STATE OF NORTH CAROLINA IN THE OFFICE OF



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 02 D0J 0416

MICHAEL A. CARRION )

Petitioner, )

)

v. ) PROPOSAL

) FOR

) DECISION

NC CRIMINAL JUSTICE EDUCATION AND )

TRAINING STANDARDS COMMISSION )

Respondent. )

HEARING was held in this contested case before James L. Conner, II, Administrative Law Judge, on July 12, 2002, in Fayetteville, North Carolina. Petitioner submitted proposed Findings of Fact and Conclusions of Law on August 1, 2002, and Respondent submitted counter proposals on August 15, 2002.

APPEARANCES

For Petitioner: Stephen C. Stokes

The Stokes Law Firm

117 Person Street

Fayetteville, NC 28301

For Respondent: Lorrin Freeman

Assistant Attorney General

NC Department of Justice

PO Box 629

Raleigh, North Carolina 27602

ISSUES

1. Whether Petitioner knowingly provided material misrepresentation on his Personal History Statement and Application for Certification regarding offenses committed in April and May of 1976.

2. Whether Respondent has shown by a preponderance of the evidence that Petitioner knowingly provided material misrepresentation on his Personal History Statement and Application for Certification regarding offenses committed in April and May of 1976.

STATUTES AND REGULATIONS AT ISSUE

12 NCAC 9(G) 0504 and 505.

EXHIBITS ADMITTED

Introduced by Petitioner:

P1. Criminal Court of the City of New York, Certificate of Disposition

P2. Otha L. Glover, memorandum dated May 29, 2001

P3. Michael Cotton, letter dated February 12, 2002

P4. Employee Appraisal for period 10-01-00 to 09-30-01

P5. Employee Appraisal per period 10-01-01 to 09-30-02

P6. Certificate of Release or Discharge from Active Duty (DD Form 214 and Form 214 Worksheet)

P7. Certificate of Clearance And/Or Security Determination (DA Form 873)

P8. Certified copy of Certificate of Disposition (P1)

P9. New York Criminal Procedure Law, Section 720.35

Introduced by Respondent:

R1. Petitioner’s Personal History Statement (Form F-31(DOC))

R2. Report of Appointment/Application for Certification for Petitioner

(Form F-5A(CJP))

R3. Arrest record from New York, 1976

R4. Additional criminal record report from New York

R5. Letter from Respondent to Petitioner proposing suspension of certification,

dated February 19, 2002.

R9. Petitioner’s handwritten statement.

R10. Petitioner’s Interrogatory Responses

R11. Petitioner’s Appeal Letter

R12. FBI Record Check on Petitioner (Under Seal)

R12A. FBI additional Record Check on Petitioner (Under Seal)

STIPULATIONS

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received Notice of Hearing, and that Petitioner received the Proposed Suspension of Correctional Officer Certification letter mailed by Respondent on February 19, 2002.

2. The North Carolina Criminal Justice Education and Training Standards Commission (Respondent) 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 correctional officers and to deny, revoke, or suspend such certification.

3. Petitioner was charged with the following criminal offenses:

a. 2nd Degree Robbery in New York City on April 17, 1976 for which he received one year probation.

b. Petty Larceny in New York City on May 21, 1976 for which he was

convicted and served six month confinement.

4. On September 25, 2000 Petitioner completed a Personal History Statement (Form F-3(DOC)) as a part of his application with Respondent for certification as a correctional officer with the North Carolina Department of Corrections. Question number 14 of that form states: “ALL offenses other than minor traffic offenses must be reported below. Please note that a “DWI/DUI,” “Duty to Stop in the Event of an Accident,” “Driving While License permanently Revoked,” and “Speeding to Elude Arrest” are not minor traffic offenses and, therefore, MUST be reported below. Provide all information completely and accurately. Any falsifications or misstatements of fact 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 check the block labeled “Criminal Charges as Reported Below” and give details. If you have no criminal charges other than minor traffic offenses, please check the bock labeled “No Criminal Charges other than Minor Traffic Offenses.” You should check the “No Criminal Charges” block ONLY if you have never been charged or arrested, or your record/citation was expunged by a judge’s court order. Criminal offenses that have been “Dismissed” MUST be reported. Check one of the following:” Petitioner checked the box that said: “No Criminal Charges other than Minor Traffic Offenses.”

