STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 10 DOJ 5877

DUSTIN CLARK, )

Petitioner, )

)

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA DEPARTMENT OF )

JUSTICE, COMPANY POLICE )

PROGRAM, )

Respondent. )

______________________________ )

In accordance with North Carolina General Statute § 150B-23, Petitioner requested the designation of an administrative law judge to preside at an Article 3, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Petitioner’s request, Administrative Law Judge Donald W. Overby heard this contested case in Boone, North Carolina on March 10, 2011.

APPEARANCES

Petitioner: Phillip T. Jackson, Esq.

Attorney for Petitioner

P. O. Drawer 1049

Marion, NC 28752

Respondent: Ralf Haskell, Special Deputy Attorney General

Attorney for Respondent

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Did the Respondent properly deny Petitioner’s company police officer commission?

RULES AT ISSUE

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact. In making the Findings of Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. Both parties are properly before this Administrative Law Judge in that jurisdiction and venue are proper, both parties received Notice of Hearing, and Petitioner received the notification of probable cause to deny company police commission letter mailed by the Respondent on August 6, 2010. (Petitioner’s Exhibit No. 2; Respondent’s Exhibit No. 7)

2. Respondent has the authority granted under Chapter 74E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2I, to commission company police officers and to revoke, suspend, or deny such commission.

3. Effective June 24, 2010, Petitioner was hired as a patrol officer by the Appalachian Regional Health Care System company police agency (hereinafter, A. R. H. C. S.) (Petitioner’s Exhibit No. 6; Respondent’s Exhibit No. 2)

4. In furtherance of his application for employment and a commission as a company police officer the Petitioner completed a Personal History Statement (Form F-3) on June 2, 2010. (Petitioner’s Exhibit No. 9, Respondent’s Exhibit No. 3)

5. Page fourteen (14) of the Personal History Statement (Form F-3) contains the following paragraph just above the Petitioner's notarized signature:

I hereby certify that each and every statement made on this form is true and complete and I understand that any misstatement or omissions of information will subject me to disqualification or dismissal. I also acknowledge that I have a continuing duty to update all information contained in this document. I will report to the employing agency and forward to the NC Criminal Justice Education and Training Standards Commission any additional information which occurs after the signing of this document.

6. In response to Question # 46 of the Personal History Statement, which asks, “Have you ever used prescription drugs other than under the supervision of or as prescribed by a physician?”, Petitioner answered “No”.

7. On or about June 15, 2010, A. R. H. C. S. began a mandated background investigation of Petitioner, including a personal interview with Petitioner to review his completed Personal History Statement (Form F-3), and to ask the questions contained in Attachment I, Applicant Interview Questions, of the Mandatory Background Investigation Form ( Form F-8).

8. In response to Question # 59 of Attachment I, Applicant Interview Questions, Mandated Background Investigation Form (Form F-8), which asks, “Have you ever used prescription drugs other than under the supervision of or as prescribed by a physician?”, the Petitioner answered “No”. (Petitioner’s Exhibit Nos. 10 -11; Respondent’s Exhibit No. 4)

9. On or about June 15, 2010, A. R. H. C. S. submitted Petitioner as a candidate for a company police officer commission with the Respondent. Along with other required documentation, A. H. C. S. sent to Respondent Petitioner’s Report of Appointment (Form F-5A); Personal History Statement (Form F-3); and, Mandated Background Investigation Form (Form F-8), as required by 12 NCAC 02I .0204 and .0205. (Petitioner’s Exhibit No. 8; Respondent’s Exhibit No. 1)

10. On July 12, 2010, Petitioner was administered a polygraph examination by Special Agent K. D. Scronce of the North Carolina State Bureau of Investigation (SBI) as required by 12 NCAC 02I .0202(5). Special Agent Scronce conducted a pre-test interview with Petitioner prior to administering him the polygraph exam. Petitioner stated during this interview that he used his mother’s prescription for Phenergen in the 8th and 10th grades. He further stated that he used his grandmother’s prescription for Oxycontin and his aunt’s prescription for Demerol approximately three months prior to his pre-test interview. A memorandum regarding Petitioner’s pre-test interview was sent to Marvin F. Clark, Administrator, Company Police Program, by Assistant Special agent in Charge C. J. Smith on July 22, 2010. (Petitioner’s Exhibit No. 5; Respondent’s Exhibit No. 5)

11. Following receipt and review of the application documentation from A. H. C. S. and the July 22, 2010, SBI memorandum regarding Petitioner’s pre-polygraph examination interview, Mr. Clark contacted A. R. H. C. S. and requested that Petitioner provide a written statement regarding the discrepancy between his admission to Special Agent Scronce that he had used prescription drugs belonging to his mother, grandmother and aunt and his responses to Question # 46 on his Personal History Statement (Form F-3) and Question # 59 of Attachment I, Applicant Interview Questions, Mandated Background Investigation Form (Form F-8), which asked if he had ever used prescription drugs other than under the supervision of or as prescribed by a physician.

