Did the Georgia Immigration Enforcement Review Board have a 60-day deadline from the filing of a complaint to hold a hearing on the merits?

Plain-English summary

Georgia created the Immigration Enforcement Review Board in 2011 (Act No. 252) as part of its broader immigration-enforcement legislation, often called HB 87. The Board hears complaints filed by registered Georgia voters against public agencies or employees alleged to have violated three statutes: the E-Verify employer requirements (§ 13-10-91), the prohibition on sanctuary-style policies (§ 36-80-23), and the verification-of-lawful-presence requirements (§ 50-36-1).

The Board's chairman asked the AG when, exactly, the 60-day deadline in § 50-36-3(g) started running. The statute said an "initial decision" had to be served on both parties "within 60 calendar days," but it did not say 60 days from what. Did the clock start when the complaint was filed, when the legal-sufficiency review ended, or when the hearing concluded?

The Board, exercising its rule-making authority under § 50-36-3(d)(3), had adopted a regulation (Ga. Comp. R. & Regs. r. 291-2-.03) reading the 60-day clock as running from the conclusion of the initial hearing. The AG agreed with that interpretation.

The AG's reasoning had three layers. First, the statute was ambiguous about the starting point, and an agency's reasonable interpretation of an ambiguous statute it administers gets "great weight and deference" (Owens Corning, Eastern Air Lines). Second, the legislature had been notified of the proposed rule, raised no objection, and had not amended the statute since, which courts treat as legislative acquiescence in the agency's reading. Third, reading the 60-day clock as running from the filing of the complaint would have produced unworkable results: the Board only had to meet once every three months, and a 60-day-from-filing window would not have left time for legal-sufficiency review, subpoena issuance, or a thoughtful hearing.

The AG's bottom-line answer: the Board had no statutory deadline from complaint to hearing, but it should still act with due diligence and hold hearings within a reasonable time. The 60-day deadline applied only to the period from the conclusion of the initial hearing to the issuance of the initial decision.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Who could file a complaint with the Board?
A: Under § 50-36-3(e), a complaint could be filed by a Georgia resident who was also a registered voter, against a public agency or public employee alleged to have violated § 13-10-91, § 36-80-23, or § 50-36-1.

Q: Did the Board have any other statutory deadlines?
A: Yes, two more: (1) a 30-day window for an agency or employee facing an adverse initial decision to take remedial action or show cause why sanctions should not be imposed, and (2) a 30-day window to appeal a panel decision to the full Board.

Q: Why did the AG defer to the agency's interpretation?
A: Two reasons. The statute was ambiguous about the starting point of the 60-day clock, so the agency's reasonable interpretation got deference. And the legislature had not objected when the rule was filed under the Administrative Procedure Act, nor had it amended the statute to override the rule.

Q: How often was the Board required to meet?
A: At least once every three months under § 50-36-3(f). The AG used this to show that a 60-day-from-filing reading of subsection (g) would have made compliance practically impossible.

Q: What kind of penalty could the Board impose?
A: The opinion did not lay out the sanction structure in detail. The statute generally allowed the Board to impose sanctions on agencies and employees found to have violated the underlying immigration statutes.

Q: Did this opinion say anything about the validity of the Board itself or HB 87?
A: No. The opinion was a narrow administrative-procedure question about the timing of decisions. The constitutional questions about HB 87 and similar state immigration enforcement laws were litigated in other forums.

Background and statutory framework

Georgia's HB 87 (2011) was one of several state-level responses to perceived federal underenforcement of immigration laws. It included requirements that public employers use E-Verify, prohibitions on sanctuary-style policies, and verification of lawful presence for public benefits. The Immigration Enforcement Review Board was the in-house enforcement mechanism: a seven-member panel (three appointed by the Governor, two by the Lieutenant Governor, two by the Speaker) that could hear complaints and impose sanctions.

The statute's procedural provisions were not the model of clarity. Subsection (g) said an "initial decision" had to be served within 60 days, but the antecedent for the 60 days was unclear because the prior subsection had not described any single triggering event. Three plausible candidates existed: filing of the complaint, completion of the initial review, and conclusion of the hearing.

The Board's procedural rules, adopted in January 2012, picked the third option. Filing triggered nothing on the clock. After legal-sufficiency review, the panel had to set a hearing not earlier than 30 days from the conclusion of the review. The 60-day clock began only after the hearing concluded. This three-stage architecture gave the Board space to do meaningful pre-hearing work without bumping into a fixed external deadline.

The AG's deference analysis tracked Georgia's standard administrative law: (1) where rule-making authority exists, agency interpretations of ambiguous statutes are given great weight; (2) legislative inaction in the face of an agency interpretation strengthens the inference that the agency reading is correct; and (3) a statute should be read in pari materia with the rest of the act to avoid producing absurd or impractical consequences.

