Chapter 189-2 PRACTICE AND PROCEDURE
The following words and terms as used in these rules shall have
the meaning hereinafter ascribed to them or as set forth in O.C.G.A. §
21-5 et seq.:
| (1) |
"Advisory Opinion"
an opinion issued by the Commission pursuant to its authority under O.C.G.A.
§ 21-5-6(b)(13).
The provision of information or advice by Commission staff in response to
questions shall not constitute an "advisory opinion" in terms of the law unless
such information or advice is formally adopted by the Commission pursuant to
O.C.G.A. § 21-5-6(b)(13). |
| (2) |
"Complainant" a person who files a
written complaint alleging a violation of one or more laws under the
jurisdiction of the Georgia Government Transparency and Campaign Finance
Commission. |
| (3) |
"Compliance Order"
a written document wherein the Commission and the Respondent agree and consent
to terms which may include findings of fact, conclusions of law, cease and
desist language, remedial action to be taken, oral or written statements to be
made or issued, prohibition of actual or threatened violations, the ordering of
actions necessary to correct cited deficiencies and a waiver of any appeal
rights. |
| (4) |
"Consent Order" a
written document wherein the Commission and the Respondent agree and consent to
terms which shall include admissions of violations by the Respondent, findings
of fact; conclusions of law, cease and desist language, imposition of civil
penalties, late filing fees, and/or administrative fees and which may include,
among other things, remedial actions to be taken, oral or written statements to
be made or issued, prohibition of actual or threatened violations, or the
ordering of actions necessary to correct cited deficiencies and a waiver of any
appeal rights. Consent Orders must be signed by the Respondent and received by
the Commission staff not later than seven (7) days prior to the date the case
is scheduled to be heard before the Commission, unless the Executive Secretary
has approved an extension of time. |
| (5) |
"Contested Case" a case that will proceed
to an administrative hearing in accordance with the Georgia Administrative
Procedure Act following a finding that there are reasonable grounds to believe
that the Georgia Government Transparency and Campaign Finance Act or other
statute under the jurisdiction of the Commission has been violated. |
| (6) |
"Credit Received on Loan" a contribution
received by a candidate or campaign committee for the forgiveness of a loan
and/or a portion of an outstanding loan carried by the candidate or campaign
committee. |
| (7) |
"Deferred Payment"
an expenditure for the payment of anything of value which is received by,
provided to, furnished to, or conveyed to/or on behalf of a candidate or a
campaign committee that was previously reported on a prior or current Campaign
Contribution Disclosure Report for the time period in which the thing of value
was provided. |
| (8) |
"End Recipient"
the person or entity paid for providing goods or services to benefit a
candidate, officeholder, or campaign committee regardless of whether such
payment is arranged, passed through, or paid by a third party or agent for the
candidate, officeholder, or campaign committee. |
| (9) |
"Frivolous Complaint" a complaint that
lacks a Legal Basis, Legal Merit, or factual basis to support the allegations
in said complaint, as alleged by the Complainant, that the Respondent violated
the Georgia Government Transparency & Campaign Finance Act. |
| (10) |
"Good Faith" a state of mind consisting
in (1) honesty in belief or purpose, (2) faithfulness to one's duty or
obligation, or (3) absence of intent to defraud or to seek unconscionable
advantage. |
| (11) |
"Hearing" a
proceeding before the Commission or its designated hearing officer for either
the consideration of a modification or a change in existing rules, or for an
adjudication of issues presented in a contested case, at which all parties at
interest are afforded an opportunity to present testimony, documentary evidence
and arguments, as to the matter under consideration. |
| (12) |
"Hearing Officer" an individual
designated by the Commission for the purpose of presiding over a hearing as
herein defined. |
| (13) |
"In-kind
expenditure" an expenditure of any goods or services for which a candidate or
campaign committee did not extend payment to an end-recipient for the goods or
services provided, but for which the campaign received the use / benefit of
said goods or services (e.g., A computer is loaned to the
campaign and the computer is returned to the donor upon the conclusion of the
campaign). |
| (14) |
"Independent
Expenditure" a political campaign communication that expressly advocates the
election or defeat of a clearly identified candidate that is not made in
cooperation, consultation, or concert with or at the request or suggestion of a
candidate or candidate's authorized committees. |
| (15) |
"Legal Basis" a legal principle or
statute which constitutes the basis for the claim that the Respondent violated
the Georgia Government Transparency & Campaign Finance Act. |
| (16) |
"Legal Merit" an argument that is
supported by a legal principle or statute, that is advanced by the Complainant
in Good Faith, that constitutes the basis for the claim that the Respondent
violated the Georgia Government Transparency & Campaign Finance
Act. |
| (17) |
"Loan Repayment" an
expenditure made by a candidate or campaign committee to retire or reduce any
outstanding loan carried by the candidate or campaign committee. Any such
expenditure must note and itemize which loan the payment is being applied to
(e.g., 2012 General Election Loan $500.00; and, 2012 Primary
Election Loan $1,000.00). |
| (18) |
"Local Filing Officer" a local filing officer is any person who supervises
and/or qualifies local officials for election to county and/or municipal
offices, said term shall include, but not be limited to, all county election
superintendents, municipal clerks, and chief executive officers of
municipalities. |
| (19) |
"Notice of
Hearing" a written statement of the substance of a specific charge alleging
violation of the statute, rule, or regulation to be considered at a hearing to
the person or party affected thereby, or of the substance of a proposed rule to
be considered, which will afford actual notice to all interested persons.
