Section 87C.5 Revocation or suspension of certificate or license; discipline; investigations; complaint; hearing; order; judicial review; modification of order
[ Introductory paragraph of paragraph (a) effective until July 1, 2010. For text effective July 1, 2010, see below.]
Section 87C1/2. (a) After notice and hearing, the board may revoke any certificate or license issued under sections eighty-seven A1/2, eighty-seven B and eighty-seven B1/2 suspend any such certificate or license or refuse to renew any such license for a period of not more than five years, reprimand, censure or limit the scope of practice of any licensee, impose an administrative fine not exceeding one thousand dollars, or place any licensee on probation, all with or without terms, conditions and limitations, for any one or more of the following reasons:--
[ Introductory paragraph of paragraph (a) as amended by 2010, 22, Sec. 16 effective July 1, 2010. See 2010, 22, Sec. 25. For text effective until July 1, 2010, see above.]
(a) After notice and hearing, the board may revoke any certificate or license issued under sections eighty-seven A1/2, eighty-seven B and eighty-seven B1/2 suspend any such certificate or license or refuse to renew any such license for a period of not more than five years, reprimand, censure or limit the scope of practice of any licensee or any individual qualifying for practice privileges pursuant to paragraph (1) of subsection (h) of section 87B, impose an administrative fine not exceeding one thousand dollars, or place any licensee on probation, all with or without terms, conditions and limitations, for any one or more of the following reasons:--
(1) Fraud or deceit in obtaining a certificate or license;
(2) Cancellation, revocation, suspension or refusal to renew authority to engage in the practice of public accountancy in any other state or foreign country for any cause;
(3) Failure, on the part of a holder of a license under section eighty-seven B or eighty-seven B1/2, to maintain compliance with the requirements for issuance or renewals of such license or to report changes to the board;
(4) Revocation or suspension of the right to practice before any state or federal agency;
(5) Dishonesty, fraud or gross negligence in the practice of public accountancy or in the filing or failure to file his own income tax returns;
(6) Violation of any of the provisions of sections eighty-seven A to eighty-seven E, inclusive, or any rules promulgated by the board;
(7) Conviction of a felony, or of any crime an element of which is dishonesty or fraud, under the laws of the United States, or the commonwealth, or of any other state, if the acts would have constituted such a crime under the laws of the commonwealth;
(8) Performance of any fraudulent act while holding a certificate or license issued under prior law dealing with registration and the conduct of public accountancy;
(9) Any conduct reflecting adversely upon the licensee's fitness to engage in the practice of public accountancy.
(b) In lieu of or in addition to any remedy specifically provided in paragraph (a) the board may require of a licensee:
(1) A quality review conducted in such fashion as the board may specify; and
(2) Satisfactory completion of such continuing professional education programs as the board may specify.
[ Paragraph (b1/2) inserted by 2010, 22, Sec. 17 effective July 1, 2010. See 2010, 22, Sec. 25.]
(b1/2) The board may revoke or suspend a license granted pursuant to section 87B1/2 if at any time a licensee is no longer qualified under the law by which he qualified for registration, and the board may revoke or suspend any such license for any of the causes enumerated in this section and for the following additional causes: (i) upon the revocation or suspension of the certificate, registration or biennial license of any partner or any officer, director, shareholder, member or employee of the firm for whom such licensee is employed; and (ii) upon the cancellation, revocation, suspension or refusal to renew the authority of the firm to practice public accountancy in any other state, for any cause other than failure to pay a registration fee in such another state.
[ First paragraph of paragraph (c) effective until July 1, 2010. For text effective July 1, 2010, see below.]
(c) In any proceeding in which a remedy provided by paragraph (a) or (b) is imposed, the board may also require the respondent licensee to pay the cost of the proceeding.
[ First paragraph of paragraph (c) as amended by 2010, 22, Sec. 18 effective July 1, 2010. See 2010, 22, Sec. 25. For text effective until July 1, 2010, see above.]
(c) In any proceeding in which a remedy provided by paragraph (a), (b) or (b1/2) is imposed, the board may also require the respondent licensee to pay the cost of the proceeding.
The board may, upon receipt of a complaint or other information alleging violations of section eighty-seven A1/2 to eighty-seven E, inclusive, or of the rules of the board, conduct investigations to determine whether there is probable cause to institute proceedings against any person or firm for such violation; but an investigation under this section shall not be a prerequisite to such proceedings in the event that a determination of probable cause can be made without investigation. In aid of such investigations, the board or the chairman thereof may issue subpoenas to compel witnesses to testify and to produce evidence.
