STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 09 DOJ 2639

John D. Dykes )

Petitioner, )

)

v. ) 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 Chapter 150B, contested case hearing of this matter. Based upon the Petitioner’s request, Administrative Law Judge J. Randall May heard this contested case in High Point, North Carolina, on June 3, 2009.

APPEARANCES

Petitioner: John D. Dykes

8326 Hitchcock Lane, Apt. 613

Charlotte, NC 28262

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 deny Petitioner’s company police officer commission for knowingly making a material misrepresentation of any information required for commission?

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 in a letter mailed by the Respondent on April 6, 2009. (Respondent’s Exhibit 5)

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. Respondent found probable cause to deny Petitioner’s company police officer commission as a result of an omission from the Personal History Statement (Form F-3) that the Petitioner completed and signed as part of his application with Kodiak Company Police on or about October 11, 2008. The Personal History Statement (Form F-3) completed by Petitioner, as part of his application with Kodiak Company Police is a necessary and required part of the application process to become a commissioned company police officer. (Respondent’s Exhibit 1)

4. Specifically at issue is question number 39, which reads, “Were you ever court martialed, tried on charges, or were you the subject of a summary court, deck court, captains mast or company punishment, or other disciplinary action while a member of the armed forces?” The Petitioner responded by checking “yes” with an explanation of “Article 15, I believe twice for late formation. Discharge, General under honorable conditions.” The Petitioner’s answer failed to include the non-judicial punishment he received while in the United States Army, for the offense of desertion that occurred between on or about October 22, 1989 and December 27, 1989. (Respondent’s Exhibits 1 and 3)

5. 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 1)

6. Vickie Huskey, the Company Police Administrator, testified that she received and reviewed the application materials from the Petitioner for commissioning through Kodiak Company Police. She received two copies of the Petitioner’s DD 214 Form from the agency. The block numbered 28 on one of the DD 214 forms lists the “NARRATIVE REASON FOR SEPARATION”. Ms. Huskey noticed that the second copy of the DD 214 form provided to her by Petitioner, differed from the first copy of the form. The first copy had listed “misconduct commission of a serious offense”, while the second copy had nothing listed under block 28. The block numbered 29 of the DD 214 form lists “DATES OF TIME LOST DURING THIS PERIOD”. There were three sets of dates listed on Petitioner’s DD 214 form as “lost time”: 891017-891226; 901011-901011; and 901121-901217. Due to the discrepancies between the two forms and the “lost time” data, Ms. Huskey requested information from the United States Army regarding the Petitioner and any disciplinary issues he may have had. (Respondent’s Exhibit 2)

7. The Department of the Army provided documentation to Ms. Huskey indicating Petitioner was issued an Article 15 (non-judicial punishment) on or about March 14, 1990, for the crime of “desertion” occurring on or about October 22, 1989. This is a crime punishable under Article 15 of the Uniform Code of Military Justice (UCMJ). Those documents revealed that there was a determination of guilt for the charge of desertion; and Petitioner was subjected to nonjudicial punishment from his Commander (Captain Jeffrey Rolka), which included an oral reprimand; a forfeiture of one-half months pay for two months; reduction in rank from E4 to E2; extra duty for forty five days; and was restricted for a period of 45 days. (Respondent’s Exhibit 3)

8. After receiving the documentation from the Department of the Army, Ms. Huskey requested that Petitioner provide her a written statement regarding why he had failed to list the nonjudicial punishment that he received while in the military in response to question number 39 of the Personal History Statement Form F-3. Petitioner’s statement described an incident that he said occurred in 1991 as his unit was packing for the first Gulf War. Petitioner wrote that he was threatened by his first sergeant, and when his supervisor would do nothing to assist him, he left Fort Bragg and went to Fort Lewis in Washington State. He further indicated that after arriving at Fort Lewis, he was transferred to Fort Ord and asked to stay in the army; but he declined. (Respondent’s Exhibit 4)

9. In answering the Respondent’s Requests for Admissions and Interrogatories, Petitioner claimed that he was not subject to nonjudicial punishment, and that he retained the pay grade of E-4 until his discharge. However, Petitioner’s DD 214 form reflects that his pay grade at the time of discharge was E-3.

Additionally in answering the Respondent’s Requests for Admissions and Interrogatories, Petitioner discussed two times that he was absent without authorized leave (hereinafter “AWOL”). He says the first time he went AWOL was in October 1989 after his sergeant threatened him. He indicated the second time he went AWOL was after the same sergeant threatened him again in 1991, as his unit was preparing to deploy for the first Gulf War. However, the documentation provided by the Department of the Army reflects that Petitioner was in fact disciplined by an Article 15 (nonjudicial punishment), for the more serious offense of “desertion” in March of 1990, with the desertion occurring between on or about October 22, 1989, and December 27, 1989. Petitioner’s official military records revealed no other punishment on charges of AWOL.

In his answers to the Respondent’s Requests for Admissions and Interrogatories, Petitioner claims that he did not “mention the desertion” in response to question number 39 of the Personal History Statement Form F-3 regarding disciplinary action “Because it didn’t ask me about what I did”.

(Respondent’s Exhibit 3 and 9)

10. Petitioner testified that the Basic Law Enforcement Training (BLET) School Director told the students in BLET that they should complete the application forms for certification completely. The BLET School Director specifically told the students “tell everything, don’t lie and don’t leave anything out” in reference to completing the application forms. Petitioner further testified that he read the entire paragraph above his signature on the Personal History Statement regarding providing accurate information (cited in Finding of Fact 5) and that he understood it.

