Dorr v. BD. OF CERTIFIED PUBLIC ACCOUNTANTS

• Decision Date: 11 April 2001
• Docket Number: No. 00-145.,00-145.
• Citation: 21 P.3d 735,2001 WY 37
• Parties: Mark A. DORR, CPA, Appellant (Petitioner), v. The WYOMING BOARD OF CERTIFIED PUBLIC ACCOUNTANTS, Appellee (Respondent).
• Court: Wyoming Supreme Court

21 P.3d 735

2001 WY 37

Mark A. DORR, CPA, Appellant (Petitioner), v. The WYOMING BOARD OF CERTIFIED PUBLIC ACCOUNTANTS, Appellee (Respondent).

No. 00-145.

Supreme Court of Wyoming.

April 11, 2001.

Representing Appellant: Greg L. Goddard of Goddard, Perry & Vogel, Buffalo, WY. Argument by Mr. Goddard.

Representing Appellee: Douglas W. Weaver, Special Assistant Attorney General. Argument by Mr. Weaver. Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ.

HILL, Justice.

[¶ 1] Mark A. Dorr (Dorr) appeals from a decision of the Wyoming Board of Certified Public Accountants (the Board) suspending his license to practice for one hundred days. We conclude that the record does not contain clear and convincing evidence that Dorr violated Wyo. Stat. Ann. §§ 33-3-119 or 33-3-121(a)(ii) (LEXIS 1999). Therefore, we vacate the Board's order suspending Dorr's license.

[¶ 2] Dorr presents the following issues for our consideration:

1. Did the Board properly find that Mark A. Dorr had violated Wyoming Statute § 33-3-119 by having an office that was advertised as an office of a certified public accountant which was neither registered with the Board nor under direct supervision of a resident manager?

a. Did the evidence support the Board's findings?

b. Is Wyoming Statute § 33-3-119 constitutional?

2. Did the evidence support the Board's finding that Mark A. Dorr violated Wyoming Statute § 33-3-121(a)(ii) by committing dishonesty in the practice of public accounting?

3. Was the Board's designated investigator of Mark A. Dorr one David Kreycik exempt from being deposed by Mark A. Dorr?

4. Should the assistant attorney general in this matter have acted as both prosecutor and legal advisor to the Board?

The Board restates the issues differently:

1. Is W.S. § 33-3-119 (LEXIS 1999) constitutional?

2. Was there sufficient evidence to find that Dorr had violated W.S. § 33-3-119 (LEXIS 1999)?

3. Was there sufficient evidence to find that Dorr committed dishonesty in the practice of public accounting and as such violated W.S. § 33-3-121(a)(ii) (LEXIS 1999)?

4. Was W.S. § 16-3-107(k) (LEXIS 1999) violated?

5. Was the Hearing Officer correct when he granted David Kreycik's Motion to Quash Subpoena?

FACTS

[¶ 3] On January 22, 1999, the Board filed a Complaint against Dorr alleging that he had failed to: (1) complete two audits and a tax return; (2) properly represent his fees for an audit; (3) complete a peer review as required by Wyo.Stat.Ann. § 33-3-121; and (4) have a resident manager for an office represented as a certified public accounting firm as required by Wyo.Stat.Ann. § 33-3-119. The parties resolved the Complaint through a Settlement Agreement and Stipulation (the Settlement Agreement), which was accepted by the Board on May 5, 1999. Pursuant to the Settlement Agreement, Dorr did not admit to any wrongdoing but he agreed to be bound by the following conditions:

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 the [sic] 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.

[¶ 4] In June of 1999, Dorr was contacted by the Wyoming Beef Council to perform an audit. Dorr filed a letter with the Board requesting permission to conduct the audit and initiate the process of a "pre-issuance" review of that audit as required by the Settlement Agreement. At that time, Dorr did not inform the Beef Council of the restrictions imposed on his ability to perform audits by the Settlement Agreement. A hearing was held on the matter on September 21, 1999. During the hearing, Dorr amended his request to substitute an audit for the Sixth Judicial District Child Support Authority instead of the Beef Council. The Board approved Dorr's request and allowed him to perform the audit.

