Administrative Law - Mark H. Cohen and David C. Will

• Publication year: 1999

SURVEY ARTICLES

Administrative Lawby Mark H. Cohen^* and

David C. Will^**

This Article covers important developments in Georgia administrative law for the two-year period from June 1, 1997 through May 31, 1999. Because administrative law has been omitted from major consideration in the Annual Survey of Georgia Law since 1987,¹ this Article is an attempt to cover an additional period of review, which, the authors hope, will be continued in future surveys. This Article includes cases as well as a discussion of two significant legislative enactments during the survey period.

I. Overview

An historical overview of the progression and importance of administrative law in Georgia reveals how far and fast this area of law has developed. Today, administrative law undoubtedly impacts more individual lives than does our court system. Back in the earliest editions of the Georgia Survey, Professor Maurice Gulp, who penned the first fifteen annual surveys of administrative law, bemoaned the "dearth of judicial development" in the area and opined that "prompt and thorough development of administrative law in Georgia must come from a pioneering legislative effort."² As if taking the cue, the 1964 Georgia General Assembly enacted the Georgia Administrative Procedure Act ("APA"),³ which Professor Culp called "perhaps the most important single advance in administrative law [in Georgia] during this century."⁴

The expressed statutory purpose of the APA is not to "create or diminish any substantive rights or delegated authority," but "to provide a procedure for administrative determination and regulation where expressly authorized by law or otherwise required by the Constitution or a statute of this state."⁵ In reality, the APA fulfills two important legal purposes. First, and foremost, the APA "resolve[s] conflicts within the authority vested in administrative agencies without resort to courts of record in the first instance."⁶ Second, the APA provides "uniform, minimum procedural requirements to be followed by an administrative agency in determining the legal rights, duties or privileges of a party, in matters in which the particular agency regulates."⁷

In the thirty-five years since the APA's inception, what may have begun as a dearth of cases exploring the parameters of administrative law has turned into a plethora of judicial decisions on issues concerning the promulgation of administrative regulations, the administrative hearing process, the availability of judicial remedies, and the standards for appellate review.

This Article analyzes the appellate decisions issued during the survey period that discuss many of these issues. The Georgia Court of Appeals reviewed the validity of agency regulatory actions in different contexts, and the General Assembly enacted a new law permitting the granting of variances and waivers to agency rules. The appellate courts discussed several issues relating to the administrative hearing process, including whether statements made during an agency investigation are privileged, the availability of any recourse if an administrative decision is untimely, the extent to which a summary determination is appropriate, the impact of the denial of the right to confront witnesses, and an agency's reversal of an administrative law judge's recommendation.

This Article further reviews the principle requiring exhaustion of administrative remedies and the availability of other forms of equitable relief. The courts continued to reaffirm, if not expand, the use of the "any evidence rule" as a standard of review in various circumstances. Two cases also dealt with the ability to appeal a superior court's decision involving an administrative order to an appellate tribunal. Finally, this Article discusses two cases interpreting recent legislative changes to Georgia's open records and open meetings laws.

II. Rules and Regulations

A. Validity of Agency Interpretations

When the General Assembly enacts laws of general application, it usually delegates to administrative agencies the authority to carry out its legislative mandates by the promulgation and adoption of rules and regulations.⁸ An agency "has only such powers as the legislature has expressly, or by necessary implication, conferred upon it."⁹

