STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 09 DOJ 1667

|Stanton Renard Brandon, |) | |

|Petitioner, |) | |

|vs. |) | |

|NC Criminal Justice Educaiton and Training Standards Commission, |))) |PROPOSAL FOR DECISION |

|Respondent. | | |

In accordance with N.C.G.S. § 150B-40(e), Respondent requested the designation of an administrative law judge to preside at a N.C.G.S. Chapter 150B, Article 3A contested case hearing of this matter. Based upon the Respondent’s request, Administrative Law Judge Selina M. Brooks heard this contested case in Charlotte, North Carolina on August 13, 2009.

APPEARANCES

Petitioner: Andrew Murray

Goodman Carr Laughrun Levine Murray & Greene, PA

Suite 602 Cameron Brown Building

301 South McDowell Street

Charlotte, North Carolina 28204

Respondent: J. Joy Strickland, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Is the Respondent’s proposed permanent revocation of Petitioner’s law enforcement officer certification based on the Petitioner’s commission of the felony offense of attempting to obtain property by false pretenses in violation of N.C.G.S. § 14-100 supported by a preponderance of the evidence?

RULES AT ISSUE

12 NCAC 09A.0204(a)(1)

12 NCAC 09A.0205(a)(1)

EXHIBITS

For Petitioner: No exhibits were presented for admission into evidence.

For Respondent: Exhibits 1 through 9 were admitted and reviewed by the Undersigned.

BASED UPON careful consideration of the documents, DVD, and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following Findings of Fact. In making the Findings of Fact, the Undersigned has weighed all of 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 the Notice of Hearing, and Petitioner received the notification of probable cause to revoke law enforcement officer certification letter mailed by the Respondent on January 14, 2009. (R. Exh. 3)

2. The Respondent, North Carolina Criminal Justice Education and Training Standards Commission (“Commission”), has the authority granted under N.C.G.S. Chapter 17C and N.C. A.C. Chapter 9A, Title 12 to certify criminal justice officers and to revoke, suspend, or deny such certification.

3. Petitioner was awarded probationary certification from the Commission on November 21, 1996. (R. Exh . 1)

4. Petitioner was awarded general certification from the Commission on November 21, 1997. (R. Exh. 2)

5. The Criminal Justice Standards Division, staff to the Respondent, received notification of an internal affairs investigation conducted by the Charlotte Mecklenburg Police Department (CMPD) regarding Petitioner. The two allegations by CMPD against Petitioner were violations of the CMPD’s Rules of Conduct concerning “Unbecoming Conduct” and “Conformance to Law” for the commission of the offense of Obtaining Property by False Pretenses in violation of N.C.G.S. § 14-100. The investigative report indicated the following:

It is alleged that Officer Brandon signed up for a secondary employment assignment at Cordelia Park located at 2100 N. Davidson. The assignment was from 1600 to 2000 hours on September 6, 2007. It is alleged that Officer Brandon failed to work the job and later submitted an invoice to Mecklenburg County Park and Recreation for payment.

CMPD, through the Chain of Command Review Board, sustained both allegations against Petitioner and he was suspended for fifteen working days without pay on November 29, 2007. (R. Exh. 4)

6. During the internal affairs investigation, Petitioner was interviewed on September 28, 2007 by Sgt. Pless of the Internal Affairs Section of CMPD. During that interview the following questions and answers were given:

Sgt. Pless: “Let me ask you specifically, do you remember working off duty on September 6, 2007, at Cordelia Park?”

Petitioner: “Yes.”

***

Sgt. Pless: “You’ve only worked the job twice, correct?”

Petitioner: “Correct. And I did leave early.”

(R. Exh. 5, pp. 2-4)

7. Also during the interview, Petitioner showed Sgt. Pless on a map of Cordelia Park where he parked his vehicle while at the off duty assignment and pointed out where he sat in the picnic area. Sgt. Pless then stopped the audio recording of the interview for approximately two minutes at which time he told Petitioner that the police department had evidence that, in fact, he had not worked the off duty assignment at Cordelia Park on September 6, 2007. Petitioner then admitted he had not worked the off duty assignment at Cordelia Park on September 6, 2007 because his wife had gotten home late so he had to stay at home with his kids. (R. Exh. 5, pp. 3-5)

8. Subsequent to the Petitioner’s admission that he had not worked at Cordelia Park on September 6, 2007, the following questions and answers were given:

Sgt. Pless: “Did you close the job on the secondary employment system?”

