GA Code § 21-5-6 (2021)
2021 Georgia Code|Title 21 - Elections|Chapter 5 - Ethics in Government|Article 1 - General Provisions|§ 21-5-6. Powers and Duties of the Commission

  The commission is vested with the following powers:   To meet at such times and places as it may deem necessary;   To contract with other agencies, public or private, or persons as it deems necessary for the rendering and affording of such services, facilities, studies, and reports to the commission as will best assist it to carry out its duties and responsibilities;   To cooperate with and secure the cooperation of every department, agency, or instrumentality in the state government or its political subdivisions in the furtherance of the purposes of this chapter;   To employ an executive secretary and such additional staff as the commission deems necessary to carry out the powers delegated to the commission by this chapter;   To issue subpoenas to compel any person to appear, give sworn testimony, or produce documentary or other evidence;   To institute and prosecute actions in the superior courts, in its own name, seeking to enjoin or restrain any violation or threatened violation of this chapter;   To adopt in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," any rules and regulations necessary and appropriate for carrying out the purposes of this chapter; provided, however, that the commission shall not require the reporting or disclosure of more information on any report than is expressly required to be reported or disclosed by this chapter, unless such information was required to be reported or disclosed by rules and regulations of the commission which were in effect as of January 1, 2013, so long as such rules and regulations do not conflict with this chapter; and   To do any and all things necessary or convenient to enable it to perform wholly and adequately its duties and to exercise the powers specifically authorized to it in this chapter.     The commission shall have the following duties:   To prescribe forms to be used in complying with this chapter;   To prepare and publish in print or electronically a manual setting forth recommended uniform methods of accounting and reporting for use by persons required by this chapter to file statements and reports;   To accept and file any information voluntarily supplied that exceeds the requirements of this chapter;   To develop a filing, coding, and cross-indexing system consonant with the purposes of this chapter;   To adopt a retention standard for records of the commission in accordance with Article 5 of Chapter 18 of Title 50, the "Georgia Records Act";   To prepare and publish in print or electronically such other reports and technical studies as in its judgment will tend to promote the purposes of this chapter;   To provide for public dissemination of such summaries and reports;   To determine whether the required statements and reports have been filed and, if so, whether they conform to the requirements of this chapter;   To make investigations, subject to the limitations contained in Code Section 21-5-7.1, with respect to the statements and reports filed under this chapter and with respect to alleged failure to file any statements or reports required under this chapter and upon receipt of the written complaint of any person, verified under oath to the best information, knowledge, and belief by the person making such complaint with respect to an alleged violation of any provision of this chapter, provided that nothing in this Code section shall be construed to limit or encumber the right of the commission to initiate on probable cause an investigation on its own cognizance as it deems necessary to fulfill its obligations under this chapter;     To conduct a preliminary investigation, subject to the limitations contained in Code Section 21-5-7.1, of the merits of a written complaint by any person who believes that a violation of this chapter has occurred, verified under oath to the best information, knowledge, and belief by the person making such complaint. If there are found no reasonable grounds to believe that a violation has occurred, the complaint shall be dismissed, subject to being reopened upon discovery of additional evidence or relevant material. If the commission determines that there are such reasonable grounds to believe that a violation has occurred, it shall give notice by summoning the persons believed to have committed the violation to a hearing. The hearing shall be conducted in all respects in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The commission may file a complaint charging violations of this chapter, and any person aggrieved by the final decision of the commission is entitled to judicial review in accordance with Chapter 13 of Title 50; provided, however, that nothing in this Code section shall be construed to limit or encumber the right of the commission to initiate on probable cause an investigation on its own cognizance as it deems necessary to fulfill its obligations under this chapter.   In any such preliminary investigation referenced in subparagraph (A) of this paragraph, until such time as the commission determines that there are reasonable grounds to believe that a violation has occurred, it shall not be necessary to give the notice by summons nor to conduct a hearing in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act";     To report suspected violations of law to the appropriate law enforcement authority;   To investigate upon a written complaint any illegal use of public employees in a political campaign by any candidate;   To issue, upon written request, and publish in print or electronically written advisory opinions on the requirements of this chapter, based on a real or hypothetical set of circumstances; and each such written advisory opinion shall be issued within 60 days of the written request for the advisory opinion. The commission shall make all advisory opinions that were issued after January 9, 2006, publicly available for review and shall post these and all future opinions on the commission's website, and the commission shall make all advisory opinions that were issued prior to January 9, 2006, publicly available for review and shall post these opinions on the commission's website. No liability shall be imposed under this chapter for any act or omission made in