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Ake v. Bureau of Professional and Occupational Affairs

May 20, 2009

KEVIN ALLEN AKE, PETITIONER
v.
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF ACCOUNTANCY, RESPONDENT



The opinion of the court was delivered by: Judge LEAVITT*fn1

Submitted: December 26, 2008

BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Kevin Allen Ake petitions for review of an adjudication of the Bureau of Professional and Occupational Affairs, State Board of Accountancy (Board), which revoked Ake's certificate of certified public accountant and license to practice public accounting in Pennsylvania (collectively, CPA credentials) because of his 2002 criminal harassment conviction in the State of Illinois. Ake contends that the Board abused its discretion by imposing the maximum penalty authorized by Section 9.1(a) of the CPA Law, Act of May 26, 1947, P.L. 318, added by Act of September 2, 1961, P.L. 1165, as amended, 63 P.S. §9.9a(a). We agree. Accordingly, we vacate the Board's order and remand the matter for further consideration.

The facts are as follows. Ake earned his CPA credentials in Pennsylvania in 1995 and was employed by various accounting firms until he relocated to Illinois in 1998. Ake did not renew his Pennsylvania license after he moved, and it expired on April 30, 2000. In early 2007, Ake applied for reinstatement of his Pennsylvania CPA credentials, and in this application Ake identified a 2002 harassment conviction in the State of Illinois. Nevertheless, the Board reinstated Ake's CPA credentials after he completed 100 hours of continuing accountancy education.

On August 28, 2007, the Board initiated an enforcement action against Ake with a two-count order to show cause. Because of his 2002 conviction, Ake's CPA license was subject to suspension, revocation or other penalty under Section 9.1(a)(5) of the CPA Law*fn2 and Section 9124(c)(1) of the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §9124(c)(1).*fn3 Ake filed an answer admitting the fact of his conviction and requesting a hearing to present mitigating evidence. He urged the Board to exercise leniency on the grounds that his crime was unrelated to the practice of accounting; he had truthfully disclosed his conviction to state boards and prospective employers; and he needed his CPA credentials to practice his profession and to maintain gainful employment. A formal hearing was conducted on December 11, 2007, at which Ake appeared pro se.

At the hearing, Ake appeared as the Board's Prosecution Division's sole witness. Ake explained that after passing the CPA examination in 1995, he worked for several years in Pennsylvania. In 1998, he moved to Chicago, where he worked for an accounting firm. In August 2000, Ake took up residence at a YMCA in Cook County, Illinois, so that he could assist an elderly member of his church who lived there. In early March 2001, Ake was evicted from the YMCA as was the member of his church, who was in his later 90's at the time. Ake believed these evictions resulted from Ake's efforts to begin a bible study program at the YMCA. Based upon this belief, Ake made a series of telephone calls to the executive director of the YMCA, described by Ake as follows:

Q: Who'd you make the phone calls to?

A: The Executive Director, Ms. Arnold -- Jan Arnold -- who I was talking to since I had moved into the Y back in August 2000, requesting to have the Bible Study. I had numerous conversations with her throughout this time.

Q: Well, what was the gist of the conversations then with her?

A: Basically, I basically shared what the Bible talked about was -- with that kind of unnatural lifestyle -- about lesbians and homosexuality.

Q: Well, at the time, did you know she was a lesbian? That you were actually talking about lesbianism with a woman who was a lesbian?

A: Oh, yeah. I knew at the time. I didn't know when I first moved in.

Notes of Testimony, 12/11/07, at 14 (N.T. ___); Reproduced Record at 47a (R.R. ___). The statements were not made directly to Ms. Arnold, as Ake further explained:

A: I left them on a tape machine.

Q: Oh.

A: I didn't speak to her directly. I left them on an answering machine. I didn't say anything threatening. I just made voicemail messages based on my religious -- strong religious convictions after I was evicted from my own organization. I consider myself a Christian.

N.T. 16; R.R. 49a.

In April 2001, Ake was arrested and charged with the felony offense of hate crime under Section 12-7.1 of Act 5 of Chapter 720 of the Illinois Compiled Statutes, 720 ILCS 5/12-7.1.*fn4 He was incarcerated for two weeks until he was able to post bail. In July 2002, Ake was convicted. The court sentenced Ake to 14 days of imprisonment, which was served by the 14 days he spent in jail in 2001 before he posted bail. The court also ordered a fine of $2,000 and 30 months of probation. The terms of his probation restrained Ake from contact with Ms. Arnold; required Ake to undergo psychological counseling, which he did through the Veterans' Administration; and required Ake to complete 200 hours of community service, which he performed at the Salvation Army. By February 2005, Ake had completed all of the conditions of his sentence and probation.

In July 2006, Ake received an offer of employment that was conditioned upon his becoming credentialed as a CPA in Illinois. He was advised by the Illinois Department of Financial and Professional Regulation that he needed to reactivate his Pennsylvania license in order to obtain a CPA certificate and license in Illinois by reciprocity. After his Pennsylvania license was reactivated, his Illinois license was also reinstated.

The Prosecution Division's case consisted of Ake's testimony and records of his Illinois conviction and sentencing. It then rested without recommending a sanction, leaving that matter to the Board's discretion.

The hearing officer then offered Ake the opportunity to present evidence in his own behalf. He testified as follows:

I apologize if I've hurt anybody or offended somebody, but I stand on my firm religious conviction, beliefs. And even [in] our own tax code it says being married is one man and one woman.. There's a lot of things I just don't understand. And I'm sad. And I am just a good accountant. I like accounting. I haven't done anything as far as ...


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