STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAYNE 07 DOJ 1711

|Danny Earl Keel |) | |

|Petitioner |)) | |

| |) | |

|vs. |))))|PROPOSAL FOR DECISION |

| | | |

|N. C. Criminal Justice Education | | |

|and Training Standards Commission | | |

|Respondent | | |

In accordance with North Carolina General Statute §150B-40(e), Respondent requested the designation of an administrative law judge to preside at an Article 3A, North Carolina General Statute §150B, contested case hearing of this matter. Based upon the Respondent’s request, Administrative Law Judge Eugene Cella heard this contested case in Raleigh, North Carolina on June 17, 2009.

APPEARANCES

Petitioner: W. Carroll Turner

Attorney for Petitioner

PO Box 547

Mount Olive, North Carolina 28365-0547

Respondent: J. Joy Strickland, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Did the Respondent properly propose to suspend Petitioner’s law enforcement officer certification?

RULES AT ISSUE

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

12 NCAC 09A.0205(b)(4)

BASED UPON careful consideration of the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact. In making the Findings of Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received Notice of Hearing, and Petitioner received the notification of probable cause to suspend law enforcement officer certification letter mailed by the Respondent on September 11, 2007. (Respondent’s Exhibit 7)

2. The Respondent, North Carolina Criminal Justice Education and Training Standards Commission, has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify criminal justice officers and to revoke, suspend, or deny such certification.

3. Petitioner applied for certification as a Mount Olive Law Enforcement Officer on March 21, 2007. (Respondent’s Exhibit 1)

4. Respondent found probable cause to suspend Petitioner’s certification as a law enforcement officer as a result of two knowing material misrepresentations of information required for certification when Petitioner completed the Report of Appointment/Application for Certification (Form F-5A) and signed as part of his application with the Mount Olive Police Department on or about March 21, 2007 and when Petitioner completed the Report of Appointment/Application for Certification (Form F-5A) and signed as part of a previous application for certification with the Mount Olive Police Department on or about May 19, 1991. (Respondent’s Exhibits 1,4 and 7)

5. The first misrepresentation outlined in the finding of probable cause to suspend Petitioner’s law enforcement officer certification arises from the “Criminal Record Section” on the Report of Appointment/Application for Certification (Form F-5A) completed and signed by the Petitioner on or about March 21, 2007 as part of his application for employment with the Mount Olive Police Department. When completing the Form F-5A, Petitioner failed to list the following two criminal charges: assault and battery and failing to discharge duties, in violation of N.C.G.S. 14-33 and 14-230, respectively.

Specifically, the “Criminal Record Section” of the Report of Appointment/Application for Certification (Form F-5A), that Petitioner completed and signed in 2007, contains the following instruction:

ALL APPLICANTS & TRANSFERS MUST READ AND COMPLETE THIS CRIMINAL RECORD SECTION IN THEIR OWN HANDWRITING

Each applicant must list any and all criminal charges regardless of the date of offense and the disposition (to include dismissals, not guilty, nol pros, PJC, or any other disposition where you entered a plea of guilty). Do not include minor traffic offenses (N.C.G.S. Chapter 20), but specifically include DWI, DUI, driving while under the influence of drugs, driving while license permanently revoked, speeding to elude arrest, or duty to stop in event of accident. If you list a charge(s), please attach certified and true copies of warrant(s) and judgment(s) for each offense, even if documentation and charges have previously been reported to this agency.

Petitioner checked the block indicating “NO CRIMINAL CHARGES” in response to the instructions on the Report of Appointment/Application for Certification (Form F-5A). (Emphasis in Original) (Respondent’s Exhibit 1)

6. Additionally, the Report of Appointment/Application for Certification Form (F-5A), completed by Petitioner in 2007, contains the following language just above the applicant’s signature:

As the applicant for certification, I attest that I am aware of the minimum standards for employment, that I meet or exceed each of those requirements, that the information provided above and all other information submitted by me, both oral and written throughout the employment and certification process, is thorough, complete, and accurate to the best of my knowledge. I further understand and agree that any omission, falsification, or misrepresentation of any factor or portion of such information can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time, now or later. I further understand that I have a continuing duty to notify the Commission of all criminal offenses which I am arrested for or charged with, plead no contest to, plead guilty to or am found guilty of. If applicable, I specifically acknowledge that my continued employment and certification are contingent on the results of the fingerprint records check and other criminal history records being consistent with the information provided in my Personal History Statement and as reflected in this application.

