STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 10 DOJ 0395

JAMES WILLIAM CARPENTER, JR., )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA 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 J. Randall May heard this contested case in High Point, North Carolina on July 27, 2010.

APPEARANCES

Petitioner: Kenneth A. Free, Jr., Esq.

Knight & Free, PLLC

416 S. Eugene Court

Greensboro, North Carolina 27401

Respondent: Jane Ammons Gilchrist, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Is Respondent’s proposed denial of Petitioner’s law enforcement officer certification based upon Petitioner’s knowingly making material misrepresentations of any information required for certification, supported by a preponderance of the evidence?

Is Respondent's proposed denial of Petitioner’s law enforcement officer certification based upon Petitioner’s knowingly and willfully, by any means of false pretense, deception, defraudation, misrepresentation, or cheating whatsoever, obtained or attempted to obtain credit, training, or certification from the Commission, supported by a preponderance of the evidence?

Is Respondent’s proposed denial of Petitioner’s law enforcement officer certification based upon Petitioner’s failure to meet or maintain one or more of the minimum employment standards required by 12 NCAC 09B .0100 for the category of the officer’s certification in that every criminal justice officer employed by an agency in North Carolina shall be of good moral character pursuant to G.S. 17C-10 and as determined by a thorough background investigation, supported by a preponderance of the evidence?

RULES AT ISSUE

12 NCAC 09A.0204(b)(2)

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

12 NCAC 09A 0204(b)(7)

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

12 NCAC 09A.0205(b)(5)

12 NCAC 09A.0205(c)

12 NCAC 09A.0204(b)(7)

12 NCAC 09B.0101(3)

12 NCAC 09B.0106

12 NCAC 09B.0111(2)

12 NCAC 09B.0203(g)

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 Administrative Law Judge makes the following FINDINGS OF FACT.

In making the FINDINGS OF FACT, the undersigned Administrative Law Judge 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 Deny Law Enforcement Officer Certification letter mailed by the Respondent on December 22, 2009.

2. 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 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. 12 NCAC 09A.0204(b)(6) provides that 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. 12 NCAC 09A.0205(b)(4) provides that 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. 12 NCAC 09A.0204(b)(7) provides that 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 and willfully, by any means of false pretense, deception, defraudation, misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission.

6. 12 NCAC 09A.0205(b)(5) provides that 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 obtaining, attempting to obtain, training or certification by any means of false pretense, deception, defraudation, misrepresentation or cheating.

7. 12 NCAC 09A.0204(b)(2) provides that 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 fails to meet or maintain one or more of the minimum employment standards required by 12 NCAC 09B .0100 for the category of the officer’s certification.

8. 12 NCAC 09A.0101(3) provides that every criminal justice officer employed by an agency in North Carolina shall be of good moral character pursuant to G.S. 17C-10 and as determined by a thorough background investigation.

9. 12 NCAC 09A.0205(c) provides that when the Commission suspends or denies the certification of a criminal justice officer, the period of sanction shall be for an indefinite period, but continuing so long as the stated deficiency, infraction, or impairment continues to exist, where the cause of sanction is failure to meet or maintain the minimum standards of employment.

10. Petitioner applied for certification as a full-time law enforcement officer with the Burlington Police Department.

11. The Burlington Police Department submitted to Respondent a Report of Appointment/Application for Certification, Form F-5A, which was signed by Petitioner on June 16, 2009. (Respondent's Exhibit 1)

12. On the Form F-5A, Petitioner indicated for the Education Requirement that he had a High School Diploma. He further indicated that the name of the institution that he graduated from was James Madison - Ashworth High School. His education was verified by his diploma (Respondent’s Exhibit 1)

13. On the Form F-5A above the Petitioner's signature is the following statement:

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.

14. Upon receipt of the Form F-5A, Richard Squires, an investigator with the North Carolina Criminal Justice Standards Division, requested a copy of Petitioner’s high school diploma from Ashworth High School. Squires requested a copy of the high school diploma to determine whether the diploma met the criteria set forth in 12 NCAC 09B .0106 which states that high school diplomas earned through correspondence enrollment are not recognized toward minimum educational requirements. On August 4, 2009, Petitioner was awarded a High School Diploma Equivalency from the North Carolina State Board of Community Colleges. (Respondent's Exhibit 8) Because the GED meets the criteria set for in 12 NCAC 09B .0106, whether or not Petitioner met the educational requirements for certification was no longer an issue.

