St. Thomas Law Review


Eric H. Miller

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One of the hallmarks of the Florida Administrative Procedure Act is the creation of a pool of hearing officers independent from any agency or the direct control of any political figure. Since its substantial revision in 1974, the statute has always provided for the selection and hiring of administrative law judges ("ALJ") by the Director of the Division of Administrative Hearings. ALJs hear almost every type of case, from licensure denials to environmental permitting challenges. In most cases, the ALJ weighs the evidence and legal arguments before recommending findings of fact, conclusions of law, and proposed final disposition to the agency referring the case. However, ALJs also have statutory authority to enter final, binding orders in challenges to agency rulemaking. Entering a final, binding order, subject only to judicial appeal, is an exercise of the state's sovereign power and authority. Under longstanding Florida constitutional decisions, only an "officer," not a public employee, may be delegated part of the sovereign power. This Article first examines Florida law on the nature of offices, and officers, including the constitutional requirements for appointment or election and tenure. The analysis then turns to whether ALJs are officers or employees and, if they are officers, whether the present system of their employment should be reconsidered. This issue is timely, for in the 2017- 2018 legislative sessions the Florida House of Representatives passed bills requiring ALIs to be appointed to four-year terms by the Governor and Cabinet from candidates nominated by an independent commission.