Notice shall be given in accordance with the Georgia Administrative Procedure
Act. |
| (20) |
"Preliminary Hearing" a
proceeding before the Commission for the purpose of deciding if there are
reasonable grounds to believe that the Georgia Government Transparency and
Campaign Finance Act or other statute under the jurisdiction of the Commission
has been violated, or if there are reasonable grounds to believe there has been
a failure to comply with any rule or regulation promulgated by the Commission,
and if the matter should be set down for a "Hearing" for the purpose of
determining whether a violation of the Georgia Government Transparency and
Campaign Finance Act or other statute within the jurisdiction of the Commission
and whether any sanctions should be imposed should a violation be found. This
term also specifically includes hearings held pursuant to the issuance of an
Administrative Subpoena. |
| (21) |
"Refund" any contribution (either cash or in-kind) which is returned by a
candidate or campaign committee to the original donor and not expended for
campaign purposes. A refund must be made in full to the donor making a
contribution if the campaign is refunding a single contribution; or pro rata to
all donors if the campaign is being terminated and excess funds must be
disposed of. All funds contributed to any candidate or campaign committee are
not personal assets of the candidate or committee and can only be disposed of
by refund to the donor(s) or transfer in accordance with O.C.G.A. § 21-5-33. |
| (22) |
"Respondent" a person against whom a
complaint is filed or who has been added as such by the Commission at a
preliminary hearing based on a finding of reasonable grounds to believe that a
violation of the Georgia Government Transparency and Campaign Finance Act has
occurred; or a person who has been named a Respondent by the Commission by
virtue of a finding of probable cause to open an investigation. |
| (23) |
"Rule" any regulation, standard, or
statement of general or particular applicability that implements, interprets,
or prescribes law or policy, or describes the organization, procedure, or
practice requirements of the Commission. |
| (24) |
"Substantial Compliance" the requirement
that all reports submitted pursuant to the Georgia Government Transparency and
Campaign Finance Act be at least 90% compliant with respect to technical
defects. |
| (25) |
"Technical Defect" an
inadvertent or scrivener's error in the preparation or making of a filing with
the Commission or with a local filing officer. "Technical defects" include such
mistakes as showing incorrectly or failing to show a date, a contributor's
occupation, an address, an email address or an employer, or other similar
errors. Accounting errors constitute technical defects if they include obvious
errors in addition or subtraction. The failure to list or show the disposition
of a contribution is not an accounting error that constitutes a "technical
defect." |
| (1) |
Availability of Declaratory Ruling. Any
person whose legal rights have been interfered with or impaired by the
application of any statutory provision or any rule or order of the Commission
may petition the Commission and request a declaratory ruling thereon. The
Commission will not render advisory opinions or resolve questions that become
moot or take any other action hereunder except with respect to cases upon which
a superior court would be required to act under the Georgia declaratory
judgment statutes as construed by the appellate courts of Georgia. |
| (2) |
Form of Petition. Each such petition
shall be filed with the Commission in writing and shall state:
| (a) |
The name, post office address, and e-mail
address of the petitioner; |
| (b) |
The
full text of the statute, rule, order upon which a ruling is
requested; |
| (c) |
A paragraph
statement of all pertinent and existing facts necessary to a determination of
the applicability of the quoted statute or rule; |
| (d) |
Petitioner's contention, if any, as to
the aforesaid applicability with citations of legal authorities, if any, that
authorize, support, or require a decision in accordance therewith; |
| (e) |
A statement setting forth in detail the
petitioner's interest in the matter and why and how the petitioner is uncertain
or insecure with respect to his rights. The petition shall be verified under
oath by, or in proper behalf of, the petitioner. |
