Florida Bar Journal

Restructuring the Florida Cabinet System

Every Governor agrees that government by committee not only is inefficient, but also renders the powers of the executive branch inferior to the legislative branch in particular, and the judicial branch to a lesser extent.

Claude Kirk, Governor of Florida (1967–1971), called our current executive system “Snow White and the six dwarfs.” He was mistaken. The dwarfs are really political giants by definition. Although in most instances the individual cabinet officers are dedicated public servants, they exercise control of our lives far beyond what their constitutional titles suggest.

The 1997–98 Constitution Revision Commission took the task of streamlining the executive branch of government head-on with long and arduous study and debate. The bipartisan proposal it developed in Revision 8 could improve state government by pinpointing accountability while preserving power-sharing by elected officers in the critical areas of land use, state land sales and purchases, bonding, clemency, and state law enforcement.

With sound bites daily exhorting citizens to demand “less government” and “more efficient government,” it would seem this somewhat modest reform of Florida’s governing branch would be a sure thing for voter approval. Yet supporters understand that it will take a concerted effort for the public to understand the history and theories involved in order to overcome opposing forces and overcome the inherent problem in obtaining a “yes” vote for a complex proposal. Opposition to change and a possible threat to interest groups and the current antipathy of the public for “faceless” government favoring election makes any meaningful reduction of this gigantic bureaucratic maze a tenuous endeavor.

The most significant reforms proposed by Revision 8 are: 1) the creation of a Board of Education appointed by the Governor, confirmed by the Senate; the Board of Education appointing the Commissioner of Education, thereby assuring the people that education will receive the total attention of those administering the school system; and 2) combining the offices of Treasurer and Comptroller into one and leaving the duties of the Secretary of State to be performed in accordance with statute. The proposal’s net reduction of three of the members from the Cabinet as presently constituted leaves a manageable group of three Cabinet officers with the Governor having the tie-breaking vote in a 2-2 split on collegial votes.

What is the Present Cabinet System?

Today there are six Cabinet members elected in statewide elections every four years. They are elected simultaneously with the election of the Governor. Presently, these officers are subject to the two-term limit. They are independent autonomous officers who are not answerable to any other elected official, including the Governor.

These six officers exercise two collegial, constitutionally mandated functions in concert with the Governor; namely, they sit as the Board of Education² and the state Board of Clemency.³ Additionally, over the years the legislature, invoking Article IV, §§4(a) and 6, has assigned numerous specific duties and extensive regulatory powers to the Governor and Cabinet, sitting as a body corporate. As a result, the power base that pervades the Cabinet system is a creature constructed by the legislature. Each officer runs a special regulatory agency, so that the treasurer also serves as Insurance Commissioner, the Comptroller doubles as banking commissioner;⁴ the agriculture commissioner is Commissioner of Agriculture and consumer services; and the Secretary of State oversees elections and historical and cultural affairs as head of the Department of State.

Article IV, §6 limits the number of executive departments to 25. general law, five of the six Cabinet officers individually head a department which is not subject to the oversight of the Governor;⁵ the Governor has full oversight of only 12 departments,⁶ and most of the remaining departments are controlled jointly by the Governor and Cabinet. These Governor and Cabinet agencies include the Board of Education, the Board of Trustees of the Internal Improvement Trust Fund, the Florida Department of Law Enforcement, the Department of Highway Safety and Motor Vehicles, the Department of Revenue, the Clemency Board,⁷ the Department of Veterans Affairs, and the Administration Commission. Although the constitution purports to grant to the Governor the “supreme executive power,” in fact the Governor has control over fewer than half of the executive agencies of state government.

The bimonthly Cabinet meetings are unique and are not well understood by the general public. These meetings are best described as similar to a conglomerate board of directors meeting. They include the most momentous governmental decisions as well as the most trivial, all seemingly on a par with one another.

Important issues range from disposition of public lands to consideration of all major educational issues. The trivial is exemplified in the approval of the individual questions and answers on 11th grade tests and approval of new public bathrooms in the Capitol building. With such a wide range of issues to handle, much of the decisionmaking is based on information provided by aides. The aides have a great deal of influence over what is discussed and in some instances they determine the outcome of Cabinet action, since no one Cabinet member has the time to fully consider each issue requiring a vote.

History of the
Cabinet System

Historically, the word “cabinet” first appeared in the Constitution of 1868.⁸ That document is known as the “reconstruction” or “carpetbag” constitution. Under that document, the federal method of appointment by the chief executive and confirmation by the Senate was the case. The Cabinet offices of the Attorney General, Comptroller, and Treasurer served at the pleasure of the Governor.

