Walsh v. State

regarding the stock, including the potential sale of the corpo-
rations. because kent is adopting inconsistent positions, his
claim is judicially estopped. The district court did not err in
granting summary judgment.
AFFirmed.
michAel p. WAlsh , AppellAnt, v. stAte oF neBrAsKA
ex rel . stAte BoArd oF puBlic AccountAncy
oF the stAte oF neBrAsKA, Appellee .
759 N.W.2d 100
Filed January 9, 2009. 	No. S-07-1083.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
2. Administrative Law: Accounting: Disciplinary Proceedings. The Nebraska
State board of Public Accountancy is authorized to discipline the holders of cer-
tificates and permits who fail to comply with the technical or ethical standards of
the public accountancy profession.
3. Administrative Law: Accounting. The Nebraska State board of Public
Accountancy has the authority to adopt and promulgate rules and regulations
of professional conduct appropriate to establish and maintain a high standard of
integrity and dignity in the profession of public accountancy and to govern the
administration and enforcement of the Public Accountancy Act.
4. Administrative Law: Accounting: Disciplinary Proceedings. After notice and
hearing, the Nebraska State board of Public Accountancy may take disciplinary
action against a permitholder for, among other reasons, violation of a rule of
professional conduct adopted and promulgated by the board under the authority
granted by the Public Accountancy Act.
5. ____: ____: ____. The types of disciplinary action available to the Nebraska State
board of Public Accountancy include reprimand, suspension, probation, place-
ment of limits on a permit or certificate, revocation of a permit or certificate, and
imposition of a civil penalty and costs.
6. Administrative Law. An administrative body has no power or authority other
than that specifically conferred by statute or by construction necessary to accom-
plish the plain purpose of the act.
7. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
1034 	276 NebRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

8. ____. To be considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the party asserting
the error.
Appeal from the District Court for lancaster County: pAul
d. merritt, Jr ., Judge. Affirmed.
John 	P. 	Raynor, 	of 	Raynor, 	Rensch 	& 	Pfeiffer, 	for
appellant.
Robert T. Grimit and John J. heieck, of baylor, evnen,
Curtiss, Grimit & Witt, l.l.P., for appellee.
Noel l. Allen, of Allen & Pinnix, P.A., for amicus curiae
National Association of State boards of Accountancy.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAcK, and miller-lermAn, JJ.
Wright, J.
I. NATURe OF CASe
The Nebraska State board of Public Accountancy (board)
imposed sanctions on Michael P. Walsh for violation of its
rules. The board found that Walsh improperly advertised that
he was a certified public accountant (CPA) without using a
disclaimer to indicate that he was an “inactive registrant.” The
board reprimanded Walsh and placed him on probation for 3
years, with the condition that he include the disclaimer along
with any use of the CPA designation. The board also found
that Walsh impersonated his brother-in-law to obtain insurance
information, an act which qualified as a “discreditable act”
under the board’s rules. The board reprimanded Walsh and
placed him on probation for a concurrent term of 3 months.
The lancaster County District Court affirmed the order of the
board. Walsh appeals.
II. SCOPe OF ReVIeW
[1] A judgment or final order rendered by a district court in
a judicial review pursuant to the Administrative Procedure Act
may be reversed, vacated, or modified by an appellate court for
errors appearing on the record. When reviewing an order of a
district court under the Administrative Procedure Act for errors
WAlSh v. STATe 	1035
Cite as 276 Neb. 1034

appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Nothnagel v.
Neth, ante p. 95, 752 N.W.2d 149 (2008).
III. FACTS
Walsh became an active CPA in Nebraska in 1977 and
continued in that status through June 30, 2002. Walsh did not
meet the requirements for continuing education, and he applied
for and was issued an inactive permit for the period of July 1,
2002, to June 30, 2004. he continued to request and receive
biennial inactive permits through June 30, 2008.
In 2004, the board was advised that Walsh was violating its
rules and regulations by advertising that he was a CPA with-
out including a disclaimer that he was an inactive registrant.
The yellow pages of a 2004 Omaha-area telephone directory
included a listing for “CPA MIChAel P WAlSh” under
“Accountants-Certified Public.” The board issued a “cease
and desist notice” to Walsh, ordering him to immediately stop
use of the CPA designation in any manner. he was directed to
cancel the listing for future telephone directories and to send
the board a copy of a certified letter and return receipt to
prove that he asked the telephone directory company to cancel
the listing.
In response, Walsh allegedly sent a letter on February 23,
2005, to the telephone directory company requesting that he
no longer be listed under the CPA classification in the yellow
pages. A copy of the letter was received by the board on March
1. Notwithstanding the letter, Walsh’s listing continued and was
renewed in 2005 and 2006. Walsh paid the bill for the listing
each year.
In July 2005, the board received a letter from Stephen F.
Teiper, who was Walsh’s brother-in-law, which accused Walsh
of impersonating Teiper on the telephone to obtain financial
information from Teiper’s insurance company. According to
Teiper, Walsh identified himself as Teiper and gave the insur-
ance company Teiper’s Social Security number. Walsh admitted
that he had impersonated Teiper in order to obtain financial
information about Teiper’s accounts.
1036 	276 NebRASkA RePORTS

