Title 45, Chapter 20, Section 9
( 45-20-9)
(a) Any laws to the contrary notwithstanding, all hearings on
dismissals, other adverse personnel actions, and other purported
violations of the rules and regulations in the several departments
which are included in the career service shall be instituted by
filing a written appeal with the Office of State Administrative
Hearings upon such ground and in such form and under such procedure
as may be prescribed by rules and regulations of the office. The
party appealing and the department from whose action the appeal is
taken shall be notified in writing within 15 days from the filing of
the appeal that an appeal has been filed and the time for which a
hearing is scheduled. (b) The State Personnel Board, any member of the board, or an
administrative law judge shall have the authority to do the
following in connection with any hearing on a dismissal or other
purported violation of the rules and regulations in the several
departments which are included in the career service: administer
oaths and affirmations; sign and issue subpoenas; rule upon offers
of proof; regulate the course of the hearing, set the time and place
for continued hearings, and fix the time for filing briefs; dispose
of motions to dismiss for lack of the board's jurisdiction over the
subject matter or parties or for any other ground; dispose of
motions to amend or to intervene; provide for the taking of
testimony by deposition or interrogatory; and reprimand or exclude
from the hearing any person for any indecorous or improper conduct
committed in the presence of the board or the administrative law
judge. (c) Subpoenas shall be issued without discrimination between public
and private parties. When a subpoena is disobeyed, any party may
apply to the superior court of the county where the hearing is being
held for an order requiring obedience. Failure to comply with such
order shall be cause for punishment as for contempt of court. The
costs of securing the attendance of witnesses, including fees and
mileage, shall be computed and assessed in the same manner as
prescribed by law in civil cases in the superior court. Once issued
a subpoena may be quashed by the board or an administrative law
judge if it appears that the subpoena was used primarily as a means
of harassment, that the testimony or documents sought are
cumulative, that the testimony or documents sought are not relevant,
that the testimony or documents sought are not material, that to
respond to the subpoena would be unduly burdensome, or that for
other good reasons basic fairness dictates that the subpoena should
not be enforced. (d) With respect to all hearings before the board or the
administrative law judge: (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 of Georgia shall be
followed. Evidence not admissible thereunder may be admitted if
it is of a type commonly relied upon by reasonably prudent men in
the conduct of their affairs. The board 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
interests 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
and at the discretion of the administrative law judge or board,
parties shall be given an opportunity to compare the copy with the
original; (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 recognizable facts.
In addition, official notice may be taken of technical facts
within the board's specialized knowledge. Parties shall be
notified either before or during the hearing by reference in
preliminary reports or otherwise of the material officially
noticed, including any staff memoranda or data; and they shall be
afforded an opportunity to contest the material so noticed. The
board's experience, technical competence, and specialized
knowledge may be utilized in the evaluation of the evidence. (e)(1) With respect to hearings at which the board did not preside
at the presentation of the evidence, the administrative law judge
who presided shall issue an initial decision within 30 days from
the close of the evidence or if necessary within a longer period
of time as ordered by the board or the administrative law judge.
The initial decision shall be transmitted to the board, and copies
shall be sent to the parties or their representatives. In the
absence of an application for review from an adversely affected
party to the board within 30 days from the date the initial
decision was issued or in the absence of an order by the board
within such time for review on its own motion, the decision shall
become the decision of the board without further proceedings or
notice; and any right of additional appeals shall be extinguished. (2) On review of the entire record from the administrative law
judge, the board shall have all the powers it would have in
presiding at the reception of the evidence, including the review
of any motions granted or denied by the administrative law judge
and including the review of any action taken by the administrative
law judge. Both parties shall have the right to present oral
arguments to the board. Any presentation to the board on the
matter by an administrative law judge shall be made in the
presence of the parties. No administrative law judge shall be
present during the board's deliberations and voting on the
application. At its discretion, the board may take additional
testimony or remand the matter to the administrative law judge for
such purpose. (f) Unless precluded by law, informal disposition of any proceeding
before the board or the administrative law judge may be made by
stipulation, agreed settlement, consent order, or default. (g) As a part of the initial decision or order subsequent to any
hearing, the administrative law judge or the board shall include
findings of fact and conclusions of law separately stated and the
effective date of the decision or order. Findings of fact, if set
forth in statutory language, shall be accompanied by a concise and
explicit statement of the underlying facts supporting the findings.
Copies of the decision or order shall be mailed to all parties of
record. (h) Any party, including the state and any state board, bureau,
commission, or department, who has exhausted all administrative
remedies available before the board and who is aggrieved by a final
decision or order of the board on any hearing may seek judicial
review of the final decision or order of the board in the superior
court of the county of the place of employment of the employee. (i) Proceedings for review shall be instituted by filing a petition
with the court within 30 days after the decision or order is
rendered. Copies of the petition shall be served upon the board and
all parties of record. The petition shall state the nature of the
petitioner's interest, the facts showing that the petitioner is
aggrieved by the decision of the board, and the grounds upon which
the petitioner contends the decision or order should be reversed or
remanded. The petition may be amended with leave of court. (j) Within 30 days after the service of the petition or within
further time allowed by the court, the board shall transmit to the
reviewing court the original or a certified copy of the entire
record of the proceeding under review. By stipulation of all
parties to the review proceeding the record may be shortened. A
party unreasonably refusing to stipulate to limit the record may be
taxed by the court for the additional costs. The court may require
or permit subsequent corrections or additions to the record. (k) The filing of the petition shall stay the enforcement of the
board's decision or order. (l) If before the date set for hearing the appeal by the superior
court application is made to the court for leave to present
additional evidence and it is shown to the satisfaction of the court
that the additional evidence is material and there were good reasons
for failure to present it in the proceedings before the board, the
court may order that the additional evidence be taken before the
board upon conditions determined by the court. The board may modify
its findings and decision or order by reason of the additional
evidence and shall file that evidence and any modifications, new
findings, or decisions and orders with the reviewing court. (m) The review shall be conducted by the court without a jury and
shall be confined to the record. The court shall not substitute its
judgment for that of the board as to the weight of the evidence on
questions of fact. The court may affirm the decision or order of
the board or remand the case for further proceedings. The court may
reverse the decision or order of the board if substantial rights of
the petitioner have been prejudiced because the board's findings,
inferences, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the board; (3) Made upon unlawful procedure; (4) Clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record; or (5) Arbitrary, capricious, or characterized by abuse of discretion
or clearly unwarranted exercise of discretion. (n) A party aggrieved by an order of the court in a proceeding
authorized under this Code section may appeal to the Supreme Court
of Georgia or the Court of Appeals of Georgia in accordance with
Article 2 of Chapter 6 of Title 5. |