STATE OF NORTH CAROLINA - NC



STATE OF NORTH CAROLINA

COUNTY OF GASTON |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

10 DOJ 6966 | |

| | |

|Travis Mark Caskey |) |

|Petitioner, |) |

| |) |

|v. |) PROPOSAL FOR DECISION |

| |) |

|NC Sheriffs’ Education and Training Standards Commission |) |

|Respondent. |) |

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On May 2, 2011, Administrative Law Judge J. Randall May, heard this case 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: Pro se

Respondent: John J. Aldridge, III, Special Deputy Attorney General

Lauren D. Tally, Assistant Attorney General

ISSUE

Did Petitioner knowingly make a material misrepresentation of any information required for certification as a justice officer by the North Carolina Sheriffs' Education and Training Standards Commission?

FINDINGS OF FACT

1. Both parties properly are before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received notice of hearing, and that Petitioner received by certified mail the proposed Denial of Justice Officer Certification letter mailed by Respondent Sheriffs' Commission on October 6, 2010.

2. The North Carolina Sheriffs' Education and Training Standards Commission (hereafter “Commission”) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke or suspend such certification.

3. 12 NCAC 10B .0204(c)(1) and (2) states that the Sheriffs' Commission may deny certification as a justice officer when the Commission finds that the applicant has (1) knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission; or (2) has knowingly and designedly by any means of false pretense, deception, defraud, misrepresentation, cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

4. The Petitioner was appointed as a part-time detention officer through the Lincoln County Sheriff's Office on February 15, 2010. The Petitioner signed a Report of Appointment (Form F-4) on February 15, 2010 below an attestation which reads, in pertinent part, “I further understand and agree that any omission, falsification, or misrepresentation of any fact or portion of such information may be the sole basis for termination of my employment and/or denial or revocation of my certification at any time, now or later.”

5. The Petitioner completed a Personal History Statement (Form F-3), on or about January 20, 2010, as part of his employment application with the Lincoln County Sheriff's Office and in order to obtain certification as a justice officer from the Commission. The attestation above the Petitioner's signature on this form reads, in pertinent part, “I hereby certify that each and every statement made on this form is true and complete and understand that any misstatements or omission of information may subject me to disqualification or dismissal.” The Petitioner acknowledged that he read the Report of Appointment and Personal History Statement forms prior to signing them.

6. Petitioner acknowledged receiving the Report of Appointment and Personal History Statement forms from Lincoln County Sheriff's Office Administrative Assistant, Wendy Reel. Petitioner took these forms to the home of his uncle, Major Lee Caskey of the Lincoln County Sheriff's Office. Petitioner stated that he completed these forms in the presence of his uncle. Petitioner acknowledged at the administrative hearing that he read and understood each of the questions on the form. He stated that when he had any questions about how to complete the form, he would ask his uncle. He further testified that he was embarrassed to let his uncle know that he had used marijuana.

7. Question number 27 of the Form F-3 asks, “Have you ever been discharged or requested to resign from any position because of criminal misconduct or rules violations?” Petitioner answered, “No” in response to this question. Question number 28 of the Form F-3, asks the Petitioner to, “list all jobs you have held in the last ten years to include temporary, part-time, paid, or not paid employment and internships”. The Petitioner was specifically asked also to list a reason for leaving each job. As part of his employment history, the Petitioner stated that he had worked as a pipe fitter helper for “I.P.I.” in Charlotte, North Carolina from August 2009 through September 2009. Petitioner stated that his reason for leaving was “Fired unacceptable work, (later found out my work was acceptable”).

8. Under the section of the Form F-3 entitled, “Prior criminal conduct”, the Petitioner, in question number 39, was asked, “Have you ever used any illegal drugs including but not limited to marijuana, steroids, opiates, pills, heroin, cocaine, crack, LSD, etc., to include even one time use or experimentation?” In response to question number 39, Petitioner answered, “No”. Directly above question number 39 is a “NOTE”, which reads, “Answer all of the following questions completely and accurately. Any falsification or misstatement of facts may be sufficient to disqualify you from certification. The word “used” in the following question includes even one time use or experimentation. Applicants for the position of justice officer must disclose all prior criminal conduct.”

