STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF LENOIR

___________________________________

ROBERT KENDRICK MEWBORN,

Petitioner,

v.

NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND TRAINING

STANDARDS COMMISSION,

Respondent.

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IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

11 DOJ 10318

PROPOSAL FOR DECISION

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THE ABOVE-ENTITLED MATTER was heard before the undersigned Augustus B. Elkins II, Administrative Law Judge, on December 14, 2011, in New Bern, North Carolina. This case was heard pursuant to N.C.G.S. § 150B-40(e), designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes. The Parties were given 30 days to submit all proposals, memorandum or other material. Mailing time was allowed for submission as well as time allowed for receipt by the Administrative Law Judge. Time was allowed for submission by Petitioner but none was received. The record was closed on March 9, 2012.

APPEARANCES

Petitioner: Robert Kendrick Mewborn

Kinston, North Carolina 28504

Respondent: Catherine F. Jordan

Assistant Attorney General

Department of Justice

Law Enforcement Liaison Section

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Whether grounds exist for Respondent to deny Petitioner’s application for certification as a law enforcement officer based on Petitioner making a knowing material misrepresentation of information required for certification?

EXHIBITS

Petitioner’s Exhibit 1 was introduced and admitted.

Respondent’s Exhibits 1-13 were introduced and admitted.

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 by a preponderance of the evidence. In making these 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 witnesses, 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 this case.

FINDINGS OF FACT

1. Both parties are properly before the 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 Law Enforcement Officer Certification through a letter mailed by Respondent on June 1, 2011. (Respondent’s Exhibit 12)

2. The North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. 12 NCAC 09A.0204(b)(6) provides that the Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer has knowingly made a material misrepresentation of any information required for certification or accreditation.

4. 12 NCAC 09A.0205(b)(4) provides that when the Commission suspends or denies the certification of a criminal justice officer, the period of sanction shall be not less than five years; however, the Commission may either reduce or suspend the period of sanction under Paragraph (b) of this Rule or substitute a period of probation in lieu of suspension of certification following an administrative hearing, where the cause of sanction is material misrepresentation of any information required for certification.

5. Petitioner requested an administrative hearing after receiving the Probable Cause to Deny Law Enforcement Officer Certification letter. (Respondent’s Exhibit 13)

6. Richard Squires, investigator for Respondent, testified at the hearing that Respondent received documentation submitted on behalf of Petitioner for certification as a law enforcement officer with the Department of Kinston Public Safety. Mr. Squires testified that it is important for the applicant for certification to be honest in the completion of the forms. He testified that honesty is an important trait in law enforcement.

7. On November 22, 2010, Petitioner completed a Personal History Statement Form F-3 for the purposes of obtaining his law enforcement officer certification. (Respondent’s Exhibit 1) Petitioner signed and notarized the form on November 23, 2010. Id. Respondent received Petitioner’s Form F-3 on April 4, 2011. Id. Directly above Petitioner’s signature, there is a paragraph stating “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.”

8. Question 47 on Petitioner’s Form F-3 is titled “Criminal Offense Record and Disciplinary Actions.” (Respondent’s Exhibit 1) There is a paragraph stating: “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 any offense remains on your record, 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.”

9 Question 47 states: “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” (Respondent’s Exhibit 1) Petitioner answered that he was charged with “failure to stop at an accident” in August 1997, and that he received probation. Petitioner also answered that he was charged with assault on a female in July 1996, and these charges were dismissed. Petitioner failed to disclose the following criminal charges:

A. Communicating threats in 07 CR 051217. (Respondent’s Exhibit 2) Evidence showed that Petitioner was charged with communicating threats on March 23, 2007 in Lenoir County, North Carolina. Id. The offense date was March 22, 2007. Id. Petitioner’s criminal summons showed that the grounds exist to charge Petitioner. Petitioner’s criminal summons showed that he pled not guilty and the trial court found him to be not guilty on June 28, 2007.