12. On July 30, 2010, Mr. Clark received a written statement by Petitioner dated July 29, 2010, regarding his use of his mother’s, grandmother’s and aunt’s prescription drugs. In his written statement, the Petitioner stated:

Regarding my omission of my use of prescription drugs which I obtained from my mother/grandmother, it was not intended to conceal the events described. However, they were thought of in a different context until I spoke with the SBI agent at the time of my polygraph. The prescription medications taken were provided to be my mother mother, grandmother or my aunt of which I have done so only when I was sick, or having discomfort because of recurring pain. The medications taken were medications I have held legitimate prescriptions for from a licensed physician in the past. However, on these occasions these particular medications were prescribed to them. At the time I was out of medication and without insurance and I had no money. I have not used medications for recreational purposes at any time in my life, and consider my mother and grandmother/aunt as individuals I trust for advice regarding my health. Speaking with the SA caused me to think of these events differently than I had previously and wanted to ensure I have fully disclosed any action which is inappropriate, illegal or unethical prior to my polygraph.

(Petitioner’s Exhibit No. 3; Respondent’s Exhibit No. 6)

13. Following review of Petitioner’s application, Respondent found probable cause to deny Petitioner’s application for a Company Police Officer Commission as a result of material omissions from his Personal History Statement (Form F-3) and Mandatory Background Investigation Form (Form F-8). In particular, Respondent found:

Probable cause exists to believe you knowingly made material misrepresentations of information required for commissioning during the application process when you completed the Personal History Statement (Form F-3) on or about June 2, 2010. Question number 46 asks, “Have you ever used prescription drugs other than under the supervision of, or as prescribed by, a physician?” You checked the block by the answer, “No.”

Additionally, probable cause exists to believe that you knowingly made material misrepresentations of information required for commissioning during the application process when you answered the Applicant Interview portion of the Mandated Background Investigation on or about May 27, 2010. You were specifically asked the following questions and provided the following answers regarding drug use and activities.

Q. “Have you ever used prescription drugs other than under the supervision of or as prescribed by a physician?”

A. “No.”

However, during the pre-polygraph interview which you submitted to on July 12, 2010, you told S.A. Scronce that on different occasions you used your grandmother's prescription for Oxycontin, your aunt's prescription for Demerol, and your mother's prescription for Phenergen.

In light of all of these facts I must conclude that when you failed to disclose the above referenced incidents when answering questions during the Applicant Interview portion of the Mandated Background Investigation and when you completed the Personal History Statement (Form F-3), you knowingly made material misrepresentations of information required as an applicant for commissioning as a company police officer. This violation of the Company Police Program administrative rules constitutes proper basis for a finding of probable cause to deny your application for commission as a company police officer.

(Petitioner’s Exhibit No. 2; Respondent’s Exhibit No. 7 )

14. On or about August 6, 2010, Petitioner was served by certified mail with Respondent’s finding of probable cause to deny Petitioner’s application for a Company Police Officer Commission.

15. Petitioner timely filed a Petition for Contested Case Hearing to the Office of Administrative Hearings contesting Respondent’s finding of probable cause to deny his application for a Company Police Officer Commission.

16. Petitioner called Special Agent K. D. Scronce, a polygrapher with of the North Carolina State Bureau of Investigation, as his first witness. Agent Scronce conducted a polygraph examination of Petitioner on July 12, 2010, as part of his application process for a Company Police Officer commission. Prior to administering the polygraph, Special Agent Scronce conducted a pre-test interview with Petitioner. Special Agent Scronce asked Petitioner a series of 156 questions during the pre-test interview. These questions were contained on a standard form used by her and other agents across the State when interviewing Company Police Officer commission applicants. (Petitioner’s Exhibit No. 12; Respondent’s Exhibit No. 16)

17. Special Agent Scronce had a vague recollection of her interaction with Petitioner during the pre-test interview. She recalled, however, that she would write down Petitioner’s responses as he answered her questions. In response to Question # 60, which asked “Did you ever use someone else’s prescription drugs?”, Petitioner answered “Yes”. Petitioner went on to explain that he had used his grandmother’s Oxycontin (2 pills) three months before for his hurt back; his aunt’s Demerol (1 pill) for back pain; and, in the 8th and 10th grades, his mother’s Phenergan for nausea.

