TITLE 50 STATE GOVERNMENT

Section 13. Administrative Procedure, 50-13-1 through 50-13-44.

ARTICLE 2 OFFICE OF STATE ADMINISTRATIVE HEARINGS

50-13-41. Hearing procedures; powers of administrative law judge; issuance of decision; reviewing agency; review of contested cases.

1. Whenever a state agency authorized by law to determine contested cases initiates or receives a request for a hearing in a contested case which is not presided over by the agency head or board or body which is the ultimate decision maker, the hearing shall be conducted by the Office of State Administrative Hearings, and such hearings shall be conducted in accordance with the provisions of this chapter and the rules and regulations promulgated under this article. Whenever an agency under this paragraph receives a request for a hearing in a contested case, such agency shall forward such request for a hearing to the Office of State Administrative Hearings within a reasonable period of time not to exceed 30 days after receipt of such request, and if the agency fails to do so, the party requesting the hearing may petition the Office of State Administrative Hearings for an order permitting such party to file a request for a hearing directly with the Office of State Administrative Hearings.
2. An administrative law judge shall have the power to do all things specified in paragraph (6) of subsection (a) of Code Section 50-13-13. An administrative law judge shall have the power to impose civil penalties pursuant to paragraph (3) of this subsection for failing to obey any lawful process or order of the administrative law judge or any rule or regulation promulgated under this article, for any indecorous or improper conduct committed in the presence of the administrative law judge, or for submitting pleadings or papers for an improper purpose or containing frivolous arguments or arguments that have no evidentiary support. The superior court of the county in which the violation is committed shall, on application of the administrative law judge or any party, enforce by proper proceedings any lawful process or order for civil penalties of the administrative law judge.
3. An administrative law judge may impose a civil penalty for any violation provided for in paragraph (2) of this subsection of not less than $100.00 nor more than $1,000.00 per violation. Any violator who is assessed a civil penalty may also be assessed the cost of collection. The administrative law judge shall have the power to issue writs of fieri facias to collect such penalties and costs assessed, which shall be enforced in the same manner as a similar writ issued by a superior court. All penalties and costs assessed shall be tendered and made payable to the Office of State Administrative Hearings and shall be deposited in the general fund of the state treasury.
An administrative law judge shall have all the powers of the ultimate decision maker in the agency with respect to a contested case. Article 2 of Chapter 13 of Title 24 shall govern the issuance of subpoenas issued under this article, except that the administrative law judge shall carry out the functions of the court, and the clerk of the Office of State Administrative Hearings shall carry out the functions of the clerk of the court. Subpoenas shall be enforced pursuant to subsection (a) of this Code section. Nothing in this article shall affect, alter, or change the ability of the parties to reach informal disposition of a contested case in accordance with paragraph (4) of subsection (a) of Code Section 50-13-13.
Within 30 days after the close of the record, an administrative law judge shall issue a decision to all parties in the case except when it is determined that the complexity of the issues and the length of the record require an extension of this period and an order is issued by an administrative law judge so providing. Every decision of an administrative law judge shall contain findings of fact, conclusions of law, and a disposition of the case. Except as provided in subsection (d) of this Code section, every decision of an administrative law judge shall be a final decision as set forth in subsection (b) of Code Section 50-13-17. Code Section 50-13-20.1 shall govern judicial review of every final decision of an administrative law judge, except that any aggrieved party, including the agency, may seek judicial review.
1. As used in this subsection, the term 'reviewing agency' shall mean the ultimate decision maker in a contested case that is a constitutional board or commission; an elected constitutional officer in the executive branch of this state; or a board, bureau, commission, or other agency of the executive branch of this state created for the purpose of licensing or otherwise regulating or controlling any profession, business, or trade if members thereof are appointed by the Governor.
2. Except as otherwise provided in this article, in all contested cases referred by a reviewing agency, every decision of an administrative law judge shall be treated as an initial decision as set forth in subsection (a) of Code Section 50-13-17, including, but not limited to, the taking of additional testimony or remanding the case to the administrative law judge for such purpose. On review, the reviewing agency shall consider the whole record or such portions of it as may be cited by the parties. In reviewing initial decisions by the Office of State Administrative Hearings, the reviewing agency shall give due regard to the administrative law judge's opportunity to observe witnesses. If the reviewing agency rejects or modifies a proposed finding of fact or a proposed decision, it shall give reasons for doing so in writing in the form of findings of fact and conclusions of law.
3. A reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision. If a reviewing agency fails to reject or modify the decision of the administrative law judge within such 30 day period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.
4. A reviewing agency may prior to the expiration of the review period provided for in paragraph (3) of this subsection extend such review period by order of the reviewing agency in any case wherein unusual and compelling circumstances render it impracticable for the reviewing agency to complete its review within such period. Any such order shall recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within such review period. Any such extension by the reviewing agency shall not exceed 30 days. Prior to the expiration of the extended review period, the review period may be further extended by further order of the reviewing agency for one additional period not to exceed 30 days if unusual and compelling circumstances render it impracticable to complete the review within the extended review period. Such further order further extending the review period shall likewise recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within the review period as previously extended. If a reviewing agency fails to reject or modify the decision of the administrative law judge within the extended review period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.
5. An agency may provide by rule that proposed decisions in all or in specified classes of cases before the Office of State Administrative Hearings will become final without further agency action and without expiration of the 30 day review period otherwise provided for in this subsection.

