The New Constitutional Cabinet â “Florida’s Four”
This is a follow-up article to a review of the Florida Cabinet system previously published in The Florida Bar Journal, November 2000.1 The 2000 article gave the reader a quick understanding of the cabinet system in Florida and acknowledged the significant changes that were likely to occur when the cabinet was reconfigured by the Florida voters, which was effective January 2, 2003. The new and still historically unique and significant Florida Cabinet system is almost five years old.2 Today, the governor and cabinet consist of a stronger Florida governor and three constitutionally recognized, independently elected public officials who serve as cabinet members: the attorney general, the chief financial officer (CFO), and the commissioner of agriculture.3 This article looks at the cabinet fundamentals that haven’t changed and point out those that have. While the duties and dynamics of the governor and cabinet may be different, the overall function, operation, and procedure of a truly unique example of plural executive branch government remain essentially the same.
The cabinet system in Florida government began as an outgrowth of ministerial duties and powers of public officials who sat on ex officio boards. Additionally, the governor of Florida started out as a stronger player in 1885 only to become a member of a true plural executive.4 Florida’s system of governance was often recognized as acknowledging a governor as the supreme executive power, while providing a reconstruction era check on the governor by creating a cabinet.5 An excellent explanation of the origins and development of the cabinet system can be found in a March 1969 article by current Florida Attorney General Bill McCollum in The Florida Bar Journal Special Legislative Issue, “The Florida Cabinet System — A Critical Analysis.” The cabinet as it existed for years was given formal recognition in the 1968 Florida Constitution.6 Beginning in January 2003, the long standing seven-member body, collegial for the most part, became a group of four. The Florida Cabinet today is still considered unique among the 50 states.
Sweeping cabinet changes were made to the Florida Constitution effective in 2003 in response to recommendations made by the 1998 Constitutional Revision Commission. Before those changes, the governor was essentially an equal to the other six elected officials. The seven-member governor and cabinet acted primarily by a “majority” or “simple majority” vote. There were several statutory governor and cabinet duties that specified the vote required for action as one of “[g]overnor plus three,” requiring the governor to be in the affirmative on an issue.7 There were also some statutory duties that specified action by a super majority vote of five of the seven members.8 The new Florida Constitution that became effective January 2003, however, downsized the cabinet from six to three members and made the governor more powerful. In addition to the governor acting as the chair of the many boards and commissions by which the governor and cabinet function, a simple majority vote of the governor and cabinet became a trump card for the governor. Yet as the governor became more powerful with a smaller complement, so did each of the cabinet members. In fact, some existing statutory language was never changed following the new constitutional revisions resulting in some appointment powers being spread equally among the four public officials.
Art. IV, §4 of the new Florida Constitution provides that in the event of a tie vote by the governor and cabinet, the side on which the governor voted shall be deemed to prevail.9 Simply put, this was the Constitution Revision Commission’s solution to doing business as a body of four. F.S. §14.2001 was passed early in the 2003 legislative session to redefine the terms “majority” and “simple majority” vote, as those terms applied to action by the governor and cabinet. Action taken pursuant to that side of a tie vote on which the governor voted, now by statutory decree, satisfies the requirement that action be taken by a “majority” or “simple majority” vote.10 Notwithstanding the history behind the recommendations of the 1998 Constitution Revision Commission, the logic and practicality of an odd member voting body became obvious.11 It seemed almost inconsequential that the governor became more powerful as a way to solve the voting mechanics of a four-member body. The two-member cabinet model originally discussed by the 1998 Constitution Revision Commission may have actually empowered the governor more, especially if new statutory language such as “[g]overnor in the affirmative” would have been used for all the extraordinary voting requirements that existed for the seven-member governor and cabinet.
