STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF MONTGOMERY

ROBERT SCOTT MACFAYDEN,

Petitioner,

v.

NORTH CAROLINA SHERIFFS’

EDUCATION AND TRAINING

STANDARDS COMMISSION,

Respondent.

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ADMINISTRATIVE HEARINGS

10 DOJ 7773

PROPOSAL FOR DECISION

BY CONSENT | |

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THIS MATTER was commenced by a request filed on November 15, 2010, in the Office of Administrative Hearings. Notice of Contested Case and Assignment and Order for Prehearing Statements were filed on November 23, 2010. At the request of the parties, the Administrative Law Judge determined this matter on the stipulated facts, pleadings, and arguments of the parties pursuant to two telephone conferences proceeding on February 25, 2011 and May 27, 2011. Petitioner’s Exhibits 1-4 and Respondent’s Exhibits 1-6 were accepted into evidence by stipulation of the parties.

APPEARANCES

Petitioner: Max A. Garner, Esq.

Respondent: John J. Aldridge, III, Special Deputy Attorney General

ISSUE

Is Respondent’s proposed revocation of Petitioner’s Justice Officer Certification supported by substantial evidence?

AFTER CAREFUL CONSIDERATION of the entire record herein, and after discussion with counsel for the parties and upon consent, the Undersigned hereby enters the following Findings of Fact and Conclusions of Law:

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 the Petitioner received the Notification of Probable Cause to Revoke Justice Officer Certification letter mailed by the Respondent on September 27, 2010. R. Ex. 4

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. Pursuant to 12 NCAC 10B .0204(d)(1), the Commission may revoke, suspend, or deny the certification of a justice officer when the Commission finds that the certified officer has committed or been convicted of:

(1) a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of appointment.

4. Pursuant to 12 NCAC 10B .0301(a)(8), every justice officer employed or certified in North Carolina shall be of good moral character.

5. On February 17, 1995, Petitioner applied through the North Carolina Sheriffs’ Education and Training Standards Commission to be certified as a Deputy Sheriff with the Montgomery County Sheriff’s Office. On February 17, 1995, Petitioner was sworn as a Deputy Sheriff through the Montgomery County Sheriff’s Office. R. Ex. 1

6. On April 9, 2010, Petitioner was employed as a Deputy Sheriff with the Montgomery County Sheriff’s Office. On April 9, 2010, Petitioner responded to a call that a breaking and entering was in progress at the residence of Billy Wayne Barbee. While in Mr. Barbee’s home at his request, Petitioner took U.S. currency in the amount of $20.00, which was the personal property of Mr. Barbee, from his residence. Petitioner left Mr. Barbee’s residence with this $20.00. Mr. Barbee did not authorize Petitioner to take this money. Petitioner intended to permanently deprive Mr. Barbee of this money. Petitioner committed these acts while in uniform as a deputy sheriff and carrying out the duties of his office.

7. On April 21, 2010, Petitioner was separated from his position as a Deputy Sheriff with the Montgomery County Sheriff’s Office as a result of taking Mr. Barbee’s money. R. Ex. 2

8. On April 23, 2010, Petitioner was charged with the criminal offense of misdemeanor larceny, in violation of N.C.G.S. § 14-72(a), because of his actions in taking Mr. Barbee’s money on April 9, 2010. R. Ex. 3

9. On or about June 8, 2010, Petitioner pled guilty to the criminal offense of misdemeanor larceny for taking Mr. Barbee’s money. On June 8, 2010, Petitioner was convicted of the offense of misdemeanor larceny in Montgomery County District Court. R. Ex. 3

10. Petitioner made the following admission in his response to Respondent’s first set of interrogatories:

On April 9, 2010, I along with another deputy responded to a breaking and entering in progress. On this date I was covering shift while one of my officers was out of the county on a mental commitment transport.

