North Fulton Community Hospital, Inc. v. State Health Planning &Amp; Development Agency Et Al., 168 Ga. App. 801, 310 S.E.2d 764 (1983)
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Judgment affirmed. Quillian, P. J., and Sognier, J., concur.
Summary
Judgment affirmed. Quillian, P. J., and Sognier, J., concur.
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Mark A. Hall, Emmet J. Bondurant II, Robert W. Miller, William E. Hoffmann, Jr., for appellant.
This appeal is from the superior court's affirmance of a decision by the State Health Planning Review Board (Review Board) granting Certificates of Need for a 95-bed expansion to appellee Hospital Authority of Fulton County d/b/a Northside Hospital (Northside), and for construction of a new 175-bed hospital in Roswell, Georgia by appellee North Fulton Medical Center, Inc. (AMI). In its decision, the Review Board denied a Certificate of Need for construction of a 100-bed hospital in Roswell by appellant North Fulton Community Hospital, Inc. (Charter).
Title 31, Chapter 6 of the Official Code of Georgia Annotated (Code Ann. 88-3301 et seq.) establishes a system for state health planning and development. In this system, before a hospital is built or expanded, a Certificate of Need must be obtained from the State Health Planning and Development Agency (SHPDA). See OCGA
In this case, between November of 1980 and February of 1981, several applications for Certificates of Need to build or expand hospital facilities in the north Fulton County area were received by SHPDA. After the appropriate hearings, SHPDA denied all applications, save those for expansion at Northside Hospital and Kennestone Hospital. Several parties, including Charter and AMI appealed the SHPDA decision to the Review Board. Upon motion, the Review Board consolidated the several appeals into one hearing; through attrition by withdrawal and dismissal, only Northside, Charter and AMI remained as applicants for Certificates of Need before the Review Board at the conclusion of the hearing.
SHPDA has standing to be a party in appeals before the Review Board, see OCGA
The appeals to the Review Board were filed in May and June of 1981. The hearing began on July 21, 1981. Sessions were scheduled intermittently through December 13, 1981 to accommodate the schedules of the five panel members, over 30 attorneys representing the several parties, and the approximately 70 witnesses called to testify. The record numbered in excess of 6,000 pages of transcript and some 300 exhibits. In the course of the protracted hearing, Chairman John A. Sherrill of the Review Board contacted members of the SHPDA staff and Assistant Attorney General Allen concerning logistical and procedural matters pertaining to the hearing.
After requesting and receiving from each party proposed findings of fact and conclusions of law, and after hearing final arguments, the Review Board concluded the hearing and closed the record on December 13, 1981. On January 6, 1982, in an open meeting, on the record, the Review Board announced its decision with regard to each applicant. This was done by voice vote and show of hands; each decision was unanimous. Chairman Sherrill announced that the findings of fact and conclusions of law would be issued by the Review Board on January 27, 1982.
Chairman Sherrill and an associate attorney in Chairman Sherrill's law firm, Mike McElroy, drafted proposed findings of fact and conclusions of law and circulated the draft to the other panel members. At Chairman Sherrill's request, and after checking with his superiors in the Attorney General's office and receiving approval, Assistant Attorney General Allen began assisting the Review Board on January 18, 1982 in the final preparation of its findings of fact and conclusions of law. The findings of fact and conclusions of law supporting the January 6, 1982 decision were issued on January 27, 1982.
Charter then petitioned the superior court for judicial review of the Review Board decision. Pursuant to OCGA
After considering the deposition evidence of Chairman Sherrill, Mr. McElroy, and Mr. Allen, the interrogatory responses and documents produced in response to discovery requests, and after conducting a day-long hearing including testimony from Chairman Sherrill and Mr. Allen along with the record of the proceedings before the Review Board, the superior court affirmed the decision of the Review Board. Appellant Charter then sought and was granted this discretionary appeal.
1. In enumerations of error 2, 3, 4 and 16, Charter seeks to attack the decision of the administrative agency upon constitutional grounds. These arguments were first urged before the superior court and not before the agency. Thus, these constitutional challenges come too late to be considered by an appellate court. Sparks v. Caldwell,
Lea,
2. In enumerations 12, 13 and 14 Charter contends the superior court erred in holding that the Review Board was statutorily authorized to base its decision not only upon the specific considerations set out in OCGA
SHPDA Rule 272-2-.07(2) reads in pertinent part: "The standards listed below will be used in applying the considerations set forth in Rule 272-2-.07(1). These standards shall not be used in place of said considerations, but shall be used only to provide the specificity necessary to interpret and implement said considerations on a fair and consistent basis." The considerations of Rule 272-2-.07(1) are essentially those considerations set out in OCGA
Thus, the superior court was correct in its holding that the Review Board could use not only the considerations listed in OCGA
3. Charter also contends that "substantial rights" due it "have been prejudiced" within the meaning of OCGA
At the behest of appellant the superior court invoked the provisions of OCGA
The Georgia Constitution of 1976, Art. VI, Sec. X, Par. II (Code Ann. 2-3902) (now Ga. Const. 1983, Art. V, Sec. III, Par. IV (Code Ann. 2-2504)), commands the Attorney General of Georgia, to" . . ., act as the legal advisor of the Executive Department . . . and to perform such other services as shall be required of him by law." OCGA
Charter's argument that Assistant Attorney General Allen's dual role was "undisclosed" is thus unpersuasive. OCGA
Charter argues that such dual representation is per se prejudicial. This court rejected that approach in Schaffer v. State Bd. of Veterinary Medicine,
The hearing before the Review Board was in the nature of a civil action, with multiple parties represented. Mr. Allen was but one of several counsel. The question to be determined in each case is whether the hearing was fair. The court in Schaffer noted that "administrative disciplinary hearings are not fitted with all the trappings of criminal procedure. . . ." Schaffer, supra at 71. Nor are administrative appeals fitted with all the trappings of civil procedure. However, each party must be afforded a fair opportunity to present its case. The holding in Schaffer thus requires the court to examine closely the manner in which the dual representation mandated by law is carried out. No hard and fast test may be set to determine when dual representation is harmful and when it is not; the term "closely scrutinize" puts a heavy burden upon the party
seeking to uphold the dual representation, The court will examine all facets of the hearing including, but not limited to, the notice provided, the length of the hearing, the manner in which the hearing was conducted, the evidentiary and legal rulings of the presiding officer, and the conduct of the attorney burdened with dual representation in relation to all other facts, to determine whether the dual representation, in fact, deprived any party of a fair hearing.
