STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 09 DOJ 5316

MELVIN DOWNING and )

TRITON COMPANY POLICE, )

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 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 October 29, 2010.

APPEARANCES

For Petitioner: Amiel J. Rossabi, Esq.

Jennifer L. Reutter, Esq.

FORMAN ROSSABI BLACK, P.A.

3623 North Elm Street, Suite 200

Greensboro, North Carolina 27404-1027

For Respondent: J. Joy Strickland

Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUES

Is the Respondent’s proposed revocation of Petitioner’s (Melvin Downing) company police officer commission supported by the preponderance of the evidence?

Is the Respondent’s proposed revocation of Petitioner’s (Triton Company Police Agency) company police agency certification supported by the preponderance of the evidence?

RULES AND STATUTES AT ISSUE

12 NCAC 02I .0202(a)(8)

12 NCAC 02I .0211(a)(8), (a)(11) and (a)(12)

12 NCAC 02I .0212 (b) (1) and (c)(2)

12 NCAC 02I .0213(a)(1) and (a)(4)

N.C.G.S. § 74E

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, or the lack thereof, 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 revoke his company police officer commission and the Triton Company Police Agency certification in a letter mailed by the Respondent on July 21, 2009. (Respondent’s Exhibits 1-2)

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 commission.

3. 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 certify company police agencies and to revoke, suspend or deny such certification.

MELVIN DOWNING’S COMPANY POLICE OFFICER COMMISSION

4. Melvin Downing currently holds a company police officer commission through the Triton company police agency. He has held a commission with Triton since 1994. Downing previously was employed with the Guilford County Sheriff’s Office as well.

5. Downing is the owner of the Triton company police agency, which has previously been certified as a company police agency under the names of Triton Security Services, Inc. in 1994 and Triton Company Police Department, Inc. in 2005. (Respondent’s Exhibit 18)

6. Since its inception, Melvin Downing has been the Chief of Police for Triton.

7. Respondent found probable cause to revoke Petitioner’s company police officer commission for the following reasons:

a. as a result of his failure to properly notify the Company Police Administrator regarding his charges for criminal offenses and the subsequent disposition of those charges as required and

b. as a result of his conviction for the Class B Misdemeanor offense in violation of N.C.G.S. §74E. (Respondent’s Exhibit 1)

FAILURE TO PROPERLY NOTIFY

8. 12 NCAC 02I .0212 states that a company police commission shall be revoked upon a finding that the officer fails to meet any of the required standards as specified in 12 NCAC 02I .0202.

9. 12 NCAC 02I .0202(a)(8) states, in pertinent part, that every company police officer must meet the following requirements to obtain and maintain a company police commission:

must notify the Company Police Administrator in writing of all criminal offenses for which the officer is arrested for or charged with, pleads no contest, pleads guilty, or is found guilty of, as well as all Domestic Violence Orders (50B) which are issued by a judicial official. This includes all criminal offenses except minor traffic infraction offenses and specifically includes any offense of Driving Under the Influence (DUI) or Driving While Impaired (DWI). The notifications required for an arrest or charge must specify the nature of the offense and date of arrest or charge. Further notifications required must specify the nature of the offense, the court in which the case was handled and the date of the conviction or adjudication. All notifications must be received by the Company Police Administrator within five days of the date of the arrest or charge and case disposition.

10. J. D. Slone of the Greensboro Police Department obtained two warrants for arrest for Petitioner on or about March 18, 2008 in Guilford County File Nos. 08 CR 082907-082908. These warrants charged Petitioner with two violations of the Company Police Act in violation of N.C.G.S. § 74E-13. The warrants were served upon the Petitioner at his place of his residence on March 18, 2008. (Petitioner’s Exhibits 3-4)

11. Petitioner was convicted of one count of the misdemeanor crime of violating the Company Police Act in violation of N.C.G.S. § 74E-13 on or about February 2, 2009 in Guilford County criminal district court in File No. 08 CR 082907. The remaining charge in File No. 08 CR 082908 was dismissed. (Respondent’s Exhibits 3-4)

12. Vickie Huskey, the Company Police Administrator until September 2009, indicated that Petitioner failed to provide her with written notice of his charges within five days of his arrest and also failed to provide her with written notice of the disposition of his charges within five days. In fact, Petitioner never notified Ms. Huskey or the Company Police Program of his charges or the subsequent disposition.

13. Ms. Huskey received notification of Petitioner’s arrest by a member of the Greensboro Police Department on or about March 19, 2008.

