Findings Of Fact The Petitioner, Linda S. Powell, began her original employment associated with Orange County on February 19, 1975. The period from February 19, 1975, to July 1, 1980, is 5 years, 4.4 months. In order to be entitled to disability benefits under the Florida Retirement System (FRS), Ms. Powell must have completed five years of creditable service with the County on or before July 1, 1980. The period from February 19, 1975, through September 7, 1975, equals approximately 6.4 months. It is this 6.4 months which is at issue in this case because the Respondent, Department of Administration, Division of Retirement, maintains that Ms. Powell was ineligible for creditable service because she was a temporary CETA employee. If the 6.4 months of CETA employment is deducted from the 5 years 4.4 months of total service before July 1, 1980, Ms. Powell has 4 years 10 months of creditable service, 2 months short of the 5-year requirement. Ms. Powell began employment with the Orange County Board of County Commissioners on February 19, 1975, as a keypunch operator under the CETA Program. At this time, and for several months prior to her beginning employment, Orange County had been operating under a federally subsidized program known as the Comprehensive Education and Training Act (CETA), which was operated by Orange County under two separate programs known as Title I and Title II. Title I was an on-the-job training program which provided employment positions to individuals in addition to the regular employment positions already maintained by the County. These individuals were brought on the regular payroll of the County and were given full benefits, including retirement and social security. Approximately 20 to 25 individuals took part in this program. In the latter part of 1974, the CETA Title II program was begun by the County. This program was for certain identifiable population groups of unemployment within the County. Individuals hired under Title II were put on the regular County payroll, and the County would submit a bill to CETA for payment of the individual's salary and benefit, which included retirement (FRS) and social security. In February 1975, the CETA Title VI program was implemented by Act of Congress. Title VI was a federal emergency employment measure designed to get people into productive job situations and to provide an immediate salary payment. In implementing Title VI, the County determined that no fringe benefits, including social security and retirement, would be paid for these individuals, since this method would allow approximately 20 percent more individuals to be hired in the program. The County determined that individuals in the Title VI program were to be temporary employees of the County. Individuals were further notified on the first day of employment during an orientation session that they were temporary employees and would receive no fringe benefits. Petitioner signed a statement on her first day of employment that she understood that she was placed in a federally funded program and had no assurance of continued employment at the end of the funding for such program. (Respondent's Exhibit 1). CETA Title VI funds were placed in a special, separate bank account by the County, and from this account the County would pay salary to Title VI individuals and other bills such as equipment and supplies purchased. This account was not a regular payroll account. Upon payment of Title VI individuals, the County would then invoice the federal CETA office for the salaries paid and receive reimbursement. Employees who worked under Title VI performed work in nonprofit agencies, such as United Nay, as well as work for the County. Petitioner continued to be an employee under CETA Title VI from February 19, 1975, to September 7, 1975, at which time she was transferred from CETA Title VI to CETA Title II and placed in a regularly established position. (Respondent's Exhibit 2). At this time, an employment history file was begun on the Petitioner, and said file reflected a service date of September 7, 1975. In addition, an "employee change notice" was completed on Petitioner, signifying a transfer from CETA Title VI to permanent status. (Respondent's Exhibit 3). The County began payment of retirement contributions on Ms. Powell in September 1975, as reflected by the certification of earnings provided by the County to Respondent. Ms. Powell filed an application for disability retirement benefits on April 5, 1983. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Linda S. Powell be denied service credit for her employment under CETA from February 19, 1975, to September 7, 1975. Said service is not creditable under the Florida Retirement System. DONE and ENTERED this 9th day of May, 1984, in Tallahassee, Leon County, Florida. Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 9th day of May, 1984. COPIES FURNISHED: Terry C. Young, Esquire 109 East Church Street, Suite 301 Post Office Box 2631 Orlando, Florida 32802 Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street, Suite 207-C, Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether or not existing Rule 21A-20.012 F.A.C. is an invalid exercise of delegated legislative authority. See, Sections 120.52(8) and 120.56 F.S.
Findings Of Fact Petitioner Silvia S. Ibanez is a practicing attorney and a member of the Florida Bar, and holds active Florida CPA License No. 10842, currently in good standing. She is also a Registered Investment Advisor with the Florida Division of Securities and a certified financial planner (CFP). She has been charged with violating Rule 21A-20.012 F.A.C. in DOAH Case No. 91-4100 which is currently pending before the Division of Administrative Hearings. As a licensee with the federal Securities and Exchange Commission, Petitioner is required to, and does, disclose the fact that she is a CPA. Petitioner Ibanez is listed in the yellow pages under the heading "Attorneys" as "Ibanez, Silvia, S., CPA, CFP." On its face, there is nothing false or fraudulent about this listing. As an attorney, Petitioner also places CPA after her name on her business cards and on her letterhead. Respondent contends that because Petitioner "holds out" to the public as a CPA, uses accounting skills, and provides one or more types of management, advisory, or consulting services, she is currently "practicing public accounting." Intervenor James R. Brewster is also a practicing attorney, a Board- certified tax lawyer, and a member of the Florida Bar, and holds an active Florida CPA license. Mr. Brewster has been charged with violating Rule 21A- 20.012 F.A.C. in DOAH Case No. 90-3278 which is currently pending before the Division of Administrative Hearings. The administrative complaint therein charges violations of Rule 21A-20.012 F.A.C. and Sections 473.323(1)(a), (g), and (h) F.S. on the basis that Brewster's law firm letterhead designates him as a "CPA" and the law firm is not licensed by the Board of Accountancy as a public accounting firm. Intervenor American Association of Attorney Public Accountants (AAA- CPA) is a not-for-profit corporation with its principal place of business in Mission Viejo, California. Founded in 1964, the AAA-CPA is an active professional organization of persons dually qualified as both attorneys and CPAs. Its membership is comprised of practitioners in public accounting, law, government, education, and other activities. One of the functions of the AAA- CPA is to engage in the analysis and discussion of ethical and other issues related to practitioners who are dually licensed in the accounting and law professions. This includes monitoring and commenting upon legislation affecting the practice of law and public accountancy and participating in the development of ethical standards of lawyers and CPAs. AAA-CPA's substantial interests are affected by this proceeding in that its members are CPAs who are directly affected by the definition, scope, and regulation of the practice of public accounting by Florida statutes and rules. Respondent Board of Accountancy is an agency of the State of Florida established pursuant to the provisions of Chapter 473 F.S. Pursuant to Section 473.301 F.S., the Board is authorized in the following language to regulate the "practice of public accounting": Purpose.--The Legislature recognizes that there is a public need for independent and objective public accountants and that it is necessary to regulate the practice of public accounting to assure the minimum competence of practitioners and the accuracy of audit statements upon which the public relies and to protect the public from dishonest practitioners and, therefore, deems it necessary in the interest of public welfare to regulate the practice of public accountancy in this state. Respondent Department of Professional Regulation is an umbrella agency for the Board of Accountancy, established under the provisions of Section 20.16 and Chapter 455 F.S. Intervenor Florida Institute of Certified Public Accountants (FICPA) is a Florida not-for-profit corporation with its principal place of business in Tallahassee. Founded in 1905, the FICPA is an active professional organization with approximately 17,800 members. Its membership is comprised of practitioners in public accounting, industry, government, education, law, and other activities. One of the functions of the FICPA is to engage in the analysis and discussion of issues related to the accounting profession. This includes monitoring the scope of services provided by certified public accountants in Florida and throughout the United States, monitoring legislation affecting the practice of public accountancy, and participating in the development of auditing, accounting, and ethical standards of CPAs. Intervenor FICPA's substantial interests are affected by this proceeding in that its members are CPAs who are directly affected by the definition, scope, and regulation of the practice of public accounting by Florida statutes and rules. It is even recognized in the statute. See, Section 473.302 F.S., infra. Challenged existing Rule 21A-20.012 F.A.C., also referred to as the "holding out" rule, provides as follows: 21A-20.012 Holding Out. "Holding himself or itself out" as used in Section 473.302(4), F.S. is defined as publicizing that the licensee is a certified public accountant when providing, or offering to provide services or products to the public, in such a manner that an uninformed person may not be able to differentiate whether or not the licensee may also be in the practice of public accounting. The display of the CPA certificate and license issued by the Department of Professional Regulation shall not constitute holding out under the terms of this rule. All other publication of the fact that a licensee is a CPA constitutes holding oneself out. The specific statutory authorities currently cited by the agency for the rule are Sections 473.302, 473.304 and 473.307 F.S. and the law implemented is cited as Section 473.302 F.S. Section 473.307, dealing with "experience," does not impinge on these proceedings. The remaining authorities provide as follows: Definitions.