SENATE BILL 792

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

Timothy Z. Jennings

AN ACT

RELATING TO LICENSURE; EXPANDING THE POWERS AND DUTIES OF THE NEW MEXICO PUBLIC ACCOUNTANCY BOARD; PROVIDING FOR FINGERPRINTING AND BACKGROUND CHECK OF AN APPLICANT; INCREASING THE AMOUNT IMPOSED FOR AN ADMINISTRATIVE FINE; PROVIDING PENALTIES; AMENDING AND ENACTING SECTIONS OF THE 1999 PUBLIC ACCOUNTANCY ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 61-28B-1 NMSA 1978 (being Laws 1999, Chapter 179, Section 1) is amended to read:

     "61-28B-1. SHORT TITLE.--[This act] Chapter 61, Article 28B NMSA 1978 may be cited as the "1999 Public Accountancy Act"."

     Section 2. Section 61-28B-5 NMSA 1978 (being Laws 1999, Chapter 179, Section 5, as amended) is amended to read:

     "61-28B-5. BOARD--POWERS AND DUTIES.--

          A. The board may:

                (1) appoint committees or persons to advise or assist it in carrying out the provisions of the 1999 Public Accountancy Act;

                (2) retain its own counsel to advise and assist it in addition to advice and assistance provided by the attorney general;

                (3) contract, sue and be sued and have and use a seal;

                (4) cooperate with the appropriate authorities in other states in investigation and enforcement concerning violations of the 1999 Public Accountancy Act and comparable acts of other states; and

                (5) adopt and file in accordance with the Uniform Licensing Act and the State Rules Act rules to carry out the provisions of the 1999 Public Accountancy Act, including rules governing the administration and enforcement of the 1999 Public Accountancy Act and the conduct of certificate and permit holders.

          B. The board shall:

                (1) maintain a registry of the names and addresses of certificate and permit holders; and

                (2) develop, in conjunction with the department of public safety, rules requiring a criminal history background check of an applicant for initial or reciprocal certification in New Mexico as provided for in the 1999 Public Accountancy Act."

     Section 3. Section 61-28B-20 NMSA 1978 (being Laws 1999, Chapter 179, Section 20) is amended to read:

     "61-28B-20. ENFORCEMENT--ADMINISTRATIVE VIOLATIONS AND REMEDIES.--

          A. The board may take, after providing [any] a person due process pursuant to the Uniform Licensing Act, corrective action identified in Subsection B of this section following a finding that an applicant or licensee:

                (1) committed fraud or deceit in obtaining a certificate or permit;

                (2) lost a certificate or permit through cancellation, revocation, suspension or refusal of renewal in any other state for cause, as defined by board rule;

                (3) failed to maintain compliance with the

requirements of the 1999 Public Accountancy Act and board rules for issuance or renewal of a certificate or permit or failed to report material changes to the board, as required by board rule;

                (4) lost the authorization to practice in any state or before any federal agency through revocation or suspension of that authorization;

                (5) committed dishonest, fraudulent or grossly negligent acts in the practice of public accountancy or in the filing or failure to file [his] the applicant's or licensee's own income or other federal, state or local tax returns;

                (6) violated [any] a provision of the 1999 Public Accountancy Act or [any] a rule promulgated by the board pursuant to that act;

                (7) violated [any] a rule of professional conduct promulgated by the board pursuant to the 1999 Public Accountancy Act;

                (8) has been convicted of a felony or of [any] a crime an element of which is dishonesty or fraud under the laws of the United States, of New Mexico or of any other state, or of any other jurisdiction, if the acts involved would have constituted a crime under the laws of New Mexico;

                (9) performed [any] a fraudulent act while holding a certificate or permit issued pursuant to the 1999 Public Accountancy Act or prior law; or

                (10) participated in any conduct reflecting adversely upon the applicant's or licensee's fitness to engage in practice.

