TITLE 45 PUBLIC OFFICERS AND EMPLOYEES

Section 20. Personnel Administration, 45-20-1 through 45-20-111.

ARTICLE 1 GENERAL PROVISIONS

45-20-9. Procedure for hearings and appeals relating to adverse personnel actions.

Any laws to the contrary notwithstanding, all hearings on dismissals, other adverse personnel actions, and other purported violations of the rules and regulations as applied to classified employees shall be instituted by filing a written appeal with the Office of State Administrative Hearings upon such ground and in such form and under such procedure as may be prescribed by rules and regulations of the office. The party appealing and the department from whose action the appeal is taken shall be notified in writing within 15 days from the filing of the appeal that an appeal has been filed and the time for which a hearing is scheduled.
The State Personnel Board, any member of the board, or an administrative law judge shall have the authority to do the following in connection with any hearing on a dismissal or other purported violation of the rules and regulations: administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing briefs; dispose of motions to dismiss for lack of the board's jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to intervene; provide for the taking of testimony by deposition or interrogatory; and reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the board or the administrative law judge.
Subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county where the hearing is being held for an order requiring obedience. Failure to comply with such order shall be cause for punishment as for contempt of court. The costs of securing the attendance of witnesses, including fees and mileage, shall be computed and assessed in the same manner as prescribed by law in civil cases in the superior court. Once issued a subpoena may be quashed by the board or an administrative law judge if it appears that the subpoena was used primarily as a means of harassment, that the testimony or documents sought are cumulative, that the testimony or documents sought are not relevant, that the testimony or documents sought are not material, that to respond to the subpoena would be unduly burdensome, or that for other good reasons basic fairness dictates that the subpoena should not be enforced.
With respect to all hearings before the board or the administrative law judge:
1. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in the trial of civil nonjury cases in the superior courts of Georgia shall be followed. Evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. The board shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;
2. Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. Upon request and at the discretion of the administrative law judge or board, parties shall be given an opportunity to compare the copy with the original;
3. A party may conduct such cross-examination as shall be required for a full and true disclosure of the facts; and
4. Official notice may be taken of judicially recognizable facts. In addition, official notice may be taken of technical facts within the board's specialized knowledge. Parties shall be notified either before or during the hearing by reference in preliminary reports or otherwise of the material officially noticed, including any staff memoranda or data; and they shall be afforded an opportunity to contest the material so noticed. The board's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.
1. With respect to hearings at which the board did not preside at the presentation of the evidence, the administrative law judge who presided shall issue an initial decision within 30 days from the close of the evidence or if necessary within a longer period of time as ordered by the board or the administrative law judge. The initial decision shall be transmitted to the board, and copies shall be sent to the parties or their representatives. In the absence of an application for review from an adversely affected party to the board within 30 days from the date the initial decision was issued or in the absence of an order by the board within such time for review on its own motion, the decision shall become the decision of the board without further proceedings or notice; and any right of additional appeals shall be extinguished.
2. On review of the entire record from the administrative law judge, the board shall have all the powers it would have in presiding at the reception of the evidence, including the review of any motions granted or denied by the administrative law judge and including the review of any action taken by the administrative law judge. Both parties shall have the right to present oral arguments to the board. Any presentation to the board on the matter by an administrative law judge shall be made in the presence of the parties. No administrative law judge shall be present during the board's deliberations and voting on the application. At its discretion, the board may take additional testimony or remand the matter to the administrative law judge for such purpose.
Unless precluded by law, informal disposition of any proceeding before the board or the administrative law judge may be made by stipulation, agreed settlement, consent order, or default.
As a part of the initial decision or order subsequent to any hearing, the administrative law judge or the board shall include findings of fact and conclusions of law separately stated and the effective date of the decision or order. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Copies of the decision or order shall be mailed to all parties of record.
Any party, including the state and any state board, bureau, commission, or department, who has exhausted all administrative remedies available before the board and who is aggrieved by a final decision or order of the board on any hearing may seek judicial review of the final decision or order of the board in the superior court of the county of the place of employment of the employee.
Proceedings for review shall be instituted by filing a petition with the court within 30 days after the decision or order is rendered. Copies of the petition shall be served upon the board and all parties of record. The petition shall state the nature of the petitioner's interest, the facts showing that the petitioner is aggrieved by the decision of the board, and the grounds upon which the petitioner contends the decision or order should be reversed or remanded. The petition may be amended with leave of court.
Within 30 days after the service of the petition or within further time allowed by the court, the board shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceeding the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
The filing of the petition shall stay the enforcement of the board's decision or order.
If before the date set for hearing the appeal by the superior court application is made to the court for leave to present additional evidence and it is shown to the satisfaction of the court that the additional evidence is material and there were good reasons for failure to present it in the proceedings before the board, the court may order that the additional evidence be taken before the board upon conditions determined by the court. The board may modify its findings and decision or order by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions and orders with the reviewing court.
The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact. The court may affirm the decision or order of the board or remand the case for further proceedings. The court may reverse the decision or order of the board if substantial rights of the petitioner have been prejudiced because the board's findings, inferences, conclusions, decisions, or orders are:
1. In violation of constitutional or statutory provisions;
2. In excess of the statutory authority of the board;
3. Made upon unlawful procedure;
4. Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
5. Arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
A party aggrieved by an order of the court in a proceeding authorized under this Code section may appeal to the Supreme Court of Georgia or the Court of Appeals of Georgia in accordance with Article 2 of Chapter 6 of Title 5.

