Florida’s Cabinet System: Y2K and Beyond
The idea for this article began before voters of the State of Florida chose to amend Florida’s Cabinet in response to the recommendations made by the 1998 Constitution Revision Commission. Consequently, the structure of the Cabinet will significantly change in the year 2003 when it is reduced from a Governor and six Cabinet officers to a Governor and three Cabinet officers. In the interim, the legislature will wrestle with fleshing out the constitutional provisions that will go into effect in order to address the myriad statutes that delegate duties to the Cabinet. What remains certain is that most of what the Cabinet does at this time no doubt will continue and most likely will be addressed in the same fashion and manner.
The Cabinet
Florida’s executive branch of government is unique among the 50 states because of its Cabinet. Although the state constitution vests “supreme executive power” in the Governor, it also provides that “[t]here shall be a Cabinet composed of a secretary of state, an attorney general, a comptroller, a treasurer, a commissioner of agriculture and a commissioner of education.”1 This unique form of government is a carryover from the reconstruction era, when concerns about the concentration of too much power in the Governor prompted what some historians would refer to as an enlightened document, “the best that Florida would have in the century,” the Constitution of 1868.2
The officers who form the Cabinet not only have specific powers and duties under the constitution, but they also “shall exercise such powers and perform such duties as may be prescribed by law.”3 The legislature has made extensive use of this constitutional provision, having assigned literally hundreds of such powers and duties to this body.
Before the late Governor Lawton Chiles directed the elimination of a vast number of state government rules,4 almost all of the agencies, boards, or commissions constituting the Cabinet had some specific rule reference to meetings of the Governor and Cabinet. While there are no uniform rules of procedure per se, a good example of the Cabinet process can be found in Ch. 19-3 of the Florida Administrative Code, entitled Rules and Regulations Governing the Organization, Meetings, and Procedures of the State Board of Administration.5 For those practitioners who may have the occasion to come before the Governor and Cabinet, this primer might be helpful.
Cabinet Meetings
The Governor and Cabinet meet as a collegial body every two weeks in the Cabinet meeting room located in the lower level of the state capitol. These meetings are usually held on Tuesdays, unless a Wednesday or Thursday meeting has been scheduled ahead of time due to circumstance or conflict for a Cabinet member.6 One can find notice of all meetings published in the Florida Administrative Law Weekly; however, there is also a process by which items can be placed on the agenda at a later period in time if they are known to merit “good cause.”
Good cause items may be added to agendas at very late moments if approved by the Governor’s office. There is an attempt to notice these “good cause” items by at least directing them to all known parties that may have a concern. Members of the Cabinet are given notice and may respond if they have any concerns with timing or substance. Individual members of the Cabinet and the Governor are almost always considerate of each other’s concerns and will usually submit to a request for deferral of an item at least once.
With a meeting every two weeks, the Cabinet typically meets at least 20 times a year. There are occasional open weeks and each year members vote on a proposed Cabinet schedule for the following year, selecting one month during the summer in which it will not meet. In the last five years, this month typically has shifted between July and August. There appear to be no rules other than a general consensus of the Governor and Cabinet as to what their next year’s schedule will be.
The Florida Cabinet in the past has on rare occasion conducted Cabinet meetings outside of Tallahassee, depending on the issues involved. However, upon taking office, Governor Jeb Bush initiated a program called “Capital for a Day,” which literally takes the Cabinet meetings to the people on a regular basis. As part of this program, approximately once every quarter the Cabinet will meet in different Florida cities. Meetings have been held in Jacksonville, Ft. Lauderdale, Bartow, Sarasota, and Panama City.
Cabinet meetings are chaired by the Governor or, in his absence, by the Secretary of State. Should the Secretary be absent, the Attorney General would chair. This protocol follows the order in which the offices are listed in the Florida Constitution.7 Unless there is specific statutory or rule procedure that must be followed, Robert’s Rules of Order is relied upon as basic rule of parliamentary procedure to conduct a fair, orderly meeting.8
The meetings begin with an invocation performed by an invited guest of faith, followed by the pledge of allegiance. The business then opens with preliminary matters such as the reading of resolutions offered by individual members or by two or more members together. Resolutions typically are awards of praise and recognition to deserving individuals and groups, but they may occasionally also address substantive issues such as the 1996 resolution by the Governor and Cabinet supporting the legislature’s consideration of a bill prohibiting Cruises to Nowhere in Florida.