14. Petitioner claimed that he did not notify the Company Police Administrator of his arrest because he heard Detective Slone make a telephone call on the day of his arrest that he assumed was to Ms. Huskey. However, he never heard Slone say her name and Slone never indicated to Petitioner that he had in fact called Ms. Huskey.

CONVICTION OF CLASS B MISDEMEANOR

15. 12 NCAC 02I. 0212(b)(1) states in pertinent part that the Attorney General, or his designee, may revoke or suspend the commission of a company police officer when the Company Police Administrator finds that the commissioned company police officer has been convicted of a crime or unlawful act as defined in 12 NCAC 09A .0103(23)(b) as a Class B misdemeanor and which occurred after the date of initial certification.

16. 12 NCAC 09A .0103 (23)(b) defines, in pertinent part, "Class B Misdemeanor" as an act committed or omitted in violation of any common law, criminal statute, or criminal traffic code of this state that is classified as a Class B Misdemeanor as set forth in the Class B Misdemeanor Manual as published by the North Carolina Department of Justice which is hereby incorporated by reference and shall automatically include any later amendments and editions of the incorporated material as provided by G.S. 150B-21.6. (Respondent’s Exhibit 5)

17. A violation of N.C.G.S. § 74E is a class B misdemeanor and as such is included in the Class B Misdemeanor Manual as published by the North Carolina Department of Justice. (Respondent’s Exhibit 6)

18. Petitioner was convicted of one count of the misdemeanor crime of violating the Company Police Act in violation of N.C.G.S. § 74E-13 on or about February 2, 2009 in Guilford County criminal district court in File No. 08 CR 082907. (Respondent’s Exhibit 3)

19. Petitioner responded to the Respondent’s First Set of Requests for Admissions, Interrogatories, and Requests for Production of Documents on or about September 7, 2010. (Respondent’s Exhibit 18)

20. In his responses, the Petitioner was asked the following questions and provided the corresponding answers:

QUESTION: Do you admit that on or about March 18, 2008, you were arrested or otherwise charged/served with two counts of "Violation of NC Company Police Act" in violation of N.C.G.S. § 74E-13? (Guilford Co. Docket Nos. 08CR082907 and 08CR082908)

ANSWER: Admitted.

QUESTION: Do you admit that on or about February 2, 2009, you were convicted of the criminal offense "Violation of NC Company Police Act" in violation of N.C.G.S. § 74E-13? (Guilford Co. Docket No. 08CR082907)

ANSWER: Admitted.

QUESTION: Do you admit that on or about February 2, 2009, your charge of "Violation of NC Company Police Act" in violation of N.C.G.S. § 74E-13 (Guilford Co. Docket No. 08CR082908) was dismissed?

ANSWER: Admitted.

QUESTION: Do you admit that you failed to notify the Company Police Administrator in writing within five days of the disposition of your charges, on or about February 2, 2009, in Guilford Co. Docket Nos. 08CR082907 and 08CR082908?

ANSWER: Admitted. (Respondent’s Exhibit 18)

SANCTION REGARDING MELVIN DOWNING’S

COMPANY POLICE OFFICER COMMISSION

21. 12 NCAC 02I .0213(a)(1) and (a)(6) state 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:

commission or conviction of a crime other than those listed in Paragraph (a) of Rule.0212; and

failure to make either of the notifications as required by 12 NCAC 2I .0202(8).

TRITON COMPANY POLICE AGENCY CERTIFICATION

22. Respondent found probable cause to revoke Petitioner’s company police agency certification for the following reasons:

a. Failure to submit all reports and notifications or other information as required by subchapter 02I of the North Carolina Administrative Code by failing to provide notice of Downing’s arrest and subsequent conviction for violating Chapter 74E.

b. Aiding and abetting another, to wit Anthony Turman, in obtaining certification from the NC Criminal Justice Education and Training Standards Commission by deceit, fraud or misrepresentation or cheating.

c. Violating the provisions of N.C.G.S § 74E-7 AND 12 NCAC 02I. 0211(a)(12) by allowing his non-commissioned employees, Anthony Turman and Jeremiah Gaither, to carry concealed weapons, operating motor vehicles that were equipped with blue lights and sirens, stopping motorists or pedestrians or in any manner imposing his will upon another person as police authority without authorization, and engaging in services or in other ways holding themselves out at company police officers without first being commissioned as company police officers. (Respondent’s Exhibit 2)

FAILURE TO SUBMIT ALL REPORTS AND NOTIFICATIONS AS REQUIRED

23. 12 NCAC 02I .0211(a)(8) states that a company police agency certification may be suspended, revoked or denied upon a finding that the agency has failed to submit any and all reports, notification or other information required by the rules in this Subchapter.