18. According to Special Agent Scronce, Question # 60 on the form she used during the pre-test interview asked Petitioner if he had ever used someone else’s prescription drugs while Question # 46 on Petitioner’s Personal History Statement (Form F-3) and Question # 59 of Attachment I, Applicant Interview Questions, Mandated Background Investigation Form (Form F-8), asked if he had ever used prescription drugs other than under the supervision of or as prescribed by a physician. One of the questions Special Agent Scronce asked during her polygraph examination of Petitioner concerned whether he had told a lie or concealed any information during the application process. She obtained no additional information and found no deception in Petitioner’s responses.

19. Special Agent Scronce testified on cross-examination that, in response to Question # 10 of the interview form, Petitioner told her during the pre-test interview that while in 10th grade he was severely depressed and had thought of suicide. Petitioner further told her that on one occasion he took 4 to 5 Phenergan, after which his mother found him laying on his bed with the empty pill bottle and rushed him to the hospital. Petitioner further stated that he was mad at his mother for taking him to the hospital. Although Petitioner denied having attempted suicide, Special Agent Scronce believed that Petitioner had attempted to commit suicide. Special Agent Scronce testified on cross-examination regarding Petitioner’s admissions in Response to Question # 60 that he had used the following prescription drugs: his mother’s Phenergan; his grandmother’s Oxycontin; and, his Aunt’s Demerol. (Petitioner’s Exhibit Nos. 5 and 12; Respondent’s Exhibit Nos. 5 and 16;)

20. Shawn Michael Peel, Police Chief for A. R. H. C. S., testified on behalf of Petitioner. Chief Peel testified that Petitioner was currently employed with A. R. H. C. S. as a non-sworn public safety officer and telecommunicator. Petitioner began working with A. R. H. C. S. in mid-June, 2010. Chief Peel described Petitioner’s work performance from June 2010 through March 2011 as being exemplary. Chief Peel would place Petitioner in a sworn law enforcement officer position if commissioned.

21. Chief Peel has talked with Petitioner about the discrepancy between petitioner’s answers to Question # 46 on Petitioner’s Personal History Statement (Form F-3) and Question # 59 of Attachment I, Applicant Interview Questions, Mandated Background Investigation Form (Form F-8), and Petitioner’s statement to Special Agent Scronce regarding his use of prescription drugs prescribed to someone else. Chief Peel believes that Petitioner did not intend to lie and should be commissioned as a Company Police Officer.

22. Petitioner graduated from Ashe County High school in May 2005. Petitioner worked a number of odd jobs following his graduation from high school, including as an assistant to a licensed electrician with Russell Electric in Fleetwood, North Carolina. In 2007 Petitioner became State certified as an emergency medical technician and began working part-time with Watauga Medic, Inc., in Boone, North Carolina.

23. In 2010 Petitioner took the Basic Law Enforcement Training (BLET) course at Wilkes Community College in Wilkesboro, North Carolina. On May 5, 2010, Petitioner took the BLET exam, which he passed. Petitioner testified that he had always wanted to be a law enforcement officer.

24. Petitioner testified that in 1998-99 he was involved in a 4-wheeler accident which resulted in injury to his back. Petitioner further testified that since then periodically he has had pain in his back. As a result, he has gone to health providers a number of times and has received prescriptions for pain killing narcotics such as Oxycontin and Demerol. Petitioner said that back pain may occur as a result of his moving the wrong way, turning over in bed, and lifting patients the wrong way. Petitioner stated that he would only take the pain killers when needed, and that in 2010 he would only take one or two every few months.

25. While in 10th grade Petitioner used his mother's prescription drug, Phenergen. Petitioner and his girlfriend had skipped school one day, after which he had become nauseous. Petitioner further stated that he took 4 or 5 Phenergen pills, which was more than he should have taken. Petitioner denied taking the pills in an effort to commit suicide. Petitioner had also used his mother's prescription for Phenergan while in the 8th grade. Petitioner did not have a prescription for Phenergan at either time he took his mother's pills.

26. In mid-April 2010 Petitioner suffered back pain when he jumped and landed while doing physical exercise. Petitioner knew that his grandmother had a prescription for Oxycontin and asked her if she had any. He received two Oxycontin pills from his grandmother, which he took. Two to three days later Petitioner also got a Demerol pill from his aunt, which he also took for his back pain. At the time Petitioner took the medications he was actively enrolled in the Basic Law Enforcement Training class. Petitioner did not have a prescription for either Oxycontin or Demerol at the time he took the pills.

