In Re: Appeal of DaSilva, No. 819-12-02 Wncv (Teachout, J., Aug. 29, 2003)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]


                                    STATE OF VERMONT
                                  WASHINGTON COUNTY, SS.

                              )
In re: Appeal of              )              Washington Superior Court
 NIGEL DASILVA                )              Docket No. 819-12-02 Wncv
                              )

                                      Opinion and Order

       Pursuant to 3 V.S.A. § 130a(c), Dr. Nigel DaSilva appeals from the decision of an Office
of Professional Regulation (OPR) appellate officer upholding a reprimand issued by the Board of
Osteopathic Physicians and Surgeons (the Board). Dr. DaSilva is represented by Ronald A.
Shems, Esq. The State is represented by William H. Ahlers, Esq. Oral argument was held on
May 28, 2003. For the following reasons, the decision of the Board is vacated.

       Appellant does not challenge the Board’s findings, which may be summarized as follows.
In 1981, the Board issued to Dr. DaSilva a license to practice in Vermont as an osteopathic
physician. Dr. DaSilva never practiced in Vermont and the Vermont license eventually lapsed in
1994. Between 1981 and 1983, Dr. DaSilva practiced in Arizona. While there, three medical
malpractice suits named him as a defendant and he received one “letter of concern” from the
Arizona Board of Osteopathic Examiners in Medicine and Surgery. Other than Vermont and
Arizona, over time Dr. DaSilva has been licensed in Alaska, California, Illinois, Nevada, New
Mexico, and Texas. He currently practices in Texas and has no plans to ever practice in
Vermont.

       In 1999, while applying for a license to practice in Alaska, Dr. DaSilva responded falsely
to two questions which, if answered truthfully, would have revealed the Arizona letter of concern
and the three Arizona law suits. In 2000, the Alaska State Medical Board fined and reprimanded
Dr. DaSilva for this incident.

        In a July 30, 2001 Amended Specification of Charges, the State of Vermont sought the
revocation or suspension of Dr. DaSilva’s Vermont license, or other discipline, as a result of the
Alaska incident. In an October 17, 2001 decision, the Board reprimanded Dr. DaSilva for
supplying false answers on the Alaska application. Dr. DaSilva appealed to an OPR appellate
officer arguing (as he did to the Board) that the Board lacked jurisdiction to reprimand him
because his license had lapsed long before the Alaska application incident. The appellate officer
agreed with the Board that it has authority to reprimand a previous licensee in these
circumstances pursuant to 3 V.S.A. § 129(a)(6), and upheld the reprimand. Dr. DaSilva then
filed this appeal, substantially renewing the arguments made to the hearing officer and the Board.
         The only issue on appeal is whether the Board had legal authority to discipline Dr.
DaSilva. The Board “has only such powers as are expressly conferred upon it by the Legislature,
together with such incidental powers expressly granted or necessarily implied as are necessary to
the full exercise of those powers.” Perry v. Medical Practice Bd., 169 Vt. 399, 403 (1999)
(quoting Trybulski v. Bellows Falls Hydro-Elec. Corp., 112 Vt. 1, 7 (1941)). “An agency must
operate for the purposes and within the bounds authorized by its enabling legislation, or this
Court will intervene. Where it exercises its adjudicative function we will be especially vigilant,
since proper utilization of the judicial process is unrelated to expertise in any particular subject
matter. Although findings of fact of an administrative agency will not be set aside unless clearly
erroneous, conclusions of law are not so protected.” In re Agency of Admin., State Bldg. Div.,
141 Vt. 68, 75 (1982) (citations omitted), cited in In re Vermont Verde Antique Intl., 13 V.L.W.
231, 232 (2002). An administrative board’s interpretation of a statute will be entitled to
deference when it represents a permissible construction of that statute, and one that is consistent
with statutory purpose. OPR v. McElroy, 2003 VT 31, ¶7 (March 27, 2003).

         Dr. DaSilva argues that no Vermont statute authorizes disciplinary action against an
osteopath who no longer possesses a Vermont license and who exhibits no intent to practice in
Vermont for unprofessional conduct occurring wholly out of state entirely after the expiration of
the Vermont license, as in this case. The State argues that Dr. DaSilva’s interpretation of
applicable statutes “would take a leap of faith to construe these provisions so narrowly and
restrictively.”

        The court agrees with Dr. DaSilva that no applicable statute explicitly or implicitly
authorizes the Board to take disciplinary action in the circumstances of this case. Chapter 33 of
Title 26 establishes the Board and its licensing, supervisory, and disciplinary authority over
Vermont osteopathic physicians. The scope of the Board’s disciplinary authority is set out
primarily in 26 V.S.A. § 1843(a) as follows: “. . . the board may take disciplinary action [for
unprofessional conduct defined in §1842] against an osteopathic physician or applicant.”