(Emphasis is original) (Respondent’s Exhibit 1)

7. Court documents obtained by the Respondent indicate Petitioner was served with a criminal summons for the offense of “Failing to Discharge Duties” on February 16, 2007 by the Mount Olive Police Department in Wayne County file number 07CR 01332. On that date, Petitioner appeared in District Court before a judge in Wayne County and was advised of his rights to counsel and his case was continued to March 16, 2007. The summons alleged the Petitioner:

lawfully and willfully did omit; neglect or refuse to discharge any of the duties of his office, for default where it is not elsewhere provided that he shall be indicted, he shall be guilty of a misdemeanor to wit: refused to inspect the property after being paid, and also to the complaint that he would not inspect it until he (the complainant) changed his attitude. This being said & done after being shown letters from Raleigh and Wayne Co. inspectors that no personal access was required.

On March 16, 2007, while Petitioner was present in court, the prosecutor dismissed the charge of “Failing to Discharge Duties.” (Respondent’s Exhibit 3)

Petitioner testified regarding this incident and provided an explanation of the charges in his response to Respondent’s request for discovery. Specifically, Petitioner testified that the charge of willful failure to discharge duties stemmed from an incident in which an individual claimed he had not performed his duties as the Mount Olive building code inspector. Petitioner remembered that he was served with the summons by Officer Aaron Walker of the Mount Olive Police Department. He further stated, in pertinent part, the following:

I am currently employed as the Building Inspector/Zoning Office for the Town of Mount Olive. The above referenced charge was brought against me by Cherron Wooten of Mount Olive. Mr. Wooten was constructing a building located in the Town of Mount Olive on which he requested an inspection...Mr. Wooten began sending offensive faxes to my attention over a period of approximately three months. Mr. Wooten’s final fax to me was a threat against me and my family. At this point, I was advised by the Town manager and the Town Attorney to file charges against Mr. Wooten for communicating threats and stalking. I filed charges against Mr. Wooten at that time. On the date that we appeared in Court on this matter- February 16, 2007- Mr. Wooten was advised by his attorney, based on the information given to provided to him by Mr. Wooten, to file charges against me for “willful fail discharge duties.” There was no validity to this charge, as I was not qualified to conduct the inspection of his building. I did, in fact, contact Wayne County to perform the inspection, which was my only duty in this matter. When the case came up in Court again on March 16, 2007, the attorney for the Town of Mount Olive and Mr. Wooten’s attorney discussed the charge before the court with the District Attorney and they all agreed that the charges were, in fact, not valid and the charge of “willful fail discharge duties” was dismissed.

(Respondent’s Exhibit 8)

8. Court documents obtained by the Respondent indicate the Petitioner was served with a criminal summons for the charge of “Assault and Battery” on June 21, 1985 by the Mount Olive Police Department in Wayne County file number 85CR 8777. The Petitioner hired an attorney to represent him in this case and went before a district court judge on August 23, 1985. The Petitioner pled not guilty, was tried, and found not guilty by the district court judge on the same date. (Respondent’s Exhibit 2)

Petitioner testified regarding this incident and provided an explanation of the charges in his response to Respondent’s request for discovery. Specifically, Petitioner testified that the charge of assault and battery stemmed from an incident in which he tried to break up a fight between his father and brother- in-law. Petitioner said that his father, who is now deceased, previously had a “drinking problem.” He further stated the following:

In 1985 my mother and father separated. My father left home and arranged for the power (electricity) at their home to be disconnected. My mom was upset and called my sister about the power being turned off. My sister called her husband (my bother-in-law) and told him what happened. My brother-in-law became quite angry and was going to go see my father about the situation. I was present when my father and brother-in-law met. An argument started between my father and brother-in-law which developed into a fight. I attempted to separate them and stop the fight, but never struck my father. My brother-in-law and I were both charged by my father with assault and battery. The cases were tried in Mount Olive District Court. My brother-in-law was convicted of assault and the verdict in my case was not guilty.