15. On July 1, 2009, Respondent received a copy of a High School College Preparatory Diploma issued to Petitioner by Ashworth High School, which was awarded on December 12, 2008. (Respondent’s Exhibit 2)

16. On July 2, 2009, Respondent received a copy of the Personal History Statement (Form F-3) Petitioner completed as a part of his application for employment with the Burlington Police Department. (Respondent's Exhibit 3)

17. On February 18, 2009, Petitioner completed a Personal History Statement, Form F-3. (Respondent's Exhibit 3) The instructions on the Form F-3 state in part, “fill out this from completely and accurately”. It also states:

NOTE: All statements are subject to verification and any incorrect statements or omissions may bar or remove you from certification. Truthful statements to any item requested will not necessarily exclude you from consideration. THIS FORM MUST BE NOTARIZED UPON COMPLETION.

18. In response to Question 10 which states, “Indicate below the schools you have attended. (Include incomplete courses)” Petitioner indicated that he graduated from Ashworth High School in 1998 and was awarded a high school diploma. Petitioner also indicated that he had attended GTCC in 2009 for BLET and in 1998 for paramedic. (Respondent's Exhibit 3 p 3)

19. Petitioner did not disclose in response to Question 10 that he had attended Dudley High School and James Madison High School. Petitioner indicated that he graduated from Ashworth High School in 1998. However, the high school diploma awarded by Ashworth High School was dated December 12, 2008. Petitioner did not disclose that in 2002 he attended and graduated from the Basic Law Enforcement Training (BLET) Course at Rockingham Community College. (Respondent's Exhibit 3 p 3)

20. In response to Question 31 which states, “List all jobs you have held in the last ten years” Petitioner indicated in paragraph (C” that he was employed from December 2002 through March 2004 by the Koury Corporation as “security”. (Respondent's Exhibit 3 p 7)

21. Petitioner did not disclose that between March 21, 2003 and June 30, 2004 he had been employed as a sworn company police officer with the Koury Corporation. (Respondent's Exhibit 3 p 7)

22. In completing the Personal History Statement Form F-3, Petitioner signed the Personal History Statement before a Notary Public on February 18, 2009. (Respondent's Exhibit 3, p 11) Petitioner's signature is below the following statement:

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.

23. Petitioner provided a written statement, dated July 9, 2009, to clarify information given to the Standards Division. Petitioner stated he did not indicate that he had attended BLET at Rockingham Community College on the F-3 because he was told by Jenny Little that his certification had lapsed because he had not been a police officer for more than three years. When Petitioner completed the F-3, he “did not put RCC, not because I was trying to hide anything but because I did not want to misrepresent the truth. When Mrs. Little told me I know (sic) longer was BLET certified in the state of NC I was very apprehensive about putting it down on the form. I did not want to get in trouble with standards when they saw on my F-3 that I graduated BLET at RCC and was certified, and then when they looked it up, it showed that I was not any longer.” (Respondent’s Exhibit 4, pp 1-2)

24. Jenny Little testified at the hearing of this matter. Ms. Little testified that she is the Law Enforcement Coordinator for the Criminal Justice Standards Division. As the coordinator, Ms. Little processes applications submitted by law enforcement agencies for certification of law enforcement officers. Ms. Little did not recall talking to Petitioner. However, Ms. Little testified that had Petitioner called and spoken with her, she would have initially looked in the Criminal Justice Standards Division's database to determine Petitioner's status. The information in the database concerning Petitioner indicates that he separated from Koury Corporation Company Police in 2004. If Petitioner called in December 2008, Ms. Little would have told him that he was no longer eligible to be certified and would have to attend BLET again in order to be certified as a law enforcement officer. If Petitioner had asked Ms. Little whether he needed to include his prior certification by the Commission when completing Commission forms, Ms. Little would have advised Petitioner to list all information on Commission forms.

25. The July 9, 2009 statement also addressed why Petitioner did not indicate that he had worked for the Koury Corporation as a police officer. Petitioner stated “that I put down that I worked for Koury Corporation. I meant to put police beside security. ... So me not putting police was an oversight on my part.” (Respondent's Exhibit 4, p 2)

26. As to the diploma, the July 9, 2009 statement indicated that Petitioner “started at Ashworth in 1998, I graduated in 2008.” (Respondent's Exhibit 4, p 2)

27. On July 15, 2009, Respondent received from Petitioner a letter addressed to Petitioner from the Academic Coordinator at Ashworth College High School. (Respondent’s Exhibit 6) The letter indicated that Petitioner was enrolled on 9/22/1998 and graduated from Ashworth High School (formerly known as James Madison High School on 12/12/08. (Respondent’s Exhibit 6, p 1)

28. On July 10, 2009, Petitioner signed an "Authorization for Release of Information to North Carolina Criminal Justice Education & Training Standards Commission”. (Respondent's Exhibit 5) Based upon this authorization, Squires requested information from Rockingham Community College.

