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Bob Ferguson

AGO 2021 No. 5 - Sep 21 2021
Attorney General Bob Ferguson

BOARD OF ACCOUNTANCY—STATE AUDITOR—Authority Of Board Of Accountancy To Discipline An Employee Of The State Auditor For Actions Taken During The Scope Of Employment

The Accountancy Board likely lacks the authority to discipline a certified public accountant employed by the State Auditor for acts taken within the scope of employment, because the Washington State Public Accountancy Act excludes from its scope any act or the use of any words by a public official or public employee in the scope of employment.

September 21, 2021

The Honorable Mark Hugh, CPA
Chair, Washington State Board of Accountancy
PO Box 9131
Olympia, WA   98507

Cite As:
AGO 2021 No. 5

Dear Chair Hugh:

            By letter previously acknowledged, you have requested our opinion on one question, which we paraphrase as follows:

Does the Washington State Board of Accountancy have disciplinary authority for violations of the Washington Public Accountancy Act and Board rules over a Certified Public Accountant licensee who is an employee of a state agency for acts performed within the scope of employment?

BRIEF ANSWER

            Probably not. The Washington Public Accountancy Act does not explicitly exclude public officials or public employees acting in the course of their employment from the Board of Accountancy’s jurisdiction. But the Act does expressly not prohibit “any act of or the use of any words by a public official or a public employee in the performance of his or her duties.” RCW 18.04.350(12). Consistent with the Board’s interpretation of this statute, we conclude that it precludes the Board from taking action tantamount to “prohibit[ing]” a public employee or official from acting in the course of their official duties, which would include discipline. The legislature could provide more express direction as to the Board’s jurisdiction with respect to public employees that could change this analysis.

BACKGROUND

            The legislature created the Washington State Board of Accountancy in 1983 as part of its adoption of the Washington Public Accountancy Act (WPAA). Substitute H.B. 646, 48th Leg.,

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Reg. Sess., § 4 (1983). The WPAA “establishes the [B]oard as the licensing and disciplinary agency for certified public accountants (CPA), CPA-Inactive certificate holders, CPA firms, and owners of CPA firms.” WAC 4-30-020. According to the Board, its purpose is to “[p]romote the dependability of financial and other information used by providers of capital when assessing the status and performance of those seeking financial resources” by ensuring that persons licensed as CPAs are “[i]nitially qualified, [r]emain qualified, [p]erform competently and [h]eld publicly accountable for the quality of their professional services[.]”[1]

            The Board has authority to revoke or suspend CPA licenses, impose conditions on practice, and to impose fines for a variety of causes under RCW 18.04.295 and .345. That authority is subject to RCW 18.04.350(12), which provides that “[n]othing in this chapter prohibits any act of or the use of any words by a public official or a public employee in the performance of his or her duties.”

            In October 2020, the Board passed Policy No. 2020-2, titled Public Officials and Public Employees.[2] The policy sets out the Board’s position on its authority to enforce the WPAA and its rules in light of RCW 18.04.350(12). The Board has adopted a position that its authority over public employees who are licensed CPAs extends to ethical violations, failures to abide by licensure requirements, and activities outside the scope of employment, but not to “the quality of performance or judgement of a public employee in course of their employment.” Policy No. 2020-2, at 1 [sic]. According to the policy, conduct of licensed state employees that would fall within the Board’s purview include acts of fraud or deceit in renewing a CPA license, failure to report a sanction issued by a public agency, failure to cooperate with a Board investigation, and acts of fiscal dishonesty, fraud, and self-dealing. Policy No. 2020-2, at 2. The policy recognizes that public employees are not required to be licensed as CPAs and disavows authority to discipline public employees who are not licensed as CPAs when performing their official duties. Policy No. 2020-2, at 1.

            Your opinion request seeks guidance on whether the Board has disciplinary authority for violations of the WPAA and Board rules over a CPA employed by a state agency for acts performed within the scope of employment.

ANALYSIS

            For the reasons discussed more fully below, we conclude that the Board most likely lacks authority to discipline publicly-employed CPAs for acts performed within the scope of employment. Note that this analysis expresses no opinion on whether Board Policy No. 2020-2 properly distinguishes between conduct that falls within and outside the scope of employment.