24. As previously stated above, 12 NCAC 02I .0202 requires that company police officers notify the Company Police Administrator in writing within 5 days when he is arrested or otherwise charged with a criminal offense and within 5 days of the disposition of such charges.

25. Petitioner, Triton, failed to provide the Company Police Administrator with written notice of his charges within five days of his arrest and also failed to provide the proper written notice of the disposition of his charges within five days. In fact, Petitioner never notified Ms. Huskey or the Company Police Program of his charges or the subsequent disposition.

AID AND ABET ANOTHER IN OBTAINING CERTIFICATION FROM THE NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION BY FRAUD

26. 12 NCAC 02I .0211(a)(11) states, in pertinent part, that a company police agency certification may be suspended or revoked upon a finding that the agency has aided another in obtaining or attempting to obtain credit, training, or certification from the North Carolina Criminal Justice Education and Training Standards Commission by means of deceit, fraud or misrepresentation or cheating.

27. Triton Company police agency employed an individual named Anthony Turman.

28. While employed with Triton company police, Anthony Turman made application to attend General Instructor Training in order to become certified as a general instructor by the North Carolina Criminal Justice Education and Training Standards Commission.

29. In order to qualify to attend Instructor Certification training and to be awarded Instructor Certification, an individual must meet the requirements as set forth in 12 NCAC 09B .0302(a) which states in pertinent part:

To qualify for issuance of General Instructor Certification, an applicant shall demonstrate a combination of education and experience in criminal justice and proficiency in the instructional process to the satisfaction of the Commission. The applicant shall . . . [have] acquired four years of practical experience as a criminal justice officer or as an administrator or specialist in a field directly related to the criminal justice system. (Respondent’s Exhibit 7)

30. When Turman made application to attend the instructor training at Guilford Technical Community College, he indicated on his application worksheet that he had 11 years of “Law Enforcement Experience”; that he had 14 years of “Other Criminal Justice Experience”; and he indicated “Security” when asked to specify his “other” experience. (Respondent’s Exhibit 8)

31. The application worksheet provides the following regarding requirement for Criminal Justice Experience:

4 year minimum requirement at time of application for probationary instructor certification . . . Experience must be as a ‘Criminal Justice Officer’ as defined in the North Carolina Administrative Code. (Respondent’s Exhibit 8)

32. There is no evidence that Turman has ever been certified as a law enforcement officer in North Carolina or any other state.

33. There is evidence that Turman was registered with Private Protective Services as a security guard but not for 14 years.

34. The following language is contained on the application form just above the signature line of Turman and Melvin Downing as the agency official approving Turman’s application:

I have completed and reviewed the information established by this Applicant Worksheet and believe I meet the requirements for enrollment in General Instructor Training and will be successful in completing the course requirements. (Respondent’s Exhibit 8)

35. Subsequent to attending General Instructor training at Guilford Technical Community College, Turman made application for General Instructor Certification from the North Carolina Criminal Justice Education and Training Standards Commission. (Respondent’s Exhibit 9)

36. Turman was awarded Criminal Justice Instructor Certification on or about February 21, 2007. (Respondent’s Exhibit 10)

37. Subsequent to receiving the Instructor Certification, Turman conducted in-service training for members of the Triton Company Police Agency. (Respondent’s Exhibit 11)

38. Melvin Downing testified that Turman’s instructor certificate was revoked by the North Carolina Criminal Justice Education Training and Standards Commission when they learned that Turman had not met the eligibility requirements as he had falsely indicated in his application materials.

39. Downing indicated that he signed the application form and authorized Turman to attend the training because he thought Turman met the eligibility requirements. Downing said that he thought Turman met the requirement because Turman called someone “in Raleigh” to ask if he qualified and they said yes. Downing did not contact nor speak to anyone at the Commission to inquire as to whether Turman was eligible.

40. In his responses to the Respondent’s First Set of Requests for Admissions, Interrogatories, and Requests for Production of Documents, the Petitioner was asked the following questions and provided the corresponding answers regarding Anthony Turman’s instructor certification:

QUESTION: Do you admit that you have never held any Instructor Certification awarded by the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission?

ANSWER: Admitted.

QUESTION: Do you admit that Anthony Turman was an employee of Triton Company

Police and remained so employed for the period between July 1, 2006 and March 8, 2008?

