STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 07 DOJ 1558

STEVEN L. HAIRE )

Petitioner, )

)

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA DEPARTMENT )

OF JUSTICE, CAMPUS POLICE )

PROGRAM, )

Respondent. )

)

______________________________ )

In accordance with N.C. Gen. Stat. § 150B-23, Petitioner requested the designation of an administrative law judge to preside at an Article 3, N.C. Gen. Stat. § 150B, contested case hearing of this matter. Based on Petitioner’s request, Administrative Law Judge Shannon R. Joseph heard this contested case in Fayetteville, North Carolina on 3 April 2008. Petitioner seeks review of Respondent’s denial of his application for campus police officer commission.

Following the contested case hearing, the Record was held open to allow for submission of proposed findings of fact and conclusions of law, with Petitioner’s time to file extended for ten (10) days following Respondent’s submission. Respondent timely submitted its draft proposal for decision on 17 April 2008. The Record thereafter closed on 28 April 2008.

APPEARANCES

Petitioner: Steven L. Haire, pro se

4600 Strathmore Avenue

Fayetteville, North Carolina 28304

Respondent: J. Joy Strickland, Assistant Attorney General

Attorney for Respondent

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Did Respondent properly deny Petitioner’s campus police officer commission?

RULES AT ISSUE

12 NCAC 02J .0201(4)

12 NCAC 09A .0204(b)(6)

12 NCAC 02J .0210(a)(4)

BASED ON 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 campus police officer commission letter mailed by the Respondent on 16 August 2007. (Respondent’s Exhibit 7)

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

3. Respondent found probable cause to deny Petitioner’s campus police officer commission as a result of omissions from the Personal History Statement (Form F3) that Petitioner completed and signed as part of his application with Methodist University Campus Police on or about 9 May 2007 and the Report of Appointment/Application for Certification (Form F-5A) which Petitioner completed and signed on or about 13 May 2007. (Respondent’s Exhibits 1 and 2)

4. The first omission outlined in the finding of probable cause to deny Petitioner’s campus police officer commission arises from the Personal History Statement (Form F3). Specifically, Petitioner responded to question number 47, which reads, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” by checking the block beside “No.” In so doing, Petitioner did not identify a 1990 misdemeanor breaking and entering charge in Cumberland County file number 90 CR 004279. (Respondent’s Exhibit 3)

5. Page eight (8) of the Personal History Statement Form (Form F3), which Petitioner completed and signed on or about 9 May 2007, contains the following instruction just above question number 47:

Include all offenses other than minor traffic offenses. The following are not minor traffic offenses and must be listed below: DWI, DUI (alcohol or drugs), failure to stop in the event of an accident, and driving while license permanently revoked or permanently suspended.

Answer all of the following questions completely and accurately. Any falsifications or misstatements of fact may be sufficient to disqualify you. If any doubt exists in your mind as to whether or not you were arrested or charged with a criminal offense at some point in your life or whether an offense remains on your records, you should answer “Yes.” You should answer “No,” only if you have never been

arrested or charged, or your record was expunged by a judge’s court order.

(Respondent’s Exhibit 1) (italicized emphasis added).

6. Page ten (10) of the Personal History Statement (Form F3) 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 understand that any misstatement or omission of information will subject me to disqualification or dismissal.

(Respondent’s Exhibit 1)

7. The second omission outlined in the finding of probable cause to deny Petitioner’s campus police officer commission arises from the Report of Appointment/Application for Certification (Form F-5A) which Petitioner completed and signed on or about 13 May 2007 as part of his application for employment with Methodist University Campus Police. Specifically, Petitioner checked the box beside “NO CRIMINAL CHARGES” in the criminal record section. In so doing, Petitioner did not identify a 1990 misdemeanor breaking and entering charge in Cumberland County file number 90 CR 004279. (Respondent’s Exhibit 3)

8. The instruction in the criminal record section of the Report of Appointment/Application for Certification Form F-5A indicates in part:

ALL APPLICANTS AND TRANSFERS MUST READ AND COMPLETE THIS CRIMINAL RECORD SECTION IN THEIR OWN HANDWRITING

Each applicant must list any and all criminal charges regardless of the date of offense and the disposition (to include dismissals, not guilty, nol pros, PJC, or any other disposition where you entered a plea of guilty). Do not include minor traffic offenses.

(Respondent’s Exhibit 2) (emphasis in original).

9. Additionally, page 2 of the Report of Appointment/Application for Certification (Form F-5A) contains the following portion of a paragraph just above Petitioner’s notarized signature:

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 of the 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.

(Respondent’s Exhibit 2) (emphasis in original).

