Wis.LIRC ER Decision: Farr - November 15, 1999 - Conviction record discrimination - bail jumping and communicating with jurors / licensure as a CPA - substantially related - license suspension procedure, underlying conviction, not within ERD jurisdiction

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DENNIS L FARR, Complainant

WISCONSIN DEPARTMENT OF REGULATION & LICENSING, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700963

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In paragraph 3 of the FINDINGS OF FACT, the date "September 27, 1995" is deleted and the date "September 15, 1995" is substituted therefor.

2. In paragraph 5 of the FINDINGS OF FACT, the date "June 10, 1996" is deleted and the date "July 10, 1996" is substituted therefor.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed November 15, 1999
farrden.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Dennis L. Farr alleges that he was discriminated against on the basis of conviction record with respect to the suspension of his certified public accountant certificate. An administrative law judge of the Department of Regulation & Licensing designated by the Account Examining Board issued a proposed decision and order suspending Farr's CPA certificate based on his convictions for bail jumping and communicating with jurors. On May 28, 1998, the Account Examining Board affirmed this proposed decision, modifying the order in part to suspend Farr's CPA certificate for at least one year from the date of its order. Farr had also been convicted for two felony counts of threats to injure or accuse of crime under � 943.30(1), Wis. Stats., but both the Department of Regulation & Licensing ALJ and the AEB found that these convictions were not substantially related to the practice of accounting and therefore did not constitute a violation of Wis. Admin. Code, � Accy 1.401(2)(b).

Following a hearing before the Equal Rights Division on the issue of probable cause, the administrative law judge for the division concluded that Farr's criminal convictions for bail jumping and communicating with jurors were substantially related to the circumstances of the licensed activity of a certified public accountant, and thus that there was no probable cause to believe that the respondent had violated the Wisconsin Fair Employment Act by suspending Farr's certificate to practice as a certified public accountant.

On appeal Farr raises a number of issues regarding the authority of the Account Examining Board to suspend his CPA certificate and the validity of its order suspending his certificate, as well as issues regarding the "correctness" or validity of his convictions for bail jumping and communicating with jurors. Farr asserts that he is currently appealing and otherwise seeking relief of his judgments of conviction that are void under "correct law," and therefore all actions of the AEB and Department of Regulation & Licensing are "premature." These arguments fail. While Farr argues that the AEB had no authority to suspend his certificate as a CPA and that its order suspending his certificate was not properly issued, these are not matters subject to review by the Equal Rights Division under the Wisconsin Fair Employment Act, but matters which Farr must seek relief through a request for rehearing before the AEB and/or judicial review of the AEB's actions under ch. 227. Farr's assertions about the validity of his convictions and the fact that he has appealed his convictions does not change the fact that his CPA certificate was suspended as a result of those convictions. Furthermore, in State v. Farr, 220 Wis. 2d 714, 583 N.W.2d 673 (Ct. App. 1998)(Unpublished limited precedent opinion), the court of appeals affirmed Farr's convictions for bail jumping and communicating with jurors, and the Wisconsin Supreme Court denied his petition for review of the matter on August 21, 1998 (Docket #96-2795).

Farr further argues that the ALJ unfairly prejudiced his claim by denying his motion to subpoena Marlene Cummings, William Dusso, Donald Rittel, Steven Gloe and Russell Hanson as witnesses in this matter. However, the record indicates that Farr's basis for requesting the issuance of subpoenas for these individuals was to challenge the validity of the process under which the Department of Regulation & Licensing and the Account Examining Board took action against him. Again, this is not a matter subject to review under the Wisconsin Fair Employment Act.