ANSWER: Admitted.

QUESTION: Do you admit that Anthony Turman, while employed by Triton Company Police, applied for General (Probationary) Instructor Certification through the North Carolina Criminal Justice Education and Training Standards Commission on or about February 8, 2007?

ANSWER: Admitted.

QUESTION: Do you admit that Anthony Turman, while employed by Triton Company Police, received General (Probationary) Instructor Certification through the North Carolina Criminal Justice Education and Training Standards Commission on or about February 21, 2007?

ANSWER: Admitted.

QUESTION: Do you admit that on or about January 6, 2006, you signed the General Instructor Training Applicant Worksheet that had been completed by or on the behalf of Anthony Turman, to use for Instructor Certification purposes?

ANSWER: Admitted.

QUESTION: Do you admit that you completed a Criminal Justice Instructor Evaluation Form F-16 on or about January 28, 2008 on behalf of Anthony Turman attesting that he had completed eighteen (18) hours of training?

ANSWER: Admitted.

QUESTION: Describe your knowledge and involvement with the process of Anthony Turman applying for and receiving General Instructor Certification, including but not limited to the application process to attend the General Instructor Training Course at Guilford Technical Community College.

ANSWER: Turman asked Downing if he could apply for his General Instructor Certification. Downing advised Turman that he could do so if he qualified. Downing was told by Turman the he checked with several sources who confirmed that Turman was qualified to receive the certification. Turman attended a course and was awarded the General Instructor Certification. After receiving his certification, Turman was required to provide a certain number of instructional hours and informed Downing that Downing could sign off on the paperwork to evaluate Turman. Downing did sign off on the paperwork, however it was returned because Downing was not an instructor and thus was not qualified to evaluate Turman. Following the receipt of the paperwork, Turman found another trainer to sign the paperwork as required. (Respondent’s Exhibit 18)

VIOLATION OF N.C.G.S § 74E AND 12 NCAC 02I. 0211(a)(12)

41. 12 NCAC 02I .0211(a)(12) states that a company police agency certification may be suspended, revoked or denied upon a finding that the agency has failed to ensure that any employee not commissioned as a company police officer is not violating a prohibition set forth in 12 NCAC 02I .0304.

42. 12 NCAC 02I .0304(2), (4) (7), and (9) state that in addition to the prohibited acts set forth elsewhere in the rules in this Subchapter and in G.S. Chapter 74E, a company police officer shall not commit the following acts:

carry a concealed weapon except: when on his own business property or at home; when employed as a company police officer, while on duty and in compliance with G.S. 14-269(b)(4) and G.S. 74E-6; or when off duty and in compliance with G.S. 14-269(b)(5).

activating or operating a blue light in or on any vehicle in this State except when operating a motor vehicle used primarily by company or railroad police in the performance of his official duties: when in property jurisdiction limitations specifically described under G.S. 74E-6; when in continuous or immediate pursuit of a person for an offense committed upon real property owned by or in the possession or control of his employer or real property or in the possession and control of a person who has contracted with the employer to provide on-site police security personnel services for the property; or during the transportation of an arrestee, which the company police agency has taken into custody.

impeding traffic, stopping motorists or pedestrians, or in any manner imposing or attempting to impose his will upon another person as police authority unless: he is on the property specifically described under G.S. 74E-6; or when in immediate and continuous pursuit of any person for an offense which occurred within the property jurisdiction limitations specifically described under G.S. 74E-6.

violate any rule of .0306 of subchapter 02I. (Respondent’s Exhibit 21)

43. 12 NCAC 02I .0306(c)((4) provides that the Department Head shall ensure that employees who are not commissioned as a company police officer do not operate any company police vehicle with a blue light contained therein. (Respondent’s Exhibit 22)

44. N.C.G.S. §74E-13 provides that no private person, firm, association, or corporation, and no public institution, agency, or other entity shall engage in, perform any services as, or in any way hold itself out as a company police agency or engage in the recruitment or hiring of company police officers without having first complied with the provisions of Chapter 74E.

45. Floyd Thomas Wright and Ronald Price, former employees of Triton Company Police testified regarding the actions taken by Anthony Turman and Jeremiah Gaither for the periods in which they were employed by Triton.

46. Wright, currently employed with the Greensboro Police Department and a law enforcement officer for 23 years, testified that he worked part time with Triton from October 2006 to January 2007.

