The Georgia Administrative Procedure Act (the "Act"), see O.C.G.A. § 50-13-1 et seq., gives agency procedures for administrative determinations and regulations where such powers are authorized by law. Namely, the Act provides for procedures that an agency must follow in order to adopt new rules and regulations, details the procedural rules and remedies relevant to agency proceedings, and provides for judicial review of both intermediate and final agency decisions.
This week, the Court of Appeals of Georgia decided that the Act allows for Superior Courts to enforce administrative subpoenas issued during the preliminary investigative period, without a live case in the court system. See Georgia Government Transparency And Campaign Finance Commission v. New Georgia Project Action Fund/New Georgia Project, Fair County f/k/a Third Sector Development, and AFG Group, Inc. d/b/a Stacey Abrams for Governor, A20A1818, 2021 WL 978772 (Ga. Ct. App. Mar. 16, 2021).
The Georgia Government Transparency and Campaign Finance Commission (the "Commission") initiated investigations after receiving a complaint that the Stacey Abrams for Governor campaign "engaged in coordination with a number of third-party nonprofit organizations that materially benefited the campaign." Id. at *1. The Commission issued administrative subpoenas to the Appellees to obtain relevant documentation and communication regarding the purported coordination. Id. The Commission sought the Fulton County Superior Court to compel Appellees to produce the requested documents after receiving partial or incomplete responses. Id. The trial court stated it lacked jurisdiction to hear the matter because the Georgia Administrative Procedure Act does not allow for the Superior Courts to compel subpoenas stemming from an investigation. Id.
The key provision of the Act in dispute is contained in O.C.G.A. § 50-13-13(b):
In proceedings before the agency, the hearing officer, or any representative of the agency authorized to hold a hearing, if any party or an agent or employee of a party. . . neglects to produce, after having been ordered to do so, any pertinent book, paper, or document. . . the agency, hearing officer, or other representative shall have the same rights and powers given the court under Chapter 11 of Title 9, the Georgia Civil Practice Act. If any person. . . refuses as specified in this subsection, the agency, hearing officer, or other representative may certify the facts to the superior court of the county where the offense is committed for appropriate action, including a finding of contempt.
The issues on appeal were whether "in proceedings before the agency" encompasses preliminary investigations and whether the Commission's administrative subpoenas "ordered" the Appellees to produce the requested documents. The Court of Appeals concluded yes to both of these questions.
First, the Court noted that the Act does not define "proceedings before the agency." Id. at *2. Reviewing the Act as a whole, the Court notes that at times the language references "contested cases" and at other times the Act references "proceedings before the agency." Id. Specifically, there are three provisions that were reviewed to bolster support that "proceedings before the agency" is much broader than "contested cases" and includes investigations. The Court states:
The General Assembly utilized the phrase “contested case” in both subsections (a) and (c), but not subsection (b). Additionally, while O.C.G.A. § 50-13-13 (b) initially uses the term “party” – which can be understood as a participant in a contested case, see O.C.G.A. § 50-13-2 (2) and (4) – subsection (b) later provides that it is applicable to “any person,” not just a party. More significantly, subsection (c) provides, in part, that “[s]ubsection (a) of this Code section and the other provisions of this chapter concerning contested cases shall not apply to any case arising in the administration of the revenue laws[.]”
Georgia Government Transparency And Campaign Finance Commission, 2021 WL 978772 at *3. The Court notes that while the matter before it did not involve the revenue laws, subsection (c) is directly on point because the language of that subsection specifically states that it is only subsection (a) (along with other unidentified provisions of the Act) that specifically "concern[s] contested cases." Id. Lastly, the Court looked to Black's Law Dictionary where the term "administrative proceeding" includes investigation in its definition. Id. citing Black’s Law Dictionary (11th ed. 2019). As such, the Court found that administrative subpoenas issued during the investigative stage of a matter is subject to O.C.G.A. § 40-13-13(b)'s option to compel in the Superior Courts. Georgia Government Transparency And Campaign Finance Commission, 2021 WL 978772 at *3.
The second question before the court, whether the Commission's administrative subpoenas "ordered" the Appellees to produce the requested documents was also answered in the affirmative. The Court largely relied on the analysis that any other reading of the statute, "would require that an agency, as a prerequisite to seeking relief in the superior court, issue some unspecified formal order to compel compliance with its own subpoena after a person or party has already neglected to comply with an agency’s demand for the production of materials." Id. at *4. Further, the Court stated, "the plain language of subsection (b) does not hint at such a fruitless endeavor, and this interpretation would be unreasonable in light of our conclusion that OCGA § 50-13-13 (b) is applicable to agency “proceedings” occurring outside the strictures of formal adjudicative hearings." Id.
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