There may also be status reports or announcements. Items taken up before the agendas have been dubbed by staff and practitioners alike as “pre-cab.” Typically, a day or two before the meeting the Governor’s Cabinet staff will make available a one-page meeting agenda showing the resolutions, pre-cab, and order of agendas.9 The order can vary based on which agenda might contain the most controversial or time-consuming issues. The meeting is a collection of separate and distinct agendas that contain items and issues for each entity composed of and governed by the Governor and Cabinet.
Official Duties
To describe in depth the scope of issues which by law come within the purview of the Governor and Cabinet in their official capacities is not possible in the length of this article. The authors have very briefly touched some of the major points and strongly recommend to the practitioner further research on the rules and laws pertaining to the role of the Governor and Cabinet on their particular issue.
Collectively, the Governor and Cabinet sit as numerous bodies, whether it be as a board or commission, or the head of an agency. These entities and their duties are found in the constitution and in the statutes. In many cases the law assigns a matter to this collegial body simply by reference to the “Governor and Cabinet.”10 In addition to his or her collegial duties, each individual Cabinet officer is an elected official and the department head of his or her individual agency.11
Until the 1997 legislative session, the Governor and Cabinet sitting as the State Board of Education were the collective head of the Department of Education.12 Now there are only four departments whose agency head is the “Governor and Cabinet”: Department of Highway Safety and Motor Vehicles; Department of Veterans’ Affairs; Florida Department of Law Enforcement; and Department of Revenue.13 ( The Governor has the sole authority to appoint the agency heads of the remaining state agencies.) These departments bring policy issues that include everything from contracts and quarterly reports to the adoption and approval of department rules to the Governor and Cabinet.
Boards and Commissions
With two exceptions, agenda items are presented through different boards and commissions composed of the Governor and the six Cabinet members. These boards and commissions are created by law and consist of the Administration Commission,14 Board of Trustees of the Internal Improvement Trust Fund,15 Florida Land and Water Adjudicatory Commission,16 State Board of Education,17 State Board for Career Education,18 Division of Bond Finance,19 Electrical Power Plant and Transmission Line Siting Board,20 and State Board of Executive Clemency.21 Sitting as these boards and commissions, the Governor and Cabinet make executive policy.
There are two boards that are made up only of the Governor and two Cabinet members. The Financial Management Information Board and the State Board of Administration are both composed of the Governor, the Insurance Commissioner, and the Comptroller.22 These two entities have direct responsibility to oversee and govern the Florida Financial Information System, and to make the financial investment and management decisions of this state.
• Division of Bond Finance
Although the Division of Bond Finance is statutorily a division of the State Board of Administration, the Governor and the entire Cabinet sit as its governing board.23 The division acts on all proposed bond sales and approves the sale of various bond issues. It also grants the state the authority to sell bonds to finance capital projects such as schools, state office buildings, bridges, roads, and land acquisition for conservation and recreation purposes.
• Administration Commission
The Administration Commission is technically a part of the Executive Office of the Governor24 and handles numerous state planning and budgetary matters pursuant to the provisions of F.S. Chs. 215 and 216. Legislation was passed this year which eliminates the Administration Commission’s role of budget amendment approval under specific provisions of F.S. Ch. 216.25
The Administration Commission’s biggest impact, however, is in the area of environmental and growth management issues. The commission can address developments of regional impact procedure, areas of critical state concern, comprehensive plans, plan amendments, and land development regulations within that area.26
Siting Board
This is a Governor and Cabinet board created by statute that has the duty to address recommended orders of an administrative law judge for power plant and transmission line siting and certification. The board’s role here is quasi-judicial in nature and is comprehensively set forth in F.S. Ch. 403, Part II.27
• Florida Land and Water Adjudicatory Commission
The Florida Land and Water Adjudicatory Commission acts in a quasi-judicial capacity. As set forth in F.S. §380.07, this commission hears appeals of development orders for development of regional impacts, appeals of any development decisions in areas of critical state concern, and requests for review of certain orders or rules of a water management district. It also approves, by rule, the creation of community development districts.
As the Cabinet wears many hats, procedures are sometimes less than clear. For example, F.S. §380.07(1) creates the Florida Land and Water Adjudicatory Commission, and then goes on to provide that FLWAC shall consist of the Administration Commission. Section 380.031(1) defines the Administration Commission and provides that “for purposes of this chapter the commission shall act on a simple majority.” However, this gets fuzzy when FLWAC receives requests for review of water management district rules or orders.
