ALJDEC decisions subject to certification as final

22A-2022.013-ACY · State Board of Accountancy · 2021-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Certified Public Accountant

Certificate No. 13737

Issued to: MARILYN J. MEYERS,

Respondent.

No. 22A-2022.013-ACY

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 8, 2021

APPEARANCES: Assistant Attorney General Scott Donald represented the Arizona State Board of Accountancy. Christopher Rasmussen, Assistant Director of Regulation and Compliance, appeared as a witness. Marilyn J. Meyers appeared on her own behalf.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

The Arizona State Board of Accountancy (“Board”) is the authority for regulating Certified Public Accountants in the State of Arizona.

On July 30, 2021, the Board issued a Complaint and Notice of Hearing setting this matter for hearing on September 8, 2021, before the Office of Administrative Hearings in Phoenix Arizona.

On September 8, 2021, the hearing was continued and was reset for October 8, 2021.

The issue for hearing is whether good cause exists for the Board to revoke, suspend, or take other disciplinary action against Marilyn J. Meyers, who holds Certificate No. 13737 issued by the Board.

Ms. Meyers appeared and testified on her own behalf. The Board presented the testimony of Assistant Director of Regulation and Compliance, Christopher Rasmussen.

On May 14, 2021, the Board sent to Ms. Meyers by certified mail, an offer of a Decision & Order. The Decision & Order was accompanied by a cover letter that requested Ms. Meyers respond to the offer within 30 days. The cover letter advised Ms. Meyers of the following in pertinent part:

A written response accepting or rejecting this offer is required and you are hereby requested to respond within thirty (30) days from the date of this letter. Please be advised that your failure to timely respond may be considered a violation of A.A.C. R4-1-455.03(D) and may constitute grounds for disciplinary action against your certificate pursuant to A.R.S. § 32-741(A)(9).

The letter and Decision & Order were sent to Ms. Meyers at 1551 N. Humboldt. St., Portland, Oregon. On May 21, 2021, the Board received the signed return receipt for the certified mailing. Ms. Meyers stipulated at hearing that the address the Board utilized is indeed her address, and Ms. Meyers admitted that she received the documents via certified mail.

Ms. Meyers was required to respond to the Board’s letter within 30 days of May 14, 2021. Ms. Meyers failed to file a response by June 14, 2021.

Ms. Meyers sent a letter to the Board dated July 31, 2021, after the Complaint and Notice of Hearing was issued.

Through the Complaint, the Board alleges that Ms. Meyers’ failure to respond to the letter is a violation of Ariz. Admin. Code section R4-1-455.03(D), which provides a basis for it to revoke Ms. Meyers’ certificate under Ariz. Rev. Stat. section 32-741(A)(9).

Ms. Meyers testified that she received the Consent Order, however, believed that the matter “had been settled.” Ms. Meyers testified regarding the Board’s denial of her request for early retirement, and the Board’s denial of her request for extension to complete continuing education requirements, which she completed “as quickly as she could” and paid an additional fee. Ms. Meyers further testified that when she received the Consent Order, she attempted to retain legal counsel, but was unable to do so. Ms. Meyers asserted that she “felt the Consent Order was a threat of legal action and a demand for payment.” Ms. Meyers testified that she did not sign the Consent Order because she did not think it was in her “best interest” to do so. Ms. Meyers contended that she was not failing to communicate, she “just failed to respond to a threat of legal action and demands for payment.” However, Ms. Meyers failed to provide an explanation as to why she failed to respond to the Board’s May 14, 2021 letter. The letter provided Ms. Meyers the clear instruction that she must file a response to the letter either accepting or rejecting the offer. The letter did not require Ms. Meyers to accept the Consent Order. Ms. Meyers was free to reject the offer. The requirement was for Ms. Meyers to communicate with the Board as to which option she chose, acceptance or rejection. Ms. Meyers failed to do so.

In order for the Board to fulfill its mission to protect the public, it is imperative for certificate holders to respond to inquiries from the Board.

Ms. Meyers’ assertion that she did not respond to the Board because of her unfounded belief that the Consent Order was a threat of legal action and a demand for payment is not deemed credible. The May 14, 2021 letter provides unambiguous instructions to respond to the Board. It does not demand that Ms. Meyers accept the Consent Order. She was free to reject it. Instead, she failed to respond.

At the hearing, the Board (through counsel) requested that rather than revocation, Ms. Meyers be assessed a civil penalty in the amount of $2,000.00, and be required to pay the Board’s costs and fees incurred in this matter.

CONCLUSIONS OF LAW

The Board bears the burden of persuasion.

The standard of proof on all issues in this matter is that of the preponderance of the evidence.

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.

Ariz. Admin Code R4-1-455.03(D) provides that: “Communications: When requested, a registrant shall file a written response to a communication from the Board within 30 days of the date of the mailing of such communication by certified mail.”

The preponderance of the evidence shows that Ms. Meyers did not respond to the Board’s certified letter of May 14, 2021, which was properly served on her and which she acknowledged she received.

The Board has authority to revoke or suspend any certificate and may take disciplinary action concerning the holder of any certificate who violates any rule adopted by the Board.

Disciplinary action includes the suspension of certificates, the imposition of an administrative penalty not to exceed $2,000.00 per violation, and the reimbursement of the Board's costs of investigations and proceedings, including attorney fees.

At the hearing, the Board requested that Ms. Meyers be assessed the maximum administrative penalty of $2,000.00, and that she be required to reimburse the Board for its costs.

Considering the facts and circumstances of this matter, it is appropriate to assess against Ms. Meyers an administrative penalty of $2,000.00 and to require her to reimburse the Board for its costs.

RECOMMENDED ORDER

IT IS RECOMMENDED that an administrative penalty of $2,000.00 be assessed against Marilyn J. Meyers, and that she be ordered to reimburse the Board for its costs of 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 (5) days after the date of that certification.

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-137160-45720000Done this day, October 20, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director

Arizona State Board of Accountancy

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-137160-45720000