Despite the early adoption of the changes to the constitution, the numerous references to the governor and cabinet throughout the Florida Statutes were not rewritten or addressed until the 2003 legislative session. This failure caused the new streamlined governor and cabinet to refrain from taking certain executive action until the legislature could catch up with the necessary statutory changes. This was the case when the governor and cabinet were sitting as the Board of Trustees of the Internal Improvement Trust Fund. Existing statutory language required an extraordinary vote of five of the seven board members when action was taken to sell, lease, or otherwise dispose of state-owned land.12 The disposition of state-owned land is often a large part of what the governor and cabinet do at their meetings, and with only four members now on the board, business was at a stand still in January 2003, until the new extraordinary vote language was passed during the 2003 regular legislative session. Governor Bush signed the cabinet reform legislation as one of the first bills to become law in 2003.13
Not all of the previously existing statutory language that was tailored specifically to a seven-member governor and cabinet was changed by the 2003 legislation. Language relating to the number of votes needed for some key appointments by the governor and cabinet remained the same, resulting in a majority vote requirement under the old cabinet structure now becoming a unanimous vote under the new cabinet. Suddenly the new and more powerful governor actually loses his power in some key decisions and is discussed below.
A substantial portion of the cabinet process has procedurally stayed the same. The meetings under the new cabinet occur approximately every two weeks with 20 to 21 meetings per year. The governor and cabinet still meet every other Tuesday while the cabinet aides meet on alternate Wednesdays.14 The governor and cabinet vote on the cabinet’s meeting schedule typically in December for the upcoming year. Meetings are noticed not only on the official cabinet Web site but also formally through the Florida Administrative Weekly published by the Department of State. The governor and cabinet however, retain the authority to notice a special meeting to take specific action on an item at any time. On rare occasions, emergency meetings of the governor and cabinet have also been held with minimal but still arguably adequate notice.15 While many people use the word cabinet to refer to the governor and cabinet, even those of us in and around the process, the governor of Florida is not a member of the cabinet.16
A meeting of the governor and cabinet consists of the governor and cabinet sitting in various capacities as the boards, commissions, agency heads, or entities. Information and items come on agendas submitted by these various entities and are received for consideration at the governor’s cabinet office and by the cabinet members’ offices no later than close of business Monday, a week before the following Tuesday cabinet meeting, which begins the cycle and satisfies the statutory notice required under F.S. Ch. 120 for a Tuesday cabinet meeting to be held on the following week.17 The submitted agendas are then posted on the cabinet Web site so they are available to the public. The governor’s cabinet staff coordinates the schedule and notice of all cabinet meetings and maintains the official Web site for the governor and cabinet.18 Practitioners before the governor and cabinet and the public should watch the Web site for changes leading up to a noticed and scheduled meeting.
The governor, as chair of the collegial body, can also allow additional agendas or items to be added to a meeting anytime after the initial notice and posting of agendas should he or she determine that the addition is for “good cause.”19 Traditionally, that determination responds to a written request from the entity in need of adding an action item to its agenda. The rationale for accepting a good cause item to add to an agenda is set forth in writing by the governor and posted on the Web site. The addition of a good cause item is still subject to adequate notice, which arguably should be made with no less than the time sufficient to allow any interested member of the public anywhere in the state to travel to Tallahassee to attend the meeting.20 The same should be said for cabinet meetings held on an emergency basis.
Art. IV, §3 of the Florida Constitution states the lieutenant governor shall become governor upon a vacancy in the office of the governor. A Florida statute further delineates the succession of governance in the state. With the cabinet now consisting of three elected officials, not until 2006 was the succession statute amended. Prior to that amendment, should anything have happened to the governor and the lieutenant governor, the State of Florida would have been governed by an appointed secretary of state.21
The succession statute has also historically set the protocol for seating in the cabinet meeting room and for who will chair a cabinet meeting in the governor’s absence.22 The governor and cabinet meetings are chaired by the governor, followed by the attorney general, then the chief financial officer, and the commissioner of agriculture. This protocol distinction under the smaller streamlined cabinet now seems to be historic trivia since this body will always conduct business with a quorum of three members.
