Can the consumer member and the dental hygienist member of the Georgia Board of Dentistry vote on all matters before the board, or are they restricted from voting on dentist-licensure examinations under O.C.G.A. § 43-11-2(d)?

Plain-English summary

The Georgia Board of Dentistry includes both a public/consumer member and a dental hygienist member. An older statute, now O.C.G.A. § 43-11-2(d)(1)-(2), restricted both members from voting on matters relating to "the practical or scientific examination of dentists for licensing in this state." A 1978 AG opinion (1978 Op. Att'y Gen. 78-72) had construed this to mean the consumer member could vote on most disciplinary and policy matters, but not on dentist-licensure examinations.

In 1984, the General Assembly enacted O.C.G.A. § 43-1-18, a general statute applicable to every professional licensing board in Georgia: "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.)

The Secretary of State asked the AG how to reconcile § 43-1-18 with § 43-11-2(d)(2)'s consumer-member restriction. AG Thurbert Baker concluded that the two statutes are in irreconcilable conflict on this point, and the later-in-time statute (§ 43-1-18) controls under the doctrine of implied repeal. Evans v. Evans, 242 Ga. 57 (1978); Sprayberry v. Wyatt, 203 Ga. 27 (1947).

The hygienist-member restriction in § 43-11-2(d)(1) is a different matter. Section 43-1-18 applies only to consumer members ("each consumer member of a professional licensing board") and expressly preserves "the eligibility to vote of any other member" without changing it. So the hygienist's voting restriction stays exactly as it was: hygienists can vote on dental hygiene, administration, and policy matters, but not on dentist-licensure examinations.

The opinion expressly modifies 1978 Op. Att'y Gen. 78-72 to the extent that opinion concluded the consumer member's voting rights were restricted.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why did the General Assembly broaden consumer members' voting rights in 1984?
A: The statute does not give the reason, but the broader context was a national movement (in the 1970s and 1980s) to expand public-member participation on professional licensing boards. Restricting public members from voting on examinations had been a defensive move by professional guilds, and the 1984 amendment removed it for all licensing boards in Georgia.

Q: What does "directly relate to the practical or scientific examination" mean for the hygienist?
A: Under the 1978 opinion's reading (which the 2004 opinion preserves on this point), the hygienist may not vote on matters "relating directly to the practical and scientific examination for licensure of dentists" but may vote on all other matters, including final disposition of licensees after a full board hearing. So the hygienist participates in discipline, rulemaking, and policy votes, but not in the professional examination itself.

Q: What happens when the dental board takes a final action against a dentist's license?
A: The consumer member votes; the hygienist member also votes (because final disposition after a hearing is not "the practical or scientific examination"). Both contribute to the discipline decision.

Q: Does this analysis apply to other licensing boards (medical, accountancy, etc.)?
A: Yes, the consumer-member rule does. O.C.G.A. § 43-1-18 applies to all professional licensing boards. Each board's specific statute may have additional restrictions on non-consumer members (like the hygienist on the dental board), but those restrictions affect non-consumer members only.

Q: Could the General Assembly amend § 43-11-2(d)(2) to bring it back into force?
A: Yes. Implied repeal is a doctrine that takes effect because of statutory inconsistency. If the General Assembly amended § 43-11-2(d)(2) to expressly restrict the consumer member, that newer statute would conflict with § 43-1-18 and the courts would have to resolve the conflict (likely by applying the more specific statute over the more general one, in the dental context).

Background and statutory framework

Professional licensing boards in Georgia operate under both general procedural statutes (Title 43, Chapter 1) and board-specific substantive statutes (e.g., Title 43, Chapter 11 for dentistry). When a general procedural statute and a board-specific provision conflict, courts and the AG apply traditional canons of statutory construction:

• The later-enacted statute controls when there is irreconcilable conflict.
• Where one statute is general and the other is specific, the specific statute usually controls within its narrow domain.
• Statutes should be harmonized when possible.

Here the AG concluded the conflict was direct and irreconcilable on the consumer-member voting point, and applied implied repeal. The narrower restriction on hygienists (a different category of board member) is preserved because § 43-1-18 expressly leaves it untouched.

Citations and references

Statutes:
- O.C.G.A. § 43-1-18 (consumer member voting on all matters)
- O.C.G.A. § 43-11-2(d)(1) and (2) (hygienist and consumer member voting restrictions on dental board)

Cases:
- Evans v. Evans, 242 Ga. 57 (1978) (implied repeal)
- Sprayberry v. Wyatt, 203 Ga. 27 (1947) (implied repeal where two acts are repugnant)

Other AG opinions:
- 1978 Op. Att'y Gen. 78-72 (modified by this opinion as to consumer member only)
- 1993 Op. Att'y Gen. 93-12 (implied repeal canon)

Source

• Landing page: https://law.georgia.gov/opinions/2004-2
• Original PDF: not linked from landing page

Original opinion text

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