STATE OF NORTH CAROLINA



|STATE OF NORTH CAROLINA |IN THE OFFICE OF |

| |ADMINISTRATIVE HEARINGS |

|COUNTY OF RANDOLPH |11 DOJ 11396 |

|Dwight Edward Sale, |) |

|Petitioner, |) |

|v. |) DECISION |

|NC Dept 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 Chapter 150B, contested case hearing of this matter. Based upon the Petitioner’s request, Administrative Law Judge Selina M. Brooks heard this contested case in High Point, North Carolina on December 20, 2011.

APPEARANCES

Petitioner: Pro se

Respondent: Catherine F. Jordan

Attorney for Respondent

Department of Justice

Law Enforcement Liaison Section

P.O. Box 629

Raleigh, N.C. 27602-0629

ISSUES

Is Respondent’s proposed denial of Petitioner’s law enforcement officer certification, based upon Petitioner’s knowingly making material misrepresentations of information required for certification, supported by a preponderance of the evidence?

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 Administrative Law Judge makes the following FINDINGS OF FACT.

In making the FINDINGS OF FACT, the undersigned Administrative Law Judge 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.

RULES

12 NCAC 02I .0212(c)(6)

12 NCAC 02I .0213(a)(4)

FINDINGS OF FACT

1. On July 20, 2010, Delta Company Police submitted a Report of Appointment Form F-5A on behalf of Petitioner to Respondent. (Respondent’s Exhibit 1) Petitioner signed and dated this document. Id. A paragraph directly above Petitioner’s signature states:

As the applicant for certification, I attest that I am aware of the minimum standards for employment, that I meet or exceed each of those requirements, that the information provided above and all other information submitted by me, both oral and written throughout the employment and certification process, is thorough, complete, and accurate to the best of my knowledge. I further understand and agree that any omission, falsification or misrepresentation of any factor or portion of such information can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time, now or later. Id.

2. On August 11, 2010, Delta Company Police submitted an Application for Company Police Officer Commission to Respondent on behalf of Petitioner. (Respondent’s Exhibit 2)

3. On July 7, 2010, Petitioner submitted a Personal History Statement Form F-3 to Respondent for his application for a commission with Delta Company Police. (Respondent’s Exhibit 3) Petitioner signed, dated and notarized his Form F-3. Id. A paragraph directly above Petitioner’s signature states:

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. Id.

4. Question 26 on Petitioner’s Form F-3 states: “If you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations, give details.” Id. Petitioner answered “No” to this question. Id.

5. Question 31 on Petitioner’s Form F-3 states: “List all the jobs you have held in the last ten years. Put your present or most recent job first. . . .” Id. Petitioner listed that he was employed as a Company Police Officer with Lankford Company Police from October 2009 through March 2010. Petitioner stated that his reason for leaving was “told Full Time - lied to repeatedly.” Id.

6. On July 20, 2010, Petitioner answered questions for the purposes of completing a Mandated Background Investigation Form F-8. (Respondent’s Exhibit 12) When asked whether he had applied for employment with Delta Company Police, Petitioner answered “went to work for Lankford Company Police.” Id. Question 29 asked “Who have you been previously employed by and when,” and Petitioner answered “Randalman PD 2008.” Id. Question 30 asked “Have you ever been terminated or asked to resign from any employment” and no answer was provided for this question. Id.

7. On August 5, 2010, Lankford Company Police Chief T.B. Allen provided answers to an F-8 Background Investigation for Petitioner. (Respondent’s Exhibit 10) Chief Allen stated that Petitioner was employed with Lankford Company Police as a Company Police Officer. Id. She stated that his duties included writing citations, keeping prisoners and persons safe, and police officer duties. Id. Chief Allen stated that Petitioner’s work performance was below average for a sworn officer. Id. She stated that Petitioner always complained, that he questioned authoritative figures and was confrontational. Id. Chief Allen stated that Petitioner was disciplined and terminated. Id.

8. Company Police Administrator Marvin Clark (“Clark”) received Petitioner’s Forms F-5A, F-3, and F-8 from Delta Company Police and Petitioner and reviewed these forms for the purposes of commissioning Petitioner. Clark received documents which stated the following:

A. On March 2, 2010, Lankford Company Police Major Gallimore conducted site checks at the city of Greensboro contract, and observed Petitioner sitting in his personal vehicle. (Respondent’s Exhibit 4) Major Gallimore observed Petitioner sit in his car while several unlawful incidents took place, including a male urinating on city property and a female consuming an alcoholic beverage. Id. He observed Petitioner remain in his car during this time with no response. Id. Major Gallimore observed Petitioner remain in his car from 9:30pm to 12:00am and only leave his car for a total of thirty minutes. Id. Petitioner would only exit his vehicle when another officer would enter the parking garage. Id.

