STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PITT 10 DOJ 0703

HOSEA JAMES, )

Petitioner, )

)

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA DEPARTMENT )

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 §150B, contested case hearing of this matter. Based upon the Petitioner’s request, Administrative Law Judge Joe L. Webster heard this contested case in Halifax, North Carolina on June 23, 2010.

APPEARANCES

Petitioner: Hosea James

3805 E. Vancroft Circle, B-5

Winterville, NC 28590

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 the Respondent properly propose to deny Petitioner’s company police officer commission based on the Petitioner knowingly making material misrepresentations of information required for commissioning when he completed his application materials for East Carolina Health Company Police?

RULES AT ISSUE

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

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

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 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 company police commission letter mailed by the Respondent on February 8, 2010. (Respondent’s Exhibit 6)

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. Petitioner made application for a company police officer commission through

the East Carolina Health Company Police agency on or about December 8, 2009. (Respondent’s Exhibit 1)

4. Respondent found probable cause to deny Petitioner’s company police officer commission as a result of omissions from the Personal History Statement (Form F-3) completed on or about August 11, 2009 as part of his application with East Carolina Health Company Police. Probable cause was also found as a result of omissions from the Applicant Interview portion of the Mandated Background Investigation (Form F-8) that the Petitioner completed on or about July 8, 2009 as part of his application with East Carolina Health Company Police. (Respondent’s Exhibits 3 - 4, 6)

5. The first omission outlined in the finding of probable cause to deny Petitioner’s company police officer commission arises from the Personal History Statement (Form F-3). Specifically, question No. 46 asks, “Have you ever used prescription drugs other than under the supervision of, or as prescribed by, a physician?” In response, Petitioner checked the box by the answer “No”. However, evidence exists that Petitioner used prescription drugs (either Darvocet or Percocet) that were not prescribed to him. (Respondent’s Exhibit 3)

6. Page eight (8) of the Personal History Statement Form (Form F-3), which was completed and signed by Petitioner on or about August 11, 2009 contains the following note regarding question # 46:

In questions 43, 44, 45 and 46, the words drink or used mean “one time or more,” including experimentation. If any answer is yes, give full and complete details. (Attach extra sheets if necessary.) (Respondent’s Exhibit 3)

7. Page ten (10) of the Personal History Statement (Form F-3) 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 I understand that any misstatement or omissions of information will subject me to disqualification or dismissal. I also acknowledge that I have a continuing duty to update all information contained in this document. I will report to the employing agency and forward to the NC Criminal Justice Education and Training Standards Commission any additional information which occurs after the signing of this document.

(Respondent’s Exhibit 3)

8. Agent April DeMarco of the State Bureau of Investigation (SBI) testified that part of her responsibilities at the SBI include conducting pre-employment polygraphs for the company police program. Agent DeMarco scheduled the Petitioner for a polygraph examination on October 14, 2009. Prior to the examination, Agent DeMarco reviewed the application materials that the Petitioner had prepared for East Carolina Health Company Police and submitted to the Company Police Administrator. On October 14, 2009, Agent DeMarco conducted both a pre- and post-polygraph interview with the Petitioner. During the pre-polygraph interview, Petitioner informed Agent DeMarco that he used prescription drugs that were not prescribed for him. Specifically, he stated that in 2001 he used his girlfriend’s Darvocet or Percocet for knee pain because he was not prescribed any medications at that time. A summary of Agent DeMarco’s interviews with Petitioner were sent to the Company Police Administrator. (Respondent’s Exhibit 2)

9. Petitioner testified to using prescription drugs, either Darvocet or Percocet, not prescribed to him. He explained that he did this as a result of being in great pain from a football injury. He stated that he had a prescription, but he could not get to the pharmacy to pick it up because he could not drive as a result of the injury. He therefore took some prescription painkillers, either Darvocet or Percocet, belonging to his girlfriend.

