Walsh v. State Bd. of Public Accountancy
| Citation | 759 N.W.2d 100,276 Neb. 1034 |
| Decision Date | 09 January 2009 |
| Docket Number | No. S-07-1083.,S-07-1083. |
| Parties | Michael P. WALSH, appellant, v. STATE of Nebraska ex rel. State Board of Public Accountancy of the State of Nebraska, appellee. |
| Court | Supreme Court of Nebraska |
John P. Raynor, of Raynor, Rensch & Pfeiffer, Omaha, for appellant.
Robert T. Grimit and John J. Heieck, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee.
Noel L. Allen, of Allen & Pinnix, P.A., Raleigh, for amicus curiae National Association of State Boards of Accountancy.
The Nebraska State Board of Public Accountancy (Board) imposed sanctions on Michael P. Walsh for violation of its rules. The Board found that Walsh improperly advertised that he was a certified public accountant (CPA) without using a disclaimer to indicate that he was an "inactive registrant." The Board reprimanded Walsh and placed him on probation for 3 years, with the condition that he include the disclaimer along with any use of the CPA designation. The Board also found that Walsh impersonated his brother-in-law to obtain insurance information, an act which qualified as a "discreditable act" under the Board's rules. The Board reprimanded Walsh and placed him on probation for a concurrent term of 3 months. The Lancaster County District Court affirmed the order of the Board. Walsh appeals.
A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Nothnagel v. Neth, 276 Neb. 95, 752 N.W.2d 149 (2008).
Walsh became an active CPA in Nebraska in 1977 and continued in that status through June 30, 2002. Walsh did not meet the requirements for continuing education, and he applied for and was issued an inactive permit for the period of July 1, 2002, to June 30, 2004. He continued to request and receive biennial inactive permits through June 30, 2008.
In 2004, the Board was advised that Walsh was violating its rules and regulations by advertising that he was a CPA without including a disclaimer that he was an inactive registrant. The yellow pages of a 2004 Omaha-area telephone directory included a listing for "CPA MICHAEL P WALSH" under "Accountants-Certified Public." The Board issued a "cease and desist notice" to Walsh, ordering him to immediately stop use of the CPA designation in any manner. He was directed to cancel the listing for future telephone directories and to send the Board a copy of a certified letter and return receipt to prove that he asked the telephone directory company to cancel the listing.
In response, Walsh allegedly sent a letter on February 23, 2005, to the telephone directory company requesting that he no longer be listed under the CPA classification in the yellow pages. A copy of the letter was received by the Board on March 1. Notwithstanding the letter, Walsh's listing continued and was renewed in 2005 and 2006. Walsh paid the bill for the listing each year.
In July 2005, the Board received a letter from Stephen F. Teiper, who was Walsh's brother-in-law, which accused Walsh of impersonating Teiper on the telephone to obtain financial information from Teiper's insurance company. According to Teiper, Walsh identified himself as Teiper and gave the insurance company Teiper's Social Security number. Walsh admitted that he had impersonated Teiper in order to obtain financial information about Teiper's accounts.
The Board filed a complaint against Walsh on March 6, 2006, for violation of the Board's rules and regulations in two respects. The complaint alleged that Walsh (1) held himself out to the public as a permitholder when he advertised under the "Accountants-Certified Public" category in the telephone directory without including the disclaimer that he was inactive and (2) engaged in a discreditable act when he impersonated Teiper to obtain information from his insurance company.
At a hearing before the Board, Walsh acknowledged that he continued to renew his listing in the CPA section of the telephone directory without the disclaimer on advice of counsel that he was permitted to do so, even though he was inactive. Walsh acknowledged that he had intentionally and willfully ignored the Board's policy requiring use of the disclaimer in advertising.
Walsh also acknowledged that he had identified himself to the insurance company as Teiper. Walsh said that Teiper had provided his Social Security number and date of birth to allow Walsh to obtain information from the insurance company on Teiper's behalf.
The Board found that Walsh had intentionally and with knowledge of the Board's rules and regulations violated the rules by using "Certified Public Accountant" or "CPA" without the disclaimer indicating that he was an inactive registrant. As a sanction, the Board reprimanded Walsh and placed him on probation for 3 years with the condition that he cease using "Certified Public Accountant" or "CPA" within 30 days on his business cards, letterhead, advertising, tax returns, checks, or other written material provided to the public, unless it was also accompanied with the disclaimer "inactive registrant."
The Board also found that Walsh had committed a discreditable act when he lied to the insurance company and affirmatively represented that he was Teiper. The Board concluded that Walsh's conduct in impersonating a third party to secure financial information about that third party was reprehensible and reflected adversely on Walsh's fitness to engage in the practice of public accountancy. As a sanction, the Board reprimanded Walsh and placed him on probation for a term of 3 months to run concurrently to the previous sanction. He was also ordered to obtain 4 hours of continuing education in ethics by December 22, 2006. The Board ordered Walsh to pay costs and expenses not to exceed $3,000 within 6 months.
