The rule of law for accountants is not always applied to California\u2019s accountants. I know this. I am a member of the California Board of Accountancy (\u201cCBA\u201d); and I see the rule of passion, not the rule of law, applied much too often. The rule of law has been subverted by the Department of Consumer Affairs (\u201cDCA\u201d), the department in which the CBA resides.<\/p>\n
The CBA is composed of 15 members. Each of the 15 members is appointed either by the Governor, the Speaker of the Assembly, or the Senate Rules Committee. Business & Professions Code \u00a7 5000. The Board licenses and polices all of California\u2019s Certified Public Accountants and Public Accountants. Business & Professions Code \u00a7 5100; and see <\/em>B&P Code \u00a7\u00a7 5033, 5034. The CBA located in the Department of Consumer Affairs (\u201cDCA\u201d), along with many other professional boards. See <\/em>B&P Code \u00a7 108. Thus, the CBA is staffed by the DCA.<\/p>\n But, as should be apparent by the fact that Board members are appointed by some of the highest elected officers in our State, like other boards located in the DCA, the CBA is not a subsidiary agency to the DCA but rather, \u201cexists as a separate unit,\u201d with its own powers and legislatively mandated functions. B&P Code \u00a7 108.<\/p>\n \u00a0<\/strong>The CBA can revoke, suspend, etc. an accountant\u2019s license if the accountant has been convicted of a crime or if he\/she commits an act of misconduct that is \u201csubstantially related <\/em>[to the practice of accountancy].\u201d Business & Professions Code \u00a7\u00a7 5100(a) & 481.<\/p>\n Notwithstanding the rule of law requirement that accountant discipline must be based on a criminal conviction or a deed that is \u201csubstantially related <\/em>[to the practice of accountancy],\u201d it is not uncommon for the CBA to discipline accountants for doing things that the CBA just doesn\u2019t like and reasonably doesn\u2019t. Things like driving drunk. (And, in drunk driving cases, the CBA knows that the accountant was driving while drunk because staff brings such cases to the CBA when there has been a conviction.) But, a DUI conviction for drunk driving when the accountant was doing nothing related to accounting, let alone \u201csubstantially related\u201d to accounting is not disciplinable by the CBA, under the rule of law. Rather, the CBA disciplines accountants for such not-substantially-related-to-accounting things under the rule of passion.<\/p>\n Please note. Things like DUI convictions <\/em>have already been handled by the D.A.s, the courts, and the jails and prisons. The CBA, a legislative product of the Business & Professions Code, deals with the profession <\/em>of accountancy. Is a DUI received when nothing to do with the profession was occurring, substantially related to the profession \u2013 or is the plain meaning of the legislature to allow the D.A.s, the courts, and the jails and prisons to handle such things, while the CBA only involves itself if the criminal conviction is for something like embezzlement.<\/p>\n \u00a0<\/strong>In 2014, the Deputy Attorney General who was at the time charged with prosecuting accountants before the CBA, gave the CBA a tutorial as to what \u201csubstantially related [to the practice of accountancy]\u201d means. Please let that stew for a moment. The prosecutor <\/em>tutored the judge\/jury (the Board) about the relevant law.<\/p>\n Although I was appointed to the Board in September of 2017, the Deputy Attorney General gave me the substantive material that he used in his 2014 presentation. I strongly disagree with the presentation. Thus, I have tried in regular order to agendize the issue of what \u201csubstantially related [to the practice of accounting means]\u201d Then I could present the statutes and the cases that appropriately define the plain meaning of \u201csubstantially related [to the practice of accountancy].\u201d Everyone on the Board would fully and publicly participate in the discussion.<\/p>\n \u00a0<\/strong>At the Board\u2019s January 17, 2019, meeting my request to agendize the issue of the meaning of \u201csubstantially related [to the practice of accountancy] was granted. It was agreed that I would write a memorandum on the subject, send it to staff, and staff would distribute it to the Board\u2019s member in compliance with the Bagely-Keene Act.<\/p>\n So, I wrote an objective, detailed 19-page memo on the subject. I emailed that memo to staff on June 27, 2019, in accordance with the agreed-upon plan for compliance with the Bagely- Keene Act.<\/p>\n \u00a0<\/strong>A lawyer from the DCA called me; we spoke on 08\/08\/19. The Department attorney said, amongst other things \u2013 that attorneys for accountants haven\u2019t yet figured out the concepts that I present in my memo <\/em>\u2013 and, he doesn\u2019t want accountants\u2019 attorneys to learn <\/em>such concepts. Eight days after this phone call, staff emailed me that the agendizing of this important subject had been tabled. Since then I\u2019ve continued to demand that the matter be agendized. Crickets.<\/p>\n \u00a0<\/strong>The DCA staffs <\/em>the CBA, not the other way around. See <\/em>B&P Code \u00a7 108. In fact, the legislature has vested the powers of the CBA in the appointees of the Speaker of the Assembly, the Governor, and the Senate Rules Committee. B&P Code \u00a7 5000(b). Regular order calls for Members to request the agendizing of a matter at a public meeting, in accordance with the Bagely-Keene Open meetings law. See generally <\/em>The Bagley-Keene Open Meeting Act, Gov. Code \u00a7\u00a7 11120, et seq.