Weekly Roundup: In Conclusion

By BRANDON LARRABEE
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, April 29, 2016..........Several things seemed to be winding down in Florida government this week.

At the Capitol, two of the highest-ranking Republicans in the state finally managed to resolve their differences over a hiring decision. Neither man walked away with a complete victory, but that didn't mean that it didn't further the idea that one of the participants --- Gov. Rick Scott --- was losing a little bit of his pull.

Meanwhile, the Florida Supreme Court and an administrative law judge handed down a couple of high-profile rulings, one with a potentially wide-ranging impact on the state's businesses and another touching on a particularly hot-button social issue.

There were signs that some of the fights that have shaped politics in 2016 would rage on; Democratic Congresswoman Corrine Brown notified a federal court that she would appeal its ruling in a contentious redistricting case to the U.S. Supreme Court. But resolution seemed to be the name of the game, even if it was just to clear the decks for the inevitable battles that lie ahead.

PEACE IN OUR TIMES

The "lame duck" whispers around Scott had already ticked up to a dull roar by the time the Legislature was done giving him few pieces of his legislative agenda during the session that ended in March. Now, it seems that Scott can't even corral Republican members of the Cabinet to go along with him.

The governor spent the week locked in a continuing showdown with Chief Financial Officer Jeff Atwater over the state's next insurance commissioner. And while Atwater didn't get his first choice for the position, neither did Scott.

The difficulty arose because of a difference between the two men, who have to jointly recommend the head of the Office of Insurance Regulation to Atwater's two colleagues on the Cabinet: Attorney General Pam Bondi and Agriculture Commissioner Adam Putnam.

For their parts, Bondi and Putnam tried to stay away from the contretemps.

"Just like on criminal matters, I seem to feel you listen to me," Bondi said Tuesday. "I would hope that when you two gentlemen come to an agreement --- unless I believe someone is woefully inadequate, which I hope I won't, based on the two of you and your great experience in this field --- but hopefully I'll be able to back your candidate. But I think the two of you need to come to an agreement first."

Scott backed Jeffrey Bragg, a Palm Harbor resident and former executive director of a U.S. Department of the Treasury terrorism-risk insurance program. After an awkward silence in which his motion Tuesday to hire Bragg for $150,000 a year didn't get a second, the governor suggested holding a meeting Friday.

Meanwhile, Scott and Atwater also disagreed about how long current Insurance Commissioner Kevin McCarty could stay on the job. McCarty was originally scheduled to step down May 2, but announced as the split between Scott and Atwater persisted that he would be willing to remain another 45 days.

Scott's office said McCarty couldn't do that without a specific vote by the Cabinet. In a memo, Scott lawyer William Spicola said the governor and the Cabinet accepted McCarty's resignation during a January Cabinet meeting.

"McCarty cannot unilaterally extend his appointment after he, the governor and the Cabinet all mutually agreed that his last day would be on May 2nd," Spicola wrote.

Atwater issued a statement Wednesday disagreeing.

"I am disappointed that in its eagerness to replace Commissioner McCarty, the governor's office has chosen to quibble about his resignation letter," Atwater said in a release. "We should take full advantage of Commissioner McCarty's gracious offer to continue to provide consistent and knowledgeable leadership during this period, thereby affording the Cabinet the opportunity for a thorough and well considered hiring process."

But things were resolved by essentially listening to advice from Vanessa Williams: Sometimes the very thing you're looking for is the one thing you can't see. Scott and Atwater finally agreed during a special meeting Friday to promote from within, tapping Deputy Commissioner David Altmaier for the job.

As commissioner, Altmaier, who a decade ago was working as a high-school math teacher and track coach in Kentucky, will see his salary increase from $115,000 a year to $165,000 a year.

Scott and Atwater also agreed that McCarty will remain with the state for 60 days beyond his planned departure date to assist in the transition --- keeping him around as the hurricane season begins June 1.

"The dynamics of this office are so broad," Atwater said after Altmaier was chosen. "If something were to come early, (Altmaier) has another set of eyes and ears (in McCarty) that he can be turning to for guidance. But mainly it was for the broad, broad range of responsibilities that he's now taking on that he can have somebody nearby."

Altmaier, who since March 2015 has overseen the agency's Bureau of Property and Casualty Financial Oversight and Product Review, said he is aware of the "magnitude of the position" and he had no problem with two additional months working with McCarty.

"I have learned an incredible amount from Commissioner McCarty during my tenure working with him, and I would welcome 60 more days of learning from him as we transition," Altmaier said.

Altmaier, who received a degree in mathematics from Western Kentucky University, briefly worked as a high school teacher before going to work for a private insurance agency in 2006. He joined the Office of Insurance Regulation in 2008, where he's served in a number of positions, including as a reinsurance and financial specialist and as chief analyst.