To play this out further, it seems possible for the cabinet to meet without the governor in a capacity and on an item that by statute did not call for an extraordinary vote nor specifically require a vote of the governor in the affirmative. However, the new Florida Constitution now adds by specific reference cabinet entities that existed previously only by statute, and specifies the governor as “chair” of these entities.23 It is not clear if this specific constitutional reference could be used to argue against action by these referenced entities in the governor’s absence. It does seem clear that the new constitutional tie vote language and the new statutory statement of “majority” and “simple majority” under F.S. §14.2001 exists to resolve the voting action dilemma on agenda items which don’t call for a specified vote, and not to determine what constitutes a quorum.
Old Work, New Work
The November 2000 Bar Journal article on the Florida Cabinet system will still serve the reader well for a quick summary of most specific entities which make up or come before the governor and cabinet. The governor and cabinet still act as the Division of Bond Finance, the Florida Hurricane Catastrophe Fund Finance Corporation,24 the Administration Commission, the Florida Land and Water Adjudicatory Commission, the State Board of Executive Clemency, the Departments of Veterans Affairs, Highway Safety & Motor Vehicles, Revenue, and Law Enforcement, the Trustees of the Internal Improvement Trust Fund, the Power Plant Siting Board, and the Transmission Line Siting Board. Absent the commissioner of agriculture, the governor, the chief financial officer, and the attorney general make up the State Board of Administration.
Perhaps of some interest is the fact that the State Board of Administration, previously comprised of the governor, the comptroller, and the insurance commissioner, was the only cabinet entity referenced in the old state constitution, notwithstanding the reference to the governor and two cabinet members necessary for a grant of clemency in art. IV, §8 of the Florida Constitution.25 The State Board of Administration is now referenced in the new constitution as the governor, the chief financial officer, and the attorney general. Newly referenced in the constitution as a cabinet entity are the Department of Law Enforcement and the Board of Trustees of the Internal Improvement Trust Fund. Under the new Florida Constitution, the secretary of state is an appointee of the governor, the commissioner of education is no longer an independently elected cabinet official, and the governor and cabinet no longer sit as the State Board of Education. The cabinet offices of comptroller and insurance commissioner were combined into the new constitutionally elected office of chief financial officer, who is the head of the Department of Financial Services.
As part of the creation of the new CFO office, a new cabinet agency was created within the Department of Financial Services called the Financial Services Commission. The Financial Services Commission consists of the governor and cabinet sitting as the agency head of the Office of Insurance Regulation and the Office of Financial Regulation, the structural units of the commission. The Financial Services Commission acts as agency head for the specific purpose of rulemaking only. The law specifies that action by the Financial Services Commission shall consist of three affirmative votes.26 While the governor and cabinet appoint a commissioner for each of these offices, each commissioner acts independently from the governor and cabinet and is responsible for all the activities of his or her office with the exception of rulemaking. F.S. §20.121(3) specifically states that the commission shall not be subject to control, supervision, or direction by the Department of Financial Services in any manner including purchasing, transactions involving real or personal property, personnel, or budgetary matters. The new dynamics of the Financial Services Commission could be the subject of several articles. With the Florida insurance crisis, this has been an area of significant cabinet activity since 2003. The wisdom of a statutory model which left some adjunct insurance power and duties to the CFO and the remainder to the new commissioner of insurance, with the governor and cabinet responsible for the rules needed to regulate insurers, may reveal itself to be more ideal than practical.27
Finally, the Financial Management Information Board (FMIB), comprised originally of the governor, the insurance commissioner, and the comptroller, was updated to consist of the new four-member governor and cabinet.28 This board had the task of centralizing and updating various data programs which are key to state administration. However, in the 2007 legislative session, the legislature created a new governor and cabinet agency called the Agency for Enterprise Information Technology (AEIT). It appears that the AEIT was intended to take the lead in technology functions for the state, replacing the State Technology Office within the Department of Management Services and shifting responsibilities including a strategic plan that originally belonged to the FMIB.29
The AEIT was created for the purpose of developing recommendations, policies, and strategies to implement enterprise information technology services. The governor and cabinet serve as the agency head and a three-vote majority with the governor on the prevailing side is required to conduct business. The agency is created within the executive office of the governor but not subject to its control or supervision.30 While the intent of the legislature is well meaning, it is aimed at addressing a rapid and ever changing marketplace issue. Ideally, the governor and cabinet can find a successful executive director to help the executive branch as a whole achieve the economies and efficiencies of consolidated information technology while deferring to the significant constitutional duties of independently elected executive branch public officials with different technology needs. It does not appear from a review of the bill that any of the policies or contributions of this new agency apply to the legislature.
