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Creation and Organization of Executive Branch Agencies

Apart from constitutional offices, executive branch agencies exist and can act only according to authority granted by the legislature. The legislature assigns the powers and duties of agencies and can determine their internal structure. Agencies do not have inherent powers. The legislature can abolish agencies or change their powers or duties.


Types of Executive Branch Agencies

Constitutional Offices

The constitutional officers are the governor, lieutenant governor, attorney general, state auditor, and secretary of state. Minn. Const. Article V, section 1. A 1998 constitutional amendment abolished the office of state treasurer, effective January 2003. Another executive branch agency created in the constitution is the State Board of Investment. Minn. Const. Art. XI, section 8. This group consists of all of the constitutional officers except the lieutenant governor. The board is constitutionally assigned the duty of investing state funds.

Departments

Seventeen major state agencies are designated in law as the "departments" of state government. Minn. Stat., sec. 15.01. These are the departments of administration; agriculture; commerce; corrections; education; employment and economic development; health; human rights; human services; labor and industry; management and budget; military affairs; natural resources; public safety; revenue; transportation; and veterans affairs.

Agencies & Offices

Other major executive branch entities are called "agencies" and "offices." Examples include the Pollution Control Agency and the Housing Finance Agency. In some cases there is no clear distinction between these groups and "departments."

Boards

Some executive branch agencies are headed by multi-member boards:

  • Approximately two dozen boards carry out occupational licensing functions
  • Other boards carry out state programs: e.g., the Zoo Board, the Environmental Quality Board, and the Amateur Sports Commission

State law provides that an executive branch agency is to be known as a board if it has authority to perform official functions, such as adopting rules, issuing and revoking licenses, or deciding contested cases.

Advisory Groups

Dozens of groups exist to advise executive branch agencies. Unlike boards, advisory groups do not have authority to perform official functions. Advisory groups typically are known as "council" or "committee." (Law provides that an entity in which at least half of the members are required to represent certain groups is to be called a "council," but this law is not followed consistently). A short-term advisory group typically is called a "task force."

Advisory groups are created in different ways:

  • The legislature has created many groups.
  • The governor may create a group. These groups are referred to with the prefix "Governor's Task Force," "Governor's Council," or "Governor's Committee." Minn. Stat., sec. 15.0593.
  • Law gives commissioners of departments and boards the authority to create advisory groups. Minn. Stat., sec. 15.014.

Semi-state Groups

Some groups that either are created in statute or receive substantial funding from the state are sometimes referred to as "quasi" or "semi" state agencies. There are no uniform definitions or characteristics for these groups. They are not considered to be executive branch agencies.

  • Some groups are not state agencies because they are incorporated as private nonprofit corporations (e.g., the Minnesota Historical Society).
  • The law creating some groups designates them as "public corporations" instead of creating them as executive branch agencies (e.g., Enterprise Minnesota, Inc.).

The law creating a group may provide that some of the laws that govern state agencies (e.g., open meeting law, data practices act) apply to the group.

Policy Considerations

The legislature considers a variety of issues in deciding what type of group to create to perform a specified function.

  • An agency headed by a single commissioner is more directly accountable to the governor than an agency with a multi-member board (especially if membership terms on the board overlap the governor's term).
  • A multi-member board must make its decisions in meetings that are open to the public.
  • A multi-member board often is composed of members who serve part-time, and meet only periodically, thus meaning that action cannot always be taken immediately.
  • A multi-member board provides the opportunity for diverse groups and interests to be represented in agency decision making.

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Agency Governance

Commissioners

The heads of "departments" (other than military affairs) are known as commissioners. The heads of the Housing Finance Agency, the Pollution Control Agency, the Iron Range Resources and Rehabilitation Board, and the Bureau of Mediation Services also are known as commissioners.

Commissioners are appointed by the governor, subject to confirmation by the Senate. There is no limit on the time a person the governor nominates as a permanent commissioner can serve before the Senate votes on confirmation. However, a person cannot serve as commissioner after the Senate has voted to refuse to consent to an appointment.

The term of a commissioner ends with the term of the governor. Law requires the governor to submit the name of a new permanent commissioner within 45 legislative days of a vacancy.

Statutes provide a variety of means for the duties of a commissioner to be performed when a vacancy occurs:

  • The governor may designate a person as the permanent commissioner. This person has all the powers of commissioner as soon as the letter of appointment is filed with the Senate, even though the person does not officially take office as permanent commissioner until the Senate consents to the appointment.
  • The governor may designate a person as the acting commissioner (when a new governor takes office, the new governor may designate the old commissioner to be the acting commissioner). An acting commissioner has all the powers of a commissioner.
  • If no acting or permanent commissioner has been named, the deputy commissioner automatically becomes the temporary commissioner. A temporary commissioner has all the powers of a commissioner.