10. When asked why he answered “No” to question # 46 of the Personal History Statement when he had in fact used prescription medication without a prescription, Petitioner stated that he answered “No” because he in fact did have a prescription, but he just was not able to fill it at the time. He stated that, “since I had a prescription coming later, I thought it was ok to take her pill because of my pain”. Petitioner indicated that he could have answered “Yes” and then explained his answer clearly.

11. The second omission outlined in the finding of probable cause to deny Petitioner’s company police officer commission arises from the Applicant Interview portion of the Mandated Background Investigation which is recorded on the Form F-8. (Respondent’s Exhibit 4)

12. The Mandated Background Investigation Form F-8 is utilized to “fully and adequately evaluate applicants for law enforcement and criminal justice officer certification. This investigation is required to ascertain whether the applicant meets the minimum standards for certification.” Attachment I of the Mandated Background Investigation is the applicant interview section which contains 107 questions that must be asked by the background investigator. (Respondent’s Exhibit 4)

13. During the applicant interview portion of the Mandated Background Investigation, the Petitioner was asked the following questions by Captain Cullipher of the East Carolina Health Company Police agency and Petitioner provided the following corresponding answers:

Q # 49: Explain your knowledge or involvement regarding illegal drugs.

A: No involvement

Q # 50: Have you ever possessed or sold any amount of illegal drugs? When?

A: No

Q # 59: Have you ever used prescription drugs other than under the supervision of or as prescribed by a physician?

A: No

Q # 31: Have you committed any illegal act in the last five years, and if so, what?

A: No

Q # 32: Describe any criminal involvement that you may have had in the past.

A: None

Q # 34: Have you committed any illegal act since you turned the age of 16? This would include taking pencils/pens from an employer; taking change from a drawer at work for a drink; money out of a cash register; items for a scavenger hunt; shoplifting to any degree.

A: None

However, evidence exists that Petitioner sold crack cocaine once when he was 14 years old, sold two Percocet pills to his college roommate, took toiletry items from his place of employment to include toilet paper and paper towels that he later replaced, shoplifted a pair of shoes, a Starter brand jacket, gum, candy, and towels from hotels. (Respondent’s Exhibit 4)

14. During the pre-polygraph interview, Petitioner made the following admissions to Agent DeMarco:

He sold a $20.00 piece of crack cocaine once when he was 14 years old that a drug dealer gave to him to sell because he was curious to know what it was like to sell drugs;

In 2004 he took some toiletry items, including toilet paper and paper towels, from his place of employment and later replaced the items with ones that he had purchased ;

When he was 16 years of age, he shoplifted a $60.00 pair of shoes, $50.00 Starter brand jacket and some gum and candy; and

In 2002 he stole towels from hotels at which he stayed for football games at East Carolina University. (Respondent’s Exhibit 2)

15. During the post-polygraph interview, Agent DeMarco asked the Petitioner what

questions he thought he might have struggled with on the test. Petitioner responded by telling Agent DeMarco that he sold two of his prescribed Percocet pills to his college roommate for $5.00 each because he was low on money. He stated that he was prescribed the pills for knee related pain from ACL surgery. Petitioner told Agent DeMarco that he did not ask his roommate why he needed the pills but he thought that he wanted them for pleasure or recreational use.

16. Petitioner testified regarding the admissions that he made to Agent DeMarco.

Regarding selling crack cocaine when he was 14 years old, Petitioner stated that he was sitting outside in his neighborhood when a man walked up and asked to buy a “20 piece of rock”, and the drug dealer sitting next to him said, “here, hand this to him.” Petitioner took the crack and handed it to the purchaser.

17. Petitioner similarly testified to selling two Percocet pills to his roommate in college. He testified that he had taken two Percocets himself to try and get some sleep. About an hour later, his roommate came in, woke him up, and said, “I’ll give you ten bucks for two pills” Petitioner agreed to this and testified that he thought at the time, I’ll take that to get more food later for late night snacks. He also stated that he did not know whether the roommate was going to use the pills for pain relief or for recreational purposes, and he was very out of it as a result of taking the pills and sleeping.