The board filed a complaint against Walsh on March 6,
2006, for violation of the board’s rules and regulations in two
respects. The complaint alleged that Walsh (1) held himself out
to the public as a permitholder when he advertised under the
“Accountants-Certified Public” category in the telephone direc-
tory without including the disclaimer that he was inactive and
(2) engaged in a discreditable act when he impersonated Teiper
to obtain information from his insurance company.
At a hearing before the board, Walsh acknowledged that he
continued to renew his listing in the CPA section of the tele-
phone directory without the disclaimer on advice of counsel
that he was permitted to do so, even though he was inactive.
Walsh acknowledged that he had intentionally and willfully
ignored the board’s policy requiring use of the disclaimer
in advertising.
Walsh also acknowledged that he had identified himself to
the insurance company as Teiper. Walsh said that Teiper had
provided his Social Security number and date of birth to allow
Walsh to obtain information from the insurance company on
Teiper’s behalf.
The board found that Walsh had intentionally and with
knowledge of the board’s rules and regulations violated the
rules by using “Certified Public Accountant” or “CPA” with-
out the disclaimer indicating that he was an inactive regis-
trant. As a sanction, the board reprimanded Walsh and placed
him on probation for 3 years with the condition that he cease
using “Certified Public Accountant” or “CPA” within 30 days
on his business cards, letterhead, advertising, tax returns,
checks, or other written material provided to the public,
unless it was also accompanied with the disclaimer “inac-
tive registrant.”
The board also found that Walsh had committed a discredit-
able act when he lied to the insurance company and affirma-
tively represented that he was Teiper. The board concluded
that Walsh’s conduct in impersonating a third party to secure
financial information about that third party was reprehensible
and reflected adversely on Walsh’s fitness to engage in the
practice of public accountancy. As a sanction, the board rep-
rimanded Walsh and placed him on probation for a term of
WAlSh v. STATe 	1037
Cite as 276 Neb. 1034

3 months to run concurrently to the previous sanction. he was
also ordered to obtain 4 hours of continuing education in ethics
by December 22, 2006. The board ordered Walsh to pay costs
and expenses not to exceed $3,000 within 6 months.
Walsh appealed to the lancaster County District Court,
which affirmed the board’s order in its entirety.
IV. ASSIGNMeNTS OF eRROR
Walsh assigns the following errors, which we have consoli-
dated and restated: Concerning the charge that he violated the
board’s rules by including the CPA designation in his advertis-
ing, Walsh claims that the district court and the board erred
(1) in finding that the board had subject matter jurisdiction
over Walsh’s tax return business, (2) in not finding that the
board’s rules enlarge and modify the enabling statutes, (3) in
not finding that the board’s actions violated Walsh’s due proc-
ess rights when the board found he violated a rule not named
in the complaint, and (4) in not finding the requirement of
using the disclaimer “inactive registrant” violates Walsh’s First
Amendment right to free speech under Central Hudson Gas &
Elec. v. Public Serv. Comm’n, 447 U.S. 557, 100 S. Ct. 2343,
65 l. ed. 2d 341 (1980).
Concerning the discreditable acts charge, Walsh claims that
the district court and the board erred (1) in not finding that
288 Neb. Admin. Code, ch. 5, § 007.01 (2005), is unconsti-
tutionally vague; (2) in finding there was a sufficient nexus
between the practice of public accountancy and Walsh’s behav-
ior for the board to discipline him; and (3) in not dismissing
the discreditable acts charge when the board denied Walsh his
“Seventh Amendment” right to confront his accuser.
V. ANAlySIS
[2,3] We begin with a review of the Public Accountancy Act,
Neb. Rev. Stat. §§ 1-105 to 1-171 (Reissue 2007) (Act), and
the board’s rules and regulations, which govern the practice
of public accountancy in Nebraska. The board’s purpose is
“to protect the welfare of the citizens of the state by assuring
the competency of persons regulated” under the Act through
administration of CPA examinations, issuance of certificates
1038 	276 NebRASkA RePORTS