Over the years, the governor and cabinet have collected and identified numerous tasks and duties that they delegate to their executive directors and staff of the boards, commissions, or entities they comprise. These delegations of authority have been listed or codified by the various entities and are occasionally revisited for review or update if desired.31 The new cabinet structure left the existing delegations in place. The governor and cabinet may, however, at any time ask for an issue to be placed on an agenda regardless of whether they have previously delegated authority for action on that issue. Items of important public purpose or heightened controversy on duties that belong to them as the collective executive should always find their way to an agenda of the governor and cabinet.32
The appointment process is an area of intrigue to those of us working in the cabinet arena since it can’t help but bring the workings of the executive branch into full play. The governor and cabinet will, of course, make the appointments of those executive directors who work for them as defacto agency heads and also appointments to the various entities in which the cabinet participates or has some oversight. The literal language of the appointment process varies according to the applicable statute and in some cases puts the governor in the appointment driver seat with the cabinet doing nothing more than confirming his or her recommendation.33 Some appointments specify no vote requirement other than that of the governor and cabinet, in which case the new constitution tie breaker is applicable.
Other areas of appointment for the governor and cabinet are those of key individuals like the chief judge of the Division of Administrative Hearings, the appointment of the Parole Qualification Committee, and ultimately the appointment of the parole commissioners; the appointment of a representative to the Miami-Dade County Downtown Development Authority;34 appointments to the Babcock Ranch Corporation; appointments to the Board of the Workers Compensation Joint Underwriters Association; and others.
As mentioned previously, some of the voting requirement language, existing under the seven-member complement, has not been changed. What would have been a majority vote under the seven-member governor and cabinet now becomes a unanimous vote requirement. Choosing the commissioner of the Florida Department of Law Enforcement, for example, still reads as an appointment of the governor with the approval of three members of the cabinet. This is also true for the appointment of the executive director of the Department of Veterans’ Affairs and the secretary of the Department of Environmental Protection.35 This resulted in a leveling of the playing field, with power that previously belonged to the governor and a majority of the cabinet, now being shared equally between the governor and all three cabinet members.
way of final example, when choosing the commissioner of insurance or the commissioner of financial regulation, the statute requires three affirmative votes with both the governor and the chief financial officer on the prevailing side.36
The bottom line for the practitioner is that the language referencing the appointment vote, or any action by the governor and cabinet in any of their various capacities, is inconsistent. To be sure, practitioners will need to check the law relative to their specific issue before the governor and cabinet.
The power of the vote is no better illustrated than by a recent occurrence, when the governor and cabinet worked on their selection of a new executive director of the State Board of Administration. F.S. §215.441 specifies that this appointment must be by a majority of the board and the governor must vote on the prevailing side. At the January 15, 2008, meeting of the State Board of Administration, both the attorney general and the chief financial officer voted in favor of initiating a search with a salary range of $250,000 to $350,000 and the use of an outside firm to conduct the search at an approximate cost of $111,000. Both the attorney general and the CFO voted in favor of this proposal and the governor voted against it. The salary and search proposal carries for now, but under the current law, it is clear that the ultimate selection of an executive director of the State Board of Administration will be determined by the language that places the governor in the power seat.37
For anyone who loves Florida government, there are many stories that illustrate how Florida’s governor and cabinet system is truly a unique form of governance rich with history and flavor. It existed for decades in the complement of a seven-member body but is now in its infancy as a four-member body. How long the people of Florida will prefer this plural executive remains to be seen. Former Attorney General Bob Butterworth was surely not the first to recommend a change to the structure of Florida’s executive branch government when he attempted legislation early in his tenure as attorney general to reform Florida law enforcement. Butterworth was unsuccessful in that reform but later initiated the Citizens Commission on Cabinet Reform, which was created by the governor and cabinet. The commission presented a final report in 1995 to the governor, cabinet, and the Florida Legislature which recommended sweeping cabinet agency changes.38 These proposals were also never adopted by the legislature; however, they did help the governor and cabinet under the old system begin to delegate many routine and ministerial executive branch decisions to their executive directors and staff. Those delegations remain in place today with the new four-member body.
