summary 2006 WY 144

Summary of Decision issued November 9, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Dorr v. Wyoming Board of Certified Public Accountants

Citation: 2006 WY 144

Docket Number: 06-12

Appeal from the District Court of Campbell County, the Honorable John C. Brooks, Judge

Representing Appellant (Petitioner): Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Appellee (Respondent): 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.

Issue: 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.

Holding: After an extensive contested case hearing, the Wyoming Board of Certified Public Accountants (the Board) concluded 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. § 33-3101) Consequently, the Board suspended Dorr’s certificate to practice public accounting in Wyoming.
Some of the underlying facts of the case are set forth in Dorr I. There, the Board suspended Dorr’s license to practice public accounting after finding he had violated the terms of the settlement agreement and various statutes. The Court vacated that decision because it was not supported by the record. In 2002, a Board committee filed another complaint against Dorr, alleging new violations of the settlement agreement and the laws and regulations pertaining to CPAs. 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 Dorr had not exhausted his administrative remedies. A hearing examiner held a six-day contested case hearing. During the hearing 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 and ruled the evidence would remain open until the discovery matters were resolved. Dorr was allowed to add one additional exhibit into evidence. The hearing officer closed the evidence and ordered the parties to submit written findings of fact and conclusions of law. The Board submitted its proposed findings of fact, conclusions of law and decision but Dorr apparently elected not to submit. He filed motions to compel, renewed his earlier declaratory relief action and stay the agency proceedings. Before the motions were heard by the district court, the Board issued a decision suspending Dorr. Dorr filed a petition for review with the district court in which they affirmed the Board’s decision.
Standard of Review: The Wyoming Certified Public Accountant’s Act directs that proceedings before the Board are to be conducted in accordance with the Wyoming Administrative Procedures Act. A disciplinary proceeding before a licensing board is an adversary proceeding where the burden is on the complaining party and the charges must be established by clear and convincing evidence.
Did Dorr Violate the Settlement Agreement by Participating in the 2000 and 2001 CSA Audits? The settlement agreement listed the parties to the agreement as the Board and “Mark A. Dorr, certified public accountant, d/b/a Dorr, Bentley & Pecha, LLC, the CPA Network.” At all times relevant to the controversy, CPA Network was wholly owned by Dorr. The Court reviewed the record noting the ample evidence demonstrating Dorr personally participated in the 2000 CSA audit even though the Board had denied his petition to reenter audit practice. Dorr spent time planning the 2001 CSA audit prior to receiving approval from the Board for re-entry into audit practice. Dorr had to successfully complete a pre-issuance review before he could fully reenter audit practice. He proposed someone to be the pre-issuance reviewer which the Board rejected. Dorr then withdrew his request to be reinstated to audit practice. The Court found substantial evidence in the record to support the Board’s conclusion the committee proved by clear and convincing evidence that Dorr participated in the 2001 CSA audit during times when he did not have Board approval to do so. Dorr’s argument that he was not engaged in “audit practice” because he did not sign the audit reports was rejected by the Court. The Court stated that Dorr was restricted from performing any aspect of an audit unless and until he first complied with the requirements from the settlement agreement.
Did Dorr Violate the Wyoming Certified Public Accountant’s Act? The Court first considered whether the statute was clear or ambiguous. A statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. Concerning Wyo. Stat. Ann § 33-3-121(a)(ii): the Board was charged with resolving issues of witness credibility and weighing the evidence. Although there is conflicting evidence in the record, the Court concluded that substantial evidence supported the Board’s finding that Dorr withheld information about his license status from CSA when he engaged and participated in the 2000 audit. The record supports the Board’s conclusion that, unlike the previous situation in Dorr I, Dorr did not follow the appropriate procedure to gain Board approval before he performed work on the 2000 CSA audit and expressly ignored the Board’s denial of his request to reenter audit practice. Concerning Wyo. Stat. Ann. § 33-3-121(a)(iv): Dorr’s sole basis for contesting the Board’s conclusion he committed acts which reflected adversely on his fitness to practice public accounting is that he complied with “the letter of the” 1999 settlement agreement. The Court concluded that he violated the terms of the agreement and therefore rejected the argument.
Were Dorr’s Due Process Rights Violated? Dorr claimed his rights were violated because the Board and the committee’s investigator were biased and the committee withheld documents until the hearing officer ordered them to be produced and the hearing officer refused Dorr’s request to admit additional documents into evidence in the proceedings. Dorr relied on the Devous and Ririe decisions to support his claim of bias. The Court stated that neither decision supported Dorr’s position in the instant case. In Devous, the disputed board member had actually appeared before the board in a prior proceeding and expressed a decidedly negative opinion about Devous. The fact a decision maker participated in an earlier action involving the same circumstances does not automatically disqualify him from sitting on the adjudicatory body. Dorr did not identify any specific evidence to overcome the presumption the Board members did not act with honesty and integrity in making their decision. In Ririe, the Court recognized the voir dire process as being a valuable means of discovering individual prejudices. Dorr passed the Board for cause after conducting voir dire which waived any claim his hearing was not fair because the Board members were biased. There was no evidence in the record to overcome the presumption the Board members were impartial. Dorr claimed his due process rights were violated by the committee’s failure to produce all of the documents prior to the hearing. A defendant generally is not denied a fair trial as a result of the prosecution’s discovery violations when the district court takes remedial actions to cure the violation. Dorr did not explain how the hearing examiner’s efforts failed to cure any prejudice he suffered as a result of the committee’s failure to produce documents in the first place. The hearing examiner denied admission of many of the exhibits because they were irrelevant, immaterial or unduly repetitious. Dorr did not explain on appeal how the rulings were incorrect. Some exhibits were denied because Dorr had access prior to the hearing which made his request for admission untimely.
Was the Pre-issuance Review Process Contained in the Settlement Appropriate and Was it Followed? Dorr’s concerns about the pre-issuance process did not require determination because the settlement agreement required Dorr to petition for approval from the Board before he reentered audit practice which he failed to obtain.

Affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/yayd2l .