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Oregon: “Discipline matrix” adequate for informing accused of sanctions

A board's decision to impose a two-year suspension, a $5,000 fine, and $31,768 in contested case costs on a certified public accountant was not made unfair by procedural irregularities, the Court of Appeals of Oregon held April 22 (Gustafson v. Board of Accountancy).

The CPA, Kenneth Gustafson, admitted that he had deposited a tax refund check of a client in his own account without authorization, and subtracted his invoice from the amount before conveying the balance to the client—a violation of the Board of Accountancy’s standards of professional conduct.

An administrative law judge recommended a 60-day suspension but the state board, comparing Gustafson’s action to embezzlement that in the case of an attorney, would merit disbarment, decided on a two-year suspension.

Gustafson requested evidence of the board director’s claim that the penalty was based on other cases in which disciplinary orders were not published. The board countered with a penalty “matrix” showing general categories of discipline and range of sanctions, and a table indicating previous discipline imposed for different licensees’ violations of specific rules and statutes, but without the names of disciplined licensees.

When Gustafson sought the board’s minutes and final orders in disciplinary cases, the board refused on grounds that complying would be unduly burdensome.

In his appeal, Gustafson contended that the board failed to comply with statutes and rules governing production of information, thus impairing the fairness of the proceedings because he was prevented from meaningfully responding to the board’s sanction proposal—in his view, the central issue.

He also argued that the board violated transparency requirements by engaging in off-the-record analysis about a pending case, thus depriving him of a fair proceeding.

The court disagreed, stating that the board adequately responded by supplying its penalty matrix giving its guidelines for disciplinary sanctions.

“Nothing precludes the board from relying on its own knowledge of its prior decisions without placing those prior decisions in the evidentiary record,” the court said.