Farr also argues that the ALJ unfairly prejudiced his claim because of his exclusion of the partial transcript testimony by two witnesses at his criminal trial on the charges of threats to injure or accuse of crime. Farr argues that their testimony proves that he is "actually innocent" of his convictions for threatening to injure. (As noted above, AEB found that Farr's convictions for threats to injure or accuse of crime were not substantially related to the practice of accounting, and therefore these convictions did not serve as the basis for any disciplinary action taken against him) Further, Farr apparently argues based on his claim of innocence on the convictions for threatening to injure or accuse of crime, that this justified his actions which led to his convictions for bail jumping and communicating with jurors, and supports the position that his convictions for bail jumping and communicating with jurors are not substantially related to the circumstances of the licensed activity of an accountant. Farr's arguments fail. (1 ) First, in State v. Farr, No. 96-2551-CR (Wis. Ct. App. Jan. 28, 1999)(Unpublished Opinion), the court of appeals affirmed Farr's convictions for threatening to injure. (2 ) Second, Farr's convictions for bail jumping and communicating with jurors are substantially related to the licensed activity of an accountant. As noted in the decision by the ALJ for the Department of Regulation and Licensing:

"A public accountant is skilled in the knowledge, science and practice of accounting ( � 442.02(1), Stats.), performs audits of financial transactions and accounting records for clients for compensation ( � 442.02(3), Stats.), prepares for clients reports of audits, balance sheets, statements or reports for publication or credit purposes, or to be filed with a court of law or other governmental agency ( � 442.02(4), Stats.), and may attest to the reliability of any representation or estimate embracing financial information, financial transactions or accounting records ( � 442.02(5m), Stats.). Also relevant is � Accy 1.301(1), Wis. Admin. Code, which says `No person licensed to practice as a certified public accountant, or public accountant, as defined in the statutes, shall disclose any confidential information obtained in the course of a professional engagement except with the consent of the client or through the due process of law.' .

Two important facts about these offenses are (1) that whereas both law and accounting involve the scrupulous application and observance of rules, including rules regarding confidentiality and prohibited communications, Mr. Farr chose to interpret certain rules of law in a completely self-serving way, and (2) that the offenses, both of which involved the transmittal of written documents, required planning and the opportunity to reflect, rather than an immediate and unthinking response as seem to have occurred in the situation leading to the first two convictions. I conclude that these offenses indicate that Mr. Farr is capable of ignoring rules of procedure, law, and confidentiality when he feels his own self-interest is threatened. This suggests the strong possibility that in other situations he might ignore other rules, including the ethical rules of accounting, if observing them scrupulously would harm his own self-interest. I find that the circumstances of these convictions are substantially related to the circumstances of the practice of public accounting. To paraphrase the court in County of Milwaukee (139 Wis. 2d 805, 407 N.W.2d 908 (1987)), Mr. Farr reacted improperly to responsibility, he succumbed to the opportunity for criminal behavior, and he demonstrated character traits which call into question his fitness to practice as a C.P.A."

Finally, the commission also notes Farr's apparent assertion that the Department of Regulation & Licensing's own witness, CPA Steven Pullar, testified at the AEB hearing that his convictions for bail jumping and communicating with jurors "was not in any way related to the practice of being a certified public accountant." This argument fails. As noted by counsel for the respondent, the AEB record indicates that Pullar's testimony was simply a reply with the literal truth that the crimes related to conduct that had occurred outside of professional practice of public accounting. Furthermore, even if had been Pullar's opinion that these convictions were not substantially related to the practice of public accounting, his opinion would not be binding on the commission.

For all of the above-stated reasons, the commission affirms ALJ John Brown's decision that there is no probable cause to believe that the respondent violated the Wisconsin Fair Employment Act by suspending Farr's certificate to practice as a certified public accountant.

cc: Attorney William Dusso

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Footnotes:

(1)( Back ) The commission has also considered Farr's assertion that ALJ John Brown unfairly prejudiced his claim by refusing to admit certain exhibits submitted by him. Farr has not specifically identified these exhibits. A review of the record fails to disclose any error by the ALJ in refusing to admit any exhibit submitted by Farr.

(2)( Back ) The record does not indicate whether or not Farr petitioned to the supreme court for a review of this matter.