The Florida Division of Administrative Hearings.

• Author: Sherrill, William C., Jr.

Even among members of Florida's trial bar, the Division of Administrative Hearings is known well only to some. Perhaps this is as it should be. Things that work well attract little notice.

Administrative Due Process

With its warm, attractive climate, environmental fragility, regional diversity, and exploding population, Florida has as tough a set of community problems as any state in this union. Florida government at all levels is deeply involved in actions which affect our future. Much of this is played out between the Florida Legislature and the executive branch, with an occasional and usually significant interpretation of law from the courts.

A meeting with a bureau chief or an assistant should be the way that most administrative controversies are resolved. But it is obvious that agencies cannot resolve many disputes so simply. Especially for more controversial disputes, a greater level of formality is needed. For these, notice and an opportunity to be heard in an impartial forum are deemed by most of us to be inalienable rights.

Due process is never the most efficient process for the implementation of agency purpose. An unassailable autocratic decision cannot be beaten for efficiency. The tension, therefore, between agency purpose and due process is always present. Yet, despite the cost, checks and balances are fundamental in our sense of right government, lest those who govern become too strong and trample the rights of the people.

Process, and due process in particular, ineluctably follows form, and due process has traditionally been provided by our judicial branch. Courts have a long history of independence from legislative and executive branches. Impartiality flows from independence.

But due process need not be confined to courts. The executive branch can afford fair procedures to the people of Florida through administrative law.

The beginnings of administrative due process were modest. An agency simply assigned an employee to make a factual record for the agency head. Other than the lack of another system, it was thought that agencies have internal policies known only to agency officials, and that an independent adjudicator would not be sufficiently sensitive to such policies. Yet, except for dedication of an employee to create a written record of what was said, this is little different than an informal meeting with a member of the agency's staff. While it might be an inexpensive way to achieve fair accommodation between agency purpose and a citizen's interests, this is not a model an average citizen has reason to trust; nor is it consistent with Florida's tradition of government in the sunshine in which agency policies are thought to be improved by exposure to public critique.

Division of Administrative Hearings, Florida's Central Panel

Long ago, Florida made the Division of Administrative Hearings its central adjudicatory body for administrative law. The Division of Administrative Hearings was created in 1974 based upon the California system of hearing examiners.(1) Florida was a leader then. Twenty-three states now have some form of a central panel of administrative law judges.(2)

The division is not a constitutional agency. Though it is "located" in the Department of Management Services and is not explicitly a separate department,(3) it is responsible directly to the Governor and Cabinet. The director is appointed by a majority vote of the Administration Commission, that is, the Governor and the Cabinet,(4) and the appointment must be confirmed by the Senate.(5) It is implicit that removal of the director must follow the same process since that process is required to appoint a successor.

The division is a separate budget entity.(6) It is funded, however, entirely from trust funds rather than from general revenue.(7) Thus, the funding is directly correlated to the work the division does for executive agencies.

The division's budget is submitted directly to the legislature, just as the budget for the judicial branch is submitted to the legislature by the chief justice. Budget actions by the Executive Office of the Governor which affect the division may be appealed by the director to the Administration Commission, which may decide the question by a majority vote.(8) Further, while the Department of Management Services must provide "administrative support and services to the division to the extent requested by the director," "[t]he division shall not be subject to control, supervision, or direction by the Department of Management Services in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters."(9)

Administrative law judges are "employed" by the division.(10) Tenure with respect to the director and, indirectly, the Administration Commission, is a consequence of status as a career service employee. Like Article V judges, and unlike a normal career service employee, the salary remains fixed without pay steps and does not change until adjusted by the legislature.

The minimum legal experience required is five years as a member of The Florida Bar, the same as for Article V judges.(11) Administrative law judges are exceptionally seasoned jurists, however, currently averaging 26 years as members of the Bar.

Administrative...