In 1885, the civil overthrow of reconstruction culminated in the adoption of a new constitution. The Constitutional Convention and the people reacted to the appointment method, which applied to all state and local officers except legislators, by creating six elected administrative officers—Secretary of State, Attorney General, Comptroller, Commissioner of Agriculture, Treasurer, and Superintendent of Public Instruction. These officers did not constitute an independent Cabinet, but were created so that “the Governor shall be assisted”⁹ by these elected officers, providing with clarity that the Governor was vested with the “supreme executive power of the state.”¹⁰

Thereafter, however, the legislature began a course that created independent executive powers and duties in these administrative officers beyond their constitutional duties, and started a practice of creating boards composed of various members of the group, and giving executive powers and duties to the boards, which included the governor as chairman. general law, statutory duties were given to the Treasurer (as Commissioner of Insurance), and the Comptroller (as Commissioner of Banking).

This apparent unconstitutional exercise of legislative power was exercised in the face of the “supreme executive power” provision in the constitution and the language stating the Governor “shall take care that the laws be faithfully executed.”¹¹ The creation of these boards and commissions appeared to be contrary to the separation of powers doctrine. The Florida Supreme Court, however, in an opinion creating unprecedented power in the legislature, held that this was permissible.¹²

The 1968 Constitution made this judicial ruling a constitutional reality in Florida, by virtue of Article IV, §4(a), which states:

There 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. In addition to the powers and duties specified herein, they shall exercise such powers and perform such duties as may be prescribed by law.

We now have, inherent in our executive branch, government by independent committee members, with the Governor serving as chair and certain executive departments under the sole power of individual Cabinet officers. Since 1968, these individual Cabinet offices have been called by one writer the offices of “little governors.”¹³

History of Revision 8

Cabinet reform has been the subject of constant scrutiny and debate over the last 50 years. What began as a popular answer to executive appointment run amok by the reconstructionists grew into commissions, boards, bureaus, and other redundant agencies complicated by the weight of the special interest influences resulting in their creation. The dilution of the Governor’s powers has accomplished its goal, which was to rank the branches of government in terms of power, so that the legislature ranks first, the judiciary second, and the executive a distant third.

Since the legislature started meeting annually rather than biannually, government has grown exponentially, but the power of the Governor has been reduced, further tilting the balance of power and weakening the constitutional system of checks and balances that is essential for maintaining a healthy form of republican government.

At the urging of the Governor and academics and with the leadership of Chairman Talbot D’Alemberte, a proposal to abolish the Cabinet altogether was passed by the 1977–78 Revision Commission by a vote of 19 “yeas” and 18 “nays.” Abolition was soundly rejected by the voters, failing by the widest margins of the many revisions offered. The sitting Cabinet members vigorously opposed the proposal and, with the financial help of the regulated industries under their jurisdiction, carried on an ultimately successful campaign which was of great proportions relative to the times.¹⁴

In 1995, Attorney General Bob Butterworth proposed and Governor Lawton Chiles created the Citizens Commission on Cabinet Reform (CCCR) to study revising the cabinet’s statutory duties. The 1995 CCCR was chaired by former Governor Reubin O’D. Askew, and former Governor Bob Martinez served as vice-chair. The CCCR met throughout 1995, reviewing the statutory responsibilities of the Cabinet. The CCCR was limited to suggesting statutory changes. However, its final report includes many discussions about revising the constitutional Cabinet system in a manner consistent with Revision 8.

During the CRC’s public hearings, two sitting Cabinet officers rose to propose what is basically now Revision 8. Treasurer Bill Nelson and Comptroller Robert F. Milligan, at a public hearing in Tampa, jointly and eloquently proposed merging their offices into one chief financial officer. Their proposal envisioned the Attorney General and the new chief financial officer as the sole members of the Cabinet. The Commissioner of Education and the Commissioner of Agriculture each would have become officers, selected respectively by a newly created state Board of Education and Agriculture Commission, whose members would be appointed by the Governor, subject to Senate confirmation. The custodian of the records and the state seal would no longer be an elected Secretary of State but would be established and selected as provided by general law.

Late in the commission’s proceedings, this proposal was modified so that it retains the Commissioner of Agriculture as an elected Cabinet officer. The proposal does not eliminate a Secretary of State or Commissioner of Education, but rather makes them nonelected officials without Cabinet duties.¹⁵

Arguments For and Against

Those who oppose Revision 8 point to the public forum provided by Cabinet meetings as a very desirable asset of the current system. Recognizing this, the proposal retains this open meeting feature with regard to many Cabinet functions¹⁶ and others, such as educational issues, being aired in public forums before specified executive boards.