(Respondent’s Exhibit 8)

9. The second material misrepresentation outlined in the finding of probable cause to suspend Petitioner’s law enforcement officer certification arises from the “Criminal Offense Record” section on the Report of Appointment/Application for Certification (Form F-5A) completed and signed by the Petitioner on or about May 19, 1991 as part of his application for employment with the Mount Olive Police Department. When completing the Form F-5A, Petitioner failed to list the following criminal charge: assault and battery.

Specifically, the Petitioner responded to the “Criminal Offense Record” section on the Report of Appointment/Application for Certification (Form F-5A) by writing “N/A.” The “Criminal Offense Record” section, of the 1991 Form F-5A, reads as follows: “Exclude minor traffic offenses, unless they were charged at the same time you were charged with DWI, DUI, driving while under the influence of drugs, driving while license permanently revoked or suspended, or duty to stop in event of accident.” (Respondent’s Exhibit 4)

10. The Report of Appointment/Application for Certification Form (F-5A), completed by Petitioner in 1991, contains the following language:

As the applicant for certification, I attest that I am aware of the minimum standards for employment, that I meet or exceed each of those requirements, that the information provided above and all other information submitted by me, both oral and written throughout the employment and certification process, is thorough, complete and accurate to the best of my knowledge. I further understand and agree that any omission, falsification, or misrepresentation of any factor or portion of such information can be the sole basis for termination of my employment and/or denial, suspension or revocation of my certification at any time; now or later. If applicable, I specifically acknowledge that my continued employment and certification are contingent on the results of the fingerprint record check and other criminal history records being consistent with the information provided in my Personal History Statement and as reflected in this application.

(Emphasis in original) (Respondent’s Exhibit 4)

11. Richard Squires, an investigator for the Criminal Justice Education and Training Standards Division, on behalf of the Respondent, testified Petitioner had previously held certification with the North Carolina Sheriffs’ Education and Training Standards Commission. Squires obtained a copy of the application paperwork Petitioner completed for the Wayne County Sheriff’s Office for review. Petitioner listed the 1985 assault and battery charge on the Form F-3, filed with the Wayne County Sheriff’s Office on or about November 28, 2005.

Investigator Squires requested that Petitioner provide a written statement addressing why he failed to list his entire criminal record on the “Criminal Offense Record” sections on the Report of Appointment/Application for Certification (Form F-5A) that he completed for the Mount Olive Police Department in 1991 and 2007. Petitioner provided a typed statement indicating the reason he left the charges of assault and battery and fail to discharge duties off of his Form F-5A in 2007 is that he “failed to read the print above the boxes shown for ‘no criminal charges’” Additionally he stated that “[a]ny applications or paperwork I have completed in my 23 years as a law enforcement officer as requested information on convictions only.” (Respondent’s Exhibit 5)

12. Danny Keel, currently employed as a Mount Olive building code inspector, testified he is currently a special deputy with the Wayne County Sheriff’s Office and that he has previously held certification with the North Carolina Department of Motor Vehicle’s Motor Carrier Division. The Petitioner stated he was under a great deal of stress while filling out the 2007 application for the Mount Olive Police Department because of harassment and threats made by an individual named Wooten. He also indicated that the application paperwork sat on his desk for a month and he filled out the paperwork, off and on, in his spare time while working for the city of Mount Olive in his full time capacity as a code inspector. Petitioner said that he was frequently interrupted by phone calls and people coming into his office while he was completing the application paperwork.

Petitioner introduced 10 prior employment applications that he completed. He indicated they each only asked whether the applicant had felony convictions not merely criminal charges. (Petitioner’s Exhibits 1-10)

13. Charles Brown, the current Town Manager for Mount Olive, testified on behalf of the Petitioner. Brown testified that he did not know of the assault charge from 1985. He also testified that he knew about the “Failing to Discharge Duties” charge because the circumstances surrounding the charge were widely known in Mount Olive due to the danger faced by town employees. Brown stated that he thought the Petitioner left the charges off his Form F-5A in 2007 because he was stressed and wanted to forget about the events that occurred in 1985. In his experience, Petitioner has always been honest and forthright.

Mr. Brown further stated that although he has very little input in the process regarding law enforcement applicants, that he would expect honesty from any applicant for a law enforcement position.