Pursuant to F.S. §373.114, the vote of four Cabinet members is required to accept review of water management district rules or orders. However, the statute remains silent on voting requirements for decisions on the merits. Since §373.114 does not make any reference to Ch. 380, which created FLWAC, it becomes unclear if the simple majority voting requirement from Ch. 380 applies, or §14.202, the general statute creating the Administration Commission, which provides for affirmative action by the Governor and three Cabinet members.28 The Cabinet has taken the position that since FLWAC was created by Ch. 380, the simple majority requirement in that chapter applies to a decision on the merits of water management district rules and orders.
• Board of Trustees of the Internal Improvement Trust Fund
The Board of Trustees of the Internal Improvement Trust Fund is the entity which holds title to all public lands in trust for the benefit and use of all the people of the state.29 The board of trustees addresses the acquisition, administration, management, sale, and disposition of state lands as well as the funds authorized for such purposes.30 The Department of Environmental Protection, through the Division of State Lands, performs all staff duties and functions related to these areas.31
One of the board of trustees’ most significant areas of authority concerns sovereignty lands, which are those tidal and submerged lands lying under the navigable waters of the state and which are owned by the state by virtue of its sovereignty.32 The title to all such lands is vested in the Board of Trustees of the Internal Improvement Trust Fund.33 The board’s authority extends to any “activity” on sovereignty land, defined as any use of sovereignty land which requires board approval for consent of use, lease, easement, sale, or transfer of interest in such sovereignty lands or materials, including, but not limited to, the construction of docks, piers, boat ramps, boardwalks, and mooring pilings; dredging of channels; filling; removal of logs, sand, silt, clay, gravel or shell; and the removal or planting of vegetation.34
• State Board of Education
The State Board of Education and the State Board of Career Education oversee myriad policy issues, including approving appointments to various educational boards and commissions, approving rules of the state university system, Board of Regents, and community colleges, and a host of other issues and programs found in various statutes.
The State Board of Career Education is a type of subset of the State Board of Education for the purpose of taking action required by state or federal law depending on the specific issue.35 The action, however, is really in the State Board of Education.
In the 1997 legislative session, certain powers of the State Board of Education were shifted to the Commissioner of Education.36 Again, an examination of the statutes and rules relevant to the issue at hand is essential to ensure an understanding of the applicable procedures. A practitioner may be surprised to discover that a very large number of education issues are not “State Board of Education” issues.
• Executive Clemency
The State Board of Executive Clemency exists separate and apart from the other Governor and Cabinet functions and usually meets quarterly. Created by the constitution and recognized by statute, the State Board of Executive Clemency provides authorization to the Governor and three members of the Cabinet to grant full or conditional pardons, restore civil rights, commute punishments, and remit fines and forfeitures for offenses.37
Voting
Practitioners must keep in mind that various functions of the Cabinet may have different voting requirements depending on the specific board or commission through which an issue is being presented or addressed.38 Although most issues present themselves as one of a majority vote, the practitioner must check the statutes and rules with regard to each of the specific functions to determine the voting requirements for that particular Cabinet decision. Sometimes a particular issue will require a vote of five Cabinet members for approval;39 other times a vote of the Governor and three Cabinet members is specified.40
As stated previously, the general authority for the Administration Commission stipulates that unless provided otherwise, affirmative action of the commission requires the vote of the Governor and three Cabinet members. Therefore, when the Administration Commission is in the position of addressing a sheriff’s budget appeal, pursuant to F.S. §30.49(5), an examination of that statute finds it is silent on the voting requirement. It states only that the Administration Commission enters an order and then the budget is final. Obviously, the voting requirement would fall back to the general authority for the Administration Commission.41 further example, challenges to comprehensive plan amendments state the action shall be simple majority, except for sanctions imposed pursuant to Ch. 163 which “shall require the approval of the Governor and three cabinet members.”42
A decision by the Board of Trustees to sell or dispose of state-owned lands requires a vote of five board members as set forth in F.S. §258.02(02).43 This longstanding requirement became somewhat clouded by legislation of the 1999 session amending §253.634, in what the senate staff analysis calls the creation of the Florida Forever program. The Florida Forever program is the new version of Florida’s Preservation 2000 program. The 1990 P-2000 program provided significantly increased funding for land acquisition through bond sales. The Florida Forever program does the same. However, new language in §253.034(6) specifies that the surplus of land acquired for conservation purposes requires a two-thirds vote of the governing board. It goes on to say, for all other lands, the board may dispose of them by majority.
