STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF SAMPSON

JOHN PATRICK HARRIS, )

)

Petitioner )

)

v. )

)

NORTH CAROLINA SHERIFFS' )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

)

Respondent )

__________________________________

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

10 DOJ 7772

PROPOSAL FOR DECISION

On 16 June 2011, Administrative Law Judge Donald W. Overby, heard this case in Fayetteville, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 150B-40(e), 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: Pro se

Respondent: Lauren D. Tally, Assistant Attorney General

Catherine F. Jordan, Assistant Attorney General

ISSUE

Does substantial evidence exist to deny Petitioner’s application for certification as a detention officer with the North Carolina Sheriffs’ Education and Training Standards Commission?

EXHIBITS

Respondent tendered Exhibits numbered 1 – 14, which were received into evidence.

Petitioner offered no exhibits into evidence.

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, John Patrick Harris (hereinafter Petitioner), received by certified mail, the proposed Denial of Justice Officer's Certification letter, mailed by Respondent, the North Carolina Sheriffs' Education and Training Standards Commission (hereinafter “the Commission”), on 6 October 2010.

2. The 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. Petitioner had applied for a position with the North Carolina Department of Corrections. On 13 February 2007, a drug test was reported for Petitioner that showed that Petitioner tested positive for marijuana. (Respondent’s Exhibit 7)

4. On 13 February 2007, North Carolina Department of Correction, Central Prison, Management Services Administrator Julie Medlin sent a letter to Petitioner stating that “[w]e are withdrawing the conditional offer of employment extended to you and will not be offering you a position as Correctional Officer at Central Prison.” (Respondent’s Exhibit 7)

5. On 15 February 2007, North Carolina Department of Correction, Director of Human Resources, Ronald A. Gillespie, sent a letter to the North Carolina Criminal Justice Standards Division Director, Wayne Woodard, stating that Petitioner “an applicant with Central Prison received a positive drug test result during the initial hiring process on February 8, 2007.” (Respondent’s Exhibit 7) Petitioner’s drug test results show that he tested positive for marijuana. Id.

6. Petitioner attended Basic Law Enforcement Training (BLET) in 2009, but did not successfully complete the course. He was offered a position with the Sampson County Sheriff’s Office as a detention officer, a non-sworn position.

7. In furtherance of his application for employment and certification as a detention officer, Petitioner submitted a Form F-3 Personal History Statement to the Commission on 7 August 2009. (Respondent’s Exhibit 2)

8. Petitioner’s Form F-3 Personal History Statement, page 11, states: “Answer all of the following questions completely and accurately. Any falsification or misstatement of facts may be sufficient to disqualify you from certification. The word ‘used’ in the following question includes even one time use or experimentation. Applicants for the position of Justice Officer must disclose all prior criminal conduct.” (Respondent’s Exhibit 2)

9. The question immediately following that statement, Question 39, of Petitioner’s Form F-3 Personal History Statement states: “Have you ever used any illegal drugs including but not limited to marijuana, steroids, opiates, pills, heroin, cocaine, crack, LSD, etc., to include even one time use or experimentation? If YES, what were the circumstances, drugs used, frequency of use, and when did usage last occur?” (Respondent’s Exhibit 2)

10. In response to Petitioner’s Form F-3 Personal History Statement question 39, Petitioner answered “YES” and stated: “marijuana experimentation teenager (marijuana) exposed from blet training class 2009.” (Respondent’s Exhibit 2)

11. Petitioner attested to his truthfulness when he signed his Form F-3 Personal History Statement under the statement: “I hereby certify that each and every statement made on this form is true and complete and understand that any misstatements or omission of information may subject me to disqualification or dismissal.” (Respondent’s Exhibit 2) Petitioner also had his Form F-3 Personal History Statement notarized. Id.