In Schaffer, the court found that the hearing board was "substantially reliant" upon the prosecutor for legal advice, including rulings on evidentiary matters. The prosecutor "uncompromisingly construed legal points strongly against the appellant's contentions"; his attitude toward appellant was characterized as "sometimes venomous." Schaffer, supra at 71. Obviously, in Schaffer the hearing board exercised little or no independent judgment and relied instead upon the advice of an advocate apparently bent upon winning at any price.
By contrast, the record before us shows no such conduct. From the outset of the hearing, Chairman Sherrill established a pattern of seeking the views of all counsel, either by brief or by conversation with counsel, on issues affecting the course of the proceedings. Only after receiving these views did Chairman Sherrill rule. The many rulings of Chairman Sherrill during the course of the hearing show no pattern of deference to Mr. Allen or his client. As in most cases, each advocate won some and lost some. Chairman Sherrill has testified that he allowed each party to present its case as fully as possible, and that he was reluctant (apparently to the dismay of some of the panel members) to rule that a witness or evidence was cumulative or irrelevant. The sheer volume of the record before us (some 6000 pages, 70 witnesses and 300 exhibits) bears this out. Indeed, Charter has not argued that it was prevented in any way from fully presenting its case to the Review Board. The record thus shows that the manner of the dual representation during the course of the hearing did not taint the opportunity of each party, including Charter, to present its case in full before the Review Board.
While not specifically alleging that it was deprived of the opportunity to be prepared and to be heard as a result of the dual representation, Charter does argue that there were ex parte contacts, and that these contacts between Mr. Allen and Chairman Sherrill deprived Charter of the right to have its case fairly considered by the Review Board. Though it alleges many instances, Charter's concerns about ex parte contacts between Mr. Allen and Chairman Sherrill may be grouped as follows: (1) when the Review Board was determining whether the City of Roswell and the North Fulton Chamber of Commerce had standing to participate in the hearing; (2) when the Review Board was asked to consider a legislative resolution; (3) when the Review Board was determining the manner in which to take its vote; and (4) after the vote was taken and the decision was announced, and before the written findings of fact and conclusions of law were published. Therefore, we must consider a question not reached by the court in Schaffer. Given the fact of dual representation in an administrative hearing, are ex parte contacts between the attorney representing the separate state interests and any member of the administrative body so represented ever permitted, and if so, to what degree and under what restrictions?
Disciplinary Rule 7-110(b) of the Code of Professional Responsibility (Code Ann. Title 9 Appendix) declares: "In an adversary proceeding, a lawyer shall not communicate . . . as to the merits of the cause with the judge or an official before whom the proceeding is pending, except: . . . (4) as otherwise authorized by law." Rules and Regulations of the State Bar of Georgia, Code of Professional Responsibility,
Mark H. Cohen, Barry P. Allen, H. Perry Michael, Carol A. Cosgrove, Assistant Attorneys General, Lawrence H. Neville, H. Boyce Connell, Jr., Kim H. Roeder, Randall L. Hughes, Stanley S. Jones, Jr., Peter J. Anderson, Thomas J. Browning, H. Fred Gober, James P. Kelly, Jr., George Polatty, Jr., for appellees.
Notes:
1. The legislature has now seen fit to revise this scheme and to widen substantially
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This document cites
- Supreme Court of Georgia - DEPARTMENT OF HUMAN RESOURCES v. MONTGOMERY., 248 Ga. 465, 284 S.E.2.d 263 (1981)
- Supreme Court of Georgia - JAAKKOLA et al. v. DOREN., 244 Ga. 530, 261 S.E.2.d 701 (1979)
- Supreme Court of Georgia - GEORGIA REAL ESTATE COMMISSION v. BURNETTE., 243 Ga. 516, 255 S.E.2.d 38
- Supreme Court of Georgia - PERSONS, Superintendent of Banks, v. LEA, et al., 207 Ga. 384, 61 S.E.2.d 832 (1950)
- Georgia Court Of Appeals - Department of Public Safety v. Foreman., 130 Ga. App. 71, 202 S.E.2d 196 (1973)
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