BONNELL v. MEDICAL BOARD OF CALIFORNIA

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Court of Appeal, Third District, California.

Harry BONNELL, Plaintiff and Respondent, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Appellant.

No. C038019.

Decided: February 28, 2002

Law Offices of Richard K. Turner and Richard K. Turner, John J. Sansome, County Counsel, Thomas D. Bunton, Senior Deputy County Counsel for Plaintiff and Respondent. Bill Lockyer, Attorney General, Carlos Ramirez, Senior Assistant Attorney General, Barry D. Ladendorf, Supervising Deputy Attorney General, Heidi R. Weisbaum, Deputy Attorney General, for Defendant and Appellant.

This is an appeal from a judgment granting a petition for writ of mandate.   The petition, by appellant Harry Bonnell, a physician and surgeon licensed by defendant Medical Board of California (“the Board”), challenges the Board's stay of its decision dismissing an accusation against him.

The trial court found the 28-day stay, granted by the Board for the purpose of evaluation of a petition for reconsideration of its decision, was in excess of the 10 day stay which Government Code section 11521, subdivision (a) authorizes “for the purpose of considering the petition.” 1

In the published portion of the opinion we conclude the trial court's interpretation of section 11521, subdivision (a) is incorrect.2  We shall conclude the stay of up to 30 days, which the section authorizes for the purpose of filing an application (petition) for reconsideration, includes a stay granted for the purpose of evaluating a petition already on file.

We shall reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Board's executive director filed an accusation against Bonnell, charging him with gross negligence, repeated negligent acts, and incompetence.   A hearing was held before an administrative law judge (“ALJ”) who recommended dismissal of the accusation.   The Board adopted the ALJ's recommendation and rendered a decision on July 12, 2000, effective August 11, 2000.

On August 9, 2000, two days before the expiration of the Board's authority to act, the Attorney General filed a petition for reconsideration on behalf of the Board.   The next day, August 10, 2000, the Attorney General filed a request to stay the effective date of the Board's decision pursuant to section 11521, subdivision (a) in order to review the petition for reconsideration.   The Board, acting through its Chief of Enforcement, granted the requested stay on August 11, 2000, staying execution of the decision until September 8, 2000, a period of 28 days.   The order stated the stay was granted “solely for the purpose of allowing the Board time to review and consider the Petition for Reconsideration.”

In response, Bonnell filed a petition for writ of administrative mandate, challenging the authority of the officer who signed the stay to act on behalf of the Board.3  Meanwhile, on September 6, 2000, the Board granted the petition for reconsideration.   The following day, September 7, 2000, the superior court directed issuance of an alternative writ of mandate, commanding the Board to set aside its order granting the stay or to show cause why it should not be set aside.

After the evidentiary hearing, the trial court requested additional briefing on an issue not previously raised, whether section 11521, subdivision (a) authorizes two different types of stays:  a 30-day stay for preparing and filing a petition for reconsideration;  and a 10-day stay for allowing the Board to review the petition.   The court reasoned that since the 28-day stay granted in this case was for review of the previously filed petition, it was unauthorized.

After receiving the additional briefing of the parties, the trial court entered its judgment granting Bonnell's petition for writ of mandate on the ground the Board exceeded its authority by purporting to grant a 28-day stay for the purpose of reviewing the petition for reconsideration.

The Board thereafter filed this appeal.

DISCUSSION

I *

II

The Board claims the trial court incorrectly interpreted section 11521, subdivision (a), to limit to 10 days the period of a stay granted to evaluate a petition for reconsideration.   We agree.

Section 11521, subdivision (a) provides:

“The agency itself[ 4] may order a reconsideration of all or part of the case on its own motion or on petition of any party.   The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency 5 may grant for the purpose of filing an application for reconsideration.   If additional time is needed to evaluate a petition for reconsideration filed prior to the expiration of any of the applicable periods, an agency may grant a stay of that expiration for no more than 10 days, solely for the purpose of considering the petition.   If no action is taken on a petition within the time allowed for ordering reconsideration, the petition shall be deemed denied.”  (Italics added.)

 Under this section the Board must act on a petition for reconsideration within the original jurisdictional period of 30 days of the issuance of a decision, unless the Board specifies a shorter period as the effective date of its decision, or within the period of any stay issued within such periods.