--As used in this act: "Board" means the Board of Accountancy. "Department" means the Department of Professional Regulation. "Certified public accountant" means a person who holds a license to practice public accounting in this state under the authority of this act. "Practice of," "practicing public accountancy," or "public accounting" means: Offering to perform or performing for the public one or more types of services involving the use of accounting skills or one or more types of management advisory consulting services, by a certified public accountant or firm of certified public accountants, of this state, including the performance of such services in the employ of another person; or Offering to perform or performing for the public one or more types of services involving the use of accounting skills or one or more types of management advisory or consulting services, by any other person holding himself or itself out as a certified public accountant or firm of certified public accountants, including the performance of such services by a certified public accountant in the employ of a person so holding himself or itself out. However, these terms shall not include services provided by the American Institute of Certified Public Accountants, the Florida Institute of Certified Public Accountants, or any full service association of certified public accounting firms whose plans of administration have been approved by the board, to their members or services performed by these entities in reviewing the services provided to the public by members of these entities. [Emphasis supplied] 473.304 Rules of board.--The board shall adopt all rules necessary to administer this act. Every licensee shall be governed and controlled by this act and the rules adopted by the Board. Also relevant to these proceedings is Section 473.322 F.S. which provides as follows: 473.322 Prohibitions; penalties.-- No person shall knowingly: Practice public accounting unless the person is a certified public accountant or a public accountant; Assume or use the titles or designations "certified public accountant" or "public accountant" or the abbreviations "C.P.A." or any other title, designation, words, letters, abbreviations, sign, card, or device tending to indicate that such person holds an active license under this act, unless such person holds an active license under this act; Attest as an expert in accountancy to the reliability or fairness of presentation of financial information or utilize any form of disclaimer of opinion which is intended or conventionally understood to convey an assurance of reliability as to matters not specifically disclaimed unless such person holds an active license under this act. This subsection shall not prevent the performance by persons other than certified public accountants of other services involving the use of accounting skills including the preparation of tax returns and the preparation of financial statements without expression of opinion thereon. Present as his own the license of another; Give false or forged evidence to the board or a member thereof for the purpose of obtaining a license; Use or attempt to use a public accounting license which has been suspended, revoked, or placed on inactive status; Employ unlicensed persons to practice public accounting; or Conceal information relative to violations of this act. Any person who violates any provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [Emphasis supplied] Although it has not been challenged, Rule 21A-21.009 F.A.C., the "other business activity rule," is relevant to these proceedings. That existing rule currently provides as follows: 21A-21.009 Other Business Activities. A licensee engaged in the practice of public accounting may concurrently engage in another business, occupation, or profession if: The licensee does not hold himself out as a certified public accountant in that activity, The activity is conducted under a name which the public will not associate with licensee's practice of public accounting, The other business, occupation, or profession is not used to promote the practice of public accounting in any manner prohibited by Chapter 473, F.S., Facilities used by the licensee in his public accounting practice and other activity conform to the requirements of 21A-26.001(3), The entity's dealings with the licensee's public accounting clients shall not violate the provisions of Chapter 473, F.S., and 21A, Florida Administrative Code, relating to integrity and objectivity, The entity does not interpret financial statements, forecasts or projections audited, reviewed, compiled or prepared by others. [Emphasis supplied] Although it has not been challenged, Rule 21A-20.011 F.A.C. is relevant to these proceedings. That existing rule currently provides as follows: 21A-20.011 Practice of, or Practicing Public Accountancy. "Practice of, or practicing public accountancy" as defined by Section 473.302(4), F.S., shall exclude any of the following: Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473, or Activities of licensees who do not hold themselves out as CPAs and who are not associated with financial statements, or Activities of licensees who do not hold themselves out as certified public accountants. [Emphasis supplied] Petitioner's and Intervenor Brewster's CPA certificates (like all Florida CPA certificates) authorize them to display their CPA credentials. The CPA certificate represents that the recipient . . . has passed all examinations and has met all other requirements prescribed by law and by rule of this board for certification as an expert public accountant, and is therefore entitled to append the letters CPA after this registrant's name to evidence registration by this board as a Certified Public Accountant. [Emphasis supplied] The Board's only classifications of CPA licenses/licensees are "active" or "inactive." "Active" and "inactive" refer to the status of the CPA license and do not refer to or imply that the licensee is actively practicing public accounting. One can be an actively licensed CPA and not be practicing public accounting. Attainment of the CPA credential is an accomplishment that is recognized in the business community. The CPA credential of a Florida-licensed CPA connotes high competency and achievement levels in the discipline of accounting. Truthful communication of the CPA credential by actively licensed CPAs for identification purposes constitutes valuable disclosure to the public. The use of the term "CPA" implies a specific competency to the public. The fact that Petitioner Ibanez or Intervenor Brewster is a CPA is valuable to their respective legal clients. CPA status is a valuable property right to each CPA, and the ability of a practicing attorney to publicize the fact that s/he also holds an active CPA license is a valuable asset to that individual. It is conceded by all parties that it is possible to practice law and public accounting in the same business activity. There are firms that simultaneously hold themselves out as law firms and public accounting firms. The activities of other regulated professionals, such as members of the Florida Bar, which overlap those of practicing CPAs are subject to the regulatory standards of their principal regulated professions and applicable judicial and administrative remedies for malpractice and negligence. It is conceded by all parties that many activities conducted by professionals and nonprofessionals, other than by CPAs and other than by attorneys, are identical to activities performed by CPAs engaged in public accounting. For instance, anyone can legally prepare a tax return. Bookkeepers and free-lance tax assistors of all sorts are unregulated in any way. The only activity among public accounting activities that is a unique activity of CPAs is the "attest" function. See, Section 473.322(1)(c) F.S. Truthful use, communication, or disclosure of the CPA credential by an actively licensed CPA does not per se constitute false, misleading, or deceptive advertising. The evidence does not support a finding that withholding truthful disclosure that one has earned the CPA credential benefits the public welfare or effects the purposes of the enabling legislation, or indeed, how such nondisclosure could promote them, particularly since it has been shown