FACILITEC, INC., Plaintiff-Appellee, v. J. Elliott HIBBS, in his capacity as Director of the Department of Administration for the State of Arizona, Defendant-Appellant.
No. CV-02-0412-PR.
Supreme Court of Arizona, En Banc.
Dec. 10, 2003.
80 P.3d 765
Terry Goddard, Attorney General by Charles A. Grube, Assistant Attorney General, Phoenix, Attorneys for J. Elliott Hibbs, in his capacity as Director of the Arizona Department of Administration.
OPINION
McGREGOR, Vice Chief Justice.
¶1 We granted review to determine whether the Director of the Arizona Department of Administration (ADOA) may delegate to the Deputy Director authority to make the final decision on the appeal of a procurement protest. We answer this question in the affirmative. We exercise jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution, Rule 23 of the Arizona Rules of Civil Appellate Procedure, and Arizona Revised Statutes (A.R.S.) section
I.
¶2 ADOA solicited bids on a contract to provide office furniture to the state and awarded the contract to a bidder other than the appellee, Facilitec, Inc. (Facilitec). Facilitec filed a protest, demanding that the
¶3 Facilitec filed a motion for review with Hibbs. Hibbs himself took no action, but Bell issued an order denying the motion for review.
¶4 Because Hibbs took no action within thirty days, Facilitec requested the OAH to certify the Decision as the final decision. In making that request, Facilitec relied upon
[I]f the head of the agency ... does not accept, reject or modify the administrative law judge‘s decision within thirty days after the date the [OAH] sends a copy of the administrative law judge‘s decision to the head of the agency ... the [OAH] shall certify the administrative law judge‘s decision as the final administrative decision.
¶5 In superior court, Facilitec again argued that because the head of the ADOA did not review the administrative law judge‘s Decision, the trial court should deem the Decision to be the ADOA‘s final decision under the terms of section
¶6 The trial court granted partial summary judgment to Facilitec, finding that ” ‘[i]n order for the [ADOA] Director to have the power to delegate legislative or judicial functions the legislature must expressly grant the power.’ ” Facilitec, Inc. v. Hibbs, 204 Ariz. 39, 40 ¶5, 59 P.3d 803, 804 (App. 2002) (quoting the superior court).
¶7 The court of appeals reversed, concluding that “the Deputy Director decided Facilitec‘s procurement protest pursuant to a proper grant of authority from both the Arizona Legislature and the ADOA Director.” Id. at 41-42 ¶14, 59 P.3d at 805-06. We granted Facilitec‘s petition for review to consider this recurring issue of statewide importance.
II.
¶8 Administrative agencies are governmental bodies “charged with administering and implementing particular legislation.” Black‘s Law Dictionary 45 (6th ed.1990). Because the legislature is often unable to specify detailed rules of conduct, especially in highly technical and rapidly changing fields, it frequently entrusts agencies with the responsibility for developing and implementing regulatory policy for a limited subject matter.
¶9 Agencies often exercise powers that are peculiar to each of the three principal branches of government. For example, agencies frequently operate under statutes that grant them legislative power to issue rules, executive power to investigate possible violations of rules or statutes and to prosecute offenders for these violations, and judicial power to adjudicate particular disputes regarding compliance with relevant governing standards. See, e.g., State ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786, 791 (1976) (stating that “administrative agencies exercise many types of power including legislative, executive, and judicial powers often blended together in the same administrative agency“); Kenneth Culp Davis, Administrative Law Text 24 (3d ed.1972) (stating that “a typical administrative agency exercises many types of power, including executive, legislative, and judicial power“).
¶11 The starting point of our analysis is
¶12 The statutes upon which Facilitec relies appear as part of
¶13 Facilitec argues that sections
¶14 Facilitec‘s argument that sections
¶15 Moreover, even if we were to read sections
¶16 Nothing in section
¶17 Another indication that the legislature intended to permit the ADOA Director to delegate to the Deputy Director authority to make the final decision on the appeal of a procurement protest is that the legislature did not prohibit him from doing so. In other instances, the legislature has expressly restricted the exercise of powers. For example,
¶18 In addition to arguing that Title 41 “otherwise provides,” Facilitec contends that the ADOA Director cannot delegate quasi-judicial duties absent express legislative approval. In support of this argument, Facilitec relies on two court of appeals opinions, Godbey v. Roosevelt School District No. 66 of Maricopa County, 131 Ariz. 13, 638 P.2d 235 (App.1981), and Cactus Wren Partners v. Arizona Department of Building & Fire Safety, 177 Ariz. 559, 869 P.2d 1212 (App. 1993). Facilitec‘s reliance on these cases is misplaced.
¶19 In Godbey, the acting school superintendent, without prior formal approval from the Board of Trustees, issued an administrative order requiring every teacher requesting paid sick leave to provide a doctor‘s certificate stating that the teacher was ill. 131 Ariz. at 15, 638 P.2d at 237. The teachers sued, claiming that the superintendent lacked power to issue the administrative order without either prior Board delegation of authority or express legislative authorization in the absence of prior Board approval. Id. at 19, 638 P.2d at 241. The court of appeals found in favor of the teachers, stating: “If the action of the superintendent is characterized as ‘ministerial or administrative‘, then the power was delegable without express legislative authorization. If the action is characterized as ‘legislative or judicial‘, then the power was not so delegable.” Id. at 19-20, 638 P.2d at 242.
¶20 Facilitec argues that Godbey stands for the proposition that a quasi-judicial function is not delegable unless explicitly permitted by statute. We disagree with this broad interpretation of Godbey. In Godbey, no statute authorized the delegation of authority to the superintendent. Here,
¶21 Cactus Wren is similarly inapposite. In that case, tenants of the Desert Skies Mobile Home Park filed a petition with the Arizona Department of Building and Fire Safety (the Department) challenging Cactus Wren Partners’ (Cactus Wren) charges for trash removal and sewage services as violative of the Arizona Mobile Home Parks Residential Landlord and Tenant Act (the Act). 177 Ariz. at 561, 869 P.2d at 1214. A mobile home parks hearing officer of the Department determined that the sewage disposal and trash collection fees violated the Act and required the refund of or rental credit for these overcharges. Id. Cactus Wren sought judicial review, claiming that the consideration and resolution of conflicts regarding the Act by the Department‘s hearing officer unconstitutionally infringed upon the powers of the judiciary. Id. The court of appeals recognized a difference between the operation
¶22 Cactus Wren provides little assistance in this case. There, the issue was whether the legislature had power to permit the Department‘s hearing officer to consider and resolve conflicts regarding the Act, or whether this remedy was reserved to the judicial branch of government. The case before us presents no separation of powers issue. All parties acknowledge that the legislature has the power to create the administrative remedy provided to Facilitec.
¶23 Like Godbey, Cactus Wren does not support Facilitec‘s argument that, despite the broad language of section
III.
¶24 For the foregoing reasons, we vacate the decision of the court of appeals, reverse the judgment of the superior court, and remand to the superior court for further proceedings consistent with this opinion.
CONCURRING: CHARLES E. JONES, Chief Justice, REBECCA WHITE BERCH, MICHAEL D. RYAN and ANDREW D. HURWITZ, Justices.