Administrative Procedure Act – Georgia
The Georgia Administrative Procedure Act (“Act”) is found under Title 50, Chapter 13, Article 1 of the Official Code of Georgia Annotated. The purpose of the Act is to provide a procedure for administrative determination and regulation which is authorized by law, statute or the constitution of Georgia.
According to O.C.G.A. § 50-13-3, an agency must adopt as a rule the description of its organization, method of operation and procedures through which the public can obtain information. An agency must also make available for public inspection all rules, final orders, decisions, non-confidential opinions and other written statements of policy or interpretations.
O.C.G.A. § 50-13-3 states that before adopting, amending or repealing a rule an agency must give 30 days’ notice of the intended action, provide reasonable opportunity to all interested persons to submit their views, data, opinions or arguments either orally or in writing.
Every agency must file a certified copy of all the previously adopted rules with the secretary of state. Further according to O.C.G.A. § 50-13-7, the secretary of state must compile, index and publish all the rules adopted by each agency either by printing or electronically. The courts must take judicial notice of all the rules adopted in accordance with this Act.
According to O.C.G.A. § 50-13-9, any interested person can ask the agency for promulgation, amendment or appeal of a rule. Within 30 days after the submission of the petition, the agency can either allow the petition by initiating rule-making proceedings or can deny the petition stating its reasons in writing.
In some situations, strict application of the rule making procedures will lead to unfair results. It is appropriate in such cases for the agencies to adopt a procedure in order to provide relief to persons subject to the regulation. Therefore, variances and waivers will be granted to a person as per section O.C.G.A. § 50-13-9.1 if, s/he shows that the purpose of the underlying statute can be achieved by other means and that the actual procedure will create substantial hardship to him/her and violate principles of fairness. According to the section, variance means decision by an agency to grant modifications in the literal requirements of a rule to a person and waiver means decision not to apply any part of a rule to a person.
According to O.C.G.A. § 50-13-10, a person can seek a declaratory judgment against the validity of a rule, variance or waiver, if its application damages the legal rights of that person. An action for declaratory judgment can be brought in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. If the petitioner is a corporation, then action can be brought either in the Superior Court of Fulton County or in the superior court of the county where the petitioner maintains principal place of business in the state. The agency will be a party to the action and a copy of the petition must be served on the attorney general.
O.C.G.A. § 50-13-13 provides that in a contested case every party will be given an opportunity for hearing after serving reasonable notice. The parties will also be given the opportunity to be represented by legal counsel and to respond to and present evidence. Subpoenas will also be issued to both public and private parties. In all contested cases, there will be a record which includes:
- All pleadings, motions and intermediate ruling;
- A summary of oral testimony and other evidences received;
- Questions and offers of proof and rulings;
- Any decision, opinion or report by the presiding officer;
- A statement of matters officially noticed;
- Proposed findings and exceptions;
- All staff memoranda and data submitted to the hearing officer or members of agency connected to the consideration of the case.
In contested cases, any person will be permitted to intervene when:
- A statute confers an unconstitutional right to intervene;
- The representation of an applicant’s interest is inadequate;
- A statute confers a conditional right to intervene;
- Applicant’s claim or defense and the main action have a question of law or fact in common.
Intervention will not be permitted if it will unduly delay or prejudice the adjudication of the rights of existing parties.
According to O.C.G.A. § 50-13-13, any person who is aggrieved by the final decision in a contested case and has exhausted all administrative remedies can file a petition for judicial review in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. Also, a party aggrieved of the final judgment of the superior court can obtain a review from the Court of Appeals or the Supreme Court, as provided by law. Review of the final judgment of an administrative law judge will also be conducted like the review of final judgment of a superior court.
This Act will not limit the constitutional rights of a person or repeal additional requirements imposed by any other statute. The Act will not reduce the delegation of authority to an agency and also will not create any substantial rights.