2010-101, Appeal of Robert Daniel Mays

Robert Daniel Mays, by brief and orally, pro

(New Hampshire Board of Accountancy)

No. 2010-101

Board of Accountancy CPA in this state, an individual must hold a CPA certificate. See The facts are adduced from the certified record. In order to practice as a

reverse and remand. satisfy the experience requirement under RSA 309-B:5, IX (Supp. 2010). We public accounting firm that actually practices public accounting in order to an applicant for initial certification as a CPA to secure experience in a licensed whether the Board exceeded its authority when it promulgated a rule requiring for a certified public accountant (CPA) certificate. The sole issue in this case is of the New Hampshire Board of Accountancy (Board) denying his application DUGGAN, J. The petitioner, Robert Daniel Mays, challenges a decision

On his application, he identified as his public accounting experience services practice public accounting in New Hampshire. See RSA 309-B:7 (Supp. 2010). (Supp. 2010). In August 2009, the petitioner applied for a CPA certificate to

Michael A. Delaney

brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as under RSA chapter 541. See p. 2 RSA chapter 309-B does not provide for judicial review of the Board’s decision This case is properly treated as a petition for a writ of certiorari because

the laws. Appeal of N.H. Dep’t of Transportation agencies the power to promulgate rules necessary for the proper execution of It is well settled that the legislature may delegate to administrative

inconsistent with RSA 309-B:5, IX.” accepted only the following issue for review: “Whether [Rule] 302.03 is with RSA 309-B:5, IX or Rule 302.03(b)(1). The petitioner appealed, and we necessary public accounting experience; thus, his application did not comply registered as a public accounting firm in Virginia, the petitioner lacked the 2 the Board ruled, in pertinent part, that because BearingPoint, Inc. was not which is not registered as a public accounting firm in Virginia. Accordingly, established that he was employed by BearingPoint, Inc., a consulting firm, 152 N.H. 565, 571 (2005). application for a CPA certificate. It found that the petitioner’s documentation By order dated January 19, 2010, the Board again denied the petitioner’s

438, 441 (2010) (quotation omitted). arbitrarily, unreasonably, or capriciously.” Petition of Poulicakos, 160 N.H. cannot legally or reasonably be made, or abused its discretion or acted authority or observance of the law, whereby it arrived at a conclusion which review is whether the board acted illegally with respect to jurisdiction, chapter 541 only “[w]hen so authorized by law”). Thus, “[o]ur standard of 541:2 (2007) (appeal from administrative proceedings can be made under RSA

supporting documentation in a letter to the Board dated December 18, 2009. experience complied with Rule 101.15 and RSA 309-B:5, IX, and attached Virginia Board of Accountancy.” The petitioner continued to maintain that his accounting firm in Virginia and was duly licensed to practice as such by the from the Virginia Board of Accountancy that [BearingPoint, Inc.] was a public allowing him the opportunity to provide “proper and formal documentation under [Rule] 101.15.” The Board granted the petitioner’s request for a stay, appears to be inconsistent with the definition of public accounting experience experience must be based upon employment in a CPA firm under [Rule] 302.03 RSA 309-B:5, IX. He asserted that “the requirement that public accounting the definition of “public accounting experience” under Rule 101.15 and with decision for a variety of reasons, including that his experience complied with The petitioner requested that the Board stay its action and reconsider its

B:5, IX and New Hampshire Administrative Rule, Ac 302.03. did not qualify as public accounting experience in accordance with RSA 309the Board denied the petitioner’s application, determining that his experience employed by a company in Virginia named BearingPoint, Inc. By majority vote, that he performed from approximately April 2007 through January 2009 while and governmental enterprises.

p. 3 financial status or performance of commercial, non-commercial,

Accountancy Act of 1999. See power granted by the legislature to the Board, and the purpose of the in financial transactions or for accounting for or assessing the to promote the reliability of information that is used for guidance rule-making authority, we first look to the intended scope of the rule-making To discern whether Rule 302.03(b)(1) constitutes a proper exercise of

implicit in the statute itself. State contends, Rule 302.03(b)(1) merely states explicitly a requirement that is must earn such experience in a licensed public accounting firm. Thus, the have “public accounting experience,” it implicitly prescribes that the applicant experience. It reasons that because RSA 309-B:5, IX requires an applicant to partly identifies where the applicant must obtain this public accounting obtaining experience and the specific types of skills performed, the statute only while RSA 309-B:5, IX dictates the amount of time a CPA applicant must spend required for all licensees,” RSA 309-B:4, VIII(c) (2005). According to the State, (2005), and to promulgate rules that specify the “experience qualifications is: implementing the provisions and purposes of this chapter,” RSA 309-B:4, VIII(i) The stated purpose of the Accountancy Act of 1999, RSA chapter 309-B, authority to make rules that it deems “necessary or appropriate for The State argues that Rule 302.03(b)(1) is consistent with the Board’s 3

authority. See Appeal of N.H. Dep’t of Transportation, 152 N.H. at 571. IX, in the context of other statutes relevant to the Board’s statutorily prescribed In so doing, we review the plain language of the statute at issue, RSA 309-B:5, at 571; see also Kimball v. N.H. Bd. Of Accountancy, 118 N.H. 567, 569 (1978).

