FINACT18F-2018.136-ACY.pdf

18F-2018.136-ACY · State Board of Accountancy · 2018-10-09

BEFORE THE ARIZONA STATE BOARD OF ACCOUNTANCY In the Matter of OAH Docket No. 18F.2018.136-ACY

Certified Public Accountant ASBA File No. 2018.136

Certificate No. 5480-R Issued to: DECISION AND ORDER ROBERT JAMES GAUGHAN, Respondent. On September 24th, 2018, this matter came before the Arizona State Board of

Accountancy (“Board”) for consideration of Administrative Law Judge (“ALJ”) Thomas Shedden’s proposed Findings of Fact, Conclusions of Law and Recommended Order (“ALJ’s Decision”). 1 Neither Robert James Gaughan (“Respondent”) nor an attorney on their behalf appeared. Assistant Attorney General Scott Donald appeared on behalf of the State. The Board received independent legal advice from Assistant Attorney General Seth Hargraves. The Board, having considered the ALJ’s Decision and the entire record in this matter, hereby issues the following Findings of Fact, Conclusions of Law and Order (“Decision and Order”). FINDINGS OF FACT The Findings of Fact as set forth in the ALJ’s Decision are adopted in their entirety and incorporated herein. CONCLUSIONS OF LAW The Conclusions of Law as set forth in the ALJ’s Decision are adopted in their entirety and incorporated herein. // A true and correct copy of the ALJ’s Decision is attached and certain parts of it are incorporated here as set forth above. ORDER Based on the foregoing, the Board ORDERS that Respondent Certified Public Accounting Certificate No. 5480-R be SUSPENDED in accordance with A.R.S. § 32- 741.02 2. IT IS FURTHER ORDERED that Robert James Gaughan shall be required to reimburse the Board $108.89 within thirty (30) days of the effective date of this Decision and Order. This amount reflects the costs and attorney’s fees the Board incurred in prosecuting this matter. 3 NOTICE OF APPEAL RIGHTS Respondent is hereby notified that they have the right to move for a rehearing or review by filing a motion with the Board’s Executive Director within thirty (30) days after service of this Decision and Order. A.R.S. § 41-1092.09. The motion must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-1-114(C). Service of this Decision and Order is effective on the date of personal service or five (5) days after the date of mailing. If a motion for rehearing is not filed, the Board’s Decision and Order becomes effective thirty (30) days after it is mailed to Respondent. Respondent is further notified that the filing of a motion for rehearing is required

to preserve any rights of appeal to the Superior Court. DATED this 3rd day of October, 2018. ARIZONA STATE BOARD OF ACCOUNTANCY By: ___________________________________ Julie S. Klewer, CPA, Board President Pursuant to A.R.S. § 32-741.02(D), Respondent’s certificate will expire if he fails to submit proof of CPE compliance within six months of the effective date of the Order. The Board voted to modify the ALJ’s Decision to include the specific reimbursement amount of fees and costs to recuperate costs for enforcement and make that payment due within 30 days. Original of the foregoing Decision and Order (and attachment) rd filed this 3 day of October, 2018 with: Monica L. Petersen Executive Director Arizona State Board of Accountancy th 100 N. 15 Avenue, Suite 165 Phoenix, AZ 85007 Copy of the rdforegoing Decision and Order (and attachment) e-filed this 3 day of October, 2018 with: Greg Hanchett, Director Arizona Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, AZ 85007 Copy of the foregoing Decision and Order (and attachment) mailed via U.S. First Class Mail and Certified Mail #[account number redacted] 9993 this 3rd day of October, 2018, to: Robert James Gaughan 744 Woodridge Lane Prescott, AZ 86303 Copy of the foregoing Decision and Order (and attachment) emailed this 3rd day of October, 2018 to: Scott Donald Assistant Attorney General 2005 N. Central Avenue Phoenix, Arizona 85004 Seth Hargraves Assistant Attorney General Independent Advisor 2005 N. Central Avenue Phoenix, Arizona 85004 By: ___________________________________ IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of No. 18F-2018.136-ACY

Certified Public Accountant ADMINISTRATIVE LAW JUDGE Certificate No. 5480-R DECISION Issued to:

ROBERT JAMES GAUGHAN,

Respondent.