5. In September of 2000, Petitioner, through the North Carolina Department of Correction, filed a Report of Appointment/Application for Certification (Form F-5A(CJP)) with Respondent. On this form, Petitioner indicated that he had no criminal record. Petitioner signed this form on September 25, 2000.

6. Petitioner was issued a Probationary Certification (PRB 089504622) as a Correctional Officer by Respondent effective October 9, 2000.

7. Petitioner was issued a General Certification (GNB 089504622) as a Correctional Officer by Respondent effective October 9, 2001.

FINDINGS OF FACT

From the official documents in the file, sworn testimony of the witnesses, exhibits, and other competent and admissible evidence, the undersigned finds as follows:

1. The parties received Notice of Hearing more than fifteen (15) days before the hearing.

2. Petitioner was hired as a Correctional Officer with the North Carolina Department of Corrections, Hoke Correctional Institution, on or about September 25, 2000.

3. Petitioner was issued a Probationary Certification (PRB 089504622) as a Correctional Officer by Respondent effective October 9, 2000.

4. Petitioner was issued a General Certification (GNB 089504622) as a Correctional Officer by Respondent effective October 9, 2001.

5. Petitioner’s Notice of Alleged Violation, dated February 19, 2002, alleges that on or about September 25, 2000, Petitioner falsified the Personal History Statement [Commission Form F-3(DOC)], when he did not annotate that he had been apprehended in April and May of 1976 on suspicion of misdemeanor larceny and second degree robbery. He checked the “No Criminal Charges other than Minor Traffic Offenses” box. Petitioner similarly completed the Report of Appointment/Application for Certification [Commission Form F-5A (CJP)].

6. Pursuant to the above omissions, Respondent recommends suspension of Petitioner’s Correctional Officer Certification.

7. The offenses in question occurred in New York City in April and May of 1976.

8. Petitioner was not convicted of either offense, but rather was granted Youthful Offender Status pursuant to New York Criminal Procedure Law, Section 720.35. That statute reads, in relevant Part, as follows:

(1). A Youthful offender adjudication is not a judgment of a conviction for a crime or any other offense, and does not operate as a disqualification of any person so adjudged to hold public office or public employment or to receive any license granted by public authority….”

(2). Except where specifically required or permitted by statute or upon specific authorization of the court, all official records and papers, whether on file with the court, a police agency or the division of criminal justice services, relating to a case involving a youth who has been adjudicated a youthful offender, are confidential and may not be made available to any person or public or private agency….”

(Emphasis added).

9. New York Consolidated Law 2002, Article 20, Youthful Offender Procedure, defines youth as “a person who is at least 16 years old and less than 19 years old.” Petitioner’s birthday is November 6, 1957. Accordingly, he was less than 19 years old in April and May of 1976, and therefore met the criteria for youthful offender treatment.

10. Petitioner was advised by his attorney and further told by the juvenile court judge that he was granted youthful offender status in both cases and has lived his life over the past 27 years with that understanding and belief.

11. Prior to joining the military, Petitioner used the name his mother had given him from her previous husband, Michael Mak.

12. Petitioner immediately joined the United States Arm in 1976 upon being released from juvenile detention. Petitioner underwent extensive and periodic background checks during his 20-year military career and was granted both Secret and Top Secret security clearances. Never was he confronted with any records pertaining to the 1976 offenses. This further affirmed in his mind what his attorney had previously advised him of and what the judge had reiterated: That he had been granted youthful offender status and that he had no obligation ever to disclose any information pertaining to any arrest, charge or conviction. During Petitioner’s military career, he served in three war-time environments: Grenada, Panama and Desert Shield/Desert Storm, where he suffered severe loss of hearing. He received numerous military awards and declarations and retired honorably.

