concurring specially.
[¶ 27] I concur in the opinion authored by Justice Sandstrom for the Court. I write separately to note that the only portion of the recommendations of the Administrative Law Judge not adopted by the Board was the • recommendation for discipline. It might be argued that the discipline, as opposed to findings, are peculiarly the function of the Board. But, N.D.C.C. § 28-32-46(8), made applicable to our review by N.D.C.C. § 28-32-49, unambiguously requires that we affirm the Board’s decision unless the conclusions of law and order of the Board do not sufficiently explain the Board’s rationale for not adopting “any contrary recommendations by a hearing officer or an administrative law judge.” Under N.D.C.C. § 28-32-31(4), made applicable to duties of an ALJ by N.D.C.C. § 54-57-04, the ALJ is to make “recommended findings of fact and conclusions of law and issue a recommended order, when appropriate.” Again the statutory language is unambiguous. Neither party has argued it was inappropriate for the ALJ to recommend an order including discipline. Rather on January 15, 2003, the Board requested an ALJ to “conduct the hearing and- issue recommended findings of fact, conclusions of law, and order.”
[¶ 28]' The ALJ did issue “Recommended Findings of Fact, Conclusions of Law, and Order” and explained his reasons for the recommended sanctions in his Recommended Order:
What the appropriate discipline should be ordered is another matter considering the arguments made by Jones’ counsel and the fact that North Dakota does not have specific rules on internet prescribing. Of most' significance, in the ALJ’s mind; is the fact that there was no actual harm shown and that Jones’ internet practice is a small portion of his total practice. The ALJ does not believe that revocation is appropriate at •this time. Instead, the ALJ recommends that the Board impose a fine not to exceed five thousand dollars ($5,000) on Jones for the violations of N.D.C.C. § 43-17-31 proven. If the Board orders Jones to pay a finé, the Board ■ shall indicate by separate letter the amount of the fine it will impose, as well as the manner and terms of payment. The ALJ further recommends that the Board order Jones to pay a sum, to be determined by the Board, not to exceed the reasonable and,actual costs, including reasonable attorney’s fees, incurred by the Board and its investigative panel in the investigation and prosecution of ■this case under N.D.C.C. § 43-17-31.1. If the Board orders Jones to pay reasonable and actual costs, it shall indicate by separate letter attached to its final order an amount and the manner and terms for payment of those costs. Finally, the ALJ further recommends ■ that the Board issue a letter of censure to -Jones and that in its letter the Board state, *260among other things, that if Jones is found to be in further violation of N.D.C.C. § 43-17-31(6) and (21), with regard to internet prescribing in North Dakota, after the date of its order, that his license to practice medicine in North Dakota will be revoked.
[¶ 29] The Board adopted the recommended Findings of Fact and the recommended Conclusions of Law but did not adopt the “Recommended Order.” Rather the Board issued an order over the signature of its Chairman which read, without further explanation:
The evidence of record has been considered and appraised. IT IS ORDERED that the recommended findings of fact and conclusions of law of the administrative law judge are adopted as the Board’s findings of fact and conclusions of law in this matter; IT IS FURTHER ORDERED that the Board’s Order of July 26, 2002 revoking Dr. Jones’ license to practice medicine in North Dakota is hereby affirmed. License No. 7255 previously issued by this board to Miles J. Jones, M.D. is revoked. Further, Miles J. Jones shall pay to the Board the reasonable and actual costs of the investigation and prosecution of this case, including reasonable attorney’s fees.
It is apparent the Board has not explained its rationale for not adopting the “contrary recommendations by ... an administrative law judge.” The ALJ recommended revocation of the license to practice medicine after the first hearing at which Jones did not appear in person or by counsel. After the remand and second hearing, the ALJ gave specific and cogent reasons for recommending discipline other than revocation of Jones’s license. Those reasons beg for an explanation by the Board if it chose not to follow the recommendation. Under N.D.C.C. § 28-32-46(8) we cannot affirm without an explanation of the Board’s rationale in not adopting the Recommended Order.
[¶ 30] GERALD W. VANDE WALLE, C.J.