Georgia Advisory Opinions January 01, 2013: GA Atty. Gen. Op. No 2013-1

March 20, 2013

Chairman,

Immigration Enforcement Review Board

While the Immigration Enforcement Review Board should act with due diligence and hold hearings within a reasonable period of time from the date that a complaint is received by the Board, the Board is under no statutory deadline to hold a hearing on the merits of a complaint filed pursuant to O.C.G.A. § 50-36-3 within a specified period of time from the date that the complaint is received.

You have requested my opinion concerning the statutory time frames imposed upon the Immigration Enforcement Review Board (“Board”) in which to conduct a hearing regarding a complaint filed with the Board pursuant to O.C.G.A. § 50-36-3.  It is my official opinion that Georgia law imposes no specific time frame within which the Board must conduct a hearing on the merits of a complaint filed with the Board pursuant to O.C.G.A. § 50-36-3.

BACKGROUND

The Board was created by Act No. 252 (2011), which codified a new O.C.G.A. § 50-36-3.  The Board is composed of seven members serving two year terms, with three members appointed by the Governor, two members appointed by the Lieutenant Governor, and two members appointed by the Speaker of the House.  O.C.G.A. § 50-36-3(b).  The Board exists to consider complaints filed against public agencies or employees who are alleged to have violated or otherwise failed to enforce the provisions of O.C.G.A. §§ 13-10-91, 36-80-23, or 50-36-1.  O.C.G.A. § 50-36-3(d)-(i).  Complaints may be filed with the Board by a Georgia resident, who is also a registered voter, against a public agency or employee.  O.C.G.A. § 50-36-3(e).  The Board is then charged with determining whether the public agency or employee has violated those statutory provisions and, if so, determining an appropriate sanction against the public agency or employee.  O.C.G.A. § 50-36-3(f)-(i).

The Board adopted rules on January 20, 2012, pursuant to the authority granted the Board in O.C.G.A. § 50-36-3(d)(3), establishing procedural guidelines for processing complaints filed with the Board.  These rules are found at Georgia Comp. R. & Regs. rr. 291-2-.01 through 291-2-.05.  Notice was provided to Legislative Counsel on December 16, 2011, of the intent to adopt the rules for both organization of the Board and procedural guidelines for processing complaints.  Legislative Counsel notified the chairs of the Judiciary committees of both the House of Representatives and the State Senate on December 19, 2011, of the proposed rules.  No legislative objection was made prior to the adoption of the Board’s rules pursuant to O.C.G.A. § 50-13-4.

Within the text of O.C.G.A. § 50-36-3, there are a number of time frames set forth governing the Board’s actions.  An initial decision must be served on both the complaining party and the agency or employee within sixty calendar days.  O.C.G.A. § 50-36-3(g).  If the findings are adverse to the agency or employee, the agency or employee has thirty days in which to take remedial action or otherwise show cause why sanctions should not be imposed by the Board. Id. If an initial decision is made by less than the full Board, the decision may be appealed by either the complainant or the public agency or employee to the full Board within thirty days of the issuance of the recommendation of sanctions, or within thirty days of the issuance of the initial decision if no adverse findings were made against the public agency or employee in the panel decision.  O.C.G.A. § 50-36-3(i).

Concerns have been raised with the Board concerning O.C.G.A. § 50-36-3(g), specifically the adoption of Georgia Comp. R. & Regs. r. 291-2-.03 governing time frames for conducting an initial hearing and issuing an initial decision following the conclusion of that initial hearing.  As an initial matter, a panel, composed of at least two members of the Board, (“review panel”) reviews a complaint for legal sufficiency.  Georgia Comp. R. & Regs. r. 291-2-.02.  If the complaint is determined to meet the minimum statutory and regulatory requirements, the review panel sets a hearing (“initial hearing”) no earlier than thirty days from the conclusion of the initial review.  Georgia R. & Regs. r. 291-2-.03(1).  Upon the request of either party the review panel may arrange for transcription of the initial hearing or issue subpoenas.  Georgia Comp. R. & Regs. r. 291-2-.03(2)-(3).  The review panel shall issue its initial decision and serve both parties with a copy of that decision within sixty days of the conclusion of the initial hearing.  Georgia Comp. R. & Regs. r. 291-2-.03(6).