29. On August 2, 2002, Petitioner completed an Application for Admission to Rockingham Community College. On this form, he indicated that the name of high school last attended was Dudley and that the date of high school graduation was 1998. He also circled "High School Graduate" as the highest educational level completed. (Respondent's Exhibit 10, p 2)

30. On July 31, 2002, Petitioner completed a Personal History Statement, Form F-3. (Respondent's Exhibit 11) The instructions on the Form F-3 state in part, "fill out this from completely and accurately." It also states:

NOTE: All 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 certification. THIS FROM MUST BE NOTARIZED UPON COMPLETION.

31. In response to Question 10 which states, "Indicate below the schools you have attended. (Include incomplete courses)" Petitioner indicated that he attended Dudley High School from 1995 through 1998. Petitioner indicated that he graduated from James Madison High School in 1998 and was awarded a diploma. (Respondent's Exhibit 11 p 3)

32. Also in response to Question 10, Petitioner indicated that he had attended GTCC 1998 for EMT and in 2001 through 2002 for paramedic. (Respondent's Exhibit 11 p 3)

33. The Form F-3 was signed and notarized by Petitioner on August 1, 2002. (Respondent's Exhibit 11 p 10) Immediately above Petitioner's notarized signature is the following statement:

I hereby certify that each and every statement made on this form is true and complete and understand that any misstatements omissions of information may subject me to disqualification or dismissal.

34. Petitioner provided a second written statement, dated July 24, 2009, to explain the F-3 and Application for Admission to RCC. (Respondent’s Exhibit 7) Petitioner stated that he believed that he was given the F-3 to fill out during the first week of BLET class at RCC. He stated that he was told that this was a form that would be filled out in order to get a police job. He further stated that he was told that this was not a form that was required to get into BLET. He was told that they wanted him to be familiar with the form and know how to fill it out. Petitioner further stated, “Because this F-3 was ours and it had no bearing on us getting a police job, they just wanted us to be familiar with the form, I said, I graduated from James Madison. Me Saying that I graduated James Madison was really for my own personal strength. I knew that I would graduate eventually from the school and I was looking towards the future with that statement.”

35. In the July 24, 2009 statement, Petitioner indicated that when he completed the RCC application, he was told to fill out the application in order to receive college credit for BLET. Because Petitioner did not intend to come back to RCC get a degree in Criminal Justice, he did not take the application form serious. He believed that the application would not be turned into admissions because he was not going to pursue a Criminal Justice degree from RCC.

36. On September 23, 2009, Squires met with Petitioner. Squires had a list of questions that he asked Petitioner and documented Petitioner’s response. (Respondent’s Exhibit 9) Petitioner told Squires that he graduated from Ashworth High School on December 12, 2008. Petitioner first attended Ashworth in 1998 when it was known as James Madison High School. Petitioner attended Dudley High School in Greensboro, but he did not graduate. (Respondent’s Exhibit 9, p 1)

37. Petitioner told Squires that he was a company police officer with Koury Corporation from March 21, 2003 through June 30, 2004. Petitioner also told Squires that when he applied as a company police officer he did not have any type of high school diploma. (Respondent's Exhibit 9, p 1)

38. During the interview, Petitioner told Squires that he did not tell the Burlington Police Department that he had been a company police officer with the Koury Corporation. He did not tell anyone because he talked with Jenny Little and thought he was not certified. Petitioner also did not tell the Burlington Police Department that he had attended BLET at Rockingham Community College. (Respondent's Exhibit 9, p 2)

39. Also during the interview, Petitioner told Squires that he had completed a Personal History Statement, Form F-3, for the BLET program at Rockingham Community College as part of a class activity. Petitioner had the Form F-3 notarized. Petitioner received the Form F-3 from instructor Charlie Ward. Petitioner completed the Form F-3 on August 1, 2002 and indicated that he received a diploma from James Madison High School in 1998. Petitioner told Squires he did not have a diploma from James Madison High School at that time but indicated that he did on the Form F-3 because it was a personal goal. (Respondent's Exhibit 9, p 2)

40. Petitioner told Squires during the interview that when he completed the Application for Admission to Rockingham Community College he indicated that he attended Dudley High School and that he was a high school graduate because it was his personal goal to obtain his diploma. Petitioner further stated that he did not have a high school diploma from any institution on August 2, 2002. (Respondent's Exhibit 9, p 3)

41. On September 23, 2009, Charles B. Wall sent a letter to Richard Squires. (Respondent's Exhibit 12) In the letter Wall states:

At no time during Mr. Carpenters academic tenure in the Basic Law Enforcement Training Program at Rockingham Community College, did I ever tell him that the filling out of an F3 (Personal History Form) and that getting the form notarized was for practice.