|
| (3) |
Proceedings on Petition. If the
Commission shall determine that a decision can be rendered on the face of the
petition without further proceedings, it shall render a summary decision
thereon. Otherwise, all parties known by the Commission to have a legal
interest in the matter shall be notified and given an opportunity to be heard
at an informal hearing. |
| (4) |
Informal Request for Interpretation and Rulings. The provisions of this Rule
shall not be construed to preclude:
| (a) |
Any
person from requesting the Commission to interpret or otherwise rule upon the
applicability of any pertinent statute or rule informally by personal
appearance before the Commission, by letter or by telegram to the Commission;
or |
| (b) |
The Commission from acting
upon any such request whenever and however it deems appropriate, or from
issuing any interpretative ruling without petition therefor. |
|
| (5) |
Any request presented in any
manner other than in accordance with the provisions of this Rule shall not be
deemed to be filed as a Petition for Declaratory Ruling but shall be deemed an
informal request for interpretation or ruling and shall be acted on as
such. |
| (1) |
Form of
Complaint. All complaints to be considered by the Commission shall be filed in
writing with the Commission and shall contain the following:
| (a) |
The name, address, and e-mail address of
the person or persons who file the complaint. |
| (b) |
The sworn verification and signature of
the complainant. |
| (c) |
The name and
address of the party or parties against whom the complaint is filed, and if any
such party is a candidate, the office being sought by said candidate. |
| (d) |
A clear and concise statement of the
facts upon which the complaint is based along with an allegation that such
facts constitute one or more violations of the Georgia Government Transparency
and Campaign Finance Act or other law under the jurisdiction of the
Commission. |
| (e) |
A general reference
to the statutory provision(s) of the Georgia Government Transparency and
Campaign Finance Act, Vendor Gift Disclosure Law, Commission Rule, or any other
statute within the jurisdiction of the Commission allegedly violated by
respondent. |
| (f) |
Any further
information which might support the allegations in the complaint including, but
not limited to, the following:
| 1. |
The name and
address of all other persons who have firsthand knowledge of the facts alleged
in the complaint; |
| 2. |
Any
documentary evidence that supports the facts alleged in the
complaint. |
|
|
| (2) |
Technical Defects. Upon receipt of a
complaint that alleges technical defects, as defined in O.C.G.A. § 21-5-7.1
and by these Rules, Commission staff shall follow the requirements for handling
technical defects stated in O.C.G.A. § 21-5-7.1.
A respondent in receipt of a complaint sent to respondent pursuant to Rule
189-2-.03(3), below, may assert that the complaint contains technical defects
which have not been identified by Commission staff. The respondent must state
the grounds supporting the claim that a technical defect exists, provide all
supporting evidence supporting that assertion, and submit appropriate filings
correcting the technical defects. If, based on respondent's submission,
Commission staff agrees that technical defects did indeed exist, and, if the
technical defects are corrected, it shall treat the correction of the defects
consistent with the provisions of O.C.G.A. § 21-5-7.1.
If the alleged violations do not constitute technical defects or if they were
not corrected, Commission staff shall begin investigation on the complaint
consistent with the requirements of Rule 189-2-.03(5). |
| (3) |
Preliminary Action on the Complaint. Upon
receipt of a complaint, the Commission staff shall send a copy of the complaint
to the respondent affording an opportunity to respond to the complaint within
thirty (30) days in writing if desired. Responses or other documents submitted
by the Complainant or Respondent to the Commission after the thirty day period
may be disregarded by the Commission or staff during the preliminary
investigation or at the preliminary hearing. If additional violations are
discovered during the investigation of any complaint, notice shall be given to
the Respondent as to those additional violations. The Respondent shall then
have fourteen (14) days from the date of the notice to provide a response.
