The Florida Division of Administrative Hearings
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 law judges tend to view their work as a career and to stay with the division for many years. There are currently 37 administrative law judges who regularly hear cases, and two who serve in administrative roles, a total of 39 positions.12 Since 1974 there have been only 69 persons who have served or still serve as administrative law judges.13 This is an extraordinarily low turnover for any organization.
Eighty-five percent of the division’s docket is taken up by nine agencies. In descending order of percentage of use, these are the Agency for Health Care Administration, Department of Health, Department of Business and Professional Regulation, Department of Environmental Protection, Department of Children and Family Services, Department of Community Affairs, Department of Insurance, Department of Transportation, and Department of Management Services.14 The four agencies actually using the most final hearing hours were, in descending order, the Agency for Health Care Administration, Department of Business and Professional Regulation, Department of Children and Family Services, and Department of Health.15
The division’s administrative law judges are increasingly sought out by local agencies. County school boards generated 1,101 final hearing hours in fiscal year 1998–99, about twice the number as the Agency for Health Care Administration, the highest user of administrative law judges among state executive agencies.16 Water management districts, regional planning councils, cities, counties, and similar agencies which contract for administrative law judge services accounted for 453 final hearing hours, about the same as the Department of Health.17 The number of cases involving water management districts increased by 78 percent in fiscal year 1998–99 when compared to the preceding fiscal year.18 Agencies other than state executive branch agencies accounted for about 30 percent of the final hearing hours of administrative law judges in fiscal year 1998–99.19
Administrative law judges in fiscal year 1998–99 handled an average of 175 new cases, but of these, 104 (59 percent) went to hearing, and 90 (51 percent) required either a written recommended or final order.20 A comparison to a trial court in the judicial branch is useful. In the U.S. District Court for the Northern District of Florida, there were 1,627 new civil cases commenced in fiscal year 1999,21 or about 400 for each of the four authorized judgeships.22 However, only 2.1 percent of the pending civil cases terminated after a trial in that year; the rest terminated before trial.23 While it is true that some significant portions of those judicial civil cases terminated on pretrial motions, still it is unquestionable that compared to the termination of judicial civil cases, a very significant portion of administrative cases do not terminate by settlement or by other prehearing procedures, and must go to final hearing to terminate.
Recent Changes to the Administrative Procedure Act
Administrative law judges continue to be delegated important responsibilities by the Florida Legislature. Since 1974, administrative law judges have had authority, after an appropriate hearing, to enter a final order that an agency’s rule is an invalid exercise of delegated legislative authority.24 Were this feature not in the Florida Administrative Procedure Act, circuit courts would hear these claims. While the substantive standard for rulemaking and determining the validity of rules has been made more restrictive as a consequence of amendments in 1996 and 1999,25 administrative law judges continue to be entrusted with final order authority in rule challenges.
In adjudicatory cases, where there has been a decision which “affects substantial interests,” the administrative law judge normally has the role of making findings of fact and a recommendation.26 Findings of fact by administrative law judges continue to be presumptively correct, and may not be lightly set aside by the agency.27 As a consequence of recent amendments, however, conclusions of law by administrative law judges are even more insulated from change by the agency.28 In view of these new responsibilities, it is plain that the division and administrative law judges continue to enjoy the confidence of the legislature.
Values Achieved by a Central Panel of Judges
A central panel of administrative law judges like the Florida Division of Administrative Hearings effectively provides impartiality. The structure also fosters accountability, professionalism, and economies of scale.
Impartiality is critical to the functioning of any fair system of recordmaking and adjudication. A judge with a stake in the matter to be decided, whether arising from personal interest or the interest of his or her employer, does not inherently enjoy the confidence of the parties to the dispute.
A central panel encourages impartiality in a variety of ways. First, it assures that administrative law judges have independence. A separate agency, which reports only to the legislature for budget and planning, in a building committed by its structure to impartial hearings, insulates the administrative law judge from unsuitable pressure from either the agency or the citizen.
Judicial independence and government in the sunshine are eroded when ex parte contacts affect the outcome of a dispute.29 A centralized place for location of administrative law judges helps to avoid ex parte contacts. There is no need for agency expertise to be conveyed to the adjudicator by ex parte contacts since it can be imparted by an agency witness. Agency expertise may be then clarified or challenged through cross examination, and the agency may become better educated through testimony from citizens and experts from the private sector.
A centralized panel also tends to normalize the process by which decisions are reached, and in so doing, fosters impartiality. Administrative records, consistently prepared by administrative law judges who do things the same way, governed by the same statutes and administrative rules, constrain the information gathering process and level the playing field. While there is a procedure for the agency head to reach a different conclusion, this is constrained on the one hand by the open hearing, and on the other by judicial review in the district court of appeal.
Centralization has helped attain judicial accountability for productivity. Accountability for the substantive results of decisions, of course, is antithetical to judicial impartiality and independence, but there is no reason that judges of all types cannot be held accountable in some measure for productivity and efficiency.
