The direction and supervision by elected officials of Florida executive branch agencies and administrative rulemaking: 1968-2012.

• Author: Miller, Eric H.

OUTLINE INTRODUCTION I. EXECUTIVE BRANCH AUTHORITY OVER APPOINTED SUBORDINATES IN FLORIDA: THE HISTORICAL CONTEXT II. THE "SUPREME EXECUTIVE POWER" III. REORGANIZING THE EXECUTIVE BRANCH A. Historical Precedent for Statutory Offices and Delegation of Powers B. Guidance from the 1968 Constitution C. The 1969 Government Organization Act D. Executive Authority and Administrative Rulemaking IV. THE DIRECTION AND SUPERVISION BY FLORIDA GOVERNORS OF POLICY IMPLEMENTATION AND RULEMAKING BY APPOINTED AGENCY HEADS V. ZEITGEIST OF THE FLORIDA LEGISLATURE 2010-2012 VI. ATTORNEY GENERAL OPINION 81-49: THEORETICAL OUTLIER CONCLUSION INTRODUCTION

In Whiley v. Scott, a majority of the Florida Supreme Court opined the governor lacked the authority to direct the suspension of administrative rulemaking by agencies whose appointed senior administrators served at his pleasure. (1) The majority concluded: (1) the legislature could place executive branch agencies under the complete control of at-will gubernatorial appointees, and (2) neither the supreme executive power constitutionally vested in the governor, nor the authority to remove at-will appointees, authorized him to direct these agency heads without further statutory authority. (2) Finding "the power to remove is not analogous to the power to control," (3) the Court invited the Florida Legislature to clarify the law. Promptly accepting the invitation, the legislature passed a bill confirming: (1) all appointed agency heads remained subordinate to the direction and supervision of the governor (or other appointing authority, such as the cabinet), and (2) as a procedural statute, the Florida Administrative Procedure Act (4) operated within the structure of constitutional executive power. (5)

This Article argues the legislature relied on the full text of the constitutional executive article when reorganizing the executive branch after adoption of the 1968 Florida Constitution, and examines the subsequent control over agency rulemaking exercised by numerous governors. The implementation of the 1968 Constitution left undisturbed the governor's basic authority over at-will appointees, contrary to the conclusions of a subsequent attorney general opinion, AGO 81-49. That opinion was not cited for thirty years and would have remained a theoretical outlier but for the reliance and approval of the Whiley majority. (6)

1. EXECUTIVE BRANCH AUTHORITY OVER APPOINTED SUBORDINATES IN FLORIDA: THE HISTORICAL CONTEXT

   Those drafting the 1838 Florida Constitution understood that the scope of the executive power included the authority necessary to direct and supervise those subordinate officials appointed by the chief executive, an understanding informed by the national experience with the U.S. Constitution (7) and shared by the framers of other state constitutions. (8) The executive power vested by the Florida Constitution was only restrained in its exercise by express limitations, including allocating some functions to one or more officers outside the governor's control. Where the Constitution did not expressly limit the appointment or removal of executive branch subordinates, the appointing constitutional officer retained full authority to direct and supervise their actions in performance of their delegated duties. This principle was informed by the historical development of the constitutional article on the executive, retained throughout the various versions of the Constitution, and reinforced by the language of the new Florida Constitution adopted in 1968.

   From statehood to 2011, Florida's governors fulfilled their duties by understanding an appointee who "served at the pleasure" (9) meant the appointing official had the continuing ability to direct and supervise the actions of that appointee while the subordinate remained attentive to the superior's policy directions. The clear intent of the Florida Constitution was for elected constitutional officers to exercise continuing oversight and responsibility for executive departments. The 1968 Constitution simplified and organized the text for better clarity while retaining traditional methods of restricting the exercise of executive power: separating functions between several constitutionally created offices, (10) placing certain decisions with a collective cabinet, (11) maintaining direct accountability to the people instead of a single official by requiring separate election of specific officers, (12) providing senatorial advice and consent before exercising certain powers, (13) and limiting the scope of executive action by express language or by authorizing the legislature to do so by statute. (14) Yet, where the Constitution was silent, or the legislature did not exercise its permitted authority, the power and responsibility vested in the governor provided sufficient authority necessary to ensure proper execution of the laws. (15)

