Charlotte County v. IMC-Phosphates Co., 1D02-1366.

• Decision Date: 22 August 2002
• Docket Number: No. 1D02-1366.,1D02-1366.
• Citation: 824 So.2d 298
• Parties: CHARLOTTE COUNTY, Florida, Petitioner, v. IMC-PHOSPHATES COMPANY; Florida Department of Environmental Protection; Manasota-88, Inc.; Peace River/Manasota Regional Water Supply Authority; Environmental Confederation of Southwest Florida; Lee County; Sarasota County; DeSoto Citizens Against Pollution, Inc.; Alan Behrens; and Joseph Fernandez, Respondents.
• Court: Florida District Court of Appeals

824 So.2d 298

CHARLOTTE COUNTY, Florida, Petitioner, v. IMC-PHOSPHATES COMPANY; Florida Department of Environmental Protection; Manasota-88, Inc.; Peace River/Manasota Regional Water Supply Authority; Environmental Confederation of Southwest Florida; Lee County; Sarasota County; DeSoto Citizens Against Pollution, Inc.; Alan Behrens; and Joseph Fernandez, Respondents.

No. 1D02-1366.

District Court of Appeal of Florida, First District.

August 22, 2002.

Edward P. de la Parte, Jr., David M. Caldevilla and Vivian Arenas of de la Parte & Gilbert, Tampa; Martha Burton and Renee Francis Lee, Charlotte County Attorney's Office, Port Charlotte, for petitioner.

Steve L. Brannock of Holland & Knight, Tampa, Roger W. Sims of Holland & Knight, Orlando, Susan L. Stephens of Holland & Knight, Tallahassee, and Patricia Petruff of Dye, Deitrich, Prather, Petruff & St. Paul, Bradenton, for respondent IMC-Phosphates Company.

Teri Donaldson, General Counsel, Maureen M. Malvern, Senior Assistant General Counsel and Betsy Hewitt, Deputy General Counsel, Tallahassee, for respondent State of Florida, Department of Environmental Protection.

Aliki Moncrief, Earth Justice Legal Defense Fund, Tallahassee, for respondents Manasota-88 and Environmental Confederation of Southwest Florida.

Douglas Manson and David Pearce of Carey, O'Malley, Whitaker & Manson, Tampa, for respondent Peace River/Manasota Regional Water Supply Authority.

Jorge L. Fernandez, County Attorney, and Gary K. Oldehoff, Assistant County Attorney, Sarasota, for respondent Sarasota County.

James G. Yaeger, Lee County Attorney, and Thomas L. Wright, Assistant County Attorney, Fort Myers, for respondent Lee County.

Alan R. Behrens, President, Arcadia, for respondents DeSoto Citizens Against Pollution, Inc., and Joseph Fernandez.

WOLF, J.

Charlotte County petitions this court for a writ of prohibition, seeking review of an order of David Struhs, as Secretary of the Florida Department of Environmental Protection (DEP), which denied the county's motion for disqualification.¹ We conclude that the county's motion was facially sufficient and should have been granted; therefore, we grant the petition for writ of prohibition and quash the order denying the motion.

IMC-Phosphates Company applied to DEP for an environmental resource permit to conduct phosphate mining activities on property known as the Manson Jenkins tract. DEP announced its intention to issue the permit, and Charlotte County and others opposed to the mining petitioned for a formal administrative hearing pursuant to sections 120.569 and 120.57, Florida Statutes. After a four-week hearing, an Administrative Law Judge (ALJ) issued a 117-page order which recommended that the permit be issued. On that same day, Secretary Struhs issued the following statement:

We have felt all along that our actions were fully consistent with state laws and Department rules. The public can feel comforted in the knowledge that a totally impartial arbiter has found that the will of their elected representatives is being carried out by the executive branch. The professionals at DEP have dedicated their careers to protecting the environment and their good-faith efforts have been affirmed. At the same time, we constantly look at ways to do better in all areas. As we pledged to the Chairman of the House Natural Resources and Environmental Protection Committee, Rep. Harrington, an internal review of the phosphate mining process is ongoing. With the guidance now provided by Judge Stampelos, that review can now be targeted and accelerated. In the end, we hope to have a process that will serve the public even better.

Charlotte County moved for Secretary Struhs' disqualification based on this statement, arguing that it reasonably believed that it could not receive a fair and impartial hearing from the agency head on its exceptions to the recommended order. When the motion was denied, the county filed a petition for writ of prohibition which we now have for review.