A BLOW FOR BUSINESS

While Scott and Atwater were tussling over the state's insurance commissioner, the Florida Supreme Court was dealing with another area of state insurance law --- one limiting attorney's fees in workers-compensation cases.

In a 5-2 ruling, the court struck down the fee law, a victory for attorneys who represent injured workers --- and a blow to business groups that have long argued legal fees drive up the costs of workers-compensation insurance. The fee issue will bounce back to the Legislature, where it could spark a fierce debate.

Justice Barbara Pariente, writing for the court's majority, said the 2009 law is a violation of due-process rights under the Florida Constitution and the U.S. Constitution because it prevents challenges to the "reasonableness" of attorney's fees awarded in workers-compensation cases. The ruling stemmed from a case in which an attorney was awarded the equivalent of $1.53 an hour in successfully pursuing a claim for benefits for a worker injured in Miami.

Pariente wrote that the goal of the workers-compensation system is to quickly provide benefits to get injured people back on the job at a reasonable cost to employers.

"This case, and many others like it, demonstrate that despite the stated goal, oftentimes the worker experiences delay and resistance either by the employer or the (insurance) carrier,'' wrote Pariente, who was joined in the majority by Chief Justice Jorge Labarga and justices R. Fred Lewis, Peggy Quince and James E.C. Perry. "Without the likelihood of an adequate attorney's fee award, there is little disincentive for a carrier to deny benefits or to raise multiple defenses, as was done here."

But Justice Charles Canady wrote a dissent that said the law involves a "policy determination" by the Legislature that there should be a relationship between the amount of benefits obtained in workers-compensation cases and the amount of attorney's fees awarded. The law includes a formula that links benefits and attorney's fees.

"In reaching the conclusion that the statute violates due process, the majority fails to directly address the actual policy of the statute,'' wrote Canady, who was joined in dissent by Justice Ricky Polston. "Instead, the majority assumes --- without any reasoned explanation --- that due process requires a particular definition of 'reasonableness' in the award of statutory attorney's fees. The definition assumed by the majority categorically precludes the legislative policy requiring a reasonable relationship between the amount of a fee award and the amount of the recovery obtained by the efforts of the attorney. Certainly, this legislative policy may be subject to criticism. But there is no basis in our precedents or federal law for declaring it unconstitutional."

Business groups weren't shy about blasting the ruling. Florida Chamber of Commerce President and CEO Mark Wilson said in a prepared statement the "potential impact of the high court's ruling could threaten Florida's improving business climate. The Florida Chamber remains laser focused on ensuring workers' comp rates are fair, and we will lead the effort before lawmakers and in the halls of justice to ensure the voices of job creators are heard."

'NO TESTIMONY OR DOCUMENTARY EVIDENCE'

In a less-sweeping but nevertheless politically charged case, meanwhile, an administrative law judge Thursday rejected a state agency's arguments that a Gainesville abortion clinic should be fined for performing second-trimester abortions without a proper license.

In a 25-page ruling, Judge Lawrence P. Stevenson concluded that the Florida Agency for Health Care Administration had failed to make its case against Bread & Roses Well Woman Care.

AHCA filed an administrative complaint against Bread and Roses in August, contending that the clinic, which is licensed to perform only first-trimester abortions, had performed five abortions on women who were in the second trimesters of pregnancies.

"AHCA presented no testimony or documentary evidence refuting the credible evidence presented by Bread & Roses that the sonograms show on their face that the pregnancies for each of the five procedures at issue were first trimester pregnancies and within the scope of Bread & Roses' license," Stevenson wrote.

The fines would have cost the clinic $500 for each of the five procedures, or $2,500.

Stevenson's ruling Thursday is a recommended order, which, under administrative law, goes to the agency. The judge recommended that the agency dismiss the complaint against Bread & Roses.

Bread & Roses has also figured in another recent abortion dispute. Last year, the clinic joined a lawsuit challenging the constitutionality of a state law requiring 24-hour waiting periods before women can have abortions. Last week, the Florida Supreme Court temporarily blocked the law and granted a stay of a lower court's order allowing the law to take effect.

That allows women to get abortions without a waiting period for the time being, until the constitutional challenge finds its way through the courts.

The battle over abortion clinics, it seems, isn't truly over just yet.

STORY OF THE WEEK: Gov. Rick Scott and Chief Financial Officer Jeff Atwater agree to recommend Deputy Insurance Commissioner David Altmaier to take over the Office of Insurance Regulation, settling a weeks-long feud.

QUOTE OF THE WEEK: "Under the original Constitution, African-Americans were considered to be three-fifths of a human being. We've moved beyond that point, (but) now our first African-American president only gets seven-eighths of a term."---Democratic Congressman Alan Grayson, in a debate with Republican Congressman David Jolly, a fellow candidate for the U.S. Senate. The Senate's GOP majority has refused to hold a hearing on Merrick Garland, President Barack Obama's nominee, because of the upcoming November elections.