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Gov. Ron DeSantis said Tuesday he may try to bypass Cabinet approval of his next environmental secretary to avoid a veto by top Democratic rival, Agriculture Commissioner Nikki Fried.
The decision comes after the Republican governor tried and failed to get the Legislature to end the Cabinet’s control over appointing the secretary of the Department of Environmental Protection and other agencies over which the governor must share executive oversight.
Former DEP Secretary Noah Valenstein resigned from the position effective June 4. During a Cabinet meeting Tuesday, Fried, the only Democrat, asked the governor when he intends to name a replacement.
“It’s an executive appointment,” DeSantis responded, his voice getting agitated. “So, that’s our prerogative, and we’ll do it when we want to, and we’ll let folks know about it.”
Fried, who has announced she is challenging DeSantis for governor in 2022, noted that the appointment requires unanimous approval of the three other members of the Cabinet, which includes her. The governor is the fourth member of the Cabinet.
But DeSantis responded that the Constitution appears to be in conflict with state statute when it says that the secretary must have approval of the Cabinet as well as confirmation of the Senate. He suggested that the role only needs approval from the Legislature, contradicting more than 50 years of precedent.
“I think if you actually look at the Constitution, it says either the Cabinet or the Legislature, the Senate,” DeSantis said. “The statute said both, but there’s an argument that it conflicts and that it would be one or the other. My sense would be the Legislature would retain their authority rather than give the Cabinet authority, so that would be a live issue potentially, if we end up with a conflict.”
Florida statutes say: “The head of the Department of Environmental Protection shall be a secretary, who shall be appointed by the Governor, with the concurrence of three members of the Cabinet. The secretary shall be confirmed by the Florida Senate. The secretary shall serve at the pleasure of the Governor.”
Legislature didn’t go along
For the past two legislative sessions, DeSantis has tried and failed to get legislators to revise the law to remove the requirement that the Cabinet approve his appointment of the DEP secretary, the head of the Florida Department of Law Enforcement and the secretary of the Department of Veterans Affairs. This year, while the proposal, HB 1537, passed the full House, it never got a hearing in the Senate.
During a break from the meeting, Fried told reporters that in order to replace Valenstein, the governor “is going to have to deal with me in order for it to be approved.”
“The Department of Environmental Protection is one of the most essential elements here in state government,” Fried said. “It protects our wetlands, our waterways, our natural resources. This is fundamental to who we are as Floridians.”
After the meeting, Fried sent out a news release saying DeSantis chose to “defensively misquote state law.”
“The law is very clear,’’ she wrote. “Three Cabinet members must agree with the Governor’s appointment, in addition to confirmation by the Florida Senate. The Governor is obligated to follow the law — but it’s also clear he will use our laws to punish anyone with whom he disagrees.”
In an email to the News Service of Florida, DeSantis spokesperson Christina Pushaw said DeSantis based his comment on part of the state Constitution dealing with the other executive departments, those under the governor’s sole jurisdiction. That part of the Constitution says: “When provided by law, confirmation by the Senate or the approval of three members of the Cabinet shall be required for appointment to or removal from any designated statutory office.”
Decades of power-sharing precedent
For decades, Florida governors have had to abide by the state Constitution that requires the governor to share his executive power with the other members of the Cabinet. During this term, former Gov. Jeb Bush successfully attempted to consolidate power under the governor by pushing for and getting approved a constitutional amendment removing the education secretary from an elected post to one appointed by the governor.
DeSantis’ attempt to streamline his power under HB 1537 also would have removed the Cabinet as the joint head of the Department of Highway Safety and Motor Vehicles with that agency placed solely under the governor.
“The founders very consciously declined to sap the executive’s strength by dividing the executive power and instead vested the executive power in one elected individual, believing that an energetic executive is the leading character in the definition of good government,” the opening of the bill states.
But Florida’s divided executive is a vestige of Civil War Reconstruction, when the state Constitution placed huge powers in the hands of the governor, who was a Republican. Soon, as Southern Democrats resumed legislative control in the late 1880s, they began diluting the governor’s power by giving Cabinet officers additional, collective, duties beyond those established in the Constitution. By the time the Florida Constitution was rewritten in 1968, the governor and Cabinet, in various combinations, served on 35 different boards and commissions.
Valenstein, the former DEP head, was approved under that shared arrangement. He was initially appointed to the $155,530-a-year job by former Gov. Rick Scott in May 2017 and was reappointed two years later when DeSantis was elected. Both appointments received the support of the Cabinet, currently made up of Attorney General Ashley Moody, Chief Financial Officer Jimmy Patronis and Fried.
Valenstein was the only one of 140 applicants to be interviewed for the job by Scott and the prior Cabinet lineup — former Agriculture Commissioner Adam Putnam, former Attorney General Pam Bondi and former Chief Financial Officer Jeff Atwater — in 2017.
By 2019, Moody, Patronis and Fried backed Valenstein’s reappointment by DeSantis.
Shawn Hamilton, the agency’s deputy secretary for land and recreation, was named interim secretary on June 4.
Information from the News Service of Florida was used in this report.
Mary Ellen Klas can be reached at firstname.lastname@example.org