WSR 98-01-226

PROPOSED RULES

BOARD OF ACCOUNTANCY

[Filed December 24, 1997, 11:56 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-22-074.

Title of Rule: WAC 4-25-540 Brief adjudicative proceedings.

Purpose: To grant a person appealing to the courts for relief from an administrative review an objective unbiased hearing.

Statutory Authority for Adoption: RCW 18.044.055 [18.04.055](1).

Statute Being Implemented: RCW 34.05.482.

Summary: To provide a process for persons to appeal a staff action denying license or certificate application, good character rulings, agency ethics rulings, or a determination of default on federally or state-guaranteed student loans.

Reasons Supporting Proposal: (1) The existing rule allows persons aggrieved by a brief adjudicative proceedings order to appeal to the full board for administrative review. Under such a process, the board would not be able to grant a person appealing to the courts for relief from an administrative review an objective unbiased hearing because the full board had already heard the matter. Amendment of the rule will provide:

A process for a person to appeal a brief adjudicative proceedings order to the board's vice-chair thus not compromising the entire board.

Full due process to persons under the authority of the Board of Accountancy.

(2) RCW 18.04.420 (governing the license or certificate suspension for nonpayment or default on education loan or scholarship) requires that the board provide the person an opportunity for a brief adjudicative proceeding. Amendment of the rule will add student loan default to the list of matters for which the agency will use the brief adjudicative proceeding process as dictated by statute.

(3) Existing board policy requires petitioners appealing an action by board staff denying certification or licensure to make their appeal in writing within thirty days to preserve their right to review. The board seeks to place policy in the rule to ensure that petitioners are fully aware of board practices.

(4) The existing rule requires petitioners for administrative review to make their appeal orally or in writing, within twenty-one days after "receipt" of the brief adjudicative proceeding order. The board seeks to clarify that the appeal must be received by the board, orally or in writing, within twenty-one days after the brief adjudicative proceedings order is posted in the United States mail to be consistent with the requirements of chapter 34.05 RCW, the Administrative Procedure Act.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Dana M. McInturff, CPA, 210 East Union, Suite A, Olympia, (360) 664-9194.

Name of Proponent: Board of Accountancy, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 34.05 RCW (Administrative Procedure Act) requires agencies to adopt brief adjudicative proceedings to resolve some limited administrative issues. The board uses brief adjudicative proceedings to provide a process to persons to appeal staff actions denying certification or licensure.

Proposal Changes the Following Existing Rules: Amendment of the rule will:

(1) Provide a process for a person to appeal a brief adjudicative proceedings order to the board's vice-chair rather than the entire board.

(2) Add student loan default to the list of matters for which the agency will use the brief adjudicative proceeding process as dictated by statute.

(3) Add that an appeal of a staff denial must be received by the board, in writing, within thirty days after the decision by board staff is posted in the United States mail.

(4) Clarify that a petition for administrative review must be received by the board, orally or in writing, within twenty-one days after the brief adjudicative proceedings order is posted in the United States mail.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule will not have more than minor economic impact on business.

RCW 34.05.328 does not apply to this rule adoption. The Board of Accountancy is not one of the agencies required to submit to the requirements of RCW 34.05.328.

Hearing Location: Bank of California Building, 900 4th Avenue, 24th Floor, Attorney General Training Center, Seattle, WA, on Thursday, January 29, 1998, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Cheryl Sexton by January 26, 1998, TDD (800) 833-6384, or (360) 664-9194.

Submit Written Comments to: Dana M. McInturff, P.O. Box 9131, Olympia, WA 98507-9131, FAX (360) 664-9190, by January 28, 1998.

Date of Intended Adoption: January 29, 1998.

December 23, 1997

Dana M. McInturff, CPA

Executive Director

AMENDATORY SECTION (Amending WSR 93-12-074, filed 5/27/93, effective 7/1/93)

WAC 4-25-540 What are brief adjudicative proceedings((.))? ((The board adopts the brief adjudicative proceedings procedures permitted by RCW 34.05.482 through 34.05.494 to provide appeal from staff denials of license or certificate applications, good character rulings, agency ethics rulings, and such other matters as the board may decide to address in this manner. The presiding officer for such proceedings shall be the executive director who shall render findings and an order after consulting with one or more board members. Persons aggrieved by a brief adjudicative proceedings order may appeal to the full board for administrative review. Such appeal must be made, orally or in writing, within twenty-one days after receipt of the brief adjudicative proceedings order.)) For certain types of decisions, the board has adopted an appeal process authorized by chapter 34.05 RCW which is called a brief adjudicative proceeding. Decisions to which this appeal process will be applied are:

Denials of license or certificate application;

Good character rulings;

Agency ethics rulings; and

A determination whether a licensee or certificateholder has been certified by a lending agency and reported for nonpayment or default on a federally or state-guaranteed student loan or service conditional scholarship.

To appeal a decision you must submit your request for a brief adjudicative proceeding, in writing, to the board within thirty days after the decision by board staff is posted in the U.S. mail. The residing officer for the brief adjudicative proceedings is the executive director. After consulting with a board member, the executive director renders a decision either upholding or overturning the decision by board staff. This decision, called an order, is mailed to you.

If you do not receive satisfaction from the brief adjudicative proceeding, you may appeal to the board's vice-chair. This appeal process is called an administrative review. Your appeal must be received by the board, orally or in writing, within twenty-one days after the brief adjudicative proceedings order is posted in the U.S. mail. The vice-chair considers your appeal and either upholds or overturns the brief adjudicative proceeding decision. The vice-chair decision, also called an order, is mailed to you.