Elder v. Wis. Dentistry Examining Bd.

356 Wis.2d 329

855 N.W.2d 493 (Table)

Jack A. ELDER, D.D.S., Petitioner–Appellant

v.WISCONSIN DENTISTRY EXAMINING BOARD, Respondent–Respondent.

No. 2014AP151.

Court of Appeals of Wisconsin.

July 31, 2014.

Opinion

¶ 1 KLOPPENBURG, J.

The Wisconsin Dentistry Examining Board (the Board) disciplined Jack Elder for making “a false representation on his application for a license to practice dentistry in California, which constitutes unprofessional conduct within the meaning of Wis. Stat. § 447.07(3)(b),” and for instructing “employees to change billing dates to obtain insurance payments, which constitutes repeated irregularities in billing and is unprofessional conduct within the meaning of Wis. Stat. § 447.07(3)(k)2. ” The circuit court, in a thoughtful and comprehensive decision, affirmed the Board's order, and Elder appeals. Elder contends that the Board lacked authority over, and ignored its own rules in interpreting, Elder's statement on California's application for a license to practice dentistry, and that the Board's order regarding billing irregularities is unsupported by evidence in the record. We conclude that the Board acted in accord with the plain meaning of the language of Wis. Stat. § 447.07(3)(b) (2011–12)¹ in disciplining Elder for making a false statement on the California license application, and interpreted both the application and Elder's statement in accord with the ordinary meaning of the words used in the application and Elder's statement. We also conclude that the Board's order regarding billing irregularities “demonstrates a process of reasoning supported by evidence in the record.” See Daniels v. Wisconsin Chiropractic Examining Bd., 2008 WI App 59, ¶ 8, 309 Wis.2d 485, 750 N.W.2d 951. Accordingly, we affirm.

BACKGROUND

¶ 2 Elder was a licensed dentist in Wisconsin who maintained a practice in La Crosse County from 1984 until 2007, when he sold the practice and moved to California. In July 2008 the Wisconsin Department of Regulation and Licensing (now known as the Department of Safety and Professional Services) issued a formal complaint against Elder, and an administrative hearing was held on the following issues: (1) whether Elder made a false statement on his application for a license to practice dentistry in California, and (2) whether Elder engaged in billing irregularities that constituted misconduct.²

¶ 3 The administrative law judge (ALJ) who presided at the hearing issued a proposed decision that included findings of fact and conclusions of law, resolving the two issues stated above against Elder. The ALJ recommended as proposed discipline that Elder's dental license be suspended for six months, with the suspension lifted to the extent that Elder be required to perform 500 community service hours as a volunteer dentist at a health organization that serves the indigent. The Dentistry Examining Board issued a final decision and order adopting the findings of fact and conclusions of law proposed by the ALJ, but varying from the proposed decision with regard to the recommended discipline. The Board permanently prohibited Elder from practicing dentistry in Wisconsin. On reconsideration, the Board again declined to accept the ALJ's recommended discipline but modified the discipline the Board itself had imposed. The Board revoked Elder's dental license, prohibited him from applying for reinstatement for two years, and placed requirements on any petition for reinstatement.

¶ 4 Elder sought judicial review of the Board's decision, and the circuit court remanded to the Board to explain the variance from the ALJ's proposed discipline “in further detail.”³ On remand, the Board issued a final decision and order and an explanation of the variance, and the circuit court subsequently affirmed the Board's decision in its entirety.

DISCUSSION

¶ 5 Upon review of a circuit court's order affirming an administrative agency's decision, we review the decision of the agency, not that of the circuit court. Doepke–Kline v. LIRC, 2005 WI App 209, ¶ 10, 287 Wis.2d 337, 704 N.W.2d 605. Elder raises two sets of arguments against the Board's decision, one set that addresses the Board's conclusion that he made a false statement on the California license application, and one set that addresses the Board's conclusion that he instructed employees to change billing dates to obtain insurance payments. As we will explain, we reject each of Elder's arguments. Because Elder's arguments involve different facts and invoke different standards of review, we set forth the relevant facts and applicable standards of review in the sections relating to each argument.

False Statement on California License Application

¶ 6 The facts relevant to this topic are taken from the exhibits and Elder's testimony presented at the administrative hearing.

