Thebaut v. Georgia Bd. of Dentistry, No. A98A1130

Decision Date10 November 1998
Docket Number No. A98A1130, No. A98A1131.
Citation509 S.E.2d 125,235 Ga. App. 194
PartiesTHEBAUT v. GEORGIA BOARD OF DENTISTRY. Georgia Board of Dentistry v. Thebaut.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, John K. Larkins, Jr., Atlanta, for appellant.

Thurbert E. Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Alan Gantzhorn, Senior Assistant Attorney General, Kristin R. Loecke, Assistant Attorney General, for appellee. BEASLEY, Judge.

The Georgia Board of Dentistry commenced an administrative proceeding to sanction Dr. Thebaut, a pediatric dentist, based upon his proposed treatment of two children. Following a lengthy hearing, the administrative law judge issued an initial decision against the Board, holding the evidence did not support a finding that Dr. Thebaut's actions fell below minimal standards of acceptable and prevailing dental practice. The Board, on its own motion, elected to consider the case itself. After a hearing in which only Dr. Thebaut testified, the Board in the final decision adopted all but one of the ALJ's findings of fact and all of his conclusions of law. Substituted was its finding that with regard to one patient Dr. Thebaut's recommendations fell below the requisite standards. The Board ordered that Dr. Thebaut be sent a letter of concern and that the matter be closed.

Citing among other things lack of evidence, Dr. Thebaut sought judicial review by the superior court, which affirmed. Dr. Thebaut's discretionary appeal is Case No. A98A1130. The Board's cross-appeal, Case No. A98A1131, contests the trial court's jurisdiction.

1. Of first order, raised by Dr. Thebaut (Case No. A98A1130), is whether the Board had lost the power to act for failure to comply with OCGA § 50-13-17(c), because its written decision was rendered more than 30 days following the close of the record, without an express extension. This is not a question of judicial, but rather of administrative, jurisdiction.

The statute does not state that review is foreclosed if such is not done, nor, unlike OCGA § 50-13-17(a), does it state that failure to render the final Board decision within the prescribed period means that the ALJ's initial decision becomes the final decision by operation of law. The legislature directed: "Each agency shall render a final decision in contested cases within 30 days after the close of the record required by Code Section 50-13-13 except that any agency, by order, may extend such period in any case in which it shall find that the complexity of the issues and the length of the record require an extension of the period, in which event the agency shall render a decision at the earliest date practicable."1 The Board's decision was rendered considerably later than 30 days following the close of the record, although it had not formally exercised its expressly provided discretion to extend the time.

Safety Fire Commr. v. U.S.A. Gas2 held that the 30-day requirement in OCGA § 50-13-17(c) "is directory, not mandatory." Failure of the fire commissioner to comply with the time requirement did not invalidate his decision. The case relied upon, Collins v. Birchfield,3 had explained that although "shall" ordinarily is a word of command, "in the absence of injury to the defendant and in the absence of a penalty for failure to comply with the statute, ` "shall" denotes simple futurity rather than a command.' [Cit.]"4 Although Collins is non-precedential, the principle quoted is. Collins also upheld a late decision even though the controlling statute allowed a late decision only if both parties consented, which they did not.5 Commr. of Ins. v. Stryker6 followed this same rationale to hold that OCGA § 33-2-23(a), requiring the insurance commissioner to issue an order within 30 days after the hearing, was only directory and did not invalidate a late order.

This rationale arises out of OCGA § 1-3-1(c), which provides: "A substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law." To invalidate an agency decision or action, the statute must explicitly state such is the penalty for noncompliance.7 "This provision of statutory construction has been applied in many cases to statutes which provide that certain acts must be performed by public officials within specified periods of time." 8

In keeping with this statute, it has long been a principle of Georgia statutory construction that "statutes directing the mode of proceeding by public officers, designated to promote method, system uniformity, and dispatch in such proceeding, will be regarded as directory if a disregard thereof will not injure the rights of parties, and the statute does not declare what result shall follow non-compliance."9 The two indications are harm and express cessation of authority. Based on this principle, failure to conclude a hearing within sixty days,10 failure of a recount committee to meet within fortyeight hours of their appointment,11 and appointment of a public officer three days before the authorized period12 did not invalidate the agency decision or action.

We similarly hold that because no harm is shown nor authority withdrawn, the Board's written decision on Dr. Thebaut beyond the time prescribed in OCGA § 50-13-17(c) was not void for want to jurisdiction. Nevertheless, the agency should aggressively endeavor to meet the time allotted so as to fulfill the purpose expressed, which is to achieve expedition so as to serve the public's interest.