The law gives commissioners general powers:

  • to issue a written order (which must be filed with the Secretary of State) delegating power to a subordinate employee;
  • to appoint employees and prescribe their duties;
  • to organize the department or agency;
  • to prescribe procedures for internal management of the department or agency (procedures that affect the general public generally must be adopted as rules). Minn. Stat., sec. 15.06.

Deputy & Assistant Commissioners

The title "deputy commissioner" generally refers to a person whose primary duty is to assist the commissioner in general management of the entire department. A deputy commissioner serves as the pleasure of the commissioner. Unless specifically authorized by law, an agency cannot have more than one deputy commissioner. Minn. Stat., sec. 15.06.

The title "assistant commissioner" generally refers to a person whose primary duty is to supervise a single functional area within a department. There is no general statutory limit on the number of assistant commissioners within an agency.

Multi-member Agencies

Appointments: Appointments to multi-member agencies are subject to the Open Appointments Act. Minn. Stat., sec. 15.0597. Under this law, the appointing authority is required to publicize vacancies and accept applications. The law requires the appointing authority to consider applications received, but does not require that the agency make an appointment from the list of applications. The Secretary of State administers the law.

Appointments to some state boards are subject to Senate confirmation. The law rarely requires Senate confirmation for appointments to advisory groups.

Terms, compensation, & expiration: There are three general laws governing membership terms, removal, compensation, and expiration of multi-member agencies. One law applies to boards (15.0575), one to occupational licensing boards (214.09), and one to advisory groups (15.059). Most parts of sections 15.0575 and 15.059 apply only if the law creating the group says these sections apply.

Terms, removal: Members of boards serve four-year terms ending in January. During a term, members may be removed only for cause. Missing three consecutive meetings is cause for removal. For occupational licensing boards, failure of the board to submit a required annual report also is cause for removal of board members. Membership terms are staggered, so that as nearly as possible one-fourth of the members' terms expire each year. Members of advisory groups also serve four-year staggered terms, but may be removed at any time by the appointing authority.

Compensation: Members of boards and advisory committees and councils are paid $55 per day spent on agency activities. They also receive reimbursement for expenses. Members of task forces do not receive the $55 per day, but are reimbursed for expenses.

Registration: Multi-member agencies must register annually with the secretary of state. The annual filing must include information on membership, meetings, and expenses. Minn. Stat., sec. 15.0599.

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Reorganization Authority

Executive Reorganization Orders

The legislature can reorganize executive branch agencies by enacting new laws. The legislature has given the executive branch general authority to reorganize agencies, even if agency powers and duties are specifically assigned by law. Minn. Stat., sec. 16B.37.

  • Transfers must be in the form of reorganization orders issued by the commissioner of Administration, with prior approval of the governor.
  • A proposed reorganization order must be submitted to the chairs of the House and Senate Governmental Operations Committees at least 30 days before being filed with the secretary of state.
  • Most reorganization orders are effective as soon as they are filed with the secretary of state. This means the executive branch can make transfers without prior legislative approval. However, orders that transfer all or substantially all of the powers or duties of a department, the Housing Finance Agency, or the Pollution Control Agency are not effective until ratified by the legislature.
  • Transfers may be made only to executive branch agencies that have been in existence for at least a year before the transfer.

Reassignment of Work/Employees

The commissioner of administration can direct an agency to do work for another agency, and can direct a division or section of an agency to do work for another division or section within the same agency.

An agency employee may be employed by or assigned to perform duties for another agency. This requires approval of the governor and the heads of the affected agencies. Minn. Stat., sec. 16B.37.

Transfer of Appropriations

Typically, the legislature appropriates money to a specific program within an agency, and the agency can use the money only for that program. But the legislature has given agencies general authority to transfer operating money between programs, if this is consistent with legislative intent. The law specifies some conditions on this authority. Minn. Stat., sec. 16A.285.

Laws Regarding Transfers of Power

The legislature has enacted a general law that provides what happens when powers are transferred among agencies, whether by the legislature or by executive action. This general law applies to all transfers, unless specifically provided otherwise. Minn. Stat., sec. 15.039.

This law states that the new agency is a continuation of the former agency, for purposes of the powers or duties transferred. Thus rules remain in place, court actions continue, and personnel, contracts, records, and unexpended funds are transferred to the new agency.

For more information see the House Research publication Executive Branch Transfer Authority.

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September 2012

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