Forget v. STATE EX REL. STATE BOARD

658 N.W.2d 271, 265 Neb. 488
CourtNebraska Supreme Court
DecidedMarch 14, 2003
DocketS-01-1397
StatusPublished
Cited by3 cases

This text of 658 N.W.2d 271 (Forget v. STATE EX REL. STATE BOARD) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forget v. STATE EX REL. STATE BOARD, 658 N.W.2d 271, 265 Neb. 488 (Neb. 2003).

Opinion

658 N.W.2d 271 (2003)
265 Neb. 488

Gerard T. FORGÉT III, Appellant,
v.
STATE of Nebraska ex rel. STATE BOARD OF PUBLIC ACCOUNTANCY OF the STATE of Nebraska, Appellee.

No. S-01-1397.

Supreme Court of Nebraska.

March 14, 2003.

*273 Gerard T. Forgét III, pro se.

Robert T. Grimit, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

Gerard T. Forgét III was sanctioned by the Nebraska Board of Public Accountancy (the Board) for holding himself out as a certified public accountant (CPA) without holding an active CPA permit, in violation of the Public Accountancy Act, Neb.Rev. Stat. § 1-105 et seq. (Reissue 1997 & Cum.Supp.2002). The primary question presented in this appeal is whether an individual who has successfully taken the CPA examination, but has not completed the experience requirement necessary to obtain a CPA permit, may be considered an "inactive" CPA and use the designation "CPA."

BACKGROUND

Forgét is an Omaha attorney specializing in tax law. Forgét took and passed the Nebraska CPA examination in 1996 and was issued a certificate on December 1, 1997, indicating that he had passed the examination. See § 1-114. Forgét did not, however, submit to the Board any professional experience in order to obtain an active CPA permit. See § 1-136.02.

Forgét was listed in the Board's records, beginning in January 1998, as an inactive CPA. Forgét renewed his inactive registration on March 5 by submitting an application to the Board. One question on the application asked, "Do you hold yourself out as a CPA in the state of Nebraska?" and reminded the applicant that "[y]ou must have an active permit to do so." *274 Forgét indicated that he did not hold himself out as a CPA.

However, on August 27, 1998, the Board issued a cease and desist notice to Forgét, in connection with Forgét's placement of a telephone directory listing for Forgét's business, the "Forgét Firm," under the yellow pages category, "Accountants—Certified Public." On August 28, Forgét replied to the cease and desist notice, apologized to the Board for the "misunderstanding," and indicated his intent not to list the advertisement in future telephone directories. On September 24, Forgét was directed to provide the Board with a copy of a certified letter to be sent to the telephone directory publisher to cancel the listing. On November 23, the Board, not having received such verification, scheduled a "Show Cause hearing." Forgét was notified at the hearing that the Board regarded his conduct as contrary to Nebraska law.

On November 3, 1999, the Board filed a formal complaint against Forgét. The complaint alleged that Forgét had maintained a telephone directory listing under the category "Accountants—Certified Public." The complaint also alleged that Forgét maintained an Internet Web page on which Forgét used the designation "CPA." The complaint charged Forgét with violation of the Public Accountancy Act and several Board regulations.

A formal hearing was held before the Board on December 1, 1999. Forgét testified at the hearing that he practiced tax law as an attorney and represented taxpayers in front of and against the Internal Revenue Service in contested cases, but did not create financial statements, render opinions on financial statements, or otherwise have an accounting practice. Although Forgét had prepared income tax returns for businesses and individuals, Forgét had not conducted compilations, reviews, or audits, and did not intend to do so.

Forgét's business card, entered into evidence at the formal hearing, identified him as "Gerard `Rod' T. Forgét III, J.D., MBA, LLM, CPA" and "Attorney at Law." The letters "CPA" were marked with an asterisk, and at the bottom of the business card, in smaller type, it was indicated that Forgét was an "inactive member, Nebraska Society of Certified Public Accountants."

The record also contains telephone directory listings for the Forgét Firm, from two different Omaha telephone directories for 1999-2000. One listing was placed in the U.S. West directory, under the category "Accountants—Certified Public," and indicates a "CPA Certificate NE Board of Accountancy." The letters "CPA" are larger and in bolder typeface than the rest of the words on that line. The second listing, placed in the McLeod USA directory under the category "Accountants," indicates a "CPA Certificate Nebraska Board Public Accountancy." The letters "CPA" are in bolder typeface than those on the rest of that line. The Forgét Firm was not listed under the category "Accountants—Certified Public" in the McLeod USA directory, although that category was available. Forgét also had listings in both directories under the category for tax attorneys; neither listing contained a reference to a CPA designation of any kind.

Printouts from Forgét's Web page indicate that the Web page in question was a business homepage for the Forgét Firm, and Forgét was identified as an "Attorney at Law and CPA." Forgét testified that once the contents of the Web page were called to his attention by the Board's formal complaint, he directed the individual who designed Forgét's Web page to modify the content to identify Forgét as a "CPA Registrant," and that the change was made on the date Forgét received the *275 formal complaint. Printouts from the Web page, present in the record, reflect this change, and Forgét testified that those printouts reflected the content of his Web page at the time of the formal hearing.

On January 19, 2001, the Board entered a decision and order finding that Forgét had violated the Public Accountancy Act and the Board's rules and regulations. The Board revoked Forgét's CPA certificate, but suspended the judgment of revocation pursuant to the conditions that (1) Forgét not associate his name or that of his firm with the terms "`certified public accountant'" or "`CPA'" in any manner or form and (2) Forgét would be permitted to refer to his completion of the CPA examination and/or his membership in professional accountant associations only if that reference contained the following statement: "`I passed the Uniform Certified Public Accountants examination on May 8, 1996 but I have not met all the requirements for a permit to practice public accountancy and therefore I am not a CPA.'"

Forgét appealed to the district court pursuant to the Administrative Procedure Act, Neb.Rev.Stat. § 84-901 et seq. (Reissue 1999). See § 1-149 (decisions of Board may be appealed in accordance with Administrative Procedure Act). The court affirmed the decision of the Board. Forgét appeals.

ASSIGNMENTS OF ERROR

Forgét assigns that the court erred in (1) finding that Forgét was not an inactive CPA, (2) finding that Forgét held himself out to the public as a CPA permit holder, (3) finding that Forgét misled and deceived the public by his representations in his advertising, and (4) applying § 1-117 over § 1-122 by giving priority of a general statutory provision over a special provision when the two conflicted.

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Bluebook (online)
658 N.W.2d 271, 265 Neb. 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forget-v-state-ex-rel-state-board-neb-2003.