18. When asked why he had not admitted to selling crack cocaine when he was

asked: Explain your knowledge or involvement regarding illegal drugs; Have you ever possessed or sold any amount of illegal drugs?; and Describe any criminal involvement that you may have had in the past, Petitioner stated that he still thought he had not possessed illegal drugs because he merely passed the crack cocaine from the dealer standing next to him to the man who was purchasing the drug. Petitioner further stated, in my mind, it’s still a “No” on the crack cocaine issue. In my sense, I was thinking of it being solely my possession, and it was not solely my possession. I just happened to be standing there, and yes I possessed it, but it wasn’t my possession or property.

19. When asked if he had admitted selling crack cocaine or the other crimes he disclosed to Agent DeMarco during his background investigation that was conducted by Captain Cullipher, Petitioner said that he had not disclosed those incidents because “they didn’t seem like major things to me, and they just didn’t come to mind when I was talking to the Captain”.

20. Marvin Clark, the Company Police Administrator, received and reviewed the application materials from the Petitioner for commissioning through East Carolina Health Company Police on or about December 8, 2009. Mr. Clark indicated a polygraph examination is mandatory for applicants for company police officer commissions that do not hold general certification as a law enforcement officer. He explained that company police officers are sworn law enforcement officers and have to complete the same basic training and mandated in-service training requirements as do officers in a municipal police department.

21. Mr. Clark received the summary of Agent DeMarco’s interviews with the Petitioner on or about October 23, 2009. He then reviewed the notes and compared that information to the application materials that had previously been submitted on behalf of the Petitioner. Mr. Clark noticed a discrepancy in the answers provided by the Petitioner related to his possession and involvement with drugs and commission of certain criminal offenses. He then requested that the Petitioner explain his inconsistent answers.

22. Petitioner submitted, via U.S. Mail, a statement to Mr. Clark indicating the following:

When I was a young man in Jacksonville NC I lived in a neighborhood that was filled with a lot of bad things around me on a daily basis. Between the ages of 13-14 I sold a single twenty piece of crack cocaine for twenty dollars from a local drug dealer and after doing it I was told not to get involved with that lifestyle because I could do better and I have. ... When I was working at this local company in 2004 I took 2 rolls of toilet paper and 1 roll of paper towels due to not having the funds to purchase some at that time. I informed the supervisor and told him that I would replace them once I received my paycheck. I replaced the 3 rolls of toiletries paper back to the company. ...When I was younger around 11-13 I shoplifted different things due to the fact of my mother not being able to supply them for me. So I tried to get different items so that mother would not have to do so because she had bills to pay. ...In college when we had away games on occasion I would take a wash cloth to keep on me during the game in order for me to wipe my face during the play of football while on the field. ...In 2001 I had gone through my 9th surgery on my knee due to an injury. During that time I had run out of medication and my girlfriend at that time had just had a medical treatment done on her where she needed pain medication. I had run out of my meds and was in bad pain and took one of her pain pills until I was able to get to a pharmacy to get my meds refilled. ... In 2000 during my first surgery on my knee in college I was approached by my roommate and he stated to me that he would give me 10 dollars for one of my Percocet. I stated to him yes because I could use 10 dollars to purchase some food at that time. (Respondent’s Exhibit 5)

23. Petitioner responded to the Respondent’s First Set of Requests for Admissions,

Interrogatories, and Requests for Production of Documents on or about May 27, 2010. (Respondent’s Exhibit 7)

24. Petitioner testified he was hired at East Carolina Health Company Police in July 2009 as a company police officer. Since that time, he has been working at the Roanoke Chowan Hospital on behalf of East Carolina Health Company Police in a non-sworn security position. He indicated the answers listed in the applicant interview section of the Mandated Background Investigation (Form F-8) are the answers he gave Captain Cullipher. Petitioner said that before the polygraph examination, Agent DeMarco asked him a series of questions about drugs and other things in his past, and at that time, “(thoughts started coming through my mind, and I realized I needed to be honest. The pre-test interview jarred memories in my head, and stuff just came to mind.”