(Ga. L. 1976, p. 1547, § 4; Ga. L. 1979, p. 780, §§ 5-7; Ga. L. 1982, p. 3, § 45; Ga. L. 1990, p. 8, § 45; Ga. L. 1997, p. 844, § 3; Ga. L. 1998, p. 823, § 2; Ga. L. 2008, p. 546, § 8/SB 230; Ga. L. 2012, p. 446, § 1-1/HB 642.)

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

JUDICIAL DECISIONS

Denial of an evidentiary hearing on a state trooper's claims that the trooper was harmed due to personal favoritism, cronyism and arbitrary decision-making within the Department of Public Safety was an abdication of the State Personnel Board's discretion and was contrary to law, arbitrary, and capricious. State Personnel Bd. v. Morton, 198 Ga. App. 845, 403 S.E.2d 455 (1991).

Trial court did not err when the court held that the State Personnel Board exceeded its authority in adopting regulations authorizing an administrative law judge to resolve an appeal from the board's termination of a classified state employee without holding an evidentiary hearing because the regulation at issue, Ga. Pers. Bd. R. & Regs., Reg. 478-1-.24(6)(e) and (x), did not comport with the Georgia Merit System Act, O.C.G.A. §§ 45-20-8 and45-20-9, in that it denied the employee, who had been deemed "voluntarily separated" from employment, the statutory right to a hearing. Ga. Dep't of Cmty. Health v. Dillard, 313 Ga. App. 782, 723 S.E.2d 23 (2012).

Those portions of Ga. Pers. Bd. R. & Regs., Reg. 478-1-.24(6)(e) and (x) which dispense with the need for an evidentiary hearing in cases involving the voluntary separation of a classified employee are contrary to law; the curtailed procedure laid out in Ga. Pers. Bd. R. & Regs., Reg. 478-1-.24(6)(e) and (x) cannot be reconciled with either the statutory scheme, which contemplates that the State Personnel Board must provide the classified employee with reasons for the action and an opportunity to file an appeal and request a hearing, the Georgia Merit System Act, O.C.G.A. § 45-20-8(b), or the Rule's own more general procedures, which require that, within seven days of the filing of an appeal, the administrative law judge or the board shall designate an appropriate time and place to conduct the hearing. Ga. Dep't of Cmty. Health v. Dillard, 313 Ga. App. 782, 723 S.E.2d 23 (2012).

Exclusive jurisdiction of board to hear appeals.

- Only the board, and not the merit system commissioner, has the authority to review the decisions of a hearing officer. Brown v. Ledbetter, 569 F. Supp. 170 (N.D. Ga. 1983).

Jurisdiction over reprisals by employees.

- State Personnel Board should be given first opportunity to pass on issue of reprisals against employees by fellow employees, that issue being within the primary jurisdiction of the board. Bailey v. Wilkes, 162 Ga. App. 410, 291 S.E.2d 418 (1982).

Judicial review of demotion of state employee.

- When the plaintiff, who was demoted by the employer, Georgia Retardation Center, a division of the Department of Human Resources (DHR), pursued administrative remedies, culminating in the denial of the plaintiff's appeal by the State Personnel Board, and then petitioned the superior court for judicial review, it was held that the plaintiff's employer is governed by the Georgia Administrative Procedure Act (APA), but the decision of which plaintiff seeks review is one made not by DHR but by the State Personnel Board, which is not governed by the APA, but by the provisions of O.C.G.A. § 45-20-1 et seq. Duval v. Department of Human Resources, 183 Ga. App. 726, 359 S.E.2d 756 (1987).

Judicial affirmation of administrative ruling res judicata in subsequent federal civil rights action.