(Code 1981, §50-13-41, enacted by Ga. L. 1994, p. 1856, § 3; Ga. L. 1995, p. 1072, § 6; Ga. L. 1998, p. 750, § 10; Ga. L. 2018, p. 762, § 3/HB 790.)

The 2018 amendment, effective May 8, 2018, added the second sentence of paragraph (a)(1); added the second and third sentences of paragraph (a)(2); added paragraph (a)(3); substituted the present provisions of subsection (b) for the former provisions, which read: "An administrative law judge shall have all the powers of the referring agency with respect to a contested case. Subpoenas issued by an administrative law judge shall be enforced in the manner set forth in paragraph (7) of subsection (a) of Code Section 50-13-13. Nothing in this article shall affect, alter, or change the ability of the parties to reach informal disposition of a contested case in accordance with paragraph (4) of subsection (a) of Code Section 50-13-13."; deleted "recommended" preceding "disposition" in the second sentence of subsection (c), and added the third and fourth sentences; added paragraph (d)(1); designated the existing provisions of subsection (d) as paragraph (d)(2), and, in paragraph (d)(2), inserted "contested", inserted "referred by a reviewing agency," near the beginning of the first sentence; redesignated former paragraphs (e)(1) and (e)(2) as present paragraphs (d)(3) and (d)(4), respectively; in paragraph (d)(4), substituted "paragraph (3)" for "paragraph (1)" in the first sentence, deleted "be for a period of time" following "reviewing agency shall" in the third sentence; and redesignated former paragraph (e)(3) as present paragraph (d)(5).

Editor's notes.

- Ga. L. 1998, p. 750, § 11, not codified by the General Assembly, provides that all cases pending before the Professional Practices Commission on June 30, 1998, shall be transferred to the Professional Standards Commission.

Law reviews.

- For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012). For article, "Researching Georgia Law," see 34 Ga. St. U. L. Rev. 741 (2015).

JUDICIAL DECISIONS

Reasons for State Personnel Board's decision.

- 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; while O.C.G.A. § 50-13-41(d) applied generally to hearings conducted by the Office of State Administrative Hearings, the board did not comprehensively express the whole law on the subject of the board's review of an ALJ's initial decision. Ga. Dep't of Educ. v. Niemeier, 274 Ga. App. 111, 616 S.E.2d 861 (2005).

State Personnel Board's final decision reversing an administrative law judge's (ALJ) determination upholding a school instructor's dismissal met the requirement of O.C.G.A. § 50-13-41(d) as the board's additional findings cited the testimony of several other school staff members, a stipulated expert, and the Professional Standards Commission report was included as an exhibit in the record; based on its findings of fact, the board concluded that the evidence failed to prove the charges against the instructor by a preponderance of the evidence. Ga. Dep't of Educ. v. Niemeier, 274 Ga. App. 111, 616 S.E.2d 861 (2005).

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 adequately supported under O.C.G.A. § 50-13-41(d). Ga. Dep't of Natural Res. v. Willis, 274 Ga. App. 801, 619 S.E.2d 335 (2005).

Decision under single permit rule, Ga. Comp. R. & Regs.

