STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF RICHMOND |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

09 DOJ 5649 | |

|Lang Lemorris Harrison |) |

|Petitioner, |) |

| |) |

|v. |) |

| |) PROPOSAL FOR DECISION |

|North Carolina Sheriffs’ Education and |) |

|Training Standards Commission |) |

|Respondent. |) |

| |) |

On June 25, 2010, Administrative Law Judge J. Randall May heard this case in High Point, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 150B-40(e), the designation of an administrative law judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: John W. Roebuck, Jr., Attorney at Law

501 East Broad Avenue

Rockingham, North Carolina 28379

Respondent: E. Michael Heavner, Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

ISSUE

Did Petitioner knowingly make a material misrepresentation of any information required for certification as a corrections officer with the North Carolina Criminal Justice Education and Training Standards Commission or knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation, or cheating whatsoever, obtain or attempt to obtain certification as a corrections officer with the North Carolina Criminal Justice Education and Training Standards Commission?

FINDINGS OF FACT

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received notice of hearing, and that Petitioner received the proposed denial of Justice Officer Certification letter. (Respondent's Exhibit 3)

2. The North Carolina Sheriffs' Education and Training Standards Commission (hereinafter referred to as "The Sheriffs' Commission") has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke, or suspend such certification.

3. Pursuant to 12 NCAC 10B.0204(c)(1) and (2), the Sheriffs' Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant or certified justice officer has:

(1) knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission; or

(2) knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation, or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

4. Petitioner took an oath as a deputy sheriff with the Richmond County Sheriff’s Office October 27, 2008, and applied for certification as a justice officer through the Sheriffs’ Commission. (Respondent's Exhibits 1 & 2)

5. On September 15, 2008, as part of his application for certification through the Sheriffs' Commission, Petitioner completed the required Form F-3, "PERSONAL HISTORY STATEMENT". In response to Question No. 44 of the Personal History Statement form, which asked, "Have you ever used marijuana? ( ) Yes ( ) No If YES, what were the circumstances?", Petitioner checked the "YES" block and wrote, "While in college in (2000) I did experiment with marijuana but decided that the drug is useless if you are planning to succeed in life". (Respondent's Exhibit 3)

6. Diane N. Konopka, Deputy Director of the Sheriffs' Standards Division, testified about the Division's investigation and the contents of Petitioner's certification file. The staff for the Respondent reviewed and compared Petitioner's 2008 Personal History Statement form (admitting use of marijuana) with his 2004 North Carolina Criminal Justice Education and Training Standards Commission's (hereinafter referred to as "Criminal Justice Commission") Form F5-A(DOC), Report of Appointment/Application for Certification. Petitioner had completed the required Criminal Justice Commission's Report of Appointment/Application for Certification when applying for certification as a Department of Correction (hereinafter referred to as "DOC") correctional officer through the Criminal Justice Commission.

7. In response to Question No. 3 of the DOC Correctional Officer Report of Appointment/Application for Certification which asked "Have your ever used any illegal drugs? (If yes, please explain on a separate sheet). ( ) Yes ( ) No", Petitioner checked "No", indicating he had never previously used any illegal drugs. (Respondent's Exhibit 6)

8. On the DOC Correctional Officer Report of Appointment/Application for Certification the following appeared above Petitioner's notarized signature, this was dated April 13, 2004:

I hereby certify that each and every statement made on this form, and the N.C. State Application for Employment (PD-107) is true and complete. . . that the information provided and all other information submitted by me, both oral and written throughout the employment certification process is 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.

(Respondent's Exhibit 6)

9. Deputy Director Konopka testified that it was determined that there was a noticeable discrepancy in Petitioner's responses to the questions concerning Petitioner's prior use of marijuana. Staff for the Respondent requested Petitioner submit a statement explaining this discrepancy.

10. Petitioner responded in a sworn Affidavit, dated June 23, 2009, stating:

During my application process at the Richmond County Sheriff’s Office I was completely honest reference my illegal drug usage. I have experimented with marijuana while in college. Regarding my application for DOC I do not remember the application. I have never spoke or talked to anyone at DOC reference this issue. I do not remember the application process and have answered all questions I have been asked honestly and to the best of my recollection.

(Respondent's Exhibit 7)

11. When this matter was considered by the Probable Cause Committee of the Respondent, the Sheriffs’ Standards Division Staff presented the findings of their investigation. After considering all of the evidence, the Probable Cause Committee of the Respondent found probable cause to believe Petitioner had violated Rule .0204(c)(1) and (2), Chapter 10 of Title 12 of the North Carolina Administrative Code by knowingly making a material misrepresentation of information required for certification to the Criminal Justice Commission by not disclosing his prior use of marijuana on his 2004 Report of Appointment/Application for Certification form. The Probable Cause Committee found probable cause that Petitioner's justice officer certification should be denied for a period of not less than five years from the date of final denial. (Respondent's Exhibit 3)

12. Respondent's Exhibit 8 is a copy of the Respondent's Request for Admissions, Interrogatories, and Requests For Production of Documents and Petitioner's sworn response.