type of organization.” that the legislature’s intent was not to require employment within a specific accounting firm. According to the petitioner, “[t]he statute is plain on its face licensed CPA,” but the Rule requires that the experience be earned in a public the experience requirement to be “satisfied under supervision of an individually requirement set forth in RSA 309-B:5, IX. He argues that the statute permits by promulgating Rule 302.03(b)(1). He contends that it modifies the experience The petitioner argues that the Board exceeded its rule-making authority

they are intended to implement.” Id. administrative rules may not add to, detract from, or modify the statute which of Anderson, 147 N.H. 181, 183 (2001) (quotation omitted). “Thus, the board to fill in the details to effectuate the purpose of the statute.” Appeal “The authority to promulgate rules and regulations is designed only to permit licensee in any state in practice as a certified public accountant or p. 4 matters, or the equivalent, all of which was under the direction of a or the preparation of tax returns or the furnishing of advice on tax

of management advisory, financial advisory, or consulting services, issuance of reports on financial statements, or one or more kinds

requirements that applicants must meet. See RSA 309-B:5 provides specific education, experience, and examination

involving the use of accounting or auditing skills, including the

pursuant to RSA 309-B:7, and who pay the fees prescribed by the board.” examination requirements of this section, who make application therefor accounting experience in providing one or more kinds of services

educational and experience qualifications required for all licensees areas in which the Board is to adopt rules, including “[r]ules specifying the licensees.” RSA 309-B:4, VIII (2005). The Act identifies numerous specific administration, the enforcement of [RSA chapter 309-B] and the conduct of persons of good character who meet the education, experience, and adopt rules pursuant to RSA chapter 541-A “governing [the Board’s] provides that “[t]he certificate of ‘certified public accountant’ shall be granted to and directives set forth in the Act, the legislature also required the Board to The experience requirement shall consist of public Concerning the qualifications required for licensees, RSA 309-B:5, I, (2005). Expressing its intent that the Board implement the statutory purposes administration and enforcement of [RSA chapter 309-B],” RSA 309-B:4, I part: The legislature charged the Board with the “responsibility for the in this case is the experience requirement. The relevant section provides in RSA 309-B:5, IV-VIII (examination); RSA 309-B:5, IX-X (experience). At issue

the provisions and purposes of this chapter.” RSA 309-B:4, VIII(i). other rules as the board may deem necessary or appropriate for implementing B:4, VIII(c) (emphasis added). The Board also is authorized to adopt “[s]uch

B:14. unlawful acts pertaining to the practice of public accounting, see RSA 309qualifications for licensees, see, e.g., RSA 309-B:5-:8 (Supp. 2010), and lists and firms of public accountants). For example, the Act sets forth required attest experience and peer review); RSA 309-B:9 (2005) (public accountants of CPA certificates); RSA 309-B:8 (Supp. 2010) (CPA firm permits to practice, “License” and “Peer review”); RSA 309-B:7 (Supp. 2010) (issuance and renewal 309-B:3, I, III-a, VIII, XII (Supp. 2010) (definitions of “Attest,” “Compilation,” profession, including public accountants, CPAs and CPA firms. See, e.g., RSA accounting and comprises a certification or licensing system for that RSA 309-B:2 (2005). The Act as a whole regulates the practice of public of the Board’s authority. See p. 5 would necessarily “add to, detract from, or modify” the requirement in violation the details,” as to who may supervise an applicant. Thus, any such rules of the supervisory requirement does not leave any room for the Board to “fill in specific types of licensees who qualify to supervise an applicant. The language of experience.” The legislature used precise language that provides for only anyone practicing public accounting, or a combination of either of such types state in employment as a staff accountant by a certified public accountant or certification as a CPA shall [have earned experience] . . . [i]n a public practice as a certified public accountant or as a public accountant, or in any RSA 309-B:5, IX, each applicant submitting an application for initial explicit as to who qualifies to supervise an applicant: “a licensee in any state in The Board’s experience rule at issue in this case provides: “Pursuant to experience must be under the supervision of a licensee. The requirement is By contrast, the second requirement provides that any public accounting

use of accounting or auditing skills, including accounting experience in providing one or more kinds of services involving the requirement provides that “[t]he experience requirement shall consist of public the supervisory requirement; and the time requirement. The type of service [B]oard to fill in the details to effectuate the purpose of the statute.” Appeal of as three separate substantive requirements: the type of service requirement; The authority of the Board to adopt rules “is designed only to permit the Appeal of Anderson, 147 N.H. at 183. The experience requirement in RSA 309-B:5, IX can best be understood

requirement. legislature left room for the Board to fill in the details with respect to this In adopting such open-ended language in the type of service requirement, the examples of the kinds of services that qualify as public accounting experience. equivalent. . . .” RSA 309-B:5, IX (emphasis added). The statute lists several

RSA 309-B:5, IX. details.” legislature must have left room in the requirement for the Board to “fill in the rules relating to the experience requirements of RSA 309-B:5, IX, the Realty, Inc. v. Albin, 131 N.H. 689, 692 (1989). In order for the Board to adopt to the plain language of the statute considered as a whole. See Suburban in details and do not impermissibly add to the statutory requirements, we look Anderson, 147 N.H. at 183 (quotation omitted). To determine whether rules fill

experience and for the following periods of time . . . . public accounting, or a combination of either of such types of accountant by a certified public accountant or anyone practicing as a public accountant, or in any state in employment as a staff p. 6 6

Reversed and remanded

DALIANIS, C.J.