From a conservative perspective, this language at a minimum would appear to alter the five-vote requirement for any disposition of state lands, including surplus, to that of a majority when disposing of state-owned lands purchased under the Florida Forever program by means other than the surplus procedures.
Delegations
Generally speaking, the Cabinet has such broad powers that any item falling within its jurisdiction may be placed on the agenda by a Cabinet member. Recent years have seen more and more delegation of Cabinet issues from both the legislature and the Governor and Cabinet themselves to their executive directors and staff. Practitioners should consult the statutes and rules applicable to their specific issue to determine which decisions will come before the Governor and Cabinet for approval and which ones have been delegated. Note, however, that the Governor and Cabinet expect issues of controversy or high public interest to be made known to them so that the public is best served by having that item decided at a Cabinet meeting.
Cabinet Aides
The Governor and Cabinet members have the assistance of aides. These positions differ somewhat from office to office, but most offices have more than one aide44 and one individual designated as the chief cabinet aide. As a general rule, certain aides handle specific issues and agenda items. Some chief aides will address all agenda items. The Governor’s Cabinet office usually maintains a list of the current Cabinet aides, their office address and phone, and their areas of responsibility which is made available to the public.
The Cabinet aides meet on Wednesday the week before the Cabinet meeting to discuss the agenda items and ask questions of different department staff regarding each agenda before them. These meetings are public and noticed in the Florida Administrative Law Weekly. During these meetings, proponents and opponents of particular issues, as well as their lawyers and lobbyists, make presentations and argue the merits of their positions.
Items before the Governor and Cabinet sitting in a quasi-judicial manner usually preclude the Cabinet member from meeting with anyone on such issues.45 Florida law requires registration for lobbying the executive branch of government, which clearly applies to the Governor and Cabinet.46
Calls for Reform
Florida’s unique Cabinet system has attracted its share of attention throughout the years. In the past several years, there have been numerous proposals on how to reorganize the executive branch of government. One specific action began January 24, 1995, through a resolution proposed by the Attorney General. approval of that resolution, the Governor and Cabinet established the Citizens Commission on Cabinet Reform, appointing distinguished individuals to review the more than 400 statutory references which assigned responsibilities to this collegial body. The commission issued a final report recommending that the departments of revenue, law enforcement, and veterans affairs be placed into departments headed by a Secretary appointed by the Governor, subject to Senate confirmation. The commission further recommended that the Department of Highway Safety and Motor Vehicles be abolished, and instead that the Florida Highway Patrol be placed in a new Department of Highway Safety, with the current responsibilities of the divisions of Motor Vehicles and Driver Licenses transferred to the Department of State.47
Following this report by the Citizens Commission on Cabinet Reform, the Florida Legislature found itself addressing at least two pieces of legislation in the 1995 session that promoted these changes: one in particular which specifically placed the divisions of motor vehicles and drivers license squarely within the Department of State was unsuccessfully filed two years in a row.48 Several legislative proposals calling for reform have existed since 1995 without success.
The Constitution Revision Commission which met in the spring of 1998 successfully addressed and proposed a Cabinet reform model which was passed by Florida voters in the fall elections of 1998. Essentially, that proposal will change the face of the Cabinet, eliminating the Education Commissioner as a Cabinet officer and combining the offices of the Department of Insurance and Office of the Comptroller into one position to be known as the Chief Fiscal Officer. This will leave Florida’s Governor and Cabinet to comprise a four-member group sitting as the Governor, Attorney General, Chief Fiscal Officer, and the Commissioner of Agriculture. The 1999 Legislative Session found the legislature already initiating efforts to make the statutory changes that will ultimately be required in order to effectuate this change.49
Conclusion
This article is intended to give a flavor of this historically unique and often mysterious function of the executive branch of Florida’s state government. Its complement, operation, and procedures are clearly a product of Florida law and, like the law itself, must be organic to survive. The Florida electorate, lead by the Constitution Revision Commission, has now made some changes to this 130-year-old system. Whether they went too far, far enough, or even in the right direction, is still a matter of debate.
q
1 F la. Const. art. IV, §4(a) (1998).
2 Michael Gannon, Florida, A Short History (1993).
3 Fla. Const. art. IV, §4(a) (1998).
4 Gov. Chiles referenced Philip K. Howard, The Death of Common Sense in his initiative to streamline government.
5 Fla. Admin. Code ch. 3-19, Rules 19-3002 and 19-3022.
6 Allen Morris, Florida Handbook 1999-2000.
7 Fla. Const. art. IV, §4(a) (1998); and Morris, supra note 6.
8 Fla. Admin. Code R. 19-3.015.
9 These agenda sheets are available from the Governor’s Office and typically are placed outside the Cabinet meeting room on the lower level of the Capitol the day of the Cabinet meeting.
