|
|
OAH 8-0325-21583-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
|
Douglas
J. Carpenter, Complainant, vs. Jeffrey
T. Walker,
Respondent. |
FINDINGS
OF FACT, CONCLUSIONS
AND ORDER |
The above-entitled matter came on for an
evidentiary hearing on October 20, 2010, before a panel of three Administrative
Law Judges: Eric L. Lipman (Presiding
Judge), Manuel J. Cervantes, and James F. Cannon. The OAH hearing record closed at the end of
the hearing that day.
Douglas
Carpenter appeared on his own behalf without counsel. He was assisted by Winton Mason. Ron Meshbesher, Esq., Meshbesher & Spence,
LTD, represented Jeffrey Walker (Respondent).
NOTICE
This
is the final decision in this case, as provided in Minn. Stat. § 211B.36,
subd. 5. A party aggrieved by this
decision may seek judicial review as provided in
STATEMENT
OF ISSUES
Did
Respondent Jeffrey Walker violate Minnesota Statute § 211B.06 by intentionally
preparing and disseminating campaign material that he knew was false or that he
communicated with reckless disregard as to whether it was false?
The
panel concludes that the Complainant failed to establish that the Respondent violated
Minn. Stat. § 211B.06, and therefore the Complaint is dismissed.
Based upon the entire record, the panel
makes the following:
FINDINGS OF
FACT
1.
The Complainant,
Douglas J. Carpenter, is a candidate in the November 2010 election for Itasca
County Auditor/Treasurer.
2.
The Respondent,
Jeffrey Walker, is the incumbent Itasca County Auditor/Treasurer and is seeking
re-election.
3.
The Board of
Accountancy (Board) first certified the Respondent as a Certified Public
Accountant (CPA) in 1984.[1]
4.
Persons holding
CPA certifications are required to renew their licenses by December 31st
of each year.[2]
5.
As part of the requirements for maintaining a CPA
certification, accountants are required to accrue 120 hours (including 8 hours
of ethics credit) of continuing professional education within a three year fiscal
period. For any given year, CPAs are
required to accrue a minimum of 20 hours of continuing profession education.[3]
6.
It was the
practice of the Board to send to all CPAs certification renewal notices in
October, and a second and final notice in December, reminding them to renew
their certifications before the end of the year.[4]
7.
The Board sent
CPA certificate renewal notices to the Respondent in 2008.[5]
8.
On or about
November 5, 2008, the Respondent submitted his sole proprietor firm permit renewal
application for 2009 to the Board of Accountancy (Board).[6] The Board renewed Respondent’s firm permit.
9.
The Respondent
did not submit a CPA certification renewal application for year 2009 before
December 31, 2008. His CPA certificate
lapsed on December 31, 2008.[7]
10.
By letter dated
February 4, 2009, the Board notified the Respondent that his CPA certificate
expired on December 31, 2008, and was no longer valid. The letter stated further that in order to
renew his certificate, the Respondent would have to pay a $50 delinquency fee
in addition to the renewal fee.[8]
11.
On or about
October 20, 2009, the Respondent submitted to the Board his Sole Proprietor Firm
Permit renewal application for the year 2010.[9]
12.
The Board
renewed the Respondent’s sole proprietor firm permit for year 2010 on or about
November 5, 2009, even though the Respondent’s CPA certification had expired.[10] The permit lists the Respondent’s name on the
permit as: Jeffrey Thomas Walker CPA.[11]
13.
After being
contacted by an advertising salesman for the Grand Rapids Herald Review, the Respondent placed a campaign advertisement
in support of his candidacy for Itasca County Auditor/Treasurer in the September
8, 2010, edition of the newspaper. The Respondent used the same advertisement he
had used for his 2006 campaign. In the
advertisement, “certified public accountant” is listed as one of the
Respondent’s qualifications.[12]
14.
On September 16, 2010, Winton Mason, a supporter of Mr.
Carpenter, inquired of the Minnesota Board of Accountancy as to the status of
Mr. Walker’s CPA certificate. On
15.
On October 14, 2010, the Respondent submitted applications to
the Board to renew his CPA certification for the years 2009 and 2010. The Respondent included with his applications
an accounting of the continuing professional education hours he accrued during
fiscal years 2007-2009.[14] The Respondent fulfilled his continuing
professional education requirements for fiscal years 2007-2009.[15]
16.
The Board renewed the Respondent’s CPA certificate on or
about October 18, 2010.[16]
17.
The Respondent is currently a CPA in good standing.[17]
Based upon the foregoing Findings of
Fact, the panel makes the following:
CONCLUSIONS
1.
Minn. Stat. §
211B.35 authorizes the panel of Administrative Law Judges to consider this
matter.
2. Campaign material is defined to mean “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election . . . .”[18] The advertisement that the Respondent placed in the Grand Rapids Herald Tribune is campaign material within the meaning of that statute.[19]
3.
Minn. Stat. § 211B.06, subd. 1, provides, in part:
A person is guilty of a gross
misdemeanor who intentionally participates in the preparation, dissemination,
or broadcast of … campaign material with respect to the personal or political
character or acts of a candidate … that is designed or tends to elect, injure,
promote, or defeat a candidate for nomination or election to a public office …,
that is false, and that the person knows is false or communicates to others
with reckless disregard of whether it is false.
