La. Admin. Code tit. 46 § XIX-1909

Current through Register Vol. 50, No. 9, September 20, 2024

Section XIX-1909 - Hearing

A. The right to examine reports, if any, and evidence, referred to in R.S. 37:81.B, may be exercised by the respondent or the respondent's attorney by submitting a written request to the board's office.

1. A copy of any written materials which will be presented as evidence at the administrative hearing, and if requested the names of individuals who may testify at the hearing, shall be mailed to the person making such written request referred to above, or shall be furnished in person at the board's office if requested, as promptly as possible if available at the time of the request, but shall be provided no later than fifteen working days prior to the date of hearing.

2. Failure to provide the information no later than fifteen working days prior to the date of hearing, after having received a written request referred to herein, shall be grounds for the board to consider a continuance of the hearing if requested by the respondent, but shall not be grounds for dismissal of the charges against the respondent. If no written request is submitted, the board shall not be obligated to consider or grant a continuance of the hearing.

B. In the same manner that the respondent is afforded the right to obtain and examine information and evidence in the preceding Section, complaint counsel shall have the right to obtain and examine information and evidence of the respondent or the respondent's attorney.

C. Hearings shall be conducted in closed session, and shall be conducted by and under the control of the board chair, or a presiding officer appointed by the board chair.

D. In any investigation or pending adjudication proceeding, no party shall serve on any other party more than 25 interrogatories. Each sub-part of an interrogatory shall count as an additional interrogatory. The board chair or presiding officer may, in his discretion, allow more than 25 interrogatories upon receipt of a written motion setting forth the proposed additional interrogatories and the reasons establishing good cause for their use.

E. Objections to interrogatories, and objections to answers to interrogatories, shall set forth in full, immediately preceding each answer or objection, the interrogatory or answer to which objection is being made.

F. Subpoenas issued by the board pursuant to R.S. 37:80.B shall be signed and issued by the executive director of the board, or in his absence a designee of the board. Subpoenas shall be issued upon request of the respondent, complaint counsel, or an investigating officer. The issuance of subpoenas is governed by R.S. 49:956 of the Louisiana Administrative Procedure Act.

G. In any case of adjudication noticed and docketed for hearing, counsel for respondent and complaint counsel may agree, or the board chair or presiding officer may require, that a prehearing conference be held among such counsel, or together with the boards independent counsel, if any, for the purpose of simplifying the issues for hearing and promoting stipulations as to facts and proposed evidentiary offerings which will not be disputed at hearing.

H. Motions for continuance of hearing, for dismissal of proceeding, and all other prehearing motions shall be filed not later than 10 days prior to the date of the hearing. Any response or opposition to any prehearing motion shall be filed within 5 days of the filing of such prehearing motion. For good cause shown, the board chair or presiding officer may waive or modify these requirements. Each prehearing motion shall be accompanied by a memorandum which shall set forth a concise statement of the grounds upon which the relief sought is based and the legal authority therefor.

I. Notwithstanding the provisions of the preceding Section, a continuance of a hearing shall automatically be granted by the executive director of the board upon receipt of written notice from respondent and complaint counsel, or respondent and investigating officer, that both parties mutually agree to a continuance of the hearing. Such written notice shall not be required to be filed within the time period prescribed in §1909 H

J. All pleadings, motions, or other papers filed with the board in connection with a pending adjudication proceeding shall be filed by personal delivery at or by mail to the office of the board and shall by the same method of delivery be concurrently served upon complaint counsel, if filed by or on behalf of the respondent, or upon the respondent or the respondent's counsel if filed by complaint counsel.

K. Any prehearing motion, other than a mutually agreed upon request for continuance as referred to in §1909 I, shall be referred for decision to the board chair or presiding officer for ruling. The board chair or presiding officer, in his discretion, may refer any prehearing motion to the entire board for disposition.

L. Prehearing motions shall be ruled upon on the basis of the written information provided, without oral arguments. However, if the board chair or presiding officer refers the prehearing motion to the entire board for disposition, he may grant an opportunity for oral argument before the entire board, upon written request of respondent or of complaint counsel and on demonstration that there are good grounds therefor.

M. The order of proceedings at a hearing shall be as follows, but may be changed at the discretion of the board chair or presiding officer:

1. statement and presentation of evidence supporting the administrative complaint by complaint counsel, or the investigating officer, or any person designated by the investigating officer;

2. statement and presentation of evidence of the respondent as stipulated in R.S. 37:81.C;

3. rebuttal in support of the complaint;

4. surrebuttal evidence of the respondent;

5. closing statements;

6. board decision. The time in which the decision will be rendered is at the discretion of the board.

N. Any person testifying at a hearing shall be required to testify under oath, or by affirmation subject to the penalties of perjury.

O. The board chair or presiding officer, board members, the respondent and his attorney, and complaint counsel or person presenting the case for the investigating officer, shall have the right to question or examine or cross-examine any witnesses.

P. All evidence presented at a hearing will be considered by the board unless the board chair or presiding officer determines that it is irrelevant, immaterial or unduly repetitious. Evidence may be received provisionally, subject to a later ruling by the board chair or presiding officer. The board chair or presiding officer may in his discretion consult with the entire board in executive session or with independent board counsel in making determinations on evidence.

Q. The final decision of the board in an adjudication proceeding shall be in writing and shall include findings of fact and conclusions of law, and shall be signed by the board chair or presiding officer on behalf of and in the name of the board. Upon issuance of a final decision, a certified copy shall be served upon the respondent and the respondent's counsel, if any, in the same manner of service prescribed with respect to administrative complaints in R.S. 37:81.

R. In addition to the actions the board may take prescribed in R.S. 37:79 and R.S. 37:81.K, the board may order the publication of any action taken against a respondent. If a petition for review has been filed by the respondent, publication shall await the resolution of such review. If the resolution is in favor of the respondent, no publication shall be made.

S. Information concerning any board action against a respondent may be forwarded to the National Association of State Boards of Accountancy (NASBA) Enforcement Information Exchange System for inclusion in their database and reports of disciplinary actions, unless a petition for review has been filed by the respondent in which case the forwarding of information to NASBA shall await the resolution of such review. If the resolution is in favor of the respondent, no information shall be forwarded to NASBA.

T. Rehearings may be granted by the board as specified in R.S. 49:959 of the Louisiana Administrative Procedure Act.

U. Any matters concerning hearings, rehearings, or decisions or orders by the board, not addressed by the Act or these rules shall be governed by applicable provisions of the Louisiana Administrative Procedure Act.

V. Any licensee whose certificate, practice privilege, or firm permit issued by the board is subsequently suspended or revoked may be required to return such certificate, registration or firm permit.

La. Admin. Code tit. 46, § XIX-1909

Adopted by the Department of Commerce, Board of Certified Public Accountants, January 1974, promulgated LR 6:9 (January 1980), amended by the Department of Economic Development, Board of Certified Public Accountants, LR 23:1126 (September 1997), LR 26:1988 (September 2000), amended by the Office of the Governor, Board of Certified Public Accountants, LR 33:2636 (December 2007), Amended by Office of the Governor, Board of Certified Public Accountants, LR 431909 (10/1/2017), Amended LR 49654 (4/1/2023).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:71 et seq.