Troshynski v. STATE BD. OF PUB. ACCOUNTANCY

701 N.W.2d 379, 270 Neb. 347
CourtNebraska Supreme Court
DecidedAugust 5, 2005
DocketS-04-510
StatusPublished

This text of 701 N.W.2d 379 (Troshynski v. STATE BD. OF PUB. ACCOUNTANCY) 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
Troshynski v. STATE BD. OF PUB. ACCOUNTANCY, 701 N.W.2d 379, 270 Neb. 347 (Neb. 2005).

Opinion

701 N.W.2d 379 (2005)
270 Neb. 347

John A. TROSHYNSKI, appellee
v.
NEBRASKA STATE BOARD OF PUBLIC ACCOUNTANCY, an agency of the State of Nebraska, appellant.

No. S-04-510.

Supreme Court of Nebraska.

August 5, 2005.

*381 Jon Bruning, Attorney General, and Lynn A. Melson, Lincoln, for appellant.

D.C. Bradford and Justin D. Eichmann, of Bradford & Coenen, Omaha, for appellee.

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

STEPHAN, J.

The Nebraska State Board of Public Accountancy (the Board) appeals from an order of the district court for Lancaster County reversing the Board's decision to deny John A. Troshynski a certificate of *382 certified public accountant (CPA) based upon his prior felony conviction. We are asked to decide whether Neb.Rev.Stat. § 1-114 (Cum. Supp. 2004) prohibits the Board from exercising discretion to refuse a certificate when an applicant meets the statute's enumerated requirements. We determine that the statute does not prohibit the Board from using its rulemaking powers to establish character and fitness standards, but conclude that it has not done so, and we therefore affirm the judgment of the district court.

BACKGROUND

In 1990, Troshynski pled guilty to a felony charge of conspiracy to distribute cocaine and was sentenced to 46 months' incarceration and 3 years of supervised release. During his incarceration, Troshynski earned his associate's degree and successfully completed drug and alcohol recovery programs. His supervised release was terminated 1 year early in May 1996.

Following his release, Troshynski earned a bachelor's degree in business administration from Creighton University. Subsequently, he worked for various firms, including an accounting firm where he was employed for 31/2 years. At least two of the partners at this firm knew of his felony conviction and nonetheless recommended him for the position of controller with one of the firm's clients. In 1996, Troshynski submitted an application to the Board to sit for the CPA examination. On that application, he disclosed his felony conviction. In November 1999, Troshynski sat for and passed the CPA examination, and on September 8, 2000, the Board received his application for a CPA certificate. On this application, Troshynski again disclosed his felony conviction. At the Board's request, he also provided additional information, letters of explanation, and certain federal court documents related to his conviction and sentence.

In a letter dated May 18, 2001, the Board advised Troshynski that it had denied his application for a certificate at its April 30-May 1 meeting. No reason for the denial was stated. Troshynski appealed the Board's decision to the district court pursuant to the Administrative Procedure Act. The district court determined that the Board's use of discretion in denying Troshynski's application was a quasi-judicial function, entitling Troshynski to due process rights. The court therefore reversed the Board's decision and remanded the case for a full and fair hearing after proper notice.

On April 4, 2003, the Commission issued a notice of hearing directed to Troshynski and his attorney, indicating that pursuant to the order of the district court, it would conduct a hearing on May 8, 2003, "with respect . . . to [Troshynski's] application filed with the Board on September 8, 200[0]." The notice did not provide any further specification regarding the facts or issues to be addressed at the hearing. After the hearing, the Board issued a final order declaring that based upon Troshynski's 1990 felony conviction, he was not entitled to the issuance of a CPA certificate. The Board concluded that although "the technical requirements for the issuance of the certificate may have been met, the Board has the right to pass upon the fitness of the applicant and to take into consideration the prior conviction of a felony of the nature committed by the respondent."

Troshynski appealed again. In its de novo review, the district court concluded that the Board was statutorily mandated to issue a certificate once an applicant met the criteria of § 1-114. The court also noted that Troshynski had demonstrated, through his accounting career and his personal *383 life, that he would likely achieve a high degree of moral and ethical integrity as a certified public accountant. The court reversed the Board's decision and remanded the matter with instructions that the Board grant Troshynski a certificate of certified public accountant.

ASSIGNMENTS OF ERROR

The Board assigns that the district court erred in (1) determining that the Board lacked discretion to grant or refuse a certificate of certified public accountant and (2) suggesting that Troshynski had demonstrated the requisite fitness for the issuance of a certificate of certified public accountant.

STANDARD OF REVIEW

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Zwygart v. State, ante 270 Neb. p. 41, 699 N.W.2d 362 (2005). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Forgét v. State, 265 Neb. 488, 658 N.W.2d 271 (2003).

Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court. Lein v. Nesbitt, 269 Neb. 109, 690 N.W.2d 799 (2005). Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. AMISUB v. Board of Cty. Comrs. of Douglas Cty., 244 Neb. 657, 508 N.W.2d 827 (1993).

ANALYSIS

The Public Accountancy Act is codified at Neb.Rev.Stat. §§ 1-105 to 1-171 (Reissue 1997 & Cum. Supp. 2004) and provides for the creation of the Board in § 1-107. The stated purpose of the Board is

to protect the welfare of the citizens of the state by assuring the competency of persons regulated under the Public Accountancy Act through (1) administration of certified public accountant examinations, (2) issuance of certificates and permits to qualified persons and firms, (3) monitoring the requirements for continued issuance of certificates and permits, and (4) disciplining certificate and permit holders who fail to comply with the technical or ethical standards of the public accountancy profession.

§ 1-105.01.

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Troshynski v. Nebraska State Board of Public Accountancy
701 N.W.2d 379 (Nebraska Supreme Court, 2005)

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Bluebook (online)
701 N.W.2d 379, 270 Neb. 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/troshynski-v-state-bd-of-pub-accountancy-neb-2005.