Petitioner: “I did.”

Sgt. Pless: “Were you aware that you didn’t work the hours when you closed the job?”

Petitioner: “Yes…[t]he actions were wrong as far as filling out the invoice and sending it in, but um, intentionally stealing, that’s not how I operate. That was wrong, yes, I do admit that.”

(R. Exh. 5, p. 8)

Petitioner then agreed to return the check from Mecklenburg County Park and Recreation when he received it. (R. Exh. 5, p. 9)

9. CMPD has a computerized system for its officers to use to sign up for secondary employment assignments. According to the Petitioner’s testimony, officers can log onto the secondary employment website and sign up for off duty assignments. After working assignments, the officers “close out” those assignments on the website by checking the assignments that were worked. After closing the jobs out on the computer, the officers would then complete a handwritten invoice for the times that they worked. On the invoice the officers write down the places and hours that they worked and indicate whether or not they used their marked patrol car while on the off duty assignment. If the employer of the off duty officer requested that they use their patrol car, the employer was charged an additional $20 fee per hour for the use of that car.

10. On September 18, 2007, Petitioner closed out several of his off duty assignments, including the assignment to work at Cordelia Park on September 6, 2007 which he did not work. Petitioner also completed the handwritten invoice on that same day. On the invoice, Petitioner included five off duty assignments. He indicated that he worked at Cordelia Park on September 6, 2007 from 4:00p.m. to 8:00 p.m. Furthermore, Petitioner listed that he had used his marked patrol car for those hours at Cordelia Park on September 6, 2007. Just above the Petitioner’s signature on the invoice is the following language; “*[b]y signing this invoice below, I affirm that I was present at the listed parks during the times indicated on this Invoice.” The Mecklenburg County Parks and Recreation Department did send a check in the amount of $480.00 for payment to the Petitioner for the off duty assignments submitted by the Petitioner on September 18, 2007. (R. Exh. 6)

11. CMPD also conducted a criminal investigation regarding the commission of the offense of obtaining property by false pretenses by Petitioner. During that investigation Petitioner was interviewed by Detective R.S. Garber on October 5, 2007. In that interview, Petitioner said he closed the Cordelia Park work assignment out on the computer as if he had worked when in fact he had not. Petitioner admitted he read the affirmation which indicated that he had worked at Cordelia Park on September 6, 2007 and understood that by signing the affirmation he was indicating that he worked that off duty assignment. (R. Exh. 7)

12. Petitioner responded to Admissions and Interrogatories submitted to him by Respondent. Petitioner admitted he failed to work his scheduled off duty assignment at Cordelia Park on September 6, 2007. Although Petitioner admitted that he submitted an invoice for payment for that assignment, he indicated that he “inadvertently” submitted it. Furthermore, Petitioner indicated that “[i]nitially I informed Sgt. Pless I had worked September 6, 2007 but upon reflection recalled that I had a conflict which prevented me from working on that date.” (R. Exh. 8, Request for Admission #6, p. 2)

13. Also in the Admissions and Interrogatories, Petitioner stated:

I submitted an invoice to Charlotte-Mecklenburg Parks and Recreation the way I always submit secondary employment. That is, I go in and clear out work for the week prior and the invoice is automatically generated. It is unfortunate in this incident I failed to recall the conflict which prevented me from working on that date and inadvertently checked that I had completed the work on September 6, 2007.

(R. Exh. 8, Interrogatory # 7, p. 4)

14. The Probable Cause Committee of the Respondent found probable cause that Petitioner committed the felony offense of attempting to obtain property by false pretenses in violation of N.C.G.S. § 14-100 by unlawfully and willfully submitting hours of secondary employment for payment when, in fact, he had not worked those hours. (R. Exh. 9)

15. Petitioner has been employed as a police officer with the CMPD for twelve years. After serving four years in the United States Air Force, he received an honorable discharge. Petitioner’s regular work assignment is at a middle school in Charlotte where he works as a school resource officer.

16. Petitioner described the process for obtaining secondary employment as follows: first, he would sign up for open jobs on the secondary employment website, then he would report to the job and work as assigned, then lastly he would submit an invoice. Petitioner said he typically would fill out his invoices every Tuesday morning or at least every other Tuesday.