42. Charles B. Wall testified at the hearing of this matter. Mr. Wall is the Qualified Assistant for the Basic Law Enforcement Training Program at Rockingham Community College. Mr. Wall assists the school director in administering the day-to-day operations of the BLET program and has been the Qualified Assistant since February 2002. Applicants to the BLET program are given a packet of information to complete. The packets are used to determine whether a student meets the minimum requirements for admission into the BLET program. One of the forms in the packet is the Form F-3, Personal History Statement. The completion of this Form F-3 by the applicant helps the school director determine if the applicant meets the minimum requirements. The packets are available beginning in May for the BLET class that begins in August. The packet has to be turned in prior to the start of classes. Mr. Wall testified that he remembered Petitioner attending BLET at Rockingham Community College. Petitioner attended Class #18 that was offered from August 2002 through November 2002. Mr. Wall identified Exhibit 10 as the Application for Admission to Rockingham Community College. He testified that all applicants are required to complete this form prior to attending BLET. Mr. Wall identified Exhibit 11 as the Form F-3 from Rockingham Community College. The school director requires that the Form F-3 be turned in prior to orientation. If an applicant does not meet the requirements, they are not admitted to BLET. In 2002, Mr. Wall did not give instructions on completing the Form F-3. In addition, Mr. Wall has never told any student that completing the Form F-3 is just an exercise.

43. As a part of the investigation, Squires obtained copies of documents completed by Petitioner as a part of his application for certification as a company police officer with Koury Corporation Company Police.

44. Marvin Clark, who is currently the Company and Campus Police Programs Administrator, testified at the hearing of this matter. Documents submitted to the Company and Campus Police Programs for certification are maintained by the Administrator. Petitioner’s company police file contains documents submitted to the Company and Campus Police Programs so that Petitioner could be certified as a company police officer. Based upon documentation submitted, Petitioner was certified as a company police officer with Koury Corporation.

45. Petitioner applied for certification as a full-time law enforcement officer with Koury Corporation Company Police and signed a Report of Appointment/Application for Certification, Form F-5A, on March 24, 2003. The Form F-5A indicated that Petitioner had a high school diploma from James Madison High School. The Form F-5A further indicated that the education requirement was verified by a diploma. (Respondent's Exhibit 13)

46. On February 19, 2003, the Company Police Commissions received a copy of an Academic Diploma issued to Petitioner on October 12, 1998 by James Madison High School. (Respondent’s Exhibit 17)

47. On February 19, 2003, the Company Police Commissions received a copy of a certificate issued to Petitioner on November 26, 2002 by Rockingham Community College for the completion of Basic Law Enforcement Training. (Respondent’s Exhibit 18)

48. On February 19, 2003, the Company Police Commissions received a copy of a Personal History Statement (Form F-3) Petitioner completed as a part of his application for employment with the Koury Corporation Company Police. (Respondent's Exhibit 14)

49. On December 30, 2002, Petitioner completed a Personal History Statement, Form F-3. (Respondent's Exhibit 14) The instructions on the Form F-3 state in part, "fill out this from completely and accurately." It also states:

NOTE: All statements are subject to verification and any incorrect statements or omissions may bar or remove you from certification. Truthful statements to any item requested will not necessarily exclude you from consideration. THIS FORM MUST BE NOTARIZED UPON COMPLETION.

50. In response to Question 10 which states, "Indicate below the schools you have attended. (Include incomplete courses)" Petitioner indicated that he attended Dudley High School from 1995 through 1998 and that he graduated from James Madison High School in 1998 and was awarded a high school diploma. Petitioner did not indicate that he had attended any other high school. (Respondent's Exhibit 14 p 2)

51. Also in response to Question 10, Petitioner indicated that he had attended GTCC in 1998 for EMT and in 2001-2002 for paramedic. Petitioner indicated that he had attended RCC in 2002 for BLET. Petitioner did not indicate any other "Extension or Correspondence Courses”. (Respondent's Exhibit 14 p 2)

52. In completing the Personal History Statement Form F-3, Petitioner signed the Personal History Statement before a Notary Public on January 6, 2003. (Respondent's Exhibit 14, p 10) Petitioner's signature is below the following statement:

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.