B. Second degree trespass in 95 CR 005463. (Respondent’s Exhibit 4) Evidence showed that Petitioner was charged with second degree trespass on June 29, 1995 in Lenoir County, North Carolina. Id. The offense date was June 29, 1995. Id. Evidence showed that Petitioner waived his defense attorney. Evidence showed that the disposition was voluntary dismissal.

C. Simple Assault in 95 CR 003175. (Respondent’s Exhibit 5) Evidence showed that Petitioner was charged with simple assault on April 20, 1995 in Lenoir County, North Carolina. Id. The offense date was April 20, 1995. Id. Evidence showed that Petitioner pled guilty and the trial court found him to be guilty. Petitioner was required to pay a fine of $25.00 and costs of $60.00. Evidence showed that Petitioner paid this amount. Petitioner was sentenced to forty-five days imprisonment, and the trial court suspended his sentence and placed him on probation for eighteen months.

D. Assault on a female in 97 CR 002347. (Respondent’s Exhibit 6) Evidence showed that Petitioner was charged with assault on a female on November 9, 1997 in Greene County, North Carolina. Id. Petitioner pled not guilty and the trial court found him to be not guilty.

E. Second degree trespass in 97 CR 002348. (Respondent’s Exhibit 7) Evidence showed that Petitioner was charged with second degree trespass on November 9, 1997 in Greene County, North Carolina. Id. Petitioner pled not guilty and the trial court found him to be not guilty.

10. Question 52 on Petitioner’s Form F-3 states: “Have you ever been placed on probation?” (Respondent’s Exhibit 1) Petitioner answered “Yes” and answered “In 1997 for failure to stop at an accident.” Id. Petitioner failed to disclose:

A. On May 18, 1995, Petitioner was placed on probation for eighteen months after he pled guilty and the trial court found him to be guilty of simple assault. (Respondent’s Exhibit 5)

11. On December 23, 2010, an interview was conducted with Petitioner and on January 28, 2011, a mandated background investigation Form F-8 was completed for Petitioner. (Respondent’s Exhibit 8) Respondent received Petitioner’s Form F-8 on April 4, 2011. Id.

12. Question 32 on Petitioner’s Form F-8 states: “Describe any criminal involvement that you may have had in the past.” Petitioner answered “Charged with assault in 1996 - dismissed. Hit & Run. Leaving the scene of an accident.” Petitioner failed to disclose the following criminal charges:

A. Communicating threats in 07 CR 051217. (Respondent’s Exhibit 2) Evidence showed that Petitioner was charged with communicating threats on March 23, 2007 in Lenoir County, North Carolina. Id.

B. Second degree trespass in 95 CR 005463. (Respondent’s Exhibit 4) Evidence showed that Petitioner was charged with second degree trespass on June 29, 1995 in Lenoir County, North Carolina. Id.

C. Simple Assault in 95 CR 003175. (Respondent’s Exhibit 5) Evidence showed that Petitioner was charged with simple assault on April 20, 1995 in Lenoir County, North Carolina. Id.

D. Assault on a female in 97 CR 002347. (Respondent’s Exhibit 6) Evidence showed that Petitioner was charged with assault on a female on November 9, 1997 in Greene County, North Carolina. Id.

E. Second degree trespass in 97 CR 002348. (Respondent’s Exhibit 7) Evidence showed that Petitioner was charged with second degree trespass on November 9, 1997 in Greene County, North Carolina. Id.

13. Question 40 on Petitioner’s Form F-8 states: “Have you ever been convicted of a crime?” Petitioner answered “Yes. Hit & Run.” Petitioner failed to disclose the following conviction:

A. Simple Assault in 95 CR 003175. (Respondent’s Exhibit 5) Evidence showed that Petitioner was charged with simple assault on April 20, 1995 in Lenoir County, North Carolina. Id. The offense date was April 20, 1995. Id. Evidence showed that Petitioner pled guilty and the trial court found him to be guilty. Petitioner was required to pay a fine of $25.00 and costs of $60.00. Evidence showed that Petitioner paid this amount. Petitioner was sentenced to forty-five days imprisonment, and the trial court suspended his sentence and placed him on probation for eighteen months.

