STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GRANVILLE 07 DOJ 0540

ROY LEE BURGESS )

)

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF JUSTICE, CAMPUS 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 Petitioner’s request, Administrative Law Judge Beecher R. Gray heard this contested case in Raleigh, North Carolina on August 6, 2007.

APPEARANCES

Petitioner: Mark A. Key

Attorney for Petitioner

16 West Martin Street, Suite 204

Raleigh, North Carolina 27601

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

Whether Respondent properly denied Petitioner’s campus police officer commission.

RULES AT ISSUE

12 NCAC 02J .0201(4)

12 NCAC 09A .0204(b)(6)

12 NCAC 02J .0210(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 properly are before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received Notice of Hearing by certified mail more than 15 days prior to the hearing, and Petitioner received the notification of probable cause to deny campus police commission letter mailed by Respondent on March 12, 2007. (Respondent’s Exhibit 4)

2. Respondent has the authority granted under Chapter 74G of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2J, to commission campus police officers and to revoke, suspend or deny such certification.

3. Respondent found probable cause to deny Petitioner’s campus police officer commission as a result of omissions from the Personal History Statement (Form F3) that Petitioner completed and signed as part of his application with Louisburg College Campus Police on or about October 26, 2006 and during the applicant interview phase of the mandated background investigation recorded in Form F-8. (Respondent’s Exhibits 1 and 2)

4. The first omission outlined in the finding of probable cause to deny Petitioner’s campus police officer commission arises from the Personal History Statement (Form F3). Specifically, Petitioner responded to question number 47, which reads, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense? If ‘Yes,’ please give details,” by listing: “worthless check, no registration/liability Ins. and no operator’s lic/improper turn. See attached sheets Wake County criminal record.” However, none of Petitioner’s answers included a 1976 charge of “Brandishing a Firearm” or “Disturbing the Peace” in case number 13448A11Z675 from Oakland, California. (Respondent’s Exhibit 5)

5. Page eight (8) of the Personal History Statement Form (Form F3), which was

completed and signed by Petitioner on or about October 26, 2006 contains the following note just above question # 47:

Include all offenses other than minor traffic offenses. The following are not minor traffic offenses and must be listed below: DWI, DUI (alcohol or drugs), duty to stop in the event of an accident, driving while license permanently revoked, and speeding to elude arrest.

Answer all of the following questions completely and accurately. Any falsifications or misstatement of facts may be sufficient to disqualify you. If any doubt exists in your mind as to whether or not you were arrested or charged with a criminal offense at some point in your life or whether an offense remains on your record, you should answer “Yes.” You should answer “No,” only if you have never been arrested or charged, or your record was expunged by a judge’s order.

(Respondent’s Exhibit 1) (Emphasis in original).

6. Page ten (10) of the Personal History Statement (Form F3) contains the following paragraph just above 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)

7. Petitioner was arrested for “Brandishing a Firearm” and “Disturbing the Peace” on February 24, 1976 by the Oakland Police Department in California for an incident involving his mother-in-law. Petitioner testified that although he was placed in handcuffs, transported in the back seat of a patrol car to the police station, and held for one and one-half days in a small “holding type area” room with only a bench to sit on, that he was told that he was not under arrest. At some later point, the district attorney elected not to proceed on the charge. (Respondent’s Exhibit 5 and Petitioner’s Exhibit 3)

8. Petitioner testified that he didn’t know about the charges in California until after the Department of Correction found them while doing his background check when he applied with them. Petitioner also testified that he completed his Personal History Statement Form F-3 after he had completed Basic Law Enforcement Training (BLET). Additionally, Petitioner testified that he understood being “arrested” as taking away someone’s liberty and that the person would not be free to leave.