12. On 13 August 2009, Petitioner submitted to the Sampson County Sheriff’s Office, an Applicant Supplement Questionnaire. (Respondent’s Exhibit 4) The Questionnaire states “Complete the following questionnaire completely and truthfully. Failure to answer questions, or to provide complete and truthful responses will result in denial of employment.” Id. Question 2 states: “Have you committed an illegal act in the last five years?” Petitioner answered “No.” Question 3 states: “Describe any criminal involvement that you may have had in the past.” Petitioner answered “N/A.” Question 17 states: “Explain your knowledge or involvement regarding illegal drugs, other than job related exposure, i.e. previous work as a criminal justice officer.” Petitioner answered: “experimental marijuana in the past.” Question 18 states: “Have you ever possessed or sold any amount of illegal drugs? When?” Petitioner answered: “No.” Question 19 states “Have you ever used any of the following drugs?” Petitioner checked the answer box for marijuana and stated “in my past (not present last 5 years).” Question 20 states “Have you ever tasted or sniffed any of these drugs?” Petitioner answered yes, and explained “marijuana smoked in the past.” Id.

13. Petitioner attested to his truthfulness when he signed his Applicant Supplement Questionnaire form under the statement: “I understand that each and every statement made in this form is true and complete, and understand that any misstatements or omission of information may subject me to disqualification or dismissal.” (Respondent’s Exhibit 4)

14. On 17 August 2009, Sampson County Sheriff’s Office Major Kemley Pickett submitted a Summary of Background Information Form F-8 on behalf of Petitioner. (Respondent’s Exhibit 3) Petitioner’s Form F-8 states that Petitioner “has been living in North Carolina over 04 years.” Id.

15. On 20 August 2009, the Sampson County Sheriff’s Office submitted a Report of Appointment Form F-4 on behalf of Petitioner to the Commission for his appointment as a detention officer. (Respondent’s Exhibit 1)

16. Petitioner’s Report of Appointment Form F-4 states that:

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 written and oral 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 fact or portion of such information may be the sole basis for termination of my employment and/or denial or revocation of my certification at any time; now or later.

(Respondent’s Exhibit 1)

17. On or about June 2010, a confidential informant “observed a tall, black male detention officer deliver what appeared to be an “eight ball” of cocaine, while [the confidential informant] was incarcerated in E-Pod at the Sampson County Detention Center.” (Respondent’s Exhibit 5) The confidential informant “advised that the detention officer worked E-Pod frequently and made the delivery under the second flood walk-way out of surveillance camera view.” Id. Based upon the description and work assignments, Sergeant Bobby Smith identified the potential detention officer as Petitioner. Id.

18. Sergeant Bobby Smith provided in part the following statement:

[T]he informant told her of a Detention Officer bring[ing] cocaine into the Sampson County Detention Center. The Informant stated the Detention Officer would bring about an “8 ball” in a plastic bag and give it to an inmate in a green suit. The Informant felt it was and [sic] out of county inmate because he was not in orange. The Informant stated the Officer and Inmate would walk under the second floor where the camera would not pickup. The inmate would then take the cocaine from the Officer and returned to his cell were [sic] he would use it.” (Respondent’s Exhibit 5)

19. Sergeant Smith found that Petitioner “was the only real tall black male Officer working E-Pod, which fit the description.” Id. On 22 June 1020, Sergeant Smith also asked Deputy Donald Carter to take his dog and check Petitioner’s vehicle. Deputy Carters K-9 alerted on the driver side door of Petitioner’s vehicle. Id.

20. Major Pickett was directed to bring Petitioner to the Training Room where Petitioner was first informed that there had been a complaint that he was bringing contraband into the detention facility. He was informed that the K-9 had alerted to the presence of drugs in his vehicle. Petitioner was “frisked” and his pockets searched and no drugs or other contraband was found. After the K-9 alerted on Petitioner’s vehicle, Deputy Carter conducted a search of Petitioner’s vehicle and found no drugs or other contraband.