that persons of considerably lesser competency and achievement levels in the discipline of accounting may legally offer to the public almost all the services provided by CPAs. Prior to 1984, when the "holding out" rule was adopted, a Florida- licensed CPA who offered one or more types of accounting services to the public or who offered one or more types of management advisory or consulting services to the public was considered to be "practicing public accountancy," whether or not that person appended the initials "CPA" after his or her name. The "holding out" rule became effective on September 17, 1984. Chapter 89-87 Laws of Florida amended Section 473.302(4) F.S. (i.e., the definition of public accountancy) but the amendment did not change the previously existing "holding out" language therein. The "holding out" rule was adopted more than one year before the initiation of this rule challenge. There is no dispute among the parties that the definition within the challenged Rule 21A-20.012 F.A.C. is circular. In attempting to define the term "holding out" so that the use of that term in Section 473.302(4) F.S. may be clarified, the rule incorporates the statutory phrase "practice of public accounting," and the term "practice of public accountancy/accounting" in Section 473.302(4)(b) F.S. incorporates the term "holding out," 1/ as does Rule 21A- F.A.C., 2/ which creates exemptions to the statute. At least one purpose of the second sentence of the existing rule seems to have been to allow all CPAs to display their CPA certificates on their inner office walls without fear of disciplinary action by the Board. The Board's expressed rationale for excluding "display of a CPA certificate" from its "holding out" rule is premised on the fact that during an office visit, a CPA can immediately disabuse any individual of the fact that s/he is practicing public accounting once that individual is inside the CPA's office. However, Petitioner demonstrated, and the Board conceded, that an individual may have the opportunity to disabuse members of the public that s/he is engaged in the activity of the practice of public accounting or that s/he is offering all the services normally associated with a CPA, as opposed to law or some other profession, at least where there is direct contact by letter or telephone. Clearly, there are many ways a nonattesting, actively licensed CPA who is dually licensed can clarify to those seeking his or her services which profession, function, or service s/he is willing to perform for that client. On the other hand, the challenged rule does not deal with all members of the public, or members of the public specifically seeking CPA services, or members of the public seeking some other service. The rule deals with "uninformed persons." As used in the rule, the term "uninformed person" is undefined and has been subject to differing speculative interpretations by the Board and by non-Board witnesses, some of which interpretations address such broad categories as anyone using a telephone book. The Board also suggested that only display of the original CPA certificate on an inside office wall would be exempt from prosecution for publication, but a reasonable person could interpret the rule on its face to permit posting the CPA certificate or an exact facsimile of the certificate on a sign outside an office building or circulating as business cards exact reduced- size copies of the certificate even though these types of "publication" or "display" would not provide the same opportunity as an office visit would provide for the CPA to disclose to individuals the actual services the CPA was offering to perform. Accordingly, there has been no rational basis for the "holding out" rule's distinction between "display" of the licensee's CPA certificate and other forms of truthful, nonmisleading publication of the CPA licensure/status. The agency's expressed rationale behind its adoption of the "holding out" rule was to define the meaning of the statutory term "holding out," as used in Section 473.302(4) F.S., a term which has also been adopted into a number of other rules (see, supra), so as to provide guidance on when a person who has been licensed as a CPA is engaged in the "practice of public accounting." Specifically, the Board maintained that the "holding out rule" and the "other business activity rule" give licensees two options. Under the first option, the "holding out" rule permits licensees to retain their CPA certificates when not in compliance with all of the provisions of Chapter 473 F.S. and the rules promulgated thereunder, as long as they do not publicize themselves as CPAs. Alternatively, the Board perceives that under the second option, if licensees do publicize themselves as CPAs when performing services for the public, licensees become subject to regulation by the Board and are held to the standards of competency and conduct which are applicable to all CPAs who use their accounting skills for the public while trading on the fact of their licensure as a Florida CPA. However, the words "publicizing" and "publication" as used in the "holding out" rule are also undefined. Although Respondents submitted that the "common usage" of these words is sufficient to embrace listings in the yellow pages, it is also quite possible to give these words a far broader reading to encompass the "assumption" and "use" of the designation "CPA" and the "assumption" and "use" of the CPA credential, which "assumption" and "use" are specifically reserved to all actively licensed CPAs and which designation is permitted to be inserted after their names on signs, cards, or devices by Section 473.322(1)(b) F.S. [see Finding of Fact No. 11] and by the CPA certificate itself which permits them to "append" CPA after their names [see Finding of Fact No. 14]. The rule has actually subjected CPAs, and specifically has subjected Petitioner and Intervenor Brewster, to DPR disciplinary proceedings independent of any other act or wrongdoing merely for any "publication" of the CPA credential in a form other than display of the original CPA certificate on an inner office wall. The rule may automatically subject attorney-CPA licensees to DPR disciplinary proceedings independent of any other act or wrongdoing merely on the basis of passive, truthful communications which are otherwise in full compliance with the standards of the Florida Supreme Court and Florida Bar. The rule has the potential for being interpreted so as to prohibit CPAs such as Petitioner and Intervenor Brewster from making disclosures of their earned status as CPAs to various regulatory bodies to which they are required by law to disclose that information. See, Findings of Fact 1 and 2, supra. The rule can be invoked to limit their income by chilling their appearances as expert CPA witnesses for a fee even if they never work for an uninformed layman at all. Applicants for certain state employments and candidates for public office may run afoul of the rule due to the disclosure requirements of public office. Even at risk is the CPA called as a factual witness who is then sworn to tell the truth and asked innocuous biographical information. One's desire to attain a CPA credential may be chilled by the hazard of using it. Chapter 473 F.S. contains limitations on competitive negotiation, prohibits accepting contingent fees, prohibits the payment of certain commissions, and establishes other prohibitions to which persons who are deemed to be "practicing public accountancy" must adhere. Some of these prohibitions are contrary to normal, ethical practice of other professions, i.e., acceptance of contingent fees by lawyers. If the rule remains intact, the Board and DPR under Chapters 473 and 455 F.S. have the potential of breaching the confidentiality of CPA-attorneys' legal clients' files. See, Section 473.316(5) and 473.318 F.S. Since attorneys are exclusively overseen by the Florida Supreme Court, the rule potentially violates the doctrine of "separation of powers" among the three branches of state government. Therefore, the definitional rule creates a wedge whereby the Board may insinuate its discipline into other professions and confuses dually licensed CPAs from knowing how they may behave in each profession without running afoul of discipline in the other. In application with other rules, the "holding out" rule sets confusing and varying standards for agency decisions involving attorneys, bankers, CPAs employed by private corporate employers, and CPAs with their own financial consultant firms. The Board of Accountancy has issued a series of letter opinions based on the "holding out rule" or based on that rule read in conjunction with Rule 21A-21.009 F.A.C., the "other business activity rule," which indicate that a Florida CPA who does not "hold out" to the public as a CPA and who is not associated with financial statements is permitted by the Board to engage in other business activities without complying with the provisions of Chapter 473 F.S., that is, not being subject to DPR discipline, because the Board does not view that CPA in those activities as "practicing public accountancy." Also, the Board of Accountancy has issued a series of opinions to the effect that, by virtue of Section 473.302(4) F.S. and the "holding out rule," a CPA who "holds out" (publicizes his or her status as a CPA) is automatically, by definition, "practicing public accounting," regardless of what actual business activity s/he is performing. These opinions also indirectly insinuate the Board of Accountancy into many other professions, including the practice of law, which the Board has no statutory mandate to regulate pursuant to Section 473.301 F.S. The plethora of opinions