9. Petitioner completed and signed a Report of Appointment Form F-5A for the Department of Correction on or about October 12, 2006. On that form, Petitioner included the charges of “Brandishing a Firearm” and “Disturbing the Peace”. (Respondent’s Exhibit 6)

10. Two weeks later, on or about October 26, 2006, Petitioner completed and signed the Personal History Statement Form F-3 for the Louisburg College Campus Police. This form did not include the charges from California. (Respondent’ Exhibit 1)

11. Officer Jeremy Pearce, who is currently employed with Louisburg College Campus Safety as a security officer testified on behalf of Petitioner. Pearce testified that he attended Basic Law Enforcement Training (BLET) with Petitioner and had daily contact with him during the program. Officer Pearce also testified that Petitioner was truthful.

12. Petitioner’s assertion that he omitted the above referenced charges because he did not believe that he had been arrested is not credible in light of a preponderance of the evidence presented.

13. Petitioner made a material misrepresentation of fact on the Personal History Statement (Form F-3) completed and signed by Petitioner on or about October 26, 2006 as part of his application for employment with the Louisburg College Campus Police by failing to list “Brandishing a Firearm” and “Disturbing the Peace” in response to question number 47.

14. The second omission outlined in the finding of probable cause to deny Petitioner’s campus police officer commission arises from the answers given during the applicant interview phase of the mandated background investigation which is recorded on the Form F-8. Specifically, Petitioner responded to the question “ Explain any knowledge or involvement regarding illegal drugs” by stating “none.” Petitioner’s answer did not include information regarding his purchase of marijuana for his wife while in the state of California from 1974 to 1975. (Respondent’s Exhibit 2)

15. Special Agent Gail Beasley, currently employed by the State Bureau of Investigation as the polygraph coordinator, testified that she interviewed Petitioner on December 19, 2006 prior to administering a polygraph test. She testified that during the interview, Petitioner indicated that he had purchased marijuana for his wife on a weekly basis from 1974 to 1975 and that he had purchased them in “nickel and dime” bag quantities. (Respondent’s Exhibit 3)

16. Petitioner testified that he was not married in 1974 or 1975 and that he was

in the Navy and out to sea for the majority of those two years.

17. 12 NCAC 02J .0200 states that a campus police commission shall be denied upon a finding that the officer fails to meet any of the required minimum standards.

18. 12 NCAC 02J .0201(4) states that:

Every campus police officer must meet the following requirements to obtain and maintain a campus police commission; meet the minimum standards for criminal justice officers established by the North Carolina Criminal Justice Education and Training Standards Commission, appearing in Title 12, Chapter 9 of the North Carolina Administrative Code; which standards are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced material.

19. 12 NCAC 09A .0204(b)(6) states that the Commission may deny the certification of a criminal justice officer when the Commission finds that the applicant for certification has knowingly made a material misrepresentation of any information required for certification or accreditation.

20. 12 NCAC 02J .0210(a) states that:

When the Attorney General, or his designee, suspends or denies the commission of a campus 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, 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 campus police commissioning.

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 74G of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 2J, to commission campus police officers and to revoke, suspend or deny such certification.

3. Petitioner has the burden of proof. Petitioner has failed to show, by a preponderance of the evidence, that Respondent improperly denied his campus police officer commission.

4. Petitioner made a material misrepresentation of fact on the Personal History Statement (Form F-3) completed and signed by Petitioner on or about October 26, 2006 as part of his application for employment with the Louisburg College Campus Police by failing to list “Brandishing a Firearm” and “Disturbing the Peace” in response to question number 47.

5. Petitioner did not make a material misrepresentation of fact during the applicant interview phase of the mandated background investigation recorded on the Form F-8 when he answered the question regarding his knowledge or involvement with illicit drugs.

6. The Personal History Statement (Form F-3) completed by Petitioner on or about October 26, 2006 and the applicant interview portion of the mandated background investigation recorded on Form F-8 were necessary and required parts of the application process to become a commissioned campus police officer with the Louisburg College Campus Police.

7. Respondent’s finding of probable cause is supported by substantial evidence.

DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that Respondent commission Petitioner as a campus police officer with a probationary status of one year.

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 who 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 25th day of September, 2007.

____________________________

Beecher R. Gray

Administrative Law Judge

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