Citations and references

Statutes:
- O.C.G.A. § 50-36-3 (Immigration Enforcement Review Board)
- O.C.G.A. § 13-10-91 (public employer E-Verify requirements)
- O.C.G.A. § 36-80-23 (prohibition on sanctuary policies)
- O.C.G.A. § 50-36-1 (verification of lawful presence for public benefits)
- O.C.G.A. § 50-13-4 (rule-adoption procedure under the APA)

Cases:
- Georgia Dep't of Revenue v. Owens Corning, 283 Ga. 489 (2008) (deference to agency interpretation)
- Undercofler v. Eastern Air Lines, Inc., 221 Ga. 824 (1966) (legislative acquiescence)
- Lilly v. Grand Trunk Western R.R., 317 U.S. 481 (1943) (regulations have force of law)

Source

• Landing page: https://law.georgia.gov/opinions/2013-1

Original opinion text

You have requested my opinion concerning the statutory time frames imposed upon the Immigration Enforcement Review Board ("Board") in which to conduct a hearing regarding a complaint filed with the Board pursuant to O.C.G.A. § 50‑36‑3. It is my official opinion that Georgia law imposes no specific time frame within which the Board must conduct a hearing on the merits of a complaint filed with the Board pursuant to O.C.G.A. § 50‑36‑3. BACKGROUND The Board was created by Act No. 252 (2011), which codified a new O.C.G.A. § 50‑36‑3. The Board is composed of seven members serving two year terms, with three members appointed by the Governor, two members appointed by the Lieutenant Governor, and two members appointed by the Speaker of the House. O.C.G.A. § 50‑36‑3(b). The Board exists to consider complaints filed against public agencies or employees who are alleged to have violated or otherwise failed to enforce the provisions of O.C.G.A. §§ 13‑10‑91, 36‑80‑23, or 50‑36‑1. O.C.G.A. § 50‑36‑3(d)‑(i). Complaints may be filed with the Board by a Georgia resident, who is also a registered voter, against a public agency or employee. O.C.G.A. § 50‑36‑3(e). The Board is then charged with determining whether the public agency or employee has violated those statutory provisions and, if so, determining an appropriate sanction against the public agency or employee. O.C.G.A. § 50‑36‑3(f)‑(i). The Board adopted rules on January 20, 2012, pursuant to the authority granted the Board in O.C.G.A. § 50‑36‑3(d)(3), establishing procedural guidelines for processing complaints filed with the Board. These rules are found at Georgia Comp. R. & Regs. rr. 291‑2‑.01 through 291‑2‑.05. Notice was provided to Legislative Counsel on December 16, 2011, of the intent to adopt the rules for both organization of the Board and procedural guidelines for processing complaints. Legislative Counsel notified the chairs of the Judiciary committees of both the House of Representatives and the State Senate on December 19, 2011, of the proposed rules. No legislative objection was made prior to the adoption of the Board's rules pursuant to O.C.G.A. § 50‑13‑4. Within the text of O.C.G.A. § 50‑36‑3, there are a number of time frames set forth governing the Board's actions. An initial decision must be served on both the complaining party and the agency or employee within sixty calendar days. O.C.G.A. § 50‑36‑3(g). If the findings are adverse to the agency or employee, the agency or employee has thirty days in which to take remedial action or otherwise show cause why sanctions should not be imposed by the Board. Id. If an initial decision is made by less than the full Board, the decision may be appealed by either the complainant or the public agency or employee to the full Board within thirty days of the issuance of the recommendation of sanctions, or within thirty days of the issuance of the initial decision if no adverse findings were made against the public agency or employee in the panel decision. O.C.G.A. § 50‑36‑3(i). Concerns have been raised with the Board concerning O.C.G.A. § 50‑36‑3(g), specifically the adoption of Georgia Comp. R. & Regs. r. 291‑2‑.03 governing time frames for conducting an initial hearing and issuing an initial decision following the conclusion of that initial hearing. As an initial matter, a panel, composed of at least two members of the Board, ("review panel") reviews a complaint for legal sufficiency. Georgia Comp. R. & Regs. r. 291‑2‑.02. If the complaint is determined to meet the minimum statutory and regulatory requirements, the review panel sets a hearing ("initial hearing") no earlier than thirty days from the conclusion of the initial review. Georgia R. & Regs. r. 291‑2‑.03(1). Upon the request of either party the review panel may arrange for transcription of the initial hearing or issue subpoenas. Georgia Comp. R. & Regs. r. 291‑2‑.03(2)-(3). The review panel shall issue its initial decision and serve both parties with a copy of that decision within sixty days of the conclusion of the initial hearing. Georgia Comp. R. & Regs. r. 291‑2‑.03(6). ANALYSIS An agency may adopt rules and regulations, if authorized to do so, which relate to the administration of its authority and are not in conflict with the statutory provisions at issue. Georgia Real Estate Comm'n v. Accelerate Courses in Real Estate, Inc. , 234 Ga. 30, 34 (1975). Rules adopted pursuant to a statutory delegation of authority "have the same force and effect as that of a statute." Georgia Public Serv. Comm'n v. Jones