14. On March 8, 2011, Petitioner completed a Report of Appointment Form F-5A and submitted that form to Respondent for the purposes of obtaining his certification as a law enforcement officer with the Kinston Department of Public Safety. (Respondent’s Exhibit 9) Petitioner signed and dated the form on March 8, 2011. Id. Respondent received Petitioner’s Form F-5A on March 11, 2011. Id. The form instructed that “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).” Petitioner listed that he was charged with (1) assault on a female by the Lenoir County Sheriff’s Office, that the offense date was June 29, 1995, and the disposition was dismissed on July 20, 1995; (2) hit and run property damage by the Kinston Police Department, that the offense date was September 14, 1996, and the disposition was unsupervised probation on March 26, 1997; and, (3) communicating threats by the Kinston Police Department, that the offense date was March 22, 2007, and the disposition was dismissed June 28, 2007. Petitioner failed to disclose the following criminal charges:

A Second degree trespass in 95 CR 005463. (Respondent’s Exhibit 4) Evidence showed that Petitioner was charged with second degree trespass on June 29, 1995 in Lenoir County, North Carolina. Id.

B. Simple Assault in 95 CR 003175. (Respondent’s Exhibit 5) Evidence showed that Petitioner was charged with simple assault on April 20, 1995 in Lenoir County, North Carolina. Id.

C. Assault on a female in 97 CR 002347. (Respondent’s Exhibit 6) Evidence showed that Petitioner was charged with assault on a female on November 9, 1997 in Greene County, North Carolina. Id.

D. Second degree trespass in 97 CR 002348. (Respondent’s Exhibit 7) Evidence showed that Petitioner was charged with second degree trespass on November 9, 1997 in Greene County, North Carolina. Id.

15. On April 11, 2011, Mr. Squires drafted a memorandum that was submitted to Respondent’s Probable Cause Committee to determine whether Petitioner knowingly made material misrepresentations to obtain his law enforcement certification. (Respondent’s Exhibit 11)

16. The Probable Cause Committee found that Petitioner knowingly made material misrepresentations on his Form F-3, during his interview in conjunction with his Form F-8, and on his Form F-5A. (Respondent’s Exhibit 12) The Probable Cause Committee found probable cause existed to deny his application for law enforcement officer certification.

17. Petitioner testified at trial. He admitted to failing to disclose his criminal charges of communicating threats, second degree trespass, simple assault, assault on a female, and second degree trespass on his Form F-3. Petitioner admitted that he signed his Form F-3, swore it to be true, and submitted it to the Respondent for the purposes of obtaining his law enforcement officer certification. Petitioner admitted that he failed to list his probation for simple assault on his Form F-3. Petitioner admitted that he omitted his criminal involvement concerning his charges for communicating threats, second degree trespass, simple assault, assault on a female, and second degree trespass during his background investigation for his Form F-8. Petitioner admitted that he omitted his criminal conviction of simple assault during his background investigation for his Form F-8. Petitioner admitted that he omitted that he failed to list his criminal charges of second degree trespass, simple assault, assault on a female, and second degree trespass on his Form F-5A. Petitioner stated that he did not try to hide information but that he could not remember all of the charges.

18. On March 31, 2011, Petitioner wrote a letter to Respondent concerning his criminal charges. (Respondent’s Exhibit 10) Petitioner admitted that a warrant was issued against him for simple assault in 1995 and he was detained. He admitted that he was given a court date, that he appeared before a judge, and that he pled guilty. Petitioner admitted that he was jailed for this offense. Petitioner also provided details about his charges for second degree trespass in 1995, assault on a female in 1997, and second degree trespass in 1997. Petitioner stated that “[t]he reason I failed to put these offenses because nothing really stood out in my mind about these charges and after time went on I had completely forgotten about them. Now that I’m aware of all offenses, I take responsibility for not accurately checking this information.”

