dissents.
I concur in the opinion but respectfully dissent as to Part IV B. The majority holds that the one-year suspension of Dr. Levin’s license should be set aside because regulation 101.03.d exceeds the disciplinary authority granted in I.C. § 54^-1814(7). I disagree because I believe that the regulation was within the scope of disciplinary power given to the Board of Medicine by the legislature.
Section 54-1806A of the Idaho Code authorizes the Board of Medicine to create a board of professional discipline and “to delegate to it its role and authority in the enforcement and supervision of professional disciplinary enforcement ... particularly under sections 54-1810 and 54-1814, Idaho Code, including without limitation the power to make rules and regulations ... to the full extent that the board of medicine is authorized or empowered to act----” (emphasis added). This language demonstrates that the legislature intended to vest broad authority in the board of discipline to sanction conduct which it deems improper.
In prior decisions, this Court has taken a deferential approach to reviewing regulations promulgated by governmental agencies. “The construction given a statute by the executive and administrative officers of this state is entitled to great weight and will be followed by the Court unless there are cogent reasons for holding otherwise.” Kopp v. State, 100 Idaho 160, 163, 595 P.2d 309, 312 (1979).
In this case, the Court has given no “cogent reasons” for overturning the Board of Medicine’s construction of the statute. Instead, the Court has essentially eviscerated regulation 101.03.d in a rather conclusory fashion. By so doing, this Court has shifted from its earlier determination that “one of the characteristics of a profession is its responsibility to formulate standards of conduct for its members.” Tuma v. Bd. of Nursing, 100 Idaho 74, 78, 593 P.2d 711, 715 (1979) (emphasis in original) (quoting Ward v. Oregon State Bd. of Nursing, 266 Or. 128, 510 P.2d 554, 557 (1973)).
The majority’s opinion in the instant case does not recognize the discretion usually afforded executive agencies. In promulgating regulation 101.03.d, the Board of Medicine determined that “sexual contact, misconduct, exploitation or intercourse” was conduct which “fails to meet the standard of health care” in violation of I.C. § 54-1814. Given the degree of deference usually afforded state agencies in implementing regulations, especially where professional disciplinary proceedings are concerned, I believe regulation 101.03.d does not exceed the scope of I.C. § 54-1814.
For these reasons, I believe the Court should affirm the agency’s disciplinary action against Dr. Levin.