Otherwise, Commission staff shall present a Probable Cause petition to the
Commission. |
| (4) |
Defective
Complaint. Upon receipt of a written complaint which does not conform to the
requirements of paragraph (1) of this Rule, the Executive Secretary of the
Commission shall by letter acknowledge receipt of the complaint, advise the
complainant of the defect in the complaint and inform the complainant that the
complaint will not be considered by the Commission unless the defect is
corrected. |
| (5) |
Preliminary
Investigation of Complaint. The Commission staff shall conduct a preliminary
investigation of any non-defective complaint and recommend as a part of its
on-going investigation what further action, if any, should be taken. If the
Commission staff should determine, after completing its preliminary
investigation, that there is no evidentiary or jurisdictional basis for
proceeding on a complaint under the Georgia Government Transparency and
Campaign Finance Act or any other statute within the jurisdiction of the
Commission, then the staff shall so notify the Complainant and administratively
dismiss the complaint without requiring any formal action by the
Commission. |
| (6) |
Preliminary
Hearing. Following the preliminary investigation the complaint shall be
scheduled for a preliminary hearing before the Commission and the Complainant
and Respondent shall be notified of the scheduled hearing date. At such
hearing, the Commission shall determine whether there are reasonable grounds to
believe that a violation has occurred and if such a finding is made the matter
will be set down for a hearing pursuant to the Georgia Administrative Procedure
Act. The Respondent will have 30 days to initiate resolution of the matter with
Commission staff prior to an APA hearing. If the Commission finds no reasonable
grounds to believe a violation has occurred, the complaint shall be dismissed,
subject to being reopened upon discovery of additional evidence or relevant
material. |
| (7) |
Consideration of the
Complaint. If at the preliminary hearing it is determined that further action
is warranted, the Commission shall proceed as provided by law in contested
cases. Nothing in this rule shall require the Commission to dispose of any
matter in a single hearing nor shall this rule prevent the matter from being
subject to further investigation by the Commission staff. |
| (8) |
The Commission shall not initiate an
investigation on any complaint filed within thirty (30) days of an election in
which the subject of the complaint is a participant or candidate in said
election. |
Commission staff, when it discovers or learns of evidence that
a violation of the Georgia Government Transparency and Campaign Finance Act or
any other statute within the jurisdiction of the Commission may have occurred,
may initiate, on reasonable belief that probable cause exists, an investigation
into suspected violations of laws or rules under its jurisdiction as it deems
necessary. In such case, the applicable procedures found in Rules
189-2-.03,
189-2-.05, and
189-2-.06 shall be followed in the
investigation. The respondent shall be notified by the Commission staff in
writing of the initiation of the investigation and of the basis for the finding
of probable cause to open the investigation. The Commission staff shall not be
required to file the Complaint form described in Rule
189-2-.03(1) nor to
follow the procedures required under that Rule.
After the initial investigation and preliminary hearing have
been completed, and if reasonable grounds to believe a violation of the
Campaign Finance Act has occurred have been found, a matter becomes a contested
case and shall be scheduled for hearing pursuant to the Administrative
Procedure Act. The rules of that Act and of the Office of State Administrative
Hearings shall govern contested cases, in addition to the rules of the Georgia
Government Transparency and Campaign Finance Commission.
Regular meetings of the Georgia Government Transparency and
Campaign Finance Commission shall be conducted, to the extent practicable, in
accordance with Robert's Rules of Order, which are hereby adopted as the Rules
of Procedure for conducting such meeting. The Chairman of the Commission, or
the Commissioner acting in that capacity, shall have the authority to make
rulings regarding procedural matters and issues coming before the Commission. A
majority (of a quorum) of the Commission may alter, amend, or reverse any such
procedural ruling. A copy of Robert's Rules of Order will be maintained by the
Executive Secretary of the Commission and available at all regular
meetings.
| (1) |
Whenever
Commission staff is informed by a local filing officer or determines
independently that a candidate, public officer, or other person required to
file a Personal Financial Disclosure Statement, Campaign Contribution
Disclosure Report, or any other document under the jurisdiction of the
Commission, has failed to file or has failed to properly file any required
report or document or has omitted information required to be disclosed by law
or has included false or misleading information on such a document, Commission
staff will determine if technical defects apply, initiate an investigation, and
begin an enforcement action, as may be appropriate. |
| (2) |
Administrative Subpoena.