27. Petitioner admitted that he answered (No( in response to Question No. 46 on his Personal History Statement (Form F-3) and Question No. 59 of Attachment I, Applicant Interview Question, Mandatory Background Investigation Form (Form F-8), which asked: “Have you ever used prescription drugs other than under the supervision of or as prescribed by a physician?” He further admitted that he answered “Yes” to Question No. 60 during his pre-polygraph test interview with Special Agent Scronce, which asked: “Did you ever use someone else's prescription drugs?”

28. Petitioner testified that Question No. 46 on his Personal History Statement (Form F-3) and Question No. 59 of Attachment I, Applicant Interview Question, Mandatory Background Investigation Form (Form F-8), were confusing to him and not as clear as question No. 60 of Special Agent Scronce's pre-test interview questions. Petitioner did not ask for clarification of Questions Nos. 46 and 59. Instead, Petitioner assumed that, since he had previously had a prescription for Phenergan, Oxycontin and Demerol, he could answer “No” to Question Nos. 46 and 59.

29. Petitioner testified that he did not go to a doctor in mid-April, 2010 for his back pain due to his financial difficulties. Petitioner testified that he had a valid prescription for both Oxycontin and Demerol in the past and knew that a doctor would have charged at least $75 for an office visit, which would be required before he could get a new prescription.

30. Petitioner testified on cross-examination that he filled out a Medical History Statement (Form F-1[LE]) as part of his application process for a commission with Respondent and for certification with the Criminal Justice Education and Training Standards Commission. In response to questions regarding his current medications, Petitioner denied taking any prescription medications, including pain relievers. Petitioner completed his Medical History Statement (Form F-1[LE])) on June 3, 2010. (Respondent's Exhibit No. 9)

31. Petitioner testified that as a sworn police officer for A.R.H.C.S. he would be expected to participate in physical activities, such as may occur when making an arrest. Petitioner felt that he could handle such activities even with his prior back pain issues.

32. Petitioner admitted that the 4 to 5 pills of Phenergen he took while in the 10th grade exceeded the amount that would have been prescribed. Petitioner described his behavior on this occasion as being “stupid”.

33. Petitioner admitted that he did not have a prescription for either Oxycontin or Demerol when he took his grandmother's and aunt's pills in mid-April, 2010. Further, although he stated that he once had prescriptions for Oxycontin and Demerol following his 4-wheeler accident in 1998-1999, he could not recall when he last had a valid prescription for either. He also did not recall the doctor who prescribed the medication. Additionally, he did not know the dosage that had been prescribed. Petitioner also did not know the dosage of the Oxycontin he had gotten from his grandmother, or of the Demerol he had gotten from his aunt. Further, he did not know whether taking Demerol after having taken Oxycontin might have any adverse effects.

34. Petitioner admitted that Oxycontin and Demerol were Schedule II controlled narcotics requiring a prescription for their valid use. He further admitted that it was against the law to use another person's Oxycontin and Demerol. Petitioner also admitted that, despite knowing this, he used both his grandmother's Oxycontin and aunt's Demerol pills because of his financial situation.

35. Petitioner testified in response to questions from the undersigned Administrative Law Judge that he was 11 or 12 years old when he had the 4-wheeler accident in 1998-1999. He further testified that he was taken to the hospital for observation and x-rays following the accident and was released a few hours later. Petitioner did not recall whether he received a prescription for painkillers at the time.

36. Petitioner further testified in response to questions from the undersigned Administrative Law Judge that, sometime following the accident, he was prescribed both Oxycontin and Demerol until his senior year of high school for his back pain. Petitioner further testified that he did not take these prescriptions on an ongoing regular basis, but only as needed. Petitioner also testified that he never had a prescription for Oxycontin and Demerol at the same time. Further, he did not know if the prescriptions allowed for refills. Petitioner's mother obtained these prescriptions for him.

37. Petitioner could not recall the last time he had a valid prescription for either Oxycontin or Demerol. Petitioner could not recall having obtained a prescription for either drug since high school.

38. Petitioner did not contact anyone with the Emergency Medical system where he had worked to see if they could help him with his back pain. He also did not explore any other possible low cost options to obtain medical help. He also did not ask his family for financial help to allow him to seek medical assistance. Instead, Petitioner's initial act was to obtain Schedule II narcotic prescription drugs from his grandmother and aunt despite knowing that this was illegal.