- A prior state court affirmance of a state administrative ruling is entitled to res judicata and collateral estoppel effect in a subsequent federal civil rights action brought pursuant to 42 U.S.C. § 1983, notwithstanding the fact that the state court's review was limited to a determination of whether there was "any evidence" in the record sufficient to support the factual findings of the administrative tribunal. Gorin v. Osborne, 756 F.2d 834 (11th Cir. 1985).

Board order denying jurisdiction deemed final decision.

- The superior court had jurisdiction to hear and decide an appeal by a state employee from a determination of the board that it lacked jurisdiction over the person of the employee; the board's determination was final in that it denied the employee an ability to obtain a hearing before the board and, thus, the court was authorized to render a final decision in the case and issue an order thereon. State Personnel Bd. v. Adams, 216 Ga. App. 341, 453 S.E.2d 821 (1995).

Order of the State Personnel Board denying state's motion to dismiss appeal was not a final decision in the case but was analogous to denial of a motion to dismiss a complaint and thus was not appealable to superior court. Majanovic v. Georgia Dep't of Human Resources, 163 Ga. App. 450, 294 S.E.2d 669 (1982).

Venue.

- Subject-matter jurisdiction for judicial review of State Personnel Board decisions lies in the superior courts with venue in the county of the place of employment of the employee. Duval v. Department of Human Resources, 183 Ga. App. 726, 359 S.E.2d 756 (1987).

Notwithstanding plaintiff having filed an action in the wrong county for venue purposes, the superior court errs in dismissing the action. Rather, in light of the defendant's motion to dismiss, the court should have transferred the case to the appropriate forum. Duval v. Department of Human Resources, 183 Ga. App. 726, 359 S.E.2d 756 (1987).

"Clearly erroneous" standard of O.C.G.A. § 45-20-9(m) is the same as the "any evidence rule." Hall v. Ault, 240 Ga. 585, 242 S.E.2d 101 (1978).

State Personnel Board's decision must be affirmed by superior court when supported by "any evidence." Department of Human Resources v. Green, 160 Ga. App. 37, 285 S.E.2d 772 (1981); Department of Human Resources v. Turner, 174 Ga. App. 483, 330 S.E.2d 418 (1985).

On appeal from a denial of an application for indemnification for the death of a prison guard by the Georgia State Indemnification Commission, even if the findings of fact urged upon the reviewing court by the appellant were supported by the evidence presented at trial, if the facts found by the special master were supported by some credible evidence, the reviewing court could not disturb those findings. Georgia State Indemnification Comm'n v. Lyons, 256 Ga. 311, 348 S.E.2d 642 (1986).

The language of O.C.G.A. § 45-20-9(m) has consistently been construed as confining the scope of review by the superior court to the "any evidence" standard. Department of Human Resources v. Horne, 198 Ga. App. 341, 401 S.E.2d 556, cert. denied, 198 Ga. App. 897, 401 S.E.2d 556 (1991).

The trial court erred in reversing the dismissals of two correctional officers for use of excessive force against an inmate since the terminations were supported by some evidence, and there was no abuse of discretion in the board's failure to impose less severe punishment. Department of Cors. v. Shaw, 217 Ga. App. 33, 456 S.E.2d 628 (1995).

When the State Personnel Board, in reviewing the decision of an administrative law judge (ALJ) decreasing the sanction imposed on a state employee from dismissal to a 30-day suspension, reimposed the dismissal, it was error for a trial court to find that the board's decision was not supported by a sufficient rationale; the board had properly adopted findings and conclusions of the ALJ which were consistent with the board's own decision and then explained that the ALJ's recommended sanction was too lenient for the proved misconduct as the misconduct was so severe as to warrant dismissal so the board's decision was not arbitrary and capricious under O.C.G.A. § 45-20-9(m)(5). Ga. Dep't of Natural Res. v. Willis, 274 Ga. App. 801, 619 S.E.2d 335 (2005).

"Any evidence" standard does not raise constitutional question.

- The fact that the Georgia legislature and courts have confined the scope of review in appeals from the State Personnel Board to an "any evidence" standard does not present a constitutional due process violation and, hence, the plaintiff was precluded as a matter of law from litigating a federal constitutional claim because of plaintiff's previous state suit involving the same cause of action. Howkins v. Caldwell, 587 F. Supp. 98 (N.D. Ga. 1983), aff'd, 749 F.2d 731 (11th Cir. 1984), cert. denied, 471 U.S. 1117, 105 S. Ct. 2361, 86 L. Ed. 2d 261 (1985).

Employee must first present to the personnel board claims that the department has failed to abide by a court's ruling reversing the board's upholding of an employee's dismissal, including issues of back pay and other benefits. There is no provision for de novo consideration of any issue by the superior court. Department of Corrections v. Colbert, 202 Ga. App. 27, 413 S.E.2d 498 (1991).