As discussed earlier, in Florida the director of the division is jointly accountable to several elected officials, and this diffusion of political power serves to insulate the division from political interference in a particular case.30 Accountability exists nonetheless. Administrative law judges in Florida are centrally accountable to the director rather than to a multitude of agency heads. Though they are career service employees, thereby assuring some measure of tenure with respect to the director, there is at least a central structure for management of productivity.
The division itself is especially a creature of statute. Thus, its efficiency may be fine-tuned by statutes. There are a number of such examples which achieve that purpose with little extra cost. A hearing on a bid protest must commence within 30 days of receipt by the division of a request for hearing, and a recommended order generally must be entered within 30 days after receipt of the transcript.31 Cases involving exceptional education students are also expedited, and a final order must be issued 45 days after the request for a hearing is filed.32 Rule challenges must be heard within 40 days of filing and a final decision rendered within 30 days following the hearing.33 Summary hearing procedures have expedited provisions as well.
Further, there is another kind of accountability potentially available. While there is no formal history of asking the division for a report as to the substantive work of agencies, for legislators and those who manage the executive branch at the top levels, there is probably no better source of unbiased information about the implementation of agency programs than the success rates of agencies in division hearings. The division collectively hears the agencies at the most important time, when their more controversial policies affecting the substantial interests of citizens are challenged. Some agencies are well-managed, and their policies are clear and reasonable, as revealed over and over in hearings. Others occasionally go off on an unproductive and costly tangent, and this may be revealed by the pattern and content of administrative law judge decisions. This potential management resource is possible because the division is centralized and independent.
A central panel of administrative law judges naturally generates an environment which encourages a professional approach to the work. An administrative law judge from a central panel is a generalist in substantive law but a specialist in due process. Over time, an administrative law judge becomes very familiar with the programs of every agency, and sees connections in which separate executive agencies may see none. Further, the judge’s specialty, due process, remains constant.
Having offices in a central building makes it possible for informal collegial interaction and peer review. Interchanges of this sort improve the quality of the work. This is especially useful because it occurs internally, without compromising independence and impartiality. Every court with more than one judicial officer informally achieves this in some way, and the central panel is no exception.
• Economies of Scale
Finally, a word about the bottom line. Centralization generates cost savings and other efficiencies. Decades of administrative precedent have been consolidated in a central location. The division’s opinions are now available in full text on the Internet and may be searched in a variety of ways.34
Other efficiencies have been achieved. Like courts, the division employs three court reporters.35 These court reporters covered 73 percent of the hearings in Tallahassee in fiscal year 1998–99.36 Had private court reporters been employed by state agencies, the cost would have been $86,000 greater. Additionally, the program generated $80,000 in revenue for the state.37
The division has recently upgraded its computer system so that it is capable of generating routine orders and notices of hearing by event.38 For a notice of hearing, the database automatically selects the hearing room location (and there are many throughout the state), and provides the name and addresses of the parties to receive copies. This and other routine orders are automatically coordinated with and entered on the calendar and docket. The new system will be more accurate and will save time and the expense of generating routine orders.
The division is also converting to a completely online docket so that every document filed in a case can be read and printed from the website. For some time the division has had recommended and final orders available on the Internet in full, searchable text, and parties have been able to see the order as soon as it is docketed. Again, this is possible due to central management.
In March 1994, the division instituted a system for holding hearings by video teleconferencing. There are 11 teleconferencing sites—in Key West, Miami, Ft. Lauderdale, West Palm Beach, Ft. Myers, Tampa, Orlando, Daytona Beach, Jacksonville, Tallahassee, and Pensacola—with some cities having multiple sites. In fiscal year 1998–99, 129 video hearings were scheduled. Video teleconferencing can save a considerable amount of travel money. The cost of travel in 1998–99 was $166,657. This cost should decrease relative to the number of hearings held as advances in telecommunications continue. Eventually, it should be commonplace for many of Florida’s administrative hearings to be conducted by video teleconferencing. Administrative hearings for the most part are especially amenable to the use of new technology. Administrative hearings often are not like jury trials, in which there may be some value in weighing the credibility of eye witnesses to an event that occurred in a short period of time. Instead, the evidence in administrative hearings usually has been fixed months before by the written interaction between the agency and the citizen.
As long as a state is committed to affording due process within the executive branch, as Florida has been for over 25 years, it must provide for a number of administrative law judges and locate those judges somewhere. In the case of the Florida Division of Administrative Hearings, form has correctly followed Florida’s commitment to this important function. q
1 William R. Dorsey, Florida’s Continuing Experiment with the Central Panel Process: The Division of Administrative Hearings, 15 J. Nat’l Ass’n of Admin. L. Judges 77, 79 (1995), citing H. Levinson, The Florida Administrative Procedure Act: 1974 Revision and 1975 Amendments, 29 U. Miami L. Rev. 617, 660 & n.255 (1975).
2 Arizona, California, Colorado, Florida, Georgia, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, South Dakota, South Carolina, Tennessee, Texas, Washington, and Wisconsin.
