ORDERS:
REMAND ORDER
I. Introduction
Clyde L. Hiers (Hiers) is licensed as a Certified Public Accountant by the State of South Carolina. Pursuant to its licensing
authority, the South Carolina Department of Labor, Licensing and Regulation, Board of Accountancy (Board) issued a
written decision on November 15, 2002, which held Hiers liable for a fine of $500, publicly reprimanded him, and directed
him to "immediately cease and desist from using the designation 'Master of Federal Tax Laws and Financial Planning'."
Hiers disagreed with the decision and brought this appeal to the Administrative Law Judge Division. However, before a
decision can be reached on the merits, a remand is required to clarify the order being appealed.
II. Analysis
In both the Appellant's Brief and the Respondent's Brief, the only issues argued are the following:
Did the South Carolina State Board of Accountancy err in finding that the wording on the Heir's letterhead and curriculum
vitae was false, misleading, deceptive, and tending to promote unsupported claims?
Did the South Carolina State Board of Accountancy err in finding that the Appellant had solicited business or advertised
through the use of his letterhead or curriculum vitae?
However, below, a second issue, the propriety of Hiers' actions in issuing a 1099-C to a former client, was hotly contested.
In deciding whether Hiers' actions relative to the 1099-C created a violation, the Board's order reaches an ambiguous
result.
Number 5 of the Findings of Fact holds that "[t]he Board does not find from the evidence presented that the Respondent's
actions in this instance was a violation of the Practice Act." The same finding is made in Findings of Fact, number 6.
However, these findings cannot be read in isolation.
Rather, as to the 1099-C actions, additional finding hold that "the Respondent's actions were unprofessional and fell below
the standard of conduct expected of certified public accountants licensed to practice in this State." (Emphasis added).
Further, the findings hold that the "Respondent's intent was to cause harm." (Emphasis added). These findings are critical
in light of Conclusions of Law, number 2. There the Board concludes that "[t]he Respondent has violated S.C. Code Ann.
§40-1-110(1)(f) (Supp. 1999) in that the Respondent, as evidenced by the conduct described above, has committed a
dishonorable, unethical, or unprofessional act that is likely to deceive, defraud, or harm the public. (Emphasis added).
Thus, on one hand, the findings of fact profess to state the 1099-C actions did not create a violation of the Practice Act.
However, on the other hand, the same findings read in light of the conclusions of law hold that the 1099-C actions were
unprofessional and were intended to cause harm and "as evidenced by the conduct described above," violates S.C. Code
Ann. §40-1-110(1)(f).
Thus, the order is unclear on whether Hiers' actions relative to the 1099-C incident do or do not create a violation.
Therefore, in the interest of fairness and justice to all parties, a remand is required.
III. Order
The following order is entered:
1. The Board shall issue a new order which plainly expresses its determinations on the actions of Hiers relative to the 1099-C.
2. When such order has become final with no outstanding motions before the Board, Hiers shall promptly file the decision
with the undersigned judge.
3. Within 15 days of the date of filing of the Board's new order with the ALJ, Heirs may file a supplemental brief
addressing any matters presented in the Board's new order.
4. At the expiration of the time period allotted for the filing of Hiers' brief, counsel for LLR may file a supplemental brief
with the undersigned judge addressing any matters presented in the Board's new order.
5. No reply briefs will be permitted.
6. Should the ALJ decide that oral argument is appropriate, notice of the time and place will be provided to the parties;
otherwise the matter will decided on the briefs filed.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: July 25, 2002
Columbia, South Carolina |
