STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 02 DOJ 0603

BENTRELL BLOCKER )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA SHERIFFS’ )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

Respondent )

This case came on for hearing on September 5, 2002 before Administrative Law Judge Sammie Chess, Jr. in Charlotte, North Carolina. This case was heard after Respondent requested, 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.

APPEARANCES

Petitioner: Thomas C. Porter

Attorney for Petitioner

301 South McDowell Street

Suite 305

Charlotte, North Carolina 28204

Respondent: Lorrin Freeman

Attorney for Respondent

Department of Justice

Law Enforcement Liaison Section

P.O. Box 629

Raleigh, N.C. 27602-0629

ISSUES

Did the Petitioner fail to maintain minimum requirements for employment or certification as a detention officer by failing to notify the North Carolina Sheriff’s Education and Training Standards Commission within five days of being charged with a criminal offense as required by Commission rules?

FINDINGS OF FACT

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received proper notice of hearing required pursuant to N.C.G.S. § 150B-38 and that Petitioner received Notification of Probable Cause to Revoke Certification-Justice Officer letter mailed by Respondent on March 6, 2002.

2. The North Carolina Sheriffs’ Education and Training Standards Commission (Respondent) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10, Subchapter 10B, to certify justice officers as either deputy sheriffs or jailers, and to deny, revoke or suspend such certification.

3. On July 29, 1999 Petitioner was charged with the Class B misdemeanor offense of Assault on a Female in violation on N.C.G.S. §14-33(c)(2).

4. Petitioner did not notify the North Carolina Sheriff’s Standards Division of this charge until August 11, 1999, more than ten days after he was charged.

5. That 12 NCAC 10B .0301(a)(7) provides:

a) Every justice officer employed or certified as a Deputy Sheriff or Jailer in North Carolina shall:

(7) within five working days notify the Standards Division and the appointing department head in writing of all criminal offenses with which the officer is charged; and shall also give notification, in writing, to the Standards Division and the appointing department head following the adjudication of these criminal charges. This shall include all criminal offenses except minor traffic offenses and shall specifically include any offense of Driving Under The Influence (DUI) or Driving While Impaired (DWI). A minor traffic offense is defined, for purposes of this Subparagraph, as an offense where the maximum punishment allowable is 60 days or less. Other offenses under G.S. 20 (Motor Vehicles) or similar laws of other jurisdictions which shall be reported to the Division expressly include G.S. 20-139 (persons under the influence of drugs), G.S. 20-28(b) (driving while license revoked or permanently suspended) and G.S. 20-166 (duty to stop in event of accident). The initial notification required must specify the nature of the offense, the date of offense, and the arresting agency. The notifications of adjudication required must specify the nature of the offense, the court in which the case was handled and the date of disposition, and must include a certified copy of the final disposition from the Clerk of Court in the county of adjudication. The notifications of adjudication must be received by the Standards Division within 30 days of the date the case was disposed of in court. Officers required to notify the Standards Division under this Subparagraph shall also make the same notification to their employing or appointing department head within 20 days of the date the case was disposed of in court. The department head, provided he has knowledge of the officer's charge(s) and Domestic Violence Orders (50B) shall also notify the Division within 30 days of the date the case or order was disposed of in court. Receipt by the Standards Division of timely notification of the initial offenses charged and of adjudication of those offenses, from either the officer or the department head, is sufficient notice for compliance with this Subparagraph; (Emphasis added)

6. That 12 NCAC 10B .0204(b)(2) provides:

(b) 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 minimum employment or certification standards required by 12 NCAC 10B .0300.

7. Mike McLaughlin, Investigator for Respondent, testified that he worked in the Training Division of the Mecklenburg Sheriff’s Office from 1996 to 2000 as an instructor and supervisor of recruits. Petitioner attended Detention Officer Certification Training in June 1997 during which time he was assigned to Mr. McLaughlin. As part of that training, Petitioner completed the Orientation Block. The Orientation Block used during that time includes instruction on Rule .0301(a)(7).

CONCLUSIONS OF LAW

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

2. That 12 NCAC 10B .0301(a)(7) provides:

b) Every justice officer employed or certified as a Deputy Sheriff or Jailer in North Carolina shall:

(7) within five working days notify the Standards Division and the appointing department head in writing of all criminal offenses with which the officer is charged; and shall also give notification, in writing to the Standards Division and the appointing department head following the adjudication of these criminal charges. This shall include all criminal offenses except minor traffic offenses and shall specifically include any offense of Driving Under The Influence (DUI) or Driving While Impaired (DWI). A minor traffic offense is defined, for purposes of this Subparagraph, as an offense where the maximum punishment allowable is 60 days or less. Other offenses under G.S. 20 (Motor Vehicles) or similar laws of other jurisdictions which shall be reported to the Division expressly include G.S. 20-139 (persons under the influence of drugs), G.S. 20-28(b) (driving while license revoked or permanently suspended) and G.S. 20-166 (duty to stop in event of accident). The initial notification required must specify the nature of the offense, the date of offense, and the arresting agency. The notifications of adjudication required must specify the nature of the offense, the court in which the case was handled and the date of disposition, and must include a certified copy of the final disposition from the Clerk of Court in the county of adjudication. The notifications of adjudication must be received by the Standards Division within 30 days of the date the case was disposed of in court. Officers required to notify the Standards Division under this Subparagraph shall also make the same notification to their employing or appointing department head within 20 days of the date the case was disposed of in court. The department head, provided he has knowledge of the officer's charge(s) and Domestic Violence Orders (50B) shall also notify the Division within 30 days of the date the case or order was disposed of in court. Receipt by the Standards Division of timely notification of the initial offenses charged and of adjudication of those offenses, from either the officer or the department head, is sufficient notice for compliance with this Subparagraph;

3. That 12 NCAC 10B .0204(b)(2) provides:

a) 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 minimum employment or certification standards required by 12 NCAC 10B .0300.

4. Petitioner failed to maintain minimum employment or certification standards by failing to notify the North Carolina Sheriff’s Standards Division of the misdemeanor charge of assault on a female pending against him until August 11, 1999, more than ten days after he was charged, in violation of 12 NCAC 10B .0301(a)(7) .

5. The Respondent’s proposed revocation of the Petitioner’s certification as a detention officer is supported by substantial evidence.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Petitioner’s certification as a detention officer not be revoked based upon his failure to notify within five working days the Sheriff’s Education and Training Standards Commission of the assault on a female charge pending against him. There is evidence that he acted in good faith in that he immediately notified his supervisor and immediately notified the Commission after meeting with Captain Howes of the Mecklenburg Sheriff’s Office of Professional Compliance.

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 15 day of November, 2002.

Sammie Chess, Jr.

Administrative Law Judge

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