Administrative Law

No. 2018-0332

Jennifer Codding
Strategic Litigator and Senior Counsel
Massey Law Group Tampa, FL

June 25, 2019

Affirmed

  • Issue: Whether the Board of Accountancy misinterpreted the laws and rules, unreasonably or unlawfully concluded auditing quality, and unlawfully shifted the burden of proof when it ordered a 3-year suspension and $5,000.00 fine against an accounting company.

Plaintiff Ron L. Beaulieu & Company (CPA) appealed a superior court order affirming the NH Board of Accountancy’s suspension of plaintiff’s license for 3 years and a $5,000.00 fine for committing professional misconduct by failing to retain work papers and records for 5 years and by failing to properly conduct auditing services for a voluntary corporation registered as a charity (Charity) with the Attorney General’s office (AG). Finding no reversible error, the Court affirmed.

CPA was hired to provide auditing services to Charity. In 2012, the AG was put on notice of serious financial problems at Charity. The AG investigated and found financial failure was due in part to poor auditing services by CPA. The Board of Accountancy (Board) initiated an investigation and found cause to commence disciplinary proceedings. The Board concluded that because CPA failed to keep Charity’s auditing records and work file for five years, he committed professional misconduct. The Board suspended CPA and issued the fine.

On appeal, CPA argued the Board misinterpreted the laws and rules, the Board’s conclusions regarding auditing quality were unreasonable or unlawful, and the Board unlawfully shifted the burden of proof to CPA.

As to CPA’s argument that the five-year retention period applied solely to client records and not audit work papers, the Court rejected CPA’s argument because its interpretation added language to the rule the enacting body did not see fit to include. As to CPA’s argument that if the applicable administrative rule applies to licensee work papers, it impermissibly adds to the statute it was intended to implement, the Court found against CPA and held the Board had broad authority to promulgate rules regarding record retention. Because CPA did not retain its work files for five years after creation, the Court found no basis to reverse.

In considering whether the lower court erred in affirming the Board’s conclusion that CPA’s auditing work constituted professional misconduct, the Court found that CPA had committed professional misconduct because Beaulieu testified as to a mistake on his part and that he had “no idea” as to a reason for an adjustment, because CPA did not keep records of when it deleted file, and because CPA had no backup system.

As to whether it was improper for the lower court to shift the burden of proof to CPA, the Court found that a licensee may present evidence and witnesses on the licensee’s behalf and therefore it was not improper for the Board to note that CPA had not rebutted the evidence demonstrating professional misconduct.

 

Vanacore Law Office, of Concord (John G. Vanacore on the brief and orally), for the plaintiff. Gordon J. MacDonald, attorney general (Seth M. Zoracki, assistant attorney general, on the brief and orally), for the defendant.