47. Wright testified as to two occasions when he was involved with Anthony Turman. On the first occasion, Turman stopped a vehicle while he was driving a grey Jeep Cherokee with blue lights in the front part of the window. Turman called Wright to come to the scene to arrest the person that Turman had stopped for driving while impaired. Wright indicated that he did not charge the person because he did not believe the elements for driving while impaired had been met.

48. On the second occasion, Wright indicated that he was responsible for teaching an in-service training course to the Triton employees and he noticed that Turman was not present for the entire training session. Wright told Downing about this issue and Downing responded that Turman did not have to complete in-service training because he was security through the Private Protective Services Board.

49. Wright indicated that he had believed up until this point that Turman was a commissioned company police officer and not civilian employee because Turman was the training officer for new employees.

50. Wright indicated that on the occasions that he saw Turman, he wore a lapel badge, similar to what plain clothes detectives wear, with language that indicated something to the effect of Triton Special Police Department community relations. He said that Turman wore a shoulder or belt holster with a weapon. Turman usually wore a sport coat over his holster.

51. Wright also testified to the occasions in which he had contact with Jeremiah Gaither. Gaither called Wright to come to the location of the Motel 6 where he had stopped a person suspected of impaired driving. Gaither was driving a vehicle with blue lights on the dash and strobe lights when he conducted the vehicle stop. Wright did not arrest the driver because he believed that Gaither did not have the legal authority to stop the vehicle because the stop was beyond the territorial jurisdiction of Triton.

52. Wright believed at that time that Gaither was a commissioned company police officer. At a later time, Wright believed that Gaither was an armed security guard.

53. Wright indicated that on the occasions that he saw Gaither he was wearing black “BDU” style pants, black hat with an embroidered badge with the Triton police logo, and a sweatshirt or windbreaker with the Triton police logo on it as well.

54. Wright did not report these particular incidents to Downing.

55. Wright was interviewed by Vickie Huskey on or about March 25, 2008 and indicated in pertinent part as follows:

[He] described Anthony Turman and Jeremiah Gaither as acting like any other police officer he had worked with in the past when he first started working with Triton Company Police.

[He] described Anthony Turman as always wearing a concealed gun and a sports coat with a badge on the coat breast pocket like a detective wears.

Turman was driving a jeep with a blue light in it when he first went to work there and then [Turman] drove a ‘Crown Vic.’

[H]e has seen Turman and Gaither handcuff individuals in his presence, but was not around Gaither that much.

[A]s soon as he figured out how Chief Downing was allowing Turman and Gaither to act as LEO he left. (Respondent’s Exhibit 12)

56. Price, currently employed with Lankford Company Police agency and a law enforcement officer since 2006, testified that he worked time for Triton from July 2006 to March 2007.

57. Price indicated that when he began his employment that Turman was assigned as his field training officer.

58. Price indicated that Turman drove a vehicle equipped with a blue light in the front windshield, green lights, and a siren. He indicated that Turman normally wore a suit coat, pants, and tie to work. Turman also wore handcuffs, an ASP baton, a badge, and handgun.

59. Price indicated that Gaither drove a grey Crown Victoria equipped with blue and later clear lights and a siren. Gaither wore BDU style pants, handcuffs and a handgun.

60. Price did not report any incidents regarding Turman or Gaither to Downing.

61. Price was interviewed by Vickie Huskey on or about March 25, 2008 and indicated in pertinent part as follows:

[W]hen he was first worn in by Triton Company Police, Chief Downing assigned Anthony Turman to him for his field training.

[H]e described Anthony Turman as acting like any other police officer he knew.

[He] described Anthony Turman as always wearing a gun, ASP, handcuffs and always had a ‘blue light’ in the jeep he drove prior to wrecking his jeep.

After Turman wrecked his jeep, Chief Downing allowed him to drive a ‘Crown Vic.’

[H]e stated during his training with Turman, that Turman would pull people over using a blue light.

[H]e states there were several times after his field training that he would be in a separate vehicle and Turman would radio him to come to a site, and when he got there Turman would already have a person handcuffed.

[H]e states on several occasions that Turman would search apts., motel rooms, people, vehicles, etc. and take evidence (drugs, guns, etc.) back to the office to be put in the evidence vault.

