Opinion 122

The Commission has been asked for an Advisory Opinion as to whether Administrative Law Judges and Hearing Officers who hear and decide contested cases for State and local executive branch agencies are subject to the Code of Judicial Conduct.

The Constitution of the State of Georgia of 1983, Article VI, Section VII, Paragraph VI provides in part:

The power to discipline, remove and cause involuntary retirement of Judges [our underscoring] shall be vested in the Judicial Qualifications Commission.

Article VI, Section VII, Paragraph VII of the Constitution also refers to Judges and authorizes the Supreme Court to adopt rules of implementation.

The Supreme Court in its opinion of Judicial Qualifications Commission v. Lowenstein, 252 Ga. 432 at 433:

It follows that this Court possesses the authority to regulate the conduct of Judges – including conduct during judicial elections.

The compliance section of the judicial code provides for its application to anyone who is “an officer of a judicial system performing judicial functions . . . .”

This limitation does not exclude a Hearing Officer or an Administrative Law Judge if he is in fact performing the functions of a judge.

In Opinion No. 66, this Commission has held that Directors of the State Board of Workers Compensation are subject to the Code of Judicial Conduct, and this opinion has been cited by the Court of Appeals in Delta Air Lines Inc. v. McDaniel, 176 Ga. App. 523 (1985). Also in Opinion No. 94, the Commission, in response to a question, advised a Hearing Officer retained part-time by the Georgia Public Service Commission that his conduct met the requirements of the judicial code with the implication at least that he was subject to the Code.

In Bentley v. Christian, 242 Ga. 348, 350 (1978), the Supreme Court defines an administrative agency as “a governmental authority, other than a Court or other than a legislative body, which affects the rights of private parties through either adjudication or rule making.” The Court continued “. . . they in addition, take on a judicial coloring in that frequently, within the exercise of their power, they are called to make factual determinations and thus adjudicate, and it is in that sense that they are also recurrently considered to be acting in a quasi-judicial capacity.”

It is difficult at times to distinguish between judicial or quasi-judicial proceedings and executive or quasi-executive proceedings.

In Mayor, etc. of Union Point, et al., v. Jones, et al., 88 Ga. App. 848 (1953), the Court of Appeals offered general guidelines.

Judicial or quasi-judicial action implies the interpretation, application and enforcement of existing law relating to subsequent acts of persons amenable thereto, rather than the setting up of rights and inhibitions; and embraces the determination of rights and interests of the adverse parties who are entitled, before adjudication, to notice and hearing, and the opportunity to present evidence under judicial forms. Administrative action, as defined in this State, includes not only merely ministerial actions, but many decisions by responsible public officers involving judgment and discretion; and such officers, in arriving at decisions, may be free to investigate and determine proper methods and procedures, although their final decision is ex parte in nature, as distinguished from decisions based upon evidence, which parties at interest have an absolute right to present and insist upon.

The Supreme Court of Georgia states, in distinguishing between an administrative and judicial act

. . . is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken. (Southview Cemetery Association v. Hailey, Chairman, et al., 199 Ga. 478, 481(1945)).

In the opinion of this Commission, any Administrative Law Judge or Hearing Officer who presides in a judicial or quasi-judicial proceeding, irrespective of what he or she is called and whether or not he or she is presiding for an executive branch agency, is a judge within the meaning of the Constitutional provisions and the Rules of the Supreme Court governing this Commission, and is therefore subject to the Code of Judicial Conduct.

[Pertinent Code of Judicial Conduct provisions: Rule 1.2(B), Compliance Provisions. Cross reference to other relevant opinions for review: #66, #94, #113, #173.]

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