I was on my 15th hour of work when I responded to this call. Once I arrived, I was greeted by Mr. Barbee at his front door with a machete in his right hand and a pocket knife in his left hand. Mr. Barbee stated that he heard something outside his back door trying to gain entry. Mr. Barbee stated he went to his back door and looked out and saw suspects running away. I went with Mr. Barbee outside and looked for entry and any type of foot prints on the ground in the dew. No prints were located. After several minutes went by, my back-up arrived. I stepped around from behind the residence and called out to my back-up officer to advise of my location. While the back-up officer walked around checking out the front yard of the property, Mr. Barbee requested to use my flashlight to look under his residence for suspects. I let Mr. Barbee use my personal stream light flashlight. I finished walking around to the front of Mr. Barbee’s residence to brief my back-up officer of the situation and status of this call. Then I and the other deputy went back around to the back of Mr. Barbee’s residence to locate Mr. Barbee. At this time Mr. Barbee was all the way underneath his mobile home towards the opposite end. Mr. Barbee yelled out saying he needed help getting out. I, along with the other deputy, had to pull out the underpinning to be able to get to Mr. Barbee. We pulled Mr. Barbee out and he was covered in mud. Mr. Barbee handed back my flashlight which was covered in mud and the lens was broken. I, along with Mr. Barbee and the other deputy, went back into the residence. Mr. Barbee requested for us to check inside his residence and make sure no one was inside. While inside, I was mad and upset that my light was broken. I picked up $20.00 from the coffee table to be able to fix the damage to the light. I along with the other officer left the scene to finish out the shift.

R. Ex. 6

CONCLUSIONS OF LAW

1. Both parties are properly before this Administrative Law Judge and jurisdiction and venue are proper.

2. The North Carolina Sheriffs’ Education and Training Standards Commission has the authority granted under Chapter 17E of the General Statutes, 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(d)(1), the Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the certified officer has committed or been convicted of a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of appointment.

4. Pursuant to 12 NCAC 10B .0103(2), “convicted” or “conviction” means and includes, for purposes of this Chapter, the entry of (A) a plea of guilty; (B) a verdict or finding of guilt by a jury, judge, magistrate, or other duly constituted, established, and recognized adjudicating body, tribunal, or official, either civilian or military; or (C) a plea of no contest, nolo contendere, or the equivalent.

5. Pursuant to 12 NCAC 10B .0103(10)(b)(i), a Class B Misdemeanor is defined in pertinent part as:

(i) an act committed or omitted in violation of any common law, criminal statute, or criminal traffic code of this state which is classified as a Class B Misdemeanor as set forth in the “Class B Misdemeanor Manual” as published by the North Carolina Department of Justice and shall automatically include any later amendments and editions of the incorporated material as provided by G.S. 150B-21.6.

6. Pursuant to N.C.G.S. § 14-72(a), 12 NCAC 10B .0103(10)(b) and the Class B Misdemeanor Manual adopted by the Respondent, the crime of misdemeanor larceny constitutes a Class B misdemeanor.

7. Pursuant to 12 NCAC 10B .0204(b)(2), the Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds that the certified officer fails to meet or maintain any of the minimum employment standards required by 12 NCAC 10B .0300.

8. Pursuant to 12 NCAC 10B .0301(a)(8), every justice officer employed or certified in North Carolina shall be of good moral character.

9. Petitioner’s misdemeanor larceny conviction, and his admitted commission of this crime, constitutes a violation of 12 NCAC 10B .0204(d)(2).

10. Petitioner, by his actions of stealing money while on duty and in uniform from a member of the public with whom he has a duty to protect is indicative of a lack of good moral character as required of all justice officers pursuant to 12 NCAC 10B .0301(a)(8). The Respondent’s proposed revocation of the Petitioner’s certification is supported by substantial evidence.

PROPOSAL FOR DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, and upon the consent of counsel for the parties, the Undersigned recommends that Respondent:

1) revoke the Petitioner’s Justice Officer Certification for an indefinite period because Petitioner no longer possesses the good moral character required of all justice officers; and

2) revoke the Petitioner’s Justice Officer Certification for a period of three years based on Petitioner’s commission and conviction of the Class B misdemeanor offense of misdemeanor larceny, retroactive to the date of suspension, April 21, 2010.

NOTICE

The Agency making the Final Decision in this contested case 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. N.C.G.S. § 150B-40(e).

The Agency that will make the Final Decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.

This the 31st day of May, 2011.

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Selina M. Brooks

Administrative Law Judge

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