conformity with a written advisory opinion issued by the commission that is valid at the time of the act or omission;   To issue orders, after the completion of appropriate proceedings, directing compliance with this chapter or prohibiting the actual or threatened commission of any conduct constituting a violation. Such order may include a provision requiring the violator:   To cease and desist from committing further violations;   To make public complete statements, in corrected form, containing the information required by this chapter;     Except as provided in paragraph (2) of Code Section 21-5-7.1, to pay a civil penalty not to exceed $1,000.00 for each violation contained in any report required by this chapter or for each failure to comply with any other provision of this chapter or of any rule or regulation promulgated under this chapter; provided, however, that a civil penalty not to exceed $10,000.00 may be imposed for a second occurrence of a violation of the same provision and a civil penalty not to exceed $25,000.00 may be imposed for each third or subsequent occurrence of a violation of the same provision. In imposing a penalty or late filing fee under this chapter, the commission may waive or suspend such penalty or fee if the imposition of such penalty or fee would impose an undue hardship on the person required to pay such penalty or fee. The commission may also waive or suspend a penalty or fee in the case of failure to file or late filing of a report if there are no items to be included in the report. For the purposes of the penalties imposed by this division, the same error, act, omission, or inaccurate entry shall be considered a single violation if the error, act, omission, or inaccurate entry appears multiple times on the same report or causes further errors, omissions, or inaccurate entries in that report or in any future reports or further violations in that report or in any future reports.   A civil penalty shall not be assessed except after notice and hearing as provided by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The amount of any civil penalty finally assessed shall be recoverable by a civil action brought in the name of the commission. All moneys recovered pursuant to this Code section shall be deposited in the state treasury.   The Attorney General of this state shall, upon complaint by the commission, or may, upon the Attorney General's own initiative if after examination of the complaint and evidence the Attorney General believes a violation has occurred, bring an action in the superior court in the name of the commission for a temporary restraining order or other injunctive relief or for civil penalties for a violation of any provision of this chapter or any rule or regulation duly issued by the commission.   Any action brought by the Attorney General to enforce civil penalties for a violation of the provisions of this chapter or of any rule or regulation duly issued by the commission or any order issued by the commission ordering compliance or to cease and desist from further violations shall be brought in the superior court of the county of the residence of the party against whom relief is sought. Service of process shall lie in any jurisdiction within the state. In such actions, the superior court inquiry shall be limited to whether notice was given by the commission to the violator in compliance with the Constitution and the rules of procedure of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Upon satisfaction that notice was given and a hearing was held pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the superior court shall enforce the orders of the commission and the civil penalties assessed under this chapter and the superior court shall not make independent inquiry as to whether the violations have occurred.   In any action brought by the Attorney General to enforce any of the provisions of this chapter or of any rule or regulation issued by the commission, the judgment, if in favor of the commission, shall provide that the defendant pay to the commission the costs, including reasonable attorneys' fees, incurred by the commission in the prosecution of such action.    The commission shall make all such orders that were issued after January 9, 2006, publicly available for review and shall post these and all future orders on the commission's website, and the commission shall make all advisory orders that were issued prior to January 9, 2006, publicly available for review and shall post these orders on the commission's website. Such orders shall serve as precedent for all future orders and opinions of the commission;      To make public its conclusion that a violation has occurred and the nature of such violation;   To petition the superior court within the county where the hearing was or is being conducted for the enforcement of any order issued in connection with such hearing;   To report to the General Assembly and the Governor at the close of each fiscal year concerning the action taken during that time, the names, salaries, and duties of all individuals employed, and the funds disbursed and to make such further report on the matters within its jurisdiction as may appear desirable;   To carry out the procedures, duties, and obligations relative to the commission set forth in this chapter;   On a quarterly basis, to prepare, update, and publish in print or electronically a report and post such report on its website, listing the name of each filer required to file with the commission who has not filed the most recent campaign contribution disclosure report required by Code Sections 21-5-34 and 21-5-34.1, the financial disclosure statement required by Code Section 21-5-50, or the disclosure report required by Code Section 21-5-73 within 30 days of the date such report was due to be filed;   To publish in print or electronically overall lobbyist spending by category. Such categories shall include gifts, meals, entertainment, office supplies, lodging, equipment, advertising, travel, and postage;   To promulgate rules and regulations with respect to electronic filings;   To provide and conduct semiannual training on the mechanics of electronic filing and registration;   To award attorneys' fees to the party complained against if the commission deems the complaint to be frivolous, legally or factually, or if the complaining party fails, without good cause, to appear at the preliminary hearing on the complaint; and   To issue a warning letter to persons who have not filed any statement or report required by this chapter.       (Code 1981, §21-5-6, enacted by Ga. L. 1986, p. 957, § 1; Ga. L. 1987, p. 297, §§ 4, 5; Ga. L. 1992, p. 56, § 1; Ga. L. 2005, p. 859, § 5/HB 48; Ga. L. 2006, p. 69, § 1/SB 467; Ga. L. 2009, p. 620, § 1/SB 168; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2010, p. 1173, § 5/SB 17; Ga. L. 2011, p. 19, § 1/HB 232; Ga. L. 2011, p. 590, § 1/HB 143; Ga. L. 2013, p. 173, § 1/HB 143; Ga. L. 2013, p. 540, § 1/HB 142.)   Editor's notes.   - Ga. L. 2005, p. 859, § 28/HB 48, not codified by the General Assembly, provides that the Act shall not apply to any violation occurring prior to January 9, 2006.   Ga. L. 2010, p. 1173, § 1/SB 17, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Government Transparency and Campaign Finance Act of 2010.'"   Ga. L. 2010, p. 1173, § 30/SB 17, not codified by the General Assembly, provides, in part, that the amendment to this Code section applies to all reports filed on and after January 10, 2011.   Ga. L. 2011, p. 19, § 10/HB 232, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. It is the express intention of the General Assembly that this Act be applied retroactively to January 10, 2011, as well as prospectively." This Act became effective March 15, 2011.   Administrative Rules and Regulations.   - Organization, Official Compilation of the Rules and Regulations of the State of Georgia, State Ethics Commission, Chapter 189-1.   Law reviews.   - For article on the 2013 amendment of this Code section, see 30 Ga. St. U. L. Rev. 129 (2013).   JUDICIAL DECISIONS   Judicial enforcement of administrative subpoenas.    - In a case in which the Georgia Government Transparency and Campaign Finance Commission initiated a preliminary investigation and issued administrative subpoenas to the appellees, the Commission could seek judicial enforcement of the Commission's administrative subpoenas in accordance with the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq., because the subpoenas issued "commanded" and "compelled" the respective appellees to produce various communications and records; and those subpoenas sufficiently "ordered" the respective appellees to produce the requested materials, the alleged noncompliance with which would allow for the Commission to seek enforcement in the superior court. Ga. Gov't Transparency & Campaign Fin. Comm'n v. New Ga. Project Action Fund, 359 Ga. App. 32, 856 S.E.2d 733 (2021).   Commission's finding of reasonable grounds for violation not appealable.    - Candidate had not shown irreparable harm justifying immediate appeal to the superior court under O.C.G.A. § 50-13-19(a) from an interim decision of the Georgia Government Transparency and Campaign Finance Commission because judicial review would be available after the final decision; the charges had been pending over eight years and alleged damage to the candidate's reputation was not irreparable harm. Oxendine v. Gov't Transparency & Campaign Fin. Comm'n, 341 Ga. App. 901, 802 S.E.2d 310 (2017).   Attorneys' fees.    - The superior court erred in failing to award attorneys' fees to the commission after the commission prevailed in an enforcement action under the Ethics in Government Act, O.C.G.A. § 21-5-1 et seq. State Ethics Comm'n v. Long, 223 Ga. App. 621, 478 S.E.2d 618 (1996).   OPINIONS OF THE ATTORNEY GENERAL   Editor's notes.   - In light of the similarity of the statutory provisions, opinions decided under the former chapter are included in the annotations for this Code section.   Activities constituting "meeting" within meaning of Open Meetings Law.    - The activities conducted in accordance with O.C.G.A. § 21-5-6(b)(10)(A), including convening a quorum to hear testimony, taking evidence, considering arguments of the parties, deliberating, and imposing penalties, constitute a "meeting" within the meaning of the Open Meetings Law, O.C.G.A. § 50-14-1 et seq. Accordingly, the commission must conduct all of these activities regarding the resolution of a contested case in accordance with the dictates of the Open Meetings Law. 1989 Op. Att'y Gen. No. 89-6.   Recusal motion.    - The commission acting as a body, or through an individual member of the commission, has no express or implied statutory authority to rule on a motion to recuse one of its members; rather, the member against whom the recusal motion is filed must determine, in light of O.C.G.A. § 45-10-3, whether he or she should voluntarily abstain. 1989 Op. Att'y Gen. 89-9.    Commission is not authorized to grant exemptions from reporting and disclosure requirements of chapter.  1977 Op. Att'y Gen. No. 77-85 (decided under the former chapter).   Investigation of possible retrospective violations.   - The commission was authorized to investigate possible violations of the former chapter whether or not the questioned acts occurred prior to the commission's existence. 1976 Op. Att'y Gen. No. 76-52 (decided under the former chapter).   Two-year misdemeanor statute of limitations inapplicable to investigations.   - Investigative powers of Campaign and Financial Disclosure Commission (now State Ethics Commission) not barred by two-year misdemeanor statute of limitations. 1981 Op. Att'y Gen. No. 81-102 (decided under the former chapter).   Identifying persons not filing timely financial disclosure statements.   - While there is no statutory authority to compel local filing officers to report candidates or public officers who have not timely filed their financial disclosure statements, O.C.G.A. T. 21, Ch. 5 requires the Ethics Commission to identify such persons. 1987 Op. Att'y Gen. No. 87-26.   Who may adjust contribution limits.   - The Georgia Government Transparency and Campaign Finance Commission, and not its staff, is the regulatory body under Georgia law granted the discretionary ability to determine whether and to what extent to adjust contribution limits. There is no express grant of authority by the General Assembly that would permit the delegation of this discretionary duty to Commission staff. Therefore, only the Commission, not the staff, can alter contribution limits pursuant to the discretionary authority granted to the Commission by statute. 2020 Op. Att'y Gen. 20-3.