ORDERS:
ORDER DENYING STAY
PROCEDURAL HISTORY
Petitioner is a physician duly licensed to practice medicine in South Carolina. In 2000 and
2001, Notices and Complaints, pertaining to conduct by the Petitioner in 1990, 1992, and 2000, were
served on Petitioner and filed with Respondent South Carolina Board of Medical Examiners (Board).
On September 10, 2003, a Disciplinary Panel of Board held an evidentiary hearing on the charges
against Petitioner, and subsequently, on September 30, 2003, issued a Certified Report to the Board
recommending the imposition of disciplinary sanctions upon Petitioner. The full Board held a public
hearing on November 5, 2003, at which it considered the panel’s report and heard oral arguments
from counsel. Following the arguments, the Board deliberated on the matter, found that Petitioner
had violated certain principles of medical ethics, and announced, on the record, its decision to issue
a public reprimand against Petitioner as a sanction for his disciplinary violations.
On November 14, 2003, Petitioner filed with this tribunal a motion for a stay of enforcement
of the Board’s decision to publicly reprimand him. In the motion, Petitioner seeks “a stay prohibiting
enforcement of the Board’s decision to issue a public reprimand pending results of an appeal” (Pet’r
Mem. of Law in Support of Mot. for Stay of Enforcement of Agency Decision at 3); in particular,
Petitioner moves for an order prohibiting the Board from publishing and distributing a written order
reflecting its decision to publicly reprimand Petitioner. Id. at 3-4. On November 30, 2003, the Board
issued a written Final Order finding Petitioner guilty of professional misconduct and issuing a public
reprimand against Petitioner.
However, in light of Petitioner’s pending motion before this tribunal,
the Board did not publish its Final Order. Counsel for Petitioner received the Board’s order on
December 16, 2003, and filed an appeal of that order with this tribunal on the following day,
December 17, 2003. On December 18, 2003, a hearing of Petitioner’s motion for a stay was heard
before this tribunal at the Administrative Law Judge Division in Columbia, South Carolina. At the
close of the hearing, the Board was ordered to temporarily refrain from publishing the Final Order
pending a written decision by this tribunal on Petitioner’s motion for a stay.
ANALYSIS
Petitioner offers a two-fold argument in support of his motion for a stay of the Board’s public
reprimand. First, Petitioner contends that, pursuant to ALJD Rule 34, the Board’s decision to
reprimand him is automatically stayed by the filing of his appeal of the Board’s Final Order.
Petitioner argues that this automatic stay of the Board’s decision must include a prohibition upon the
publication of the Board’s order issuing the public reprimand. Second, Petitioner contends that, even
if ALJD Rule 34 does not apply or does not prohibit the publication of the Board’s order, this tribunal
is authorized to, and should, issue a stay of that decision “upon appropriate terms,” including a
prohibition on the publication of the order, pursuant to S.C. Code Ann. § 1-23-380(A)(2) (Supp.
2002). However, I find that, while ALJD Rule 34 does apply to this matter, it does not automatically
operate to restrain the Board from making its order public, and further, that an order from this
tribunal prohibiting such publication of the Board’s order is not warranted in this case.
The crux of the instant matter is the difficulty in a drawing a distinction between the issuance
of an order of public reprimand and the effect of such an order. Unlike in the case of an order
imposing a suspension, in which the issuance of the written order is an act clearly distinct from the
actual imposition of the suspension, an order imposing a public reprimand and the imposition of the
reprimand are one in the same–the order is the reprimand. Accordingly, Petitioner’s motion for a stay
of the Board’s decision to issue a reprimand does not merely request the enforcement of the Board’s
order be held in abeyance, but rather it asks that the Board’s order itself not be distributed or
otherwise made public. In essence, by “staying” not merely the effect, but also the issuance of the
Board’s order, the stay sought by Petitioner would convert a public disciplinary appeals process into
a confidential one. This tribunal is not willing to create such a confidential method of appeal,
particularly in the absence of any compelling reasons to do so.
Automatic Stay
ALJD Rule 34 provides for an automatic stay of agency decisions on appeal before the
Division:
The filing of an appeal from the final decision of an agency shall stay the final decision
of that agency unless the effect of filing an appeal is otherwise established by statute,
the Administrative Procedures Act notwithstanding; or the administrative law judge
has entered an order regarding the effect of the proceedings in the agency.
Id. Petitioner argues that this automatic stay should be interpreted to prevent the Board from making
public its final order imposing disciplinary sanctions upon him. This rule, however, only contemplates
a stay of the effect of an agency’s final decision, not the suppression of the written decision itself.