10. On or about 30 January 1990, when he was approximately 18 years-old, Petitioner was served with a warrant for arrest charging him with the offense of misdemeanor breaking and entering, and was taken to the Cumberland County Magistrate’s Office. Although Petitioner’s proper first name is “Steven,” unknown to Petitioner at the time, county personnel used the name “Steve Lynn Haire” on court documents related to the charge. Petitioner testified that, despite the error in his first name, he was the individual named in the court document. Petitioner did not remember if he had to post a bond. Petitioner indicated that he hired an attorney whom he had known for some time to represent him and, when he went to court, the District Attorney’s office dismissed the case. (Respondent’s Exhibit 3)

11. Some fourteen (14) years later, on or about 28 June 2004, Petitioner completed and signed a Report of Appointment/Application for Certification Form F-5A for Fayetteville State University. On that 2004 Form, Petitioner listed the 1990 misdemeanor breaking and entering charge from Cumberland County. (Respondent’s Exhibit 4)

12. Petitioner testified that he is a teacher and bus driver with Cumberland County Schools and has been employed part-time with Methodist University since 2003 as a plain clothes security officer for special events. He testified that he assumed the breaking and entering charge was still on his record in 2004 when he applied with Fayetteville State University, so he listed the charge on his application forms. Thereafter, Petitioner testified that, based in part on his attorney’s representation to him that the attorney would have the dismissed charge expunged, Petitioner formed a belief that the attorney had taken care of having the charge expunged. In multiple criminal record checks conducted later, the charge did not appear. The combination of the attorney’s assurance that he would ensure that the matter was expunged along with the multiple criminal record checks that did not show the charge caused Petitioner to believe that his attorney had in fact effected expunction of the charge.

13. At the time of completing and signing the 2007 Forms, Petitioner was not able to confirm with the attorney whether expunction had been effected because the attorney had died. Petitioner therefore attempted to confirm that the charge had been expunged by requesting a record check from the Cumberland County Clerk’s Office run in his name: “Steven Lynn Haire.” That record check did not show any charges. At the hearing, when questioned about the instruction on the record check request form indicating that the clerk’s office would only run the record on the names listed, Petitioner said that he did not read the instruction and that he had believed the record check would be run on any variation of his name. (Respondent’s Exhibit 9)

14. Petitioner introduced several e-mails between Ms. Huskey, the Campus Police Administrator, and Chief Dawn Hamerla of Methodist University Campus Police regarding Petitioner’s application. Additionally, Petitioner introduced two letters from attorney James Parish, dated after Petitioner’s application was submitted for commission as a campus police officer, indicating that his law firm had been retained to expunge a misdemeanor case which was dismissed in 1990 and that the record had since been expunged. The exhibits also included two memoranda of professional references. (Petitioner’s Exhibits 3, 5-6, 8, 13-14)

15. Chief Dawn Hamerla of Methodist University Campus Police, Director of Public Safety and the Chief of Police for Methodist University, testified that she requested that criminal history record checks be conducted on Petitioner during the application process and, to her knowledge, none of the records reflected a misdemeanor breaking and entering charge from Cumberland County in 1990. Chief Hamerla explained that she believes those record checks would have been run by using the Petitioner’s full name, date of birth, social security number and driver’s license number such that the search would be conducted based on multiple identifying information. She acknowledged, however, that a particular charge may not show up in a criminal history check if a person’s fingerprints were not taken at the time of arrest. Chief Hamerla also testified that Petitioner has good work product, no history of lying, and shows up when he says he will. Additionally, she indicated she has no complaints about Petitioner, no problems with his work ethic, and that he is a good fellow.

16. Petitioner’s assertion that he omitted the 1990 dismissed charge because he believed that the charge had been expunged is credible in light of a preponderance of the evidence presented. Specifically, Petitioner was assured by an attorney whom he had known for a number of years that the attorney would ensure that the dismissed charge would be expunged from his record. It is reasonable for Petitioner to have believed the assurance of the attorney whom he had known for a number of years. Indeed, whether or not a client has known a lawyer for years, a client who has engaged a lawyer licensed by the State of North Carolina and subject to the Rules of Professional Conduct of the North Carolina State Bar has reason to believe that lawyer’s representations of the work that the lawyer has done and will do. To conclude otherwise would be to eviscerate essential elements of the attorney-client relationship. Moreover, in this case, the criminal record checks run by the Police for Methodist University (at Chief Hamerla’s request) and by Cumberland County (at Petitioner’s request) did not reflect any information that would have called into question the belief that the 1990 dismissed charge had in fact been expunged: to the contrary. That said, there is no question that Petitioner could have been more diligent and used better judgment. Among other things, he could have insisted on paperwork from the court confirming expunction of the dismissed charge and he could have thoroughly read the instructions on the criminal record request form he used in his Cumberland County request. Petitioner’s lapses of diligence and judgment, however, are not so egregious as to call into question Petitioner’s honesty or integrity or to suggest even that Petitioner acted with reckless indifference to the truth. Indeed, Petitioner attempted to confirm that the charge had been expunged before completing and submitting the application forms. Unfortunately, that effort was clumsy and, unknown to Petitioner at the time, filled with misunderstandings and mistakes. In this regard, although Petitioner failed to read important instructions on the Cumberland County criminal record check form, it cannot be said that it is manifestly inappropriate to use your own full name when investigating your own criminal record. Further, the misunderstanding that the record had been cleared through expunction was compounded by the clear results of the criminal record checks run by the Police for Methodist University, which were believed to search records using multiple identifiers other than name.