[H]e stated that when he became aware of Turman not being a sworn officer he knew it was time to leave Triton Company Police. This is when he applied with Lankford Company Police. (Respondent’s Exhibits13)

62. Three incident reports prepared by Price were introduced. Each of them details action taken by Turman as follows:

a. 2006-1027P1

A. Turman and myself then questioned the suspect regarding contents of the grocery cart and his activities in the area.

A. Turman and myself went to Dollar Tree located at 1014 Summit Avenue and spoke with the Store Manager Tom Smith.

A. Turman left Mr. Smith a business card and told him to have Ms. Jeffers call him concerning the items.

A. Turman and myself spoke with Rodney Omar Stuart at 403 Beech Street reference the same incident. (Respondent’s Exhibit 14)

b. 06-1221P1

A. Turman and myself conducted a vehicle stop in the PVA of the apartment building 926.

A. Turman and myself approached the vehicle.

A. Turman went over to the driver’s side of the vehicle and instructed Ms. Durham to put her hands behind her back.

She was told by A. Turman that she would be able to make a phone call but not at that time. At that time Ms. Durham ran in the general direction of the cul de sac.

A. Turman and myself then caught Ms. Durham by her arms and instructed her repeatedly to put her hands behind her back.

A. Turman then instructed her to comply, put your hands behind your back. (Respondent’s Exhibit 15)

c. 2007 0206T1

Officer Price and Turman arrived and found Ms. Turner in the rear seat of a R.P.D. patrol vehicle.

Officer Price and Turman returned to the site and discovered that Lakeisha Cunningham and Lashita Alverson had both been threatened by Ms. Turner.

This incident/investigation report is signed by AD Turman in the block “Officer Name/ID”. (Respondent’s Exhibit 16)

63. One incident report prepared by Price was introduced indicating details of action taken by Gaither as follows:

2007-0323P1

Ms. Lopez was read her Miranda Rights by J. Gaither.

J. Gaither 101 is listed in the block under “Assisting Officer Name/ID Number”. (Respondent’s Exhibit 17)

64. Downing identified the log utilized by his employees to keep track of the locations that they patrolled and action taken. Eighteen (18) pages of these logs were introduced at the hearing of this matter. Turman’s name is listed beside the blank for “OFFICER” 10 times. Gaither’s name is listed beside the blank for “OFFICER” 9 times. (Respondent’s Exhibit 19)

65. When asked why the names of Turman and Gaither would have been listed beside officer, he indicated that they were merely listed because they were performing civilian functions and assisted the police officers.

66. When asked why Turman’s name was listed on one of the sheets by himself with no police officer listed as well, he indicated that the employees are supposed to keep track of the locations in which they work, however, he indicated that they are lazy sometimes and may not have filled out the paperwork correctly. (Respondent’s Exhibit 19)

67. In his responses to the Respondent’s First Set of Requests for Admissions, Interrogatories, and Requests for Production of Documents, the Petitioner was asked the following questions and provided the corresponding answers regarding Anthony Turman and Jeremiah Gaither:

QUESTION: Do you admit that while Anthony Turman was employed by Triton Company Police for the period between July 1, 2006 and March 8, 2008, that he did not hold a company police commission or any other law enforcement or justice officer certification through the State of North Carolina?

ANSWER: Admitted.

QUESTION: Do you admit that Jeremiah Gaither was an employee of Triton Company Police and remained so employed for the period of July 1, 2006 and August 4, 2007?

ANSWER: Admitted.

QUESTION: Do you admit that while Jeremiah Gaither was employed by Triton Company Police that he did not hold a company police commission or any other law enforcement or justice officer certification through the State of North Carolina?

ANSWER: Admitted.

QUESTION: Do you admit that Anthony Turman was provided some item of clothing apparel that displayed the words “Triton Company Police” that he wore during work hours and in his position with Triton Company Police during the period between July 1, 2006 and March 8, 2008?

ANSWER: Admitted.

QUESTION: Do you admit that Jeremiah Gaither was provided some item of clothing apparel that displayed the words “Triton Company Police” that he wore during work hours and in his position with Triton Company Police during the period of July 1, 2006 and August 4, 2007?

ANSWER: Admitted.

QUESTION: Do you admit that Anthony Turman was convicted in Guilford County file No. 08 CR 82911 for a violation of North Carolina General Statute 74E-13 on or about February 2, 2009?

ANSWER: Admitted.

QUESTION: Do you admit that Jeremiah Gaither was convicted in Guilford County file No. 08 CR 82905 for a violation of North Carolina General Statute 74E-13 on or about February 2, 2009? (See attachment 7)

ANSWER: Admitted.

QUESTION: Describe what if any equipment you provided to or authorized Anthony Turman to use in his employment with Triton Company Police, including but not limited to the period of July 1, 2006 to March 8, 2008. Specifically include a description of any firearms, marked or unmarked vehicles, handcuffs, badge, or clothing or other apparel with the markings of Triton Company Police.

