Administrative Procedures, Rulemaking, and Due Process
Administrative procedure questions test the difference between making policy and deciding a case, and whether the process behind a decision would survive judicial review.
Rulemaking
- State agencies follow the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq.: publish notice of intended rulemaking, allow public comment, file the adopted rule with the Secretary of State, and observe the statutory effective date.
- Cities and counties are not governed by the state APA. Their rulemaking authority comes from the charter and ordinances, but the same logic applies: notice, a chance to comment, and consistent application.
- Contested cases for state agencies are heard by the Office of State Administrative Hearings, with appeal to superior court on the record.
Due process
- Procedural due process requires notice reasonably calculated to inform and an opportunity to be heard at a meaningful time and in a meaningful manner, before an impartial decision-maker. The Mathews v. Eldridge test balances the private interest, the risk of error, and the government's burden.
- Substantive due process asks whether the rule itself is rational, a low bar for ordinary economic and land-use regulation.
- Due process bars bias and ex parte contact: a decision-maker who has already committed to a result, or who takes evidence privately, must recuse.
Legislative versus quasi-judicial
- Legislative acts, such as adopting a zoning ordinance or setting a fee, are policy decisions with broad discretion.
- Quasi-judicial acts, such as a variance, conditional use, permit denial, or license revocation, require applying adopted standards to specific facts, sworn or recorded evidence, findings of fact, and written reasons.
- Zoning: the Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq., requires published hearing notice at least 15 days in advance, written notice to the affected property owner, and public hearings before both the planning body and the governing body.
Worked example
A board denies a conditional use permit with no stated reason, after one member discussed the case privately with an objecting neighbor. Reasoning: this is a quasi-judicial decision; the ex parte contact taints impartiality, and the absence of findings leaves nothing to review. Expect remand for a new hearing with proper notice and written findings.
Traps that cost marks
Confusing legislative and quasi-judicial decisions; citing the state APA as binding on a city; deciding without findings; letting a member's private conversation substitute for evidence.