          B. After a finding by the board that an applicant or licensee has committed a violation identified in Subsection A of this section, the board may take, with or without terms, conditions and limitations, one or more of the following corrective actions:

                (1) deny an application or revoke a certificate or permit issued pursuant to the 1999 Public Accountancy Act or corresponding provisions of prior law;

                (2) suspend [any] a certificate or permit for a period of not more than five years;

                (3) reprimand, censure or limit the scope of practice of a licensee;

                (4) impose an administrative fine not exceeding [one thousand dollars ($1,000)] ten thousand dollars ($10,000); or

                (5) place the licensee on probation.

          C. In lieu of or in addition to [any] a remedy specifically provided in Subsection B of this section, the board may require of a licensee:

                (1) a quality review conducted in such a fashion as the board may specify;

                (2) satisfactory completion of such continuing professional education programs as the board may specify;

                (3) correction of the violation identified; and

                (4) any other suitable remedial action as determined by the board.

          D. In [any] a proceeding in which a remedy provided by Subsection B or C of this section is imposed, the board may also require the respondent to pay the costs of the proceeding."

     Section 4. Section 61-28B-27 NMSA 1978 (being Laws 1999, Chapter 179, Section 27, as amended) is amended to read:

     "61-28B-27. FEES.--The board may collect from certificate holders, permit holders, applicants and others the following fees:

          A. for examination, a fee not to exceed four hundred dollars ($400) per examination section;

          B. for certificate issuance or renewal, a fee not to exceed one hundred seventy-five dollars ($175) per year; provided, however, the board may charge a biennial fee of not more than twice the annual fee;

          C. for firm permits, a fee not to exceed one hundred dollars ($100) per year; provided, however, the board may charge a biennial fee of not more than twice the annual fee;

          D. for incomplete or delinquent continuing education reports, certificate or permit renewals, a fee not to exceed one hundred dollars ($100) each;

          E. for preparing and providing licensure and examination information to others, a fee not to exceed seventy-five dollars ($75.00) per report;

          F. reasonable administrative fees for such services as research, record copies, duplicate or replacement certificates or permits;

          G. a fee for fingerprinting and background check for an applicant for certification not to exceed one hundred dollars ($100);

          [G.] H. for certificate reinstatement, a fee not to exceed one hundred seventy-five dollars ($175), plus past due fees and penalties;

          [H.] I. for waiver to comply with continuing professional education requirements, a fee not to exceed seventy-five dollars ($75.00) per application; and

          [I.] J. for reentry into active certificate status and to comply with continuing education, a fee not to exceed seventy-five dollars ($75.00) per application."

     Section 5. A new section of the 1999 Public Accountancy Act is enacted to read:

     "[NEW MATERIAL] FINGERPRINTING--CRIMINAL HISTORY BACKGROUND CHECKS.--

          A. All applicants for certification as provided for in the 1999 Public Accountancy Act shall:

                (1) be required to provide fingerprints on two fingerprint cards for submission to the federal bureau of investigation to conduct a national criminal history background check and to the department of public safety to conduct a state criminal history check;

                (2) pay the cost of obtaining the fingerprints and criminal history background checks; and

                (3) have the right to inspect or challenge the validity of the record development by the background check if the applicant is denied certification as established by board rule.

          B. Electronic live scans may be used for conducting criminal history background checks.

          C. Criminal history records obtained by the board pursuant to the provisions of this section are confidential. The board is authorized to use criminal history records obtained from the federal bureau of investigation and the department of public safety to conduct background checks on applicants for certification as provided for in the 1999 Public Accountancy Act.

          D. Criminal history records obtained pursuant to the provisions of this section shall not be used for any purpose other than conducting background checks. Criminal history records obtained pursuant to the provisions of this section and the information contained in those records shall not be released or disclosed to any other person or agency, except pursuant to a court order or with the written consent of the person who is the subject of the records.

          E. A person who releases or discloses criminal history records or information contained in those records in violation of the provisions of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

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