        Dr. DaSilva is not now an “osteopathic physician” subject to § 1842, as an osteopathic
physician “means a person licensed under this chapter to practice osteopathic medicine.” 26
V.S.A. § 1750(9). Dr. DaSilva at one time was licensed under Chapter 33, but his license lapsed
in 1994, and he was not licensed in Vermont at anytime relevant to this case. According to the
rules promulgated by the Board, a license must be renewed prior to expiration at the end of every
two year period, or the license lapses. Rules 2.3.1 and 2.3.2. A physician with a license which is
lapsed may be reinstated without actually reapplying by complying with certain requirements in
Rule 2.3.2. Reinstatement after a lapse exceeding one year is subject to “full” application:

       If a license is lapsed more than one year, the osteopathic physician must complete
       a reinstatement application in full and pay the application fee. A reinstatement
       application provides information on the osteopathic physician’s professional

                                                 2
       activities in any other jurisdiction during the period the license has lapsed,
       including a letter from the chief of staff of each hospital where the physician has
       privileges, a license verification from each state where the physician holds an
       active license, and appearing for a personal interview. Reinstatement may be
       denied for good cause.

Rule 2.3.2. Dr. DaSilva is not “licensed . . . to practice.” 26 V.S.A. § 1750(9). He may not
practice in Vermont. His license is long expired, and so long lapsed that he would be required to
become a new applicant to attempt to become licensed.

        Neither is Dr. DaSilva an “applicant” under 26 V.S.A. § 1842. “Applicant” is not
explicitly defined, but is used in the statutes and Board rules exclusively to refer to one currently
engaged in the process of applying for a license. Dr. DaSilva is not currently applying for a
license and maintains that he has no intention of ever applying in Vermont. Acknowledging, as
the State urges, that Dr. DaSilva could, despite his representations, at some point in the future
become an applicant, nevertheless, he is not now an applicant.

        In addition to the authority set forth in Chapter 33 of Title 26, which relates specifically
to Osteopathy, the Board has additional disciplinary authority, applicable to Professional
Regulation generally, under Title 3, Chapter 5, Subchapter 3. Of particular pertinence to this
case is 3 V.S.A. § 129(a), which provides as follows:

       In addition to any other provisions of law, a board may exercise the following
       powers:

                ***

               (6) Discipline any licensee or refuse to license any person who has
               had a license revoked, suspended, limited, conditioned, or
               otherwise disciplined by a licensing agency in another jurisdiction
               for an offense which would constitute unprofessional conduct in
               this state, or has surrendered a license while under investigation for
               unprofessional conduct.

3 V.S.A. § 129(a). This subsection authorizes boards to act in relation to two classes of persons:
(1) licensees, who may be disciplined by a board, and (2) non-licensees, who may be refused a
license by a board. The question presented by this case is whether the Board of Osteopathic
Physicians and Surgeons may discipline a person who is neither a licensee nor a person seeking a
license. A licensee means “registrants and holders of certificates or permits issued by a board or
the director.” Under 3 V.S.A. § 121, this means a Vermont board, not an out-of-state board or
licensing body. Dr. DaSilva is not a registrant or holder of a Vermont license, so he is not a
licensee under 3 V.S.A. § 129(a). Neither is he a non-licensee who may be refused a license, as
he has not applied for one. What is significant about this general provision in Title 3 is that it

                                                          3
does not confer upon the Board an authority that is any broader than that specified in Title 26.
As the review of Title 26 has shown, the scope of the Board’s authority to discipline is “to take
disciplinary action against an osteopathic physician or applicant.” 26 V.S.A. §1843.

       Further clarification of the scope of the authority conferred under Title 3 is found in 3
V.S.A. §129a(a), which defines “Unprofessional conduct,” and provides:

       In addition to any other provision of law, the following conduct by a licensee
       constitutes unprofessional conduct. When that conduct is by an applicant or
       person who later becomes an applicant, it may constitute grounds for denial of a
       license or other disciplinary action. Any one of the following items, or any
       combination of items, whether or not the conduct at issue was committed within
       or outside the state, shall constitute unprofessional conduct:

               (1) Fraudulent or deceptive procurement or use of a license.

               ***

               (3) Failing to comply with provisions of federal or state statutes or
               rules governing the practice of the profession.

3 V.S.A. § 129a(a). Subsection (a) applies to licensees, applicants whose misconduct occurred
during application, and applicants whose misconduct occurred prior to application. Nothing in §
129a authorizes disciplinary action against one who is neither a licensee nor an applicant.
Denial of a license and disciplinary action are authorized at such time as a person becomes an
applicant, but not before.

       None of the above statutes, or any others, authorize the Board’s disciplinary action in this
case. The action of the Board was outside the scope of its statutory authority.

       Without parsing any of these statutes, the State offers several reasons why the Board
should have authority to discipline Dr. DaSilva.

        The State argues that the interpretation of these statutes adopted by the court impedes the
Board’s statutory duty “to fulfill the public’s right to know of any action taken against a licensee
when that action is based on a determination of unprofessional conduct,” relying on 3 V.S.A. §
131(a). This section sets out specifically what information relating to disciplinary matters is
accessible to the public and which remains confidential. The State apparently contends that it
must discipline Dr. DaSilva now, even though he is not a licensee or applicant, so that it will
have a record in the event Dr. DaSilva ever applies in Vermont, and in order to make Dr.
DaSilva’s unprofessional conduct in Alaska publicly known. This is an overly broad
interpretation of the statute. Creating a public record of disciplinary actions against professionals
in other states who have no present involvement with Vermont is beyond the reasonable purpose

                                                 4
and scope of V.S.A. § 131(a).

