KEYWORDS: z4ILA /A,
De ember 27, 1977
ME 0 TO: LMB
RE: Unilateral Action by One Member
of a Collegial Body
The question presented is: If a ten member board with
a one man chairman has a scheduled monthly meeting, and an
ap location pending before the board, scheduled for hearing
before the full board on January 4, 1978, and a Motion for
Continuance and a request for issuance of a subpoena to take
a deposition is filed with the board, may the chairman rule
on the Motion for Continuance? May the chairman issue the
This research is confined to F.S. 120. The researcher
assumes that SWFWMD would follow F.S. 120.
The issue presented is whether a chairman may take uni-
lateral action without convening the board and without a rule
authorizing the chairman to take unilateral action.
1. Nowhere within F.S. 120 is the chairman authorized
tc take any action without convening the board and winning their
approval or without a rule authorizing the chairman to act.
2. The chairman may not issue the subpoena. F.S. 120.58
( ) (b).
1. There is no provision within F.S.120 that allows the
chairman to rule on the Motion for Continuance.
2. An agency or its duly empowered presiding officer or
a hearing officer has the power to swear witnesses and take their
testimony under oath, to issue subpoenas upon the written request
of any party or upon its own motion...
December 20, 1977
ME 0 TO: LMB
FR M: MHG
RE: Unilateral action that may be taken
by the chairman of SWFWMD or a hearing
An agency or its duly empowered presiding officer has
the power to issue subpoenas upon the written request of any
party or upon its own motion. F.S. 120.58.
A hearing examiner who is competent by reason of train-
ing or experience may preside over any quasi-judicial hearing
as authorized by F*.S. 373.126.
The hearing shall be conducted in accordance with pro-
visions of F.S. 120.
The hearing examiner is authorized to:
1. Require the production of books, papers or
2. Issue subpoenas to compel attendance and
testimony of witnesses.
3. Cause a rule nisi to be issued requiring
persons to obey production requests or
4. Hold prehearing conferences for the purpose
of consolidating applications.
a. Select dates for hearings satisfactory
to the parties.
b. Explore methods to eliminate surprise
c. Shorten the hearing.
d. Make arrangements for the parties to
exchange written qualifications of
professional expert witnesses and maps,
charts, engineering analysis and other
items contemplated for introduction as
5. This conference is in advance of the hearing and
is to encourage stipulations among the parties.
6. The hearing examiner is authorized and may only
make recommended orders to the governing board,
which orders shall include findings of fact.
The Division of Administrative Hearing employs fulltime
hearing officers to conduct hearings per F.S. 120.65. Generally,
a bearing officer would be a member of the Florida Bar in good
standing for the proceeding three years. Otherwise, the Director
of the Division of Administrative Hearing shall have the dis-
cretion to designate qualified lay persons to conduct hearings.
If a lay person is so designated, the Director shall assign a
hearing officer to assist in the conduct of the hearing and to
rule upon proffers of proof, questions of evidence, dispositions
of procedural requests and similar matters.
F.S. 120.53(1)(c) states each agency shall adopt rules
of procedure appropriate for the presentation of arguments con-
cerning issues of law or policy, and for the presentation of
evidence on any pertinent fact that may be in dispute.
F.S. 120.68(10) states that the Court shall not substitute
its judgment for that of the agency as to the weight of the evi-
dence on any disputed finding of fact.
F.S. 120.53(d) states that after the agenda has been made
available, change shall be only for good cause, as determined by
the person designated to preside, and stated in the record.
RE: ACTIONS BY ONE MEMBER OF COLLEGIAL BODY
The lecture outline prepared by Arthur J. England, Jr.,
Justice, Florida Supreme Court, on page 7 (e)(iv), action
by one member of Collegial Board City of Titusville vs.
PERC, 330 So.2d 733(Fla. 1 DCA 1976).
Though it is not clear as to the Courts position of
one member of a collegial body taking action, it appears
to be similar to Florida Statute 120.58(1)(e) which states:
If a majority of those/ who are to render the final
order have not heard the case or read the record,
a decision adverse to a party other than the agency
itself shall not be made until a proposed order is
served upon the parties and they are given an oppor-
tunity to file exceptions and present briefs and
oral arguments to those who are to render the
In Titusville, supra,
Petitioner, in addition, contends the Chairman of
PERC did not have authority to deny its petition
for rehearing independently of the two commissioners
who heard and ruled upon.the case. We agree.
The head note connected with the quote from Titusville
atove refers to 56 C.J.S., Master and Servant, Section 28 (102):
The test of a fair hearing has been held to be
whether the issues were clearly defined, so
respondent may address himself to the charges
made against him. The right to a hearing is
not infringed by the boards employment of sub-
ordinants to sift and analyze the evidence and
See also 73 C.J.S., Public Administrative Bodies and
Procedures, S136, Conduct of Hearinga *-< 4'(' :
A large amount of discretion in the conduct of a hearing
is necessarily reposed in the agency or person conducting
the hearing, but the exercise of that power should
reflect a reasonable effort to enable all the
parties to present their theory of what happened.
The examiner has some discretion as to the reception
Sof evidence, the scope of cross-examination, and
the order of proof; but he should, within reasonable
limits, permit each of the parties to prove his own
case, in his own way, by his own coungCl.
Florida Statute 120.68 (1)
A preliminary, procedural, or intermediate agency
action or ruling is immediately reviewable if review
of the final agency decision would not provide an
From Titusville, supra,
If PERC has made a decision adverse to the petitioner,
it should conduct an evidentury hearing at which
all parties are given notice adequate to appraise
them of the issues as specifically as they can be
stated so that the parties will know the specific
objections which they must meet.
It appears that one member of a collegial body has such
Discretion as is necessary to the effective administration of
the law. However, a preliminary procedural or intermediate
agency action or ruling is immediately reviewable when a
petitioner can show that he will be denied a fair hearing if
the court does not intercede. A fair hearing has been defined
as one in which the issues are clearly defined, so that the
petitioner may address himself to the charges made against
EYAMPLES of actions that one member of a collegial body may
1. Conduct formal hearings. F.S. 120.57 (l(~Q I
2. Issue Subpoenas. F.S. 120.58 (1)(b)
3. Affect discovery. F.S. 120.58 (1)(b)
4. Make findings of Facts. F.S. 120.57 (1)(b)9
5. Recommend orders and penalties. F.S. 120.57 (1)(b)9
6. Swear witnesses and take testimony under oath.
F.S.120.58 (1) (b)
7. Change the stated order of an agenda, for good cause
shown. F.S. 120.53 (d)
8. And operate under such rules of procedure as may
be adopted by the agency. F.S. 120.53 (1)(c)
9. Hold Pre Hearing conferences for the purposes of
consolidation of applications. F.S. 373.126
a. Select dates for hearings satisfactory to the
b. Explore methods to eliminate surprise and delay.
c. Shorten the hearing.
d. Make arrangements for the parties to exchange
written qualifications of expert witnesses, maps,
charts, engineering analysis and other items
contemplated for introduction as evidence.