Chapter 464-8 HEARINGS
Upon service of notice of adverse action, an officer or
applicant, within thirty (30) calendar days, must request to be heard and,
under oath, answer and respond to the notice of adverse action by either
admitting or denying each and every allegation presented in the case summary
attached to the notice of adverse action, or said adverse action becomes final.
All allegations which are not specifically answered are deemed to be admitted.
A request to be heard is defined as a clear written expression by the affected
party or authorized representative on his/her behalf to the effect that he/she
wants the opportunity to contest his/her case. For the purposes of
notification, mailing by certified mail to the last address specified on the
application or the last known address of the officer or applicant on the POST
Data Gateway system shall constitute proper service. Accompanying the request
for hearing and answer to each allegation under oath, the officer or applicant
must include the fee set by Council to have his/her case reviewed at a
pre-hearing conference.
The Council or Hearing Officer designated by the Council may
deny or dismiss a request to be heard for the following reasons:
| (a) |
It has been withdrawn by the affected
party; |
| (b) |
If the affected party or
his/her representative fails to appear at a hearing or settlement conference
scheduled for such affected officer; |
| (c) |
If the affected party or his/her
representative does not submit a written request for hearing and answer to the
allegations within thirty (30) days after the service of the notice of adverse
action; or |
| (d) |
If the affected
party or his/her representative fails to respond within thirty (30) calendar
days to correspondence from the Council following the pre-hearing settlement
conference; or |
| (e) |
If the affected
party fails to pay the requisite fee associated with such an appeal of adverse
action within thirty (30) days after service.
Following the dismissal of the request for hearing, the adverse
action proposed by Council becomes a final decision.
|
| 1. |
Prior to referral to the Office of State Administrative Hearings, a pre-hearing
conference will be held if the officer or applicant has made a request to be
heard. The officer (and his or her counsel, if any), a member of the POST
Council staff and an Assistant Attorney General may participate. The purpose of
the conference is to discuss any issues in dispute and to provide the parties
an opportunity to present any additional matters and/or evidence relevant to
the sanction being imposed by the Council. As a result of the conference, the
Pre-Hearings officer or Director of Operations, with the concurrence of the
Executive Director, may recommend that the Council's sanction be modified. The
Chairman of the Council, or the Vice-Chairman if the Chairman is unavailable,
shall be authorized to approve such modifications and such modification becomes
the recommendation of Council. |
| 2. |
Following the pre-hearing, upon service of notice of the result of the
pre-hearing conference, an officer or applicant, within thirty (30) calendar
days, may request to be heard at a full hearing before the Office of State
Administrative Hearings. This request must be made in writing, and must be
accompanied by the administrative hearing fee set by Council. If said officer
or applicant fails to request, within thirty (30) days, in writing, with the
required fee, a full hearing at OSAH, then the notice of adverse action becomes
final. |
The Hearing Officer (Administrative Law Judge) shall be
appointed by the Chief Administrative Law Judge of the Office of State
Administrative Hearings (O.S.A.H.), and shall have all the power and authority
set forth in O.C.G.A. § 50-13, and may preside at any conferences,
reviews, or hearings scheduled and/or conducted.
Any and all documents under these Rules are the exclusive
property of the Council and shall be surrendered upon demand pursuant to
proceedings under these Rules.
| (a) |
Any initial decision of the hearing
officer not identical to P.O.S.T. Council's initial action shall automatically
be reviewed by the Council. Any review of an initial decision of the hearing
officer shall be limited to the record. In the event either party wishes to
present evidence outside of the record, a written request to present such
evidence must be filed at least ten (10) days prior to Council review. A
description of the evidence must accompany any request and Council reserves the
right to deny the presentation of additional evidence. |
| (b) |
Pursuant to O.C.G.A. § 50-13-41(e)(3),
any initial decision of the hearing officer which is identical to Council's
initial action shall without further agency action become the final decision of
the Council. |
All appeals from final Council action shall be filed in
accordance with O.C.G.A. 35-8-.7.2.
| (a) |
A copy of any petition for judicial
review brought by an officer or applicant shall be provided to the Office of
State Administrative Hearings and the State Department of Law simultaneously
with the service of the petition upon the Council. A petition for judicial
review may be served upon the Council by personal service or certified mail
upon the Executive Director of the Council. |
| (b) |
Upon receipt of a petition, the Office of
State Administrative Hearings shall compile and certify the record to the
reviewing court on behalf of the Council. |
| (c) |
It shall be the burden of the party
filing a petition for judicial review to request and pay for a transcript of
the evidentiary hearing if the transcript is to be made a part of the record
sent to the reviewing court. |
| (d) |
Upon recommendation of the State Department of Law, the Chairman and Executive
Director of the Council upon agreement thereof, may take action on the behalf
of the Council on all matters, proceedings, civil actions, or other issues
involving litigation. |