and permits, and monitoring the requirements for continued
issuance of certificates and permits. § 1-105.01. The board
is also authorized to discipline the holders of certificates and
permits who fail to comply with the technical or ethical stan-
dards of the public accountancy profession. Zwygart v. State,
273 Neb. 406, 730 N.W.2d 103 (2007), citing § 1-105.01. The
board has the authority to adopt and promulgate “rules and
regulations of professional conduct appropriate to establish
and maintain a high standard of integrity and dignity in the
profession of public accountancy and to govern the adminis-
tration and enforcement of the . . . Act.” § 1-112. See, also,
Zwygart, supra.
A permit to engage in the practice of public accountancy
is issued by the board to persons who hold certificates issued
by the board and who have met experience requirements.
§ 1-136(1). Permits for certificate holders may be renewed
biennially for certificate holders and registrants in good stand-
ing. § 1-136(2)(b).
A certificate holder or registrant who has not lost his or
her right to issuance or renewal of a permit and “who is not
actively engaged in the practice of public accountancy in this
state may file a written application with the board to be classi-
fied as inactive.” § 1-136(4). The person is then carried on an
“inactive roll” and may be issued a current permit upon appli-
cation and payment of the current permit fee. Id.
[4,5] The “‘[p]ractice of public accountancy’” is defined
in 288 Neb. Admin. Code, ch. 3, § 001.17 (1995), as “the
performance or offering to perform by a person holding him-
self out to the public as a permit holder . . . of one or more
kinds of services involving . . . the preparation of tax returns
or the furnishing of advice on tax matters.” Whether active
or inactive, a permitholder “shall be styled and known as a
certified public accountant and may also use the abbrevia-
tion C.P.A.” § 1-122. however, the board’s rules provide that
when an inactive registrant uses “Certified Public Accountant”
or “CPA” with his or her name, he or she shall also use “the
disclaimer ‘Inactive Registrant’ in parentheses immediately
after the title or abbreviation.” 288 Neb. Admin. Code, ch. 7,
§ 003.01 (2007). After notice and hearing, the board may take
WAlSh v. STATe 	1039
Cite as 276 Neb. 1034

disciplinary action against a permitholder for, among other
reasons, violation of a rule of professional conduct adopted
and promulgated by the board under the authority granted by
the Act. § 1-137(4). The types of disciplinary action avail-
able to the board include reprimand, suspension, probation,
placement of limits on a permit or certificate, revocation of
a permit or certificate, and imposition of a civil penalty and
costs. See § 1-148.
1. A dvertising chArge
(a) Subject Matter Jurisdiction
Walsh asserts that the board did not have subject matter
jurisdiction over him because the only service he provided to
clients was the completion of tax returns. This assignment of
error has no merit. As noted earlier, the board is authorized
to discipline the holders of certificates and permits who fail
to comply with the technical or ethical standards of the public
accountancy profession. Zwygart v. State, 273 Neb. 406, 730
N.W.2d 103 (2007). Walsh used the “CPA” designation in his
advertising and, therefore, submitted himself to the jurisdiction
of the board.
The definition of the “‘[p]ractice of public accountancy’” in
the board’s rules includes the service of preparing tax returns.
288 Neb. Admin. Code, ch. 3, § 001.17. Thus, the board has
jurisdiction over those persons who hold themselves out as
permitholders and who prepare tax returns. by advertising in
the telephone directory as a CPA and tax preparer, Walsh held
himself out as a CPA, and he was subject to the jurisdiction of
the board.
(b) board’s Rules
Walsh next claims that the board’s rules enlarge and modify
the enabling statutes. As previously noted, the board has the
authority to adopt and promulgate rules and regulations of pro-
fessional conduct and to govern the administration and enforce-
ment of the Act. See Zwygart, supra. See, also, §§ 1-108 and
1-112. State law provides a procedure for the adoption of rules
and regulations that are “designed to implement, interpret, or
1040 	276 NebRASkA RePORTS

