Dorr v. Bd. of Cert. Public Accountants
| Decision Date | 09 November 2006 |
| Docket Number | No. 06-12.,06-12. |
| Citation | 146 P.3d 943,2006 WY 144 |
| Parties | Mark A. DORR, Appellant (Petitioner), v. The WYOMING BOARD OF CERTIFIED PUBLIC ACCOUNTANTS, Appellee (Respondent). |
| Court | Wyoming Supreme Court |
Representing Appellant: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.
Representing Appellee: Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Kennard F. Nelson, Senior Assistant Attorney General; Douglas W. Weaver, Special Assistant Attorney General. Argument by Mr. Weaver.
Before VOIGT, C.J., and GOLDEN, HILL*, KITE, and BURKE, JJ.
[¶ 1] After an extensive contested case hearing, the Wyoming Board of Certified Public Accountants' (the Board) concluded Mark A. Dorr had violated the terms of a settlement agreement which resolved a former disciplinary action. The Board also found him in violation of certain provisions of the Wyoming Certified Public Accountant's Act, Wyo. Stat. Ann. § 33-3-101 et. seq. (LEXIS 1999). Consequently, the Board suspended Mr. Dorr's certificate to practice public accounting in Wyoming. After reviewing the entire record, we conclude the Board's decision is supported by substantial evidence, is not arbitrary or capricious, and is otherwise in accordance with law.
[¶ 2] We affirm.
[¶ 3] Mr. Dorr phrases his appellate issue as:
1. Whether the district court erred when it adopted the reasoning set forth in the brief of respondent the Wyoming Board of Certified Public Accountants and affirmed the Wyoming Board of Certified Public Accountants' December 16, 2004, Board Decision Suspending Certificate and Permits to Practice.
The Board poses the following issues on appeal:
1. Is the Wyoming Board of Certified Public Accountants' decision suspending Dorr's certificate and permits to practice supported by substantial evidence and according to law?
2. Did Dorr violate W.S. § 33-3-121[(a)(ii)]?
3. Was pre-issuance review defined, and was a pre-issuance [review] done?
4. Did Dorr receive a fair hearing?
[¶ 4] Some of the underlying facts of this case are set forth in Dorr v. Wyoming Bd. of Certified Pub. Accountants, 2001 WY 37, 21 P.3d 735 (Wyo.2001) (Dorr I). The Board filed a disciplinary complaint against Mr. Dorr in 1999. Dorr I, ¶ 3, 21 P.3d at 737. The parties resolved their dispute by entering into a settlement agreement, which stated in pertinent part:
13. As of the date of this agreement, Dorr agrees to limit the scope of his practice to exclude all audits. Prior to re-entry into audit practice, Dorr agrees to petition the Board for approval and agrees to a review of a post agreement audit engagement by a firm approved by the Board's representative. This review is to demonstrate to the Board [that] Dorr is competent to perform audits. The scope of the review is to be a "pre-issuance" review, the requirements of which are less in scope and magnitude than a peer review. Dorr further agrees to reimburse the Board for the costs associated with this review. Should Dorr re-enter the audit practice, he further agrees to undergo peer review in compliance with the Board Rules and Regulations.
14. Dorr shall fully comply with the Certified Public Accountant's Act of 1975, and the Board's administrative rules and regulations. Specifically, Dorr shall fully comply with Wyo. Stat. § 33-3-119.
15. Dorr agrees that the Board shall retain continuing jurisdiction over him to take further action as may be necessary to conclude this matter.
16. Dorr agrees that in the event he fails to comply with all terms of this agreement, and after notice and the opportunity to be heard, he will voluntarily surrender to the Board all permits and certificates held by him for a one (1) year suspension for discipline. Dorr may petition and appear before the Board to show cause as to why his certificates and permits should be reinstated after the one (1) year suspension has been served.
In Dorr I, the Board suspended Mr. Dorr's license to practice public accounting after finding he had violated the terms of the settlement agreement and various statutes. Dorr I, ¶ 7, 21 P.3d at 738-41. We vacated the Board's decision because it was not supported by the record. Dorr I, ¶ 21, 21 P.3d at 745.
