STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF LINCOLN

JOHN EDWARD ISAACKS, JR.,

Petitioner,

v.

NORTH CAROLINA SHERIFFS’

EDUCATION AND TRAINING

STANDARDS COMMISSION,

Respondent.

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|IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

08 DOJ 0184

DECISION

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This contested case was heard by Administrative Law Judge J. Randall May on May 8, 2008 in Newton North Carolina.

APPEARANCES

Petitioner: C. Randall Isenhower, Attorney-at-Law

Respondent: E. Mike Heavner, Assistant Attorney General

ISSUE

Did Petitioner knowingly make a material misrepresentation of any information required for certification as a justice officer to the North Carolina Sheriffs’ Education and Training Standards Commission or the North Carolina Criminal Justice Education and Training Standards Commission?

Based upon careful consideration of the evidence or lack thereof, the undersigned makes the following findings of fact. In so doing all evidence has been weighed including sworn testimony and exhibits received into evidence; and where appropriate has assessed the credibility of witnesses by taking into account the factors necessary for judging credibility and giving due regard to the demeanor of the witness; any interest, bias, or prejudice the witness may have; the opportunity of the witness to see, hear, know or remember the facts about which the witness testified and if so was the testimony reasonable and consistent with all other believable evidence. When applicable, further due regard has been given to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency. From such evidence, the undersigned makes the following:

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 that the Petitioner received by certified mail, the proposed revocation of Justice Officer’s Certification letter, mailed by Respondent Sheriffs’ Commission on December 14, 2007. (Respondent’s Exhibit 5)

2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter referred to as “The Sheriffs’ 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 revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant or certified justice officer 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) knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation, or 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 Department of Correction Correctional Officer on July 15, 2004. (Petitioner’s Exhibit 1)

5. In 2004, as part of his application to be certified as a Correctional Officer by the North Carolina Criminal Justice Education and Training Standards Commission, the Petitioner completed the required form “REPORT OF APPOINTMENT/ APPLICATION FOR CERTIFICATION Form F-5A(DOC)” (hereinafter DOC Application) In response to Question No. 3, “Have you ever used any illegal drugs? (If yes, please explain on a separate sheet). Yes ο No ο,” the Petitioner checked the “No” block. On June 14, 2004, the Petitioner certified, subscribed, and swore that “each and every statement” made on the form was “true and correct.” (Petitioner’s Exhibit 1)

6. On December 29, 2004, the Petitioner was appointed as a detention officer with the Lincoln County Sheriff’s Office. (Respondent’s Exhibit 4)

7. In 2004, as part of his application to be a detention officer with the Lincoln County Sheriff’s Office and to be certified as a detention officer through the North Carolina Sheriffs’ Education and Training Standards Commission, the Petitioner completed the required Form F-3, “PERSONAL HISTORY STATEMENT.” On the first page of the form appears the following “NOTE: Any statements are subject to validation and any incorrect statements or omissions may disqualify you from certification. Truthful statements to any item requested will not necessarily exclude you from consideration. This form must be notarized upon completion.” In response to Question No. 44 of the Personal History Statement, which asked “Have you ever used marijuana? YES ο NO ο If YES, what were the circumstances?”, the Petitioner checked the “NO” block. Immediately before this question, the following appears on the Personal History Statement form, “NOTE: Answer all of the following questions completely and accurately. Any falsification or misstatement of facts may be sufficient to disqualify you from certification. Applicants for the position of Justice Officer must disclose all prior criminal conduct.” On October 5, 2004, the Petitioner certified, subscribed, and swore that “each and every statement” made on the form was “true and complete” and that he understood that any misstatements or omission of information may subject him to disqualification or dismissal. (Petitioner’s Exhibit 2)

8. Approximately two years later, on or about November 29, 2006, the Petitioner completed another Form F-3 “PERSONAL HISTORY STATEMENT” in furtherance of his employment and certification as a deputy with the Lincoln County Sheriff’s Office. This Personal History Statement was again completed by the Petitioner under oath. This time, in response to Question No. 44, asking if the Petitioner had ever used marijuana, the Petitioner indicated that he had used marijuana. In response to the question asking him to list the circumstances of his use of marijuana, he indicated, “I tried it one time in high school.” (Petitioner’s Exhibit 3)

9. When the staff for the Respondent reviewed and compared the Petitioner’s 2006 Personal History Statement (admitting use of marijuana) with his 2004 Personal History Statement (denying use of marijuana) and DOC application (denying use of marijuana), it was determined that there was a noticeable discrepancy in response to the questions concerning the Petitioner’s prior use of marijuana. Staff for the Respondent requested the Petitioner submit a statement explaining this discrepancy.

