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Gov. Rick Scott's attorneys assert his 'supreme executive power' over agency rules

TALLAHASSEE — The "supreme executive power" granted the governor by the state Constitution is among the reasons Gov. Rick Scott has the final say over rules developed by state agencies, according to documents filed Thursday in the Florida Supreme Court.

The argument came in response to a petition filed March 28 by Rosalie Whiley of Opa Locka. She charges Scott took over the Legislature's constitutional authority to direct rulemaking when he signed an executive order requiring his approval for all new rules. The freeze, she said, kept her from applying for food stamps online.

An 80-page response from the Governor's Office cites similar executive orders from President Barack Obama and former Democratic Gov. Lawton Chiles as proof that Scott has the right to approve or reject rules created by agency heads to implement laws passed by the Legislature.

"It has become common practice for chief executives to review and assert control over agency regulatory activity," attorneys for Scott wrote.

There's also this quote from Alexander Hamilton's Federalist papers: "A feeble executive implies a feeble execution of government."

Scott's attorneys argue that because agency heads who write rules are hired and fired by him, he can ask that the rules reflect his priorities. That understanding, documents say, can be spelled out informally or through an executive order.

The rules freeze was one of Scott's first acts as governor, included in an executive order signed less than an hour after his Jan. 4 inauguration.

More than 900 rules on their way to approval were affected. Many have received an okay through Scott's newly created Office of Fiscal Accountability and Regulatory Reform. But some are still under review.

The idea is to get rid of duplicative and overly burdensome rules that hinder business growth.

But attorneys for Whiley, whose legal team includes former Florida State University president Sandy D'Alemberte, argue that the order also covers rules "unrelated to its underlying objective," and has paused rules "urgent to protect vulnerable low-income citizens of Florida."

As an example, they note that one of the stalled rules would make it easier for Whiley, who is blind, to apply for food stamps online. The rule has since been approved by the governor's regulatory reform office, but hasn't yet gone into effect.

Whiley wants the executive order revoked.

Three groups — the Audubon Society, Disability Rights Florida, and the Academy of Florida Elder Law Attorneys and the Elder Law section of the Florida Bar — have filed briefs with the Supreme Court supporting Whiley.

Among other things, the Audubon Society highlights a rule intended to protect Miami's Biscayne Bay that's on hold.

"This delay only exacerbates and aggravates the current degradation of Biscayne Bay's vulnerable ecosystem and aggravates and increases the difficulty (and cost) of restoration," court papers say.

Attorneys for Scott counter that his executive order had no impact on that rule because it's the jurisdiction of the South Florida Water Management District, which does not report directly to the governor. The agency, though, is voluntarily participating in the governor's review process, court documents say.

Disability Rights Florida argues the rulemaking freeze suspends consideration of extending Medicare waiver benefits to some people with autism, is delaying discussion of treatment for at-risk juveniles with emotional disturbances, and slows implementation of rules for the Florida Division of Vocational Rehabilitation.

The elder law attorneys say the rule suspension is slowing payment of some Medicaid benefits.

Janet Zink can be reached at jzink@sptimes.com or (850) 224-7263.

Gov. Rick Scott's attorneys assert his 'supreme executive power' over agency rules 05/12/11 [Last modified: Friday, May 13, 2011 9:30am]
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