ALJDEC decisions subject to certification as final

10F-2010.027-ACY · State Board of Accountancy · 2010-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2010 at 8:00 a.m. APPEARANCES: The Arizona State Board of Accountancy appeared through Keely Lynn Verstegen, Esq., Assistant Attorney General; Respondent Ellen M. McAlister did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona State Board of Accountancy (“the Board”) had issued to Ellen M. McAlister Certified Public Accountant Certificate No. 9618- E. 2. On March 30, 2009, the Board received Ms. McAlister’s biennial Registration Renewal Form for the period 3/31/2009 – 3/31/2011 (“the 2009 – 2011 Registration Renewal Form”). The address she provided on the form was 550 E. Raysun Lane, Camp Verde, Arizona. 3. On the 2009 – 2011 Registration Renewal Form, Ms. McAlister left blank the Employment Information section. Ms. McAlister also requested inactive status under A.R.S. § 32-730(B), an exemption of the registration fee under A.R.S. § 32-730(C), and a waiver of the Continuing Professional Education (“CPE”) requirement under A.R.S. § 32-730(D). 4. Ms. McAlister attached to the 2009 – 2011 Registration Renewal Form an unsigned letter, which stated in relevant part as follows: I am not working as an accountant, and have been taking care of my mother who has Alzheimer’s. I do not have the time or money to pay for continuing education, or money for my renewal fee. I do not believe I will ever return to work as an accountant, but would like to remain in inactive status.

5. A.R.S. § 32-730(D) allows the Board to “grant an exemption from [CPE] requirements . . . on a demonstration of good cause as determined by the board.” 6. On April 13, 2009, the Board’s staff Mary Ramoz sent an e-mail to Ms. McAlister, requesting that she complete the employment section of the 2009 – 2011 Registration Renewal Form and sign the letter in which she claimed hardship. 7. On May 22, 2009, the Board received an amended 2009 – 2011 Registration Renewal Form from Ms. McAlister, in which she provided Employment Information (“Retired – Taking care of mother”) and requested an exemption of the registration fee and a waiver of the CPE requirement. 8. Ms. McAlister did not request inactive status on the amended 2009 -- 2011 Registration Renewal Form. She attached a signed letter to the amended 2009 – 2011 Registration Renewal Form, which provided in relevant part: I would like to request a registration fee exemption and CPE requirement waiver. I have not been employed as an accountant since November 2007 due to the illness of my mother. I do not expect to return to work. I do not have the funds available to pay the registration or CPE classes.

9. On June 23, 2009, Ms. Ramoz sent another e-mail to Ms. McAlister, confirming a telephone conversation in which Ms. McAlister had promised to provide a note from her mother’s doctor, attesting to her mother’s illness. 10. The Board’s Compliance Manager Ryan Edmondson explained at the hearing that, since the reason for Ms. McAlister’s claimed inability to practice accountancy and requested fees exemption and waiver was her mother’s illness, rather than her own disability, the Board required evidence from a third party to substantiate it. 11. Ms. McAlister did not respond to Ms. Ramos’ second e-mail. 12. On June 24, 2009, Ms. Ramos on behalf of the Board sent via regular and certified mail to Ms. McAlister at 550 E. Raysun Lane, Camp Verde, AZ 86322 a letter, again requesting a doctor’s note confirming Ms. McAlister’s mother’s condition to complete the 2009 – 2011 registration. 13. The Board’s July 24, 2009 letter informed Ms. McAlister in relevant part as follows: Pursuant to A.A.C. R4-1-455.03(F), you are hereby requested to respond to this request by submitting the requested documentation, within thirty days of the date of this letter. Please be advised that your failure to timely respond and/or submit the requested material may be considered a violation of A.R.S. § 32-741(A)(9) and (15) and A.A.C. R4-1-455.03(F), which could be grounds for disciplinary action against your certificate. . . . If the requested documentation is not received within thirty days, this application will be submitted to the next Board meeting for suspension pursuant to A.R.S. § 32- 742(C).

[Emphases in original.] 14. Ms. McAlister did not respond to the Board’s July 24, 2009 letter and did not provide the requested information. 15. The Board referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. 16. On December 10, 2009, the Board mailed to Ms. McAlister by regular and certified mail to her address at 550 E. Raysun Lane, Camp Verde, AZ 86322 a Complaint and Notice of Public Hearing before the Office of Administrative Hearings to be held on February 1, 2010 at 8:00 a.m. 17. The Complaint charged Ms. McAlister with violations of A. A. C. R4-1-455.03(F) and A.R.S. § 32-741(A)(9) (“Knowing violation of any . . . rule issued or adopted by the board”) and A.R.S. § 32- 741(A)(15) (“Failing to respond or furnish information in a timely manner to the board or its designated agent, if the information is legally requested by the boar and is in the registrant’s possession and control.”) 18. A hearing was held on February 1, 2010, commencing at 8:15 a.m. 19. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Ms. McAlister additional travel time, she neither appeared personally or through an attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence at the hearing to defend her Certified Public Accountant Certificate. 20. The Board presented the testimony of Mr. Edmondson and had admitted into evidence five exhibits to establish the facts set forth above. CONCLUSIONS OF LAW The Board has personal and subject matter jurisdiction over Ms. McAlister pursuant to A.R.S. §§ 32-701 et seq. and A.A.C. R4-1-101 et seq. The Board has the authority to discipline Ms. McAlister pursuant to A.R.S. § 32-741. The notice of the hearing that the Board mailed to Ms. McAlister at the address she provided, her address of record, was reasonable and she is deemed to have received notice of the hearing.[1] The Board bears the burden of proof and must establish cause to penalize Ms. McAlister’s certified public accountant certificate by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[4] Ms. McAlister is deemed to have knowledge of the Board’s rules.[5] The Board’s administrative regulations require that, “[w]hen requested, certified public accountants or public accountants shall respond to communications from the Board within 30 days of the mailing of such communications by registered or certified mail.”[6] The regulations also prohibit a certified public accountant from committing any “discreditable acts,” which includes violation of any administrative regulation, specifically including the requirement that she respond to Board communications sent via certified mail.[7] Ms. McAlister’s proven failure to respond to the Board’s inquiries, as required by regulation, constitutes a discreditable act and provides cause for the Board to penalize her Certified Public Accountant Certificate.[8] Her failures to provide the requested information and to appear at the duly noticed public hearing to defend her certified public accountant certificate demonstrate that, at this time, she cannot be regulated. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board revoke Certified Public Accountant Certificate No. 9618-E previously issued to Ellen M. McAlister. Done this day, February 3, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director Arizona State Board of Accountancy ----------------------- [1] See A.R.S. § 41-1092.04. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1064 (6th ed. 1990). [5] A.A.C. R4-1-102(A). [6] A.A.C. R4-1-455.03(F). [7] See A.A.C. R4-1-455.03(A)(1) and (3). [8] See A.R.S. § 32-741(A)(9) and (15) and (D).

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