issued by the Board dramatize the confusion experienced by CPAs who have sought to have the Board interpret the rule in question on a case-by-case basis. Testimony of the Chairman of the Board was offered to establish that absent the challenged rule, the Board cannot reasonably regulate negligence in the profession and that absent the rule, only fraud could be prosecuted by the Board. He testified that, in his opinion, the challenged rule means that a CPA performing tax services for a client is not doing "public accounting" if "CPA" is not appended after the CPA's name in advertising and that that CPA cannot be disciplined by the Board for negligence, any more than he could be disciplined if he were a non-CPA doing tax services. The Chairman further opined that a CPA doing tax services is doing public accounting only if he appends CPA after his name, and in that instance, the Board can and will discipline that CPA for negligence, should he commit any. Further, the Chairman indicated that if Rules 21A-21.009, 21A-20.011, and 21A-20.012 F.A.C. were not simultaneously in place, the actively licensed CPA who places CPA after his name could not be disciplined by the Board for negligence, but only for fraud. Precisely how this would occur was not made clear, but upon the foregoing, together with the Board opinions admitted in evidence, it is concluded that the Board has utilized what purports to be purely a definitional rule to establish disciplinary jurisdiction and that in certain instances the rule puts DPR in the precarious position of only being able to prosecute CPAs with "CPA" appended after their names, but not CPAs who perform the same services and who do not append "CPA" after their names. Such a result is nonsensical. The Board does not seriously suggest that if Rule 21A-20.012 F.A.C. is invalidated, Rule 21A-20.011 would provide a blanket exclusion from all provisions of Chapter 473 F.S. for CPAs "using" or "assuming" or "publicizing" their status. At a minimum, such CPAs would have to maintain their credential as would any other CPA for good character, payment of fees, and recertification for competency based on continuing education. What has actually occurred here is that the Board has consciously utilized Rules 21A-20.011 and 21A-20.012 F.A.C. so as to not enforce Section 473.302(4)(a) as written and so as to selectively enforce only Section 473.302(4)(b) F.S. Then, by its selective enforcement of Rule 21A-20.012, the Board has gone a step further. The Board has "interpreted" Section 473.302(4)(b) to include within Board jurisdiction not those functions, activities, or skills a CPA practices or holds out to the public for a fee as constituting "practicing public accountancy" but has made the definition of "practicing public accountancy" encompass any disclosure of CPA status or skill attainment, regardless of the disclosure's truth and regardless of whether or not the CPA is utilizing any of the functions, activities, or skills of a CPA. By so doing, the Board has exceeded its statutory mandate and legislative purpose as set forth in Section 473.301 F.S. On its face, Rule 21A-20.012 F.A.C. consists of three sentences, which, in relationship to each other, are inconsistent and contradictory. Specifically, sentence ONE seems to be based on the overall representation made by a CPA to "uninformed persons." It simultaneously presumes fraud in the communication of what otherwise would be truthful, passive information. 3/ Sentence THREE subjects the CPA to discipline absent any fraud and totally without consideration to the impression formed by "uninformed persons" from the use of the CPA designation in any manner other than display of the certificate. 4/ Because there are two incompatible definitions in the challenged rule as now drafted, the Board is at liberty to selectively enforce the statute. One CPA could be prosecuted for simple disclosure of credential status or neutral biographical information (Ibanez). Another CPA might be prosecuted only after examination of the totality of his circumstances to determine if the circumstances mislead "uninformed persons" into believing he abides by all the regulations promulgated under Chapter 473 F.S., and still another CPA would never be prosecuted unless he performs the attest function. This is nonsensical and clearly unfair.
The Issue The issue is whether respondent's certified public accountant's license should be disciplined for the alleged violations set forth in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Flanagan & Baker, P. A. (respondent or firm), was a certified public accounting firm having been issued license number AD 0006179 by petitioner, Department of Professional Regulation, Board of Accountancy (Board). When the events herein occurred, the firm's offices were located at 2831 Ringling Boulevard, Suite E-118, Sarasota, Florida, and John R. Flanagan and Michael L. Baker, both certified public accountants (CPA), were partners in the firm. In addition, Thomas A. Menchinger, also a CPA, was a junior partner. The firm has since been dissolved, and Flanagan and Menchinger have now formed a new firm known as Flanagan & Menchinger, P. A., at the same address. It is noted that Flanagan, Baker and Menchinger are not named as individual respondents in this proceeding, and at hearing respondent's representative assumed that only the firm's license was at risk. Whether license number AD 0006179 is still active or valid is not of record. In 1987, respondent, through its partner, Flanagan, accepted an engagement to prepare the 1986 calendar year financial statements for Ballantroe Condominium Association, Inc. (BCA or association), an owners' association for a fifty unit condominium in Sarasota. Financial statements are a historical accounting of what transpired for an entity during a particular period of time as well as the status of its assets, liabilities and equity on a given date. They are prepared for a variety of persons who rely upon them to see what transpired during that time period. If the statements are not properly prepared, the possibility exists that harm or other problems may accrue to the users of the statements. After the statements were prepared and issued, a unit owner made inquiry with respondent in August 1987 concerning two items in the statements. When he did not receive the desired response, the owner wrote the Department in September 1987 and asked for assistance in obtaining an opinion regarding the two items. Eventually, the matter was turned over to a Board consultant, Marlyn D. Felsing, and he reviewed the statements in question. Although Felsing found no problems with the two items raised by the owner, he noted what he perceived to be other errors or irregularities in the statements. This led to the issuance of an administrative complaint on September 29, 1988 charging the firm of Flanagan & Baker, P. A., with negligence in the preparation of the statements and the violation of three Board rules. That precipitated the instant controversy. The engagement in question represented the first occasion that the firm had performed work for BCA. The association's annual financial statements from its inception in 1980 through calendar year 1983 had been prepared by Touche Ross & Company, a national accounting firm, and for the years 1984 and 1985 by Mercurio and Bridgford, P. A., a Sarasota accounting firm. Some of these statements have been received in evidence. As a part of the Board investigation which culminated in the issuance of a complaint, Felsing visited respondent's firm, interviewed its principals, and reviewed the work papers and financial statements. A formal report reflecting the results of his investigation was prepared in June 1988 and has been received in evidence as petitioner's exhibit 1. In preparing his report, Felsing relied upon a number of authoritative pronouncements in the accounting profession which underlie the concept of generally accepted accounting principles (GAAP). These included various opinions issued by the Accounting Principles Board (APB), Statements on Auditing Standards (SAS) issued by the Auditing Standards Board, and Accounting Research Bulletins (ARB) issued by the Committee on Accounting Procedure. The three organizations are a part of the American Institute of Certified Public Accountants (AICPA). With regard to the concept of materiality, which requires an accountant to consider the relative importance of any event, accounting procedure or change in procedure that affects items on the statements, Felsing did not exclude any matters on the ground they were immaterial. Rather, he included all possible irregularities, regardless of their materiality, on the theory that the probable cause panel (for which the report was initially prepared) should consider all items in the aggregate. According to Felsing, a number of irregularities or errors were found in the financial statements prepared by respondent. These are discussed separately in the findings below. The first alleged deficiency noted by Felsing concerned a change by the association from accelerated to the straight-line method of depreciation. According to APB 20, such a change is considered to be significant, and "the cumulative effect of changing to a new accounting principle on the amount of retained earnings at the beginning of the period in which the change is made should be included in net income of the period of the change." In other words, APB 20 requires the cumulative effect of the change to be reported in the net income of the current year. However, respondent accounted for the change as a prior period adjustment on the statement of members' equity. Respondent justified its treatment of the item on