A. In response to the question,

Do you admit that you failed to list your use of the drug marijuana when you answered Question 3 on the Report of Appointment/Application for Certification Form F-5A (DOC), which asked, "Have you ever used any illegal drugs?", that you completed and signed on or about April 13, 2004 as part of your application for correctional officer certification with the North Carolina Department of Correction?

Petitioner responded, "YES I filled out the NCDOC application in a hurry. I did not fully think the question through, and errored in my belief that it was referencing felony drugs."

B. In response to the request that he "[d]escribe, in detail, the circumstances surrounding each time you used the drug marijuana, including the approximate date(s), other persons present, and the location(s) of such usage", Petitioner stated:

I used marijuana once. I was a freshman at Elizabeth City University at the time. It was in February 2000 at an off campus party. There were 2 women present at the time. I was familiar with one of the women. Her name was April Magee and the other woman was her friend, whose name I do not know. The woman I did not know and April Magee were smoking marijuana. The women I did not know passed it to me. I smoked it and passed it back to her. I was trying to impress her, which was immature.

13. Petitioner testified to the following at the hearing. He reiterated the explanation he provided on Respondent’s Exhibit 8. He admitted that Form F5-A(DOC) required him to list any illegal drug usage and not only felony drug use. He testified that he understands the question. He admitted that he should have listed his marijuana use. He testified that when he and two friends applied for jobs at the Department of Correction regional office, they obtained the forms for employment and certification and quickly completed them in their car in the parking lot. He admits it was his fault he did not list his marijuana use, but attributes that to his rushing through the DOC application. He stated he spent approximately a week completing the forms for the Sheriff’s position. He did not take a polygraph as part of the application process. He stated he fully revealed his marijuana use to the Sheriff’s Office. He did not list that he attended college at Elizabeth City State University or that he lived in Elizabeth City on his Personal History Statement which part of his application for employment with the Sheriff’s Office.

14. Robert Taylor, a captain with the Richmond County Sheriff’s Office testified that he has known Petitioner since 2005. He testified Petitioner was a very good student at Richmond County Community College, where he was the Petitioner's instructor, and the Petitioner has a bright future with the Sheriff’s Office. He testified that the Petitioner, due to his outstanding performance in his position as a patrol deputy, has been selected to try out for the Sheriff’s Office’s Special Response Team (SRT). He testified that honesty and integrity are essential qualities of a law enforcement officer, and believes that the Petitioner possesses those qualities.

15. Howard Miller, a captain with the Richmond County Sheriff’s Office testified he was Petitioner’s supervisor. He has no apprehensions with Petitioner being a deputy and believes Petitioner will make a career in law enforcement if he is given an opportunity to do so. He testified that the Petitioner was a valuable asset to the Sheriff’s Office. He testified that honesty and integrity are essential qualities of a law enforcement officer, and believes that the Petitioner possesses those qualities.

16. Dan McGuiness, a detective with the Richmond County Sheriff’s Office testified Petitioner is an excellent officer whom he fully trusts. He testified that Petitioner has had very positive community contact and has dealt with the public in an exemplary manner. He testified that honesty and integrity are essential qualities of a law enforcement officer, and believes that the Petitioner possesses those qualities.

17. Warren Strong, a deputy with the Richmond County Sheriff’s Office testified Petitioner has excelled and demonstrated a strong desire to perform well. He testified that honesty and integrity are essential qualities of a law enforcement officer, and believes that the Petitioner possesses those qualities.

18. James Clemmons, a major with the Richmond County Sheriff’s Office testified Petitioner has exceeded expectations as a new deputy. That Petitioner has performed very well and has been a valuable asset to the Sheriff’s Office. He testified that honesty and integrity are core values of a law enforcement officer, and believes that the Petitioner possesses those qualities. The weight given to officers' words, and the roles officers have in the system of justice, make it essential that they are truthful.

BASED UPON the foregoing FINDINGS OF FACT and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in the matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

2. The North Carolina Sheriffs' Education and Training Standards Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to revoke, suspend or deny such certification.

3. Honesty is an essential attribute of justice officers.

4. Pursuant to 12 NCAC 10B .0204(c), the Sheriffs' Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or certified justice officer: (1) has knowingly made a material misrepresentation of any information required for certification or accreditation from the Sheriffs' Commission or the North Carolina Criminal Justice Education and Training Standards Commission; or (2) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Sheriffs' Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

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

6. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification to the North Carolina Criminal Justice Education and Training Standards Commission, on April 13, 2004, when, in response to Question No. 3 of the Report of Appointment/Application for Certification, he answered "NO" indicating no past drug use, when in fact he had previously used marijuana.

7. 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).

8. 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 denial of Petitioner's justice officer certification is not supported by substantial evidence.

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

10. Petitioner has provided evidence of mitigating and extenuating circumstances.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends the Respondent deny Petitioner's application for justice officer certification for a period of not less than one year for material misrepresentation of information required for certification. The undersigned further recommends this denial be suspended 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 Criminal Justice Education and Training Standards Commission for one year.

NOTICE AND ORDER

The North Carolina Sheriffs' 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 29th day of July, 2010.

J. Randall May

Administrative Law Judge

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