17. Honesty and integrity are essential job functions of sworn law enforcement officers. The questions contained in the application forms for sworn law enforcement officer positions are utilized by the Criminal Justice Education and Training Standards Commission to determine whether a person is eligible for commission and/or certification as well as whether they meet the essential job functions, including whether the applicant is honest. Therefore, any answers provided to the questions are material. 12 NCAC 02J .0210(a)(4). The question, however, remains whether Petitioner’s conduct in this case constitutes a knowing misrepresentation that would call into question his honesty and integrity based on a preponderance of the evidence. See 12 NCAC 09A .0204(b)(6) (denial of certification proper when an applicant “has knowingly made a material misrepresentation).

18. Petitioner did not knowingly make a material misrepresentation of fact on the Personal History Statement (Form F-3) completed and signed by the Petitioner on or about 9 May 2007 as part of his application for employment with Methodist University Campus Police when he did not list the 1990 misdemeanor breaking and entering charge from Cumberland County in response to question number 47.

19. Petitioner did not knowingly make a material misrepresentation of fact on the Report of Appointment/Application for Certification (Form F-5A) Petitioner completed and signed on or about 13 May 2007 as part of his application for employment with Methodist University Campus Police when he did not list 1990 misdemeanor breaking and entering charge from Cumberland County in the criminal record section.

20. Petitioner credibly testified that he believed that expunction of the dismissed charge effectively erased the dismissed charge as though it had never happened. Having formed a belief, though erroneous, that the dismissed charge had been expunged, Petitioner believed that he had no previous charges to report. Although not included in the Form F-5A, this belief was reinforced by the instruction on the Form F-3 that expunged charges need not be reported.

BASED ON the foregoing Findings of Fact and on 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. Respondent has the authority granted under Chapter 74G of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2J, to commission campus police officers and to revoke, suspend or deny such certification.

3. 12 NCAC 02J .0200 states that a campus police officer commission shall be denied upon a finding that the officer fails to meet any of the required minimum standards.

4. 12 NCAC 02J .0201(4) states that:

Every campus police officer must meet the following requirements to obtain and maintain a campus 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 material.

5. 12 NCAC 09A .0204(b)(6) states that the Commission may suspend, deny or revoke 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.

6. 12 NCAC 02J .0210(a) states that:

When the Attorney General, or his designee, suspends or denies the commission of a campus 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, 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 campus police commissioning.

7. Petitioner has the burden of proof. Petitioner has shown, by a preponderance of the evidence, that Respondent improperly denied his campus police officer commission.

8. Petitioner did not knowingly make a material misrepresentation of fact on the Personal History Statement (Form F-3) completed and signed by Petitioner on or about 9 May 2007 as part of his application for employment with Methodist University Campus Police when he did not list 1990 misdemeanor breaking and entering charge from Cumberland County in response to question number 47.

9. Petitioner did not make a material misrepresentation of fact on the Report of Appointment/Application for Certification (Form F-5A) the Petitioner completed and signed on or about May 13, 2007 as part of his application for employment with Methodist University Campus Police when he did not list 1990 misdemeanor breaking and entering charge from Cumberland County in the criminal record section.

10. The Personal History Statement (Form F-3) and the Report of Appointment/Application for Certification (Form F-5A) completed by Petitioner as part of his application with Methodist University Campus Police, were necessary and required parts of the application process to become a commissioned campus police officer.

11. Petitioner formed the belief that the 1900 charge had been expunged based erroneously, but not entirely unreasonably, on the assurance of counsel known to him personally and multiple record checks conducted by more than one party not showing the charge at issue. In light of Petitioner’s credible testimony of his belief that the 1990 dismissed charge had been expunged, Petitioner has proved by a preponderance of the evidence that he did not knowingly make a material misrepresentation in his application to become a commissioned campus police officer.

PROPOSAL FOR DECISION

NOW, THEREFORE, based on the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that Respondent grant Petitioner’s campus police officer commission.

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.

This the 22d day of May, 2008.

____________________________

Shannon R. Joseph

Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download