21. As a result of this series of events, Captain Eric Pope of the Sampson County Sheriff’s Office was asked to interview Petitioner. Although the investigation into Petitioner bringing contraband into the detention facility bore no fruit, the interview with Capt. Pope revealed that Petitioner not had been truthful in his prior written submissions.

22. A final disposition was issued that concluded that “[t]hrough investigation of a complaint regarding [Petitioner] possibly bringing contraband into the Detention Center is [sic] was discovered through statements made in the investigation that [Petitioner] provided false statements in his F-3 Personal History Statement, which is required by NC Administrative Code. [Petitioner’s] failure to disclose the accurate information constitutes untruthfulness in violation of the following policies of the Sampson County Sheriff’s Office: SCSO 01-02 - Code of Ethics; SCSO 01-03 - Ethical Principles; SCSO 01-04 - Core Values (Honesty & Ethics); and SCSO 05-01 - Code of Conduct (Rule 36: Truthfulnes [sic]).” (Respondent’s Exhibit 5)

23. During Capt. Pope’s interview with the Petitioner on June 22, 2010, Petitioner stated that he applied for a Correction Officer’s position approximately three to four years prior; however he tested positive for marijuana on the drug screen. Petitioner indicated in his F-3 Personal History Statement that he had never been denied employment by a criminal justice agency after a conditional offer of employment had been made. When asked why he did not answer “yes” to #26 on the F-3, he stated that he felt he was never offered conditional employment.

24. During Capt. Pope’s interview with the Petitioner, he stated that he smoked marijuana on a daily basis prior to moving to North Carolina approximately five years before. Petitioner also indicated that he smoked marijuana a couple of times after moving to North Carolina. Petitioner further indicated that he experimented with marijuana as a teenager and was exposed to marijuana during BLET Training in 2009 on question #39 of his F-3 Personal History Statement pertaining to the drugs used, frequency of use, and time of last use. When asked why he did not indicate the marijuana usage on his F-3 and the Supplemental Questionnaire, he stated that he forgot. On the Supplemental Questionnaire, after checking the marijuana box, Petitioner indicated “In my past (Not Present Last 5 Years)” when asked to explain if he had ever used any drugs.

25. During Capt. Pope’s interview with the Petitioner, Petitioner stated that he sold “a couple of bags of marijuana” for his sister when he was eighteen or nineteen years old. On the Supplemental Questionnaire, Petitioner checked “No” when asked if he ever possessed or sold any amount of illegal drugs.

26. During the interview, Petitioner denied bringing any contraband into the Detention Center or on the grounds of the Detention Center. Petitioner’s explanation is that he lived next to a drug dealer and he is unable to secure his vehicle door, and he felt that the neighbor may have planted something on his vehicle. Petitioner also indicated that an inmate who was friends with his drug-dealing neighbor has threatened his life as well. (Respondent’s Exhibit 5)

27. On 29 June 2010, the Sampson County Sheriff’s Office submitted a Report of Separation Form F-5 to the Commission stating that Petitioner’s resigned from his position as detention officer. (Respondent’s Exhibit 9)

28. On 12 August 2010, the Commission’s Deputy Director submitted a memorandum to the Commission’s Probable Cause Committee to determine whether probable cause exists to revoke Petitioner’s certification based upon the allegation that Petitioner knowingly made a material misrepresentation of any information required for certification and whether he 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. (Respondent’s Exhibit 15)

29. The Commission’s Probable Cause Committee found probable cause existed to revoke Petitioner’s certification. (Respondent’s Exhibit 10) The Probable Cause Committee found probable cause existed that Petitioner knowingly made a material misrepresentation of any information required for certification and he 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. Id. Specifically, the Probable Cause Committee based its determination on Petitioner’s answers to Question 39 of his Form F-3 and Questions 2, 17, 18, 19, and 20 of his Applicant Supplemental Questionnaire. Id.

