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Official Opinion 2004-2

Official Opinion 2004-2

February 10, 2004
To: 

Secretary of State

Re: 

The consumer member for the Georgia Board of Dentistry may vote on any matter before the board without restriction; the dental hygienist member of the Georgia Board of Dentistry may vote on any matter other than one that specifically relates to the practical or scientific examination of dentists for licensure in Georgia.

The Georgia Board of Dentistry (hereafter “the board”) has asked for advice regarding the voting rights of its consumer member and dental hygienist member. This question was considered in 1978 Op. Att’y Gen. 78-72; however, an intervening change in the law since that opinion was issued makes this reconsideration appropriate.

The law under review in 1978 Op. Att’y Gen. 78-72 provided:

(1) The dental hygienist member of the board may vote only on matters relating to dental hygiene, administration, and policy which do not directly relate to practical or scientific examination of dentists for licensing in this state.

(2) The citizen member of the board who is not a dentist or dental hygienist may vote only on matters relating to administration and policy which do not directly relate to practical and scientific examination of dentists and dental hygienists for licensing in this state.

Former Ga. Code Ann. § 84 702(e) (as amended by 1978 Ga. Laws 240, 242). The same language is currently found in O.C.G.A. § 43 11 2(d)(1) and (2).

From this language, 1978 Op. Att’y Gen. 78-72 concluded that “the dental hygienist member may not vote on matters relating directly to the practical and scientific examination for licensure of dentists . . . but . . . may vote on all other matters outside of these specifically prescribed areas,” including final disposition of licensees after a full board hearing. The opinion concluded similarly that the consumer member of the board may vote on any matter, including final disposition of licensees after a full board hearing, except those “matters relating to the practical and scientific examination for licensure of dentists and dental hygienists.” Id. at 155.

In 1984, subsequent to the issuance of 1978 Op. Att’y Gen. 78-72, the General Assembly enacted O.C.G.A. § 43 1 18, which states: Without affecting the eligibility to vote of any other member of a professional licensing board, each consumer member of a professional licensing board shall be eligible to vote on all matters brought before that board.

(Emphasis added). This legislative change effectively removed the limitations on the voting rights of consumer members. Because O.C.G.A. § 43 1 18 specifically makes consumer members eligible to vote on “all” matters brought before the board, it is in irreconcilable conflict with the language of O.C.G.A. § 43 11 2(d)(2), which is set out earlier in this opinion. “It is a well established rule of statutory construction that where two acts are clearly repugnant, the second in time controls and a repeal of the first is implied, but only insofar as the two acts are in irreconcilable conflict.” 1993 Op. Att’y Gen. 93-12, at 34, citing Evans v. Evans, 242 Ga. 57 (1978); Sprayberry v. Wyatt, 203 Ga. 27 (1947).

Therefore, it is my official opinion that the consumer member for the board may now vote on any matter coming before the board without restriction. To the extent that the intervening change in the law changes the voting authority of the consumer member, the views expressed in 1978 Op. Att’y Gen. 78-72 are hereby modified. The voting rights of the dental hygienist member are unaffected by the statutory change and remain as expressed in the prior opinion.

Prepared by:

Allyson Guy Krause
Assistant Attorney General