Georgia Department of Law, from the office of Michael J. Bowers, Attorney General

Official Opinion 95-5

February 14, 1995

Chief Administrative Law Judge


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.

A number of state agencies have requested my official opinion regarding the types and categories of administrative hearings that are to be transferred to the newly enacted Office of State Administrative Hearings. O.C.G.A. § 50-13-40 et seq. I am taking this opportunity to consolidate these requests into a single response directed to you.

The questions center on the application of O.C.G.A. § 50-13-41 which provides in part:

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.

An administrative agency is an official authority, other than a court or legislative body, which affects the rights of private parties through either adjudication or rulemaking. Bentley v. Chastain, 242 Ga. 348, 350 (1978). In addition to acting in a quasi-legislative rulemaking manner, agencies may act in a quasi-judicial capacity to make factual determinations. Robbins v. Lumpkin, 187 Ga. App. 489, 492 (1988). However, this authority to resolve disputes must be specifically delegated to the agency by law. Pope v. Cokinos, 231 Ga. 79, 81 (1973); Chilivis v. National Distrib. Co., 239 Ga. 651, 655 (1977). With some exceptions, these administrative

hearings are governed by the Georgia Administrative Procedure Act ("APA"). O.C.G.A. § 50-13-1 et seq.

The Georgia APA provides that unless specifically precluded by statute, a contested case may be heard by the agency or "any agency representative who has been selected and appointed by the agency for such purpose." O.C.G.A. § 50-13-13 (a)(5). When the agency representative makes the initial decision, the agency retains legal responsibility for the decision. See Georgia Real Estate Comm'n v. Horne, 141 Ga. App. 226 (1977); Department of Public Safety v. MacLafferty, 230 Ga. 22 (1973).

The administrative hearings conducted on behalf of the Department of Natural Resources [DNR] pursuant to O.C.G.A. § 12-2-2(c)(2) are somewhat different from the pattern outlined above. Code Section 12-2-2(c)(2) provides that the "decision of the administrative law judge [appointed by the Board of DNR] shall constitute the final decision of the board and any party to the hearing, including the director [of DNR], shall have the right of judicial review thereof in accordance with [the APA]." Official Code of Georgia Annotated § 50-13-42 specifically excludes from the Office of State Administrative Hearings all agencies currently excluded from the APA under O.C.G.A. § 50-13-2(1) and, in addition, the Public Service Commission, State Health Planning Agency, the Health Planning Review Board, and unemployment insurance benefit hearings.

The clear legislative intent is to transfer administrative hearings where the decisions are made by other than the agency head or governing board or body. The administrative law judge appointed by the Department of Natural Resources is not "the agency head, board or body." The fact that O.C.G.A. § 12-2-2(c)(2) provides that the administrative law judge's decisions are final agency decisions does not convert this administrative process to one where the Commissioner or the Board of Natural Resources itself presides over the hearings. Thus these hearings are therefore to be transferred to the new agency.

A large number of agencies have adopted rules and regulations making the recommendation of the hearing officer or agency representative the final decision of the agency. Other agencies have adopted procedures to treat certain categories of initial decisions as the final agency determination. These hearing officers function as the "ultimate decision maker" for the agency. For the reasons discussed above, these administrative hearings must be transferred to the new Office of State Administrative Hearings.

The authority to make quasi-judicial decisions is delegated by the legislature to an administrative agency. An agency may not issue "'a rule or regulation which is inconsistent or out of harmony with, or which alters, adds to, extends or enlarges, subverts, or impairs, limits, or restricts the act being administered . . . It is the statute, not the agency, which directs what shall be done.'" Georgia Real Estate Comm'n v. Warren, 152 Ga. App. 283, 285 (1979); also see Atlanta Journal v. Hill, 257 Ga. 398 (1987) (attempt to amend city charter to delegate subpoena power of city council to a panel insufficient to convey authority and thus void).

Finally, there are questions as to which type or classification of hearings are transferred to the new agency. Any agency not excluded from the Administrative Procedure Act pursuant to O.C.G.A. § 50-13-2(1) and not specifically exempted from operation of the Office of State Administrative Hearings as set out in O.C.G.A. § 50-13-42, must transfer their contested cases according to the requirements of the Act. Which cases are considered contested cases is determined by application of the APA, O.C.G.A. § 50-13-2(2). "Contested case" is defined as "a proceeding, including, but not restricted to, rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing." For purposes of transfer, a contested case means any type or classification of disputes in which an agency seeks to determine a party's rights, duties or privileges after a hearing. See Drummond v. Fulton County Dep't of Family & Children Services, 237 Ga. 449, 455 (1976).

For example, the Department of Human Resources [DHR] identifies seventy-nine separate categories of hearings that may fall within the transfer requirement. A few specific examples will provide guidance to the agency in making the initial determination. The revocation or suspension of a license, permit, certification or other similar right must be preceded by an "opportunity for a hearing." O.C.G.A. § 31-5-2. On the other hand, there is no hearing provided pursuant to O.C.G.A. § 31-10-25 dealing with disclosure of information from, or access to, vital records. That Code Section does not create a hearing right but simply provides that the decision of the records custodian may be appealed to the state registrar, whose decision is binding. There is also no hearing provided by O.C.G.A. § 30-6-5 prior to the establishment by a statewide council of standards and guidelines for personal assistance programs. DHR also lists the category of child support recovery hearings, public assistance or benefit programs, and mental health/mental retardation/substance abuse hearings. In general, the specific statute contains an explicit hearing requirement. For example, a hearing is required pursuant to O.C.G.A. §§ 19-11-15 (hearing required to establish child support obligation if department unable to secure a voluntary support agreement from parent), 48-7-165 (DHR must provide hearing to taxpayer to determine setoff for unpaid child support), and 31-27-11 (civil penalty may be imposed on any person violating control of mass gathering statute after a hearing). The fact that the hearing requirement is imposed by federal law or regulation rather than state law does not affect the requirement that the hearing process be shifted to the new agency. Official Code of Georgia Annotated § 50-13-43 requires the Office of State Administrative Hearings to comply with all federal statutes, regulations and guidelines, including all procedural requirements.

The new office is intended to be independent of state agencies and is responsible for the impartial adjudication of administrative hearings. O.C.G.A. § 50-13-40. The new Act does not make major changes in substantive law but does implement important changes in the relationship of covered state agencies to the hearing process. Therefore, it is my official opinion 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.

Prepared by:

Senior Assistant Attorney General