| (a) |
If it is deemed appropriate by Commission
staff in the course of an investigation or to secure witnesses or documents at
a hearing before or on behalf of the Commission, an Administrative Subpoena may
be served to obtain relevant documents or the attendance of a
witness. |
| (b) |
If a person or entity
to whom an administrative subpoena has been issued objects to the subpoena,
such person shall file before the Commission a motion to quash the subpoena
within ten (10) business days of receipt of the subpoena. Commission staff or
their counsel may duly respond to such a motion. The Commission shall hear and
rule upon the motion at its next regularly scheduled meeting or at a specially
called meeting, and compliance with the subpoena shall be stayed until a ruling
by the Commission is made upon the motion. |
|
| (3) |
Following the completion of an initial
investigation all matters not administratively dismissed or solely containing
technical defects shall be scheduled for hearing before the Commission and a
Notice of Hearing pursuant to Rule
189-2-.05 shall issue. |
| (1) |
After completion of appropriate
proceedings, the Commission or its duly appointed officer may:
| (a) |
Dismiss the case if no violation is
found. |
| (b) |
Issue a Compliance
Order. |
| (c) |
Issue an Order,
including a Consent Order, finding one or more violations of law under the
jurisdiction of the State Ethics Commission, and imposing civil penalties as
provided by law, including but not limited to:
| (i) |
Assessment of civil penalties in a dollar
amount not to exceed the maximum authorized per violation times the number of
violations found; and |
| (ii) |
Order
the filing or amending of any delinquent or deficient document or report
required to be filed by law under the jurisdiction of the State Ethics
Commission and on a form or in the manner required by the Commission, within a
certain time period with copies to be filed with the Commission; and |
| (iii) |
Ordering such other actions as
necessary to bring about compliance with the law, including prohibiting the
actual or threatened commission of any conduct constituting a
violation. |
|
| (d) |
Suspend
the hearing and report all preliminary findings to any prosecutorial authority
for any action deemed appropriate. |
| (e) |
Postpone findings and any possible
penalty for rescheduling and consideration of the matter at a future meeting,
and subject to the taking of any interim action suggested by the Commission as
dispositive in lieu of further proceedings. |
|
| (2) |
If a Hearing Officer hears a contested
case and issues an Initial Decision:
| (a) |
The
Initial Decision will become the Final Decision by operation of law unless the
Respondent or Attorney General's office makes a written request for review by
the Commission within 30 days of the filing of the Initial Decision. Nothing in
the Rules shall be construed to prevent the Commission, within 30 days of the
Initial Decision, from ordering a review of any Initial Decision rendered by
the duly appointed Hearing Officer. |
| (b) |
If the Respondent or Attorney General's
office files a motion for review within 30 days of Initial Decision of the
Hearing Officer, the Respondent or Attorney General's office shall include
therein a statement of the reasons for seeking review and alleged errors made
by the Hearing Officer in the Initial Decision. The Commission's review will be
limited to those issues raised by the Respondent or Attorney General's office
in the motion for review or by the Commission in its order for
review. |
| (c) |
Upon the filing of a
motion for review within 30 days of the Initial Decision, by the Respondent or
Attorney General's office, or upon the filing of a timely order for review by
the Commission on its own motion, notice of the date and time for the review
shall be served on the Respondent or counsel for the Respondent and Attorney
General's office. |
| (d) |
On review of
the Initial Decision, the Commission shall have all the powers it would have in
making the Initial Decision, and in its discretion shall have the power to take
additional testimony or remand the case to the original hearing officer for
such purpose, as provided in the Administrative Procedure Act and in accordance
with this rule. The Respondent or Respondent's counsel and the Attorney
General's office shall docket any motion, including motions to present
additional evidence, at least fourteen (14) days before the date set for the
Review Hearing. Responses to any such motions shall be docketed at least seven
(7) days before the date set for the Review Hearing.