<\/p>\n Whether things like an accountant\u2019s conviction for DUI while doing nothing at all related to accountancy was \u201cexplained\u201d by the prosecutor<\/em>, in a presentation to the Board in 2014 as being \u201csubstantially related [to the practice of accountancy].\u201d After there was an understanding that this issue would be agendized for public discussion, and after I wrote the agreed-upon memorandum re the subject \u2013 a lawyer from the DCA explicitly told me that attorneys for accountants haven\u2019t yet figured out the concepts that I present in my memo <\/em>\u2013 and, he doesn\u2019t want accountants\u2019 attorneys to learn <\/em>such concepts. Eight days after this phone call, staff emailed me that the agendizing of this important subject had been tabled.<\/p>\n That\u2019s interference defined!<\/p>\n \u00a0<\/strong>In 1992 John Grisham wrote The Pelican Brief<\/em>. The \u201cpelican brief\u201d was a paper written by a law student that was deemed dangerous to some powerful interests. I feel like I wrote \u201can accountant\u2019s pelican brief. But, its only danger is the promotion of the rule of law over the rule of passion.<\/p>\n Here\u2019s a sample of what the DCA doesn\u2019t want accountants\u2019 lawyers to learn.<\/p>\n Under the \u201c\u2018plain meaning rule\u2019 . . . the Legislature is presumed to have meant what it said, and the plain meaning <\/em>of the language governs.\u201d Berry v. State of California, <\/em>2 Cal.App.4th 688, 691 (1992). [italics added.] The late Justice David Sills of Div. Three of the Fourth Dist. explained, \u201cIt is the language of the statute itself that has successfully braved the legislative gauntlet. It is that language which has been lobbied for, lobbied against, studied, proposed, drafted, restudied, redrafted, voted on in committee, amended, re-amended, analyzed, reanalyzed, voted on by two houses of the Legislature, sent to a conference committee, and after perhaps more lobbying, debate and analysis, finally signed \u2018into law\u2019 by the Governor.\u201d Halbert\u2019s Lumber v. Lucky Stores, Inc., <\/em>6 Cal.App.4th 1233, 1238 (1992).<\/p>\n In order to derive the \u201cplain meaning\u201d the words in a statute one must \u201cgive effect to the usual and ordinary import of those.\u201d Abernathy v. Superior Court (The People),<\/em>157 Cal.App.4th 642, 648 (2007). The law tells us that \u201cthe \u2018ordinary\u2019 sense of a word is to be found in its dictionary definition.\u201d Scott v. Continental Insurance Company, <\/em>44 Cal.App.4th 24, 29-30 (1996). \u201c[C]ourts . . . turn to general dictionaries when they seek to ascertain the \u2018ordinary\u2019 meaning of words used in a statute.\u201d Stamm Theatres v. Hartford Casualty, <\/em>93 Cal.App.4th 531, 540 (2001). The law doesn\u2019t require or even allow the use of a law dictionary or any other sort of specialized dictionary. See<\/u> PG&E v. Hart-High Voltage, <\/em>18 Cal.App.5th 415, 429 (2017).<\/p>\n Because \u201csubstantially related\u201d is a phrase, each word in that phrase must be defined. \u201cSubstantially\u201d is an adverb, which means, \u201csolidly; firmly; with strength.\u201d Webster\u2019s New Twentieth Century Dictionary, Second Edition<\/em>, p. 1817. [\u201cin a substantial manner\u201d omitted.] Related\u201d is a past participle, which means, \u201cconnected.\u201d Webster\u2019s New Twentieth Century Dictionary<\/em>, Second Edition<\/em>, p. 1525. [2nd definition; \u201cassociated\u201d omitted therefrom. 1st definition is \u201cnarrated, recounted; told.\u201d]<\/p>\n So, the definition of \u201csubstantially related to the practice of accountancy\u201d has to be \u201csolidly, firmly, or with strength connected to the practice of accountancy,\u201d or some equivalent of that.<\/p>\n The \u201cpelican brief\u201d goes into case law, further legal doctrine, and the like. The rule of law, not the rule of passion.<\/p>\n About the author:<\/strong><\/p>\n Dan Jacobson is a Member of California\u2019s Board of Accountancy, the 15\u2010member Board that polices all of California\u2019s CPAs. Mr. Jacobson speaks for himself as an individual member of\u00a0that Board, and not for the Board as a whole. Mr. Jacobson also practices business law in Tustin, is a member of the adjunct faculty at Pacific West College of Law in Orange, is an expert\u00a0witness in insurance bad faith cases, and is the immediate past Chair of the Democratic Foundation of Orange County.<\/p>\n By Dan Jacobson “Certain other societies respect the rule of force \u2013 we respect the rule of law.\u201d President John F. Kennedy, May 18, 1963. While the current headlines highlight the nation\u2019s efforts to apply the rule of law to Continue reading \u201cSubstantially related [to the practice of accountancy]\u201d<\/h3>\n
2014 presentation to the Board re the meaning of \u201csubstantially related [to the practice of accountancy] \u2013 a presentation given by the prosecutor<\/h3>\n
The Department of Consumer Affairs interference the CBA\u2019s agenda<\/h3>\n
The DCA telephone call, and resulting \u201ctabling\u201d (apparently forever) of the subject<\/h3>\n
To review<\/h3>\n
The Pelican Brief<\/h3>\n
The plain meaning rule:<\/h3>\n
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