   The reorganization of the executive branch, following ratification of the 1968 Constitution, and the refinements to the mandatory processes followed by administrative agencies when executing statutorily imposed duties, showed not so much a legislative primacy to create and direct the functions of administrative agencies, but rather demonstrated the balance maintained when legislatively derived policy was placed for implementation within the constitutional executive. While reorganizing the executive branch in 1969 was a new undertaking for the legislature, Florida had much experience with the operation of government under the supervision and responsibility of elected constitutional officers.

2. THE SUPREME EXECUTIVE POWER

   Each executive article in every version of the Florida Constitution opens with substantially the same phrase. (16) Every version of the constitution also made the governor responsible for ensuring the faithful execution of the laws, (17) which is the primary purpose for the power vested in the executive branch. The Florida Supreme Court has ruled the "exercise of this power and the performance of this duty are clearly essential to the orderly conduct of government and the execution of the laws of this State." (18) Both of these constitutional clauses are self-executing; no implementing legislation is necessary because each clause sufficiently establishes the authority and responsibility as intended by the people. (19)

   The U.S. Constitution vested the executive power in the President without need for further characterization because the federal executive essentially was unitary. (20) When apportioning the judicial power in Article III, the Constitution used "supreme" to denote the hierarchical relationship between the Supreme Court and the lower federal courts to be created by Congress. (21) In contrast, many state constitutions adopted between 1787 and 1838 vested the "supreme executive power" in the governor because these instruments also created other executive branch officers with authority and accountability separate from the governor. (22) "Supreme," in the context of vested constitutional authority, thus described the hierarchical relationship among the executive officers with the governor having the final responsibility and accountability for all such authority not apportioned elsewhere.

   Continual use of the same phrases, in the same contexts, for the same purposes, in successive versions of the Constitution is interpreted as deliberately retaining the same meaning and construction of the language as attributed under the previous version of the Constitution. (23) By restating the historical language vesting supreme executive power in the governor, the people in 1968 adopted the interpretation and application of this phrase as continuing the hierarchical structure of executive authority divided and limited in the Florida Constitution. By reaffirming the historical duty of the governor as solely responsible for ensuring the faithful execution of the laws, the people continued the interpretation attributing sufficient authority within the vested executive power to enable complete fulfillment of this responsibility. (24)

   The phrase "supreme executive power" has not been expressly defined by court decisions in Florida, but the construction given to similar phrases by other states is instructive. The New Hampshire Constitution vests the executive power of the state in a "supreme executive magistrate, who shall be styled the Governor of the State of New Hampshire." (25) The New Hampshire Supreme Court found the phrase is not mere verbiage but provided "such power as will secure an efficient execution of the laws." (26) The Alabama Constitution vests supreme executive power in a governor using language substantially similar to Florida's, (27) and the Alabama Supreme Court interpreted the phrase as providing such power as necessary for the governor to perform all duties, including the faithful execution of the laws, as the constitution requires of the state's highest executive authority. (28) Similar to Florida's application of the phrase, these interpretations are consistent with the historical understanding of the express responsibility invariably accompanying the vesting of executive power.

   By adopting the 1968 Constitution, the people of Florida vested in the governor the supreme executive power as that authority had been understood, interpreted, and applied in the state since 1845. The governor was made fully responsible to ensure the faithful execution of the laws, equally construed from statehood to incorporate so much of the executive power as necessary to fulfill that duty. In this existing constitutional context, the legislature subsequently reorganized the executive branch.

3. REORGANIZING THE EXECUTIVE BRANCH

   1. Historical Precedent for Statutory Offices and Delegation of Powers

      Long before its 1969 reorganization of the executive branch, the Florida Legislature wrestled with delegating authority to offices created by statute. An 1897 act created a board of legal examiners...