| (i) |
Motions to present additional evidence or
to remand the case to the original hearing officer for such purpose shall be
granted only if the additional evidence is material and there was good cause
for failing to present such evidence before the original hearing officer. The
Commission shall enter an order as to the legal sufficiency of all motions,
including motions for the presentation of additional evidence, prior to the
Review Hearing. |
| (ii) |
Unless the
Commission has granted a motion to present additional evidence, the Commission
shall not receive any additional evidence by testimony or through documents at
the Review Hearing. When represented by counsel at the Review Hearing, only
counsel for the Respondent is permitted to make oral argument on behalf of the
Respondent. When represented by counsel, unless the Commission has granted a
motion to allow the additional testimony of the Respondent at the Review
Hearing, the Respondent may not make a statement to the Commission, and any
questions of the Respondent by the Commission shall be directed to the
Respondent's counsel. During oral argument, questions by the Commission and the
responses thereto shall not exceed the scope of the record under review unless
the Commission has granted a motion to present additional evidence. |
|
| (e) |
Oral argument up to twenty
(20) minutes per side is permitted in the Review Hearing. Additional time for
argument must be requested in writing and docketed at least fourteen (14) days
before the date set for the Review Hearing. |
| (f) |
Once the Review Hearing is concluded, the
Commission shall deliberate as to the Final Decision in open session. At the
conclusion of the deliberations, the vote of the matter shall be conducted in
open session. |
|
All civil penalties imposed by the Commission shall be made
payable to the Georgia Government Transparency and Campaign Finance Commission,
and such funds shall be processed for delivery pursuant to the Georgia
Government Transparency and Campaign Finance Act.
The Commission shall assess reasonable and necessary attorney's
fees and expenses of litigation in any administrative action pending before the
Commission, upon the motion of the Respondent or the Commission itself, if it
finds that a Complainant or the Complainant's counsel filed a Complaint, or any
related pleading thereto, that is frivolous, which shall include, but not be
limited to, a complaint or pleading that lacks a Legal Basis, Legal Merit, or
factual basis to support the claims made therein.
| (1) |
Whenever a Respondent desires to seek an
award of attorney's fees against a Complainant pursuant of O.C.G.A. § 21-5-6(b)(23)
on the grounds that the latter filed a complaint that was frivolous, the
Respondent and Complainant shall comply with, to the extent practicable, the
following rules of procedure.
| (a) |
Respondent
may include in their initial answer to the Complaint, inter
alia, a request for attorney's fees pursuant to O.C.G.A. § 21-5-6(b)(23). |
| (b) |
In the alternative, Respondent may also
file, at any time before a final judgment in said case is rendered by the
Commission, a separate motion requesting attorney's fees pursuant to O.C.G.A.
§ 21-5-6(b)(23).
If the Respondent is filing a separate motion, said motion shall comply with
subsection (d) of this rule as detailed below. |
| (c) |
The Respondent's request (either by
responsive pleading or separate motion) shall include, but not be limited to,
the following:
| 1. |
A clear and concise
statement of the facts upon which the Respondent asserts to support their claim
that the complaint lacks a Legal Basis, Legal Merit, or factual basis to
support the claims made therein against them. |
| 2. |
A clear and concise statement of the legal
argument upon which the Respondent asserts to support their claim that the
complaint lacks a Legal Basis, Legal Merit, or factual basis to support the
claims made therein against them. |
| 3. |
A clear and concise statement as to the
amount of attorney's fees that are being requested. Said statement shall be
accompanied by, but not limited to, a copy of the Respondent's outstanding
attorney's fee invoice that has been received as of the date of the request.