The board may designate a member, or any other person of appropriate competence, to serve as investigating officer to conduct an investigation. Upon completion of an investigation, the investigating officer shall file a report with the board. The board shall find probable cause or lack of probable cause upon the basis of the report, or shall return the report to the investigating officer for further investigation. Unless there has been a determination of probable cause, the report of the investigating officer, the complaint, if any, the testimony and documents submitted in support of the complaint or gathered in the investigation, and the fact of pendency of the investigation shall be treated as confidential information and shall not be disclosed to any person except law enforcement authorities and, to the extent deemed necessary in order to conduct the investigation, the subject of the investigation, persons whose complaints are being investigated, and witnesses questioned in the course of the investigation.
Upon a finding of probable cause, if the subject of the investigation is a licensee, the board shall direct that a complaint be issued and, if the subject of the investigation is not a licensee, the board shall take appropriate action pursuant to the provisions of section 87D1/2. Upon a finding of no probable cause, the board shall close the matter and shall thereafter release information related thereto only with the consent of the person or firm under investigation.
In any case where probable cause with respect to a violation by a licensee has been determined by the board, whether following an investigation, or upon receipt of a written complaint furnishing grounds for a determination of such probable cause, or upon receipt of notice of a decision by the board of accountancy of another state furnishing such grounds, the board shall issue a complaint setting forth appropriate charges and set a date for hearing before the board on such charges. The board shall, not less than thirty days prior to the date of the hearing, serve a copy of the complaint and notice of the time and place of the hearing upon the licensee, together with a copy of the board's rules governing proceedings under this section, either by personal delivery or by mailing a copy thereof by registered mail to the licensee at his last known address.
A licensee against whom a complaint has been issued under this section shall have the right, reasonably in advance of the hearing, to examine and copy the report of investigation, if any, and any documentary or testimonial evidence and summaries of anticipated evidence in the board's possession relating to the subject matter of the complaint. The board's rules governing proceedings under this section shall specify the manner in which such right may be exercised.
In a hearing under this section the respondent licensee may appear in person, or, in the case of a firm, through a partner, officer, director, member, or shareholder, by counsel, examine witnesses and evidence presented in support of the complaint, and present evidence and witnesses on his own behalf. The licensee shall be entitled, on application to the board, to the issuance of subpoenas to compel the attendance of witnesses and the production of documentary evidence.
The evidence supporting the complaint shall be presented by the investigating officer, by a board member designated for that purpose, or by counsel. A board member who presents the evidence, or who has conducted the investigation of the matter shall not participate in the board's decision of the matter.
In a hearing under this section the board shall be advised by counsel, who shall not be the same counsel who presents or assists in presenting the evidence supporting the complaint.
In a hearing under this section the board shall not be bound by technical rules of evidence.
In a hearing under this section a stenographic or electronic record shall be made, and filed with the board. A transcript need not be prepared unless review is sought or the board determines that there is other good cause for its preparation.
In a hearing under this section a recorded vote of a majority of all members of the board then in office, excluding members disqualified, shall be required to sustain any charge and to impose any penalty with respect thereto.
If, after service of a complaint and notice of hearing the respondent licensee fails to appear at the hearing, the board may proceed to hear evidence against the licensee and may enter such order as it deems warranted by the evidence, which order shall be final unless the licensee petitions for review; provided, however, that within thirty days from the date of any such order, upon a showing of good cause for the licensee's failure to appear and defend, the board may set aside the order and schedule a new hearing on the complaint, to be conducted in accordance with applicable subsections of this section.
Any person or firm adversely affected by any order of the board entered after a hearing may obtain review thereof by filing a written petition for review with the supreme judicial court within thirty days after the entry of said order. The procedures for review, and the scope of the review shall be as specified in chapter thirty A.
In any case where the board renders a decision imposing discipline against a licensee under this section, the board shall examine its records to determine whether the licensee holds a certificate or a license to practice public accountancy in any other state; and if so, the board shall notify the board of accountancy of such other state of its decision by mail within forty-five days of rendering the decision. The board may also furnish information relating to proceedings resulting in disciplinary action to other public authorities and to private professional organizations having a disciplinary interest in the licensee.
In any case where the board has suspended or revoked a certificate or a license or refused to renew a license, the board may, upon application in writing by the person or firm affected and for good cause shown, modify the suspension or reissue the certificate or license.
The board shall by rule specify the manner in which such applications shall be made, the times within which they shall be made, and the circumstances in which hearings will be held thereon.
Before reissuing or terminating the suspension of a certificate or license, and as a condition thereto, the board may require the applicant to show successful completion of specified continuing professional education; and the board may make the reinstatement of a certificate or permit conditional, and subject to satisfactory completion of a quality review conducted in such fashion as the board may specify.
[ Paragraph (d) added by 2010, 22, Sec. 18A effective July 1, 2010. See 2010, 22, Sec. 25.]
(d) A person engaged in the practice of certified public accountancy pursuant to paragraph (2) of subsection (h) of section 87B shall be included, for purposes of this section, within the definition of a licensee.