10. The Petitioner responded in a sworn Affidavit, dated August 15, 2007, which stated:

When I applied for my job as a Detention Officer I answered NO to the question asking if I had ever used illegal drugs. While I was in BLET we were discussing this subject. I got to thinking back and remembered that I did try marijuana one time back in high school. When I applied for my job as a deputy I answered YES to the question. I was told that I needed to change the answer so that my applications would be the same. I filled out another application and answered the question as NO. When I took my polygraph I told the truth that I did try marijuana one time back in high school. (Respondent’s Exhibit 2)

11. When this matter was considered by the Probable Cause Committee of the Respondent, the Sheriff’s Standards’ Division Staff presented the findings of their investigation and the Petitioner spoke to the Committee concerning his answers pertaining to the use of marijuana. After considering all of the evidence, the Probable Cause Committee of the Respondent found probable cause to believe the Petitioner made a knowing material misrepresentation of information required for certification to the Sheriffs’ Commission by not disclosing his prior use of marijuana on his October 5, 2004 Personal History Statement and that the Petitioner made a knowing material misrepresentation of information required for certification to the North Carolina Criminal Justice Education and Training Standards Commission by not disclosing his prior use of marijuana on his June 14, 2004, DOC Application. Based on these material misrepresentations, the Probable Cause Committee found probable cause that the Petitioner’s justice officer certification should be revoked for a period of not less than five years from the date of final revocation. (Petitioner’s Exhibit 5)

12. Respondent’s Exhibit 1 is a copy of the Respondent’s Request for Admissions, Interrogatories, and Requests For Production of Documents and the Petitioner’s sworn response.

13. The Petitioner testified to the following at the hearing. He is 32 years old and has a high school education. In 2004, when he completed the DOC Application, he answered “NO” because he did not understand the seriousness of the question and he did not think one time use twelve years ago was a big deal. He did not think it was relevant to his ability to perform the job. He has never notified anyone at the Department of Correction about his marijuana use. He used marijuana one time when he was sixteen or seventeen and was in either tenth or eleventh grade. He and two other boys, who were approximately the same age, were in a car on their way home from a comedy club. One of the other boys lit a marijuana cigarette and passed it to him. The Petitioner took one puff. The Petitioner refused to take another puff when it was passed to him a second time. That was the only time he has ever used marijuana. He has been subject to drug testing by the Department of Correction, Sheriff’s Office, and previous employers and has always tested negative. In 2004, he completed his Personal History Statement for a detention officer position with the Lincoln County Sheriff’s Office. He completed the form in Sergeant Connie Queen’s office. Sergeant Queen was in charge of training and standards for the Sheriff’s Office. She went over the form with him. When he read Question No. 44, he felt obligated to tell her about his previous use of marijuana. He advised Sergeant Queen about his use of marijuana in high school. She asked whether he had disclosed this use to DOC. He told her “NO” and she said that the answers on his DOC application should match his answers on his Personal History Statement or it would throw up red flags in Raleigh. He checked “NO” because he felt, based on her experience, she knew better what to do. Petitioner claims she advised him to not disclose his marijuana use to anyone else. Although he felt her advice was odd, he never approached anyone else in the Sheriff’s Office about it. Later in 2006, when he applied as deputy, he was going through BLET at Gaston College. At BLET, the instructors emphasized the importance of being honest on the applications. BLET taught him that your actual answers on the application were not as important as your being honest in answering the questions – it was an integrity issue. As a result, when he completed his Personal History Statement for the Deputy position he answered “YES” to Question No. 44. He completed this form at his residence. When he turned the form into Sergeant Queen, she asked how he had completed his 2004 Detention Officer Personal History Statement. He told her that he had answered “NO” to Question No. 44. The Petitioner further claims she told him to change his answer to Question No. 44 on his current (2006) Personal History Statement to “NO” so they would match. He stated he then completed another Personal History Statement on which he answered “NO” to Question No. 44. He does not know where that Personal History Statement is. He wrote a statement to the Sheriff explaining why he completed two different Personal History Statements in connection with his application for the deputy position. He wrote the statement (Respondent’s Exhibit 2) in response to a request from the Sheriff for an explanation as to why his 2006 Personal History Statement differed from his 2004 Personal History Statement and DOC application. The Petitioner currently works as a deputy and patrols the eastern end of Lincoln County. He was polygraphed approximately within a month or so after he turned in his 2006 Personal History Statement. This was the first polygraph he had ever taken.