the ground the prior year's statements prepared by Mercurio and Bridgford, P. A., did not show any accumulated depreciation. Thus, respondent asserted it was merely correcting an error because the other firm had not reported depreciation on the balance sheet. In addition, respondent noted that the effect on the balance sheet was only $721, deemed the item to be immaterial, and concluded its treatment of the item was appropriate. However, APB 20 requires the auditor to address the cumulative effect of the change ($2,072) rather than the effect of only the current year ($721), and therefore the cumulative effect should have been reported in current income. By failing to do so, respondent deviated from GAAP. The association had designated several cash accounts as being reserve accounts for deferred maintenance and replacements. Under ARB 43, such accounts must be segregated in the balance sheet from other cash accounts that are available for current operations. This would normally be done in a separate classification called "other assets" so that the user of the statements would be aware of the fact that the reserves were not available for current operations. However, the statements reflect that three such reserve accounts were placed under the classification of current assets. It is noted that these accounts totaled $25,514, $18,550 and $30,927, respectively. While respondent recognized the difference between cash available for current operations and reserves for future use, and the requirements of ARB 43, it noted that the association's minute book reflected the association regularly withdrew funds from the accounts throughout the year to cover current operations. Also, the prior year's statements prepared by Mercurio and Bridgford, P. A., had classified the item in the same fashion. Even so, if respondent was justified in classifying the accounts as current assets, it erred by identifying those accounts as "reserves" under the current assets portion of the balance sheet. Therefore, a deviation from GAAP occurred. One of the most important items in a condominium association's financial statements is how it accounts for the accumulation and expenditure of reserves, an item that is typically significant in terms of amount. The accounting profession does not recommend any one methodology but permits an association to choose from a number of alternative methods. In this regard, APB 22 requires that an entity disclose all significant accounting policies, including the choice made for this item. This disclosure is normally made in the footnotes to the financial statements. In this case, no such disclosure was made. Respondent conceded that it failed to include a footnote but pointed out that when the statements were prepared by Touche Ross & Company, one of the world's largest accounting firms, that firm had made no disclosure on the basis of immateriality. However, reliance on a prior year's statements is not justification for a deviation from GAAP. It is accordingly found that APB 22 is controlling, and footnote disclosure should have been made. The financial statements contain a schedule of sources and uses of cash for the current fiscal year. According to APB 19, all transactions in this schedule should be reported at gross amounts irrespective of whether they utilize cash. However, respondent reported all transactions in the schedule at their net amount. In justifying its action, respondent again relied upon the prior years' statements of Touche Ross & Company and Mercurio and Bridgford, P. A., who reported the transactions in the same manner. It also contended the item was immaterial and that a detailed explanation of the item is found in the statement of members' equity. Despite these mitigating factors, it is found that the schedule was inconsistent with APB 19, and a deviation from GAAP occurred. Felsing's next concern involved the language used by respondent in footnote 6 to the statements. That footnote pertained to the unfunded reserve and read as follows: NOTE VI - UNFUNDED RESERVE As of December 31, 1986, the Association reserves amounted to $103,953 consisting of $18,931 as a reserve for depreciation and statutory reserves of $85,022. The amount funded was $95,422 leaving an unfunded balance of $8,531 due to the reserves from the operating funds. Felsing characterized the footnote as "confusing" because it referred to depreciation as a part of a future reserve for replacements. Felsing maintained the footnote contained inappropriate wording since depreciation relates to assets already placed in service and not to their replacements. Respondent agreed that the footnote, taken by itself, might be confusing. However, it contended that if the user read the preceding footnote, which he should, there would be no possible confusion. That footnote read as follows: NOTE V - RESERVE FOR DEPRECIATION The Association funds the reserves for depreciation through its operating budget. These funds are to be used for the replacement of property and equipment as the need arises. As previously noted, the Association changed its method of computing depreciation to conform with generally accepted accounting principles. As of December 31, 1986, the reserve for depreciation totaled $18,931. According to respondent, the above footnote made clear to the user that the firm was not referring to depreciation as a reserve but rather was setting aside funds equal to depreciation in an effort to have sufficient cash to purchase assets in the future. While the deficiency here is highly technical and minute in nature, it is found that the footnote is not sufficiently clear and that the user might be confused. Felsing next observed that the footnotes did not disclose how the association accounted for lawn equipment or other capital assets. According to APB 22, such a choice is considered a significant accounting policy and, whatever policy is utilized, the same must be disclosed in the footnotes to the statements. In response, Flanagan pointed to a footnote in Note I of the statements which read in part as follows: Property and Equipment and Depreciation Property and equipment capitalized by the Association is stated at cost. During 1986, the Association changed its method of depreciation from the accelerated cost recovery method to a straight line method in which property and equipment is depreciated over its estimated useful life in accordance with generally accepted accounting principles. According to respondent, this footnote was adequate in terms of explaining the method of depreciation. Also, a number of other statements were introduced into evidence to show that other entities routinely used a corresponding footnote. Flanagan's testimony is accepted as being the most credible and persuasive evidence on this issue, and the footnote is accordingly deemed to be adequate disclosure on this policy. In the statement of members' equity, there is an item in the amount of $1,730 described as "capitalization of lawn equipment expensed in previous year." Although Felsing did not question the amount shown, he faulted respondent for not properly describing whether the item was a change in accounting principle or an error correction. According to APB 20, the disclosure of an error correction is required in the period in which the error was discovered and corrected. Although respondent considered the footnote described in finding of fact 11 to constitute adequate disclosure, it is found that such disclosure falls short of the requirements of APB 20. Work papers are records and documentary evidence kept by the accountant of the procedures applied, tests performed, information obtained and pertinent conclusions reached in the engagement. They serve the purpose of documenting the work performed and provide verification for the accountant. In addition, another important, required tool is the audit program, a written plan for how the auditor intends to perform the audit. The plan serves the purpose of documenting the accountant's mental process of deciding what procedures are necessary to perform the audit and to communicate those procedures to the persons actually conducting the audit. The audit plan should include in reasonable detail all of the audit procedures necessary for the accountant to perform the audit and express an opinion on the financial statements. Although a variety of checklists have been prepared by the AICPA and other organizations, each audit program must be tailored to fit the needs of a particular client. Felsing noted what he believed to be a number of deficiencies with respect to respondent's work papers, audit program, and engagement planning. In reaching that conclusion, Felsing relied upon various SAS pronouncements which govern that phase of an auditor's work. Those pronouncements have been received in evidence as petitioner's exhibits 7-14. Although the work papers themselves were not introduced into evidence, Felsing stated that his review of them reflected they were "deficient" in several respects. For example, he did not find a planning memorandum, time budget, checklist or other evidence that planning procedures were performed as required by SAS 22. In this regard, Flanagan corroborated the fact that no formal planning memorandum to the file was prepared. Although respondent's audit program was written for a condominium association, Felsing found it "extremely brief" and was not tailored to this particular client. He opined that such a program should have included reasonable detail of all audit procedures necessary to accomplish the audit and to express an opinion on the financial statements. In particular, it was noted that some required procedures were not on the list while some procedures