9. When staff for the Respondent received the Petitioner's Report of Appointment and Personal History Statement forms, several of the questions were either not answered or incomplete. Consequently, staff for the Respondent, in a letter dated March 19, 2010, requested employees with the Lincoln County Sheriff's Office and the Petitioner update the submitted forms with additional information. Among the requested information, staff for the Respondent asked employees with the Lincoln County Sheriff's Office to verify the Petitioner's stated reason for his dismissal from “I.P.I.”. The purpose for this request was to rule out the possibility that Petitioner had engaged in any type of conduct that could be considered criminal or may be indicative of a lack of good moral character.

10. In response to the Respondent's March 19, 2010 request, Wendy Reel asked the Petitioner to update and elaborate on several of his answers in the Personal History Statement. She also asked First Sergeant Connie Queen of the Lincoln County Sheriff's Office to verify the Petitioner's reason for his dismissal from I.P.I.

11. First Sergeant Connie Queen agreed to contact I.P.I. in order to verify the reason for the Petitioner's termination. In doing so, First Sergeant Queen contacted the Petitioner to determine if the Petitioner still had a telephone number for this company. She informed the Petitioner that she was going to contact I.P.I. to verify his reason for dismissal. The Petitioner provided First Sergeant Queen with a telephone number to contact I.P.I. Sergeant Queen believes this conversation took place in early April 2010.

12. In response to Ms. Reel's request for more information, Petitioner again reviewed his answers to his previous January 20, 2010 Personal History Statement. The Petitioner, on March 29, 2010, updated and elaborated on several of his answers on the Personal History Statement. On March 29, 2010, the Petitioner also again reviewed his answer to Question number 27 asking if he had ever been discharged or requested to resign from any position because of criminal misconduct or rules violations. Petitioner chose not to update his “No” answer from January 20, 2010. Similarly, the Petitioner did not further elaborate on or update his reason for being dismissed from I.P.I. Additionally, Petitioner, in his March 29, 2010 updates, did not disclose any prior involvement with marijuana.

13. After his conversation with First Sergeant Queen, Petitioner, realizing that the Lincoln County Sheriff's Office was about to contact I.P.I. to verify the reason for his dismissal, decided to tell Ms. Reel the true reason for his dismissal. Petitioner then informed Ms. Reel that he had been dismissed from I.P.I. because he had failed a random drug screen. Petitioner admitted at this point that he had “partied” the night before the random drug screen and that he had consumed the drug, marijuana. This conversation took place some time in the early part of April 2010. Prior to this admission to Ms. Reel, no one at the Lincoln County Sheriff's Office or the Respondent had any knowledge of the Petitioner's prior use of drugs.

14. The Petitioner acknowledged at this administrative hearing that he in fact did smoke marijuana while employed at I.P.I. Petitioner stated that he went with a group of friends from work to a private home the night before the random drug screen and, together with these other individuals, smoked marijuana. Petitioner acknowledged taking at least five puffs from a marijuana cigarette. Petitioner stated that this was the only time that he had used marijuana. Petitioner acknowledged at the administrative hearing that had he not been made aware by First Sergeant Queen that she was going to verify his reason for leaving I.P.I., he would not have disclosed his prior use of marijuana to either employees at the Sheriff's office or the Respondent.

15. First Sergeant Queen did in fact contact Peggy Brown with I.P.I. Company. Ms. Brown informed First Sergeant Queen that the Petitioner was terminated for failing a drug test.

16. After his admissions to Ms. Reel, Petitioner was asked to complete a statement explaining his use of marijuana. Petitioner wrote that he had answered “no” to using marijuana on the Personal History Statement because he was embarrassed to admit his use of marijuana in front of his uncle. Petitioner stated that his uncle had raised him from a small boy and that he was too ashamed to acknowledge his use of marijuana.