§ 290-9-7-.03(a). - Superior court properly affirmed an order denying a hospital's request to consolidate separate hospital permits of two of their facilities, as the hospital's argument that the 35-mile rule in the federal regulation, 42 C.F.R. § 413.65(e)(3), should be applied did not establish an issue of material fact, and the court owed deference to an agency's interpretation of a statute the agency was empowered to enforce. Piedmont Healthcare, Inc. v. Ga. Dep't of Human Res., 282 Ga. App. 302, 638 S.E.2d 447 (2006).

Exhaustion under Individuals with Disabilities Act and Georgia statute.

- In a case in which the federal claims of a minor and the minor's father related to the minor's education and were subject to the Individuals with Disabilities Education Act's exhaustion requirement, a school board, a superintendent, and 10 employees were entitled to dismissal under Fed. R. Civ. P. 12(b)(6) since the minor and the minor's father had not exhausted their administrative remedies as required by 20 U.S.C. § 1415(f)(1)(A) and O.C.G.A. § 50-13-41(a)(1). Pope v. Cherokee County Bd. of Educ., 562 F. Supp. 2d 1371 (N.D. Ga. 2006).

Exhaustion of administrative remedies.

- Superior court did not err in dismissing a taxpayer's petition for judicial review of a decision of the Department of Revenue because the taxpayer failed to exhaust the administrative remedies available; the taxpayer never asked the commissioner of revenue to review the department's initial decision. Alexander v. Dep't of Revenue, 316 Ga. App. 543, 728 S.E.2d 320 (2012).

Administrative Procedures Act, O.C.G.A. § 50-13-1 et seq., clearly contemplates applications to an agency to review initial decisions in contested cases; accordingly, even when an agency refers administrative proceedings to an administrative law judge with the Office of State Administrative Hearings for an initial decision pursuant to O.C.G.A. § 50-13-41, a person aggrieved by the initial decision can make application to the agency under O.C.G.A. § 50-13-17 for review of that initial decision. Alexander v. Dep't of Revenue, 316 Ga. App. 543, 728 S.E.2d 320 (2012).

Revocation of teacher's certificate.

- Superior court exceeded the court's authority in overturning the Professional Standards Commission's (PSC) decision to revoke a teacher's teaching certificate because the PSC's decision had a rational basis since the record contained evidence of an adverse consequence to a female student as well as evidence about the teacher's lack of leadership and unprofessional behavior; the PSC specifically adopted an administrative law judge's findings of fact and conclusions of law based on the full record, and the superior court was bound to uphold the PSC's judgment because the record contained evidence supporting the sanction. Prof'l Stds. Comm'n v. Adams, 306 Ga. App. 343, 702 S.E.2d 675 (2010).

Compliance with appeal procedures of administrative decision required.

- In a case involving a white supremacist organization being denied a permit for the Adopt-A-Highway program administered by the Georgia Department of Transportation (Department), the court dismissed the Department's appeal for lack of jurisdiction because the Department sought review of a decision of a state administrative agency and was required under O.C.G.A. § 5-6-35(a)(1) to bring the Department's appeal by way of an application for discretionary review, but failed to do so. State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016).

Permit improperly reversed.

- Trial court reviewing an administrative law judge's (ALJ) decision affirming the issuance of a permit to build a dock over marshlands, under the Coastal Marshlands Protection Act of 1970, O.C.G.A. § 12-5-280 et seq., by the Coastal Marshlands Protection Committee (Committee) erroneously reversed the decision because the court focused on the Committee's decision, instead of deciding whether the ALJ correctly affirmed the Committee's decision, since the ALJ conducted a de novo review of the Committee's decision at which new evidence could be received. Coastal Marshlands Prot. Comm. v. Altamaha Riverkeeper, Inc., 315 Ga. App. 510, 726 S.E.2d 539 (2012).

Cited in M.T.V. v. Dekalb County Sch. Dist., 446 F.3d 1153 (11th Cir. 2006); Draper v. Atlanta Indep. Sch. Sys., 480 F. Supp. 2d 1331 (N.D. Ga. 2007); Carolina Tobacco Co. v. Baker, 295 Ga. App. 115, 670 S.E.2d 811 (2008); C&M Enters. of Ga., LLC v. Williams, 346 Ga. App. 79, 816 S.E.2d 44 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Hearings by Office of State Administrative Hearings.

- Unless otherwise exempted or excluded, contested cases not presided over by the agency head or board or body which is the ultimate decision maker are to be conducted by the Office of State Administrative Hearings. 1995 Op. Att'y Gen. No. 95-5.

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