House nears vote to ease appointment process after battle over Gov. DeSantis’ DEP Secretary pick

Shawn Hamilton

The House is ready to consider legislation that would simplify the appointment process for the state’s top environmental official and other agency heads, part of a political showdown in the 2022 gubernatorial race.

Currently, the Governor’s pick for Secretary of the Department of Environmental Protection (DEP) requires three Cabinet members to approve the nominee. That threshold effectively requires the Cabinet’s unanimous consent.

Legislation carried by Sarasota Republican Rep. Tommy Gregory (HB 1295) to change the approval process emerged from the House Judiciary Committee Wednesday, preparing it for the House floor despite opposition from Democrats. The bill would instead give the Governor the choice to seek the Cabinet’s unanimous support or the Senate’s majority support.

Controversy around the DEP Secretary appointment process originated last summer when Gov. Ron DeSantis appointed Shawn Hamilton as interim DEP Secretary. He later moved to make that appointment permanent. Agriculture Commissioner Nikki Fried, a Democratic member of the Cabinet looking to challenge DeSantis in this year’s gubernatorial contest, contends the Governor lacks the legal authority to appoint Hamilton without the Cabinet’s unanimous support and without a public interview.

But during a Cabinet meeting in June, when Fried complained about the Governor’s decision to roll forward with Hamilton’s appointment, the Governor highlighted a conflict between Florida’s statutes and the Florida constitution.

Florida statutes say DEP Secretary appointments require three Cabinet members’ support and the Senate’s confirmation. The constitution, however, outlines that executive department officials require either three Cabinet members’ support or the Senate’s confirmation.

Since the Cabinet was compressed to just three members in 2003, the three-member threshold for the DEP Secretary’s appointment has effectively meant the Secretary needs the Cabinet’s unanimous consent.

Senators earlier this month passed an analogous version (SB 1658), sponsored by Fernandina Beach Republican Sen. Aaron Bean, by a 26-12 vote as Democratic Sens. Jason Pizzo, Darryl Rouson and Linda Stewart broke party lines to side with the Republican majority.

The House Judiciary Committee amended Gregory’s bill to align it with Bean’s version, including moving the start date on the measure to when it becomes law.

Unlike in the Senate, where Bean focused on the constitutional requirements of the appointment process, Gregory argued DEP is an executive agency and therefore should have an appointment process more like the state’s other executive agencies.

“What we’re doing here is not unusual,” Gregory said. “It’s more efficient, more appropriate for executive-level agencies to only be appointment by the Governor and confirmation by the Senate.”

St. Petersburg Democratic Rep. Ben Diamond said lawmakers shouldn’t consider who is currently serving in the roles when they contemplate the proposal. The current measure asks the Governor to “pick their poison,” possibly bypassing Cabinet officials’ interests in environmental protection.

“Having the Secretary actually have to respond to their concerns through the appointment process, I think is the thing that we shouldn’t change,” Diamond said.

Senate President Wilton Simpson, a Trilby Republican who is the frontrunner to succeed Fried, told reporters following the Senate vote that he agrees completely with the bill. The measure is about the process, and it doesn’t matter who is on the Cabinet.

“If I were to win, in theory, I’m taking away some of the influence I would have over that member,” Simpson said. “I think the Governor should have that bill the way that we got it. I think the state of Florida should have that bill the way it was done today.”

The proposal also would drop a similar three-vote threshold from the Cabinet to a majority-vote threshold for the heads of the Florida Department of Law Enforcement and the Department of Veterans Affairs. The Senate still would be asked to confirm the appointments.

Additionally, the measure includes a double jeopardy provision for the DEP Secretary. It would prevent, for one year, the Governor from reappointing the same individual to the DEP Secretary position if the person’s appointment went through the Cabinet and the Cabinet failed to approve the Governor’s nominee.

A 2015 settlement agreement dictates nominees must go through a public interview before the Cabinet votes on the nominee. That settlement arose from a legal dispute against DeSantis’ predecessor, Rick Scott, demanding more openness for Scott’s appointments.

In a prepared statement, Fried said she supports Hamilton’s appointment but opposes the way DeSantis has approached it. Checks and balances exist for a reason, she continued, including to protect against unilateral appointments by the Governor.

“Instead of simply bringing this nomination before the Cabinet, Governor DeSantis and his cronies are seeking to change the law,” she said. “This is yet another power grab by the Governor intent on consolidating power, changing laws to crack down on any potential dissent or opposing views, in a dictatorial fashion that only serves his ambitions — not the people of Florida.”