4. The burden of proving the allegations in the complaint is on the Complainant. The standard of proof of a violation of Minn. Stat. § 211B.06, relating to false campaign material, is clear and convincing evidence.[20]
5. The Complainant has failed to demonstrate that the Respondent violated Minn. Stat. § 211B.06 because the evidence is insufficient to prove that the Respondent knew that statement was false or that he communicated it with a reckless disregard as to whether it was false.[21]
Based upon the record herein, and for
the reasons stated in the following Memorandum, the panel of Administrative Law
Judges makes the following:
ORDER
IT IS
ORDERED:
That the
Complaint in this matter is DISMISSED.
Dated: October 25, 2010
/s/
Eric L. Lipman
|
ERIC
L. LIPMAN Presiding
Administrative Law Judge |
/s/
Manuel J. Cervantes
|
MANUEL J. CERVANTES Administrative Law Judge |
/s/
James F. Cannon
|
JAMES F. CANNON Administrative Law Judge |
Reported:
Digitally recorded; No transcript prepared
MEMORANDUM
The
Complainant maintains that the statement in the Respondent’s campaign advertisement
that he is a Certified Public Accountant is false and that the Respondent knew it
was false or disseminated it with reckless disregard as to whether it was false
in violation of Minn. Stat. § 211B.06.
There
is no dispute that the Respondent’s CPA certification expired on
Minn.
Stat. § 211B.06 prohibits a person from intentionally participating in the
preparation, dissemination, or broadcast of campaign material with respect to
the personal or political character or acts of a candidate that is designed or
tends to injure or defeat a candidate, and which the person knows is false or
communicates to others with reckless disregard of whether it is false.
The
term “reckless disregard” was added to the statute in 1998 to expressly
incorporate the “actual malice” standard applicable to defamation cases
involving public officials from New York
Times v. Sullivan.[22] Based upon this standard, the Complainant has
the burden at the hearing to prove by clear and convincing evidence that the
Respondent either published the statements knowing the statements were false,
or that he “in fact entertained serious doubts” as to the truth of the
publication or acted “with a high degree of awareness” of its probable falsity.[23] A statement may have been made with actual
malice if it is fabricated or is so inherently improbable that only a reckless
man would put it in circulation.[24]
To be found to have violated section 211B.06, therefore, two requirements must be met: (1) a person must intentionally participate in the preparation or dissemination of false campaign material; and (2) the person preparing or disseminating the material must know that the item is false, or act with reckless disregard as to whether it is false.
As to the first element of the statute, the test is objective: The statute is directed against false statements of fact. The false statement of fact in this case is the Respondent’s claim in his September 8th advertisement to be a Certified Public Accountant when his certification had in fact lapsed. With respect to the second element of the statute – namely, Respondent’s awareness surrounding his claim of licensure – the test is subjective: The Complainant must prove by clear and convincing evidence that the Respondent “in fact entertained serious doubts” as to the truth of the publication or acted “with a high degree of awareness” of its probable falsity.[25] Otherwise, his claim for relief fails.
The panel concludes that the Complainant has failed to put forward clear and convincing evidence that the Respondent knew his claim to be a CPA was false or that he published the claim while subjectively believing that it was probably false. Instead, the evidence as a whole supports finding that Respondent’s failure to renew his certification was at most an oversight on his part. The fact that the Respondent continued to renew his sole proprietorship CPA permit and continued to accrue the required continuing professional education hours runs counter to any argument that he entertained serious doubts as to the truth of his certification claim. Respondent has been a CPA in good standing for over 20 years and would have been renewed but for the missed filing fees.
Because the Complainant failed to put forward any evidence
to suggest the Respondent knew his statement that he was a CPA was false as of
E.L.L.,
M.J.C., J.F.C.
[1] Testimony of Doreen Frost.
[2]
[3] Test. of D. Frost.
[4] Test. of D. Frost; Exs. 18 and 19.
[5] Test. of D. Frost.
[6] Ex. 15.
[7] Test. of D. Frost.
[8] Ex. 14.
[9] Ex. 16.
[10] Exs. 4, 9, and 15. See, Minn. Stat. § 326A.05, subd. 3, which requires a majority of the ownership of the CPA firm to hold valid certificates.
[11] Ex. A.
[12] Exs. B, 5, 6 and 12.
[13] Ex. 1.
[14] Ex. 17; Test. of D. Frost.
[15] Test. of D. Frost.
[16] Test. of D. Frost.
[17] Test. of D. Frost.
[18] Minn. Stat. §
211B.01, subd. 2.
[19] Ex. J-1.
[20] Minn. Stat. § 211B.32, subd. 4.
[21] See Riley v. Jankowski, 713 N.W.2d 379
(Minn. App. 2006), rev. denied (
[22] New York Times v. Sullivan, 376
[23] See St. Amant v. Thompson, 390
[24] St. Amant, 390
[25] St.
Amant, 390