ANSWER: Turman was given a polo shirt marked with a “Triton Company Police” logo to use in his employment with Triton.

QUESTION: Describe what if any equipment you provided to or authorized Jeremiah Gaither to use in his employment with Triton Company Police, including but not limited to the period of July 1, 2006 to August 4, 2007. Specifically include a description of any firearms, marked or unmarked vehicles, handcuffs, badge, or clothing or other apparel with the markings of Triton Company Police.

ANSWER: Gaither was given a polo shirt marked with a “Triton Company Police” logo and a Class B uniform with a badge stating “Security”. He was also given a duty belt that contained a flashlight, handcuffs, pepper spray, a baton, and a Glock 23 firearm to use in his employment with Triton. (Respondent’s Exhibit 18)

68. An incident/ investigation report containing report number 2007 0209P1 was introduced as evidence in the hearing of this mater. The report was completed and signed by AD Turman. In the “Officer Name/ID” block, the following information has been typed in: A.D. Turman 201. (Respondent’s Exhibit 24)

69. Photographs of three vehicles owned by Triton Company Police were introduced which showed that the vehicles were equipped with standard police sirens. (Respondent’s Exhibit 23)

70. Kenneth Heckstall testified on behalf of the Petitioner. Heckstall, a law enforcement officer for 12 years, is currently employed with Triton Company Police and has been since 2000.

71. Heckstall indicated that in his position at Triton that he reports to Chief Downing and other supervisors including Roger Hicks.

72. Heckstall indicated that Turman is the field training officer for Triton regarding paperwork and procedures. Turman is responsible for community relations for the police agency.

73. Heckstall testified that he knew that Turman and Gaither were not commissioned police officers and therefore should only deal with community relations and lease issues for their department.

74. Heckstall indicated that police officers with Triton had two types of uniforms; class A and B uniforms. Class A uniforms consisted of matching uniform pants and shirt, a police badge, nametag, and patch indicating the individual is a police officer. Class B uniforms consisted of a plain black shirt with a patch sewn on indicating Triton Special Police Officer. The officers would also wear a sweatshirt or windbreaker jacket with Triton Special Police indicated on the garment.

75. Heckstall testified that the blue lights on the cars owned by Triton were “probably similar” to the ones uses by the Greensboro Police Department.

76. Heckstall indicated that the police vehicles were kept at the headquarters office and that Chief Downing had the keys. He indicated that it was not standard for employees to have an extra set of keys to the cars.

77. Heckstall indicated that Turman drove a Crown Victoria that contained a siren but no blue lights. He said that you could manually turn the siren on or off. On one occasion, Heckstall saw Turman activate the police siren to stop a pedestrian. However, he indicated that he did not inform Downing of this incident.

78. On a separate occasion, Heckstall saw Turman activate a blue light to stop a car and he did report this incident to Downing.

79. Heckstall indicated that both Turman and Gaither carried handcuffs on their belts and carried a gun in a holster. Turman covered his gun with a jacket.

80. Regarding Turman, Heckstall indicated that he would participate in interviewing suspects, handle and process evidence seized by members of Triton, and write incident reports.

81. Regarding Gaither, Heckstall indicated that he would handcuff individuals if he was requested to by other officers or if he encountered a dangerous individual.

82. Heckstall indicated that at times, Downing patrolled their contracted sites with Turman, Heckstall, and Hicks.

83. The Petitioner testified on his own behalf. He testified that at most, he had 8 to 9 employees at any given time. He indicated that he occasionally observed those employees on their contracted sites. However, he rarely saw Turman and Gaither in the field.

84. Downing admitted that he allowed Turman and Gaither to operate vehicles, owned by Triton, and equipped with a police siren.

85. Downing admitted that in 2005 he was informed by the Private Protective Services Board that Turman and Gaither were violating rules regarding security guards. He indicated that he put measures in place after that to ensure that Turman and Gaither were not acting as armed security guards or police officers. However, he was unable to produce a copy of any policies that he enacted to avoid this problem.

86. Downing indicated that he does not know all of the rules and regulations concerning the Company Police Program and restrictions on company police officers because he did “not read the [company police] manual”.

87. Downing indicated that Turman and Gaither have never been commissioned as company police officers, never certified as law enforcement officers, and have not been registered with Private Protective Services since 2004.

88. Regarding handguns, Downing indicated that he gave Gaither a semi- automatic pistol to use for his personal protection. At a later time, Downing told Gaither that he could carry that weapon while at work if he carried it openly since Downing knew that Gaither did not have a concealed carry permit.