39. Respondent’s Exhibit’s 1 through 16 were admitted into evidence.

BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

2. The Petitioner has the burden of proof. The Petitioner has failed to show, by a preponderance of the evidence, that Respondent improperly denied his company police officer commission. (See Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 704, 635 S.E.2d 442, 444, rev denied 361 N.C. 220, 642 S.E.2d 445 (2007))

3. 12 NCAC 02I .0202(4) states that:

Every company police officer must meet the following requirements to obtain and maintain a company police commission; meet the minimum standards for criminal justice officers established by the North Carolina Criminal Justice Education and Training Standards Commission, appearing in Title 12, Chapter 9 of the North Carolina Administrative Code; which standards are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced materials.

4. 12 NCAC 09A .0204(b)(6) states that the Commission may deny the certification of a criminal justice officer when the Commission finds that the applicant for certification has knowingly made a material misrepresentation of any information required for certification or accreditation.

5. 12 NCAC 02I .0213(a) states that:

When the Attorney General, or his designee, suspends or denies the commission of a company police officer, the period of sanction shall not be less than three years. However, the Attorney General, or his designee, may either reduce or suspend the period of sanction under 12 NCAC 2I .0212(b) or substitute a period of probation in lieu of suspension of a commission following an administrative hearing, where the cause of sanction is:

(4) material misrepresentation of any information required for company police commissioning.

6. Question No. 46 on Petitioner’s Personal History Statement (Form F-3) and Question No. 59 of Attachment I, Applicant Interview Question, Mandatory Background Investigation Form (Form F-8), which asked: “Have you ever used prescription drugs other than under the supervision of or as prescribed by a physician?”, are not ambiguous or subject to misinterpretation as suggested by Petitioner. Instead, the questions clearly required Petitioner to answer “Yes' as a result of his use of his mother's, grandmother's and aunt's prescription drugs for which he had no valid prescription. Further, Petitioner's admission that he exceeded the prescribed dosage when he used his mother's Phenergen; that he did not know the proper dosage for the Oxycontin and Demerol; that he did not know if Demerol could safely be used within three days of his having taken Oxycontin; and, that he knew that it was illegal for him to use another person's Schedule II narcotic prescription drugs, also required Petitioner to answer 'Yes”.

7. The Petitioner knowingly made a material misrepresentation of fact on the Personal History Statement (Form F-3) completed and signed by the Petitioner on June 2, 2010 as part of his application for employment with A.R.H.C.S. and for a company police commission by answering “No” to Question # 46 which asked ,”Have you ever used prescription drugs other than under the supervision of or as prescribed by a physician?”

8. The Petitioner knowingly made a material misrepresentation of fact on the Mandated Background Investigation Form (Form F-8) completed June 15, 2010 as part of his application for employment with A.R.H.C.S. and for a company police commission by answering “No” to Question #42 which asked, “Have you ever used prescription drugs other than under the supervision or as prescribed by a physician?”

9. The Personal History Statement (Form F-3) and the Mandated Background Investigation Form (Form F-8) were necessary and required parts of the application process to become a commissioned company police officer.

10. The Respondent's proposed denial of the Petitioner's application for a company police officer commission is supported by substantial evidence.

11. Although Petitioner knowingly made a material misrepresentation of information required for commissioning as a Company Police Officer when he answered (No( to Question #46 on his Personal History Statement (Form F-3) and Question #59 on his Mandated Background Investigation Form (Form F-8) regarding his use of prescription drugs, he did not do so with the intended purpose of fraudulently obtaining a Company Police Officer commission from Respondent. Further, although Petitioner used the Schedule II prescription drugs Oxycontin and Demerol in mid-April 2010 without a valid prescription or under a doctor's care, he used them for medical rather than recreational purposes. Additionally, Petitioner previously had valid prescriptions for each of these drugs; he did not go to a doctor for new prescriptions due to his financial difficulties at the time; he received these drugs from his grandmother and aunt; and, he used them for the purposes as had been previously prescribed to him. Finally, as to his use of his mother's prescription drug Phenergen, this use occurred while he was in the 8th and 10th grades.

12. The findings and actions of the Respondent are constitutional, within the statutory authority of the agency, made upon lawful procedure, not affected by error of law, supported by substantial evidence and are not arbitrary, capricious, or an abuse of discretion.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that the Respondent deny Petitioner’s application for a company police officer commission for a period of sixty (60) days. The undersigned further recommends, however, that the sanction of denial be stayed and that Petitioner be placed on probation for a period of five years.

NOTICE

The agency making the Final Decision in this contested case is required to give each party an opportunity to file exceptions to this Proposal for Decision and to present written arguments to the agency which will make the final decision or order. N.C. Gen. Stat. § 150B-36(a). The agency is required by N.C. Gen. Stat. § 150B-36(b3) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina Department of Justice.

IT IS SO ORDERED.

This the 24th day of May, 2011.

____________________________

Donald W. Overby

Administrative Law Judge

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