Not until the Constitution Revision Commission of 1998 did the voters chose to streamline the Florida Cabinet system.39 For those of us in the day-to-day workings of the executive branch government, we cannot help but sometimes wonder if the Florida Cabinet model of government best serves the people. The option of amending the Florida Constitution to eliminate the independently elected cabinet officials would make Florida stand in concert with all other states and fully empower the governor of the great State of Florida with supreme executive power, as the Florida Constitution suggests.40 It may simply be more politics to decide if one approach is any different than the other.
1 Edwin A. Bayo & Kent J. Perez, Florida’s Cabinet System Y2K and Beyond, 74 Fla. B. J. 68 (November 2000).
2 Recommendations of the 1998 Constitution Revision Commission were adopted by Florida voters and became effective in 2003.
3 Fla. Const. art. IV, §4(a), as revised in 1968 and subsequently amended in 2002.
4 WilliamMcCollum, The Florida Cabinet System — A Critical Analysis, 43 Fla. B. J. 156 (March 1969).
5 Allen Morris, The Florida Handbook (2005-2006).
6 WilliamMcCollum, The Florida Cabinet System — A Critical Analysis, 43 Fla. B. J. 156 (March 1969).
7 See, e.g., Fla. Stat. §14.202 (2001), as it existed prior to being amended in 2003.
8 See, e.g., Fla. Stat. §253.02(2), as it existed prior to being amended in 2003.
9 Fla. Const. art. IV, §4 (a), as revised in 1968 and subsequently amended in 2002.
10 Fla. Stat. §14.2001.
11 See the recommendations of the 1998 Constitution Revision Commission and the fascinating law review article by the Deborah K. Kearney, The Florida Cabinet in the Age of Aquarius, 52 Fla. L. Rev. 425 (2000). Deborah Kearney served as staff to the revision commission.
12 See, e.g., Fla. Stat. §253.02(2), as it existed prior to being amended in 2003.
13 H.B. 1627 of the 2003 legislative session.
14Allen Morris, The Florida Handbook (2005-2006).
15 Governor Bush called a special meeting of the governor and cabinet, as did Governor Crist, necessary to put in place emergency rules related to insurance following the hurricanes of 2004 and 2005 and to follow up on legislative changes made to insurance in the 2007 session.
16Allen Morris, The Florida Handbook (2005-2006).
17 Fla. Stat. §120.525.
18 The official Web site is cabinet.myflorida.com.
19 Fla. Stat. §120.525.
20 2007 Government in the Sunshine Manual, Vol. 29.
21 See Fla. Stat §14.055, as it reads today and as it existed prior to its amendment in 2006 by Ch. Law 2006-53.
22 Allen Morris, The Florida Handbook (2005-2006).
23 Fla. Const. art. IV, §4 (e),(f), and (g), as revised in 1968 and subsequently amended in 2002.
24 The Florida Hurricane Catastrophe Fund Finance Corporation actually consists of the governor, the CFO, the attorney general, and the director of the Division of Bond Finance of the State Board of Administration, and the senior employee of the State Board of Administration responsible for operations of the Florida Hurricane Catastrophe Fund. Fla. Stat. §215.555 (6)(d)2.b.