¶ 7 By letter dated February 9, 2006, addressed to Elder's attorney and shared with Elder, an attorney with the Department of Regulation and Licensing's Division of Enforcement sent Elder “a copy of the informal complaint” that the Division had received on December 12, 2005, containing allegations of billing irregularities in the form of “improper insurance claim filing.”⁴ In the letter, the Division attorney concluded: “I appreciate the additional information you were able to supply about the background of [the] informal complaint.”

¶ 8 On March 21, 2006, Elder signed an application for a license to practice dentistry in California, which he subsequently submitted to the Dental Board of California. A question on the application asked, “Are you currently the subject of any investigation by any governmental entity?” Elder answered “No.” In addition, Elder signed the “Declaration” on the application certifying that he had “carefully read the questions in the foregoing application and [had] answered them truthfully.” The California license application form did not provide a definition for the term “investigation.”

¶ 9 At the Wisconsin administrative hearing at issue here, Elder testified on direct examination that he did not understand that he was under investigation by the Department of Regulation and Licensing in any respect when he signed the California license application in March 2006. He testified on cross examination that he had hired an attorney to help with the informal complaint identified in the February 2006 letter, that he was running audit reports in response to that informal complaint for delivery to his attorney, and that when he completed the California license application his attorney was working on that informal complaint and thought it would be easily resolved.

¶ 10 The Board adopted the ALJ's findings of fact that Elder had been informed by the February 2006 letter that an informal complaint alleging billing irregularities had been filed against him, and that the “investigation” of that matter had not been closed at the time that he completed the California license application saying that he was not currently the subject of any investigation by any governmental entity. The ALJ found that Elder's testimony on direct examination, that he did not understand that he was under investigation, was not credible. The ALJ also found that testimony to be contrary to the 2006 letter from the Division of Enforcement, and inconsistent with Elder's testimony on cross examination. Accordingly, the ALJ concluded that Elder made a false statement on the California license application, and the Board adopted that conclusion.

¶ 11 Elder argues that the Board's conclusion should be reversed because the Board lacked authority over, and ignored its own rules in interpreting, Elder's statement on California's application for a license to practice dentistry. We reject Elder's arguments as contrary to the unambiguous language of the applicable statute and to the ordinary meaning of the word “investigation.”

¶ 12 Elder argues first that the Board “exceeded its authority by exercising jurisdiction under Wis. Stat. § 447.07(3)(b) over Dr. Elder's application for a license to practice dentistry in California,” because “the applications that are the subject of section 447.07(3)(b) are only those submitted to the State of Wisconsin for licensure.” This issue requires that we interpret and apply Wis. Stat. § 447.07(3)(b).

¶ 13 Statutory interpretation is a question of law that this court reviews de novo. ABKA Ltd. P'ship v. DNR, 2002 WI 106, ¶ 29, 255 Wis.2d 486, 648 N.W.2d 854. Courts generally accord great weight deference, due weight deference, or no deference to an administrative agency's construction of a statute. See Racine Harley–Davidson, Inc. v. State Div. of Hearings & Appeals, 2006 WI 86, ¶¶ 12–19, 292 Wis.2d 549, 717 N.W.2d 184. Elder suggests, and the Board appears to agree, that this court owes no deference to the Board's interpretation of its authority under Wis. Stat. § 447.07(3)(b). We therefore follow the parties' lead and assume without deciding that no deference is appropriate. See Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, ¶ 23, 335 Wis.2d 47, 799 N.W.2d 73 (“When interpreting the scope of an agency's authority conferred by statute, we give no deference to the agency's interpretation of its own authority.”).

¶ 14 We construe statutory language based on its common and ordinary meaning. Barritt v. Lowe, 2003 WI App 185, ¶ 6, 266 Wis.2d 863, 669 N.W.2d 189. “[I]f a word is not defined in a statute, we look ... to recognized dictionary definitions to determine the common and ordinary meaning of a word.” Garcia v. Mazda Motor of America, Inc., 2004 WI 93, ¶ 14, 273 Wis.2d 612, 682 N.W.2d 365. If the language is plain and unambiguous, our analysis stops there. Kangas v. Perry, 2000 WI App 234, ¶ 8, 239 Wis.2d 392, 620 N.W.2d 429.

¶ 15 Wisconsin Stat. § 447.07(3)(b) reads as follows:

(3) ... [T]he examining board may make investigations and conduct hearings in regard to any alleged action of any dentist or dental hygienist, or of any other person it has reason to believe is engaged in or has engaged in the

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