B. On March 3, 2010, Major Gallimore and Lankford Company Police Chief Allen met with Petitioner about the incident, and Petitioner stated that he did not remain in his personal vehicle and, instead, he walked around the parking garage as he was instructed to do. Id. Major Gallimore asked Petitioner if he walked the decks as instructed to do, and he stated “well yea at least every hour.” Id. Petitioner also stated that “he was not going to approach anyone or any group by himself.” Id. Major Gallimore told Petitioner that he was observed remaining in his personal vehicle throughout the evening, and Petitioner said “well I guess you got me.” Id. Petitioner was issued a written warning for insubordination for “not doing patrols and remaining in his personal vehicle.” Id. Major Gallimore explained to Petitioner that the policy and procedures of the contract include:

9:00 pm on duty at assigned garage, perform foot patrol of all levels of the garage, to include stairwells and elevators. Perform any police action that is needed to wit: issue N.C. State uniform citations and make arrests if needed to. To maintain a visible appearance at all times in the garages. There is a rover car to assist in any issues you may need and to also switch rovers every hour or as needed. 3:00 am off duty from all garages. Id.

C. On March 4, 2010, Major Gallimore issued a Step-by-Step Warning Report to Petitioner, stating that he was insubordinate, that he was not doing patrols and remaining in his personal vehicle. (Respondent”s Exhibit 4 & 6) Petitioner signed and dated the Step-by-Step Warning Report. Id.

D. Between March 2, 2010 and March 5, 2010, Major Gallimore received a concern from Greensboro Police Supervisors stating that Petitioner “is not doing is [sic] assigned duties, but instead is watching a tv or some sort of device in his car during the hours he is suppose [sic] to be patrolling.” (Respondent’s Exhibit 5) Petitioner was confronted about this complaint, and stated that “he does not have a TV but does routinely text his wife while at work.” Id. Petitioner was issued a written warning report for watching TV while on duty in his personal car and was removed from the City of Greensboro contract. Id.

E. On March 5, 2010, Petitioner received a Step-by-Step Warning Report stating that the type of violation was “Violation of Company Policy (Watching TV while on duty)”. (Respondent’s Exhibit 6) Chief Allen presented this Step-by-Step Warning Report to Petitioner and signed and dated this report. Id. Petitioner refused to sign this report. Id. On March 5, 2010, Chief Allen terminated Petitioner’s employment with Lankford Company Police. (Respondent’s Exhibit 7)

F. On June 16, 2010, Chief Allen submitted a Report of Separation F-5B to Respondent for Petitioner. (Respondent’s Exhibit 7) The Report of Separation stated that Petitioner was employed for four months beginning on October 22, 2009. Id. The Report of Separation stated that Petitioner’s date of final separation was March 5, 2010. Id. The F-5B stated that Petitioner was dismissed from employment. The F-5B stated that the reason was that:

[Petitioner] was an employee with Lankford as a sworn officer. During the time of his employment [Petitioner] he was observed sitting in his personal vehicle while on duty, this was approximately 2 1/2 hours. When confronted with this issue [Petitioner] stated that he had been doing patrol. He constantly complained about job assignments stating, “The job was for a younger person.” He refused to drive to work in the snow. He lied to his supervisor. He had an unprofessional demeanor while employed with this agency. He always complained about this work assignment. He had issues with following direct orders and job assignments. He was a very difficult person to manage. Id.

9. On July 11, 2011, Clark wrote a letter to Petitioner stating that “As the Administrator for the Company Police Program for the North Carolina Department of Justice, I have reviewed your application for commission. I regret to inform you that I have found probable cause to deny your application for Company Police Officer Commission submitted by Delta Police.” (Respondent’s Exhibit 11) Clark stated that Petitioner knowingly made a material misrepresentation when he answered Question 26 on his Personal History Statement Form F-3. Question 26 asked “If you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violation give details” and Petitioner answered “no.” Id.