[¶ 5] On July 9, 2002, a Board committee filed another complaint against Mr. Dorr, alleging new violations of the settlement agreement and the laws and regulations pertaining to certified public accountants. In particular, the committee claimed Mr. Dorr had violated the settlement agreement by engaging in audit practice in 2000 and 2001 when he participated in audits of the financial records of the Sixth Judicial District Child Support Authority (CSA). The committee also asserted his actions violated the Wyoming Certified Public Accountant's Act because they were dishonest and reflected adversely on his fitness to practice public accounting.
[¶ 6] In September 2002, Mr. Dorr filed a declaratory judgment action and a motion for a stay, asking the district court to halt the administrative proceeding. The district court dismissed the declaratory judgment action because Mr. Dorr had not exhausted his administrative remedies. In November 2003 and January 2004, a hearing examiner and a Board adjudicatory panel held a six-day contested case hearing on the disciplinary complaint. During the hearing, Mr. Dorr's attorney learned there were many documents in the committee's possession which had not been provided to him in discovery. The hearing officer ordered the committee to produce all non-privileged documents to Mr. Dorr after the hearing and ruled the evidence would remain open until the discovery matters were resolved. The hearing officer performed an in-camera review of the documents the committee claimed were privileged and ordered some of them to be produced to Mr. Dorr.
[¶ 7] Mr. Dorr identified 112 additional exhibits for admission into evidence. The hearing officer denied admission of 111 of the proposed exhibits on the basis they were irrelevant, immaterial, or unduly repetitious under Wyo. Stat. Ann. § 16-3-108 (Lexis-Nexis 2005) and/or they had been available to Mr. Dorr prior to the hearing and his request for admission was, therefore, untimely. The hearing officer closed the evidence and ordered the parties to submit written findings of fact and conclusions of law.
[¶ 8] The Board submitted its proposed findings of fact, conclusions of law and decision, but Mr. Dorr apparently elected not to submit his proposed findings, conclusions and decision. Instead, he filed motions in the district court to compel, renew his earlier declaratory relief action and stay the agency proceedings. Before Mr. Dorr's motions were heard by the district court, the Board issued its decision suspending Mr. Dorr's privilege to practice public accounting in Wyoming. Mr. Dorr filed a petition for review with the district court. The district court affirmed the Board's decision, and Mr. Dorr filed a notice of appeal with this Court.1
[¶ 9] This case involves a disciplinary action under the provisions of Wyoming's Certified Public Accountant's Act. Sections 33-3-101 through 33-3-132. The act directs that proceedings before the Board are to be conducted in accordance with the Wyoming Administrative Procedures Act (§§ 16-3-101, et.seq.). Section 33-3-123. The Wyoming Administrative Procedures Act sets forth the scope of appellate review for agency decisions:
(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.
[¶ 10] We review an administrative decision as if it came directly from the agency and do not defer to the district court's ruling. Veile v. Bryant, 2004 WY 107, ¶ 9, 97 P.3d 787, 792 (Wyo.2004). An agency's "conclusions of law are afforded no special deference and will be affirmed only if truly in accordance with law." Hermosillo v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2002 WY 175, ¶ 6, 58 P.3d 924, 926 (Wyo.2002). See also, Penny v. State ex. rel. Wyo. Mental Health Professions Licensing Bd., 2005 WY 117, ¶ 12, 120 P.3d 152, 160 (Wyo.2005). We examine the entire record to determine if the agency's findings of fact are supported by substantial evidence. See, RT Communications, Inc. v. State Bd. of Equalization, 11 P.3d 915, 920 (Wyo.2000), Laramie County Bd. of Equalization v. Wyo. State Bd. of Equalization, 915 P.2d 1184, 1189 (Wyo.1996). So long as the agency's findings of fact are supported by substantial evidence, we will not substitute our judgment for that of the agency. RT Communications, 11 P.3d at 920. We define substantial evidence as being more than a scintilla of evidence. Id. It is evidence that a reasonable mind might accept in support of the agency's conclusions. Id.
[¶ 11] "Even if the Board's factual findings are found to be supported by sufficient evidence, the ultimate agency decision may be found to be arbitrary or capricious for other...
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