13. When the Respondent confronted Petitioner in February 2002 regarding the 27-year old offenses, that was the first time he had been confronted with the same in all that time. The Respondent confronted Petitioner with the purported dates of the offenses which at first glance he accepted as accurate. However, upon further review, and as was pointed out by Petitioner’s counsel, and conceded by Respondent during the hearing of this matter, information regarding the dates of the offenses were rather confusing. For example, the Criminal Court of New York Certificate of Disposition indicated that the date of disposition regarding the charge of second degree robbery was May 20, 1976. It further states that Petitioner was sentenced to six months confinement. However, Respondent maintains that Petitioner was then arrested for Petty Larceny on May 21, 1976 – a day after Petitioner had been sentenced to confinement. Clearly, this information was inaccurate and confusing to all, including Petitioner.

14. It is indicative of this confusion that the Respondent and Petitioner stipulated to one interpretation of the 1976 charges and conviction(s), and Respondent offers a completely different version in its Proposed Findings of Fact. The parties stipulated to two separate charges, convictions, and sentences. Stipulations, ¶3. Respondent now offers the following Finding of Fact:

Petitioner immediately joined the United States Arm in 1976 upon being released from juvenile detention. Petitioner underwent extensive and periodic background checks during his 20-year military career and was granted both Secret and Top Secret security clearances. Never was he confronted with any records pertaining to the 1976 offenses. This further affirmed in his mind what his attorney had previously advised him of and what the judge had reiterated: That he had been granted youthful offender status and that he had no obligation ever to disclose any information pertaining to any arrest, charge or conviction. During Petitioner’s military career, he served in three war-time environments: Grenada, Panama and Desert Shield/Desert Storm, where he suffered severe loss of hearing. He received numerous military awards and declarations and retired honorably.

Respondent’s last offered explanation is logical and may be correct. However, this court is unable to find as a fact that either version is correct, due to lack of clear evidence.

15. On or about September 25, 2000, Petitioner completed the Personal History Statement [Commission Form F-3(DOC)], and the Report of Appointment/application for Certification [Commission Form F-5A (CJP)]. He omitted information pertaining to the April and May 1976 matters consistent with his long-term understanding and belief – based on New York’s Youthful Offender Statute, advice of counsel and instructions from the bench – that he had no obligation to ever disclose any information pertaining to those matters.

16. Richard Squires is employed as an investigator for the Criminal Justice Standards Division. His duties include investigating violations of the North Carolina Criminal Justice Education Training Standards Commission rules, violations of the rules concerning certification of law enforcement officers, correction officers, and juvenile justice officers. Mr. Squires was assigned to investigate the above referenced 1976 offenses pertaining to Petitioner vis-a-vis his responses on the Personal History Statement (PHS) and Application for Certification (AFC). Regarding Question number 14 of the PHS, Mr. Squires stated that Petitioner checked the “No Criminal Charges other than Minor Traffic Offenses” and that he did not list the 1976 Petty Larceny and Second Degree Robbery offense. However, Mr. Squires conceded that the New York and FBI criminal records checks and forms upon which the Respondent relied were inaccurate with respect to Petitioner’s date of birth and age at the time of the April and May 1976 offenses, and that the forms were confusing regarding which offense occurred first and their respective disposition dates. Moreover, Mr. Squires testified that he had no evidence to show that Petitioner had not been granted Youthful Offender Status under New York precluding any obligation on Petitioner’s part to disclose any information pertaining to 1976 offenses.

17. Scott Perry is the Director of the Criminal Justice Standards Division, which is staff to the North Carolina Criminal Justice Education and Training Standards Commission. Mr. Perry testified that based on Mr. Squires’ investigation, he (Mr. Perry) forwarded the case to the standards committee for a standards review on the issue of whether Petitioner’s responses on the PHS and/or AFC constituted a knowing material misrepresentation. Mr. Perry testified that he had no evidence to show that Petitioner had not been granted Youthful Offender Status under New York precluding any obligation on Petitioner’s part to disclose any information pertaining to 1976 offenses.