14. Sheriff Tim L. Daugherty testified to the following at the hearing. In 2006, when the Petitioner was applying to be a deputy, the Sheriff’s Office was going through a transition as a result of his recent election. Sheriff Daugherty was sworn into office on December 4, 2006. The transition period between administrations was confusing for many of the employees. The previous Sheriff of Lincoln County did not polygraph applicants. Sheriff Daugherty had implemented a new policy that would require the Petitioner to take a polygraph test in conjunction with his application to become a deputy. Sheriff Daugherty was aware that the Petitioner had completed two different Personal History Statements in 2006, and that, in response to the question concerning marijuana use, the Petitioner had answered “YES” on one of the Personal History Statements and “NO” on the other. He believed that both 2006 applications and a letter of explanation had been sent to Sheriffs’ Standards Division. He testified that honesty and integrity are essential qualities of a justice officer. He hopes the Petitioner’s certification is not revoked. The Sheriff feels the Petitioner is an exemplary officer and hopes he is allowed to continue to work as a deputy for him.

15. A background investigation of the Petitioner conducted by Charles Greene of the Lincoln County Sheriff’s Office in December of 2006 revealed no negative information. (Petitioner’s Exhibit 4) The Petitioner has been tested for illegal drug use at the Sheriff’s Office and has passed all such tests. (Petitioner’s Exhibits 5-8) On March 3, 2008, the Petitioner received his one year job evaluation and received a “Commendable” Score of 1575 (on a 0 to 2350 point scale). (Petitioner’s Exhibit 9)

16. Respondent’s Exhibit 3 is a copy of the Petitioner’s Report of Appointment [Form F-4] showing he was sworn as a deputy for the Lincoln County Sheriff’s Office on March 2, 2007.

17. Diane N. Konopka, Deputy Director of the Sheriffs’ Standards Division, testified about the Sheriffs’ Standards Division’s investigation and the contents of the Petitioner’s certification file. In 2007, the Division received the Petitioner’s 2006 Personal History Statement in which he admitted that he had used marijuana. The Division only received one 2006 Personal History Statement. The Division did not receive a 2006 Personal History Statement in which the Petitioner denied ever using marijuana. The Division did not receive a letter from the Lincoln County Sheriff’s Office alerting the Division to the discrepancy. Konopka compared the contents of the Petitioner’s 2006 Personal History Statement to the information contained in Petitioner’s Sheriffs’ Standards and Criminal Justice certification files. In comparing the information, Konopka determined that the Petitioner previously indicated that he had never used marijuana on his October 5, 2004 Personal History Statement and his June 14, 2004 DOC application. She requested and received a statement from the Petitioner explaining the discrepancies. (Respondent’s Exhibit 2)

18. Sergeant Connie Queen testified to the following at the hearing. She has been employed with the Lincoln County Sheriff’s Office for 16 years. She is the training coordinator. She knows the Petitioner through work. She does not recall processing his detention officer application. She first learned of his marijuana use in 2006 when he was in the middle of the hiring process to become a deputy. She has never told anyone to put incorrect information on a Personal History Statement. She never told the Petitioner not to tell others about his marijuana use. In 2006, the Petitioner had originally turned in a Personal History Statement for the deputy position in which he answered “NO” to question number 44, indicating he had never used marijuana. During the hiring process, before the application was sent to Raleigh, the Petitioner approached her and said he learned at BLET that he should have answered “YES” to question number 44 since he had taken one puff of marijuana when he was in high school. She also testified that the Petitioner said he did not know how he had answered number 44 on his first application and requested to see the first application before he filled out the second application where he answered number 44 “YES.” He had not yet taken his polygraph. She does not know if he had been told that he would have to take a polygraph or not. He completed a second Personal History Statement for the deputy position. (Petitioner’s Exhibit 3) The Petitioner completed both 2006 Personal History Statements, the first one on which he answered “No” to the marijuana use question and the second one on which he answered “Yes” to the marijuana question, in her office. She did not discuss the questions on the Personal History Statement with him. She did tell him to put what was on his detention officer’s application on his deputy application. She never pulled the detention officer’s file for the Petitioner. She never told him that his answers on the two applications must match each other. She never looked at his detention officer’s application. She never discussed the Petitioner’s DOC Application with him and was unaware of how he answered the questions on it. She believes that both 2006 Personal History Statements were turned in to the Sheriff’s Office, but only the correct one, the one indicating the Petitioner had used marijuana was sent to Sheriff’s Standards Division. She has seen the other application in his file at the Sheriff’s Office. She is not the person who sends applications to Sheriffs’ Standards Division.