ANALYSIS

An agency may adopt rules and regulations, if authorized to do so, which relate to the administration of its authority and are not in conflict with the statutory provisions at issue. Georgia Real Estate Comm’n v. Accelerate Courses in Real Estate, Inc. , 234 Ga. 30, 34 (1975).  Rules adopted pursuant to a statutory delegation of authority “have the same force and effect as that of a statute.” Georgia Public Serv. Comm’n v. Jones Transp., Inc. , 213 Ga. 514, 515 (1957).  This position is consistent with that taken by the United States Supreme Court in determining that regulations promulgated pursuant to a delegation of rule-making authority have the same force and effect as law. Lilly v. Grand Trunk Western R.R. , 317 U.S. 481, 488 (1943).

The statute at issue provides:

The initial review or hearing may, as determined by the board, be conducted by the full board or by one or more board members. Such review panel or members shall make findings and issue an initial decision. The initial decision shall be served upon the complaining party and the applicable public agency or employee that is the subject of a complaint within 60 calendar days. If the findings are adverse to the public agency or employee, or both, such party shall have 30 days to take the necessary remedial action, if any, and show cause why sanctions should not be imposed.

O.C.G.A. § 50-36-3(g).

The Board has determined, through its adoption of Georgia Comp. R. & Regs. r. 291-2-.03, that the sixty calendar day time frame in the statute sets a deadline for when an initial decision must be entered following the conclusion of the initial hearing on the complaint.  The Board has not administratively imposed a deadline on itself for when a complaint must receive an initial review for legal sufficiency, and the only administratively imposed timeline on the Board for when an initial hearing may occur is that at least thirty days must elapse from the completion of the initial review before the initial hearing.  Georgia Comp. R. & Regs. r. 291-2-.03(1).

Within O.C.G.A. § 50-36-3(g), there is no clear condition precedent for the sixty calendar day time frame for issuing the initial decision.  Prior to issuance of the initial decision, three events have necessarily occurred, to wit: filing of a complaint, reviewing a complaint for legal sufficiency, and conducting a hearing.  There is nothing within the statute at issue that refers specifically to any of those events.

Where an agency has rule-making authority concerning a statute, an agency’s interpretation of that statute will “be given great weight and deference.” Georgia Dep’t of Revenue v. Owens Corning , 283 Ga. 489, 490 (2008); see also Kelly v. Lloyd’s of London , 255 Ga. 291, 293 (1985).  Where the interpretation of a statute gives rise to ambiguity in interpretation, “much weight will be afforded” administrative interpretations of that statute by the relevant governmental agency. Undercofler v. Eastern Air Lines, Inc. , 221 Ga. 824, 832 (1966).  The fact that the legislature has acquiesced in the agency’s interpretation of the statute at issue by declining to interpose an objection to the adoption of the rules or adopting an amendment to the statute overruling the administrative rule also bolsters the agency’s interpretation of the rule. See Undercofler , 221 Ga. at 831-32; GMAC v. Jackson , 247 Ga. App. 141, 144-45 (2000).  No legislative objection was filed to the Board’s adoption of its rules, nor has the General Assembly amended O.C.G.A. § 50-36-3 subsequent to the Board’s adoption of its rules.

When O.C.G.A. § 50-36-3(g) is read in pari materia with the remainder of the statute, support for the agency interpretation becomes even more apparent.  The act of filing the complaint is not even referenced in O.C.G.A. § 50-36-3(g).  The Board is only required to meet once every three months.  O.C.G.A. § 50-36-3(f).  If the sixty day time frame were to begin upon the filing of a complaint, the Board could necessarily find itself having no scheduled meeting falling within that sixty day window.  Furthermore, a sixty day window from the filing of the complaint could leave the Board with insufficient time to conduct an initial review for legal sufficiency, to issue statutorily-authorized subpoenas under subsection (e) for the production of necessary witnesses and documents, to conduct a hearing with sufficient members of the Board present, and to issue a thoughtful and reasoned initial decision.

The Board’s decision to adopt a rule that the initial decision must issue sixty days from the conclusion of the initial hearing is an appropriate use of the Board’s regulatory authority given the ambiguity in the statute.  Furthermore, apart from the three timelines mentioned supra concerning issuance of an initial decision, a response to an adverse initial decision by the public agency or employee, and an appeal of a panel decision to the full Board, there are no other statutorily imposed time restrictions on the Board and its handling of a complaint.

Therefore, while the Board should act with due diligence and hold hearings within a reasonable period of time from the date that a complaint is received by the Board, it is my official opinion that there are no statutory time frames under O.C.G.A. § 50-36-3 within which the Board must conduct a hearing on a complaint received by the Board.  It is my further opinion that the Board’s administrative interpretation that the statutory time frame within O.C.G.A. § 50-36-3(g) refers to the date between the conclusion of the hearing and the issuance of the initial decision is the correct interpretation of O.C.G.A. § 50-36-3.