53. On February 19, 2003, the Company Police Commissions received a copy of a Mandated Background Investigation Form (Form F-8) that was completed as a part of Petitioner’s application for employment with the Koury Corporation Company Police. (Respondent's Exhibit 15)

54. On January 30, 2003, a Mandated Background Investigation Form, Form F-8, was conducted by Edward L. Cobb as a part of Petitioner's application for employment with the Koury Corporation Company Police. (Respondent's Exhibit 15)

55. The third question on Attachment 1 of the Mandated Background Investigation Form, Form F-8, asks, “Do you have a high school diploma or GED? (Name school and date received.)” (Respondent’s Exhibit 15, p 3)

56. The response to this question is “yes James Madison HS 1998”. (Respondent's Exhibit 15, p 3)

57. As a result of the submission of the Report of Appointment/Application for Certification, (Form F-5A), the James Madison High School Diploma, the Personal History Statement, (Form F-3), and the Mandated Background Investigation Form (Form F-8) by the Koury Corporation Company Police, Respondent issued to Petitioner Probationary Certification on March 21, 2003 and General Certification on March 21, 2004. (Respondent's Exhibit 16)

58. During the investigation of this matter, Squires determined that Petitioner had submitted applications with various agencies for jobs in law enforcement. Based upon Petitioner’s authorization for release of information (Respondent's Exhibit 5), Squires requested information from Guilford Technical Community College, The University of North Carolina Greensboro, and the Greensboro Police Department regarding Petitioner’s applications for employment.

59. On January 31, 2002, Petitioner applied for employment as campus police/public safety with Guilford Technical Community College. On the application, Petitioner indicated under Educational Experience, High School Dudley High School/James Madison High School. He also circled that he had completed the 12th grade. (Respondent’s Exhibit 19, p 1)

60. Petitioner signed that application below the following language:

I certify that answers given herein are true and complete to the best of my knowledge. I authorize investigation of all statements contained in this application for employment as may be necessary in arriving at an employment decision. In the event of employment, I understand that false or misleading information given in my application or interview(s) may result in discharge. I understand, also, that I am required to abide by all policies and procedures of GTCC.

61. On January 29, 2003, Petitioner completed a Personal History Statement, Form F-3 as part of the application process to be a police officer with the University of North Carolina Greensboro Campus Police. (Respondent's Exhibit 20) The instructions on the Form F-3 state in part, “fill out this from completely and accurately”. It also states:

NOTE: All statements are subject to verification and any incorrect statements or omissions may bar or remove you from certification. Truthful statements to any item requested will not necessarily exclude you from consideration. THIS FROM MUST BE NOTARIZED UPON COMPLETION.

62. In response to Question 10 which states, “Indicate below the schools you have attended. (Include incomplete courses)” Petitioner indicated that he attended Dudley High School for 3 years, from 1995 through 1998. Petitioner indicated that he graduated from James Madison High School in 1998 and was awarded a diploma. (Respondent's Exhibit 20 p 5)

63. Also in response to Question 10, Petitioner indicated that he had attended GTCC in 1998 for EMT and in 2001 through 2002 for paramedic. Petitioner also indicated that he had attended RCC “Rockingham” in 2002 for BLET. (Respondent's Exhibit 20 p 5)

64. In response to Question 31 which states, “List all jobs you have held in the last ten years”, Petitioner indicated in paragraph “A” that he was employed from December 2002 through the present by the Koury Company Police as a "Police Officer". (Respondent's Exhibit 20 p 9)

65. The Form F-3 was signed and notarized by Petitioner on January 29, 2003. (Respondent's Exhibit 20 p 13) Immediately above Petitioner's notarized signature is the following statement:

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 may 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.

66. On February 28, 2009, Petitioner completed a Personal History Statement, Form F-3 as part of the application process to be a police officer with the Greensboro Police Department. (Respondent's Exhibit 21) The instructions on the Form F-3 state in part, “fill out this form completely and accurately”. It also states:

67.

NOTE: All statements are subject to verification and any incorrect statements or omissions may bar or remove you from certification. Truthful statements to any item requested will not necessarily exclude you from consideration. THIS FORM MUST BE NOTARIZED UPON COMPLETION.

68. In response to Question 10 which states, "Indicate below the schools you have attended. (Include incomplete courses)" Petitioner indicated that he graduated from Ashworth High School in 1998 and was awarded a diploma. (Respondent's Exhibit 21 p 3) Petitioner did not indicate that he had attended Dudley High School or James Madison High School.

69. Also in response to Question 10, Petitioner indicated that he had attended GTCC in 2009 for BLET and in 1998 for EMT. Petitioner failed to indicate that he attended GTCC in 2001 through 2002 for paramedic. Petitioner also failed to indicate that he had attended RCC in 2002 for BLET. (Respondent's Exhibit 21 p 3)

70. In response to Question 31 which states, "List all jobs you have held in the last ten years" Petitioner indicated in paragraph "C" that he was employed from December 2002 through March 2004 with the Koury Company Police as "Security". (Respondent's Exhibit 21 p 7)

71. The Form F-3 was signed and notarized by Petitioner on February 18, 2009. (Respondent's Exhibit 21 p 11) Immediately above Petitioner's notarized signature is the following statement:

I hereby certify that each and every statement made on this form is true and complete and understand that any misstatement or omission of information may subject me to disqualification or dismissal.