make specific the law enforced or administered” by an agency.
Neb. Rev. Stat. § 84-901(2) (Reissue 2008).
[6] An administrative body has no power or authority other
than that specifically conferred by statute or by construction
necessary to accomplish the plain purpose of the act. Brunk
v. Nebraska State Racing Comm., 270 Neb. 186, 700 N.W.2d
594 (2005). We have often held, however, that an administra-
tive agency may not employ its rulemaking power to modify,
alter, or enlarge provisions of a statute which it is charged with
administering. Id. In this case, the board is charged by statute
with “protect[ing] the welfare of the citizens of the state by
assuring the competency of persons regulated” under the Act.
See § 1-105.01. The board has the authority to adopt rules that
will “make specific” the laws which it is directed to enforce.
See § 84-901(2). It has the authority to discipline certificate
holders and permitholders who fail to comply with the techni-
cal or ethical standards of the public accountancy profession.
Zwygart, supra. See, also, § 1-105.01.
The board’s rules provide: “Whenever using ‘Certified
Public Accountant’ or ‘CPA’ with his or her name, an inac-
tive registrant shall use the disclaimer ‘Inactive Registrant’ in
parentheses immediately after the title or abbreviation.” 288
Neb. Admin. Code, ch. 7, § 003.01. The district court found
that the board’s restrictions on the advertisement of inactive
registrants and the requirement of the use of the disclaimer
serve the fundamental purpose of the Act in ensuring that the
public is able to distinguish among those who are permit-
ted to practice public accountancy and those who are not.
We agree.
The rules adopted by the board do not enlarge or modify
the Act. The board is authorized to promulgate rules which
allow it to meet the purpose of ensuring the competency of
persons practicing public accountancy. There is no merit to
Walsh’s argument.
(c) Due Process
Walsh also argues that his due process rights were vio-
lated because the complaint charged that he had violated an
WAlSh v. STATe 	1041
Cite as 276 Neb. 1034

advertising rule, but he was found to have violated the rule
requiring a disclaimer.
The complaint charged that Walsh had violated 288 Neb.
Admin. Code, ch. 3, § 001.09 (1995), which defines the phrase
“‘[h]olding out to the public as a permit holder’” as follows:
[A]ny representation that a person holds a permit to
practice made in connection with an offer to perform or
the performance of services to the public. Any such rep-
resentation is presumed to invite the public to rely upon
the professional skills implied by the permit in connec-
tion with services offered to be performed. For purposes
of this definition and these rules, a representation shall
be deemed to include any oral or written communication
conveying that a licensee holds a permit, including the
use of titles or legends displayed in letterheads, business
cards, office doors, advertisements, and listings.
Walsh argues that his due process rights were violated
because he was actually found to have violated 288 Neb.
Admin. Code, ch. 7, § 003.01, which provides: “Whenever
using ‘Certified Public Accountant’ or ‘CPA’ with his or her
name, an inactive registrant shall use the disclaimer ‘Inactive
Registrant’ in parentheses immediately after the title or abbre-
viation.” he claims that he was never given notice of the dis-
claimer charge. We find no merit to this argument.
Walsh was on notice that the board charged him with vio-
lating the rules against holding himself out to the public as a
permitholder. Interwoven with this rule is the requirement that
an inactive registrant include the disclaimer. Walsh had filed a
brief on this issue 3 weeks before the hearing that addressed
the use of the disclaimer. We conclude that Walsh had suf-
ficient notice as to the rules he allegedly violated and that his
due process rights were not infringed.
(d) First Amendment
Next, Walsh argues that the board’s charge that he violated
the rule requiring a disclaimer violates the First Amendment
right to free speech under Central Hudson Gas & Elec. v.
Public Serv. Comm’n, 447 U.S. 557, 100 S. Ct. 2343, 65 l. ed.
2d 341 (1980).
1042 	276 NebRASkA RePORTS