[¶ 5] On October 6, 1999, the Board issued a Notice of Hearing to determine whether Dorr had complied with the terms of the Settlement Agreement. Specifically, the Board noted that there were two allegations of non-compliance against Dorr. First, it was asserted that Dorr had not retained a resident manager for his Cheyenne office. Paragraph 14 of the Settlement Agreement required Dorr to comply with the provisions of § 33-3-119, which requires all offices that advertise to the public as providing certified public accounting services to have a registered resident office manager. Second, it was alleged that Dorr had given deceitful testimony during the September 21, 1999, hearing on his request to remove the audit restriction imposed by the Settlement Agreement. The bases of the allegation was that Dorr had engaged in fraud or deceit in obtaining a certificate or a permit in violation of § 33-3-121(a)(i) and had engaged in the dishonest practice of public accounting in violation of § 33-3-121(a)(ii) when he failed to disclose his restricted audit ability pursuant to the Settlement Agreement at the time he was tendered an engagement contract to perform an audit by the Beef Council.

[¶ 6] Prior to the hearing on the new allegations, Dorr attempted to take the deposition of Board member David J. Kreycik. The Assistant Attorney General for the Board filed a Motion to Quash Subpoena of David J. Kreycik pursuant to Wyo.Stat.Ann. § 16-3-107(h) (LEXIS 1999). The Board, acting through the hearing officer assigned to the matter, granted the motion to Quash on the basis that Kreycik, as a member of the presiding agency, was not subject to being compelled to give testimony or a deposition under § 16-3-107(h).

[¶ 7] A hearing was held before the Board and the hearing examiner on February 3, 2000. The hearing examiner made the following findings of fact and conclusions of law:

8. On or about October 6, 1999, a Notice of Hearing was filed against Mr. Dorr, alleging several violations of Paragraph 14 of the Settlement Agreement. Specifically, it was alleged that Mr. Dorr had violated Paragraph 14 by:

A) Advertising an office offering certified public accounting services to the public, without having a resident manager at that location, in violation of Wyo.Stat. § 33-3-119;

B) Engaging in deceit in obtaining a certificate or permit to practice as a certified public accountant, in violation of Wyo.Stat. § 33-3-121(a)(i); and

C) Dishonestly practicing public accounting, in violation of Wyo.Stat. § 33-3-121(a)(ii).

9. After the date that the Settlement Agreement was entered into, Mr. Dorr, as the "CPA Network, Dorr and Associates", had established and maintained an office at 1920 Thomes Avenue, Suite 110, Cheyenne, Wyoming (Office), offering certified public accounting services to the public.

10. That Office was advertised as offering certified public accounting services by:

A) A listing upon the building directory until August 26, 1999;

B) A sign¹ posted upon the office door stating, "CPA Network now available on an appointment basis. If no one is in please call 635-8000 or out of Cheyenne call toll-free 1-877-579-8080.

My apologies for any inconvenience. Mark A. Dorr, CPA"; and

C) Having informational pamphlets available for public access within the Office.

11. That Office was established and maintained as an office offering certified public accounting services as indicated by:

A) Its advertising;

B) Its receiving business mail at the address;

C) Its interacting with clients at the address. Specifically, Pat Swan, Executive Director of the Wyoming Beef Council, visited that Office on July 8, 1999, to conduct business with Mr. Dorr.

D) A Certificate of Organization for DORR, BENTLY & PECHA, THE CPA NETWORK, LLC filed with the Wyoming Secretary of State. That Certificate indicates that the LLC's business is that of "... the practice of accountancy in the State of Wyoming in accordance with the Rules of Professional Conduct as adopted by the American Institute of Certified Public Accountants ..." and lists its principal place of business as 1920 Thomes, Suite 110 Cheyenne, WY 82001.

12. After the date that the Settlement Agreement was entered into, the Office was not registered with the Board.

13. After the date that the Settlement Agreement was entered into, the Office was not under the direct supervision of a resident manager who served in that capacity for only one office.

14. In a previous hearing conducted by the Board, on September 21, 1999, wherein Mr. Dorr was the respondent, he testified under oath that:

A) "[s]hortly after" June of 1999, he contacted the Wyoming Beef Council and informed it of his restricted licensure status;

B) He owned 1% share of the firm known as Dorr, Bentley and Pecha; and

C) His firm withdrew from certain audit engagements.²

15. On June 15, 1999, Pat Swan, Executive Director of the Wyoming Beef Council, telephoned Mr. Dorr to inform him that the Beef Council had again approved of a contract extension for his firm to conduct its audit, for the fiscal year ending June 30, 1999. At or about that time, Mr. Dorr did not inform the client, Beef Council, that he could not perform the audit because of the restriction placed on his scope of practice by the Settlement Agreement and Board Order.

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