 Bonnell claims the section provides for two separate and mutually exclusive stays.   One is for a period “not to exceed 30 days” and is “for the purpose of filing an application for reconsideration.”   The other is for a period of “no more than 10 days” and is “solely for the purpose of considering the petition [for reconsideration].”

As Bonnell reads the statute, the agency may grant a stay of up to 30 days to allow a party to file a petition for reconsideration but not to allow the Board to evaluate a petition already on file.   He reasons the Board only may grant a stay of the expiration of the original jurisdictional period, for no more than 10 days, to evaluate a petition filed within that period.

The trial court agreed with Bonnell, finding the Board exceeded its authority when it granted a 28-day stay, rather than a 10-day stay, of the expiration of the effective date of its decision for the purpose of considering the petition filed on the Board's behalf.   The trial court misreads the statute.

For over 40 years, the 30-day stay provision in section 11521, subdivision (a), has been interpreted as available both for filing an application (petition) for reconsideration and for considering an petition for reconsideration already on file.   In Koehn v. State Board of Equalization (1958) 166 Cal.App.2d 109, 333 P.2d 125 (“Koehn ”), the court considered a factual situation virtually identical to the one presented here.   The hearing officer in Koehn recommended dismissal of the accusation.  (Id. at p. 112, 333 P.2d 125.)   The State Board of Equalization (the “BOE”) adopted the proposed decision.   Eleven days before the effective date of the BOE's decision, the complainant filed a petition for reconsideration and the BOE issued a 22-day stay of its decision.  (Ibid.)

The licensee argued the stay was invalid because section 11521, subdivision (a), provides for a stay solely for the purpose of filing a petition for reconsideration, and as the petition was already on file when the stay was issued, it was invalid.  (Koehn, supra, at p. 113, 333 P.2d 125.) 6

The court of appeal disagreed.   It held the licensee's interpretation “would result in the absurd situation, that if one desiring reconsideration would withhold filing his petition the board could stay for 30 days the effective date of the decision, but if he filed such petition it could not and would have to determine his petition before the effective date of the order․” (Id. at p. 114, 333 P.2d 125.)   For this reason the court held the 30-day stay provision in section 11521, subdivision (a), may be issued not only to allow additional time for the filing of a petition but also to allow additional time to consider a petition on file and to order reconsideration if deemed advisable.  (Ibid.)

Bonnell argues the 1987 amendment to section 11521, authorizing a 10-day stay of the expiration of the 30-day jurisdictional period, “solely for the purpose of considering the petition,” remedied the problem identified in Koehn of insufficient time to consider a petition filed near the expiration of the time for reconsideration.   For that reason, Bonnell claims Koehn is no longer persuasive.   We disagree.

The 1987 amendment supports the Koehn interpretation.   It refers to the purpose of the 10-day stay as providing “additional time ” in which to evaluate a petition “filed prior to the expiration of any of the applicable periods․” (Emphasis added.)   There are three periods to which “any” refers, the 30-day jurisdictional period within which the Board may order reconsideration of its decision, the period ending on the date within the jurisdictional period set by the agency itself as the effective date of the decision, and the period of a stay issued for “the purpose of filing an application for reconsideration.”   As to each, the 1987 amendment plainly authorizes an additional stay (up to 10 days) of the expiration of the period, for the purpose of reconsideration of a petition filed within that period.

The language of the amendment rules out the claim the two stay periods are mutually exclusive.   It presupposes a petition has been filed within the period of the prior stay because the 10-day stay extends the period of the prior stay for the purpose of evaluation of a petition already on file.   This strongly suggests that a stay for the purpose of filing a petition encompasses a stay for the purpose of consideration of a petition already on file.   Thus, the 1987 amendment is consistent with the reading given the section by Koehn.

 Moreover, “[i]t is a well-established principle of statutory construction that when the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.   Accordingly, reenacted portions of the statute are given the same construction they received before the amendment.”   (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734, 180 Cal.Rptr. 496, 640 P.2d 115;  Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1156, 278 Cal.Rptr. 614, 805 P.2d 873;  Redevelopment Agency v. County of Los Angeles (1999) 75 Cal.App.4th 68, 79, fn. 5, 89 Cal.Rptr.2d 10.)

