October 13, 1971 ,".
MEMO Fn P'
TO: MGG ,
FROM: JPS tIAgd
ISSUE: Can the Florida Department of Air & Water Pollution /
Control Board delegate the authority tp the executive
director to sign on behalf of the Board final orders
for corrective action and consent orders? Does the
executive director have authority to do so?
The Board has attempted to delegate this authority under Florida
Statutes, Chapter 20.05, which deals with heads of departments and
their powers and duties. Under sub-section (1) of that chapter, each
head of a department has the power to execute the powers, duties, and
functions vested in that department were vested in a division, bureau
or section of that department. Under sub-section (-7), if a department
is under the direct supervision of a board, the head qf the depart-
ment shall employ an executive director to serve at its pleasure.
Florida Statutes Chapter 403.061 (7) gives the Florida Air & Water
Pollution Control Commission the power to adopt, modify, and repeal
rules and regulations to carry out the intent and purposes of the act.
The intent and purposes of the act can be found in 403.021.
I think the question is whether or not the Board can re-
delegate the authority to the.executive director to sign for them.
Generally, the courts have applied to administrative officers
the general rule that when authority is given by a statute to accomplish
a stated governmental purpose, there is also given by implication the
authority to do everything necessary to accomplish the purpose that
is not a violation of law or public policy.
There is an opposing view: the tendency of modern decisions,
and construing statutes defining the powers and duties of administra-
tive boards or commissions, is to hold that the power sought to be
exercised must be made to appear affirmatively before it can be legally
exercised. See State ex rel. Wells vs. Western Union Telegraph Co.,
118 So. 4783 reasonable doubts as to the existence of a particular
power should be resolved against the administrative agency unless a
statute declares to the contrary. State ex rel. Burr vs. Jacksonville.
71 Fla. 295. if there is reasonable doubt as to the power that has
been exercised, the further exercise of it should be arrested.
Edgerton vs. International Com., 89 So. 2d 488.
However, Forehand vs. Board of Public Instruction, 166 So. 2d
668, holds that a rule or regulation of an administrative board is
deemed prima facie reasonable and valid, but that prima facie character
is overcome upon it being made to appear that the rule or regulation
is clearly contrary to, or exceeds, the provision of;the act by which
the administrative board is created.
Of course, there is plenty of law holding that the powers of
administrative agencies are limited, being only those which are
egally con errea upon them by the statutes expressly or impliedly
for the purpose of carrying out the aims for which they were established.
See: State vs. Atlantic Coastline Railroad Co., 56 Fla. 617; State vs.
Jacksonville Terminal Co., 71 Fla. 295; Atlantic Coastline Railroad
Co. vs. State, 143 So. 255; McRae vs. Robbins, 9 So. 2d 284; Jacksonville
vs. L'Engle, 20 Fla. 344; State vs. Western Union Telegraph Co., 118
I can't find anything in the statutes that specifically gives
the board the power to "delegate" the power and duty to the executive
director to sign final orders for corrective action in accordance
with rule 17-1.48 of the Florida Administrative Code. In fact, that
rule says that these orders will be entered by the board, and I don't
see how the board can delegate the authority to the executive director
to sign these orders. And under Rule 17-1.49, a consent order is
defined as an order issued by the department, not by the executive
director. However, there may be some insulation here because the rule
requires negotiation between the respondent and the department. The
only thing left for the executive director to do is sign the order
after the negotiation has taken place by the department, not himself.
Although I can find no Florida cases, it is a general prin-
ciple that a delegated power may not be further delegated by the
person "or body" to whom such power is delegated. If there is not
statute, which there is not here, whether administrative officers
"or bodies" in which certain powers are vested or upon which certain
duties are imposed may deputize others to exercise such powers or
perform such duties usually depends upon whether the particular act or
duty sought to be delegated is ministerial or discretionary. Merely
ministerial functions may be delegated to assistants whose employment
is authorized, but there is no authority to delegate acts which are
discretionary in nature. Please see Payton vs. McQuown 31 SW 874;
State Tax Commission vs. Katsis, 62 P 2d 120; School District vs.
Callahan 297 NW 407.
Please note that the statutes authorizes the appointment of
an executive director. I think, also, that both of these types of
orders must be passed on by the full board and merely signed by, the
(~ill beard) executive director, if this is true, this is merely a
ministerial duty, and I think it is proper for him to sign there orders.