O.C.G.A. § 50-13-41 (2019)

Annotations

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).

The 2019 amendments. The first 2019 amendment, effective May 7, 2019, added "; or the Department of Human Services in a contested case where the such department is required to be the ultimate decision maker by federal law or regulations governing titles IV-B and IV-E of the federal Social Security Act." at the end of paragraph (d)(1). The second 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentence of paragraph (d)(4).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2019, in paragraph (d)(1), single quotes were substituted for double quotes preceding and following "reviewing agency" near the beginning and "the" was deleted following "in a contested case where" near the end.

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.

U.S. Code. - The federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C.

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), cert. denied, 2019 Ga. LEXIS 52 (Ga. 2019).

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.