10 See, e.g., Fla. Stat. §20.32(2) regarding appointment of the Parole Commission by the Governor and Cabinet.
11 Fla. Const. art. IV, §6 (1998); and Fla. Stat. §§20.10, 20.11, 20.12, 20.13, and 20.14.
12 1997 Fla. Laws ch. 190, §72.
13 Fla. Stat. §§20.201, 20.21, 20.24, and 20.37.
14 Fla. Stat. §14.202.
15 Fla. Stat. §253.02.
16 F la. Stat. §380.07(1).
17 Fla. Const. art. IX, §2 (1998); Fla. Stat. §229.053.
18 Fla. Stat. §229.053(2)(k); duties, Fla. Stat. §§231.62, 239.117, 239.233, and 240.118.
19 Fla. Stat. §215.62.
20 Fla. Stat. §403.503(6).
21 Fla. Const. art. IV, §8 (1998); Fla. Stat. §940.01.
22 Fla. Const. art. XII, §9 (1998); Fla. Stat. §§215.59, 215.60, and 215.95; and Fla. Stat. §20.28.
23 Fla. Stat. §215.62.
24 Fla. Stat. §14.202.
25 See Committee Substitute for House Bill 1738, Legislative Session 2000.
26 Fla. Stat. §§380.05 and 380.06.
27 Fla. Stat. §403.501.
28 Fla. Stat. §14.202.
29 Fla. Stat. §20.255(5)(a).
30 Fla. Stat. §253.001; Fla. Const. art. II, §7 (1998); Fla. Const. art. X, §11 (1998).
31 See Fla. Stat. ch. 253 and its numerous provisions regarding the acquisition, administration, management, sale, and disposition of state-owned lands.
32 Fla. Stat. §253.002(1).
33 Fla. Const. art. X, §11 (1998).
34 Fla. Stat. §253.12.
35 See Fla. Stat. ch. 253; and Fla. Admin. Code ch. 18-21. These activities may also be subject to the regulatory permitting requirements of the Department of Environmental Protection or the respective water management districts in addition to the proprietary approval that must be granted by the board of trustees.
36 Fla. Stat. §229.053(2)(k).
37 Fla. Const. art. IV, §8 (1998); Fla. Stat. §940.01.
38 See earlier explanations of Administration Commission and the Florida Land and Water Adjudicatory Commission.
39 Fla. Stat. §253.02(2), sale or disposition of state-owned land).
40 Fla. Stat. §14.202.
41 Fla. Stat. §14.202.
42 Fla. Stat. §163.3164(1) for purposes of imposing sanctions, Governor must vote with the majority.
43 Fla. Stat. §253.02.
44 Morris, supra note 6.
45 See Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d D.C.A. 1991), rev. denied, 598 So. 2d. 75 (Fla. 1992). But cf. Fla. Stat. §286.0115(2)(c), enacted in response to Jennings, providing that in quasi-judicial proceedings on local government land use matters by local public officials a person may not be precluded from communicating directly with a member of the decisionmaking body by application of the ex-parte communications prohibitions.
46 Fla. Stat. §112.3215. There are certain exemptions.
47 Final Report of Citizens Commission on Cabinet Reform, 1995, presented to the Governor and Cabinet and the Florida Legislature.
48 See Senate Bill 1184 and CS/CS/HB 2101 1996 Regular Session.
49 See Senate Bill 2206 1999 Regular Session. See also the February 2000 report of the Blue Ribbon Committee on Education Governance appointed in August of 1999 by Commissioner Tom Gallagher regarding the implementation of this constitutional amendment.
Kent J. Perez is a senior assistant attorney general in the Tallahassee Office of the Attorney General. He is a former bureau chief in the Division of Economic Crimes and now works as chief cabinet aide to Attorney General Bob Butterworth. Mr. Perez earned a J.D. from Florida State University College of Law in 1982.
Edwin Bayó has an economics degree, cum laude , from the University of Puerto Rico (1978) and a J.D. from Stetson University Law School (1981). He is an assistant attorney general in the administrative law section and previously served as cabinet aide to Attorney General Bob Butterworth (1993–94).
This column is submitted on behalf of the Government Lawyer Section, Howard A. Pohl, chair, and Christine E. Zahralban, editor.