Therefore, while the automatic stay of ALJD Rule 34 is applicable in this case, it does not
provide Petitioner with the relief he seeks. Under the automatic stay of ALJD Rule 34, the Board’s
order requiring Petitioner to pay half of the costs of the disciplinary proceedings was held in abeyance
upon the filing of this appeal. Further, Rule 34 would also operate to automatically stay any collateral
effect the Board’s public reprimand had upon Petitioner: for example, if the issuance of a public
reprimand against a physician also resulted in some restriction upon the physician’s license or ability
to practice, ALJD Rule 34 would stay the imposition of such restrictions pending the outcome of the
appeal of the reprimand.
But, the automatic stay of Rule 34 cannot be read so broadly as to not only
stay the enforcement of matters ordered in the Board’s decision, but to also prohibit the normal
publication and dissemination of the Board’s written order.
Such a far-reaching prohibition would
simply go beyond the stay contemplated by Rule 34.
Discretionary Stay
Beyond the automatic stay provision, ALJD Rule 34 also more generally authorizes this
tribunal to issue “an order regarding the effect of the appeal on the agency decision.” Similarly, S.C.
Code Ann. § 1-23-380(A)(2) (Supp. 2002) grants this tribunal the authority, in appellate matters, to
issue “a stay upon appropriate terms” of the agency decision below. Petitioner argues that this
tribunal should exercise its authority under these provisions to prohibit the Board from making its
final order public in order to protect his professional reputation from unnecessary harm. However,
Petitioner failed to present this tribunal with any persuasive reason to grant such a stay in derogation
of the interest of the general public in having full access to the Board’s disciplinary decisions.
The public has a significant interest in having access to the Board’s final disciplinary decisions.
Such access allows members of the public to evaluate the physicians to which they entrust their heath.
And, this interest is reflected in the law. While the Board maintains close confidentiality of its
disciplinary proceedings, see 26 S.C. Code Ann. Regs. 81-26 (Supp. 2002), its final orders in
disciplinary proceedings, except private reprimand and dismissals, are made fully public and are
distributed to interested medical organizations. See 26 S.C. Code Ann. Regs. 81-27 (Supp. 2002).
Beyond the requirements of the Board’s regulations, final orders from agencies in the adjudication
of cases, including final disciplinary decisions by state licensing boards, are generally made public
information under South Carolina law. See, e.g., S.C. Code Ann. § 30-4-50(3) (Supp. 2002)
(specifically making “final opinions, including concurring and dissenting opinions, as well as orders,
made in the adjudication of cases” public information); Ewing v. State Bd. of Med. Exam’rs, 290 S.C.
89, 92, 348 S.E.2d 361, 363 (1986) (refusing physician’s request to enjoin the Board from publishing
its findings of fact and conclusions of law in his disciplinary matter as a “contention lack[ing] merit”);
1984 Op. S.C. Att’y Gen. 150 (finding that, under South Carolina’s Freedom of Information Act,
final orders or opinions issued in disciplinary proceedings by state licensing boards and agencies are
public information). In short, once the Board has issued a final order in a disciplinary matter, that
decision becomes a public record, and further proceedings in that matter, including appeals, become
public proceedings.
In the instant matter, Petitioner has advanced a general concern that, once the Board’s order
of public reprimand is made public, he will not be able to repair his professional reputation, even if
the order is later overturned on appeal. While this concern is understandable, it does not, standing
alone, outweigh the public’s interest in having access to the Board’s final decisions in disciplinary
matters, including those matters on appeal. As noted above, the stay requested by Petitioner would
not merely hold the effect of the Board’s order in abeyance, but would convert a public appeals
process into a confidential process, and, as such, would run counter to the general thrust of South
Carolina law. Therefore, in the absence of any particular, persuasive reasons to make otherwise
public information confidential, this tribunal refuses to grant the stay requested by Petitioner.
ORDER
Based upon the foregoing,
IT IS HEREBY ORDERED that Petitioner’s Motion for a Stay of the Board’s Final Order
issuing a public reprimand against him is DENIED.
IT IS FURTHER ORDERED that this tribunal’s order instructing the Board to refrain from
disseminating its Final Order in this matter is LIFTED. As ALJD Rule 34 does not automatically
stay the Board from publishing its order, and as this tribunal has denied Petitioner’s motion for a stay,
the Board may now distribute the Final Order according to its usual procedures.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
January 12, 2004
Columbia, South Carolina |