When a statute provides broad regulatory authority to an agency, great weight is given to the agency's interpretation of the law, as long as it is consistent with the statutory framework. In St. Joseph's Hospital, Inc. v. Thunderbolt Health Care, Inc.,¹⁰ the court of appeals reviewed the decision of the State Health Planning Agency ("SHPA") granting a certificate of need for the addition of eleven nursing home beds to St. Joseph's, which proposed to accomplish this addition by the conversion of general acute care hospital beds into "subacute care" beds in a skilled nursing unit.¹¹ On appeal by Thunderbolt, the trial court reversed SHPA's decision because it "was improper."¹² Because the statute was silent as to the definition of a "nursing home," the focus of the appeal was whether "subacute care" equated to "nursing home" service. While the agency's rules did not precisely resolve the issue, the agency's health planning expert testified that subacute care was consistent with skilled nursing care.¹³ The court of appeals gave credence to that interpretation and reversed the trial court's decision, concluding that "[t]he interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference."¹⁴ Unless an agency's interpretation of its enabling statute or its rules exceeds the authority granted to it by the legislature,¹⁵ reviewing courts are required to give that interpretation controlling weight.¹⁶

Nevertheless, the appellate courts will not hesitate to invalidate an administrative regulation that they find violative of the pertinent enabling statute. In Georgia Public Service Commission v. Alltel Georgia Communications Corp.,¹⁷ the Public Service Commission ("PSC") initiated an administrative action to interpret and implement a section of The Telecommunications and Competition Development Act of 1995¹⁸ that provides for an alternative form of regulation for certain local exchange companies.¹⁹ The court of appeals, after conducting a detailed analysis of the enabling law, held that the PSC's interpretation violated the terms of the statute.²⁰

The bottom line for any person seeking to challenge the validity of an administrative rule is that absent a showing that the rule is not authorized by statute or is unreasonable,²¹ the appellate court will usually give an agency broad leeway in promulgating and adopting regulations.

B. Variances and Waivers to Administrative Rules

The APA sets forth the procedural requirements for the adoption, amendment, or repeal of a rule or regulation.²² Prior to 1997, the only-means available to avoid the application of an agency rule were to petition the agency to amend or repeal the rule²³ or to ask for a waiver of the rule if the agency's rules permitted such a request.²⁴ The strict application of certain rules occasionally caused somewhat inequitable results.²⁵

In an effort to give agencies the authority to modify a rule or to exempt its application to avoid significant and unintended hardship without having to go through the formal APA rulemaking process, the 1997 General Assembly amended the APA to permit the granting of variances or waivers to agency rules.²⁶ Based upon a similar provision in the Florida Administrative Procedure Act,²⁷ the law now permits many agencies²⁸ to grant a variance²⁹ or waiver³⁰ if the person subject to a rule

demonstrates that the purpose of the underlying statute upon which the rule is based can be or has been achieved by other specific means which are agreeable to the person seeking the variance or waiver and that strict application of the rule would create a substantial hardship to such person.³¹

To obtain a variance or waiver, a person subject to a rule must first file a petition that meets specific statutory prerequisites.³² A register of pending requests for variances or waivers and those that have been approved is required to be posted on GeorgiaNet, which is the state's official Internet website.³³ The agency's decision, which must be issued in writing, can be appealed by filing either (1) a petition for judicial review if the original petitioner's request is denied, or (2) an action for declaratory judgment by some other interested party if the waiver or variance is granted.³⁴

III. Administrative Hearings

A. Statements Made During Investigations

Prior to bringing formal allegations against a particular license or permit holder, usually following a complaint lodged by a private citizen, an administrative agency often will conduct an investigation of the charges. In Skoglund v. Durham,³⁵ the court of appeals addressed the question, apparently one of first impression, of whether statements made during such an investigation are entitled to the absolute privilege that is afforded to parties for allegations contained in pleadings filed in civil actions.

After Skoglund filed an application to obtain a broker's license from the Georgia Real Estate Commission, a couple who claimed they had been defrauded by Skoglund filed a request for the commission to investigate his conduct. Skoglund then filed a defamation action against the couple, which the trial court dismissed, finding that the allegations made in the request to investigate were entitled to an absolute privilege.³⁶

On appeal the court reviewed the policy behind O.C.G.A. section 51-58, which applies an absolute privilege for "'[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought.'"³⁷ In analyzing the nature of the proceeding before the commission, the court found it to be quasi-judicial because the...