11. Petitioner testified that he answered question number 39 of the Personal History Statement by listing Article 15 “late for formation” because he thought he had received an Article 15 for being late for formation at Fort Bragg on two occasions. He indicated he was late by approximately thirty seconds the first time and fifteen seconds on the second occasion. Petitioner admitted, however at the hearing to going AWOL from October of 1989 to December of 1989. Petitioner said he went home to Kentucky to his parents because his sergeant threatened him and the army would not do anything about it. Petitioner claimed he told his parents about the situation and then went back to Fort Bragg to turn himself in. He said when he arrived at Fort Bragg, he spoke to his superior who told him to go back to his barracks. The records provided by the Department of the Army indicate that after Petitioner surrendered himself to his unit two months after he went AWOL that he “was transported to the Ft Bragg AWOL APP TEAM (FERGUSON) where he was advised of his rights, further processed, and released to his unit on DD form 629”. Petitioner contends that at the time of this incident, the officials at Fort Bragg did not do what they were supposed to and would have written in the report that he was advised of his rights and processed even if they had not done so. He denied being advised of his rights or being processed in any way. Petitioner said he later called his mother and told her that he wasn’t being punished and she told him to “keep his head down”. He said that the reason he was not punished may have been because the military didn’t process the proper paperwork. (Respondent’s Exhibit 3)

Petitioner also admitted going AWOL a second time. He indicated that as he and his unit were preparing to deploy for the Gulf War, his sergeant threatened him again. At that time, he went AWOL because he felt his life had been threatened. Petitioner admitted that his unit deployed without him. Petitioner testified that after he deserted his unit he traveled to Ft. Lewis, Washington to turn himself in. Petitioner further testified that after he arrived at Ft. Lewis, he was “escorted” by a Federal Marshall on a commercial flight to Ft. Ord, California for processing out of the United States Army. Petitioner testified that he was never detained although once he arrived at Fort Ord, he was held in a “low, minimum security, almost open” secure barrack where other prisoners are detained. Petitioner claimed he was allowed to supervise the other soldiers and allowed to leave the base unescorted to see the band “Flock of Seagulls” at a local bar. The Petitioner further stated that he was given the chance to stay in the military but he declined and asked to be released. Petitioner did admit that when he was separated from the army that he had been reduced from an E-4 to an E-3 because they “had to at least take one rank.” He said that he had forgotten the reduction in rank when he filled out the paperwork where he indicated he was an E-4 at discharge because he was in a hurry to fill out the paperwork.

Petitioner stated that he knew the procedure for receiving nonjudicial punishment in the military and knew that anyone subject to nonjudicial punishment would have the opportunity to decline to accept it and face a court martial. He said that he knew the procedures, not because he was ever subject to nonjudicial punishment, but instead because everyone knew that you should take the nonjudicial punishment because the consequences of the court martial would be worse.

12. Chief Wilbert Carter of the Kodiak Company Police testified as a character witness on behalf of the Petitioner. He testified that he met the Petitioner at Gaston College where Petitioner was enrolled in Basic Law Enforcement Training. Chief Carter said that throughout the application process he found nothing immoral or unethical about Petitioner but did find the notation of commission of a serious offense on the Petitioner’s DD 214 to be a red flag. However, Chief Carter testified that he believes that everyone has an opportunity to change and that we should not be held accountable for an incident that occurred 20 years ago.

13. Petitioner’s assertion that he did not receive nonjudicial punishment for desertion (and therefore did not have to list it on the F-3) is not credible in light of the evidence presented. Petitioner claims that he believed he was subject to an Article 15 nonjudicial punishment for being late for formation by thirty seconds on one occasion and fifteen seconds on a second occasion. Yet he contends that he was not subject to an Article 15 nonjudicial punishment (as his records reflects), when he deserted the U.S. Army for over two months in late 1989 and again for almost one month in later 1990 just as his unit was set to deploy for the Gulf War. The military records clearly reflect Petitioner was issued an Article 15 nonjudicial punishment on or about March 14, 1990 for desertion occurring on or about October 22, 1989. Those documents reveal that there was a finding of guilt for the charge of desertion and Petitioner was subjected to nonjudicial punishment, which included an oral reprimand, a forfeiture of one-half months pay for two months, reduction in rank from E4 to E2, extra duty for forty-five days and was restricted for a period of 45 days. (Respondent’s Exhibit 2)

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) states 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 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:

(4) 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 denied his company police officer commission.

6. Petitioner knowingly made a material misrepresentation of fact on the Personal History Statement (Form F-3) that he completed and signed on or about October 11, 2008, as part of his application for employment with Kodiak Police Company, by failing to list the nonjudicial punishment that he received for the offense of desertion as required by question number 39 on the F-3 Form.

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

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, for knowingly making a material misrepresentation of fact on the Personal History Statement (Form F-3) completed by the Petitioner as part of his application with the Kodiak Company Police. The period of denial is hereby suspended for a period of three years on condition that Petitioner not violate any law (other than infractions and minor traffic offenses) of this state or any other state; any federal laws; any ordinances; and any rules of the North Carolina Criminal Justice Education and Training Standard’s Commission, the Company and Campus Police Program, or the North Carolina Sheriffs’ Education and Training Standards 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 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.

IT IS SO ORDERED.

This the 18th day of June, 2009.

J. Randall May

Administrative Law Judg

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