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Supreme Court says Governor's rule freeze is unconstitutional

By Regan McCarthy

http://stream.publicbroadcasting.net/production/mp3/wfsu/local-wfsu-982876.mp3

Tallahassee, FL – The Florida Supreme Court says an executive order issued by Governor Rick Scott oversteps his constitutional authority. As one of his first actions after taking office Scott froze the rule making authority of state agency heads. Regan McCarthy reports Scott says he'll abide by the court's ruling, but likely won't stop the review of rules already in place.

Hours after he was sworn into office Florida Governor Rick Scott created the Office of Fiscal Accountability and Regulatory Reform, or O-FAR. It's an agency that reviews all proposed and existing rules made by state agency heads and was part of Scott's 7,7,7 plan a 7 step blueprint to bring 700-thousand new jobs to the state in 7 years. Scott says reducing regulations is an important part attracting employers to the state and he says the state Supreme Court's ruling puts a damper on his plans.

"If we don't really continue to think about the regulations killing jobs in our state we're not going to continue growing jobs."

Scott says to attract jobs from private sector companies the state needs to have competitive tax rates and fees, and a pro job attitude. And he says he disagrees with the basis for the Supreme Court's ruling because he says he thinks he should be allowed to oversee his employees.

"I mean think about it. The secretaries of these agencies report to me. They work for me at will, and then I'm not supposed to supervise them? It doesn't make any sense."

Sandy D'Alembert is the lawyer who sued the governor for trying to unilaterally control rule making. He says he agrees that the agency heads serve at the governor's pleasure. D'Alembert spoke on that point during oral arguments for the case in June. He says one of Scott's jobs is to oversee his employees.

"What the respondent argues is based on the idea the he has the power to remove people who serve at his pleasure. And we agree that he has that power. Now let's think about that for a second. That's a uniquely executive power.

D'Alembert argues that rule making is a legislative power. Charles Trippe was Scott's lawyer in the case.

"We've examined the regulation. We respectfully disagree with it, but we think that the role of O-Far going forward as to existing regulations, and that has been dealt with by the legislature already, will be essentially unimpaired."

Trippe He says the governor's office will accept the supreme court's ruling, but O-FAR will continue to function. The way O-FAR's reviews proposed regulation will change, but Trippe says as he understands the court's ruling O-FAR will be able to continue reviewing existing rules just as it has been. And D'Alembert says he has no problem with the government examining rules that are already in place so long as O-FAR isn't allowed to remove them without a proper hearing. D'Alembert says his concern in bringing the case forward was to ensure transparency.

"The concern was that a very important process that has been set up in the law, a process that allows citizens to have a conversation with the government about what the rules are going to be that impact the citizens. That process has been cut off."

D'Alembert says the ability for citizens to participate in or follow rule making in a conversational way is an important one. He admits the governor will continue to have a hand in rule making and says that's fine. For example, he says, the governor is welcome to join in the rule making hearings because he is after all a citizen and D'Alembert says private conversations about rule making could also happen behind closed doors, but he doesn't make much of it.

"We concede the fact that the governor can have conversations. We concede the fact that he can fire agency heads. But please recognize there are consequences when you do that. As the court said just because you can fire someone doesn't mean you can control everything they do."

He says O-FAR completely blocked any transparency in the rule making process that might have previously existed.

"You don't have a chance to submit anything to O-FAR, citizens have the right to submit things to rule making agencies, that's part of the process. You don't know who's making a decision. That's not transparency. You don't know why they're making the decision. They never explained that.

D'Alembert says he's optimistic that the governor's appreciation of transparency is deepening. The Governor's office says Scott will likely issue a future executive order to define the role the O-FAR will serve in the wake of the Supreme Court ruling.