        In a related argument, the State implies that failing to discipline Dr. DaSilva would
mislead members of the public or others by requiring the OPR manager to respond “no” to any
question about whether DeSilva has been disciplined in Vermont. That answer, of course, would
not be misleading unless the question presumed that if Dr. DaSilva was disciplined anywhere at
anytime, then he would also have been disciplined in Vermont. The court finds that a highly
unlikely presumption to attribute to potential inquirers. As a rationale itself for disciplinary
action, its breadth is not supported by statutory language and is sweepingly overbroad in relation
to statutory purpose: the same rationale would apply to all osteopathic physicians in all states
who have ever been disciplined, regardless of any licensure in Vermont, merely because
someone might inquire about discipline in Vermont.

        Third, the State argues that if it does not discipline Dr. DaSilva now, it will be
collaterally estopped from doing so at the time of any future application for a Vermont license.
This fear is unfounded. As discussed above, the Board has ample authority to deal with the
Alaska misconduct at the time of any future application.

        The State also argues that the court should defer to the Board’s interpretation of the
statutes because they are silent or ambiguous with respect to a person with Dr. DaSilva’s status.
The State has not cited any specific ambiguity and neither the Board nor the hearing officer
found the statutes silent or ambiguous. The need to interpret a statute in the light of presenting
facts does not by itself create ambiguity. It simply calls for the court to engage in statutory
interpretation, which is its traditional function. The court defers to agency interpretation only
where it is a permissible construction and consistent with statutory purpose. Id.

        Finally, the State argues that the Board must discipline Dr. DaSilva to prevent him from
simply timing his license applications and expirations in multiple states to obviate any discipline
anywhere for misconduct. This reflects a legitimate concern to the extent that there is or was an
application pending in Vermont. This issue was dealt with extensively in Perry v. Medical
Practice Bd., 169 Vt. 399 (1999). In Perry, a board sought to prevent a license applicant under
investigation from withdrawing the application to evade the continuation of the investigation.
The Perry Court stated:

               It is well settled that a licensee may not evade disciplinary action merely
       by resigning or allowing a license to expire. Otherwise, the licensee could apply
       for admission in another jurisdiction, or subsequently reapply in the same
       jurisdiction, and maintain that he or she has never been disciplined for
       professional misconduct. This would patently defeat the underlying purpose of
       the regulatory scheme to protect the public and maintain the integrity of the
       profession.

               The state’s interest is no less urgent in the case of an applicant for a

                                                  5
       license.

Id. at 404 (citations omitted) (emphasis in original). The interest protected by Perry and the
statutes discussed therein is in preventing an unscrupulous professional from hiding the fact of
misconduct by evading the disciplinary process through withdrawing a pending application or
surrendering a license. This interest simply is not at play in this case. Dr. DaSilva was
investigated, fined, and reprimanded in Alaska and is neither an applicant nor a licensee in
Vermont. 3 V.S.A. § 814(d) was enacted subsequent to Perry, and after the conduct giving rise
to this case, and codifies its principle: “An agency having jurisdiction to conduct proceedings
and impose sanctions in connection with conduct of a licensee or former licensee shall not lose
jurisdiction if the license is not renewed or is surrendered or otherwise terminated prior to
initiation of such proceedings.” The predicate circumstance is that the agency must ‘have
jurisdiction to conduct proceedings and impose sanctions.’ Since there was no statutory
authority for the Board to conduct proceedings and impose sanctions against Dr. DaSilva in the
first place, since he was neither a licensee nor an applicant, the circumstances present in Perry
were not in place in this case.

        The Alaska misconduct and discipline all occurred long after Dr. DaSilva’s Vermont
license expired. At this point, for purposes of the issue on this appeal, he stands in the same
shoes as a person licensed in another state who has never been licensed in Vermont. His prior
connection to Vermont is a fact that does not confer any authority upon the Board under any
statute. Just as Vermont has no legitimate statutory interest in disciplining out-of-state persons
unless they are either a licensee or an applicant, it has no legitimate statutory interest in
disciplining Dr. DaSilva, who presently has no connection to Vermont and has not been either a
licensee or applicant at any time since well before the Alaska incident, including both the
conduct giving rise to discipline and the reprimand. At such time as Dr. DaSilva should ever
decide to present himself as an applicant, he will become subject to the authority of the Board
pursuant to the statutes discussed above and the reasonable construction of statutory authority in
Perry. At this time, however, the Board has no statutory authority to discipline him.


       Reversed.

       Dated at Montpelier, Vermont this ___ day of August, 2003.


                                                     ________________________________
                                                     Mary Miles Teachout
                                                     Superior Court Judge




                                                        6