89. Regarding clothing with the Triton logo, Downing indicated that Turman and Gaither wore a polo shirt with “Triton Police Department written on it while in the field and in the office.

90. Downing indicated that both Turman and Gaither were also convicted of violating the Company Police Act in 2009.

SANCTION REGARDING TRITON COMPANY

POLICE AGENCY CERTIFICATION

91. N.C.G.S. § 74E-10 provides that an entity whose company police agency's certification is revoked for a violation of this Chapter or a rule adopted under this Chapter is not eligible to apply again for that certification for three years.

92. Melvin Downing’s argument that he should not be accountable for the actions of Anthony Turman and Jeremiah Gaither is not acceptable.

93. Melvin Downing, as the Chief of the Triton Company Police agency is responsible for the action of his employees, sworn company police officers and civilians. As the Chief, he is responsible for ensuring that non-commissioned employees do not violate Chapter 74E, the Company Police Act.

94. Melvin Downing failed to meet his obligations as Chief and allowed his civilian employees to take law enforcement action without first being commissioned as company police officers.

95. Melvin Downing’s argument that he was not aware of the actions being taken by Anthony Turman and Jeremiah Gaither is not credible in light of all of the evidence presented including but not limited to the following:

Kenneth Heckstall, the Petitioner’s own witness, testified that he reported to Downing that Turman activated a blue light to stop a car.

Turman was the only employee listed as an officer on patrol on the employee log sheet.

Turman and Gaither carried firearms and handcuffs both in the office and in the field.

Turman completed incident/investigative reports as the “arresting officer.”

Numerous incident/investigative reports were completed that detailed Turman or Gaither taking enforcement actions such as interviewing suspects and seizing evidence.

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. 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 certify company police agencies and to revoke, suspend or deny such certification.

4. The Petitioner has the burden of proof. The Petitioner has failed to show, by a preponderance of the evidence that Respondent improperly proposed to revoke his company police officer commission and the Triton Company Police agency certification.

5. Petitioner, Melvin Downing, failed to properly notify the company police administrator of his arrest for criminal charges and the subsequent dispositions thereof as required by the NC Administrative code. Although Petitioner, Melvin Downing, does not posit that a violation of the spirit of this requirement existed, the facts do not support his assumption.

6. Petitioner, Melvin Downing, was convicted of the Class B Misdemeanor of a violation of N.C.G.S. § 74E-13.

7. The Respondent’s proposed revocation of the Petitioner’s company police officer commission is supported by substantial evidence and is not arbitrary or capricious.

8. Petitioner, Triton Company Police agency, failed to submit all reports and notifications or other information as required by subchapter 02I of the North Carolina Administrative Code when Downing, the Chief of the Triton Company Police agency failed to properly notify the company police administrator of his arrest for criminal charges and the subsequent dispositions thereof as required by the NC Administrative code.

9. Petitioner, Triton Company Police agency, aided and abetted Anthony Turman, in obtaining certification from the NC Criminal Justice Education and Training Standards Commission by deceit, fraud, or misrepresentation or cheating when Chief Downing signed the application worksheet indicating that Turman met the eligibility requirements when in fact he did not. Turman clearly indicated he had 11 years of law enforcement experience and Downing knew that was false in that Turman had no law enforcement experience.

10. Petitioner, Triton Company Police agency, violated the provisions of N.C.G.S § 74E-7 AND 12 NCAC 02I. 0211(a)(12) by allowing his non-commissioned employees, Anthony Turman and Jeremiah Gaither to:

a. carry concealed weapons,

b. operate motor vehicles that were equipped with blue lights and sirens,

c. stop motorists or pedestrians or in any manner impose their will upon another person as police authority without authorization, and

d. engage in services or in other ways hold themselves out at company police officers without first being commissioned as company police officers.

11. The Respondent’s proposed revocation of the Petitioner’s company police agency certification is supported by substantial evidence and is not arbitrary and capricious.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that the Respondent revoke the Petitioner’s, Melvin Downing, company police officer commission for a period of one year. The Undersigned further recommends that Respondent revoke the Petitioner’s, Triton Company Police, agency certification for a period of three years.

NOTICE AND ORDER

The North Carolina Department of Justice is the agency that will make the Final Decision in this contested case. As the final decision-maker, that agency 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 pursuant to N.C. Gen. Stat. § 150B-40(e).

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

ORDERED this the 5th day of January, 2011.

J. Randall May

Administrative Law Judge

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