STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF COLUMBUS

KATHRYN CORDER GRIFFIN, )

)

Petitioner )

)

v. )

)

NORTH CAROLINA SHERIFFS’ )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

)

Respondent )

_________________________________ )

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

11 DOJ 13147

ORDER ON MOTION FOR SUMMARY JUDGMENT AND

PROPOSAL FOR DECISION

In accordance with N.C. Gen. Stat. §150B-40(e), Respondent requested the designation of an Administrative Law Judge to preside at the hearing of a contested case on this matter under Article 3A, Chapter 150B of the North Carolina General Statutes. Following the filing of Prehearing Statements by the parties, the Respondent filed a Motion for Summary Judgment, wherein the Respondent claims that Petitioner’s two (2) felony convictions preclude her from obtaining certification through the North Carolina Sheriffs’ Education and Training Standards Commission. A telephone conference was held with the parties in order to hear Respondent’s Motion for Summary Judgment and each party was allowed to present evidence and make arguments. Having considered the record in this case and the arguments presented by the parties, the undersigned does hereby grant Respondent’s Motion for Summary Judgment, and in so doing, makes the following Proposal for Decision, supported by the following Proposed Findings of Fact and Conclusions of Law.

APPEARANCES

Petitioner: Kathryn Corder Griffin, Pro Se

6721 Clarendon Chadbourn Rod

Chadbourn, North Carolina 28431

Respondent: Matthew L. Boyatt, Assistant Attorney General

Attorney for Respondent

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Was Petitioner convicted of Felony Burglary of a Building and Felony Unauthorized Use of a Motor Vehicle?

Does substantial evidence exist to deny Petitioner’s application for certification with the North Carolina Sheriffs’ Education and Training Standards Commission based on Petitioner’s two (2) felony convictions?

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 of Respondent’s Motion for Summary Judgment, and that Petitioner received by certified mail the proposed Denial of Justice Officer’s Certification letter, mailed by Respondent the North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter “the Commission”) on September 12, 2011.

2. The Respondent summarily denied Petitioner’s application for justice officer certification based on Petitioner’s criminal record. In processing Petitioner’s application for certification, Respondent discovered that Petitioner was convicted of two (2) separate felony offenses in Texas.

3. The Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke, or suspend such certification.

4. 12 NCAC .0301 (a) (10) states:

Every Justice Officer employed or certified in North Carolina

shall not have committed or been convicted of a crime or crimes

as specified in 12 NCAC 10B .0307.

Further, 12 NCAC 10B .0307 (a) (1) provides:

Every Justice Officer employed in North Carolina shall not have

committed or been convicted by a local, state, federal or military

court of a felony. (emphasis added)

5. Furthermore, 12 NCAC 10B .0204(a)(1) states that the Commission shall revoke or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of:

(1) a felony[.]

6. Pursuant to 12 NCAC 10B .0103(11), “Felony” means any offense designated a felony by the laws, statutes, or ordinances of the jurisdiction in which the offense occurred. In addition, pursuant to 12 NCAC 10B .0103(2), “convicted” or “conviction” means and includes, for purposes of this Chapter, the entry of (A) a plea of guilty; (B) a verdict or finding of guilt by a jury, judge, magistrate, or other duly constituted, established, and recognized adjudicating body, tribunal, or official, either civilian or military; or (C) a plea of no contest, nolo contendere, or the equivalent.

7. Finally, 12 NCAC 10B .0204(b)(2) states that the Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer:

(2) fails to meet or maintain any of the employment or certification standards required by 12 NCAC 10B .0300.

8. Respondent submitted Certified copies of court records from Matagorda County, Texas, in the matter of The State of Texas v. Kathryn Garza, cause No. 7231. In this case, Petitioner pled guilty to one (1) felony count of Unauthorized Use of a Motor Vehicle on or about January 14, 1988. Petitioner was placed on five (5) years probation for this felony conviction.

9. Respondent also submitted Certified copies of court records from Brazoria County, Texas, in the matter of The State of Texas v. Kathryn Garza, cause No. 18,707. In this case, Petitioner pled guilty to one (1) felony count of Burglary of a Building on or about May 31, 1988. Petitioner was placed on probation for five (5) years for this felony conviction and was ordered to pay restitution in the amount of One Thousand Fifty Six Dollars ($1,056.00).

10. Petitioner’s maiden name is Kathryn Garza. Petitioner admits that she was convicted of felony Unauthorized Use of a Motor Vehicle in Matagorda County, Texas on January 14, 1988. Further, Petitioner admits that she was also convicted of felony Burglary of a Building in Brazoria County, Texas on May 31, 1988.

11. Petitioner stated that she was young when she committed these crimes and that she was hanging out with the wrong crowd at the time and got caught up in trouble. Petitioner also stated that her boyfriend at the time participated in the above-referenced crimes.

12. Petitioner further admits that she was placed on felony probation for the above-referenced felony convictions, although Petitioner indicates she was released from probation early due to compliance.

13. The Petitioner is currently attempting to have the above-referenced felony convictions expunged from her record.

14. The North Carolina Sheriffs’ Education and Training Standards Commission is required under its Rules to deny or revoke certification where it finds by a preponderance of the evidence that an applicant or certified officer has either been convicted of a felony or has committed a felony. In a similar case involving an applicant’s commission of a felony, a Proposal for Decision was issued which affirmed the Respondent’s denial of certification due to the commission of a felony. See Daniel Brannon Gray v. North Carolina Sheriffs’ Education and Training Standards Commission, 09 DOJ 4364

15. In this case, the Commission’s Deputy Director, Ms. Diane Konopka, submitted a memorandum to the probable cause committee to determine whether probable cause exists to deny Petitioner’s certification based upon Petitioner’s conviction of two (2) felony counts.

16. The Respondent’s probable cause committee found probable cause existed to deny Petitioner’s application for certification based on the above-referenced felony convictions. As a result, the Respondent sent Petitioner notification of its intent to summarily deny Petitioner’s application for certification. Petitioner does not dispute that she has been convicted of two (2) separate felony offenses in the State of Texas.

CONCLUSIONS OF LAW

1. The parties are properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2. A preponderance of the evidence shows that Petitioner was convicted of the felony offense of Unauthorized Use of a Motor Vehicle in Matagorda County, Texas on January 14, 1988.

3. Further, a preponderance of the evidence shows that Petitioner was also convicted of the felony offense of Burglary of a Building in Brazoria County, Texas on May 31, 1988.

4. Petitioner’s conviction of two (2) felonies constitutes a violation of 12 NCAC 10B .0204(a)(1). Further, Petitioner does not meet the minimum standards for certification as set out in 12 NCAC 10B .0301 and 12 NCAC 10B .0307 due to Petitioner’s two (2) felony convictions.

5. The Respondent’s proposed denial of Petitioner’s application for certification is supported by substantial evidence.

PROPOSAL FOR DECISION

Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned recommends Respondent deny Petitioner’s justice officer’s certification.

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, to submit Proposed Findings of Fact and to present oral and written arguments to the Agency. N.C.G.S. §150B-40(e).

The Agency that will make the Final Decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.

This the 4th day of April 2012.

__________________________________

Fred G. Morrison Jr.

Senior Administrative Law Judge

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