Opinion
No. 75-275
Decided November 6, 1975.
Trial court upheld State Board of Accountancy's revocation of defendant's certificate as a certified public accountant, and the accountant appealed.
Affirmed
1. ADMINISTRATIVE LAW AND PROCEDURE — Documentary Evidence — Admissibility — Question of Authenticity — Board of Accountancy — Not Bound By — Technical Rules — Expert Testimony — Concerning Professional Standards — Sufficient Foundation — Finding of Guilt. In hearing before Board of Accountancy admissibility of copy of allegedly unqualified opinion and financial statement prepared by the defendant, the authenticity of which was not established by technical rules of evidence, was nevertheless proper under standards applicable to administrative proceedings; and expert's testimony concerning the defendant's failure to conform to acceptable professional standards based upon examination of said exhibit was sufficient foundation for Board's finding that defendant had issued an unqualified opinion and statement of financial condition of a certain bank, in violation of certain statutes and rules of professional conduct.
2. Notice and Hearing Requirement — Specific Statutory Provision — Governs — General Provisions — Administrative Procedure Act — Inapplicable. Where evidence showed conformance with specific statutory provisions regarding notice and hearings before State Board of Accountancy, allegation of Board's failure to comply with the general provisions of Administrative Procedure Act was without significance, those general provisions being subject to the control of the specific provisions applicable to the Board.
3. Hearing Board — Impartiality at Issue — Denial — Prior Opinions of Guilt — Defendant's Failure to Appear — Effect on Board — Contention of Bias — Unfounded. Contention that hearing board was not impartial was unfounded where record showed that prior to the introduction of any evidence, each board member responded in the negative to question of whether he had formed an opinion regarding the charges against the defendant, and where expressions of dissatisfaction by some board members at defendant's failure to appear amounted only to disappointment, and not bias or partiality.
Appeal from the District Court of Jefferson County, Honorable Winston W. Wolvington, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, Mary A. Rashman, Assistant Attorney General for plaintiff-appellee.
J. F. Brauer, for defendant-appellant.
Division I.
Following a hearing before the State Board of Accountancy, defendant's certificate as a certified public accountant was revoked. The district court affirmed the revocation, and we, in turn, affirm the judgment.
The charges against defendant involved allegations that on January 5, 1973, he had issued an unqualified opinion and statement of financial condition of Bankers Trust Company, Inc., of Albuquerque, New Mexico, which was not prepared in accordance with generally accepted accounting principles and auditing standards. The order of the Board revoking defendant's certificate as a certified public accountant was based on its finding that defendant was guilty of the charge and that thus the issuance of said opinion violated both the statutes governing the practice of accounting (§ 12-2-123(1)(b), (d), and (k), C.R.S. 1973), and certain rules of professional conduct.
The testimony of the expert witness, Harris Cohn, as to the particulars in which defendant's opinion and statement on the financial condition of Bankers Trust Company failed to conform to generally accepted accounting and auditing principles, was sufficient to support the Board's decision. However, Cohn's testimony was based solely upon Exhibit A, a xerox copy of the opinion and financial statement at issue, and defendant challenges the admissibility of this exhibit.
Furthermore, defendant questions the admissibility of Exhibit B which was an affidavit with documents attached thereto in which the affiant stated that he was the individual charged with the responsibility of keeping all books, records, and correspondence of the Colorado Society of Certified Public Accountants, and that the attached documents were true and correct copies of the originals on file. One of the documents attached to the affidavit was a letter from defendant to the Board of Directors of the Society requesting that the Board review his case, while another was a brief by defendant in opposition to the charges against him in which he admitted that:
"in the latter part of November 1972 and December 1972 the defendant performed certain accounting and auditing services for a company in Albuquerque, New Mexico, known as Bankers Trust, Inc., which led to a letter of opinion on January 5, 1973, relating to the said company's financial statements."
[1] Under technical rules of evidence these documents might not have been admissible; however, the Board is not bound by such rules. See § 12-2-125(6), C.R.S. 1973. We conclude, therefore, that although it would have been better practice for the attorney general in this case to have provided stronger authentication for the documents presented to the Board, nevertheless the record did include reliable evidence that defendant had prepared the allegedly defective opinion and statement of financial condition serving as the foundation for the charges against him.
Since the expert witness' testimony and Exhibit A alone were enough to have justified the Board's actions, we do not address defendant's contentions that the admission of Exhibit B with its attachments denied defendant any substantial right to cross-examination, or that other exhibits were improperly admitted into evidence.
[2] Contrary to defendant's contention, the Board's alleged failure to comply with the notice and hearing requirements of the Administrative Procedure Act, § 24-4-104(3), C.R.S. 1973, is of no significance. Section 24-4-107, C.R.S. 1973, provides that:
"Where there is a conflict between this article and a specific statutory provision relating to a specific agency, such specific statutory provision shall control as to such agency."
Here, there is a specific statute concerning the notice and hearing requirements in proceedings before the Board, § 12-2-125, C.R.S. 1973, and the record shows compliance with the requirements of that statute.
[3] Defendant next alleges that the Board was not an impartial trier of fact. We find nothing in the record which supports that contention. Indeed, the record reflects that counsel for defendant asked each member of the Board prior to the introduction of any evidence whether he or she had formed any opinion with respect to the charges against the defendant, and that each responded in the negative. Moreover, in McGee v. State Board of Accountancy, 169 Colo. 87, 453 P.2d 800, the Supreme Court concluded that the fact that one member of the Board had expressed his opinion that defendant was guilty of negligence prior to the filing of charges would not justify invalidating the final judgment of the Board revoking defendant's license where the record showed the defendant was given a full and fair hearing in which evidence was presented that abundantly supported the findings of the Board.
Similarly, we find to be groundless defendant's argument that the Board held against him the fact that he did not appear personally at the hearing. While there are some instances in the record where members of the Board expressed disappointment with defendant's failure to appear and explain the evidence against him, such expressed disappointment did not in our view demonstrate either bias or partiality.
Finally, we can find no discernible merit to defendant's contention that the Board abused its discretion by granting a continuance at the close of the hearing to allow the prosecutor to subpoena him to attend a later session.
Judgment affirmed.
JUDGE COYTE and JUDGE SMITH concur.