actually used by respondent were not included. Through conversations with respondent's members, Felsing learned that much of the audit work was performed by Menchinger, the junior partner in the firm. In addition, "a few" other work papers were prepared by an unknown assistant. Although Menchinger reviewed all work performed by the assistant, Felsing found no evidence that the papers were reviewed by the supervising partner, Flanagan. Such review, which is a required step in the audit process, is generally evidenced by the supervising partner placing check marks or initials on the individual work papers. Felsing noted further that the decision to rely on the testing of internal controls was not documented in the work papers by respondent. He added that the amount of time budgeted by respondent for this engagement (around thirty hours) was inadequate given the fact that it was the first year the firm had prepared this client's statements. Finally, Felsing concluded that the violations were not peculiar to a condominium association but were applicable to all enterprises. Respondent pointed out that the association was a small client with less than five hundred line items, and the audit program and engagement planning were planned within that context. Respondent introduced into evidence its audit program which contained the steps taken by the firm in planning for the engagement. Testimony that all steps contained therein were followed was not contradicted. Similarly, Flanagan testified without contradiction that he reviewed all work performed by Menchinger but did not evidence his review with tick marks on each page. According to Flanagan, on a small audit such as this, he considered the signing of the tax return and opinion letter evidence that he had reviewed the work papers. However, Flanagan acknowledged that someone examining the papers would not know they had been reviewed by the supervising partner. Based upon the above findings, and after reconciling the conflicting testimony, it is found that respondent violated GAAP by failing to have a planning memorandum, time budget, and evidence of testing of internal controls within its work papers. All other alleged violations are found to without merit. Respondent has continued to represent the association since the Board issued its complaint. Indeed, Flanagan noted that the association is pleased with the firm's work, and this was corroborated by a letter from the association's board of directors attesting to its satisfaction with the firm. There was no evidence that the association or any other third party user of the statements was injured or misled by relying on the statements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the violations discussed in the conclusions of law portion of this Recommended Order, and that license number AD 0006179 be given a reprimand. All other charges should be dismissed. DONE and ENTERED this 30th day of October 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October 1989.
The Issue Did Respondent, Highlands County Board of County Commissioners (County), discriminate against Petitioner, Annette Whitner, on account of her age?
Findings Of Fact At the time of the alleged discrimination, Ms. Whitner was 71 years old. Ms. Whitner claims that the County discriminated against her by not interviewing her for its business services director position due to her age. Ms. Whitner claims that she was discriminated against because the position required an applicant to be a Certified Public Accountant (CPA). She argues that older people are less likely to hold a CPA certification. The weight of the credible evidence did not establish this claim. Ms. Whitner did not establish any connection between possessing a CPA certification and age. On November 10, 2014, the County posted the position online. It was a newly created position, established as part of a reorganization by the County. Because of previous audit errors and the departments the position would oversee, the County determined the minimum qualifications for the position should be: Bachelor’s degree with major course work in public administration, business administration, accounting, finance or related field and possession of Certified Public Accountant (CPA) professional certification or equivalent is required. Master degree in business administration, finance management, public administration, or related discipline is preferred. In determining the equivalent to a CPA, the County referred to the Guide for Certifications for Accounting, Finance and Operations Management (Guide). This was a reasonable non- discriminatory decision. Based on the Guide, the County determined a Certified Government Auditing Professional, Certified Governmental Financial Manager, and Certified Internal Auditor would constitute an equivalent to a CPA certification. The certifications were deemed equivalent because they required similar education, experience, and completion of an examination, similar to one taken for a CPA certification. The closing date for all applicants was December 15, 2014. Ms. Whitner submitted her application near midnight of December 15. Ms. Whitner is not a CPA. In addition, Ms. Whitner did not follow the instructions on the application. She scratched out the instructions on the application and wrote “first” above where it read “current or most recent employer.” Ms. Whitner’s application contained typed and handwritten information. Ms. Whitner’s application did not provide her complete work history as the application instructed. In one of the fields of employment, after 1992, Ms. Whitner wrote “various employers.” Ms. Whitner’s application left an unexplained gap in work history, from 1992 to the present. Ms. Whitner’s application included copies of her Bachelor of Science in Business Administration degree, Master of Public Affairs degree, certification as a Certified District Manager, Certificate of Recognition from the Indiana Executive Program, and a letter of reference from Al Grieshaber, General Manager at Sun ‘N Lake of Sebring, dated February 8, 2010. Ms. Whitner’s application indicated she had a certification as a Certified Professional Government Accountant. Ms. Whitner asserts that a certification as a Certified Professional Government Accountant should be equivalent to a CPA certification. However, the Guide does not include a certification for a Certified Professional Government Accountant as a CPA equivalent, nor does the County consider it equivalent. Additionally, Ms. Whitner did not attach a copy of her certification or provide persuasive evidence of the certification criteria and their similarity to CPA criteria. The County could not determine if Ms. Whitner had worked since 1992. Ms. Whitner argues that her letter of reference from Al Grieshaber demonstrated her employment since 1992. However, the letter did not include the dates Ms. Whitner worked, the position held, or her duties and the type of work she performed at Sun ‘N Lake of Sebring. Randal Vosburg, Assistant County Administrator, was involved in the hiring and selection process for the position. The primary criteria he was looking for when reviewing the applications was whether the applicant had a CPA. Mr. Vosburg did not have any contact with Ms. Whitner and did not know her age when reviewing her application. Mr. Vosburg did not consider Ms. Whitner’s age when reviewing her application. The County did not select Ms. Whitner for an interview because she was not a CPA and did not possess a certificate that is equivalent to a CPA certification. Additionally, Ms. Whitner presented an unprofessional application, did not provide a complete work history so that there appeared to be more than a twenty-year gap in employment, and did not follow the instructions on the employment application. These were all reasonable non-discriminatory bases for deciding not to interview Ms. Whitner. On January 5, 2015, Ms. Whitner submitted an addendum to her employment application. This was after the application deadline and after the County had selected candidates to interview. Ms. Whitner’s addendum did not provide documentation or certification that she possessed a CPA certification or the equivalent. The County selected Tanya Cannady and Stanoil Raley for interviews. Both possessed CPAs. Both were reasonably deemed to be more qualified than Ms. Whitner. A panel of three people interviewed Ms. Cannady and Mr. Raley. Randal Vosburg, June Fisher, County Administrator, and Mark Hill, then-Development Services Director, served on the panel. Ms. Cannady performed much better than Mr. Raley during the interview. Additionally, Ms. Cannady’s work experience was more relevant to the position than Mr. Raley’s work experience. The County selected Ms. Cannady for the position because she met the requirement of having a minimum of five-years of progressively responsible relevant experience, was a CPA, and was more qualified than Mr. Raley and the other applicants. The County offered the position to Ms. Cannady. She did not accept the offer and withdrew her application. On August 5, 2015, the County re-posted the position online. The county changed the CPA requirement from “required” to “preferred” because the County was having trouble finding CPA applicants. Ms. Whitner did not reapply for the position. The County conducted additional interviews and selected Tasha Morgan. Ms. Morgan was female and was a CPA. The preponderance of the credible, persuasive evidence did not establish that the County discriminated against Ms. Whitner due to her age. The preponderance of the credible, persuasive evidence established that the County had legitimate non-discriminatory reasons for not interviewing Ms. Whitner.
