August 23, 1982

Mr. Harold H. Schuler, Secretary 
South Dakota Board of Pharmacy 
Post Office Box 518 
Pierre, South Dakota 57501

Official Opinion No. 82-41

Procedure Followed in Revoking or Suspending Pharmacist's Certificate of Registration

Dear Mr. Schuler:

You have requested an official opinion from this office in regard to the  procedure used by the Board of Pharmacy to revoke or suspend a pharmacist's certificate of registration.  At the present time the procedure followed by the Board is as follows: 

1.  After reviewing the complaint and investigative information in regard to a pharmacist, the Board votes on whether to hold a hearing to suspend or revoke; 

2.  If a hearing is held, it is held before a hearing examiner, who is a member of the staff of the Office of Attorney General, and the members of the Board; 

3.  The hearing examiner renders proposed findings of fact and conclusions of law, and a proposed decision; and 

4.  The Board then votes to accept, reject or modify the proposals made by the hearing examiner.

Based on the above procedure, you have asked the following questions:

QUESTIONS: 

1.  May the Board of Pharmacy, after reviewing the complaint and investigative information against a pharmacist and voting to hold a hearing for the purpose of suspending or revoking a certificate of registration, conduct the hearing to determine whether the certificate of registration  should be suspended or revoked? 

2.  If the answer to Question No. 1 is no: 

a.  May the Board hire a hearing examiner? 

b.  May an attorney, who is a member of the staff of the Office of Attorney General, serve as hearing examiner when another attorney from the same staff represents the Board? 

3.  If a hearing examiner conducts the hearing, is the hearing examiner's decision final or must the Board vote to accept, reject, or modify the decision? 

4.  If the hearing examiner's decision is final, must the Board be present at the hearing? 

5.  If activity by a pharmacist does not warrant a hearing for the purposes of suspending or revoking the certificate of registration: 

a.  May the Board send a letter of reprimand to the pharmacist with or without the conditions that the pharmacist comply with the requirement and also be subject to a follow-up inspection by one of the Board's inspectors? 

b.  May the Board call the pharmacist in to a Board meeting to review the alleged violation and reprimand the pharmacist both orally and in writing?

IN RE QUESTION NO. 1:

SDCL 1-26-26, in part, states: 

If one or more members of a board or commission or a member or employee of an agency, who is assigned to render a decision in a contested case, took part in an investigation upon which the contested case is based, he shall not take part in rendering the decision thereon, but he may appear as a witness and give advice as to procedure.  If, because of such disqualification, there is no person assigned to conduct the hearing or render the decision, the agency shall appoint someone pursuant to SDCL § 1‑26-18.1 to fulfill those duties.

Pursuant to SDCL 36-11-26, the South Dakota Board of Pharmacy has the power to suspend or revoke the certificate of registration of South Dakota pharmacists.

When the investigation of alleged unprofessional practices is carried out by a Board member, that Board member may not take part in rendering the ultimate decision by the Board.  Therefore, it is my opinion that the answer to your first question is YES, the Board may review the complaint and the results of the investigation, vote on whether to hold a hearing for the purpose of suspending or revoking the license, conduct the hearing to determine whether the license should be suspended or revoked, and render a decision on the matter.  No Board member, who has investigated the matter, may take part in the deliberation on whether to revoke or suspend. Additionally, as is stated in SDCL § 1-26-26, if enough members of the Board took part in the investigation to make the rendering of a decision by the Board impossible, a hearing examiner must be appointed pursuant to SDCL § 1-26-18.1.

IN RE QUESTION NO. 2:

Because the answer to Question No. 1 is yes, it is unnecessary for me to answer Question No. 2.

IN RE QUESTION NO. 3:

SDCL 1-26-18.1 states: 

Notwithstanding any other provision of law, any agency's contested cases may be tried by a hearing examiner appointed by the agency.  The hearing examiner, after hearing the evidence in the matter, shall make proposed findings of fact and conclusions of law, and a proposed decision.  The agency may accept, reject or modify said findings and conclusions, and decisions, and an appeal may be taken therefrom.

As is set forth above in detail, the provisions of SDCL § 1‑26‑26 require the appointment of a hearing examiner to conduct the hearing and render the decision if all Board members are disqualified.  Therefore, it is my opinion  that, unless a hearing examiner is appointed pursuant to SDCL 1-26-26, when a hearing examiner conducts the hearing and issues proposed findings of fact, conclusions of law, and a proposed order, the Board must vote to accept, reject, or modify the hearing examiner's proposals before the matter is final.

IN RE QUESTION NO. 4:

SDCL § 36-11-28 states: 

A certificate of registration as a pharmacist shall not be revoked or suspended except after hearing before the board of pharmacy at which a majority of its members are present and in compliance with chapter 1-26.

Unless a hearing officer is appointed pursuant to SDCL § 1-26-26 to conduct the hearing and render a decision, it is my opinion that the provisions of SDCL § 36-11-28 must be followed.  Therefore, a majority of the Board members must be present at the hearing.

IN RE QUESTION NO. 5:

SDCL § 36-11-20 grants to the Board the power to suspend, revoke or refuse to grant a license or certificate of registration.  A letter of reprimand, which is a less onerous form of discipline than a suspension or revocation of a  certificate of registration, is necessarily a part of the disciplinary powers granted in SDCL § 36-11-20.  However, because a letter of reprimand directly affects the certificate of registration of a pharmacist, certain due process requirements must be met.

A letter of reprimand issued by the Board without granting an opportunity for the pharmacist to respond to the allegations does not provide the necessary due process protections.  It is my opinion that a letter of reprimand, with or without conditions, can be issued by the Board only after the affected certificate holder has been given an opportunity to make a presentation to the Board.

Respectfully submitted,

Mark V. Meierhenry
Attorney General