[7] There is nothing in the record to indicate that this argu-
ment was presented to the district court for consideration. An
appellate court will not consider an issue on appeal that was
not presented to or passed upon by the trial court. State ex rel.
Stenberg v. Consumer’s Choice Foods, ante p. 481, 755 N.W.2d
583 (2008). The district court cannot commit error in resolving
an issue never presented and submitted to it for disposition.
Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274
Neb. 154, 738 N.W.2d 820 (2007).
2. discreditABle Act chArge
(a) Constitutionality
[8] Walsh argues that the district court erred in failing to
find that 288 Neb. Admin. Code, ch. 5, § 007.01, is unconsti-
tutionally vague. Walsh offers no additional argument beyond
merely stating that the “vagueness of the Catch-All Standard”
of the board’s rules violates the state and federal Constitutions.
See brief for appellant at 27. To be considered by this court,
an alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error.
Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008). We
need not consider this assigned error further.
(b) Nexus
Next, Walsh claims there was not a sufficient nexus, between
the practice of public accountancy and Walsh’s activity in lying
to the insurance company, for the board to discipline him.
The board’s rules provide that “[a] licensee shall not com-
mit an act that reflects adversely on his fitness to engage in
the practice of public accountancy.” 288 Neb. Admin. Code,
ch. 5, § 007.01. The record is clear that Walsh imperson-
ated Teiper and lied to the insurance company. The board
is authorized to adopt rules and regulations “of professional
conduct appropriate to establish and maintain a high standard
of integrity and dignity in the profession of public account-
ancy.” § 1-112.
This court has stated that “like attorneys or medical profes-
sionals, [CPA’s] must demonstrate a high degree of moral and
ethical integrity.” Troshynski v. Nebraska State Bd. of Pub.
WAlSh v. STATe 	1043
Cite as 276 Neb. 1034

Accountancy, 270 Neb. 347, 353, 701 N.W.2d 379, 385 (2005).
We have also stated:
“The field of public accounting is a specialized one and
the legislature has seen fit to regulate it. A certificate as a
[CPA] indicates to the public that the person holding such
a certificate possesses the highest sort of qualifications
and is one in whom may be placed the utmost trust and
confidence. . . .”
Zwygart v. State, 273 Neb. 406, 416, 730 N.W.2d 103, 112
(2007), 	quoting 	Smith 	v. 	State 	Board 	of 	Accountancy 	of
Kentucky, 271 S.W.2d 875 (ky. 1954).
We then stated:
It is readily apparent that individuals rely upon hon-
esty, integrity, sound professional judgment, and compli-
ance with government regulations when they consult a
CPA, even if the CPA may not be specifically acting as
an accountant. . . . Accounting is a regulated profession,
and its members are held to standards established by
the board.
Zwygart, 273 Neb. at 417, 730 N.W.2d at 112.
The district court found that a person could not knowingly
impersonate another and make false statements without taint-
ing the individual’s reputation as a CPA and the reputation of
the profession as a whole. We agree with the district court.
Accountants are held to the standards established by the board
and must demonstrate moral and ethical integrity in the same
manner as attorneys and medical professionals. Walsh’s claim
that there is no nexus between his actions and the practice of
public accountancy lacks merit.
(c) Right to Confront Accuser
Finally, Walsh assigns as error the district court’s failure to
dismiss the discreditable act charge because the board denied
his “Seventh Amendment” right to confront his accuser. The
right to confront one’s accuser is guaranteed by the Sixth
Amendment to the U.S. Constitution, which provides the right
to confront witnesses “[i]n all criminal prosecutions.” The
proceeding against Walsh was purely civil in nature, and his
constitutional rights are not at issue.
1044 	276 NebRASkA RePORTS

3. summAry
Walsh failed to include a disclaimer stating that he was an
inactive registrant in his advertising in the telephone directory,
which failure violated the rules promulgated by the board. he
continued the violation even after he was directed by the board
to cease and desist. Walsh also impersonated his brother-in-law
when he called an insurance company in order to obtain finan-
cial information. This action reflects adversely on the public
accountancy profession, which demands a high level of honesty
and integrity.
This case comes to us for review of a judgment rendered
by a district court pursuant to the Administrative Procedure
Act, and as such, the judgment may be reversed, vacated, or
modified for errors appearing on the record. When reviewing
an order of a district court under the Administrative Procedure
Act for errors appearing on the record, the inquiry is whether
the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable.
See Nothnagel v. Neth, ante p. 95, 752 N.W.2d 149 (2008).
We find no errors on the record reviewed by the district court.
The court’s decision affirming the order of the board conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
VI. CONClUSION
The judgment of the district court is affirmed.
AFFirmed.
WAlSh v. STATe 	1045
Cite as 276 Neb. 1034