Walsh appealed to the Lancaster County District Court, which affirmed the Board's order in its entirety.
Walsh assigns the following errors, which we have consolidated and restated: Concerning the charge that he violated the Board's rules by including the CPA designation in his advertising, Walsh claims that the district court and the Board erred (1) in finding that the Board had subject matter jurisdiction over Walsh's tax return business, (2) in not finding that the Board's rules enlarge and modify the enabling statutes, (3) in not finding that the Board's actions violated Walsh's due process rights when the Board found he violated a rule not named in the complaint, and (4) in not finding the requirement of using the disclaimer "inactive registrant" violates Walsh's First Amendment right to free speech under Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).
Concerning the discreditable acts charge, Walsh claims that the district court and the Board erred (1) in not finding that 288 Neb. Admin. Code, ch. 5, § 007.01 (2005), is unconstitutionally vague; (2) in finding there was a sufficient nexus between the practice of public accountancy and Walsh's behavior for the Board to discipline him; and (3) in not dismissing the discreditable acts charge when the Board denied Walsh his "Seventh Amendment" right to confront his accuser.
We begin with a review of the Public Accountancy Act, Neb.Rev.Stat. §§ 1-105 to 1-171 (Reissue 2007) (Act), and the Board's rules and regulations, which govern the practice of public accountancy in Nebraska. The Board's purpose is "to protect the welfare of the citizens of the state by assuring the competency of persons regulated" under the Act through administration of CPA examinations, issuance of certificates and permits, and monitoring the requirements for continued issuance of certificates and permits. § 1-105.01. The Board is also authorized to discipline the holders of certificates and permits who fail to comply with the technical or ethical standards of the public accountancy profession. Zwygart v. State, 273 Neb. 406, 730 N.W.2d 103 (2007), citing § 1-105.01. The Board has the authority to adopt and promulgate "rules and regulations of professional conduct appropriate to establish and maintain a high standard of integrity and dignity in the profession of public accountancy and to govern the administration and enforcement of the ... Act." § 1-112. See, also, Zwygart, supra.
A permit to engage in the practice of public accountancy is issued by the Board to persons who hold certificates issued by the Board and who have met experience requirements. § 1-136(1). Permits for certificate holders may be renewed biennially for certificate holders and registrants in good standing. § 1-136(2)(b).
A certificate holder or registrant who has not lost his or her right to issuance or renewal of a permit and "who is not actively engaged in the practice of public accountancy in this state may file a written application with the board to be classified as inactive." § 1-136(4). The person is then carried on an "inactive roll" and may be issued a current permit upon application and payment of the current permit fee. Id.
The "`[p]ractice of public accountancy'" is defined in 288 Neb. Admin. Code, ch. 3, § 001.17 (1995), as "the performance or offering to perform by a person holding himself out to the public as a permit holder ... of one or more kinds of services involving ... the preparation of tax returns or the furnishing of advice on tax matters." Whether active or inactive, a permitholder "shall be styled...
To continue reading
Request your trial
-
Clinger v. Clinger (In re Estate of Clinger)
...Neb. 153, 328 N.W.2d 197 (1982).57 In re Estate of Clinger, supra note 1, 22 Neb.App. at 703, 860 N.W.2d at 209.58 See Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).59 See Neb. Evid. R. 611, Neb. Rev. Stat. § 27–611 (Reissue 2008).60 California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1......
-
Echo Grp., Inc. v. Tradesmen Int'l, s. S-21-729
...959 N.W.2d 251 (2021).42 Id.43 See Weyh v. Gottsch , 303 Neb. 280, 929 N.W.2d 40 (2019).44 Id.45 § 45-103.02(2).46 Walsh v. State , 276 Neb. 1034, 759 N.W.2d 100 (2009).47 See Gerhold Concrete Co. v. St. Paul Fire & Marine Ins. , 269 Neb. 692, 695 N.W.2d 665 (2005).48 See § 52-159 (substitu......
-
Echo Grp. v. Tradesmen Int'l
... ... this state, the court, upon rendering judgment against such ... company, person, or ... [ 44 ] id ... [ 45 ] § 45-103.02(2) ... [ 46 ] Walsh v. State, 276 Neb ... 1034, 759 N.W.2d 100 (2009) ... [ 47 ] See ... ...
-
Diers Partnership v. State, Dept. of Roads
...an appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009). However, in the instant case, Diers had no opportunity to raise this issue prior to entry of the final judgment. The omi......