Case No. A98A1131

2. Next addressed is whether judicial review was available. The Board argues that its final decision did not aggrieve Dr. Thebaut and thus was not subject to judicial review.13 The Board reasons that a letter of concern is not a form of disciplinary action and is not disclosed to anyone but Dr. Thebaut.14

OCGA § 50-13-19(a) provides: "Any person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter." The Board does not dispute that Dr. Thebaut has exhausted all administrative remedies nor that he was involved in a contested case that resulted in a final decision. Because Black's Law Dictionary defines "aggrieved" as having suffered injury or loss, the Board argues that Dr. Thebaut would suffer no injury or loss by receiving a private letter of concern.15

Ga. Power Co. v. Campaign for a Prosperous Ga.16 defines "aggrieved" as used in this statute more broadly than does Black's Law Dictionary. "In the context of the Administrative Practice Act, the word `aggrieved' has been interpreted to mean that the person seeking to appeal must show that he has an interest in the agency decision that has been specially and adversely affected thereby. [Cit.]"17

Dr. Thebaut had a professional interest in the Board's decision that criticized his actions and ordered he be sent a formal letter of concern. Detrimental official action condemning professional judgment offends professional pride and self-confidence, has a chilling effect on the recipient's approach to his practice, and constitutes a negative entry in the records of the professional's governing agency, regardless of the alleged non-public nature of the letter's contents. The court did not err in exercising jurisdiction over his petition for judicial review.

The Board's argument that OCGA § 43-1-19(j) mandates otherwise is hollow. Under this subsection,18 any agency board may, without holding a contested case hearing, issue private reprimands or letters of concern, deny reciprocal licenses, deny requests for reinstatement of revoked license, and refuse to issue previously denied licenses. OCGA § 43-11-47 expands the possible "no hearing" actions by the Georgia Board of Dentistry to include denials of applications to use a particular corporate or trade name and denials of licenses on grounds other than those enumerated in OCGA § 43-11-47(a). Normally these preliminary or summary actions would follow the Board's initial investigative inquiry into a matter. They are among the less severe actions available to the Board 19 and do not trigger any rights of the licensee or applicant to demand the full hearing and accompanying panoply of rights guaranteed by the Georgia Administrative Procedure Act ("APA").20

If the Board decides the possibility for more severe action exists, it then engages in a "contested case," which is a proceeding in which the rights, duties, or privileges of a party must be determined by the agency after an opportunity for the hearing described in OCGA § 50-13-13.21 Following the hearing, the Board issues a final decision in which it exonerates the individual or imposes severe or light sanctions, or no sanctions at all.22 The Board cannot strip the final decision of its judicial reviewability by imposing a lighter sanction, such as issuing a private reprimand or a letter of concern. Regardless of the nature of the sanctions imposed, the final decision is still a "final decision in a contested case" and is therefore "entitled to judicial review under" the APA.23

Thus, the statement in OCGA § 43-1-19(j) that a letter of concern "shall not be considered a disciplinary action or a contested case" refers only to the ability of a board, if it so chooses, to issue such a letter without conducting a contested case hearing and making the entire case public. But if a board decides to conduct such a hearing, the matter then becomes more public and involved and subject to the full "contested case" provisions of the APA. The fact that the final decision happens to be that the board imposes a lesser sanction such as the issuance of a letter of concern does not exempt that decision from judicial review.

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10 cases
  • Martin v Sizemore, 97-00203
    • United States
    • Court of Appeals of Tennessee
    • August 22, 2001
    ...because board members cannot be cross-examined and because board members' opinions may not be known. Thebaut v. Georgia Bd. of Dentistry, 509 S.E.2d 125, 132 (Ga. Ct. App. 1998); In re Schramm, 414 N.W.2d 31, 35 (S.D. 1987); Bernard Schwartz, Administrative Law § 7.13, at 399 (3d ed. Second......
  • Martin v. Sizemore
    • United States
    • Court of Appeals of Tennessee
    • August 22, 2001
    ...because board members cannot be cross-examined and because board members' opinions may not be known. Thebaut v. Georgia Bd. of Dentistry, 235 Ga.App. 194, 509 S.E.2d 125, 132 (1998); In re Schramm, 414 N.W.2d 31, 35 (S.D.1987); Bernard Schwartz, Administrative Law § 7.13, at 399 (3d Second,......
  • Wesley Educ. Foundation v. State Elec. Bd., S07A1128.
    • United States
    • Supreme Court of Georgia
    • November 21, 2007
    ...either granting or denying an administrative application, be rendered within a certain period. See Thebaut v. Ga. Bd. of Dentistry, 235 Ga.App. 194(1), 509 S.E.2d 125 (1998). Such provisions are generally directory unless there are additional negative words which prevent the agency from tak......
  • Clayton Cnty. Bd. of Educ. v. Wilmer. Clayton Cnty. Bd. of Educ., s. A13A2088
    • United States
    • United States Court of Appeals (Georgia)
    • February 5, 2014
    ...not err in declaring that the Local Board's non-renewal process was invalid as to these teachers. See Thebaut v. Ga. Bd. of Dentistry, 235 Ga.App. 194, 195(1), 509 S.E.2d 125 (1998) (An agency decision or action will be invalidated where the applicable statute explicitly states that such is......
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1 books & journal articles
  • Administrative Law - Mark H. Cohen and David C. Will
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 51-1, September 1999
    • Invalid date
    ...Ga. App. 398, 400, 309 S.E.2d 397, 398-99 (1983). 46. 229 Ga. App. 807, 494 S.E.2d 706 (1997). 47. Id. at 809-10, 494 S.E.2d at 709. 48. 235 Ga. App. 194, 509 S.E.2d 125 (1998). 49. Id. at 194, 509 S.E.2d at 127. 50. Id. at 195, 509 S.E.2d at 128. 51. Id. at 196, 509 S.E.2d at 129. 52. Id. ......

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