The 1987 amendment did not alter the language regarding a 30 day stay for filing a petition for reconsideration.   Rather, it added a provision allowing an “additional” 10-day stay for consideration of the petition filed within the period of the 30-day stay.   We must presume the meaning of the 30-day stay provision remained unchanged.   Certainly, the Legislature gave no indication it intended to limit the amount of time for consideration of petitions which had been filed within the period for consideration.   Instead, the focus of the amendment was to allow more time for consideration of a petition on file.

 Where, as here, the Legislature gave no clear signal it intended to change the existing interpretation, we will give the statute the same construction it received before the amendment.7

III

Bonnell asserts we must affirm the trial court's judgment even if we conclude the Board was authorized to grant a stay of more than 10 days for the purpose of considering a petition because the person who granted the stay had no legal authority to do so.   Bonnell claims the Board could not delegate its authority to grant or deny stays.   Even if it could, he claims the authority could not be delegated to Renee Threadgill, Acting Deputy Chief of the Board's Enforcement Program.

A.

The facts relevant to this claim are as follows.

At the evidentiary hearing, the Board presented evidence that Renee Threadgill authorized the stay.   The Chief of Enforcement, David Thornton, was on vacation at the time.   The order was signed by Elberta Portman, “Staff Services Manager.”   Portman signed the stay because Threadgill was out of the office when the order was prepared.   Thornton delegated the ministerial task of signing stay orders to Portman.

B.

Section 11500, subdivision (a) authorizes the Board to delegate certain powers.   That section provides:  “In this chapter unless the context or subject matter otherwise requires:  (a) ‘Agency’ includes the state boards, commissions, and officers to which this chapter is made applicable by law, except that wherever the word ‘agency’ alone is used the power to act may be delegated by the agency, and wherever the words ‘agency itself’ are used the power to act shall not be delegated unless the statutes relating to the particular agency authorize the delegation of the agency's power to hear and decide.”

Section 11521, subdivision (a) provides the authority to issue stays may be delegated by the agency.   At the time of the Board action herein, Title 16, section 1356 of the California Code of Regulations provided:  “Except for those powers reserved exclusively to the ‘agency itself’ under the Administrative Procedure Act Section 11500, et seq. of the Government Code, the division delegates and confers upon the executive director of the board, the assistant executive director, the program manager for enforcement, or the medical consultant, all functions necessary to the dispatch of business of the division in connection with investigative and administrative proceedings under the jurisdiction of the division.”

Bonnell makes two arguments with respect to the authority of the persons granting the stay in this case.   First, he argues sections 11500 and 11521 allowing delegation of the authority to grant stay requests are not applicable because a more specific provision in Business and Professions Code section 2224 prohibits the delegation of such power.   Second, he argues the person who authorized the stay request in this case was not one of the individuals specified by California Code of Regulations, title 16, section 1356.   We reject both of these arguments.

 Citing Code of Civil Procedure section 1859, Bonnell asserts a specific provision is paramount to a general provision where the two are inconsistent.   While this is true as a general proposition, it has no application where, as here, the two provisions are not inconsistent.   If the two statutes can be harmonized, the principle that a specific statute prevails over a general one has no application.  (Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, 66 Cal.Rptr.2d 319, 940 P.2d 906.)

Business and Professions Code section 2224 states:  “The Division of Medical Quality may delegate the authority under this chapter to conduct investigations and inspections and to institute proceedings to the executive director of the board or such other personnel as set forth in Section 2020, but shall not delegate its authority to take final disciplinary action against a licensee as provided in Section 2227 and other provisions of this chapter, and may not delegate any authority of the Senior Assistant Attorney General of the Health Quality Enforcement Section, and may not delegate any powers vested in the administrative law judges of the Office of Administrative Hearings, as designated in Section 11371 of the Government Code.”

 Bonnell claims the intent of Business and Professions Code section 2224 is to allow the Board to delegate prosecutorial functions, but not judicial functions.   He argues the granting or denying of a stay request is a judicial function and cannot be delegated.