17. Petitioner said he had a lot of things going on at the time he completed the invoice for secondary work assignments on September 18, 2007 and that at that time he did not remember that he had not worked the hours at Cordelia Park on September 6, 2007. He was taking classes at a local community college and training for a marathon at that time.

18. Petitioner said that when Sgt. Pless called him and requested that he come in for an interview, Sgt. Pless did not tell him what the subject of the interview would be during the telephone call. Petitioner said he was anxious and immediately became nervous about being interviewed because he knew when he was called by internal affairs that it was either about himself or someone he knows getting into trouble.

19. When Sgt. Pless asked Petitioner if he had worked at Cordelia Park on September 6, 2007, he had, in fact, not worked. Petitioner said he was worried about telling Sgt. Pless the truth because he knew someone who had gotten fired for saying he had worked when he had not actually worked. Petitioner initially told Sgt. Pless that he did report to that assignment at Cordelia Park but then told Sgt. Pless he left early. Petitioner said he thought it would be better to say he worked part of the time instead of no time. Petitioner admitted that it was not until after Sgt. Pless turned off the audiotape and told him that the CMPD knew he had not worked, that he told the truth and explained that he did not report to the off duty assignment at Cordelia Park on September 6, 2007 because his wife came home from work late.

20. Petitioner indicated that he thought he would have remembered that he had not worked the Cordelia Park assignment when he received the check from Mecklenburg County Parks and Recreation because it lists the dates worked. He said that he has worked off duty assignments for approximately twelve years, that he had never failed to show up for an assignment except for this one time at Cordelia Park and that he has never intentionally tried to get money for a job without working.

21. Petitioner stated that although CMPD requires that officers check in with the dispatcher when they begin their off duty assignments and check off when the assignment is complete, that many officers did not do that. Petitioner did not check on or off the radio on September 6, 2007 when he was supposed to be at the Cordelia Park off duty assignment. When his wife did not get home from work on time, Petitioner did not call anyone at the CMPD office of secondary employment to report that he was going to be late for the off duty assignment. Additionally, when Petitioner realized that he would not be able to work any of that assignment, he did not call anyone at the CMPD office of secondary employment to report that he was not going to be able to complete the off duty assignment. Petitioner at no time before being questioned by Sgt. Pless told anyone that he had failed to work the off duty assignment at Cordelia Park on September 6, 2007.

22. Petitioner’s assertion that he did not knowingly attempt to obtain property by false pretenses when he submitted an invoice for payment for secondary employment work hours that he had failed to work is not credible in light of all of the evidence presented.

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

CONCLUSIONS OF LAW

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

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

3. Pursuant to 12 NCAC 09A .0204(a)(1), the Commission shall revoke the certification of a criminal justice officer when the Commission finds that the officer has committed a felony offense.

4. Pursuant to 12 NCAC 09A.0205(a)(1), when the Commission revokes the certification of a criminal justice officer, the period of sanction shall be permanent where the cause of sanction is commission of a felony offense.

5. Pursuant to N.C.G.S. § 150B-29(a), the party with the burden of proof in a contested case must establish the facts required by N.C.G.S. §150B-23(a) by a preponderance of the evidence. Furthermore, the administrative law judge shall decide the case based upon the preponderance of the evidence according to N.C.G.S. § 150B-34(a).

6. 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 show by a preponderance of the evidence that Respondent’s proposed permanent revocation of Petitioner’s criminal justice officer certification is not supported by substantial evidence.

7. N.C.G.S. § 14-100, Obtaining Property by False Pretenses, states:

If any person shall knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value, such person shall be guilty of a felony.

(N.C.G.S. § 14-100 (2007))

8. Intent to commit a crime is defined in the North Carolina Pattern Jury Instructions

as follows:

Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.

9. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly committed the felony offense of attempting to obtain property by false pretenses in violation of N.C.G.S. § 14-100 when he completed and submitted an invoice for payment for secondary employment work hours that he failed to work.

10. The Respondent’s finding of probable cause is supported by substantial evidence and is not arbitrary and capricious.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends Respondent permanently revoke the Petitioner’s law enforcement officer certification based upon Petitioner’s knowingly committing the felony offense of attempting to obtain property by false pretenses.

NOTICE

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 18th day of September, 2009.

_____/s/_____________________

Selina M. Brooks

Administrative Law Judge

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