18. Petitioner has been employed with the Hoke Correctional Institution for the past twenty-two (22) months. Petitioner acknowledges submitting a statement regarding the aforementioned offenses. Petitioner stated that on advice of counsel, he entered guilty pleas, was placed on probation for one offense, and sentenced to six months confinement in juvenile detention on the other. Petitioner is unsure as to which offense occurred first. Petitioner was 18 years old at the time of both offenses. Petitioner stated that the judge and his legal representative both informed him that the crimes would not be indicated on his record and that he had no duty to ever disclose the matters.

19. Petitioner testified that within months of getting out of the juvenile detention in 1976, he enlisted in the United States Army. Petitioner underwent extensive background checks during his 20-year military career, most of which was served as a military police officer. He was granted both Secret and Top Secret security clearances. Never was he confronted with any records pertaining to the 1976 offenses. This further affirmed in his mind that what his attorney had previously advised him of and what the judge had reiterated: That he had been granted Youthful Offender Status and that he had no obligation ever to disclose any information pertaining to any arrest, charge or conviction. During Petitioner’s military career, he served in three war-time environments: Grenada, Panama and Desert Shield/Desert Storm, where he suffered severe loss of hearing. He received numerous military awards and declarations and retired honorably. In addition, Petitioner has since earned two Associates Degrees, and is currently pursuing a BS Degree in Criminal Justice.

20. It wasn’t until February 2002 that Mr. Carrion first learned that the agency thought he had misrepresented the information he provided on the Personal History Statement and Application for Certification. When he reported to the secretary's office, he was given the purported dates of the above mentioned offenses and asked to respond to the same. Using the dates provided, Petitioner states he responded as best he could remember from 27 years ago.

21. Since being employed at the Hoke Correctional Institution, Petitioner has received favorable evaluations from his mentor and supervisors. He testified regarding an office memorandum from his senior mentor, Mr. Otha L. Glover. Mr. Glover’s memorandum states, “Officer Carrion displayed outstanding demeanor and professional conduct,” “...his performance on F Block was outstanding,” and “...he successfully completed the mentor program and no further development is required.” Pet. Exh. 2.

22. Similarly, Petitioner referred to another document written by the institution’s Assistant Superintendent, Mr. Michael Cotten, a 26-year veteran with the Department of Corrections. Mr. Cotten’s letter, dated February 12, 2002 reads as follows:

“The purpose of this letter is to document Officer Carrion's work ethic and moral character that he reflects on the job. Officer Carrion has performed all of his duties at Hoke Correctional Institution in an acceptable manner. He has worked at Hoke for over a year and we have never had reason to question his integrity or his moral character. He has carried out his duties in a professional manner. Your careful consideration of the above information as related to this case will be appreciated.”

23. Mr. Cotten also testified at the hearing consistent with his earlier written statement as it appears above.

24. Kristie Bennett is Petitioner’s unit manager at Hoke Correctional Institution. Ms. Bennett testified that nothing in Petitioner’s performance or behavior since being employed at Hoke Correctional Institution over the past 22 months has given her any reason to question Petitioner’s integrity, honesty, or moral turpitude. She has no reason to believe that Petitioner has engaged in any wrongdoing. She believes Petitioner’s performance is where it should be given his time on the job and experience.

25. The Petitioner’s testimony was credible.

26. What New York Law was in 1976, it can not conclusively be divined, given the conflicting nature of some of the statutes introduced and uncertainty regarding the efficacy of the statutes at the relevant times. However, New York did have a Youth Offender Statue in place at the relevant times and Petitioner reasonably believed he enjoyed the protections of the statue with respect to his obligation to disclose matters pertaining to the offenses at issue.