O.C.G.A. § 45-20-9(m) prevents a de novo determination of evidentiary questions leaving only a determination of whether the facts found by the board are supported by any evidence. Hall v. Ault, 240 Ga. 585, 242 S.E.2d 101 (1978); Stanley v. Department of Human Resources, 146 Ga. App. 450, 246 S.E.2d 459 (1978).

When reviewing a decision of the State Personnel Board, if there is any evidence to support the decision of the board, the decision should be affirmed. Harris v. Department of Human Resources, 149 Ga. App. 500, 254 S.E.2d 866 (1979).

Court must confine its review "to the record"; this clearly means the entire record. Department of Natural Resources v. Wilmot, 151 Ga. App. 324, 259 S.E.2d 715 (1979).

Lack of authority to compel promotion.

- Neither the State Board, the superior court, nor the appellate court has the authority to compel a promotion when the appointing authority has, within the bounds of its permissible discretions, declined to do so. Horne v. Skelton, 152 Ga. App. 654, 263 S.E.2d 528 (1979).

Reversal for departure from board policy.

- Trial court had the authority to reverse or remand decision of State Personnel Board on ground that the board abused its discretion by departing from its progressive discipline policy. Georgia Dep't of Labor v. Sims, 164 Ga. App. 856, 298 S.E.2d 562 (1982).

Rights of third parties.

- O.C.G.A. § 45-20-9 did not authorize the superior court to reverse the state personnel board's decision regarding termination of a corrections officer based on the right of a third-party inmate to defend themselves in a disciplinary action. Department of Cors. v. Derry, 235 Ga. App. 622, 510 S.E.2d 832 (1998).

Review of school instructor's dismissal.

- State Personnel Board was authorized to reverse an administrative law judge's (ALJ) determination upholding a school instructor's dismissal, as O.C.G.A. § 45-20-9(e)(2) comprehensively and specifically regulated the board's authority in its review of an ALJ's initial decision following a dismissal or adverse personnel action hearing. Ga. Dep't of Educ. v. Niemeier, 274 Ga. App. 111, 616 S.E.2d 861 (2005).

Cited in Hays v. Skelton, 145 Ga. App. 543, 244 S.E.2d 66 (1978); Keramidas v. Department of Human Resources, 147 Ga. App. 820, 250 S.E.2d 560 (1978); Beall v. Department of Revenue, 148 Ga. App. 5, 251 S.E.2d 4 (1978); Moski v. Public Serv. Comm'n, 148 Ga. App. 28, 251 S.E.2d 9 (1978); Courts v. Economic Opportunity Auth. For Savannah - Chatham County Area, Inc., 451 F. Supp. 587 (S.D. Ga. 1978); Dash v. Department of Human Resources, 153 Ga. App. 633, 266 S.E.2d 305 (1980); Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190, 283 S.E.2d 69 (1981); Georgia Dep't of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981); Bush v. State Bd. of Educ., 173 Ga. App. 710, 327 S.E.2d 826 (1985); State Bd. of Pardons & Paroles v. Smith, 179 Ga. App. 426, 346 S.E.2d 578 (1986); Department of Transp. v. Nobles, 187 Ga. App. 244, 370 S.E.2d 11 (1988); Flournoy v. Akridge, 189 Ga. App. 351, 375 S.E.2d 479 (1988); Department of Cors. v. Mack, 217 Ga. App. 862, 459 S.E.2d 573 (1995); Department of Cors. v. Glisson, 235 Ga. App. 51, 508 S.E.2d 714 (1998); Georgia Mts. Community Serv. Bd. v. Carter, 237 Ga. App. 84, 514 S.E.2d 86 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Procedure unaffected by "Fair Employment Practices Act".

- The statutory provisions of the "State Merit System Law", O.C.G.A. § 45-20-1 et seq., that bar discrimination in state employment, and provide a procedure to adjudicate cases of unlawful employment discrimination have not been repealed by the "Georgia Fair Employment Practices Act", O.C.G.A. § 45-19-20 et seq. 1983 Op. Att'y Gen. No. 83-51.

RESEARCH REFERENCES

Am. Jur. 2d.

- 15A Am. Jur. 2d, Civil Service, §§ 12, 43, 58 ,68, 79 et seq., 92 et seq.

C.J.S.

- 14 C.J.S., Certiorari, § 30 et seq. 67 C.J.S., Officers, §§ 209, 218, 221, 227. 81A C.J.S., States, § 201.

ALR.

- Validity, construction, and application of probationary provisions of civil service statutes or regulations, 131 A.L.R. 383.

Power of civil service body on own motion and without notice or hearing to reconsider, modify, vacate, or set aside order relating to dismissal of employee, 16 A.L.R.2d 1126.

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