19. Petitioner was unable to fully explain why he had recalled two other charges of failure to stop at an accident in 1997 and assault on a female in 1996, but could not recall the other charges and the conviction that occurred in 1995, 1996, and 1997. Petitioner also was also unable to fully explain why he did not recall the communicating threats charge that occurred four years ago in 2007 when he went before a judge in court and pled not guilty.

20. On June 28, 2011, Petitioner wrote a letter to Respondent in which he attempted to explain why he did not remember the five criminal charges from 1995, 1996, 1997, and 2007 by stating that “it was a case of me not getting a full criminal history and not checking this information more carefully. Had I gotten a full background I wouldn’t have made these errors. But when I requested it the court house only went back ten years.” (Respondent’s Exhibit 13)

21. Petitioner did not fully reconcile his explanations of why he had not disclosed his five criminal charges from 1995, 1996, 1997, and 2007. On March 31, 2011, Petitioner stated that “[t]he reason [he] failed to put these offenses because nothing really stood out in my mind about these charges and after time went on I had completely forgotten about them.” (Respondent’s Exhibit 10) On June 28, 2011, Petitioner stated that “it was a case of me not getting a full criminal history and not checking this information more carefully. Had I gotten a full background I wouldn’t have made these errors. But when I requested it the court house only went back ten years.” (Respondent’s Exhibit 13)

22. Petitioner stated that he was embarrassed by his criminal charges, and that it was tough to talk about these charges because of his son.

23. Petitioner testified that he had worked to put himself through college. He has been married for 10 years and is the father of four. He also has a step-son. He has worked for the city of Kinston for nine years and has also worked at night. Petitioner submitted a letter (Petitioner’s Exhibit 1) from the Honorable B.J. Murphy, Mayor of Kinston, who wrote that he has known Petitioner “for almost two decades” and that even though “he has a record from his days as a teenager it does not reflect the integrity-driven man, husband and father he has become.”

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 the 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 North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. 12 NCAC 9A.0204(b)(6) states that:

b) The Commission may suspend, revoke or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer:

(6) has knowingly made a material misrepresentation of any information required for certification or accreditation[.]

4. Pursuant to N.C.G.S. § 150B-29(a) “the party with the burden of proof in a contested case must establish the facts required by N.C.G.S. § 150B-23(a) by a preponderance of the evidence.”

5 A preponderance of the evidence exists to support the probable cause finding that Petitioner knowingly made material misrepresentations of information required for certification when Petitioner completed a Personal History Statement, Form F-3 on November 23, 2010.

6. A preponderance of the evidence exists to support the probable cause finding that Petitioner knowingly made material misrepresentations of information required for certification when Petitioner completed an interview and answered questions for his Form F-8 on January 28, 2011.

7. A preponderance of the evidence exists to support the probable cause finding that Petitioner knowingly made a material misrepresentation of information required for certification when Petitioner completed a Report of Appointment, Form F-5A on March 8, 2011.

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:

PROPOSAL FOR DECISION

Petitioner failed to carry his burden of proof by a preponderance of the evidence that the Respondent acted erroneously and/or arbitrarily and/or capriciously in its decision to deny Petitioner’s application for certification as a law enforcement officer. The finder of fact cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side. Petitioner’s evidence in this case does not overbear in that degree required by law the weight of evidence of Respondent and therefore the decisions of the Probable Cause Committee are upheld.

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 Criminal Justice Education and Training Standards Commission.

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addresses to the party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. N.C.G.S. § 150B-42(a). It is requested that the agency furnish a copy to the Office of Administrative Hearings.

IT IS SO ORDERED.

This is the 20th day of April, 2012.

___________________________________

Augustus B. Elkins II

Administrative Law Judge

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