Findings Of Fact At all times material to this proceeding, Respondent Favret held public accounting license number 0001424 with the State of Florida. Respondent's license to practice public accounting reverted to inactive status by operation of law on January 1, 1980, due to his failure to demonstrate to the Department of Professional Regulation and the Board of Accountancy compliance with the continuing education requirements imposed on licensed public accountants pursuant to Section 473.312, Florida Statutes, and Chapter 21A-33, Florida Administrative Code. The Respondent was aware that his license reverted to inactive status on January 1, 1980, due to his failure to meet professional continuing education requirements. Respondent chose not to comply with the continuing education requirements because he did not wish to maintain an active license and did not feel that formal continuing education was of benefit to him. Between January 1, 1980, and August, 1981, Respondent continued to perform tax advisory services for approximately twenty-five (25 ) clients. His services included the preparation of personal federal income tax returns and all necessary supporting tax schedules. Respondent explained the tax services he provided as including the accumulation of raw data brought in by a client in categories, summarizing the information and then preparing the necessary tax forms. Although the Respondent signed all the tax forms as the preparer, he ceased using the professional designation, "C.P.A." when he received formal notice of the inactive status of his license. To prepare the income tax returns for his clients, knowledge of the present tax laws and regulations, tax accounting and arithmetic were utilized by the Respondent in the tax advisory and preparation services for which he received compensation. The preparation of personal income tax returns involves the use of accounting skills which includes the ability to make a determination of what items need to be recognized and included7 the reasonableness of the items, the proper categorization of the items and whether to apply certain accounting functions such as allocation to the items. 1/
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of race in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Westbrooks is an African-American female. In 2000, Ms. Westbrooks began her employment with the City in a billing position in Customer Service as an Account Clerk. She performed very well in that position and received an above satisfactory rating. In 2002, a Junior Accountant position became available, and Ms. Westbrooks applied for the position. The position description for a Junior Accountant indicates that the position’s duties included “Professional accounting work covering all fixed assets accounting and reporting.” Further, the position description indicates that the minimum qualifications consisted of the following: Associate’s degree in Accounting or related field, with some work experience in an accounting environment OR An equivalent combination of training and experience which provides the required knowledge, skills and abilities. Carlos Perez, the City’s Finance Director and a Certified Public Accountant (CPA), performed the hiring for the Junior Accountant position. He hired Ms. Westbrooks for the Junior Accountant position. Mr. Perez considered Ms. Westbrooks’ performance in the Junior Accountant position as excellent. She consistently received performance ratings of above satisfactory and merit increases. In 2006, an Accountant position became available. The City advertised the position. The announcement for the position indicated that the position’s duties included “complex technical work performing professional accounting work covering all phases of account maintenance, classification, analysis, and expenditure control of all phases of City wide fiscal transactions.” Further, the announcement indicated that the minimum requirements for the position were: Bachelors degree in Accounting, Finance or a closely related field with major coursework in accounting . . . plus one to two years experience in accounting. OR An equivalent combination of training and experience which provides the required knowledge, skills, and abilities. Moreover, the announcement provided that “Only those applicants who most closely meet the specific requirements for the position will be contacted for an interview.” Ms. Westbrooks applied for the Accountant position. No dispute exists that Ms. Westbrooks does not possess a bachelor’s degree in accounting. She has an Associates in Arts (AA) degree in Business Administration, which she obtained in 1993. At all times material hereto, the City had a tuition reimbursement program, wherein an employee of the City could obtain a degree and receive tuition reimbursement for obtaining the degree. Ms. Westbrooks was aware of the reimbursement program but chose not to avail herself of it in order to obtain a bachelor’s degree in accounting. However, she did avail herself of the program to obtain certifications associated with her position as a Junior Accountant. No dispute exists that Ms. Westbrooks met the minimum requirements for the Accountant position, satisfying the alternative requirement of equivalent combination of training and experience. Ms. Westbrooks was provided an interview. An interview panel conducted the interviews and rated the applicants, who were interviewed, on a scale of 0 through 5. The interview panel consisted of the City’s Chief Accountant, Budget Administrator, and Pension Administrator. Only the applicants who had an overall rating of 3.0 or higher on the interview were submitted by the City’s Personnel Administration Director, Rebecca Jones, to Mr. Perez. Ms. Jones is an African American and is female. Mr. Perez makes the final decision as to who is hired for accounting positions. He was the final decision-maker for this Accounting position. Mr. Perez is not African American. Only three persons received an overall interview rating of 3.0 or higher. Ms. Westbrooks was one of the three persons, and she received the highest interview score. On December 6, 2006, Ms. Jones submitted to Mr. Perez the names of the three persons, with their interview scores: Laura Westbrooks 4.0 Ronald Castrillo 3.4 Bayard Louis 3.3 Mr. Perez had never hired an accountant who did not have a four-year college degree, i.e., a bachelor’s degree, regardless of race. His position was that the person hired for the Accountant position, and all of his accountants, needed a four-year college degree because that person, as all of his accountants, would be fourth in line to head the Finance Department, as Acting Finance Director, behind himself, the Assistant Finance Director, and the Chief Accountant—at least once a year he (Mr. Perez), the Assistant Finance Director, and the Chief Accountant all attend a conference together; and that a person with a four-year college degree has the technical ability needed to perform in the position, whereas, a person without a four-year degree would not have the technical ability needed. Further, as to the accounting focus of a junior accountant position versus an accountant position, a junior accountant’s focus is fixed assets, whereas, accountants are involved with all aspects of accounting, which includes and goes beyond fixed assets. Mr. Perez had made Ms. Westbrooks aware of his position, regarding accountants, during her tenure in the Junior Accountant position. Ms. Jones did not consider Mr. Perez’s position and action, regarding the hiring of accountants, as being discriminatory. Mr. Perez’s final requirement of a four-year college degree in