72. On July 10, 2009, a background investigation on Petitioner was completed by the Greensboro Police Department. (Respondent’s Exhibit 22) During the background investigation, Petitioner provided information to the investigator regarding his Educational Data. The Educational Data documented by the investigator indicates that Petitioner attended Dudley High School from 1995 to 1998 and that he left in 1998 while in the 12th grade. Petitioner received his High School Diploma from the Ashworth High School in 1998. (Respondent’s Exhibit 22, p 5)

73. Petitioner received from the Respondent a Proposed Denial of Law Enforcement Officer Certification, dated December 22, 2009. (Respondent's Exhibit 23)

74. The proposed denial was based upon Petitioner's material misrepresentation of information when Petitioner completed a Personal History Statement (Form F-3) on February 18, 2009 as a part of his application for certification with the Burlington Police Department. In response to Question #10 on the Personal History Statement (Form F-3) which asks, “Indicate below the schools you have attended. (Include incomplete courses)” Petitioner failed to disclose that in 2002 he attended and graduated from the Basic Law Enforcement Training (BLET) course at Rockingham Community College.

75. The proposed denial was also based upon Petitioner's material misrepresentation of information when Petitioner completed a Personal History Statement (Form F-3) on February 18, 2009 as a part of his application for certification with the Burlington Police Department. In response to Question #31 on the Personal History Statement (Form F-3) which states, "List all jobs you have held in the last ten years" Petitioner indicated in paragraph "C" that he was employed from December 2002 through March 2004 by the Koury Corporation as "security". Petitioner did not disclose that between March 21, 2003 and June 30, 2004 he had been employed as a company police officer with the Koury Corporation.

76. The proposed denial was also based upon Petitioner’s knowingly and willfully, by means of false pretense, deception, defraudation, and misrepresentation obtained Basic Law Enforcement Training (BLET) credit from the Commission on or about November 26, 2002. This occurred when Petitioner indicated on the Rockingham Community College “Application for Admission”, dated August 2, 2002 that he had graduated from Dudley High School in 1998 when in fact he had not graduated from Dudley High School. Petitioner further indicated on a Personal History Statement (Form F-3) dated August 1, 2002 and utilized as a prerequisite for enrollment into the BLET program, in response to Question 10 which states, "Indicate below the schools you have attended. (Include incomplete courses)" that he graduated from James Madison High School in 1998 and was awarded a diploma. This high school diploma was awarded through correspondence and does not meet the requirement of 12 NCAC 09B .0106. In addition, Petitioner indicated that he did not have a high school diploma when he attended BLET at Rockingham Community College. 12 NCAC 09B .0203(g) requires that BLET trainees must have a high school diploma or GED.

77. The proposed denial was also based upon Petitioner's knowingly and willfully, by means of false pretense, deception, defraudation and misrepresentation obtained Law Enforcement Officer Certification from the Commission when the Koury Corporation Company Police submitted on Petitioner’s behalf a Report of Appointment/Application for Certification (Form F-5A), dated March 24, 2003 to the Commission requesting that he be awarded certification as a full-time company police officer. The F-5A indicated that you met the Commissions’ education requirement by graduating from James Madison High School in 1998. You were subsequently issued law enforcement officer certification. This high school diploma was awarded through correspondence and does not meet the requirement of 12 NCAC 09B .0106. In addition, Petitioner indicated that he did not have a high school diploma during the period of time he was certified as a company police officer. 12 NCAC 09B .0111(2) requires that criminal justice officers must have graduate from high school graduate or passed the GED.

78. The proposed denial was also based upon Petitioner’s failure to comply with the minimum standards for certification as a law enforcement officer set forth in 12 NCAC 09B .0101(3) which requires that every criminal justice officer employed by an agency in North Carolina shall be of good moral character pursuant to G.S. § 17C-10 and as determined by a thorough background investigation. The finding that Petitioner lacked good moral character was based upon his continued untruthfulness to the Commission regarding his high school education during the processing of his request for law enforcement officer certification with the Burlington Police Department.