The major reason assigned for a “no” vote by those opposing Revision 8 is that it removes the people’s right to elect their Secretary of State and Commissioner of Education. Opponents believe that elected officials are inherently more accountable than appointed officials. Some opponents are adamantly against reinstating a Governor’s powers to that which was contemplated in the 1885 Constitution. They support a collegial approach to statewide exercise of executive responsibility in the areas where they now exist.

Supporters maintain that the governor should exercise the supreme executive power of the state. This would allow for greater accountability, making it easier to determine responsibility for successes and failures. This argument highlights the present inability to ascertain who is responsible for a decision. Supporters also contend that statewide elections are overshadowed by the Governor’s race and make Cabinet elections secondary, allowing the candidate with special interest monetary backing to win. For example, the Treasurer’s race is usually heavily funded by insurance interests.

Commissioner Carlos Alfonso, chair of the committee which developed the Cabinet reform proposal, opened his remarks on this measure by reflecting on the words of Governor Askew:
Governor Askew shared that [early on]. . . our legislative branch had been weak. . . and the power had been dispersed. And checks and balances were added [by dispersing the executive power] to ensure that the executive did not become too strong. Well, we have corrected the legislative branch. The judicial branch is also strong, as it should be, but the executive branch isn’t.

Governor Askew made a plea that the CRC not be hesitant to address this issue, and it was not. The executive committee spent many hours taking testimony, debating, and constructing this Cabinet reform measure. The full commission spent substantial time debating the merits and amending the proposal to reflect its recommendation for improving Florida government.

Conclusion

The passage of Revision 8 by the 1998 CRC is a nonpartisan effort to improve the structure of government. It is offered to the public to correct the imbalance of power between the branches of government and reduce the influence of large monied interests funding elections for their singular gain rather than to the overall public welfare, while at the same time retaining the checks and balances of collegial control over law enforcement, land usage and disposition, bonding, and the state retirement system. q

¹ Journal of the 1997-1998 Constitution Revision Commission at 21, June 17, 1997.
² Fla. Const. 1968, art. IX, §2.
³ Fla. Const. 1968, art. IV, §8.
⁴ The only elected banking commissioner in the United States.
⁵ Secretary of State (Department of State), Attorney General (Department of Legal Affairs), Comptroller (Department of Banking & Finance), Treasurer (Department of Insurance), Commissioner of Agriculture (Department of Agriculture and Consumer Services). The Commissioner of Education does not head a department, as the constitution requires that the Governor and Cabinet jointly comprise the State Board of Education, which heads the Department of Education. Fla. Const. art. IX, §2.
⁶ However, the heads of these departments are subject to Senate confirmation.
⁷ The Governor grants clemency, but it is effective only if three Cabinet officers vote to approve it.
⁸ Fla. Const. 1868, art. V, §17.
⁹ Fla. Const. 1885, art. IV, §20.
¹⁰ Fla. Const. 1885, art. IV, §2.
¹¹ Fla. Const. 1885, art. IV, §20.
¹² Whitaker v. Parsons, 86 So. 247 (Fla. 1920).
¹³ Moyle, Fla. St. U. L. Rev. 6, p. 591.
¹⁴ As a member of that group, Douglass opposed that revision.
¹⁵ The proposal was sponsored by Commissioners Carlos Alfonso and Jacinta Mathis, both Republican Speaker appointees. The proposal for Revision 8 passed 25-11, with both Republicans and Democrats voting with the 2/3 majority. Of the six sitting Cabinet members, four publicly support Revision 8; one is neutral, stating it is a good idea (Education Commissioner Frank Brogan), and one opposed its adoption on the day of the CRC’s adjournment (Secretary of State Mortham).
¹⁶ Included in its terms, the proposal requires the state police agency (Department of Law Enforcement) and the agency that oversees public lands (Trustees of the Internal Improvement Trust Fund) be headed by the Governor and Cabinet. In addition, the State Board of Administration, which handles state investments, would continue as a three-member board comprised of the Governor and two Cabinet members.

W. Dexter Douglass is chair of the 1997-–98 Constitution Revision Commission and also served on the 1977–-78 commission. Mr. Douglass has practiced law in Tallahassee since 1958, and served as Governor Chiles’ General Counsel from 1995-–97.

The author thanks Virginia Daley for her valuable assistance and research. Ms. Daley is a third-year law student at Florida State University.