Section 120.665, Florida Statutes, provides for the disqualification of an agency head for bias, prejudice, or interest. There is no claim that Secretary Struhs has an interest in the litigation, but the petitioner alleges, and we agree, that its motion made a legally sufficient showing of bias or prejudice. The question presented is whether the facts alleged would prompt a reasonably prudent person to fear that they will not obtain a fair and impartial hearing. Department of Agriculture v. Broward County, 810 So.2d 1056, 1058 (Fla. 1st DCA 2002). It is not a question of how the judge actually feels, but what feeling resides in the movant's mind and the basis for such feeling. Id. The judge may not pass on the truth of the allegations of fact, and countervailing evidence is not admissible. Id. at 1059.

We recognize, of course, that an agency head may serve investigative, prosecutorial, and adjudicative roles in the same dispute, and that this blending of roles does not, in and of itself, create an unconstitutional risk of bias. See Bay Bank & Trust v. Lewis, 634 So.2d 672, 675 (Fla. 1st DCA 1994). Nevertheless, an impartial decision-maker is a basic component of minimum due process in an administrative proceeding. See Cherry Communications, Inc. v. Deason, 652 So.2d 803, 804-805 (Fla.1995). Therefore, in any motion to recuse the head of an administrative agency, the practical recognition of the numerous roles played by the agency as well as the agency head (investigator, prosecutor, adjudicator, and political spokesman) must be weighed against a reasonable fear on the part of the movant that it will not receive a fair and impartial hearing.

The timing and content of Secretary Struhs' statements are of particular significance to our conclusion that Charlotte County is entitled to have the secretary recused. At the time the statements in question were made, the secretary was not acting in the role of investigator, prosecutor, or a person responsible for determining probable cause. The statement was made on the day the ALJ issued the recommended order, and the statement specifically addressed the merits of the ultimate decision: whether the agency had followed the applicable law in granting the permit. The statement given at this time was not mandated as part of any of the secretary's statutory duties, but can only be classified as a statement made as part of his political duties. A gratuitous statement such as this is far different from an agency making a statutorily mandated preliminary determination involving different standards of proof and persuasion than those involved in the ultimate decision.

Pursuant to Florida's statutory scheme, after the recommended order issued, the secretary assumed the role of adjudicator of the legality of the hearing officer's action. In this role, an agency head does not have as much discretion as a trial judge; rather, the agency head sits in a role similar to an appellate judge, determining whether the findings of fact are supported by competent substantial evidence and overturning incorrect applications of law when it explains its reasons for doing so.² The timing and content of Secretary Struhs' statement were inconsistent with his role of adjudicator.

Issuing the statement on the same day that the ALJ issued his recommended order could lead a reasonable person to conclude that, for all practical purposes, the agency head regarded the issuance of the recommended order as the conclusion of the litigation, with the forthcoming final order a mere formality. The agency head's statement went to the very heart of the issue which would be resolved in considering exceptions and issuing a final order —whether department staff correctly concluded that the permit should issue. In this case, the agency head's perceived need to act in his political capacity was outweighed by the need for parties to believe they are involved in a fair process.³ These factors, along with others not discussed in this opinion, compel us to find that the motion was legally sufficient and should have been granted.

The petition for writ of prohibition is granted. Secretary Struhs' order denying the motion for disqualification is quashed, and the cause is remanded with directions that the motion be granted.

PETITION GRANTED.

BENTON, J., CONCURS, and KAHN, J., DISSENTS WITH OPINION.

KAHN, J., dissenting.

In an act with no precedent in Florida case law, the majority issues a writ of prohibition stripping the Secretary of the Florida Department of Environmental Protection (DEP) of his duty and obligation to serve as the agency head in review of the recommended order issued by an administrative law judge in a regulatory matter. I would deny this dramatic remedy. Respectfully, the majority has superimposed the standard for disqualification of a judge (including an administrative law judge) upon the distinct statutory standard that controls disqualification of an agency head. Moreover, even under the standards applied to judges in cases where judges are accused of preliminary comment on the merits of a case, the present facts would not meet the disqualification standard.

The following comments from the Secretary's press release in question apparently cause the majority concern:

We have felt all along that our actions were fully consistent with state laws and Department rules.... The professionals at DEP have dedicated their careers to protecting the environment and their good faith efforts have been affirmed.

The question before us is not whether the Secretary, as a practical matter, would have been better advised to reserve these remarks for the conclusion of the case. The question is, rather, whether this is one of those rare instances where a court should intervene in the workings of the administrative process within the executive branch of government. Nothing in the press release expresses a bias or prejudice against the petitioner.

I.

The statute upon which...