By its own terms, Business and Professions Code section 2224 only prohibits delegation of authority “to take final disciplinary action against a licensee as provided in Section 2227 and other provisions of this chapter․” Business and Professions Code section 2227, subdivision (a), lists the following as disciplinary actions the Board may take:  “(1) Have his or her license revoked upon order of the division.  [¶] (2) Have his or her right to practice suspended for a period not to exceed one year upon order of the division.  [¶] (3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the division.  [¶] (4) Be publicly reprimanded by the division.  [¶] (5) Have any other action taken in relation to discipline as the division or an administrative law judge may deem proper.”   These actions are qualitatively different from the grant or denial of a stay request.   A stay merely extends the time before which the board's decision on a disciplinary action becomes final.   Final disciplinary actions, which only may be taken by the Board, consist of the actual punishment to be imposed on the licensee.

Business and Professions Code section 2224 contains no expression of intent to deny the Board the ability to delegate certain powers merely because they reflect a judicial rather than a prosecutorial function.   Nor are we convinced the granting of a stay request is a judicial function merely because, as Bonnell suggests, a stay may be included in a formal hearing decision.

 If we can reasonably harmonize two statutes relating to the same subject matter and give them concurrent effect, we must do so.  (Garcia v. McCutchen, supra, 16 Cal.4th at p. 478, 66 Cal.Rptr.2d 319, 940 P.2d 906.)   In this case we can do so.   The authority to grant or deny a stay request does not involve a final disciplinary action as described in section 2224;  thus the Board may delegate such authority.

 Bonnell claims that even if the Board could delegate its authority to grant or deny stay requests, the Board could not delegate that authority to the person who granted the stay in this case-the Acting Deputy Chief of Enforcement.   Bonnell argues that California Code of Regulations, title 16, section 1356 specifies the only individuals to whom the Board my delegate its authority.   He claims that since the stay was authorized by Threadgill, who was not one of the four persons listed in the regulation, Threadgill had no authority to issue the stay.8  We disagree.

The regulation delegates authority to, among others, the program manager for enforcement.   David Thornton, the Chief of Enforcement, gave a sworn declaration that his position was also described as the program manager of enforcement.   Bonnell does not seriously challenge Thornton's authority to sign stay requests.   However, because Thornton was on vacation when the stay request was submitted, the acting Deputy Chief of Enforcement, Threadgill, authorized the stay.   It is Threadgill's authority that Bonnell questions.

The Board claims Thornton delegated his authority to grant or deny stay requests to Threadgill as the Acting Chief of Enforcement in his absence.   The power to delegate is authorized by section 7, which provides:  “Whenever a power is granted to, or a duty is imposed upon, a public officer, the power may be exercised or the duty may be performed by a deputy of the officer or by a person authorized, pursuant to law, by the officer, unless this code expressly provides otherwise.”

Bonnell replies, without authority, that section 7 is inapplicable because the Chief of Enforcement is not a public officer, but merely a government employee.   We reject this argument.   We see no logic in the argument that a public officer is allowed to delegate his or her authority to perform certain tasks, but an employee is not.   For purposes of granting or denying a stay request, the Chief of Enforcement is acting as a public officer, and may delegate such authority since no statute expressly prohibits such delegation.

DISPOSITION

The judgment is reversed.   Appellant is entitled to his costs on appeal.

FOOTNOTES

1.   References to a section are to the Government Code unless otherwise specified.

2.   The Reporter of Decisions is directed to publish the opinion except for Part 1 of the Discussion.

3.   In the nonpublished portion of the decision we conclude the officer acted within the delegated authority of the Board.

FOOTNOTE.   See footnote 2, ante.

4.   The Board is an agency within the meaning of this section. (§ 11500, subd. (a).)  The term “agency itself” refers to the power to act by the Board itself.

5.   When the term “agency” is used alone the Board's power to act may be delegated. (§ 11500, subd. (a).)

6.   At the time, section 11521 did not provide for a 10 day stay “solely for the purpose of considering the petition.”   The provision was added in 1987.  (Stats.1987, ch. 305, § 1.)

7.   Given our interpretation of section 11521, we need not consider Bonnell's argument that the Board's interpretation of section 11521 is entitled to no weight.

8.   Although the stay was signed by Portman, Threadgill testified she was the one who actually authorized the stay.   Thornton testified he delegated the ministerial task of signing stay orders to Portman.   Bonnell's brief does not take issue with this delegation of authority to sign stay orders.

BLEASE, Acting P.J.

We concur:  SIMS and MORRISON, JJ.