14. Ralph Schroeder, Chief of the Mount Olive Police Department also testified on behalf of the Petitioner. Schroeder testified that he has known the Petitioner for almost 30 years and thinks of the Petitioner as an honest person. Schroeder testified the Petitioner told him that the reason Petitioner left the charges off the Form F-5A filed with the Mount Olive Police Department in 2007 was because the Petitioner forgot about the charges and did not put anything on the forms.

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 Respondent, the North Carolina Criminal Justice Education and Training Standards Commission, has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. Pursuant to 12 NCAC 09A .0204(b)(6), the Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer ... has knowingly made a material misrepresentation of any information required for certification or accreditation.

4. Pursuant to 12 NCAC 09A.0205(b)(4), when the Commission suspends or denies the certification of a criminal justice officer, the period of sanction shall be not less than five years; however, the Commission may either reduce or suspend the period of sanction under Paragraph (b) of this Rule or substitute a period of probation in lieu of suspension of certification following an administrative hearing, where the cause of sanction is ... material misrepresentation of any information required for certification or accreditation.

5. Pursuant to N.C. Gen. Stat. §150B-29(a), 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. Furthermore, the administrative law judge shall decide the case based upon the preponderance of the evidence according to N.C. Gen. Stat. §150B-34(a).

6. 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 suspension of Petitioner’s criminal justice officer certification is not supported by substantial evidence. Petitioner’s assertion that he did not knowingly make a material misrepresentation of information on his application forms by failing to list his entire criminal history, including the charges of assault and battery and failing to discharge duties, is not credible in light of all of the evidence presented.

Specifically, Petitioner recounted with detail the incidents based on which he was charged with the criminal offenses of assault and battery and willful fail to discharge duties. Regarding the 1991 assault charge, Petitioner remembered the details surrounding the fight between his father and brother-in-law and indicated that he had to attend a court proceeding at which he was tried by a district court judge and found not guilty. Regarding the willful failure to discharge duties charge, Petitioner again provided substantial detail regarding the basis for that charge and indicated that he remembered the name of the officer that served him with the criminal summons. Petitioner attended district court proceeding twice in this case; once at which he was advised of his rights to an attorney and the second at which the case against him was dismissed. These two events are of such a significant nature that it is not credible that Petitioner forgot to list them.

Petitioner’s contentions that he did not list his entire criminal history on his application paperwork due to the fact that he did not read the paperwork thoroughly, that he completed them in a hurry or that he was constantly interrupted while filling them out are not credible in light of the evidence presented. Specifically, the Report of Appointment/Application for Certification (Form F-5A) is a two page document that contains a minimal amount of information that the applicant is responsible for completing. It is not reasonable that it would have taken the Petitioner more than a month to complete this paperwork. Additionally, this contention is without merit because Chief Schroeder testified that Petitioner told him he forgot to list his criminal charges not that he failed to list the charges because he did not read the question.

7. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made material misrepresentations of information required for certification when he completed and signed the Report of Appointment/Application for Certification (Form F-5A) on or about March 21, 2007 as part of his application for employment with the Mount Olive Police Department by failing to list “Assault and Battery” and “Failing to Discharge Duties” in response to the Criminal Record Section.

8. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification when he completed and signed the Report of Appointment/Application for Certification (Form F-5A) on or about May 19, 1991 as part of his application for employment with the Mount Olive Police Department by failing to list “Assault and Battery” in response to the Criminal Offense Record section.

9. The Report of Appointment/Application for Certification (Form F-5A) is a necessary and required part of the application process in order to receive law enforcement officer certification.

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

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends Respondent suspend the Petitioner’s law enforcement officer certification for a period of not less than one (1) year based upon Petitioner’s knowing material misrepresentation of information required for certification. The period of suspension shall be suspended for a period of three (3) years on condition that Petitioner not violate any law (other than infractions and minor traffic offenses) of this state or any other state, any federal laws, any ordinances, any rules of this Commission, the Company and Campus Police Program or the North Carolina Sheriffs’ Education and Training Standards Commission.

NOTICE AND ORDER

The North Carolina Criminal Justice 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 30th day of July, 2009.

_________________________________

Eugene J. Cella

Administrative Law Judge

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