Campbell v. Board of Medical Examiners

• Decision Date: 21 May 1974
• Citation: 518 P.2d 1042,16 Or.App. 381
• Parties: Donald Fletcher CAMPBELL, Petitioner, v. BOARD OF MEDICAL EXAMINERS for the State of Oregon, Respondent.
• Court: Oregon Court of Appeals

Page 1042

518 P.2d 1042

16 Or.App. 381

Donald Fletcher CAMPBELL, Petitioner, v. BOARD OF MEDICAL EXAMINERS for the State of Oregon, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Nov. 28, 1973.

Decided Feb. 11, 1974.

Review Denied May 21, 1974.

Nels Peterson, Portland, argued the cause for petitioner. With him on the brief were Peterson, Chaivoe & Peterson, and Phillip M. Margolin, Portland.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and Foley and THORNTON, JJ.

THORNTON, Judge.

This is a proceeding for judicial review of an order of the Board of Medical Examiners.

In 1957 petitioner was granted a license to practice medicine in Oregon. In 1967 petitioner's license registration was changed to inactive, out-of-state, when he moved to Oklahoma to accept a position with a federal agency. In 1971 petitioner returned to Oregon and submitted an application for active registration to respondent Board. The Board, after considering the matter, denied petitioner's application, stating that it based its refusal on ORS 677.170(3). ¹

Petitioner sets forth numerous assignments of error. The basic issue, however, is whether the proceedings were in conformity with applicable statutes and complied with due process requirements, so as not to prejudice substantial rights of the petitioner.

The following is a chronology of the events that led up to the challenged hearing:

In December 1970, while working in Oklahoma, petitioner requested information from the Oregon Board of Medical Examiners concerning a change of registration from inactive to active upon his return to this state. The Board advised petitioner by letter that he would have to file an affidavit concerning his activities since leaving the state in 1967.

On August 2, 1971, petitioner informed the Board that he was practicing medicine at the Astoria Clinic in Astoria, Oregon. On August 3 the Board advised petitioner that he could not practice medicine without an active license and requested him to file an affidavit describing his activities since leaving the state. This affidavit, dated August 4, was filed with the Board on August 5.

The Board's answer, dated August 25, 1971, stated in part:

'The Board conducted an investigation based upon the information furnished to the Board in your affidavit. The results of this investigation disclosed that your conduct has been such during your absence from the state that if you had been applying for an initial license to practice medicine in this state, the Board would have denied such initial license. Therefore, the Board is required by Oregon law to deny you active registration in the State of Oregon (ORS 677.170(3)).'

On September 2, 1971, petitioner requested a hearing before the Board on its denial of active registration. On December 28, 1971, the Board notified petitioner that he was granted a hearing. However, it was not until January 3, 1972, that the Board notified petitioner of the particular conduct it considered in denying his application. This notification was contained in an explicit 'Bill of Particulars' which was requested by petitioner's counsel, and which stated that, pursuant to ORS 677.170(3), the Board denied petitioner's application for active registration because of six specified 'acts, statements or conduct.' A hearing was subsequently held before a hearing officer appointed by the chairman of the Board, following which the Board issued its Order of Denial.

Petitioner argues that he did not receive adequate notice of the grounds for the denial prior to the hearing thereon because the only statute referred to in either the denial letter or the Bill of Particulars was ORS 677.170(3). At the hearing the assistant attorney general representing the Board announced that the denial was based on lack of good moral character. ORS 677.100(1)(e).

ORS 677.208 provides that when the Board refuses to issue or proposes to revoke or suspend a license, a hearing shall be accorded as provided in ORS 183.310 to 183.500. ORS 183.415(2) provides that notice shall include a '(c) * * * reference to * * * statutes and rules involved' and a '(d) * * * statement of the matters asserted or charged.'

The Bill of Particulars sufficiently sets forth 'matters asserted or charged.' ORS 183.415(2)(d). The Grog House v. OLCC, 12 Or.App. 426, 507 P.2d 419 (1973). This conduct referred to in the Bill of Particulars relates to the moral character requirement of ORS 677.100(1)(e); however no reference to this statute was made by the Board prior to the hearing. The allegations in the Bill of Particulars, as well as the evidence which was introduced at the hearing, tended to show that petitioner had violated ORS 677.080(1) (making false and misleading statements on the August 4 affidavit) and ORS 677.080(4) (practicing medicine in Oregon without an active license).