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            When interpreting a statute, a court’s fundamental objective is to “ascertain and carry out the legislature’s intent.” Arborwood Idaho, L.L.C. v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004). If a statute is unambiguous, its meaning is to be derived from the language of the statute alone. In re Residence of Eaton, 110 Wn.2d 892, 898, 757 P.2d 961 (1988). If, however, the intent of the statute is not clear from the language of the statute by itself, the court may resort to tools of statutory construction to derive a statute’s meaning. Dep’t of Transp. v. State Emps.’ Ins. Bd., 97 Wn.2d 454, 458, 645 P.2d 1076 (1982). Courts determining the plain meaning of a statute may also consider “related statutes or other provisions in the same act that disclose legislative intent.” In re Pers. Restraint Petition of McWilliams, 182 Wn.2d 213, 217, 340 P.3d 223 (2014).

            Beginning with the plain language, the statute provides that “[n]othing in this chapter prohibits any act of or the use of any words by a public official or a public employee in the performance of his or her duties.” RCW 18.04.350(12). Because your question is concerned with acts that constitute the performance of official duties, the issue becomes whether a Board disciplinary action would “prohibit” such conduct.

            The plain meaning of a nontechnical statutory term may be discerned from its dictionary definition. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 435, 395 P.3d 1031 (2017). Merriam-Webster defines “prohibit” as: “to forbid by authority” and “to prevent from doing something[.]”[3] The WPAA contains numerous requirements that a CPA must observe, as do the Board’s rules—all of which are promulgated pursuant to authority granted by the WPAA. E.g., RCW 18.04.345 (listing various prohibited practices); WAC 4-30-046 (requiring licensees to act with “professional competence” when providing professional services). A Board disciplinary action to enforce the WPAA or its own rules can result in revocation of licensure, a fine up to $30,000, or other penalties. RCW 18.04.295. Accordingly, an act taken within the scope of public employment that runs afoul of the WPAA or Board rules could reasonably be said to be “forbidden by authority” and therefore prohibited for purposes of RCW 18.04.350(12).

            Under a plain read of RCW 18.04.350(12), then, the WPAA (and by extension, Board rules) cannot impede any act taken by a public employee that is within the scope of employment. It follows that the Board cannot discipline a public employee for such acts, which are effectively not prohibited by the WPAA. And although the legislative purpose of the WPAA includes “protect[ing] the public interest” by requiring that CPAs “conduct themselves in a competent, ethical, and professional manner,” RCW 18.04.015(1)(b)(i), a statement of legislative intent is not substantive law and cannot be used to override unambiguous statutory language, State v. D.H., D.B., 102 Wn. App. 620, 627, 9 P.3d 253 (2000).

            Even if the statute were ambiguous on the question, the same result would follow using tools of statutory construction. One such rule provides that “[s]tatutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or

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superfluous.” Spokane County v. Dep’t of Fish & Wildlife, 192 Wn.2d 453, 458, 430 P.3d 655 (2018) (quoting Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996)). RCW 18.04.350(12) would serve no apparent purpose if the WPAA were construed to permit the Board to discipline a publicly-employed CPA for acts taken within the scope of employment; such a result could be achieved without the inclusion of RCW 18.04.350(12). Further, an agency’s interpretation of an ambiguous statute is accorded great weight, provided it does not conflict with the statute. Pub. Util. Dist. 1 of Pend Oreille Cnty. v. Dep’t of Ecology, 146 Wn.2d 778, 790, 51 P.3d 744 (2002). Here, the Board has expressly interpreted RCW 18.04.350(12) to divest it of authority “to judge the quality of performance or judgement of a public employee in course of their employment” while allowing it to discipline for matters it considers to be outside the scope of employment. Board Policy No. 2020-2, at 1  [sic]. This agency interpretation of RCW 18.04.350(12) is consistent with the conclusion reached by this opinion. As noted, however, the legislature may provide more express direction that could change this analysis.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

s/ Gregory K. Ziser
GREGORY K. ZISER
Assistant Attorney General
360-534-4862

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[1] https://acb.wa.gov/about-us/boards-purpose (last visited Sept. 17, 2021).

[3] Prohibit, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/prohibit (last visited
Sept. 17, 2021).