order to be hired by him as an accountant became the City’s requirement. Mr. Perez offered the Accountant position to Mr. Castrillo who had an AA degree in Business Administration, a Bachelor’s degree in Accounting and who was scheduled to graduate the following semester with a Master’s degree in Accounting. However, Mr. Castrillo did not accept the position due to the failure to agree on a salary. The Accountant position was re-advertised. Ms. Westbrooks remained eligible for the Accountant position and was, therefore, in the pool of applicants to be considered; but was not re-interviewed because the interview questions did not change On March 8, 2007, Ms. Jones submitted to Mr. Perez the names of the applicants who had an overall rating of 3.0 or higher on the interview, together with their interview scores: Tricia Beerom 4.0 Sampson Okeke 3.4 Mirtha Servat 3.3 Mr. Perez hired Ms. Beerom for the Accountant position. Ms. Beerom had a Bachelor of Science degree in Accounting and Management and was an African-American female. Ms. Westbrooks believed that she was not afforded an opportunity to advance because of Mr. Perez’s position regarding accountants possessing a four-year degree and that, therefore, she was discriminated against. However, even though the City had a policy against discrimination and a procedure to file discrimination complaints, she chose not to proceed through the City’s discrimination process because she had no faith in the City. Ms. Westbrooks believed that she was not going to be treated fairly by the City in any attempt by her to achieve upward mobility, which caused her to continuously experience stress, which negatively impacted her health. She eventually resigned from the City. Ms. Westbrooks’ resignation was effective May 4, 2007. At the time of her resignation, Ms. Westbrooks’ salary was $40,000. After her resignation, she received her contributions to the City’s retirement system in the amount of approximately $13,000. In September 2008, over a year after her resignation from the City, Ms. Westbrooks obtained employment with the University of Miami, School of Medicine, as a Grant and Contracts Specialist, with a salary of $41,500. Ms. Westbrooks did not identify any employees who were in classified positions as herself, who were or were not African American and who had upward mobility in positions, and who did not have four-year college degrees. Classified positions are protected by the City’s Civil Service rules and must be advertised. Ms. Westbrooks did identify City employees who were in unclassified positions, not a classified position like herself, i.e., directors and city manager, who did not have four-year college degrees, and who were and were not African American. Unclassified positions are not protected by the City’s Civil Service rules and need not be advertised. The city manager hires all department directors. No dispute exists that, at all times material hereto, a former Director of Purchasing was a white female and a long term employee, who had an AA, not a four-year degree, and who was promoted through the ranks; a Director of Public Works was a white male and a long-term employee, who had an AA, not a four- year degree, and who was promoted through the ranks. No dispute exists that the City’s City Manager is an African-American male who does not have a four-year college degree. No dispute exists that, at all times material hereto, all of the City’s Department Directors, who are African American, have four-year college degrees. The EEOC instituted an “E-RACE Initiative (Eradicating Racism and Colorism from Employment)” and developed a “set of detailed E-RACE goals and objectives to be achieved within a five-year timeframe from FY [fiscal year] 2008 to FY [fiscal year] 2013.” Included in the E-RACE Initiative, were “Best Practices for Employers and Human Resources/EEO Professionals,” which included best practices for recruitment, hiring and promotion. The E-RACE Initiative was implemented by the EEOC subsequent to the action complained of by Ms. Westbrooks and was not demonstrated to be federal law, rule, or regulation; and was, therefore, not shown to have the force or impact of law. The E-RACE Initiative is not applicable to the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that the City of North Miami did not commit a discriminating employment practice against Laura A. Westbrooks in violation of the Florida Civil Rights Act of 1992, as amended, by failing to hire her for an accounting position. DONE AND ENTERED this 1st day of September, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2009.
Findings Of Fact Pabrey holds certificate number R-0211 as a Certified Public Accountant practicing in the State of Florida and held such certificate in good standing on January 1, 1974. At that time, Pabrey was subject to professional certification require- ments set forth in Chapter 473, Florida Statutes. The records of the Board reflect that Pabrey provided no evidence of the completion of any courses or studies that would give him credit towards the reestablishment of his professional competency in the period between January 1, 1974, and April 2, 1977. On October 15, 1976, Pabrey sat for an examination which was approved by the Board and given to practicing Certified Public Accountants pursuant to applicable law requiring reestablishment of professional competency. Pabrey received a score of 57 out of a possible score of 100. The established passing grade for the examination is 75. On December 31, 1976, Pabrey tendered his check to the Board in the amount of forty dollars ($40.00) as the required license fee. On May 13, 1977, the Board suspended Pabrey's certificate R-0211 as a Certified Public Accountant for failing to comply with requirements for the reestablishment of his professional knowledge and competency to practice public accounting. The check was returned to Pabrey by the Board on May 18, 1977, along with a copy of the Administrative Complaint and Order of Suspension. The questions to be answered in the uniform written professional examination administered to Pabrey on October 15, 1976, were based upon "Current Authoritative Literature' which included Accounting principles Board's Opinions, Accounting Research Bulletins, Statements and Interpretations of the Financial Accounting Standards Board, Statements on Auditing standards, and the Laws and Rules of the Florida State Board of Accountancy. Pabrey challenges thirty-six of these one hundred questions on the grounds that the approved answers are incorrect and that the answer selected by Pabrey is the proper choice. The questions attacked by Pabrey are numbers 5, 7, 11, 15, 18, 19, 22, 28, 29, 30, 31, 35, 36, 37, 42, 45, 53, 54, 55, 57, 59, 62, 63, 65, 66, 70, 72, 74, 76, 78, 86, 87, 88, 91, 92, and 98. The title of the uniform written professional examination is "Examination of Current Authoritative Accounting and Auditing Literature and Rules of the Florida State Board of Accountancy. The approved answer to each of the questions on the examination is that which is mandated by the "Current Authoritative Literature." The examination does not purport to seek answers outside of the requirements of the Current Authoritative Literature. Each of the approved answers in the thirty-six questions listed above are consistent with the demands of the Current Authoritative Literature. None are vague, misleading, unfair or improper. Each of Pabrey's answers is contrary to the provisions of the Current Authoritative Literature. Accordingly, the answers selected by Pabrey are not the best answers and were properly graded incorrect on his examination answer sheet.