Petitioner's right, as a licensee (or applicant for active registration) to practice medicine, may be denied only by procedures satisfying the due process clause of the United States Constitution. Board of Medical Examiners v. Buck, 192 Or. 66, 232 P.2d 791 (1951), 200 Or. 488, 258 P.2d 124 (1953), appeal dismissed 346 U.S. 919, 74 S.Ct. 313, 98 L.Ed. 414 (1954); Board of Medical Examiners v. Cusick, 234 Or. 533, 383 P.2d 69 (1963); See also, Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, 64 A.L.R.2d 288 (1957). Primary among these procedures is that petitioner be afforded adequate notice prior to a hearing thereon.

Prior to 1971, the statutes required only that notice 'state the time, place and issues involved.' ORS 183.420 (repealed Oregon Laws 1971, ch. 734 § 21, p. 1786). In 1971 the legislature adopted ORS 183.415, specifically setting out four requirements of notice. ² Oregon Laws 1971, ch. 734, § 13, p. 1779.

The requirement of notice is primarily to allow petitioner an opportunity to prepare an adequate defense. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); See also, 1 Davis, Administrative Law 523, 525, § 8.04 (1958).

While the Bill of Particulars afforded petitioner here did not include references to all the particular sections of the statutes and rules which were conceivably involved (ORS 183.415(2)(c)), it did spell out in sufficient detail all the conduct which was the basis of the Board's denial action. As in The Grog House, 12 Or.App. at 433--434, 507 P.2d 419, the record in the case at bar clearly shows that petitioner had detailed advance knowledge and was fully aware of the specific facts and charges which formed the basis of the action taken, in order to enable him to prepare his defense. He did not ask for a continuance. Therefore we cannot say that the failure of the Board to append references to ORS 677.100(1)(e) and ORS 677.080(1) and (4) amounted to a denial of due process of law. The Grog House v. OLCC, supra. To the same effect, See also, Swift & Company v. United States, 393 F.2d 247 (7th Cir. 1968); Sisto v. Civil Aeronautics Board, 86 U.S.App.D.C. 31, 179 F.2d 47, 52 (1949); Brahy v. Federal Radio Commission, 61 App.D.C. 204, 59 F.2d 879 (1932).

Next, petitioner argues that the hearing officer should have been disqualified because he is also the executive secretary of the Board.

Although so far as we can determine this question has never previously been passed upon by an appellate court in this state, it appears that the weight of authority elsewhere is that the fact that a hearing officer performs more than one function for the agency involved does not render the hearing unfair. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1954); Converse v. Udall, 262 F.Supp. 583 (D.Or.1966), affirmed 399 F.2d 616 (9 Cir. 1968), cert. denied 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 (1969). See also, 2 Davis, Administrative Law 235, 237, § 13.10 (1958); 1 Cooper, State Administrative Law 338, § 5 (1965). Further, we note that here there is no statutory provision for disqualifying the hearing officer. Even assuming arguendo that a right to disqualify a hearing officer exists without the necessity of a specific statute authorizing it, our review of the record fails to reveal any bias or prejudice by the hearing officer. See, Palm Gardens, Inc. v. OLCC, Or.App., 97 Adv.Sh. 1855, 1866, 514 P.2d 888 (1973), Sup.Ct. review denied (1974); Cf., Whitney v. Morgan, 9 Or.App. 289, 291, 497 P.2d 865 (1972).

Petitioner also contends that under ORS 677.170(3) only evidence of activities outside the state of Oregon is relevant to a determination whether to grant an active license. Evidence of conduct within Oregon, he argues, is therefore irrelevant and inadmissible.

The Bill of Particulars ³ sets forth six alleged acts of petitioner, only two of which relate to alleged improper conduct outside Oregon. Petitioner argues that evidence as to the other four is inadmissible as being outside the scope of the Board's determination. We do not agree.

Under ORS 677.170(3), the Board may deny active registration to an inactive licensee if his conduct during his absence was such that the Board would have denied the petitioner an initial license. ORS 677.100(1)(e) provides that an applicant for an initial license must prove good moral character. Therefore, the Board may issue an active registration only if the applicant establishes that his conduct since becoming inactive has been consistent with good moral character.

The term 'good moral character' is not defined in our medical practice act. Therefore we must look elsewhere for a definition of that term.

In State v. Louisiana State Board of Medical Examiners, 238 La. 502, 115 So.2d 833 (1959), the court, in defining...