Moreover, the Respondent shall update their request, if applicable, by
submitting a copy of their current attorney's fee invoice within 48 hours of
the hearing on their request for attorney's fees. |
|
| (d) |
If the Respondent files a separate motion
requesting attorney's fees pursuant to O.C.G.A. § 21-5-6(b)(23),
said motion shall be filed directly with the Commission and an exact copy of
said motion shall also be served upon the Complainant (at the Complaint's last
known address as contained in the Complaint filed with the Commission) by the
Respondent. Service shall occur concurrently with the filing of said motion
with the Commission. Service of the motion requesting attorney's fees shall be
considered effectuated upon the Complainant by the transmittal of said motion
via regular U.S. mail or via standard commercial carrier to include, but not
limited to, UPS and FedEx. |
| (e) |
If
the Respondent files a written request for attorney's fees (either by motion,
answer or responsive pleading), the Complainant shall be afforded an
opportunity to file a written response to the Respondent's written request for
attorney's fees, said response period shall be no less than fifteen (15)
business days from the date of service of the Respondent's written request for
attorney's fees with the Commission. The Complainant's written response shall
be filed directly with the Commission and an exact copy of said response shall
also be served upon the Respondent (at the Respondent's last known address as
contained in the Respondent's answer, responsive pleading or motion requesting
attorney's fees) by the Complainant, said service shall occur concurrently with
the filing of said response with the Commission. Service of the written
response shall be considered effectuated upon the Respondent by transmittal of
said response via regular U.S. mail or via standard commercial carrier to
include, but not limited to, UPS and FedEx. Any response in opposition to the
Respondent's request for attorney's fees shall include, but not be limited to,
the following:
| 1. |
A clear and concise
statement of the facts upon which the Complainant asserts to support their
claim that the complaint does not lack a Legal Basis, Legal Merit, or factual
basis to support the claims made therein against the Respondent. |
| 2. |
A clear and concise statement of the legal
argument upon which the Respondent asserts to support their claim that the
complaint does not lack a Legal Basis, Legal Merit, or factual basis to support
the claims made therein against the Respondent. |
|
| (f) |
Attorney's fees awarded pursuant to
O.C.G.A. § 21-5-6(b)(23)
and the applicable rules of the Commission shall not exceed the amounts which
are reasonable and necessary for defending or asserting the rights of the
Respondent. Further, no award for attorney's fees shall exceed the actual
amount of attorney's fees that were expended by the Respondent in the case
constituting the grounds for the request for attorney's fees. |
| (g) |
No Complainant and no attorney
representing same shall be assessed attorney's fees as to any claim which the
Commission determines was asserted by said Complainant or attorney in a Good
Faith attempt to establish a new theory of law in Georgia if such new theory of
law is based on some recognized precedential or persuasive authority. Further,
the Commission shall judge whether a complaint or subsequent pleading is
frivolous based upon the information that was publicly available to the
Complainant at the time the complaint or subsequent pleading was made, and not
upon information that was subsequently discovered by the Commission's staff in
their investigation. |
| (h) |
An award
of attorney's fees under these rules and pursuant to O.C.G.A. § 21-5-6(b)(23)
shall be determined by an order of Commission and said order shall be reduced
to writing by Commission staff at the conclusion of the Commission's hearing.
Further, any such order awarding attorney's fees shall constitute a binding
order of the Commission subject to further enforcement as provided by Georgia
law. |
|
The Commission may on its own motion or upon the request of any
party may in its discretion conduct any and all proceedings which are
authorized to be conducted by the Commission by telephone or video conference
with the attorneys for all affected parties, and with the parties and all
necessary witnesses in the case of preliminary hearings, administrative
hearings, final hearings, or other proceedings.
| (1) |
The Commission's presiding officer or
hearing officer may specify:
| (a) |
The time and
the person who will initiate the conference; |
| (b) |
The party which is to incur the initial
expense of the conference, or the apportionment of such costs among the
parties, while retaining the discretion to make an adjustment of such costs
upon final resolution of the case by taxing same as part of the costs;
and |
| (c) |
Any other matter or
requirement necessary to accomplish or facilitate the telephone or video
conference. |
|
| (2) |
As this
rule relates to preliminary hearings, administrative hearings and final
hearings, the following requirements shall apply:
| (a) |
Said hearings shall comply with the
Georgia Open Meetings Act. |
| (b) |
Said
hearings shall comply with the applicable provisions of the Georgia Government
Transparency and Campaign Finance Act, the Administrative Procedure Act and the
Consolidated Rules and Regulations of the Commission. |
| (c) |
Notice shall be given to the parties and
the public that a proceeding will occur partially or wholly by remote telephone
or video conferencing. Such notice may be given by any means authorized by the
Georgia Open Meetings Act. |
| (d) |
If a
party or a member of the public objects to the remote proceeding, the
Commission's presiding officer or hearing officer shall sustain or overrule
such objection prior to commencing the proceeding. |
| (e) |
Members of the public shall be given an
opportunity to view the remote proceedings, such as by joining the telephone or
video conference, through a livestream of the proceeding, or through
substantially similar means of viewing. The Commission will have the sole
discretion to determine which parties and persons may participate in any remote
proceeding conducted by telephone or video conference. |
|
