Opinion
No. 80CA0433
Decided July 1, 1982. Rehearing denied July 29, 1982. Certiorari granted December 6, 1982.
Review of Order of the Board of Dental Examiners
Cogswell Wehrle, Durant D. Davidson, for petitioner.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Special Assistant Attorney General, William A. Richardson, Assistant Attorney General, for respondent.
Robert Edwin Maul petitions under § 13-4-102(2), C.R.S. 1973 (1981 Cum. Supp.) for review of an order of the State Board of Dental Examiners (the Board) which found that he had violated § 12-35-118(1)(e), (1)(l), (1)(n), and (2)(s), C.R.S. 1973 (1978 Repl. Vol. 5). The charges against Maul were based on his treatment of a patient and the quality of his work on a set of dentures for that patient. The Board issued a letter of reprimand and placed Maul on probation for one year, ordering him to take remedial courses of instruction.
Maul claims that his right to procedural due process was violated by § 12-35-107(1)(c) and (d), C.R.S. 1973, which allows the Board to investigate, bring charges, and decide the merits of those charges. Maul also argues a due process deprivation arising from the presence of the hearing officer during the Board's deliberations. Maul finally contends that there was insufficient evidence to support the findings of the Board. We affirm the order.
Maul's first argument is that his right to procedural due process was violated because the Board acted in a dual capacity by both investigating and adjudicating the charges filed against him. The Dental Practice Law of Colorado, § 12-35-107(1)(c) and (d), C.R.S. 1973, specifically authorizes the Board to conduct investigations and hearings and to issue sanctions if it finds a violation of the law. In Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), the Supreme Court held that the combination of investigatory and adjudicatory functions is permissible unless the risk of unfairness is intolerably high, and only in such circumstances is there a due process violation. Relying on this principle, Maul claims that the facts and circumstances of this case presented a risk of unfairness that was intolerably high. However, he did not allege any circumstances which would set his case apart from the routine functioning of the Board, and no special risk is apparent from the record. Thus, his contention is without merit.
Maul also contends that his right to procedural due process was violated by allowing the hearing officer to be present during the Board's deliberations. We disagree.
The actions of the Board are presumed to be valid unless there is clear evidence to the contrary. Public Utilities Commission v. District Court, 163 Colo. 462, 431 P.2d 773 (1967). In Weissman v. Board of Education, 190 Colo. 414, 547 P.2d 1267 (1976), where counsel for the Board of Education retired with it during its deliberations, the court held that, "in light of all the evidence, the fact that he cast no vote, and the apparent absence of any substantial prejudice to [the teacher]," there was no reversible error.
Here, the hearing officer was present during the Board's deliberations in an advisory capacity and did not vote. Maul does not make any specific allegations of prejudice, and we find no evidence of impropriety. Therefore, the presence of the hearing officer did not constitute a denial of procedural due process.
Maul finally alleges that the findings of the Board are unsupported by the evidence and are arbitrary and capricious. Underlying this argument is the assumption that the Board could not properly decide the case without viewing Barrett's dentures. Considering the record as a whole, as we must, Noe v. Dolan, 197 Colo. 32, 589 P.2d 483 (1979), we conclude that it reveals sufficient evidence to sustain the Board's findings and conclusions, and the admission of the dentures as an exhibit was not essential to the result reached.
The order is affirmed.
JUDGE VAN CISE concurs.
JUDGE BERMAN dissents.