Gamm v. Board of Medical Quality Assurance

Opinion

BARRY-DEAL, J.

The Board of Medical Quality Assurance (hereinafter the Board) appeals from a judgment entered after the trial court issued a peremptory writ of mandate. The writ was based on the court’s finding that the Board did not timely grant a petition for reconsideration. The writ ordered the Board to set aside its decision unconditionally revoking respondent’s medical license and to reinstate its original decision placing respondent on probation for five years.

This appeal raises the issue whether Government Code section 11521, subdivision (a), requires the Board, in granting reconsideration, to issue an order, or whether the Board will be deemed to have “acted” where its individual members have cast the necessary votes. The trial court ruled that the Board must issue a timely order or lose its jurisdiction to act. We agree; therefore we affirm.

[36]

On February 23, 1979, following- a hearing, an administrative law judge issued a proposed decision that the medical license of respondent, Stanford R. Gamm, a psychiatrist, be revoked, but that revocation be suspended and Gamm be placed on probation for five years under certain terms and conditions. The Board adopted the proposed decision on April 18, 1979, and ordered the decision to become effective on May 18, 1979.

Pursuant to Government Code section 11521, subdivision (a), the Board’s power to order reconsideration of its decision expires “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 such date occurs prior to the expiration of the 30-day period . It is uncontested that the Board’s power to grant a petition for reconsideration expired on May 18, 1979.

On May 1, 1979, the Attorney General, on behalf of the Board, filed a petition for reconsideration. Ballots were mailed to members of the Board on May 7, 1979. In a telephone poll conducted sometime prior to May 22, 1979, the members voted four to two in favor of granting the petition. The written ballots confirming the votes were all dated on or before May 17, 1979, and were received by the program director, Vernon Leeper, prior to May 22, 1979.