Tax Lawyer's Blog

Eugene Volokh has an interesting article about an Pennsylvania CPA whose license was revoked because he disliked homosexuals.

Kevin Allen Ake was a member of a local YMCA and was kicked out for trying to start a Bible study group. He called the excecutive director of the YMCA, who was a lesbian, and lectured her on the sinfulness of her gay lifestyle.

She called the police and he was charged with and later convicted of misdemeanor telephone harassment.

Because the woman he had harrassed was a lesbian, he was then charged with and convicted of a felony hate crime.

Ake served his sentences and applied to the Pennsylvania State Board of Accountancy to have his license reinstated.

The Board denied his request and said this:

[T]he very nature of Respondent’s offense — involving an irrational hatred of the victim — is plainly a manifestation of a character defect. Although [Ake] had completed all requirements of his criminal sentence as of February 2005, the Board has grave doubts as to whether [Ake] fully rehabilitated.

In his testimony at the formal hearing, [Ake] expressed the view that his conduct in harassing the victim because of her sexual orientation, while regrettable, did not rise to a level requiring criminal sanction. He maintained that he was prosecuted because of the district attorney’s sexual orientation, and he objected to his original mental health counselor because of the counselor’s sexual orientation. These facts powerfully suggest that [Ake] has not reformed his views….

The Board is of the view that the revocation of [Ake's license] … is warranted … (1) to eliminate the risk of harm that [Ake] … might pose to those with whom he would have professional dealings as a certified public accountant; (2) to deter other certified public accountants who might be tempted to commit felonious acts outside the practice of public accounting in belief that there would be no consequences for their professional credentials; and (3) to provide assurance to the public that only individuals of unquestioned moral character are permitted to be counted among the ranks of certified public accountants. (Emphases Added)

Did I read that correctly? “These facts powerfully suggest that [Mr. Ake] has not reformed his views?”

Since when are a person’s views the business of a professional licensing body? Or does the request form for a Pennsylvania CPA license actually ask the applicant what he thinks of homosexuals? Or of blacks. Women? Sri Lankans?

Mr. Ake’s religion teaches that homosexuality is immoral? Whether or not the Board agrees with this teaching is irrelevant.

Incidentally, this is not even a fringe view – millions of Christians share it. I think it’s safe to assume that thousands of them are CPAs.

So the logical extension of the Pennsylvania Board’s ruling requires a finding that all Christians who consider homosexuality a sin lack the moral character to be CPAs. In other words, Christian CPAs must reform their views about homosexuals or relinquish their CPA licenses.

And what about Muslim CPAs who insist on a literal reading of the Qu’ran? Do we revoke their licenses on the grounds that they have an irrational hatred of infidels and of women who “walk with other men?”

Regulating Thought

It appears that the thought police are alive and well and wearing pocket protectors in a Pennsylvania hearing room?

Mr. Ake’s views about homosexuality cannot reasonably be seen as affecting his ability to prepare and analyze financial statements?

It is obvious that the Board members personally do not like Mr. Ake’s views on homosexuality and, therefore, have decided that he is unfit to practice accounting in their state.

But their personal views shouldn’t enter into the equation at all.

It looks like it might be the members of the Board and not Mr. Ake who have questionable moral character?

Pennyslvania Court Rebukes Board Members

In May Mr. Ake got his career back. The Pennyslvania Commonweath Court scathingly (and accurately) reversed the Board’s decision stating that,

The problem with the Board’s analysis is the lack of any objective standard for what constitutes ‘rehabilitation’ in this context. The Board does not attempt to provide one and, instead, pins its entire analysis on its disagreement with Ake’s beliefs and opinions.

It is not for the Board or this Court to decide whether Ake’s beliefs are objectionable. The Board is not vested with authority to look into the hearts of those licensees who appear before them.

The Board members may not assume the role of the proverbial thought police and require Ake or any other accountant to change his beliefs to conform with those of the Board’s members.

Touche!

Read the entire decision at Ake v. Bureau of Professional & Occupational Affairs (Pa. Commw. Ct. May 20, 2009).

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