Ake v. Bureau of Professional & Occupational Affairs, State Board of Accountancy

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully dissent from the decision of the majority to reverse the order of the State Board of Accountancy (Board) that revoked Kevin Allen Ake’s certifícate of certified public accountant and current license (CPA credentials) due to his 2002 felony “hate crime” conviction in the State of Illinois. He was charged under Section 12-7.1 of Act 5 of Chapter 720 of the Illinois Compiled Statutes, 720 ILCS 5/12— 7.1,1 and sentenced to 14 days of confinement followed by 2-1/2 years of probation that included psychological counseling and treatment. The conditions were completed as of February 2005. The majority has substituted its judgment for that of the Board in reversing its decision to revoke Ake’s CPA credentials.

The legislature has conferred on the Board the discretion to determine whether an individual is qualified to hold CPA credentials in this Commonwealth. Allen v. Department of State, Bureau of Professional and Occupational Affairs, State Board of Accountancy, 141 Pa.Cmwlth. 418, 595 A.2d 771 (1991); see also Section 3(a) of the CPA Law, Act of May 26, 1947, P.L. 318, as amended, 63 P.S. § 9.3(a). The disciplinary sanctions imposed by an occupational licensing board also are discretionary and will be overturned only if there has been an arbitrary exercise of the board’s duties or a flagrant and manifest abuse of its discretion. Goldberger v. State Board, of Accountancy, 833 A.2d 815 (Pa.Cmwlth.2003).

Ake applied in 2006 to reactivate his Pennsylvania CPA credentials, and the Board conducted a hearing to allow Ake a chance to present mitigation evidence. The Board observed Ake’s demeanor and assessed his credibility. The record does not set out the contents of the messages that lead to Ake’s hate crime conviction, but he claims that he “basically shared what the Bible talked about was — with that kind of unnatural lifestyle — about lesbians and homosexuality.” Notes of Testimony (N.T.) at 14, Reproduced Record (R.R.) at 47a. Concerning the process of his criminal case, Ake testified:

There was an intermediate step. In April of 2001, I was arrested.... And then they took my whole matter and gave it to — believe it or not — and I’d like to admit this to evidence ... The lawyer in Cook County, Illinois ... he’s the one that prosecuted me — he is a lawyer for service as an openly gay Cook County Assistant State’s Attorney and activism for neighborhood organizations, gay sports, and Equality Lesbian Gay Civil Rights Organization. He is an attorney, and he is now inducted into the Hall of Fame of Cook County.... They have an interesting network out there that they took this to him, and then he went ahead and prosecuted me ... for basically having speech against sexual orientation.

*524N.T. at 17, R.R. at 50a. When asked if he was suggesting that he would not have been prosecuted but for the sexual orientation of the Assistant State’s Attorney, Ake replied: “Possibly.” N.T. at 40, R.R. at 73a. Ake also complained that for the counseling component of his sentence “[t]hey sent me to the first guy, and he was a[n] openly gay counselor. And I requested to get changed to a regular person at the Veterans Administration.” N.T. at 19, R.R. at 52a. Although voicing apology and expressing some regret, Ake qualified that sentiment with comments such as:

And I really didn’t feel I was guilty. But I guess I was. According to the Law, I’m guilty. So now I know. Don’t leave any — don’t call people. You have freedom of speech outside, but you can’t openly call somebody and explain anything any more. So I’ve learned my lesson. And I apologize if I’ve done something wrong.
Okay. So yeah. I kind of feel bad that I make the phone calls. But in the meantime, nobody ever says like stop calling, or don’t call, or anything. If somebody would have said that, I would have been happy to. But I was hurt at the time.

N.T. at 27, 29, R.R. at 60a, 62a.

The Board was unimpressed with Ake’s testimony but did not render its decision because it found his views on homosexuality objectionable. Rather, it concluded that Ake’s view that his harassment of a victim because of her sexual orientation should not have resulted in criminal sanction, coupled with his attitude about the sexual orientation of the prosecutor and the mental health counselor, “powerfully suggest that Respondent has not reformed his ways.” Board Decision at 13. The Board stressed the need for a CPA to be of good moral character and noted that a felony conviction evidences bad character. Contrary to the majority’s view, the Board did not require Ake’s rehabilitation; instead, it concluded that his testimony did not contradict the finding of bad character implied by his conviction.

The Board is the ultimate fact-finder in matters involving professional licensing of accountants, and, as such, it is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. See Shapiro v. State Board of Accountancy, 856 A.2d 864 (Pa.Cmwlth.2004). In making the determinations, the Board is free to accept or reject the testimony of any witness in whole, or in part, even if the testimony is uncontradicted. Barran v. State Board of Medicine, 670 A.2d 765 (Pa.Cmwlth.1996). Moreover, findings that are not specifically challenged are binding on appeal. Owens v. Unemployment Compensation Board of Review, 748 A.2d 794 (Pa.Cmwlth.2000).

In his answer to the Board’s Order to Show Cause Ake admitted being convicted of a felony in July 2002. Pursuant to Section 9.1(a)(5) of the CPA Law, 63 P.S. § 9.9a(a)(5),2 Ake’s felony conviction made him subject to discipline up to and including revocation of his CPA credentials. The weight that an administrative agency assigns to mitigation evidence is a matter solely within its discretion. Burnworth v. State Board of Vehicle Manufacturers, Dealers, and Salespersons, 139 Pa. Cmwlth. 21, 589 A.2d 294 (1991). In Bumworth, the Court stated: “While this Court is required to correct abuses of discretion in the manner or degree of the penalties imposed, we will not, absent a manifestly unreasonable exercise of judg*525ment, substitute our discretion for that of the Board, an administrative body endowed with expertise in matters subject to its jurisdiction.” Id. at 296.

The Board was empowered to accord less weight to Ake’s mitigation evidence than to his criminal actions. Burnworth. Further, it was empowered to conclude that Ake’s conviction evidenced bad character. As this Court recognized in Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 135 Pa.Cmwlth. 62, 578 A.2d 1355, 1358 (1990), a rational connection between one’s past derelictions and present ability to serve in a profession that requires honesty and integrity can exist “where those events occurred so recently that the particular character trait of the individual involved can be reasonably assumed to have remained unchanged.” The conduct leading to Ake’s conviction occurred in 2001, he was convicted in 2002, his probation ended in 2005 and he applied to reactivate his CPA credentials in 2006. It was for the Board rather than this Court to decide whether Ake’s conduct occurred within such a time frame that permitted the Board to reasonably assume that the character trait at issue remained unchanged.

The majority points out that the licensee in Foose was subjected to only a five-year suspension of his license for his drug conviction whereas Ake’s revocation was permanent. It should be recognized, however, that under the CPA Law Ake will be eligible to re-take the CPA examination and to apply for a new license after five years. This same requirement would apply even if his license had been suspended for more than five years. Section 9.2(b), (c), added by Section 7 of the Act of September 2, 1961, P.L. 1165, 63 P.S. § 9.9b(b), (c). Accordingly, the fact that Ake received a revocation instead of a suspension should have no bearing on whether the Board abused its discretion in finding that Ake’s moral character, or particular character trait, remained unchanged. I would affirm the Board’s final adjudication and order because the Board did not abuse its discretion in this matter.

. At the time of Ake's offense, the Illinois statute defined hate crime, in part, as follows:

(a) A person commits hate crime when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual ... he commits assault, battery, aggravated assault, misdemeanor theft ... or harassment by telephone....
(b) ... Hate crime is a Class 4 felony for a first offense and a Class 2 felony for a second or subsequent offense.

. Added by Section 7 of the Act of September 2, 1961, P.L. 1165.