HEARING: August 31, 2018 APPEARANCES: No one appeared for Respondent; Scott Donald, Esq. for the Board of Accountancy ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona State Board of Accountancy (“Board”) is the authority for regulating Certified Public Accountants in the State of Arizona. 2. On April 26, 2018, the Board issued a Complaint and Notice of Hearing setting this matter for hearing on June 8, 2018 at the Office of Administrative Hearings in Phoenix Arizona. 3. The issue for hearing is whether good cause exists for the Board to revoke, suspend, or take other disciplinary action against Robert James Gaughan (“Respondent”), who holds Certificate No. 5480-R issued by the Board. 4. The matter was continued and scheduled to convene at 8:30 a.m. August 31, 2018. 5. No one appeared for Respondent at the scheduled hearing time and the matter was convened in his absence at about 8:47 a.m. on August 31st. 6. Through a letter dated October 4, 2017, the Board informed the Respondent that he had been selected for a continuing professional education (“CPE”) audit for the period from November 1, 2015 through October 31, 2017.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 7. Through a letter dated October 9, 2017, Respondent provided the Board with certificates and other information in response to the audit. Respondent reported eighty- two hours of CPE, whereas eighty was required. 8. The Board’s CPE Advisory Committee reviewed Respondent’s CPE information. The Committee found that Respondent had claimed forty-five hours of credit for lecturing/discussion leader, whereas the maximum allowed is forty hours, and the Committee had questions about the word-count in an article Respondent had authored. The Committee noted that depending on the word-count, Respondent might be entitled to only eight hours of CPE, whereas he had claimed twenty. 9. Through a letter dated December 14, 2017, the Board informed Respondent of the Committee’s concerns and providing that he could provide any additional information on or before January 13, 2018. The Board also informed the Respondent that a failure to comply with the CPE requirements could result in discipline. 10. Respondent did not provide the Board with any additional information and, through a letter dated April 2, 2018, the Board informed Respondent that it had voted to offer Respondent a “Decision and Order (By Consent)” to resolve the matter. The letter also informed Respondent that if he did not accept the Decision and Order (By Consent), the Board would file a Complaint and Notice of Hearing in the matter. 11. Through an email dated April 5, 2018, Respondent informed the Board that he had effectively retired in July 2017, that he saw no need to be registered as a CPA, and that consequently it would make no sense to accept the Decision and Order (By Consent). Respondent also wrote that he tried to explain this on the telephone in an effort to avoid additional waste of time on the matter. 12. As of the hearing date, Respondent had not provided the information required to show that he had completed the required eighty hours of CPE. 13. At the hearing, the Board requested that Respondent’s license be suspended and that Respondent be assessed the cost of the Board’s investigation in this matter. CONCLUSIONS OF LAW 1. The Board bears the burden of persuasion. ARIZ. REV. STAT. § 41-1092.07(G)(2) and (G)(3).

2. The standard of proof on all issues in this matter is that of the preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119. 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014). 4. PPE shows that Respondent did not comply with the requirement to complete eighty hours of CPE between November 1, 2015 and October 31, 2017. See ARIZ. ADMIN. CODE § R4-1-453(C)(1). 5. ARIZ. REV. STAT. section 32-741.02(A) provides that after notice and an opportunity for a hearing, the Board shall suspend the certificate of a registrant who is fails to show proof of compliance with the CPE requirements. 6. Because Respondent has violated the Board’s statutes and rules, the Board is also authorized to impose additional disciplinary action against him, including requiring him to reimburse the Board for its costs of investigations and proceedings. ARIZ. REV. STAT. § 32-741 and § 32-701(10)(g). 7. Considering the facts and circumstances of this matter, and particularly Respondent’s failure to appear at the hearing, Certificate No 5480-R issued to Respondent Robert James Gaughan should be revoked and Respondent should be ordered to reimburse the Board for the costs it incurred during the investigation and proceedings in this matter. RECOMMENDED ORDER IT IS ORDERED that Certificate No. 5480-R issued to Robert James Gaughan is suspended; IT IS FURTHER ORDERED that Robert James Gaughan must reimburse the Board for the costs it incurred during the investigation and proceedings in this matter.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days after the date of that certification.

Done this day, September 10, 2018 /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to: Monica L. Petersen, Executive Director Arizona State Board of Accountancy