79. During the investigation of this matter, Petitioner denied receiving a high school diploma from James Madison High School on October 12, 1998. However, Petitioner admitted that a diploma from James Madison High School issued to him on October 12, 1998 was submitted to the Company and Campus Police Programs so that he could be certified as a company police officer with Koury Corporation. In addition, Petitioner completed Personal History Statements (Form F-3) for Rockingham Community College, Koury Corporation Company Police, and The University of North Carolina Greensboro indicating that he had graduated from James Madison High School in 1998. A Mandated Background Investigation Form was completed by the Koury Corporation Company Police. Petitioner told the background investigator that he graduated from James Madison High School in 1998. Petitioner completed an application for employment with Guilford Technical Community College in which he indicated he graduated from James Madison High School in 1998. A diploma from Ashworth High School was issue to Petitioner on December 12, 2008. However, Petitioner represented on the Personal History Statements (Form F-3) that he completed as a part of his application with the Burlington Police Department and the Greensboro Police Department that he graduated from Ashworth High School in 1998. Petitioner also told the background investigator for Greensboro Police Department that he graduated from Ashworth High School in 1998.

80. By letter dated January 14, 2010, Petitioner requested an administrative hearing. (Respondent's Exhibit 24)

81. Respondent received Petitioner’s Answers to Respondent’s First Set of Requests for Admissions, and Petitioner's Answers to Respondent's Interrogatories and Requests for Production of Documents, which were verified by Petitioner on June 15, 2010. (Respondent's Exhibit 25)

82. In the Request for Admission, Petitioner admitted that he attended and graduated from the Basic Law Enforcement Training (BLET) course at Rockingham Community College. Petitioner further admitted that he completed an Application for Admission to Rockingham Community College and indicated that he had graduated from Dudley High School when he in fact had not graduated from Dudley High School. Petitioner also admitted that upon completion of BLET at Rockingham Community College he was administered the state exam. Upon his successful completion of BLET and the state exam, Petitioner admitted that he was eligible to be certified as a law enforcement officer through Respondent. Petitioner admitted that he did not have a high school diploma when he attended BLET at Rockingham Community College.

83. Petitioner admitted that on the Personal History Statement (Form F-3) that was completed and signed by him on January 6, 2003 as a part of his application for certification with the Koury Corporation Company Police he indicated that he graduated from James Madison High School in 1998. Petitioner further admitted that a copy of a James Madison High School Academic Diploma with Petitioner’s name on it was submitted to the Company and Campus Police Program. Petitioner admitted that the Koury Corporation submitted a Report of Appointment/Application for Certification (Form F-5A) to the Company and Campus Police Program requesting the Petitioner be certified as a full time company police officer. This Form F-5A indicated that Petitioner graduated from James Madison High School. Petitioner admitted that as a result of the Koury Corporation submitting the Form F-5A he was awarded probationary and general law enforcement officer certification. Petitioner was employed as a company police officer with the Koury Corporation from March 21, 2003 through June 30, 2004. Petitioner admitted that he did not have a high school diploma while he was certified as a company police officer with the Koury Corporation.

84. Petitioner admitted that the Personal History Statement Form F-3 that he completed and signed on or about February 18, 2009 as part of his application for certification with the Burlington Police Department did not indicate in response to question number 10 which ask for schools that he attended that he had attended and graduated from BLET at Rockingham Community College in 2002.

85. In Interrogatory Number 8 Petitioner stated he did not obtain an academic diploma from James Madison High School.

86. Petitioner testified at the hearing of this matter. He testified that he meant to indicate on the Personal History Statement (Form F-3) that he completed as a part of his application with the Burlington Police Department that he had been a police officer with the Koury Corporation and that it was a mistake that he did not include that information.

87. Petitioner maintained that the Personal History Statement that he completed at Rockingham Community College was an exercise completed in class. He put down that he had graduated from high school as a personal goal.

88. Petitioner testified that although he signed the Report of Appointment/Application for Certification Form F-5A for Koury Corporation, he never saw the first page that indicated he graduated from James Madison High School.

89. Petitioner testified that he did not know where the diploma from James Madison High School with his name on it came from, that he had never seen it before and that he did not submit it.

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 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 law enforcement officers and to revoke, suspend, or deny such certification.

3. 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 a Personal History Statement on February 18, 2009 as a part of his application for certification with the Burlington Police Department. In response to Question 10 which states, “Indicate below the schools you have attended. (Include incomplete courses)” Petitioner failed to disclose that in 2002 he attended and graduated from the Basic Law Enforcement Training (BLET) course at Rockingham Community College.

4. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly by means of deception made a material misrepresentation of information required for certification when he completed a Personal History Statement on February 18, 2009 as a part of his application for certification with the Burlington Police Department. In response to Question #31 which addresses prior employment history, Petitioner failed to disclose that he was employed by the Koury Corporation between March 21, 2003 and June 30, 2004 as a company police officer.

5. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly and willfully, by means of misrepresentation and deception obtained Basic Law Enforcement Training (BLET) credit from the Respondent on or about November 26, 2002. Petitioner indicated that he had graduated from Dudley High School on his application for admission to Rockingham Community College when in fact, he had not graduated from Dudley High School. In addition, Petitioner indicated on the Form F-3 that he completed as a part of the admission process to the BLET program at Rockingham Community College that he had graduated from James Madison High School in 1998. Petitioner subsequently denied graduating from James Madison High School in 1998 and admitted at the time he was admitted and graduated from the BLET program at Rockingham Community College he did not have a high school diploma. A high school diploma is required to attend BLET.

6. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly and willfully, by means of misrepresentation and deception obtained Law Enforcement certification from the Respondent when he received Probationary Certification on March 21, 2004 and General Certification on March 21, 2003. Petitioner indicated that he had graduated from James Madison High School on his Report of Appointment/Application for Certification (Form F-5A) that was submitted by the Koury Corporation Company Police to the Company and Campus Police Commissions. In addition, a copy of a James Madison High School Diploma issued to Petitioner was submitted to the Company and Campus Police Commissions. Petitioner subsequently denied graduating from James Madison High School in 1998 and admitted at the time he was certified as a company police officer with the Koury Corporation he did not have a high school diploma. A high school diploma is required to be certified as a law enforcement officer by Respondent.

7. A preponderance of the evidence exists to support the conclusion that Petitioner failed to meet or maintain one or more of the minimum employment standards required for certification in that Petitioner was untruthful to the Commission regarding his high school education during the processing of his application for certification as a law enforcement officer with the Burlington Police Department.

8. The Respondent may properly deny Petitioner’s certification pursuant to 12 NCAC 9A.0204(b)(6) for material misrepresentations. Pursuant to 12 NCAC 9A .0205(b)(4), the period of sanction shall be not less than five (5) years for material misrepresentation of any information required for certification; however, the Commission may either reduce or suspend the period of sanction or substitute a period of probation in lieu of the suspension.

9. The Respondent may properly deny Petitioner's certification pursuant to 12 NCAC 9A.0204(b)(7) for knowingly and willfully, by means, deception, and misrepresentation obtained credit, training or certification from the Commission. Pursuant to 12 NCAC 9A .0205(b)(5), the period of sanction shall be not less than five (5) years for knowingly and willfully, by means of deception, and misrepresentation obtained credit, training or certification from the Commission; however, the Commission may either reduce or suspend the period of sanction or substitute a period of probation in lieu of the suspension.

10. The Respondent may properly deny Petitioner's certification pursuant 12 NCAC 9A.0204(b)(2) for failing to comply with the minimum standards for certification as a law enforcement officer in that every criminal justice officer employed by an agency in North Carolina shall be of good moral character.

11. The actions of Respondent are constitutional, within the statutory authority of the agency, made upon lawful procedure, not affected by error of law, supported by substantial evidence and are not arbitrary, capricious or an abuse of discretion.

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

13. 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).

14. Petitioner has the burden of proof in the case at bar. (See Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 704, 635 S.E.2d 442, 444, rev denied 361 N.C. 220, 642 S.E.2d 445 (2007)). Petitioner has failed to meet this burden. Petitioner has failed to show by a preponderance of the evidence that Respondent's proposed denial of Petitioner's law enforcement officer certification is not supported by substantial evidence. Petitioner has failed to show: that he did not knowingly make material misrepresentations of any information required for certification; that he did not knowingly and willfully, by means of false pretense, deception, defraudation, and misrepresentation obtained credit, training or certification from the Commission; and, that he meets the minimum standards for certification as a law enforcement officer.

15. Respondent has shown by a preponderance of the evidence that Petitioner: knowingly made material misrepresentations of information required for certification; knowingly and willfully, by means of deception, and misrepresentation obtained credit, training or certification from the Commission; and, does not meet the minimum standards for certification as a law enforcement officer. Respondent’s proposed suspension of Petitioner’s law enforcement officer certification is supported by a preponderance of the evidence.

PROPOSAL FOR DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned proposes that the Respondent suspend Petitioner’s law enforcement officer certification for a period of not less than five (5) years based upon Petitioner’s material misrepresentations of information required for certification; knowingly and willfully, by means of deception and misrepresentation obtained credit, training or certification from the commission. The totality of the evidence can lead to no other conclusion; however, the Undersigned also proposes that the Commission consider the nature of the individual misrepresentations and the mitigating factors present, and exercise its discretion to suspend or further reduce this sanction.

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).

IT IS SO ORDERED.

This the 17th day of November, 2010.

J. Randall May

Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download