3 Fla. Stat. §§20.22(2)(f), 120.65(1).
4 Fla. Stat. §14.202.
5 Fla. Stat. §120.65(1).
7 Twenty-Sixth Annual Report to the Administration Commission and the Joint Administrative Procedures Committee, Division of Administrative Hearings (February 1, 2000) at 5 (hereafter 2000 Annual Report).
8 Fla. Stat. §120.65(2). However, the appropriations committees of the legislature may advise the commission, and if the President of the Senate and the Speaker of the House object to “the effects of the appeal,” then the appeal may be “affirmed” only by a two-thirds vote of the commission members present. Id.
9 Fla. Stat. §120.65(1).
10 Fla. Stat. §120.65(4).
12 2000 Annual Report at 2.
13 This is a count by name from the opinions available on the Internet site.
14 2000 Annual Report at 1–2.
15 Id. at Appendix 1, Table (Hearing Hours Scheduled Report, FY 1998–99).
16 Id. at Appendix 1, Table (Hearing Hours Scheduled by Contract/ Educational/ Other Agencies, FY 1998–99).
18 Id. at 4.
19 Id. at Appendix 1.
20 Id. at 4.
21 Judicial Business of the United States Courts, 1999 Annual Report of the Director, Table C-1.
22 The Northern District currently also has two senior district judges who carry a very active case load, for a current total of six active district judges, but only four regular judgeships are authorized. There are also three full-time magistrate judges and two part-time magistrate judges.
23 Judicial Business of the United States Courts, 1999 Annual Report of the Director, Table C-4A. In fiscal year 1999 in all of the United States district courts, 2.3 percent of the civil cases ended by trial. Id., Table C-4. The district courts, of course, also have very active criminal trial dockets.
24 Fla. Stat. §120.56 (1975).
25 See generally Donna E. Blanton and Robert M. Rhodes, Florida’s Revised Administrative Procedure Act, 70 Fla. B.J. 30 (Aug. 1996); David M. Greenbaum and Lawrence E. Sellers, 1999 Amendments to the Florida Administrative Procedure Act: Phantom Menace or Much Ado About Nothing?, 27 Fla. St. U. L. Rev. 499 (2000).
26 There is also a procedure allowing an administrative law judge to enter a final order in a summary hearing upon consent of the parties. Fla. Stat. §120.574. This procedure is analogous to the federal procedure which permits a U.S. magistrate judge to try a civil case and enter final judgment with the consent of the parties. 28 U.S.C. §636. To date, however, there have been only 22 consent summary hearing cases heard by administrative law judges.
27 An agency may enter a final order rejecting or modifying findings of fact upon review of the entire record and after stating with particularity that the findings were not based upon competent substantial evidence or did not comply with essential requirements of law. Fla. Stat. §120.57(1)(l). A finding of fact may not be rejected based upon rejection of a conclusion of law. Id.
28 An agency may enter a final order rejecting or modifying conclusions of law over which it has substantive jurisdiction. Fla. Stat. §120.57(1)(l). The agency must state its reasons with particularity, and must find that its substituted conclusion of law is at least as reasonable as the conclusion which is rejected. Id.
29 Ex parte communications are forbidden and regulated by Fla. Stat. §120.66.
30 The accountability of the director, of course, could be the Achilles heel for the independence of administrative law judges. Any structure that permits short-term political interference to affect the outcome of a single individual decision will erode public confidence and eventually fail to provide due process within the executive branch. Circuit courts remain courts of original jurisdiction under the state constitution. If Florida did not have a reliable system for providing due process within the executive branch, the administrative cases would simply migrate to circuit court.
31 Fla. Stat. §120.57(3)(e)
32 2000 Annual Report at 4.
33 Fla. Stat. §120.56(1)(c).
34 The address is: www.doah.state.fl.us. Also available and searchable, inter alia, are the Division’s Hearing Calendar, Uniform Rules of Procedure, a site with information for pro se appearances before the division, and Legal Reference Links (to DOAH case search, the Florida Administrative Code Online, the Florida Legislature Online Statutes, The Florida Bar, the ABA Judicial Homepage, the ABA National Conference on Administrative Law Judges, the Florida Law Weekly, Florida State University Law Library and other university law libraries, and much more).
35 2000 Annual Report at 2.
36 Id. at 2–3.
37 Id. at 3.
38 The division was a leader in Florida in judicial automation, having fully networked computers for word processing, calendar, and docketing by 1995.
William C. Sherrill, Jr., is a U. S. magistrate judge in the U.S. District Court for the Northern District of Florida. He received his A.B. from Princeton University in 1965 and his J.D. magna cum laude from the University of Florida College of Law 1968.
Judge Sherrill expresses his indebtedness to Professor Harold Levinson, who taught him administrative law at the University of Florida in 1967 and who, in 1974, was significantly involved with the creation of Florida’s Administrative Procedure Act. Judge Sherrill also is indebted to former colleague and administrative law judge William R. Dorsey for his article, Florida’s Continuing Experiment with the Central Panel Process: The Division of Administrative Hearings, 15 J. Nat’l Ass’n of Admin. L. Judges 77 (1995).