19. Christina Isaacks, wife of the Petitioner, testified to the following at the hearing. She has been married to the Petitioner for 11 years. The Petitioner completed the 2006 Personal History Statement in which he answered “Yes” to Question No. 44 at their house. They discussed the question and the Petitioner told her he was answering “YES” because he needed to do the right thing.

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 the 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. The North Carolina Sheriffs’ Education and Training Standards 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 revoke, suspend or deny such certification.

3. Pursuant to 12 NCAC 10B .0204(c), the Sheriffs’ Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or certified justice officer: (1) has knowingly made a material misrepresentation of any information required for certification or accreditation from the Sheriffs’ 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, fraud, misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Sheriffs’ Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

4. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification to the North Carolina Criminal Justice Education and Training Standards Commission on June 14, 2004, when he responded “NO” to Question No. 3 of the Criminal Justice Report of Appointment/Application for Certification [Form F-5A (DOC)].

5. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification to the Respondent, on October 5, 2004, when, in response to Question No. 44 of the Personal History Statement [Form F-3], he answered “NO” indicating no past drug use.

6. Justice officers must be honest. They are often called to testify in criminal trials in which the defendant’s liberty is at stake. It is material that a justice officer’s credibility and integrity be beyond reproach.

7. Pursuant to 12 NCAC 10B .0205(2)(c), when the Sheriffs’ Commission suspends, revokes, or denies the certification of a justice officer, the period of sanction shall be not less than five years where the cause of sanction is material misrepresentation of any information required for certification or accreditation from the Sheriffs’ Commission or the North Carolina Criminal Justice Education and Training Standards Commission. The Sheriffs’ Commission may either reduce or suspend the periods of sanction under this Item or substitute a period of probation in lieu of revocation, suspension or denial following an administrative hearing. This authority to reduce or suspend the period of sanction may be utilized by the Sheriffs’ Commission when extenuating circumstances brought out at the administrative hearing warrant such a reduction or suspension, in the discretion of the Sheriffs’ Commission.

8. The findings of the Probable Cause Committee of the Respondent are supported by substantial evidence and are not arbitrary and capricious.

9. The party with the burden of proof in a contested case must establish the facts required by G.S. § 150B-23(a) by a preponderance of the evidence. N.C. Gen. Stat. § 150B-29(a). The administrative law judge shall decide the case based upon the preponderance of the evidence. N.C. Gen. Stat. § 150B-34(a).

10. Petitioner has the burden of proof in the case at bar. Petitioner has failed to show by a preponderance of the evidence that Respondent’s proposed revocation of Petitioner’s justice officer certification is not supported by substantial evidence.

DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Petitioner failed to show by a preponderance of the evidence that he did not knowingly make a material representation of information required for certification as set forth above. The Undersigned recommends Respondent revoke the Petitioner’s justice officer certification for a period up to five (5) years based upon Petitioner’s material misrepresentation of information required for certification. However, there are extenuating circumstances in this case that warrant the Commission, in its discretion, to reduce or suspend the period of sanction under this item or substitute a period of probation in lieu of revocation, suspension or denial following an administrative hearing, the Undersigned recommends the Respondent to consider leniency.

NOTICE AND ORDER

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, to submit Proposed Findings of Fact and to present oral and written arguments to the Agency. N.C.G.S. § 150B-40(e).

The Agency that will make the Final Decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.

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).

IT IS SO ORDERED.

This the 18th day of June, 2008.

__________________________

J. RANDALL MAY

ADMINISTRATIVE LAW JUDGE

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