30. Petitioner appropriately and in a timely manner requested an administrative hearing. (Respondent’s Exhibit 11)

31. At the administrative hearing, Captain Eric Pope with Sampson County Sheriff’s Office testified that he interviewed Petitioner on 6 June 2010 as a part of an internal affairs investigation. Captain Pope’s testimony at the hearing was consistent with the information set forth above.

32. At the administrative hearing, Petitioner testified on his own behalf. He stated that he did smoke marijuana in the past but stopped after meeting his wife and going to church. He admitted that he did not provide full and accurate answers to all the questions about drug use on his F-3 and the Supplemental Questionnaire for employment with Sampson County Sheriff’s Office. Petitioner claimed that his answer to question 39 on the F-3 was accurate and he did experiment with marijuana as a teenager. When pressed, he admitted to marijuana use of at least three times a week prior to his move to North Carolina in 2005 or 2006, and he admitted that he smoked marijuana approximately twenty times since he moved to North Carolina in 2005 or 2006. Petitioner admitted that his answer to question 39 did not address his frequent marijuana use after his teenage years and therefore was not truthful. When asked about his response of “No” to question two on the Supplemental Questionnaire stating, “Have you committed an illegal act in the last five years, and if so, what,” Petitioner stated that the answer he provided wasn’t truthful and agreed that being in possession of marijuana is an illegal act. Petitioner also admitted to buying marijuana for smoking within the past five years. Petitioner stated on question 17 of the Supplemental Questionnaire that he experimented with marijuana in the past. When asked about the accuracy of this answer, he admitted that his use was more frequent. Petitioner admitted that the answer give to question nineteen was inaccurate, and that he had in fact smoked marijuana within the past five years. Throughout the administrative hearing, Petitioner denied ever selling marijuana for his sister when he was eighteen or nineteen. Petitioner agreed that the answers he provided concerning his prior drug use on the F-3 and Supplemental Questionnaire were misleading and incorrect. Petitioner claimed through his testimony and discovery responses that he was coerced and pressured by Captain Pope during the interview; however, the recording played in court showed the interview to be very calm and even slow at times. Petitioner even laughed during the interview showing he was not coerced or under extreme pressure. While testifying, Petitioner admitted to concealing the truth about his prior drug use because he was embarrassed.

33. It is specifically found that Petitioner continued to be untruthful in his testimony before this Tribunal and that he is not credible.

34. At the administrative hearing, Petitioners wife, and daughter testified that he was a good, hard working man, who provided for the family.

CONCLUSIONS OF LAW

1. The parties properly are before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2. 12 NCAC 10B.0204(c)(1) and (2) states that the 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 Commission or the North Carolina Criminal Justice Education and Training Standards Commission. This Subparagraph also applies to obtaining or attempting to obtain in-service firearms requalification as required by 12 NCAC 10B .2000 and .2100;

(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 Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

3. Petitioner knowingly made a material misrepresentation of information required for certification by failing to disclose his prior drug use on his Form F-3 Personal History Statement and his Applicant Supplemental Questionnaire.

4. Petitioner knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation or cheating whatsoever, obtained certification from the Commission by failing to disclose his prior drug use and falsely answering questions on his Form F-3 Personal History Statement and his Applicant Supplemental Questionnaire.

5. Petitioner’s knowing material misrepresentation of information and falsification required for certification constitutes a violation of 12 NCAC 10B.0204(c)(1) and (2). Respondent’s proposed denial of the Petitioner’s application for certification is supported by substantial evidence.

6. The period of sanction for a violation of 12 NCAC 10B .0204(c)(1) and (2) is not less than five years. 12 NCAC 10B .0205(2)(b) - (c).

PROPOSAL FOR DECISION

Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned recommends the Respondent revoke the Petitioner’s justice officer’s certification.

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 21st day of July 2011.

____________________________________

Donald W. Overby

Administrative Law Judge

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

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

Google Online Preview   Download