25 Fla. Const. art. IV, §4 as revised in 1968.
26 Fla. Stat. §20.121(3).
27 This model supposedly came about as a compromise to proposals put forth by the Honorable “General” Robert “Bob” Milligan who was the last elected public official to serve as Florida Comptroller and who expressed concerns about too much power being vested in one public official with regard to oversight and regulation of the insurance industry.
28 The commissioner of agriculture was added to this board in 2004. See Ch. Law 2004-390.
29 S.B. 1974, effective July 1, 2007.
30 S.B. 1974, effective July 1, 2007.
31 See, e.g., F.A.C. Rule 18 -21.0051, relating to the Board of Trustees of the Internal Improvement Trust Fund staffed by the Department of Environmental Protection that delegate review and decision making authority of the board.
32 This is the essence of the executive collegial function and by example is referenced specifically by the Department of Environmental Protection in their role as staff to the Board of Trustees of the Internal Improvement Trust Fund. See F.A.C. Rule 18-21.0051(4).
33 See, e.g., the appointment of the executive director of FDLE and Veterans Affairs, and the secretary of DEP. In these cases the governor appoints with the unanimous approval of the cabinet. Contrast these with the appointment of the executive director of the Department of Revenue and the Department of Highway Safety Motor Vehicles, both of which are simply appointments by the governor and cabinet. This essentially gives the governor the ability to prevail in a tie vote scenario. See Fla. Stat. Ch. 20, Organizational Structure.
34 This appointment by the governor and cabinet appears to be unique in the sense that it is codified in the City of Miami Charter and Code. Section 14:52 states that an appointment of one of the Downtown Development Authority Board members is to be made by the governor and cabinet. Author found no general law that references this appointment.
35 See note 33. Another appointment example of a regular vote is the director of the Division of State Lands who is appointed by the secretary of DEP subject to confirmation by the governor and cabinet, allowing the governor to carry a tie vote. Fla. Stat. §20.255 (3)(h).
36 See Fla. Stat. §20.121(3), which also specifies that any action by the governor and cabinet shall be by majority vote consisting of three affirmative votes.
37 At the time of submission of this article, the governor, the attorney general, and the chief financial officer have been dealing with their responsibilities as trustees of the State Board of Administration (SBA) and the troubled Local Government Investment Pool or LGIP. This is a mechanism that was created by statute to allow the State Board of Administration to manage short-term investments of counties and municipalities as provided by the Investment of Local Government Surplus Funds Act, Part IV, of Fla. Stat. Ch. 218. After the trustees of the SBA approved a plan to restructure the pool, protecting it from potential losses indirectly connected to the collapse of the subprime housing market, they began a national search for a new executive director / chief investment officer of the SBA This is a critical appointment for an individual who will be responsible for primarily managing the state of Florida’s tremendously large and successful pension fund. The Florida Retirement Pension Fund is the fourth largest in the nation at an approximate asset value of 190 billion dollars.
38 Final Report of the Citizens Commission on Cabinet Reform, 1995, presented to the governor, cabinet, and Florida Legislature.
39 Proposed Revision number 8 by the 1998 Constitution Revision Commission, Restructuring the State Cabinet, appeared on the November 1998 ballot.
40 Fla. Const. art. IV, §1, as revised in 1968.
Kent J. Perez is currently the director of cabinet affairs for the Office of the Attorney General in Tallahassee. He formerly served as chief cabinet aide to Governor Jeb Bush. Mr. Perez also served as assistant deputy attorney general to Attorney General Richard Doran and chief cabinet aide to Attorney General Bob Butterworth. Mr. Perez earned a J.D. from Florida State University College of Law in 1982, and previously practiced litigation in the Office of the Attorney General Division of Economic Crimes.
The opinions and views expressed in this article do not represent the opinion and views of the Office of the Attorney General.
This column is submitted on behalf of the Government Lawyer Section, Robert Jay Krauss, chair, and Clark Jennings, editor.