O.C.G.A. § 50-13-15 (2019)
Rules of evidence in contested cases; official notice; conducting hearings by utilizing remote electronic communications
In contested cases: (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 shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under such rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs or if it consists of a report of medical, psychiatric, or psychological evaluation of a type routinely submitted to and relied upon by an agency in the normal course of its business. Agencies 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 interest 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, parties shall be given an opportunity to compare the copy with the original or have it established as documentary evidence according to the rules of evidence applicable to the superior courts of this state;
(3) A party may conduct such cross-examination as shall be required for a full and true disclosure of the facts; (4) Official notice may be taken of judicially cognizable facts. In addition, official notice may be taken of generally recognized technical or scientific facts within the agency’s specialized knowledge. Parties shall be notified either before or during the hearing, by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence; and (5) Any hearing which is required or permitted hereunder may be conducted by utilizing remote electronic communications if the record reflects that all parties have consented to the conduct of the hearing by use of such communications and that such procedure will not jeopardize the rights of any party to the hearing. In the administrative law judge’s discretion, one or more witnesses may participate by remote electronic communications.
History
Ga. L. 1964, p. 338, § 16; Ga. L. 1965, p. 283, §§ 15, 16; Ga. L. 1979, p. 1014, § 1; Ga. L. 1982, p. 871, §§ 1, 2; Ga. L. 2021, p. 118, § 1/HB 553. The 2021 amendment, effective April
29, 2021, in paragraph (5), substituted ‘‘electronic’’ for ‘‘telephonic’’ in the middle of the first sentence and added the second sentence.
Annotations
JUDICIAL DECISIONS Effect of O.C.G.A. § 50-13-15(4). - O.C.G.A. § 50-13-15(4) did not authorize the Board of Dentistry to use the board’s expertise to compensate for the absence of key evidence not presented or noticed in issuing a letter of concern regarding a dentist’s recommended treatment that allegedly fell below minimal professional standards. Thebaut v. Georgia Bd. of Dentistry, 235 Ga. App. 194, 509 S.E.2d 125 (1998). Notice to party required of any official notice taken. - Last sentence of O.C.G.A. § 50-13-15(4) provides that the agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. However, this in no way takes away from the requirement that in order to take official notice of a technical or scientific fact, the party shall be notified either before or during the hearing that such notice will be taken and the party should
be afforded an opportunity to contest this issue. Hicks v. Harden, 133 Ga. App. 789, 213 S.E.2d 49 (1975). Administrative agency must confine itself to record before the agency and afford opportunity for showings contrary to material facts of which official notice has been taken; to constitute fatal error it must appear that an administrative agency’s journey outside the record worked substantial prejudice. Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm’n, 152 Ga. App. 366, 262 S.E.2d 628 (1979). Preponderance of evidence standard was applicable in a disciplinary proceeding conducted by the Board of Dentistry. Georgia Bd. of Dentistry v. Pence, 223 Ga. App. 603, 478 S.E.2d 437 (1996). Proviso for use of certain evidence is that it is necessary to establish facts not reasonably susceptible of proof under the usual rules of evidence in civil nonjury cases. Finch v. Caldwell, 155 Ga. App. 813, 273 S.E.2d 216 (1980).
Failure to object to witness’ qualifications constitutes waiver. - In rate increase request hearings, when the power company failed to object to an expert witness’ qualifications either before or during the expert’s testimony, any objection the company might have had was waived. Georgia Power Co. v. Georgia Pub. Serv. Comm’n, 196 Ga. App. 572, 396 S.E.2d 562 (1990). Failure to call witnesses does not circumvent rules of evidence. - Mere failure to call witnesses apparently readily available does not render the witnesses’ testimony not reasonably susceptible of proof under the usual rules of evidence. Finch v. Caldwell, 155 Ga. App. 813, 273 S.E.2d 216 (1980); McGahee v. Yamaha Motor Mfg. Corp., 214 Ga. App. 473, 448 S.E.2d 249 (1994). What constitutes hearsay. - What clearly is hearsay cannot be viewed as commonly relied upon by individuals in conduct of their affairs. Finch v. Caldwell, 155 Ga. App. 813, 273 S.E.2d 216 (1980). Hearsay character of medical reports does not bar consideration. - Fact that medical reports are hearsay does not mean that such reports could not be considered by a hearing officer in mak-
ing a determination when the reports satisfy the requirements of this section. Nolen v. Department of Human Resources, 151 Ga. App. 455, 260 S.E.2d 353 (1979), cert. denied, 444 U.S. 1092, 100 S. Ct. 1059, 62 L. Ed. 2d 782 (1980). Effect of body looking beyond record. - Mere fact that the determining body has looked beyond the record proper does not invalidate the body’s action unless substantial prejudice is shown to result. Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm’n, 152 Ga. App. 366, 262 S.E.2d 628 (1979). Inadmissibility of polygraph examination results. - Results of polygraph examination are not admissible into evidence, having no probative value. Feltham v. Cofer, 149 Ga. App. 379, 254 S.E.2d 499 (1979). In the absence of a stipulation of admissibility, the general rule that the results of polygraph tests are not admissible into evidence applies; thus, the Board of Public Safety did not err in refusing to consider the results of the test. Feltham v. Cofer, 149 Ga. App. 379, 254 S.E.2d 499 (1979). Cited in Cofer v. Summerlin, 147 Ga. App. 721, 250 S.E.2d 174 (1978); Jackson Elec. Mbrshp. Corp. v. Ga. PSC, 294 Ga. App. 253, 668 S.E.2d 867 (2008).
OPINIONS OF THE ATTORNEY GENERAL Conduct of hearings in informal manner. - With the passage of Ga. L. 1968, p. 338, § 1 et seq. (see O.C.G.A. T. 50, C. 13), the bell was tolled on the practice of conducting hearings in an in-
formal manner except by stipulation of the parties, agreed settlement, the entry of consent orders, or defaults. 1965-66 Op. Att’y Gen. No. 66-36.
RESEARCH REFERENCES Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 344 et seq. C.J.S. - 73A C.J.S., Public Administrative Law and Procedure, §§ 235 et seq., 264 et seq. U.L.A. - Model State Administrative Procedure Act (U.L.A.) § 4-201 et seq. ALR. - Necessity of some evidence at hearing to support decision of public board
or official required to be made after or upon hearing, 123 A.L.R. 1349. Administrative decision or finding based on evidence secured outside of hearing, and without presence of interested party or counsel, 18 A.L.R.2d 552. Hearsay evidence in proceedings before state administrative agencies, A.L.R.3d 12.