Chief Judge exits administrative hearings agency

John MacIver has resigned as chief judge of the Florida Division of Administrative Hearings and accepted a position as general counsel for state Chief Financial Officer Jimmy Patronis, MacIver confirmed Tuesday.

MacIver, an ally of Gov. Ron DeSantis, was appointed to the Division of Administrative Hearings post by the Governor and two Republican members of the Florida Cabinet — Patronis and Attorney General Ashley Moody — in September.

Agriculture Commissioner Nikki Fried, the lone statewide elected Democrat, opposed MacIver’s selection, saying he lacked the experience to oversee the agency.

MacIver, the head of the local chapter of The Federalist Society, had been a member of The Florida Bar for seven years before his appointment last year. He replaced Robert Cohen, who had been the chief judge since 2003.

The Florida Senate did not confirm MacIver during the legislative session that ended in March, and the Governor and Cabinet would have had to reappoint him for MacIver to keep the job.

“Rather than pursuing that reappointment, I saw this opportunity to move forward and do a good job,” MacIver, whose resignation was first reported by Politico, told The News Service of Florida on Tuesday evening. “I’m not stepping down. I’m moving on and up.”

The Division of Administrative Hearings is the go-to place for citizens and businesses to redress grievances against state agencies. DOAH handles cases ranging from big-money fights involving gambling operators and medical-marijuana companies to a dispute about bakers who refused to make a pastry with an anti-gay slogan.

Decisions issued by administrative law judges are often the first step in lengthy court battles challenging agencies’ rules or actions.

During a meeting last fall, MacIver told DeSantis and the Cabinet his goal would be to hire “the correct ALJs (administrative law judges) who have the correct judicial philosophy,” one that he called “apolitical.” The Federalist Society in Florida and nationally is perhaps the most-prominent conservative legal organization.

MacIver worked for former Gov. Rick Scott’s administration as a lawyer at the Department of Business and Professional Regulation before joining Scott’s legal team. DeSantis, a Harvard Law School graduate, kept MacIver on as deputy general counsel after the governor was elected in November 2018.

When asked about MacIver’s departure and whether the Governor had intended to reappoint him or reopen the selection process, DeSantis spokeswoman Helen Ferré said the governor received MacIver’s resignation letter on Monday.

“We wish him well in his new endeavors,” she said in an email Tuesday evening.

In a telephone interview, MacIver called his new post as Patronis’ general counsel “a better job.”

“I think the CFO is a really decent guy and has a lot of integrity. I’m excited to go to work for him,” he said.

MacIver shared DeSantis’ brand of conservative jurisprudence but has been embroiled in a behind-the-scenes controversy following the suspension of a veteran administrative law judge.

MacIver created a stir in the tightly knit administrative-law community in April, following the five-day suspension of Administrative Law Judge John Van Laningham for “insubordination and misconduct.”

Van Laningham was sanctioned after accusing MacIver of making what are known as improper “ex parte communications” when reviewing an order in a case about a South Florida horse track.

The suspension, issued by administrative law judges Li Nelson and Gar Chisenhall on March 26 and approved by MacIver, stemmed from two footnotes Van Laningham included in a March 13 recommended order in a case involving Calder Race Course Inc.

The footnotes said MacIver began reviewing judges’ orders and making comments about them before they were rendered. MacIver instituted the reviews shortly after his appointment as chief judge and division director last fall.

Van Laningham’s footnotes also raised questions about whether MacIver’s comments “are, or might be, ex parte communications prohibited by” a section of Florida administrative law. An ex parte communication generally involves someone discussing a case with a judge without the knowledge of each party in the case.

Van Laningham appealed the suspension, calling the discipline a “gross abuse of power.”

“If the agency succeeds in this proceeding, any agency director will be able to impose his or her will on independent-thinking ALJs, influence the outcomes of pending cases, and prohibit ALJs from disclosing his or her substantive involvement upon threat of suspension or dismissal,” lawyers for Van Laningham wrote in the appeal. “The concept of ALJ independence enshrined in the Florida Administrative Procedure Act will be shattered forever.”

In his resignation letter Monday to DeSantis, MacIver said he was “proud of the progress” made at the agency during his tenure.

“The procedures that provide oversight, review, and accountability of our administrative law judges, and the dictate that the mission of our agency is to provide impartial adjudication grounded in the plain meaning of the legal text have had a positive and I believe lasting effect on the agency,” he wrote. “That effect has received overwhelmingly positive reception within the administrative law community.”

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Republished with permission from the News Service of Florida.