10. Petitioner requested an administrative hearing to review Clark’s finding of probable cause.

11. Clark testified that he received Petitioner’s Forms F-5A, F-3, and F-8 and determined whether to issue a commission for Petitioner with Delta Company Police. Clark testified that he reviewed documentation from Petitioner’s employment with Lankford Company Police, and determined that Petitioner knowingly made a material misrepresentation when he answered Question 26 on his Form F-3 stating that he had not been terminated or asked to resign because of criminal or personal misconduct or rules violations.

12. Clark also testified that after Petitioner was terminated from his employment with Lankford Company Police in March 2010, and before Petitioner applied for employment with Delta Company Police in July 2010, Petitioner contacted him to obtain a copy of his Report of Separation Form F-5B from Lankford. Clark testified that he sent a copy of Petitioner’s Report of Separation Form F-5B to Petitioner before Petitioner submitted his Personal History Statement Form F-3 for employment and certification with Delta Company Police.

13. Lankford Company Police Chief Allen testified that Lankford Company Police employed Petitioner, and that she met with Petitioner concerning the complaint that Petitioner was watching television while on duty. Chief Allen testified that she wrote a written report with Petitioner present that stated that he received a disciplinary action because of the violation of company policy because he was watching television in his vehicle while on duty. The report also stated that Petitioner was suspended and that failure to improve will result in dismissal. Chief Allen also testified that she completed the Form F-5B that terminated Petitioner’s employment with Lankford Company Police, and testified as to the grounds for Petitioner’s termination as set forth in the Form F-5B. (Respondent’s Exhibit 7).

14. Lankford Company Police Major Gallimore testified that he observed Petitioner sitting in his vehicle while on duty. Major Gallimore testified that he observed several unlawful incidents take place within a few feet of Petitioner, including a male urinating on city property and a female consuming an alcoholic beverage. Major Gallimore testified that Petitioner remained in his vehicle during this time with no response. Major Gallimore testified that he explained the policy and procedures of the contract with the City of Greensboro to Petitioner, and that Petitioner was required to make rounds. Major Gallimore testified that Petitioner stated “well I guess you got me.” Major Gallimore also testified that he witnessed Petitioner watching television in his vehicle while on duty.

15. Petitioner testified that he had completed a Personal History Statement Form F-3 for Delta Company Police prior to his employment with Lankford Company Police in 2009 and 2010. Petitioner testified that after his employment with Lankford Company Police ended in March 2010, he re-applied for employment with Delta Company Police, and signed the last page of the Form F-3 for Delta Company Police and completed a new first page for the Form F-3 for Delta Company Police on July 3, 2010. Petitioner testified that he did not flip through the pages of the Form F-3 to make sure the form was completed correctly, and he did not answer Question 26 after the first time he had answered that question before his employment with Lankford Company Police.

16. On cross-examination, Petitioner admitted completing Question 31 of his Form F-3 and listing his prior work history to include his employment with Lankford Company Police. Petitioner admitted to stating that the reason for leaving his employment with Lankford Company Police was “was told Full Time - lied to repeatedly.” Petitioner also failed to explain why there was no answer on his Form F-8 for the question “Have you ever been terminated or asked to resign from any employment?” Petitioner also acknowledged that he answered the question on his Form F-8 that he went to work for Lankford Company Police, and that he had previously been employed with Randalman Police Department.

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. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received Notice of Hearing. 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. 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 certification.

3. 12 NCAC 02I .0212(c)(6) states that “[a] company police commission shall be revoked or denied upon a finding that . . . knowingly made a material misrepresentation of any information required for commissioning or certification from the Company Police Administrator, the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriffs' Education and Training Standards Commission[.]”

4. 12 NCAC 02I .0213(a)(4) states that “[w]hen 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 . . . . material misrepresentation of any information required for company police commissioning[.]”

5. The preponderance of the evidence supports the conclusion that Petitioner knowingly made a material misrepresentation of information required for commissioning from the Company Police Administrator when he completed the Personal History Statement Form F-3 on July 7, 2010 and answered the question “[i]f you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations give details” and Petitioner answered “No.”

6. Petitioner has the burden of proof. Petitioner has failed to show, by a preponderance of the evidence, that Respondent improperly denied his company police officer commission.

7. Respondent’s denial of the Petitioner’s company police officer commission is supported by substantial evidence.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that the Respondent deny the Petitioner’s company police officer commission for a period of three years because he knowingly made a material misrepresentation of information required for commissioning from the Company Police Administrator.

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 who 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 6th day of February, 2012.

____________________________

Selina M. Brooks ADMINISTRATIVE LAW JUDGE

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