 1. The Early Cases

   In 1870, the governor sought an advisory opinion from the Florida Supreme Court on issues pertaining to the payment of county officer expenses. The second question requested the Court clarify those who were county officers under the Constitution. The Court advised the "character, as State or county or municipal officers, is not determined by the manner in which such offices are filled." (15) The opinion concluded that a county officer was someone who served in an office typically created with specific duties for the operation of county government but which was also limited to the territory of the county. (16)

   In a subsequent opinion ruling the statutory grant of authority to act as a harbor pilot in Florida was in the nature of a franchise and not a state office, the Court found:

   Were it in our view... that the functions and powers performed by pilots were such as necessarily constituted them officers, then, and even though they were only creatures of legislative action, still they must have been either elected by the people or appointed by the Governor, (Constitution, Sec. 27, Art. IV.,) and the appointment by the board of Commissioners of Pilotage...would be without any foundation in law, because in direct conflict with this limitation of the Constitution. (17) 2. The Seminal Case: State ex rel. Clyatt v. Hocker

   State ex rel. Clyatt v. Hocker (18) is the primary Florida authority defining the terms "office" and "officer" under the Florida Constitution. The case arose because Clyatt wanted to practice law in Florida. Prior to June 5, 1897, this was done under rules of the Supreme Court by petitioning the chief judge of the judicial circuit in which the hopeful lawyer resided. (19) On June 5 of that year, an act went into effect that created a State Board of Legal Examiners, consisting of five members appointed by the Supreme Court to serve five-year terms. (20) The terms of the initial board members were staggered so that a successor member would be appointed each year. (21) The board would be responsible for examining the qualifications of all applicants for admission to the bar, to grant or deny each application, to issue licenses to practice law, and to collect a fee of no more than five dollars from each applicant to defray the board's expenses. (22)

   Clyatt filed his petition on July 9, 1897, but was denied by Chief Judge Hocker of the Fifth Circuit because the new law conferred exclusive jurisdiction to approve applicants to the bar on the legislatively created state board. Clyatt then petitioned the Florida Supreme Court for a writ of mandamus against Judge Hocker, arguing the new law was unconstitutional on three grounds. (23) First, by providing for the Supreme Court to appoint the board members instead of requiring their election or gubernatorial appointment, the act violated the following provision of the Florida Constitution: "The Legislature shall provide for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this Constitution, and fix by law their duties and compensation." (24) Second, the five-year terms of the board members violated the constitutional prohibition against creating any office with a term of more than four years. (25) Third, admitting lawyers to the practice of law in the state courts inherently is a judicial function and the legislative delegation of that authority to the Board of Legal Examiners violated the separation of powers. (26)

   The Supreme Court found the case presented two central questions. First, what is an "office" under the Florida Constitution. Second, whether the position of a member on the State Board of Legal Examiners was an office requiring a term of no more than four years. (27) The Court reviewed a number of authorities to identify the characteristics of an office and, by extension, those who are officers under the Constitution. This review began by citing the words of Chief Justice John Marshall: (28)

   An office is defined to be a 'public charge or employment,' and [the one] who performs the duties of the office, is an officer. [If employed on the part of the United States, (the person) is an officer of the United States.] Although an office is 'an employment,' it does not follow that every employment is an office. [One] may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the government... to perform, who enters on the duties appertaining to [that] station, without any contract defining them, if those duties...