25. Petitioner testified that he graduated from high school in 1997 and then attended Hargrove Military Academy for one year in order to prepare for college. He then attended college at East Carolina University (ECU) from 1998 until he graduated in 2003. While attending ECU, he played varsity football. He attended ECU on a full athletic scholarship that included his tuition, dormitory room, 3 meal a day food plan, athletic training, tutoring and medical treatment.

26. Petitioner attended and graduated from Basic Law Enforcement Training (BLET) at Pitt Community College in May 2009. His instructors in BLET reviewed the application forms with all the students during orientation at the beginning of the program and two to three additional times throughout the program. Petitioner indicated that the students were given an opportunity to have questions answered if there were any.

27. Petitioner presented two character witnesses on his behalf. Chief Randall Walston, a police officer with 19 years of experience, testified that a police agency in a hospital setting requires a very specific type of officer. He indicated that a suitable officer in the hospital setting must be sociable, community oriented and not overly aggressive.

28. Chief Walston indicated that when he found out what Petitioner had disclosed

to the polygrapher that it was of “great concern” to him. However, he believes that Petitioner is the “total package” in that he has a great personality and they are very pleased with his educational background.

29. Captain Ronald Cullipher, a law enforcement officer for 9 years, described Petitioner as a “real asset” to Roanoke Chowan Hospital. He indicated that employees of the hospital are “at ease” when Petitioner is on duty.

30. Petitioner presented one letter of reference from Mr. Bo Miller, Director of Facility Services at the Roanoke Chowan Hospital and one from Mr. Jeffrey Robinson, director of Public Safety Training at Pitt Community College. (Petitioner’s Exhibits 1-2)

31. The Mandated Background Investigation (Form F-8) and Personal History Statement (Form F-3), completed by Petitioner as part of his application with East Carolina Health Company Police, are necessary and required parts of the application process to become a commissioned company police officer.

32. Petitioner knowingly made material misrepresentations of fact on the Applicant Interview portion of the Mandated Background Investigation (Form F-8) that he completed as part of his application with East Carolina Health Company Police on or about July 8, 2009, as well as on the Personal History Statement (Form F-3) on or about August 11, 2009 by failing to include the information related to his possession of illegal drugs, selling of illegal drugs, shoplifting, and use of prescription drugs without a prescription.

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 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 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 the applicant for commission has knowingly made a material misrepresentation of any information required for commissioning or certification from the Company Police Administrator.

4. 12 NCAC 02I .0213(a)(4) states in pertinent part that:

When 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 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 Petitioner has the burden of proof. The Petitioner has failed to show, by a preponderance of the evidence that Respondent improperly proposed to deny his company police officer commission.

6. Petitioner knowingly made material misrepresentations of fact on the applicant interview portion of the Mandated Background Investigation (Form F-8) completed by the Petitioner on or about July 8, 2009 as well as on the Personal History Statement (Form F-3) on or about August 11, 2009 as part of his application for employment with East Carolina Health Company Police by failing to include the information related to his possession of drugs, selling of illegal drugs, illegal acts such as shoplifting, and use of prescription drugs not prescribed to him.

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

8. Petitioner has presented substantial evidence that rebuts the presumption that he lacks good moral character and has demonstrated the likelihood that he will have good moral character in the near future.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that the Respondent suspend Petitioner's company police officer commission for a period of not less than three (3) years for knowingly making material misrepresentations of fact on the Personal History Statement (Form F-3) and during the applicant interview portion of the Mandated Background Investigation (Form F-8) completed by the Petitioner as part of his application with East Carolina Health Company Police. Such suspension shall be suspended for three (3) years and the Petitioner placed on probation on the condition that the Petitioner not violate any laws of North Carolina or any other State’s laws, and not to violate this Commission’s rules or the rules of any other regulatory agency.

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 that 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, Company Police Program.

IT IS SO ORDERED.

This the 30th day of September, 2010

____________________________

Joe L. Webster Administrative Law Judge

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