17. Subsequent to learning of these admissions by the Petitioner, Diane Konopka, Deputy Director for the Respondent, contacted I.P.I. to solicit any documentation they may have of the Petitioner's dismissal. In response to this request, staff for the Respondent received documentation from I.P.I. acknowledging that Petitioner was hired by the company on May 26, 2009 and discharged on June 2, 2009. This documentation reflected that the Petitioner was administered a random drug test on June 2, 2009 which tested positive for the drug marijuana. Subsequent to this positive drug screen, Petitioner acknowledged to officials with I.P.I. that he in fact had used marijuana on the previous evening.

18. In sworn answers to the Respondent's First Set of Requests for Admissions and Interrogatories, the Petitioner on April 4, 2011 admitted to previously using marijuana and being discharged from I.P.I. Industries for his use of marijuana. Petitioner admitted to intentionally omitting his use of marijuana and the true reason for his dismissal from I.P.I. from his previous Personal History Statement because he was embarrassed to do so in front of his uncle. In response to Interrogatory number 6 asking if he had disclosed his use of marijuana to anyone at the Lincoln County Sheriff's Office during the hiring process, Petitioner answered that he told Wendy Reel of his use of marijuana and that this was done a week or two after being hired. Petitioner acknowledged at the administrative hearing that this was incorrect and that he actually told Ms. Reel approximately two months after he was hired that he had used marijuana and then only because he knew that First Sergeant Queen was about to find out the truth.

19. Sergeant Queen testified Petitioner was a good employee and previously participated in the Law Enforcement Explorer Scouting program. Petitioner successfully completed Detention Officer training on April 22, 2011. Lt. Houser, Jail Administrator, for the Lincoln County Sheriff's Office has known Petitioner for three years and describes him as a professional and dedicated detention officer.

20. The Respondent has found that honesty and integrity are essential attributes to be a justice officer in North Carolina. The Petitioner admits that he understood the questions on his Personal History Statement on January 20, 2010 asking for the reason for his termination from I.P.I. and asking for any prior use of marijuana. The Petitioner admits that he intentionally lied in his responses to these questions. On March 29, 2010, the Petitioner had another opportunity to come forward and tell the truth to his employer and to the Respondent about his prior use of marijuana and the true reasons for his dismissal from I.P.I. The Petitioner intentionally chose again to hide his use of marijuana. Only when the Petitioner knew that employees with the Lincoln County Sheriff's Office were about to contact his prior employer and find out the truth about his dismissal, did the Petitioner admit his use of marijuana. Indeed, the Petitioner admitted under oath at the administrative hearing that he probably would not have ever disclosed his prior use of marijuana and the real reason for his termination from I.P.I. had he not believed his employer was about to find out the truth.

CONCLUSIONS OF LAW

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

2. Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose his 2009 use of marijuana and his termination from I.P.I. Industries in 2009 based on a positive drug screen.

3. The Petitioner's omissions constitute a violation of 12 NCAC 10B .0204(c)(1) and (2). The Respondent's proposed denial of the Petitioner's application for certification is supported by a preponderance of the evidence.

4. The Petitioner had numerous opportunities to correct his initial intentional misstatements and chose not to do so. Only when the Petitioner believed the truth was about to come out, did he come forward and admit his prior use of marijuana. Because of the Petitioner's failure to admit the truth about his background, despite having numerous opportunities to do so, a lessening or reducing of a period of sanction is not appropriate.

5. It is further the opinion of the undersigned that Petitioner yielded to pressure in not giving truthful answers when he felt his uncle would disapprove. A law enforcement officer must be willing to stand by the truth even when he feels that it may be unpopular to do so.

PROPOSAL FOR DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends the Respondent deny the Petitioner's justice officer certification application for a period of five years.

NOTICE AND ORDER

The North Carolina Sheriffs' Education and Training Standards Commission 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).

This the 2nd day of June, 2011.

______________________________________

J. Randall May

Administrative Law Judge

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