Transp., Inc. , 213 Ga. 514, 515 (1957). This position is consistent with that taken by the United States Supreme Court in determining that regulations promulgated pursuant to a delegation of rule‑making authority have the same force and effect as law. Lilly v. Grand Trunk Western R.R. , 317 U.S. 481, 488 (1943). The statute at issue provides: The initial review or hearing may, as determined by the board, be conducted by the full board or by one or more board members. Such review panel or members shall make findings and issue an initial decision. The initial decision shall be served upon the complaining party and the applicable public agency or employee that is the subject of a complaint within 60 calendar days. If the findings are adverse to the public agency or employee, or both, such party shall have 30 days to take the necessary remedial action, if any, and show cause why sanctions should not be imposed. O.C.G.A. § 50‑36‑3(g). The Board has determined, through its adoption of Georgia Comp. R. & Regs. r. 291‑2‑.03, that the sixty calendar day time frame in the statute sets a deadline for when an initial decision must be entered following the conclusion of the initial hearing on the complaint. The Board has not administratively imposed a deadline on itself for when a complaint must receive an initial review for legal sufficiency, and the only administratively imposed timeline on the Board for when an initial hearing may occur is that at least thirty days must elapse from the completion of the initial review before the initial hearing. Georgia Comp. R. & Regs. r. 291‑2‑.03(1). Within O.C.G.A. § 50‑36‑3(g), there is no clear condition precedent for the sixty calendar day time frame for issuing the initial decision. Prior to issuance of the initial decision, three events have necessarily occurred, to wit: filing of a complaint, reviewing a complaint for legal sufficiency, and conducting a hearing. There is nothing within the statute at issue that refers specifically to any of those events. Where an agency has rule‑making authority concerning a statute, an agency's interpretation of that statute will "be given great weight and deference." Georgia Dep't of Revenue v. Owens Corning , 283 Ga. 489, 490 (2008); see also Kelly v. Lloyd's of London , 255 Ga. 291, 293 (1985). Where the interpretation of a statute gives rise to ambiguity in interpretation, "much weight will be afforded" administrative interpretations of that statute by the relevant governmental agency. Undercofler v. Eastern Air Lines, Inc. , 221 Ga. 824, 832 (1966). The fact that the legislature has acquiesced in the agency's interpretation of the statute at issue by declining to interpose an objection to the adoption of the rules or adopting an amendment to the statute overruling the administrative rule also bolsters the agency's interpretation of the rule. See Undercofler , 221 Ga. at 831‑32; GMAC v. Jackson , 247 Ga. App. 141, 144‑45 (2000). No legislative objection was filed to the Board's adoption of its rules, nor has the General Assembly amended O.C.G.A. § 50‑36‑3 subsequent to the Board's adoption of its rules. When O.C.G.A. § 50‑36‑3(g) is read in pari materia with the remainder of the statute, support for the agency interpretation becomes even more apparent. The act of filing the complaint is not even referenced in O.C.G.A. § 50‑36‑3(g). The Board is only required to meet once every three months. O.C.G.A. § 50‑36‑3(f). If the sixty day time frame were to begin upon the filing of a complaint, the Board could necessarily find itself having no scheduled meeting falling within that sixty day window. Furthermore, a sixty day window from the filing of the complaint could leave the Board with insufficient time to conduct an initial review for legal sufficiency, to issue statutorily‑authorized subpoenas under subsection (e) for the production of necessary witnesses and documents, to conduct a hearing with sufficient members of the Board present, and to issue a thoughtful and reasoned initial decision. The Board's decision to adopt a rule that the initial decision must issue sixty days from the conclusion of the initial hearing is an appropriate use of the Board's regulatory authority given the ambiguity in the statute. Furthermore, apart from the three timelines mentioned supra concerning issuance of an initial decision, a response to an adverse initial decision by the public agency or employee, and an appeal of a panel decision to the full Board, there are no other statutorily imposed time restrictions on the Board and its handling of a complaint. Therefore, while the Board should act with due diligence and hold hearings within a reasonable period of time from the date that a complaint is received by the Board, it is my official opinion that there are no statutory time frames under O.C.G.A. § 50‑36‑3 within which the Board must conduct a hearing on a complaint received by the Board. It is my further opinion that the Board's administrative interpretation that the statutory time frame within O.C.G.A. § 50‑36‑3(g) refers to the date between the conclusion of the hearing and the issuance of the initial decision is the correct interpretation of O.C.G.A. § 50‑36‑3. Prepared by: RUSSELL D. WILLARD Senior Assistant Attorney General