27. Under New York Criminal Procedure Law, Section 720.35, New York Consolidated Law Service, Section 720.10(1), “Youth” means a person charged with a crime alleged to have been committed when he was at least sixteen years old and less than nineteen years old. Accordingly, Youthful Offender status is available to persons up until they are 19 years old. Petitioner was 18 years old at the relevant times. Because Petitioner was granted Youthful Offender Status, he was not obligated to reveal the offenses.

28. Petitioner had the actual belief that he had Youthful Offender Status, and that these offenses were not to be disclosed.

29. Petitioner’s assertion that he actually believed he had been granted Youthful Offender Status is believable for several reasons: (1) Petitioner’s credible demeanor in court; (2) Petitioner testified he was told he had Youthful Offender Status by a judge and a lawyer; (3) Petitioner’s testimony regarding the aforementioned judge and lawyer, in itself, is credible because he further testified that the judge told him to go into the military and that is what he did shortly after getting out of the juvenile detention center.

30. The Court is cognizant of the fact that in earlier periods judges, especially juvenile court judges, commonly took it on themselves to be flexible and to give young people advice about how to straighten out their lives, such as to enlist in the armed forces. Accordingly, Petitioner’s testimony is credible and consistent with jurisprudential practices in the mid-1970's. Further, Petitioner’s assertion that he had been granted Youthful Offender status is consistent with the New York Law judicially noticed during the hearing.

31. The Petitioner’s twenty-year period in the military, during which time he underwent criminal record checks and never had any criminal matters surface, and during which time he was granted security clearances, including top secret clearances, tended to bolster any belief Petitioner may have had that these matters were not something he was obligated to reveal.

32. Aside from whether, technically, New York Law absolutely establishes the Youthful Offender status one way or the other, the dispositive issue concerns Petitioner’s knowledge and belief following the 1976 offenses and when he provided the information reflected on the Personal History Statement and Application for Certification. In light of the foregoing, the Petitioner’s knowledge and belief was that he did not have to report the offenses.

33. As to the confusion over the sequence of the crimes, the court acknowledged the concern such confusion may have caused the Commission. However, the court further found that as to the testimony, that the confusion was genuine, Petitioner’s testimony was consistently confused and did not appear contrived. The Court could not ascertain any advantage to Petitioner from any of the confusion that was evident in his testimony regarding which offense occurred first. Accordingly, the court does not find the confusion to affect Petitioner’s credibility.

34. The Petitioner is a good employee now.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction in this matter and both parties received proper notice for the hearing.

2. The regulation upon which the Respondent has based its proposed suspension of Petitioner’s certification is 12 NCAC 09G .0504(b)(6), which provides as follows:

The Commission may suspend, revoke or deny the certification of a corrections officer which the Commission finds that … the certified officer … has knowingly made a material misrepresentation of any information required for certification or accreditation.

(emphasis added)

3. Petitioner made no knowing misrepresentation of information required for certification.

4. Even if the Commission were to conclude that the misrepresentation, if any, was knowing and material, under 12 NCAC 09G .0504 and .0505, the Commission nevertheless could and should exercise its discretion to allow Petitioner to remain employed by the Department of Correction, based upon (1) The passage of time (27 years) since the offenses occurred, their seriousness notwithstanding; (2) the intervening period in which Petitioner has shown exceptional service to his country in a time when the national mood and policy is to give honor to those who so serve; and (3) he has given twenty years of service in which he obtained numerous accommodations, which are attested to by official government documentation. The paperwork that was submitted as Petitioner's Exhibit 6, including top secret clearance, tend to establish Petitioner’s integrity and credibility.

PROPOSAL FOR DECISION

Based upon the totality of the foregoing Findings of Fact and Conclusions of Law, it is proposed that Petitioner’s certification as a correctional Officer not be suspended, revoked or denied for any period of time.

ORDER

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 North Carolina General Statute 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-26(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency that will make the final decision in this contested case is the North Carolina Criminal Justice Education and Training Standards Commission.

This the 25th day of September, 2002.

_________________________________

James L. Conner, II

Administrative Law Judge

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